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###### Securities and Exchange Commission

          - Release No. 34-59305; File No. SR-NYSEArca-2009-04]

                    Pursuant to Section 19(b)(1) [1]                                          of the Securities Exchange Act of 1934 (the “Act”) [2]                                          and Rule 19b-4 thereunder,[3]                                          notice is hereby given that, on January 9, 2009, NYSE Arca, Inc. (“NYSE Arca” or the “Exchange”) filed with the Securities and Exchange Commission (the “Commission”) the proposed rule change as described in Items I, II, and III below, which Items have been prepared by the self-regulatory organization. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons.                

## I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change

                    The Exchange proposes to amend Exchange rules governing Flexible Exchange Options. A copy of this filing is available on the Exchange's Web site at                     *http://www.nyse.com,*                     at the Exchange's principal office and at the Commission's Public Reference Room.                

## II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change

In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.

### A. Self-Regulatory Organization's Statement of the Purpose of, and the Statutory Basis for, the Proposed Rule Change

#### 1. Purpose

                    The purpose of the proposed rule change is to increase the maximum term for FLEX Options. Currently, the maximum term for a FLEX Equity Options [4]                                          is three (3) years, provided an OTP Holder may request a longer term to a maximum of five (5) years,[5]                                          and for FLEX Index Options the maximum term is five (5) years.                

NYSE Arca is proposing to increase the maximum term for all FLEX Options to fifteen years and to eliminate the requirement that a FLEX Post Official make a liquidity assessment. The changes are being proposed to simplify the process and in response to investor interest in expanding the maximum term, in order to accommodate their desire to bring trades that are otherwise conducted in the over-the-counter (“OTC”) market to an exchange environment.

                    The Exchange believes that expanding the eligible term for FLEX Options as proposed is important and necessary to the Exchange's efforts to create a product and market that provides OTP Holders, and other qualified investors interested in FLEX-type options, with an improved but comparable alternative to the OTC market in customized options, which can take on contract characteristics similar to FLEX Options but are not subject to the same maximum term restriction. By expanding the eligible term for FLEX Options, market participants will now have greater flexibility in determining whether to execute their customized options in an exchange environment or in the OTC market. NYSE Arca believes market participants benefit from being able to trade these customized options in an exchange environment in several ways, including, but not limited to the following: (1) Enhanced efficiency in initiating and closing out positions; (2)                           ( print page 5955)                        increased market transparency; and (3) heightened contra-party creditworthiness due to the role of The Options Clearing Corporation (“OCC”) as issuer and guarantor of FLEX Options. Finally, the Exchange has contacted the OCC and they have confirmed that they can configure their systems to support FLEX Options that have a maximum expiration of fifteen years.                

#### 2. Statutory Basis

                    The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act [6]                                          in general, and furthers the objectives of Section 6(b)(5) of the Act [7]                                          in particular, because it is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, and to remove impediments to and perfect the mechanism of a free and open market and a national market system. Specifically, by expanding the maximum terms for Flexible Exchange Traded Options, the Exchange to [sic] will be able to offer market participants additional investment choices that come with increased market transparency and heightened contra-party creditworthiness, both of which and [sic] are consistent with Section 6(b) of the Act [8]                                          in general, and the objectives of Section 6(b)(5) of the Act.[9] 

### B. Self-Regulatory Organization's Statement on Burden on Competition

The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.

### C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others

No written comments were solicited or received with respect to the proposed rule change.

## III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action

                    The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act [10]                                          and Rule 19b-4(f)(6) thereunder.[11]                                          Because the proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative prior to 30 days from the date on which it was filed, or such shorter time as the Commission may designate, if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act [12]                                          and Rule 19b-4(f)(6)(iii) thereunder.[13] 

                    A proposed rule change filed under Rule 19b-4(f)(6) [14]                                          normally does not become operative prior to 30 days after the date of the filing. However, pursuant to Rule 19b4(f)(6)(iii),[15]                                          the Commission may designate a shorter time if such action is consistent with the protection of investors and the public interest.[16] 

At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.

## IV. Solicitation of Comments

Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:

### Electronic Comments

    - Use the Commission's Internet comment form ( http://www.sec.gov/​rules/​sro.shtml ); or                
    - Send an e-mail to rule-comments@sec.gov.                      Please include File Number SR-NYSEArca-2009-04 on the subject line.                

### Paper Comments

    - Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.

                    All submissions should refer to File Number SR-NYSEArca-2009-04. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (                    *http://www.sec.gov/​rules/​sro.shtml*). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Section, 100 F Street, NE., Washington, DC 20549-1090 on official business days between 10 a.m. and 3 p.m. Copies of the filing will also be available for inspection and copying at NYSE Arca's principal office and on its Internet Web site at                     *http://www.nyse.com.*                     All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-NYSEArca-2009-04 and should be submitted on or before February 24, 2009.                

                        For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.[17] 

Florence E. Harmon,

Deputy Secretary.

# Footnotes

1.                             15 U.S.C.78s(b)(1).                    
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2.                             15 U.S.C. 78a.                    
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3.                             17 CFR 240.19b-4.                    
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4.                             Flex Equity Options includes options on specified equity securities or Exchange Traded Fund Shares.                    
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5.                             Pursuant to NYSE Arca Rule 5.32 (d)(1), upon assessment by the FLEX Post Official that sufficient liquidity exists, such request will be granted.                    
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6.                             15 U.S.C. 78f (b).                    
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7.                             15 U.S.C. 78f (b)(5).                    
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8.                                                     *Id.*
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9.                                                     *Id.*
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10.                             15 U.S.C. 78s(b)(3)(A)(iii).                    
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11.                             17 CFR 240.19b-4(f)(6).                    
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12.                             15 U.S.C. 78s(b)(3)(A).                    
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13.                             17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii) requires the Exchange to give the Commission written notice of the Exchange's intent to file the proposed rule change along with a brief description and text of the proposed rule change, at least five business days prior to the date of filing of the proposed rule change, or such shorter time as designated by the Commission. The Exchange has satisfied the pre-filing requirement.                    
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14.                             17 CFR 240.19b-4(f)(6).                    
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15.                             17 CFR 240.19b-4(f)(6)(iii).                    
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16.                             The Commission notes that NYSE Arca is not requesting waiver of the 30-day operative delay, despite including this language in its Notice. Telephone conference between Glenn H. Gsell, Managing Director, NYSE Regulation, and Kristie Diemer, Special Counsel, Commission, on January 8, 2009.                    
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17.                                 17 CFR 200.30-3(a)(12).                        
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[FR Doc. E9-2224 Filed 2-2-09; 8:45 am]

BILLING CODE 8011-01-P