10626 Federal Register / Vol. 74, No. 46 / Wednesday, March 11, 2009 / Notices 

10 15 U.S.C. 78f. 

11 15 U.S.C. 78f(b)(4). 

12 15 U.S.C. 78s(b)(3)(A)(ii). 

13 17 CFR 240.19b-4(f)(6). 

14 17 CFR 200.30–3(a)(12). 

1 15 U.S.C. 78s(b)(1). 

2 15 U.S.C. 78s(b)(3)(A)(iii). 

3 17 CFR 240.19b–4(f)(3). 

per share to $0.0033 per share. The 

Exchange is reducing its fee for such 

orders to encourage use of the 

Exchange’s Directed ISO order types. 

2. Statutory Basis 

The Exchange believes that the 

proposed rule change is consistent with 

the requirements of the Act and the 

rules and regulations thereunder that 

are applicable to a national securities 

exchange, and, in particular, with the 

requirements of Section 6 of the Act.10

Specifically, the Exchange believes that 

the proposed rule change is consistent 

with Section 6(b)(4) of the Act,11 in that 

it provides for the equitable allocation 

of reasonable dues, fees and other 

charges among members and other 

persons using any facility or system 

which the Exchange operates or 

controls. The Exchange notes that it 

operates in a highly competitive market 

in which market participants can 

readily direct order flow to competing 

venues if they deem fee levels at a 

particular venue to be excessive. The 

Exchange believes that its fees and 

credits are competitive with those 

charged by other venues and that the 

various changes it has proposed to 

simplify its fee schedule will benefit 

both the Exchange and Members of the 

Exchange. For those proposed changes 

that will result in increased fees charged 

to Members or lower rebates received by 

Members, such as the reduction of the 

rebate in Tape B securities, the 

Exchange believes that any additional 

revenue it receives will allow the 

Exchange to devote additional capital to 

its operations, which may, in turn, 

benefit Members of the Exchange. 

Finally, the Exchange believes that the 

proposed rates are equitable in that they 

apply uniformly to all Members. 

(B) Self-Regulatory Organization’s 

Statement of Burden on Competition 

The Exchange does not believe that 

the proposed rule change imposes any 

burden on competition. 

(C) Self-Regulatory Organization’s 

Statement on Comments Regarding the 

Proposed Rule Change Received From 

Members, Participants or Others 

No written comments were solicited 

or received. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

The foregoing proposed rule change 

has been designated as a fee change 

pursuant to Section 19(b)(3)(A)(ii) of the 

Act 12 and Rule 19b-4(f)(2) thereunder,13

because it establishes or changes a due, 

fee or other charge imposed on members 

by the Exchange. Accordingly, the 

proposal is effective upon filing with 

the Commission. 

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 proposal 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 rulecomments@sec.gov. Please include File 

No. SR–BATS–2009–007 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 

No. SR–BATS–2009–007. 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 changes 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 

Room, 100 F Street, NE., Washington, 

DC 20549, on official business days 

between the hours of 10 a.m. and 3 p.m. 

Copies of such filing also will be 

available for inspection and copying at 

the principal office of BATS. 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 No. 

SR–BATS–2009–007 and should be 

submitted on or before April 1, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.14

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–5206 Filed 3–10–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59496; File No. SR– 

BSECC–2009–01] 

Self-Regulatory Organizations; Boston 

Stock Exchange Clearing Corporation; 

Notice of Filing and Immediate 

Effectiveness of a Proposed Rule 

Change To Amend the Certificate of 

Incorporation of The NASDAQ OMX 

Group, Inc. 

March 3, 2009. 

Pursuant to Section 19(b)(1) of the 

Securities Exchange Act of 1934 

(‘‘Act’’),1 notice is hereby given that on 

February 17, 2009, Boston Stock 

Exchange Clearing Corporation 

(‘‘BSECC’’) filed with the Securities and 

Exchange Commission (‘‘Commission’’) 

the proposed rule change described in 

Items I, II, and III below, which items 

have been prepared primarily by 

BSECC. BSECC filed the proposed rule 

change pursuant to Section 

19(b)(3)(A)(iii) of the Act 2 and Rule 

19b–4(f)(3) thereunder 3 so that the 

proposal was effective upon filing with 

the Commission. The Commission is 

publishing this notice to solicit 

comments on the proposed rule change 

from interested parties. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

BSECC is filing this proposed rule 

change with regard to proposed changes 

to the Restated Certificate of 

Incorporation (‘‘Certificate’’) of its 

parent corporation, The NASDAQ OMX 

Group, Inc. (‘‘NASDAQ OMX’’). The 


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Federal Register / Vol. 74, No. 46 / Wednesday, March 11, 2009 / Notices 10627 

4The Commission has modified the text of the 

summaries prepared by BSECC. 

5The NASDAQ Exchange, Phlx, BX, BSECC, and 

SCCP have each submitted this proposed rule 

change pursuant to Section 19(b)(3)(A)(iii) of the 

Act, 15 U.S.C. 78s(b)(3)(A)(iii). 

6 15 U.S.C. 78q–1. 

7 15 U.S.C. 78q–1(b)(3)(A). 

8 15 U.S.C. 78s(b)(3)(A)(iii). 

9 17 CFR 240.19b–4(f)(3). 

proposed rule change will be 

implemented as soon as practicable 

following filing with the Commission. 

The text of the proposed rule change is 

available at http:// 

www.nasdaqtrader.com/ 

Trader.aspx?id=BSECCIE2009 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, 

BSECC 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 these statements 

may be examined at the places specified 

in Item IV below. BSECC has prepared 

summaries, set forth in sections (A), (B), 

and (C) below, of the most significant 

aspects of these statements.4

(A) Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

NASDAQ OMX is proposing to make 

amendments to its Certificate. As 

provided in Articles XI and XII of the 

NASDAQ OMX By-Laws, proposed 

amendments to the Certificate are to be 

reviewed by the Board of Directors of 

each self-regulatory subsidiary of 

NASDAQ OMX, and if any such 

proposed amendment must be filed with 

or filed with and approved by the 

Commission under Section 19 of the Act 

and the rules promulgated thereunder 

before such amendment may be 

effective, then such amendment shall 

not be effective until filed with or filed 

with and approved by the Commission 

as the case may be. The governing 

boards of the NASDAQ Stock Market 

LLC (‘‘NASDAQ Exchange’’), NASDAQ 

OMX BX, Inc. (‘‘BX’’), NASDAQ OMX 

Phlx, Inc. (‘‘Phlx’’), BSECC, and Stock 

Clearing Corporation of Philadelphia 

(‘‘SCCP’’) have each reviewed the 

proposed change and determined that it 

should be filed with the Commission.5

The changes to the Certificate are 

limited in scope, and under Delaware 

law, they do not require approval by the 

stockholders of NASDAQ OMX. 

Specifically, NASDAQ OMX proposes 

to eliminate its Certificate of 

Designations, Preferences and Rights of 

Series D Preferred Stock, and all matters 

set forth therein. NASDAQ OMX’s 

Series D Stock was created in 2005 for 

the purpose of allowing National 

Association of Securities Dealers, Inc. to 

retain voting control over NASDAQ 

OMX’s predecessor, The Nasdaq Stock 

Market, Inc. In connection with the 

NASDAQ Exchange commencing 

operations as a national securities 

exchange, the sole share of Series D 

Stock was redeemed in December 2006. 

Under Delaware law, both a certificate 

of designations (designating a series of 

preferred stock) and a certificate of 

elimination (eliminating a previously 

adopted designation) are deemed to be 

amendments to NASDAQ OMX’s 

Certificate. 

2. Statutory Basis 

BSECC believes that the proposed rule 

change is consistent with provisions of 

Section 17A of the Act,6 in general, and 

with Section 17A(b)(3)(A) of the Act,7 in 

particular, in that it is designed to 

ensure that BSECC is so organized and 

has the capacity to be able to facilitate 

the prompt and accurate clearance and 

settlement of securities transactions. 

The proposed change will enhance the 

clarity of NASDAQ OMX’s governance 

documents by eliminating provisions 

relating to a series of preferred stock 

that is no longer outstanding. 

(B) Self-Regulatory Organization’s 

Statement on Burden on Competition 

BSECC does not believe that the 

proposed rule change will result in any 

burden on competition that is not 

necessary or appropriate in furtherance 

of the purposes of the Act, as amended. 

(C) Self-Regulatory Organization’s 

Statement on Comments on the 

Proposed Rule Change Received From 

Members, Participants, or Others 

Written comments were neither 

solicited nor received. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

The foregoing rule change has become 

effective upon filing pursuant to Section 

19(b)(3)(A)(iii) of the Act 8 and Rule 

19b–4(f)(3) 9 thereunder because the 

proposal is concerned solely with the 

administration of BSECC. At any time 

within sixty days of the filing of such 

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 rulecomments@sec.gov. Please include File 

Number SR–BSECC–2009–01 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–BSECC–2009–01. 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 

Room, 100 F Street, NE., Washington, 

DC 20549, on official business days 

between the hours of 10 a.m. and 3 p.m. 

The text of the proposed rule change is 

available at BSECC, the Commission’s 

Public Reference Room, and http:// 

www.nasdaqtrader.com/ 

Trader.aspx?id=BSECCIE2009. 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–BSECC–2009–01 and 


rwilkins on PROD1PC63 with NOTICES
10628 Federal Register / Vol. 74, No. 46 / Wednesday, March 11, 2009 / Notices 

10 17 CFR 200.30–3(a)(12). 

1 15 U.S.C. 78s(b)(1). 

2See Securities Exchange Act Release No. 56458 

(September 18, 2007), 72 FR 54309 (September 24, 

2007) (SR–CBOE–2007–107) for a description of the 

Temporary Membership status under Rule 3.19.02. 

3See Securities Exchange Act Release No. 58178 

(July 17, 2008), 73 FR 42634 (July 22, 2008) (SR– 

CBOE–2008–40) for a description of the Interim 

Trading Permits under Rule 3.27. 

4Rule 3.27(b) defines the clearing firm floating 

monthly rate as the floating monthly rate that a 

Clearing Member designates, in connection with 

transferable membership leases that the Clearing 

Member assisted in facilitating, for leases that 

utilize that monthly rate. 

5The concepts of an indicative lease rate and of 

a clearing firm floating month rate were previously 

utilized in the CBOE rule filings that set and 

adjusted the Temporary Member access fee. Both 

concepts are also codified in Rule 3.27(b) in relation 

to ITPs. 

6See Securities Exchange Act Release No. 57293 

(February 8, 2008), 73 FR 8729 (February 14, 2008) 

(SR–CBOE–2008–12), which established the 

original Temporary Member access fee, for detail 

regarding the rationale in support of the original 

Temporary Member access fee and the process used 

to set that fee, which is also applicable to this 

proposed change to the Temporary Member access 

fee as well. 

7See Securities Exchange Act Release No. 58200 

(July 21, 2008), 73 FR 43805 (July 28, 2008) (SR– 

CBOE–2008–77), which established the original ITP 

access fee, for detail regarding the rationale in 

support of the original ITP access fee and the 

process used to set that fee, which is also applicable 

to this proposed change to the ITP access fee as 

well. 

8 15 U.S.C. 78s(b)(3)(A)(ii). 

9 15 U.S.C. 78f(b). 

10 15 U.S.C. 78f(b)(4). 

should be submitted on or before April 

1, 2009. 

For the Commission by the Division of 

Trading and Markets, pursuant to delegated 

authority.10

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–5210 Filed 3–10–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59515; File No. SR–CBOE– 

2009–014] 

Self-Regulatory Organizations; 

Chicago Board Options Exchange, 

Incorporated; Notice of Filing and 

Immediate Effectiveness of Proposed 

Rule Change Relating to Temporary 

Membership Status and Interim 

Trading Permit Access Fees 

March 5, 2009. 

Pursuant to Section 19(b)(1) of the 

Securities Exchange Act of 1934 

(‘‘Act’’),1 notice is hereby given that on 

February 27, 2009, the Chicago Board 

Options Exchange, Incorporated 

(‘‘CBOE’’ or ‘‘Exchange’’) filed with the 

Securities and Exchange Commission 

(‘‘Commission’’) the proposed rule 

change as described in Items I, II, and 

III below, which Items have been 

prepared by the CBOE. The Commission 

is publishing this notice to solicit 

comments on the proposed rule change 

from interested parties. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

CBOE proposes to adjust (i) the 

monthly access fee for persons granted 

temporary CBOE membership status 

(‘‘Temporary Members’’) pursuant to 

Interpretation and Policy .02 under 

CBOE Rule 3.19 (‘‘Rule 3.19.02’’) and 

(ii) the monthly access fee for Interim 

Trading Permit (‘‘ITP’’) holders under 

CBOE Rule 3.27. The text of the 

proposed rule change is available on the 

Exchange’s Web site (http:// 

www.cboe.org/Legal/), at the Exchange’s 

Office of the Secretary, 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, 

CBOE 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 these statements 

may be examined at the places specified 

in Item IV below. The CBOE has 

prepared summaries, set forth in 

Sections A, B, and C below, of the most 

significant aspects of such statements. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

The current access fee for Temporary 

Members under Rule 3.19.02 2 and the 

current access fee for ITP holders under 

Rule 3.27 3 are both $10,471 per month. 

Both access fees are currently set at the 

indicative lease rate (as defined below) 

for February 2009. The Exchange 

proposes to adjust both access fees 

effective at the beginning of March 2009 

to be equal to the indicative lease rate 

for March 2009 (which is $9,809). 

Specifically, the Exchange proposes to 

revise both the Temporary Member 

access fee and the ITP access fee to be 

$9,809 per month commencing on 

March 1, 2009. 

The indicative lease rate is defined 

under Rule 3.27(b) as the highest 

clearing firm floating monthly rate 4 of 

the CBOE Clearing Members that assist 

in facilitating at least 10% of the CBOE 

transferable membership leases.5 The 

Exchange determined the indicative 

lease rate for March 2009 by polling 

each of these Clearing Members and 

obtaining the clearing firm floating 

monthly rate designated by each of 

these Clearing Members for that month. 

The Exchange used the same process 

to set the proposed Temporary Member 

and ITP access fees that it used to set 

the current Temporary Member and ITP 

access fees. The only difference is that 

the Exchange used clearing firm floating 

monthly rate information for the month 

of March 2009 to set the proposed 

access fees (instead of clearing firm 

floating monthly rate information for the 

month of February 2009 as was used to 

set the current access fees) in order to 

take into account changes in clearing 

firm floating monthly rates for the 

month of March 2009. 

The Exchange believes that the 

process used to set the proposed 

Temporary Member access fee and the 

proposed Temporary Member access fee 

itself are appropriate for the same 

reasons set forth in CBOE rule filing SR– 

CBOE–2008–12 with respect to the 

original Temporary Member access fee.6

Similarly, the Exchange believes that 

the process used to set the proposed ITP 

access fee and the proposed ITP access 

fee itself are appropriate for the same 

reasons set forth in CBOE rule filing SR– 

CBOE–2008–77 with respect to the 

original ITP access fee.7

Each of the proposed access fees will 

remain in effect until such time either 

that the Exchange submits a further rule 

filing pursuant to Section 19(b)(3)(A)(ii) 

of the Act 8 to modify the applicable 

access fee or the applicable status (i.e., 

the Temporary Membership status or 

the ITP status) is terminated. 

Accordingly, the Exchange may, and 

likely will, further adjust the proposed 

access fees in the future if the Exchange 

determines that it would be appropriate 

to do so taking into consideration lease 

rates for transferable CBOE 

memberships prevailing at that time. 

The procedural provisions of the 

CBOE Fee Schedule related to the 

assessment of each proposed access fee 

are not proposed to be changed and will 

remain the same as the current 

procedural provisions relating to the 

assessment of that access fee. 

2. Statutory Basis 

The Exchange believes that the 

proposed rule change is consistent with 

Section 6(b) of the Act,9 in general, and 

furthers the objectives of Section 6(b)(4) 

of the Act,10 in particular, in that it is 

designed to provide for the equitable 

allocation of reasonable dues, fees, and 


rwilkins on PROD1PC63 with NOTICES