23000 Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Notices 

26 15 U.S.C. 78s(b)(2). 

27See Securities Exchange Act Release Nos. 

56041 (July 11, 2007), 72 FR 39114 (July 17, 2007) 

(SR–NYSEArca–2007–43) (approving listing and 

trading of shares of the iShares COMEX Gold Trust) 

and 56224 (August 8, 2007), 72 FR 45850 (August 

15, 2007) (SR–NYSEArca–2007–76) (approving 

listing and trading of shares of the streetTRACKS 

Gold Trust). 

28 15 U.S.C. 78s(b)(2). 

29 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3Changes are marked to the rule text that appears 

in the electronic manual of Nasdaq found at 

http://nasdaqomxbx.cchwallstreet.com. 

information, trading volume, closing 

prices and the NAV for the Shares from 

the previous day. The Web site for the 

Trust, which may be accessed through 

a link provided by the Exchange on its 

Web site, will disseminate the last-sale 

price information for Shares, NAV, and 

information related to the NAV, 

including the Bid-Ask Price, the 

Creation Basket Deposit, calculation 

information and data related to the 

premium or discount of the Bid-Ask 

Price against the NAV. The Web site for 

the Trust will also disseminate the IIV 

per Share, updated at least every 15 

seconds, during the Exchange’s Core 

Trading Session. Information on gold 

prices and markets is available on 

public Web sites and through 

professional and subscription services, 

and investors may obtain on a 24-hour 

basis gold pricing information based on 

the spot price of an ounce of gold from 

various financial information service 

providers. Complete real-time data for 

gold futures contracts and options 

prices traded on the COMEX is available 

by subscription from information 

services such as Reuters or Bloomberg, 

and information on gold is available 

from published or other public sources. 

NYMEX also provides delayed futures 

and options information free of charge. 

Additionally, the Commission 

believes that the proposal to list and 

trade the Shares is reasonably designed 

to promote fair disclosure of 

information that may be necessary to 

price the Shares appropriately. As noted 

above, the Trust Web site will make 

available the NAV of the Trust as 

calculated each business day by the 

Trustee. In addition, NYSE Arca 

Equities Rule 8.201(i) provides that, in 

connection with trading in an 

underlying physical commodity, related 

commodity futures or options on 

commodity futures, or any other related 

commodity derivative, including 

Commodity-Based Trust Shares, an ETP 

Holder acting as a Market Maker (as 

defined in NYSE Arca Equities Rule 

1.1(u)) in the Shares is restricted from 

using any material non-public 

information received from any person 

associated with such ETP Holder 

regarding trading by such person in the 

underlying physical commodity, related 

commodity futures or options on 

commodity futures, or other related 

commodity derivatives. 

The Commission also believes that the 

Exchange’s trading halt rules are 

reasonably designed to prevent trading 

in the Shares when transparency is 

impaired. NYSE Arca Equities Rule 

8.201(e)(2) provides that, when the 

Exchange is the listing market, if the 

value of the underlying commodity or 

ITV (also known as the IIV) is no longer 

calculated or available on at least a 15- 

second delayed basis, the Exchange 

would consider suspending trading in 

the Shares. The Exchange has further 

represented that trading on the 

Exchange in the Shares may be halted 

because of market conditions or for 

reasons that, in the view of the 

Exchange, make trading in the Shares 

inadvisable. These may include: (1) The 

extent to which conditions in the 

underlying gold market have caused 

disruptions and/or lack of trading; or (2) 

whether other unusual conditions or 

circumstances detrimental to the 

maintenance of a fair and orderly 

market are present. In addition, trading 

in Shares will be subject to trading halts 

caused by extraordinary market 

volatility pursuant to the Exchange’s 

‘‘circuit breaker’’ rule. NYSE Arca 

Equities Rule 8.201(e)(2) also provides 

that the Exchange may seek to delist the 

Shares in the event the value of the 

underlying gold or the ITV is no longer 

calculated or available as required. 

The Commission further believes that 

the trading rules and procedures to 

which the Shares will be subject 

pursuant to this proposal are consistent 

with the Act. The Exchange has 

represented that any securities listed 

pursuant to this proposal will be 

deemed equity securities, and subject to 

existing Exchange rules governing the 

trading of equity securities. 

In support of this proposal, the 

Exchange has made representations, 

including: 

(1) The Exchange’s surveillance 

procedures are adequate to deter and 

detect violations of Exchange rules and 

applicable federal securities laws. 

(2) The Exchange will distribute an 

Information Bulletin, the contents of 

which are more fully described above, 

to ETP Holders in connection with the 

trading of the Shares. 

This approval order is based on the 

Exchange’s representations. 

The Commission finds good cause, 

pursuant to Section 19(b)(2) of the 

Act,26 for approving the proposed rule 

change prior to the 30th day after the 

date of publication of notice in the 

Federal Register. The Exchange’s 

proposal to list and trade the Shares 

does not present any novel or significant 

regulatory issues. Previously, the 

Commission approved two proposals by 

the Exchange to list and trade shares of 

trusts that hold gold bullion pursuant to 

NYSE Arca Equities Rule 8.201.27

V. Conclusion 

It is therefore ordered, pursuant to 

Section 19(b)(2) of the Act,28 that the 

proposed rule change (SR–NYSEArca– 

2009–40) be, and it hereby is, approved 

on an accelerated basis. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.29

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–11397 Filed 5–14–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59894; File No. SR–BX– 

2009–023] 

Self-Regulatory Organizations; 

NASDAQ OMX BX, Inc.; Notice of Filing 

and Immediate Effectiveness of 

Proposed Rule Change To Temporarily 

Implement a Cap on Certain Fees for 

Members 

May 8, 2009. 

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

Securities Exchange Act of 1934 

(‘‘Act’’),1 and Rule 19b–4 thereunder,2

notice is hereby given that on May 1, 

2009, NASDAQ OMX BX, Inc. (‘‘BX’’ 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 Exchange. The 

Commission is publishing this notice to 

solicit comments on the proposed rule 

from interested persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of the Substance 

of the Proposed Rule Change 

BX proposes to adopt a temporary cap 

on fees charged for OUCH ports to the 

Equities Market. The text of the 

proposed rule change is below. 

Proposed new language is in italics.3

* * * * * 

7015. Access Services. 

The following charges are assessed by 

the Exchange for ports to establish 

connectivity to the NASDAQ OMX BX 

Equities Market, as well as ports to 

Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Notices 23001 

4 15 U.S.C. 78f. 

5 15 U.S.C. 78f(b)(4). 

6 15 U.S.C. 78s(b)(3)(a)(ii). 

7 17 CFR 240.19b–4(f)(2). 

receive data from the NASDAQ OMX 

BX Equities Market: 

• $400 per month for each port pair, 

other than Multicast ITCH® data feed 

pairs, for which the fee is $1000 per 

month. Additional OUCH port pairs 

beyond 15 are at no cost for the months 

of May and June 2009. 

• Internet Ports: An additional $200 

per month for each Internet port that 

requires additional bandwidth. 

* * * * * 

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, BX 

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. BX 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 

BX is proposing to modify its pricing 

for OUCH ports, which provide 

connectivity to the NASDAQ OMX BX 

Equities Market. Specifically, BX will 

eliminate fees for a member firm’s 

OUCH ports in excess of 15 for the 

months of May and June 2009. Member 

firms have complained that, because BX 

does not have an anti-internalization 

capability, they must purchase 

additional OUCH ports that they would 

otherwise not need to purchase solely to 

avoid unwanted execution against their 

customer orders. Internalization occurs 

when a member firm’s customer order is 

posted on the market and executed all 

or in part by the same member firm. 

Member firms must avoid 

internalization of certain customer 

orders to avoid violating rules and 

regulations of the Employee Retirement 

Income Security Act that preclude 

and/or limit managing broker-dealers of 

such customer accounts from trading as 

principal with orders generated for 

those accounts. Currently, some member 

firms are only able to avoid 

internalization by purchasing additional 

OUCH ports through which they place 

all order flow that must not be 

internalized. Such additional ports have 

discrete MPID numbers, which allow 

these member firms to identify the 

orders and avoid internalization. 

BX is developing an antiinternalization function for its market 

designed to prevent member firms from 

executing a trade as a counterparty to 

their customer orders, which it 

anticipates will be operational by the 

end of June. The temporary cap on 

OUCH port fees proposed herein is 

designed to provide relief to member 

firms affected by BX’s lack of an antiinternalization function until it can be 

implemented, at which time such firms 

can reduce the number of ports 

currently subscribed to solely due to the 

lack of such a function. BX will seek to 

remove the cap language from the rule 

upon its expiration or alternatively will 

seek to extend the cap until such time 

the anti-internalization function can be 

implemented. 

2. Statutory Basis 

BX believes that the proposed rule 

change is consistent with the provisions 

of Section 6 of the Act,4 in general, and 

with Section 6(b)(4) of the Act,5 in 

particular, in that it provides for the 

equitable allocation of reasonable dues, 

fees and other charges among members 

and issuers and other persons using any 

facility or system which BX operates or 

controls. The proposed fee change 

applies uniformly to all BX members. 

BX has determined that temporarily 

instituting a cap on fees for OUCH ports 

in excess of 15 will provide relief to 

member firms required to purchase 

additional ports solely due to BX’s lack 

of an anti-internalization function. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

The Exchange 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 pursuant to Section 

19(b)(3)(A)(ii) of the Act 6 and 

subparagraph (f)(2) of Rule 19b–4 

thereunder.7 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–BX–2009–023 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–BX–2009–023. 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, on business days between the 

hours of 10 a.m. and 3 p.m., located at 

100 F Street, NE., Washington, DC 

20549. Copies of such filing also will be 

available for inspection and copying at 

the principal office of the Exchange. 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 

23002 Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Notices 

8 17 CFR 200.30–3(a)(12). 

Number SR–BX–2009–023 and should 

be submitted on or before June 5, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.8

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–11359 Filed 5–14–09; 8:45 am] 

BILLING CODE 8010–01–P 

DEPARTMENT OF TRANSPORTATION 

Pipeline and Hazardous Materials 

Safety Administration 

Office of Hazardous Materials Safety; 

Notice of Application for Special 

Permits 

AGENCY: Pipeline and Hazardous 

Materials Safety Administration 

(PHMSA), DOT. 

ACTION: List of applications for special 

permits. 

SUMMARY: In accordance with the 

procedures governing the application 

for, and the processing of, special 

permits from the Department of 

Transportation’s Hazardous Material 

Regulations (49 CFR part 107, Subpart 

B), notice is hereby given that the Office 

of Hazardous Materials Safety has 

received the application described 

herein. Each mode of transportation for 

which a particular special permit is 

requested is indicated by a number in 

the ‘‘Nature of Application’’ portion of 

the table below as follows: 1—Motor 

vehicle, 2—Rail freight, 3—Cargo vessel, 

4—Cargo aircraft only, 5—Passengercarrying aircraft. 

DATES: Comments must be received on 

or before June 15, 2009. 

Address Comments to: Record Center, 

Pipeline and Hazardous Materials Safety 

Administration, U.S. Department of 

Transportation, Washington, DC 20590. 

Comments should refer to the 

application number and be submitted in 

triplicate. If confirmation of receipt of 

comments is desired, include a selfaddressed stamped postcard showing 

the special permit number. 

FOR FURTHER INFORMATION: Copies of the 

applications are available for inspection 

in the Records Center, East Building, 

PHH–30, 1200 New Jersey Avenue 

Southeast, Washington DC or at http:// 

fdms.gov. 

This notice of receipt of applications 

for special permit is published in 

accordance with Part 107 of the Federal 

hazardous materials transportation law 

(49 U.S.C. 5117(b); 49 CFR 1.53(b)). 

Issued in Washington, DC, on May 8, 2009. 

Delmer F. Billings, 

Director, Office of Hazardous Materials, 

Special Permits and Approvals. 

NEW SPECIAL PERMITS

Application No. Docket No. Applicant Regulation(s) affected Nature of special permits thereof 

14838–N ............ ........................ Autoliv ASP, Inc., 

Ogden, UT.

49 CFR 172.320, 

173.56 and 

173.62.

To authorize the transportation in commerce of Class 1 explosives in a specially designed packaging as Division 1.3C 

or 1.4C for materials and devices respectively without 

being first examined as required by § 173.56 for transportation by motor vehicle. (mode 1). 

14839–N ............ ........................ Matheson Tri-Gas 

Inc., Basking 

Ridge, NJ.

49 CFR, 180.209 .... To authorize the transportation in commerce of certain DOT 

Specification 3A and 3AA cylinders containing Division 2.2 

gases that have tested every 15 years instead of every 10 

years. (modes 1, 2, 3, 4, 5). 

14841–N ............ ........................ Innophos, Inc., 

Nashville, TN.

49 CFR, 

177.834(i)(3).

To authorize the use of video cameras and monitors to observe the loading and unloading operations meeting the 

definition of ‘‘loading incidental to movement’’ or ‘‘unloading 

incidental to movement’’ as those terms are defined in 

§ 171.8 of the Hazardous Materials Regulations from a remote control station in place of personnel remaining within 

25 feet of the cargo tank motor vehicles. (mode 1). 

14842–N ............ ........................ American 

Spraytech, North 

Branch, NJ.

49 CFR, 

173.306(a)(3)(v).

To authorize the transportation in commerce of certain 

aerosols containing a Division 2.2 compressed gas in certain non-refillable aerosol containers which are not subject 

to the hot water bath test. (mode 1). 

14843–N ............ ........................ Mercotac, Inc., 

Carlsbad, CA.

49 CFR, 173.162(c) 

and 172.200.

To authorize the transportation of gallium containing in a 

manufactured article in alternative packaging, and without 

shipping papers unless transported by air. (modes 1, 2, 4, 

5). 

14844–N ............ ........................ Northern Air Cargo, 

Anchorage, AK.

49 CFR, 173.302(f) To authorize the transportation in commerce of cylinders of 

compressed oxygen and oxidizing gases without rigid outer 

packaging when no other means of transportation exist. 

(modes 4, 5). 

14847–N ............ ........................ PPG Industries, Inc., 

Monroeville, PA.

49 CFR, 179.15(e) .. To authorize the transportation in commerce of certain DOT 

105J500W tank cars containing chlorine with a higher startto-discharge pressure setting than is currently authorized. 

(mode 2). 

14848–N ............ ........................ Corning Incorporated, Corning, 

NY.

49 CFR, 177.834(h) To authorize the discharge of a Division 2.1 material from an 

authorized DOT specification cylinder without removing the 

cylinder from the vehicle on which it is transported. (mode 

1). 

14849–N ............ ........................ Rechargeable Battery Recycling 

Corporation, Atlanta, GA.

49 CFR, 172.200, 

172.300, 172.400.

To authorize the transportation in commerce of certain lithium 

batteries without shipping papers, marking or labeling, 

when transported for disposal. (mode 1).