[Federal Register Volume 74, Number 203 (Thursday, October 22, 2009)]
[Notices]
[Pages 54605-54607]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-25339]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-60826; File No. SR-BX-2009-062]


Self-Regulatory Organizations; NASDAQ OMX BX; Notice of Filing 
and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 
7015 Governing Access Services To Add an Additional Service and Related 
Fee, and To Make a Technical Change

October 14, 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 October 5, 2009, NASDAQ OMX BX, Inc. (``BX'') filed with the 
Securities and Exchange Commission (``Commission'') the proposed rule 
change as described in Items I and II below, which Items have been 
prepared by BX. The Commission is publishing this notice to solicit 
comments on the proposed rule from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    BX proposes to amend Rule 7015 to make a new service, TradeInfo BX, 
available to members and charge a related fee. The text of the proposed 
rule change is below. Proposed new language is italicized and proposed 
deletions are in brackets.

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 receive data from the NASDAQ OMX BX Equities Market:
    <bullet> $400 per month for each port pair, other than Multicast 
ITCH[reg] 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, June and July 2009. For August 2009, OUCH port pairs beyond 15 
will be assessed a pro rata charge on the basis of the number of 
trading days during the month during which the anti-internalization 
functionality introduced by Equity Rule 4757(a)(3) is available to 
market participants.]
    <bullet> Internet Ports: An additional $200 per month for each 
Internet port that requires additional bandwidth.
    <bullet> TradeInfo BX is available to Members for a fee of $95 per 
user per month.
* * * * *

[[Page 54606]]

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 proposes to amend Rule 7015 to initiate fees of $95 per month 
per user for its Web-based TradeInfo BX product. Through a secure Web 
connection, TradeInfo BX allows subscribing members to scan for their 
orders submitted to BX. Members can scan for all orders in a particular 
security or all orders of a particular type, regardless of their status 
(open, canceled, executed, etc.). Members are also able to cancel open 
orders at the order, port or MPID level. For example, after scanning 
for open orders, the member is then able to select an open order and 
cancel the order. TradeInfo BX also allows members to scan other order 
statuses, such as executed, cancelled, broken, rejected and suspended 
orders. TradeInfo BX enables members to generate reports of execution, 
order or cancel information, which can be exported into a spreadsheet 
for review. Under the proposed rule, TradeInfo BX will be available 
solely to BX members.
    The Nasdaq Stock Market (``Nasdaq'') TradeInfo product is currently 
offered to Nasdaq members and BX is proposing to offer the same 
functionality to BX members with respect to BX equity orders as is 
provided to Nasdaq members with respect to their Nasdaq equity orders. 
BX notes that in December 2006, Nasdaq filed with the Commission a rule 
change to charge subscribing Nasdaq members $95 per month, per user for 
the Nasdaq-based TradeInfo product.\3\ Because the TradeInfo BX product 
provides the same functionality with respect to BX members' equity 
orders on BX as is provided by the Nasdaq TradeInfo product with 
respect to Nasdaq equity orders, BX is proposing to offer TradeInfo BX 
for the same fee of $95 per month, per user as is currently charged by 
Nasdaq.
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    \3\ Securities Exchange Act Release No. 55135 (January 19, 
2007), 72 FR 3893 (January 26, 2007) (SR-NASDAQ-2006-062).
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    BX is also proposing to eliminate language from Rule 7015 that 
discusses temporary pricing for additional OUCH port pairs beyond 15, 
which has since expired. BX suspended fees for OUCH port pairs for the 
months of May, June and July 2009 so that BX could implement an anti-
internalization function, the absence of which was causing members to 
purchase additional OUCH ports that they would otherwise not need 
solely to avoid unwanted execution against their customer orders.\4\ 
With the anticipated August 2009 implementation of the anti-
internalization function, BX adopted a pro-rated fee for the month of 
August 2009 based on the number of trading days the anti-
internalization function was available in that month.\5\ The anti-
internalization function was implemented on August 3, 2009. 
Accordingly, BX is eliminating reference in Rule 7015 to the temporary 
pricing.
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    \4\ Securities Exchange Act Release No. 59894 (May 8, 2009), 74 
FR 23000 (May 15, 2009) (SR-BX-2009-023); see also Securities 
Exchange Act Release No. 60257 (July 7, 2009), 74 FR 34060 (July 14, 
2009) (SR-BX-2009-036).
    \5\ Securities Exchange Act Release No. 60503 (August 14, 2009), 
74 FR 42346 (August 21, 2009) (SR-BX-2009-046).
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2. Statutory Basis
    BX believes that the proposed rule change is consistent with the 
provisions of Section 6 of the Act,\6\ in general, and with Section 
6(b)(4) of the Act,\7\ 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 and is equal to the fee charged to Nasdaq 
members for the same functionality provided with respect to Nasdaq 
orders.
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    \6\ 15 U.S.C. 78f.
    \7\ 15 U.S.C. 78f(b)(4).
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    BX also believes that the proposed rule change is consistent with 
the provisions of Section 6(b)(5) of the Act \8\ in that 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 regulating, clearing, settling, 
processing information with respect to, and facilitating transactions 
in securities, to remove impediments to and perfect the mechanism of a 
free and open market and a national market system, and, in general, to 
protect investors and the public interest. The proposed rule change 
amends Rule 7015 to add TradeInfo BX, a new Web-based product available 
to BX members to assist them with their management of BX orders, a 
Nasdaq version of which is currently offered to Nasdaq members for 
their Nasdaq orders. In addition, BX is proposing to offer the new 
product to BX members for the same fee as is currently charged to 
Nasdaq members for the analogous Nasdaq product. Last, BX is proposing 
to eliminate rule text that had a limited timeframe during which it 
applied, which has since expired. The elimination of the expired rule 
text will serve to avoid potential confusion that may be caused by 
keeping such text in the rules.
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    \8\ 15 U.S.C. 78f(b)(5).
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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

    Because the foregoing 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 for 30 days from the date on which it was filed, or 
such shorter time as the Commission may designate, it has become 
effective pursuant to Section 19(b)(3)(A) of the Act \9\ and Rule 19b-
4(f)(6) thereunder.\10\
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    \9\ 15 U.S.C. 78s(b)(3)(A).
    \10\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6) 
requires a self-regulatory organization to give the Commission 
written notice of its intent to file 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. 
BX has satisfied this requirement.
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    A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the 
Act \11\ normally does not become operative for 30 days after the date 
of its filing. However, Rule 19b-4(f)(6) \12\ permits the Commission to 
designate a shorter time if such action is consistent with the 
protection of investors and the

[[Page 54607]]

public interest. BX requests that the Commission waive the 30-day 
operative delay so that this proposed rule change to implement 
TradeInfo BX will immediately assist BX members in the management of 
their orders. The Commission believes that waiving the 30-day operative 
delay is consistent with the protection of investors and the public 
interest because it will allow BX members the capability to scan their 
orders, cancel open orders (e.g., should the member experience 
technical difficulties with its systems or connections), and reconcile 
its record of orders against data provide in the TradeInfo BX 
reports.\13\ Additionally, this product will allow subscribing members 
to immediately take advantage of the different types of TradeInfo BX 
open order cancellation capabilities: either canceling a single open 
order, canceling all open orders associated with a particular 
connection, or canceling all open orders associate with a particular 
MPID. Application of the new rule should help foster consistency among 
those exchanges that adopt rules substantially similar to those 
previously approved by the Commission.\14\ For these reasons, the 
Commission designates that the proposed rule change become immediately 
operative.
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    \11\ 17 CFR 240.19b-4(f)(6).
    \12\ 17 CFR 240.19b-4(f)(6).
    \13\ For purposes only of waiving the 30-day operative delay, 
the Commission has considered the proposal's impact on efficiency, 
competition, and capital formation. 15 U.S.C. 78c(f).
    \14\ See supra note 3 and accompanying text.
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    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

    <bullet> Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
    <bullet> Send an e-mail to <a href="/cdn-cgi/l/email-protection#394b4c555c145a5654545c574d4a794a5c5a175e564f"><span class="__cf_email__" data-cfemail="285a5d444d054b4745454d465c5b685b4d4b064f475e">[email protected]</span></a>. Please include 
File Number SR-BX-2009-062 on the subject line.

Paper Comments

    <bullet> 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-2009-062. 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. 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 publicly available. All 
submissions should refer to File Number SR-BX-2009-062 and should be 
submitted on or before November 12, 2009.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\15\
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    \15\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-25339 Filed 10-21-09; 8:45 am]
BILLING CODE 8011-01-P


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