30656 Federal Register / Vol. 74, No. 122 / Friday, June 26, 2009 / Notices 

13 17 CFR 200.30–3(a)(12). 

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

2 15 U.S.C. 78a. 

3 17 CFR 240.19b–4. 

4See SR–NYSEAmex–2009–29. 

5See Securities Exchange Act Release No. 57861 

(May 23, 2008), 73 FR 31905 (June 4, 2008) (SR– 

NYSE–2008–42) (enhancing NYSE OpenBook 

Product offerings with the introduction of the Order 

Imbalance Information datafeed); See also 

Securities Exchange Act Release No. 59202 (January 

6, 2009), 74 FR 1744 (January 13, 2009) (SR–NYSE– 

2008–132) (introducing the NYSE Order Imbalance 

Information Fee); See also Securities Exchange Act 

Release No. 59815 (April 23, 2009), 74 FR 19609 

(April 29, 2009) (SR–NYSE–2009–41) (modifying 

the reference price at which the Exchange reports 

the Order Imbalance Information and clarifying 

what information is included in and excluded from 

the Order Imbalance Information Reports). Pursuant 

to NYSE Rule 15, similar information is 

disseminated prior to the opening transaction via 

this product. 

available publicly. All submissions 

should refer to File Number SR– 

NYSEAmex–2009–29 and should be 

submitted on or before July 17, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.13

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–15154 Filed 6–25–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–60153; File No. SR–NYSE– 

2009–49] 

Self-Regulatory Organizations; New 

York Stock Exchange LLC; Notice of 

Filing and Immediate Effectiveness of 

Proposed Rule Change To Include 

Floor Broker Agency Interest 

Containing Pegging and/or 

Discretionary Instructions, Eligible for 

Execution in the Closing Transaction, 

in the NYSE Order Imbalance 

Information Datafeed Disseminated 

Prior to the Closing Transaction 

June 19, 2009. 

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 June 18, 

2009, New York Stock Exchange LLC 

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

the Securities and Exchange 

Commission (the ‘‘Commission’’) the 

proposed rule change as described in 

Items I and II 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 include 

Floor Broker agency interest containing 

pegging and/or discretionary 

instructions, eligible for execution in 

the closing transaction, in the NYSE 

Order Imbalance Information datafeed 

disseminated prior to the closing 

transaction. The text of the proposed 

rule change is available at the Exchange, 

the Commission’s Public Reference 

Room, and http://www.nyse.com. 

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 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

New York Stock Exchange LLC 

(‘‘NYSE’’ or the ‘‘Exchange’’) proposes 

to include Floor Broker agency interest 

files (‘‘e-Quotes’’) containing pegging 

and/or discretionary instructions (‘‘dQuotes’’) (collectively ‘‘Floor broker 

agency interest’’), eligible for execution 

in the closing transaction, in the NYSE 

Order Imbalance Information datafeed 

disseminated prior to the closing 

transaction. 

The Exchange notes that parallel 

changes are proposed to be made to the 

rules of NYSE Amex LLC (formerly the 

American Stock Exchange).4

Background of NYSE Amex Order 

Imbalance Information 

Currently, NYSE Rule 123C allows 

Exchange systems to make available a 

datafeed of real-time order imbalances 

that accumulate prior to the closing 

transactions on the Exchange.5 The 

datafeed contains aggregate information 

about orders that are potentially subject 

to execution at the market’s closing 

price and represent issues that are likely 

to be of particular trading interest at the 

close. Recipients of the NYSE Order 

Imbalance Information datafeed 

currently pay a $500 monthly fee for 

access to this datafeed. 

The NYSE Order Imbalance 

Information datafeed disseminated prior 

to the closing transaction (‘‘NYSE 

Closing Order Imbalance Information’’) 

includes all market-on-close orders and 

limit-on-close orders eligible to 

participate in the closing transaction. 

DMM interest and Crowd interest are 

excluded. 

Prior to the closing transaction, NYSE 

Closing Order Imbalance Information is 

disseminated every fifteen seconds 

between 3:40 p.m. and 3:50 p.m. and 

every five seconds between 3:50 p.m. 

and 4 p.m. On any day that the 

scheduled close of trading on the 

Exchange is earlier than 4 p.m. EST, the 

dissemination of the NYSE Closing 

Order Imbalance will commence 20 

minutes before the scheduled closing 

time. NYSE Closing Order imbalance 

information will be disseminated every 

15 seconds for approximately 10 

minutes. Thereafter, the order 

imbalance information will be 

disseminated every five seconds until 

the scheduled closing time. 

d-Quotes and Pegging Instructions 

Pursuant to NYSE Rule 70, Floor 

brokers are permitted to represent 

orders electronically through the use of 

e-Quotes. A d-Quote, as provided by 

NYSE Rule 70, Supplementary Material 

.25, permits the Floor broker to include 

discretionary instructions as to size and/ 

or price on an e-Quote. D–Quote 

discretionary instructions specify the 

price at which the d-Quote may trade 

and the number of shares to be executed 

based on the application of the 

discretionary instructions. The Floor 

broker must also specify the price at 

which the d-Quote is to be quoted. 

Pegging is a distinct instruction that 

may be used in conjunction with an eQuote and/or a d-Quote pursuant NYSE 

Rule 70, Supplementary Material .26. 

Pegging instructions allow the Floor 

broker to maintain his/her interest in 

the Exchange Best Bid or Offer (‘‘BBO’’) 

if the quote moves from the orders’ 

initial quote price. Pegged interest 

moves with the Exchange BBO within 

the designated range. Any discretionary 

instructions associated with that interest 

will continue to be applied as long as it 

is within the Floor broker’s designated 

price range. Buy-side e-Quotes will peg 

to the best bid and sell side e-Quotes 

will peg to the best offer. 

Federal Register / Vol. 74, No. 122 / Friday, June 26, 2009 / Notices 30657 

6Pursuant to Supplementary Material .26 (ix)(B) 

of NYSE Rule 70, the ‘‘ceiling price’’ is the highest 

price to which a buy-side e-Quote or d-Quote may 

peg. 

7Pursuant to Supplementary Material .26(ix)(C) 

of NYSE Rule 70, the ‘‘floor price’’ is the lowest 

price to which a sell-side e-Quote or d-Quote may 

peg. 8 15 U.S.C. 78f(b)(5). 

9 15 U.S.C. 78s(b)(3)(A). 

10 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– 

4(f)(6)(iii) requires the self-regulatory organization 

to submit to the Commission written notice of its 

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 this requirement. 

11For purposes only of waiving the 30-day 

operative delay of this proposal, the Commission 

has considered the proposed rule’s impact on 

efficiency, competition, and capital formation. See 

15 U.S.C. 78c(f). 

Proposal to Include Floor Broker 

Agency Interest in the Closing NYSE 

Amex Order Imbalance Information 

Datafeed 

Through this filing, the Exchange 

proposes to enhance the information 

included in the NYSE Closing Order 

Imbalance Information datafeed. 

Specifically, the Exchange proposes to 

also include, at no additional charge, 

Floor broker agency interest, eligible for 

execution in the closing transaction, in 

the NYSE Closing Order Imbalance 

Information datafeed. The Exchange 

currently also provides displayable 

aggregated d-Quote and pegging e-Quote 

interest in its NYSE OpenBook® and 

NYSE Trades® market data products. 

The Exchange now seeks to add 

additional transparency to the NYSE 

Order Imbalance Information datafeed. 

Accordingly, the Exchange believes that 

the inclusion of this information in the 

NYSE Closing Order Imbalance 

Information datafeed will provide 

increased transparency regarding the 

anticipated closing transaction. 

The NYSE Closing Order Imbalance 

Information will include d-Quote 

interest using the maximum 

discretionary price that could be 

available on the close and pegging eQuotes at their ceiling6 or floor7 price. 

Beginning at 3:55 p.m., Exchange 

systems will use the maximum 

discretionary or maximum pegged price 

(ceiling or floor) associated with the 

Floor broker agency interest to 

determine its inclusion in the NYSE 

Closing Order Imbalance Information 

datafeed. 

The Exchange anticipates that the 

inclusion of Floor broker agency 

interest, eligible for execution in the 

closing transaction, in the NYSE Closing 

Order Imbalance Information datafeed 

will provide its customers with the 

requested transparency and allow 

sufficient time for contra-side interest to 

develop, thereby decreasing volatility 

and ultimately contributing to the 

maintenance of a fair and orderly 

market. 

Currently, systemic modifications are 

required to implement the inclusion of 

d-Quotes and all other pegging e-Quotes 

eligible to participate in the closing 

transaction in all the securities traded 

on the Exchange. There are 

approximately 10 securities on the 

Exchange that will not receive the 

modified Order Imbalance Information 

datafeed on the implementation date of 

June 22, 2009. During the 

implementation process, the Exchange 

will identify on its Web site all the 

securities operating on modified 

systems and receiving the Order 

Imbalance Information datafeed 

containing d-quotes and all other 

pegging e-quotes eligible to participate 

in the closing transaction. The Exchange 

anticipates the completion of these 

modifications on or about July 31, 2009. 

2. Statutory Basis 

The basis under the Securities 

Exchange Act of 1934 (the ‘‘Act’’) for 

this proposed rule change is the 

requirement under Section 6(b)(5) 8 that 

an Exchange have rules that are 

designed to promote just and equitable 

principles of trade, 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 instant proposal is 

in keeping with these principles in that 

it seeks to provide greater transparency 

to Exchange market participants, 

affording them additional information 

which further promotes just and 

equitable principles of trade. The 

Exchange submits that the proposal to 

include Floor broker agency interest in 

the NYSE Order Imbalance Information 

datafeed furthers the protection of 

investors and the public interest by 

providing investors with a more 

accurate depiction of the market interest 

prior to the closing transaction, thereby 

allowing them to make better informed 

trading decisions. 

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 

Because the foregoing proposed rule 

change: (i) Does not significantly affect 

the protection of investors or the public 

interest; (ii) does not impose any 

significant burden on competition; and 

(iii) by its terms, does not become 

operative for 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, it has 

become effective pursuant to Section 

19(b)(3)(A) of the Act 9 and Rule 19b– 

4(f)(6) thereunder.10

The Exchange has requested that the 

Commission waive the 30-day operative 

delay so that the proposal may become 

operative immediately upon filing in 

order to assist investors in making better 

informed trading decisions by providing 

a more accurate depiction of the 

available market interest prior to the 

closing transaction. Moreover, a grant of 

immediate effectiveness will ensure that 

the Exchange can provide this increased 

transparency afforded by the additional 

information for the June 26, 2009 

rebalance of the Russell Index which 

has historically been characterized by 

increased trading volatility associated 

with the closing transaction. The 

Exchange believes that the provision of 

more accurate information prior to the 

closing transactions will serve to 

mitigate volatility, assisting in the 

maintenance of a fair and orderly 

market and ultimately protecting 

investors and the public interest. The 

Commission believes such waiver is 

consistent with the protection of 

investors and the public interest.11

Accordingly, the Commission 

designates the proposed rule change 

operative 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, 

30658 Federal Register / Vol. 74, No. 122 / Friday, June 26, 2009 / Notices 

12 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3 17 CFR 240.19b–4(f)(6). 

4Broad-based indexes (or market indexes), which 

are not at issue in this filing, are defined in Phlx 

Rule 1000A(b)(11). 

5The Chicago Board Options Exchange and 

International Securities Exchange have the same 

ability pursuant to their own rules. 

6These include the index is capitalizationweighted, price-weighted, modified capitalizationweighted or equal dollar-weighted, and consists of 

ten or more component securities; each component 

security has a market capitalization of at least $75 

million, except that for each of the lowest weighted 

component securities in the index that in the 

aggregate account for no more than 10% of the 

weight of the index; the market capitalization is at 

least $50 million; and trading volume of each 

component security has been at least one million 

shares for each of the last six months, except that 

for each of the lowest weighted component 

securities in the index that in the aggregate account 

for no more than 10% of the weight of the index, 

trading volume has been at least 500,000 shares for 

each of the last six months. See Phlx Rule 

1009A(b)(1)–(12) for all of the conditions. 

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–NYSE–2009–49 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–NYSE–2009–49. 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 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 

available publicly. All submissions 

should refer to File Number SR–NYSE– 

2009–49 and should be submitted on or 

before July 17, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.12

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–15155 Filed 6–25–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–60150; File No. SR–Phlx– 

2009–35] 

Self-Regulatory Organizations; 

NASDAQ OMX PHLX, Inc.; Notice of 

Filing and Immediate Effectiveness of 

a Proposed Rule Change To Clarify the 

Definition of ‘‘Narrow-Based Index’’ 

June 19, 2009. 

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

Securities Exchange Act of 1934 

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

notice is hereby given that on June 16, 

2009, NASDAQ OMX PHLX, Inc. 

(‘‘Phlx’’ or ‘‘Exchange’’) 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 the Exchange. Phlx has designated 

the proposed rule change as constituting 

a non-controversial rule change under 

Rule 19b–4(f)(6) under the Act,3 which 

renders the proposal effective upon 

filing with the Commission. 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 file a 

proposed rule change to add a 

commentary to Rule 1000A(b)(12) to 

clarify that this rule, which defines the 

term ‘‘narrow-based index’’ to mean ‘‘to 

be representative of a particular 

industry or a group of related 

industries’’ to also accommodate an 

index the constituents of which are all 

headquartered within a single country 

to be listed as a narrow-based index 

pursuant to Exchange rules. 

The text of the proposed rule change 

is available on the Exchange’s Web site 

at http:// 

nasdaqomxphlx.cchwallstreet.com/ 

NASDAQOMXPHLX/Filings/, at the 

principal office of the Exchange, 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 

Exchange 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 

Exchange 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 

Phlx is filing the proposed rule 

change to add a commentary to clarify 

that Phlx Rule 1000A(b)(12), which 

defines the term ‘‘narrow-based index’’ 

(or ‘‘industry index’’) to mean ‘‘to be 

representative of a particular industry or 

a group of related industries’’ to also 

accommodate an index the constituents 

of which are all headquartered within a 

single country to be listed as a narrowbased index pursuant to Exchange rules. 

This would enable options based on an 

index, including companies all 

headquartered within a single country, 

to be rightfully considered as a generic 

narrow-based index for purposes of 

listing on the Exchange and trading. 

The listing and trading of index 

options on the Exchange is generally 

conditioned on the ability to meet the 

rule requirements for narrow-based and 

broad based indexes.4 More particularly 

regarding narrow-based indexes, Phlx 

Rule 1009A(b) states that the Exchange 

may trade options on an underlying 

index pursuant to Rule 19b–4(e) of the 

Act 5 where all of the noted conditions 

noted are satisfied.6 Indeed, the 

Exchange has, and continues to, list and 

trade options on narrow-based indexes 

based on industries or a group of related 

industries that are located within 

various countries. These options are