Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of Filing of Proposed Rule Change To Adopt Rules To Implement the Options Order Protection and Locked/Crossed Market Plan, 31081-31085 [E9-15267]

Download as PDF Federal Register / Vol. 74, No. 123 / Monday, June 29, 2009 / Notices SECURITIES AND EXCHANGE COMMISSION [Release No. 60163; File No. SR–BX–2009– 025] Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Order Approving Proposed Rule Change To Retroactively Amend the Fee Schedule To Clarify and Correct References to the Volume Discount Given to Market Makers June 23, 2009. On May 8, 2009, NASDAQ OMX BX, Inc. filed with the Securities and Exchange Commission (‘‘Commission’’), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 a proposed rule change to amend the Fee Schedule of the Boston Options Exchange Group, LLC (‘‘BOX’’) on a retroactive basis to clarify and correct references relating to the volume discount (‘‘Volume Discount’’) given to Market Makers. The proposed rule change was published for comment in the Federal Register on May 21, 2009.3 The Commission received no comment letters on the proposal. This order approves the proposed rule change. The Exchange proposes to amend Section 3 of the BOX Fee Schedule, dealing with Market Maker Trading Fees, on a retroactive basis. BOX currently applies, and historically has applied, a Volume Discount to the fees charged to BOX Market Makers who engage in particularly active trading volume on BOX. The proposed changes will clarify and correct the Fee Schedule to reflect that trading volume in options classes included within the Liquidity Make or Take Pricing Structure (‘‘Make or Take’’), as set forth in Section 7 of the BOX Fee Schedule, is excluded when determining a Market Maker’s Volume Discount.4 The text explicitly stating this used to be included in the BOX Fee Schedule, but was inadvertently removed in a prior filing, SR–BSE– 2007–52.5 The Exchange requests that the proposed rule change be made effective retroactive to November 30, 2007, which is the date of filing and effectiveness of SR–BSE–2007–52. U.S.C. 78s(b)(1). CFR 240.19b–4. 3 See Securities Exchange Act Release No. 59919 (May 14, 2009), 74 FR 23915 (May 21, 2009). 4 Make or Take volume is excluded when determining a Market Maker’s monthly trading volume for purposes of the Volume Discount and is not eligible to have a Volume Discount applied to it. 5 See Securities Exchange Act Release No. 56948 (December 12, 2007), 72 FR 72426 (December 20, 2007) (SR–BSE–2007–52). The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.6 In particular, the Commission believes that the proposal to retroactively modify the Exchange’s fee schedule such that trading volume in options classes included within the Make or Take is excluded when determining a Market Maker’s Volume Discount it is consistent with and Section 6(b)(4) of the Act,7 in that it is designed to provide for the equitable allocation of reasonable dues, fees, and other charges among its members and issuers and other persons using its facilities. The Commission notes that the Exchange has represented that the inadvertent elimination of the language in question from the BOX Fee Schedule on November 30, 2007 did not alter BOX Market Makers’ understanding that Make or Take volume was excluded from the calculation of the Volume Discount. The Commission also notes that the proposed change is intended to eliminate any gap in the actual treatment of Make or Take volume when calculating the Volume Discount. Accordingly, the Commission believes that the proposed changes to Section 3 of the BOX Fee Schedule do not raise any new or novel issues and merely are designed to accurately reflect the fee structure the Exchange and its participants understood to be in effect. It is therefore ordered, pursuant to Section 19(b)(2) of the Act,8 that the proposed rule change (SR–BX–2009– 025), be, and it hereby is, approved. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.9 Florence E. Harmon, Deputy Secretary. [FR Doc. E9–15268 Filed 6–26–09; 8:45 am] BILLING CODE 8010–01–P 1 15 sroberts on PROD1PC70 with NOTICES 2 17 VerDate Nov<24>2008 19:07 Jun 26, 2009 Jkt 217001 6 In approving this proposed rule change, the Commission has considered the proposed rule’s impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). 7 15 U.S.C. 78f(b)(4). 8 15 U.S.C. 78s(b)(2). 9 17 CFR 200.30–3(a)(12). PO 00000 Frm 00082 Fmt 4703 Sfmt 4703 31081 SECURITIES AND EXCHANGE COMMISSION [Release No. 34–60158; File No. SR–BX– 2009–028] Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of Filing of Proposed Rule Change To Adopt Rules To Implement the Options Order Protection and Locked/Crossed Market Plan June 22, 2009. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the ‘‘Act’’) 1 and Rule 19b–4 thereunder,2 notice is hereby given that on June 16, 2009, the 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 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 the Rules of the Boston Options Exchange Group, LLC (‘‘BOX’’) to reflect the Exchange’s filing to become a participant in the proposed Options Order Protection and Locked/Crossed Market Plan (‘‘Decentralized Plan’’). The text of the proposed rule change is available from the principal office of the Exchange, at the Commission’s Public Reference Room and also on the Exchange’s Internet Web site at https:// nasdaqomxbx.cchwallstreet.com/ NASDAQOMXBX/Filings/. 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. 1 15 2 17 E:\FR\FM\29JNN1.SGM U.S.C. 78s(b)(1). CFR 240.19b–4. 29JNN1 31082 Federal Register / Vol. 74, No. 123 / Monday, June 29, 2009 / Notices A. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose The Exchange proposes to adopt certain rules and definitions necessary to implement the proposed Decentralized Plan. The proposed definitions and rules will replace current Chapter XII of the BOX Rules in its entirety. The proposed rule changes will also amend various other BOX Rules to accommodate the Decentralized Plan. Background of the Decentralized Plan and Implementing Rules The Exchange is presently a party to the Plan for the Purpose of Creating and Operating an InterMarket Option Linkage (‘‘Linkage Plan’’).3 The purpose of the Linkage Plan is to enable the options exchanges to act jointly in planning, developing, operating and regulating the systems and data communications network that electronically links the options exchanges to one another.4 Accordingly, current Chapter XII of the BOX Rules contains rule text adopted specifically to achieve the purpose of the Linkage Plan. The Exchange proposes to amend Chapter XII of the BOX Rules, as necessary, to reflect the Exchange’s filing to become a plan participant (‘‘Plan Participant’’) in the proposed Decentralized Plan.5 Unlike the Linkage Plan which exclusively required use of the OCC Hub, the purpose of the Decentralized Plan is to enable the Plan Participants thereto to act jointly in sroberts on PROD1PC70 with NOTICES 3 See Securities Exchange Act Release No. 43086 (July 28, 2000), 65 FR 48023 (August 4, 2000) (File No. 4–429) (Order approving the Linkage Plan and the original parties thereto). The Exchange became a party to the Linkage Plan on January 14, 2004 by executing a copy of said Linkage Plan with the Commission as well as completing the other steps required. Terms not otherwise defined herein shall have the meaning assigned to them in the BOX Rules, the Decentralized Plan, or the Linkage Plan, respectively. 4 The systems and data communications network that link electronically the Eligible Exchanges for the purposes specified in the former Linkage Plan shall be referred to as the ‘‘OCC Hub’’. See proposed Chapter XII, Section 4(g)(3) of the BOX Rules. See also proposed Chapter I, Section 1(a)(35) of the BOX Rules. 5 See Securities Exchange Act Release No. 59647 (March 30, 2009), 74 FR 15010 (April 2, 2009) (File No. 4–546) (Joint Industry Plan; Notice of Filing of Proposed Options Order Protection and Locked/ Crossed Market Plan). The Exchange will also seek, upon approval of the Exchange’s participation in the Decentralized Plan, the Commission’s approval to contemporaneously withdraw from the Linkage Plan. This proposed rule change, if approved, will become effective upon the Exchange’s withdrawal from the current Linkage Plan and the effectiveness of the new Decentralized Plan. VerDate Nov<24>2008 19:07 Jun 26, 2009 Jkt 217001 establishing a framework for a nonexclusive method of providing and achieving order protection and addressing Locked and Crossed Markets in Eligible Options Classes. If approved, the Decentralized Plan would completely replace the current Linkage Plan. Operation of the Decentralized Plan The Decentralized Plan essentially would apply the Regulation NMS 6 price-protection provisions to the options markets. Similar to Regulation NMS, the Decentralized Plan would require Plan Participants to adopt rules ‘‘reasonably designed to prevent TradeThroughs’’, while exempting Intermarket Sweep Orders (‘‘ISOs’’) from that prohibition.7 The proposed definition of an ISO is essentially the same as under Regulation NMS.8 The remaining exceptions to the tradethrough prohibition, discussed more specifically below, either track those under Regulation NMS or correspond to unique aspects of the options market, or both. Description of the Implementing Rules The proposal seeks to include rule text and definitions for certain terms within Chapter XII designed to accomplish the purpose of the new Decentralized Plan. As proposed, current Chapter XII rule text will be removed and replaced completely with new Chapter XII rule text titled ‘‘Order Protection; Locked and Crossed Markets’’. The proposed ‘new’ Chapter XII will contain the following rules: Chapter XII, Section 1—Definitions The proposed rule change incorporates all the operative definitions from the Decentralized Plan into the BOX Rules. With one exception, the parties to the Decentralized Plan derived all such definitions either from the Linkage Plan9 or Regulation NMS.10 6 See Securities Exchange Act Release No. 51808 (June 9, 2005), 70 FR 37496 (June 29, 2005). 7 See Sections 5(a)(i) and 5(b)(iv) of the proposed Decentralized Plan. See also proposed Chapter XII, Section 2(b)(4) of the BOX Rules. 8 See Section 2(9) of the proposed Decentralized Plan. See also proposed Chapter XII, Section 1(g) of the BOX Rules which, as proposed, defines the term ISO as ‘‘a Limit Order for an options series that, simultaneously with the routing of the ISO, one or more additional ISOs, as necessary, are routed to execute against the full displayed size of any Protected Bid, in the case of a Limit order to sell, or any Protected Offer, in the case of a Limit order to buy, for the options series with a price that is superior to the limit price of the ISO’’. 9 See e.g. the definitions of ‘‘Broker/Dealer’’ in Section 1(c), ‘‘NBBO’’ in Section 1(i), ‘‘Non-Firm’’ in Section 1(j), and ‘‘OPRA Plan’’ in Section 1(k). 10 See e.g. the definitions of ‘‘Best Bid’’ and ‘‘Best Offer’’ in Section 1(a), ‘‘Bid’’ or ’’Offer’’ in Section PO 00000 Frm 00083 Fmt 4703 Sfmt 4703 The one exception is the definition of ‘‘Complex Trade’’ in Section 1(d). A ‘‘Complex Trade’’ is exempt from tradethrough liability. The exemption in the Linkage Plan simply refers to complex trades ‘‘as that term may be defined by the [Linkage] Operating Committee from time to time.’’ Based on that provision, the Exchange adopted current Chapter XII, Section 1(c) of the BOX Rules, which is substantially identical to the rules of the other options exchanges. The Exchange proposes to carry forward that definition unchanged into the new proposed Chapter XII. Chapter XII, Section 2—Order Protection Proposed Chapter XII, Section 2(a) provides that, subject to certain specified exceptions, Options Participants shall not effect tradethroughs. Proposed paragraph (b) provides for the following trade-through exceptions: • System Issues: Section 5(b)(i) of the proposed Decentralized Plan corresponds to the system-failure exception in Regulation NMS 11 for equity securities and permits trading through an Eligible Exchange that is experiencing system problems. • Trading Rotations: Section 5(b)(ii) of the proposed Decentralized Plan carries forward the current TradeThrough exception in the Linkage Plan 12 and is the options equivalent to the single price opening exception in Regulation NMS for equity securities.13 Options exchanges use a trading rotation to open an option for trading, or to reopen an option after a trading halt. The rotation is effectively a single price auction to price the option and there are no practical means to include prices on other exchanges in that auction. • Crossed Markets: Section 5(b)(iii) corresponds to the crossed quote exception in Regulation NMS for equity securities.14 If a Protected Bid is higher than a Protected Offer, it indicates that there is some form of market dislocation or inaccurate quoting. Permitting transactions to be executed without regard to Trade-Throughs in a Crossed Market will allow the market to quickly return to equilibrium. • Intermarket Sweep Orders (‘‘ISOs’’): These two exceptions correspond to the ISO exceptions in Regulation NMS for 1(b), ‘‘Intermarket Sweep Order (‘‘ISO’’)’’ in Section 1(g), and ‘‘Quotation’’ in Section 1(p). 11 See Rule 611(b)(l) under the Exchange Act. 12 See Section 8(c)(iii)(E) of the Linkage Plan. 13 See Rule 611(b)(3) under the Exchange Act. 14 See Rule 611(b)(4) under the Exchange Act. E:\FR\FM\29JNN1.SGM 29JNN1 Federal Register / Vol. 74, No. 123 / Monday, June 29, 2009 / Notices sroberts on PROD1PC70 with NOTICES equity securities.15 Section 5(b)(iv) of the proposed Decentralized Plan permits a Plan Participant to execute orders it receives from other Plan Participants or members that are marked as ISO even when it is not at the NBBO. Section 5(b)(v) of the proposed Decentralized Plan allows a Plan Participant to execute inbound orders when it is not at the NBBO, provided it simultaneously ‘‘sweeps’’ all betterpriced interest displayed by Eligible Exchanges. • Quote Flickering: Section 5(b)(vi) of the proposed Decentralized Plan corresponds to the flickering quote exception in Regulation NMS for equity securities.16 Options quotations change as rapidly, if not more rapidly, than equity quotations. Indeed, they track the price of the underlying security and thus change when the price of the underlying security changes. This exception provides a form of ‘‘safe harbor’’ to market participants to allow them to trade through prices that have changed within a second of the transaction causing a nominal TradeThrough. • Non-Firm Quotes: Section 5(b)(vii) of the proposed Decentralized Plan carries forward the current non-firm quote Trade-Through exception in the Linkage Plan.17 By definition, an Eligible Exchange’s quotations may not be firm for automatic execution during this trading state and thus should not be protected from Trade-Throughs. In effect, these quotations are akin to ‘‘manual quotations’’ under Regulation NMS. • Complex Trades: Section 5(b)(viii) of the proposed Decentralized Plan carries forward the current complex trade exception in the Linkage Plan 18 and will be implemented through rules adopted by the Plan Participants and approved by the Commission. Complex trades consist of multiple transactions (‘‘legs’’) effected at a net price, and it is not practical to price each leg at a price that does not constitute a TradeThrough. Narrowly-crafted implementing rules will ensure that this exception does not undercut TradeThrough protections. • Customer Stopped Orders: Section 5(b)(ix) of the proposed Decentralized Plan corresponds to the customer stopped order exception in Regulation NMS for equity securities.19 It permits broker dealers to execute large orders 15 See Rule 611(b)(5) and (6) under the Exchange Act. 16 See Rule 611(b)(8) under the Exchange Act. Section 8(c)(iii)(C) of the Linkage Plan. 18 See Section 8(c)(iii)(G) of the Linkage Plan. 19 See Rule 611(b)(9) under the Exchange Act. 17 See VerDate Nov<24>2008 19:07 Jun 26, 2009 Jkt 217001 over time at a price agreed upon by a customer, even though the price of the option may change before the order is executed in its entirety.20 • Stopped Orders and Price Improvement: Section 5(b)(x) of the proposed Decentralized Plan would apply if an order is stopped at price that did not constitute a Trade-Through at the time of the stop. In this case, an exchange could seek price improvement for that order, even if the market moves in the interim, and the transaction ultimately is effected at a price that would trade through the then currentlydisplayed market. This exception would be particularly useful for executions effected pursuant to such mechanisms as BOX’s Price Improvement Period (‘‘PIP’’).21 • Benchmark Trades: Section 5(b)(xi) of the proposed Decentralized Plan would cover trades executed at a price not tied to the price of an option at the time of execution, and for which the material terms were not reasonably determinable at the time of the commitment to make the trade. An example would be a volume-weighted average price trade, or ‘‘VWAP’’. This corresponds to a Trade-Through exemption in Regulation NMS for equity trades.22 BOX does not currently permit these types of options trades, and any transaction-type relying on this exemption would require the Plan Participant to adopt implementing rules, subject to Commission review and approval. Chapter XII, Section 3—Locked and Crossed Markets The proposed Decentralized Plan also addresses locked and crossed markets.23 Similar to Regulation NMS, the proposed Decentralized Plan requires the Plan Participants to adopt, maintain and enforce rules requiring exchange Options Participants: to reasonably avoid displaying locked and crossed markets; to reconcile such markets; and to prohibit Options Participants from engaging in a pattern or practice of displaying locked and crossed markets. However, the Plan Participants in the proposed Decentralized Plan, including the Exchange, have proposed certain exceptions, as detailed below, from the aforementioned prohibition. The 20 For a further discussion on how this exemption operates refer to the Regulation NMS Adopting Release. See Securities Exchange Act Release No. 51808 (June 9, 2005), 70 FR 37496 (June 29, 2005) at notes 322–325. 21 See Chapter V, Section 18 of the BOX Rules. 22 See Rule 611(b)(7) under the Exchange Act. 23 See Section 6 of the proposed Decentralized Plan. See also proposed Chapter XII, Section 3 of the BOX Rules. PO 00000 Frm 00084 Fmt 4703 Sfmt 4703 31083 Exchange’s proposed exceptions are as follows: • The locking or crossing Quotation was displayed at a time when BOX was experiencing a failure, material delay, or malfunction of its systems or equipment; • The locking or crossing Quotation was displayed at a time when there is a Crossed Market; • The BOX Options Participant simultaneously routed an ISO to execute against the full displayed size of any locked or crossed Protected Bid or Protected Offer; or • With respect to a locking Quotation, the order entered on the Eligible Exchange that will lock a Protected Bid or Protected Offer, is: Æ Not a Public Customer order, and the Eligible Exchange can determine via identification available pursuant to the Options Price Reporting Authority (‘‘OPRA’’) Plan that such Protected Bid or Protected Offer does not represent, in whole or in part, a Public Customer order; or Æ A Public Customer order, and the Eligible Exchange can determine via identification available pursuant to the OPRA Plan that such Protected Bid or Protected Offer does not represent, in whole or in part, a Public Customer order, and, on a case-by-case basis, the Public Customer specifically authorizes the Participant to lock such Protected Bid or Protected Offer. Chapter XII, Temporary Sec. 4— Temporary Rules Governing P and P/A Orders If this proposal is approved, the current text within Chapter XII corresponding to the Linkage Plan will be completely removed and replaced with the new proposed rule text corresponding to the proposed Decentralized Plan. Included within the proposed rule changes is certain rule text from current Chapter XII which the Exchange proposes to retain and continue to enforce regarding the sending and receipt of P and P/A orders.24 BOX and BOX Options Participants currently utilize the sending of P and P/A orders to fulfill their obligations to seek the best price available for their customers and to prevent Trade-Throughs. Although ISOs will be accepted and executed on the BOX market as of the Decentralized Plan’s implementation date, the BOX facility itself will not send ISOs or route orders through private routing 24 These rules are within proposed Chapter XII, Temporary Section 4. E:\FR\FM\29JNN1.SGM 29JNN1 31084 Federal Register / Vol. 74, No. 123 / Monday, June 29, 2009 / Notices sroberts on PROD1PC70 with NOTICES arrangements to away exchanges until some time after such implementation.25 In connection with approval of this proposal the Exchange will also request, under separate cover, that the Commission grant a temporary limited exemption from Section 5(a) of the proposed Decentralized Plan to permit BOX Options Participants to send P and P/A Orders to prevent Trade-Throughs on the BOX market. Subject to the Commission’s approval of the aforementioned request for exemption from Section 5(a) of the Decentralized Plan, BOX and its Options Participants will continue to utilize the sending of P and P/A orders to away markets in order to fulfill their obligations to seek the best available price for customers. BOX has negotiated with the OCC to arrange for the continued maintenance, operation and functionality of the OCC Hub during this period of time to accommodate BOX. Additionally, the other options exchanges which have similarly filed proposals to become Plan Participants in the proposed Decentralized Plan have agreed to accept and execute P and P/A Orders, and maintain and enforce pertinent rule text, for so long as BOX shall continue to send them through the OCC Hub. The Exchange proposes to include Temporary Section 4 within Chapter XII until BOX no longer sends or receives P and P/A Orders and such rules are no longer deemed necessary, at which point, upon approval of the Commission, they will be removed from Chapter XII.26 When BOX develops the ability to send ISOs, or a similar order type to accomplish the same end result, and the ability to route orders through private routing arrangements,27 the Exchange will submit a proposal to remove Temporary Section 4 of Chapter XII, at which point, if approved by the Commission, this requested exemption shall lapse and the Exchange will no longer utilize P and P/A Orders to 25 This period of delay is anticipated to last approximately 2–8 weeks past the prospective implementation date. Although the BOX facility does not contemplate sending ISOs itself immediately upon implementation of the Decentralized Plan, BOX Options Participants that have developed the systems capability to send ISOs will immediately be able to do so via their own order routing arrangements, separate and independent from BOX, on the prospective implementation date. See Supplementary Material .01 to proposed Chapter XII, Section 2. 26 The Exchange will submit a proposed rule change seeking Commission approval for such rule change. 27 The Exchange will submit a separate filing with the Commission discussing the details of the BOX private routing arrangements and certain proposed rule text pertaining to such routing. VerDate Nov<24>2008 19:07 Jun 26, 2009 Jkt 217001 prevent Trade-Throughs on the BOX market. Other Proposed Amendments to BOX Rules To Accommodate Decentralized Plan The Exchange additionally proposes to amend several sections of the BOX Rules other than within Chapter XII. These changes are as follows: • Chapter I, Section 1: Section 1 defines certain terms which are referenced throughout the BOX Rules. The Exchange proposes to include ‘‘OCC Hub’’ as a defined term, not only within Chapter XII, but within the entirety of the BOX Rules. • Chapter V, Section 14: Section 14 governs order entry on BOX and the types of orders permissible for entry. The Exchange proposes to include ‘‘ISO’’ as a permissible order type for entry on BOX. • Chapter V, Section 16: Section 16 governs execution and price/time priority and, in particular, the circumstances under which inbound orders will be ‘filtered’ against the NBBO. The Exchange proposes to exclude ISOs from those orders that are filtered against NBBO. The Exchange also proposes to remove references to ‘‘Intermarket Linkage’’, as such a term will not exist upon implementation of the Decentralized Plan, and, where appropriate, replace such term with ‘‘OCC Hub’’. The Exchange also proposes to correct cross-references to certain sections of Chapter XII, as the referenced text within Chapter [sic] will continue to exist, but will be located in updated subsections. The Exchange also proposes to remove references to ‘‘Firm Principal Quote Size’’ and replace such references with the term ‘‘Displayed Size’’, as this term is defined in proposed Chapter XII, Section 4(g). • Chapter V, Section 20: Section 20 governs Obvious and Catastrophic Errors. The Exchange proposes to revise a cross-reference to the defined term, ‘‘primary market,’’ resulting from the renumbering of certain defined terms in Chapter I, Section 1. • Chapter V, Section 29: Section 29 governs the Universal Price Improvement Period (‘‘UPIP’’) and, in particular, when BOX, upon satisfaction of certain conditions, will automatically initiate a UPIP auction. The Exchange proposes to add to the list of conditions that the eligible order not (emphasis added) be an ISO. Section 29 also includes rule text describing the filtering of UPIP Orders to prevent trade throughs. The Exchange proposes to replace specific circumstances upon which UPIP Orders will be filtered with a general reference to the trade through PO 00000 Frm 00085 Fmt 4703 Sfmt 4703 exceptions in proposed Chapter XII, Section 2(b). • Chapter VI, Section 5: Section 5 governs the obligations of BOX Market Makers and certain of these obligations with respect to P and P/A Orders. As described above, the Exchange proposes to remove references to Intermarket Linkage and replace them with OCC Hub where appropriate. • Chapter X, Section 2: Section 2 governs penalties for violations of the BOX Minor Rule Violation Plan and such penalties as they pertain to violations of the respective rules governing locked and crossed markets and trade throughs on BOX. As described above, the Exchange proposes to correct cross-references to the locked and crossed markets and trade through rules, as the respective subsection numbering is modified in proposed Chapter XII. 2. Statutory Basis The Exchange believes that the proposal is consistent with the requirements of Section 6(b) of the Act,28 in general, and Section 6(b)(5) of the Act,29 in particular, in that it is designed to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, to prevent fraudulent and manipulative acts, 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. Specifically, the proposed rule change will allow the Exchange to implement and enforce the rules as made necessary by its filing to become a Plan Participant in the proposed Decentralized Plan. 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. C. Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others The Exchange has neither solicited nor received comments on the proposed rule change. 28 15 29 15 E:\FR\FM\29JNN1.SGM U.S.C. 78f(b). U.S.C. 78f(b)(5). 29JNN1 Federal Register / Vol. 74, No. 123 / Monday, June 29, 2009 / Notices III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Within 35 days of the date of publication of this notice in the Federal Register or within such longer period (i) as the Commission may designate up to 90 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding or (ii) as to which the Exchange consents, the Commission will: (A) By order approve the proposed rule change, or (B) Institute proceedings to determine whether the proposed rule change should be disapproved. IV. Solicitation of Comments 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–BX– 2009–028 and should be submitted on or before July 20, 2009. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.30 Florence E. Harmon, Deputy Secretary. [FR Doc. E9–15267 Filed 6–26–09; 8:45 am] BILLING CODE 8010–01–P 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 (https://www.sec.gov/ rules/sro.shtml); or • Send an e-mail to rulecomments@sec.gov. Please include File No. SR–BX–2009–028 on the subject line. DEPARTMENT OF STATE [Public Notice 6684] Postponement of the United StatesChile Environment Affairs Council and Joint Commission for Environmental Cooperation Meetings ACTION: Notice of meetings; postponement. SUMMARY: The Department of State (DOS) and the Office of the United States Trade Representative (USTR) are • Send paper comments in triplicate hereby providing notice that the fifth to Elizabeth M. Murphy, Secretary, meeting of the United States-Chile Securities and Exchange Commission, Environment Affairs Council (the Station Place, 100 F Street, NE., ‘‘Council’’) and the third meeting of the Washington, DC 20549–1090. Joint Commission for Environmental All submissions should refer to File Cooperation (the ‘‘Commission’’), which Number SR–BX–2009–028. This file were previously scheduled for July 1, number should be included on the subject line if e-mail is used. To help the 2009, have been postponed. The meetings have not yet been rescheduled. Commission process and review your DOS and USTR will publish notice in comments more efficiently, please use only one method. The Commission will the Federal Register of the date, time post all comments on the Commission’s and agenda for the rescheduled meetings, and will invite interested Internet Web site (https://www.sec.gov/ agencies, organizations, and members of rules/sro.shtml). Copies of the the public to submit written comments submission, all subsequent or suggestions regarding agenda items amendments, all written statements when arrangements for the meetings are with respect to the proposed rule complete. The Department of State and change that are filed with the USTR originally provided notice of the Commission, and all written meetings on June 11, 2009, at 74 FR communications relating to the 27858 (2009). proposed rule change between the Commission and any person, other than Dated: June 24, 2009. those that may be withheld from the Robert A. Sorenson, public in accordance with the Acting Director, Office of Environmental provisions of 5 U.S.C. 552, will be Policy, Department of State. available for inspection and copying in [FR Doc. E9–15334 Filed 6–26–09; 8:45 am] the Commission’s Public Reference Room, on official business days between BILLING CODE 4710–09–P the hours of 10 a.m. and 3 p.m. Copies 30 17 CFR 200.30–3(a)(12). of such filing also will be available for sroberts on PROD1PC70 with NOTICES Paper Comments VerDate Nov<24>2008 19:07 Jun 26, 2009 Jkt 217001 PO 00000 Frm 00086 Fmt 4703 Sfmt 4703 31085 DEPARTMENT OF TRANSPORTATION Federal Transit Administration [FTA Docket No. FTA–2009–31] Notice of Request for Approval of an Information Collection AGENCY: Federal Transit Administration, DOT. ACTION: Notice of request for comments. SUMMARY: In accordance with the Paperwork Reduction Act of 1995, this notice announces the intention of the Federal Transit Administration (FTA) to request the Office of Management and Budget (OMB) to approve the following new information collection: Over-the-Road Bus (OTRB) Accessibility Program. DATES: Comments must be submitted before August 28, 2009. ADDRESSES: To ensure that your comments are not entered more than once into the docket, submit comments identified by the docket number by only one of the following methods: 1. Web site: https:// www.regulations.gov. Follow the instructions for submitting comments on the U.S. Government electronic docket site. (Note: The U.S. Department of Transportation’s (DOT’s) electronic docket is no longer accepting electronic comments.) All electronic submissions must be made to the U.S. Government electronic docket site at https:// www.regulations.gov. Commenters should follow the directions below for mailed and hand-delivered comments. 2. 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[Federal Register Volume 74, Number 123 (Monday, June 29, 2009)]
[Notices]
[Pages 31081-31085]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-15267]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-60158; File No. SR-BX-2009-028]


Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of 
Filing of Proposed Rule Change To Adopt Rules To Implement the Options 
Order Protection and Locked/Crossed Market Plan

June 22, 2009.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(the ``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given 
that on June 16, 2009, the 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 change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

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

    The Exchange proposes to amend the Rules of the Boston Options 
Exchange Group, LLC (``BOX'') to reflect the Exchange's filing to 
become a participant in the proposed Options Order Protection and 
Locked/Crossed Market Plan (``Decentralized Plan''). The text of the 
proposed rule change is available from the principal office of the 
Exchange, at the Commission's Public Reference Room and also on the 
Exchange's Internet Web site at https://nasdaqomxbx.cchwallstreet.com/NASDAQOMXBX/Filings/.

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.

[[Page 31082]]

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

1. Purpose
    The Exchange proposes to adopt certain rules and definitions 
necessary to implement the proposed Decentralized Plan. The proposed 
definitions and rules will replace current Chapter XII of the BOX Rules 
in its entirety. The proposed rule changes will also amend various 
other BOX Rules to accommodate the Decentralized Plan.

Background of the Decentralized Plan and Implementing Rules

    The Exchange is presently a party to the Plan for the Purpose of 
Creating and Operating an InterMarket Option Linkage (``Linkage 
Plan'').\3\ The purpose of the Linkage Plan is to enable the options 
exchanges to act jointly in planning, developing, operating and 
regulating the systems and data communications network that 
electronically links the options exchanges to one another.\4\ 
Accordingly, current Chapter XII of the BOX Rules contains rule text 
adopted specifically to achieve the purpose of the Linkage Plan.
---------------------------------------------------------------------------

    \3\ See Securities Exchange Act Release No. 43086 (July 28, 
2000), 65 FR 48023 (August 4, 2000) (File No. 4-429) (Order 
approving the Linkage Plan and the original parties thereto). The 
Exchange became a party to the Linkage Plan on January 14, 2004 by 
executing a copy of said Linkage Plan with the Commission as well as 
completing the other steps required. Terms not otherwise defined 
herein shall have the meaning assigned to them in the BOX Rules, the 
Decentralized Plan, or the Linkage Plan, respectively.
    \4\ The systems and data communications network that link 
electronically the Eligible Exchanges for the purposes specified in 
the former Linkage Plan shall be referred to as the ``OCC Hub''. See 
proposed Chapter XII, Section 4(g)(3) of the BOX Rules. See also 
proposed Chapter I, Section 1(a)(35) of the BOX Rules.
---------------------------------------------------------------------------

    The Exchange proposes to amend Chapter XII of the BOX Rules, as 
necessary, to reflect the Exchange's filing to become a plan 
participant (``Plan Participant'') in the proposed Decentralized 
Plan.\5\ Unlike the Linkage Plan which exclusively required use of the 
OCC Hub, the purpose of the Decentralized Plan is to enable the Plan 
Participants thereto to act jointly in establishing a framework for a 
non-exclusive method of providing and achieving order protection and 
addressing Locked and Crossed Markets in Eligible Options Classes. If 
approved, the Decentralized Plan would completely replace the current 
Linkage Plan.
---------------------------------------------------------------------------

    \5\ See Securities Exchange Act Release No. 59647 (March 30, 
2009), 74 FR 15010 (April 2, 2009) (File No. 4-546) (Joint Industry 
Plan; Notice of Filing of Proposed Options Order Protection and 
Locked/Crossed Market Plan). The Exchange will also seek, upon 
approval of the Exchange's participation in the Decentralized Plan, 
the Commission's approval to contemporaneously withdraw from the 
Linkage Plan. This proposed rule change, if approved, will become 
effective upon the Exchange's withdrawal from the current Linkage 
Plan and the effectiveness of the new Decentralized Plan.
---------------------------------------------------------------------------

Operation of the Decentralized Plan

    The Decentralized Plan essentially would apply the Regulation NMS 
\6\ price-protection provisions to the options markets. Similar to 
Regulation NMS, the Decentralized Plan would require Plan Participants 
to adopt rules ``reasonably designed to prevent Trade-Throughs'', while 
exempting Intermarket Sweep Orders (``ISOs'') from that prohibition.\7\ 
The proposed definition of an ISO is essentially the same as under 
Regulation NMS.\8\ The remaining exceptions to the trade-through 
prohibition, discussed more specifically below, either track those 
under Regulation NMS or correspond to unique aspects of the options 
market, or both.
---------------------------------------------------------------------------

    \6\ See Securities Exchange Act Release No. 51808 (June 9, 
2005), 70 FR 37496 (June 29, 2005).
    \7\ See Sections 5(a)(i) and 5(b)(iv) of the proposed 
Decentralized Plan. See also proposed Chapter XII, Section 2(b)(4) 
of the BOX Rules.
    \8\ See Section 2(9) of the proposed Decentralized Plan. See 
also proposed Chapter XII, Section 1(g) of the BOX Rules which, as 
proposed, defines the term ISO as ``a Limit Order for an options 
series that, simultaneously with the routing of the ISO, one or more 
additional ISOs, as necessary, are routed to execute against the 
full displayed size of any Protected Bid, in the case of a Limit 
order to sell, or any Protected Offer, in the case of a Limit order 
to buy, for the options series with a price that is superior to the 
limit price of the ISO''.
---------------------------------------------------------------------------

Description of the Implementing Rules

    The proposal seeks to include rule text and definitions for certain 
terms within Chapter XII designed to accomplish the purpose of the new 
Decentralized Plan. As proposed, current Chapter XII rule text will be 
removed and replaced completely with new Chapter XII rule text titled 
``Order Protection; Locked and Crossed Markets''. The proposed `new' 
Chapter XII will contain the following rules:

Chapter XII, Section 1--Definitions

    The proposed rule change incorporates all the operative definitions 
from the Decentralized Plan into the BOX Rules. With one exception, the 
parties to the Decentralized Plan derived all such definitions either 
from the Linkage Plan\9\ or Regulation NMS.\10\ The one exception is 
the definition of ``Complex Trade'' in Section 1(d). A ``Complex 
Trade'' is exempt from trade-through liability. The exemption in the 
Linkage Plan simply refers to complex trades ``as that term may be 
defined by the [Linkage] Operating Committee from time to time.'' Based 
on that provision, the Exchange adopted current Chapter XII, Section 
1(c) of the BOX Rules, which is substantially identical to the rules of 
the other options exchanges. The Exchange proposes to carry forward 
that definition unchanged into the new proposed Chapter XII.
---------------------------------------------------------------------------

    \9\ See e.g. the definitions of ``Broker/Dealer'' in Section 
1(c), ``NBBO'' in Section 1(i), ``Non-Firm'' in Section 1(j), and 
``OPRA Plan'' in Section 1(k).
    \10\ See e.g. the definitions of ``Best Bid'' and ``Best Offer'' 
in Section 1(a), ``Bid'' or ''Offer'' in Section 1(b), ``Intermarket 
Sweep Order (``ISO'')'' in Section 1(g), and ``Quotation'' in 
Section 1(p).
---------------------------------------------------------------------------

Chapter XII, Section 2--Order Protection

    Proposed Chapter XII, Section 2(a) provides that, subject to 
certain specified exceptions, Options Participants shall not effect 
trade-throughs. Proposed paragraph (b) provides for the following 
trade-through exceptions:
     System Issues: Section 5(b)(i) of the proposed 
Decentralized Plan corresponds to the system-failure exception in 
Regulation NMS \11\ for equity securities and permits trading through 
an Eligible Exchange that is experiencing system problems.
---------------------------------------------------------------------------

    \11\ See Rule 611(b)(l) under the Exchange Act.
---------------------------------------------------------------------------

     Trading Rotations: Section 5(b)(ii) of the proposed 
Decentralized Plan carries forward the current Trade-Through exception 
in the Linkage Plan \12\ and is the options equivalent to the single 
price opening exception in Regulation NMS for equity securities.\13\ 
Options exchanges use a trading rotation to open an option for trading, 
or to reopen an option after a trading halt. The rotation is 
effectively a single price auction to price the option and there are no 
practical means to include prices on other exchanges in that auction.
---------------------------------------------------------------------------

    \12\ See Section 8(c)(iii)(E) of the Linkage Plan.
    \13\ See Rule 611(b)(3) under the Exchange Act.
---------------------------------------------------------------------------

     Crossed Markets: Section 5(b)(iii) corresponds to the 
crossed quote exception in Regulation NMS for equity securities.\14\ If 
a Protected Bid is higher than a Protected Offer, it indicates that 
there is some form of market dislocation or inaccurate quoting. 
Permitting transactions to be executed without regard to Trade-Throughs 
in a Crossed Market will allow the market to quickly return to 
equilibrium.
---------------------------------------------------------------------------

    \14\ See Rule 611(b)(4) under the Exchange Act.
---------------------------------------------------------------------------

     Intermarket Sweep Orders (``ISOs''): These two exceptions 
correspond to the ISO exceptions in Regulation NMS for

[[Page 31083]]

equity securities.\15\ Section 5(b)(iv) of the proposed Decentralized 
Plan permits a Plan Participant to execute orders it receives from 
other Plan Participants or members that are marked as ISO even when it 
is not at the NBBO. Section 5(b)(v) of the proposed Decentralized Plan 
allows a Plan Participant to execute inbound orders when it is not at 
the NBBO, provided it simultaneously ``sweeps'' all better-priced 
interest displayed by Eligible Exchanges.
---------------------------------------------------------------------------

    \15\ See Rule 611(b)(5) and (6) under the Exchange Act.
---------------------------------------------------------------------------

     Quote Flickering: Section 5(b)(vi) of the proposed 
Decentralized Plan corresponds to the flickering quote exception in 
Regulation NMS for equity securities.\16\ Options quotations change as 
rapidly, if not more rapidly, than equity quotations. Indeed, they 
track the price of the underlying security and thus change when the 
price of the underlying security changes. This exception provides a 
form of ``safe harbor'' to market participants to allow them to trade 
through prices that have changed within a second of the transaction 
causing a nominal Trade-Through.
---------------------------------------------------------------------------

    \16\ See Rule 611(b)(8) under the Exchange Act.
---------------------------------------------------------------------------

     Non-Firm Quotes: Section 5(b)(vii) of the proposed 
Decentralized Plan carries forward the current non-firm quote Trade-
Through exception in the Linkage Plan.\17\ By definition, an Eligible 
Exchange's quotations may not be firm for automatic execution during 
this trading state and thus should not be protected from Trade-
Throughs. In effect, these quotations are akin to ``manual quotations'' 
under Regulation NMS.
---------------------------------------------------------------------------

    \17\ See Section 8(c)(iii)(C) of the Linkage Plan.
---------------------------------------------------------------------------

     Complex Trades: Section 5(b)(viii) of the proposed 
Decentralized Plan carries forward the current complex trade exception 
in the Linkage Plan \18\ and will be implemented through rules adopted 
by the Plan Participants and approved by the Commission. Complex trades 
consist of multiple transactions (``legs'') effected at a net price, 
and it is not practical to price each leg at a price that does not 
constitute a Trade-Through. Narrowly-crafted implementing rules will 
ensure that this exception does not undercut Trade-Through protections.
---------------------------------------------------------------------------

    \18\ See Section 8(c)(iii)(G) of the Linkage Plan.
---------------------------------------------------------------------------

     Customer Stopped Orders: Section 5(b)(ix) of the proposed 
Decentralized Plan corresponds to the customer stopped order exception 
in Regulation NMS for equity securities.\19\ It permits broker dealers 
to execute large orders over time at a price agreed upon by a customer, 
even though the price of the option may change before the order is 
executed in its entirety.\20\
---------------------------------------------------------------------------

    \19\ See Rule 611(b)(9) under the Exchange Act.
    \20\ For a further discussion on how this exemption operates 
refer to the Regulation NMS Adopting Release. See Securities 
Exchange Act Release No. 51808 (June 9, 2005), 70 FR 37496 (June 29, 
2005) at notes 322-325.
---------------------------------------------------------------------------

     Stopped Orders and Price Improvement: Section 5(b)(x) of 
the proposed Decentralized Plan would apply if an order is stopped at 
price that did not constitute a Trade-Through at the time of the stop. 
In this case, an exchange could seek price improvement for that order, 
even if the market moves in the interim, and the transaction ultimately 
is effected at a price that would trade through the then currently-
displayed market. This exception would be particularly useful for 
executions effected pursuant to such mechanisms as BOX's Price 
Improvement Period (``PIP'').\21\
---------------------------------------------------------------------------

    \21\ See Chapter V, Section 18 of the BOX Rules.
---------------------------------------------------------------------------

     Benchmark Trades: Section 5(b)(xi) of the proposed 
Decentralized Plan would cover trades executed at a price not tied to 
the price of an option at the time of execution, and for which the 
material terms were not reasonably determinable at the time of the 
commitment to make the trade. An example would be a volume-weighted 
average price trade, or ``VWAP''. This corresponds to a Trade-Through 
exemption in Regulation NMS for equity trades.\22\ BOX does not 
currently permit these types of options trades, and any transaction-
type relying on this exemption would require the Plan Participant to 
adopt implementing rules, subject to Commission review and approval.
---------------------------------------------------------------------------

    \22\ See Rule 611(b)(7) under the Exchange Act.
---------------------------------------------------------------------------

Chapter XII, Section 3--Locked and Crossed Markets

    The proposed Decentralized Plan also addresses locked and crossed 
markets.\23\ Similar to Regulation NMS, the proposed Decentralized Plan 
requires the Plan Participants to adopt, maintain and enforce rules 
requiring exchange Options Participants: to reasonably avoid displaying 
locked and crossed markets; to reconcile such markets; and to prohibit 
Options Participants from engaging in a pattern or practice of 
displaying locked and crossed markets. However, the Plan Participants 
in the proposed Decentralized Plan, including the Exchange, have 
proposed certain exceptions, as detailed below, from the aforementioned 
prohibition. The Exchange's proposed exceptions are as follows:
---------------------------------------------------------------------------

    \23\ See Section 6 of the proposed Decentralized Plan. See also 
proposed Chapter XII, Section 3 of the BOX Rules.
---------------------------------------------------------------------------

     The locking or crossing Quotation was displayed at a time 
when BOX was experiencing a failure, material delay, or malfunction of 
its systems or equipment;
     The locking or crossing Quotation was displayed at a time 
when there is a Crossed Market;
     The BOX Options Participant simultaneously routed an ISO 
to execute against the full displayed size of any locked or crossed 
Protected Bid or Protected Offer; or
     With respect to a locking Quotation, the order entered on 
the Eligible Exchange that will lock a Protected Bid or Protected 
Offer, is:
    [cir] Not a Public Customer order, and the Eligible Exchange can 
determine via identification available pursuant to the Options Price 
Reporting Authority (``OPRA'') Plan that such Protected Bid or 
Protected Offer does not represent, in whole or in part, a Public 
Customer order; or
    [cir] A Public Customer order, and the Eligible Exchange can 
determine via identification available pursuant to the OPRA Plan that 
such Protected Bid or Protected Offer does not represent, in whole or 
in part, a Public Customer order, and, on a case-by-case basis, the 
Public Customer specifically authorizes the Participant to lock such 
Protected Bid or Protected Offer.

Chapter XII, Temporary Sec. 4--Temporary Rules Governing P and P/A 
Orders

    If this proposal is approved, the current text within Chapter XII 
corresponding to the Linkage Plan will be completely removed and 
replaced with the new proposed rule text corresponding to the proposed 
Decentralized Plan. Included within the proposed rule changes is 
certain rule text from current Chapter XII which the Exchange proposes 
to retain and continue to enforce regarding the sending and receipt of 
P and P/A orders.\24\ BOX and BOX Options Participants currently 
utilize the sending of P and P/A orders to fulfill their obligations to 
seek the best price available for their customers and to prevent Trade-
Throughs. Although ISOs will be accepted and executed on the BOX market 
as of the Decentralized Plan's implementation date, the BOX facility 
itself will not send ISOs or route orders through private routing

[[Page 31084]]

arrangements to away exchanges until some time after such 
implementation.\25\
---------------------------------------------------------------------------

    \24\ These rules are within proposed Chapter XII, Temporary 
Section 4.
    \25\ This period of delay is anticipated to last approximately 
2-8 weeks past the prospective implementation date. Although the BOX 
facility does not contemplate sending ISOs itself immediately upon 
implementation of the Decentralized Plan, BOX Options Participants 
that have developed the systems capability to send ISOs will 
immediately be able to do so via their own order routing 
arrangements, separate and independent from BOX, on the prospective 
implementation date. See Supplementary Material .01 to proposed 
Chapter XII, Section 2.
---------------------------------------------------------------------------

    In connection with approval of this proposal the Exchange will also 
request, under separate cover, that the Commission grant a temporary 
limited exemption from Section 5(a) of the proposed Decentralized Plan 
to permit BOX Options Participants to send P and P/A Orders to prevent 
Trade-Throughs on the BOX market. Subject to the Commission's approval 
of the aforementioned request for exemption from Section 5(a) of the 
Decentralized Plan, BOX and its Options Participants will continue to 
utilize the sending of P and P/A orders to away markets in order to 
fulfill their obligations to seek the best available price for 
customers.
    BOX has negotiated with the OCC to arrange for the continued 
maintenance, operation and functionality of the OCC Hub during this 
period of time to accommodate BOX. Additionally, the other options 
exchanges which have similarly filed proposals to become Plan 
Participants in the proposed Decentralized Plan have agreed to accept 
and execute P and P/A Orders, and maintain and enforce pertinent rule 
text, for so long as BOX shall continue to send them through the OCC 
Hub. The Exchange proposes to include Temporary Section 4 within 
Chapter XII until BOX no longer sends or receives P and P/A Orders and 
such rules are no longer deemed necessary, at which point, upon 
approval of the Commission, they will be removed from Chapter XII.\26\
---------------------------------------------------------------------------

    \26\ The Exchange will submit a proposed rule change seeking 
Commission approval for such rule change.
---------------------------------------------------------------------------

    When BOX develops the ability to send ISOs, or a similar order type 
to accomplish the same end result, and the ability to route orders 
through private routing arrangements,\27\ the Exchange will submit a 
proposal to remove Temporary Section 4 of Chapter XII, at which point, 
if approved by the Commission, this requested exemption shall lapse and 
the Exchange will no longer utilize P and P/A Orders to prevent Trade-
Throughs on the BOX market.
---------------------------------------------------------------------------

    \27\ The Exchange will submit a separate filing with the 
Commission discussing the details of the BOX private routing 
arrangements and certain proposed rule text pertaining to such 
routing.
---------------------------------------------------------------------------

Other Proposed Amendments to BOX Rules To Accommodate Decentralized 
Plan

    The Exchange additionally proposes to amend several sections of the 
BOX Rules other than within Chapter XII. These changes are as follows:
     Chapter I, Section 1: Section 1 defines certain terms 
which are referenced throughout the BOX Rules. The Exchange proposes to 
include ``OCC Hub'' as a defined term, not only within Chapter XII, but 
within the entirety of the BOX Rules.
     Chapter V, Section 14: Section 14 governs order entry on 
BOX and the types of orders permissible for entry. The Exchange 
proposes to include ``ISO'' as a permissible order type for entry on 
BOX.
     Chapter V, Section 16: Section 16 governs execution and 
price/time priority and, in particular, the circumstances under which 
inbound orders will be `filtered' against the NBBO. The Exchange 
proposes to exclude ISOs from those orders that are filtered against 
NBBO. The Exchange also proposes to remove references to ``Intermarket 
Linkage'', as such a term will not exist upon implementation of the 
Decentralized Plan, and, where appropriate, replace such term with 
``OCC Hub''. The Exchange also proposes to correct cross-references to 
certain sections of Chapter XII, as the referenced text within Chapter 
[sic] will continue to exist, but will be located in updated 
subsections. The Exchange also proposes to remove references to ``Firm 
Principal Quote Size'' and replace such references with the term 
``Displayed Size'', as this term is defined in proposed Chapter XII, 
Section 4(g).
     Chapter V, Section 20: Section 20 governs Obvious and 
Catastrophic Errors. The Exchange proposes to revise a cross-reference 
to the defined term, ``primary market,'' resulting from the renumbering 
of certain defined terms in Chapter I, Section 1.
     Chapter V, Section 29: Section 29 governs the Universal 
Price Improvement Period (``UPIP'') and, in particular, when BOX, upon 
satisfaction of certain conditions, will automatically initiate a UPIP 
auction. The Exchange proposes to add to the list of conditions that 
the eligible order not (emphasis added) be an ISO. Section 29 also 
includes rule text describing the filtering of UPIP Orders to prevent 
trade throughs. The Exchange proposes to replace specific circumstances 
upon which UPIP Orders will be filtered with a general reference to the 
trade through exceptions in proposed Chapter XII, Section 2(b).
     Chapter VI, Section 5: Section 5 governs the obligations 
of BOX Market Makers and certain of these obligations with respect to P 
and P/A Orders. As described above, the Exchange proposes to remove 
references to Intermarket Linkage and replace them with OCC Hub where 
appropriate.
     Chapter X, Section 2: Section 2 governs penalties for 
violations of the BOX Minor Rule Violation Plan and such penalties as 
they pertain to violations of the respective rules governing locked and 
crossed markets and trade throughs on BOX. As described above, the 
Exchange proposes to correct cross-references to the locked and crossed 
markets and trade through rules, as the respective subsection numbering 
is modified in proposed Chapter XII.
2. Statutory Basis
    The Exchange believes that the proposal is consistent with the 
requirements of Section 6(b) of the Act,\28\ in general, and Section 
6(b)(5) of the Act,\29\ in particular, in that it is designed to 
promote just and equitable principles of trade, to foster cooperation 
and coordination with persons engaged in facilitating transactions in 
securities, to prevent fraudulent and manipulative acts, 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. Specifically, the proposed rule change will allow the 
Exchange to implement and enforce the rules as made necessary by its 
filing to become a Plan Participant in the proposed Decentralized Plan.
---------------------------------------------------------------------------

    \28\ 15 U.S.C. 78f(b).
    \29\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

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.

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

    The Exchange has neither solicited nor received comments on the 
proposed rule change.

[[Page 31085]]

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

    Within 35 days of the date of publication of this notice in the 
Federal Register or within such longer period (i) as the Commission may 
designate up to 90 days of such date if it finds such longer period to 
be appropriate and publishes its reasons for so finding or (ii) as to 
which the Exchange consents, the Commission will:
    (A) By order approve the proposed rule change, or
    (B) Institute proceedings to determine whether the proposed rule 
change should be disapproved.

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 (https://www.sec.gov/rules/sro.shtml); or
     Send an e-mail to rule-comments@sec.gov. Please include 
File No. SR-BX-2009-028 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-BX-2009-028. 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 (https://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-BX-
2009-028 and should be submitted on or before July 20, 2009.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\30\
---------------------------------------------------------------------------

    \30\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-15267 Filed 6-26-09; 8:45 am]
BILLING CODE 8010-01-P
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