Self-Regulatory Organizations; Notice of Filing and Immediate Effectiveness of Proposed Rule Change by NASDAQ OMX PHLX, Inc. Relating to a Retroactive Waiver of the Cancellation Fee, 46264-46266 [E9-21611]

Download as PDF 46264 Federal Register / Vol. 74, No. 172 / Tuesday, September 8, 2009 / Notices 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 proposed rule change supports these principles in that it serves to increase the liquidity available at the NBBO. The Exchange believes that increased liquidity at the NBBO will lead to enhanced market quality which ultimately serves to protect investors and the public interest. 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 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 10 and Rule 19b– 4(f)(6) thereunder.11 A proposed rule change filed pursuant to Rule 19b–4(f)(6) under the Act 12 normally does not become operative for 30 days after the date of its filing. However, Rule 19b–4(f)(6) 13 permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange has requested that the Commission waive the 30-day operative delay so that the proposal may become operative immediately upon filing. The Commission believes that waiving the 10 15 U.S.C. 78s(b)(3)(A). 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. The Exchange has satisfied this requirement. 12 17 CFR 240.19b–4(f)(6). 13 Id. jlentini on DSKJ8SOYB1PROD with NOTICES 11 17 VerDate Nov<24>2008 17:32 Sep 04, 2009 Jkt 217001 30-day operative delay 14 is consistent with the protection of investors and the public interest because such waiver will permit the Exchange to immediately apply the new enhanced quoting requirements. 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. 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–NYSE–2009–91 and should be submitted on or before September 29, 2009. IV. Solicitation of Comments For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.15 Florence E. Harmon, Deputy Secretary. [FR Doc. E9–21586 Filed 9–4–09; 8:45 am] 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 Number SR–NYSE–2009–91 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–2009–91. 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, 100 F Street, NE., Washington, 14 For purposes only of waiving the 30-day operative delay, the Commission has considered the proposed rule’s impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). PO 00000 Frm 00185 Fmt 4703 Sfmt 4703 BILLING CODE 8010–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–60606; File No. SR–Phlx– 2009–76] Self-Regulatory Organizations; Notice of Filing and Immediate Effectiveness of Proposed Rule Change by NASDAQ OMX PHLX, Inc. Relating to a Retroactive Waiver of the Cancellation Fee September 1, 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 August 27, 2009, NASDAQ OMX PHLX, Inc. (‘‘Phlx’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘SEC’’ or ‘‘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 retroactively waive the Cancellation Fee for the month of July 2009 and issue a rebate to member organizations for Cancellation Fees that were assessed in July 2009. The text of the proposed rule change is available on the Exchange’s Website at https://nasdaqomxphlx. cchwallstreet.com/NASDAQOMXPHLX/ 15 17 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 1 15 E:\FR\FM\08SEN1.SGM 08SEN1 Federal Register / Vol. 74, No. 172 / Tuesday, September 8, 2009 / Notices 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 The purpose of the proposed rule change is to rebate monies previously assessed for the Cancellation Fee in July 2009 to all member organizations. During the month of July 2009, member organizations were assessed $2.10 per order for each cancelled electronicallydelivered 3 order in excess of the number of orders executed on the Exchange by a member organization in a given month.4 The Exchange calculates the Cancellation Fee by aggregating all orders and cancels received by the Exchange and totaling those orders by member organization. The Exchange aggregates and counts as one executed customer 5 option order all customer orders from the same member organization that are executed in the same series on the same side of the market at the same price within a 300 second period.6 The following order 3 See Exchange Rule 1080. Securities Exchange Act Release No. 60046 (June 4, 2009), 74 FR 28083 (June 12, 2009) (SR– Phlx–2009–44) (assessing $2.10 per order for each cancelled electronically-delivered order and limit the applicability of the Cancellation Fee to cancelled electronically delivered customer orders.) 5 See e.g. Exchange Rule 1080(b)(i)(A) which defines customer order as ‘‘* * * is any order entered on behalf of a public customer, and does not include any order entered for the account of a broker-dealer, or any account in which a brokerdealer or an associated person of a broker-dealer has any direct or indirect interest.’’ 6 See Securities Exchange Act Release No. 60188 (June 29, 2009), 74 FR 32986 (July 9, 2009) (SR– Phlx–2009–48) (aggregating options orders within a specified time period for the purpose of assessing the Cancellation Fee). At least 500 cancellations must be made in a given month by a member organization in order for a member organization to be assessed the Cancellation Fee. The Cancellation Fee is not assessed in a month in which fewer than 500 electronically-delivered orders are cancelled. jlentini on DSKJ8SOYB1PROD with NOTICES 4 See VerDate Nov<24>2008 17:32 Sep 04, 2009 Jkt 217001 activity is exempt from the Cancellation Fee: (i) Pre-market cancellations 7 (ii) Complex Orders 8 that are submitted electronically; (iii) unfilled Immediateor-Cancel 9 customer orders; and (iv) cancelled customer orders that improved the Exchange’s prevailing bid or offer (PBBO) market at the time the customer orders were received by the Exchange. The Exchange assessed the applicable Cancellation Fee of $2.10 per order on member organizations, as specified above, during the month of July 2009. The Exchange believes that recent changes to the Cancellation Fee may have created confusion among its members as to the applicability of the fee and/or its calculation. The Exchange has explained the current fee applicability to its member organizations 10 and as a result would propose to retroactively waive the Cancellation Fee for the month of July 2009 and issue a rebate to all member organizations for Cancellation fees assessed in July 2009. The Exchange believes that member organizations have been adequately educated as to the Exchange’s current Cancellation Fee and its applicability for future assessments. Simple cancels and cancel-replacement orders are the types of orders that are counted when calculating the number of electronically-delivered orders. (A cancel-replacement order is a contingency order consisting of two or more parts which require the immediate cancellation of a previously received order prior to the replacement of a new order with new terms and conditions. If the previously placed order is already filled partially or in its entirety the replacement order is automatically canceled or reduced by such number.) See Exchange Rule 1066(c)(7). Also, premarket cancellations are not included in the calculation of the Cancellation Fee as well as Complex Orders that are submitted electronically. See Securities Exchange Act Release Nos. 53226 (February 3, 2006), 71 FR 7602 (February 13, 2006) (SR–Phlx–2005–92); and 53670 (April 18, 2006), 71 FR 21087 (April 24, 2006) (SR–Phlx–2006–21). 7 See Securities Exchange Act Release Nos. 53226 (February 3, 2006), 71 FR 7602 (February 13, 2006) (SR–Phlx–2005–92); and 53670 (April 18, 2006), 71 FR 21087 (April 24, 2006) (SR–Phlx–2006–21). See also Securities Exchange Act Release No. 60046 (June 4, 2009), 74 FR 28083 (June 12, 2009) (SR– Phlx–2009–44). 8 A Complex Order is composed of two or more option components and is priced as a single order (a ‘‘Complex Order Strategy’’) on a net debit or net credit basis. 9 An Immediate-or-Cancel (IOC) order is a limit order that is to be executed in whole or in part upon receipt. Any portion not so executed shall be cancelled. 10 NASDAQ OMX PHLX staff contacted all member organizations who were assessed a Cancellation Fee in July 2009 concerning the applicability and calculation of this fee prior to August 1, 2009. Additionally, the Exchange produces a daily cancellation fee reconciliation report as a tool for member organizations to monitor their cancel volume and potential charges. PO 00000 Frm 00186 Fmt 4703 Sfmt 4703 46265 2. Statutory Basis The Exchange believes that its proposal to amend its schedule of fees is consistent with Section 6(b) of the Act 11 in general, and furthers the objectives of Section 6(b)(4) of the Act 12 in particular, in that it is an equitable allocation of reasonable fees and other charges among Exchange members. The Exchange believes that the proposal to retroactively waive the Cancellation Fee for the month of July 2009 and issue a rebate to all member organizations for fees previously assessed in July 2009 is fair and equitable in that the waiver will apply to all member organizations. The Exchange believes that it has educated its members as to the applicability of the current Cancellation Fee and any confusion has been remedied for future assessment of this fee. 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 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 either solicited or received. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act 13 and paragraph (f)(2) of Rule 19b–4 14 thereunder. 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: 11 15 U.S.C. 78f(b). U.S.C. 78f(b)(4). 13 15 U.S.C. 78s(b)(3)(A)(ii). 14 17 CFR 240.19b–4(f)(2). 12 15 E:\FR\FM\08SEN1.SGM 08SEN1 46266 Federal Register / Vol. 74, No. 172 / Tuesday, September 8, 2009 / Notices 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 Number SR–Phlx–2009–76 on the subject line. Paper Comments SECURITIES AND EXCHANGE COMMISSION [Release No. 34–60603; File No. SR–BX– 2009–049] Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Correct an Error in Rule 7018 • Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090. September 1, 2009 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 the 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–Phlx-2009–76 and should be submitted on or before September 29, 2009. BX is filing a proposed rule change to correct a typographical error in Rule 7018. The text of the proposed rule change is attached as Exhibit 5 3 and is available at https:// nasdaqomxbx.cchwallstreet.com. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.15 Florence E. Harmon, Deputy Secretary. [FR Doc. E9–21611 Filed 9–4–09; 8:45 am] BX is submitting this filing to correct a typographical error in Rule 7018.4 In jlentini on DSKJ8SOYB1PROD with NOTICES 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 August 17, 2009, NASDAQ OMX BX, Inc. All submissions should refer to File (‘‘BX’’) filed with the Securities and Number SR–Phlx–2009–76. This file Exchange Commission (‘‘Commission’’) number should be included on the the proposed rule change as described subject line if e-mail is used. To help the in Items I, II, and III below, which Items Commission process and review your have been prepared by the Exchange. comments more efficiently, please use The Commission is publishing this only one method. The Commission will notice to solicit comments on the post all comments on the Commission’s proposed rule from interested persons. Internet Web site (https://www.sec.gov/ I. Self-Regulatory Organization’s rules/sro.shtml). Copies of the Statement of the Terms of Substance of submission, all subsequent the Proposed Rule Change amendments, all written statements BILLING CODE 8010–01–P 15 17 CFR 200.30–3(a)(12). VerDate Nov<24>2008 17:32 Sep 04, 2009 Jkt 217001 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 1 15 U.S.C. 78s(b)(1). CFR 240.19b–4. 3 The Commission notes that Exhibit 5 is attached to the filing, but is not attached to this Notice. 4 The Commission notes that, as with all filings submitted under Section 19(b)(3)(A) of the Act, the filing is effective on the date it was filed, in this case August 17, 2009. 2 17 PO 00000 Frm 00187 Fmt 4703 Sfmt 4703 SR–BX–2009–018,5 BX modified its pricing for execution of orders in securities listed on The NASDAQ Stock Market (‘‘NASDAQ’’) and the New York Stock Exchange (‘‘NYSE’’) by, among other things, replacing a charge to access liquidity of $0.0014 per share executed with a credit of $0.0006 per share executed. This change was accurately described in the ‘‘Purpose’’ section of BX’s Form 19b–4 filing,6 in the Commission’s notice of the filing on the SEC Web site 7 and in the Federal Register,8 in widely disseminated announcements of the pricing change,9 and in the pricing schedule that appears on BX’s market Web site.10 However, due to a typographical error, the credit incorrectly appeared as ‘‘$0.006’’ in Exhibit 5 to the filing. Accordingly, BX is submitting this filing to correct the typographical error. BX has been billing members in accordance with the correct fee since the effective date of the change in April 2009, and accordingly believes that all of its members that trade on the NASDAQ OMX BX Equities System are cognizant of the correct fee. 2. Statutory Basis BX believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,11 in general, and with Section 6(b)(5) of the Act,12 in particular, in that it is designed to remove impediments to and perfect the mechanism of a fee [sic] and open market and a national market system. The proposed rule change corrects a typographical error in BX Rule 7018. B. Self-Regulatory Organization’s Statement on Burden on Competition BX 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. 5 Securities Exchange Act Release No. 59682 (April 1, 2009), 74 FR 16015 (April 8, 2009) (SR– BX–2009–018). 6 See https://nasdaqomxbx.cchwallstreet.com/ NASDAQOMXBX/pdf/bx-filings/2009/SR–BX– 2009–018.pdf. 7 See https://www.sec.gov/rules/sro/bx/2009/3459682.pdf. 8 See Securities Exchange Act Release No. 59682 (April 1, 2009), 74 FR 16015 (April 8, 2009) (SR– BX–2009–018). 9 See https://www.nasdaqtrader.com/ TraderNews.aspx?id=ETA2009–16. 10 See https://www.nasdaqtrader.com/ Trader.aspx?id=bx_pricing. 11 15 U.S.C. 78f. 12 15 U.S.C. 78f(b)(5). E:\FR\FM\08SEN1.SGM 08SEN1

Agencies

[Federal Register Volume 74, Number 172 (Tuesday, September 8, 2009)]
[Notices]
[Pages 46264-46266]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-21611]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-60606; File No. SR-Phlx-2009-76]


Self-Regulatory Organizations; Notice of Filing and Immediate 
Effectiveness of Proposed Rule Change by NASDAQ OMX PHLX, Inc. Relating 
to a Retroactive Waiver of the Cancellation Fee

September 1, 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 August 27, 2009, NASDAQ OMX PHLX, Inc. (``Phlx'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``SEC'' or ``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 retroactively waive the Cancellation Fee 
for the month of July 2009 and issue a rebate to member organizations 
for Cancellation Fees that were assessed in July 2009.
    The text of the proposed rule change is available on the Exchange's 
Website at https://nasdaqomxphlx. cchwallstreet.com/NASDAQOMXPHLX/

[[Page 46265]]

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
    The purpose of the proposed rule change is to rebate monies 
previously assessed for the Cancellation Fee in July 2009 to all member 
organizations. During the month of July 2009, member organizations were 
assessed $2.10 per order for each cancelled electronically-delivered 
\3\ order in excess of the number of orders executed on the Exchange by 
a member organization in a given month.\4\ The Exchange calculates the 
Cancellation Fee by aggregating all orders and cancels received by the 
Exchange and totaling those orders by member organization. The Exchange 
aggregates and counts as one executed customer \5\ option order all 
customer orders from the same member organization that are executed in 
the same series on the same side of the market at the same price within 
a 300 second period.\6\ The following order activity is exempt from the 
Cancellation Fee: (i) Pre-market cancellations \7\ (ii) Complex Orders 
\8\ that are submitted electronically; (iii) unfilled Immediate-or-
Cancel \9\ customer orders; and (iv) cancelled customer orders that 
improved the Exchange's prevailing bid or offer (PBBO) market at the 
time the customer orders were received by the Exchange.
---------------------------------------------------------------------------

    \3\ See Exchange Rule 1080.
    \4\ See Securities Exchange Act Release No. 60046 (June 4, 
2009), 74 FR 28083 (June 12, 2009) (SR-Phlx-2009-44) (assessing 
$2.10 per order for each cancelled electronically-delivered order 
and limit the applicability of the Cancellation Fee to cancelled 
electronically delivered customer orders.)
    \5\ See e.g. Exchange Rule 1080(b)(i)(A) which defines customer 
order as ``* * * is any order entered on behalf of a public 
customer, and does not include any order entered for the account of 
a broker-dealer, or any account in which a broker-dealer or an 
associated person of a broker-dealer has any direct or indirect 
interest.''
    \6\ See Securities Exchange Act Release No. 60188 (June 29, 
2009), 74 FR 32986 (July 9, 2009) (SR-Phlx-2009-48) (aggregating 
options orders within a specified time period for the purpose of 
assessing the Cancellation Fee). At least 500 cancellations must be 
made in a given month by a member organization in order for a member 
organization to be assessed the Cancellation Fee. The Cancellation 
Fee is not assessed in a month in which fewer than 500 
electronically-delivered orders are cancelled. Simple cancels and 
cancel-replacement orders are the types of orders that are counted 
when calculating the number of electronically-delivered orders. (A 
cancel-replacement order is a contingency order consisting of two or 
more parts which require the immediate cancellation of a previously 
received order prior to the replacement of a new order with new 
terms and conditions. If the previously placed order is already 
filled partially or in its entirety the replacement order is 
automatically canceled or reduced by such number.) See Exchange Rule 
1066(c)(7). Also, pre-market cancellations are not included in the 
calculation of the Cancellation Fee as well as Complex Orders that 
are submitted electronically. See Securities Exchange Act Release 
Nos. 53226 (February 3, 2006), 71 FR 7602 (February 13, 2006) (SR-
Phlx-2005-92); and 53670 (April 18, 2006), 71 FR 21087 (April 24, 
2006) (SR-Phlx-2006-21).
    \7\ See Securities Exchange Act Release Nos. 53226 (February 3, 
2006), 71 FR 7602 (February 13, 2006) (SR-Phlx-2005-92); and 53670 
(April 18, 2006), 71 FR 21087 (April 24, 2006) (SR-Phlx-2006-21). 
See also Securities Exchange Act Release No. 60046 (June 4, 2009), 
74 FR 28083 (June 12, 2009) (SR-Phlx-2009-44).
    \8\ A Complex Order is composed of two or more option components 
and is priced as a single order (a ``Complex Order Strategy'') on a 
net debit or net credit basis.
    \9\ An Immediate-or-Cancel (IOC) order is a limit order that is 
to be executed in whole or in part upon receipt. Any portion not so 
executed shall be cancelled.
---------------------------------------------------------------------------

    The Exchange assessed the applicable Cancellation Fee of $2.10 per 
order on member organizations, as specified above, during the month of 
July 2009. The Exchange believes that recent changes to the 
Cancellation Fee may have created confusion among its members as to the 
applicability of the fee and/or its calculation. The Exchange has 
explained the current fee applicability to its member organizations 
\10\ and as a result would propose to retroactively waive the 
Cancellation Fee for the month of July 2009 and issue a rebate to all 
member organizations for Cancellation fees assessed in July 2009. The 
Exchange believes that member organizations have been adequately 
educated as to the Exchange's current Cancellation Fee and its 
applicability for future assessments.
---------------------------------------------------------------------------

    \10\ NASDAQ OMX PHLX staff contacted all member organizations 
who were assessed a Cancellation Fee in July 2009 concerning the 
applicability and calculation of this fee prior to August 1, 2009. 
Additionally, the Exchange produces a daily cancellation fee 
reconciliation report as a tool for member organizations to monitor 
their cancel volume and potential charges.
---------------------------------------------------------------------------

2. Statutory Basis
    The Exchange believes that its proposal to amend its schedule of 
fees is consistent with Section 6(b) of the Act \11\ in general, and 
furthers the objectives of Section 6(b)(4) of the Act \12\ in 
particular, in that it is an equitable allocation of reasonable fees 
and other charges among Exchange members. The Exchange believes that 
the proposal to retroactively waive the Cancellation Fee for the month 
of July 2009 and issue a rebate to all member organizations for fees 
previously assessed in July 2009 is fair and equitable in that the 
waiver will apply to all member organizations. The Exchange believes 
that it has educated its members as to the applicability of the current 
Cancellation Fee and any confusion has been remedied for future 
assessment of this fee.
---------------------------------------------------------------------------

    \11\ 15 U.S.C. 78f(b).
    \12\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

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 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 either solicited or received.

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

    The foregoing rule change has become effective pursuant to Section 
19(b)(3)(A)(ii) of the Act \13\ and paragraph (f)(2) of Rule 19b-4 \14\ 
thereunder. 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.
---------------------------------------------------------------------------

    \13\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \14\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

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:

[[Page 46266]]

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 Number SR-Phlx-2009-76 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-Phlx-2009-76. 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, 100 F Street, NE., 
Washington, DC 20549, on official business days between the hours of 10 
a.m. and 3 p.m. Copies of the 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-Phlx-2009-76 and 
should be submitted on or before September 29, 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. E9-21611 Filed 9-4-09; 8:45 am]
BILLING CODE 8010-01-P
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