Options Price Reporting Authority; Notice of Filing and Immediate Effectiveness of Proposed Amendment to the Plan To Revise the Definition of the Term “Nonprofessional”, 37720-37722 [2012-15261]
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37720
Federal Register / Vol. 77, No. 121 / Friday, June 22, 2012 / Notices
Applicants’ Conditions
Applicants agree that any order
granting the requested relief will be
subject to the following conditions:
1. Before a Subadvised Fund may rely
on the requested order, the operation of
the Subadvised Fund in the manner
described in the application, will be
approved by a majority of the
Subadvised Fund’s outstanding voting
securities, as defined in the Act, or in
the case of a Subadvised Fund whose
public shareholders purchase shares on
the basis of a prospectus containing the
disclosure contemplated by condition 2
below, by the initial shareholder before
such Subadvised Fund’s shares are
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2. The prospectus for each
Subadvised Fund will disclose the
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to oversight by the Board, to oversee the
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3. Subadvised Funds will inform
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4. The Manager will not enter into a
Sub-Advisory Agreement with any subadviser that is not a Wholly-Owned
Sub-Adviser without that agreement,
including the compensation to be paid
thereunder, being approved by the
shareholders of the applicable
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6. Whenever a sub-adviser change is
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sub-adviser that is an affiliated person
of the Manager derives an inappropriate
advantage.
7. The Manager will provide general
management services to each
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Subadvised Fund, including overall
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each Subadvised Fund’s assets and,
subject to review and approval of the
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evaluate, select and recommend
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8. No trustee or officer of the Trust or
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ownership of interests in the Manager or
any entity, except a Wholly-Owned SubAdviser, that controls, is controlled by,
or is under common control with the
Manager.
9. In the event the Commission adopts
a rule under the Act providing
substantially similar relief to that in the
order requested in the application, the
requested order will expire on the
effective date of that rule.
For the Commission, by the Division of
Investment Management, under delegated
authority.
Kevin M. O’Neill,
Deputy Secretary.
Securities and Exchange Commission
(‘‘Commission’’) an amendment to the
Plan for Reporting of Consolidated
Options Last Sale Reports and
Quotation Information (‘‘OPRA Plan’’).3
The proposed amendment would revise
OPRA’s definition of the term
‘‘Nonprofessional.’’ The Commission is
publishing this notice to solicit
comments from interested persons on
the proposed OPRA Plan amendment.
I. Description and Purpose of the Plan
Amendment
The purpose of the proposed
amendment is to revise OPRA’s
definition of the term
‘‘Nonprofessional.’’
A person may become an OPRA
‘‘Subscriber’’ in one of two ways.4 The
first way is that the person may sign a
‘‘Professional Subscriber Agreement’’
directly with OPRA. In this case, the
person pays fees directly to OPRA on
the basis of the number of the person’s
‘‘devices’’ and/or ‘‘UserIDs.’’
The second way is that the person
may enter into a ‘‘Subscriber
Agreement,’’ not directly with OPRA,
but with an OPRA ‘‘Vendor’’—an entity
that has entered into a ‘‘Vendor
Agreement’’ with OPRA authorizing the
entity to redistribute OPRA Data to third
persons. In this case, OPRA collects fees
from the Vendor with respect to the
receipt of the OPRA Data by the person
entering into the Subscriber Agreement.
If the person qualifies as a
‘‘Nonprofessional Subscriber,’’ OPRA
caps the fee that it charges the Vendor,
and the fees that the person is required
to pay to the Vendor may be less than
they would be if the person is classified
as a ‘‘Professional Subscriber.’’ 5
[FR Doc. 2012–15262 Filed 6–21–12; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–67210; File No. SR–OPRA–
2012–03]
Options Price Reporting Authority;
Notice of Filing and Immediate
Effectiveness of Proposed Amendment
to the Plan To Revise the Definition of
the Term ‘‘Nonprofessional’’
June 15, 2012.
Pursuant to Section 11A of the
Securities Exchange Act of 1934
(‘‘Act’’) 1 and Rule 608 thereunder,2
notice is hereby given that on May 31,
2012, the Options Price Reporting
Authority (‘‘OPRA’’) submitted to the
1 15
2 17
PO 00000
U.S.C. 78k–1.
CFR 242.608.
Frm 00069
Fmt 4703
Sfmt 4703
3 The OPRA Plan is a national market system plan
approved by the Commission pursuant to Section
11A of the Act and Rule 608 thereunder (formerly
Rule 11Aa3–2). See Securities Exchange Act
Release No. 17638 (March 18, 1981), 22 SE.C.
Docket 484 (March 31, 1981). The full text of the
OPRA Plan is available at https://
www.opradata.com.
The OPRA Plan provides for the collection and
dissemination of last sale and quotation information
on options that are traded on the participant
exchanges. The ten participants to the OPRA Plan
are BATS Exchange, Inc., BOX Options Exchange,
LLC, Chicago Board Options Exchange,
Incorporated, C2 Options Exchange, Incorporated,
International Securities Exchange, LLC, NASDAQ
OMX BX, Inc., NASDAQ OMX PHLX, Inc.,
NASDAQ Stock Market LLC, NYSE Amex, LLC
n/k/a NYSE MKT LLC, and NYSE Arca, Inc.
4 OPRA defines a ‘‘Subscriber,’’ in general, as an
entity or person that receives OPRA Data for the
person’s own use.
5 OPRA’s Fee Schedule provides that a Vendor
may determine the fee that it pays with respect to
its distribution of current OPRA data to a
Nonprofessional Subscriber in one of two ways:
Either the Vendor may pay OPRA’s flat monthly
Nonprofessional Subscriber Fee (currently $1.25/
month), or the Vendor may count the
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Federal Register / Vol. 77, No. 121 / Friday, June 22, 2012 / Notices
wreier-aviles on DSK7SPTVN1PROD with NOTICES
OPRA’s current definition of the term
‘‘Nonprofessional’’ is set out in an
‘‘Addendum for Nonprofessionals’’ that
is attached to its Electronic Form of
Subscriber Agreement and its Hardcopy
Form of Subscriber Agreement. These
two forms, in turn, are Attachments B–
1 and B–2 to OPRA’s form of Vendor
Agreement.6
One element of OPRA’s current
definition of the term
‘‘Nonprofessional’’ specifies that to
qualify as a ‘‘Nonprofessional’’ a person
must not be ‘‘a securities broker-dealer,
investment advisor, futures commission
merchant, commodities introducing
broker or commodity trading advisor,
member of a securities exchange or
association or futures contract market,
or an owner, partner, or associated
person of any of the foregoing.’’ 7 For
persons employed by securities brokerdealers, OPRA has interpreted the term
‘‘associated person’’ in this language
with reference to the definition of the
term ‘‘associated person of a broker or
dealer’’ in Section 3(a)(18) of the
Securities Exchange Act of 1934 (the
‘‘Act’’).8 That definition includes within
its scope ‘‘any employee’’ of a broker or
dealer, and accordingly employees of
broker/dealers have not been eligible to
be Nonprofessionals.
Two inconsistencies created by this
language have been brought to OPRA’s
attention. First, OPRA’s language on this
point is different from the counterpart
language in the definition of
‘‘Nonprofessional’’ used by the
Consolidated Tape Association (‘‘CTA’’)
and the ‘‘Joint Self-Regulatory
Organization Plan Governing the
Collection, Consolidation, and
Dissemination of Quotation and
Transaction Information for NasdaqListed Securities Traded on Exchanges
Nonprofessional Subscriber’s queries for OPRA data
and pay Usage-based Vendor Fees based on the
actual usage of OPRA data by the Nonprofessional
Subscriber, subject to a cap that OPRA has always
set at the amount of the flat Nonprofessional
Subscriber Fee.
6 These forms are posted on OPRA’s Web site,
www.opradata.com. OPRA most recently amended
them in File No. SR–OPRA–2008–02; Release No.
34–58434 (August 27, 2008).
7 See Paragraph 1(c) in each Addendum for
Nonprofessionals (emphasis added).
8 The complete definition of the term ‘‘associated
person’’ in the Act is: ‘‘The term ‘‘person associated
with a broker or dealer’’ or ‘‘associated person of
a broker or dealer’’ means any partner, officer,
director, or branch manager of such broker or dealer
(or any person occupying a similar status or
performing similar functions), any person directly
or indirectly controlling, controlled by, or under
common control with such broker or dealer, or any
employee of such broker or dealer, except that any
person associated with a broker or dealer whose
functions are solely clerical or ministerial shall not
be included in the meaning of such term for
purposes of section 15(b) of this title (other than
paragraph (6) thereof).’’ (Emphasis added.)
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on an Unlisted Trading Privilege Basis’’
(‘‘Nasdaq/UTP Plan’’). CTA and the
Nasdaq/UTP Plan define the term
‘‘Nonprofessional’’ substantially
identically, and by reference to whether
the person seeking to qualify as a
Nonprofessional is required to register
in some capacity, not by reference to
whether the person is an associated
person of an entity or person that is
required to register in some capacity.9
Second, because the definition of the
term ‘‘associated person’’ is defined
differently in the commodity futures
industry, a person who is employed by
a commodity futures merchant (subject
to regulation under the Commodity
Exchange Act) may be able to qualify as
a Nonprofessional under the language of
the current OPRA definition even
though a person who is employed by a
securities broker to perform identical
functions cannot.10
In order to eliminate these
inconsistencies, OPRA proposes to
replace paragraphs 1(c) and 1(d) of each
Addendum for Nonprofessionals with a
new paragraph 1(c) that tracks the
counterpart language used by CTA and
the UTP/Nasdaq Plan. In essence the
9 The term ‘‘Nonprofessional Subscriber’’ is
defined by CTA as follows:
‘‘Nonprofessional Subscriber’’ refers to any
natural person who receives market data solely for
his/her personal, non-business use and who is not
a Securities Professional, meaning that the person
is:
(a) Not registered or qualified with the Securities
and Exchange Commission, the Commodities
Futures Trading Commission, any state securities
agency, any securities exchange/association, or any
commodities/futures contract market/association
(b) Not engaged as an ‘‘investment adviser,’’ as
that term is defined in Section 202(a)(11) of the
Investment Advisers Act of 1940 (whether or not
registered or qualified under that Act); and
(c) Not employed by a bank or other organization
exempt from registration under Federal and/or state
securities laws to perform functions that would
require him/hr to be so registered or qualified if he/
she were to perform such functions for an
organization not so exempt.
See the CTA ‘‘Nonprofessional Subscriber
Policy,’’ available at https://www.nyxdata.com/Docs/
Market-Data/Policies.
10 For example, the term ‘‘Associated Person’’ is
defined in the Regulations of the Commodity
Futures Trading Commission (the ‘‘CFTC’’) with
respect to a futures commission merchant as
follows:
(aa) Associated person. This term means any
natural person who is associated in any of the
following capacities with:
(1) A futures commission merchant as a partner,
officer, or employee (or any natural person
occupying a similar status or performing similar
functions), in any capacity which involves (i) the
solicitation or acceptance of customers’ or option
customers’ orders (other than in a clerical capacity)
or (ii) the supervision of any person or persons so
engaged[.]
17 CFR 1.3(aa). The definition defines the term
‘‘associated person’’ in a similar manner for natural
persons associated with other entities that are
subject to regulation under the Commodity
Exchange Act.
PO 00000
Frm 00070
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Sfmt 4703
37721
revised language will allow a person
who is not himself or herself registered
in some capacity with the Commission
or the CFTC, but who is employed by
an entity that is so registered, to qualify
as a ‘‘Nonprofessional’’ for purposes of
the person’s personal, non-businessrelated, investment activities. OPRA
believes that the changes that it is
proposing in its definition of the term
‘‘Nonprofessional’’ will add clarity to
the definition and more closely align the
language of the definition with the
definitions used by CTA and the UTP/
Nasdaq Plan.
OPRA believes that, in the vast
majority of cases, its definition of the
term ‘‘Nonprofessional’’ and those of
CTA and the UTP/Nasdaq Plan have
always classified Subscribers as
Professionals or Nonprofessionals
consistently. OPRA believes that
revising its definition in the manner
described in this filing will reduce the
small subset of cases in which its
definition and those of CTA and the
UTP/Nasdaq Plan generate different
results.
The text of the proposed amendment
to the OPRA Plan is available at OPRA,
the Commission’s Public Reference
Room, https://opradata.com, and on the
Commission’s Web site at www.sec.gov.
II. Implementation of the OPRA Plan
Amendment
OPRA is proposing to begin to permit
Vendors to use revised versions of its
Electronic Form of Subscriber
Agreement and its Hardcopy Form of
Subscriber Agreement as soon as this
filing has been approved by the
Commission in accordance with
paragraph (b)(1) of Rule 608 of
Regulation NMS under the Securities
Exchange Act of 1934. OPRA will send
notice to Vendors advising them of the
change and informing them that, if they
believe that they have Subscribers who
can be classified as Nonprofessionals
under the revised definition, they may
reclassify them after the Subscribers
have agreed to a new Subscriber
Agreement that includes a revised
Addendum for Nonprofessionals. The
change in the definition will not require
Vendors to take any action with respect
to their existing populations of
Nonprofessionals, since all persons who
qualify as Nonprofessionals under
OPRA’s current definition will continue
to qualify under the revised definition.
III. Solicitation of Comments
Interested persons are invited to
submit written data, views, and
arguments concerning the foregoing,
including whether the proposed OPRA
Plan amendment is consistent with the
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Federal Register / Vol. 77, No. 121 / Friday, June 22, 2012 / Notices
Act. Comments may be submitted by
any of the following methods:
SECURITIES AND EXCHANGE
COMMISSION
Electronic Comments
• Use the Commission’s Internet
comment form (https://www.sec.gov/
rules/sro.shtml); or
• Send an email to rulecomments@sec.gov. Please include File
No. SR–OPRA–2012–03 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.
wreier-aviles on DSK7SPTVN1PROD with NOTICES
All submissions should refer to File
Number SR–OPRA–2012–03. This file
number should be included on the
subject line if email 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 plan
amendment that are filed with the
Commission, and all written
communications relating to the
proposed plan amendment 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 Web site viewing and
printing in the Commission’s Public
Reference Room, 100 F Street NE.,
Washington, DC 20549, on official
business days between the hours of 10
a.m. and 3 p.m. Copies of such filing
also will be available for inspection and
copying at the principal office of OPRA.
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–OPRA–2012–03 and should
be submitted on or before July 13, 2012.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.11
Kevin M. O’Neill,
Deputy Secretary.
[Release No. 34–67211; File No. SR–ISE–
2012–53]
Self-Regulatory Organizations;
International Securities Exchange,
LLC; Notice of Filing and Immediate
Effectiveness of Proposed Rule
Change To Eliminate the Rules and
Fees Related to the Second Market
June 18, 2012.
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 6,
2012, the International Securities
Exchange, LLC (the ‘‘Exchange’’ or the
‘‘ISE’’) 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 selfregulatory organization. The
Commission is publishing this notice to
solicit comments on the proposed rule
change from interested persons.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange proposes to eliminate
the rules and fees related to the listing
and trading of low-volume options
classes in what is known as the Second
Market. The text of the proposed rule
change is available on the Exchange’s
Internet Web site at https://www.ise.com,
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
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 these statements may be examined at
the places specified in Item IV below.
The self-regulatory organization has
prepared summaries, set forth in
sections A, B and C below, of the most
significant aspects of such statements.
[FR Doc. 2012–15261 Filed 6–21–12; 8:45 am]
BILLING CODE 8011–01–P
U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
CFR 200.30–3(a)(29).
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1. Purpose
When the ISE was launched in 2000,
it began trading options on
approximately 900 equity securities that
qualified for options trading pursuant to
the listing standards contained in ISE
Rule 502. The listing standards for
underlying securities is uniform across
all of the options exchanges, and while
there were many additional underlying
equity securities that qualified for
options trading under these standards,
ISE did not list options on these
securities although they were traded on
one or more of the other options
exchanges. In general, the Exchange had
chosen not to list and trade these
options classes because of their low
average daily trading volume (‘‘ADV’’).
In 2006, however, the Exchange
decided to pursue this segment of the
market and adopted rules for the listing
and trading of these low-volume options
classes that qualified for listing under
Rule 502 in a ‘‘Second Market.’’ 3 While
the Exchange’s total volume modestly
increased by listing these low-volume
options classes, ISE does not believe the
separate structure has added any
appreciable value. In particular, all of
the market makers that participate in the
Second Market are also market makers
in the First Market, so the creation of
the Second Market did not attract
additional market makers. On the other
hand, the Exchange believes that the
cost associated with maintaining the
infrastructure to support the two
separate structures outweighs the
benefits of maintaining the Second
Market. Accordingly, ISE proposes to
eliminate the Second Market structure
altogether and incorporate the securities
currently traded thereunder into the
First Market.
The consolidation of securities into
the First Market will be accomplished
through database changes by the
Exchange’s Technology staff. The
Exchange notes that the elimination of
the Second Market will be seamless for
ISE Members. No action will be required
on part of ISE Members. Additionally,
options listed on the Exchange, whether
in the First Market or the Second
Market, must meet the qualification
standards in Chapter 5. The Exchange is
not making any changes to these listing
standards and all options listed on the
3 See Securities Exchange Act Release No. 54580
(October 6, 2006), 71 FR 60781 (October 16, 2006)
(SR–ISE–2006–40).
1 15
11 17
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
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]]>Agencies
[Federal Register Volume 77, Number 121 (Friday, June 22, 2012)]
[Notices]
[Pages 37720-37722]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-15261]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-67210; File No. SR-OPRA-2012-03]
Options Price Reporting Authority; Notice of Filing and Immediate
Effectiveness of Proposed Amendment to the Plan To Revise the
Definition of the Term ``Nonprofessional''
June 15, 2012.
Pursuant to Section 11A of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 608 thereunder,\2\ notice is hereby given that
on May 31, 2012, the Options Price Reporting Authority (``OPRA'')
submitted to the Securities and Exchange Commission (``Commission'') an
amendment to the Plan for Reporting of Consolidated Options Last Sale
Reports and Quotation Information (``OPRA Plan'').\3\ The proposed
amendment would revise OPRA's definition of the term
``Nonprofessional.'' The Commission is publishing this notice to
solicit comments from interested persons on the proposed OPRA Plan
amendment.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78k-1.
\2\ 17 CFR 242.608.
\3\ The OPRA Plan is a national market system plan approved by
the Commission pursuant to Section 11A of the Act and Rule 608
thereunder (formerly Rule 11Aa3-2). See Securities Exchange Act
Release No. 17638 (March 18, 1981), 22 SE.C. Docket 484 (March 31,
1981). The full text of the OPRA Plan is available at https://www.opradata.com.
The OPRA Plan provides for the collection and dissemination of
last sale and quotation information on options that are traded on
the participant exchanges. The ten participants to the OPRA Plan are
BATS Exchange, Inc., BOX Options Exchange, LLC, Chicago Board
Options Exchange, Incorporated, C2 Options Exchange, Incorporated,
International Securities Exchange, LLC, NASDAQ OMX BX, Inc., NASDAQ
OMX PHLX, Inc., NASDAQ Stock Market LLC, NYSE Amex, LLC n/k/a NYSE
MKT LLC, and NYSE Arca, Inc.
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I. Description and Purpose of the Plan Amendment
The purpose of the proposed amendment is to revise OPRA's
definition of the term ``Nonprofessional.''
A person may become an OPRA ``Subscriber'' in one of two ways.\4\
The first way is that the person may sign a ``Professional Subscriber
Agreement'' directly with OPRA. In this case, the person pays fees
directly to OPRA on the basis of the number of the person's ``devices''
and/or ``UserIDs.''
---------------------------------------------------------------------------
\4\ OPRA defines a ``Subscriber,'' in general, as an entity or
person that receives OPRA Data for the person's own use.
---------------------------------------------------------------------------
The second way is that the person may enter into a ``Subscriber
Agreement,'' not directly with OPRA, but with an OPRA ``Vendor''--an
entity that has entered into a ``Vendor Agreement'' with OPRA
authorizing the entity to redistribute OPRA Data to third persons. In
this case, OPRA collects fees from the Vendor with respect to the
receipt of the OPRA Data by the person entering into the Subscriber
Agreement. If the person qualifies as a ``Nonprofessional Subscriber,''
OPRA caps the fee that it charges the Vendor, and the fees that the
person is required to pay to the Vendor may be less than they would be
if the person is classified as a ``Professional Subscriber.'' \5\
---------------------------------------------------------------------------
\5\ OPRA's Fee Schedule provides that a Vendor may determine the
fee that it pays with respect to its distribution of current OPRA
data to a Nonprofessional Subscriber in one of two ways: Either the
Vendor may pay OPRA's flat monthly Nonprofessional Subscriber Fee
(currently $1.25/month), or the Vendor may count the Nonprofessional
Subscriber's queries for OPRA data and pay Usage-based Vendor Fees
based on the actual usage of OPRA data by the Nonprofessional
Subscriber, subject to a cap that OPRA has always set at the amount
of the flat Nonprofessional Subscriber Fee.
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[[Page 37721]]
OPRA's current definition of the term ``Nonprofessional'' is set
out in an ``Addendum for Nonprofessionals'' that is attached to its
Electronic Form of Subscriber Agreement and its Hardcopy Form of
Subscriber Agreement. These two forms, in turn, are Attachments B-1 and
B-2 to OPRA's form of Vendor Agreement.\6\
---------------------------------------------------------------------------
\6\ These forms are posted on OPRA's Web site, www.opradata.com.
OPRA most recently amended them in File No. SR-OPRA-2008-02; Release
No. 34-58434 (August 27, 2008).
---------------------------------------------------------------------------
One element of OPRA's current definition of the term
``Nonprofessional'' specifies that to qualify as a ``Nonprofessional''
a person must not be ``a securities broker-dealer, investment advisor,
futures commission merchant, commodities introducing broker or
commodity trading advisor, member of a securities exchange or
association or futures contract market, or an owner, partner, or
associated person of any of the foregoing.'' \7\ For persons employed
by securities broker-dealers, OPRA has interpreted the term
``associated person'' in this language with reference to the definition
of the term ``associated person of a broker or dealer'' in Section
3(a)(18) of the Securities Exchange Act of 1934 (the ``Act'').\8\ That
definition includes within its scope ``any employee'' of a broker or
dealer, and accordingly employees of broker/dealers have not been
eligible to be Nonprofessionals.
---------------------------------------------------------------------------
\7\ See Paragraph 1(c) in each Addendum for Nonprofessionals
(emphasis added).
\8\ The complete definition of the term ``associated person'' in
the Act is: ``The term ``person associated with a broker or dealer''
or ``associated person of a broker or dealer'' means any partner,
officer, director, or branch manager of such broker or dealer (or
any person occupying a similar status or performing similar
functions), any person directly or indirectly controlling,
controlled by, or under common control with such broker or dealer,
or any employee of such broker or dealer, except that any person
associated with a broker or dealer whose functions are solely
clerical or ministerial shall not be included in the meaning of such
term for purposes of section 15(b) of this title (other than
paragraph (6) thereof).'' (Emphasis added.)
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Two inconsistencies created by this language have been brought to
OPRA's attention. First, OPRA's language on this point is different
from the counterpart language in the definition of ``Nonprofessional''
used by the Consolidated Tape Association (``CTA'') and the ``Joint
Self-Regulatory Organization Plan Governing the Collection,
Consolidation, and Dissemination of Quotation and Transaction
Information for Nasdaq-Listed Securities Traded on Exchanges on an
Unlisted Trading Privilege Basis'' (``Nasdaq/UTP Plan''). CTA and the
Nasdaq/UTP Plan define the term ``Nonprofessional'' substantially
identically, and by reference to whether the person seeking to qualify
as a Nonprofessional is required to register in some capacity, not by
reference to whether the person is an associated person of an entity or
person that is required to register in some capacity.\9\ Second,
because the definition of the term ``associated person'' is defined
differently in the commodity futures industry, a person who is employed
by a commodity futures merchant (subject to regulation under the
Commodity Exchange Act) may be able to qualify as a Nonprofessional
under the language of the current OPRA definition even though a person
who is employed by a securities broker to perform identical functions
cannot.\10\
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\9\ The term ``Nonprofessional Subscriber'' is defined by CTA as
follows:
``Nonprofessional Subscriber'' refers to any natural person who
receives market data solely for his/her personal, non-business use
and who is not a Securities Professional, meaning that the person
is:
(a) Not registered or qualified with the Securities and Exchange
Commission, the Commodities Futures Trading Commission, any state
securities agency, any securities exchange/association, or any
commodities/futures contract market/association
(b) Not engaged as an ``investment adviser,'' as that term is
defined in Section 202(a)(11) of the Investment Advisers Act of 1940
(whether or not registered or qualified under that Act); and
(c) Not employed by a bank or other organization exempt from
registration under Federal and/or state securities laws to perform
functions that would require him/hr to be so registered or qualified
if he/she were to perform such functions for an organization not so
exempt.
See the CTA ``Nonprofessional Subscriber Policy,'' available at
https://www.nyxdata.com/Docs/Market-Data/Policies.
\10\ For example, the term ``Associated Person'' is defined in
the Regulations of the Commodity Futures Trading Commission (the
``CFTC'') with respect to a futures commission merchant as follows:
(aa) Associated person. This term means any natural person who
is associated in any of the following capacities with:
(1) A futures commission merchant as a partner, officer, or
employee (or any natural person occupying a similar status or
performing similar functions), in any capacity which involves (i)
the solicitation or acceptance of customers' or option customers'
orders (other than in a clerical capacity) or (ii) the supervision
of any person or persons so engaged[.]
17 CFR 1.3(aa). The definition defines the term ``associated
person'' in a similar manner for natural persons associated with
other entities that are subject to regulation under the Commodity
Exchange Act.
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In order to eliminate these inconsistencies, OPRA proposes to
replace paragraphs 1(c) and 1(d) of each Addendum for Nonprofessionals
with a new paragraph 1(c) that tracks the counterpart language used by
CTA and the UTP/Nasdaq Plan. In essence the revised language will allow
a person who is not himself or herself registered in some capacity with
the Commission or the CFTC, but who is employed by an entity that is so
registered, to qualify as a ``Nonprofessional'' for purposes of the
person's personal, non-business-related, investment activities. OPRA
believes that the changes that it is proposing in its definition of the
term ``Nonprofessional'' will add clarity to the definition and more
closely align the language of the definition with the definitions used
by CTA and the UTP/Nasdaq Plan.
OPRA believes that, in the vast majority of cases, its definition
of the term ``Nonprofessional'' and those of CTA and the UTP/Nasdaq
Plan have always classified Subscribers as Professionals or
Nonprofessionals consistently. OPRA believes that revising its
definition in the manner described in this filing will reduce the small
subset of cases in which its definition and those of CTA and the UTP/
Nasdaq Plan generate different results.
The text of the proposed amendment to the OPRA Plan is available at
OPRA, the Commission's Public Reference Room, https://opradata.com, and
on the Commission's Web site at www.sec.gov.
II. Implementation of the OPRA Plan Amendment
OPRA is proposing to begin to permit Vendors to use revised
versions of its Electronic Form of Subscriber Agreement and its
Hardcopy Form of Subscriber Agreement as soon as this filing has been
approved by the Commission in accordance with paragraph (b)(1) of Rule
608 of Regulation NMS under the Securities Exchange Act of 1934. OPRA
will send notice to Vendors advising them of the change and informing
them that, if they believe that they have Subscribers who can be
classified as Nonprofessionals under the revised definition, they may
reclassify them after the Subscribers have agreed to a new Subscriber
Agreement that includes a revised Addendum for Nonprofessionals. The
change in the definition will not require Vendors to take any action
with respect to their existing populations of Nonprofessionals, since
all persons who qualify as Nonprofessionals under OPRA's current
definition will continue to qualify under the revised definition.
III. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed OPRA
Plan amendment is consistent with the
[[Page 37722]]
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 email to rule-comments@sec.gov. Please include
File No. SR-OPRA-2012-03 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-OPRA-2012-03. This file
number should be included on the subject line if email 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 plan amendment that are
filed with the Commission, and all written communications relating to
the proposed plan amendment 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 Web site
viewing and printing in the Commission's Public Reference Room, 100 F
Street NE., Washington, DC 20549, on official business days between the
hours of 10 a.m. and 3 p.m. Copies of such filing also will be
available for inspection and copying at the principal office of OPRA.
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-OPRA-2012-03
and should be submitted on or before July 13, 2012.
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\11\ 17 CFR 200.30-3(a)(29).
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\11\
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-15261 Filed 6-21-12; 8:45 am]
BILLING CODE 8011-01-P
