

[Federal Register: May 10, 2006 (Volume 71, Number 90)]
[Notices]               
[Page 27296-27298]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10my06-110]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-53753; File No. SR-OPRA-2006-01]

 
Options Price Reporting Authority; Notice of Filing and Immediate 
Effectiveness of Proposed Amendment to the Plan for Reporting of 
Consolidated Options Last Sale Reports and Quotation Information To 
Revise OPRA's Professional Subscriber Agreement and Its Direct Circuit 
Connection Rider and Indirect Circuit Connection Rider

May 2, 2006.
    Pursuant to section 11A of the Securities Exchange Act of 1934 
(``Act'') \1\ and Rule 608 thereunder,\2\ notice is hereby given that 
on April 21, 2006, 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 OPRA 
Plan amendment would revise OPRA's Professional Subscriber Agreement 
(``PSA''), which is required to be entered into between OPRA and 
professional subscribers to options information under Section VII(c) of 
the OPRA Plan, and amend the Direct Circuit Connection Rider and 
Indirect Circuit Connection Rider to the PSA. The Commission is 
publishing this notice to solicit comments from interested persons on 
the proposed OPRA Plan amendment.
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    \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 S.E.C. Docket 484 (March 31, 
1981).
    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 six participants to the OPRA Plan are 
the American Stock Exchange LLC, the Boston Stock Exchange, Inc., 
the Chicago Board Options Exchange, Incorporated, the International 
Securities Exchange, Inc., the NYSE Arca, Inc., and the Philadelphia 
Stock Exchange, Inc.
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I. Description and Purpose of the Amendment

    OPRA states that the purpose of the proposed amendment is to revise 
the PSA that is required to be entered into between OPRA and 
professional subscribers to options information under section VII(c) of 
the OPRA Plan, to amend the Direct Circuit Connection Rider and the 
Indirect Circuit Connection Rider to the PSA to conform the language of 
these documents to OPRA's Vendor Agreement as revised in 2002, and to 
make certain other updating revisions.\4\
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    \4\ OPRA's Vendor Agreement was revised in SR-OPRA-2002-03, and 
was approved by the Commission on January 22, 2003. See Securities 
Exchange Act Release No. 47230 (January 22, 2003), 68 FR 4259 
(January 28, 2003).
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    Significant changes that OPRA proposes to the PSA and the Riders 
are described below. In addition, OPRA proposes certain non-substantive 
editorial revisions, which are not described below but are reflected in 
the new PSA and the Riders thereto.

Professional Subscriber Agreement

    OPRA has updated the list of participant exchanges. In addition, 
OPRA has supplemented the definition of the term ``Information'' by 
adding the phrase ``other information transmitted over the information 
reporting system administered by OPRA.'' \5\ According to OPRA, this 
``other information'' would include real-time values of various indexes 
that underlie options traded on the markets of the participant 
exchanges, data with respect to open interest, and systems messages.
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    \5\ This change would conform the definition of the term 
``Information'' in the PSA to the definition of the term ``OPRA 
Data'' in the Vendor Agreement and the Direct and Indirect Circuit 
Connection Riders. As described below, OPRA would use the revised 
PSA only on a prospective basis. OPRA believes that it is more 
desirable to maintain continuity in the use of the term 
``Information'' in the PSA than to change the PSA to use the term 
that is used in its other contract forms.
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    Section 7 of the PSA, which describes OPRA's inspection right, has 
been revised to refer explicitly to the Subscriber's records with 
respect to its use of Information to say explicitly that the inspection 
would be limited to confirming compliance with the provisions of the 
PSA, and to clarify

[[Page 27297]]

that, upon request, OPRA would maintain the confidentiality of the 
Subscriber's confidential information. According to OPRA, these latter 
two points are consistent with language that is in the current Direct 
Circuit Connection Rider.\6\
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    \6\ See section 4 of the current form of the Direct Circuit 
Connection Rider. Because the language on these points is being 
added to the PSA and because every Subscriber that agrees to a 
Direct Circuit Connection Rider also must have agreed to the PSA, 
this language is being deleted from the Direct Circuit Connection 
Rider.
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    Section 11, which describes OPRA's right to make changes in the 
data that it disseminates and in the means of dissemination, has been 
revised to conform to section 15 of the Vendor Agreement and the 
current Direct Circuit Connection Rider.\7\
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    \7\ See section 7 of the current form of Direct Circuit 
Connection Rider. As with Section 4 of the Direct Circuit Connection 
Rider, because this language is being added to the PSA, it is being 
deleted from the Direct Circuit Connection Rider.
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    Section 14, which currently provides that the PSA is subject to 
applicable provisions of the Act, has been expanded to provide that the 
PSA and any Riders would constitute the complete agreement between OPRA 
and the Subscriber, and that the PSA would supersede any prior 
agreements entered between OPRA and the Subscriber, except that any 
previously executed Riders would remain in effect unless terminated or 
superseded in accordance with their terms. The PSA has been expressly 
made subject to Illinois law, making it consistent in this respect with 
the current Vendor Agreement and the Direct and Indirect Circuit 
Connection Riders.
    A new section 15 has been added to provide that the Subscriber 
could assign the PSA without the consent of OPRA only to a successor to 
its business, subject to OPRA's right to terminate without cause upon 
thirty days notice. A comparable provision is contained in the Direct 
and Indirect Circuit Connection Riders.\8\
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    \8\ See section 8 of the revised form of each Rider.
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    Section 16 (formerly section 15) has been revised to state that if 
an exchange ceases to be a Participant Exchange in OPRA, that exchange 
would cease to be a party to the PSA, but that the PSA would remain in 
effect between the Subscriber and the remaining Participant Exchanges. 
A comparable provision is contained in the current Vendor Agreement and 
in the Direct and Indirect Circuit Connection Riders.
    The PSA previously included a sentence stating that ``Subscriber 
remains responsible for all fees due to OPRA hereunder, even if a third 
party has agreed to pay such fees on behalf of Subscriber.'' That 
sentence has been deleted, and OPRA is revising its form ``Third Party 
Billing Agreement'' to state expressly that OPRA would look only to an 
approved third party payor for payment of OPRA's fees that it would 
otherwise expect a Subscriber to pay. These changes are intended to 
make it easier for Subscribers and third party payors to conclude, in 
appropriate situations, that payment of OPRA's fees by third party 
payors is eligible for the section 28(e) safe harbor.

Direct Circuit Connection Rider and Indirect Circuit Connection Rider 
to the PSA

    The definitions have been modified to track the definitions in the 
revised Vendor Agreement. In addition, obsolete terminology, including 
references to OPRA's ``high speed transmission'' and to aspects of 
OPRA's direct access charge that are no longer in effect, has been 
eliminated.
    In the Direct Circuit Connection Rider, the Subscriber's obligation 
to pay applicable direct access fees has been moved without substantial 
change into a separate section, which would parallel the structure of 
the current Indirect Circuit Connection Rider.
    The description of Subscriber's rights to use OPRA Data has been 
expanded to incorporate terms from the revised Vendor Agreement with 
respect to delayed data and historical data.
    Subscriber's recordkeeping, reporting, and auditing obligations 
with respect to its use of OPRA Data have been more fully described in 
a manner that is consistent with the way OPRA currently imposes these 
obligations and with the language of the Vendor Agreement.
    Several provisions of the Riders have been deleted because they are 
redundant with the provisions of the proposed amended PSA. These 
include provisions describing OPRA's right to conduct inspections, 
OPRA's disclaimer of warranty, the proprietary rights of the OPRA 
Participant Exchanges to the OPRA Data, OPRA's right to make changes to 
OPRA Data and the means by which OPRA Data is transmitted, and the fact 
that the Riders are subject to Illinois law.
    The provisions governing the effectiveness and termination of the 
Riders and the integration of the Riders with the PSA have been revised 
to treat separately the PSA and each Rider. These provisions would make 
clear that any revised PSA or Rider entered into by a Subscriber would 
supersede only the specific agreement it is intended to replace.

II. Implementation of the OPRA Plan Amendment

    Pursuant to paragraphs (b)(3)(ii) and (iii) of Rule 608 under the 
Act,\9\ OPRA designates this amendment as concerned solely with the 
administration of the OPRA Plan and/or as involving solely technical or 
ministerial matters, thereby qualifying for effectiveness upon filing. 
OPRA states that it will begin to use the proposed revised PSA and the 
Direct and Indirect Circuit Connection Riders upon filing with the 
Commission. However, OPRA states that these revised documents would be 
used only on a prospective basis, and existing Professional Subscribers 
would not be required to re-execute the revised forms of agreements. 
The only exception would be that an existing Professional Subscriber 
who subsequently enters into one or both of the revised Circuit 
Connection Riders would at that time be required to sign the revised 
PSA, since certain substantive provisions have been eliminated from the 
Riders only because they have been included in the revised PSA.
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    \9\ 17 CFR 242.608(b)(3)(ii) and (iii).
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    The Commission may summarily abrogate the amendment within sixty 
days of its filing and require refiling and approval of the amendment 
by Commission order pursuant to Rule 608(b)(2) under the Act,\10\ if it 
appears to the Commission that such action is necessary or appropriate 
in the public interest, for the protection of investors and the 
maintenance of fair and orderly markets, to remove impediments to, and 
perfect the mechanisms of, a national market system, or otherwise in 
furtherance of the purposes of the Act.
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    \10\ 17 CFR 242.608(b)(2).
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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 Act. Comments may be submitted by 
any of the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml.
); or     Send an e-mail to rule-comments@sec.gov. Please include 

File No. SR-OPRA-2006-01 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris, 
Secretary, Securities and Exchange Commission,

[[Page 27298]]

100 F Street, NE., Washington, DC 20549-1090.

All submissions should refer to File Number SR-OPRA-2006-01. This file 
number should be included on the subject line if e-mail is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml
). Copies of the submission, all subsequent amendments, all 

written statements with respect to the proposed 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 inspection 
and copying in the Commission's Public Reference Room, 100 F Street, 
NE., Washington, DC 20549. 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-2006-01 and should be 
submitted on or before May 31, 2006.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\11\
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    \11\ 17 CFR 200.30-3(a)(29).
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Nancy M. Morris,
Secretary.
[FR Doc. E6-7111 Filed 5-9-06; 8:45 am]

BILLING CODE 8010-01-P
