

[Federal Register: October 6, 2006 (Volume 71, Number 194)]
[Notices]               
[Page 59184-59196]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06oc06-109]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-54538; File No. SR-Phlx-2006-43]

 
Self-Regulatory Organizations; Philadelphia Stock Exchange, Inc.; 
Order Approving a Proposed Rule Change and Amendment Nos. 1 and 2 
Thereto and Notice of Filing and Order Granting Accelerated Approval to 
Amendment No. 3 Thereto Relating to the Exchange's New Equity Trading 
System, XLE

September 28, 2006.

I. Introduction

    On July 13, 2006, the Philadelphia Stock Exchange, Inc. (``Phlx'' 
or ``Exchange'') 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 its rules to implement a new trading 
model for equity securities that provides the opportunity for automated 
executions to occur within a central matching system accessible by 
Exchange members and member organizations and their Sponsored 
Participants, as defined below. On August 14, 2006, the Exchange filed 
Amendment No. 1 to the proposed rule change. On August 16, 2006, the 
Exchange filed Amendment No. 2 to the proposed rule change. The 
proposed rule change, as amended, was published for comment in the 
Federal Register on August 25, 2006.\3\ The Commission received two 
comment letters on the proposal, as amended.\4\ On September 22, 2006, 
the Exchange filed Amendment No. 3 to the proposed rule change.\5\
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 54329 (August 17, 
2006), 71 FR 50482 (August 25, 2006) (``Notice'').
    \4\ See Letter from Joseph D. Carapico, PennMont Securities to 
C. Robert Paul, Chief Counsel, Phlx, dated September 5, 2006; and 
Letter from Joseph D. Carapico, PennMont Securities to C. Robert 
Paul, Chief Counsel, Phlx, dated September 13, 2006 (``Second 
PennMont Letter''). See also Letter from C. Robert Paul, Executive 
Vice President and General Counsel, Phlx, to Nancy M. Morris, 
Secretary, Commission, dated September 20, 2006 (responding to the 
two comment letters) (``Phlx Response Letter'').
    \5\ The text of Amendment No. 3 is available on Phlx's Web site 
(http://www.phlx.com), at the principal office of Phlx, and at the 

Commission's Public Reference Room. In Amendment No. 3, the Exchange 
made several technical, non-substantive changes to the proposed rule 
text. In addition, the Exchange added text to proposed Phlx Rule 188 
regarding trade identifiers; relocated the self-help provision from 
proposed Phlx Rule 1(cc) to proposed Phlx Rule 185(h); added text to 
proposed Phlx Rule 185(b)(3) to clarify the operation of Pegged 
Orders; and amended the terminology in proposed Phlx Rule 163 from 
``Exchange Official'' to ``Equity Exchange Official.'' Further, the 
Exchange proposes to allow floor members and member organizations 
who become XLE participants to remain in their current space on the 
Exchange's floor, paying the applicable space rental fees, for a 
short time while they transition to XLE. The Exchange also announced 
its intent to request relief from the applicable provisions of the 
ITS Plan to allow the Exchange to implement ISO Orders and IOC Cross 
Orders marked ISO, as well as orders marked ``Benchmark,'' before 
the February 5, 2007 ``Trading Phase Date'' for Regulation NMS 
(i.e., the operative date for Regulation NMS-compliant systems that 
intend to qualify their quotations for trade-through protection 
under Rule 611 of Regulation NMS during the Pilot Stocks Phase and 
All Stocks Phase).
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    This order approves the proposed rule change as amended by 
Amendment Nos. 1 and 2. Simultaneously, the Commission is providing 
notice of filing of Amendment No. 3 and is granting accelerated 
approval of Amendment No. 3.

II. Description

    The Exchange proposes to amend its rules to implement a new market 
structure and trading model for equity securities. Specifically, the 
Exchange proposes to adopt a fully-automated equities trading system, 
referred to as ``XLE,'' through which automated executions will occur 
within a central matching system. With the introduction of this new 
automated, order-driven system, the Exchange no longer will continue to 
operate a physical equities trading floor, nor will it operate its 
automated Philadelphia Stock Exchange Automated Communication and 
Execution (``PACE'') System through which Phlx member organizations 
currently can send orders to the Exchange electronically.\6\
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    \6\ Since the Exchange proposes to operate XLE in lieu of 
trading on its physical equities trading floor, in addition to 
proposing new and amended rules to implement XLE, the Exchange also 
proposes to modify or delete several Phlx By-laws and various Phlx 
Rules that relate to floor trading. The Exchange also proposes to 
delete various outdated Phlx Rules that relate, for example, to the 
delivery and settlement of securities. The Commission notes that 
upon approval, unless otherwise specified, the proposed rule changes 
will be effective, but not operative, until the Exchange 
discontinues its physical equities trading floor and commences 
operation of XLE, as described in Section II.
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    XLE will accept orders in NMS Stocks \7\ that are traded on the 
Exchange (which, as proposed, will include Nasdaq-listed securities) 
\8\ from Exchange members and member organizations, and their Sponsored 
Participants and their Participant Authorized Users (collectively, 
``XLE Participants'') and will display, route, and execute those orders 
automatically pursuant to non-discretionary algorithms codified in the 
proposed Phlx Rules. Orders will be ranked on XLE in price-time 
priority regardless of the identity of the entering XLE Participant, 
and executions will occur automatically and immediately upon order 
entry if trading interest is available on the system. The Exchange also 
will provide an optional routing service for those orders eligible for 
routing for which trading interest is not present on XLE.\9\
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    \7\ See proposed Phlx Rule 1(t). See also 17 CFR 242.600(b)(47). 
The term ``NMS Stock'' means any NMS security other than an option. 
``NMS security'' is defined in Rule 600(b)(46) of Regulation NMS 
under the Act to mean any security or class of securities for which 
transaction reports are collected, processed, and made available 
pursuant to an effective transaction reporting plan. See 17 CFR 
242.600(b)(46).
    \8\ Unlike its current equities floor, where Phlx does not trade 
Nasdaq-listed securities, the Exchange proposes to allow XLE to 
trade Nasdaq-listed securities, in addition to securities listed on 
other national securities exchanges, pursuant to unlisted trading 
privileges.
    \9\ The Routing Agreement will allow the routing broker-dealer 
to act for the XLE Participant if the XLE Participant or its 
Sponsored Participant enters an order-type that is routable. As 
proposed, no XLE Participant will be able to enter a Limit Order or 
Reserve Order without ``Do Not Route'' instructions, or a Single 
Sweep Order, unless the XLE Participant or the XLE Participant's 
Sponsoring Member Organization has entered into a Routing Agreement. 
See proposed Phlx Rule 181.
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    With its new equities trading platform, the Exchange no longer will 
accommodate equity specialists. However, the Exchange proposes to allow 
its member organizations to register as Market Makers \10\ on XLE, and 
those Market Makers could then choose to register in one or more 
securities that are traded on XLE. Since Market Maker registration will 
be optional, an NMS Stock may trade on XLE without a Market Maker. Once 
registered in a particular security, a Market Maker will be required to 
maintain continuous Limit Orders on both sides of the market in that 
security during the Core Session

[[Page 59185]]

(normally 9:30 a.m. to 4 p.m., Philadelphia time).
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    \10\ See proposed Phlx Rule 1(l).
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    The Exchange has proposed a number of provisions that are designed 
specifically to enable XLE to comply with Regulation NMS under the Act 
(``Regulation NMS'') \11\ including, for example, proposed Phlx Rule 
186 relating to locking or crossing quotations in NMS Stocks. Further, 
the Exchange intends to operate XLE as an ``automated trading center'' 
for purposes of Regulation NMS and display ``automated quotations'' (as 
defined by Regulation NMS) at all times except in the event that a 
systems malfunction renders XLE incapable of displaying automated 
quotations.\12\ In addition, once the February 5, 2007 Trading Phase 
Date for Regulation NMS has been reached, XLE will permit orders to be 
marked as intermarket sweep orders (``ISOs'') pursuant to Regulation 
NMS and will also permit incoming ISOs from other trading centers.\13\
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    \11\ 17 CFR 242.600 et seq.
    \12\ See proposed Phlx Rule 160. The Exchange states that it 
will halt trading and therefore not display any quotations in the 
event of such a systems malfunction. See Notice, supra note 3, 71 FR 
at 50483.
    \13\ See 17 CFR 242.611(b)(5). See also proposed Phlx Rule 
185(b)(2)(C).
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    In its filing, the Exchange proposed new rules and revisions to its 
existing rules in order to accommodate XLE. These rules, which are 
examined in more detail in Section IV, below, relate to, among other 
things: Hours of business; order entry and execution increments; 
registration of market makers; obligations of market maker authorized 
traders; registration of market makers in a security; obligations of 
market makers; access; order entry; order marking; trading sessions 
customer disclosure; order ranking and display; orders and order 
execution; odd and mixed lots; trade execution and reporting; clearance 
and settlement and anonymity; clearly erroneous executions; trading 
halts; clearance and settlement; and short sales.
    In particular, XLE will accept several new order types.\14\ In 
addition to accepting market orders,\15\ XLE will accept certain one-
sided limited price orders that are: (1) Subject to the Quote 
Management Instructions (``QMI'') of either ``Ship and Quote'' \16\ or 
``Post Order and Participate''; \17\ (2) executed immediately on XLE, 
including Immediate-or-Cancel (``IOC'') orders,\18\ Single Sweep Orders 
(``SSO''),\19\ and ISOs; \20\ and (3) designated as Pegged Orders.\21\ 
In addition, XLE will accept certain two-sided cross orders, including 
Mid-Point Cross Orders,\22\ IOC Cross Orders,\23\ Benchmark Orders,\24\ 
Qualified Contingent Trades,\25\ and two-sided orders that are marked 
for ``non-regular way'' settlement.\26\
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    \14\ See proposed Phlx Rule 185.
    \15\ See proposed Phlx Rule 185(a).
    \16\ See proposed Phlx Rule 185(b)(1)(C)(i).
    \17\ See proposed Phlx Rule 185(b)(1)(C)(ii).
    \18\ See proposed Phlx Rule 185(b)(2)(A).
    \19\ See proposed Phlx Rule 185(b)(2)(B).
    \20\ See proposed Phlx Rule 185(b)(2)(C).
    \21\ See proposed Phlx Rule 185(b)(3).
    \22\ See proposed Phlx Rule 185(c)(1).
    \23\ See proposed Phlx Rule 185(c)(2).
    \24\ See proposed Phlx Rule 185(c)(3).
    \25\ See id.
    \26\ See proposed Phlx Rule 185(c)(4).
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    The Exchange intends to roll-out XLE in several phases (within each 
phase, the Exchange will start first with NYSE- and Amex-listed 
securities, then Nasdaq-listed securities), beginning with: (1) Two-
sided orders only for approximately one week; (2) then one-sided 
orders, all of which will be deemed ``Do Not Route,'' incoming linkage 
orders routed to the Exchange through the new NMS Linkage, and all 
Intermarket Trading System (``ITS'') commitments; and finally (3) 
routing functionality.\27\ In addition, the Exchange has stated that it 
may roll-out Reserve Orders later than it rolls out other one-sided 
orders.\28\ The Exchange anticipates that the roll-out will be complete 
within a two month period, and it intends to publish more precise 
information regarding the roll-out via Exchange circular.\29\
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    \27\ See Notice, supra note 3, 71 FR at 50483.
    \28\ See Notice, supra note 3, 71 FR at 50483.
    \29\ See id.
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III. Comments Received

    The Commission received two comment letters from one commenter.\30\ 
The commenter, PennMont Securities, which currently operates as an 
equities specialist on Phlx, objected to the Exchange's proposal to 
eliminate equity specialists from the new Phlx equities platform and 
criticized the process by which the Exchange considered its proposed 
rule change. In addition, the commenter contended that eliminating 
equity specialists would negatively affect the prospects for its 
business,\31\ and inferred that such elimination would adversely impact 
specific benefits for which it currently is eligible under the Internal 
Revenue Code.\32\ Further, the commenter opined that past cases of 
abuse of trading privileges on the Exchange by specialists can be 
addressed through increased oversight by the Exchange, rather than the 
elimination of specialists.\33\ Accordingly, the commenter proposed 
that Phlx implement a hybrid system similar to the one being 
implemented by the New York Stock Exchange.\34\
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    \30\ See supra note 4 (citing comment letters).
    \31\ See Second PennMont Letter, supra note 4, at 1.
    \32\ See id. at 1.
    \33\ See id. at 2.
    \34\ See id.
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    The Exchange submitted a response letter to the Commission 
addressing the commenter's concerns.\35\ In particular, the Exchange 
noted that it complied with the By-laws of the Exchange as well as 
applicable securities laws and regulations in submitting its proposed 
rule change to the Commission on Form 19b-4.\36\ The Exchange also 
addressed the commenter's concerns regarding the proposed 
discontinuance of equity specialists on the Exchange by noting that a 
national securities exchange is permitted, but not required, to provide 
for specialists on its marketplace,\37\ and that the Act does not 
mandate a particular market structure.\38\ The Exchange also noted that 
other national securities exchanges already operate electronic markets 
without specialists (e.g., NYSE Arca), and several exchanges are 
currently proposing to adopt market structures that feature electronic 
platforms without specialists.\39\ Finally, the Exchange opined that 
any effect on a member's tax status is collateral to the legality and 
operation of the proposed rule change.\40\
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    \35\ See Phlx Response Letter, supra note 4.
    \36\ See id. at 1.
    \37\ See 15 U.S.C. 78k(b).
    \38\ See Phlx Response Letter, supra note 4, at 2.
    \39\ See, e.g., Securities Exchange Act Release Nos. 54291 
(August 8, 2006), 71 FR 47264 (August 16, 2006) (File No. SR-BSE-
2006-30); and 54301 (August 10, 2006), 71 FR 47836 (August 18, 2006) 
(File No. SR-CHX-2006-05).
    \40\ See Phlx Response Letter, supra note 4, at 2-3.
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    The Commission agrees with the statement in the Phlx Response 
Letter that the Act does not impose upon or otherwise mandate any 
particular market structure for a national securities exchange. While 
an exchange may choose to operate a market that provides for specialist 
participation, it also is free to propose and adopt another market 
structure as long as such structure and governing rules comport with 
the Act and the rules and regulations thereunder. In addition, the 
Commission notes that issues for a particular market participant that 
arise under the Internal Revenue Code as a result of the Exchange's 
proposal are outside of the Commission's jurisdiction. As noted below, 
the Commission believes that the Exchange's proposed XLE system and 
governing rules meet the requirements of the Act.

[[Page 59186]]

IV. Discussion and Commission Findings

    After careful review and consideration of the comments, the 
Commission finds, for the reasons discussed more fully below, that the 
proposed rule change, as amended, is consistent with the requirements 
of the Act and the rules and regulations thereunder applicable to a 
national securities exchange \41\ and, in particular, the requirements 
of section 6 of the Act \42\ and the rules and regulations thereunder. 
The Commission finds that the proposed rule change, as amended, is 
consistent with section 6(b)(5) of the Act \43\ in that it is designed 
to prevent fraudulent and manipulative acts and practices, 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.
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    \41\ The Commission has considered the proposed rule's impact on 
efficiency, competition and capital formation. 15 U.S.C. 78c(f).
    \42\ 15 U.S.C. 78f.
    \43\ 15 U.S.C. 78f(b)(5).
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    In addition, the Commission finds that the proposal is consistent 
with section 11A \44\ of the Act in general, and furthers the 
objectives of section 11A(a)(1)(C) of the Act,\45\ in particular, 
including: (1) The economically efficient execution of securities 
transactions; (2) fair competition among brokers and dealers, among 
exchange markets, and between exchange markets and markets other than 
exchange markets; (3) the availability to brokers, dealers, and 
investors of information with respects to quotations for and 
transactions in securities; (4) the practicability of brokers executing 
investors' orders in the best market; and (5) an opportunity for 
investors' orders to be executed without the participant of a dealer.
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    \44\ 15 U.S.C. 78k-1.
    \45\ 15 U.S.C. 78k-1(a)(1)(C).
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    The discussion below addresses more fully the Exchange's proposal 
to replace its current equities trading model with a new electronic 
trading system that will provide for price-time priority executions and 
to adopt new rules and revisions to its existing rules in connection 
with its proposed new market structure.

A. Order Types

    XLE will accept several order types from XLE Participants. 
Specifically, XLE will accept the following order types: Market Orders, 
Limited Priced Orders (including Limit Orders, Reserve Orders, IOC 
Orders, SSO Orders, ISO Orders, and Pegged Orders), and Two-Sided 
Orders (including Mid-Point Cross Orders, IOC Cross Orders, Non-Regular 
Way Cross Orders, and IOC Cross Orders marked ``Benchmark'' or 
``Qualified Contingent Trade''). Existing orders on XLE will be ranked 
according to price-time priority. An existing order's displayable price 
will be determined by XLE based on its limit price or pegging 
instructions, its routability and QMI, and its short sale status.
1. Market Orders
    A Market Order on XLE is an order to buy or sell a stated amount of 
a security that is to be executed immediately and automatically against 
existing orders on XLE up to and including the price of the best away 
Protected Quotation.\46\ Any unexecuted shares of a Market Order will 
be automatically cancelled. Further, XLE will cancel a Market Order 
when the market is crossed (i.e., when the Protected Bid is priced 
higher than the Protected Offer). In other words, a Market Order on XLE 
is executable only on XLE and is designed not to trade-through the best 
away Protected Quotation.
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    \46\ See proposed Phlx Rule 185(a). See also proposed Phlx Rule 
1(cc) (defining Protected Bid, Offer or Quotation).
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2. Limited Price Orders
    XLE also is designed to accept a number of limited price orders, 
including: (1) Limited price orders subject to QMI; (2) limited price 
orders executed immediately on XLE; and (3) Pegged Orders. XLE 
Participants will be able to designate during which contiguous XLE 
trading session(s) their limited price orders will be eligible for 
execution.
    Limit and Reserve Orders. Limit Orders are one-sided orders to buy 
or sell a stated amount of a security at a specified price or 
better.\47\ Reserve Orders are one-sided orders to buy or sell a stated 
amount of a security at a specified price or better with at least a 
round lot portion of the size that is displayable and with at least a 
round lot portion of the size that is not displayable by XLE, provided 
that the portion of the Reserve Order that is not displayable shall 
have the same price as the portion that is displayable.\48\ Limit 
Orders and Reserve Orders will be routable unless otherwise marked by a 
XLE Participant.\49\
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    \47\ See proposed Phlx Rule 185(b)(1)(A).
    \48\ See proposed Phlx Rule 185(b)(1)(B).
    \49\ See proposed Phlx Rule 185(b)(1)(A), (B), and (C).
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    IOC Orders. IOC Orders will be executed immediately and 
automatically against existing orders on XLE up to and including the 
price of the best away Protected Quotation, unless the market is 
crossed (i.e., the Protected Bid is priced higher than the Protected 
Offer), in which case XLE will ignore away Protected Quotations.\50\ 
IOC Orders will not be eligible for routing to another market center. 
Accordingly, the portion of an IOC Order that does not get executed on 
XLE will be immediately and automatically cancelled. Any XLE 
Participant may use an IOC Order to immediately and automatically 
execute against the full size of the displayed quotation on XLE 
(including any undisplayed or reserve size available at the price of 
the displayed quotation). As with all executions on XLE, XLE will 
immediately and automatically transmit a response to the XLE 
Participant who sent the IOC Order indicating the action taken with 
respect to the IOC Order. Additionally, XLE will immediately and 
automatically update its bid/offer as a result of the execution.
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    \50\ See proposed Phlx Rule 185(b)(2)(A).
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    SSOs. SSOs are executed immediately and automatically against 
existing orders on XLE and/or away Protected Quotations, up to and 
including the order's limit price.\51\ Any shares of the SSO that are 
not immediately executed on XLE or on an away market will be cancelled.
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    \51\ See proposed Phlx Rule 185(b)(2)(B).
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    ISOs. ISOs are executed immediately and automatically against 
existing orders on XLE at their displayable price, and the shares of 
the ISO not so executed will be cancelled.\52\ An ISO will be executed 
on XLE without regard to any away Protected Quotations.
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    \52\ See proposed Phlx Rule 185(b)(2)(C). The Exchange intends 
that the ISO Order be equivalent to the intermarket sweep order 
defined in Rule 600(b)(30) of Regulation NMS. 17 CFR 242.600(b)(30). 
XLE Participants entering an ISO must ensure that the ISO meets the 
requirements of Rule 600(b)(30) of Regulation NMS. 17 CFR 
242.600(b)(30). See also Notice, supra note 3, 71 FR at 50485 (note 
62).
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    Pegged Orders. Pegged Orders are round lot or mixed lot limited 
price orders to buy or sell, only on XLE, a stated amount of a security 
at a display price set to track (up, down, or at) the current best 
Protected Bids or Offers on either side of the market in an amount 
specified by the XLE Participant in an increment permitted by proposed 
Phlx Rule 125.\53\ A Pegged Order must

[[Page 59187]]

consist of at least a round lot portion that is displayable and may 
include at least a round lot portion that is not displayable by XLE, 
provided that the portion of the Pegged Order that is not displayable 
shall have the same price as the portion that is displayable .
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    \53\ See proposed Phlx Rule 185(b)(3). The display price will 
not be permitted to lock or cross the market in a manner that would 
violate proposed Phlx Rule 186. See id. See also Amendment No. 3, 
supra note 5 (clarifying the definition of Pegged Order).
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3. Two-Sided Orders
    XLE will accept several types of two-sided cross orders, including 
Mid-Point Cross Orders and IOC Cross Orders. Two-sided orders involve 
instructions to match immediately and automatically on XLE an 
identified buy-side order with an identified sell-side order.\54\ Mid-
Point Cross Orders are two-sided orders that execute, in their 
entirety, at the midpoint of the Protected National Best Bid/Offer 
(``NBBO''), unless the Protected Bid is higher than the Protected 
Offer, in which case the Mid-Point Cross Order will be cancelled.\55\ 
The execution process for two-sided orders and the circumstances under 
which XLE will cancel a Mid-Point Cross Order (when the Protected NBBO 
is locked) or an IOC Cross Order are discussed below in Section IV.C.
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    \54\ See proposed Phlx Rule 185(c).
    \55\ See proposed Phlx Rule 185(c)(1).
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    XLE also will accept two-sided cross orders for ``non-regular way 
settlement.'' \56\ A non-regular way cross is a two-sided order that, 
if marked for non-regular way settlement, may execute at any price, 
without regard to the Protected NBBO or any other orders on XLE, 
provided that Mid-Point Cross Orders marked for non-regular way 
settlement will be cancelled when the Protected Bid is priced higher 
than the Protected Offer.
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    \56\ See proposed Rule 185(c)(4).
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    The Commission finds that the Exchange's proposed rules relating to 
order types are designed to promote just and equitable principles of 
trade, remove impediments to and perfect the mechanism of a free and 
open market and a national market system, and are not designed to 
permit unfair discrimination between customers, brokers, or dealers. In 
particular, the Commission believes that the Exchange's proposed SSO 
and ISO orders are designed, among other things, to meet the 
requirements of Regulation NMS, and to perfect the mechanism of a free 
and open market and a national market system and to protect investors 
and the public interest, and thus, are consistent with the requirements 
of the Act. In addition, the Commission believes that the proposed XLE 
order types are designed to provide investors with flexibility in the 
display and execution of their orders, while still ensuring that 
customer priority principles are upheld. Further, the proposed features 
of XLE are designed to allow new opportunities for orders to interact, 
thereby promoting efficiency of executions.

B. Order Delivery, Display, and Interaction

    Trading Sessions. As proposed, XLE will be open to accept orders 
for three different trading sessions beginning at 8 a.m. Eastern time 
and continuing until 6 p.m., except during trading halts, every trading 
day unless otherwise declared by the Exchange.\57\ The Pre Market 
Session will begin at 8 a.m., and will run until the start of the Core 
Session, typically at 9:30 a.m. The Core Session, which will end at 4 
p.m., will be XLE's ``regular trading hours,'' as defined in Rule 
600(b)(64) of Regulation NMS.\58\ The Post Market Session will run from 
the end of the Core Session until 6 p.m. XLE Participants may designate 
during which contiguous XLE trading session(s) a Limit, Reserve, or 
Pegged Order is eligible for execution.\59\
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    \57\ See proposed Phlx Rule 101.
    \58\ 17 CFR 242.600(b)(64).
    \59\ See proposed Phlx Rule 185(b)(1)(A)-(B) and (b)(3). Before 
accepting an order from a non-XLE Participant for execution in the 
Pre Market or Post Market Session, a XLE Participant will be 
required to make certain risk disclosures to the non-XLE 
Participant. See proposed Phlx Rule 183. The disclosure notes, among 
other things, that trading outside of ``regular'' trading hours may 
involve material trading risks, including the possibility of lower 
liquidity, high volatility, changing prices, unlinked markets, an 
exaggerated effect from news announcements, wider spreads and any 
other relevant risk.
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    Since XLE will not feature any opening or closing auctions or 
rotations at the beginning of, during, or at the end of any of these 
sessions, XLE will only accept orders when it is open for trading and 
can immediately process those orders for execution, routing, or 
display, as applicable. At the end of the trading day, and in the event 
of an intraday trading halt, XLE will cancel all existing orders so 
that when trading begins again, either the next day or after the halt 
is lifted, there are no existing orders that could impermissibly lock 
or cross the market. The Commission believes that the proposed rule 
regarding trading sessions is reasonable and consistent with the Act. 
In particular, the Commission notes that a XLE Participant will be 
required to disclose the risks of pre-market and post-market session 
trading to its customers, and that existing orders in XLE will be 
cancelled when trading stops so as to not lock or cross the market when 
trading resumes.
    Access to XLE and Order Delivery. Phlx has proposed that all XLE 
Participants be able to access XLE through an Exchange electronic 
interface by means of their own communication lines or through lines 
established by service providers in the business of maintaining 
connectivity in the securities marketplace. In addition, XLE 
Participants may access XLE for the entry of two-sided orders through 
technology provided by the Exchange. Finally, to the extent that the 
Exchange participates in the ITS Plan or any other linkage plan for NMS 
Stocks, ITS commitments and other intermarket orders can be sent to XLE 
through these linkages. The Commission believes that the Exchange's 
proposed means for providing connectivity to XLE are reasonable and 
consistent with the Act.
    Under proposed Phlx Rule 181, XLE Participants will be allowed to 
enter any type of order available on XLE provided, however, that no XLE 
Participant may enter a Limit Order or Reserve Order without ``Do Not 
Route'' instructions, or an SSO, unless the XLE Participant or the XLE 
Participant's Sponsoring Member Organization has entered into a Routing 
Agreement.\60\ The Routing Agreement between the Exchange, the 
Exchange's routing broker-dealer and the XLE Participant or the XLE 
Participant's Sponsoring Member Organization will allow the routing 
broker-dealer to act for the XLE Participant if the XLE Participant or 
its Sponsored Participant enters an order that is routable. The 
Commission believes that Phlx's proposed Rule 181 is appropriate and 
consistent with the Act.
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    \60\ See proposed Phlx Rule 181.
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    Order Display. XLE will be an order-driven system where automated 
executions in NMS Stocks can occur within a centralized matching system 
without the participation of a specialist. Orders, or portions thereof, 
that are not immediately matched, routed to another market center, or 
cancelled, will be eligible for posting on XLE. Once displayed on XLE, 
such orders will be eligible to be executed against any incoming 
orders.
    The Exchange has proposed two levels of order display. The first 
level, which will be provided to the appropriate market data reporting 
plans for dissemination, will include the best-ranked displayed orders 
to buy and sell on XLE, as well as the aggregated size of those orders 
(i.e., the top of the XLE book). The second level of display, which 
will be available to any person subject to the payment of any 
applicable fees, will feature a depth-of-book feed displaying all 
orders on XLE, except for the undisplayed reserve portions of

[[Page 59188]]

Reserve Orders. All orders will be displayed on an anonymous basis.\61\ 
The Commission believes that the proposed rules regarding order display 
on XLE are reasonable and consistent with the Act and are designed to 
provide investors with timely and accurate information regarding 
trading interest on XLE.
---------------------------------------------------------------------------

    \61\ See infra Section IV.G. (Anonymity).
---------------------------------------------------------------------------

    Locked and Crossed Markets. In most cases, XLE will not accept and 
display an order that would lock or cross an away Protected Quotation 
disseminated pursuant to an effective national market system plan 
(i.e., an order that would improperly lock or cross the ITS best bid or 
offer, or, upon the February 5, 2007 Trading Phase Date for Regulation 
NMS, if display of the order would constitute a locking or crossing 
quotation). Further, consistent with Regulation NMS, the Exchange has 
proposed a rule that will require its members to reasonably avoid 
displaying quotations that would lock or cross a Protected Quotation 
(unless an applicable exemption applies), and also will prohibit 
members from engaging in a pattern or practice of displaying any such 
quotations.\62\ Pursuant to proposed Phlx Rule 186, XLE will be allowed 
to lock or cross an away Protected Quotation, however, when the market 
is crossed. Additionally, XLE will be allowed to lock or cross an away 
Protected Quotation if XLE first routes an order to that away Protected 
Quotation (and all better-priced quotations) for the full displayed 
size. Finally, when the market is locked, and XLE is disseminating an 
order equal to either the best Protected Bid or best Protected Offer, 
then XLE may continue to display new orders at the same price of the 
order that it is disseminating. The Exchange has requested that its 
proposed Rule 186 not become effective until the February 5, 2007 
Trading Phase Date for Regulation NMS.\63\
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    \62\ See proposed Phlx Rule 186(b) and (d).
    \63\ See Notice, supra note 3, 71 FR at 50489.
---------------------------------------------------------------------------

    The Commission believes that the proposed rule regarding locking 
and crossing the market is appropriate and consistent with the Act and 
the requirements of Regulation NMS. Further, the Commission believes 
that delaying the operative date of proposed Phlx Rule 186 will allow 
the Exchange and its members to coordinate their compliance with the 
requirements of Rule 610 of Regulation NMS, while ensuring that the 
Exchange complies with the applicable ITS requirements so long as they 
remain in effect.
    Order Protection. The Exchange states that it has designed its XLE 
system, including proposed Phlx Rule 185, to prevent trade-throughs of 
Protected Quotations.\64\ In addition, XLE will make outbound routing 
available for those orders that are required to be routed.\65\
---------------------------------------------------------------------------

    \64\ See Notice, supra note 3, 71 FR at 50489.
    \65\ See proposed Phlx Rule 185(g).
---------------------------------------------------------------------------

    The Exchange also intends to take advantage of certain exceptions 
to Rule 611 of Regulation NMS, including the ``self-help'' 
exception.\66\ In addition, Phlx has proposed that the following orders 
be allowed to trade-through an away Protected Quotation: (1) Two-sided 
orders for non-regular way settlement ; \67\ (2) when a Protected Bid 
is priced higher than a Protected Offer, Limit, Reserve, IOC, and IOC 
Cross Orders; \68\ (3) incoming ISO orders; \69\ (4) IOC Cross Orders 
that are marked as ``Benchmark''; \70\ (5) IOC Cross Orders that are 
marked as ``Qualified Contingent Trades''; \71\ and (6) orders that are 
accompanied by the simultaneous routing of an intermarket sweep order 
to execute against the full displayed size of that Protected 
Quotation.\72\ The Commission believes that the proposed Phlx Rules 
governing order protection on XLE, including proposed Phlx Rule 185, 
are appropriate and consistent with the Act and the requirements of 
Regulation NMS.
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    \66\ See infra Section IV.J. (Compliance with Regulation NMS and 
Transition to XLE).
    \67\ See proposed Phlx Rule 185(c)(4).
    \68\ See 17 CFR 242.611(b)(4). See also proposed Phlx Rules 
185(b)(1)(A), (b)(1)(B), (b)(2)(A), and (c)(2), respectively.
    \69\ See 17 CFR 242.611(b)(5). See also proposed Phlx Rule 
185(b)(2)(C).
    \70\ See 17 CFR 242.611(b)(7). See also proposed Phlx Rule 
185(c)(3).
    \71\ See proposed Phlx Rule 185(c)(3). See also Securities 
Exchange Act Release No. 54389 (August 31, 2006), 71 FR 52829 
(September 7, 2006) (order granting an exemption for Qualified 
Contingent Trades from Rule 611(a) of Regulation NMS).
    \72\ See 17 CFR 242.600(b)(30) and 17 CFR 242.611(b)(6).
---------------------------------------------------------------------------

    Trading Halts. In addition to current Phlx rules governing the 
halting of trading,\73\ proposed Phlx Rule 164(a) will allow the 
Chairman and Chief Executive Officer of the Exchange or his designee to 
suspend trading, for a period of no longer than two days (unless 
extended by the Exchange's Board of Governors), in any and all 
securities traded on XLE whenever in his or his designee's opinion such 
suspension would be in the public interest. If trading in one or more 
securities is halted, all orders in those securities will be cancelled 
and XLE will not accept any new orders until trading resumes.\74\ The 
Commission believes that the proposed trade halt rule is consistent 
with the Act, including the protection of investors and the public 
interest.
---------------------------------------------------------------------------

    \73\ See, e.g., Phlx Rules 133 (Trading Halts Due to 
Extraordinary Market Volatility) and 136 (Trading Halts in Certain 
Exchange Traded Funds).
    \74\ See proposed Phlx Rule 164(b).
---------------------------------------------------------------------------

    Clearly Erroneous Executions. The Exchange's proposed Rule 163 
governing clearly erroneous executions will allow the Exchange to 
review a transaction when there is an obvious error in any term, such 
as price, number of shares or other unit of trading, or identification 
of the security.\75\ The proposed rule sets forth formal procedures for 
use by XLE Participants in requesting a review of a transaction, as 
well as the procedures governing the Exchange's review of such 
transactions and specific means for market participants to appeal 
decisions made by an Exchange Official. In addition, the Exchange 
Official may, on his or her own motion, review transactions on XLE that 
arose during any disruption or malfunction in the use or operation of 
any electronic communications or trading facilities of the Phlx, or 
extraordinary market conditions or other circumstances in which the 
nullification or modification of transactions may be necessary for the 
maintenance of a fair and orderly market or the protection of investors 
and the public interest.\76\ In addition, XLE will contain a mechanism 
to prevent the entry of potentially erroneous orders. Proposed Phlx 
Rule 185(d) specifies that XLE will reject an order if its price would 
cross the best Protected Bid or Offer by 20% or more.\77\ The 
Commission believes that proposed Phlx Rule 163 is consistent with the 
Act and provides for a fair, transparent, and reasonable process in 
which XLE Participants can seek correction of clearly erroneous 
transactions. The Commission believes that proposed Phlx Rule 185 is 
consistent with the Act, and the Commission notes that this proposed 
rule is similar to the rule of another exchange that was approved by 
the Commission.\78\
---------------------------------------------------------------------------

    \75\ See proposed Phlx Rule 163.
    \76\ See proposed Phlx Rule 163(d).
    \77\ In the case of an order priced under $1.00, XLE will reject 
such order if it crosses the best Protected Bid or Offer by $0.20 or 
more. See proposed Phlx Rule 185(d).
    \78\ See Securities Exchange Act Release No. 53233 (February 6, 
2006), 71 FR 7100 (February 10, 2006) (File No. SR-NASD-2006-019) 
(notice of filing and immediate effectiveness of proposed rule 
change to establish Nasdaq's uniform warning and rejection 
parameters for orders that cross the best bid/offer).
---------------------------------------------------------------------------

    Short Sales. To allow XLE to treat sale orders properly under Rule 
10a-1 under the Act,\79\ XLE Participants will be

[[Page 59189]]

required to mark all sell orders (and the sell side of a two-sided 
order) with the proper designation of ``long,'' ``short,'' or ``short-
exempt'' pursuant to Rule 200(g) of Regulation SHO.\80\ Specifically, 
XLE will not effect a sell order or sale of any security, except Nasdaq 
Global Market and Nasdaq Capital Market securities, unless such sell 
order or sale is effected in compliance with Rule 10a-1. XLE can, 
however, effect sell orders and sales of all Nasdaq securities without 
regard to any short sale price test.\81\ The Commission believes that 
the Exchange's proposed rule governing short sales, including the order 
marking requirement, is consistent with the Act and conforms to the 
requirements of Regulation SHO.
---------------------------------------------------------------------------

    \79\ 17 CFR 240.10a-1.
    \80\ 17 CFR 242.200(g).
    \81\ See proposed Phlx Rule 455.
---------------------------------------------------------------------------

C. Priority of Orders and Order Execution

    Proposed Phlx Rules 184 and 185 set forth the priority and 
execution parameters of XLE. Each incoming order, except certain two-
sided orders, will execute against existing orders on XLE at the 
existing order's displayable price, in sequence of the existing order's 
ranking, unless it is routed away for execution.\82\ An existing 
order's displayable price will be determined by XLE based on the 
order's limit price or pegging instructions, its routability and QMI 
(described below), and its short sale status.\83\
---------------------------------------------------------------------------

    \82\ Executions occurring as a result of orders matched on XLE 
will be reported by the Exchange to an appropriate consolidated 
transaction reporting system. The Exchange will promptly notify XLE 
Participants of all executions as soon as such executions have taken 
place. See proposed Phlx Rule 188.
    \83\ See proposed Phlx Rule 185(b)(1)(C)-(E), (b)(3), and (e)-
(f).
---------------------------------------------------------------------------

    XLE will rank orders on a price-time basis, first by price and then 
by time.\84\ Within each price level, Limit Orders, the displayed 
portion of Reserve Orders, and Pegged Orders will be ranked based on: 
(1) The time the order is received, and, if applicable, (2) the time 
its price is updated. With respect to Reserve Orders, the time priority 
of the displayed portion of these orders is updated when the displayed 
portion is refreshed with shares from the undisplayed reserve portion 
(which occurs when the displayed portion is reduced below a round 
lot).\85\ As proposed, XLE will rank odd-lot and mixed-lot orders in 
the same manner as round-lot orders. Accordingly, all incoming orders, 
except for two-sided orders and ITS commitments,\86\ will be eligible 
for execution against existing orders on XLE regardless of the order 
size of the existing orders.
---------------------------------------------------------------------------

    \84\ See proposed Phlx Rule 184(a).
    \85\ See proposed Phlx Rule 184(a)(1). The undisplayed portion 
of a Reserve Order is ranked based upon the time the order is 
received or its price is updated. See proposed Phlx Rule 184(a)(2).
    \86\ Because ITS does not accept orders in share amounts other 
than round lots and multiple round lots, XLE will not match odd lot 
orders or odd lot portions of mixed lot orders on XLE against an 
incoming ITS commitment.
---------------------------------------------------------------------------

    As discussed above, proposed Phlx Rule 185 sets forth the various 
order types that will be accepted by XLE. The proposed order execution 
parameters of the various order types are discussed below.\87\
---------------------------------------------------------------------------

    \87\ Section 11(a) of the Act, 15 U.S.C. 78k(a), prohibits a 
member of a national securities exchange from effecting transactions 
on that exchange for its own account, the account of an associated 
person, or an account over which it or its associated person 
exercises discretion, unless an exception applies. Rule 11a2-2(T) 
under the Act, 17 CFR 240.11a2-2(T), known as the ``effect versus 
execute'' rule, provides exchange members with an exemption from the 
Section 11(a) prohibition. The Exchange intends to submit a letter 
to the Commission, before trading commences on XLE, representing 
that transactions effected in the XLE system meet the requirements 
of Rule 11a2-2(T). See Telephone call between Richard Holley III, 
Special Counsel, Division of Market Regulation, Commission, and John 
Dayton, Director and Counsel, Phlx, on September 26, 2006.
---------------------------------------------------------------------------

1. One-Sided Orders
    Market Orders. Market Orders will be executed immediately and 
automatically against existing orders on XLE at their displayable price 
up to and including the price of the best away Protected Quotation. Any 
unexecuted shares of a Market Order will be automatically cancelled. 
Further, XLE will cancel Market Orders if the Protected NBBO is crossed 
(i.e., when the Protected Bid is priced higher than the Protected 
Offer).
    Limited Price Orders. XLE also is designed to accept a number of 
limited price orders, including: (1) Limited price orders subject to 
QMI; (2) limited price orders to be executed immediately on XLE; and 
(3) Pegged Orders. XLE Participants will be able to designate during 
which contiguous XLE trading session(s) their limited price orders will 
be eligible for execution.
    Limited Price Orders Subject to QMI. XLE Participants that enter 
Limit Orders \88\ and Reserve Orders \89\ will be able to choose from 
certain QMI. The following QMI will be available to XLE Participants: 
(1) ``Ship and Quote''; and (2) ``Post Order and Participate'' 
(``POP''). Pursuant to a Ship and Quote instruction, XLE will execute 
immediately and automatically against existing orders in XLE at their 
displayable price, and route IOC ISO orders to any away Protected 
Quotations, up to and including the order's limit price.\90\ Any 
remaining shares will be displayable on XLE at the order's limit price.
---------------------------------------------------------------------------

    \88\ See proposed Phlx Rule 185(b)(1)(A).
    \89\ See proposed Phlx Rule 185(b)(1)(B).
    \90\ See proposed Phlx Rule 185(b)(1)(C)(i). If an order with 
Ship and Quote instructions arrives while the market is crossed 
(i.e., the Protected Bid is priced higher than the Protected Offer), 
then XLE will not route IOC ISO orders to any away Protected 
Quotations.
---------------------------------------------------------------------------

    Pursuant to a POP instruction, XLE will execute immediately and 
automatically against existing orders in XLE at their displayable price 
up to and including the price of the best away Protected Quotation, and 
route IOC ISO orders to the best away Protected Quotations. After XLE 
receives responses from away markets, XLE will continue to route IOC 
ISO orders to away orders priced at the best away Protected Quotation 
until the incoming order is fully executed or its limit price is 
reached. Further, while it is routing IOC ISO orders, XLE also will 
display any unexecuted and unrouted shares of the incoming order on XLE 
at $.01 away from the best Protected Offer (in the case of an incoming 
order to buy) or Bid (in the case of an incoming order to sell).\91\
---------------------------------------------------------------------------

    \91\ See proposed Phlx Rule 185(b)(1)(C)(ii). However, if the 
market is crossed (i.e., the Protected Bid is priced higher than the 
Protected Offer), then the incoming order will be displayable as a 
bid (offer) on XLE, in the case of a buy (sell) order, at the same 
price as the best Protected Quotation Offer (Bid). Further, if the 
market is locked (i.e., the Protected Bid is priced equal to the 
Protected Offer) and XLE is displaying an order at the Protected 
NBBO on the same side of the market as the incoming order, then the 
incoming order will be displayable at the Protected NBBO.
---------------------------------------------------------------------------

    Limited Price Orders Subject to Immediate Execution. Limit Orders 
and Reserve Orders may be marked ``Do Not Route,'' in which case they 
will be immediately and automatically executed against existing orders 
on XLE at their displayable price up to and including the price of the 
best away Protected Quotation, with any remainder displayable as a bid 
(offer) on XLE, in the case of a buy (sell) order, at $.01 away from 
the best Protected Offer (Bid).\92\ Unless marked as ``Do Not Route,'' 
XLE will route the order, if marketable, to another market center.
---------------------------------------------------------------------------

    \92\ See proposed Phlx Rule 185(b)(1)(D). However, if the market 
is locked (i.e., the Protected Bid is priced equal to the Protected 
Offer) and XLE is displaying an order at the Protected NBBO on the 
same side of the market as the incoming order, then the incoming 
order will be displayable at the same price as the Protected NBBO. 
Further, if the market is crossed (i.e., the Protected Bid is priced 
higher than the Protected Offer), then the incoming order will 
execute on XLE without regard to away Protected Quotations, and any 
unexecuted remainder will be displayable on XLE at its limit price.

---------------------------------------------------------------------------

[[Page 59190]]

    Limited price orders of the following types may also be executed 
immediately on XLE: (1) IOC orders; (2) SSO orders; and (3) ISO 
orders.\93\ An IOC order will execute immediately and automatically 
against existing orders on XLE at their displayable price up to and 
including the price of the best away Protected Quotation unless the 
market is crossed (i.e., the Protected Bid is priced higher than the 
Protected Offer), in which case XLE will ignore the away Protected 
Quotations.\94\ A SSO order will execute immediately and automatically 
against existing orders on XLE at their displayable price and will be 
routed away to Protected Quotations (using IOC ISO orders), up to and 
including the order's limit price.\95\ An ISO order will execute 
immediately and automatically against existing orders on XLE at their 
displayable price without regard to any away Protected Quotations.\96\ 
Any shares of an IOC, SSO, or ISO order not immediately executed, as 
described above, will be cancelled.
---------------------------------------------------------------------------

    \93\ See proposed Phlx Rule 185(b)(2). Any shares of these 
orders that are not immediately executed will be cancelled.
    \94\ See proposed Phlx Rule 185(b)(2)(A). Exchange members 
should remain mindful of their best execution obligations when 
handling customer order types that may execute on XLE without regard 
to the best away Protected Quotation when the market is crossed 
(i.e., the Protected Bid is priced higher than the Protected Offer).
    \95\ See proposed Phlx Rule 185(b)(2)(B).
    \96\ See proposed Phlx Rule 185(b)(2)(C). XLE Participants that 
enter an ISO order must ensure that the ISO meets the requirements 
of Regulation NMS Rule 600(b)(30).
---------------------------------------------------------------------------

    Pegged Orders. Pegged Orders feature a display price that is set to 
track either side of the current best Protected Bids or Offers by an 
amount specified by the XLE Participant in an increment permitted by 
proposed Phlx Rule 125; provided, however that the display price will 
not be permitted to lock or cross the market in a manner that would 
violate proposed Phlx Rule 186.\97\ The tracking of the relevant 
Protected Bid or Offer for Pegged Orders will occur on a real-time 
basis, except that when the calculated price for the Pegged Order 
exceeds its limit price, it will no longer track and will remain 
displayed at its limit price.
---------------------------------------------------------------------------

    \97\ See proposed Phlx Rule 185(b)(3). See also Amendment No. 3, 
supra note 5 (clarifying the definition of Pegged Order).
---------------------------------------------------------------------------

2. Two-Sided Orders
    XLE also will accept several types of two-sided cross orders, 
including: (1) Mid-Point Cross Orders; (2) IOC Cross Orders; (3) IOC 
Cross Orders marked as Benchmark or Qualified Contingent Trades; and 
(4) cross orders marked for ``non-regular way'' settlement.
    Mid-Point Cross and IOC Cross Orders Generally. XLE will accept 
Mid-Point Cross Orders that execute at the midpoint of the Protected 
NBBO, unless the Protected Bid is higher than the Protected Offer, in 
which case the Mid-Point Cross Order will be cancelled.\98\ XLE also 
will accept IOC Cross Orders that execute at a specified price; 
however, XLE will cancel such order at the time of entry if: (1) The 
specified price is equal to or inferior to the price of the best order 
on XLE disseminated pursuant to proposed Phlx Rule 184(c) \99\ (except 
as discussed below); and (2) the specified price would trade through 
the price of the Protected NBBO, unless the Protected Bid is priced 
higher than the Protected Offer or the IOC Cross Order is marked as 
meeting the requirements of an intermarket sweep order in Rule 
600(b)(30) of Regulation NMS,\100\ as Benchmark, or as a Qualified 
Contingent Trade.\101\
---------------------------------------------------------------------------

    \98\ See proposed Phlx Rule 185(c)(1)(C).
    \99\ An IOC Cross Order will not be permitted to take priority 
over existing orders on XLE for less than the minimum quoting 
increment for that NMS Stock indicated in proposed Phlx Rule 125. 
See proposed Phlx Rule 125.
    \100\ IOC Cross Orders so marked are intended to meet the 
definition of an intermarket sweep order in Rule 600(b)(30) of 
Regulation NMS, 17 CFR 242.600(b)(30), because the order has a limit 
price and the XLE Participant sending the order is responsible to 
send the other orders required by Rule 600(b)(30)(ii), 17 CFR 
242.600(b)(30)(ii).
    \101\ See proposed Phlx Rule 185(c)(3).
---------------------------------------------------------------------------

    Approved Dealer Status for Mid-Point Cross Orders and IOC Cross 
Orders. In addition, with respect to Mid-Point Cross Orders and IOC 
Cross Orders, Phlx has proposed to use Approved Dealer \102\ status in 
determining whether there will be additional flexibility in how these 
two-sided orders will be executed.\103\ As proposed, XLE will cancel 
Mid-Point Cross Orders when the Protected NBBO is locked and IOC Cross 
Orders if such orders would trade: (1) If entered by an Approved 
Dealer, at the price of a Public Agency Order \104\ on XLE disseminated 
pursuant to proposed Phlx Rule 184(c); or (2) if entered by other than 
an Approved Dealer, at the price of a Public Agency Order, a 
Proprietary Order,\105\ or a Professional Order \106\ on XLE 
disseminated pursuant to proposed Phlx Rule 184(c). In other words, XLE 
will afford Approved Dealers execution priority for their orders over 
same-priced Professional Orders and Proprietary Orders, but not Public 
Agency Orders, of other XLE Participants.
---------------------------------------------------------------------------

    \102\ See proposed Phlx Rule 185(c). The term ``Approved 
Dealer'' means a Market Maker on XLE in that security or a 
specialist or market maker registered as such with another exchange 
or NASD in that security. See proposed Phlx Rule 1(a).
    \103\ The Exchange believes that this provision is similar to 
former National Securities Exchange (``NSX'') Rule 11.9(l)-(m), (u). 
See Notice, supra note 3, 71 FR at 50486 (note 75).
    \104\ The term ``Public Agency Order'' means an order for the 
account of a person other than a broker or dealer, which order is 
represented, as agent, by a XLE Participant. See proposed Phlx Rule 
1(ee).
    \105\ The term ``Proprietary Order'' means an order for the 
account of the XLE Participant who entered the order into XLE. See 
proposed Phlx Rule 1(bb).
    \106\ The term ``Professional Order'' means an order for the 
account of a broker or dealer, which order is represented, as agent, 
by a XLE Participant. See proposed Phlx Rule 1(aa).
---------------------------------------------------------------------------

    Large Mid-Point Cross Orders and IOC Cross Orders. XLE also will 
allow large Mid-Point Cross Orders and IOC Cross Orders to take 
priority over same-priced orders on XLE, if the orders meet certain 
size and other thresholds. In other words, XLE will not cancel a Mid-
Point Cross Order or an IOC Cross Order with a price equal to the price 
of the best disseminated order on XLE, where neither side is marked as 
Proprietary, and the order is for at least 5,000 shares and has an 
aggregate value of at least $100,000, and the order is larger than the 
aggregate size disseminated on XLE at the cross price.\107\
---------------------------------------------------------------------------

    \107\ See proposed Phlx Rule 185(c)(1) and (2).
---------------------------------------------------------------------------

    Benchmark and Qualified Contingent Trade Modifiers. As proposed, 
XLE also will accept two-sided IOC Cross Orders marked as Benchmark 
Orders or Qualified Contingent Trades. Orders marked ``Benchmark'' will 
be required to meet the requirements of Rule 611(b)(7) of Regulation 
NMS.\108\ Orders marked ``Qualified Contingent Trade'' will be required 
to meet the requirements of the exemption to Rule 611 of Regulation NMS 
issued by the Commission on August 31, 2006.\109\
---------------------------------------------------------------------------

    \108\ 17 CFR 242.611(b)(7). Under Regulation NMS Rule 611(b)(7), 
the Benchmark order's price could not be based, directly or 
indirectly, on the quoted price of the subject security at the time 
of execution, and the material terms could not have been reasonably 
determinable at the time the commitment to execute the order was 
made. See id. Orders marked ``Benchmark'' will not be permitted to 
take priority over existing orders on XLE for less than the minimum 
quoting increment for that NMS Stock indicated in proposed Phlx Rule 
125. See Notice, supra note 3, 71 FR at 50486 (text accompanying 
note 77). The Exchange has stated that it will seek an exemption 
from Rule 612 of Regulation NMS to accept two-sided orders marked 
Benchmark in increments no smaller than $0.0001. See id., 71 FR at 
50485 (note 51). The Exchange has stated that, contrary to its 
intent as reflected in the Notice, it intends to seek appropriate 
relief to permit orders to be marked ``Benchmark'' prior to the 
February 5, 2007 Trading Phase Date for Regulation NMS. See 
Amendment No. 3, supra note 5.
    \109\ See Securities Exchange Act Release No. 54389 (August 31, 
2006), 71 FR 52829 (September 7, 2006) (order granting an exemption 
for Qualified Contingent Trades from Rule 611(a) of Regulation NMS). 
The Exchange has stated that it no longer intends to permit orders 
to be marked as ``Qualified Contingent Trades'' prior to the 
February 5, 2007 Trading Phase Date for Regulation NMS. See 
Amendment No. 3, supra note 5.

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[[Page 59191]]

    Non-Regular Way Crosses. Finally, XLE will accept cross orders 
marked for ``non-regular way'' settlement. Such orders will execute at 
any price, without regard to the Protected NBBO or any other orders on 
XLE, provided that Mid-Point Cross Orders marked non-regular way will 
be cancelled when the Protected Bid is higher than the Protected 
Offer.\110\
---------------------------------------------------------------------------

    \110\ See proposed Phlx Rule 185(c)(4).
---------------------------------------------------------------------------

    The Commission believes that the Exchange's proposed rules relating 
to order priority and order execution are designed to perfect the 
mechanism of a free and open market and a national market system and to 
protect investors and the public interest, and are consistent with the 
requirements of the Act. The Commission further believes that these 
proposed rules are designed to provide investors with flexibility in 
executing their orders, while still ensuring that customer priority 
principles are upheld, thereby promoting efficiency of executions and 
helping to promote competition on the XLE system and the national 
market system in general.
    With respect to the Exchange's proposed rule governing the effect 
of Approved Dealer status for Mid-Point Cross Orders and IOC Cross 
Orders, the Commission believes that the Exchange's proposed approach 
is consistent with the Act in that it protects the price-time priority 
of non-broker dealer orders by prohibiting Approved Dealers from 
obtaining priority for their cross orders over same-priced Public 
Agency Orders on XLE. In addition, the Commission believes that the 
Exchange's proposal is similar to the rules previously approved for 
another exchange.\111\ The Commission also notes that it has approved 
rules substantially similar to those proposed by the Exchange relating 
to large cross orders.\112\
---------------------------------------------------------------------------

    \111\ See former NSX Rule 11.9(u). See also Securities Exchange 
Act Release Nos. 54391 (August 31, 2006), 71 FR 52836 (September 7, 
2006) (File No. SR-NSX-2006-08) (order approving proposed rule 
change that, among other things, deleted NSX Rule 11.9(u)); and 
37046 (March 29, 1996), 61 FR 15322 (April 5, 2006) (File No. SR-
CSE-95-03) (order approving proposed rule change regarding the 
preferencing of public agency orders).
    \112\ See, e.g., Securities Exchange Act Release Nos. 54391 
(August 31, 2006), 71 FR 52836 (September 7, 2006) (File No. SR-NSX-
2006-08); and 46568 (September 27, 2002), 67 FR 62276 (October 4, 
2002) (File No. SR-Amex-2002-23).
---------------------------------------------------------------------------

D. Outbound Router

    Phlx proposed that PRO Securities LLC (``PRO''), a wholly-owned 
subsidiary of Order Execution Services Holdings, Inc. (``OES''), 
operate as a ``facility'' of the Exchange.\113\ PRO's only function 
will be to provide an optional routing service to XLE Participants, 
thereby enabling them to route eligible order types \114\ from XLE to 
other securities exchanges, facilities of securities exchanges, 
automated trading systems, electronic communications networks 
(``ECNs''), or other brokers or dealers (collectively, ``Trading 
Centers'') through other brokers operating on XLE that are members or 
participants of those trading centers (``Access Brokers'') (such 
function is referred to as the ``Outbound Router'').
---------------------------------------------------------------------------

    \113\ See 15 U.S.C. 78c(a)(2). PRO is a broker-dealer and a 
member of the NASD, and is applying to become a member of the 
Exchange. The Exchange has represented that PRO will not engage in 
any business other than its Outbound Router function, except as 
approved by the Commission. See Notice, supra note 3, 71 FR at 
50493.
    \114\ Certain order types, including Limit Orders, Reserve 
Orders, and SSOs are eligible to be routed.
---------------------------------------------------------------------------

    XLE Participants'' use of PRO to route orders to another trading 
center will be optional and subject to Exchange rules. Those XLE 
Participants that choose to use PRO's Outbound Router function must 
sign a Routing Agreement. XLE Participants that elect not to use PRO's 
Outbound Router function may still enter orders on XLE, but they may 
only enter orders that are not routable to other trading centers.
    PRO will be subject to several conditions and undertakings that are 
reflected in proposed Phlx Rule 185(g). As an Outbound Router, PRO will 
receive routing instructions from XLE, route orders to broker-dealers 
to route to another trading center, and report such executions back to 
XLE. All orders routed through PRO will be subject to the Exchange's 
rules. PRO will not be able to change the terms of an order or the 
routing instructions, nor will PRO have any discretion about where to 
route an order.
    As a facility of the Exchange, the Outbound Router function of PRO 
will be subject to the Commission's continuing oversight. In particular 
and without limitation, under the Act, the Exchange will be responsible 
for filing with the Commission rule changes and fees relating to the 
PRO Outbound Router function, and PRO will be subject to exchange non-
discrimination requirements.\115\ Further, the Exchange has represented 
that the National Association of Securities Dealers, Inc. (``NASD'') 
will be responsible for regulatory oversight and enforcement as the 
Outbound Router's Designated Examining Authority (``DEA'') pursuant to 
Rule 17d-1 of the Act.\116\ In addition, the Exchange intends to enter 
into a 17d-2 agreement with the NASD to regulate PRO for compliance 
with applicable Exchange rules and federal securities rules and 
regulations.\117\
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    \115\ See 15 U.S.C. 78f(b)(5).
    \116\ 17 CFR 240.17d-1. See also Notice, supra note 3, 71 FR at 
50493.
    \117\ See Notice, supra note 3, 71 FR at 50493.
---------------------------------------------------------------------------

    The Exchange notes that the PRO's Outbound Routing function 
includes the clearing functions that it may perform for trades with 
respect to orders routed to other trading centers. Pursuant to proposed 
Rule 185(g), the Exchange will be required to establish and maintain 
procedures and internal controls reasonably designed to adequately 
restrict the flow of confidential and proprietary information between 
the Exchange and the Routing Facility, and any other entity, including 
any affiliate of the Routing Facility. Moreover, the books, records, 
premises, officers, agents, directors and employees of the Routing 
Facility, as a facility of the Exchange, will be deemed to be the 
books, records, premises, officers, agents, directors and employees of 
the Exchange for purposes of, and subject to oversight pursuant to, the 
Act. Further, the books and records of the Routing Facility, as a 
facility of the Exchange, will be subject at all times to inspection 
and copying by the Exchange and the Commission.
    The Commission agrees with the Exchange that PRO's services as 
Outbound Router would qualify it as a ``facility'' of the Exchange, 
and, consequently, the operation of the Outbound Router will be subject 
to Exchange oversight, as well as Commission oversight. The Commission 
notes that the Outbound Router functionality is not the exclusive means 
for accessing better-priced orders in other market centers should an 
order not be executable on XLE. Accordingly, PRO's routing services are 
optional, and a XLE Participant is free to route its orders to other 
market centers through alternative means. In light of the protections 
afforded by the conditions discussed above, the Commission believes 
that the Exchange's Outbound Router function, and the rules and 
procedures governing the Outbound Router, are appropriate and 
consistent with the Act.

E. Market Makers

    The Exchange will allow XLE Participants that are member 
organizations to register to act as Market

[[Page 59192]]

Makers on XLE.\118\ Market Makers, once registered as such, can then 
choose to register in one or more securities that are traded on XLE. 
Once registered in a particular security, Market Makers will be 
required to maintain continuous Limit Orders on both sides of the 
market in that security during XLE's Core Session.
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    \118\ See proposed Phlx Rule 170(a) and (b).
---------------------------------------------------------------------------

    Although the proposed rules provide for Market Makers, an NMS Stock 
may trade on XLE without a Market Maker. While the presence of a Market 
Maker in a security is not required, the Exchange has proposed to allow 
Market Makers to provide an additional source of liquidity to XLE in 
the securities in which the Market Maker is making markets. Market 
Makers can use any of the order types available to any other XLE 
Participant, but there are no special order types or quotations 
available to Market Makers. Orders from Market Makers on XLE will be 
treated the same as orders from other XLE Participants. In addition, 
Market Makers will not have any special or enhanced access to, or 
responsibility for, the orders on XLE in any given security.
    Proposed Phlx Rule 170 governs the registration of Market Makers on 
XLE. The Exchange will review an application of a member organization 
to become a Market Maker, considering such factors as capital, 
operations, personnel, technical resources, and disciplinary 
history.\119\ In the event that an application is disapproved by the 
Exchange, the applicant would have an opportunity to be heard upon the 
specific grounds for the denial, in accordance with the provisions of 
proposed Phlx Rule 174.\120\
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    \119\ See proposed Phlx Rule 170(b).
    \120\ See proposed Phlx Rule 170(c).
---------------------------------------------------------------------------

    The registration of a Market Maker may be suspended or terminated 
by the Exchange upon a determination of any substantial or continued 
failure by such Market Maker to engage in dealings in accordance with 
proposed Phlx Rule 173, which describes the obligations of Market 
Makers.\121\ Additionally, a Market Maker may withdraw its registration 
by giving written notice to the Exchange.\122\ Subsequent to 
withdrawal, the member organization will not be permitted to re-
register as a Market Maker for a period of six months.\123\
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    \121\ See proposed Phlx Rule 170(d).
    \122\ See proposed Phlx Rule 170(e). A Market Maker who fails to 
give a ten-day written notice of withdrawal to the Exchange may be 
subject to formal disciplinary action pursuant to Phlx Rule 960.1 et 
seq.
    \123\ See proposed Phlx Rule 170(e).
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    Once registered as a Market Maker, a member organization may 
register in a newly authorized security or in a security already 
admitted to dealings on XLE by filing a security registration form with 
the Exchange.\124\ A Market Maker's registration in a security may be 
terminated by the Exchange if the Market Maker fails to enter 
quotations in the security within five business days after the Market 
Maker's registration in the security becomes effective.\125\ In 
addition, the Exchange may suspend or terminate any registration of a 
Market Maker in a security or securities under proposed Phlx Rule 172 
whenever, in the Exchange's judgment, the interests of a fair and 
orderly market are best served by such action.\126\
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    \124\ See proposed Phlx Rule 172(a).
    \125\ See proposed Phlx Rule 172(b).
    \126\ See proposed Phlx Rule 172(d). Any such suspension or 
withdrawal of privileges by the Exchange would be subject to review 
pursuant to proposed Phlx Rule 174, which permits an appeal to the 
Board of Governors pursuant to By-Law Article XI, Section 11-1(a).
---------------------------------------------------------------------------

    Upon becoming a Market Maker and registering in one or more 
securities on XLE, a Market Maker will be required to assume a number 
of responsibilities.\127\ A Market Maker must engage in a course of 
dealings for its own account to assist in the maintenance, insofar as 
reasonably practicable, of a fair and orderly market on XLE. Among 
other things, a Market Maker must maintain adequate minimum capital in 
accordance with Phlx Rule 703 and must remain in Good Standing \128\ 
with the Exchange. Each Market Maker must use electronic system(s) to 
maintain continuously two-sided markets with at least one Limit Order 
to buy and at least one Limit Order to sell, each for at least a round 
lot, in those securities in which the Market Maker is registered to 
trade. A Market Maker must meet these obligations during XLE's Core 
Session in its registered securities on all days that XLE is open for 
business.\129\
---------------------------------------------------------------------------

    \127\ See proposed Phlx Rule 173(a).
    \128\ See proposed Phlx Rule 1(h).
    \129\ See proposed Phlx Rule 173(b).
---------------------------------------------------------------------------

    Market Maker Authorized Traders. Because Market Makers must be 
member organizations, individuals who enter orders on XLE in the course 
of making markets for a Market Maker are Market Maker Authorized 
Traders (``MMATs''). The Exchange may, upon receiving an application in 
writing from a Market Maker on a form prescribed by the Exchange, 
register a member of the Exchange as a MMAT. Each MMAT must be a member 
of the Exchange at all times he or she is acting as a MMAT.\130\ All 
orders entered by a MMAT must contain the identification of the 
individual MMAT that entered the order.\131\ MMATs may be officers, 
partners, employees or other associated persons of member organizations 
that are registered with the Exchange as Market Makers.\132\ The 
Exchange may grant a member conditional registration as a MMAT subject 
to any conditions it considers appropriate in the interests of 
maintaining a fair and orderly market.\133\ In addition, to be eligible 
for registration as a MMAT, a person must have served as a dealer-
specialist or market maker on a registered national securities exchange 
or association (or be deemed to have similar experience from having 
functioned as a trader) for at least one year within three years of the 
date of application, or, in the alternative, must successfully complete 
the General Securities Registered Representative Examination (``Series 
7'').\134\
---------------------------------------------------------------------------

    \130\ See proposed Phlx Rule 171(b).
    \131\ See proposed Phlx Rule 171(a).
    \132\ See proposed Phlx Rule 171(b)(1).
    \133\ See proposed Phlx Rule 171(b)(3).
    \134\ See proposed Phlx Rule 171(b)(5).
---------------------------------------------------------------------------

    Upon written request, a member organization may withdraw the 
registration of one of its MMATs.\135\ In addition, the Exchange may 
suspend or withdraw an MMAT's registration if it determines that: (1) 
The MMAT has caused the Market Maker to not properly perform the 
responsibilities of a Market Maker; (2) the MMAT has failed to meet the 
conditions set forth under the preceding paragraph; or (3) the Exchange 
believes it is in the interest of maintaining fair and orderly 
markets.\136\ If the Exchange suspends the registration of a person as 
a MMAT, the Market Maker must not allow the person to submit orders on 
XLE.\137\
---------------------------------------------------------------------------

    \135\ See proposed Phlx Rule 171(c)(3).
    \136\ See proposed Phlx Rule 171(c)(1).
    \137\ See proposed Phlx Rule 171(c)(2). Any such suspension or 
withdrawal of MMAT privileges by the Exchange is subject to review 
pursuant to proposed Phlx Rule 174.
---------------------------------------------------------------------------

    The Commission believes that the proposed rules concerning Market 
Makers and MMATs are appropriate and consistent with the Act.

F. Access

    Members and member organizations can register with the Exchange to 
become XLE Participants, which requires entering into a XLE Participant 
Agreement with the Exchange.\138\ In addition to providing access to 
its members and member organizations, the Exchange has proposed to 
allow

[[Page 59193]]

member organizations to sponsor other persons to gain access to XLE. 
When doing so, these member organizations will be referred to as 
``Sponsoring Member Organizations,'' and the persons sponsored will be 
referred to as ``Sponsored Participants.'' \139\ A Sponsored 
Participant and its Sponsoring Member Organization will be required to 
enter into and maintain a XLE Participant Agreement with the Exchange, 
in which the Sponsoring Member Organization must designate the 
Sponsored Participant by name.\140\ The XLE Participant Agreement is 
intended to highlight the responsibilities that a XLE Participant has 
regarding its use of XLE and bind Sponsored Participants to their terms 
of use of XLE.
---------------------------------------------------------------------------

    \138\ See proposed Phlx Rule 180(a). Among other things, the 
Exchange would confirm that the member or member organization has 
the proper clearing relationships and has the ability to 
electronically connect to XLE.
    \139\ See proposed Phlx Rule 180(b).
    \140\ See proposed Phlx Rule 180(b)(2)(A).
---------------------------------------------------------------------------

    Sponsored Participants also will be required to enter into and 
maintain customer agreements with one or more Sponsoring Member 
Organizations so that Sponsoring Member Organizations may maintain the 
requisite level of control over the Sponsored Participants' trading on 
XLE. The Exchange has proposed certain sponsorship provisions in its 
proposed Rule 180. Among other things, these agreements will specify 
that all orders entered by the Sponsored Participants and any person 
acting on behalf of or in the name of such Sponsored Participant and 
any executions occurring as a result of such orders are binding in all 
respects on the Sponsoring Member Organization, and that the Sponsoring 
Member Organization is responsible for any and all actions taken by 
such Sponsored Participant and any person acting on behalf of or in the 
name of such Sponsored Participant. In addition, the agreement will 
specify that a Sponsored Participant may not permit anyone other than 
its Participant Authorized Users (``PAUs'') to use or obtain access to 
XLE, and the Sponsored Participant is required to establish adequate 
procedures and controls to monitor access and prevent unauthorized use 
or access to XLE.
    The Commission believes that the Exchange's proposed rules relating 
to access to XLE for its members and member organizations and certain 
other persons who are sponsored by member organizations are consistent 
with the Act. The Commission notes that it has previously approved 
similar rules for other exchanges.\141\
---------------------------------------------------------------------------

    \141\ See, e.g., NYSE Arca Rule 7.29.
---------------------------------------------------------------------------

G. Anonymity

    Except as provided below, transactions executed on XLE will be 
processed anonymously. XLE transaction reports will indicate the 
details of the transaction, but will not reveal contra-party 
identities.\142\ XLE will maintain this anonymity after the execution 
by instructing the registered clearing agencies of the anonymous nature 
of the transaction.\143\ Additionally, no one who has the right to 
trade on XLE and who has been a party to or has knowledge of an 
execution will be under an obligation to divulge, except to the 
Exchange, the name of the person buying or selling in any 
transaction.\144\ By masking the XLE Participant's identity, the 
Exchange believes that it may help XLE Participants mitigate the market 
impact of their orders.\145\
---------------------------------------------------------------------------

    \142\ See Proposed Phlx Rule 189(b).
    \143\ See Securities Exchange Act Release Nos. 52651 (October 
21, 2005), 70 FR 65956 (November 1, 2005) (File No. SR-SCCP-2004-
03); 48526 (September 23, 2003), 68 FR 56367 (September 30, 2003) 
(File No. SR-NSCC-2003-14). See also Letter from Everton McLennon, 
Vice President, SCCP, to Jerry Carpenter, Assistant Director, 
Division of Market Regulation, Commission, dated September 12, 2006 
(notifying the Commission, as required by a condition of approval to 
File No. SR-SCCP-2004-03, that SCCP intends to begin processing 
trades executed on an anonymous trading system).
    \144\ See Proposed Phlx Rules 161 and 189(c). Since the 
Exchange's proposed clearly erroneous execution rule will be 
coordinated by the Exchange, the Exchange has stated that post-trade 
anonymity should not compromise a XLE Participant's ability to 
settle an erroneous trade. See Notice, supra note 3, 71 FR at 50488.
    \145\ See, e.g., Securities Exchange Act Release No. 49053 
(January 12, 2004), 69 FR 2642 (January 16, 2004) (File No. SR-PCX-
2003-63) (notice of filing and immediate effectiveness of proposed 
rule change relating to post-trade anonymity).
---------------------------------------------------------------------------

    Notwithstanding the above, the Exchange will reveal the identity of 
the member organization or the member organization's clearing firm in 
the following limited circumstances: (1) For regulatory purposes or to 
comply with an order of a court or arbitrator; (2) when the National 
Securities Clearing Corporation (``NSCC'') or Stock Clearing 
Corporation of Philadelphia (``SCCP'') ceases to act for a member 
organization or the member organization's clearing firm and NSCC or 
SCCP determines not to guarantee the settlement of the member 
organization's trades; or (3) on risk management reports provided to 
the contra-party of the member organization or the member 
organization's clearing firm which disclose trading activity on an 
aggregate dollar value basis.\146\ Also, the Exchange will inform a 
member organization when that member organization submits an order that 
has executed against an order submitted by that same member 
organization.\147\
---------------------------------------------------------------------------

    \146\ See Proposed Phlx Rule 189(c).
    \147\ See Proposed Phlx Rule 189(d).
---------------------------------------------------------------------------

    In order to satisfy the member organization's recordkeeping 
obligations under Rules 17a-3(a)(1) \148\ and 17a-4(a) under the 
Act,\149\ the Exchange will, except as provided below, retain for the 
period specified in Rule 17a-4(a) the identity of each member 
organization that executes an anonymous transaction described in 
paragraph (b) of proposed Phlx Rule 189. In addition, member 
organizations will retain the obligation to comply with Rules 17a-
3(a)(1) and 17a-4(a) under the Act whenever they possess the identity 
of their contra-party. In either case, the information must be retained 
in its original form or a form approved under Rule 17a-6 under the 
Act.\150\ The Commission believes that the proposed rules relating to 
anonymity are appropriate and consistent with the Act.
---------------------------------------------------------------------------

    \148\ 17 CFR 240.17a-3(a)(1).
    \149\ 17 CFR 240.17a-4(a).
    \150\ 17 CFR 240.17a-6.
---------------------------------------------------------------------------

    In connection with XLE's proposed clearance and settlement 
anonymity, the Exchange has stated that it intends to request, for XLE 
Participants, an exemption from Rule 10b-10 under the Act,\151\ 
regarding the required disclosure of the contra-party on a customer's 
confirmation, and a no-action position on Rules 17a-3 and 17a-4 under 
the Act,\152\ regarding a XLE Participant's reliance on the Exchange 
for recordkeeping responsibilities for anonymous executions.\153\ The 
Commission notes that the Exchange may not commence operations on its 
XLE system with the anonymity functionality until it has obtained 
relief from the applicable rules discussed above.
---------------------------------------------------------------------------

    \151\ 17 CFR 240.10b-10.
    \152\ 17 CFR 240.17a-3 and 17 CFR 240.17a-4, respectively.
    \153\ See, e.g., Letter from Brian A. Bussey, Assistant Chief 
Counsel, Division of Market Regulation, Commission, to Mai S. 
Shiver, Senior Counsel, Pacific Exchange, Inc., dated April 30, 
2004.
---------------------------------------------------------------------------

H. Other Rule Changes to Implement XLE

    In addition to the proposed rules described above, to implement 
XLE, the Exchange has proposed several new rules and has proposed to 
amend a number of other existing Exchange rules that address, among 
other things, hours of trading, units of trading, price variations, 
securities eligible for trading, trade execution and reporting, 
clearance and settlement, and limitation of liability. The Commission 
believes that these proposed rule changes are appropriate and 
consistent with the Act.

[[Page 59194]]

I. Modifications to Current Phlx By-Laws and Rules

    Aside from the proposed rules to implement XLE, as part of its 
proposed rule change, the Exchange also proposes to modify various Phlx 
By-laws, Rules, Equity Floor Procedure Advices (``EFPAs''), and Options 
Floor Procedure Advices (``OFPAs'').\154\ Most of the changes are being 
made to either apply or disapply certain Phlx By-laws, Rules, EFPAs and 
OFPAs to XLE, or to reflect the elimination of the physical trading 
floor for equity securities and the status of XLE as its replacement. 
In addition, the proposed changes reflect the elimination of the Floor 
Procedure Committee and the Equity Allocation, Evaluation and 
Securities Committee, and reflect the elimination of PACE, the 
Exchange's current electronic system for trading equity securities.
---------------------------------------------------------------------------

    \154\ See Notice, supra note 3, 71 FR at 50494 (for a discussion 
of the modifications to current Phlx By-laws and Rules).
---------------------------------------------------------------------------

    With respect to the proposed elimination of the Floor Procedure 
Committee,\155\ the Exchange has represented that Phlx officers and 
employees will handle matters that were previously referred to Floor 
Officials or the Committee on the equity floor. The Exchange is 
eliminating the Floor Procedure Committee because it believes that its 
function in governing conduct on the equity trading floor is no longer 
necessary in light of the floor's elimination. With respect to the 
elimination of the Equity Allocation, Evaluation and Securities 
Committee, the Exchange has proposed that Exchange staff will be 
responsible for processing applications to become Market Makers on XLE. 
As proposed, Exchange staff also will be responsible for managing the 
listing of new equities. The Commission believes that these proposed 
rule changes, including the elimination of the Floor Procedure 
Committee and the Equity Allocation, Evaluation and Securities 
Committee, are appropriate and consistent with the Act.
---------------------------------------------------------------------------

    \155\ Currently, at least 50% of the Floor Procedure Committee 
must consist of permit holders or persons associated with a member 
organization.
---------------------------------------------------------------------------

    The Exchange also has proposed to delete several of its rules and 
forms relating to the delivery and settlement of securities, which the 
Exchange has represented are obsolete since such function is performed 
not by the Exchange but by registered clearing agencies. Further, the 
Exchange has proposed to require all XLE Participants to use the 
services of a clearing firm or SCCP to clear transactions on XLE.\156\ 
The Commission believes that these proposed rule changes are 
appropriate and consistent with the Act.
---------------------------------------------------------------------------

    \156\ See proposed Phlx Rule 165(a).
---------------------------------------------------------------------------

    Additionally, the Exchange is proposing to amend Phlx Rule 604 
(Registration and Termination of Registered Persons), to extend an 
exemption from the requirement to complete the Series 7 examination to 
persons who are primarily engaged in business on XLE and whose member 
organization is assigned to the Exchange as their designated examining 
authority.\157\ Phlx Rule 604(e)(1) applies the Exchange's competency 
requirement to persons ``off the floor,'' while persons trading on the 
Exchange's equity floor are not required by Phlx Rule 604 to take the 
Series 7 examination. XLE will not have a physical trading floor, and 
thus all XLE Participants literally will be conducting their business 
``off floor.'' Accordingly, the Exchange proposed to amend Phlx Rule 
604 to maintain the status quo with respect to the Exchange's Series 7 
examination requirement for XLE Participants.\158\ The Commission 
believes that the proposed change to Phlx Rule 604 is appropriate and 
consistent with the Act.
---------------------------------------------------------------------------

    \157\ The Exchange initially adopted the Series 7 examination 
requirement for off-floor traders in order to impose a competency 
requirement on persons not on its floor, and not subject to its 
registration and testing processes for floor personnel pursuant to 
Phlx Rules 620 and 625.
    \158\ XLE Participants could, however, be required by the rules 
of another self-regulatory organization to take the Series 7 
examination.
---------------------------------------------------------------------------

J. Compliance With Regulation NMS and Transition to XLE

    The Commission believes that the proposed rule change is consistent 
with the requirements of Regulation NMS. In particular, the Exchange 
proposes to adopt a rule with regard to locked and crossed markets, as 
required by Rule 610(d) of Regulation NMS.\159\ The Exchange also has 
designed its proposed rules relating to orders, modifiers, and order 
execution rules to comply with the requirements of Regulation NMS.\160\ 
These proposed rules include marking certain orders meeting the 
requirements of Rule 600(b)(30) of Regulation NMS \161\ as intermarket 
sweep orders and accepting orders marked as intermarket sweep orders. 
The Commission also believes that Phlx's proposed immediate-or-cancel 
functionality \162\ is consistent with Rule 600(b)(3) of Regulation 
NMS.
---------------------------------------------------------------------------

    \159\ 17 CFR 242.610(d). See also proposed Phlx Rule 186.
    \160\ For example, Proposed Phlx Rule 188 will require the 
Exchange to identify trades executed pursuant to an exception to or 
exemption from Rule 611 of Regulation NMS in accordance with 
specifications approved by the operating committee of the relevant 
national market system plan for an NMS Stock. For trades executed 
pursuant to both the intermarket sweep order exception of Rule 
611(b)(5) or (6) of Regulation NMS and the self-help exception of 
Rule 611(b)(1) of Regulation NMS, XLE will identify those trades as 
executed pursuant to the intermarket sweep order exception. See 
proposed Phlx Rule 188, as amended by Amendment No. 3.
    \161\ 17 CFR 242.600(b)(30).
    \162\ See proposed Phlx Rule 185(b)(2)(A).
---------------------------------------------------------------------------

    Further, the Exchange intends to operate XLE as an ``automated 
trading center'' as defined by Rule 600(b)(3) of Regulation NMS,\163\ 
and has designed the proposed trading rules for XLE accordingly. 
Specifically, XLE will display automated quotations at all times except 
in the event that a systems malfunction renders XLE incapable of 
displaying automated quotations.\164\ The Exchange has represented that 
it will halt trading and therefore not display any ``manual'' 
quotations in the event of such a systems malfunction.\165\ In 
addition, the Exchange included in proposed Phlx Rule 185(h) \166\ its 
intent to take advantage of the self-help provisions of Regulation NMS 
in the event that another trading center providing a Protected Bid, 
Offer or Quotation repeatedly fails to respond within one second to 
incoming orders attempting to access that Protected Bid, Offer or 
Quotation.\167\
---------------------------------------------------------------------------

    \163\ 17 CFR 242.600(b)(3).
    \164\ See proposed Phlx Rule 160.
    \165\ See Notice, supra note 3, 71 FR at 50483.
    \166\ See Amendment No. 3, supra note 5 (relocating the self-
help provision from proposed Phlx Rule 1(cc) to proposed Phlx Rule 
185(h)).
    \167\ See 17 CFR 242.611(b)(1). In particular, proposed Phlx 
Rule 185(h), which contains text that was relocated from proposed 
Phlx Rule 1(cc) via Amendment No. 3, provides that Phlx will 
disregard the away Protected Bid, Offer or Quotation when routing, 
displaying, canceling, or executing orders on XLE, and Phlx will 
notify the non-responding trading center when it elects self-help. 
Phlx will also assess whether the cause of the problem was with XLE, 
and, if so, would not invoke self-help.
---------------------------------------------------------------------------

    Transition to XLE. The Exchange has declared its intent to make the 
transition to XLE (thus closing its equities trading floor and PACE 
system) prior to the February 5, 2007 Trading Phase Date for Regulation 
NMS. As such, certain of its proposed rules or portions thereof that 
are designed to comply with the provisions of Regulation NMS will not 
become effective until February 5, 2007. The Exchange has proposed to 
achieve this delayed effectiveness through: (1) Including specific 
provisions in certain of its proposed rule text; \168\ or (2) by

[[Page 59195]]

requesting that the Commission allow the Exchange to delay the 
effectiveness of a particular proposed rule; \169\ or (3) as 
applicable, expressing its intent to apply to for any necessary relief 
from any provision of the ITS Plan still in effect.\170\ The Exchange 
intends to roll-out XLE in several phases, as discussed above in 
Section II.
---------------------------------------------------------------------------

    \168\ See, e.g., proposed Phlx Rule 1(cc) (the definition of 
Protected Bid, Offer or Quotation). The Exchange has provided for 
alternate definitions of ``Protected Bid, Offer or Quotation'' that 
are applicable both before and after Rule 611 of Regulation NMS is 
operative on the Exchange. See Notice, supra note 3, 71 FR at 50484. 
After Rule 611 of Regulation NMS is operative, a Protected Quotation 
will have the same meaning as Rule 600(b)(57) and (58) of Regulation 
NMS. 17 CFR 242.600(b)(57)-(58).
    \169\ See, e.g., proposed Phlx Rule 186; and Notice, supra note 
3, 71 FR at 50489. See, e.g., proposed Phlx Rule 186 (Locking or 
Crossing Quotations in NMS Stocks).
    \170\ See, e.g., proposed Phlx Rule 185(c)(3); and Amendment No. 
3, supra note 5. For example, with respect to the proposed incoming 
ISO Orders and IOC Cross Orders marked as ISO orders, and two-sided 
orders that are eligible to be marked ``Benchmark,'' the Exchange 
has stated that it intends to implement these order types prior to 
the Trading Phase Date for Regulation NMS, and accordingly, the 
Exchange would need to seek relief for any applicable provision of 
the ITS Plan that remains in effect. See Amendment No. 3, supra note 
5.
---------------------------------------------------------------------------

    The Commission believes that the Exchange has proposed a reasonable 
approach that should help ensure that the appropriate Exchange rules 
are in place when the operative date of the applicable Regulations NMS 
provisions occurs.\171\
---------------------------------------------------------------------------

    \171\ The Commission notes that, in the period preceding the 
operative date of Regulation NMS, the Exchange remains subject to 
currently applicable intermarket rules, including the ITS Plan. To 
the extent that the Exchange commences operations before Regulation 
NMS is operative, with respect to certain XLE features or order 
types, the Exchange, like all other exchanges subject to Regulation 
NMS, would need to obtain relief from any contrary provisions 
contained in any applicable plan, rule, or regulation. For example, 
in the absence of a Market Maker, XLE will not necessarily be able 
to maintain a continuous two-sided quote in a given security and 
thus will need relief from the ITS Plan's two-sided quote 
requirement. Similarly, the Exchange will need relief from the ITS 
Plan to recognize an exception permitting two-sided Benchmark orders 
and Qualified Contingent Trades to trade-through a Protected 
Quotation. Finally, the Exchange has proposed to delete Phlx Rule 
230 (ITS--Opening Notification) and EFPA S-3 (The ``Three by Three'' 
Requirement Applicable to Tape Indications and Pre-Openings); 
however, the Exchange has requested that the operative date of these 
deletions be no earlier than the date that the Exchange is no longer 
subject to the ITS pre-opening notification responsibilities in the 
ITS Plan.
---------------------------------------------------------------------------

V. Accelerated Approval of Amendment No. 3

    As set forth below, the Commission finds good cause to approve 
Amendment No. 3 to the proposed rule change prior to the thirtieth day 
after Amendment No. 3 is published for comment in the Federal Register 
pursuant to section 19(b)(2) of the Act.\172\ In Amendment No. 3, the 
Exchange made several technical, non-substantive changes to the 
proposed rule text to correct typographical errors and to include 
proper formatting of proposed rule text. In addition, the Exchange 
added language to proposed Phlx Rule 188 regarding identifiers for 
trades executed pursuant to both the intermarket sweep exception and 
the self-help provision in Rule 611 of Regulation NMS; relocated the 
self-help provision from proposed Phlx Rule 1(cc) to proposed Phlx Rule 
185(h) and changed the term ``cease to consider'' in that subsection to 
the word ``disregard''; and added text to proposed Phlx Rule 185(b)(3) 
to clarify the operation of Pegged Orders and clarified the purpose 
section discussion of that proposed rule. The Exchange also amended the 
terminology in proposed Phlx Rule 163 from ``Exchange Official'' to 
``Equity Exchange Official.'' In addition, the Exchange proposed to 
allow floor members and member organizations who become XLE 
participants to remain in their current space on the Exchange's floor, 
paying the applicable space rental fees (which the Exchange may or may 
not seek to eliminate during the transition to XLE, upon the filing of 
a proposed rule change with the Commission), for a short time while the 
Exchange's members transition to XLE. The Exchange also announced its 
revised intent, contrary to its intent expressed in the Notice, to 
request the appropriate relief from the ITS Plan provisions that remain 
in effect to implement ISO Orders and IOC Cross Orders marked ISO, as 
well as orders marked ``Benchmark,'' before the February 5, 2007 
Trading Phase Date of Regulation NMS. The Exchange further stated that 
it no longer intends to request relief to allow orders marked as a 
``Qualified Contingent Trade'' prior to the February 5, 2007 Trading 
Phase Date of Regulation NMS.
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    \172\ 15 U.S.C. 78s(b)(2).
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    The Commission believes that these clarifying and technical changes 
to the proposed rule change, as amended, improve the proposal and raise 
no new or novel issues and therefore should not delay approval of the 
proposed rule change, as amended. Accordingly, the Commission finds 
good cause to accelerate approval of Amendment No. 3, pursuant to 
section 19(b)(2) of the Act.\173\
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    \173\ 15 U.S.C. 78s(b)(2).
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VI. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning Amendment No. 3, including whether Amendment No. 3 
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 Number SR-Phlx-2006-43 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-1090. All submissions should refer to File Number 
SR-Phlx-2006-43. This file number should be included on the subject 
line if e-mail is used. To help the Commission process and review your 
comments more efficiently, please use only one method. The Commission 
will post all comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml
). Copies of the submission, all subsequent 

amendments, all written statements with respect to the proposed rule 
change that are filed with the Commission, and all written 
communications relating to the proposed rule change between the 
Commission and any person, other than those that may be withheld from 
the public in accordance with the provisions of 5 U.S.C. 552, will be 
available for inspection and copying in the Commission's Public 
Reference Room. Copies of the filing also will be available for 
inspection and copying at the principal office of the Phlx. 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-2006-43 and should be 
submitted on or before October 27, 2006.

VII. Conclusion

    It is therefore ordered, pursuant to section 19(b)(2) of the 
Act,\174\ that the proposed rule change (SR-Phlx-2006-43), as amended 
by Amendment Nos. 1 and 2, be, and hereby is, approved, and that 
Amendment No. 3 to the proposed rule change be, and hereby is, approved 
on an accelerated basis.
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    \174\ 15 U.S.C. 78s(b)(2).


[[Page 59196]]


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    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\175\
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    \175\ 17 CFR 200.30-3(a)(12).
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Nancy M. Morris,
Secretary.
[FR Doc. E6-16550 Filed 10-5-06; 8:45 am]

BILLING CODE 8011-01-P
