
[Federal Register: November 24, 2008 (Volume 73, Number 227)]
[Notices]               
[Page 71050-71062]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24no08-146]                         

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-58969; File No. SR-NYSE-2008-119]

 
Self-Regulatory Organizations; Notice of Filing of Proposed Rule 
Change by New York Stock Exchange LLC To Establish the New York Block 
Exchange

November 17, 2008.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(the ``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given 
that, on November 13, 2008, New York Stock Exchange LLC (``NYSE'' or 
the ``Exchange'') filed with the Securities and Exchange Commission 
(the ``Commission'') the proposed rule change as described in Items I, 
II, and III below, which Items have been prepared by the self-
regulatory organization. The Commission is publishing this notice to 
solicit comments on the proposed rule change from interested persons.
---------------------------------------------------------------------------

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

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

    The Exchange proposes to adopt Exchange Rule 1600 to establish the 
New York Block Exchange (``NYBX Facility'' or the ``Facility''). NYBX 
will be an electronic facility of the Exchange to provide for the 
continuous matching and execution of securities listed on the NYSE of 
all non-displayed orders with the aggregate of all displayed and non-
displayed orders of the NYSE Display Book [supreg] (``Display Book'' or 
``DBK'') while also considering protected quotations of all automated 
trading centers.
    The text of the proposed rule change is available at http://
www.nyse.com, NYSE's principal office, and the Commission's Public 
Reference Room.

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

    In its filing with the Commission, the self-regulatory organization 
included statements concerning the purpose of, and basis for, the 
proposed rule change and discussed any comments it received on the 
proposed rule change. The text of those statements may be examined at 
the places specified in Item IV below. The Exchange has prepared 
summaries, set forth in sections A, B, and C below, of the most 
significant parts of such statements.

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

1. Purpose
    The Exchange seeks to establish the NYBX Facility to provide its 
customers with the ability to aggregate multiple sources of liquidity 
and to facilitate trading in block-sized orders. This electronic, 
anonymous trading facility will also allow customers to execute smaller 
orders and have quick access to multiple price points of displayed 
liquidity to meet size and price execution requirements. The Facility 
allows for the interaction of non-displayed orders with the aggregate 
of displayed and non-displayed orders of the NYSE Display Book and the 
National Best Bid and Best Offer and considers protected quotations of 
all automated trading centers in compliance with Regulation NMS. The 
Facility will trade only securities listed on the NYSE (Tape A eligible 
securities).
    NYBX orders will not effect an execution except as permitted by 
Rule 611 (Regulation NMS).\3\ Thus, NYBX

[[Page 71051]]

orders will not trade-through a Protected Bid or Protected Offer except 
as allowed in Regulation NMS. If the execution of an NYBX order would 
trade through an automated trading center, the NYBX Facility will send 
routing instructions to the NYSE Routing Broker \4\ (``Routing 
Broker'') and the Routing Broker will route the applicable volume 
(e.g., the price and size of the displayed quotation) to the automated 
trading centers to attempt to execute with applicable protected 
quotations. The Routing Broker will also send applicable marketable 
orders from the NYBX Facility to the DBK to attempt to execute with 
contra side interest in the DBK's depth of book. The routing of orders 
from the NYBX Facility to automated trading centers, via the Routing 
Broker, occurs almost simultaneously with the sending of orders from 
the NYBX Facility to the DBK.
---------------------------------------------------------------------------

    \3\ See Securities Exchange Act Release No. 51808 (June 9, 
2005), 70 FR 37496 (June 29, 2005). When NYBX orders are calculated 
to be the midpoint of the NBBO, no trade-through executions will 
occur and, therefore, Rule 611 (``Order Protection Rule'') of 
Regulation NMS will not be violated.
    \4\ See NYSE Rule 17(c) (``Operation of Routing Broker''). 
Subsection (1) of Rule 17(c) provides:
    The Routing Broker(s) will receive routing instructions from the 
Exchange, to route orders to other market centers and report such 
executions back to the Exchange. The Routing Broker(s) cannot change 
the terms of an order or the routing instructions, nor does the 
Routing Broker(s) have any discretion about where to route an order.
    As per Rule 17(c), the NYBX Facility will use the Routing Broker 
to send NYBX orders to the DBK and to automated trading centers 
pursuant to Regulation NMS when attempting to execute such orders.
---------------------------------------------------------------------------

    Trading in the Facility will occur during regular trading hours of 
the Exchange (9:30 a.m. Eastern Time (``ET'') to 4 p.m. ET). On those 
days that the Exchange closes for business at times other than 4 p.m., 
the NYBX will close at those times as announced by the Exchange. NYBX 
orders to buy or sell securities will not be available for trading 
until such securities have opened on the Exchange.
    Orders that originate in the NYBX Facility and execute on the DBK 
will print regular way as NYSE prints (``N'') pursuant to the 
Consolidated Tape Association Plan (``CTA Plan'') through the NYSE. 
Executions that occur solely within the NYBX Facility (``NYBX only 
trades'') will also be printed pursuant to the CTA Plan, but will print 
with a modifier that will identify the execution as being outside the 
Display Book. Such trades will print to Tape A.\5\
---------------------------------------------------------------------------

    \5\ The print modifier that will be used for trades that occur 
in the NYBX Facility will be the same print modifier that is used 
for NYSE MatchPoint [supreg] prints. NYSE MatchPoint is a separate 
anonymous (undisplayed or dark) trading facility of the NYSE (See 
Rule 1500 NYSE MatchPoint [supreg]).
---------------------------------------------------------------------------

    Because executions that occur solely within the NYBX Facility will 
be printed with a different print modifier than those executions that 
occur in the DBK, such executions will not be counted for certain NYSE 
order processing purposes. Thus, Exchange systems will not include NYBX 
only trades when calculating trades that trigger the following DBK 
executions: (1) Pre-opening indications; (2) last sale trades; (3) odd 
lot trades;
    (4) Designated Market Maker (``DMMs'') \6\ obligations to re-enter 
the market; and (5) stop orders.
---------------------------------------------------------------------------

    \6\ See Securities Exchange Act Release No. 58845 (October 24, 
2008) 73 FR 64379 (October 29, 2008) (SR-NYSE-2008-46).
---------------------------------------------------------------------------

    For example, in relation to odd lot trades, because the price and 
size of odd lot limit order trades are determined by certain factors, 
including NYSE trading volume and the last sale on the NYSE DBK, a 
trade printed from the NYBX Facility could seriously disadvantage the 
DMMs who are the contra side for all executions of odd lot orders. In 
this situation, absent the proposed changes to the NYSE rules, the DMM 
would be bound as the contra side customer to odd lot orders up to the 
size of the block print in this dark facility even though they would 
have no knowledge of the size of the orders that make up the block 
print. Additionally, because DMMs have market re-entry obligations for 
stabilization purposes, such obligations will not apply when trading 
takes place in the dark NYBX Facility as DMMs will have no order 
information or market data upon which to make their trading decisions. 
To do otherwise would expose DMMs to unnecessary and undue financial 
risk. This treatment is similar to the way the Exchange currently 
handles other special condition trades, including executions on NYSE 
MatchPoint\SM\ (Rule 1500) and ``sold'' trades, which are reported to 
the tape out of sequence.
    As a result of the way in which the Exchange will process 
executions that occur solely within the NYBX Facility, the Exchange is 
seeking to amend those NYSE Rules that could be impacted by such 
executions. By amending affected NYSE Rules, the Exchange is alerting 
market participants to the fact that certain NYSE Rules that apply to 
trades that occur on the DBK will not apply to trades that occur solely 
within the NYBX Facility. Therefore, the Exchange is seeking to amend 
the following NYSE rules:
    (1) Rule 13 (Definitions) ``Sell `Plus'-Buy `Minus' Order:''
    The Exchange is proposing to add to the definition of the Sell 
Plus-Buy Minus order the following text: ``For purposes of this 
definition, a transaction that occurs in the NYBX Facility shall not be 
considered in the operation of sell plus-buy minus orders on the 
Exchange (See Rule 1600).''
    (2) Rule 13 (Definitions) ``Stop Order:''
    The Exchange is proposing to add to the definition of the Stop 
order the following text: ``For purposes of this definition, a 
transaction that occurs in the NYBX Facility shall not be considered in 
the operation of stop orders on the Exchange (See Rule 1600).''
    (3) Rule 15. ``Pre-Opening Indications:''
    The Exchange is proposing to add to section (d) of the rule 
governing pre-opening indications the following text: ``A transaction 
that occurs in the NYBX Facility shall not be considered in the 
operation of this rule (See Rule 1600).''
    (4) Rule 15A. ``Order Protection Rule:''
    The Exchange is proposing to add .60 to the ``Supplementary 
Material'' section of the Order Protection rule the following text: ``A 
transaction that occurs in the NYBX Facility shall not be considered in 
the operation of this rule (See Rule 1600).''
    (5) Rule 79A. ``Miscellaneous Requirements on Stock Market 
Procedures:''
    The Exchange is proposing to add to subsection (8) of the 
``Supplementary Material'' section of the Miscellaneous Requirements on 
Stock Market Procedures rule the following text: ``For purposes of this 
provision, the ``last sale'' shall not include any transaction that 
occurs in the NYBX Facility (See Rule 1600).''
    Additionally, the Exchange is proposing to add to section .30(d) of 
the Supplementary Materials the following text: ``For purposes of Rule 
79A.30, a transaction that occurs in the NYBX Facility shall not be 
considered the ``last sale,'' the ``current sale,'' or the ``last 
previous sale (See Rule 1600).''
    (6) Rule 100. ``Round-Lot Transactions of Odd-Lot Dealer or Broker 
Affecting Odd-Lot Orders:''
    The Exchange is proposing to add to the rule for ``Round-Lot 
Transactions of Odd-Lot Dealer or Broker Affecting Odd-Lot Orders'' 
under subsection (a) Transactions of Specialist-Odd Lot Dealer'' 
subsection (d), which will have the following text: ``For purposes of 
this rule, the ``last different round lot price'' shall not include 
prices of transactions that occur in the NYBX Facility (See Rule 
1600).''
    (7) Rule 104T. ``Dealings by DMMs:''
    The Exchange is proposing to add to Rule 104T in the 
``Supplementary Material'' section, under (``Functions of DMMs'') 
subsection .10(5), the following

[[Page 71052]]

text: ``For purposes of this provision, the ``last trade price'' shall 
not include the price of any transaction that occurs in the NYBX 
Facility (See Rule 1600).''
    Additionally, the Exchange is proposing to add to Rule 104T in the 
Supplementary Materials section under subsection (c) (``Prohibited 
Transactions'') of subsection (5) at subsection (III) the following 
text: ``As used in (i) and (II) above, the term ``price'' shall not 
include the price of any transaction that occurs in the NYBX Facility 
(See Rule 1600).''
    Additionally, the Exchange is proposing to add to Rule 104T in the 
Supplementary Materials section, under subsection .10(6) (``DMM 
Transactions in Securities that Establish or Increase the DMM's 
Position'') at subsection (ii)(c) the following text: ``As used in (a) 
and (b) above, the term ``last differently priced trade'' shall not 
include the price of any transaction that occurs in the NYBX Facility 
(See Rule 1600).'' In the same section, the Exchange is proposing to 
add to subsection (iii)(``Re-entry Obligations for Conditional 
Transactions'') subparagraph (c) (``Immediate re-entry is required 
after the following Conditional Transactions'') at subparagraph (d) the 
following text: ``For purposes of this section (iii), the terms 
``price,'' ``trade,'' ``last differently priced trade'' and 
``independent trades'' do not include any transaction that occurs in 
the NYBX Facility (See Rule 1600).'' Further, in subparagraph (iv)(d) 
the Exchange is proposing to add the following text: ``For purposes of 
this section (iv), the term ``last differently-priced trade'' shall not 
include any transaction that occurs in the NYBX Facility (See Rule 
1600).''
    Additionally, the Exchange is proposing to add to Rule 104T in the 
Supplementary Materials section, under section .12 (``DMMs' Investment 
Accounts'') the following text: ``References to ``plus or zero plus 
tick'' and the ``Tick Test'' in section .12 shall not include any 
transaction that occurs in the NYBX Facility (See Rule 1600).''
    Additionally, the Exchange is proposing to add to Rule 104T in the 
Supplementary Materials section, under section .13 (``Investment 
Transactions'') in subsection (b) the following text: ``(iii) 
References to ``minus,'' ``zero minus,'' ``plus'' and ``zero plus'' 
ticks in section .13 shall not include any transaction that occurs in 
the NYBX Facility (See Rule 1600).''
    (8) Rule 104. ``Dealings and Responsibilities of DMMs:''
    The Exchange is proposing to add to the Supplementary Material 
section of Rule 104, under section .10, the following text: ``.10 As 
used in this rule, the terms ``price,'' ``high price,'' ``low price'' 
and ``last differently-priced trade'' shall not include the price of 
any transaction that occurs in the NYBX Facility (See Rule 1600).''
    (9) Rule 107A. ``Registered Competitive Market-Makers:''
    The Exchange is proposing to add to the Supplementary Material 
section of Rule 107A, under subsection .10 (``Each Registered 
Competitive Market-maker shall comply with the provisions of paragraphs 
B. (2), (3), (4) and (5) as follows:''), subsection (ii)(C) the 
following text: ``References to ``ticks'' in Section (ii)(A), (B) and 
(C) above shall not include any transaction that occurs in the NYBX 
Facility (See Rule 1600).'' Additionally, at section .30, the Exchange 
is proposing to add the following text: ``For purposes of this section 
.30, the terms ``price'' and ``different price'' shall not include any 
transaction that occurs in the NYBX Facility (See Rule 1600).''
    (10) Rule 110. ``Competitive Traders:''
    The Exchange is proposing to add to Rule 110 in subsection (d) the 
following text: ``For purposes of this section (d), references to 
``ticks'' and ``previous day's closing price'' shall not include any 
transaction that occurs in the NYBX Facility (See Rule 1600).'' 
Additionally, in the same Rule at subsection (g)(3) the Exchange is 
proposing to add the following text: ``For purposes of this section 
(g), references to ``tick test,'' and ``minus,'' ``zero minus,'' 
``plus'' and ``zero plus ticks'' shall not include any transaction that 
occurs in the NYBX Facility (See Rule 1600).''
    (11) Rule 116. ``Stop'' Constitutes Guarantee:''
    The Exchange is proposing to add to the Supplementary Material 
section of Rule 116, under subsection .40 (``Stopping'' stock on 
market-at-the-close orders'') subparagraph (C) the following text; 
``For purposes of this section .40, the ``price of the last sale'' 
shall not include any transaction that occurs in the NYBX Facility (See 
Rule 1600).''
    (12) Rule 123A. ``Miscellaneous Requirements:''
    The Exchange is proposing to delete the section entitled ``Short 
Sales'' at paragraph .71 ``Specialists.'' The Exchange does not believe 
this section is necessary in light of other changes to short sale 
regulations.
    (13) Rule 123B. ``Exchange Automated Order Routing System:''
    The Exchange is proposing to add to Rule 123B in subsection 
(3)(``Booth Support System'') the following text: ``For purposes of 
this section (3), the term ``last sale'' shall not include any 
transaction that occurs in the NYBX Facility (See Rule 1600).''
    (14) Rule 123C. ``Market On The Close Policy And Expiration 
Procedures:''
    The Exchange is proposing to add Supplementary Material .10 with 
the following text: ``For purposes of Rule 123C, the terms ``last 
sale'' and ``last sales'' shall not include any transaction that occurs 
in the NYBX Facility (See Rule 1600).''
    (15) Rule 123D. ``Openings and Halts in Trading:''
    The Exchange is proposing to add to Rule 123D in the Supplementary 
Material section the following text: ``.25 For purposes of this rule, a 
transaction that occurs in the NYBX Facility shall not affect the 
calculation of the ``last sale,'' ``prior close,'' ``previous close,'' 
or any similar term (See Rule 1600).''
    (16) Rule 124. ``Odd-Lot Orders:''
    The Exchange is proposing to add to Rule 124 in the Supplementary 
Material section the following text: ``.70 References to ``round-lot 
transaction,'' ``round-lot Exchange transaction,'' ``opening 
transaction,'' ``closing transaction,'' ``reopening price,'' ``re-
opening transaction,'' ``price'' and ``sale'' shall not include any 
transaction that occurs in the NYBX Facility (See Rule 1600).''
    (17) Rule 1000. ``Automatic Execution of Limit Orders Against Order 
Reflected in NYSE Published Quotation:''
    The Exchange is proposing to add to Rule 1000 in the Supplementary 
Material section the text ``.11 The provisions of this rule with 
respect to ``sale,'' ``sale price,'' ``last sale price,'' ``closing 
price,'' and similar terms shall not include any transaction that 
occurs in the NYBX Facility (See Rule 1600).''
New Market Model Filing
    On October 24, 2008, the SEC approved the New Market Model \7\ 19b-
4 rule filing, which established a new market model for the NYSE. In 
general, the New Market Model provides the following: (i) Market 
participants have additional abilities to post hidden liquidity on 
Exchange systems; (ii) Designated Market Makers (``DMMs'') replace the 
NYSE specialist; and (iii) increase the speed of execution through 
technological enhancements and a reduction in message traffic between 
Exchange systems and its DMMs. The Exchange believes there will be no 
significant impact on the operation of the NYBX Facility as a result of 
the New Market Model rule. With respect to the additional rules 
outlined above, the New Market Model rule replaces the term 
``specialist'' with the term ``DMM''

[[Page 71053]]

and replaces references in certain of those rules to instances where 
the specialist would have taken action with respect to quoting or 
execution of orders to a reference to these actions being taken by 
Exchange systems. This reflects the increased automation of many of the 
formerly manual procedures on the Exchange.
---------------------------------------------------------------------------

    \7\ Ibid at footnote 4.
---------------------------------------------------------------------------

Anonymity of the Facility
    Because the NYBX is an anonymous trading platform, no order 
information is displayed to the public or to NYSE members. Clearance 
and settlement of executions occurring within the Facility will be 
anonymous. Trade reports will be disseminated after each execution.
NYBX Users
    As provided in the proposed Rule (see subparagraph (b)(2)(H) 
(``Applicability and Definitions'') an NYBX ``User'' means ``any member 
or member organization, Sponsoring Member Organization, Sponsored 
Participant and Authorized Trader that is authorized to access the NYBX 
Facility. A member or member organization that accesses the NYBX 
Facility may enter orders on its own behalf or for the account of a 
customer.''
    All NYSE members, member organizations, Sponsoring Member 
Organizations and their Sponsored Participants and Authorized Traders 
of Sponsored Participants are automatically eligible for access to 
NYBX. But, before access is granted to NYBX Users, all Users must go 
through a connectivity authorization process.\8\ After NYBX Users 
obtain connectivity authorization they may access the NYBX.
---------------------------------------------------------------------------

    \8\ The NYBX Facility can only be accessed through an electronic 
FIX application and/or an internet-based password-protected order 
entry application. Users must fill out an application for 
connectivity through either of these two electronic connectivity 
capabilities. Once granted connectivity through the authorization 
process, eligible users may access the NYBX Facility.
---------------------------------------------------------------------------

Entry of New York Block Exchange Orders
    NYBX Users will transmit their orders by means of an electronic 
interface. NYBX Users may enter, cancel and replace orders beginning at 
3:30 a.m. ET until the close of the regular hours of the Exchange on 
any day that the Exchange is open for business. All orders must be 
available for automatic execution.
    The NYBX Facility will send orders from the NYBX Facility to the 
DBK, via the Routing Broker, for execution when there is applicable 
marketable interest in the DBK.
Cancellation of NYBX Orders
    All unexecuted orders shall be cancelled in accordance with the 
designated order parameters and the time in force conditions designated 
on each order. Upon cancellation of an order, the NYBX Facility, via 
the Routing Broker, will send a cancellation report back to the NYBX 
User with all related order information. This cancellation process is 
referred to in the Rule as ``cancelling back to the User.'' If not 
executed or cancelled by the end of the regular trading day, all NYBX 
orders will be automatically cancelled back to the User at the close of 
the regular trading day.
New York Block Exchange Orders
    The NYBX Facility will accept and execute limit orders and NYBX 
pegging orders. All orders must be available for automatic execution. 
All orders when initially submitted must have a minimum size of one 
round lot of shares of NYBX eligible securities. Market orders will not 
be accepted in the NYBX Facility. NYBX time in force orders include 
``day orders'' and ``Good til Specified Time orders.'' The NYBX 
Facility order types are described below:
    1. A ``New York Block Exchange National Best Bid and Best Offer 
(``NBBO'') \9\ Pegging order'' or ``NBBO pegging order'' is an order 
with an instruction to peg to the NBBO. The order may include an 
instruction to peg to the NBBO plus or minus the Exchange's minimum 
price variation (``MPV'') as defined in Exchange Rule 62. The NBBO 
pegging order is an umbrella category for other types of pegging orders 
that may be entered into the Facility, which include the following:
---------------------------------------------------------------------------

    \9\ The term ``National Best Bid and Best Offer'' or ``NBBO'' 
will have the same meaning as defined in Rule 600 of Regulations 
NMS.

    a. A ``New York Block Exchange Midpoint Pegging Order'' or 
``midpoint pegging order,'' is an order with an instruction to 
execute it at the midpoint of the NBBO. This type of pegging order 
will not provide for an instruction to peg to the midpoint of the 
NBBO plus or minus the Exchange's MPV, which is available for the 
other NYBX pegging orders.
    b. A ``New York Block Exchange Primary Pegging Order'' or 
``primary pegging order'' is an order that is pegged to buy at the 
national best bid (``NBB'') or sell at the national best offer 
(``NBO''). The order may include an instruction to peg to the NBB or 
the NBO plus or minus the Exchange's MPV.
    c. A ``New York Block Exchange Market Pegging Order'' or 
``market pegging order'' is a market order that is pegged to buy at 
the national best offer (``NBO'') or sell at the national best bid 
(``NBB'') plus or minus the Exchange's MPV.

    2. A ``New York Block Exchange Day Order'' or ``day order'' is an 
order that if not executed, expires at the end of the regular trading 
session on the day on which it was entered. If the order is not 
executed by the end of the regular trading session, the order or the 
portion thereof not executed will be cancelled back to the User on the 
same day such order was entered. On any business day the Exchange is 
scheduled to close at a time other than 4 p.m. ET, a day order will 
expire on the day it was entered at the specified closing time as 
determined and announced by the Exchange.
    3. A ``New York Block Exchange Good til a Specified Time'' order or 
``GTT'' order is an order that is available for trading until the 
specified time, after which such order or the portion thereof not 
executed will be cancelled back to the User.
NYBX Order Parameters
Required Order Parameters
    All NYBX orders must contain the following User-directed 
parameters: (1) Symbol; (2) limit price: (3) side of the market (e.g., 
buy, sell or sell short) and (4) size of the order. If a User fails to 
enter any of the required order parameters in a NYBX order, the order 
will be rejected. NYBX optional order parameters are described below.
Optional Order Parameters
    Time in Force Condition: A User may designate an optional time in 
force condition for each NYBX order. If a User fails to designate a 
time-in-force condition for a NYBX order, the order will be treated as 
a day order and if not executed, will expire and be cancelled back to 
the User at the end of the regular trading session on the day on which 
it was entered.
    Minimum Triggering Volume Quantity (``MTV''): The MTV is an 
optional User-directed order parameter designating a minimum amount of 
shares of a security against which an order will attempt to execute if 
there is sufficient contra side liquidity available in the NYBX 
Facility's depth of book, the DBK's depth of book (all displayed and 
non-displayed orders) and, if not optionally restricted as described 
below, the protected quotations of automated trading centers in 
securities listed on the NYSE at a price better than the order's limit 
price. No execution of an NYBX order will be attempted if the MTV of 
the order is not met. However, an NYBX order may attempt to execute if 
the execution size is less than the MTV provided the MTV was met at the 
time the order was evaluated for execution.

[[Page 71054]]

    If a User does not enter an MTV designation for an order, the order 
will be treated as if there is no MTV and will attempt to match and 
execute with any available contra side liquidity at the order's limit 
price or better in the NYBX Facility's depth of book, the DBK's depth 
of book (all displayed and non-displayed orders) and the protected 
quotations of all automated trading centers in securities listed on the 
NYSE. It is important to note that an NYBX order will not be routed to 
an automated trading center for execution with a protected quotation 
unless the NYBX order would execute against the NYBX Facility's depth 
of book or the DBK's depth of book at a price that would trade through 
the protected quotation.
Optional Restriction of MTV Calculation
    In addition to choosing the MTV calculation to include the contra 
side liquidity of the NYBX depth of book, the DBK depth of book and 
protected quotations of all automated trading centers to determine if 
the MTV of an order can be met, the User may also opt to restrict the 
MTV calculation of an order to include only the contra side liquidity 
of the NYBX Facility's depth of book and the DBK's depth of book. Thus, 
the restricted MTV calculation will not consider the protected 
quotations of automated trading centers. Regardless of whether an order 
has a restricted MTV calculation, the NYBX Facility will always route 
applicable NYBX orders to automated trading centers to attempt to 
execute with protected quotations in compliance with Regulation NMS.
Order Processing and Order Execution Sequence
    When an order is entered into the NYBX Facility with an MTV 
designation, the Facility will evaluate the order and the available 
liquidity in the NYBX Facility's depth of book, the DBK's depth of book 
and protected quotations of all automated trading centers to determine 
if the entering order is marketable at the order's limit price or 
better. As discussed earlier, an NYBX order will not be routed to an 
automated trading center for execution with a protected quotation 
unless the NYBX order would execute against the NYBX Facility's depth 
of book or the DBK's depth of book at a price that would trade through 
the protected quotation. Thus, in making this determination, the 
Facility will honor all User-directed parameters, including the 
optional MTV designation and the MTV restriction, if any, and time in 
force conditions. After the NYBX Facility evaluates the NYBX order and 
the NYBX Facility's depth of book, the DBK's depth of book and the 
protected quotations of all automated trading centers, the Facility 
will attempt to execute the orders in the sequence described below.
    1. An NYBX order, with or without an MTV, will first attempt to 
execute with available contra side liquidity on the DBK at the order's 
limit price or better. No execution of any NYBX order will be attempted 
unless the MTV of the order, if any, can be met. For all NYBX orders, 
if liquidity is available on the DBK with a price that is equal to or 
better than the price in the NYBX Facility, the order will be sent from 
the NYBX Facility to the DBK, via the Routing Broker, and will attempt 
to execute in the DBK until the order is exhausted, expired or 
cancelled back to the User pursuant to time in force conditions or 
until all applicable marketable liquidity in the DBK is exhausted. If, 
however, the NYBX Facility has available contra side liquidity at a 
better price than the price quoted on the DBK, the order will attempt 
to execute in the NYBX Facility until it is exhausted, expired or 
cancelled back to the User pursuant to time in force conditions or 
until the marketable liquidity in the NYBX Facility is exhausted.
    If the order executes against interest on the DBK, but is not 
exhausted, the unfilled portion of the order (the ``residual order'') 
will be sent back to the NYBX Facility where it will attempt to execute 
with marketable incoming contra side liquidity in the NYBX Facility's 
depth of book and the DBK's depth of book until the order is exhausted, 
expired or is cancelled back to the User pursuant to time in force 
conditions or until the applicable marketable contra side liquidity is 
exhausted. As discussed previously, if an NYBX residual order would 
execute with marketable incoming contra side liquidity in the NYBX 
Facility's depth of book or the DBK's depth of book at a price worse 
than one or more protected quotations, the applicable volume will 
attempt to execute with protected quotations of automated trading 
centers pursuant to Regulation NMS.
    Like all NYBX orders, the NYBX residual order will maintain its 
original time stamp unless the order is modified by the User. Thus, if 
an NYBX order is modified in any respect by the User (i.e., price, 
size, side, MTV or time in force condition) the order will lose its 
original price/time priority and time stamp and go behind other orders 
in the queue. If a pegging order is entered into the NYBX Facility, the 
Facility will automatically re-price the order when the NBBO changes 
and the pegging order will lose its original price/time priority and 
time stamp and will go behind other orders in the queue. For example, 
if a pegging order for $10 is entered into the Facility and the NBBO 
changes from $10 to $11, the Facility will automatically modify the 
order to be $11. Thereafter, if a non-pegging order for $10 is entered 
into the Facility and the NBBO goes down to $10, the non-pegging order 
will execute before the pegging order. This result occurs because the 
Facility honored the pegging parameter of the original order which in 
turn required the Facility to modify the original pegging order causing 
such order to be treated as a newly entered order thus placing the 
pegging order behind the non-pegging order in the queue.
    If the residual order is of greater size than the original MTV of 
the order, the original MTV will remain on the order. If the residual 
order is of lesser size than the original MTV of the order, the 
Facility will modify the MTV to equal the size of the residual order, 
and will send the residual order back to the NYBX Facility where it 
will attempt to execute with marketable incoming contra side liquidity 
until it is exhausted, expired or cancelled back to the User pursuant 
to time in force conditions or until all marketable liquidity is 
exhausted. The residual order will not attempt to execute with other 
available liquidity at the order's limit price or better unless the 
modified MTV can be met. The NYBX residual order will continue to 
attempt to execute with applicable marketable contra side liquidity in 
the same sequence described above.
    2. If there is no available contra side liquidity in the DBK's 
depth of book, the NYBX order will attempt to execute with available 
contra side liquidity in the NYBX Facility at the order's limit price 
or better. If the order has an MTV, the MTV must be met by the contra 
side interest in the NYBX Facility and, optionally, the protected 
quotations, before an execution can be attempted. If marketable 
liquidity is available in the NYBX Facility, the order will attempt to 
execute in the NYBX Facility until the order is exhausted or until the 
marketable liquidity in the Facility is exhausted. If the order is not 
exhausted and the order had an MTV, the Facility will modify the MTV to 
equal the size of the residual order provided the size of the residual 
order is less than the size of the original MTV. The order will attempt 
to execute with marketable incoming contra side liquidity in the NYBX 
Facility's depth of book and the DBK's depth of book until the order is

[[Page 71055]]

exhausted, expired or is cancelled back to the User pursuant to time in 
force conditions or until all applicable marketable liquidity is 
exhausted.
    3. An NYBX order will only trade against an automated trading 
center if an execution of that order in the NYBX Facility's depth of 
book or the DBK's depth of book would trade through a protected 
quotation. Therefore, if an NYBX order would execute against interest 
in the DBK's depth of book or against interest in the NYBX Facility's 
depth of book at a price that would trade through a protected 
quotation, the NYBX Facility will route the applicable volume to the 
automated trading center and attempt to execute with such contra side 
liquidity. The order will be routed to the automated trading center via 
the Routing Broker, as defined in Rule 17(c). An NYBX order will not be 
routed to an automated trading center for execution with a protected 
quotation unless there is marketable contra side interest in the DBK's 
depth of book or in the NYBX Facility's depth of book.
    If the routed NYBX order is not exhausted, the residual order will 
be sent back to the NYBX Facility where it will attempt to execute with 
marketable incoming contra side liquidity in the NYBX Facility's depth 
of book and the DBK's depth of book until the order is exhausted, 
expired or is cancelled back to the User pursuant to time in force 
conditions or until all applicable marketable liquidity is exhausted.
Re-Processing of Residual Orders
    NYBX residual orders will attempt to execute with new applicable 
liquidity in the same sequence as described above. NYBX residual orders 
will retain their original time stamp throughout the regular trading 
day unless such orders are modified by the User, exhausted, expired or 
cancelled back to the User pursuant to time in force conditions. As 
discussed above, if residual orders are modified in any way by the 
User, the order will lose its original time/price priority or time 
stamp and will go behind other orders in the queue. If a residual 
pegging order is entered into the NYBX Facility, the Facility will 
automatically re-price the order when the NBBO changes and the residual 
pegging order will lose its original time stamp and go behind other 
orders in the queue.
    Any new liquidity that enters the NYBX Facility's depth of book, 
the DBK's depth of book and protected quotations of automated trading 
centers will be evaluated by the NYBX Facility to determine if such 
liquidity is eligible to execute with residual orders in the NYBX 
Facility. A residual order will continue to attempt to execute with 
marketable incoming contra side liquidity in the NYBX Facility's depth 
of book and the DBK's depth of book until the order is exhausted, 
expired or is cancelled back to the User pursuant to time in force 
conditions or until all applicable marketable liquidity is exhausted. 
As previously explained, if an NYBX residual order would execute 
against an order in the DBK's depth of book or in the NYBX Facility's 
depth of book, applicable volume will attempt to execute with protected 
quotations of automated trading centers pursuant to Regulation NMS.
NYBX Market Snapshot of Order Processing
    The Facility will act upon market and order information available 
to it at the time an order is entered into the Facility. At the time an 
order is entered into the NYBX Facility, the NYBX algorithm will 
evaluate or take a ``snapshot'' of the market. This market snapshot 
includes all orders in the NYBX Facility's depth of book, the DBK's 
depth of book, and the protected quotations of automated trading 
centers (i.e., ``away markets''). The examples below demonstrate how 
the NYBX snapshot coordinates order execution and allocation of shares. 
The example also demonstrates how the Minimum Triggering Volume 
(``MTV'') of an NYBX order interacts with all liquidity in the NYBX 
Facility's depth of book, the DBK's depth of book and protected 
quotations of automated trading centers if applicable.
[GRAPHIC] [TIFF OMITTED] TN24NO08.002

NYBX Order Processing and Execution
    The NYBX Facility will allow executions to occur within, at or 
through the NBBO, but will protect those bids and offers on the NYSE 
DBK that are at the same price or better (i.e., all NYSE bids and 
offers including depth of displayed and non-displayed orders) and 
protected quotations of other automated trading centers pursuant to 
Regulation NMS.
    All NYBX orders will be evaluated on a price/time priority basis to 
ascertain whether such orders are eligible to execute against 
applicable available contra side liquidity based on the price and the 
MTV of the orders. As described in more detail below, orders with MTV 
designations may pre-empt the time/price priority.
Order Evaluation
    As demonstrated in the ``NYBX Market Snapshot,'' the Facility will 
act upon market and order information available to it at the time the 
order is entered into the Facility. Facility orders will execute with 
all available contra side liquidity in the NYBX Facility's depth of 
book, the DBK's depth of book and, optionally, the protected quotations 
of automated trading centers

[[Page 71056]]

even if the execution size is less than the MTV designation provided 
the MTV designation was met at the time the order was entered and 
evaluated for execution. This functionality takes into consideration 
the fact that latency may occur when trading facilities evaluate 
liquidity on other automated trading centers and also route orders to 
other automated trading centers. See the example below.
    Example:
    A buy order of 200,000 shares with an MTV of 100,000 and a limit of 
101.21 enters the Facility. The Facility evaluates the order and 
liquidity on the markets.

The Facility reads: (MTV algorithm)
    NYSE depth to 101.21: 96,000 shares
    Away markets: 4,600 shares at 101.15
    Other Facility orders: 0 shares

    In this example, the MTV can be met at the time order is evaluated. 
Therefore, the Facility sends an order to the DBK to buy 200,000 shares 
at 101.21, and the NYSE sends the applicable volume to the automated 
trading centers for execution via the Routing Broker.\10\ Such orders 
are routed from the NYSE to the automated market centers as Intermarket 
Sweep Immediate Or Cancel orders (``ISO IOC'' orders).
    The ISO IOC orders are exhausted except for 1000 shares from 
Nasdaq. However, the trade occurs because the size of the order met the 
MTV designation at the time the Facility evaluated the order for 
execution.
---------------------------------------------------------------------------

    \10\ The NYBX Facility, via the Routing Broker (See NYSE Rule 
17(c)), will route the applicable volume to automated trading 
centers in compliance with Regulation NMS.
---------------------------------------------------------------------------

Results of the Execution
    A total of 99,600 shares execute in the following manner:
    The DBK executes 96,000 shares total (3,500 shares at 101.15; 800 
shares at 101.16; 5,000 shares at 101.17; 8,000 shares at 101.18; 
16,000 shares at 101.19; 20,700 shares at 101.20; 42,000 shares at 
101.21);
    Automated trading centers execute 3,600 shares at 101.15.
    The unfilled portion of the order (i.e., the ``residual order''), 
which is 100,400 shares with an MTV of 100,000 at 101.21, will attempt 
to execute with marketable incoming contra side liquidity in the NYBX 
Facility's depth of book and the DBK's depth of book until the order is 
exhausted, expired or is cancelled back to the User pursuant to time in 
force conditions or until all applicable marketable contra side 
liquidity is exhausted.
Residual Orders and the Automatic Reduction of the MTV
    When an order with an MTV enters the NYBX Facility, the NYBX 
algorithm will attempt to execute the order in the DBK's depth of book 
and the NYBX Facility's depth of book provided the MTV can be met, 
which may or may not take into consideration the protected quotations 
of automated trading centers depending upon the particular MTV 
parameter (i.e., restricted or non-restricted MTV calculation) on the 
order. If such execution occurs, which exhausts the NYBX order, the 
trade will be printed to the tape and trade reports will be sent to the 
User. If a residual order remains, the residual order will be sent back 
to the NYBX Facility where it will attempt to execute with incoming 
orders to the NYBX Facility's depth of book and the DBK's depth of book 
until the order is exhausted, expired or cancelled back to the User 
pursuant to time in force conditions or until the applicable marketable 
contra side liquidity is exhausted. If an execution of an NYBX residual 
order would occur in the NYBX Facility or in the DBK, applicable volume 
will attempt to execute with protected quotations of automated trading 
centers pursuant to Regulation NMS.
    If the residual order is less than the original MTV designation of 
the order, the Facility will automatically modify the MTV to equal the 
residual order, and the residual order will continue to attempt to 
execute with available contra side liquidity that subsequently enters 
the NYBX Facility's depth of book and the DBK's depth of book when and 
if the modified MTV can be met, which may or may not take into 
consideration the protected quotations of automated trading centers 
depending upon the particular MTV parameter (i.e., restricted or non-
restricted MTV calculation) on the order. See the example below.
    Example:
    A buy order for 100,000 shares with an MTV of 50,000 and a limit 
price of 101.20 enters the NYBX Facility.
    The NYBX Facility evaluates the order and reads the MTV:

DBK depth to 101.20: 54,000 shares
Away markets: 4,600 shares at 101.15
Other Facility orders: 0 shares

    In this example, the MTV can be met at the time the order is 
received into the Facility.
    The Facility sends an order to the DBK to buy 100,000 shares at 
101.20 and the NYSE sends ISO IOC orders, via the Routing Broker, to 
automated trading centers (``away markets'') for execution of the NYBX 
order.
Results of the Execution
    The DBK executes 54,000 shares in the following manner: 3,500 at 
101.15; 800 shares at 101.16; 5,000 shares at 101.17; 8,000 at 101.18; 
16,000 shares at 101.19; 20,700 shares at 101.20.
    4,600 shares at 101.15 execute on automated trading centers.
    41,400 shares remain in the Facility and the MTV is modified by the 
Facility to be 41,400.
    The NYBX residual order will continue to execute with applicable 
available liquidity that subsequently enters the market when and if the 
MTV can be met.
Price/Time Priority
    All orders entered into the NYBX Facility are placed in price/time 
priority according to their required order parameters (e.g., price, 
size, side of market, etc.) and optional order parameters (e.g., MTV, 
time in force conditions). NYBX orders that execute in the DBK will 
execute in price/time priority pursuant to the provisions of Rule 72.
    NYBX price/time priority sequencing may be pre-empted or bypassed 
in the execution of orders when such orders have conditions (i.e., MTV 
designations) that require an exception to the price/time priority 
basis. For example, an initial order on one side of the market (i.e., 
buy side order or sell side order) with an MTV designation may lose its 
place in the NYBX Facility queue to subsequent orders on the same side 
of the market that have no MTV designations or have less restrictive 
MTV designations than the initial order. However, this exception to the 
price/time priority basis is dependent upon the MTV designation, if 
any, of the contra side liquidity. NYBX orders on both sides of the 
market (i.e., buy side and sell side) will be evaluated for price/time 
priority, and the MTV designations for all orders (buy side and sell 
side) will be honored by the NYBX Facility. See the examples below for 
exceptions to the NYBX Facility price/time priority basis.
    Also, as discussed above, NYBX orders, including residual orders, 
will retain their original time stamp throughout the regular trading 
day unless such orders are modified by the User. If orders are modified 
by the User (i.e., change in price, size, side, MTV or time in force 
condition) the order will lose its original price/time priority and 
will go behind other orders in the queue. If a pegging order is entered 
into the NYBX Facility, the Facility will automatically re-price the 
order when the NBBO changes and the residual

[[Page 71057]]

pegging order will lose its original time stamp and go behind other 
orders in the queue.
    As the examples below demonstrate, the NYBX price/time priority 
basis will be pre-empted when:
    1. the initial order (i.e., buy order or sell order) is marketable 
against the contra side order(s) (i.e., buy orders vs. sell orders) but 
cannot execute against the contra side order(s) because the MTV of the 
initial order is not met; and
    2. a same side order is marketable against the contra side order(s) 
and is not restricted from executing because the MTV of that same side 
order can be met. In such case, the same side order can execute against 
the contra side order(s) even though the initial order had price/time 
priority.
    It is important to note that NYBX orders retain their time stamp or 
``price/time priority'' with respect to later contra side order(s) that 
are sufficient to meet the initial order's MTV designation.
Example No. 1
    Initial order in NYBX to buy 100,000 @ 20.00 with an MTV of 
100,000. An order to sell 5000 @ 20.00 is entered into NYBX. (Assume 
there are no marketable contra side orders in DBK or protected 
quotations.) No execution occurs, because the initial order's MTV is 
not met. Then an order to buy 10,000 @ 20.00 is entered into NYBX with 
no MTV. 5000 of the 10,000 buy order executes against the order to sell 
5000 @ 20.00, even though the buy order for 100,000 had price/time 
priority.
    Now the NYBX book is:

Buy 100,000 @ 20.00 (MTV of 100,000)
Buy 5000 @ 20.00 (no MTV)
    Now an order to sell 100,000 @ 20.00 enters the NYBX book. The 
initial order to buy retains its price/time priority with respect to 
this sell order, and the two orders for 100,000 execute against each 
other at 20.00.
Examples Nos. 2, 2(a), 2(b), 2(c) and 2(d)
    Order to buy 500,000 @ 20.00 with an MTV of 500,000 enters the NYBX 
book (B1). Then an order to sell 400,000 @ 20.00 with an MTV of 400,000 
enters the NYBX book (S1). (Assume neither order is marketable against 
any order in DBK nor any protected quotations.) No execution occurs, 
because the buy order's MTV is not met. Then an order to buy 300,000 @ 
20.00 with an MTV of 300,000 enters the NYBX book (B2). No execution 
occurs, because the MTV of the sell order for 400,000 is not met. Then 
an order to sell 50,000 @ 20.00 with an MTV of 50,000 enters the NYBX 
book (S2). The book is as follows:

B1: Buy 500,000 @ 20.00 (MTV of 500,000)
B2: Buy 300,000 @ 20.00 (MTV of 300,000)
S1: Sell 400,000 @ 20.00 (MTV of 400,000)
S2: Sell 50,000 @ 20.00 (MTV of 50,000)

    No order executes. B1 cannot execute because its MTV is not met. In 
the case of B2, S1, and S2, while there is sufficient contra side 
liquidity to fill these orders, these orders cannot execute because the 
respective MTVs on the contra side are not met.
    Examples 2(a), 2(b), 2(c) and 2(d) below are based on the above 
details. With each example, assume the book is as it appears above 
(with two buy orders and two sell orders). Do not carry one example 
into the next example.
    2(a). An order to sell 50,000 @ 20.00 (S3) enters the NYBX book. 
B1's MTV is now met, therefore, B1 executes against S1, S2, and S3.
    2(b). An order to buy 50,000 @ 20.00 (B3) enters the NYBX Facility. 
B3 executes against S2. B1, B2, and S1 are by-passed in price/time 
priority because their MTVs prevent them from executing.
    2(c). However, assume that B3 is now an order to buy 100,000 @ 
20.00. In this case, S1 (and not S2) would execute against B2 and B3. 
S1 retains its price/time priority over S2 with respect to contra side 
order(s) that, when combined, meet S1's MTV.
    2(d). An order (S3) to sell 100,000 @ 20.00 with an MTV of 100,000 
enters the NYBX Facility. In this example the MTV of B1 is now met. 
Therefore, B1 would execute with S1 leaving a residual order of 100,000 
shares. B1 cannot trade with S2 because B1's MTV of 500,000 cannot be 
met by S2. If B1 attempted to execute with S2 the execution would only 
be for 450,000 shares which would violate B1's 500,000 MTV. Also, B1 
cannot get the additional 50,000 shares needed to meet the 500,000 MTV 
from S3 because S3 has an MTV of 100,000. Thus, B1's residual order of 
100,000 shares will bypass S2 to execute against S3, thereby satisfying 
the MTVs of both B1 and S3.
Midpoint Executions
    The example below will illustrate how midpoint executions occur in 
the NYBX Facility.
    Example:

NBBO = 122.20 ISE--122.26 PHLX 5,000 x 10,000
NYSE DBK 1 = Sell 5,000 shares at 122.26
NYSE DBK 2 = Buy 5,000 shares at 122.20
NYBX 1 = Sell 75,000 shares at 122.22, MTV of 50,000
NYBX 2 = Buy 100,000 shares at 122.26, MTV of 50,000

    The NYBX Facility determines that the allocation of the NYBX2 order 
should be:
    [cir] The MTV of NYBX 1 has been satisfied as there is sufficient 
contra side liquidity and is eligible for execution
    [cir] The MTV of NYBX 2 has been satisfied as there is sufficient 
contra side liquidity and is eligible for execution
    [cir] Nothing eligible for protected quotations of automated 
trading centers
    [cir] 25,000 shares to DBK
    [cir] 75,000 shares to trade within the NYBX Facility

Results of the Executions

--NYBX 2 sends 25,000 shares to buy to DBK at 122.26
--NYBX 2 buys 75,000 shares from NYBX 1 at 122.23 (the midpoint of the 
NBBO)
--NYBX 2 fills 5,000 shares at 122.26 with DBK 1
--The 20,000-share unfilled balance of NYBX 2 is placed in the NYBX 
Facility at 122.26 with a new MTV of 20,000 shares.
Compliance With Regulations NMS
    NYBX orders will not trade-through a Protected Bid or Protected 
Offer except as allowed by Regulation NMS. As discussed above, the NYBX 
Facility will evaluate the NYBX Facility order's parameters, including 
its MTV, if any, to determine if such order is required to execute with 
protected quotations on the automated trading centers in compliance 
with Regulation NMS. The example below will demonstrate how the 
Facility complies with Regulation NMS.
    Example:

NBBO = 122.20 ISE--122.26 PHLX 5,000 x 10,000
NYBX 1 = Sell 5,000 at 122.26 (no MTV designation)
NYSE DBK 1 = Sell 5,000 at 122.27
NYBX 2 = Buy 100,000 at 122.27 (no MTV designation)

    The NYBX Facility determines that the allocation of the order 
should be:
    [cir] 85,000 shares to DBK
    [cir] 10,000 shares to PHLX
    [cir] 5,000 shares to trade within NYBX Facility
Results of the Execution
--NYBX 2 sends a total of 85,000 shares to buy from DBK at 122.27
--NYBX 2 trades with NYBX 1 for 5,000 shares at 122.26
--NYBX 2 trades with DBK 1 for 5,000 shares at 122.27
--NYBX Facility routes, via Routing Broker, 10,000 shares of NYBX2 to

[[Page 71058]]

PHLX and NYBX2 executes 10,000 shares on PHLX at 122.26
--NYBX 2 is routed to PHLX, via the Routing Broker, 10,000 shares at 
122.26 (ISO IOC) and NYBX 2 executes 10,000 shares on PHLX
--NYBX 2 posts 80,000 shares to buy at 122.27 remaining from the 85,000 
shares sent to the DBK in the NYBX Facility
Equal or Better Prices
    If the contra side liquidity on the DBK is priced equal to or 
better than the liquidity in the NYBX Facility, the order will be sent 
to the DBK for execution. If an NYBX order that is sent to the DBK is 
not fully executed in the DBK, the Routing Broker will route the 
unfilled portion of the order--the residual order--back to the NYBX 
Facility. If the residual order is less than the designated MTV, the 
Facility will modify the MTV to equal the residual order. The residual 
order will attempt to execute with marketable incoming contra side 
liquidity in the NYBX Facility's depth of book and the DBK's depth of 
book until the order is exhausted, expired or cancelled back to the 
User pursuant to time in force conditions or until the applicable 
marketable liquidity is exhausted. See the example below.
    Example:

NBBO = 122.20 ISE--122.26 PHLX 5,000 x 10,000
NYSE DBK 1 = Sell 5,000 shares at 122.26
NYBX 1 = Sell 5,000 shares at 122.26
PHLX = Sell 10,000 shares at 122.26
NYBX 2 = Buy 5,000 shares at 122.26

    The NYBX Facility determines that the allocation of the order 
should be: No shares routed to automated trading centers

5,000 shares sent to DBK at 122.26
No shares remain in the NYBX Facility
Results of the Execution:
--NYBX 2 sends 5,000 shares to buy from NYSE DBK at 122.26
-- NYBX 2 trades with DBK 1 for 5,000 shares at 122.26
--Nothing trades within the NYBX Facility
NYBX Best Price
    If the contra side liquidity in the NYBX Facility is priced better 
than the price quoted on the DBK, an NYBX order will execute in the 
NYBX Facility in price/time priority until the order is exhausted.
    Additionally, an order may be executed in the NYBX Facility without 
interacting with the DBK when the price of the NYBX order is within the 
NBBO and at a price that is better than all other orders in the same 
security on the DBK. See the example below.
    Example:

NBBO = 122.20 ISE--122.26 PHLX 5,000 x 5,000
NYBX 1 = Sell 5,000 shares at 122.25
PHLX = Sell 5,000 shares at 122.26
NYSE DBK = Sell 5,000 shares at 122.27
NYBX 2 = Buy 100,000 shares at 122.25

    The NYBX Facility determines that the allocation of the order 
should be:
     Nothing to protected quotations of automated trading 
centers
     Nothing to DBK
     5,000 shares within NYBX Facility
Results of the Execution
NYBX 2 trades with NYBX 1 for 5,000 shares at 122.25
NYBX 2 posts 95,000 shares to buy at 122.25 in NYBX Facility
Orders Crossed in the NYBX Facility
    When two NYBX orders in the Facility are marketable against each 
other and there is no marketable contra side liquidity in the DBK's 
depth of book at the order's limit price or better, and the prices of 
the two NYBX orders are crossed, the Facility will calculate the price 
of the execution to be the price nearest to or at the midpoint of the 
NBBO. The example below assumes that the execution price is at or 
between the NBBO, which will have no trade through obligation for 
protected quotations pursuant to Regulation NMS.
    Example:

NBBO = 20.00 PHLX--20.05 ISE
NYBX 1 = Buy 50,000 shares at 20.02 with an MTV of 20,000
NYBX 2 = Sell 100,000 shares at 20.00 with an MTV of 20,000

    The execution price would be 20.02 as it is the price closest to 
the midpoint of the NBBO, which is 20.025.
Round Lot, Partial Round Lot and Odd Lot Orders
    The NYBX Facility will accept orders with round lots and partial 
round lots (``PRLs''), and will reject odd lot orders. However, the 
execution of NYBX orders may result in round lots, PRLs and odd lots. 
The odd lot portion of a PRL order will remain in the Facility until it 
is executed, and if not executed, it will be cancelled back to the User 
pursuant to the order's time in force conditions or at the end of the 
regular trading day. If the execution of an NYBX order results in a 
residual order with an odd lot component, this odd lot component will 
remain in the Facility until it is executed, and if not executed, it 
will be cancelled back to the User pursuant to time in force conditions 
at the end of the regular trading day.
Sub-Penny Orders
    The NYBX Facility shall not display, rank, or accept a bid or offer 
or an order in any NMS stock priced in an increment smaller than $0.01 
if that bid or offer or order is priced equal to or greater than $1.00 
per share. Such orders will be rejected by the Facility.
    The NYBX Facility shall not display, rank, or accept a bid or offer 
or an order in any NMS stock priced in an increment smaller than $0.001 
if that bid or offer or order is priced less than $1.00 per share. Such 
orders will be rejected by the Facility.
    The NYBX Facility will reject any NYBX pegging orders priced below 
$1.00.
    The NYBX Facility's execution price may be calculated to three (3) 
decimals when the NBBO is an odd penny spread (i.e., one (1) penny, 
three (3) pennies, five (5) pennies, etc.), and the trade price is 
greater than $1.00. NYBX executions with midpoint pricing may be priced 
at increments as low as $0.001.
    The NYBX Facility's execution price may be calculated to four (4) 
decimals when the NBBO is an odd 1/10th penny spread (i.e., one tenth 
(0.1) penny, three tenths (0.3) pennies, five tenths (0.5) pennies, 
etc.), and the trade price is less than $1.00. NYBX executions with 
midpoint pricing may be priced at increments of $0.0001.
Half Penny Increments
    Executions on the NYBX Facility may be calculated to three (3) 
decimals when the NBBO is an odd penny spread (i.e., one (1) penny, 
three (3) pennies, five (5) pennies, etc.). For example, if the NBBO of 
Stock XYZ is $23.01 to $23.02, the price is $23.015. As a consequence, 
executions at the midpoint of the NBBO may be in half penny increments 
requiring the use of three decimals, as demonstrated in the 
example.\11\
---------------------------------------------------------------------------

    \11\ The NYBX Facility will not display, rank or execute orders 
in any NMS stock priced below one dollar ($1.00). In addition, the 
NYBX Facility will not display, rank or execute orders in increments 
smaller than a penny. However, when there is an odd penny spread, as 
described above, NYBX will execute it in a half penny increment. In 
response to public comments to the Regulation NMS Proposing Release, 
the Commission wrote the following (See Securities Exchange Act 
Release No. 51808 (June 9, 2005), 70 FR 37496 (June 29, 2005) at 
Page 37589, footnote No. 831):
    ``Executions occurring at a sub-penny price resulting from a 
midpoint, VWAP, or similar volume-weighted pricing algorithm are not 
prohibited by Rule 612.''
---------------------------------------------------------------------------

Trading Ahead of Customer Orders
    In the event an NYBX order executes resulting in a member or member 
organization's trading ahead of a held

[[Page 71059]]

customer order at the same price, the Exchange believes that Exchange 
Rule 92 (Limitations on Member's Trading Because of Customers' Orders) 
in certain instances may be implicated. Exchange Rule 92(a) generally 
restricts a member or member organization from entering a proprietary 
order with knowledge of a customer order that could be executed at the 
same price. Rule 92(b) through (d) provides several exceptions to the 
general restrictions of Rule 92(a) including the ``black box'' 
exemption which, depending on the facts and circumstances, may be 
applicable to orders entered into the NYBE Facility.\12\ When trading 
on the NYBX Facility, all users will be expected to comply with Rule 
92(a) unless such trading falls within an applicable exception in Rule 
92(b) through (d).
---------------------------------------------------------------------------

    \12\ See Information Memo 2001-33, October 8, 2001 and 
Securities Exchange Act Release No. 34-44139 (March 30, 2001), 66 FR 
18339 (April 6, 2001) (SR-NYSE-1994-34).
---------------------------------------------------------------------------

Halting, Suspending and Closing of NYSE NYBX Trading on the Exchange
    Trading on the NYBX Facility will be halted or suspended whenever 
the NYSE halts or suspends trading in a particular security or in all 
securities for regulatory and/or non-regulatory reasons pursuant to 
NYSE Rules 51 and 123D and 80B, including:
    (1) In the case of a particular security whenever, for regulatory 
purposes, trading in the security has been halted, suspended or closed 
on the Exchange or the listing exchange; or
    (2) In the case of a particular security trading on the Exchange, 
if the authority under which a security trades on the Exchange or its 
primary market is revoked (e.g., because it is delisted), and
    (3) No terms or conditions specified in this subsection shall be 
interpreted to be inconsistent with any other rules of the Exchange.
Clearance and Settlement of NYBX Executions
    Details of each NYBX trade will be automatically matched and 
compared by the Exchange and will be submitted to a registered clearing 
agency for clearing and settlement on a locked-in basis.\13\ All 
executions effected by a Member or Member Organization will be cleared 
and settled using the Member's and Member Organization's account, and 
all executions effected by a Sponsored Participant will be cleared and 
settled using the relevant Sponsoring Member Organization's account.
---------------------------------------------------------------------------

    \13\ NYBX executions will be compared through the Regional 
Interface Organization Online process (``RIO Online''). RIO Online 
is NYSE Arca, Inc.'s internal processing interface that sends order 
execution information to DTCC. RIO Online gathers the trades that 
are executed on any given day, places the trades into the 
appropriate message format and sends them to DTCC. RIO Online 
provides a record of all trades that were sent to DTCC. RIO Online 
is also used to manage any approved trade corrections.
---------------------------------------------------------------------------

    Because the NYBX Facility is an anonymous trading facility, the 
proposed rule will require NYBX transaction reports to indicate the 
details of the transaction, but not to reveal contra party and clearing 
firm identities,\14\ except under the following circumstances: (1) In 
the event the National Securities Clearing Corporation (``NSCC'') \15\ 
ceases to act for a Member or Member Organization, which is the 
unidentified contra side of any such trade processing, and/or the 
relevant clearing firm, the NYSE shall have the responsibility to 
identify to Members or Member Organizations the trades included in 
reports produced by the NSCC that are with the affected Member or 
Member Organization, and (2) for regulatory purposes or to comply with 
an order of a court or arbitrator.
---------------------------------------------------------------------------

    \14\ Post-trade anonymity described herein has been previously 
approved by the Securities and Exchange Commission for other 
exchanges (See e.g., Securities Exchange Act Release No. 48527 
(September 23, 2003), 68 FR 56361 (September 30, 2003) (SR-NASD-
2003-85), and Securities Exchange Act Release No. 49786 (May 28, 
2004), 69 FR 32087 (June 8, 2004) (SR-PCX-2004-40)).
    \15\ The Exchange will submit completed NYBX trades for 
clearance and settlement to NSCC, which is a subsidiary of the 
Depository Trust Clearing Corporation (``DTCC'').
---------------------------------------------------------------------------

    The trade reports that the NSCC will receive from the NYBX Facility 
for anonymous trades will contain the identities of the parties to the 
trade. This measure will enable the NSCC to conduct its risk management 
functions and settle anonymous trades. The trade report sent to the 
NSCC will contain an indicator noting that the trade is anonymous. On 
the contract sheets the NSCC issues to its participants, the NSCC will 
substitute ``ANON'' for the acronym of the contra party. The purpose of 
this masking is to preserve anonymity through settlement.
    The Exchange will be able to maintain anonymity with respect to 
disputed or erroneous trades because the Exchange resolves disputes 
through a centralized process and conducts the process on behalf of its 
Members and Member Organizations.
Dissemination of Trading Information
    The NYBX Facility will report trade information to the Securities 
Information Processors (``SIPs'') for all NYBX eligible securities that 
execute solely within the NYBX Facility. Such trades will be printed 
based on which side of the trade (``buy'' or ``sell'') was first 
entered into the NYBX Facility. Market data for NYBX eligible 
securities will be disseminated via the consolidated tape pursuant to 
the Consolidated Tape Association Plan (``CTA Plan''). All executions 
that occur solely within the NYBX Facility will be printed with an 
``N'' for the NYSE and an ``.X'' to identify these executions as NYBX 
Facility executions (i.e. , ``N.X''). The ``N.X'' modifier is also used 
to identify NYSE MatchPoint[reg] executions. Orders that originate in 
the NYBX Facility and execute on the DBK will print regular way as NYSE 
prints (``N'') pursuant to the Consolidated Tape Association Plan 
(``CTA'' Plan'') through the NYSE. All trades will indicate the market 
of execution as the NYSE for CTA purposes.
Member Organization and Non-Member Access to the NYBX Facility
    Members and member organizations of the Exchange are automatically 
eligible for access to the NYBX Facility by their membership on the 
Exchange. A non-member who wishes to trade securities on the NYBX 
Facility may do so as a ``Sponsored Participant'' pursuant to Rule 
123B.\16\
---------------------------------------------------------------------------

    \16\ See Securities Exchange Act Release No. 58758 (October 8, 
2008) 73 FR 62352 (October 20, 2008) (SR-NYSE-2008-100).
---------------------------------------------------------------------------

    As previously explained, all members, member organizations and 
Sponsored Participants of Sponsoring Member Organizations must first 
obtain connectivity authorization before they can access the NYBX 
Facility.
Limitations on the Use of the NYBX Facility
    (A) DMMs on the Floor of the Exchange are not authorized to access 
the NYBX Facility. The off-Floor operations of DMM units may obtain 
authorized access to the NYBX Facility provided they have policies and 
procedures and barriers in place that preclude prohibited information 
sharing between the DMM unit and such units' DMMs on the Floor of the 
Exchange as provided in Rule 98 (``Operation of a Specialist Unit''), 
which was approved by the SEC in August 2008 or ``former'' Rule 98 
(``Restrictions on Approved Person Associated with a Specialist's 
Member Organizations''), whichever Rule 98 applies to the particular 
DMM unit.\17\
---------------------------------------------------------------------------

    \17\ Currently, new Rule 98 (``Operation of a Specialist 
Unit''), which was approved by the SEC in August 2008 (see 
Securities Exchange Act Release No. 58328 (August 7, 2008), 73 FR 
48260 (August 18, 2008)(SR-NYSE-2008-45)) and ``former'' Rule 98 
(``Restrictions on Approved Person Associated with a Specialist's 
Member Organizations'') are both in effect. DMM units may operate 
under either Rule 98 (new or former) by meeting the requirements of 
the applicable Rule. However, when trading in or through the NYBX 
Facility, DMMs units of the Exchange must comply with subsection 
(h)(2)(A) (``Limitations on the Use of the NYBX Facility'') of the 
proposed Rule.
    Pursuant to subsection (h)(2)(B) of the proposed Rule, Floor 
brokers may only enter agency orders into the NYBX Facility from the 
Floor of the Exchange, and may enter agency and proprietary orders 
into the NYBX Facility from off the Floor of the Exchange.
    Registered Competitive Market Makers (``RCMMs'') are similarly 
prohibited from entering orders into the NYBX Facility while on the 
Floor of the Exchange under (h)(2)(C).

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

[[Page 71060]]

    (B) Members who have authorized access to NYBX are not permitted to 
enter orders into the NYBX Facility from the Floor of the Exchange when 
such orders are for their own accounts, the accounts of associated 
persons, or accounts over which it or an associated person exercises 
investment discretion. Similarly, members on the Floor may not have 
such orders entered into the NYBX Facility by sending them to an off-
Floor facility for entry. Members with authorized access to the NYBX 
Facility may only enter customer orders into the NYBX Facility from the 
Floor of the Exchange. Members that have authorized access to the NYBX 
Facility may enter proprietary and customer orders into NYBX Facility 
from off the Floor of the Exchange.
    (C) Like DMMs, Registered Competitive Market Makers (``RCMMs'') on 
the Floor of the Exchange are not authorized to access the NYBX 
Facility. Off-Floor operations of RCMM units may obtain authorized 
access to the NYBX Facility provided they have policies, procedures and 
barriers in place that preclude information sharing between RCMM on-
Floor and off-Floor operations.
Applicability of Section 11(a) and (b) of the Act
    Section 11(a) of the Act 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 investment discretion, 
unless an exception applies. The ``Effect versus Execute Rule,'' as 
Rule 11a2-2(T) is known, permits an exchange member, subject to certain 
conditions, to effect a transaction for such accounts, utilizing an 
unaffiliated member to execute transactions on the exchange floor. The 
Rule requires that: (1) The order must be transmitted from off-floor; 
(2) once the order has been transmitted, the member may not participate 
in the execution; (3) the transmitting member may not be affiliated 
with the executing member; and (4) neither the member or associated 
person may retain any compensation in connection with effecting such 
transaction, respecting accounts over which either has investment 
discretion, without the express written consent of the person 
authorized to transact business for the account. The Exchange requests 
interpretation that NYBX orders entered from off-floor comply with the 
following provisions of the Rule:
    1. Off-Floor Transmissions: Orders are electronically entered into 
the NYBX Facility from on and off the Floor of the Exchange; however, 
Members are not permitted to enter orders into the NYBX Facility from 
the Floor of the Exchange when such orders are for their own accounts, 
the accounts of associated persons, or accounts over which it or an 
associated person exercises investment discretion. Also, DMMs are not 
permitted to enter any orders into the NYBX Facility and they do not 
have access to the NYBX Facility from the Floor, as described in more 
detail below. However, ``upstairs'' DMM units will be permitted to be 
NYBX Users and may enter orders from off the Floor provided such firms 
have adequate policies, procedures and ``barriers'' in place between 
the upstairs firm and the Floor DMMs, which will preclude sharing of 
trading information that is not permitted by this Rule and the Act.
    2. Non-Participation in Order Execution: In accordance with Rule 
11a2-2(T), once orders are entered into the NYBX Facility, a member may 
not participate in, guide or influence the execution of such orders. 
NYBX orders are sent by electronic means (i.e., FIX application or an 
internet based application) directly into the NYBX Facility. Users may 
enter and cancel NYBX orders any time during the regular trading day of 
the Exchange. However, once trading in the Facility commences, the 
Facility will not permit a user to affect the order or its execution in 
any way. Thus, when the trading of orders commence, the member 
relinquishes all control of NYBX orders. Users have no special or 
unique order handling or trading advantages when trading on the NYBX 
Facility.
    3. Affiliated Executing Members: Rule 11a2-2(T) provides that the 
transmitting member may not be affiliated with the executing member. 
The Commission has previously recognized that this requirement may be 
satisfied when automated exchange facilities are used.\18\ NYBX is a 
fully automated, electronic trading facility. As described above, NYBX 
orders are sent by electronic means to the NYBX Facility. Matching, 
trading and routing of orders are effectuated through an algorithm, 
which does not permit a user to affect the order or its execution in 
any way. Thus, when the trading of orders commence, the member 
relinquishes all control of NYBX order. At the completion of each 
execution, transaction reports, including order cancellation reports 
for orders that were not executed, are sent back to the user.
---------------------------------------------------------------------------

    \18\ In considering the operation of automated execution 
facilities by an exchange, the Commission has noted in the past that 
the execution of an order is automatic once it has been transmitted 
into a system or facility, and therefore satisfies the independent 
execution requirement of rule 11a2-2(T). See, e.g., Securities 
Exchange Act Release No. 49068 (January 13, 2004), 69 FR 2775 
(January 20, 2004) (order approving the Boston Options Exchange as 
an options trading facility of the Boston Stock Exchange); 
Securities Exchange Act Release No. 29237 (May 24, 1991), 56 FR 
24853 (May 31, 1991) (regarding New York Stock Exchange's (``NYSE'') 
Off-Hours Trading Facility) and Securities Exchange Act Release No. 
53128 (January 13, 2006), 71 FR 3550 (January 23, 2006) (File No. 
10-131).
---------------------------------------------------------------------------

    The Exchange believes that NYBX Facility complies with the 
``Affiliated Executing Member'' provision of Rule 11a2-2(T) because the 
automatic execution function of the NYBX Facility ensures that all 
authorized NYBX Users have the same abilities with respect to entering 
orders, and no Users can effect an order once the order has been 
entered and the NYBX Facility trading commences. The design of the NYBX 
Facility ensures that members do not possess any special or unique 
trading advantages in the handling of orders. Thus, the Rule's 
provision respecting the use of affiliated members to execute orders is 
not implicated by the NYBX Facility.
    4. Non-Retention of Compensation: The Exchange represents that 
members that rely on Rule 11a2-2(T) for a managed account transaction 
must comply with the limitations on compensation set forth in the Rule.
    Section 11(b) of the Act and SEC Rule 11b-1 thereunder, which 
pertains to DMMs in the New Market Model, is not applicable to the 
operation of the NYBX Facility for several reasons. First, as stated 
above, DMMs on the Floor of the Exchange are not able to access the 
NYBX Facility from the Floor. NYBX can only be accessed through an 
electronic FIX application and/or an Internet based, password-protected 
order entry applications, which are not available to individual DMMs on 
the Floor. Although the upstairs firms that employ DMMs will be able to 
access the NYBX Facility through these two applications, such firms 
must be authorized to access NYBX, and the firms must have policies and 
procedures

[[Page 71061]]

and information barriers in place to preclude the improper sharing of 
trading information between the DMMS on the Floor and their upstairs 
firms pursuant to Section (h)(2)(A) (Section (h)(2)(C) applies to 
RCMMs) of the proposed Rule, which refers to new and former NYSE Rule 
98. Further, the DMM firms will be subject to examinations by the 
Financial Industry Regulatory Authority, Inc. (``FINRA'') as agent for 
NYSE Regulation, Inc. pursuant to a Regulatory Services Agreement dated 
July 30, 2007, to ensure that such policies and procedures and 
information barriers are in place and are adequate to preclude improper 
sharing of trading information.
    Specifically, FINRA examiners will perform an on-site review of the 
combined DMM firm's written policies and procedures and determine if 
they are adequate in relation to trading on the NYBX. In addition, 
FINRA will interview appropriate individuals both within the affected 
departments as well as other areas of the DMM firm to determine whether 
firm policies have been appropriately disseminated and appear to be 
followed in relation to NYBX trading. The examination will also 
determine whether there have been any apparent breaches of the 
information barriers.
    Second, the individual DMM on the Floor has no NYBX order entry 
information or NYBX market data of those orders that enter the NYBX 
Facility as it is a dark trading environment. Without access to NYBX 
and without access to NYBX order entry information and market data, 
DMMs will not be able to manipulate NYBX trading.
    Third, the Exchange has an internal authorization process that 
authorizes NYBX Users to access NYBX through the FIX application and 
Internet by providing an authorized user name and protected password. 
Individual DMMs on the Floor will not be authorized through the 
internal process. Upstairs firms that employ DMMs may be authorized to 
access NYBX through NYBX's internal authorization process, provided, as 
noted above, FINRA, as agent for NYSE Group, examines such firms to 
ensure that policies, procedures and barriers are in place and are 
adequate to preclude improper sharing of trading information.
    Therefore, because DMMs on the Floor will not have access to the 
NYBX Facility or NYBX order information, and because the DMM firms are 
subject to regulatory examinations to ensure the integrity of 
information barriers between the firms and their DMMs on the Floor, the 
Exchange believes that Section 11(b) of the Act and SEC Rule 11b-1 
thereunder, which pertains to DMMs, is not applicable to the operation 
of the NYBX Facility.
Regulation of the NYBX Facility
    The Exchange notes that NYSE Regulation represents that it has 
appropriate policies and procedures in place to adequately and 
effectively regulate the NYBX Facility. A surveillance plan describing 
the various surveillances that will be in place to monitor the 
operation of NYBX will be submitted to the SEC under separate 
cover.\19\ Also, FINRA, as agent for NYSE Group, will perform 
examinations of DMM firms that trade on the NYBX Facility as described 
above.
---------------------------------------------------------------------------

    \19\ The NYBX Surveillance Plan will be provided to the 
Commission, and it will be implemented prior to any trading on the 
NYBX Facility.
---------------------------------------------------------------------------

2. Statutory Basis
    The basis under the Securities Exchange Act of 1934 (the ``Act'') 
\20\ for this proposed rule change is the requirement under Section 
6(b)(5) \21\ that an Exchange have rules that are designed to promote 
just and equitable principles of trade, to remove impediments to and 
perfect the mechanism of a free and open market and a national market 
facility and, in general, to protect investors and the public interest. 
By this filing, the Exchange is seeking to establish the NYBX Facility 
to provide its customers with the ability to aggregate multiple sources 
of liquidity and to facilitate trading in block-sized orders. This 
electronic, anonymous trading facility will also allow customers to 
execute smaller orders and have quick access to multiple price points 
of displayed liquidity to meet size and price execution requirements. 
The Facility allows for the interaction of non-displayed orders with 
the aggregate of displayed and non-displayed orders of the DBK and the 
National Best Bid and Best Offer (``NBBO'') and considers protected 
quotations of all automated trading centers in securities listed on the 
NYSE in compliance with Regulation NMS. Therefore, the proposed rule 
filing is consistent with the promotion of just and equitable trading, 
and it seeks to protect the rights of investors and the public.
---------------------------------------------------------------------------

    \20\ 15 U.S.C. 78f(a).
    \21\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act.

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

    No written comments were solicited or received with respect to the 
proposed rule change.

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

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

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://
www.sec.gov/rules/sro.shtml); or
     Send an e-mail to rule-comments@sec.gov. Please include 
File Number SR-NYSE-2008-119 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NYSE-2008-119. 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

[[Page 71062]]

proposed rule change between the Commission and any person, other than 
those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for inspection and 
copying in the Commission's Public Reference Room, 100 F Street, NE., 
Washington, DC 20549, on official business days between the hours of 10 
a.m. and 3 p.m. Copies of such filing also will be available for 
inspection and copying at the principal offices of the Exchange. All 
comments received will be posted without change; the Commission does 
not edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly. All 
submissions should refer to File Number SR-NYSE-2008-119 and should be 
submitted on or before December 15, 2008.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\22\
---------------------------------------------------------------------------

    \22\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-27794 Filed 11-21-08; 8:45 am]

BILLING CODE 8011-01-P
