
[Federal Register: January 27, 2009 (Volume 74, Number 16)]
[Notices]               
[Page 4796-4799]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27ja09-73]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59261; File No. SR-BX-2009-001]

 
Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of 
Filing and Immediate Effectiveness of Proposed Rule Change Deferring 
Operation of Its Listing Standards for Primary Listings and 
Consolidating Into a Single Rule Certain Requirements for Products 
Traded on the Exchange Pursuant to Unlisted Trading Privileges

January 15, 2009.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on January 8, 2009, NASDAQ OMX BX, Inc. (the ``Exchange'') filed with 
the Securities and Exchange Commission (``Commission'') the proposed 
rule change as described in Items I and II below, which Items have been 
prepared by the Exchange. The Exchange has designated the proposed rule 
change as constituting a non-controversial rule change under Section 
19(b)(3)(A) of the Act \3\ and Rule 19b-4(f)(6) thereunder,\4\ which 
renders the proposal effective upon filing with the Commission. The 
Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.SC. 78s(b)(3)(A).
    \4\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of the 
Substance of the Proposed Rule Change

    The Exchange proposes (i) to suspend the operation of the 
Exchange's newly adopted listing standards with respect to primary 
listings on the Exchange until such time as the Exchange adopts listing 
fees, and (ii) to adopt rules reflecting the requirements for trading 
products on the Exchange pursuant to unlisted trading privileges 
(``UTP'') that have been established in various new product proposals 
previously approved by the Commission. The Exchange proposes to make 
the change operative on January 12, 2009.
    The text of the proposed rule change is available from the 
principal office of the Exchange, at the Commission's Public Reference 
Room and also on the Exchange's Web site at http://nasdaqtrader.com/
Trader.aspx?id=Boston_Stock_Exchange.

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

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

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

1. Purpose
    On August 29, 2008, the Exchange was acquired by The NASDAQ OMX 
Group, Inc. At the time of this acquisition, the Exchange was not 
operating a venue for listing or trading cash equities. Pursuant to SR-
BSE-2008-48, the Exchange has adopted a new rulebook with rules 
governing membership, the regulatory obligations of members, listing, 
and equity trading.\5\ The new rules, which are designated as the 
``Equity Rules,'' include rules that permit issuers of various types of 
securities to establish primary listings on the Exchange. However, the 
Exchange has determined that market conditions do not currently warrant 
offering the Exchange as a listing venue.

[[Page 4797]]

Accordingly, although the listing standards will remain in the 
Exchange's rulebook, the Exchange is proposing new Equity Rule 4401, 
which provides that the provisions of the Equity Rule 4000 Series that 
permit the listing of securities will not be operative until the 
Exchange files a proposed rule change under Section 19(b)(2) under the 
Act to adopt listing fees for the Exchange and such proposed rule 
change is approved by the Commission. The rule is similar in effect to 
Rule 14.1(a) of the BATS Exchange.
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    \5\ Securities Exchange Act Release No. 59154 (December 23, 
2008) (SR-BSE-2008-48).
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    In addition, the Exchange also proposes to amend its rules to 
reflect certain requirements for trading products on the Exchange 
pursuant to UTP that have been established in various new product 
proposals previously approved by the Commission. The Exchange is 
amending Equity Rule 4420 to provide that it may extend UTP to any 
security that is an NMS Stock (as defined in Rule 600 of Regulation 
NMS) that is listed on another national securities exchange. Any such 
security will be subject to all of the Exchange's trading rules 
applicable to NMS Stocks, unless otherwise noted, including the 
provisions of Equity Rules 4120, 4420, 4630, and new Rule 4421 
described below. The Exchange will file with the Commission a Form 19b-
4(e) with respect to any such security that is a ``new derivative 
securities product'' as defined in Rule 19b-4(e) under the Act \6\ 
(defined as a ``UTP Derivative Security''). In addition, any new 
derivative securities product traded on the Exchange will be subject to 
the criteria described below.
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    \6\ 17 CFR 240.19b-4(e).
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    Proposed Equity Rule 4421(a)(2) provides that the Exchange will 
distribute an information circular prior to the commencement of trading 
in a UTP Derivative Security, which generally will include the same 
information as the information circular provided by the listing 
exchange, including: (1) The special risks of trading the UTP 
Derivative Security; (2) the Rules of the Exchange that will apply to 
the UTP Derivative Security, including Equity Rule 2310, the Exchange's 
suitability rule; (3) information about the dissemination of the value 
of the underlying assets or indexes; and (4) the applicable trading 
hours for the UTP Derivative Security and risks of trading during the 
Exchange's pre-market session (8 a.m. to 9:30 a.m.) and post-market 
session (4 p.m. to 7 p.m.) due to the lack of calculation or 
dissemination of the underlying index value, the intraday indicative 
value, or a similar value.
    Proposed Equity Rule 4421(a)(3)(A) reminds Members \7\ that they 
are subject to the prospectus delivery requirements under the 
Securities Act of 1933, as amended (the ``Securities Act''), unless a 
UTP Derivative Security is the subject of an order by the Commission 
exempting the product from certain prospectus delivery requirements 
under Section 24(d) of the Investment Company Act of 1940 (the ``1940 
Act'') and the product is not otherwise subject to prospectus delivery 
requirements under the Securities Act. The Exchange will inform its 
Members of the application of these provisions to a particular UTP 
Derivative Security governed by the 1940 Act by means of an information 
circular.
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    \7\ A Member is any registered broker-dealer that has been 
admitted to membership in the Exchange.
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    The Exchange is amending Equity Rule 4120(b) to more fully address 
trading halts in UTP Derivative Securities traded on the Exchange 
pursuant to UTP. As currently in effect, Rule 4120(b) provides for 
trading halts of ``Derivative Securities Products,'' which are defined 
as a series of Portfolio Depository Receipts, Index Fund Shares, 
Managed Fund Shares, Trust Issued Receipts, Commodity-Related 
Securities, or securities representing interests in unit investment 
trusts or investment companies. Although this definition covers a wide 
range of products that would be considered UTP Derivative Securities, 
for the avoidance of doubt, the Exchange is explicitly amending the 
definition to include all UTP Derivative Securities. The current rule 
also contains a definition of ``Required Value'' and provides for 
trading halts in certain circumstances where a Required Value is not 
being disseminated. Currently, ``Required Value'' is defined to mean 
``(i) the value of any index or any commodity-related value underlying 
a Derivative Security Product and (ii) the indicative optimized 
portfolio value, intraday indicative value, or other comparable 
estimate of the value of a share of a Derivative Securities Product 
updated regularly during the trading day.'' The Exchange proposes to 
amend the definition to also include ``(iii) a net asset value in the 
case of a Derivative Securities Product for which a net asset value is 
disseminated, and (iv) a `disclosed portfolio' in the case of a 
Derivative Securities Product that is a series of managed fund shares 
or actively managed exchange-traded funds for which a disclosed 
portfolio is disseminated.''
    Thus, as amended, the rule provides that the Exchange, upon 
notification by the listing market of a halt due to a temporary 
interruption in the calculation or wide dissemination of a Required 
Value for a Derivative Securities Product, will immediately halt 
trading in that product on the Exchange. If the Required Value 
continues not to be calculated or widely disseminated at the 
commencement of trading on the Exchange on the next business day, the 
Exchange shall not commence trading of the product on that day. If an 
interruption in the calculation or wide dissemination of the Required 
Value continues, the Exchange may resume trading in the Derivative 
Securities Product only if calculation and wide dissemination of the 
Required Value resumes or trading in such product resumes on the 
listing market.
    The Exchange is also amending Equity Rule 4630, which governs the 
activities of registered market makers in Commodity-Related Securities. 
A ``Commodity-Related Security'' is defined to mean a security that is 
issued by a trust, partnership, commodity pool or similar entity that 
invests, directly or through another entity, in any combination of 
commodities, futures contracts, options on futures contracts, forward 
contracts, commodity swaps, or other related derivatives, or the value 
of which is determined by the value of commodities, futures contracts, 
options on futures contracts, forward contracts, commodity swaps, or 
other related derivatives. A ``commodity'' is defined in Section 
1(a)(4) of the Commodity Exchange Act, a definition that includes 
currencies. As amended, the rule provides that a registered market 
maker in a Commodity-Related Security is prohibited from acting or 
registering as a market maker in any commodities, futures contracts, 
options on futures contracts, forward contracts, commodity swaps, or 
other related derivatives underlying such Commodity-Related Security. 
The rule further provides that a member acting as a registered market 
maker in a Commodity-Related Security must file with the Exchange's 
Regulation Department in a manner prescribed by such Department and 
keep current a list identifying all accounts for trading in 
commodities, futures contracts, options on futures contracts, forward 
contracts, commodity swaps, or other related derivatives underlying 
such Commodity-Related Security, in which the market maker holds an 
interest, over which it may exercise investment discretion, or in which 
it shares in the profits and losses. No market maker shall trade in, or

[[Page 4798]]

exercise investment discretion with respect to, such underlying 
commodities, futures contracts, options on futures contracts, forward 
contracts, commodity swaps, or other related derivatives, in an account 
in which a market maker, directly or indirectly, controls trading 
activities, or has an interest in the profits or losses thereof, that 
has not been reported as required by the Rule.
    In addition, a member acting as a registered market maker in a 
Commodity-Related Security is obligated to establish adequate 
information barriers when such market maker engages in communications 
to other departments within the same firm or the firm's affiliates that 
involve trading in commodities, futures contracts, options on futures 
contracts, forward contracts, commodity swaps, or other related 
derivatives underlying such Commodity-Related Security. The member 
acting as a registered market maker in a Commodity-Related Security 
shall make available to the Exchange's Regulation Department such 
books, records or other information pertaining to transactions by such 
entity or registered or non-registered employee affiliated with such 
entity for its or their own accounts for trading commodities, futures 
contracts, options on futures contracts, forward contracts, commodity 
swaps, or other related derivatives underlying such Commodity-Related 
Security, as may be requested by the Regulation Department. Finally, in 
connection with trading a Commodity-Related Security or commodities, 
futures contracts, options on futures contracts, forward contracts, 
commodity swaps, or other related derivatives underlying a Commodity-
Related Security, the member acting as a market maker in a Commodity-
Related Security shall not use any material nonpublic information 
received from any person associated with the member or employee of such 
person regarding trading by such person or employee in the commodities, 
futures contracts, options on futures contracts, forward contracts, 
commodity swaps, or other related derivatives underlying such 
Commodity-Related Security.
    The Exchange represents that its surveillance procedures for UTP 
Derivative Securities traded on the Exchange will be similar to the 
procedures used for equity securities traded on the Exchange and will 
incorporate and rely upon existing Exchange surveillance procedures. 
The Exchange will closely monitor activity in UTP Derivative Securities 
traded on the Exchange pursuant to UTP to deter any potential improper 
trading activity. The proposed rule change also provides that the 
Exchange will enter into a comprehensive surveillance sharing agreement 
(``CSSA'') with a market trading components of the index or portfolio 
on which the UTP Derivative Security is based to the same extent as the 
listing exchange's rules require the listing market to enter into a 
CSSA with such market.
    Finally, the Exchange is amending provisions of Equity Rule 4120 
and 4630 that stipulate that the Exchange will file separate proposals 
under Section 19(b)(2) of the Act for each issue of Managed Fund Shares 
or Commodity-Based Securities that it trades on a UTP basis. Because 
the new rules being adopted by the Exchange consolidate the 
requirements for trading such securities that have been established in 
new product proposals previously approved by the Commission, separate 
proposals under Section 19(b)(2) of the Act are no longer required for 
trading these securities.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with the provisions of Section 6 of the Act,\8\ in general and with 
Section 6(b)(5) of the Act,\9\ in particular, in that it would 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, in general, protect investors and the public interest by 
providing for the trading of securities, including UTP Derivative 
Securities, on the Exchange pursuant to UTP, subject to consistent and 
reasonable standards.
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    \8\ 15 U.S.C. 78f.
    \9\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

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

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

    Written comments on the proposed rule change were neither solicited 
nor received.

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

    Because the foregoing proposed rule change does not: (i) 
Significantly affect the protection of investors or the public 
interest; (ii) impose any significant burden on competition; and (iii) 
become operative for 30 days from the date on which it was filed, or 
such shorter time as the Commission may designate, it has become 
effective pursuant to Section 19(b)(3)(A) of the Act \10\ and Rule 19b-
4(f)(6) thereunder.\11\
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    \10\ 15 U.S.C. 78s(b)(3)(A).
    \11\ 17 CFR 240.19b-4(f)(6). In addition, as required under Rule 
19b-4(f)(6)(iii), the Exchange provided the Commission with written 
notice of its intent to file the proposed rule change, along with a 
brief description and text of the proposed rule change, at least 
five days prior to the filing of the proposed rule change.
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    The Exchange has asked the Commission to waive the 30-day operative 
delay. The Commission believes that such waiver is consistent with the 
protection of investors and the public interest because such waiver 
should benefit investors by creating, without undue delay, additional 
competition in the trading of UTP Derivative Securities, subject to 
consistent and reasonable standards. Waiver of the waiting period will 
also allow prompt clarification of the status of the Exchange as a 
listing venue by specifying that the Exchange's listing standards shall 
not be operative for primary listings until the Exchange adopts listing 
fees. The proposed rule change is modeled closely after similar rules 
of other national securities exchanges \12\ and does not raise any 
novel or significant regulatory issues. Therefore, the Commission 
designates the proposed rule change as operative upon filing.\13\
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    \12\ See, e.g., NSX Rule 15.9 and Securities Exchange Act 
Release No. 57448 (March 6, 2008), 73 FR 13597 (March 13, 2008) (SR-
NSX-2008-05); ISE Rule 2101 and Securities Exchange Act Release No. 
57387 (February 27, 2008), 73 FR 11965 (March 5, 2008) (SR-ISE-2007-
99); BATS Rule 14.1 and Securities Exchange Act Release No. 58623 
(September 23, 2008), 73 FR 57169 (October 1, 2008) (SR-BATS-2008-
004).
    \13\ For purposes only of waiving the operative date of this 
proposal, the Commission has considered the rule's impact on 
efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
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    At any time within 60 days of the filing of the proposed rule 
change the Commission may summarily abrogate such rule change if it 
appears to the Commission that such action is necessary or appropriate 
in the public interest, for the protection of investors, or otherwise 
in furtherance of the purposes of the Act.

IV. Solicitation of Comments

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

[[Page 4799]]

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-BX-2009-001 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-BX-2009-001. 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 on official business 
days between the hours of 10 a.m. and 3 p.m. Copies of such filing also 
will be available for inspection and copying at the principal office of 
the Exchange. All comments received will be posted without change; the 
Commission does not edit personal identifying information from 
submissions. You should submit only information that you wish to make 
available publicly.
    All submissions should refer to File Number SR-BX-2009-001 and 
should be submitted on or before February 17, 2009.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\14\
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    \14\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E9-1671 Filed 1-26-09; 8:45 am]

BILLING CODE 8011-01-P
