
[Federal Register: February 11, 2009 (Volume 74, Number 27)]
[Notices]
[Page 6939-6940]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11fe09-103]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59349; File No. SR-NYSEArca-2009-07]


Self-Regulatory Organizations; Notice of Filing and Immediate
Effectiveness of Proposed Rule Change by NYSE Arca, Inc. Amending Rule
5.4 To Eliminate the $3 Market Price Per Share Requirement

February 3, 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 February 2, 2009, NYSE Arca, Inc. (``NYSE Arca'' or 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. NYSE Arca has
designated the proposed rule change as constituting a non-controversial
rule change under Rule 19b-4(f)(6) under the Act,\3\ 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\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to amend Rule 5.4 to eliminate the $3 market
price per share requirement from the Exchange's requirements for
continued approval for an underlying security and eliminate the
prohibition against listing additional series of options on an
underlying security at any time when the price per share of such
underlying security is less than $3. Changes to the rule text are shown
in the attached Exhibit 5.\4\ A copy of this filing is available on the
Exchange's Web site at http://www.nyse.com, at the Exchange's principal
office and at the Commission's Public Reference Room.
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    \4\ The Commission notes that while provided in Exhibit 5 to the
filing, the text of the proposed rule change is not attached to this
notice but is available at the Exchange, the Commission's Public
Reference Room, and at http://www.nyse.com.
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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 purpose of this proposed rule change is to eliminate the $3
market price per share requirement from the Exchange's requirements for
continued approval for an underlying security from Rule 5.4. In
addition, the rule filing would further amend Rule 5.4 by eliminating
the prohibition against listing additional series of options on an
underlying security at any time when the price per share of such
underlying security is less than $3.
    The Exchange believes that the $3 market price per share
requirement is no longer necessary or appropriate, and states that only
those underlying securities meeting the remaining maintenance listing
criteria set forth in Rule 5.4 will be eligible for continued listing
and the listing of additional option series. The Exchange believes

[[Page 6940]]

that the current $3 market price per share requirement could have a
negative effect on investors. For example, in the current volatile
market environment, the Exchange is currently unable to list new series
on underlying securities trading below $3. If there is market demand
for series while the underlying is below $3, the Exchange would be
unable to accommodate such requests and investors would be unable to
hedge their positions with new options series.
    As of January 2, 2009, the Exchange had 209 underlying issues that
had closed below $3 per share, and an additional 176 that had closed
between $3 and $5 per share, out of a total of 2170 underlying classes.
2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with
and furthers the objectives of Section 6(b)(5) of the Act, in that it
is designed to promote just and equitable principles of trade, remove
impediments to and perfect the mechanisms of a free and open market and
a national market system and, in general, to protect investors and the
public interest, as it provides for the continued listing of options
overlying securities that meet all requirements except for share price.
By continuing the listing, investors will be able to continue managing
risk in these securities.

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

    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 \5\ and Rule 19b-
4(f)(6) thereunder.\6\
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    \5\ 15 U.S.C. 78s(b)(3)(A).
    \6\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)
requires a self-regulatory organization to give the Commission
written notice of its intent to file the proposed rule change at
least five business days prior to the date of filing of the proposed
rule change, or such shorter time as designated by the Commission.
NYSE Arca has satisfied this requirement.
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    A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the
Act \7\ normally does not become operative for 30 days after the date
of its filing. However, Rule 19b-4(f)(6) \8\ permits the Commission to
designate a shorter time if such action is consistent with the
protection of investors and the public interest. NYSE Arca requests
that the Commission waive the 30-day operative delay. The Commission
notes that this proposed rule change is substantially identical to a
proposed rule change that was approved by the Commission after an
opportunity for public comment,\9\ and does not raise any new
substantive issues. The Exchange requests the waiver of the 30-day
operative delay so that the proposed rule change may become effective
and operative on or near the date that the CBOE proposal is operative.
For these reasons, the Commission believes that waiving the 30-day
operative delay \10\ is consistent with the protection of investors and
the public interest and designates the proposal operative upon filing.
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    \7\ 17 CFR 240.19b-4(f)(6).
    \8\ 17 CFR 240.19b-4(f)(6).
    \9\ NYSE Arca's proposed rule change is substantially identical
to a proposed rule change by the Chicago Board Options Exchange
(``CBOE'') recently approved by the Commission. See Securities
Exchange Act Release No. 59336 (February 2, 2009) (SR-CBOE-2008-
127).
    \10\ For purposes only of waiving the 30-day operative delay,
the Commission has considered the proposed 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:

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-NYSEArca-2009-07 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-NYSEArca-2009-07. 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, 100 F Street,
NE., Washington, DC 20549, on official business days between the hours
of 10 a.m. and 3 p.m. Copies of such filing also will be available for
inspection and copying at the principal office of 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 publicly available. All
submissions should refer to File Number SR-NYSEArca-2009-07 and should
be submitted on or before March 4, 2009.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\11\
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    \11\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E9-2772 Filed 2-10-09; 8:45 am]

BILLING CODE 8011-01-P
