[Federal Register Volume 71, Number 165 (Friday, August 25, 2006)]
[Notices]
[Pages 50482-50497]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-7131]


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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-54329; File No. SR-Phlx-2006-43]


Self-Regulatory Organizations; Philadelphia Stock Exchange, Inc.; 
Notice of Filing of Proposed Rule Change and Amendment Nos. 1 and 2 
Thereto Relating to the Exchange's New Equity Trading System, XLE

August 17, 2006.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'') \1\, and Rule 19b-4 \2\ thereunder, notice is hereby given 
that on July 13, 2006, the Philadelphia Stock Exchange, Inc. (``Phlx'' 
or ``Exchange'') filed with the Securities and Exchange Commission 
(``SEC'' or ``Commission'') the proposed rule change as described in 
Items I, II, and III, below, which Items have been prepared by the 
Phlx. On August 14, 2006, the Exchange filed Amendment No. 1 to the 
proposed rule change.\3\ On August 16, 2006, the Exchange filed 
Amendment No. 2 to the proposed rule change.\4\ The Commission is 
publishing this notice to solicit comments on the proposed rule change, 
as amended, from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ Amendment No. 1 replaced and superseded the original filing 
in its entirety.
    \4\ See Partial Amendment No. 2.
---------------------------------------------------------------------------

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

    The Phlx, pursuant to Section 19(b)(1) of the Act \5\ and Rule 19b-
4 thereunder,\6\ proposes to amend its rules to implement a new trading 
model for equity securities that provides the opportunity for entirely 
automated executions to occur within a central matching system 
accessible by Exchange members and member organizations and their 
Sponsored Participants, as defined below. The rules proposed herein are 
intended to comply with the requirements of Regulation NMS.\7\ The 
Exchange will no longer operate a physical trading floor for equity 
securities, nor the Philadelphia Stock Exchange Automated Communication 
and Execution (``PACE'') system. This proposal does not affect the way 
options trade on the Exchange, and the Exchange will continue to have a 
physical trading floor for options. The text of this proposed rule 
change is available on the Exchange's Web site at http://www.phlx.com, 
in the

[[Page 50483]]

Commission's Public Reference Room, and on the Commission's Web site at 
http://www.sec.gov/rules/sro/phlx.shtml.
---------------------------------------------------------------------------

    \5\ 15 U.S.C. 78s(b)(1).
    \6\ 17 CFR 240.19b-4.
    \7\ 17 CFR 242.600 et seq.
---------------------------------------------------------------------------

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 Phlx 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 Phlx 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
    The Phlx proposes to adopt new Phlx Rules 160-165, 170-174, and 
180-189, and amend or delete other rules to accommodate the Exchange's 
proposed new equity system (``XLE''). The purpose of the proposed rule 
change is to adopt a new market structure for the trading of equity 
securities on the Phlx.
a. Summary of XLE
    XLE would provide Exchange members and member organizations and 
their Sponsored Participants and their Participant Authorized Users, 
described herein (together known as ``XLE Participants''), with a more 
efficient method for displaying, routing, and executing orders in NMS 
Stocks \8\ on the Exchange. With this new system, the Exchange would no 
longer operate a physical equity trading floor where specialists and 
floor brokers execute their orders, nor would it operate its PACE 
system, through which member organizations currently can send orders to 
the Exchange electronically, which represents the Exchange's current 
market structure. Instead, the Exchange proposes to adopt a new market 
structure in which it will operate an automated system, XLE, where XLE 
Participants, from any location, may submit orders for immediate 
execution, display, or routing, as applicable.\9\ The Exchange believes 
that this new system will provide an opportunity for XLE Participants 
and their customers to receive efficient, low-cost executions.
---------------------------------------------------------------------------

    \8\ Currently, the Exchange trades, pursuant to unlisted trading 
privileges, various equity securities listed on national securities 
exchanges, but it does not trade Nasdaq-listed securities. On XLE, 
the Exchange intends to trade Nasdaq-listed securities, as well as 
securities listed on other national securities exchanges, pursuant 
to unlisted trading privileges. 15 U.S.C. 78l(f).
    \9\ See proposed Phlx Rule 160.
---------------------------------------------------------------------------

    The Exchange anticipates that most XLE Participants will be broker-
dealers that will send orders to XLE for execution, display, or 
routing, as applicable. These organizations would not be required to 
register with the Exchange to act in any specific capacity other than 
as a member organization or a Sponsored Participant of a member 
organization. The Exchange would, however, allow member organizations 
to register as Market Makers on XLE.\10\ Market Makers, once registered 
as such, could then choose to register in one or more securities that 
are traded on XLE. Once registered in a particular security, Market 
Makers would be required to maintain continuous Limit Orders on both 
sides of the market in that security during the Core Session (normally 
9:30 a.m. to 4 p.m.).\11\ In addition, Market Makers could also send 
other types of orders to XLE in securities in which they are Market 
Makers.
---------------------------------------------------------------------------

    \10\ See proposed Phlx Rule 1(l). See also infra Section 
II.A.1.c.xviii (Market Makers).
    \11\ Unless otherwise noted, all time references refer to 
Eastern time as effective in the City of Philadelphia. See Phlx Rule 
101.
---------------------------------------------------------------------------

    XLE would be an order-driven system; there will be no ``quotes'' 
akin to what equity specialists submit on the Exchange today. Moreover, 
on XLE, there will be no specialists. Although the new rules provide 
for Market Makers, an NMS Stock may trade on XLE without a Market 
Maker.
    The Exchange intends to discontinue its PACE system and the 
operation of its equity trading floor, and then roll-out XLE in several 
phases, beginning with two-sided orders only for approximately one week 
(with each phase, generally starting first with NYSE and Amex listed 
securities and then Nasdaq listed securities); then one-sided orders, 
all of which will be deemed ``Do Not Route,'' and incoming linkage 
orders routed to the Exchange through the new NMS Linkage and all 
Intermarket Trading System (``ITS'') commitments; and finally, routing 
functionality. In addition, the Exchange may roll-out Reserve Orders 
later than it rolls out other one-sided orders. The Exchange 
anticipates that the roll-out will be complete within a two month 
period and will publish more precise information regarding the roll-out 
via Exchange circular.
b. Summary of Changes
    Because the Exchange proposes to launch XLE in lieu of trading on 
its physical trading floor, the Exchange is proposing to modify or 
delete many Phlx By-laws and Phlx Rules that relate to floor trading. 
The Exchange also is proposing to delete outdated Phlx Rules that 
relate to the delivery and settlement of securities,\12\ which 
currently take place in registered clearing agencies. Most notably, 
changes to the Phlx By-laws and Phlx Rules are necessary to reflect the 
proposed elimination of the equity trading floor \13\ and equity 
specialists,\14\ as well as the Floor Procedure Committee and the 
Equity Allocation, Evaluation and Securities Committee.\15\
---------------------------------------------------------------------------

    \12\ See various rules between Phlx Rules 251-423, as 
applicable.
    \13\ See various rules between Phlx Rules 102-124, 126-155, and 
225-233, as well as certain Phlx Rules in the 600 and 700 series, 
certain Equity Floor Procedure Advices (``EFPAs'') from E-1 through 
Regulation 7, and Options Floor Procedure Advices (``OFPAs'') F-33 
and Regulation 5.
    \14\ See Phlx Rules 201-220, 236, 460-461, 500-524, and EFPAs A-
1 and A-2.
    \15\ See certain Phlx Rules in the 800 series.
---------------------------------------------------------------------------

c. The New Trading System--XLE--New Rules
    As stated above, the Exchange's proposed new trading system is XLE. 
XLE would be a fully automated, electronic trading system that will 
accept orders in NMS Stocks traded on the Exchange from XLE 
Participants and display, route, and execute those orders automatically 
pursuant to non-discretionary algorithms codified in the proposed Phlx 
Rules. Orders will be ranked on XLE in price-time priority regardless 
of the identity of the entering XLE Participant. Executions on XLE will 
take place automatically and immediately upon order entry if trading 
interest is available. XLE will provide an optional routing service for 
orders for which trading interest is not present on XLE. A more 
detailed description of XLE is set forth below. The Exchange intends to 
operate XLE as an ``automated trading center'' for purposes of 
Regulation NMS \16\ and would display automated quotations at all times 
except in the event that a systems malfunction renders XLE incapable of 
displaying automated quotations. The Exchange states that it would halt 
trading and therefore not display any quotations in the event of such a 
systems malfunction.
---------------------------------------------------------------------------

    \16\ See proposed Phlx Rule 160.
---------------------------------------------------------------------------

i. New Definitions
    A number of new definitions are used in the proposed Phlx Rules 
regarding XLE. The term ``XLE'' shall mean the electronic system which 
is operated by the Exchange for the entry, display, execution, and 
reporting of orders in

[[Page 50484]]

``NMS Stocks.'' \17\ Various persons will be using XLE to trade NMS 
Stocks, which include stocks listed on national securities 
exchanges.\18\ Collectively, these persons are referred to as ``XLE 
Participants.'' \19\ Individuals authorized by a member organization or 
a Sponsored Participant who use XLE are ``Participant Authorized 
Users'' or ``PAUs.'' \20\ Non-members may gain access to XLE by 
becoming ``Sponsored Participants'' \21\ who are sponsored by 
``Sponsoring Member Organizations.'' \22\ Further, member organizations 
that clear transactions for XLE Participants are referred to as 
``clearing firms.'' \23\
---------------------------------------------------------------------------

    \17\ See proposed Phlx Rule 1(mm).
    \18\ See proposed Phlx Rule 1(t). Definitions of the classes of 
stocks traded on Nasdaq are at proposed Phlx Rule 1(r)-(s).
    \19\ See proposed Phlx Rule 1(nn). ``XLE Participants'' includes 
members and member organizations registered on XLE, Sponsored 
Participants, and PAUs.
    \20\ See proposed Phlx Rule 1(x).
    \21\ See proposed Phlx Rule 1(jj).
    \22\ See proposed Phlx Rule 1(kk).
    \23\ See proposed Phlx Rule 1(c).
---------------------------------------------------------------------------

    XLE Participants that are member organizations may register to 
become ``Market Makers'' in a particular security.\24\ Because the term 
``Market Makers'' refers to organizations and not individuals, 
individuals who enter orders on behalf of Market Makers are called 
``Market Maker Authorized Traders'' or ``MMATs.'' \25\ In regards to a 
particular security, the term ``Approved Dealer'' means a Market Maker 
on XLE in that security or a specialist or market maker registered as 
such with another exchange or the National Association of Securities 
Dealers, Inc. (``NASD'') in that security. Approved Dealers would be 
required to register as such with the Exchange. Approved Dealers also 
would be required to notify the Exchange immediately if they cease to 
be a specialist or market maker registered as such with another 
exchange or NASD in a security.\26\ Approved Dealer status will be used 
to determine how certain two-sided orders will be executed.\27\
---------------------------------------------------------------------------

    \24\ See proposed Phlx Rule 1(l).
    \25\ See proposed Phlx Rule 1(m).
    \26\ See proposed Phlx Rule 1(a).
    \27\ See proposed Phlx Rule 185(c).
---------------------------------------------------------------------------

    Certain characteristics of orders on XLE and quotations on away 
markets are newly defined in proposed Phlx Rule 1. The size of orders 
is defined by the terms ``odd lot,'' \28\ ``round lot,'' \29\ and 
``mixed lot.'' \30\ Also, XLE Participants would be required to mark 
all orders as ``Proprietary,'' \31\ ``Professional,'' \32\ or ``Public 
Agency.'' \33\ As described below, XLE will take into account away 
quotations for purposes of order execution, display, and routing. The 
definitions include ``Protected Bid, Offer or Quotation'' \34\ and 
``Protected NBBO.'' \35\ Because Rule 611 of Regulation NMS \36\ 
changes the requirements the Exchange must meet regarding trade-
throughs, the definition of Protected Bid, Offer or Quotation will 
reflect this. Specifically, the terms ``Protected Bid, Offer or 
Quotation'' shall: (1) Have, after Rule 611 of Regulation NMS is 
operative on the Exchange, the same meaning as Rule 600(b)(57) and 
(58),\37\ as appropriate, of Regulation NMS, provided, however that if 
another trading center providing a Protected Bid, Offer or Quotation 
repeatedly fails to respond within one second to incoming orders 
attempting to access its Protected Bid, Offer or Quotation, XLE may 
cease to consider those Protected Bids, Offers or Quotations as such 
by: (a) Notifying the non-responding trading center immediately after 
(or at the same time as) electing self-help; and (b) assessing whether 
the cause of the problem lies with its own system and, if so, taking 
immediate steps to resolve the problem; (2) mean, before Rule 611 of 
Regulation NMS is operative on the Exchange, for Nasdaq Global Market 
and Nasdaq Capital Market Securities, the best bid, offer or quotation, 
respectively, of any national securities exchange or national 
securities association; and (3) mean, before Rule 611 of Regulation NMS 
is operative on the Exchange, for securities other than Nasdaq Global 
Market and Nasdaq Capital Market Securities, the bids, offers or 
quotations as required by the ITS Plan (as long as such Plan is in 
effect) and related Exchange rules or as otherwise provided in any 
relief granted therefrom by the Commission.\38\
---------------------------------------------------------------------------

    \28\ See proposed Phlx Rule 1(w).
    \29\ See proposed Phlx Rule 1(gg).
    \30\ See proposed Phlx Rule 1(q).
    \31\ See proposed Phlx Rule 1(bb) (Proprietary Order is defined 
as an order for the account of the XLE Participant who entered the 
order into XLE).
    \32\ See proposed Phlx Rule 1(aa) (Professional Order is defined 
as an order for the account of a broker or dealer, which order is 
represented, as agent, by a XLE Participant).
    \33\ See proposed Phlx Rule 1(ee) (Public Agency Order is 
defined as an order for the account of a person other than a broker 
or dealer, which order is represented, as agent, by a XLE 
Participant).
    \34\ See proposed Phlx Rule 1(cc).
    \35\ See proposed Phlx Rule 1(dd).
    \36\ 17 CFR 242.611.
    \37\ 17 CFR 242.600(b)(57)-(58).
    \38\ See proposed Phlx Rule 1(cc).
---------------------------------------------------------------------------

    Other terms used in the proposed Phlx Rules and defined in proposed 
Phlx Rule 1 are ``Good Standing,'' \39\ ``Quote Management 
Instruction'' or ``QMI,'' \40\ ``SCCP,'' \41\ and ``NSCC.'' \42\ 
Existing terms in current Phlx Rules 2-22 have been renumbered within 
proposed Phlx Rule 1.
---------------------------------------------------------------------------

    \39\ See proposed Phlx Rule 1(h).
    \40\ See proposed Phlx Rule 1(ff).
    \41\ See proposed Phlx Rule 1(hh).
    \42\ See proposed Phlx Rule 1(u).
---------------------------------------------------------------------------

ii. Trading Hours
    XLE would operate three trading sessions: (1) A Pre Market Session; 
(2) a Core Session; and (3) a Post Market Session.\43\ The Pre Market 
Session would begin at 8 a.m. and continue until the commencement of 
the Core Session. The Core Session would take place during a security's 
``regular trading hours'' as that term is defined in Rule 600(b)(64) of 
Regulation NMS, which is typically from 9:30 a.m. until 4 p.m. The Post 
Market Trading Session would begin following the conclusion of the Core 
Session, and it would end at 6 p.m.
---------------------------------------------------------------------------

    \43\ See proposed Phlx Rule 101.
---------------------------------------------------------------------------

iii. Access to XLE
    All XLE Participants would be able to access XLE through an 
Exchange electronic interface by means of their own communication lines 
or through lines established by service providers in the business of 
maintaining connectivity in the securities marketplace. In addition, 
XLE Participants may access XLE for the entry of two-sided orders 
through technology provided by the Exchange. Finally, to the extent 
that the Exchange participates in the ITS Plan or any other linkage 
plan for NMS Stocks, ITS commitments and other intermarket orders could 
be sent to XLE through these linkages.
iv. Eligible Orders--Basic Requirements
    XLE will accept orders with either an immediate-or-cancel (``IOC'') 
designation \44\ or with a time designation set to cancel at the end of 
one of XLE's trading sessions.\45\ The time designations include 
immediate-or-cancel or good until end of the end of one of XLE's three 
trading sessions (Pre Market, Core, or Post Market). In all cases, any 
open orders on XLE at the end of the Post Market Session will be 
cancelled. XLE would not accommodate good-til-cancelled orders. XLE 
will accept orders, other than two-sided orders, for regular way 
settlement only.\46\ Two-sided orders may be accepted with non-regular 
way settlement.\47\
---------------------------------------------------------------------------

    \44\ See proposed Phlx Rule 185(a), (b)(2), and (c).
    \45\ See proposed Phlx Rule 185(b)(1) and (3).
    \46\ See proposed Phlx Rule 162(a).
    \47\ See proposed Phlx Rule 162(b). Under proposed Phlx Rule 
162(b), a XLE Participant could mark a two-sided order not for 
regular way settlement with one of the following conditions: (1) 
Cash; (2) next day; or (3) seller's option.

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

[[Page 50485]]

    XLE Participants would be required to mark all sell orders (and the 
sell side of a two-sided order) with the proper designation of 
``short'' or ``short-exempt'' pursuant to Rule 200(g) of Regulation 
SHO.\48\ This will allow XLE to treat such short sale orders properly 
under Rule 10a-1 of the Act.\49\ Specifically, XLE shall not effect a 
sell order or sale of any security, except Nasdaq Global Market and 
Nasdaq Capital Market securities, unless such sell order or sale is 
effected in compliance with Rule 10a-1. XLE shall effect on the 
Exchange sell orders and sales of all Nasdaq securities without regard 
to any short sale price test.\50\
---------------------------------------------------------------------------

    \48\ 17 CFR 242.200(g).
    \49\ 17 CFR 240.10a-1.
    \50\ See proposed Phlx Rule 455.
---------------------------------------------------------------------------

    Further, all orders entered on XLE would be required to conform to 
the minimum increments for order entry.\51\ Finally, in order to help 
prevent erroneous transactions and protect investors and the national 
market system, all orders would be required to meet the price 
limitations imposed by the Exchange.\52\ Specifically, under proposed 
Phlx Rule 185(d), if an order is entered that, at the time of entry, 
would cross the best Protected Bid or Offer by 20% or more, the order 
would be rejected by XLE, provided, however, for orders priced under 
$1.00, such orders would be rejected by XLE if they cross the best 
Protected Bid or Offer by $0.20 or more.
---------------------------------------------------------------------------

    \51\ See proposed Phlx Rule 125(a)-(b). In accordance with Rule 
612 of Regulation NMS, 17 CFR 242.612, XLE will accept, rank and 
display orders priced $1.00 or higher in increments no smaller than 
$0.01 and orders below $1.00 in increments no smaller than $0.0001. 
In addition, if a security received an exemption from Rule 612, XLE 
will accept, rank and display orders consistent with the fullest 
extent of the exemption granted to the security. Finally, the 
Exchange will seek an exemption from Rule 612 to accept two-sided 
orders marked Benchmark in increments no smaller than $0.0001.
    \52\ See proposed Phlx Rule 185(d).
---------------------------------------------------------------------------

v. Order Types, Attributes, and Execution
    XLE will accept several order types from XLE Participants. Each 
order, except two-sided orders, that executes on XLE will execute 
against existing orders on XLE at the existing order's displayable 
price, in order of the existing order's ranking, unless it is routed 
away for execution.\53\ An existing order's displayable price will be 
determined by XLE based on its limit price or pegging instructions, its 
routability and QMI (described below), and its short sale status.\54\ 
Existing orders on XLE will be ranked according to price-time 
priority.\55\
---------------------------------------------------------------------------

    \53\ Executions occurring as a result of orders matched on XLE 
shall be reported by the Exchange to an appropriate consolidated 
transaction reporting system. The Exchange shall promptly notify XLE 
Participants of all executions as soon as such executions have taken 
place. See proposed Phlx Rule 188.
    \54\ See proposed Phlx Rule 185(b)(1)(C)-(E), (b)(3), and (e)-
(f).
    \55\ See proposed Phlx Rule 184.
---------------------------------------------------------------------------

    Market Orders. XLE will accept Market Orders.\56\ A Market Order is 
an order to buy or sell a stated amount of a security that is to be 
executed immediately and automatically against existing orders on XLE 
up to and including the price of the best away Protected Quotation. Any 
unexecuted shares of a Market Order will be cancelled. If the Protected 
Bid is priced higher than the Protected Offer, the Market Order shall 
be cancelled.
---------------------------------------------------------------------------

    \56\ See proposed Phlx Rule 185(a).
---------------------------------------------------------------------------

    Limited Priced Orders. XLE will accept a number of limited priced 
orders. XLE will accept a Limit Order.\57\ Limit Orders are one-sided 
orders to buy or sell a stated amount of a security at a specified 
price or better. XLE will also accept a Reserve Order.\58\ Reserve 
Orders are one-sided orders to buy or sell a stated amount of a 
security at a specified price or better with at least a round lot 
portion of the size that is displayable and with at least a round lot 
portion of the size that is not displayable by XLE, provided that the 
portion of the Reserve Order that is not displayable shall have the 
same price as the portion that is displayable. Limit Orders and Reserve 
Orders will be routable unless otherwise marked by a XLE 
Participant.\59\
---------------------------------------------------------------------------

    \57\ See proposed Phlx Rule 185(b)(1)(A).
    \58\ See proposed Phlx Rule 185(b)(1)(B).
    \59\ See proposed Phlx Rule 185(b)(1)(A), (B), and (C).
---------------------------------------------------------------------------

    Other limited priced orders include an IOC Order, a Single Sweep 
Order (``SSO''), and an Intermarket Sweep Order (``ISO''). IOC Orders 
will be executed immediately and automatically against existing orders 
on XLE up to and including the price of the best away Protected 
Quotation, unless the Protected Bid is priced higher than the Protected 
Offer, in which case XLE will ignore away Protected Quotations.\60\ The 
shares of an IOC Order not executed on XLE shall be immediately and 
automatically cancelled without routing the order elsewhere. Any XLE 
Participant may use an IOC Order to immediately and automatically 
execute against the full size of the displayed quotation on XLE 
(including any undisplayed or reserve size available at the price of 
the displayed quotation). As with all executions on XLE, XLE will 
immediately and automatically transmit a response to the XLE 
Participant who sent the IOC Order indicating the action taken with 
respect to the IOC Order. Additionally, XLE will immediately and 
automatically update its bid/offer as a result of the execution.
---------------------------------------------------------------------------

    \60\ See proposed Phlx Rule 185(b)(2)(A).
---------------------------------------------------------------------------

    SSOs are executed immediately and automatically against existing 
orders on XLE and/or away Protected Quotations, up to and including the 
order's limit price.\61\ Any shares of the SSO not immediately executed 
on XLE or on an away market shall be cancelled. ISOs are executed 
immediately and automatically against existing orders on XLE at their 
displayable price, in order of their ranking, and the shares of the ISO 
not so executed shall be cancelled.\62\ An ISO will be executed on XLE 
without regard to any away Protected Quotations.
---------------------------------------------------------------------------

    \61\ See proposed Phlx Rule 185(b)(2)(B).
    \62\ See proposed Phlx Rule 185(b)(2)(C). Phlx intends that the 
ISO Order be equivalent to the intermarket sweep order defined in 
Rule 600(b)(30) of Regulation NMS, 17 CFR 242.600(b)(30). XLE 
Participants entering an ISO must ensure that the ISO meets the 
requirements of Rule 600(b)(30) of Regulation NMS. This order type 
will not be effective until Rule 611 of Regulation NMS is operative, 
which is currently scheduled for February 5, 2007.
---------------------------------------------------------------------------

    Pegged Orders. XLE will also accept Pegged Orders. Pegged Orders 
are round or mixed lot limited price orders to buy or sell, only on 
XLE, a stated amount of a security at a display price set to track (up, 
down, or at) the current best Protected Bids or Offers on either side 
of the market by an amount specified by the XLE Participant in an 
increment permitted by proposed Phlx Rule 125, provided, however that 
the display price will not impermissibly lock or cross the market.\63\ 
The tracking of the relevant Protected Bid or Offer for Pegged Orders 
will occur on a real-time basis, except that when the calculated price 
for the Pegged Order would exceed its limit price, it will no longer 
track and will remain displayed at its limit price. A Pegged Order must 
consist of at least a round lot portion that is displayable and may 
include at least a round lot portion that is not displayable by XLE, 
provided that the portion of the Pegged Order that is not displayable 
shall have the same price as the portion that is displayable.\64\
---------------------------------------------------------------------------

    \63\ See proposed Phlx Rule 185(b)(3).
    \64\ At the Exchange's request, the Commission has clarified the 
description of Pegged Orders to match the proposed rule text as 
specified in Exhibit 5. See Telephone call between Heather Seidel, 
Senior Special Counsel, Division of Market Regulation, Commission, 
and John Dayton, Director and Counsel, Phlx, on August 15, 2006 
(``August 15 Telephone Call'').

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

[[Page 50486]]

    Two-Sided Orders. XLE will accept a number of two-sided orders. 
Two-sided orders are instructions to match immediately and 
automatically on XLE the identified buy-side with the identified sell-
side.\65\ For instance, XLE will accept Mid-Point Cross Orders.\66\ 
Mid-Point Cross Orders are two-sided orders that execute, in their 
entirety, at the midpoint of the Protected National Best Bid/Offer 
(``NBBO''), unless the Protected Bid is higher than the Protected 
Offer, in which case the Mid-Point Cross Order will cancel.
---------------------------------------------------------------------------

    \65\ See proposed Phlx Rule 185(c).
    \66\ See proposed Phlx Rule 185(c)(1).
---------------------------------------------------------------------------

    XLE will also accept IOC Cross Orders.\67\ IOC Cross Orders are 
two-sided orders that execute, in their entirety, at the specified 
price, except as described below. IOC Cross Orders will be cancelled if 
the specified price would trade through the price of the best order on 
XLE disseminated pursuant to proposed Phlx Rule 184(c). IOC Cross 
Orders will also be cancelled if the specified price would trade 
through the price of the Protected NBBO, unless the Protected Bid is 
priced higher than the Protected Offer or the IOC Cross Order is marked 
as meeting the requirements of an intermarket sweep order in Rule 
600(b)(30) of Regulation NMS,\68\ as Benchmark, or as a Qualified 
Contingent Trade.\69\
---------------------------------------------------------------------------

    \67\ See proposed Phlx Rule 185(c)(2).
    \68\ IOC Cross Orders so marked are intended to meet the 
definition of an intermarket sweep order in Rule 600(b)(30) of 
Regulation NMS, 17 CFR 242.600(b)(30), because the order has a limit 
price and the XLE Participant sending the order is responsible to 
send the other orders required in Rule 600(b)(30)(ii), 17 CFR 
242.600(b)(30)(ii). Therefore, this order attribute will not be 
effective until Rule 611 of Regulation NMS is operative, which is 
currently scheduled for February 5, 2007.
    \69\ See proposed Phlx Rule 185(c)(3). Orders marked 
``Benchmark'' must meet the requirements of Rule 611(b)(7) of 
Regulation NMS, 17 CFR 242.611(b)(7). Orders marked ``Qualified 
Contingent Trade'' must meet the requirements of an exemption to 
Rule 611 of Regulation NMS, 17 CFR 242.611. The Exchange intends to 
request the appropriate exemptive relief to accommodate these 
Qualified Contingent Trade orders prior to the operative date of 
Regulation NMS.
---------------------------------------------------------------------------

    In addition, XLE will cancel Mid-Point Cross Orders (when the 
Protected NBBO is locked) and IOC Cross Orders if the order would 
trade: (1) If entered by an Approved Dealer, at the price of a Public 
Agency Order \70\ on XLE disseminated pursuant to proposed Phlx Rule 
184(c); or (2) if entered by other than an Approved Dealer, at the 
price of a Public Agency Order,\71\ a Proprietary Order,\72\ or a 
Professional Order \73\ on XLE disseminated pursuant to proposed Phlx 
Rule 184(c).\74\ Approved Dealers are providing liquidity in the 
security, either on XLE, on another exchange, or in the over-the-
counter market, through their specialist or market making activities. 
Therefore, the Exchange believes that it is appropriate to give two-
sided orders entered by Approved Dealers priority over orders for the 
account of broker-dealers and over proprietary orders, but not Public 
Agency Orders, of XLE Participants.\75\
---------------------------------------------------------------------------

    \70\ The term ``Public Agency Order'' shall mean an order for 
the account of a person other than a broker or dealer, which order 
is represented, as agent, by a XLE Participant. See proposed Phlx 
Rule 1(ee).
    \71\ See id.
    \72\ The term ``Proprietary Order'' shall mean an order for the 
account of the XLE Participant who entered the order into XLE. See 
proposed Phlx Rule 1(bb).
    \73\ The term ``Professional Order'' shall mean an order for the 
account of a broker or dealer, which order is represented, as agent, 
by a XLE Participant. See proposed Phlx Rule 1(aa).
    \74\ The term ``Approved Dealer'' means a Market Maker on XLE in 
that security or a specialist or market maker registered as such 
with another exchange or NASD in that security. See proposed Phlx 
Rule 1(a).
    \75\ The Exchange believes that this is similar to the 
provisions of current National Securities Exchange (``NSX'') Rule 
11.9(l)-(m), (u).
---------------------------------------------------------------------------

    Mid-Point Cross Orders and IOC Cross Orders may trade at the price 
of any order on XLE disseminated pursuant to proposed Phlx Rule 184(c) 
if neither side of the cross order is marked as Proprietary, the cross 
order is for at least 5,000 shares, has an aggregate value of at least 
$100,000, and its size is larger than the aggregate size on XLE 
disseminated pursuant to proposed Phlx Rule 184(c) at that price.\76\ 
Pursuant to proposed Rule 185(c)(iv), a non-regular way cross is a two-
sided order that, if marked for non-regular way settlement, may execute 
at any price, without regard to the Protected NBBO or any other orders 
on XLE, provided that Mid-Point Cross Orders marked non-regular way 
will be cancelled when the Protected Bid is higher than the Protected 
Offer.
---------------------------------------------------------------------------

    \76\ See proposed Phlx Rule 185(c)(1)-(2).
---------------------------------------------------------------------------

    Finally, orders marked Benchmark cannot take priority over existing 
orders on XLE for less than the minimum quoting increment for that NMS 
stock indicated in Phlx Rule 125.\77\
---------------------------------------------------------------------------

    \77\ See August 15 Telephone Call, supra note 64.
---------------------------------------------------------------------------

vi. Order Routing
    The Exchange will offer an optional routing service for XLE 
Participants. Any member organization that is a XLE Participant, or a 
Sponsored Participant's Sponsoring Member Organization, may enter into 
a Routing Agreement with the Exchange and the Exchange's broker-dealer 
routing facility to gain access to the routing features of XLE.\78\ The 
Exchange intends to utilize PRO Securities LLC (``PRO'') \79\ to 
perform routing and processing functions necessary to clear routed 
orders, as described in proposed Phlx Rule 185, as a facility (as 
defined in Section 3(a)(2) of the Act) of the Exchange. Certain order 
types, including Limit Orders, Reserve Orders, and SSOs are eligible to 
be routed.\80\
---------------------------------------------------------------------------

    \78\ See proposed Phlx Rule 181.
    \79\ See infra note 183 (discussing PRO Securities).
    \80\ Regardless of whether a XLE Participant chooses to access 
the routing features of XLE, all XLE Participants will be able to 
use IOC Orders to execute against the full size of the displayed 
quotation on XLE (including any undisplayed or reserve size 
available at the price of the displayed quotation).
---------------------------------------------------------------------------

    Limit Orders and Reserve Orders \81\ will be executed and routed 
based on a XLE Participant's QMI. \82\ XLE Participants may choose one 
of two QMI: (1) Ship and Quote; or (2) Post Order and Participate 
(``POP''). With Ship and Quote,\83\ when the order arrives, XLE will 
execute it immediately and automatically against existing orders on XLE 
at their displayable price, up to their full size, and route orders to 
any away Protected Quotations up to and including the order's limit 
price and up to and including the full displayable size of the 
Protected Quotation. If the order arrives during a time when a 
Protected Bid is priced higher than a Protected Offer, then XLE will 
not route orders to any away Protected Quotations. In either case, the 
remaining shares of the incoming order will be displayable on XLE at 
the order's limit price.
---------------------------------------------------------------------------

    \81\ XLE Participants may mark Limit Orders and Reserve Order 
with `Do Not Route' instructions. In that case, XLE will not route 
those orders, but instead will only execute and display them on XLE. 
See proposed Phlx Rule 185(b)(1)(D).
    \82\ See proposed Phlx Rule 185(b)(1)(C).
    \83\ See proposed Phlx Rule 185(b)(1)(C)(i).
---------------------------------------------------------------------------

    With POP,\84\ when the order arrives, XLE will execute it 
immediately and automatically against existing orders on XLE at their 
displayable price up to and including the price of the best away 
Protected Quotation and route orders to away Protected Quotations 
priced at the best away Protected Quotation. After XLE receives 
responses to such orders that were routed away, XLE will repeat this 
process by continuing to route orders to away Protected Quotations 
priced at the best away Protected Quotation until the incoming order is 
executed in its entirety or its limit price is reached. During this 
time, any unexecuted and unrouted shares of an incoming buy (sell) 
order will be

[[Page 50487]]

displayable as the bid (offer) on XLE at $.01 away from the best 
Protected Offer (Bid), unless: (1) The Protected Bid is priced higher 
than the Protected Offer, then the incoming buy (sell) order will be 
displayable on XLE at the same price as best Protected Offer (Bid); or 
(2) the Protected Bid is priced equal to the Protected Offer and XLE is 
displaying an order at the price of the Protected NBBO on the same side 
of the market as the incoming order, then the incoming order will be 
displayable at the Protected NBBO. The POP instruction differs from the 
Ship and Quote instruction, in that with the POP instruction, XLE will 
continue to send orders to available liquidity so long as liquidity is 
available up to and including the order's limit price. With the Ship 
and Quote instruction, XLE will only send orders once, to the liquidity 
that is available at the time of order entry.
---------------------------------------------------------------------------

    \84\ See proposed Phlx Rule 185(b)(1)(C)(ii). The Exchange does 
not anticipate that this feature will be available when XLE is 
initially launched, but expects that it will be available soon 
afterwards. The Exchange will notify XLE Participants of its 
availability after the initial launch of XLE.
---------------------------------------------------------------------------

    The following order types are, by definition, never routed: IOC 
Orders, ISO, Pegged Orders, IOC Cross Orders, and Mid-Point Cross 
Orders. Limit Orders and Reserve Orders with ``Do Not Route'' 
instructions attached are also never routed. Pursuant to Rule 
185(b)(1)(D), such Limit and Reserve Orders marked ``Do Not Route'' are 
executed immediately and automatically against existing orders on XLE 
at their displayable price, in order of their ranking, up to and 
including the price of the best away Protected Quotation, and the 
shares of the such Limit or Reserve Order not so executed shall be 
displayable as a bid (offer) on XLE, in the case of a buy (sell) order, 
at $.01 away from the best Protected Offer (Bid) regardless of the XLE 
Participant's QMI, unless: (1) The Protected Bid is priced equal to the 
Protected Offer and XLE is displaying an order at the price of the 
Protected NBBO on the same side of the market as the incoming order, 
then the incoming order will be displayable at the Protected NBBO; or 
(2) the Protected Bid is priced higher than the Protected Offer, then a 
buy (sell) order will be executed immediately and automatically against 
existing orders on XLE at their displayable price, in order of their 
ranking, without regard to away Protected Quotations, and the shares of 
such Limit or Reserve Order not so executed shall be displayable on XLE 
at the limit price.
    XLE will not route orders to away quotations that are not Protected 
Quotations. Additionally, XLE may trade through the price of away 
quotations that are not Protected Quotations. XLE Participants should 
note that the definition of Protected Quotations is dependent on 
whether Rule 611 of Regulation NMS \85\ is operative on the 
Exchange.\86\ Before Rule 611 of Regulation NMS is operative on the 
Exchange, a Protected Quotation will be, for securities other than 
those listed on Nasdaq, the best bid or offer of any ITS participating 
market center, subject to any exemption the Exchange may receive from 
the Commission. For Nasdaq securities before Rule 611 of Regulation NMS 
is operative on the Exchange, a Protected Quotation will be the best 
bid, offer or quotation, respectively, of any national securities 
exchange or national securities association. After Rule 611 of 
Regulation NMS is operative on the Exchange, a Protected Quotation will 
have the same meaning as Rule 600(b)(57) and (58), as appropriate, of 
Regulation NMS.\87\ In either case, Protected Quotations may not 
include every available source of liquidity in the marketplace for a 
security. Therefore, when deciding to route agency orders to XLE, XLE 
Participants should be mindful of their duty of best execution.
---------------------------------------------------------------------------

    \85\ 17 CFR 242.611.
    \86\ Currently, the Commission has set the operative date for 
Rule 611 of Regulation NMS, 17 CFR 242.611, on among other venues, 
the Exchange as February 5, 2007. See Securities Exchange Act 
Release No. 53829 (May 18, 2006), 71 FR 30038 (May 24, 2006) (File 
No. S7-10-04).
    \87\ 17 CFR 242.600(b)(57)-(58).
---------------------------------------------------------------------------

vii. Order Display and Ranking
    Orders (or the portion of orders) that are not immediately 
executed, routed away, or cancelled become orders on XLE available to 
be displayed and executed against new orders sent to XLE.\88\ XLE will 
use two methods to display orders that are available for execution. 
First, pursuant to Rule 602 of Regulation NMS,\89\ XLE will collect and 
make available to the appropriate market data reporting plans for 
dissemination the best-ranked displayed order(s) to buy and the best 
ranked displayed orders(s) to sell on XLE and the aggregate displayed 
size of such orders associated with such prices.\90\ Second, XLE will 
display all orders, except the undisplayed portion of Reserve Orders, 
to all users of a depth of book feed on an anonymous basis.\91\ The 
Exchange will make this depth of book feed available to any person, 
subject to any fee associated with this service.
---------------------------------------------------------------------------

    \88\ Pegged Orders will be displayed as described, supra, in the 
text accompanying notes 63-64. Other than Limit, Reserve, and Pegged 
Orders, orders on XLE are immediate-or-cancel.
    \89\ 17 CFR 242.602.
    \90\ See proposed Phlx Rule 184(c).
    \91\ See proposed Phlx Rule 184(b).
---------------------------------------------------------------------------

    XLE will rank orders on XLE in strict price-time priority.\92\ 
Orders are ranked beginning with the highest priced orders to buy and 
the lowest priced orders to sell. For purposes of ranking, XLE uses the 
price at which the order is displayed.\93\ Within each price, orders 
are ranked in time priority based on the time that: (1) An order is 
received; (2) the price is updated; or (3) the display portion of a 
Reserve Order is reduced below a round lot and the display size is 
refreshed with shares from the undisplayed portion of the Reserve 
Order, except that the undisplayed portion of Reserve Orders shall be 
ranked after all other orders and display portions of Reserve Orders at 
the same price. With regard to Reserve Orders, XLE will decrement the 
share size of the display portion of a Reserve Order upon an execution 
against such portion of such order. When the display portion of a 
Reserve Order is reduced below a round lot, the display portion of that 
Reserve Order will be refreshed and re-ranked in time priority based on 
the time of refresh, however, the undisplayed portion of that Reserve 
Order will retain the ranking in relation to the undisplayed portion of 
other Reserve Orders based on the original Reserve Order entry time. 
Orders for which the price is changed are ranked based on the time of 
the change.\94\
---------------------------------------------------------------------------

    \92\ See proposed Phlx Rule 184(a).
    \93\ For purposes of ranking, orders are considered displayed 
based on the price that they would be displayed on the Exchange's 
depth of book feed. See proposed Phlx Rule 184(b). This price is the 
same price that would be disseminated to the appropriate market data 
reporting plans pursuant to proposed Phlx Rule 184(c) if the order 
was the best round lot bid or offer.
    \94\ See Partial Amendment No. 2.
---------------------------------------------------------------------------

viii. Anonymity
    Except as provided below, as proposed, transactions executed on XLE 
will be processed anonymously. This means that XLE transaction reports 
will indicate the details of the transaction, but will not reveal 
contra-party identities.\95\ XLE will maintain this anonymity after the 
execution by instructing the registered clearing agencies of the 
anonymous nature of the transaction.\96\ Additionally, no one having 
the right to trade on XLE and who has been a party to or has knowledge 
of an execution shall be under obligation to divulge, except to the 
Exchange, the name of the person

[[Page 50488]]

buying or selling in any transaction.\97\ The Exchange believes that 
post-trade anonymity should benefit investors because preserving 
anonymity until and after the settlement of a trade should limit the 
potential market impact that disclosing the XLE Participant's identity 
may have. Specifically, when a contra-party's identity is revealed, XLE 
Participants may be able to detect trading patterns and make 
assumptions about the potential direction of the market based on the 
XLE Participant's presumed client base. For example, if the XLE 
Participant handles large institutional orders and becomes an active 
buyer in a security, others could anticipate such demand and adjust 
their trading strategy accordingly. The Exchange believes that this 
could result in increased costs. The Exchange believes that post-trade 
anonymity should not compromise a XLE Participant's ability to settle 
an erroneous trade, because under proposed Phlx Rule 163, the clearly 
erroneous execution resolution process is coordinated by the Exchange, 
without the need for contra-parties to know each other's identities. By 
masking the XLE Participant's identity, the Exchange believes that it 
may help XLE Participants meet their best execution obligations by 
mitigating market impact.\98\
---------------------------------------------------------------------------

    \95\ See proposed Phlx Rule 189(b).
    \96\ See Securities Exchange Act Release Nos. 52651 (October 21, 
2005), 70 FR 65956 (November 1, 2005) (SR-SCCP-2004-03); and 48526 
(September 23, 2003), 68 FR 56367 (September 30, 2003) (SR-NSCC-
2003-14).
    \97\ See proposed Phlx Rules 161 and 189(c).
    \98\ See, e.g., Securities Exchange Act Release No. 49053 
(January 12, 2004), 69 FR 2642 (January 16, 2004) (SR-PCX-2003-63).
---------------------------------------------------------------------------

    The Exchange will reveal the identity of the member organization or 
the member organization's clearing firm in the following circumstances: 
(1) For regulatory purposes or to comply with an order of a court or 
arbitrator; (2) when the National Securities Clearing Corporation 
(``NSCC'') or Stock Clearing Corporation of Philadelphia (``SCCP'') 
ceases to act for a member organization or the member organization's 
clearing firm and NSCC or SCCP determines not to guarantee the 
settlement of the member organization's trades; or (3) on risk 
management reports provided to the contra-party of the member 
organization or the member organization's clearing firm which disclose 
trading activity on an aggregate dollar value basis.\99\ Also, the 
Exchange will reveal to a member organization, no later than the end of 
the day on the date an anonymous trade was executed, when that member 
organization submits an order that has executed against an order 
submitted by that same member organization.\100\
---------------------------------------------------------------------------

    \99\ See proposed Phlx Rule 189(c).
    \100\ See proposed Phlx Rule 189(d).
---------------------------------------------------------------------------

    In order to satisfy the member organization's record keeping 
obligations under Rules 17a-3(a)(1)\101\ and 17a-4(a) under the 
Act,\102\ Phlx shall, with the exception of those circumstances 
described below, retain for the period specified in Rule 17a-4(a) the 
identity of each member organization that executes an anonymous 
transaction described in paragraph (b) of proposed Phlx Rule 189. In 
addition, member organizations shall retain the obligation to comply 
with Rules 17a-3(a)(1) and 17a-4(a) under the Act whenever they possess 
the identity of their contra-party. In either case, the information 
shall be retained in its original form or a form approved under Rule 
17a-6 under the Act.\103\ In connection with this proposed rule change, 
the Exchange intends to request, for XLE Participants, an exemption 
from Rule 10b-10 under the Act,\104\ regarding the required disclosure 
of the contra-party on a customer's confirmation, and a no-action 
position on Rules 17a-3 and 17a-4 under the Act, regarding a XLE 
Participant's reliance on the Exchange for recordkeeping 
responsibilities for anonymous executions.\105\
---------------------------------------------------------------------------

    \101\ 17 CFR 240.17a-3(a)(1).
    \102\ 17 CFR 240.17a-4(a).
    \103\ 17 CFR 240.17a-6.
    \104\ 17 CFR 240.10b-10.
    \105\ See Letter from Brian A. Bussey, Assistant Chief Counsel, 
Division of Market Regulation, Commission, to Mai S. Shiver, Senior 
Counsel, Pacific Exchange, Inc., dated April 30, 2004.
---------------------------------------------------------------------------

ix. Odd Lots and Mixed Lots
    XLE will rank odd lot orders \106\ and mixed lot orders \107\ in 
the same manner (in price-time priority) as round lot orders \108\ (or 
multiple round lot orders).\109\ This means that all incoming orders, 
except ITS commitments \110\ and two-sided orders, will be executed 
against existing orders on XLE on an order-by-order basis regardless of 
the size of the existing orders. For example, suppose XLE receives 
three orders to buy in the following sequence: Order A for 50 shares 
priced at $10.00, Order B for 300 shares priced for $10.00, and Order C 
for 125 shares priced for $10.00. Then, XLE receives an order to sell, 
Order D, for 100 shares priced at $10.00. XLE will execute 50 shares of 
Order D against Order A at $10.00 and 50 shares of Order D against 50 
shares of Order B at $10.00. This leaves 250 shares of Order B. Next, 
XLE receives another order to sell, Order E, for 280 shares priced at 
$10.00. XLE will execute 250 shares of Order E against the remainder of 
Order B at $10.00 and 30 shares of Order E against 30 shares of Order C 
at $10.00. This leaves 95 shares of Order C. Finally, XLE receives an 
order to sell, Order F, for 100 shares at $10.00. XLE will execute 95 
shares of Order F against the remainder of Order C at $10.00. This 
leaves 5 shares of Order F available to execute against future orders 
to sell.
---------------------------------------------------------------------------

    \106\ See proposed Phlx Rules 1(w) and 187(a) (an odd lot order 
shall refer to an order that is sent to XLE for less than 100 shares 
or a larger order that has less than 100 shares remaining 
unexecuted). All odd lot orders that a XLE Participant submits to 
XLE as an odd lot order must be a Limit Order, an IOC Order, or a 
two-sided order.
    \107\ See proposed Phlx Rule 1(q) (a mixed lot order shall refer 
to an order that is more than 100 shares, but shall not include 
orders in multiples of 100 shares).
    \108\ See proposed Phlx Rule 1(gg) (a round lot order shall 
refer to an order that is for 100 shares). Multiple round lot orders 
are orders for multiples of 100 shares, for example 400 shares.
    \109\ See proposed Phlx Rule 187(c).
    \110\ ITS is not configured to accept executions in share 
amounts other than round lots and multiples of round lots. 
Therefore, XLE will not execute existing odd lot or odd lot portions 
of mixed lot orders against an incoming ITS commitment. XLE will 
treat any commitment or order from any other intermarket linkage 
with similar restrictions in the same manner.
---------------------------------------------------------------------------

    The market data reporting plans that disseminate quotations 
pursuant to Rule 602 of Regulation NMS \111\ only collect and report 
quotations in round lots and multiples of round lots.\112\ For purposes 
of the CQ and Nasdaq UTP Plans, the Exchange will not disseminate any 
odd lot orders or any size connected to the odd lot portion of mixed 
lot orders.\113\ For example, if XLE has two orders to buy at $10.00, 
the best price to buy on XLE, one consisting of 50 shares and another 
consisting of 250 shares, the Exchange shall disseminate to the CQ or 
Nasdaq UTP Plan, as appropriate, a quotation of $10.00 for 200 shares. 
XLE would ignore the 50 share odd lot order and takes into account 200 
shares (the round lot multiple portion) of the 250 share order, 
ignoring the remaining 50 share portion (the odd lot portion of the 
mixed lot). XLE would not aggregate the odd lot portions. However, the 
Exchange's depth of book feed would display both orders at their actual 
size, 50 shares and 250 shares. Because the Exchange will not 
disseminate odd lot orders to the CQ and Nasdaq UTP Plans, the Exchange 
proposes the following restrictions regarding odd lot orders so that 
orders that would otherwise be displayable are not entered in a form 
that is undisplayable.\114\ Pursuant to proposed Phlx Rule 187(d), XLE

[[Page 50489]]

Participants shall not unbundle round lots for the purpose of entering 
odd lot limit orders in comparable amounts. XLE Participants shall 
aggregate odd lot orders into round lots when such orders are for the 
same account or for various accounts in which there is a common 
monetary interest. XLE Participants shall not enter both buy and sell 
odd lot limit orders in the same stock before one of the orders is 
executed for the purpose of capturing the spread in the stock when such 
orders are for the same account or for various accounts in which there 
is a common monetary interest.
---------------------------------------------------------------------------

    \111\ 17 CFR 242.602.
    \112\ The two market data reporting plans for quotations in NMS 
Stocks are the Consolidated Quotation Plan (``CQ Plan'') and the 
Nasdaq UTP Plan.
    \113\ XLE will, however, display the actual size of odd lot and 
mixed lot orders over its depth of book feed. See proposed Phlx Rule 
184(b).
    \114\ See proposed Phlx Rule 187(d).
---------------------------------------------------------------------------

x. Prevention of Trade-Throughs
    XLE is designed to automatically prevent trade-throughs of 
Protected Quotations, both before and after Rule 611 of Regulation NMS 
is operative. XLE would accomplish this in two principal ways: (1) 
Through the use of outbound routing \115\ for those orders that will be 
available to route; and (2) by only displaying orders \116\ at prices 
that would not impermissibly lock or cross a market. Additionally, XLE 
will take advantage of various exceptions to Rule 611, once operative. 
Phlx will allow XLE to trade-through a Protected Quotation displayed by 
a trading center that was experiencing a failure, material delay, or 
malfunction of its systems or equipment.\117\ Specifically, if another 
trading center providing a Protected Bid, Offer or Quotation repeatedly 
fails to respond within one second to incoming orders attempting to 
access its Protected Bid, Offer or Quotation, XLE may cease to consider 
those Protected Bids, Offers or Quotations as such by: (1) Notifying 
the non-responding trading center immediately after (or at the same 
time as) electing self-help; and (2) assessing whether the cause of the 
problem lies with its own system and, if so, taking immediate steps to 
resolve the problem. Further, XLE will allow two-sided orders for non-
regular way settlement \118\ to trade-through Protected 
Quotations.\119\ XLE will allow Limit, Reserve, IOC, and IOC Cross 
Orders to execute at prices that trade-through Protected Quotations 
when the Protected Bid is higher than Protected Offer.\120\ Incoming 
ISO orders, which may, by definition, trade-through Protected 
Quotations, are designed to take advantage of the Rule 611 exception 
for intermarket sweep orders.\121\ XLE also will allow orders \122\ to 
trade-through Protected Quotations when XLE has simultaneously routed 
an intermarket sweep order to execute against the full displayed size 
of that Protected Quotation.\123\ Rule 611(b)(7) of Regulation NMS 
allows orders to execute if their price was not based, directly or 
indirectly, on the quoted price of the NMS stock at the time of 
execution and for which the material terms were not reasonably 
determinable at the time the commitment to execute the order was 
made.\124\ XLE will allow IOC Cross Orders that have been marked 
``Benchmark''\125\ to trade-through Protected Quotations based on Rule 
611(b)(7). In addition, if the Commission grants the appropriate 
exemption from Rule 611 of Regulation NMS, XLE will allow certain IOC 
cross orders marked as ``Qualified Contingent Trades'' to trade through 
protected quotations.\126\ XLE will identify trades executed pursuant 
to an exception or exemption to Rule 611 of Regulation NMS in 
accordance with specifications approved by the operating committee of 
the relevant national market system plan for an NMS Stock.\127\
---------------------------------------------------------------------------

    \115\ See supra Section II.A.1.c.vi (Order Routing).
    \116\ See supra Section II.A.1.c.vii (Order Display and 
Ranking).
    \117\ See 17 CFR 242.611(b)(1).
    \118\ See proposed Phlx Rule 185(c)(4).
    \119\ See 17 CFR 242.611(b)(2).
    \120\ See 17 CFR 242.611(b)(4).
    \121\ See 17 CFR 242.611(b)(5).
    \122\ Limit Orders, Reserve Orders, and SSOs. See proposed Phlx 
Rule 185(b)(1)(C)(i) and (b)(2)(B).
    \123\ See 17 CFR 242.600(b)(30) and 17 CFR 242.611(b)(6).
    \124\ See 17 CFR 242.611(b)(7).
    \125\ See proposed Phlx Rule 185(c)(3).
    \126\ See id. See also August 15 Telephone Call, supra note 64.
    \127\ See proposed Phlx Rule 188 and Partial Amendment No. 2.
---------------------------------------------------------------------------

xi. Locked and Crossed Markets
    XLE would not, upon initial implementation, lock or cross any away 
Protected Quotations that it reads from an effective national market 
system plan, except in the following circumstances. XLE may lock or 
cross an away Protected Quotation when XLE reads that a Protected Bid 
is higher than a Protected Offer. XLE also may lock or cross an away 
Protected Quotation if XLE has first routed an order to that quotation 
and all better priced quotations for their full displayed size. 
Finally, if XLE is reading the Protected Bid equal to the Protected 
Offer and XLE is disseminating an order pursuant to proposed Phlx Rule 
184(c) equal to either the best Protected Bid or best Protected Offer, 
XLE may continue to display new orders at the same price of the order 
it is disseminating.
    In addition, the Exchange proposes a rule that would require 
members of the Exchange to reasonably avoid displaying, and prohibit 
them from engaging in, a pattern or practice of displaying any 
quotations that lock or cross a Protected Quotation, and any manual 
quotations that lock or cross a quotation previously disseminated 
pursuant to an effective national market system plan, unless an 
applicable exemption applies.\128\ Phlx requests that proposed Phlx 
Rule 186 not become operative until Rule 610 of Regulation NMS \129\ is 
operative on the Exchange, which is currently scheduled for February 5, 
2007.
---------------------------------------------------------------------------

    \128\ See proposed Phlx Rule 186(b) and (d).
    \129\ 17 CFR 242.610.
---------------------------------------------------------------------------

xii. Trading Halts
    A number of current and proposed rules will govern trading halts on 
XLE. Proposed Phlx Rule 164(a) would allow the Chairman and Chief 
Executive Officer of the Exchange or his designee to suspend trading in 
any and all securities traded on XLE whenever in his or his designee's 
opinion such suspension would be in the public interest. No such action 
shall continue longer than a period of two days, or as soon thereafter 
as a quorum of Governors can be assembled, unless the Board approves 
the continuation of such suspension. This is the general authority to 
suspend trading on XLE. Additionally, current Phlx Rules 133 (Trading 
Halts Due to Extraordinary Market Volatility) and 136 (Trading Halts in 
Certain Exchange Traded Funds) would provide for trading halts in 
specific situations in securities to be traded on XLE.
    If trading in one or more securities is halted, all orders in those 
securities shall be cancelled.\130\ XLE shall not accept any orders, or 
any changes to orders (other than cancellations), in those securities 
during a trading halt. Immediately after the trading halt has ended, 
XLE shall begin accepting orders for processing.
---------------------------------------------------------------------------

    \130\ See proposed Phlx Rule 164(b).
---------------------------------------------------------------------------

xiii. Clearly Erroneous Executions
    Pursuant to proposed Phlx Rule 163, a XLE Participant that receives 
an execution on an order that was submitted erroneously to XLE for its 
own or customer account may request that Phlx review the transaction 
under proposed Phlx Rule 163(b) within the time limits prescribed 
therein. The terms of a transaction executed on XLE would be ``clearly 
erroneous'' when there is an obvious error in any term, such as price, 
number of shares or other unit of trading, or identification of the 
security. A transaction made in clearly erroneous error and cancelled 
by both parties may be removed, if the parties

[[Page 50490]]

do not object, subject to the approval of Phlx. If both parties do not 
agree that a transaction is clearly erroneous, then the Exchange, 
through an Exchange Official,\131\ will then perform a review pursuant 
to proposed Phlx Rule 163(c)(1). If the Exchange Official determines 
that the transaction is not clearly erroneous, the Exchange Official 
shall decline to take any action in connection with the completed 
trade. In the event that the Exchange Official determines that the 
transaction in dispute is clearly erroneous, the Exchange Official 
shall declare the transaction null and void or modify one or more of 
the terms of the transaction to achieve an equitable rectification of 
the error that would place the parties in the same position, or as 
close as possible to the same position that they would have been in, 
had the error not occurred.
---------------------------------------------------------------------------

    \131\ An Exchange Official is an officer of Phlx or such other 
designee of Phlx. See proposed Phlx Rule 163(b).
---------------------------------------------------------------------------

    The party affected by the review may then appeal the decision of 
the Exchange Official to the Referee within the time limits set forth 
in Phlx Rule 124(d)(i) (currently within fifteen minutes).\132\ The 
Referee shall review the decision of the Exchange Official as if it was 
a Floor Official Ruling.\133\ Therefore, the decisions of the Referee 
are final and may not be appealed to the Board of Governors, and 
members or member organizations who fail to promptly comply with the 
decision of an Exchange Official or Referee may result in referral to 
the Business Conduct Committee (``BCC'').\134\ Notwithstanding the 
Exchange's dispute process, disputes continue to be eligible for 
arbitration pursuant to Phlx Rule 950.
---------------------------------------------------------------------------

    \132\ The Referee is an Exchange employee or independent 
contractor who is appointed by the Phlx Board of Governors on the 
recommendation of the Audit Committee. See Phlx Rule 124. The 
Referee resolves disputes and makes certain rulings pursuant to Phlx 
Rule 124(d) and proposed Phlx Rule 163(c)(2).
    \133\ See proposed Phlx Rule 163(c)(2).
    \134\ See Phlx Rules 124(d)(iv) and (vi).
---------------------------------------------------------------------------

    Exchange Officials may, on their own motion, review transactions on 
XLE that arose during any disruption or malfunction in the use or 
operation of any electronic communications or trading facilities of the 
Phlx, or extraordinary market conditions or other circumstances in 
which the nullification or modification of transactions may be 
necessary for the maintenance of a fair and orderly market or the 
protection of investors and the public interest.\135\ Each XLE 
Participant involved in such a transaction shall be notified as soon as 
practicable, and the XLE Participant aggrieved by the action may appeal 
such action to the Referee.\136\
---------------------------------------------------------------------------

    \135\ See proposed Phlx Rule 163(d).
    \136\ See id.
---------------------------------------------------------------------------

    Pursuant to Rule 12f-2 under the Act,\137\ as amended, the Phlx may 
extend unlisted trading privileges to a security that is the subject of 
an initial public offering when at least one transaction in the subject 
security has been effected on the national securities exchange or 
association upon which the security is listed and the transaction has 
been reported pursuant to an effective transaction reporting plan. A 
clearly erroneous error may be deemed to have occurred in the opening 
transaction of the subject security if the execution price of the 
opening transaction on XLE is more than the lesser of $1.00 or 10% away 
from the opening price on the listing exchange or association. In such 
circumstances, the Exchange Official shall declare the opening 
transaction null and void or adjust the transaction price to the 
opening price on the listing exchange or association. Clearly erroneous 
executions of subsequent transactions of the subject security will be 
reviewed in the same manner as the procedure set forth in proposed Phlx 
Rule 163(c)(1).\138\
---------------------------------------------------------------------------

    \137\ 17 CFR 240.12f-2.
    \138\ See proposed Phlx Rule 163(e).
---------------------------------------------------------------------------

xiv. Pre Market, Core, and Post Market Sessions
    XLE will be open to accept orders for three different trading 
sessions beginning at 8 a.m. Eastern time and continuing until 6 p.m., 
except during trading halts, every trading day unless otherwise 
declared by the Exchange. XLE will not have any opening or closing 
auctions or rotations at the beginning of, during, or at the end of any 
of these sessions. Therefore, XLE will not accept any orders unless it 
is open for trading and can immediately process those orders for 
execution, routing, or display, as applicable. At the end of the 
trading day and if trading is halted intraday, XLE will cancel all 
existing orders so that when trading begins again, either the next day 
or after the halt is lifted, there are no existing orders that would 
impermissibly lock or cross the market. New orders would only be 
accepted when they could again be executed, routed, or displayed, which 
would only happen when XLE is open for trading.
    Because XLE will operate during three distinct trading sessions, a 
XLE Participant may designate during which contiguous XLE trading 
session(s) a Limit, Reserve, or Pegged Order is eligible for 
execution.\139\ For example, a XLE Participant could enter a Limit 
Order at 8:45:00 a.m. (during the Pre Market Session) for execution and 
designate it as eligible for the Pre Market and Core Sessions. That 
means that unless the order is fully executed, it will remain on XLE 
until the end of the Core Session, at which time it will be cancelled 
back to the XLE Participant.
---------------------------------------------------------------------------

    \139\ See proposed Phlx Rule 185(b)(1)(A)-(B) and (b)(3).
---------------------------------------------------------------------------

    Finally, no XLE Participant may accept an order from a non-XLE 
Participant for execution in the Pre Market or Post Market Session 
without disclosing to such non-XLE Participant that: (1) An order must 
be designated specifically for trading in the Pre Market or Post Market 
Session to be eligible for trading in the Pre Market or Post Market 
Session; and (2) trading outside of ``regular'' trading hours may 
involve material trading risks, including the possibility of lower 
liquidity, high volatility, changing prices, unlinked markets, an 
exaggerated effect from news announcements, wider spreads and any other 
relevant risk.\140\ Proposed Phlx Rule 183(b) provides a form of notice 
XLE Participants may use to disclose the material trading risks of 
trading in the Pre Market or Post Market Sessions.
---------------------------------------------------------------------------

    \140\ See proposed Phlx Rule 183(a).
---------------------------------------------------------------------------

xv. Access to XLE
    The Exchange will provide access to XLE for its members and member 
organizations and certain other persons who are sponsored by member 
organizations. Members and member organizations can register with the 
Exchange to become a XLE Participant, which includes entering into a 
XLE Participant Agreement.\141\ The Exchange will confirm that the 
member or member organization has the proper clearing relationships 
\142\ and has the ability to electronically connect to XLE. Member 
organizations may sponsor other persons to gain access to XLE. When 
doing so, these member organizations become Sponsoring Member 
Organizations. The persons that the Sponsoring Member Organizations 
sponsor become Sponsored Participants.\143\ A Sponsored Participant and 
its Sponsoring Member Organization would be required to enter into and 
maintain a XLE Participant Agreement with the Exchange. The Sponsoring 
Member Organization must designate the Sponsored Participant by

[[Page 50491]]

name in its XLE Participant Agreement.\144\ The XLE Participant 
Agreement is intended to highlight the responsibilities that a XLE 
Participant has regarding its use of XLE. In addition, it is intended 
to bind Sponsored Participants to their terms of use of XLE.
---------------------------------------------------------------------------

    \141\ See proposed Phlx Rule 180(a).
    \142\ See proposed Phlx Rule 165.
    \143\ See proposed Phlx Rule 180(b).
    \144\ See proposed Phlx Rule 180(b)(2)(A).
---------------------------------------------------------------------------

    Sponsored Participants also would be required to enter into and 
maintain customer agreements with one or more Sponsoring Member 
Organizations so that Sponsoring Member Organizations may maintain the 
requisite level of control over the Sponsored Participants' trading on 
XLE. These customer agreements should also establish proper 
relationship(s) and account(s) through which the Sponsored Participant 
may trade on XLE.\145\ Such customer agreement(s) must incorporate the 
following Sponsorship Provisions:
---------------------------------------------------------------------------

    \145\ See proposed Phlx Rule 180(b)(1).
---------------------------------------------------------------------------

    1. Sponsoring Member Organization acknowledges and agrees that all 
orders entered by the Sponsored Participants and any person acting on 
behalf of or in the name of such Sponsored Participant and any 
executions occurring as a result of such orders are binding in all 
respects on the Sponsoring Member Organization; and that the Sponsoring 
Member Organization is responsible for any and all actions taken by 
such Sponsored Participant and any person acting on behalf of or in the 
name of such Sponsored Participant.
    2. Sponsoring Member Organization shall comply with the Exchange's 
Certificate of Incorporation, Bylaws, Rules, and procedures with regard 
to XLE and Sponsored Participant shall comply with the Exchange's 
Certificate of Incorporation, Bylaws, Rules, and procedures with regard 
to XLE, as if Sponsored Participant were a member organization.
    3. Sponsored Participant shall maintain, keep current and provide 
to the Sponsoring Member Organization a list of PAUs who may obtain 
access to XLE on behalf of the Sponsored Participant.
    4. Sponsored Participant shall familiarize its PAUs with all of the 
Sponsored Participant's obligations under this Rule and will assure 
that they receive appropriate training prior to any use or access to 
XLE.
    5. Sponsored Participant may not permit anyone other than PAUs to 
use or obtain access to XLE.
    6. Sponsored Participant shall take reasonable security precautions 
to prevent unauthorized use or access to XLE, including unauthorized 
entry of information into XLE, or the information and data made 
available therein. Sponsored Participant understands and agrees that 
Sponsored Participant is responsible for any and all orders, trades and 
other messages and instructions entered, transmitted or received under 
identifiers, passwords and security codes of PAUs, and for the trading 
and other consequences thereof.
    7. Sponsored Participant acknowledges its responsibility to 
establish adequate procedures and controls that permit it to 
effectively monitor its employees'', agents'', and customers' use and 
access to XLE for compliance with the terms of this agreement.
    8. Sponsored Participant shall pay when due all amounts, if any, 
payable to Sponsoring Member Organization, the Exchange or any other 
third parties that arise from the Sponsored Participants access to and 
use of XLE. Such amounts include, but are not limited to, applicable 
exchange and regulatory fees.
xvi. Order Entry by XLE Participants
    XLE Participants may enter any type of order available on XLE 
provided, however, no XLE Participant may enter a Limit Order or 
Reserve Order without ``Do Not Route'' instructions, or an SSO, unless 
the XLE Participant or the XLE Participant's Sponsoring Member 
Organization has entered into a Routing Agreement.\146\ The Routing 
Agreement between the Exchange, the Exchange's routing broker-dealer 
and the XLE Participant or the XLE Participant's Sponsoring Member 
Organization allows the routing broker-dealer to act for the XLE 
Participant if the XLE Participant or its Sponsored Participant enters 
an order that is routable.
---------------------------------------------------------------------------

    \146\ See proposed Phlx Rule 181.
---------------------------------------------------------------------------

    In addition, all XLE Participants may enter Proprietary Orders, 
Professional Orders, and Public Agency Orders.\147\ Proprietary Orders 
are for the account of the XLE Participant who entered the order into 
XLE.\148\ Professional Orders are for the account of a broker or 
dealer, which order is represented, as agent, by a XLE 
Participant.\149\ Public Agency Orders are for the account of a person 
other than a broker or dealer, which order is represented, as agent, by 
a XLE Participant.\150\ Proprietary Orders are subject to the same 
display and ranking processes as agency orders (Professional Orders and 
Public Agency Orders). XLE Participants that enter orders on XLE shall 
mark each order (or each side of a two-sided order) with the 
appropriate designator to identify the order (or the side of the order) 
as Proprietary, Professional, or Public Agency. In addition, all orders 
would need to be entered with a valid clearing account number and two-
sided orders would need to be entered with valid clearing account 
numbers for both sides of the order.\151\
---------------------------------------------------------------------------

    \147\ See proposed Phlx Rule 182.
    \148\ See proposed Phlx Rule 1(bb).
    \149\ See proposed Phlx Rule 1(aa).
    \150\ See proposed Phlx Rule 1(ee).
    \151\ See proposed Phlx Rule 189(a)(1) and Partial Amendment No. 
2.
---------------------------------------------------------------------------

xvii. Clearing Requirements for XLE Participants
    Each member organization that is a XLE Participant must either be a 
clearing firm, clear transactions on XLE through a clearing firm, or 
clear transaction through an entity duly authorized by the Exchange 
(e.g., SCCP).\152\ Each clearing firm must be admitted to the Exchange 
as a member organization and to SCCP as a SCCP Participant. Clearing 
firms must be SCCP Participants because all transactions on XLE will be 
sent to SCCP to perform trade reconciliation and confirmation functions 
before being sent to the NSCC for clearing and settlement, which is 
consistent with current practice on the Exchange's equity trading 
floor.\153\ Additionally, member organizations that are XLE 
Participants may clear transactions on XLE through SCCP without going 
through a clearing firm.\154\
---------------------------------------------------------------------------

    \152\ See proposed Phlx Rule 165(a).
    \153\ See Securities Exchange Act Release No. 41210 (March 24, 
1999), 64 FR 15857 (April 1, 1999) (SR-Phlx-96-14) (text at note 
26).
    \154\ SCCP is permitted to provide margin accounts for certain 
persons (called ``Margin Members'' at SCCP) that clear and settle 
their transactions through SCCP's Omnibus Clearance and Settlement 
Account at NSCC. See Securities Exchange Act Release No. 48954 
(December 18, 2003), 68 FR 75013 (December 29, 2003) (SR-SCCP-2003-
04). SCCP Margin Members who are XLE Participants may use their SCCP 
margin accounts to trade on XLE without needing to use another 
clearing firm.
---------------------------------------------------------------------------

    A clearing firm shall have a number of responsibilities respecting 
XLE executions. Clearing firms shall clear their own transactions made 
on XLE, if any. In addition to clearing their own transactions, a 
clearing firm shall be responsible for the clearance of the 
transactions effected by each member organization which gives up such 
clearing firm's name pursuant to a letter of authorization, letter of 
guarantee or other authorization given by such clearing firm to such 
member organization, which authorization shall be submitted to the 
Exchange.\155\ Clearing firms may also clear transactions on XLE 
effected by Sponsored Participants whose Sponsoring Member Organization 
gives up the clearing firm or whose

[[Page 50492]]

Sponsoring Member Organization is the clearing firm.\156\
---------------------------------------------------------------------------

    \155\ See proposed Phlx Rule 165(c).
    \156\ See proposed Phlx Rule 189(a).
---------------------------------------------------------------------------

xviii. Market Makers
    XLE Participants that are member organizations may apply to 
register as Market Makers on XLE.\157\ While the presence of a Market 
Maker in a security is not a requirement on XLE, the Exchange believes 
that Market Makers can provide an additional source of liquidity to XLE 
in the securities in which the Market Maker is making markets. Market 
Makers may use any of the order types available to any other XLE 
Participant, but there are no special order types or quotations 
available for Market Makers. Orders from Market Makers on XLE will be 
treated the same as orders from other XLE Participants. In addition, 
Market Makers will not have any special or enhanced access to or 
responsibility for the orders on XLE in any given security.
---------------------------------------------------------------------------

    \157\ See proposed Phlx Rule 170(a) and (b).
---------------------------------------------------------------------------

    Market Makers shall apply to the Exchange for registration pursuant 
to proposed Phlx Rule 170. The Exchange will review an application to 
become a Market Maker considering such factors as capital, operations, 
personnel, technical resources, and disciplinary history.\158\ An 
applicant's registration as a Market Maker shall become effective upon 
receipt by the member organization of notice of an approval of 
registration by the Exchange. In the event that an application is 
disapproved by the Exchange, the applicant shall have an opportunity to 
be heard upon the specific grounds for the denial, in accordance with 
the provisions of Phlx Proposed Rule 174.\159\ Specifically, for an 
opportunity to be heard, persons may appeal such action to the 
Exchange's Board of Governors pursuant to By-Law Article XI, Section 
11-1(a). The registration of a Market Maker may be suspended or 
terminated by the Exchange upon a determination of any substantial or 
continued failure by such Market Maker to engage in dealings in 
accordance with proposed Phlx Rule 173, which describes the obligations 
of Market Makers.\160\ Any registered Market Maker may withdraw its 
registration by giving written notice to the Exchange. Such withdrawal 
of registration shall become effective on the tenth business day 
following the Exchange's receipt of the notice. A Market Maker who 
fails to give a ten-day written notice of withdrawal to the Exchange 
may be subject to formal disciplinary action pursuant to Phlx Rule 
960.1 et seq. Subsequent to withdrawal, the member organization shall 
not be permitted to re-register as a Market Maker for a period of six 
months.\161\
---------------------------------------------------------------------------

    \158\ See proposed Phlx Rule 170(b).
    \159\ See proposed Phlx Rule 170(c).
    \160\ See proposed Phlx Rule 170(d).
    \161\ See proposed Phlx Rule 170(e).
---------------------------------------------------------------------------

    Once registered as a Market Maker, a member organization may then 
register in a newly authorized security or in a security already 
admitted to dealings on XLE by filing a security registration form with 
the Exchange.\162\ Registration in the security shall become effective 
on the first business day following the Exchange's approval of the 
registration. In considering a Market Maker's registration for a 
particular security, the Exchange may consider the fitness of Market 
Maker as well as attributes of the individual security and the current 
market for the security on XLE.\163\ A Market Maker's registration in a 
security may be terminated by the Exchange if the Market Maker fails to 
enter quotations in the security within five business days after the 
Market Maker's registration in the security becomes effective.\164\ In 
addition, the Exchange may suspend or terminate any registration of a 
Market Maker in a security or securities under this proposed Phlx Rule 
172 whenever, in the Exchange's judgment, the interests of a fair and 
orderly market are best served by such action.\165\ Any such suspension 
or withdrawal of privileges by the Exchange is subject to review 
pursuant to proposed Phlx Rule 174, which permits an appeal to the 
Board of Governors pursuant to By-Law Article XI, Section 11-1(a).
---------------------------------------------------------------------------

    \162\ See proposed Phlx Rule 172(a).
    \163\ See id.
    \164\ See proposed Phlx Rule 172(b).
    \165\ See proposed Phlx Rule 172(d).
---------------------------------------------------------------------------

    Alternatively, a Market Maker may voluntarily terminate its 
registration in a security by providing the Exchange with a one-day 
written notice of such termination.\166\ Such termination shall be 
effective on the first business day immediately following the business 
day the Exchange received the notice. A Market Maker that fails to give 
advanced written notice of termination to the Exchange may be subject 
to formal disciplinary action pursuant to Phlx Rule 960.1 et seq.\167\ 
A Market Maker may apply to the Exchange to withdraw temporarily from 
its Market Maker status in the securities in which it is 
registered.\168\ The Market Maker must base its request on demonstrated 
legal or regulatory requirements that necessitate its temporary 
withdrawal, or provide the Exchange an opinion of counsel certifying 
that such legal or regulatory basis exists. The Exchange will act 
promptly on such request and, if the request is granted, the Exchange 
may temporarily reassign the securities to another Market Maker.
---------------------------------------------------------------------------

    \166\ See proposed Phlx Rule 172(c).
    \167\ See proposed Phlx Rule 172(c).
    \168\ See proposed Phlx Rule 173(d).
---------------------------------------------------------------------------

    Upon becoming Market Makers and registering in one or more 
securities on XLE, Market Makers would be required to assume a number 
of responsibilities.\169\ Market Makers must engage in a course of 
dealings for their own account to assist in the maintenance, insofar as 
reasonably practicable, of fair and orderly markets on XLE. Each Market 
Maker must use electronic system(s) to maintain continuously two-sided 
markets with at least one Limit Order to buy and at least one Limit 
Order to sell, each for at least a round lot, in those securities in 
which the Market Maker is registered to trade. Market Makers must 
maintain adequate minimum capital in accordance with Phlx Rule 703. 
Market Makers must remain in Good Standing \170\ with the Exchange. 
Market Makers must inform the Exchange of any adverse material change 
in financial or operational condition or significant change in 
personnel. Finally, Market Makers must clear and settle transactions 
through the facilities of a registered clearing agency using the means 
described in proposed Phlx Rule 165(a). Market Makers must meet these 
obligations during the Core Session in their registered securities on 
all days XLE is open for business.\171\ If the Exchange finds any 
substantial or continued failure by a Market Maker to engage in a 
course of dealings required by a Market Maker, such Market Maker will 
be subject to suspension or revocation of the registration by the 
Exchange in one or more of the securities in which the Market Maker is 
registered, provided, however, this does not limit any other power of 
the Board of Governors under the By-laws, Rules, or procedures of the 
Exchange with respect to the registration of a Market Maker or in 
respect of any violation by a Market Maker. In accordance with proposed 
Phlx Rule 174, a member organization may seek review of such suspension 
or revocation.\172\
---------------------------------------------------------------------------

    \169\ See proposed Phlx Rule 173(a).
    \170\ See proposed Phlx Rule 1(h).
    \171\ See proposed Phlx Rule 173(b).
    \172\ See proposed Phlx Rule 173(c).
---------------------------------------------------------------------------

    Because Market Makers are member organizations, individuals who 
enter orders on XLE in the course of making markets for a Market Maker 
are Market Maker Authorized Traders (``MMATs''). The Exchange may, upon 
receiving an

[[Page 50493]]

application in writing from a Market Maker on a form prescribed by the 
Exchange, register a member of the Exchange as a MMAT. Each MMAT must 
be a member of the Exchange at all times he or she is acting as a 
MMAT.\173\ All orders entered by a MMAT must contain the identification 
of the individual MMAT that entered the order.\174\ MMATs may be 
officers, partners, employees or other associated persons of member 
organizations that are registered with the Exchange as Market 
Makers.\175\ The Exchange may require a Market Maker to provide 
additional information the Exchange considers necessary to establish 
whether registration should be granted.\176\ The Exchange may grant a 
member conditional registration as a MMAT subject to any conditions it 
considers appropriate in the interests of maintaining a fair and 
orderly market.\177\ A Market Maker must ensure that a MMAT is properly 
registered to perform market making activities.\178\ In addition, to be 
eligible for registration as a MMAT, a person must have served as a 
dealer-specialist or market maker on a registered national securities 
exchange or association (or be deemed to have similar experience from 
having functioned as a trader) for at least one year within three years 
of the date of application, or, in the alternative, must successfully 
complete the General Securities Representative Examination (Series 
7).\179\
---------------------------------------------------------------------------

    \173\ See proposed Phlx Rule 171(b).
    \174\ See proposed Phlx Rule 171(a) and Partial Amendment No. 2.
    \175\ See proposed Phlx Rule 171(b)(1).
    \176\ See proposed Phlx Rule 171(b)(2).
    \177\ See proposed Phlx Rule 171(b)(3).
    \178\ See proposed Phlx Rule 171(b)(4).
    \179\ See proposed Phlx Rule 171(b)(5).
---------------------------------------------------------------------------

    The Exchange may suspend or withdraw the registration previously 
given to a person to be a MMAT if the Exchange determines that: (1) The 
MMAT has caused the Market Maker to not properly perform the 
responsibilities of a Market Maker; (2) the MMAT has failed to meet the 
conditions set forth under the preceding paragraph; or (3) the Exchange 
believes it is in the interest of maintaining fair and orderly 
markets.\180\ If the Exchange suspends the registration of a person as 
a MMAT, the Market Maker must not allow the person to submit orders on 
XLE.\181\ Any such suspension or withdrawal of MMAT privileges by the 
Exchange is subject to review pursuant to proposed Phlx Rule 174. The 
registration of a MMAT will be withdrawn upon the written request of 
the member organization for which the MMAT is registered. Such written 
request shall be submitted on the form prescribed by the Exchange.\182\
---------------------------------------------------------------------------

    \180\ See proposed Phlx Rule 171(c)(1).
    \181\ See proposed Phlx Rule 171(c)(2).
    \182\ See proposed Phlx Rule 171(c)(3).
---------------------------------------------------------------------------

xix. Outbound Routing Facility
    In connection with the proposed changes to the trading rules 
described above, the Exchange intends to have PRO, a wholly owned 
subsidiary of Order Execution Services Holdings, Inc. (``OES''),\183\ 
operate as a facility (as defined in Section 3(a)(2) of the Act) \184\ 
of the Exchange. PRO is a broker-dealer, a member of the NASD, and is 
applying to become a member organization of the Exchange. PRO plans to 
provide an optional routing service for the Exchange, in which PRO will 
route orders from the Exchange to trading centers with Protected 
Quotations through other brokers (``Access Brokers'') that are members 
or participants of those trading centers (such function of PRO is 
referred to as the ``Outbound Router'').\185\ As an Outbound Router, 
PRO will receive routing instructions from XLE, route orders to another 
trading center through an Access Broker, and be responsible for 
reporting resulting executions back to XLE.\186\ All orders routed 
through PRO would be subject to the Exchange's rules. PRO cannot change 
the terms of an order or the routing instructions, nor does PRO have 
any discretion about where to route an order.
---------------------------------------------------------------------------

    \183\ At this time, PRO Securities LLC is called Smart Execution 
Securities LLC. OES is in the process of changing the name of Smart 
Execution Securities LLC to PRO Securities LLC.
    \184\ 15 U.S.C. 78c(a)(2).
    \185\ The optional routing of orders to away markets by XLE is 
described above in Section II.A.1.c.vi.
    \186\ Executions occurring as a result of orders routed away 
from the Exchange shall be reported to an appropriate consolidated 
transaction reporting system by the relevant reporting market 
center. The Exchange shall promptly notify XLE Participants of all 
executions of their orders as soon as the Exchange is notified that 
such executions have taken place. See proposed Phlx Rule 188.
---------------------------------------------------------------------------

    The Outbound Router function of PRO will operate as a facility (as 
defined in Section 3(a)(2) of the Act).\187\ As such, the Outbound 
Router function of PRO is subject to the Commission's continuing 
oversight. In particular, and without limitation, under the Act, the 
Exchange is responsible for filing with the Commission proposed rule 
changes and fees relating to the PRO Outbound Router function, and PRO 
is subject to exchange non-discrimination requirements.\188\
---------------------------------------------------------------------------

    \187\ 15 U.S.C. 78c(a)(2).
    \188\ 15 U.S.C. 78f(b)(5). Neither PRO nor the Routing Agreement 
may unfairly discriminate among XLE Participants, pursuant to 
Section 6(b)(5) of the Act. See August 15 Telephone Call, supra note 
64.
---------------------------------------------------------------------------

    Pursuant to Rule 17d-1 under the Act,\189\ where a member of the 
Securities Investor Protection Corporation is a member of more than one 
self-regulatory organization (``SRO''), the Commission shall designate 
to one of such organizations the responsibility for examining such 
member for compliance with the applicable financial responsibility 
rules.\190\ The SRO designation by the Commission is referred to as a 
``Designated Examining Authority.'' As noted above, PRO is applying to 
become a member organization of the Exchange, and is a member of the 
NASD. The NASD is an SRO not affiliated with the Exchange or its 
affiliates. Currently, the NASD is the Designated Examining Authority 
for PRO pursuant to Rule 17d-1 of the Act \191\ with the responsibility 
for examining PRO for compliance with the applicable financial 
responsibility rules. The Exchange intends to enter into a 17d-2 
agreement with the NASD to regulate PRO in its capacity as a member of 
both the Exchange and the NASD.\192\
---------------------------------------------------------------------------

    \189\ 17 CFR 240.17d-1.
    \190\ Pursuant to Rule 17d-1 of the Act, in making such 
designation the Commission shall take into consideration the 
regulatory capabilities and procedures of the SROs, availability of 
staff, convenience of location, unnecessary regulatory duplication, 
and such other factors as the Commission may consider germane to the 
protection of investors, the cooperation and coordination among 
self-regulatory organizations, and the development of a national 
market system for the clearance and settlement of securities 
transactions.
    \191\ 17 CFR 240.17d-1.
    \192\ See 17 CFR 240.17d-2 and Partial Amendment No. 2.
---------------------------------------------------------------------------

    XLE Participants' use of PRO to route orders to another trading 
center will be optional and subject to Exchange rules, as described 
above. Those XLE Participants who choose to use PRO's Outbound Router 
function must sign a Routing Agreement.\193\ XLE Participants that 
choose not to sign a Routing Agreement may still enter orders on XLE, 
but they may only enter orders that are not routable to other trading 
centers, by definition or by instruction, such as IOC Orders, Pegged 
Orders, ISOs, as well as Limit Orders and Reserve Orders marked ``Do 
Not Route.''\194\
---------------------------------------------------------------------------

    \193\ See proposed Phlx Rule 181.
    \194\ See id.
---------------------------------------------------------------------------

    Finally, PRO will not engage in any business other than its 
Outbound Router function, except as approved by the Commission. The 
Exchange notes that PRO's Outbound Routing function includes the 
clearing functions that it may perform for trades with respect to 
orders routed to other trading centers. Pursuant to proposed Phlx Rule 
185(g), the Exchange shall establish and

[[Page 50494]]

maintain procedures and internal controls reasonably designed to 
adequately restrict the flow of confidential and proprietary 
information between the Exchange and the Routing Facility, and any 
other entity, including any affiliate of the Routing Facility, and, if 
the Routing Facility or any of its affiliates engages in any other 
business activities other than providing routing services to the 
Exchange, between the segment of the Routing Facility or affiliate that 
provides the other business activities and the routing services. 
Moreover, the books, records, premises, officers, directors, agents, 
and employees of the Routing Facility, as a facility of the Exchange, 
shall be deemed to be the books, records, premises, officers, 
directors, agents, and employees of the Exchange for purposes of and 
subject to oversight pursuant to the Exchange Act. The books and 
records of the Routing Facility, as a facility of the Exchange, shall 
be subject at all times to inspection and copying by the Exchange and 
the Commission.
d. Modifications to Current Phlx By-laws and Rules
    In addition to the proposed Phlx Rules to implement XLE, the 
Exchange is modifying various Phlx By-laws, Rules, EFPAs and OFPAs. 
Most of the changes are being made to either apply or disapply certain 
Phlx By-laws, Rules, EFPAs and OFPAs to XLE, to reflect the elimination 
of the physical trading floor for equity securities; to reflect the 
elimination of the Floor Procedure Committee and the Equity Allocation, 
Evaluation and Securities Committee; and to reflect the elimination of 
PACE, the Exchange's current electronic system for trading equity 
securities. These changes are described below beginning with the By-
laws, then followed by the Rules, EFPAs and OFPAs, generally in 
numerical order.
e. Modifications to Current By-laws
    Proposed Phlx By-law, Article I, Section 1-1(ii) is being added to 
adopt a definition of XLE, because the term is being used in a number 
of other By-laws. Phlx By-law, Article VIII, Section 8-1 is being 
amended to reflect the elimination of the Floor Procedure Committee 
\195\ and to reflect that Phlx officers and employees will now handle 
matters that were previously referred to Floor Officials or the 
Committee on the equity floor.\196\ The Floor Procedure Committee is 
being eliminated because Phlx believes that its function in governing 
conduct on the equity trading floor is no longer necessary in light of 
the floor's elimination. As a practical matter, the Exchange believes 
that the Committee's traditional role in overseeing equity trading is 
no longer necessary. The Exchange does not believe that the Committee 
is required by the federal securities laws, nor does the Exchange 
believe that its elimination is inconsistent with the Act. Members 
using XLE are represented on the Exchange's Board of Governors through 
the exercise of their voting rights for members of the Board of 
Governors.\197\ In addition, Phlx By-law, Article X, Sections 10-1 and 
10-11 are being amended and Section 10-16 is being deleted to reflect 
the elimination of the Floor Procedure Committee.
---------------------------------------------------------------------------

    \195\ Currently, at least 50% of the Floor Procedure Committee 
must consist of permit holders or persons associated with a member 
organization.
    \196\ See proposed Phlx Rule 163.
    \197\ See Phlx By-law, Article III.
---------------------------------------------------------------------------

    Phlx By-law Article X, Section 10-7 is being amended to reflect the 
elimination of the Equity Allocation, Evaluation and Securities 
Committee, which currently appoints equity specialists and handles new 
equity listings. With XLE, there will be no specialists, but rather 
Market Makers, who will be appointed by Exchange staff. Exchange staff 
also will manage the listing of any new equities. In addition, the 
composition of the Business Conduct Committee, in Section 10-11 is 
being amended such that the current ``equity member'' would be replaced 
by a member or a person associated with a member organization whose 
business is principally carried out on XLE. Accordingly, XLE 
Participants will be represented on the key committee involved in 
disciplinary matters. Additionally, Phlx By-law Article X, Section 10-
15, Finance Committee, is being amended to allow for a member or person 
associated with a member organization that conducts business primarily 
on XLE, rather than on the equity trading floor, to be included on that 
Committee as one of the ``member'' Committee members. Phlx By-law 
Article XVI, Sections 16-1 and 16-2 are being amended to reflect the 
elimination of the equity floor and to include transactions on XLE as 
member and exchange contracts.
f. Modifications to Current Rules
    Phlx Rule 1, Definitions, is being expanded to include the current 
definitions (currently contained in Phlx Rules 2-22) \198\ and the new 
proposed definitions used in connection with XLE. Phlx Rule 98, 
Emergency Committee, is being amended to reflect the elimination of the 
Floor Procedure Committee and the creation of XLE. Phlx Rule 100, 
Committee on Floor Procedure, is being amended to reflect the 
elimination of the Floor Procedure Committee. Phlx Rules 102, Dealings 
on Floor--Hours; 103, Dealings on Floor--Securities; and 104, Dealings 
on Floor--Persons, are being amended to reflect that transactions in 
equity securities will no longer take place on a floor of the Exchange. 
Phlx Rule 105, Recognized Quotations, is being deleted because, as 
written, it would not apply to XLE. The Exchange is already subject to 
display its best quotations pursuant to Rule 602 of Regulation 
NMS,\199\ and the Exchange proposes to do so as described in proposed 
Phlx Rule 184(c). The other provisions of Phlx Rule 105 are not 
applicable to XLE. Phlx Rule 106, Unit of Trading, is being deleted, 
but the concept is codified into the proposed definition of Round Lot 
in proposed Phlx Rule 1(gg). Phlx Rule 107, Bids and Offers--Other Than 
Unit of Trading, is being deleted, because all orders entered into XLE 
will specify the exact number of shares of the order. Phlx Rule 108, 
Bids and Offers to Be Made Within Six Feet of Post, is being amended to 
reflect that trading on XLE will not take place on the floor, but this 
rule will continue to apply to options and foreign currency options 
trading on the Exchange. Phlx Rule 109, Member May Bid for or Offer 
Round Lots in Open Market, is being deleted to reflect the elimination 
of the open outcry method used on the Exchange's equity trading floor. 
Phlx Rules 110, 119 to 121, and 123 \200\ are being amended or deleted 
to make them inapplicable to XLE, because the priority of orders on XLE 
will be governed by proposed Phlx Rule 184. Phlx Rule 111, Bids and 
Offers Binding, is being amended to incorporate a specific reference to 
orders on XLE.\201\ Phlx Rule 112, Bids and Offers--``When Issued,'' is 
being amended to reflect that the Exchange, through its staff, as 
opposed to a committee of the Board, will administer the admittance of 
securities for trading on XLE. Phlx Rules 113, 117, and 122, relating 
to non-regular way settlement, are being deleted and replaced by 
proposed Phlx Rule 162. Phlx Rules 9, 114, 115, and 150 to 154 are 
being deleted because bonds will not trade on XLE.
---------------------------------------------------------------------------

    \198\ Phlx Rule 9, the definition of Bond, is proposed for 
deletion.
    \199\ 17 CFR 242.602.
    \200\ These rules are titled, respectively: Bids and Offers--
Precedence; Precedence of Highest Bid; Precedence of Offers at Same 
Price; Member as Principal Having Orders to Buy and Sell; and Bids 
and Offers to Be Made Public.
    \201\ See August 15 Telephone Call, supra note 64.

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

[[Page 50495]]

    Phlx Rule 118, Bids and Offers Outside Best Bid and Offer, is being 
deleted, because it is inapplicable to XLE. XLE will accept bids and 
offers priced below and above the best bid and offer, respectively, and 
rank those bids and offers on XLE pursuant to proposed Phlx Rule 184. 
Phlx Rule 124, Disputes, is being amended to reflect that XLE will not 
use Floor Officials for resolving disputes. Instead, persons using XLE 
may use proposed Phlx Rule 163 to address clearly erroneous executions, 
which provides that an Exchange official will make the determination. 
Further, the Phlx Rule 124 is being amended to remove a reference to 
the Floor Procedure Committee, which is being eliminated. Phlx Rule 126 
is being deleted and replaced by proposed Phlx Rule 185(c) concerning 
two-sided orders. Phlx Rule 127, Substitute Principal, is being 
deleted, because orders on XLE shall be made and executed anonymously 
pursuant to proposed Phlx Rule 189. Phlx Rule 130, Offers Not Allowed 
on Floor, is being deleted because proposed Phlx Rule 185 lists all of 
the order types permitted on XLE. Phlx Rule 134, Stop Order Bans, is 
being deleted because stop orders will not be permitted on XLE. Phlx 
Rule 155, General Responsibility of Floor Brokers, is being amended to 
reflect that transactions in equity securities will no longer take 
place on a floor of the Exchange. Phlx Rules 201 to 214;\202\ 216 to 
220;\203\ 236, Reports of Positions of Specialist and Alternate 
Specialists in Securities for Which the Exchange Is the Primary Market; 
460, Procedures for Competing Specialists; and 461, PACE Remote 
Specialist, are being deleted. These rules describe equity specialists 
and how they operate currently on the equity trading floor of the 
Exchange. As stated above, a new type of liquidity provider, a Market 
Maker, will be available on XLE; the registration and functions are 
described in proposed Phlx Rules 170 to 173. Phlx Rules 225-228,\204\ 
referring to order types available on the current equity trading floor, 
are being deleted. Order types available on XLE are described in 
proposed Phlx Rule 185. Phlx Rules 229 to 229B \205\ are being deleted 
because the Exchange's current electronic order delivery and execution 
system, PACE, is being eliminated and replaced by XLE. Phlx Rule 230, 
ITS Pre-Opening Notification, and EFPA S-3, The ``Three by Three'' 
Requirement Applicable to Tape Indications and Pre-Openings, are being 
deleted; however, the operative date of this deletion will be no 
earlier than the date that the Exchange is no longer subject to the ITS 
pre-opening notification responsibilities in the ITS Plan. Phlx Rule 
231, Inactive Securities, is being deleted, as it is not applicable to 
XLE, because XLE is designed to accommodate securities that trade 
without a specialist or market maker. Phlx Rule 232, Handling Orders 
When Primary Market Is Not Open for Free Trading (EXP, PPS, GTX 
Orders), is being deleted, as XLE will operate during the hours in Phlx 
Rule 101, Supplementary Material .02. Phlx Rule 233, Trading in Nasdaq/
NM Securities, is being deleted, as the Exchange anticipates that the 
requirements in the Nasdaq UTP Plan for telephone access to NASD market 
makers will be eliminated prior to the launch of XLE. Phlx Rule 237, 
The eVWAPTM Morning Session, is being deleted, as it was a 
pilot program on the Exchange that has expired.\206\ Therefore, the 
rule no longer has any application.
---------------------------------------------------------------------------

    \202\ These rules are titled, respectively: Specialist; 
Alternate Specialists--Appointment, Assignment and Termination; 
Registrant; Responsibilities of Alternate Specialists; Agreement of 
Specialists; Hours; Odd-Lot Orders Must Be Given to Specialist; 
Written Orders--Day Orders; Open Orders; No Commission Charged; Open 
Orders Ex-dividend; Unusual Situations; Books Closed; Joint 
Accounts; Puts and Calls; and Violations of Rules.
    \203\ These rules are titled, respectively: Records to Be Kept; 
Discretionary Order; Customer's Order Receives Priority; Seller Must 
Be Identified; and Stopping Stock.
    \204\ These Rules are titled, respectively: Odd-Lot Orders in 
Securities Which the Exchange Is the Primary Market; Round Lot 
Orders Before the Opening in Nasdaq/NM Securities and in Securities 
For Which the Exchange Is the Primary Market; Odd-Lot Orders in 
Securities For Which Another Exchange Is the Primary Market and in 
Nasdaq/NM Securities; and Round Lot Orders in Securities For Which 
Another Exchange Is the Primary Market.
    \205\ These rules are titled, respectively: Philadelphia Stock 
Exchange Automated Communication and Execution System (PACE); 
Operation of PACE System When Competing Specialists Are Trading; and 
Alternative Electronic Order Entry.
    \206\ See Securities Exchange Act Release No. 45125 (December 4, 
2001), 66 FR 64069 (December 11, 2001) (SR-Phlx-2001-95) (final 
extension of the Exchange's eVWAP pilot program).
---------------------------------------------------------------------------

    Phlx Rules 251 to 273, 275 to 278, and 291 to 423, including the 
Forms, are being deleted as obsolete, because they refer to the 
delivery and settlement of securities, which is not done by the 
Exchange, but by registered clearing agencies. The Exchange is 
requiring all XLE Participants to use the services of a clearing firm 
or SCCP to clear their securities transactions on XLE.\207\ In turn, 
these entities provide for the delivery and settlement of securities 
pursuant to the rules of NSCC, a registered clearing agency. Phlx Rules 
431, Ex-dividend, Ex-rights; 432, Ex-warrants; and 442, Communications, 
are being amended to reflect the elimination of the Floor Procedure 
Committee. Phlx Rules 441, Visitors, and 444, Wire Connections Between 
Exchange and Members' Offices, are being deleted because of the 
elimination of the equity trading floor. Phlx Rule 451 is being amended 
to reflect for trading on XLE by expanding its coverage to member 
organizations and by removing its references to bidding and offering in 
the open market, which are auction market concepts. Phlx Rules 500-524 
are being amended to reflect the elimination of the Equity Allocation, 
Evaluation and Securities Committee and the elimination of equity 
specialists.
---------------------------------------------------------------------------

    \207\ See proposed Phlx Rule 165(a).
---------------------------------------------------------------------------

    Phlx Rule 604, Registration and Termination of Registered Persons, 
is being modified to reflect the elimination of the equity floor as 
well as to extend an exemption to persons whose member organization is 
assigned to the Exchange as their designated examining authority 
(``DEA'') and who is primarily engaged in business on XLE from the 
requirement to complete the Uniform Registered Representative 
Examination Series 7 (``Series 7''). Currently, persons trading on the 
equity floor are not required by this rule to take the Series 7 by 
virtue of being on the floor and therefore not an off-floor trader, 
because Rule 604(e)(1) applies to persons ``off the floor.'' The 
Exchange adopted the Series 7 examination requirement for off-floor 
traders in 1999 in order to impose a competency requirement on persons 
not on its floor, and not subject to its registration and testing 
processes for floor personnel pursuant to Phlx Rule 620 and 625.
    Going forward, however, because there will no longer be an equity 
floor, those who trade on XLE will be, by definition, off-floor 
traders, unless they are trading on another Phlx trading floor. In 
order to address this situation, language is being added to the 
renumbered Phlx Rule 604(e)(iii) which would exempt those persons who 
are primarily engaged in either (1) Submitting proprietary or agency 
orders for execution on XLE, or (2) making trading decisions with 
respect to trading on XLE from the rules requirement to take the Series 
7. Modifying the exemption to reflect the elimination of the floor is 
intended to maintain the status quo respecting the Exchange's 
requirements to take the Series 7, and is not intended to broaden the 
exemption beyond dealing with the elimination of the equity trading 
floor. The Exchange intends to interpret this exemption to permit the 
transition of existing floor persons to the new XLE environment. Those 
persons currently on the Exchange's equity trading floor who will 
continue to operate their equity

[[Page 50496]]

business in a similar fashion, now primarily on XLE, should fit within 
the exemption and therefore not be required to take the Series 7. The 
Exchange believes that absent other changes, simply moving an existing 
business from the current trading floor to XLE should not result in the 
imposition of the Series 7 examination. Of course, XLE Participants may 
be required by the rules of another SRO to take the Series 7. 
Similarly, if a XLE Participant performs the duties reflected in 
revised Phlx Rule 604(a), they must take the Series 7.
    Phlx Rule 625 and EFPA F-30 are being amended to specifically 
require new persons using XLE to successfully complete training 
requirements. In addition, Phlx Rule 625 will also subject persons 
using XLE to continuing mandatory training requirements. For these 
reasons, the Exchange believes that adding the Series 7 requirement to 
these persons is not warranted.
    Rule 604 is also being amended to eliminate existing paragraph (c), 
Limited Registration/Floor Members, due to the elimination of the 
equity trading floor, and also because the Series 7A examination 
prescribed therein was not utilized by Exchange members and is being 
eliminated by the SRO administering that examination.
    Phlx Rule 606, Communications and Equipment, is being amended to 
take into account the elimination of the equity trading floor. Phlx 
Rule 610, Notification of Changes in Business Operations, and related 
EFPA F-33 and OFPA F-33, are being amended to extend their coverage to 
members, foreign currency options participants, and member and foreign 
currency options participant organizations for which the Exchange is 
the DEA. This change is appropriate because, as currently written, Phlx 
Rule 610 would not apply to XLE Participants because the rule is 
currently limited to specialists and floor brokers. The change would 
have the effect of extending the requirements of the rule beyond those 
trading on XLE. However, the Exchange believes this is warranted 
because the purpose of the rule is to assist the Exchange's Examination 
Department in performing its functions as DEA. Therefore, the new 
language in the rule will cover all entities for which the Exchange is 
the DEA.
    Phlx Rule 640 is being amended to extend the exemption from 
continuing education requirements to persons whose activities are 
limited solely to the transaction of business on XLE with members or 
registered broker-dealers. Currently, this exemption applies only to 
persons whose activities are limited solely to the transaction of 
business on the floor with members or registered broker-dealers.
    Phlx Rule 701, Permission to Deal With Public, is being deleted, 
because it is obsolete. Today, the rules of the Commission require 
membership in the NASD for broker-dealers unless a narrow exception 
applies.\208\ As a member of the NASD, broker-dealers' dealings with 
the public are regulated by NASD's rules, making permission by the 
Exchange superfluous. Phlx Rule 703, Financial Responsibility and 
Reporting, is being amended to reflect the elimination of specialists 
and to require certain brokers using XLE who are not self-clearing and 
who are assigned to Phlx as their DEA to have a sole purpose error 
account. Phlx Rule 715, Monthly Payment and Reporting, is being amended 
to reflect the elimination of the equity trading floor. Phlx Rule 722, 
Margin, is being amended to reflect that Market Makers may receive 
``good faith margin'' for their market maker security positions in the 
same manner that equity specialists do today. Phlx Rule 755, Record of 
Orders--Transmitted to Floor, is being deleted to reflect the 
elimination of the equity trading floor. Broker-dealers continue to 
have responsibilities to retain certain information about their orders 
pursuant to the books and records rules under the Act.\209\ Phlx Rule 
774, Discretionary Transactions, is being deleted, however, the 
substance of subsection (c) is being moved to Phlx Rule 771, Excessive 
Trading by Members. The other sections of Phlx Rule 774 will not be 
applicable to trading on XLE, because XLE is not considered the floor 
of the Exchange. Phlx Rule 772, Trading for Joint Account, is being 
amended to delete references to odd-lot dealers, which was a type of 
dealer that is being eliminated. Phlx Rule 773, Participation in Joint 
Accounts, is being amended to avoid overlapping regulatory burdens on 
members who do business on more than one exchange. Phlx Rules 800, 801, 
805, 811, 813, and 864 are being modified to reflect the elimination of 
the Equity Allocation, Evaluation and Securities Committee, such that 
the listing of securities and the trading of securities on an unlisted 
trading privileges basis will be administered and approved by Exchange 
staff, rather than the Committee.
---------------------------------------------------------------------------

    \208\ See 15 U.S.C. 78o(b)(8).
    \209\ See 17 CFR 240.17a-3(a)(6).
---------------------------------------------------------------------------

g. Modifications to current EFPAs and OFPAs
    EFPA A-1 is being deleted, because there will be no specialists on 
XLE. EFPA A-2 is being deleted because there will be no stopped orders 
on XLE. EFPA E-1 is being deleted to reflect the elimination of the 
equity trading floor. EFPA E-5 is being amended to reflect the 
transition from the equity trading floor to XLE. EFPAs F-1, S-1, and S-
2 are being deleted to reflect that XLE will open before the primary 
market is open and remain open after the primary market is closed, 
pursuant to Phlx Rule 101. EFPA F-25 is being amended to remove the 
word ``floor,'' in order to make it clear that the EFPA will apply to 
persons using XLE, which is not considered the floor. EFPA F-27 is 
being deleted to reflect the fact that XLE will not use Floor Officials 
for resolving disputes. Instead, persons using XLE will use proposed 
Phlx Rule 163 to address clearly erroneous executions. Regulations 1-7 
are being deleted because they are only applicable to the equity 
trading floor, which is being eliminated. Regulation 5 that applies to 
options is being amended to reflect that the Floor Procedure Committee 
is being eliminated.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Sections 
6(b) \210\ and 11A \211\ of the Act in general, and furthers the 
objectives of Sections 6(b)(3)\212\ and (5),\213\ and 11A(a)(1)\214\ of 
the Act in particular, in that, in part, it is 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 system, 
and, in general to protect investors and the public interest, for the 
reasons discussed below.
---------------------------------------------------------------------------

    \210\ 15 U.S.C. 78f(b).
    \211\ 15 U.S.C. 78k-1.
    \212\ 15 U.S.C. 78f(b)(3).
    \213\ 15 U.S.C. 78f(b)(5).
    \214\ 15 U.S.C. 78k-1(a)(1).
---------------------------------------------------------------------------

    The Exchange's new automated system, XLE, will allow XLE 
Participants, from any location, to submit orders for immediate 
execution, display or routing, as applicable. The Exchange believes 
that XLE should provide an opportunity for XLE Participants and their 
customers to receive efficient, low-cost executions in an anonymous 
system that will execute orders according to a non-discretionary 
matching algorithm without the participation of a dealer. Therefore, 
the Exchange believes that XLE should further the goals Section 
11A(a)(1)(C) of the Act,\215\ including: (i) The economically efficient 
execution of securities transactions; (ii) fair

[[Page 50497]]

competition among brokers and dealers, among exchange markets, and 
between exchange markets and markets other than exchange markets; (iii) 
the availability to brokers, dealers, and investors of information with 
respects to quotations for and transactions in securities; (iv) the 
practicability of brokers executing investors' orders in the best 
market; and (v) an opportunity, consistent with the provisions with (i) 
and (ii) above, for investors' orders to be executed without the 
participant of a dealer.
---------------------------------------------------------------------------

    \215\ 15 U.S.C. 78k-1(a)(1)(C).
---------------------------------------------------------------------------

    The Exchange believes that the proposed rule change also furthers 
the objectives of Section 6(b)(3) under the Act \216\ in that it 
provides a fair representation on the BCC of persons using XLE, in that 
Phlx By-law Article X, Section 10-11 is being amended such that the 
current ``equity member'' would be replaced by a member or a person 
associated with a member organization whose business is principally 
carried out on XLE.
---------------------------------------------------------------------------

    \216\ 15 U.S.C. 78f(b)(3).
---------------------------------------------------------------------------

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 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 either solicited or received by the 
Exchange.

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 Exchange consents, the Commission will:
    (A) By order approve such 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 [email protected]. Please include 
File Number SR-Phlx-2006-43 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-1090.
    All submissions should refer to File Number SR-Phlx-2006-43. This 
file number should be included on the subject line if e-mail is used. 
To help the Commission process and review your comments more 
efficiently, please use only one method. The Commission will post all 
comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, 
all written statements with respect to the proposed rule change that 
are filed with the Commission, and all written communications relating 
to the proposed rule change between the Commission and any person, 
other than those that may be withheld from the public in accordance 
with the provisions of 5 U.S.C. 552, will be available for inspection 
and copying in the Commission's Public Reference Room. Copies of the 
filing also will be available for inspection and copying at the 
principal office of the Phlx. All comments received will be posted 
without change; the Commission does not edit personal identifying 
information from submissions. You should submit only information that 
you wish to make available publicly. All submissions should refer to 
File Number SR-Phlx-2006-43 and should be submitted on or before 
September 15, 2006. 

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\217\
---------------------------------------------------------------------------

    \217\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Nancy M. Morris,
Secretary.
[FR Doc. 06-7131 Filed 8-24-06; 8:45 am]
BILLING CODE 8010-01-P