[Federal Register Volume 71, Number 217 (Thursday, November 9, 2006)]
[Notices]
[Pages 65847-65851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-18978]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-54709; File No. SR-Amex-2006-72]


Self-Regulatory Organizations; American Stock Exchange LLC; Order 
Approving a Proposed Rule Change and Amendment No. 1 Thereto, and 
Notice of Filing and Order Granting Accelerated Approval to Amendment 
No. 3, To Adopt New Rules To Implement on a Pilot Basis an Initial 
Version of AEMI, Its Proposed New Hybrid Market Trading Platform For 
Equity Products and Exchange Traded Funds

 November 3, 2006.

I. Introduction

    On August 8, 2006, the American Stock Exchange LLC (``Amex'' or 
``Exchange'') filed with the Securities and Exchange Commission

[[Page 65848]]

(``Commission''), pursuant to Section 19(b)(1) of the Securities 
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a 
proposed rule change to implement an initial version of its Auction & 
Electronic Market Integration (``AEMI'') system, a new hybrid market 
trading platform for equity products and exchange-traded funds 
(``ETFs''). On September 7, 2006, the Exchange filed Amendment No. 1 to 
the proposed rule change.\3\ The proposed rule change, as amended, was 
published for comment in the Federal Register on September 14, 2006.\4\ 
The Commission received four comments on the proposal.\5\ On October 
31, 2006, Amex filed Amendment No. 3 to the proposal.\6\ This notice 
and order solicits comments from interested persons on Amendment No. 3 
and approves the amended proposal on an accelerated basis.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ Amendment No. 1 replaces and supersedes the original filing 
in its entirety.
    \4\ See Securities Exchange Act Release No. 54413 (September 7, 
2006), 71 FR 54318 (``Notice'').
    \5\ See Letter to Nancy M. Morris, Secretary, Commission, from 
Michael A. Barth, Senior Vice President, Exchange and Market 
Centers, Order Execution Services, Inc., dated September 22, 2006 
(``OES Letter''); Letter to Nancy M. Morris, Secretary, Commission, 
from Mary Yeager, Assistant Secretary, New York Stock Exchange LLC, 
dated September 29, 2006 (``NYSE Letter''); Letter to Nancy M. 
Morris, Secretary, Commission, from David A. Herron, Chief Executive 
Officer, Chicago Stock Exchange, Inc., dated October 5, 2006 (``CHX 
Letter''); and Letter to Nancy M. Morris, Secretary, Commission, 
from Jeffrery S. Davis, Assistant General Counsel, Nasdaq Stock 
Market LLC, dated October 10, 2006 (``Nasdaq Letter'').
    \6\ See Partial Amendment to Form 19b-4 dated October 27, 2006 
(``Amendment No. 3''), infra Section III. The Exchange submitted 
Amendment No. 2 to the Commission on October 30, 2006 and withdrew 
Amendment No. 2 on October 31, 2006.
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II. Description of Proposal

    The Commission recently approved the Exchange's new hybrid market 
platform for equity products and ETFs, known as AEMI, that will 
integrate automatic execution and floor-based auction trading (the 
``AEMI Rule Filing'').\7\ The Exchange has proposed to adopt, prior to 
the Trading Phase Date,\8\ which is set for February 5, 2007, a 
modified version of the AEMI Rules, known as the ``AEMI-One Rules,'' as 
a pilot program (the ``AEMI-One Pilot''). The AEMI-One Pilot would 
commence with two listed equities and two ETF UTP securities. Following 
a successful ten-day period of trading, up to four listed ETFs would be 
added for an additional five days of trading. The Exchange would then 
accelerate the deployment of all equity products and ETFs on a per-post 
basis and give notice to members and publish on Amex's Web site the 
timing for each group of securities being migrated to the AEMI 
platform.
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    \7\ Securities Exchange Act Release No. 54552 (September 29, 
2006), 71 FR 59546 (October 10, 2006) (``AEMI Approval Order'').
    \8\ By the Trading Phase Date, each trading center intending to 
qualify its quotations for trade-through protection must bring a 
Regulation NMS-compliant trading system into full operation for all 
NMS stocks intended to be traded during the phase-in period (i.e., 
through October 8, 2007). See Securities Exchange Act Release No. 
53829 (May 18, 2006), 71 FR 30038, 30039 (May 24, 2006) (``NMS 
Extension Release'') (extending compliance dates for Rules 610 and 
611 of Regulation NMS).
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    Because not all provisions of Regulation NMS are fully operative, 
the AEMI-One Pilot rules are modified from their AEMI Rule counterparts 
to reflect the different regulatory environments in effect before and 
after the Trading Phase Date. The Exchange expects that the AEMI-One 
Pilot would be in effect from shortly after Commission approval of the 
AEMI-One Rules until the Trading Phase Date. At the Trading Phase Date, 
the AEMI Rules would become effective and supersede the AEMI-One Rules. 
The Exchange has stated that it would make this change via a filing 
with the Commission to delete the AEMI-One Rules from its rulebook.
    The operation of AEMI-One would be, in most respects, consistent 
with the operation of AEMI, except for the following provisions:
     A ``protected quotation'' in the AEMI-One Pilot (``AEMI-
One Protected Quotation'') is a quotation in an NMS stock that: (1) Is 
disseminated pursuant to an effective national market system plan; (2) 
is the best bid or best offer of a national securities exchange or a 
national securities association that is at a better price than the next 
trade that would occur on AEMI; and (3) is a firm manual or automated 
quotation, irrespective of whether the quotation is at the national 
best bid or offer (``NBBO'').\9\ In contrast, a ``protected quotation'' 
under the AEMI Rules is defined to be consistent with Rule 611 of 
Regulation NMS \10\ and must be an automated quotation that is the best 
bid or offer of an automated trading center.
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    \9\ See Amendment No. 3, supra note 6.
    \10\ See 17 CFR 242.600(b)(58) (defining ``protected 
quotation''); see also 17 CFR 242.600(b)(57) (defining ``protecting 
bid'' and ``protected offer'').
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     During the AEMI-One Pilot, not every away market center 
that displays an AEMI-One Protected Quotation may be capable of 
receiving intermarket sweep orders (``ISOs''), as such orders are 
defined in Regulation NMS.\11\ In such circumstances, AEMI would not 
utilize ISOs and instead would generate ``away market obligations.'' An 
``away market obligation'' is defined in the AEMI-One Rules as an 
immediate-or-cancel limit order generated by AEMI and routed to one or 
more away market centers to execute against all AEMI-One Protected 
Quotations up to their displayed size.\12\ If an away market that 
trades a particular security were capable of receiving ISOs prior to 
the Trading Phase Date, the Exchange could choose to require AEMI to 
generate and utilize ISOs as the away market obligations for that 
market.\13\ In contrast, the AEMI Rules effective on and after the 
Trading Phase Date would provide for the use of ISOs exclusively to 
comply with the trade-through provisions of Rule 611 for protected 
quotations displayed at other market centers. However, during the AEMI-
One Pilot, AEMI would accept and trade all ISOs received by the 
Exchange that involve securities traded on the Exchange that have made 
the transfer from Amex's legacy systems to the AEMI platform, similar 
to the way AEMI would operate following the AEMI-One Pilot.\14\
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    \11\ See 17 CFR 242.600(b)(30) (defining ``intermarket sweep 
order'').
    \12\ The Commission notes that the Exchange has represented that 
such immediate-or-cancel orders will carry an expiration delay timer 
that at the outset of AEMI-One will be set to 35 seconds for all 
away market obligations. See Letter to Nancy M. Morris, Secretary, 
Commission, from Claire P. McGrath, Senior Vice President and 
General Counsel, Amex, dated October 31, 2006 (``Amex Request 
Letter'') (requesting exemption from Section 8(d) of the ITS Plan in 
connection with Amex's use of ISOs and the use of private linkages 
instead of ITS for routing away market obligations).
    \13\ The Commission notes that as a condition to the Exchange 
marking an order as an ISO, the Exchange must immediately send ISOs 
or away market obligations, as appropriate to the trading center 
whose quote the Exchange is trying to access, to all AEMI-One 
Protected Quotations.
    \14\ In Amendment No. 1 the Exchange, among other things, 
clarified that, during the period of the AEMI-One Pilot, a member of 
the Exchange sending an intermarket sweep order to the AEMI platform 
must simultaneously send an intermarket sweep order (or a comparable 
order) for the full displayed size of the top of book of every other 
market center displaying a better-period quotations. See proposed 
Rule 131-AEMI-One. In Amendment No. 2, the Exchange revised proposed 
Rule 131-AEMI-One to state ``better-priced protected quotation'' 
(emphasis added).
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III. Amendment No. 3

    In Amendment No. 3, the Exchange proposed certain changes to 
conform the AEMI-One Rules to the final AEMI Rules. These conforming 
changes are made in Rules 24-AEMI-One, 115-AEMI-One, 128A-AEMI-One, 
131-AEMI-One, and 170-AEMI-One. The Exchange also proposed the 
following:
     To change the language describing how the AEMI platform 
will route orders in AEMI-One to protected quotations of away markets 
for trade-through purposes. As described in Amendment No. 3, an AEMI-
One Protected Quotation is any firm

[[Page 65849]]

quotation, whether manual or automated, that is at a better price than 
the next trade that would occur on AEMI, and that is the best bid or 
offer of a national securities exchange or a national securities 
association. In contrast, a ``protected quotation'' under the AEMI 
Rules (effective on and after the Trading Phase Date) is defined to be 
consistent with Rule 611 of Regulation NMS and must be an automated 
quotation that is the best bid or offer of an automated trading center 
(as defined in Regulation NMS).
     To make certain changes to Rule 126A-AEMI-One to insure 
that the AEMI system's handling of trade-throughs is consistent with 
the ITS Plan.
     To remove the order types ``buy minus'' and ``sell plus'' 
from proposed Rule 131-AEMI-One(n) (and all references thereto in the 
AEMI-One Rules) pending additional study of their functionality in a 
Regulation NMS environment.
     To revise the descriptions of ``stop order'' in Rule 131-
AEMI-One(o) and ``stop limit order'' in proposed Rule 131-AEMI-One(p) 
to provide that ``too marketable'' stop and stop limit orders for ETFs 
will be executed, not rejected.
     To codify as Commentary .01 to proposed Rule 154-AEMI-One 
the Exchange's interpretation that a Specialist will not be deemed to 
be ``trading ahead'' of a percentage order (of which it is the agent) 
if: (1) An aggressing order that executes against the Specialist's 
quote ``elects'' the percentage order (making it eligible for immediate 
execution); and (2) the percentage order is not executed by that 
aggressing order due to insufficient remaining interest and therefore 
reverts back to unelected status. Additionally, the Commentary would 
provide that any subsequent trade by the Specialist for its own account 
would not constitute ``trading ahead'' if the percentage order has not 
been otherwise re-elected at that time.
     To revise the definitions of ``Specialist emergency 
quote'' and ``stabilizing quote'' in proposed Rule 1A-AEMI-One to 
provide for an upper limit (not to exceed ten) on the number of 
Specialist emergency quotes that may be immediately generated under a 
possible scenario in which the Specialist pairs off through another 
market. Otherwise, a potentially large number of such quotations might 
be required to be sent out to protect quotes of away markets, creating 
excessive risk, before a tolerance breach occurs. Under the proposed 
rule change, the Specialist must re-quote its market when the above 
referenced limit is hit. The proposed change in the definition of 
``stabilizing quote'' is a related change to provide that a stabilizing 
quote would be issued if the maximum number of Specialist emergency 
quotes has been reached.
     To add language to Rule 126A-AEMI-One reiterating the 
obligations to other market centers that members of the Exchange who 
choose to send ISOs to AEMI during the AEMI-One Pilot will have. This 
requirement also appears in proposed Rule 131-AEMI-One as described 
above. Such members will be obligated to protect all AEMI-One Protected 
Quotations.
     To clarify the meaning of the last sentence of the 
definition of an ``intermarket sweep order'' in proposed Rule 131-AEMI-
One(k), by adding the word ``protected'' before the word ``quotation.'' 
This sentence describes the obligations to other market centers of a 
member of the Exchange who chooses to send an intermarket sweep order 
to the AEMI platform during the AEMI-One Pilot. Such a member would be 
obligated to protect all AEMI-One Protected Quotations.

IV. Comments

    The Commission received four comment letters regarding the proposed 
rule change. One commenter, OES, asserted that the proposed routing 
arrangements contemplate that Amex would inappropriately perform duties 
required to be performed by a broker-dealer, such as making decisions 
on when, how, and where orders are routed.\15\ New York Stock Exchange 
(``NYSE'') argued that Amex's proposal constituted ``an attempt to move 
forward the effective date of the Reg. NMS Order Protection Rule from 
February 5, 2007 to whenever the Amex is ready to implement AEMI-One.'' 
\16\ NYSE also argued that Amex's proposal would violate the 
Intermarket Trading System (``ITS'') Plan and give it the ability to 
trade-through quotes that Amex deems slow. NYSE also observed that, 
when Amex previewed its proposal with the ITS Operating Committee, 
several other markets noted that it would have a negative impact on 
their respective technology implementation schedules. The Chicago Stock 
Exchange (``CHX'') also viewed Amex's proposed rule change as an 
attempt to accelerate the Trading Phase Date and opposed Amex's 
proposal to trade-through quotations Amex deems to be slow.\17\
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    \15\ See OES Letter at 1. See also AEMI Approval Order, 71 FR at 
59554, n. 103.
    \16\ See NYSE Letter at 1.
    \17\ See CHX Letter at 1.
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    Nasdaq supported Amex's proposed rule change, characterizing it as 
a ``sensible transitional approach'' that would help it prepare for the 
Trading Phase Date at no or little cost to other market 
participants.\18\ Nasdaq disagreed with NYSE's comments on Amex's 
proposal, stating that the proposed rule change would not result in any 
technical or programming impact to Nasdaq, is voluntary, and could be 
implemented by Amex at any time without requiring other markets to 
implement similar functionality. Nasdaq also asserted that, when Amex 
previewed its plan to the ITS Operating Committee, there was no 
overwhelming consensus either for or against the proposal, and this is 
not unusual given that market participants often have competing 
interests. In Nasdaq's view, any concerns presented at that time about 
the proposal's potential impact on other markets' programming 
requirements were based upon a lack of familiarity with the proposal.
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    \18\ See Nasdaq Letter at 1.
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    Amex responded to NYSE's and OES's comment letters.\19\ Amex 
disagreed with NYSE's assertion that the Trading Phase Date is the date 
on which all SRO trading centers will launch their respective 
Regulation NMS-compliant systems. Rather, Amex stated that the Trading 
Phase Date represents an end date by which all such systems must comply 
with Regulation NMS. Moreover, Amex argued that the deadline of the 
Trading Phase Date does not negate the desirability of providing a 
phase-in period for a new trading system. The Exchange asserted that 
the industry should have operating experience with new systems prior to 
the Trading Phase Date before market participants become liable for 
compliance. The Exchange also stated that its proposal would not create 
any additional technical burdens on other market centers. Amex also 
explained that it would not send ISOs to any market not ready to accept 
them and would publish the list of markets to which it would send ISOs 
prior to the Trading Phase Date.\20\ The Exchange also stated that it 
would seek an exemption from the ITS Plan to the extent its proposal 
required.\21\
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    \19\ See Letter to Nancy M. Morris, Secretary, Commission, from 
Neal L. Wolkoff, Chief Executive Officer, Amex, dated October 10, 
2006 (``Amex Response Letter'').
    \20\ See id. at 2.
    \21\ See id. at 2; see also Amex Request Letter, supra note 12 
(requesting exemption from Section 8(d) of the ITS Plan in 
connection with Amex's use of ISOs and the use of private linkages 
instead of ITS for routing away market obligations).
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    In response to OES's comment letter, Amex stated that the 
Exchange's routing functionality has no discretion and thus the 
Exchange would not be acting in the

[[Page 65850]]

capacity of a broker.\22\ Amex further explained that the routing logic 
is based on pre-coded functionality which seeks to route orders to the 
market center displaying the best price based on price-size priority. 
The Exchange also stated that it does not believe that its use of 
routing logic or licensing of routing technology would undermine or 
change its ability to provide a marketplace of buyers and sellers.
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    \22\ See Amex Response Letter at 3-4.
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    The Commission notes that, in Amendment No. 2, the Exchange amended 
its proposal so that during the AEMI-One Pilot it would protect any 
firm quotation, whether manual or automated, that is at a better price 
than the next trade that would occur on AEMI and that is the best bid 
or offer of a national securities exchange or a national securities 
association. This change should address the comment made by NYSE and 
CHX that the Exchange would ``be permitted to trade through quotes it 
deems slow * * *.'' \23\
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    \23\ See CHX Letter at 2; see also NYSE Letter at 1.
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V. Discussion

    After careful review, the Commission finds that the proposed rule 
change, as amended, is consistent with the requirements of the Act and 
the rules and regulations thereunder applicable to a national 
securities exchange and, in particular, with the requirements of 
Section 6(b) of the Act.\24\ Specifically, the Commission finds that 
the proposal is consistent with Section 6(b)(5) of the Act \25\ in that 
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. The Commission also finds that the 
proposal is consistent with Section 6(b)(8) of the Act,\26\ which 
prohibits an exchange's rules from imposing a burden on competition 
that is not necessary or appropriate in furtherance of the Act. 
Finally, the Commission believes that the proposal is consistent with 
Section 11A(a)(1)(C) of the Act,\27\ in which Congress found that it is 
in the public interest and appropriate for the protection of investors 
and the maintenance of fair and orderly markets to assure: (1) 
Economically efficient execution of securities transactions; (2) fair 
competition among brokers and dealers and among exchange markets, and 
between exchange markets, and markets other than exchange markets; (3) 
the availability to brokers, dealers, and investors of information with 
respect to quotations and transactions in securities; (4) the 
practicability of brokers executing investors' orders in the best 
market; and (5) an opportunity for investors' orders to be executed 
without the participation of a dealer. Since the Commission has already 
approved the final AEMI Rules,\28\ only those aspects of the AEMI-One 
Rules that differ from the final AEMI Rules are discussed more fully 
below.
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    \24\ 15 U.S.C. 78f(b). In approving this proposal, the 
Commission has considered the proposed rules' impact on efficiency, 
competition, and capital formation. See 15 U.S.C. 78c(f).
    \25\ 15 U.S.C. 78f(b)(5).
    \26\ 15 U.S.C. 78f(b)(8).
    \27\ 15 U.S.C. 78k-1(a)(1)(C).
    \28\ See AEMI Approval Order, supra note 7.
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    In its AEMI-One proposal, the Exchange stated that it will protect 
all AEMI-One Protected Quotations--namely all quotations that: (1) Are 
disseminated pursuant to an effective national market system plan; (2) 
are the best bid or best offer of a national securities exchange or a 
national securities association that is at a better price than the next 
trade that would occur on AEMI; and (3) are firm quotations, regardless 
of whether they are manual or automated. The Commission notes that this 
level of price protection appears consistent with the ITS Plan.
    The Exchange plans to utilize ISOs to route orders to AEMI-One 
Protected Quotations of those market centers capable of receiving ISOs. 
For markets that are unable to receive ISOs, the AEMI-One Rules provide 
for the use of an ``away market obligation'' to reach the quotations of 
such markets. An ``away market obligation'' is an immediate-or-cancel 
limit order generated by AEMI in connection with the execution of an 
order by AEMI and simultaneously routed to one or more away market 
centers to execute against the full displayed size of any AEMI-One 
Protected Quotation. In addition, an Amex member may send an ISO to 
AEMI during the AEMI-One Pilot only if it has simultaneously sent an 
ISO (or comparable order) to execute against the full displayed size of 
any AEMI-One Protected Quotation. The AEMI-One Rules provide that the 
Exchange will accept and act upon all inbound, appropriately marked 
ISOs received before the Trading Phase Date that involve securities 
traded on the AEMI platform.
    The Commission believes that the Exchange's proposal is reasonably 
designed to allow Amex and its market participants to gain experience 
with ISOs before the Trading Phase Date. In a separate action, the 
Commission today is exempting Amex from certain provisions of the ITS 
Plan relating to the Exchange's use of ISOs and the use of private 
linkages instead of ITS for routing away market obligations.\29\ This 
exemption will enable Amex to implement certain provisions of the AEMI-
One Rules without violating the ITS Plan. For reasons discussed in the 
Amex Exemption Letter, the Commission believes that granting Amex's 
request for an exemption from certain provisions of the ITS Plan is 
warranted.
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    \29\ See Letter to Claire P. McGrath, Senior Vice President and 
General Counsel, Amex, from David S. Shillman, Associate Director, 
Division Commission, dated November 3, 2006 (``Amex Exemption 
Letter'').
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    The Commission does not believe that OES's comments regarding the 
AEMI routing arrangements preclude approval of the AEMI-One Rules. The 
Commission previously considered this comment as part of the AEMI Rule 
Filing. For reasons discussed in the order approving that filing, the 
Commission believes that the Exchange's arrangements for outbound 
routing functionality are consistent with the Act.\30\
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    \30\ See AEMI Approval Order, 71 FR at 59554, n. 103.
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Accelerated Approval of Amendment No. 3

    Pursuant to Section 19(b)(2) of the Act, the Commission finds good 
cause to approve the proposal, as amended by Amendment No. 3, prior to 
the thirtieth day after the amended proposal is published for comment 
in the Federal Register. The changes that the Exchange proposes in 
Amendment No. 3 are technical in nature and raise no new issues of 
regulatory concern beyond those raised in the original proposal, which 
had a full notice-and-comment period. The Commission finds good cause 
to accelerate approval of the amended proposal prior to the thirtieth 
day after publication in the Federal Register.

VI. Solicitation of Comments on Amendment No. 3

    Interested persons are invited to submit written data, views, and 
arguments concerning Amendment No. 3, including whether the amendment 
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

[[Page 65851]]

     Send an e-mail to [email protected]. Please include 
File Number SR-Amex-2006-72 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-Amex-2006-72. 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 such 
filing also will be available for inspection and copying at the 
principal office of the Exchange. All comments received will be posted 
without change; the Commission does not edit personal identifying 
information from submissions. You should submit only information that 
you wish to make available publicly. All submissions should refer to 
File Number SR-Amex-2006-72 and should be submitted on or before 
November 30, 2006.

VII. Conclusion

    For the foregoing reasons, the Commission finds that the proposed 
rule change, as amended, is consistent with the Act and the rules and 
regulations thereunder applicable to a national securities exchange, 
and in particular with Sections 6(b)(5) and 6(b)(8) of the Act.\31\
    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\32\ that the proposed rule change (SR-Amex-2006-72), as amended by 
Amendment No. 1, be, and it hereby is, approved, and that Amendment No. 
3 is approved on an accelerated basis.
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    \31\ 15 U.S.C. 78f(b)(5) and 78f(b)(8).
    \32\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\33\
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    \33\ 17 CFR 200.30-3(a)(12).
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Nancy M. Morris,
Secretary.
[FR Doc. E6-18978 Filed 11-8-06; 8:45 am]
BILLING CODE 8011-01-P