[Federal Register Volume 74, Number 112 (Friday, June 12, 2009)]
[Notices]
[Pages 28078-28081]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-13811]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-60054; File No. SR-NYSEArca-2009-45]


Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
of Proposed Rule Change To Adopt Rules To Implement the Options Order 
Protection and Locked/Crossed Market Plan

June 5, 2009.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(the ``Act'')\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given 
that on May 20, 2009, the NYSE Arca, Inc. (``NYSE Arca'' or 
``Exchange''), filed with the Securities and Exchange Commission 
(``Commission'') the proposed rule change as described in Items I, II, 
and III below, which Items have been prepared by the Exchange. The 
Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to adopt rules to implement the Options Order 
Protection and Locked/Crossed Market Plan (the ``Plan''), and to delete 
provisions which will no longer be applicable following adoption of the 
Plan. The text of the proposed rule change is available on the 
Exchange's Web site at http://www.nyse.com, at the Exchange's principal 
office and at the Commission's Public Reference Room.

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

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

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

1. Purpose
    The Exchange proposes to adopt rules to implement the Plan. These 
rules will amend Rules 6.92 through 6.94 [sic] of the Exchange's rules 
in their entirety. The proposed rules also will amend various other 
rules to accommodate the Plan.
    Background to the plan and the implementing rules. NYSE Arca filed 
the current version of the Plan on October 31, 2008.\3\ The Plan would 
replace the current Plan for the Purpose of Creating and Operating an 
Intermarket Option Linkage (``Old Plan''). The Old Plan requires its 
participant exchanges to operate a stand-alone system or ``Linkage'' 
for sending order-flow between exchanges to limit trade-throughs. The 
Options Clearing Corporation (``OCC'') operates the Linkage system. The 
Linkage rules provide for unique types of Linkage orders, with a 
complicated set of requirements as to who may send such orders and 
under what conditions.
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    \3\ The October 3, 2008 filing was Amendment No. 3 to the Plan. 
NYSE Arca initially filed the Plan on September 18, 2007, filed 
Amendment No. 1 on December 10, 2007, and filed Amendment No. 2 on 
April 17, 2008.
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    While the Linkage largely has operated satisfactorily, it is under 
significant strain. When the Commission approved the Old Plan in 2000, 
average daily volume (``ADV'') in the options market was approximately 
2.6 million contracts across all exchanges. Now the ADV has increased 
to more than 10 million contracts, putting added strain on the ability 
of market makers to comply with the complex Linkage rules. At the same 
time, the options markets have been moving towards quoting in pennies, 
and are quoting in pennies options representing over half the total 
industry volume. This greatly increases the number of price changes in 
an option, giving rise to greater chances of trade-throughs and missing 
markets as market makers send Linkage orders and have to wait for a 
response.
    Experience in the equities markets shows that there is a more 
efficient way to provide price protection in options. When first 
implemented, the Linkage represented a vast improvement over the then-
current equities price-protection system, which depended on the 
operation of the Intermarket Trading System (``ITS''). The plan 
governing ITS imposed long waiting times for filling ITS commitments 
and a cumbersome method for satisfying trade-throughs. Learning from 
the shortcomings of ITS, the options Linkage has shorter waiting 
periods and more efficient trade-through protections.
    The equity price-protection mechanisms have now leapfrogged the 
options Linkage. By adopting Regulation NMS in 2005 the Commission 
effectively terminated ITS, replacing it with a rules-based price-
protection system.\4\ The key to Regulation NMS's price-protection 
provisions is the Intermarket Sweep Order, or ISO. Each equity exchange 
must adopt rules ``reasonably designed to prevent trade-throughs.'' \5\ 
Exempted from trade-through liability is an ISO, which is an order a 
member sends to an exchange displaying a price inferior to the national 
best bid and offer (``NBBO''), while simultaneously sending orders to 
trade against the full size of any other exchange that is displaying 
the NBBO.\6\
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    \4\ Release No. 34-51808 (June 9, 2005), 70 F.R. 37496 (June 29 
2005).
    \5\ Regulation NMS Rule 611(a).
    \6\ Regulation NMS Rule 600(b)(30).
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    The Regulation NMS rules-based price-protection system is working 
well. It requires neither a central linkage mechanism nor a complex set 
of operating rules. It also has eliminated the need for achieving 
unanimity to change even the most minor aspects of a linkage mechanism. 
A simple prohibition against most trade-throughs, coupled with the ISO 
mechanism, has given the equities markets a straight-forward system to 
provide customers with price protection in a fast-moving, high-volume 
market that is quoted in pennies. NYSE Arca and the other options 
exchange participants in the Plan intend for the Plan, and the 
implementing rules, to bring the efficiencies of Regulation NMS to the 
options market.
    Operation of the plan. The Plan effectively would apply the 
Regulation NMS price-protection provisions to the options markets. 
Similar to Regulation NMS, the Plan would require participants to adopt 
rules ``reasonably designed to prevent Trade-Throughs,'' while 
exempting ISOs from that prohibition.\7\ The definition of an ISO is 
essentially the same as under Regulation NMS,\8\ and there are a number 
of additional exceptions to the trade-through prohibition. Like 
Regulation NMS,\9\ the Plan requires participating

[[Page 28079]]

exchanges to take reasonable steps to establish that ISOs meet the 
requirements of the Plan.
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    \7\ Sections 5(a)(i) and 5(b)(iv) of the Plan.
    \8\ Section 2(9) of the Plan.
    \9\ Regulation NMS Rule 611(c) and Section 5(c) of the Plan.
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    With respect to locked and crossed markets, similar to Regulation 
NMS the Plan requires its participants to adopt, maintain and enforce 
rules requiring members: To avoid displaying locked and crossed 
markets; to reconcile such markets; and to prohibit members from 
engaging in a pattern or practice of displaying locked and crossed 
markets.\10\ With respect to locked markets, the Plan differs from 
Regulation NMS in that it specifically permits exceptions to the locked 
market prohibitions ``as contained in the rules of a Participant 
approved by the Commission.'' \11\
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    \10\ Section 6 of the Plan.
    \11\ Id.
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    Description of the implementing rules. The Exchange proposes to 
define ``Intermarket Sweep Order'' as a new order type in proposed Rule 
6.62(z).
    Other proposed rule changes would amend and/or replace NYSE Arca's 
current Linkage rules in Rules 6.92-6.96 as described below:
    Rule 6.92(a)--Definitions. This proposed rule incorporates all the 
operative definitions from the Plan into the NYSE Arca rulebook. With 
one exception, the parties to the Plan derived all such definitions 
either from the Old Plan \12\ or Regulation NMS.\13\ The one exception 
is the definition of ``complex trade'' in Rule 6.92(a)(4). A ``complex 
trade'' is exempt from trade-through liability. The exemption in the 
Old Plan simply refers to complex trades ``as that term may be defined 
by the Operating Committee from time to time.'' Based on that 
provision, NYSE Arca had previously adopted current Rule 6.92(4), which 
is substantially identical among all the options exchanges. We propose 
to carry that definition into the revised Rule 6.92 unchanged.
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    \12\ See, e.g., the definitions of ``Broker-Dealer'' in Rule 
6.92(a)(3), NBBO in Rule 6.92((a)(10), Non-Firm in Rule 6.92(a)(11), 
OPRA Plan in Rule 6.92(a)(12), and Participant in Rule 6.92(a)(13).
    \13\ See, e.g., the definitions of ``Best Bid''/``Best Offer'' 
in Rule 6.92(a)(1), ``Bid''/``Offer'' in Rule 6.92(a) (2), 
``Intermarket Sweep Order (``ISO'')'' in Rule 6.62(t) [sic], and 
``Quotation'' in Rule 6.92(a)(16).
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    Rule 6.94--Order Protection. Paragraph (a) of Rule 6.94 provides 
that, subject to specified exceptions, NYSE Arca OTP Holders shall not 
effect trade-throughs. Paragraph (b) provides for the following trade-
through exceptions:
     System Issues: Rule 6.94(b)(1) implements Section 5(b)(i) 
of the Plan by establishing an exception for trade-throughs due to 
system-failures. This is akin to the exception in Regulation NMS for 
equity securities and permits trading through an Eligible Exchange that 
is experiencing system problems.\14\ The Exchange is proposing ``self-
help'' rules similar to its NYSE Arca Equities Rule 7.37(f), adopted 
pursuant to Regulation NMS.
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    \14\ See Regulation NMS Rule 611(b)(1).
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     Trading Rotations: Rule 6.94(b)(2) implements Section 
5(b)(ii) of the Plan and carries forward the current trade-through 
exception in the Old Plan\15\ and current Rule 6.94(b)(5) related to 
the opening of markets. It is the options equivalent to the single 
price opening exception in Regulation NMS for equity securities.\16\ 
NYSE Arca uses a trading auction to open an option for trading, or to 
reopen an option after a trading halt. The opening is effectively a 
single price auction to price the option and there are no practical 
means to include prices on other exchanges in that auction.
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    \15\ See Old Plan Section 8(c)(iii)(E).
    \16\ See Regulation NMS Rule 611(b)(3) under the Securities 
Exchange Act of 1934, as amended (``Exchange Act'').
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     Crossed Markets: Rule 6.94(b)(3) implements Section 
5(b)(iii) of the Plan and is the functional equivalent to NYSE Arca 
Equities Rule 7.37(e)(3) for equity securities. If the best intermarket 
bid is higher than the best intermarket offer, it indicates that there 
is some form of market dislocation or inaccurate quoting. Permitting 
transactions to be executed without regard to trade-throughs in a 
Crossed Market will allow the market quickly return to equilibrium.
     Intermarket Sweep Orders (``ISOs''): Rule 6.94(b)(4) is 
the ISO exemption and implements Sections 5(b)(iv) and (v) of the Plan. 
Section 5(b)(iv) of the Plan permits a Participant to execute orders it 
receives from other Participants or members that are marked as ISO even 
when it is not at the NBBO. Section 5(b)(v) of the Plan allows a 
Participant to execute inbound orders when it is not at the NBBO, 
provided it simultaneously ``sweeps'' all better-priced interest 
displayed by Eligible Exchanges. These provisions are the options 
equivalents of the corresponding Regulation NMS equity rules.\17\
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    \17\ See Regulation NMS Rules 611(b)(5) and (6).
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     Quote Flickering: Rule 6.94(b)(5) implements Section 
5(b)(vi) of the Plan and corresponds to the flickering quote exception 
in Regulation NMS for equity securities.\18\ Options quotations change 
as rapidly, if not more rapidly, than equity quotations. Indeed, they 
track the price of the underlying security and thus change when the 
price of the underlying security changes. This exception provides a 
form of ``safe harbor'' to market participants to allow them to trade 
through prices that have changed within a second of the transaction 
causing a nominal trade-through.
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    \18\ See Regulation NMS Rule 611(b)(8).
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     Non-Firm Quotes: Rule 6.94(b)(6) implements Section 
5(b)(vii) of the Plan and carries forward the current non-firm quote 
trade-through exception in the Old Plan.\19\ By definition, an 
exchange's quotations may not be firm for automatic execution during 
this trading state and thus should not be protected from trade-
throughs. In effect, these quotations are akin to ``manual quotations'' 
under Regulation NMS.
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    \19\ See Old Plan Section 8(c)(iii)(C).
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     Complex Trades: Rule 6.94(b)(7) implements Section 
5(b)(viii) of the Plan and carries forward the current complex trade 
exception in the Old Plan.\20\ Complex trades consist of multiple 
transactions (``legs'') effected at a net price, and it is not 
practical to price each leg at a price that does not constitute a 
trade-through.
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    \20\ See Old Plan Section 8(c)(iii)(G).
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     Customer Stopped Orders: Rule 6.94(b)(8) implements 
Section 5(b)(ix) of the Plan and corresponds to the customer stopped 
order exception in Regulation NMS for equity securities.\21\ It permits 
broker-dealers to execute large orders over time at a price agreed upon 
by a customer, even though the price of the option may change before 
the order is executed in its entirety.
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    \21\ See Regulation NMS Rule 611(b)(9).
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     Stopped Orders and Price Improvement: Rule 6.94(b)(9) 
implements Section 5(b)(x) of the Plan and would apply if an order is 
stopped at price that did not constitute a trade-through at the time of 
the stop. This exception applies to those exchanges that offer a 
``Price Improvement Mechanism'' by which members could seek price 
improvement for that order, even if the market moves in the interim, 
and the transaction ultimately is effected at a price that would trade 
through the then currently-displayed market.\22\ NYSE Arca does not 
currently permit these types of options trades, and any transaction-
type relying on this exemption would require the Exchange to adopt 
implementing rules, subject to Commission review and approval.
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    \22\ See ISE Rule 723.
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     Benchmark Trades: Rule 6.94(b)(10) implements Section 
5(b)(xi) of the Plan and would cover trades executed at a price not 
tied to the price of an option at the time of execution, and for which 
the material terms were not reasonably determinable at the time of the

[[Page 28080]]

commitment to make the trade. An example would be a volume-weighted 
average price trade, or ``VWAP.'' This corresponds to a trade-through 
exemption in Regulation NMS for equity trades.\23\ NYSE Arca does not 
currently permit these types of options trades, and any transaction-
type relying on this exemption would require the Exchange to adopt 
implementing rules, subject to Commission review and approval.
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    \23\ See Regulation NMS Rule 611(b)(7).
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    Rule 6.95--Locked and Crossed Markets. Proposed Rule 6.95 
implements Section 6 of the Plan, which requires Plan participants to 
establish, maintain and enforce rules that: Require their members 
reasonably to avoid displaying locked and crossed markets; are 
reasonably designed to assure reconciliation of locked and crossed 
markets; and prohibit their members from engaging in a pattern or 
practice of displaying locked and crossed markets. Section 6 of the 
Plan further allows an exchange to provide exceptions to these 
limitations as ``contained in the rules of a Participant approved by 
the Commission.''
    Proposed Rule 6.95(a) contains the general prohibition that NYSE 
Arca OTP Holders shall reasonably avoid displaying, and shall not 
engage in a pattern or practice of displaying, any quotations that lock 
or cross the best bid or offer of another exchange. We propose four 
exceptions to this general prohibition.\24\
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    \24\ See e-mail from Andrew Stevens, Chief Counsel--U.S. 
Equities & Derivatives, NYSE Euronext, to David Liu, Assistant 
Director, Division of Trading and Markets (``Division''), 
Commission, dated May 29, 2009.
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    The first exception would apply when we are experiencing system 
issues, and is similar to the systems issues exception to the trade-
through rule. The second exception applies when there is a crossed 
market, and also is similar to the corresponding trade-through 
exception. The third exception would apply when an OTP Holder has 
simultaneously routed an ISO to execute against the full displayed size 
of any locked or crossed Protected Bid or Protected Offer. The fourth 
proposed exception applies to locked markets in the following 
circumstances:
     Neither the locking or locked quote represents, in whole 
or in part, a customer order; or
     A customer enters a bid or offer that locks a non-customer 
quotation on another market, and the customer, on a case-by-case basis, 
authorizes the locking of the other market's quotation.\25\
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    \25\ See id.
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    This fourth exemption recognizes an important distinction between 
the equities and options markets. Options market makers compete for 
order flow by disseminating quotations in multiple series with respect 
to each underlying security, distributing liquidity over a much greater 
universe of products than in the equity markets. As a result, the 
options markets are more reliant on market maker quotations to provide 
liquidity, with fewer customer orders in each series than in each 
underlying security, where liquidity is concentrated in one 
product.\26\
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    \26\ See id.
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    With market makers on multiple exchanges constantly updating their 
quotations in all these series based on mathematical formulae there is 
a greater likelihood of market maker quotations locking. We believe 
that in most cases locked market maker quotations are good for the 
investing public. Effectively locked markets provide a ``zero spread,'' 
allowing market participants to buy and sell an option at the same 
price. On NYSE Arca these quotations are firm, and are fully executable 
on an automated basis.
    We recognize that locked markets are more complicated where one or 
both of the locking quotations represents a customer order. Where there 
is contra-side market interest willing to trade with a customer, the 
customer order should be filled. Thus, we would not exempt from the 
locked market prohibition situations involving customer orders unless 
the customer entering the locking order specifically authorizes the 
lock on a case-by-case basis.\27\
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    \27\ We can envision a customer authorizing a lock when the fees 
associating with trading against the locked market make the 
execution price uneconomical to the customer.
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    The Exchange will not implement this proposed exception to the 
locked market prohibition unless the Exchange can identify that an 
order on another exchange is for the account of a customer. The options 
exchanges currently are working on a method to so identify customer 
quotations through the Options Price Reporting Authority. Absent the 
ability to identify a customer quote as part of an exchange's BBO, NYSE 
Arca will assume that the quote represents, in whole or in part, a 
customer order. That is, NYSE Arca will not permit its members to avail 
themselves of this exemption unless another exchange has informed the 
Exchange that it will designate all customer orders as such at OPRA, 
and such exchange's quotation does not contain such designation. If an 
exchange opts not to identify its customer quotations, the Exchange 
will treat all of that exchange's quotations as customer orders and, 
absent application of another exception, will not permit locks of such 
quotations.
    The Exchange also proposes that the exemption is only operative for 
as long as the Exchange is willing to identify Customer orders in its 
own quote.
    Temporary Rule 6.96--temporary rule governing P and P/A orders. 
When the Plan and implementing rules become operative it is possible 
that not all the options exchanges will be functionally able to operate 
pursuant to the Plan. Thus, in order to ensure there is full 
intermarket trade-through protection during this interim period, we 
propose to retain certain minimum trade-through rules based on the Old 
Plan until all the options exchanges are operating pursuant to the 
Plan. When that occurs we will file a rule change with the Commission 
to delete Temporary Rule 6.96.
    Temporary Rule 6.96 provides that NYSE Arca will continue to accept 
Principal Acting as Agent (``P/A'') and Principal Orders from options 
exchanges which have not fully discontinued use of the OCC managed 
routing hub. The handling of these orders will be subject to Temporary 
Rule 6.96.
    Amendment of other NYSE Arca rules to accommodate the plan. We 
propose to amend four NYSE Arca rules in addition to those described 
above.\28\ First, Rule 6.33, Registration of Market Makers, allows 
certain Market Makers to act in an agency capacity for the purpose of 
sending Principal Acting as Agent (``P/A'') Orders through the Linkage. 
With the termination of the Linkage such provision no longer will be 
necessary and we thus propose to delete this provision.
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    \28\ See e-mail from Andrew Stevens, Chief Counsel--U.S. 
Equities & Derivatives, NYSE Euronext, to David Liu, Assistant 
Director, and Rebekah Liu, Special Counsel, Division, Commission, 
dated June 1, 2009.
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    Second, Rule 6.35, Appointment of Market Makers, Commentaries 
.02-.04 described Intermarket Linkage Market Makers (``IMM'') and 
described when and how IMMs would be appointed, and the procedures that 
governed their appointment. With the termination of the Linkage such 
provisions will no longer be necessary and we thus propose to delete 
them.
    Third, Rule 6.76A, Order Execution--OX, notes that orders routed 
away from the Exchange are subject to the applicable trading rules of 
the relevant Market Center and the relevant Linkage Plan rules. With 
the termination of the

[[Page 28081]]

Linkage, such a reference is no longer necessary and we thus propose to 
delete this reference to the Linkage Plan.\29\
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    \29\ See id.
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    Finally, Rule 10.12, Minor Rule Plan, describes certain violations 
which are part of an expedited disciplinary process, and their 
attendant fines. The exchange proposes to modify those violations which 
are related to the Linkage and make them applicable to the Plan and the 
proposed Rules.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Securities Exchange Act of 1934 (the ``Act''). The basis 
under the Act for this proposed rule change is found in Section 6(b)(5) 
of the Act,\30\ in that the proposed rule change is designed to promote 
just and equitable principles of trade, remove impediments to and 
perfect the mechanisms of a free and open market and a national market 
system and, in general, to protect investors and the public interest. 
In particular, the Exchange believes that adopting rules that implement 
the Plan will facilitate the trading of options in a national market 
system by establishing more efficient protection against trade-throughs 
and locked and crossed markets.
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    \30\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

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

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

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

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

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

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an e-mail to [email protected]. Please include 
File No. SR-NYSEArca-2009-45 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NYSEArca-2009-45. This 
file number should be included on the subject line if e-mail is used. 
To help the Commission process and review your comments more 
efficiently, please use only one method. The Commission will post all 
comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, 
all written statements with respect to the proposed rule change that 
are filed with the Commission, and all written communications relating 
to the proposed rule change between the Commission and any person, 
other than those that may be withheld from the public in accordance 
with the provisions of 5 U.S.C. 552, will be available for inspection 
and copying in the Commission's Public Reference Room, on official 
business days between the hours of 10 a.m. and 3 p.m. Copies of such 
filing also will be available for inspection and copying at the 
principal office of the Exchange. All comments received will be posted 
without change; the Commission does not edit personal identifying 
information from submissions. You should submit only information that 
you wish to make available publicly. All submissions should refer to 
File Number SR-NYSEArca-2009-45 and should be submitted on or before 
July 6, 2009.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\31\
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    \31\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-13811 Filed 6-11-09; 8:45 am]
BILLING CODE 8010-01-P