[Federal Register Volume 74, Number 166 (Friday, August 28, 2009)]
[Notices]
[Pages 44412-44414]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20784]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-60547; File No. SR-Phlx-2009-70]
Self-Regulatory Organizations; NASDAQ OMX PHLX, Inc.; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change To Eliminate
Late Charges and Provide for Suspension or Termination for Failure To
Pay Dues, Fees, or Assessments Owed
August 20, 2009.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on August 12, 2009, NASDAQ OMX PHLX, Inc. (``Phlx'' 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
NASDAQ OMX PHLX, Inc., pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934 (``Act'') \3\ and Rule 19b-4
thereunder,\4\ proposes to amend Exchange By-Law 14-1 to eliminate the
reference to late charges for failure to pay any fees, dues or charges
owed to the Exchange. The Exchange also proposes to amend Exchange By-
Law 14-5 to dispose of the foreign currency options participation of a
member, member organization, participant or participant organization if
monies due
[[Page 44413]]
and owed are not paid within 90 days. Additionally, the Exchange
proposes to amend Exchange Rule 50 to eliminate the assessment of late
charges for dues, fees and other charges not made to the Exchange as
required and provide for suspension or termination of membership of any
member or member organization or any person associating with any member
that fails to pay, after written notice, any required dues, fees or
other charges or fails to submit a required report or information
related to the required dues, fees or other charges. The Exchange also
proposes to amend Exchange Rule 960.6 to extend the requirement that
the respondents may file a written reply to a summary decision within
21 days instead of 15 days.
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\3\ 15 U.S.C. 78s(b)(1).
\4\ 17 CFR 240.19b-4.
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The text of the proposed rule change is available on the Exchange's
Web site at http://nasdaqomxphlx.cchwallstreet.com/NASDAQOMXPHLX/Filings/.
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant aspects of such
statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
1. Purpose
Generally the Exchange proposes to amend its rules relating to the
failure to pay dues, fees and other charges to harmonize the Exchange
rules with Equity Rule 9553 of The NASDAQ Stock Market LLC
(``NASDAQ''). To effectuate the proposal, a series of minor amendments
are introduced. More specifically, the Exchange proposes to amend
Exchange By-Law 14-1 to eliminate the reference to late charges for
failure to pay any fees, dues or charges owed to the Exchange. The
Exchange is proposing to no longer charge a late charge for the failure
to pay any fees, dues or charges owed to the Exchange.
The Exchange also proposes to amend Exchange By-Law 14-5 to change
the length of time allowed to dispose the foreign currency options
participation of a member, member organization, participant or
participant organization if monies due and owing are not paid. More
specifically the proposed amendment will change the termination of a
foreign currency options participation of a member, member
organization, participant or participant organization if monies due and
owing are not paid from within one year to within 90 days to comport
with more efficient processing of regular membership or participation.
Additionally, the Exchange proposes to amend Exchange Rule 50 to
eliminate the assessment of late charges for dues, fees and other
charges not made to the Exchange as required. Instead, the proposal
provides for suspension of membership of any member or member
organization or suspension of any person associating with any member or
member organization that fails to pay, within 21 days of service of
written notice of suspension, any required dues, fees or other charges.
The proposal also provides for termination of membership of any member
or member organization or termination of any person associating with
any member or member organization that fails to pay, within 21 days of
service of written notice of termination, any required dues, fees or
other charges. Certain Exchange dues, fees or other charges are based
upon self-reported information.\5\ For this reason, the proposal also
provides suspension of membership of any member or member organization
or suspension of any person associating with any member or member
organization that fails to submit the required report or information
related to the dues, fees or other charges within 21 days of service of
written notice of suspension. Similarly, the proposal also provides for
termination of membership of any member or member organization or
termination of any person associating with any member or member
organization that fails to submit any report or information related to
the dues, fees or other charges within 21 days of service of written
notice of termination. The proposed changes will result in a more
efficient systematic process of the collection of fees, dues and other
charges owed the Exchange and comports with NASDAQ Equity Rule 9553.
The proposed changes also provide guidance regarding service of notice
of suspension or termination; contents of the notice; effective date of
suspension or termination; request for hearing; the failure to request
a hearing; and a request for termination of the suspension.
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\5\ For a list of fees, see the NASDAQ OMX PHLX Fee Schedule at
http://www.nasdaqtrader.com/Micro.aspx?id=phlx, Equity Options
Customer Fees, NASDAQ OMX PHLX Fee Schedule. Also see NASDAQ OMX
PHLX Rules 703(e), Due Dates, Fees for Late Filing, and 712,
Independent Audit.
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The Exchange also proposes to amend Exchange Rule 960.6 to change
the requirement that the respondents may file a written reply to a
summary decision within 21 days of service of written notice instead of
15. This proposal is similar to the requirements of the NASDAQ Equity
Rule 9553(f).
2. Statutory Basis
The Exchange believes that its proposal to amend By-Laws 14-1 and
14-5 and to eliminate Rule 50 and amend Rule 960.6 is consistent with
Section 6(b) of the Act \6\ in general, and furthers the objectives of
Section 6(b)(7) of the Act \7\ in particular in that the proposed
amendments provide a fair procedure for the disciplining of members and
persons associated with members and the prohibition or limitation by
the Exchange of any person with respect to access to services offered
by the Exchange of a member, member organization, participant or
participant organization thereof. The Exchange believes that the
proposal is consistent with these obligations in that the amendments
provide that members, member organizations, participants, participant
organizations or persons associated with such may be suspended or
terminated, after written notice, for the failure to pay dues, fees and
other charges owed to the Exchange. The Exchange believes that
eliminating references to charges for the failure to pay fees, dues and
other charges owed the Exchange and to provide for a systematic process
to suspend or terminate members or persons associated with members
provides for a fair and efficient process for handling the collection
of dues, fees and other charges owed to the Exchange. The Exchange's
proposal is similar to that of the NASDAQ Stock Market LLC.
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\6\ 15 U.S.C. 78f(b).
\7\ 15 U.S.C. 78f(b)(7).
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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 not necessary or appropriate in
furtherance of the purposes of the Act.
[[Page 44414]]
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.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Because the foregoing proposed rule change does not: (i)
Significantly affect the protection of investors or the public
interest; (ii) impose any significant burden on competition; and (iii)
becomes operative for 30 days from the date on which it was filed, or
such shorter time as the Commission may designate, it has become
effective pursuant to Section 19(b)(3)(A) of the Act \8\ and Rule 19b-
4(f)(6) thereunder.\9\
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\8\ 15 U.S.C. 78s(b)(3)(A).
\9\ 17 CFR 240.19b-4(f)(6).
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At any time within 60 days of the filing of the proposed rule
change, the Commission may summarily abrogate such rule change if it
appears to the Commission that such action is necessary or appropriate
in the public interest, for the protection of investors, or otherwise
in furtherance of the purposes of the Act.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
Send an e-mail to [email protected]. Please include
File Number SR-Phlx-2009-70 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-Phlx-2009-70. This file
number should be included on the subject line if e-mail is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for inspection and
copying in the Commission's Public Reference Room, 100 F Street, NE.,
Washington, DC 20549, on official business days between the hours of 10
a.m. and 3 p.m. Copies of such filing also will be available for
inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make publicly available. All
submissions should refer to File Number SR-Phlx-2009-70 and should be
submitted on or before September 18, 2009.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\10\
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\10\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-20784 Filed 8-27-09; 8:45 am]
BILLING CODE 8010-01-P