[Federal Register Volume 74, Number 166 (Friday, August 28, 2009)]
[Notices]
[Pages 44430-44433]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20786]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-60550; File No. SR-Phlx-2009-61]


Self-Regulatory Organizations; NASDAQ OMX PHLX, Inc.; Order 
Granting Accelerated Approval of a Proposed Rule Change To Adopt Rules 
Implementing the Options Order Protection and Locked/Crossed Market 
Plan

August 20, 2009.

I. Introduction

    On July 20, 2009, NASDAQ OMX PHLX, Inc. (``Phlx'' or ``Exchange'') 
filed with the Securities and Exchange Commission (``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 
amend and adopt rules to implement the Options Order Protection and 
Locked/Crossed Market Plan. The proposed rule change was published for 
comment in the Federal Register on July 28, 2009.\3\ The Commission 
received no comments on the proposal. This order approves the proposed 
rule change on an accelerated basis.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 60363 (July 22, 
2009), 74 FR 37270 (``Notice'').
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II. Description of the Proposal

    The Exchange proposes to amend and adopt new Phlx rules to 
implement the Options Order Protection and Locked/Crossed Market Plan 
(``Plan'').\4\ Specifically, the Exchange proposes to replace the 
Exchange's current Intermarket Linkage rules (Phlx Rules 1081 and 1083-
1087) with new rules implementing the Plan, amend other Exchange rules 
to reflect the Plan, and delete or modify provisions rendered 
unnecessary by the Plan.
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    \4\ The Plan is a national market system plan proposed by the 
seven existing options exchanges and approved by the Commission. See 
Securities Exchange Act Release No. 59647 (March 30, 2009), 74 FR 
15010 (April 2, 2009) (File No. 4-546) (``Plan Notice'') and 60405 
(July 30, 2009), 74 FR 39362 (August 6, 2009) (File No. 4-546) 
(``Plan Approval''). The seven options exchanges are: Chicago Board 
Options Exchange, Incorporated (``CBOE''); International Securities 
Exchange LLC (``ISE''); NASDAQ OMX BX, Inc. (``BOX''); The NASDAQ 
Stock Market LLC (``Nasdaq''); NYSE Amex LLC (``NYSE Amex''); NYSE 
Arca, Inc. (``NYSE Arca''); and Phlx (each exchange individually a 
``Participant'' and, together, the ``Participating Options 
Exchanges'').
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The Old Plan

    Each of the Participating Options Exchanges are signatories to the 
Plan for the Purpose of Creating and Operating an Intermarket Option 
Linkage (``Old Plan'').\5\ In pertinent part, the Old Plan generally 
requires its participants to avoid trading at a price inferior to the 
national best bid or offer (``trade-through''), although it provides 
for a number of exceptions to trade-through liability.\6\ The 
Participating Options Exchanges comply with this requirement of the Old 
Plan by utilizing a stand alone system (``Linkage Hub'') to send and 
receive specific order types,\7\ namely Principal Acting as Agent 
Orders (``P/A Orders''), Principal Orders, and Satisfaction Orders.\8\ 
The Old Plan also provided that dissemination of ``locked'' or 
``crossed'' markets should be avoided, and remedial actions that should 
be taken to unlock or uncross such market.\9\ Each of the Participating 
Options Exchanges, including the Exchange, has submitted an amendment 
to the Old Plan to withdraw from such Plan.\10\ The withdrawals will be 
effective upon approval by the Commission of such amendments pursuant 
to Rule 608 of Regulation NMS under the Act (``Regulation NMS'').\11\
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    \5\ On July 28, 2000, the Commission approved the Old Plan as a 
national market system plan for the purpose of creating and 
operating an intermarket options market linkage proposed by the 
American Stock Exchange LLC (n/k/a NYSE Amex), CBOE, and ISE. See 
Securities Exchange Act Release No. 43086 (July 28, 2000), 65 FR 
48023 (August 4, 2000). Subsequently, Philadelphia Stock Exchange, 
Inc. (n/k/a Phlx), Pacific Exchange, Inc. (n/k/a NYSE Arca), Boston 
Stock Exchange, Inc. (n/k/a BOX), and Nasdaq joined the Linkage 
Plan. See Securities Exchange Act Release Nos. 43573 (November 16, 
2000), 65 FR 70851 (November 28, 2000); 43574 (November 16, 2000), 
65 FR 70850 (November 28, 2000); 49198 (February 5, 2004), 69 FR 
7029 (February 12, 2004); and 57545 (March 21, 2008), 73 FR 16394 
(March 27, 2008).
    \6\ Section 8(c) of the Old Plan.
    \7\ The Linkage Hub is a centralized data communications network 
that electronically links the Participating Options Exchanges to one 
another. The Options Clearing Corporation (``OCC'') operates the 
Linkage Hub.
    \8\ Section 2(16) of the Old Plan.
    \9\ Section 7(a)(i)(C) of the Old Plan.
    \10\ See Securities Exchange Act Release No. 60360 (July 21, 
2009) 74 FR 37265 (July 28, 2009) (File No. 4-429).
    \11\ 17 CFR 242.608.
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The Plan

    The Plan does not require a central linkage mechanism akin to the 
Old Plan's Linkage Hub. Instead, the Plan includes the framework for 
routing orders via private linkages that exist for NMS stocks under 
Regulation NMS.\12\ The Plan requires the Participating Options 
Exchanges to adopt rules

[[Page 44431]]

``reasonably designed to prevent Trade-Throughs.'' \13\ Participating 
Options Exchanges are also required to conduct surveillance of their 
respective markets on a regular basis to ascertain the effectiveness of 
the policies and procedures to prevent Trade-Throughs and to take 
prompt action to remedy deficiencies in such policies and 
procedures.\14\ As further described below, the Plan incorporates a 
number of exceptions to trade-through liability.\15\
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    \12\ See Securities Exchange Act Release No. 51808 (June 9, 
2005), 70 FR 37496 (June 29, 2005) (File No. S7-10-04); 17 CFR 
242.600 et seq. For discussions of the similarities between the 
provisions of Regulation NMS and the provisions in the Plan, see 
Plan Notice and Plan Approval, supra note 4.
    \13\ Under the Plan, a ``Trade-Through'' is generally defined as 
a transaction in an option series, either as principal or agent, at 
a price that is lower than a Protected Bid or higher than a 
Protected Offer.'' See Section 2(21) of the Plan. A ``Protected 
Bid'' and ``Protected Offer'' generally means a bid or offer in an 
option series, respectively, that is displayed by a Participant, is 
disseminated pursuant to the Options Price Reporting Authority 
(``OPRA'') Plan, and is the Best Bid or Best Offer. See Section 
2(17) of the Plan. A ``Best Bid'' or ``Best Offer'' means the 
highest bid price and the lowest offer price. Section (2)(1) of the 
Plan. ``Protected Bid'' and ``Protected Offer,'' together are 
referred to herein as ``Protected Quotation.'' See Section 2(18) of 
the Plan.
    \14\ Section 5(a)(ii) of the Plan.
    \15\ Section 5(b) of the Plan.
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    Some of these exceptions are carried over from the Old Plan, 
including exceptions for trading rotations, non-firm quotes, and 
complex trades.\16\ Others are substantially similar to exceptions 
available for NMS stocks under Regulation NMS, such as exceptions for 
systems issues, crossed markets, quote flickering, customer stopped 
orders, benchmark trades and, notably, intermarket sweep orders 
(``ISOs'').\17\ In addition, the Plan contains a new exception for 
stopped orders and price improvement.\18\
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    \16\ Subparagraphs (ii), (vii), and (viii), respectively, of 
Section 5(b) of the Plan.
    \17\ Subparagraphs (i), (iii), (vi), (ix), (xi), and (iv)-(v), 
respectively, of Section 5(b) of the Plan.
    \18\ Subparagraph (x) of Section 5(b) of the Plan.
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    The Plan also requires each Participant to establish, maintain, and 
enforce written rules that: require its members reasonably to avoid 
displaying locked and crossed markets; assure the reconciliation of 
locked and crossed markets; and prohibit its members from engaging in a 
pattern or practice of displaying locked and crossed markets; subject 
to exceptions as may be contained in the rules of the Participant, as 
approved by the Commission.\19\
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    \19\ Section 6 of the Plan. The Plan also contains provisions 
relating to the operation of the Plan including, for example, 
provisions relating to the entry of new parties to the Plan; 
withdrawal from the Plan; and amendments to the Plan.
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The Exchange's Proposal

    To implement the Plan, the Exchange proposes to replace its current 
rules relating to the Old Plan with new rules relating to the Plan, and 
make additional changes to other rules, including changes to conform 
the Exchange's rules to the requirements of the Plan.\20\ As such, the 
Exchange proposes to adopt all applicable definitions from the Plan 
into the Exchange's rules.\21\
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    \20\ A more detailed description of the Exchange's proposed rule 
change may be found in the Notice, supra, note 3.
    \21\ Proposed Phlx Rule 1083.
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    In addition, the Exchange proposes to prohibit its members from 
effecting Trade-Throughs, unless an exception applies.\22\ Consistent 
with the Plan, the Exchange also proposes exceptions to the prohibition 
on trade throughs relating to: System issues; trading rotations; 
crossed markets; intermarket sweep orders; quote flickering; non-firm 
quotes; complex trades; customer stopped orders; stopped orders and 
price improvement; and benchmark trades.\23\
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    \22\ Proposed Phlx Rule 1084(a).
    \23\ Proposed Phlx Rule 1084(b)(i)-(xi). In addition, the 
Exchange proposes to add ISOs as a new type of order under proposed 
Phlx Rule 1066(i).
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    The Exchange also proposes a rule to address locked and crossed 
markets, as required by the Plan.\24\ Specifically, the Exchange 
proposes that, except for quotations that fall within a stated 
exception, members shall reasonably avoid displaying, and shall not 
engage in a pattern or practice of displaying, any quotations that lock 
or cross a Protected Quote.\25\
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    \24\ A ``locked market'' is defined as a quoted market in which 
a Protected Bid is equal to a Protected Offer. Proposed Phlx Rule 
1083(i). A ``crossed market'' is defined as a quoted market in which 
a Protected Bid is higher than a Protected Offer. Proposed Phlx Rule 
1083(e).
    \25\ Proposed Phlx Rule 1086(a).
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    The Exchange proposes three exceptions to the prohibition against 
locked and crossed markets: When the Exchange is experiencing a 
failure, material delay, or malfunction of its systems or equipment; 
when the locking or crossing quotation was displayed at a time where 
there is a crossed market; and when an Exchange member simultaneously 
routes an ISO to execute against the full displayed size of any locked 
or crossed Protected Bid or Protected Offer.\26\
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    \26\ Proposed Phlx Rule 1086(b).
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    The Exchange also proposes rules to permit the Exchange to continue 
to accept P/A Orders and Principal Orders from Participating Options 
Exchanges that are not able to send ISOs in order to avoid Trade-
Throughs.\27\
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    \27\ Proposed Phlx Temporary Rule 1088.
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    The Exchange proposes to rely upon the order routing arrangements 
already in place on its market, except that the Exchange proposes 
amendments to Rules 1080(m)(iv)(B) and (C) concerning FIND \28\ and 
SRCH \29\ Orders to ensure that these order types comply with 
requirements of the Plan.\30\ The Exchange also proposes to amend its 
rules concerning orders that have been subject to its Quote Exhaust and 
Market Exhaust processes to conform their use to the terms of the 
Plan.\31\ Finally, the Exchange proposes to delete various other 
provisions of the Phlx rules to reflect the Exchange's withdrawal from 
the Old Plan, and to amend other provisions of Phlx rules to, among 
other things, reflect the Plan.\32\
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    \28\ A FIND order is an order that is routable upon receipt, or 
any time the option goes through an opening process. See Phlx Rule 
1080(m)(iv)(B).
    \29\ A SRCH order is an order that is routable at any time. See 
Phlx Rule 1080(m)(iv)(C).
    \30\ See Notice, supra note 3 at 37272 for a complete 
description of these changes.
    \31\ See Notice, supra note 3 at 37272-37273 for a complete 
description of these changes.
    \32\ See Notice, supra note 3 at 37273-37274 discussing proposed 
changes to Phlx By-Law Article XII, Section 12-11; Phlx Rule 
1017(k); Phlx Rule 1033(a)(ii) and Options Floor Procedure Advice F-
32; Phlx Rule 1034(a)(i)(C); Phlx Rule 1080(b)(i)(A), (B) and (C); 
Phlx Rule 1080(c)(iv)(F); and Phlx Rule 1080(c)(vi).
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    The Exchange proposes to implement this proposed rule change upon 
withdrawal from the current Linkage Plan and effectiveness of the new 
Plan.

III. Commission's Findings and Order Granting Accelerated Approval of 
the Proposed Rule Change

    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.\33\ In particular, the Commission finds that the 
proposal is consistent with Section 6(b)(5) of the Act \34\ which 
requires, among other things, that the rules of a national securities 
exchange be 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 Rule 608(c) of Regulation NMS under the 
Act, which requires that each exchange comply with the terms of any 
effective national market system plan of which it is a participant.\35\ 
Finally, the

[[Page 44432]]

Commission finds that the proposed rule change is consistent with the 
requirements of the Plan.\36\
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    \33\ In approving this proposed rule change, the Commission has 
considered the proposed rule's impact on efficiency, competition, 
and capital formation. See 15 U.S.C. 78c(f).
    \34\ 15 U.S.C. 78f(b)(5).
    \35\ 17 CFR 242.608(c). Section 1 of the Plan provides in 
pertinent part that, ``The Participants will submit to the 
[Commission] for approval their respective rules that will implement 
the framework of the Plan.''
    \36\ See supra note 5.
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    Proposed Phlx Rule 1083 would define applicable terms in a manner 
that are substantively identical to the defined terms of the Plan. As 
such, the Commission finds that proposed Phlx Rule 1083 is consistent 
with the Act and the Plan.
    Proposed Phlx Rule 1084(a) would prohibit members from effecting 
Trade-Throughs unless an exception applies. Proposed Phlx Rule 1084(b) 
would provide for eleven exceptions to the general Trade-Through 
prohibition, relating to systems issues, trading rotations, crossed 
markets, ISOs, quote flickering, non-firm quotes, complex trades, 
customer stopped orders, stopped orders and price improvement, and 
benchmark trades.\37\ Aside from the proposed exception relating to 
systems issues, each proposed exception would be substantively 
identical to the parallel exception under Section 5(b) of the Plan.
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    \37\ Proposed Phlx Rule 1084(b)(i)-(xi).
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    The systems issues exception under proposed Phlx Rule 1084(b)(i) 
would implement the parallel exception available under Section 5(b)(i) 
of the Plan and would permit the Exchange to bypass the Protected 
Quotation of another Participant if such other Participant repeatedly 
fails to respond within one second to incoming orders attempting to 
access its Protected Quotations. The Exchange's rule would require the 
Exchange to notify such non-responding Participant immediately after 
(or at the same time as) electing self-help, and assess whether the 
cause of the problem lies with the Exchange's own systems and, if so, 
take immediate steps to resolve the problem. Finally, the Exchange 
would be required to promptly document its reasons supporting any such 
determination to bypass a Protected Quotation. The Commission believes 
that this exception should provide the Exchange with the necessary 
flexibility for dealing with problems that occur on an away market 
during the trading day. At the same time, the exception's requirements 
to immediately notify such away market of its determination and also 
assess its own system should help prevent the use of this exception 
when there in fact is a problem with the Exchange's own systems, rather 
than those of an away market.
    The Commission notes that included among the exceptions in proposed 
Phlx Rule 1084(b) would be exceptions for certain transactions 
involving ISOs.\38\ An order identified as an ISO would be immediately 
executable by the Exchange (or any other Plan Participant that received 
such an order) based on the premise that the market participant sending 
the ISO has already attempted to access all better-priced Protected 
Quotations up to their displayed size. The Commission believes that 
this exception should help ensure more efficient and faster executions 
in the options markets.
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    \38\ Proposed Phlx Rule 1084(b)(iv) and (v).
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    The Commission notes that, in addition to these rules regarding 
Trade-Throughs, the Plan requires that each Participant establish, 
maintain and enforce written policies and procedures that are 
reasonably designed to prevent Trade-Throughs in that Participant's 
market that do not fall within an applicable exception and, if relying 
on such exception, that are reasonably designed to assure compliance 
with the terms of the exception. In addition, the Commission notes that 
the Plan requires each Participant to conduct surveillance of its 
market on a regular basis to ascertain the effectiveness of such 
policies and procedures and to take prompt action to remedy any 
deficiencies in such policies and procedures.
    Accordingly, the Commission finds that proposed Phlx Rule 1084 is 
consistent with Section 5 of the Plan and Section 6(b)(5) of the Act 
\39\ which requires, among other things, that the rules of a national 
securities exchange be 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.
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    \39\ 15 U.S.C. 78f(b)(5).
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    Proposed Phlx Rule 1086(a) would require Exchange members to 
reasonably avoid displaying, and not engage in a pattern or practice of 
displaying, any quotation that locks or crosses a Protected Quotation, 
subject to certain exceptions delineated in proposed Phlx Rule 1086(b). 
The Commission recognizes that locked and crossed markets may occur 
accidentally and cannot always be avoided. However, the Commission 
believes that giving priority to the first-displayed Protected Bid or 
Protected Offer, particularly when it includes a public customer's 
order, will encourage price discovery and contribute to fair and 
orderly markets. Therefore, the Commission believes that the proposed 
rule, which corresponds to the Plan's language, to require members to 
reasonably avoid displaying, and not engaging in a pattern or practice 
of, locks and crosses is appropriate.
    Proposed Phlx Rule 1085(b) would permit three exceptions to the 
Exchange's general rule relating to locked and crossed markets.\40\ 
These exceptions would be similar to analogous certain trade-through 
exceptions under proposed Phlx Rule 1084(b), and relate to when the 
Exchange is experiencing systems issues, when there is exists a crossed 
market, and when a member simultaneously routes ISOs against the full 
displayed size of any locked or crossed Protected Bid or Protected 
Offer.
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    \40\ Section 6 of the Plan permits exceptions to the Plan's 
locked and crossed market rules as may be contained in the rules of 
a Participant approved by the Commission.
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    The Commission believes that the Exchange's proposed rules relating 
to locked and crossed markets are consistent with the Plan and the Act 
and should help ensure that the display of locked or crossed markets 
will be limited and that any such display will be promptly reconciled. 
The Commission also believes that each of the proposed exceptions to 
locked and crossed markets relate to circumstances when it is 
appropriate to permit a limited, narrow exception to the general locked 
and crossed market rule.
    Therefore, the Commission finds that Exchange's rule regarding 
locked and crossed markets appropriately implements Section 6 of the 
Plan, and is consistent with Section 6(b)(5) of the Act \41\ which 
requires, among other things, that the rules of a national securities 
exchange be 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.
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    \41\ 15 U.S.C. 78f(b)(5).
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    The Commission also finds that proposed Phlx Temporary Rule 1088, 
which facilitates the participation of certain Participating Options 
Exchanges who may require the use of P/A Orders and Principal Orders 
after implementation of the Plan, is consistent with the Act. Although 
the Commission has already approved the Plan,\42\ the Commission also 
recognizes that there may be one or more Participating Options 
Exchanges that may require a temporary transition period during which 
they may want to continue to utilize these order types that

[[Page 44433]]

exist currently under the Old Plan.\43\ The Exchange and each of the 
other Participating Options Exchanges have proposed substantially 
identical temporary provisions to accommodate this possibility.\44\ 
Thus, the Commission finds that the proposed rule relating to the 
Exchange's receipt and handling of P/A Orders and Principal Orders, and 
imposing certain obligations on the Exchange with respect to such 
orders that are similar to those that exist under the Old Plan, is 
appropriate and consistent with Section 6(b)(5) of the Act \45\ which 
requires, among other things, that the rules of a national securities 
exchange be 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.
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    \42\ See Plan Approval, supra, note 5.
    \43\ The Commission notes that any Participating Options 
Exchange that wishes to utilize such order types in a manner that 
would result in a Trade-Through would need to separately request an 
exemption from the Plan for such use.
    \44\ The Commission notes that the rules contained in Proposed 
Phlx Temporary Rule 1088 are not required by the Plan, but rather 
are rules proposed by the Exchange in order to facilitate the 
participation in the Plan of certain exchanges during an initial 
transition period.
    \45\ 15 U.S.C. 78f(b)(5).
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    The Commission finds that Phlx's proposed amendments to its rules 
concerning FIND and SRCH orders, as well as the changes proposed to the 
Quote Exhaust and Market Exhaust processes, are consistent with the Act 
and the Plan. These changes should help ensure that the order types and 
order handling processes will operate in accordance with the principles 
and provisions of the Plan. The Commission also finds that that Phlx's 
proposals to amend provisions of other Phlx rules to, among other 
things, reflect the termination of the Old Plan and implement the Plan 
are appropriate and consistent with the Act.
    In addition, the Commission finds good cause, pursuant to Section 
19(b)(2) of the Act \46\ for approving the proposed rule change prior 
to the thirtieth day after the date of publication in the Federal 
Register. The Commission believes that granting accelerated approval to 
the proposed rule change will give Phlx members certainty with regard 
to the rules under which they will be expected to operate under prior 
to the date of implementation of these rules and the Plan, which the 
Exchange anticipates for August 31, 2009. The Commission notes that the 
proposed rule change has been subject to a full comment period and no 
comments have been received. Accordingly, the Commission finds there is 
good cause, consistent with Section 6(b)(5) of the Act \47\ to approve 
the Exchange's proposed rule change on an accelerated basis.
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    \46\ 15 U.S.C. 78s(b)(2).
    \47\ 15 U.S.C. 78f(b)(5).
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IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\48\ that the proposed rule change (SR-Phlx-2009-61), be, and it 
hereby is, approved on an accelerated basis.
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    \48\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\49\
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    \49\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-20786 Filed 8-27-09; 8:45 am]
BILLING CODE 8010-01-P