[Federal Register Volume 75, Number 48 (Friday, March 12, 2010)]
[Notices]
[Pages 11967-11970]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-5317]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-61665; File No. SR-Phlx-2010-25]


Self-Regulatory Organizations; NASDAQ OMX PHLX, Inc.; Notice of 
Filing and Immediate Effectiveness of Proposed Rule Change, as Modified 
by Amendment No. 2, Relating to Reestablishing Certain Fees

March 5, 2010.
    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 February 22, 2010, NASDAQ OMX PHLX, Inc. (``Phlx'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``SEC'' or ``Commission'') the proposed rule change as described in 
Items I, II, and III, below, which Items have been prepared by the 
Exchange. On March 3, 2010, the Exchange filed Amendment No. 1 to the 
proposed rule change, and on March 4, 2010, the Exchange withdrew 
Amendment No. 1 to the proposed rule change. On March 4, 2010, the 
Exchange filed Amendment No. 2 to the proposed rule change.\3\ The 
Commission is publishing this notice to solicit comments on the 
proposed rule change, as modified by Amendment No. 2, from interested 
persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ Amendment No. 2 updates the text of the proposed fee 
schedule to indicate certain text from a separate prior filing that 
was abrogated. See Securities Exchange Act Release No. 61547 
(February 19, 2010), 75 FR 8762 (February 25, 2010) (concerning SR-
Phlx-2009-104).
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to: (i) Decrease options transaction charges 
for ROTs to $.21 per contract; (ii) eliminate the $.05 per contract fee 
for Standard and Poor's Depositary Receipts/SPDRs (``SPY'') \4\ equity 
options that are directed to specialists, Streaming Quote Traders 
(``SQTs'') \5\ and Remote Streaming Quote Traders (``RSQTs'') \6\ by a 
member or member organization and are executed electronically as well 
and the Directed Specialists, SQTs and RSQTs charge of $0.01 per 
contract fee for Complex Orders in equity options that are directed to 
them by an Order Flow Provider and executed electronically; (iii) 
eliminate the monthly 4.5 million contracts (the ``Volume Threshold'') 
for ROTs and specialists; (iv) establish a $750,000 monthly cap on 
equity options transactions executed by ROTs or specialists (``Monthly 
Cap''); (v) increase the Firm equity option transaction charge from 
$.24 to $.25 and increase the Firm Related Equity Option Cap from 
$75,000 to $85,000; (vi) increase Index Options transaction charges 
from $.24 to $.30; (vii) eliminate the SQT and RSQT permit credits; 
(viii) eliminate the permit fee structure and instead implement a 
$1,000 permit fee, regardless of classification; (ix) eliminate the 
Other Permit Holders fee category; (x) increase the Trading Floor 
Personnel Registration Fee from $50 to $100; (xi) increase the Order 
Entry Port from $250 to $500 and only charge per mnemonic instead of 
per mnemonic per port; (xii) amend the SQF Port Fee to assess a $500 
per month per SQF port in lieu of the existing structure of $250 for 
the first five ports and $1000 for additional port thereafter and also 
rename the SQF Port Fee as the ``Active SQF Port Fee''; (xiii) 
eliminate the $0.02 per contract SQF Port Fee credit; (xiv) eliminate 
references to Pilot FCOs; and (xv) eliminate and amend corresponding 
endnotes related to amendments indicated herein and make other 
clarifying amendments.
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    \4\ SPY options are based on the SPDR exchange-traded fund 
(``ETF''), which is designed to track the performance of the S&P 500 
Index.
    \5\ An SQT is an Exchange Registered Options Trader (``ROT'') 
who has received permission from the Exchange to generate and submit 
option quotations electronically through an electronic interface 
with AUTOM via an Exchange approved proprietary electronic quoting 
device in eligible options to which such SQT is assigned. See 
Exchange Rule 1014(b)(ii)(A).
    \6\ An RSQT is an ROT that is a member or member organization 
with no physical trading floor presence who has received permission 
from the Exchange to generate and submit option quotations 
electronically through AUTOM in eligible options to which such RSQT 
has been assigned. An RSQT may only submit such quotations 
electronically from off the floor of the Exchange. See Exchange Rule 
1014(b)(ii)(B).
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    The Exchange previously filed a proposed rule change that contained 
most of the fees mentioned herein.\7\ This proposed rule change, SR-
Phlx-2009-104, was subsequently abrogated by the Commission on February 
19, 2010.\8\ With respect to SR-Phlx-2009-104, the following fee was at 
issue and is abrogated pursuant to the Abrogation Order: a $.05 per 
contract fee for equity options that are directed to specialists, $.05 
per contract fee for SPY equity options that are directed to 
specialists, SQTs, and RSQTs by a member or member organization and are 
executed electronically. The purpose of this filing

[[Page 11968]]

is to reestablish the remainder of the fees contained in SR-Phlx-2009-
104.
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    \7\ See Securities Exchange Act Release No. 61337 (January 12, 
2010), 75 FR 2905 (January 19, 2010) (SR-Phlx-2009-104).
    \8\ See Securities Exchange Release No. 61547 (February 19, 
2010) (``Abrogation Order'').
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    The text of the proposed rule change is available on the Exchange's 
Web site at http://nasdaqtrader.com/micro.aspx?id=PHLXfilings, at the 
principal office of the Exchange, 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 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
    The purpose of the proposed rule change is to update the Exchange's 
fee schedules by adopting new fees, amending existing fees and deleting 
fees and text that are no longer deemed necessary. The Exchange 
previously filed a proposed rule change that contained most of the fees 
mentioned herein.\9\ This proposed rule change, SR-Phlx-2009-104, was 
subsequently abrogated by the Commission on February 19, 2010.\10\ With 
respect to SR-Phlx-2009-104, the following fee was at issue and is 
abrogated pursuant to the Abrogation Order: A $.05 per contract fee for 
equity options that are directed to specialists, $.05 per contract fee 
for SPY equity options that are directed to specialists, SQTs, and 
RSQTs by a member or member organization and are executed 
electronically. The purpose of this filing is to reestablish the 
remainder of the fees contained in SR-Phlx-2009-104.
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    \9\ See Securities Exchange Act Release No. 61337 (January 12, 
2010), 75 FR 2905 (January 19, 2010) (SR-Phlx-2009-104).
    \10\ See Securities Exchange Release No. 61547 (February 19, 
2010) (``Abrogation Order'').
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Equity Options, Sector Index Options Fees and U.S. Dollar-Settled 
Foreign Currency Option Fees
    The Exchange proposes to amend the options transaction charge of 
$.22 for ROTs and decrease that fee to $.21 per contract side, similar 
to the rate charged to specialists. Also, the Exchange proposes to 
eliminate a $.05 per contract fee for SPY equity options and the 
similar charge of $0.01 per contract fee for Complex Orders in equity 
options that are directed to specialists, SQTs and RSQTs by a member or 
member organization and are executed electronically in lieu of the 
existing Registered Options Trader (on-floor) and specialist equity 
options transaction fees.\11\ With the elimination of this fee, 
specialists, SQTs and RSQTs that receive directed orders in SPY equity 
options will instead be assessed the above referenced $.21 per contract 
side for ROTs and specialists. The Exchange believes the $.05 per 
contract fee for SPY equity options that are directed to specialists, 
SQTs and RSQTs by a member or member organization and are executed 
electronically is no longer necessary to remain competitive for SPY 
options order flow.
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    \11\ See Securities and Exchange Release Act No. 60587 (August 
28, 2009), 74 FR 46290 (September 8, 2009) (SR-Phlx-2009-73).
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    The Exchange provides a discount for ROTs (on-floor) and 
specialists that exceed 4.5 million contracts in a given month (the 
``Volume Threshold'') by assessing $ 0.01 per contract on contract 
volume above the Volume Threshold instead of the applicable options 
transaction charges. The Exchange proposes to eliminate the Volume 
Threshold and instead establish a monthly cap for ROTs and specialists 
of $750,000.\12\ The Exchange believes that by eliminating the 4.5 
million contracts Volume Threshold and instead proposing a Monthly Cap, 
a greater number of members will benefit from the Monthly Cap.
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    \12\ The Exchange previously amended the Monthly Cap to $750,000 
and also amended the calculation of the Monthly Cap by aggregating 
the trading activity of separate ROTs and specialist member 
organizations if there is at least 75% common ownership between the 
member organizations as reflected on each member organizations' Form 
BD, Schedule A as of February 1, 2010. See Securities and Exchange 
Release No. 61558 (February 22, 2010) (SR-Phlx-2010-16).
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    The Exchange also proposes to increase the Firm equity options 
transaction charge from $.24 to $.25 and increase the Firm Related 
Equity Option Cap from $75,000 to $85,000. Additionally, the Exchange 
proposes to increase the Sector Index Options Fees for ROTs, 
specialists and Firm from $.24 to $.30. The Exchange believes that 
these increases will be offset by other fee amendments that are 
proposed herein.
    In connection with these above-referenced proposals the Exchange 
proposes to delete endnotes A, B, D and 1 and amend endnote 5 in 
connection with the proposed amendments specified herein. Endnotes A, 
B, D and 1 are no longer necessary in light of the proposed amendments 
herein. Endnote 5 is being amended to correspond with the proposed 
amendments. The Exchange proposes to delete endnote 5 from the Sector 
Index Options Fees, specifically the Firm Proprietary fee, as that 
reference was inadvertently not removed at the time the Exchange filed 
a proposed rule change eliminating the options transaction charge 
associated with the sector index options in the $75,000 Firm-Related 
Equity Option and Index Option Cap calculation.\13\ Also, the Exchange 
proposes to delete endnote 5 from the U.S. Dollar-Settled Foreign 
Currency Options Fees, specifically, the Firm Proprietary fee, as that 
reference was inadvertently not removed at the time the Exchange filed 
a proposed rule change redefining the firm proprietary order to exclude 
U.S. Dollar-Settled Foreign Currency Option Fees from the Firm-Related 
Cap.\14\
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    \13\ See Securities Exchange Act Release No. 59545 (March 9, 
2009), 74 FR 11158 (March 16, 2009) (SR-Phlx-2009-20).
    \14\ See Securities Exchange Act Release No. 59393 (February 11, 
2009), 74 FR 7721 (February 19, 2009) (SR-Phlx-2009-12).
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Permit Fees and Credits
    The Exchange proposes to eliminate the permit credit associated 
with SQT and RSQT fees. A member organization is eligible to receive a 
monthly credit against the SQT fee for the number of actual permits 
issued to the member organization that are utilized by the SQT. 
Similarly, the RSQT member organizations' fees are subject to credits 
based on the number of permits applicable to such member organization, 
subject to the maximum allowable permit credit applicable to each RQST 
category. The Exchange is proposing to eliminate these credits. In 
connection with eliminating these credits the Exchange proposes to 
amend endnote 35 and eliminate endnote 40 to reflect the elimination of 
the credits. This proposal to eliminate the credit is consistent with 
the Exchange's proposal to eliminate the existing permit fee structure 
wherein permit holders are categorized differently and assessed 
differently based on type of permit holder and number of permits held 
and instead propose one permit fee of $1,000 for all permit holders. 
The Exchange would therefore propose removing all other categories and 
the tiered structure associated with the number of permits held and 
instead assess only one fee per permit holder. The Exchange believes 
that while some members may be

[[Page 11969]]

assessed a higher fee, for example an Order Flow Provider will now be 
assessed $1,000 as opposed to $500, and others will be assessed a lower 
fee, Floor Brokers, Specialists, ROTs, Off-Floor Traders or Market 
Makers will be assessed $1,000 instead of $1,200 for the first permit 
and $1,000 thereafter, overall members will be assessed equally for a 
permit and no distinction will be made by category or number of 
permits. The Exchange believes that this fee structure is more 
equitable and therefore the credit associated with SQT and RSQTs is no 
longer required. The Exchange believes that this proposal to institute 
a single permit fee is simpler and treats all members alike, regardless 
of classification.
    Additionally, the Exchange proposes to eliminate the ``Other Permit 
Holder'' category. The Other Permit Holder category was adopted for 
billing purposes to address the limited situation where permit holders 
did not fall under one of the existing permit fee categories. Status as 
an Other Permit Holder requires that a permit holder or the member 
organization for which they solely qualify has no transaction activity 
for the applicable monthly billing period. Should a permit holder 
actively transact business during a particular month, the highest 
applicable monthly permit fee will apply to such permit holder and the 
member organization for that monthly period. The ``other'' status only 
applies to permit holders who solely qualify their member organization, 
or in other words there is just one permit holder in that member 
organization. If there is more than one permit holder in a member 
organization and that permit holder does not fit within any of the 
existing permit fee categories, then this ``other'' category does not 
apply. Such permit holder or the member organization they solely 
qualify for must apply for such ``other'' status in writing to the 
Membership Department.\15\
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    \15\ See Securities Exchange Act Release No. 59641 (March 27, 
2009), 74 FR 15024 (April 2, 2009) (SR-Phlx-2009-26).
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    The Exchange believes that this classification is no longer 
necessary and all members should be required to pay the same permit fee 
regardless of classification.\16\ Likewise the Exchange proposes to 
eliminate endnote 45(b), which endnote references the Other Permit 
Holder fee.
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    \16\ There are currently no members who are assessed the Other 
Permit Holder fee.
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Other Access Service, Cancellation, Membership, Regulatory and Other 
Fees
    The Exchange proposes to increase the Trading Floor Personnel 
Registration Fee from $50 to $100. This fee is imposed on member/
participant organizations for individuals who are employed by such 
member/participant organizations and who work on the Exchange's trading 
floor, such as clerks, interns, stock execution clerks that handle 
equity orders that are part of an options contingency order and other 
associated persons, but who are not registered as members or 
participants. The Exchange is increasing this fee to keep pace with 
rising regulatory costs associated with its obligations to conduct 
oversight on on-floor trading activities. In connection with this 
proposal the Exchange proposes to amend endnote 55 to conform the 
language of the endnote to this proposed fee increase.
    The Exchange proposes to amend its port fees. The Exchange assesses 
a monthly fee of $250.00 for the Order Entry Port Fee.\17\ The $250 
monthly Order Entry Port Fee is assessed per member organization order 
entry mnemonic\18\. The Exchange assesses the $250 monthly Order Flow 
Port Fee on members regardless of whether the order entry mnemonic is 
active\19\ during the billing month. The fee is assessed regardless of 
usage, and solely on the number of order entry ports assigned to each 
member organization. The Exchange proposes to increase the fee from 
$250 to $500 per month per mnemonic. Also, the Exchange proposed to 
modify the manner in which members are assessed the Order Entry Port 
Fee to assess the fee per mnemonic instead of per mnemonic and per the 
number of order entry ports. The Exchange proposes to amend the Fee 
Schedule to note that the fee is assessed per mnemonic.
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    \17\ The Order Entry Port Fee is a connectivity fee assessed on 
members in connection with routing orders to the Exchange via an 
external order entry port. Members access the Exchange's network 
through order entry ports. A member organization may have more than 
one order entry port.
    \18\ Order entry mnemonics are codes that identify member 
organization order entry ports.
    \19\ An order entry mnemonic is considered active if a member 
organization sends at least one order to the Exchange using that 
order entry mnemonic during the applicable billing month. See 
Securities Exchange Act Release No. 58728 (October 3, 2008), 73 FR 
59695 (October 9, 2008) (SR-Phlx-2008-70).
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    Additionally, the Exchange proposes to amend the SQF Port Fee to 
change the name to the ``Active SQF Port Fee'' and also amend the fee 
structure to eliminate the tiered structure and instead propose a 
monthly fee of $500 per port. ``SQF'' stands for specialized quote feed 
and is a proprietary quoting system that allows specialists, streaming 
quote traders and remote streaming quote traders to connect and send 
quotes into Phlx XL II, bypassing the Exchange's Auto-Quote System.\20\ 
The SQF port fee is assessed in connection with sending quotes to the 
Exchange. The SQF port fee is assessed as follows: for the first 5 
active SQF ports, a member organization would be charged $250 per port 
per month and, for each additional active SQF port (over the first 5 
active SQF ports), the member organization would be charged $1,000 per 
port per month. Additionally, the same member organization would be 
credited $0.02 per side for every option contract executed on the 
Exchange in that same month (excluding executions resulting from 
dividend, merger and short stock interest strategies) up to the amount 
of the SQF port fees when the member organization or one of its 
employees is designated as a specialist, SQT or RSQT and the 
transaction is billed according to the specialist or ROT transaction 
and/or comparison rates.\21\ The SQF port fee and corresponding credit 
are applied per member organization.\22\
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    \20\ See Exchange Rule 1080, Commentary .01(b).
    \21\ The Exchange is proposing to eliminate the SQT and RSQT 
credits as proposed herein.
    \22\ SQTs and RSQTs are assessed fees pursuant to the ROT rates 
as SQTs and RSQTs are deemed to be ROTs. See Exchange Rule 
1014(b)(ii)(A) and (B).
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    In connection with this proposal a corresponding amendment is 
proposed to endnote 65 to clarify the endnote. The Exchange believes 
that by billing the Order Entry Port Fee per mnemonic instead of per 
mnemonic per port, member assessments will be reduced. The proposal to 
amend the SQF port fee is meant to simplify the fee structure. The 
Exchange believes that these increases in fees are necessary to keep 
pace with escalating technology costs.
Other Amendments
    The Exchange proposes to eliminate endnote E which relates to a 
Pilot Program which is set to expire December 31, 2009 (``Pilot''). The 
Pilot is applicable to specialists and ROTs trading certain U.S. 
dollar-settled foreign currency options (``FCOs''), specifically the 
Mexican peso, Swedish krona, South African rand or the New Zealand 
dollar (``Pilot FCOs''). The Pilot Program allows the Exchange to waive 
the applicable specialist and ROT option transaction fees for 
specialists and ROTs trading Pilot FCOs.\23\ The Exchange pays a $1,700 
monthly stipend (``Monthly Stipend'') per currency to each member 
organization

[[Page 11970]]

acting as a specialist.\24\ As the Pilot is set to expire, the Exchange 
proposes to eliminate endnote E which makes reference to the Pilot.
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    \23\ FCOs are currently traded on the Exchange under the name 
PHLX World Currency Options[supreg] (``WCOs'').
    \24\ See Securities Exchange Act Release No. 60392 (July 28, 
2009), 74 FR 38477 (August 3, 2009) (SR-Phlx-2009-57).
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2. Statutory Basis
    The Exchange believes that its proposal to amend its Fee Schedule 
is consistent with Section 6(b) of the Act \25\ in general, and 
furthers the objectives of Section 6(b)(4) of the Act \26\ in 
particular, in that it is an equitable allocation of reasonable fees 
and other charges among Exchange members. Specifically, the Exchange 
believes that this proposal is equitable because it would apply evenly 
to ROTs and specialists transacting equity options contracts sent to 
the Exchange for execution, in that any SQT or RSQT or specialist may 
act as a Directed Participant and receive the $.21 per contract equity 
options transaction fee. The Exchange believes that by eliminating the 
Volume Threshold and instead proposing a Monthly Cap of $750,000 that 
members will benefit from such a cap and this would decrease fee 
assessments to member organizations and incentivize them to transact 
more business on the Exchange. This also applies to the decrease from 
$.22 to $.21 for ROTs in options transaction charges. The Exchange is 
also increasing certain fees including the Firm fee, the Sector Index 
options fees and the Trading Floor Personnel Registration fee and also 
increasing the Firm Related Equity Option Cap. The Exchange believes 
that other fee changes, which benefit members, will offset, to a 
certain degree, these proposed increases. Specifically, the Trading 
Floor Personnel Registration fee is tied to increase costs of 
regulating floor members. The proposed amendments to the permit fees 
will simplify the permit fee structure and assess one fee on all permit 
holders. The elimination of the Other Permit category should not impact 
members as this category is no longer applicable. Also, the proposed 
permit fee is equitable in that all members will be required to pay the 
same permit fee under the new structure. The elimination of the permit 
fee credit is encompassed in the overall proposal to amend the fee 
structure related to permit fees. The Exchange believes that the permit 
fee credit is no longer necessary under this new permit fee proposal. 
The proposed amendments to the Port fees should allow the Exchange to 
keep pace with increasing technology costs. Finally, other amendments 
are conforming and clarifying amendments to reflect the proposed 
amendments discussed herein with respect to the explanatory endnotes.
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    \25\ 15 U.S.C. 78f(b).
    \26\ 15 U.S.C. 78f(b)(4).
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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.

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

    The foregoing rule change has become effective pursuant to Section 
19(b)(3)(A)(ii) of the Act \27\ and paragraph (f)(2) of Rule 19b-4 \28\ 
thereunder. 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.
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    \27\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \28\ 17 CFR 240.19b-4(f)(2).
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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-2010-25 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-Phlx-2010-25. 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 Web site viewing and printing 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 available publicly. All submissions 
should refer to File Number SR-Phlx-2010-25 and should be submitted on 
or before April 2, 2010.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\29\
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    \29\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-5317 Filed 3-11-10; 8:45 am]
BILLING CODE 8011-01-P