[Federal Register Volume 75, Number 74 (Monday, April 19, 2010)]
[Notices]
[Pages 20401-20413]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-8859]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-61890; File No. SR-NYSEAmex-2010-31]


Self-Regulatory Organizations; NYSE Amex LLC; Notice of Filing of 
Proposed Rule Change, and Amendment No. 1 Thereto, To Adopt, as a Pilot 
Program, a New NYSE Amex Equities Rule Series for the Trading of 
Securities Listed on the Nasdaq Stock Market Pursuant to a Grant of 
Unlisted Trading Privileges, and Amending Existing NYSE Amex Equities 
Rules as Needed To Accommodate the Trading of Nasdaq-Listed Securities 
on the Exchange

April 12, 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 March 26, 2010, NYSE Amex LLC (``Exchange'' or ``NYSE Amex'') 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 Exchange. Subsequently, on April 6, 2010, 
NYSE Amex filed Amendment No. 1 to the proposed rule change. The 
Commission is publishing this notice to solicit comments on the 
proposed rule change, as amended, 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 (i) adopt, as a pilot program, a new NYSE 
Amex Equities Rule Series (Rules 500-525) for the trading of securities 
listed on the Nasdaq Stock Market (``Nasdaq'') pursuant to a grant of 
unlisted trading privileges and (ii) amend existing NYSE Amex Equities 
Rules as needed to accommodate the trading of Nasdaq-listed securities 
on the Exchange. The text of the proposed rule change is available at 
the Exchange, the Commission's Public Reference Room, and http://www.nyse.com.

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 (i) adopt, as a pilot program, a new NYSE 
Amex Equities Rule Series (Rules 500-525) for the trading of Nasdaq-
listed securities pursuant to a grant of unlisted trading privileges 
and (ii) amend existing NYSE Amex Equities Rules as needed to 
accommodate the trading of Nasdaq-listed securities on the Exchange.
Overview
    As described in greater detail below, the Exchange proposes to 
adopt, as a pilot program, a new NYSE Amex Equities Rule Series to 
specifically govern the trading of any security listed on the Nasdaq 
that (i) is designated as an ``eligible security'' under the Joint 
Self-Regulatory Organization Plan Governing the Collection, 
Consolidation and Dissemination of Quotation and Transaction 
Information for Nasdaq-Listed Securities Traded on Exchanges on an 
Unlisted Trading Privilege Basis, as amended (``UTP Plan''),\3\ and 
(ii) has been admitted to dealings on the Exchange pursuant to a grant 
of unlisted trading privileges in accordance with Section 12(f) of the 
Act,\4\ (collectively, ``Nasdaq Securities'').\5\ The Exchange

[[Page 20402]]

also proposes to amend existing NYSE Amex Equities Rules as needed to 
accommodate the trading of Nasdaq Securities on the Exchange. The 
Exchange proposes that this pilot program commence on the date the 
proposed Rules are approved by the Commission \6\ and that it continue 
until the earlier of the Commission's approval to make such pilot 
program permanent or September 30, 2010.\7\
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    \3\ See Securities Exchange Act Release No. 58863 (October 27, 
2008), 73 FR 65417 (November 3, 2008) (notice of filing and 
immediate effectiveness of Amendment No. 20 to the UTP Plan). The 
Exchange's predecessor, the American Stock Exchange LLC, joined the 
UTP Plan in 2001. See Securities Exchange Act Release No. 55647 
(April 19, 2007), 72 FR 2091 (April 27, 2007) (S7-24-89). In March 
2009, the Exchange changed its name to NYSE Amex LLC. See Securities 
Exchange Act Release No. 59575 (March 13, 2009), 74 FR 11803 (March 
19, 2009) (SR-NYSEALTR-2009-24). See also proposed Rule 501--NYSE 
Amex Equities.
    \4\ 15 U.S.C. 78l.
    \5\ As proposed, Nasdaq Securities shall be included within the 
definition of ``security'' as that term is defined in Rule 3--NYSE 
Amex Equities and as used in the NYSE Amex Equities Rules. In 
accordance with this definition, Nasdaq Securities shall be admitted 
to dealings on the Exchange on an ``issued'', ``when issued'', or 
``when distributed'' basis. See proposed Rule 501--NYSE Amex 
Equities.
    \6\ This sentence was revised per the e-mail from Jason Harmon, 
Consultant, NYSE Regulation, Inc., to Christopher Chow, Special 
Counsel, Commission (``April 9 e-mail''), dated April 9, 2010.
    \7\ See proposed Rule 500--NYSE Amex Equities. This is the same 
date that New York Stock Exchange LLC's (``NYSE'') New Market Model 
pilot program expires. Because several elements of the Exchange's 
proposal to trade Nasdaq Securities rely on the NYSE's New Market 
Model (``NMM''), the Exchange proposes to extend the duration of 
this pilot program as needed to track the NYSE's NMM pilot program 
and would file for permanent approval at the same time or after the 
NYSE files for permanent approval of the NMM.
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    In summary, the Exchange proposes to trade Nasdaq Securities on the 
same systems and facilities it uses to trade its listed securities in 
accordance with the same trading rules, subject to several key 
differences:
     There will not be an opening or closing auction for Nasdaq 
Securities traded on the Exchange. Trading in Nasdaq Securities will 
open on a quote at 9:30 a.m. and will close at 4 p.m., or immediately 
thereafter under certain circumstances, using the last sale on the 
Exchange as the Closing Price (defined below).
     ``Good `til Canceled'' (``GTC'') Orders and ``Stop'' 
Orders for Nasdaq Securities will be modified to provide that any GTC 
or Stop Orders that are unexecuted at the close of trading will be 
treated as Day Orders and canceled. In addition, the Exchange will not 
accept limit or market ``At the Close'' (``MOC/LOC''), ``At the 
Opening'' (``OPG''), ``Closing Offset'' (``CO'') or ``Good `til Cross'' 
(``GTX'') Orders for the trading of Nasdaq Securities. All other order 
types will be accepted.
     Each Nasdaq Security will be assigned one Designated 
Market Maker (``DMM'') Unit, though the allocation process will be 
streamlined to follow the approach used by the Exchange for 
Supplemental Liquidity Providers (``SLPs'') (see Rule 107B--NYSE Amex 
Equities).\8\
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    \8\ The Exchange recently adopted Rule 107B--NYSE Amex Equities 
(Supplemental Liquidity Provider) to establish a new class of NYSE 
Amex Equities market participants. See Securities Exchange Act 
Release No. 61308 (January 7, 2010), 75 FR 2573 (January 15, 2010) 
(SR-NYSEAmex-2009-98).
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     For those Nasdaq Securities in which they are registered, 
DMM Units will be responsible for the affirmative obligation of 
maintaining a fair and orderly market in accordance with Exchange 
rules, subject to an enhanced quoting requirement and a phased-in 
implementation of Depth Guidelines to enable the Exchange to collect 
trading data adequate to calculate such guidelines.
     Nasdaq Securities will trade using different Liquidity 
Replenishment Point (``LRP'') parameters.
     Trading in Nasdaq Securities will be subject to rules that 
are substantially similar to FINRA's ``Manning Rule'', rather than Rule 
92--NYSE Amex Equities.
     The Exchange's audit trail rules, including Rules 123-- 
and 132B--NYSE Amex Equities, will apply to the trading of Nasdaq 
Securities on the Exchange, except that, those members and member 
organizations that are also FINRA members and subject to FINRA's Rule 
7400 Series (``Order Audit Trail System'' or ``OATS'') will be exempt 
from Rules 123-- and 132B--NYSE Amex Equities.
    NYSE Amex will trade Nasdaq-listed equities and any other Nasdaq-
listed security that trades like an equity security (e.g., rights, 
warrants), and will also trade the Invesco PowerShares QQQTM 
Exchange Traded Fund.\9\
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    \9\ Although the Exchange may in the future seek to trade other 
Nasdaq Securities that are exchange traded funds or similar products 
as part of its pilot program, the Exchange's initial proposal is to 
limit the term ``Exchange Traded Fund'' to mean only the Invesco 
PowerShares QQQTM. See proposed Rule 501--NYSE Amex 
Equities. For the purposes of trading Nasdaq Securities all 
references to an ``Exchange Traded Fund'' or ``ETF'' in the NYSE 
Amex Equities Rules shall refer to the definition contained in 
proposed Rule 501--NYSE Amex Equities.
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    The Exchange intends to commence implementation of the trading of 
Nasdaq Securities using a phased-in approach and to expand the program 
to eventually include all Nasdaq Securities.
Proposed NYSE Amex Equities Rule 500 Series \10\
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    \10\ As proposed, the NYSE Amex Equities Rule 500 Series is 
consecutively numbered from 500 to 525. However, some rules are 
expressly reserved and are not referenced in the filing herein.
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    The Exchange proposes to adopt a new series of NYSE Amex Equities 
Rules (Rules 500 to 525) to specifically govern the trading of Nasdaq 
Securities on the Exchange.
1. Proposed Rule 500--NYSE Amex Equities (Applicability)
    The Exchange will trade Nasdaq Securities as it currently trades 
its listed securities, subject to some distinctions. Thus, the Exchange 
proposes to adopt Rule 500--NYSE Amex Equities to provide that the 
trading of Nasdaq Securities on the Exchange shall be governed by the 
Rule 500 Series and all other NYSE Amex Equities Rules, except to the 
extent they conflict with the Rule 500 Series, in which case the Rule 
500 series will control. In addition, proposed Rule 500 provides that 
the Exchange's Disciplinary Rules 475, 476, 476A and 477 will also 
apply to the trading of Nasdaq Securities on the Exchange.
2. Proposed Rule 501--NYSE Amex Equities (Definitions)
    Although Nasdaq Securities will trade primarily in accord with 
existing NYSE Amex Equities Rules, the Exchange proposes to adopt Rule 
501--NYSE Amex Equities to define key terms for the trading of Nasdaq 
Securities on the Exchange. All other terms will have the meanings 
assigned to them in other NYSE Amex Equities Rules. The definitions are 
discussed in greater detail in this filing where relevant.
3. Proposed Rule 502--NYSE Amex Equities (Hours of Business)
    Pursuant to proposed Rule 502--NYSE Amex Equities, the Exchange 
proposes to trade Nasdaq Securities during regular trading hours in 
accordance with Rule 51--NYSE Amex Equities. Regular trading hours are 
usually from 9:30 a.m. to 4 p.m., or during such other hours as may be 
specified by Exchange rules or as otherwise determined by the Board of 
Directors of the Exchange. The Exchange also proposes to permit Nasdaq 
Securities to trade in the Exchange's ``Off-Hours Trading Facility'' 
under Rules 900--907--NYSE Amex Equities.\11\ As described more fully 
below, however, due to modifications to the opening and closing for 
Nasdaq Securities, members and member organizations will not be 
permitted to make any bid, offer or transaction for Nasdaq Securities 
on Exchange systems, or route an order for a Nasdaq Security to another 
market center from Exchange systems, before 9:30 a.m. or after the

[[Page 20403]]

close of the Off-Hours Trading session (e.g. Crossing Session II).
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    \11\ Currently, in accordance with NYSE Rule 1500, members and 
member organizations of NYSE (which includes substantially all NYSE 
Amex Equities members and member organizations) are also permitted 
to enter orders for Nasdaq-listed securities on a UTP basis into the 
NYSE MatchPoint facility (``NYSE MatchPoint''), which has an After-
Hours matching session at 4:45 p.m. However, NYSE MatchPoint is not 
a system or facility of the Exchange, and thus the proposed NYSE 
Amex Equities Rule 500 Series, and Rule 502--NYSE Amex Equities in 
particular, would not apply to trading of Nasdaq-listed securities 
conducted on NYSE MatchPoint.
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4. Proposed Rule 504--NYSE Amex Equities (Nasdaq Security Assignment)
    As described in this filing, the Exchange proposes to trade Nasdaq 
Securities within the existing DMM and SLP framework used to trade its 
listed securities. The Exchange will create a ``Nasdaq Securities 
Liaison Committee'', consisting of NYSE Euronext employees of the 
Operations and U.S. Markets Divisions (a representative of NYSE 
Regulation Inc. (``NYSER'') would act as an ad hoc member of the 
Committee as needed), that will be responsible for reviewing and 
admitting Nasdaq Securities for trading on the Exchange. At the time 
Nasdaq Securities are admitted to dealings on the Exchange, the Nasdaq 
Securities Liaison Committee will assign each such security to a 
registered and qualified DMM Unit and registered and qualified SLPs in 
accordance with procedures substantially similar to the Exchange's 
current SLP procedures in Rule 107B--NYSE Amex Equities. See proposed 
Rule 501--NYSE Amex Equities. The Nasdaq Securities Liaison Committee 
may also, in its discretion, reassign one or more Nasdaq Securities to 
a different DMM Unit or to a different SLP or SLPs.
a. Assignment to DMM Units
    Existing NYSE Amex Equities DMM Units will be automatically 
eligible for the assignment of Nasdaq Securities, so long as they 
qualify in accordance with Rules 98-- and 103B(II)--NYSE Amex Equities, 
and proposed Rule 504(b)--NYSE Amex Equities.\12\ For the purposes of 
trading Nasdaq Securities, the Exchange proposes to amend the quoting 
requirements under Rule 103B(II)--NYSE Amex Equities such that a DMM 
Unit shall be required to maintain a quote at the National Best Bid or 
Offer in each assigned Nasdaq Security an average of at least 10% of 
the time, or more, during the regular business hours of the Exchange 
for each calendar month. This quoting requirement is also part of a DMM 
Unit's affirmative obligations under proposed Rule 509--NYSE Amex 
Equities.
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    \12\ The Exchange proposes to amend Rule 98(b)(2) (definition of 
``DMM unit'') and (b)(15) (definition of ``Related products'')--NYSE 
Amex Equities to accommodate the trading of Nasdaq Securities on the 
Exchange.
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    The Exchange's Nasdaq Securities Liaison Committee will assign 
Nasdaq Securities to DMM Units for trading on the Exchange. No more 
than one DMM Unit will be assigned to any Nasdaq Security and a member 
organization will not be permitted to be registered as both the DMM 
Unit and an SLP for the same Nasdaq Security.
b. Assignment of the Invesco PowerShares QQQ TM
    The Exchange intends to trade the Invesco PowerShares 
QQQTM Exchange Traded Fund (the ``QQQs'') and has proposed a 
set of special requirements governing the assignment of the QQQs and 
its component securities.\13\
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    \13\ See proposed Rule 501(b)--NYSE Amex Equities, which defines 
``Exchange Traded Fund'' as ``the Invesco PowerShares 
QQQTM.''
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    Under proposed Rule 504--NYSE Amex Equities, a DMM Unit may be 
registered in both the QQQs as well as a component security or 
securities of the QQQs provided that, at the time of assignment, (i) no 
single component in which the DMM Unit is registered exceeds 10% of the 
index or portfolio underlying the QQQs, and (ii) all components in 
which the DMM Unit is registered do not in the aggregate exceed 20% of 
the index or portfolio underlying the QQQs. Subsequently, if during any 
given month a single component security or group of securities in which 
the DMM Unit is registered exceeds these concentration measures on an 
average basis, the Nasdaq Liaison Committee will reassign either the 
QQQs or the component security or securities to another DMM Unit as 
needed to achieve compliance with the concentration measures.
    The Exchange will calculate and monitor the components and 
percentage of the QQQs on a monthly basis in accordance with the 
proposed concentration measures and report these calculations to the 
Nasdaq Liaison Committee. In addition, under proposed Rule 504--NYSE 
Amex Equities the DMM Unit registered in the QQQs will have an 
independent obligation to calculate, monitor and report to the Exchange 
on a monthly basis the component security or securities in which it is 
registered, the average percentage of the underlying index or portfolio 
of each individual component during the month, and the total average 
aggregate percentage of the underlying index or portfolio of all 
components during the month. If these levels are exceeded the DMM Unit 
will be required to report this to the Exchange as soon as possible.
    The Exchange recognizes that integrated market-making and side-by-
side trading in related securities have sometimes raised concerns about 
manipulation or improper coordination of trading between the related 
securities. As explained more fully below, the Exchange believes, 
however, that the structures proposed for assigning and trading the 
QQQs and a subset of its component securities within a single DMM Unit 
will reduce or substantially eliminate those concerns, and are 
therefore consistent with the requirements of the Act and Commission 
policy.
    The Commission has extensively addressed the issue of integrated 
market making and side-by-side trading in the context of trading index 
ETFs and related options. In that guidance, the Commission has 
repeatedly stated that one of the touchstones is whether an ETF is 
``broad-based'' and therefore poses a low risk of being susceptible to 
manipulation.\14\ In making this assessment, the Commission has weighed 
whether the underlying component securities are sufficiently liquid and 
well-capitalized such that they are not individually susceptible to 
manipulation, together with whether the composition of the ETF as a 
whole is such that it is not unduly concentrated in a single security 
or a small number of securities. When an ETF meets both criteria, and 
therefore can be considered ``broad-based'', the Commission has 
explicitly permitted integrated market making and side-by-side trading 
in both the ETF and related options, with no requirement for 
information barriers or physical or organizational separation. See, 
e.g., CBOE Rule 54.7(d).
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    \14\ See Securities Exchange Act Release No. 46213 (July 16, 
2002), 67 FR 48232 (July 23, 2002) (SR-Amex-2002-21) (order 
approving integrated market making of broad index-based ETFs and 
related options). See also Securities Exchange Act Release Nos. 
56633 (October 9, 2007), 72 FR 58696 (October 16, 2007) (SR-ISE-
2007-60) (order approving generic listing standards for ETFs based 
on both U.S. and international indices, noting they are 
``sufficiently broad-based in scope to minimize potential 
manipulation.''); 55621 (April 12, 2007), 72 FR 19571 (April 18, 
2007) (SR-NYSEArca-2006-86) (same); 54739 (November 9, 2006), 71 FR 
66993 (November 17, 2006) (SR-Amex-2006-78) (same); 57365 (February 
21, 2008), 73 FR 10839 (February 28, 2008) (SR-CBOE-2007-109) (order 
approving generic listing standards for ETFs based on international 
indices, noting they are ``sufficiently broad-based in scope to 
minimize potential manipulation.''); 56049 (July 11, 2007), 72 FR 
39121 (July 17, 2007) (SR-Phlx-2007-20) (same); 55113 (January 17, 
2007), 72 FR 3179 (January 24, 2007) (SR-NYSE-2006-101) (same); and 
55269 (February 9, 2007), 72 FR 7490 (February 15, 2007) (SR-Nasdaq-
2006-50) (same). The QQQs meet these criteria.
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    The Exchange believes that the logic inherent in permitting 
integrated market making in broad-based ETFs and related options should 
also apply to permit integrated market making in a broad-based ETF such 
as the QQQs and a limited number of its component securities. The 
Exchange notes at the outset that there do not appear to be rules on 
other exchanges expressly

[[Page 20404]]

addressing the latter type of integrated market making, nor has the 
Exchange identified guidance from the Commission specifically 
addressing the subject. Nevertheless, the Exchange believes that the 
extant Commission guidance on integrated market-making and side-by-side 
trading in broad-based ETFs and related options is highly relevant and 
informative to the current proposal, and is consistent with the 
Exchange's proposal.
    Among other things, the Exchange's current proposal is limited to a 
single broad-based ETF, the QQQs, which meets the composition and 
concentration measures previously approved by the Commission (see 
footnote 14 herein) to be classified as a broad-based ETF, with 
minimal, if any, potential to be manipulated.
    Because the potential for manipulation of the QQQs is so minimal, 
the risk presented by limited integrated market making is also 
extremely low. In this regard, the Exchange notes that the QQQs is one 
of the most actively traded securities in the world. It is based on a 
group of highly liquid securities (the top 100 Nasdaq-listed 
securities, ex-financial stocks); with the exception of Apple, no 
component represents more than 10% of the index; the ETF is itself very 
liquid (with 3-month average volume in excess of 90 million shares per 
day); and it is actively traded in multiple markets around the world.
    Given all of this, the Exchange believes that it would be 
inherently ineffective to attempt to either manipulate the price of a 
component or front-run pending nonpublic trading activity in a 
component in order to effect an advantageous trade in the QQQs. First, 
because of the inherent leverage of the QQQs compared to its 
components, such a manipulation of a component would require a 
disproportionately large amount of capital in order to be able to both 
impact the price of the QQQs and simultaneously override potential 
concurrent and counter-cyclical price movements in the other 99 
components. The amount of capital required to successfully accomplish 
such a manipulation would seemingly be larger than the potential profit 
potential. Similarly, the potential for successful front-running would 
require that the impact of the pending component trading activity not 
be neutralized by price changes in the other components. For the same 
reasons, it would be difficult to effectively front-run information 
about a component security by trading in the QQQs. However, as noted 
above, in order to mitigate against the theoretical possibility of 
successful manipulation or front-running, the Exchange would only 
permit the QQQs DMM to also be the DMM in a limited number of component 
stocks. See proposed Rule 504--NYSE Amex Equities.
    The existence of a manual market on the Trading Floor does not 
materially alter this fundamental risk calculus. First, there will be 
few, if any, circumstances in which a DMM in a Nasdaq Security will be 
in possession of material nonpublic order information (i.e., a pending 
block transaction) that could be used improperly. These situations are 
typically limited to circumstances when the market is slow because of a 
pending manual trade and/or when a Floor broker communicates that he or 
she is seeking to execute a block sized order. In listed securities 
today, a substantial percentage of manual trades occur in connection 
with the opening and closing auction or when a liquidity replenishment 
point (``LRP'') has been reached. However, there will not be an opening 
or closing auction in Nasdaq Securities and the LRPs will be 
substantially widened. Thus the number of manual trades is anticipated 
to be negligible. And, even when a manual transaction in a component 
security does occur intraday (e.g., in response to an LRP or 
publication of a gap quote), it is highly unlikely that a DMM Unit 
could profitably use this information to effect an advantageous trade 
in the QQQs for the reasons described above.
    Second, the Exchange will not be the listing market in Nasdaq 
Securities and is expected to have limited market share given the 
fragmentation of trading in Nasdaq-listed securities in the U.S. 
equities markets. Thus any trading that occurs on the Exchange will 
generally equalize to trading on other markets, with limited, if any, 
ability for the DMM to materially impact the price of a component. In 
view of the depth and liquidity of the Nasdaq-100 component securities, 
the Exchange does not believe that a block transaction in a component 
security of the QQQs would necessarily impact the price of the 
component security on a consolidated basis for a meaningful period of 
time. More importantly, the Exchange does not believe that a block 
transaction on the Exchange in a component security would predictably 
impact the price of the QQQs for enough time, if at all, to alter the 
risk-reward calculus and incentivize front-running the component block 
transaction by trading in the QQQs. Given the high-speed pace of 
electronic trading generally, the breadth of markets where the QQQs is 
traded, and the average daily trade volume, the Exchange believes it to 
be highly unlikely that an individual standing on the Trading Floor 
could enter a timely trade in response to knowledge of a pending block 
trade in one of the component securities. For the same reasons, it 
would also be inherently unprofitable for a DMM to attempt to 
manipulate a component in order to effect an advantageous trade in the 
QQQs.
    In view of these concerns, however, even if unlikely, as described 
above the Exchange proposes to adopt concentration requirements for 
trading the QQQs to limit the level of nonpublic information regarding 
the component securities available to the assigned QQQs DMM Unit. 
Together with the market structure considerations outlined above which 
mitigate against possible manipulation and front-running, the Exchange 
believes that this additional restriction will provide a ``belt-and-
suspenders'' level of protection.
    The Exchange also believes that any potential concerns over ``wash 
sales'' or inadvertent internal proprietary crosses by the DMM Unit are 
sufficiently addressed. First, Exchange DMM algorithmic trading systems 
(commonly known as the ``SAPI'') prevent DMM Unit trading interest from 
executing against its own quotes or other trading interest on the 
Exchange (i.e. an ``internal cross'') and virtually all DMM Unit 
trading interest is entered via the SAPI. While a DMM Unit could, 
theoretically, enter a proprietary order in one of its assigned 
securities other than through the SAPI, which would not be subject to 
the systemic internal cross block, that possibility is remote since the 
DMM Unit would incur higher fees for such an order and less 
advantageous parity treatment in connection with any execution of such 
order. Even so, DMM Units are required to have policies and procedures 
in place reasonably designed to prevent violations of Exchange rules 
and the federal securities laws, including NYSE Amex Disciplinary Rule 
476(a)(8), which prohibits ``giving an order for the purchase or sale 
of securities the execution of which would involve no change of 
beneficial ownership or executing such an order with knowledge of its 
character'', as well as violations of the ``wash sale'' prohibition of 
Section 9 of the Act. These policies and procedures, including those 
governing a firm's risk management trading policies

[[Page 20405]]

and systems, are subject to review and approval by the Exchange.\15\
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    \15\ The member firm currently anticipated to be assigned as the 
DMM Unit in the QQQs has represented to the Exchange that the firm's 
risk management system will reasonably prevent the firm from 
effecting any internal proprietary crosses in its assigned 
securities.
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    In addition, because any firm assigned as the DMM Unit for the QQQs 
will have, as part of its broader risk management capability, a unique 
ability to view and assess its trading activity across any and all 
markets in which it trades the QQQs and any components in which it is 
registered on the Exchange,\16\ in accordance with Rule 342--NYSE Amex 
Equities the Exchange will require the QQQs DMM to implement adequate 
policies and procedures to detect and deter the inappropriate access to 
information about pending block trades in a component security, 
potential front-running and/or manipulation based on such information, 
intentional wash sales, or any other violations of Section 9 of the 
Act. The DMM's policies and procedures would also be required to 
provide that the DMM firm will conduct surveillance to identify 
patterns of trading that are indicative of possible front-running of 
block trades, manipulation and/or intentional wash sales, and to take 
appropriate steps to investigate and report such trading to the 
Exchange. As with all DMM Units, the firm will be subject to periodic 
and, if warranted, special examinations by FINRA.
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    \16\ Such firm's risk management policies and procedures will 
have to meet the requirements of Rule 98--NYSE Amex Equities.
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    As a result, the Exchange believes that the requirements governing 
the assignment of Nasdaq Securities in proposed Rule 504--NYSE Amex 
Equities are sufficient to address any market concerns. The Exchange 
also agrees to review proposed Rule 504--NYSE Amex Equities and the 
provisions governing the allocation of the QQQs and its component 
securities in the event that the Exchange's share of the market for the 
Nasdaq Securities it trades exceeds 10% of the consolidated Tape C 
aggregate average daily trading volume for these securities.
c. Integration of NYSE Amex Listed Securities and Nasdaq Securities at 
Posts on the Trading Floor
    The Exchange anticipates that some DMM Units currently registered 
on the NYSE will seek to register as DMM Units on the Exchange in order 
to trade Nasdaq Securities. Under Exchange Rules, all current NYSE 
members and member organizations are deemed members and member 
organizations of the Exchange and DMM Units are automatically granted 
an NYSE Amex Equities trading license. See Rules 2.10-- and 2.20--NYSE 
Amex Equities. Those NYSE DMM Units that wish to trade Nasdaq 
Securities and that are not already registered as DMM Units on the 
Exchange will need to register as such with the Exchange to ensure 
proper tracking and systems configuration. Similarly, individual DMMs 
will need to register with the Exchange to confirm that they meet all 
applicable registration requirements and to ensure proper tracking and 
systems set-up, including ID Track requirements. In addition, NYSE DMM 
Units seeking to register as a DMM Unit on the Exchange will also need 
to advise FINRA in order to enable FINRA to assess whether such 
registration triggers different and/or additional financial and 
operational requirements, including but not limited to those pertaining 
to net capital.
    As described more fully in the section proposing to amend Rule 
103B--NYSE Amex Equities, infra, a DMM Unit that is registered to trade 
both NYSE and Exchange-listed securities, as well as Nasdaq Securities, 
could trade all these securities at the same post. However, such member 
organizations will be required to commit sufficient staff for the 
trading of NYSE-listed securities separate from that for the trading of 
Exchange-listed securities and/or Nasdaq Securities at the same post on 
the Trading Floor: individual DMMs and support staff will not be 
permitted to trade both NYSE-listed and NYSE Amex-listed securities 
and/or Nasdaq Securities at the same time. Intraday moves of individual 
DMMs and support staff between panels will be permitted, although DMMs 
and staffers will not be permitted to be simultaneously logged-into 
both an NYSE panel and an Exchange panel.
    Finally, in conjunction with Rule 103B(IX), proposed Rule 504(d)--
NYSE Amex Equities will require that Nasdaq Securities be allocated for 
trading only at panels exclusively designated for trading listed and/or 
Nasdaq Securities on the Exchange (see infra).
d. Assignment to SLPs
    NYSE Amex Equities members and member organizations may apply to be 
SLPs in Nasdaq Securities and will be eligible for the assignment of 
Nasdaq Securities once they register and qualify as SLPs in accordance 
with Rule 107B--NYSE Amex Equities. As with NYSE registered DMMs and 
DMM Units, NYSE registered SLPs are automatically deemed member 
organizations of NYSE Amex Equities under Rule 2.10--NYSE Amex 
Equities. NYSE registered SLPs that wish to trade Nasdaq Securities as 
SLPs will need to register with and be approved by the Exchange as SLPs 
in accordance with all applicable NYSE Amex Equities Rules.
    The Nasdaq Securities Liaison Committee will assign one or more 
SLPs to Nasdaq Securities for trading on the Exchange. A member 
organization cannot be both the DMM Unit and an SLP for the same Nasdaq 
Security. Because SLPs do not have a presence on the Trading Floor and 
do not have access to the information there, however, the Exchange does 
not propose the same limitations on the assignment of ETFs and 
component securities to SLPs as it does for DMM Units.
    Finally, in the event an SLP withdraws from its status as an SLP, 
Nasdaq Securities will be reassigned to a different SLP(s) in 
accordance with Rule 107B--NYSE Amex Equities.
5. Proposed Rule 506--NYSE Amex Equities (Units of Trading; Bids and 
Offers; Dissemination of Quotations; Priority)
    Nasdaq Securities will be traded almost exactly as the Exchange's 
listed securities. Proposed Rule 506--NYSE Amex Equities prescribes the 
basic unit of trading for Nasdaq Securities, and addresses some 
requirements for bids and offers, the dissemination of quotations, and 
priority and parity of executions of Nasdaq Securities.
    The Exchange will accept and process bids and offers in Nasdaq 
Securities according to the same rules for its listed securities. In 
accordance with Rules 55-- and 56--NYSE Amex Equities, the unit of 
trading in Nasdaq Securities is 100 shares, rights or warrants, or such 
lesser number as may be determined by the UTP Listing Market or the 
Exchange. Odd-lot bids or offers will be processed and executed by 
means of the Exchange's odd-lot order system pursuant to Rule 124--NYSE 
Amex Equities. The round-lot and odd-lot portions of partial round-lot 
orders will be processed and executed in accordance with Rule 124--NYSE 
Amex Equities.
    Bids and offers in Nasdaq Securities admitted to dealings on the 
Exchange on an ``issued'' basis shall be made ``regular way'' in 
accordance with Rules 64--, 65-- and 66--NYSE Amex Equities and, for 
Nasdaq Securities admitted on a ``when-issued'' or ``when-distributed'' 
basis, bids and offers shall only be made ``when-issued'' or ``when-
distributed'' in accordance with Rule 63--NYSE Amex Equities.

[[Page 20406]]

    As enforced by Exchange systems, bids and offers in Nasdaq 
Securities shall comply with Rule 19--NYSE Amex Equities concerning 
locking or crossing protected quotations in Regulation NMS stocks and 
the Exchange shall disseminate quotes in accordance with Rule 60--NYSE 
Amex Equities. Also, the minimum price variations prescribed in Rule 
62--NYSE Amex Equities shall apply to all bids and offers in Nasdaq 
Securities.
    Orders for Nasdaq Securities shall be executed in price and time 
priority and parity in accordance with all applicable NYSE Amex 
Equities Rules, including Rule 72--NYSE Amex Equities.
    The Exchange will display on the Trading Floor quotes and 
executions for Nasdaq Securities on both the Exchange as well as from 
other market centers in accordance with the UTP Plan (``Tape C''). Such 
display will include the appropriate identifier indicating the SRO or 
exchange reporting the execution to the Tape. Corporate action data for 
Nasdaq Securities will be incorporated by the Exchange on a daily basis 
after the close of regular trading and any adjustments to share price 
will be made at that time.
6. Proposed Rule 508--NYSE Amex Equities (Openings and Closings)
    Pursuant to proposed Rule 508--NYSE Amex Equities, the Exchange 
proposes to conduct openings and closings for Nasdaq Securities 
differently than for listed securities. As described more fully below, 
the Exchange will not conduct an opening or closing auction in Nasdaq 
Securities and will instead open trading on a quote at 9:30 a.m. and 
close on the last sale price on the Exchange at 4 p.m.
a. Openings
    Under proposed Rule 508(a), trading in Nasdaq Securities will not 
open based on an opening auction but will instead open at 9:30 a.m. or 
as soon thereafter as possible, or at such other time as may be 
specified by the Exchange, based on a quote published by the DMM Unit 
assigned to each particular security. Orders for Nasdaq Securities 
shall not be accepted by the Exchange and will be systemically blocked 
before trading opens on any business day.
    The DMM Unit will be responsible for opening trading in its 
assigned Nasdaq Securities by publishing an opening quote at 9:30 a.m. 
or as soon thereafter as possible. Because Nasdaq Securities will open 
on a quote, DMM Units will not be permitted or required to provide pre-
opening or opening indications as prescribed by Rules 15-- and 123D--
NYSE Amex Equities. In addition, because the Exchange will not conduct 
an opening auction for Nasdaq Securities, DMM Units will not be 
permitted or required to hold or represent orders for Nasdaq Securities 
pursuant to Rule 115A.20--NYSE Amex Equities.
b. Closings
    Under Rule 508(b), trading in Nasdaq Securities will not close 
based on a closing auction but will instead close at the end of the 
regular trading session at 4 p.m., or at such other time as may be 
specified by the Exchange. Except for ``aggregate-price orders'',\17\ 
or ``closing-price orders'' entered to offset an error, entered in the 
``Off-Hours Trading Facility'' in accordance with proposed Rule 511--
NYSE Amex Equities, orders for Nasdaq Securities will not be accepted 
by the Exchange after the regular trading session on any business 
day.\18\
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    \17\ The Exchange is proposing to amend the definition of 
``aggregate-price order'' under Rule 900--NYSE Amex Equities in 
order to accommodate trading Nasdaq Securities in the Off-Hours 
Trading Facility.
    \18\ These terms are defined under Rule 900--NYSE Amex Equities.
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    The ``Closing Price'' will be set at the price of the last sale in 
a Nasdaq Security on the Exchange at or prior to the close of regular 
trading at 4 p.m. (see Rules 502-- and 508--NYSE Amex Equities).\19\ 
Orders for Nasdaq Securities that are unexecuted at the close of 
trading at 4 p.m. shall be cancelled.
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    \19\ See also proposed Rule 501--NYSE Amex Equities.
---------------------------------------------------------------------------

    If, at or just prior to the close of trading at 4 p.m., the market 
for a particular Nasdaq Security is manual or ``slow'' (for example, 
because a gap quote has been published or a Liquidity Replenishment 
Point has been reached), there will be a single trade at or immediately 
after the close that will set the Closing Price. In such circumstances, 
the DMM will pair off liquidity to the extent available and then 
execute the final trade. All residual marketable interest for that 
security received prior to the close of trading shall first be executed 
at the Closing Price and then all unexecuted interest for the security 
shall be cancelled.
    When the market for a Nasdaq Security is slow at the close of 
trading, the DMM Unit must execute the final trade in the security in a 
manner consistent with a fair and orderly market, with reference to the 
trading characteristics of the stock at issue, including its price, 
average daily trading volume (``ADTV''), average volatility, the prior 
sale of the security on the Exchange and the closing price on the UTP 
Listing Market. To ensure this, Floor Governor approval is required to 
close a Nasdaq Security that is ``slow.''
    In the event of an extreme order imbalance at or near the close of 
the regular trading session that could result in Closing Price 
dislocation, the procedures of Rule 123C(9)--NYSE Amex Equities, which 
permit the Exchange to temporarily suspend the hours of operation for 
the solicitation and entry of orders into Exchange systems, shall 
apply. However, because the Exchange will not conduct a closing auction 
in Nasdaq Securities, no other procedures of Rule 123C--NYSE Amex 
Equities shall apply to trading in Nasdaq Securities.
    The proposed modifications to the opening and closing of the 
trading of Nasdaq Securities require corresponding modifications to the 
``GTC'' and ``Stop'' order types. Specifically, GTC Orders and 
unelected Stop Orders for Nasdaq Securities that are not fully executed 
at the close of the regular trading session shall be treated as Day 
Orders and shall be cancelled; they will not remain on the Exchange's 
systems overnight. In addition, because the Exchange will not conduct 
either an opening or closing auction in Nasdaq Securities, the Exchange 
will not accept MOC/LOC, OPG, CO or GTX Orders for Nasdaq Securities. 
All other order types noted in Rule 13--NYSE Amex Equities will be 
permitted for the trading of Nasdaq Securities.\20\
---------------------------------------------------------------------------

    \20\ See proposed Rule 501--NYSE Amex Equities.
---------------------------------------------------------------------------

7. Proposed NYSE Amex Equities Rule 509 (Dealings of DMM Units and 
SLPs)
    As noted above, the Exchange proposes to trade Nasdaq Securities 
using the same DMM/SLP framework as currently used for its listed 
securities.
a. DMM Units
    DMM Units registered to trade Nasdaq Securities on the Exchange 
will be required to fulfill their responsibilities and duties for those 
securities in accordance with all applicable NYSE Amex Equities Rules 
and requirements (``DMM rules''),\21\ subject to two modifications.
---------------------------------------------------------------------------

    \21\ The term ``DMM rules'' is defined under Rule 98--NYSE Amex 
Equities.
---------------------------------------------------------------------------

    Under Rule 104--NYSE Amex Equities, for those Exchange-listed 
securities in which they are registered, DMM Units are required to use 
their capital to meet the obligation of maintaining a fair and orderly 
market to the extent reasonably practicable. This requirement, in turn, 
may be broken down into certain components, which

[[Page 20407]]

include quoting at the National Best Bid or National Best Offer for a 
certain percentage of time, supplying liquidity as needed, managing 
and/or facilitating manual or other transactions at specified times, 
minimizing and stabilizing disparity in supply and demand as needed, 
and maintaining price continuity and depth within specified guidelines. 
None of these individual requirements is dispositive and they must all 
be viewed together when evaluating the broader obligation to maintain a 
fair and orderly market.\22\
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    \22\ See Rules 72- and 104--NYSE Amex Equities. For a more 
detailed discussion of DMM obligations, see Securities Exchange Act 
Release No. 58845 (October 24, 2008), 73 FR 64379 (October 29, 2008) 
(SR-NYSE-2008-46).
---------------------------------------------------------------------------

    In return for those obligations and restrictions, DMM Units are 
entitled to trade on parity with Floor brokers and off-Floor orders in 
their registered securities, are the sole market maker on the Exchange 
in those securities, and receive financial incentives for providing 
liquidity and executing odd-lot orders. DMM Units also have the ability 
to set a Capital Commitment Schedule (``CCS''), which allows them to 
indicate to Exchange systems where they are willing to add additional 
liquidity to the market; if these pre-determined parameters are met, 
the system automatically includes the additional CCS interest.\23\
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    \23\ See Rules 72-, 104(d)- and 1000--NYSE Amex Equities 
concerning parity and CCS. For information on the rebate structure, 
see the Exchange's price list, available on the Exchange Web site at 
http://www.nyse.com.
---------------------------------------------------------------------------

    For Nasdaq Securities, DMM Units will, insofar as reasonably 
practicable, continue to be responsible for engaging in a course of 
dealings for their own account and assisting in the maintenance of a 
fair and orderly market for those securities in which they are 
registered in accordance with Rule 104--NYSE Amex Equities. There are 
two modifications, however.
    First, in lieu of the tiered quoting requirement (5% and 10%) 
currently in place for listed securities under Rule 104(a)(1)(A)--NYSE 
Amex Equities, proposed Rule 509(a)(1) requires a DMM Unit to maintain 
a quote at the National Best Bid or Offer (``inside'') in each assigned 
Nasdaq Security an average of at least 10% of the time, or more, during 
the regular business hours of the Exchange for each calendar month. As 
for listed securities, time at the inside will be calculated as the 
average of the percentage of time the DMM Unit has a bid or offer at 
the inside, and credit will be given for executions for the liquidity 
provided by the DMM Unit. Reserve or other hidden orders entered by the 
DMM Unit will not be included in the inside quote calculations. Because 
this quoting requirement will be applied on a stock-by-stock basis, 
rather than aggregated across all securities that the DMM Unit trades, 
the Exchange believes it is a more stringent standard than is currently 
in place for listed securities.
    Second, pursuant to Rules 104(f)(ii)-- and (iii)--NYSE Amex 
Equities, DMM Units will continue to be responsible for maintaining 
price continuity with reasonable depth for their registered Nasdaq 
Securities in accordance with Depth Guidelines published by the 
Exchange. However, in order to give the Exchange time to phase-in 
appropriate Depth Guidelines, these provisions will not be operative 
until 18 weeks after the approval of the proposed rule changes by the 
Commission.\24\
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    \24\ A phased-in approach is necessary so that appropriate Depth 
Guidelines may be calculated based on actual trading data of Nasdaq 
Securities on the Exchange. Accordingly, following implementation 
and roll-out of the pilot program, the Exchange proposes to collect 
60 trading days of trade data and would then implement Depth 
Guidelines for trading Nasdaq Securities on NYSE Amex within 30 
calendar days of the collection of the trade data. The eighteen week 
phase-in period contemplates a two-week period to roll-out the pilot 
program.
---------------------------------------------------------------------------

    As is the case with listed securities, DMM Units will also be 
responsible for facilitating openings, reopenings and closings for each 
of the Nasdaq Securities in which they are registered in accordance 
with applicable NYSE Amex Equities Rules, including the procedures of 
proposed Rules 508- and 515--NYSE Amex Equities. DMM Units will also be 
responsible for facilitating trading when the market is ``slow'' (such 
as during a gap quote or an LRP) \25\ and helping to close Nasdaq 
Securities that are subject to an imbalance. Other obligations would 
continue to apply, including providing contra side liquidity as needed 
for the execution of odd-lot orders for Nasdaq Securities received on 
the Exchange, meeting stabilization and re-entry requirements, and 
complying with the net capital requirements under Rules 103.20--, 
4110-- and 4120--NYSE Amex Equities, as well as the Act.
---------------------------------------------------------------------------

    \25\ For clarification, a DMM Unit facilitates trading in slow 
markets by either conducting an auction or trading out of the slow 
market in order to resume a ``fast'' (i.e. quote protected) market. 
It does not mean, however, that a DMM Unit must participate on the 
contra-side of the market when it is slow.
---------------------------------------------------------------------------

    Because DMMs would retain obligations that other market 
participants, both on the Exchange and in other markets, do not have, 
DMM Units would retain the benefits of parity and liquidity incentives, 
as well as the ability to use CCS, when trading Nasdaq Securities.\26\ 
In addition, DMMs would continue to be the sole market maker on the 
Exchange in their registered Nasdaq Securities.
---------------------------------------------------------------------------

    \26\ The Exchange will submit a separate fee filing detailing 
the rebate structure for trading Nasdaq Securities at a later date.
---------------------------------------------------------------------------

    The Exchange believes the enhanced quoting requirement and phased-
in Depth Guidelines are appropriate in connection with trading Nasdaq 
Securities on the Exchange, particularly because the market dynamics 
for trading Nasdaq Securities will be different from those for the 
Exchange's listed securities. Although the Exchange will not be the 
primary market for Nasdaq Securities and its market share is expected 
to be small, at least initially, the Exchange believes that its DMM/SLP 
market model will, for some market participants, provide an attractive 
and competitive alternative for the trading of Nasdaq Securities that 
does not currently exist.
    In addition, other provisions of the NYSE Amex Equities Rules 
related to DMM responsibilities and obligations would be modified, 
including the following:
     DMMs will not be required to obtain Floor Official 
approval prior to engaging as a dealer in transactions for Nasdaq 
Securities that fall under Rule 79A.20--NYSE Amex Equities.
     Notwithstanding the prescriptions of Rule 36.30--NYSE Amex 
Equities governing communications to and from the DMM Unit post on the 
Trading Floor, an individual DMM registered in an ETF may use a 
telephone connection or order entry terminal at the DMM Unit's post to 
enter a proprietary order in the ETF in another market center, in a 
component security of such ETF, or in an options or futures contract 
related to such ETF, and may use the post telephone to obtain public 
market information with respect to such ETF, options, futures, or 
component securities. If the order in the component security of the ETF 
is to be executed on the Exchange, the order must be entered and 
executed in compliance with Rule 112--NYSE Amex Equities and SEA Rule 
11a2-2(T), and must be entered only for the purpose of creating a bona 
fide hedge for a position in the ETF. The Exchange is proposing to add 
this provision in order to permit DMM Units registered in an ETF to 
execute more efficiently hedging transactions for the security.\27\
---------------------------------------------------------------------------

    \27\ This provision is modeled on a provision in NYSE Rule 
36.30, approved by the Commission. See Securities Exchange Act 
Release No. 44616 (July 30, 2001), 66 FR 40761 (August 3, 2001) (SR-
NYSE-2001-08) (order approving amendments to NYSE Rule 36.30).

---------------------------------------------------------------------------

[[Page 20408]]

b. SLPs
    SLPs registered in one or more Nasdaq Securities must fulfill their 
responsibilities and duties for those securities in accordance with all 
applicable NYSE Amex Equities Rules and requirements, including, but 
not limited to, the requirements of Rule 107B--NYSE Amex Equities, and 
the SLP quoting requirements for Nasdaq Securities shall be the same as 
for securities listed on the Exchange.
8. Proposed NYSE Amex Equities Rule 510 (Derivative Securities 
Products)
    The Exchange also proposes some specific additional provisions that 
will apply to the trading of Exchange Traded Funds that are ``new 
derivative securities products,'' as defined in Rule 19b-4(e) under the 
Act and traded pursuant to Rule 19b-4(e) thereunder.\28\
---------------------------------------------------------------------------

    \28\ These provisions are based on similar rules adopted by 
other exchanges and/or approved by the Commission for the generic 
trading of derivative securities products based on unlisted trading 
privileges. See, e.g., Securities Exchange Act Release No. 57448 
(March 6, 2008), 73 FR 13597 (March 13, 2008) (SR-NSX-2008-05) 
(order approving NSX Rule 15.9) and Securities Exchange Act Release 
No. 59663 (March 31, 2009), 74 FR 15552 (April 6, 2009) (SR-Nasdaq-
2009-018) (notice of filing and immediate effectiveness for Nasdaq 
Rule 5740).
---------------------------------------------------------------------------

    For each such ETF, the Exchange will file a Form 19b-4(e) with the 
Commission. In addition, the Exchange will distribute an information 
circular prior to the commencement of trading in each such product that 
generally includes the same information as contained in the information 
circular provided by the UTP Listing Market for the product, including: 
(a) The special risks of trading the new product; (b) the Exchange 
Rules that will apply to the new product, including Rule 405--NYSE Amex 
Equities; (c) information about the dissemination of the value of the 
underlying assets or indexes; and (d) the risks of trading outside of 
the regular trading session for the product due to the lack of 
calculation or dissemination of the value of the underlying assets or 
index, the intra-day indicative value or a similar value.
    Members and member organizations that trade these ETFs will be 
subject to the prospectus delivery requirements of the Securities Act 
of 1933, unless the product is the subject of an order by the 
Commission exempting the product from certain prospectus delivery 
requirements under Section 24(d) of the Investment Company Act of 1940 
or the product is not otherwise subject to prospectus delivery 
requirements under the Securities Act of 1933. As a result, members and 
member organizations will be required to provide all purchasers of such 
an ETF with a written description of the terms and characteristics of 
the product at the time confirmation of the first transaction in the 
product is delivered to the purchaser. In addition, members and member 
organizations will be required to include a written description with 
any sales material relating to the product that they provide to 
customers or the public. Any other written materials provided by a 
member or member organization to customers or the public making 
specific reference to the ETF as an investment vehicle must include a 
statement that such materials are available.
    Members or member organizations carrying omnibus accounts for non-
members will be required to inform non-members that execution of an 
order to purchase an ETF for the omnibus account will be deemed to 
constitute agreement by the non-member to make such written description 
available to its customers on the same terms as are directly applicable 
to members and member organizations under this Rule. Upon request of a 
customer, a member or member organization shall also provide a 
prospectus for the particular product.
    In order to accommodate the trading of ETFs that qualify under this 
Rule, the Exchange is also proposing additional requirements for 
trading halts. If a temporary interruption occurs in the calculation or 
wide dissemination of the intraday indicative value, the value of the 
underlying index, portfolio or instrument, or similar value of a 
product and the UTP Listing Market halts trading in the product, the 
Exchange, upon notification by the UTP Listing Market of such halt due 
to such temporary interruption, shall also immediately halt trading in 
that product.
    If the interruption in the calculation or wide dissemination of the 
intraday indicative value, the value of the underlying index, portfolio 
or instrument, or similar value continues as of the commencement of 
trading on the Exchange on the next business day, the Exchange shall 
not commence trading of the product on that day. If the interruption in 
the calculation or wide dissemination of the intraday indicative value, 
the value of the underlying index, portfolio or instrument, or similar 
value continues, the Exchange may resume trading in the product only if 
calculation and wide dissemination of the intraday indicative value, 
the value of the underlying index, portfolio or instrument, or similar 
value resumes or trading in the product resumes on the UTP Listing 
Market.
    For an ETF where a net asset value or disclosed portfolio is 
disseminated, the Exchange will immediately halt trading in such 
product upon notification by the UTP Listing Market that the net asset 
value or disclosed portfolio is not being disseminated to all market 
participants at the same time. The Exchange may resume trading in the 
product only when dissemination of the net asset value or disclosed 
portfolio to all market participants at the same time resumes or 
trading in the product resumes on the UTP Listing Market.
    For an ETF that is listed on Nasdaq, such as the QQQs, Nasdaq rules 
require and/or permit it to halt trading in such securities when net 
asset value or other information is not being properly disseminated as 
required (see Nasdaq Rule 4120(a)(9)-(10)).\29\ Pursuant to the UTP 
Plan, Nasdaq is required to use the national market system 
communication media (``Hoot-n-Holler'') to notify other participants of 
such a halt and upon such notification the Exchange would halt trading 
in the QQQs in accordance with the proposed rules.
---------------------------------------------------------------------------

    \29\ See April 9 e-mail.
---------------------------------------------------------------------------

    Finally, due to the nature of ETFs such as the QQQs, the Exchange 
proposes to restrict the allocation of that security and its 
components. See proposed Rule 504--NYSE Amex Equities. In addition, the 
Exchange will enter into a comprehensive surveillance sharing agreement 
with markets trading components of the index or portfolio on which the 
product is based to the same extent as the UTP Listing Market's rules 
require the UTP Listing Market to enter into a comprehensive 
surveillance sharing agreement with such markets.
9. Proposed NYSE Amex Equities Rule 511 (Off-Hours Trading)
    Nasdaq Securities will be accepted by the Exchange's Off-Hours 
Trading Facility as part of an aggregate-price (``basket'') order, or 
as a closing-price order entered to offset a transaction made in error, 
as those terms are defined under Rule 900--NYSE Amex Equities.\30\
---------------------------------------------------------------------------

    \30\ The Exchange is proposing to amend the definition of 
``aggregate-price order'' under Rule 900--NYSE Amex Equities in 
order to accommodate trading Nasdaq Securities in the Off-Hours 
Trading Facility. See Exhibit 5.
---------------------------------------------------------------------------

10. Proposed NYSE Amex Equities Rule 512 (Liquidity Replenishment 
Points)
    Given the different trading characteristics of Nasdaq Securities, 
the Exchange proposes to amend the values used to calculate Liquidity 
Replenishments Points (LRPs) for these securities in accordance with 
Rule 1000--NYSE Amex Equities.

[[Page 20409]]

    The Exchange expects that Nasdaq Securities will be much more 
thinly traded on the Exchange, with lower volume and less liquidity 
than its listed securities, and that prices for Nasdaq Securities will 
be more volatile. As a result, in order to avoid triggering too many 
``slow'' trading situations, the Exchange proposes wider LRP parameters 
for trading Nasdaq Securities than for its listed securities. 
Specifically, the Exchange proposes that, for each Nasdaq Security 
(except for ETFs), the value used to calculate the LRP ranges shall be 
ten percent (10%) of the Closing Price of the relevant security from 
the prior regular trading session on the Exchange, rounded to the 
nearest penny. These values will be recalculated by the Exchange on a 
daily basis. For the first day of trading of each Nasdaq Security, the 
LRP will be calculated using the Nasdaq closing price from the prior 
trading session.
    Upon the phase-in period, the Exchange intends to evaluate these 
parameters to determine if they need to be adjusted in light of trading 
activity for Nasdaq Securities on the Exchange.
11. Proposed NYSE Amex Equities Rules 513 (Trading Ahead of Customer 
Limit Orders) and 514 (Trading Ahead of Customer Market Orders)
    As described more fully below, proposed Rules 513-- and 514--NYSE 
Amex Equities prescribe limitations on proprietary trading by members 
and member organizations holding unexecuted customer orders in Nasdaq 
Securities. In summary, a member firm handling an unexecuted customer 
order in a Nasdaq Security will not be permitted to execute a 
proprietary trade for that security at a price that would satisfy the 
customer's order without executing the customer's order at that price.
    In order to harmonize the obligations for members and member 
organizations trading Nasdaq Securities on the Exchange with their 
existing obligations for trading those securities off-Exchange, 
proposed Rules 513-- and 514--NYSE Amex Equities are substantially 
similar to FINRA's ``Manning Rule'' (NASD Interpretive Material 2110-2 
and NASD Rule 2111). Subject to some technical amendments to apply the 
Rules to the Exchange, proposed Rule 513--NYSE Amex Equities is based 
on NASD IM-2110-2 and proposed Rule 514--NYSE Amex Equities is based on 
NASD Rule 2111. Correspondingly, proposed Rules 513-- and 514--NYSE 
Amex Equities exempt Exchange members and member organizations from 
Rule 92--NYSE Amex Equities for the purposes of trading Nasdaq 
Securities.
    There are several reasons for adopting a Manning-like set of rules 
rather than applying Rule 92--NYSE Amex Equities. To begin with, all 
Exchange member organizations that have public customers are also FINRA 
members and are therefore subject to FINRA's Manning Rule when trading 
off-Exchange. In addition, because the Manning Rule and Rule 92--NYSE 
Amex Equities differ in certain key aspects, the Exchange believes that 
requiring member organizations to comply with two sets of potentially 
conflicting standards when trading Nasdaq Securities would be confusing 
and would require programming changes by member organizations.\31\
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    \31\ Although there may be Exchange-only members that trade 
Nasdaq Securities, such members are not subject to the Manning Rule 
because they do not have public customers. Moreover, all Exchange 
members that are registered as Floor brokers are also required to be 
FINRA members and, unless proposed Rules 513-- and 514--NYSE Amex 
Equities are approved, would be required to comply with both Rule 
92--NYSE Amex Equities and the Manning Rule.
---------------------------------------------------------------------------

    Rule 92--NYSE Amex Equities prohibits, subject to some exceptions, 
members and member organizations from entering proprietary orders if 
the person responsible for the entry of that order has knowledge of an 
unexecuted customer order on the same side of the market that could be 
executed at the same price as the proprietary order.\32\ Rule 92 does, 
however, permit a member or member organization to enter a proprietary 
order for certain specified purposes while representing a customer 
order that can be executed at the same price where the customer order 
is not held and is for either an institutional account or is greater 
than 10,000 shares and $100,000 in value (``Institutional/Large-size 
Order''), provided that the member or member organization has provided 
written disclosures and obtained documented affirmative consent from 
the customer. Rule 92 also permits an exception where a member or 
member organization enters a proprietary order to facilitate a riskless 
principal transaction. In addition, the prescriptions of Rule 92 do not 
apply to transactions made (i) by odd-lot dealers, (ii) on delivery 
terms different from those for the unexecuted customer order, (iii) by 
members or member organizations acting as market makers on other 
markets, (iv) to correct bona fide errors, and (v) as intermarket sweep 
orders made in compliance with Regulation NMS.\33\
---------------------------------------------------------------------------

    \32\ Technically, Rule 92--NYSE Amex Equities refers to 
transactions involving ``Exchange-listed securit[ies]'', which would 
not encompass Nasdaq Securities traded on the Exchange. However, the 
Exchange recognizes that, whether it applies Rule 92 or the Manning 
Rule, some form of limitation will be prescribed on proprietary 
trading of Nasdaq Securities by members and member organizations due 
to customer orders.
    \33\ See generally Rule 92--NYSE Amex Equities.
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    By comparison, the Manning Rule operates to prohibit a member firm 
from executing, rather than entering, a proprietary trade at a price 
equal to or better than an unexecuted customer order unless the firm 
immediately executes the customer order at the same price (or better) 
it executed its own proprietary order.\34\ Like Rule 92--NYSE Amex 
Equities, the Manning Rule has an exception for Institutional/Large-
size Orders, subject to disclosure to the customer. However, unlike 
Rule 92--NYSE Amex Equities, the Manning Rule does not require 
affirmative consent from the customer. In addition, the Manning Rule 
does not limit the specific types of transactions to which this 
exception applies. The Manning Rule has other exceptions that mirror 
those of Rule 92--NYSE Amex Equities, including for transactions made 
by a member as a riskless principal or involving intermarket sweep 
orders. The Manning Rule does not, however, permit exceptions for 
transactions on delivery terms different from those for the unexecuted 
customer order, by members or member organizations acting as market 
makers on other markets, or to correct bona fide errors.\35\
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    \34\ FINRA has proposed to combine NASD Interpretive Material 
2110-2 and NASD Rule 2111 into a single FINRA Rule 5320. See 
Securities Exchange Act Release No. 61168 (December 15, 2009), 74 FR 
68084 (October 22, 2009) (SR-FINRA-2009-090). See also FINRA 
Regulatory Notice 09-15 (March 12, 2009).
    \35\ See NASD Interpretive Material 2110-2 and NASD Rule 2111.
---------------------------------------------------------------------------

    As is evident, Rule 92--NYSE Amex Equities differs from the Manning 
Rule, most notably in its focus on order entry rather than execution. 
Moreover, Rule 92--NYSE Amex Equities provides exceptions for certain 
types of transactions that the Manning Rule does not. Thus, any dual 
NYSE Amex Equities and FINRA member attempting to comply with both Rule 
92--NYSE Amex Equities and the Manning Rule while trading Nasdaq 
Securities on the Exchange would be subject to differing standards for 
the same security solely because of where an order has executed.\36\
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    \36\ There are other differences between Rule 92--NYSE Amex 
Equities and the Manning Rule, including each Rule's definition of 
``institutional account'', the reporting requirements for executing 
riskless principal transactions, and minimum price improvement 
standards. The Exchange notes that it, NYSE and FINRA are in the 
process of harmonizing their respective customer order protection 
rules. For a full discussion comparing the two Rules and the 
proposed harmonization, see NYSE and NYSE Amex Equities Information 
Memo 09-13 (March 12, 2009) and FINRA Regulatory Notice 09-15 (March 
12, 2009).

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[[Page 20410]]

    Moreover, the Exchange understands that firms generally code their 
order entry, routing and execution systems to comply with Rule 92--NYSE 
Amex Equities when trading on the Exchange and the Manning Rule when 
trading on NASDAQ and other markets. It would be impractical and 
unnecessarily burdensome to require member organizations to add Rule 
92--NYSE Amex Equities parameters to their systems to account for both 
the Manning Rule and Rule 92--NYSE Amex Equities when trading Nasdaq 
Securities on the Exchange.
    Requiring firms to comply with proposed Rules 513-- and 514--NYSE 
Amex Equities rather than Rule 92--NYSE Amex Equities when trading 
Nasdaq Securities comports with the broader goals of regulating the 
market for these securities. The majority of trading in Nasdaq 
Securities takes place on other markets in accordance with the 
requirements of the Manning Rule, and FINRA and other SROs conduct 
surveillance based on those parameters. Requiring member firms to 
comply with proposed Rules 513-- and 514--NYSE Amex Equities rather 
than Rule 92--NYSE Amex Equities ensures that, when Nasdaq Securities 
are traded on the Exchange, FINRA and/or other SROs can properly 
surveil these trades in the context of the overall market for those 
securities.
    Although firms will be required to comply with proposed Rules 513-- 
and 514--NYSE Amex Equities rather than Rule 92--NYSE Amex Equities, 
there will not be any regulatory gaps. Currently, FINRA and the 
Exchange have an agreement pursuant to Section 17(d) of the Act and 
Rule 17d-2 thereunder (the ``17d-2 Agreement'') to allocate regulatory 
responsibility for oversight of certain Exchange Rules. The Exchange 
has proposed to FINRA to extend the regulatory oversight provided under 
the 17d-2 Agreement to include customer order protection of Nasdaq 
Securities and compliance with proposed Rules 513-- and 514--NYSE Amex 
Equities, and, based on discussions with FINRA representatives, it is 
anticipated that FINRA will approve.
    Notwithstanding the proposed exemption from Rule 92--NYSE Amex 
Equities, the Exchange will still require members and member 
organizations to comply with all other applicable NYSE Amex Equities 
Rules, any and all applicable rules or regulations of the UTP Listing 
Market or FINRA and the federal securities laws and the rules 
thereunder, related to proprietary trading while holding unexecuted 
customer orders in the same security.\37\
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    \37\ All Exchange members or member organizations that send 
customer orders to the Exchange and have a public business are 
currently, or will be required to also be, FINRA members (see Rule 
2(b)--NYSE Amex Equities), and thus would need to comply with the 
Manning Rule when trading Nasdaq Securities off-Exchange.
---------------------------------------------------------------------------

12. Proposed NYSE Amex Equities Rule 515 (Trading Halts)
    Generally, as prescribed in proposed Rule 515--NYSE Amex Equities, 
the Exchange will follow all applicable NYSE Amex Equities Rules 
governing halts or suspensions, for both regulatory and/or non-
regulatory purposes, of the trading of Nasdaq Securities on the 
Exchange, including Rules 51--, 80B--, 123D-- and 510--NYSE Amex 
Equities.
    In addition, the Exchange will halt or suspend trading in a Nasdaq 
Security when trading in that security has been halted or suspended by 
the UTP Listing Market for regulatory reasons in accordance with its 
rules and/or the UTP Plan.\38\ The Exchange will also halt or suspend 
trading in a Nasdaq Security when the authority under which the 
security trades on the Exchange or the UTP Listing Market has been 
revoked. This can occur when the Nasdaq Security at issue is no longer 
designated as an ``eligible security'' pursuant to the UTP Plan or is 
no longer listed with the UTP Listing Market. Also, if the Exchange has 
removed a Nasdaq Security from dealings trading will be halted or 
suspended.\39\
---------------------------------------------------------------------------

    \38\ Under proposed Rule 501--NYSE Amex Equities, the Exchange 
defines the term ``UTP Listing Market'' to have the same meaning as 
the term ``Listing Market'', as defined under the ``UTP Plan'' (also 
defined therein).
    \39\ The provisions of Rule 123D(4)--NYSE Amex Equities, which 
prescribe a special trading halt of ``Structured Products'' that 
were listed on the Exchange at the time the trading of equities 
securities migrated from the Exchange's legacy systems and 
facilities at 86 Trinity Place to 11 Wall Street, shall not apply to 
the trading of Nasdaq Securities.
---------------------------------------------------------------------------

    In the event that trading of a Nasdaq Security or Nasdaq Securities 
is halted or suspended pursuant to proposed Rule 515--NYSE Amex 
Equities, trading of the affected security or securities on the 
Exchange will resume in accordance with the procedures of applicable 
NYSE Amex Equities Rules, including Rule 508--NYSE Amex Equities, the 
rules of the UTP Listing Market and/or the UTP Plan. Any orders for a 
Nasdaq Security that are unexecuted at the time trading is halted on 
the Exchange shall be cancelled and the Exchange shall not accept any 
new orders for the affected security for the duration of the halt.
13. Proposed Rules 516-- and 518--NYSE Amex Equities (Reporting and 
Recordkeeping; Clearance and Settlement)
    As described more fully below, under proposed Rule 516--NYSE Amex 
Equities: (1) Members and member organizations trading Nasdaq 
Securities on the Exchange are subject to Rules 123-- and 132B--NYSE 
Amex Equities; (2) if a member or member organization is also a FINRA 
member subject to FINRA's Rule 7400 Series, such a firm is exempt from 
Rules 123-- and 132B--NYSE Amex Equities; and (3) regardless of whether 
or not a FINRA member, a Floor broker that receives an order in a 
Nasdaq Security from another member via Exchange systems will be 
subject to Rules 123-- and 132B--NYSE Amex Equities and exempt from 
FINRA's Rule 7400 Series.
    Rules 123-- and 132B--NYSE Amex Equities, inter alia, make up the 
Exchange's transaction audit trail system.\40\ Specifically, Rule 
132B--NYSE Amex Equities prescribes order tracking requirements for 
transactions conducted on the Exchange. In relevant part, members and 
member organizations are required to record and maintain certain 
details of an order in an electronic order tracking system (``OTS''). 
In addition, Rules 123(e)-- and (f)--NYSE Amex Equities require members 
and member organizations that act as Floor brokers to record certain 
details of orders received on the Floor and executed on the Exchange in 
the Exchange's Front-End System Capture (``FESC''). Because the 
Exchange's members and member organizations must already comply with 
these requirements for the purposes of trading listed securities, 
trading Nasdaq Securities on the Exchange does not present any 
difficulties under these particular Rules.
---------------------------------------------------------------------------

    \40\ In addition, Rule 132A--NYSE Amex Equities requires members 
and member organizations to synchronize their business clocks for 
recording and Rule 132C--NYSE Amex Equities requires members and 
member organizations to transmit audit trail records to the Exchange 
upon request.
---------------------------------------------------------------------------

    However, the Exchange's OTS and FESC requirements are not the only 
audit trail requirements for trading Nasdaq Securities on the Exchange. 
Currently, most of the Exchange's members and member organizations are 
also FINRA members and FINRA requires all trades in Nasdaq-listed 
securities by its members, regardless of the market, to be reported to 
its Order Audit Trail System (``OATS''), FINRA Rule Series 7400. 
Although FINRA's

[[Page 20411]]

OATS contains substantially the same order information as the 
Exchange's OTS and FESC, FINRA's OATS data is in a different format 
from the data recorded by OTS and FESC and the systems are not directly 
compatible. As a result, for those dual NYSE Amex/FINRA members and 
member organizations that intend to enter and/or execute orders in 
Nasdaq Securities on both the Exchange and other markets, compliance 
with both the Exchange's and FINRA's audit trail requirements for the 
purposes of trading Nasdaq Securities on the Exchange is not readily 
feasible.
    Due to this conflict, proposed Rule 516--NYSE Amex Equities 
includes an exemption from the requirements of Rules 123-- and 132B--
NYSE Amex Equities for any members or member organizations that are 
also FINRA members and subject to the requirements of FINRA's OATS 
(FINRA Rule 7400). In addition, because NYSE Amex has not previously 
traded Nasdaq-listed securities on the Exchange, some members and 
member organizations, particularly Floor brokers that have previously 
only conducted transactions in Exchange-listed securities, do not have 
OATS-compliant systems and procedures. With the introduction of trading 
Nasdaq Securities on NYSE Amex, certain members and member 
organizations (and/or the Exchange) could incur significant expense 
and/or delay if forced to convert to OATS-compliant systems.
    To address this issue, the Exchange has sought, and expects to 
receive formal confirmation of, interpretive guidance from FINRA that 
its Rule 7440(c)(6) exempts from FINRA's OATS requirements those Floor 
brokers who, regardless of their FINRA membership, receive an order in 
a Nasdaq Security that is first routed to the Exchange through Exchange 
systems (i.e. the Common Customer Gateway, or ``CCG'').\41\ Most orders 
received by a Floor broker are received through CCG, where the orders 
are automatically captured in the systems that feed the Exchange's 
audit trail and then processed in accordance with their instructions. 
However, in the case of orders in Nasdaq Securities that are received 
by a Floor broker by means other than an Exchange system (e.g., orders 
received over the telephone), the Floor broker would need to comply 
with FINRA's OATS requirements. In addition, any Floor broker member 
firm approved to route orders away from the Exchange pursuant to Rule 
70.40--NYSE Amex Equities, and orders in Nasdaq Securities handled by 
such firms, would be subject to FINRA's OATS requirements.
---------------------------------------------------------------------------

    \41\ When acting in the capacity of a market maker for a Nasdaq 
Security, a DMM Unit is exempt from FINRA's OATS requirements. See 
FINRA Rule 7410(j).
---------------------------------------------------------------------------

    Under proposed Rule 516--NYSE Amex Equities the Exchange with [sic] 
have access to a complete audit trail and there will be no gap in 
regulatory oversight. For dual NYSE Amex/FINRA members, FINRA's OATS 
rules will apply to an order in a Nasdaq Security up to when it is 
routed to the Exchange. At that point, if the order is transmitted to a 
Floor broker via an Exchange system, the Exchange's OTS and FESC 
requirements will capture its subsequent handling and execution on the 
Exchange. And, all Exchange-only, non-FINRA members or member 
organizations will be subject to the Exchange's OTS and FESC 
requirements throughout the handling of an order for a Nasdaq Security. 
To ensure proper oversight of trading Nasdaq Securities, the Exchange 
and FINRA can provide each other with copies of relevant audit trail 
records and/or data pursuant to the Intermarket Surveillance Group 
(``ISG''). Similarly, NYSE Amex will disseminate reports of executions 
of Nasdaq Securities on the Exchange in accordance with applicable NYSE 
Amex Equities Rules and the UTP Plan.
    Finally, under proposed Rule 518--NYSE Amex Equities, members and 
member organizations that conduct transactions involving Nasdaq 
Securities on the Exchange will be required to comply with all 
applicable NYSE Amex Equities Rules related to clearance and settlement 
of such transactions.
    Including Rules 123-- and 132B--NYSE Amex Equities, Rules 342-- and 
351--NYSE Amex Equities, which require members and member organizations 
to provide any trading information requested by the Exchange, also need 
to be amended. In particular, the Exchange proposes to add language to 
each of these rules specifying that they apply to both securities 
listed on the Exchange and securities ``traded'' on the Exchange, which 
includes Nasdaq Securities. See, e.g., Rule 123--NYSE Amex Equities, 
Exhibit 5.
14. Proposed Rule 522--NYSE Amex Equities (Limitation of Liability)
    Because the Exchange will be relying on data feeds from the UTP 
Listing Market for the trading of Nasdaq Securities, the Exchange 
proposes to include a specific provision limiting liability for any 
loss, damage, claim or expense arising from any inaccuracy, error, 
delay or omission of any data or information regarding Nasdaq 
Securities, including, but not limited to, the collection, calculation, 
compilation, reporting or dissemination of any Nasdaq Security 
Information, as defined in Rule 522--NYSE Amex Equities, except as 
provided in Rules 17-- and 18--NYSE Amex Equities. In addition, the 
Exchange also expressly disclaims making any express or implied 
warranties with respect to any Nasdaq Security, any Nasdaq Security 
Information, or the underlying index, portfolio or instrument that is 
the basis for determining the component securities of an ETF. See 
Exhibit 5.

Proposed Amendments to Current NYSE Amex Equities Rules

    The Exchange proposes to amend certain existing NYSE Amex Equities 
rules to accommodate the trading of Nasdaq Securities on the Exchange.
1. Rule 2A--NYSE Amex Equities (Jurisdiction)
    Rule 2A(b)--NYSE Amex Equities currently provides that the Exchange 
has jurisdiction to approve listings applications for securities 
admitted to dealings on the Exchange and may also suspend or remove 
such securities from trading. The Exchange proposes to amend this Rule 
to include the approval of the trading of Nasdaq Securities admitted to 
dealings on the Exchange.
2. Rule 103B--NYSE Amex Equities (Security Allocation and Reallocation)
    Rule 103B--NYSE Amex Equities prescribes the criteria and 
procedures for the allocation and/or reallocation of NYSE Amex-listed 
equities securities to registered and qualified DMM Units. In 
particular, part IX of the Rule currently provides that NYSE Amex-
listed equities securities must be allocated to posts on the Exchange 
Trading Floor that are exclusively designated for the trading of NYSE 
Amex securities.
    NYSE Amex-listed equities securities currently trade on Posts 1 and 
2 on the Trading Floor. However, there are not enough panels on those 
posts to accommodate the trading of additional hundreds of Nasdaq 
Securities. In order to accommodate the trading of Nasdaq Securities, 
the Exchange needs to be able to trade NYSE Amex-listed and Nasdaq 
Securities on additional posts.
    The Exchange therefore proposes to amend Rule 103B--NYSE Amex 
Equities to permit NYSE Amex-listed securities and securities admitted 
to dealings on the Exchange on a UTP basis to trade on posts throughout 
the Trading Floor. To prevent any confusion that could arise among 
members trading

[[Page 20412]]

both NYSE-listed and NYSE Amex-listed or traded securities, which trade 
under different rules, proposed Rule 103B(IX) would provide that NYSE 
Amex-listed and/or traded (i.e. Nasdaq Securities) securities shall 
only be assigned to panels designated for the trading of such 
securities.
    A DMM Unit that is registered to trade both NYSE and NYSE Amex-
listed securities, as well as Nasdaq Securities, could trade these 
securities at the same post. However, DMM Unit staff would not be 
permitted to simultaneously trade both NYSE and NYSE Amex/Nasdaq 
securities, and the DMM Unit would need to commit staff to trade NYSE 
listed securities separate from staff committed to trade NYSE Amex 
listed or traded securities at any given time during the trading day. 
Intraday staff moves between panels would be permitted, however.

Proposed Amendments to Non-NYSE Amex Equities Rule 476A

    Finally, the Exchange proposes to amend Non-NYSE Amex Equities Rule 
476A Part 1A to include certain of the proposed NYSE Amex Equities Rule 
500 Series in the Exchange's Minor Rule Violation Plan. Included are:
     Rule 502--NYSE Amex Equities prohibition on making a bid, 
offer or transaction, or routing an order, for Nasdaq Securities on or 
from Exchange systems before 9:30 a.m. or after the close of the Off-
Hours Trading session.
     Rule 504(b)(5)--NYSE Amex Equities requirement for a DMM 
Unit registered in a Nasdaq Security that is an Exchange Traded Fund to 
report the listed concentration measures.
     Rule 504(b)(6)--NYSE Amex Equities requirement to commit 
staff for the trading of NYSE-listed securities separate from that for 
the trading of Exchange-listed securities and/or Nasdaq Securities and 
prohibition on trading NYSE-listed securities together with Exchange-
listed securities and/or Nasdaq Securities at the same time.
     Rule 508(a)(2)--NYSE Amex Equities requirement for a DMM 
Unit to open trading in Nasdaq Securities at 9:30 a.m. or as soon 
thereafter as possible.
     Rule 508(b)(2)--NYSE Amex Equities requirements for 
closing a Nasdaq Security in a manual or slow market.
     Rule 509(a)--NYSE Amex Equities requirements for DMM 
Units.
     Rule 509(b)--NYSE Amex Equities requirements for DMM 
communications from the Floor.
     Rule 510(c)--NYSE Amex Equities requirements for 
dissemination and distribution of information for Nasdaq Securities 
that are derivative securities products.
     Rules 513-- and 514--NYSE Amex Equities prohibitions on 
proprietary trading ahead of customer orders.
     Rule 516--NYSE Amex Equities requirements for reporting 
and recordkeeping of transactions in Nasdaq Securities.
     Rule 518--NYSE Amex Equities requirements for clearance 
and settlement of transactions in Nasdaq Securities.
    Violations of these Rules will be subject to the fine schedule in 
Rule 476A. For individuals, first offenses may be charged $500.00, 
second offenses may be charged $1,000.00, and subsequent offenses may 
be charged $2,500.00. For member firms, first offenses may be charged 
$1,000.00, second offenses may be charged $2,500.00, and subsequent 
offenses may be charged $5,000.00.
2. Statutory Basis
    The Exchange believes that the proposed rule changes are consistent 
with, and further the objectives of, Section 6(b)(5) of the Act,\42\ in 
that they are 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 proposed rule changes also 
support the principles of Section 11A(a)(1) \43\ of the Act in that 
they seek to ensure the economically efficient execution of securities 
transactions and fair competition among brokers and dealers and among 
exchange markets. The proposed rule changes also support the principles 
of Section 12(f) of the Act, which govern the trading of securities 
pursuant to a grant of unlisted trading privileges consistent with the 
maintenance of fair and orderly markets, the protection of investors 
and the public interest, and the impact of extending the existing 
markets for such securities.
---------------------------------------------------------------------------

    \42\ 15 U.S.C. 78f(b)(5).
    \43\ 15 U.S.C. 78k-1(a)(1).
---------------------------------------------------------------------------

    The Exchange believes that the proposed rule changes are consistent 
with these principles. By providing for the trading of Nasdaq 
Securities on the Exchange on a UTP basis, the Exchange believes its 
proposal will lead to the addition of liquidity to the broader market 
for these securities and to increased competition among the existing 
group of liquidity providers. The Exchange also believes that, by so 
doing, the proposed rule changes will encourage the additional 
utilization of, and interaction with, the NYSE Amex Equities market, 
and provide market participants with improved price discovery, 
increased liquidity, more competitive quotes and greater price 
improvement for Nasdaq Securities.

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 self-regulatory organization consents, the Commission will:
    (A) By order approve such 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 Number SR-NYSEAmex-2010-31 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-NYSEAmex-2010-31. This 
file number should be included on the

[[Page 20413]]

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 publicly available. All submissions should refer to 
File Number SR-NYSEAmex-2010-31 and should be submitted on or before 
May 10, 2010.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\44\
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    \44\ 17 CFR 200.30-3(a)(12) and 200.30-3(a)(44).
---------------------------------------------------------------------------

Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-8859 Filed 4-16-10; 8:45 am]
BILLING CODE 8011-01-P