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Notice

Self-Regulatory Organizations; International Securities Exchange, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to the Definition of “Primary Market”

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Start Preamble April 1, 2009.

Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),[1] and Rule 19b-4 thereunder,[2] notice is hereby given that on March 25, 2009, the International Securities Exchange, LLC (the “Exchange” or the “ISE”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I, II, and III below, which items have been prepared by the Exchange. The Exchange has filed the proposal pursuant to Section 19(b)(3)(A) of the Act [3] and Rule 19b-4(f)(6) thereunder,[4] which renders the proposal effective upon filing with the Commission. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons.

I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change

The Exchange proposes to amend Rule 701 (Trading Rotations) to replace references to the “primary market” with respect to an underlying security with references to “market for the underlying security.” The text of the proposed rule change is available on the Exchange's Web site http://www.ise.com, at the principal office of the Exchange, and at the Commission's Public Reference Room.

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

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

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

1. Purpose

The purpose of the proposed rule change is to amend the current definition of “primary market” in ISE Rule 701 to allow the Primary Market Makers (“PMMs”) more flexibility in opening trading in a particular class of options.

Currently, Exchange Rule 701(b)(2) requires that the PMM open each class of options promptly following the opening of the underlying security in the primary market where it is traded. An underlying security is deemed to be open on the primary market where it is traded if such market has (i) reported a transaction in the underlying security, or (ii) disseminated opening quotations for the underlying security and not given an indication of the delayed opening, whichever occurs first.

The Exchange believes that the current definition of “primary market” and when a security on such primary market has been “opened for trading” is insufficient to capture the various marketplaces that might be determined to be the “primary market” for such underlying securities. Because underlying securities trade on multiple exchange platforms and various Electronic Communication Networks (“ECNs”) and other venues, the term “primary market” has become increasingly difficult to define in determining the principal market in which the underlying security is traded.

Accordingly, the Exchange proposes to amend Rule 701 to eliminate the requirement that PMMs wait to open each class of options until the “primary market” has opened the underlying security, and redefine “primary market” by adopting a definition of “market for the underlying security”. Under this proposal, the term “market for the underlying security” would mean either the primary listing market, the primary volume market (defined as the market with the most liquidity in that underlying security for the previous two calendar months), or the first market to open the underlying security as determined by the Exchange on an issue-by-issue basis and communicated to the members on the Exchange's Web site.

The Exchange believes that the elimination of the term “primary market” from rule, together with the proposed definition of “market for the underlying security,” will allow PMMs to open classes of options expeditiously and in tandem with the other markets, thus allowing for a more orderly opening rotation.

2. Statutory Basis

The basis under the Act for this proposed rule change is the requirement under Section 6(b)(5) that an exchange have rules that are designed to promote just and equitable principles of trade, and to remove impediments to and perfect the mechanism for a free and open market and a national market system, and in general, to protect investors and the public interest. The Exchange believes that the proposed rule change will provide PMMs greater flexibility in opening trading in options, which should result in options opening across all markets in a fair and orderly manner.

B. Self-Regulatory Organization's Statement on Burden on Competition

The proposed rule change does not 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

The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.

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

The Exchange has designated the proposed rule change as one that: (i) Does not significantly affect the Start Printed Page 15789protection of investors or the public interest; (ii) does not impose any significant burden on competition; and (iii) by its terms, does not become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest. Additionally, the Exchange provided the Commission with written notice of its intention to file the proposed rule change at least five business days before its filing. Therefore, the foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act [5] and Rule 19b-4(f)(6) thereunder.[6] The Exchange believes that the proposed rule change will provide PMMs with greater flexibility in opening trading in options, which should result in options opening across all markets in a fair and orderly manner. Additionally, this proposed rule change is substantially similar to Chicago Board Options Exchange (“CBOE”) Rule 6.2B(b) [7] and NASDAQ OMX PHLX, Inc. (“Phlx”) Rule 1017.[8] For the foregoing reasons, this rule filing qualifies for immediate effectiveness as a “non-controversial” rule change under paragraph (f)(6) of Rule 19b-4 of the Act.[9]

At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.

IV. Solicitation of Comments

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

Electronic Comments

Paper Comments

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

All submissions should refer to File Number SR-ISE-2009-13. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commissions Internet Web site (http://www.sec.gov/​rules/​sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room, 100 F Street, NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. Copies of such filings also will be available for inspection and copying at the principal office of the ISE. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-ISE-2009-13 and should be submitted on or before April 28, 2009.

Start Signature

For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.[10]

Florence E. Harmon,

Deputy Secretary.

End Signature End Preamble

Footnotes

7.  See Securities Exchange Act Release No. 56600 (October 2, 2007), 72 FR 57619 (October 10, 2007)(SR-CBOE-2007-88).

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8.  See Securities Exchange Act Release No. 58929 (November 12, 2008), 73 FR 68471 (November 18, 2008)(SR-Phlx-2008-75).

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[FR Doc. E9-7833 Filed 4-6-09; 8:45 am]

BILLING CODE 8010-01-P