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Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of Filing of Proposed Rule Change To Retroactively Correct an Error in Rule 7018

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Information about this document as published in the Federal Register.

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Start Preamble September 8, 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 August 28, 2009, NASDAQ OMX BX, Inc. Start Printed Page 47850(“BX”) [3] filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I, II, and III below, which Items have been prepared by the Exchange. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons.

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

BX is filing a proposed rule change to apply retroactively to the period from April 1, 2009 through August 16, 2009 the correction made by SR-BX-2009-049 of a typographical error formerly in Rule 7018. There is no proposed rule text.

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

In its filing with the Commission, BX 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.

BX 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

BX recently submitted a filing to correct a typographical error in Rule 7018.[4] That filing was immediately effective upon the date of its filing, August 17, 2009. The purpose of this filing is to apply the correction of the typographical error retroactively to the period from April 1, 2009 through August 16, 2009.

In SR-BX-2009-018,[5] BX modified its pricing for execution of orders in securities listed on The NASDAQ Stock Market (“NASDAQ”) and the New York Stock Exchange (“NYSE”) by, among other things, replacing a charge to access liquidity of $0.0014 per share executed with a credit of $0.0006 per share executed. This change was accurately described in the “Purpose” section of BX's Form 19b-4 filing,[6] in the Commission's notice of the filing on the SEC Web site [7] and in the Federal Register,[8] in widely disseminated announcements of the pricing change,[9] and in the pricing schedule that appears on BX's market Web site.[10] However, due to a typographical error, the credit incorrectly appeared as “$0.006” in Exhibit 5 to the filing.

BX has been billing members in accordance with the correct fee since the effective date of the change in April 2009, and accordingly believes that all of its members that trade on the NASDAQ OMX BX Equities System are cognizant of the correct fee. BX submitted SR-BX-2009-049 on an immediately effective basis to correct the error, and is now submitting this filing to seek Commission approval to apply the correction retroactively to the period from April 1, 2009 through August 16, 2009.

2. Statutory Basis

BX believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,[11] in general, and with Section 6(b)(5) of the Act,[12] in particular, in that it is designed to remove impediments to and perfect the mechanism of a free and open market and a national market system. The proposed rule change will ensure that a recently filed correction of a typographical error in BX Rule 7018 is applied retroactively throughout the entire period when the error was in the rule.

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

BX does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.

C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others

Written comments were neither solicited nor received.

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

Paper Comments

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

All submissions should refer to File Number SR-BX-2009-055. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (​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, on official business days between the hours of 10 a.m. and 3 p.m. Copies of such filing also will be available for Start Printed Page 47851inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-BX-2009-055 and should be submitted on or before October 8, 2009.

Start Signature

For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.[13]

Florence E. Harmon,

Deputy Secretary.

End Signature End Preamble


3.  The Commission notes that BX also refers to itself as the “Exchange” in this proposed rule change.

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4.  SR-BX-2009-049 (August 17, 2009).

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5.  Securities Exchange Act Release No. 59682 (April 1, 2009), 74 FR 16015 (April 8, 2009) (SR-BX-2009-018).

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8.  See Securities Exchange Act Release No. 59682 (April 1, 2009), 74 FR 16015 (April 8, 2009) (SR-BX-2009-018).

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[FR Doc. E9-22366 Filed 9-16-09; 8:45 am]