Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”), and Rule 19b-4 thereunder, notice is hereby given that on October 28, 2009, NASDAQ OMX PHLX, Inc. (“Phlx” or “Exchange”) filed with the Securities and Exchange Commission (“SEC” or “Commission”) the proposed rule change as described in Items I, II and III below, which Items have been prepared by the Exchange. Phlx filed Amendment No. 1 to the proposal on November 5, 2009. 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 is filing with the Commission a proposal to designate seventy-five options classes to be added to the Penny Pilot in options classes in certain issues (“Penny Pilot” or “Pilot”) on November 2, 2009. The Exchange is not proposing to amend any rule text, but simply administering or enforcing an existing rule.
The text of the proposed rule change is available on the Exchange's Web site at http://nasdaqomxphlx.cchwallstreet.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 Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change
The purpose of this filing is to identify the next seventy-five options classes to be added to the Penny Pilot effective November 2, 2009.
In the Exchange's immediately effective filing to extend and expand the Penny Pilot through December 31, Start Printed Page 593322010, the Exchange proposed expanding the Pilot four times on a quarterly basis. Each such quarterly expansion would be of the next seventy-five most actively traded multiply listed options classes based on the national average daily volume (“ADV”) for the six months prior to selection, closing under $200 per share on the Expiration Friday prior to expansion; however, the month immediately preceding the addition of options to the Penny Pilot will not be used for the purpose of the six month analysis. Index option products would be included in the quarterly expansions if the underlying index levels were under 200.
The Exchange is identifying, in the chart below, seventy-five options classes that it will add to the Penny Pilot on November 2, 2009, based on ADVs from April 1, 2009, through September 30, 2009.
|Nat'l ranking||Symbol||Company name|
|118||ABX||Barrick Gold Corp.|
|48||AXP||American Express Co.|
|134||AUY||Yamana Gold Inc.|
|111||BBY||Best Buy Co Inc.|
|67||CHK||Chesapeake Energy Corp.|
|58||CIT||CIT Group Inc.|
|78||COF||Capital One Financial Corp.|
|130||DE||Deere & Co.|
|104||DOW||Dow Chemical Co/The.|
|88||EFA||iShares MSCI EAFE Index Fund.|
|64||ETFC||E*Trade Financial Corp.|
|32||EWZ||iShares MSCI Brazil Index Fund.|
|25||FAS||Direxion Daily Financial Bull 3X Shares.|
|33||FAZ||Direxion Daily Financial Bear 3X Shares.|
|120||MRK||Merck & Co Inc/NJ.|
|73||NLY||Annaly Capital Management Inc.|
|37||PBR||Petroleo Brasileiro SA.|
|85||PG||Procter & Gamble Co/The.|
|41||POT||Potash Corp of Saskatchewan Inc.|
|74||RF||Regions Financial Corp.|
|103||S||Sprint Nextel Corp.|
|83||SDS||ProShares UltraShort S&P500.|
|122||SKF||ProShares UltraShort Financials.|
|91||SLV||iShares Silver Trust.|
|84||SRS||Pro Shares Ultra Short Real Estate.|
|112||FITB||Fifth Third Bancorp.|
|70||FSLR||First Solar Inc.|
|26||FXI||iShares FTSE/Xinhua China 25 Index Fund.|
|82||GDX||Market Vectors—Gold Miners ETF.|
|18||GLD||SPDR Gold Trust.|
|129||HGSI||Human Genome Sciences Inc.|
|62||HIG||Hartford Financial Services Group Inc.|
|59||IBM||International Business Machines Corp.|
|45||IYR||iShares Dow Jones U.S. Real Estate Index Fund.|
|105||JNJ||Johnson & Johnson.|
|131||JNPR||Juniper Networks Inc.|
|39||LVS||Las Vegas Sands Corp.|
|119||SSO||ProShares Ultra S&P500.|
|101||STI||SunTrust Banks Inc.|
|125||SVNT||Savient Pharmaceuticals Inc.|
|Start Printed Page 59333|
|92||TBT||ProShares UltraShort 20+ Year Treasury.|
|14||UNG||United States Natural Gas Fund LP.|
|117||UNH||UnitedHealth Group Inc.|
|110||UPS||United Parcel Service Inc.|
|44||USO||United States Oil Fund LP.|
|60||UYG||ProShares Ultra Financials.|
|10||WFC||Wells Fargo & Co.|
|133||WYNN||Wynn Resorts Ltd.|
|52||X||United States Steel Corp.|
|114||XHB||SPDR S&P Homebuilders ETF.|
|86||XLI||Industrial Select Sector SPDR Fund.|
|79||XLU||Utilities Select Sector SPDR Fund.|
|54||XRT||SPDR S&P Retail ETF.|
2. Statutory Basis
The Exchange believes that its proposal is consistent with Section 6(b) of the Act  in general, and furthers the objectives of Section 6(b)(5) of the Act  in particular, in that it is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, and to remove impediments to and perfect the mechanisms of a free and open market and a national market system, by identifying the options classes to be added to the Penny Pilot in a manner consistent with prior approvals and filings.
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 either solicited or received.
III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action
Pursuant to Section 19(b)(3)(A)(i) of the Act  and Rule 19b-4(f)(1) thereunder, the Exchange has designated this proposal as one constituting a stated policy, practice, or interpretation with respect to the meaning, administration, or enforcement of an existing rule.
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:
- Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
- Send an e-mail to email@example.com. Please include File Number SR-Phlx-2009-94 on the subject line.
- Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-Phlx-2009-94. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for 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 filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File No. SR-Phlx-2009-94 and should be submitted on or before December 8, 2009.Start Signature
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Florence E. Harmon,
3. In Amendment No. 1, Phlx proposed to correct a technical error in Section III. The change has no effect on the substance of the proposed rule change.Back to Citation
4. The Penny Pilot was established in January 2007 and in October 2009 was expanded and extended through December 31, 2010. See Securities Exchange Act Release Nos. 55153 (January 23, 2007), 72 FR 4553 (January 31, 2007) (SR-Phlx-2006-74) (notice of filing and approval order establishing Penny Pilot); and 60873 (October 23, 2009) (SR-Phlx-2009-91) (notice of filing and immediate effectiveness expanding and extending Penny Pilot).Back to Citation
5. See Rule 1034 regarding the Penny Pilot.Back to Citation
6. See Securities Exchange Act Release No. 60873 (October 23, 2009) (SR-Phlx-2009-91) (notice of filing and immediate effectiveness).Back to Citation
[FR Doc. E9-27470 Filed 11-16-09; 8:45 am]
BILLING CODE 8011-01-P