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 April 27, 2010, NASDAQ OMX PHLX, Inc. (“Phlx” or “Exchange”) filed with the Securities and Exchange Commission (“SEC” or “Commission”) the proposed rule change as described in Items I, II, and III, below, which Items have been prepared by the Exchange. 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 Program (“Penny Pilot” or “Pilot”) on May 3, 2010. 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/NASDAQOMXPHLX/Filings/, 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 May 3, 2010.
In the Exchange's immediately effective filing to extend and expand the Penny Pilot through December 31, 2010, 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 May 3, 2010, based on ADVs for the six months ending March 31, 2010.
|Nat'l ranking||Symbol||Security name||Nat'l ranking||Symbol||Security name|
|153||XLV||Health Care Select Sector SPDR Fund||247||JCP||JC Penney Co Inc.|
|155||CIEN||Ciena Corp||248||ACL||Alcon Inc.|
|157||AMLN||Amylin Pharmaceuticals Inc||249||STP||Suntech Power Holdings Co Ltd.|
|158||CTIC||Cell Therapeutics Inc||250||TLB||Talbots Inc.|
|159||MDT||Medtronic Inc||251||SYMC||Symantec Corp.|
|162||TIVO||TiVo Inc||253||AMED||Amedisys Inc.|
|163||MNKD||MannKind Corp||255||TM||Toyota Motor Corp.|
|171||MDVN||Medivation Inc||257||HK||Petrohawk Energy Corp.|
|176||BRKB||Berkshire Hathaway Inc||258||ENER||Energy Conversion Devices Inc.|
|178||APOL||Apollo Group Inc||259||STT||State Street Corp.|
|181||BSX||Boston Scientific Corp||260||BHP||BHP Billiton Ltd.|
|185||XLY||Consumer Discretionary Sel. Sec. SPDR Fund||261||NFLX||NetFlix Inc.|
|188||CLF||Cliffs Natural Resources Inc||262||LDK||LDK Solar Co Ltd.|
|190||ZION||Zions Bancorporation||263||SPG||Simon Property Group Inc.|
|194||IOC||InterOil Corp||264||TIF||Tiffany & Co.|
|197||ITMN||InterMune Inc||265||BUCY||Bucyrus International Inc.|
|204||GME||GameStop Corp||266||WAG||Walgreen Co.|
|209||XLK||Technology Select Sector SPDR Fund||268||IP||International Paper Co.|
|210||AKS||AK Steel Holding Corp||271||XME||SPDR S&P Metals & Mining ETF.|
|212||GRMN||Garmin Ltd||272||KGC||Kinross Gold Corp.|
|213||MRVL||Marvell Technology Group Ltd||273||EP||El Paso Corp.|
|215||XLP||Consumer Staples Select Sector SPDR Fund||274||SEED||Origin Agritech Ltd.|
|Start Printed Page 25891|
|216||UNP||Union Pacific Corp||275||WIN||Windstream Corp.|
|220||DTV||DIRECTV||279||DHI||DR Horton Inc.|
|223||WMB||Williams Cos Inc/The||280||ADBE||Adobe Systems Inc.|
|225||MEE||Massey Energy Co||281||PCX||Patriot Coal Corp.|
|227||CELG||Celgene Corp||282||SPWRA||SunPower Corp.|
|229||GMCR||Green Mountain Coffee Roasters Inc||284||LCC||US Airways Group Inc.|
|231||WDC||Western Digital Corp||285||PRU||Prudential Financial Inc.|
|234||DAL||Delta Air Lines Inc||286||LEN||Lennar Corp.|
|235||FXE||CurrencyShares Euro Trust||287||EWT||iShares MSCI Taiwan Index Fund.|
|237||COST||Costco Wholesale Corp||288||KBH||KB Home.|
|239||MJN||Mead Johnson Nutrition Co||289||CREE||Cree Inc.|
|240||ALL||Allstate Corp/The||290||SIRI||Sirius XM Radio Inc.|
|241||SII||Smith International Inc||291||MMR||McMoRan Exploration Co.|
|242||RTN||Raytheon Co||292||CENX||Century Aluminum Co.|
|243||DVN||Devon Energy Corp||293||GFI||Gold Fields Ltd.|
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 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 firstname.lastname@example.org. Please include File Number SR-Phlx-2010-65 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-2010-65. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street, NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. Copies of such filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-Phlx-2010-65 and should be submitted on or before June 1, 2010.Start Signature
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Florence E. Harmon,
3. 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); 60873 (October 23, 2009), 74 FR 56675 (November 2, 2009) (SR-Phlx-2009-91) (notice of filing and immediate effectiveness expanding and extending Penny Pilot); and 60966 (November 9, 2009), 74 FR 59331 (November 17, 2009) (SR-Phlx-2009-94) (notice of filing and immediate effectiveness adding seventy-five classes to Penny Pilot); and 61454 (February 1, 2010), 75 FR 6233 (February 8, 2010) (SR-Phlx-2010-12) (notice of filing and immediate effectiveness adding seventy-five classes to Penny Pilot).Back to Citation
4. See Rule 1034 regarding the Penny Pilot.Back to Citation
5. See Securities Exchange Act Release No. 60873 (October 23, 2009), 74 FR 56675 (November 2, 2009) (SR-Phlx-2009-91) (notice of filing and immediate effectiveness).Back to Citation
[FR Doc. 2010-10964 Filed 5-7-10; 8:45 am]
BILLING CODE 8010-01-P