[Federal Register: September 26, 2008 (Volume 73, Number 188)]
[Notices]
[Page 55887-55888]
[DOCID:fr26se08-98]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-58596; File No. SR-NYSEArca-2008-98]

Self-Regulatory Organizations; Notice of Filing and Immediate
Effectiveness of Proposed Rule Change by NYSE Arca, Inc., Amending NYSE
Arca Equities Rule 7.35 Governing Auctions

September 19, 2008.
    Pursuant to section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby
given that, on September 15, 2008, NYSE Arca, Inc. (``NYSE Arca'' or
the ``Exchange'') filed with the Securities and Exchange Commission
(the ``Commission'') the proposed rule change as described in Items I
and II 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.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 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 amend NYSE Arca Equities Rule 7.35(c) and
(e) to permit the Exchange to conduct a Market Order Auction and a
Closing Auction in all exchange listed ``Derivative Securities
Products'' as defined by NYSE Arca Equities Rule 7.34(a)(4)(A).

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 amend NYSE Arca Equities Rule 7.35(c) and
(e) to permit the Exchange to conduct a Market Order Auction and a
Closing Auction in all exchange listed ``Derivative Securities
Products'' as defined by NYSE Arca Equities Rule 7.34(a)(4)(A).
    Currently NYSE Arca Equities Rule 7.35(c) states that the Exchange
will conduct a Market Order Auction in (i) exchange-listed securities
for which the Corporation is the primary market; (ii) all exchange-
listed exchange traded funds; and (iii) NYSE listed securities subject
to a sub-penny trading condition. Similarly, NYSE Arca Equities Rule
7.35(e) states that the Exchange will conduct a Closing Auction in (i)
exchange-listed securities for which the Corporation is the primary
market; (ii) all exchange-listed exchange traded funds; and (iii) NYSE
listed securities subject to a sub-penny trading condition. The
Exchange proposes to expand subpart (ii) in both Rules by replacing the
term ``exchange-listed exchange traded funds'' with the term
``exchange-listed Derivative Securities Products'' as that term is
defined in NYSE Arca Equities Rule 7.34(a)(4)(A).
    The Exchange believes this rule change will foster increased
liquidity by expanding the type of securities eligible for Market Order
and Closing auctions. This proposed amendment is also consistent with
Rules 4752 and 4754 of the Nasdaq Stock Market, L.L.C. (``Nasdaq''),
which do not limit the securities or products that may be traded in the
opening and closing auctions.
2. Statutory Basis
    The proposed rule change is consistent with section 6(b) of the Act

in general, and furthers the objectives of section 6(b)(5) 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 mechanism of a free and open
market and a national market system. This proposed rule change will
foster increased liquidity by expanding the type of securities eligible
for Market Order and Closing auctions.

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

    The proposed rule change has become effective pursuant to section
19(b)(3)(A) of the Act \4\ and Rule 19b-4(f)(6) thereunder \5\ because
the foregoing proposed rule: (1) Does not significantly affect the
protection of investors or the public interest; (2) does not impose any
significant burden on competition; and (3) does not become operative
for 30 days after the date of filing, or such shorter time as the
Commission may designate if consistent with the protection of investors
and the public interest.\6\ The Exchange notes that this filing does
not propose any new policies or provisions that are unique or unproven,
and is consistent with Nasdaq Rules 4752 and 4754.
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    \4\ 15 U.S.C. 78s(b)(3)(A).
    \5\ 17 CFR 240.19b-4(f)(6).
    \6\ In addition, Rule 19b-4(f)(6)(iii) requires the self-
regulatory organization to give the Commission notice of its intent
to file the proposed rule change, along with a brief description and
text of the proposed rule change, at least five business days prior
to the date of filing of the proposed rule change, or such shorter
time as designated by the Commission. NYSE Arca has satisfied this
requirement.
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    The Exchange has asked the Commission to waive the 30-day operative
delay and designate the proposed rule change as operative upon filing.
The Commission hereby grants the Exchange's request.\7\ The Commission
believes that such action is consistent with the protection of
investors and the public interest because the Exchange's proposal is
similar to that of another exchange that was previously approved by the
Commission.\8\
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    \7\ For purposes only of waiving the operative delay for this
proposal, the Commission has considered the proposed rule's impact
on efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
    \8\ See Securities Exchange Act Release No. 54155 (July 14,
2006), 71 FR 41291 (July 20, 2006) (SR-NASDAQ-2006-001) (approving,
among other things, Nasdaq Rules 4752 and 4754.)
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    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

     Use the Commission's Internet comment form (http://
www.sec.gov/rules/sro.shtml); or
     Send an e-mail to<EMAIL_ADDRESS>Please include
File Number SR-NYSEArca-2008-98 on the subject line.

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-NYSEArca-2008-98. 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 publicly available. All
submissions should refer to File Number SR-NYSEArca-2008-98 and should
be submitted on or before October 17, 2008.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\9\
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    \9\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-22654 Filed 9-25-08; 8:45 am]

BILLING CODE 8010-01-P