[Federal Register Volume 76, Number 126 (Thursday, June 30, 2011)]
[Notices]
[Pages 38436-38443]
[FR Doc No: 2011-16417]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-64742; File No. SR-NYSEAmex-2011-18]

Self-Regulatory Organizations; NYSE Amex LLC; Order Approving
Proposed Rule Change, as Modified by Amendment No. 1, Relating to the
Formation of a Joint Venture Between the Exchange, Its Ultimate Parent
NYSE Euronext, and Seven Other Entities To Operate an Electronic
Trading Facility for Options Contracts

 June 24, 2011.

I. Introduction

    On March 23, 2011, NYSE Amex LLC (``NYSE Amex'') filed with the
Securities and Exchange Commission (``Commission'' or ``SEC'') a
proposed rule change, pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ in
connection with the formation of a joint venture between NYSE Amex, its
ultimate parent NYSE Euronext, a Delaware corporation, and the
following entities (each, a ``Founding Firm''): Citadel Securities LLC
(``Citadel''); Goldman, Sachs & Co. (``Goldman Sachs''); Banc of
America Strategic Investments Corporation (``BAML''); Citigroup
Financial Strategies, Inc. (``Citigroup''); Datek Online Management
Corp. (``TD Ameritrade''); UBS Americas Inc. (``UBS''); and Barclays
Electronic Commerce Holdings Inc. (``Barclays''), to operate an
electronic trading facility (``Options Facility'') that will engage in
the business of listing for trading options contracts permitted to be
listed on a national securities exchange (or facility thereof) and
related activities. The proposed rule change was published for comment
in the Federal Register on April 4, 2011.\3\ The Commission received
three comment letters on the proposal.\4\ The Commission subsequently
extended to July 1, 2011, the time period in which to either approve
the proposed rule change, or to institute proceedings to determine
whether to disapprove the proposed rule change.\5\ On June 15, 2011,
NYSE Amex filed Amendment No. 1 to the proposed rule change.\6\ This
order approves the proposed rule change, as modified by Amendment No.
1.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 64144 (March 29,
2011), 76 FR 18591 (``Notice'').
    \4\ See Letter from Andrew Rothlein, to Hon. Mary L. Schapiro,
Chairman, and Hon. Kathleen L. Casey, Hon. Elisse B. Walter, Hon.
Luis A. Aguilar, and Hon. Troy A. Paredes, Commissioners,
Commission, dated April 14, 2011 (``Rothlein Letter''); Letter from
Benjamin Kerensa, dated April 25, 2011 (``Kerensa Letter''); and
Letter from Joan C. Conley, Senior Vice President and Corporate
Secretary, Nasdaq OMX Group, Inc. (``NASDAQ''), to Elizabeth M.
Murphy, Secretary, Commission, dated April 29, 2011 (``NASDAQ
Letter'').
    \5\ See Securities Exchange Act Release No. 64511 (May 18,
2011), 76 FR 29809 (May 23, 2011).
    \6\ See Amendment No. 1 dated June 15, 2011 (``Amendment No.
1''). Amendment No. 1 deletes an erroneous reference in Section
16.1(f) of the LLC Agreement; clarifies those Founding Firms that
are NYSE Amex members or their affiliates; clarifies the
availability of information noted ``To Come'' on certain Schedules
to the LLC Agreement; and confirms the applicability of Section 4.9
of the LLC Agreement to a NYSE Amex member that is an affiliate of
NYSE Amex. Amendment No. 1 is a technical amendment and is not
subject to notice and comment.
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II. Overview

    NYSE Amex proposes to establish NYSE Amex Options LLC
(``Company''), a Delaware limited liability company formed by NYSE
Euronext, NYSE Amex, and the Founding Firms, and jointly owned by NYSE
Amex and the Founding Firms, to operate the Options Facility. Pursuant
to the proposal, the Options Facility will be operated as a facility
\7\ of NYSE Amex, which will act as the self-regulatory organization
(``SRO'') for the Options Facility and as such have regulatory
responsibility for the activities of the Options Facility.\8\
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    \7\ Pursuant to Section 3(a)(2) of the Act, 15 U.S.C. 78c(a)(2),
the term ``facility'' when used with respect to a national
securities exchange, includes ``its premises, tangible or intangible
property whether on the premises or not, any right to the use of
such premises or property or any service thereof for the purpose of
effecting or reporting a transaction on an exchange (including,
among other things, any system of communication to or from the
exchange, by ticker or otherwise, maintained by or with the consent
of the exchange), and any right of the exchange to the use of any
property or service.''
    \8\ NYSE Amex represented that it has adequate funds to
discharge all regulatory functions related to the Options Facility.
See Notice, supra note 3, 76 FR 18592.
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    With this proposed rule change, NYSE Amex seeks the Commission's
approval of the proposed governance structure of the Company as
reflected in the proposed Limited Liability Company Agreement (``LLC
Agreement'') for the Company and a proposed Members Agreement of the
Company setting forth certain additional provisions (``Members
Agreement'') relating to the proposed governance structure of the
Company.\9\ NYSE Amex is not proposing any changes to its listing and
trading rules in connection with establishment of the Company and
operation of the Options Facility.
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    \9\ Certain portions of the Members Agreement are not considered
part of the proposed rule change. See infra note 13.
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    As a limited liability company, ownership of the Company is
represented by limited liability company interests in the Company
(``Interests'').\10\ The holders of Interests are referred to as the
members of the Company (``Members'').\11\ The Interests represent
equity interests in the Company and entitle the holders thereof to
participate in the Company's allocations and distributions. Initially,
NYSE Amex will own 100% of the preferred non-voting Interests
(``Preferred Interests'') and 47.2% of the Common Interests,\12\ as
Class A Common Interests. The Founding Firms will own the remaining
52.8% of the Common Interests, as Class B Common Interests, and no
single Founding Firm (including its affiliates) will own Class B Common
Interests comprising more than 19.9% of the issued and outstanding
Common Interests. The 52.8% ownership of Class B Common Interests will
initially be allocated as follows: 14.95% to each of Citadel and
Goldman Sachs; 5.0% to each of BAML, Citigroup and TD Ameritrade; 4.9%
to UBS; and 3.0% to Barclays.\13\
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    \10\ ``Interest'' means the limited liability company interest
in the Company owned by each Member including any and all benefits
to which such Member may be entitled as provided in the LLC
Agreement or required by the Act, together with all obligations of
such Member to comply with the terms and provisions of the LLC
Agreement. See Section 1.1 of the LLC Agreement. See infra note 11
for the definition of Member.
    \11\ ``Member'' means each Person who is a signatory to this
Agreement (other than NYSE Euronext) or who has been admitted to the
Company as a Member in accordance with this Agreement and has not
ceased to be a Member in accordance with this Agreement or for any
other reason. See Section 1.1 of the LLC Agreement. See infra note
78 for definition of Person.
    \12\ Common Interests consist of Class A Common Interests and
Class B Common Interests. See Section 1.1 of the LLC Agreement.
``Class A Common Interests'' means the Interests in the form of
shares owned by NYSE Amex, as specified in Schedule A of the LLC
Agreement, having the rights and obligations specified in the LLC
Agreement. See id. ``Class B Common Interests'' means the Interests
in the form of shares owned by each Founding Firm, as specified in
Schedule A of the LLC Agreement, having the rights and obligations
specified in the LLC Agreement. See id. Schedule A of the LLC
Agreement sets forth the Interest allocations of each Member.
    \13\ Following the effective date of the proposed rule change,
additional Class B Common Interests will be issued to the Founding
Firms based, in part, on each Founding Firm's contribution to the
annual volume of the Options Facility from October 1, 2009 to
December 31, 2010 (i.e., the ``Volume-Based Equity Plan''). See
Notice, supra note 3, 76 FR at 18594. NYSE Amex represented that
this issuance of shares to the Founding Firms will not result in any
Member (alone or together with its affiliates) other than NYSE Amex
exceeding the 19.9% Maximum Percentage (as defined below).

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    Pursuant to Section 2.1 of the Members Agreement, for an initial
period of five (5) years and three (3) months, each Founding Firm will
have to satisfy certain minimum volume requirements. Under the Volume-
Based Equity Plan (``Incentive Plan''),\14\ for each measurement
period, the Company will issue Annual Incentive Shares.\15\ Each
Founding Firm will be entitled to receive, for no additional
consideration, a portion of the Annual Incentive Shares such that it
dilutes, maintains or increases its equity interest in the Company
(relative to the other Founding Firms) based on the degree to which the
Founding Firm has failed to achieve, achieved or exceeded its
``Individual Target'' during the measurement period. A Founding Firm's
Individual Target will be its pro rata portion of an aggregate Founding
Firm target contribution to the annual volume of the Options
Facility.\16\ This pro rata calculation will be performed once, based
on the Founding Firm's holdings of Class B Common Interests relative to
the other Founding Firms at the time the Company is formed and will not
change as a Founding Firm's equity holdings fluctuate as a result of
the Incentive Plan. The Incentive Plan will not affect the equity
holdings of NYSE Amex and it will not increase or decrease the
aggregate equity interest of the Founding Firms relative to NYSE Amex.
The Annual Incentive Shares not allocated to one or more Founding Firms
by virtue of each such Founding Firm failing to achieve its respective
Individual Target will be either partially or fully reallocated among
those Founding Firms that exceed their respective Individual Targets.
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    \14\ As stated in the purpose section of the proposed rule
change, it is NYSE Amex's view that the Incentive Plan does not
constitute a proposed rule change within the meaning of Section
19(b)(1) of the Act and Rule 19b-4 thereunder. See Notice, supra
note 3, 76 FR at 18594, n.19.
    \15\ Pursuant to Section 2.1(a) of the Members Agreement,
``Annual Incentive Shares'' generally are additional Class B Common
Interests equal to a percentage of the amount of Class B Common
Interests issued and outstanding immediately prior to such issuance
and owned by the Founding Firms.
    \16\ See Notice, supra note 3, 76 FR at 18610. See also Members
Agreement, Section 1.1 (defining ``Individual Target''). In
determining whether a Founding Firm has achieved its individual
target for a measurement period, a Founding Firm will receive one
credit for each side of a transaction executed through the Options
Facility, either for its proprietary account or for the account of
its customers. See Section 2.3(a) of the Members Agreement.
    Members of the LLC are entitled to distributions of the LLC's
available cash, reflective of their common interest percentages. See
Section 6.1 of the Members Agreement. See also Section 1.1 of the
LLC Agreement (defining ``available cash'' generally as cash held by
the Company that both (i) is not required for the operations of the
Company based on the annual budget of the Company for the year; and
(ii) the Board of Directors of the Company (``Board'') determines in
good faith is not required for the payment of liabilities of the
Company or the setting aside of reserves to meet the anticipated
cash needs of the Company.
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III. Regulatory Structure

    As an SRO, NYSE Amex has regulatory responsibility for all of its
facilities, including the Options Facility. Day-to-day operations of
the Company and the management of its business and affairs will be
delegated to the Company's officers and to NYSE Group, Inc. (``NYSE
Group''), a subsidiary of NYSE Euronext, in accordance with a services
agreement (``NYSE Euronext Agreement'') between NYSE Group and the
Company.\17\ Under the NYSE Euronext Agreement, NYSE Group will agree
to provide the Options Facility with a range of operational and support
services.\18\ The Board \19\ will be responsible for the oversight of
the Company's officers and NYSE Group's performance under the NYSE
Euronext Agreement.\20\ The Board initially will consist of six
directors \21\ designated by the Founding Firms (one by each Founding
Firm), and seven directors designated by NYSE Amex.\22\
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    \17\ See Section 8.1(b) of the LLC Agreement.
    \18\ See Notice, supra note 3, 76 FR at 18593.
    \19\ See Section 8.1(a) of the LLC Agreement.
    \20\ See Section 8.1(b) of the LLC Agreement.
    \21\ See Section 8.1(a) of the LLC Agreement.
    \22\ See Section 8.1(d) of the LLC Agreement.
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    NYSE Regulation, Inc. (``NYSE Regulation''), an indirect wholly-
owned subsidiary of NYSE Euronext, and NYSE Amex entered into a
regulatory services agreement (``RSA'') dated October 1, 2008 pursuant
to which NYSE Regulation performs all of NYSE Amex's regulatory
functions on NYSE Amex's behalf. However, certain of these member and
market regulatory functions, which include surveillance, examination,
investigation and related disciplinary functions, are performed by the
Financial Industry Regulatory Authority, Inc. (``FINRA'') pursuant to a
RSA dated June 14, 2010 among FINRA, NYSE Group, New York Stock
Exchange LLC, NYSE Regulation, NYSE Arca, Inc. and NYSE Amex. FINRA and
NYSE Amex have also entered into an allocation agreement pursuant to
Section 17(d)(1) of the Act,\23\ and Rule 17d-2 \24\ thereunder,
whereby FINRA assumed regulatory responsibility for specified rules
that are common to FINRA and NYSE Amex and for common members. Because
the Options Facility will be a facility of NYSE Amex, FINRA will
perform the applicable regulatory functions and responsibilities with
respect to activity on or through the Options Facility, including both
general regulatory functions, as noted above, and targeted regulatory
reviews as applicable.
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    \23\ 15 U.S.C. 78q(d)(1).
    \24\ 17 CFR 240.17d-2.
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    Pursuant to the RSA between NYSE Regulation and NYSE Amex, NYSE
Regulation exercises oversight, on behalf of NYSE Amex, of FINRA's
performance of the regulatory functions performed by FINRA as described
above. NYSE Regulation also has responsibilities with respect to the
Options Facility for rule interpretation, regulatory policy and
participation in rule development. NYSE Regulation periodically reports
on regulatory matters to the board of directors of NYSE Amex, which has
appointed a Chief Regulatory Officer (``CRO'') who is also the Chief
Executive Officer of NYSE Regulation. NYSE Amex does not have a
regulatory oversight committee of its board of directors, but the CRO
is also an officer of NYSE Amex, and in that capacity is charged with
reporting on regulatory matters to the NYSE Amex board of directors.
Notwithstanding the foregoing, NYSE Amex will still retain ultimate
legal responsibility for the performance of all of its regulatory
obligations as an SRO, including with respect to the Options Facility,
as well as the ability to take action as required to meet that
responsibility.
    The board of directors of NYSE Amex currently consists of five (5)
directors, a majority of whom are required to be individuals domiciled
in the U.S. who are classified as independent members of the NYSE
Euronext board of directors. At least twenty percent (20%) of NYSE
Amex's directors (currently one individual) must be ``non-affiliated''
directors who are not members of the NYSE Euronext board of directors
and need not be independent under the independence requirements of NYSE
Euronext. Any required non-affiliated directors of NYSE Amex are
nominated and elected through a process designed to ensure fair
representation of members of NYSE Amex on NYSE Amex's board of
directors. NYSE Amex does not have any committees of its board of
directors that perform functions relating to audit, governance and
compensation. Instead, such functions are performed for NYSE Amex by
related committees of the NYSE Euronext board of directors that are
comprised solely of NYSE Euronext directors who meet the independence
requirements of NYSE Euronext.
    Decisions on the listing of options to be traded on the Options
Facility will be

made by the business side of NYSE Amex in accordance with NYSE Amex's
rules. The business side also will continue to be responsible for new
product development, participation in rule development, strategic
analysis, administering NYSE Amex programs, business development and
client outreach.

IV. Summary of Comment Letters

    As noted above, the Commission received three comment letters on
the proposed rule change. One commenter opposed the proposed rule
change, asserting that he continues to own unredeemed New York Stock
Exchange Option Trading Rights (``OTRs'') that were separated from full
New York Stock Exchange, Inc. (``NYSE, Inc.'') seats (``Separated
OTRs'').\25\ All NYSE, Inc. seat ownership (with or without OTRs) was
extinguished in the 2006 demutualization of NYSE, Inc.\26\ The
commenter believes that the owners of Separated OTRs retained their
Separated OTRs, even after NYSE, Inc. exited the options business in
1997, with the expectation that their ownership of the Separated OTRs
would afford them full rights to trade options under the auspices of
NYSE, Inc. or its successor entity. The commenter further argues that
such ownership gives him rights to effect options trades on all NYSE
related or affiliated markets, including the various successor markets
to NYSE, Inc. The Commission notes that the issue of the rights of
owners of Separated OTRs is not before the Commission in the context of
this proposed rule change and thus its consideration of the NYSE Amex
proposal does not address the rights of owners of Separated OTRs.
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    \25\ See Rothlein Letter, supra note 4. NYSE, Inc. is the
predecessor to New York Stock Exchange LLC (``NYSE''). See
Securities Exchange Act Release No. 53382 (February 27, 2006), 71 FR
11251 (March 6, 2006) (SR-NYSE-2005-77) (order approving merger of
NYSE, Inc. and Archipelago, and demutualization of NYSE, Inc.)
(``NYSE-Arca Merger Order'').
    \26\ See NYSE-Arca Merger Order.
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    Another commenter opposed the proposed rule change because Goldman
Sachs will be a Founding Firm.\27\ The commenter stated that Goldman
Sachs should not be able to benefit from the proposed rule change
because the firm ``recently was found by a congressional committee to
have been involved [in] deceptive and potentially illegal practices.''
The Commission does not find the comment to be dispositive in its
determination regarding whether to approve the proposed rule change.
Moreover, the Commission believes that, as discussed more fully below,
the proposed rule change is designed to provide NYSE Amex, in its
capacity as an SRO, and the Commission appropriate authority and
jurisdiction to oversee any issues or concerns that may arise from
ownership by NYSE Amex's members of the Company, which is organized to
operate a facility of NYSE Amex.
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    \27\ See Kerensa Letter, supra note 4.
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    The third commenter expressly did not object to the proposal, but
stated that the Incentive Plan is ``virtually indistinguishable in
purpose and effect from other fee or rebate-based incentive plans
operated by national securities exchanges,'' and that the Commission
``must apply the same principles to all fee and rebate plans.'' \28\
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    \28\ See NASDAQ Letter, supra note 4.
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    NASDAQ also stated that the proposed rule change will allow NYSE
Amex to make distinctions among market participants and to pre-select
firms that will be rewarded for order flow. NASDAQ remarked that NYSE
Amex's proposal ``seems reasonably designed to incentivize order flow
and enhance the competitiveness of its market'' and that ``[m]arket
participants benefit in reduced costs and improved liquidity when the
Commission allows genuine competition among exchanges.'' NASDAQ further
cited to data indicating that NYSE Amex's options volume generally has
increased from around 6% in October 2009, which was about the time of
the initial announcement of the transaction, to 15% in March 2011, when
the proposal was filed with the Commission. NASDAQ drew the conclusion
that such increase correlates to the Incentive Plan \29\ noting that
the initial volume measurement period began in October 2009.
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    \29\ See also Notice, supra note 3, 76 FR at 18592, n. 6
(explaining that additional Class B Common Interests will be issued
to the Funding Firms based on their contribution to the annual
volume of the options facility from October 1, 2009 to December 31,
2010).
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    NASDAQ noted that the Commission has been ``reluctant to endorse
differential pricing for exchanges'' in the past. NASDAQ indicated that
Section 6(b)(4) of the Act focuses on ``equitable'' allocation of fees,
not identical fees, and that Section 6(b)(5) of the Act prohibits the
``unfair discrimination,'' not any differentiation, between customers.
NASDAQ stated that, in the past, the Commission required that fees and
rebates be open to all members and that transparent thresholds provide
equal fees and rebates to all members that meet the threshold and
contended that the Incentive Plan is a departure from this
interpretation.
    Finally, NASDAQ stated that exchanges should have the flexibility
to offer fee incentives and rebates, and that such flexibility should
not be limited to the use of equity and equity-like instruments, and
that limiting such flexibility to equity incentive plans penalizes
exchanges that choose to avoid the appearance of a conflict of interest
when an SRO is owned by its members. NASDAQ noted, however, that the
Incentive Plan includes several provisions that attempt to deal with
the appearance of such a conflict of interest. The Commission discusses
the Incentive Plan in light of NASDAQ's comments in Section V.E. below.

V. Discussion and Commission Findings

    After careful consideration, the Commission finds that the proposed
rule change is consistent with the requirements of the Act and the
rules and regulations thereunder applicable to a national securities
exchange.\30\ In particular, the Commission finds that the proposed
rule change is consistent with Section 6(b)(1) of the Act,\31\ which,
among other things, requires a national securities exchange to be so
organized and have the capacity to be able to carry out the purposes of
the Act and to enforce compliance by its members and persons associated
with its members with the provisions of the Act, the rules and
regulations thereunder, and the rules of the exchange.
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    \30\ In approving the proposed rule change, the Commission has
considered its impact on efficiency, competition, and capital
formation. See 15 U.S.C. 78c(f).
    \31\ 15 U.S.C. 78f(b)(1).
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    The Commission also finds that the proposed rule change is
consistent with Section 6(b)(5) of the Act,\32\ which requires, among
other things, that the rules of a national securities exchange be
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 regulating, clearing,
settling, and processing information with respect to, and facilitating
transactions in securities; to remove impediments to and perfect the
mechanism of a free and open market and a national market system; and,
in general, to protect investors and the public interest.
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    \32\ 15 U.S.C. 78f(b)(5).
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A. The Options Facility as a Facility of NYSE Amex

    The Commission believes that the proposed rule change is consistent
with Section 6(b)(1) of the Act in that, upon

establishing the Options Facility as a facility of NYSE Amex, and
entering into the relationship with the Company described above, NYSE
Amex will remain so organized and have the capacity to carry out the
purposes of the Act. As an SRO, NYSE Amex will have regulatory control
over the Options Facility and will be responsible for ensuring its
compliance with the federal securities laws and all applicable rules
and regulations thereunder. Furthermore, the Company is obligated under
the LLC Agreement to operate the Options Facility in a manner
consistent with the regulatory and oversight responsibilities of NYSE
Amex and the Act, and the rules and regulations thereunder. The
Commission notes that it previously approved similar structures with
respect to the operation of exchange facilities.\33\
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    \33\ See Securities Exchange Act Release Nos. 55389 (March 2,
2007), 72 FR 10575 (March 8, 2007) (order approving CBOE Stock
Exchange as a facility of the Chicago Board Options Facility)
(``CBSX Order''); 54399 (September 1, 2006), 71 FR 53728 (September
12, 2006) (order approving the ISE Stock Exchange as a facility of
the International Securities Exchange) (``ISE Stock Order''); 54364
(August 25, 2006), 71 FR 52185 (order approving the Boston Equities
Exchange as a facility of the Boston Stock Exchange) (``BeX
Order''); 49065 (January 13, 2004), 69 FR 2768 (January 20, 2004)
(order approving the Boston Options Facility as a facility of the
Boston Stock Exchange) (``BOX Order''); and 59281 (January 22,
2009), 74 FR 5014 (January 28, 2009) (order approving the New York
Block Exchange as a facility of the New York Stock Exchange) (``NYSE
Block Order'').
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    Although the Company does not carry out any regulatory functions,
all of its activities must be consistent with the Act. As a facility of
a national securities exchange, the Options Facility is not solely a
commercial enterprise but is an integral part of an SRO that is
registered pursuant to the Act and therefore subject to obligations
imposed by the Act. The Commission believes that the LLC Agreement and
Members Agreement are reasonably designed to enable the Company to
operate in a manner that is consistent with this principle. The LLC
Agreement provides that the Company, NYSE Euronext, NYSE Group, each
Member, and the officers, directors, agents, and employees of the
Company, NYSE Euronext, NYSE Group, and each Member agree to comply
with the federal securities laws and the rules and regulations
promulgated thereunder and cooperate with NYSE Amex and the Commission,
and to engage in conduct that fosters and does not interfere with the
Company's and NYSE Amex's ability to carry out their respective
responsibilities under the Act.\34\
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    \34\ See Section 16.1(e) of the LLC Agreement. See also Section
7.6 of the LLC Agreement.
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    The LLC Agreement likewise provides that the Board collectively,
and each member of the Board individually, must comply with the federal
securities laws and the rules and regulations thereunder and cooperate
with NYSE Amex and with the Commission.\35\ Moreover, each Director
must take into consideration whether his or her actions, and each
Member must take into consideration whether its actions, would cause
the Options Facility or the Company to engage in conduct that fosters,
and does not interfere with, NYSE Amex's or the Company's ability to
carry out their respective responsibilities under the Act.\36\
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    \35\ See Sections 8.1(m)(i) of the LLC Agreement.
    \36\ See, respectively, Sections 8.1(m)(ii) and 7.6 of the LLC
Agreement.
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    The LLC Agreement stipulates that all confidential information
pertaining to the self-regulatory function of NYSE Amex or the Company
(including but not limited to disciplinary matters, trading data,
trading practices, and audit information) contained in the books and
records of the Company will not be made available to any persons other
than to those officers, directors, employees, and agents of the Company
that have a reasonable need to know the contents thereof; will be
retained in confidence by the Company and their respective officers,
directors, employees, and agents; and will not be used for any non-
regulatory purposes.\37\ Nothing in the LLC Agreement, however, will
limit or impede the rights of the Commission or NYSE Amex to access and
examine confidential information of the Company pursuant to the federal
securities laws and rules and regulations thereunder or limit or impede
the ability of a member of the Board, any Member, or any officer,
director, agent, or employee of a Member or the Company to disclose
confidential information to the Commission or NYSE Amex.\38\
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    \37\ See Section 14.1(j) of the LLC Agreement.
    \38\ See Section 14.1(k) of the LLC Agreement.
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    The LLC Agreement also provides that NYSE Amex will receive notice
of planned or proposed changes to the Company (excluding Non-Market
Matters \39\) or the Options Facility, and NYSE Amex must not object
affirmatively to such changes prior to implementation.\40\ In the event
that NYSE Amex, in its sole discretion, determines that such planned or
proposed changes to the Company or the Options Facility could cause a
Regulatory Deficiency \41\ if implemented, NYSE Amex may direct the
Company to, and the Company shall, modify the planned or proposed
changes as necessary to ensure that it does not cause a Regulatory
Deficiency.\42\ Likewise, in the event that NYSE Amex, in its sole
discretion, determines that a Regulatory Deficiency exists or is
planned, NYSE Amex may direct the Company to, and the Company shall,
undertake such modifications to the Company (but not to include Non-
Market Matters) or the Options Facility as are necessary or appropriate
to eliminate or prevent the Regulatory Deficiency and allow NYSE Amex
to perform and fulfill its regulatory responsibilities under the
Act.\43\
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    \39\ ``Non-Market Matters'' means matters relating solely to one
or more of the following: Marketing, administrative matters,
personnel matters, social or team-building events, meetings of
Members, communication with Members, finance, location and timing of
Board meetings, market research, real property, equipment,
furnishings, personal property, intellectual property, insurance,
contracts unrelated to the operation of the Options Facility and de
minimis items. See Section 1.1 of the LLC Agreement.
    \40\ See Section 8.1(m)(iii) of the LLC Agreement.
    \41\ See Section 1.1 of the LLC Agreement (defining ``Regulatory
Deficiency'').
    \42\ See Section 8.1(m)(iii) of the LLC Agreement.
    \43\ See id.
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    Moreover, Section 16.1 of the LLC Agreement provides requirements
regarding regulatory approvals and compliance.\44\ So long as the
Options Facility is a facility of NYSE Amex, in the event that NYSE
Amex, in its sole discretion, determines that any action, transaction
or aspect of an action or transaction, is necessary or appropriate for,
or interferes with, the performance or fulfillment of NYSE Amex's
regulatory functions, its responsibilities under the Act or as
specifically required by the Commission, NYSE Amex shall have the sole
and exclusive authority to direct that any such required, necessary or
appropriate action, as it may determine in its sole discretion, be
taken or transaction be undertaken by or on behalf of the Company
without regard to the vote, act or failure to vote or act by any other
party in any capacity.\45\
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    \44\ See Section 16.1 of the LLC Agreement.
    \45\ See Section 16.1(a) of the LLC Agreement.
     Furthermore, in its proposal, NYSE Amex represents that nothing
contained in the LLC Agreement or the Members Agreement limits the
ability of NYSE Amex, in its capacity as an SRO, (i) to take any
action or to direct the taking of any action that it determines is
necessary or appropriate for the performance or fulfillment of its
obligations as an SRO or (ii) to direct that an action that it
determines interferes with the performance or fulfillment of its
obligations as an SRO not be taken. See Notice, supra note 3, 76 FR
at 18610.
---------------------------------------------------------------------------

    Furthermore, before any amendment to or repeal of any provision of
the LLC Agreement or Members Agreement becomes effective, such
amendment or repeal must be submitted to the board of directors of NYSE
Amex, and if such

amendment or repeal is required, under Section 19 of the Act and the
rules promulgated thereunder to be filed with, or filed with and
approved by, the Commission before such amendment or repeal may be
effective, then such amendment or repeal shall not be effective until
filed with, or filed with and approved by, the Commission, as the case
may be.\46\
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    \46\ See Section 16.10 of the LLC Agreement and Section 5.10 of
the Members Agreement.
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    The Commission believes that certain additional provisions in the
LLC Agreement that make accommodation for NYSE Amex as the SRO for the
Options Facility are consistent with the Act, because they enhance the
ability of NYSE Amex to carry out its self-regulatory responsibilities
with respect to the Options Facility. The LLC Agreement provides that,
with written consent of NYSE Amex, the Board, by a Supermajority
Vote,\47\ may suspend or terminate a Member's voting privileges,
including the ability to designate Board directors, if the Member
materially violates any Regulatory Matters Provision \48\ or any
applicable law; such Member is subject to statutory disqualification;
\49\ or such action is necessary or appropriate in the public interest
or for the protection of investors.\50\ The Director designated by the
Member subject to sanction will be excluded from any vote to suspend or
terminate such Member's voting privileges.\51\
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    \47\ ``Supermajority Vote'' means, with respect to matters
submitted to the Board at a validly called and validly noticed
meeting, (x) for so long as NYSE Amex's Common Interest Percentage
equals or exceeds fifteen percent (15%), (A) the affirmative vote of
more than fifty percent (50%) of the Directors designated by NYSE
Amex pursuant to Section 8.1(d)(i) entitled to vote thereon and
present in person or by proxy and (B) the affirmative vote of more
than fifty percent (50%) of those Directors designated by Founding
Firms pursuant to Section 8.1(d)(ii) entitled to vote thereon and
present in person or by proxy, and (y) for so long as NYSE Amex's
Common Interest Percentage is less than fifteen percent (15%), the
affirmative vote of more than fifty percent (50%) of all Directors
entitled to vote thereon and present in person or by proxy (which
excess of fifty percent (50%) must include more than two-thirds (\2/
3\) of those Directors designated by Founding Firms and NYSE Amex in
the aggregate entitled to vote thereon and present in person or by
proxy). See Section 1.1 of the LLC Agreement.
    \48\ See Section 1.1 of the LLC Agreement (defining ``Regulatory
Matters Provision'').
    \49\ See Section 3(a)(39) of the Act, 15 U.S.C. 78c(a)(39)
(defining ``statutory disqualification'').
    \50\ See Section 7.6 of the LLC Agreement.
    \51\ See id.
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    To reflect that the Options Facility is not solely a commercial
enterprise, the LLC Agreement also stipulates that any individual
designated to the Board must certify that he or she is not subject to a
statutory disqualification within the meaning of Section 3(a)(39) of
the Act.\52\ Further, any director who becomes subject to any
applicable statutory disqualification shall be deemed to have
automatically resigned from the Board.\53\
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    \52\ See Section 8.1(h) of the LLC Agreement.
    \53\ See Section 8.1(e)(iii) of the LLC Agreement. Pursuant to
Section 8.1(e)(ii), the Board, by a Supermajority Vote (excluding
the vote of the Directors designated by the Member subject to
sanction), may suspend or terminate a Director's service in the
event such director has materially violated any Regulatory Matters
Provision or any applicable law, or such action is necessary or
appropriate in the public interest or for the protection of
investors.
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B. Regulatory Jurisdiction Over the Company and Its Members

    The Commission also believes that the terms of the LLC Agreement
provide clarification of the Commission's and NYSE Amex's regulatory
jurisdiction over the Company and its Members. The LLC Agreement
provides that (i) the books, records, premises, officers, directors,
agents and employees of the Company and (ii) to the extent related to
the Company's business, the books, records, premises, officers,
directors, agents and employees of each Member, shall be deemed the
books, records, premises, officers, directors, agents, and employees of
NYSE Amex for purposes of, and subject to oversight pursuant to, the
Act.\54\ The LLC Agreement also provides that the books and records of
the Company will be subject at all times to inspection and copying by
the Commission and NYSE Amex at no additional charge to the Commission
or NYSE Amex.\55\
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    \54\ See Section 13.2(c) of the LLC Agreement.
    \55\ See id.
---------------------------------------------------------------------------

    The LLC Agreement further provides that the Company, NYSE Euronext,
NYSE Group, each Member and the officers, directors, agents and
employees of the Company, NYSE Euronext, NYSE Group and each Member
irrevocably submit to the jurisdiction of the U.S. federal courts, the
Commission, and NYSE Amex (in its capacity as SRO) for purposes of any
suit, action, or proceeding pursuant to U.S. federal securities laws
and the rules and regulations thereunder, arising out of, or relating
to, activities of the Company and waive, and agree not to assert by way
of motion, as a defense or otherwise in any such suit, action, or
proceeding, any claims that they are not personally subject to the
jurisdiction of the Commission; that the suit, action, or proceeding is
an inconvenient forum; that the venue of the suit, action, or
proceeding is improper; or that the subject matter may not be enforced
in or by such courts or agency.\56\ Moreover, the Company, NYSE
Euronext, NYSE Group and each Member must take such action as is
necessary to ensure that the officers, directors, agents, and employees
of the Company, NYSE Euronext, NYSE Group and each Member who are
involved in the activities of the Company or the Options Facility
consent in writing to the application to them of specified provisions
in the LLC Agreement with respect to their activities relating to the
Company or the Options Facility.\57\
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    \56\ See Section 16.1(d) of the LLC Agreement.
    \57\ See Section 16.1(f) of the LLC Agreement. Specifically, the
persons noted above will have to consent to the applicability of
Section 13.2(c), Section 16.1(d), Section 16.1(e), Section 8.1(m),
Section 14.1(i) and Section 14.1(j) of the LLC Agreement, as
applicable, with respect to their activities relating to the Company
or the Options Facility. See Amendment No. 1, which deleted from
Section 16.1(f) a reference to the final sentence of Section
8.1(d)(iv).
---------------------------------------------------------------------------

    The Commission believes that these provisions are consistent with
the Act because they are reasonably designed to facilitate the
Commission's and NYSE Amex's regulatory jurisdiction over the Company
and the Options Facility. These provisions clarify the Commission's
authority under the Act to inspect the Company's books and records by
deeming them to be the books and records of a national securities
exchange. Further, these provisions clarify that the Commission may
exercise its authority under Section 19(h)(4) of the Act \58\ with
respect to the officers and directors of the Company and its Members,
because such officers and directors are deemed to be officers and
directors of NYSE Amex. Finally, the LLC Agreement clarifies that the
books and records of the Company and, to the extent that they are
related to the Company's business, the books and records of each
Member, are subject to the Commission's examination authority under
Section 17(b)(1) of the Act.\59\
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    \58\ 15 U.S.C. 78s(h)(4) (authorizing the Commission, by order,
to remove from office or censure any officer or director of a
national securities exchange if it finds, after notice and an
opportunity for hearing, that such officer or director has: (1)
Willfully violated any provision of the Act or the rules and
regulations thereunder, or the rules of a national securities
exchange; (2) willfully abused his or her authority; or (3) without
reasonable justification or excuse, has failed to enforce compliance
with any such provision by a member or person associated with a
member of the national securities exchange).
    \59\ 15 U.S.C. 78q(b)(1).
---------------------------------------------------------------------------

    Even in the absence of these provisions, Section 20(a) of the Act
\60\ provides that any person with a controlling interest in the
Company will be jointly and severally liable with and to the same
extent that the Company is

liable under any provision of the Act, unless the controlling person
acted in good faith and did not directly or indirectly induce the act
or acts constituting the violation or cause of action. Moreover, NYSE
Amex is required to enforce compliance with these provisions, because
they are ``rules of the exchange'' within the meaning of Section
3(a)(27) of the Act.\61\ A failure on the part of NYSE Amex to enforce
its rules could result in suspension or revocation of its registration,
pursuant to Section 19(h)(1) of the Act.\62\
---------------------------------------------------------------------------

    \60\ 15 U.S.C. 78t(a).
    \61\ 15 U.S.C. 78c(a)(27).
    \62\ 15 U.S.C. 78s(h)(1).
---------------------------------------------------------------------------

C. Changes in Control of the Company

    The Commission believes that the provisions in the LLC Agreement
and Members Agreement relating to direct and indirect changes in
control of the Company, which will operate the Options Facility are
consistent with the Act. The LLC Agreement provides that the aggregate
Common Interest Percentage \63\ held by NYSE Amex and its affiliates
will not decline below 15% unless and until NYSE Amex had delivered to
the Board a notice in writing of its intention to Transfer \64\ any
Common Interests that will result in such a decline.\65\ Furthermore,
before NYSE Amex could reduce its Common Interest Percentage to less
than 15%, it must first file a proposed rule change with the Commission
under Section 19(b) of the Act and obtain the Commission's approval of
that proposal.\66\ NYSE Amex's regulatory obligations for the Options
Facility will endure as long as the Options Facility is a facility of
NYSE Amex, regardless of the size of NYSE Amex's ownership interest in
the Company.\67\
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    \63\ ``Common Interest Percentage'' means (i) with respect to
NYSE Amex or a Transferee of Class A Common Interests, the product
of (w) the Aggregate Class A Economic Allocation multiplied by (x) a
fraction, (A) the numerator of which shall be the number of Class A
Common Interests then held by NYSE Amex or such Transferee and (B)
the denominator of which shall be the number of Class A Common
Interests then held NYSE Amex and all such Transferees, and (ii)
with respect to any Founding Firm or a Transferee of Class B Common
Interests, the product of (y) the Aggregate Class B Economic
Allocation multiplied by (z) a fraction, (A) the numerator of which
shall be the number of Class B Common Interests then held by such
Founding Firm or such Transferee, including, for the purpose of
determining any economic entitlement or entitlement to designate a
Director, any Non-voting Common Interests and (B) the denominator of
which shall be the number of Class B Common Interests then held by
all Founding Firms and all such Transferees, including, for the
purpose of determining any economic entitlement or entitlement to
designate a Director, any Non-voting Common Interests. See Section
1.1 of the LLC Agreement. See also Section 1.1 of the LLC Agreement
(defining Transferee). See also Section 10.2(b) of the LLC Agreement
(defining Aggregate Class A and Aggregate Class B Economic
Allocation).
    \64\ See Section 1.1 of the LLC Agreement (defining
``Transfer'').
    \65\ See Section 11.8(c) of the LLC Agreement.
    \66\ See id.
    \67\ See Securities Exchange Act Release Nos. 58324 (August 7,
2008), 73 FR 46936 (August 12, 2008) (order approving the transfer
of the Boston Stock Exchange's ownership interest in the Boston
Options Facility Group, the operator of the BOX facility, to MX US
2, Inc., a wholly owned subsidiary of the Montr[eacute]al Exchange);
44983 (October 25, 2001), 66 FR 55225 (November 1, 2001) (order
approving the establishment of Archipelago Exchange as a facility of
the Pacific Exchange where Pacific Exchange's ownership interest in
Archipelago Exchange, L.L.C. (``Arca L.L.C.''), the operator of
Archipelago Exchange, consisted solely of a 10% interest in
Archipelago Holdings, LLC, the parent company of Arca L.L.C.); 41210
(March 24, 1999), 64 FR 15857 (April 1, 1999) (order approving
electronic system operated as a facility of Philadelphia Stock
Exchange (``Phlx''), which had no ownership interest in the
operation of the system); and 54538 (September 29, 2006), 71 FR
59184 (October 6, 2006) (order approving Phlx's New Equity Trading
system and operation of optional outbound router as a facility of
Phlx, which had no ownership interest in the third-party operator).
---------------------------------------------------------------------------

    The LLC Agreement and Members Agreement also provide that no Member
may resign or voluntarily withdraw as a Member or Transfer any Common
Interests other than in accordance with the applicable provisions of
the LLC Agreement and the Members Agreement.\68\ NYSE Amex will have an
initial right of first offer to purchase Class B Common Interests that
a Founding Firm intends to transfer, at a price at least equal to their
fair market value.\69\ In the event NYSE Amex does not exercise its
right of first offer, the transferring Founding Firm will have the
right, subject to certain conditions, to sell its Class B Common
Interests to NYSE Amex at a price equal to their fair market value or
to sell its Common Interests to a third party.\70\ In addition, on or
after the tenth anniversary of the effective date of the LLC Agreement,
NYSE Amex will have the right to buy some or all of the Class B Common
Interests from the Members at a price equal to their pro rata portion
fair market value.\71\ In the event NYSE Amex intends to transfer any
of its Class A Common Interests, the Founding Firms will have certain
rights of first offer to purchase these Class A Common Interests.\72\
In the event that NYSE Amex acquires any Class B Common Interests, such
Class B Common Interests will automatically be converted into Class A
Common Interests.\73\ Similarly, in the event any Founding Firms
acquire Class A Common Interests, such Class A Common Interests will be
automatically converted into Class B Common Interests.\74\ Also,
subject to certain conditions, Members will be obligated to transfer
their Common Interests where another Member, acting alone or together
with other Members, intends to make a transfer of 75% of the then-
outstanding Common Interests and the Board, by Supermajority Vote,\75\
approves the sale of the Company to a person or entity who is not an
affiliate of the Company.
---------------------------------------------------------------------------

    \68\ See Sections 11.1 and 11.2 of the LLC Agreement and Article
III of the Members Agreement.
    \69\ See Section 3.2(b)(ii) of the Members Agreement.
    \70\ See Section 3.2(c) of the Members Agreement.
    \71\ See Section 3.4 of the Members Agreement.
    \72\ See Section 3.3(a) of the Members Agreement.
    \73\ See Section 11.2(c) of the LLC Agreement. See also Section
3.3(e) of the Members Agreement.
    \74\ See id.
    \75\ See Section 11.3(a) of the LLC Agreement.
---------------------------------------------------------------------------

    A person or entity may become a Member by acquiring any
Interest.\76\ Any new Member of the Company will be required to become
a party to the LLC Agreement.\77\
---------------------------------------------------------------------------

    \76\ See Sections 10.4 and 11.1 of the LLC Agreement.
    \77\ See id.
---------------------------------------------------------------------------

    The LLC Agreement also provides that no Person \78\ that is not a
Member either alone or together with its Affiliates,\79\ may directly
own (or vote) Common Interests in the Company representing more than
the 19.9% of the then issued and outstanding Common Interests (``19.9%
Maximum Percentage) \80\ or any successive 5% ownership threshold
(``Concentration Limitation'').\81\ The Concentration Limitation,
however, will not apply to NYSE Amex alone or together with its
Affiliates.\82\ Further, the LLC Agreement permits the Concentration
Limitation to be waived if

written notice of the intention to exceed the Concentration Limitation
is delivered to the Board; prior to the acquisition of any Common
Interests that will exceed the Concentration Limitation, the Board
determines not to oppose the acquisition; and the notice has been filed
as a proposed rule change with, and approved, by the Commission under
Section 19(b) of the Act and shall have become effective
thereunder.\83\ Nevertheless, the Board shall oppose the ownership of
Common Interests if: such ownership will impair the ability of the
Company and the Board to carry out their functions and
responsibilities, including but not limited to, under the Act; such
ownership will impair the ability of the SEC to enforce the Act; if the
acquiring Person or its Affiliates are subject to any statutory
disqualification within the meaning of Section 3(a)(39) of the Act; or
if such ownership would result in the Person, alone or together with
its Affiliates, having an ownership of more than 20% of the aggregate
Common Interests and such Person or one of its Affiliates is a member
or member organization of NYSE Amex.\84\
---------------------------------------------------------------------------

    \78\ ``Person'' means an individual, partnership, limited
liability company, trust, estate, association, joint stock company,
unincorporated organization, governmental or regulatory body or
other entity. See Section 1.1 of the LLC Agreement.
    \79\ ``Affiliate'' means, with respect to any Person, and other
Person directly or indirectly, through one or more intermediaries,
controlling, controlled by, or under common control with such
Person. The term ``control,'' as used in this definition of
``Affiliate'' means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies
of such Person, whether through the ownership of voting securities,
through the right or power to appoint majority of the board of
directors, by contract or otherwise, and ``controlled by'' and
``under common control'' have corresponding meanings. See Section
1.1 of the LLC Agreement.
    \80\ See Section 4.9(b) of the LLC Agreement.
    \81\ See Section 11.8(b)(i) of the LLC Agreement. See also
Section 4.9(a). See Amendment No. 1, which confirmed that Section
4.9 of the LLC Agreement would prohibit a NYSE Amex member that is
an affiliate of NYSE Amex to own or vote Common Interests in excess
of 19.9% of the then issued and outstanding Common Interests, unless
it has received Commission approval to do so pursuant to the rule
filing process under Section 19(b) of the Act.
    \82\ See Section 11.8(b)(ii) of the LLC Agreement.
    \83\ See id.
    \84\ See Section 11.8(b)(iii) of the LLC Agreement.
---------------------------------------------------------------------------

    Moreover, the LLC Agreement provides that, if any Person, alone or
together with any Affiliate, acquires a direct or indirect ownership of
25% or more of the total voting power of a Member (such person, a
``Controlling Person,'' and such interest a ``Controlling Interest''
\85\), and the Member, alone or together with any Affiliate, holds an
ownership interest in the Company equal to or greater than 20% of the
aggregate Common Interests, then such Controlling Person must become a
party to the LLC Agreement and agree to abide by all provisions
relating to regulatory matters.\86\ The LLC Agreement also provides
that NYSE Amex must file with the Commission, pursuant to Section 19(b)
of the Act, any amendment to the LLC Agreement executed to comply with
the provisions of the LLC Agreement relating to indirect ownership of
the Company.\87\ The non-economic rights and privileges, including all
voting rights, of the Member in which such Controlling Interest is
acquired will be suspended until the proposed rule change has become
effective under the Act or until the Controlling Person ceases to hold
a Controlling Interest in such Member.\88\
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    \85\ See Section 1.1 of the LLC Agreement (defining
``Controlling Person'' and ``Controlling Interest'').
    \86\ See Sections 11.8(d)(i) and (ii) of the LLC Agreement.
    \87\ See Section 11.8(d)(iv) of the LLC Agreement.
    \88\ See id.
---------------------------------------------------------------------------

    A proposed rule change filed with the Commission in any of the
circumstances noted above will afford the Commission an opportunity to
ensure that a change to the LLC Agreement or a change in the ownership
of the Company will be consistent with the Act, including whether the
Commission and NYSE Amex will retain sufficient regulatory jurisdiction
over the proposed indirect controlling party. The Commission
understands that the LLC Agreement will apply to any ultimate parent of
the Company, no matter how many levels of ownership are involved,
provided that a Controlling Interest exists between each link of the
ownership chain.
    Finally, the LLC Agreement requires the Company to provide the
Commission with written notice ten days prior to the closing date of
any acquisition of an Interest by a person that results in a Member's
percentage ownership interest in the Company, alone or together with
any Affiliate, meeting or crossing the 5%, 10%, or 15% thresholds.\89\
This notice requirement is analogous to a requirement in Form 1,\90\
the application and amendments to the application for registration as a
national securities exchange. Exhibit K of Form 1 requires any exchange
that is a corporation or partnership to list any persons that have an
ownership interest of 5% or more in the exchange.\91\ Additionally,
Rule 6a-2(a)(2) under the Act \92\ requires an exchange to update its
Form 1 within ten days after any action that renders inaccurate the
information previously filed in Exhibit K.
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    \89\ See Section 11.8(a) of the LLC Agreement.
    \90\ 17 CFR 249.1 and 17 CFR 249.1a.
    \91\ This reporting requirement applies only to exchanges that
have one or more owners, shareholders, or partners that are not also
members of the exchange. See Form 1, Exhibit K. Exhibit K applies
only to NYSE Amex itself, not to entities that operate facilities of
the exchange.
    \92\ 17 CFR 240.6a-2(a)(2).
---------------------------------------------------------------------------

    Exhibit K imposes no obligation on an exchange to report parties
whose ownership interest in the exchange is less than 5%. Similarly,
Section 11.8(a) of the LLC Agreement requires the Company to notify the
Commission of the acquisition of an Interest when that Interest reaches
5% or more. The Commission does not believe that a change to the LLC
Agreement that reflects the acquisition of less than a 5% interest in a
facility of a national securities exchange (or an increase that does
not cross any of the additional thresholds) is a ``rule of the
exchange'' that must be filed pursuant to Section 19(b) of the Act.

D. Ownership and Voting Restrictions on Members of the Company

    Section 4.9(a) of the LLC Agreement prohibits any Member (other
than NYSE Amex alone, or subject to receipt of Commission approval
pursuant to the rule filing process under Section 19(b) of the Act,
together with its Permitted Transferees) \93\ from owning or voting
(alone or together with its Affiliates), directly or indirectly more
than the 19.9% Maximum Percentage.\94\ In the event a Member (alone or
together with its Affiliates) holds Excess Interests, such Excess
Interests shall automatically and immediately constitute non-voting
Common Interests and the Member shall institute remedial measures to
either divest itself of such Excess Interests or retain such Excess
Interests as non-voting interests, in each case as permitted by Section
4.9(c) of the LLC Agreement.\95\
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    \93\ See Section 11.4(a) of the LLC Agreement (defining
``Permitted Transferee'').
    \94\ See Section 4.9(a) of the LLC Agreement. Any amount in
excess of the 19.9% Maximum Percentage are ``Excess Interests.''
    \95\ See Section 4.9(c) of the LLC Agreement. See also Section
V.C. infra for a discussion of Section 11.8(b)(iii) of the LLC
Agreement that prohibits the Board from approving ownership by a
Member of more than 20% of the aggregate Common Interests and such
Person or one of its Affiliates is a member or member organization
of NYSE Amex.
---------------------------------------------------------------------------

    The Commission has previously expressed concern regarding the
potential for unfair competition and conflicts of interest where a
member of an exchange owns more than 20% of that exchange or a facility
thereof.\96\ Although it is common for a member to have an ownership
interest in an exchange or a facility of an exchange, such member's
interest could become so large as to raise questions whether the
exchange can fairly and objectively exercise its self-regulatory
responsibilities with respect to that member. A member that has a
controlling interest in the exchange or a facility might attempt to
direct the exchange to refrain from diligently surveilling the member's
conduct or from punishing any improper conduct. An exchange might also
be reluctant to surveil and enforce its rules zealously against a
member that the exchange relies on as its largest source of capital.
The Company, which will operate the Options Facility, will be owned
collectively by NYSE Amex and the seven Founding Firms, six of which
currently are members, or affiliates of members, of NYSE Amex and a
Member

of the Company.\97\ Initially, each of the Founding Firms will own less
than 19.9% of the Company and pursuant to the LLC Agreement, and except
as described above, will not be permitted to own or vote in excess of
the 19.9% of the Maximum Percentage as long as they are a Member of the
Company. Accordingly, the Commission believes that the ownership
concentration and voting limitations in the LLC Agreement are designed
to preserve the independence of NYSE Amex's self-regulatory functions
and NYSE Amex's ability to fulfill its regulatory and oversight
obligations.
---------------------------------------------------------------------------

    \96\ See NYSE Block Order, 74 FR at 5017-5018, n.65 and
accompanying text. See also CBSX Order; ISE Stock Order; BeX Order;
and BOX Order.
    \97\ See Amendment No. 1, which states as follows: Founding
Firms Goldman Sachs and Citadel hold NYSE Amex Options Trading
Permits (``ATPs'' and each entity that holds an ATP, an ``ATP
Holder''). In addition, Goldman, Sachs & Co. is also an affiliate of
ATP Holder Goldman Sachs Execution & Clearing LP. Founding Firm BAML
is an affiliate of ATP Holders Merrill Lynch, Pierce, Fenner & Smith
Inc. and Merrill Lynch Professional Clearing Corp. Founding Firm
Barclays is an affiliate of ATP Holder Barclays Capital Inc.
Founding Firm Citigroup is an affiliate of ATP Holders Citigroup
Derivatives Markets, Inc. and Automated Trading Desk Financial
Services LLC. Founding Firm UBS is an affiliate of ATP Holders UBS
Financial Services Inc. and UBS Securities LLC. Founding Firm TD
Ameritrade is neither an ATP Holder nor an affiliate of an ATP
Holder.
---------------------------------------------------------------------------

E. The Incentive Plan

    As noted above, NASDAQ did not object to the proposed rule change,
but expressed the view that, by allowing NYSE Amex ``to make reasonable
distinctions among market participants and to pre-select firms that
will be rewarded for order flow,'' the Commission should provide
comparable flexibility to fee or rebate-based plans of other exchanges
that provide incentives to members to submit order flow. NASDAQ also
expressed the view that the Incentive Plan is ``virtually
indistinguishable in purpose and effect from other fee or rebate-based
incentive plans operated by national securities exchanges,'' citing as
an example NASDAQ's Investor Support Plan, and stating that the
economic value to the Founding Firms is directly related to how much
order flow they send to NYSE Amex.\98\
---------------------------------------------------------------------------

    \98\ See NASDAQ Letter, supra note 4. See NASDAQ Rule 7014 for a
description of NASDAQ's Investor Support Program.
---------------------------------------------------------------------------

    Any determination as to whether a particular plan or program
provided by an exchange or to which an exchange is a party that has a
component related to order flow, such as the Incentive Plan,
constitutes a proposed rule change that is required to be filed with
the Commission under Section 19(b) of the Act must be analyzed on a
case-by-case basis and is dependent on the facts and circumstances of
the particular plan's or program's features and its context.\99\ Based
on the facts and circumstances in this case, the Commission does not
believe that the Incentive Plan constitutes a proposed rule change
within the meaning of Section 19(b)(1) of the Act and Rule 19b-4
thereunder, and believes that it is distinguishable from the NASDAQ
Investor Support Program.\100\
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    \99\ The Commission notes that NASDAQ in its comment letter also
pointed to the issue that ``[t]he ownership of self regulatory
organizations by their members can raise at least the appearance of
a conflict of interest.'' In the past, and as discussed in Section
V. D. above, the Commission has expressed concern regarding the
potential for unfair competition and conflicts of interest where a
member of an exchange owns more than a 20% interest in that exchange
of a facility thereof. See infra note 96 and accompanying text. The
Commission believes, as discussed more fully above, that the
proposed structure is designed to mitigate those concerns and
preserve the independence of NYSE Amex's self-regulatory
obligations. See infra Section V. D.
    \100\ As noted above, the determination regarding whether a plan
or program that is provided by an SRO, or to which an SRO is a
party, and that has a component related to order flow is or is not a
proposed rule change is based on the particular facts and
circumstances of the arrangement. Consequently, the Commission
recommends that an SRO consult with Commission staff as to its
determination as to whether such a plan or program (or any changes
to such plan or program) is a proposed rule change.
---------------------------------------------------------------------------

    The Incentive Plan is one aspect of the equity investment and
obligations of the Founding Firms as owners (Members) of the
Company,\101\ and reflects the commitment of each of the Founding Firms
to maintain certain minimum levels of participation in the joint
venture. A Founding Firm may meet or exceed its Individual Target, but
may not realize an increase in its equity interest relative to the
other Founding Firms depending on the extent to which the other firms
meet or exceed their Individual Targets.\102\ If each Founding Firm
meets its Individual Target in any given year, there would be no change
in its equity interest relative to any other Founding Firm. A Founding
Firm cannot increase its equity interest relative to any other Founding
Firm, no matter how much order flow it sends to the facility, unless
one or more other Founding Firms fails to achieve its target for the
year. Also, the Incentive Plan will not increase or decrease the
aggregate equity interest of the Founding Firms as a group relative to
NYSE Amex. The Commission therefore believes that the impact of the
Incentive Plan is sufficiently attenuated from the submission of
individual orders to the Options Facility by the Member that it is
properly not viewed as an order flow or liquidity rebate that would
constitute a proposed rule change under Section 19(b) of the Act. By
comparison, the NASDAQ Investor Support Program provides a fee credit
for each order in excess of a specified threshold to any member wishing
to participate in the program.\103\ The fee credits are directly linked
to each incremental order provided and are guaranteed so long as the
baseline threshold is met.\104\
---------------------------------------------------------------------------

    \101\ The LLC Agreement establishes the rights and obligations
of the Company's Members. Aside from making an initial capital
contribution in exchange for equity interest, the Members, among
other things, are subject to ongoing regulatory capital
contributions, voluntary capital contributions, and to potential
penalties for failure to make requested capital contributions. See
Sections 4.3, 4.4, and 4.5 of the LLC Agreement.
    \102\ See supra note 16 and accompanying text for a description
of what constitutes an Individual Target.
    \103\ For a detailed description of the Investor Support
Program, see Securities Exchange Act Release No. 63270 (November 8,
2010), 75 FR 69489 (November 12, 2010) (SR-NASDAQ-2010-141) (notice
of filing and immediate effectiveness). See also Securities Exchange
Act Release Nos. 63414 (December 2, 2010), 75 FR 76505 (December 8,
2010) (SR-NASDAQ-2010-153) (notice of filing and immediate
effectiveness); 63628 (January 3, 2011), 76 FR 1201 (January 7,
2011) (SR-NASDAQ-2010-154) (notice of filing and immediate
effectiveness); 63891 (February 11, 2011), 76 FR 9384 (February 17,
2011) (SR-NASDAQ-2011-022) (notice of filing and immediate
effectiveness); and 64050 (March 8, 2011) (SR-NASDAQ-2011-034)
(notice of filing and immediate effectiveness).
    \104\ Id.
---------------------------------------------------------------------------

    For the reasons just discussed, the Commission believes that the
Incentive Plan does not constitute a proposed rule change within the
meaning of Section 19(b)(1) of the Act and Rule 19b-4 thereunder.

VI. Conclusion

    It Is Therefore Ordered, pursuant to Section 19(b)(2) of the
Act,\105\ that the proposed rule change (SR-NYSEAmex-2011-18), as
modified by Amendment No. 1, be, and it hereby is, approved.
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    \105\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\106\
---------------------------------------------------------------------------

    \106\ 17 CFR 200.30-3(a)(12).
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Cathy H. Ahn,
Deputy Secretary.
[FR Doc. 2011-16417 Filed 6-29-11; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 80, Number 15 (Friday, January 23, 2015)]
[Notices]
[Pages 3739-3740]
[FR Doc No: 2015-01153]

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DEPARTMENT OF TRANSPORTATION

Pipeline And Hazardous Materials Safety Administration

[Docket No. PHMSA-2014-0126]

Pipeline Safety: Information Collection Activities

AGENCY: Pipeline and Hazardous Materials Safety Administration.

ACTION: Notice and request for comments.

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SUMMARY: On October 20, 2014, in accordance with the Paperwork
Reduction Act of 1995, the Pipeline and Hazardous Materials Safety
Administration (PHMSA) published a notice in the Federal Register (79
FR 62707) inviting comments on two information collections that will be
expiring in 2015. PHMSA requests an extension with no change for the
information collection identified by Office of Management and Budget
(OMB) control number 2137-0048. In addition, PHMSA proposed a revision
to the information collection identified under OMB control number 2137-
0600. This revision updates the number of respondents used in the
burden calculation but does not add to or change the type of
information being collected.
    PHMSA received no comments in response to that notice. PHMSA is
publishing this notice to provide the public with an additional 30 days
to comment on both the renewal and the revision of the information
collections referenced above and announce that the Information
Collections will be submitted to OMB for approval.

DATES: Interested persons are invited to submit comments on or before
February 23, 2015 to be assured of consideration.

FOR FURTHER INFORMATION CONTACT: Cameron Satterthwaite by telephone at
202-366-1319, by email at<EMAIL_ADDRESS>by fax at 202-
366-4566, or by mail at U.S. Department of Transportation, PHMSA, 1200
New Jersey Avenue SE., PHP-30, Washington, DC 20590-0001.

ADDRESSES: You may submit comments identified by the docket number
PHMSA-2014-0126 by any of the following methods:
     Fax: 1-202-395-5806.
     Mail: Office of Information and Regulatory Affairs,
Records Management Center, Room 10102 NEOB, 725 17th Street NW.,
Washington, DC 20503, ATTN: Desk Officer for the U.S. Department of
Transportation\PHMSA.
     Email: Office of Information and Regulatory Affairs, OMB,
at the following email address<EMAIL_ADDRESS>    Requests for a copy of the Information Collection should be
directed to Cameron Satterthwaite by telephone at<PHONE_NUMBER>, by fax
at<PHONE_NUMBER>, by email at<EMAIL_ADDRESS>or by mail
at U.S. Department of Transportation, PHMSA, 1200 New Jersey Avenue
SE., PHP-30,Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION: Section 1320.8(d), Title 5, Code of Federal
Regulations requires PHMSA to provide interested members of the public
and affected agencies an opportunity to comment on information
collection and recordkeeping requests. This notice identifies two
revised information collection requests that PHMSA will submit to OMB
for approval. The information collections are titled: ``Recordkeeping
Requirements for Liquefied Natural Gas (LNG) Facilities (2137-0048) and
``Qualification of Pipeline Safety, Training'' (2137-0600).
    The following information is provided for each revised information
collection: (1) Title of the information collection; (2) OMB control
number; (3) Type of request; (4) Abstract of the information collection
activity; (5) Description of affected public; (6) Estimate of total
annual reporting and recordkeeping burden; and (7) Frequency of
collection. PHMSA will request a three-year term of approval for each
information collection activity. PHMSA requests an extension with no
change for the information collection identified by Office of
Management and Budget (OMB) control number 2137-0048. In addition,
PHMSA requests a revision to the information collection identified
under OMB control number 2137-0600. This revision updates the number of
respondents used in the burden calculation but does not add to or
change the type of information being collected.
    1. Title: Recordkeeping Requirements for Liquefied Natural Gas
(LNG) Facilities.
    OMB Control Number: 2137-0048.
    Current Expiration Date: 02/28/2015.
    Type of Request: Renewal with no change of a currently approved
information collection.
    Abstract: In accordance with Title 49, CFR part 193, LNG facility
owners and operators are required to maintain records, make reports and
provide information to PHMSA upon request.
    Affected Public: Owners and operators of liquefied natural gas
facilities.
    Annual Reporting and Recordkeeping Burden:

    Total Annual Responses: 101.
    Total Annual Burden Hours: 12,120.
    Frequency of Collection: On occasion.
    2. Title: Qualification of Pipeline Safety Training.
    OMB Control Number: 2137-0600.
    Current Expiration Date: 04/30/2015.
    Type of Request: Revision of a currently approved information
collection.
    Abstract: All individuals responsible for the operation and
maintenance of pipeline facilities are required to be properly
qualified to safely perform their tasks. Title 49 CFR 192.807 and
195.507 require each operator to maintain records that demonstrate
compliance with the mandated qualification criteria. Records must be
kept and be provided to PHMSA upon request.
    Affected Public: Operators of pipeline facilities.
    Annual Reporting and Recordkeeping Burden:
    Total Annual Responses: 29,167.
    Total Annual Burden Hours: 466,672.
    Frequency of Collection: On occasion.
    Comments are invited on:
    (a) The need for the proposed collection of information for the
proper performance of the functions of the agency, including whether
the information will have practical utility;
    (b) The accuracy of the agency's estimate of the burden of the
proposed collection of information, including the validity of the
methodology and assumptions used;
    (c) Ways to enhance the quality, utility, and clarity of the
information to be collected; and
    (d) Ways to minimize the burden of the collection of information on
those who are to respond, including the use of appropriate automated,
electronic, mechanical, or other technological collection techniques.

    Issued in Washington, DC, on January 20, 2015.
John A. Gale,
Director, Standards and Rulemakings.
[FR Doc. 2015-01153 Filed 1-22-15; 8:45 am]
BILLING CODE 4910-60-P


[Federal Register Volume 80, Number 81 (Tuesday, April 28, 2015)]
[Notices]
[Page 23528]
[FR Doc No: 2015-09753]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 12766-005]

Green Mountain Power Corporation; Notice of Application for
Amendment of License and Soliciting Comments, Motions To Intervene, and
Protests

    Take notice that the following hydroelectric application has been
filed with the Commission and is available for public inspection:
    a. Application Type: Amendment of License.
    b. Project No: 12766-005.
    c. Date Filed: February 9, 2015.
    d. Applicant: Green Mountain Power Corporation.
    e. Name of Project: Clay Hill Road Line 66 Transmission Project.
    f. Location: The Clay Hill Road Line 66 Transmission Project is
located along Clay Hill Road in Windsor County, Vermont.
    g. Filed Pursuant to: Federal Power Act, 16 U.S.C. 791(a)-825(r).
    h. Applicant Contact: Kim Jones, P.E., Green Mountain Power
Corporation, 2152 Post Road, Rutland Town, Vermont 05701; telephone
(802) 488-4589.
    i. FERC Contact: Linda Stewart, telephone<PHONE_NUMBER> or email
<EMAIL_ADDRESS>    j. Deadline for filing comments, motions to intervene, and protests
is 30 days from the issuance date of this notice by the Commission. The
Commission strongly encourages electronic filing. Please file motions
to intervene, protests, or comments using the Commission's eFiling
system at http://www.ferc.gov/docs-filing/efiling.asp. Commenters can
submit brief comments up to 6,000 characters, without prior
registration, using the eComment system at http://www.ferc.gov/docs-filing/ecomment.asp. You must include your name and contact information
at the end of your comments. For assistance, please contact FERC Online
Support at<EMAIL_ADDRESS>(866) 208-3676 (toll free), or
(202) 502-8659 (TTY). In lieu of electronic filing, please send a paper
copy to: Secretary, Federal Energy Regulatory Commission, 888 First
Street NE., Washington, DC 20426. The first page of any filing should
include the project number (P-12766-005).
    k. Description of Request: Green Mountain Power Corporation (Green
Mountain) proposes to delete from the project license a section of the
existing 12.5-kilovolt (kV) transmission line. Specifically, the
amendment proposal would remove a 3.525-mile-long section of the
approximately 6-mile-long transmission line, thereby reducing the total
transmission line length to 2.276 miles.
    As currently licensed, the 12.5-kV transmission line extends
approximately 6 miles from Pole 115, via Pole 62x, to the Quechee
substation. Green Mountain plans to interconnect a 150-kilowatt net-
metered solar electric generator at Pole 62x. As a result, the 3.525-
mile-long section of transmission line from Pole 62x to the Quechee
substation would become necessary to transmit power from the solar
generation project. Green Mountain, therefore, proposes to delete that
section of transmission line from the project license.
    l. Locations of the Application: A copy of the application is
available for inspection and reproduction at the Commission's Public
Reference Room, located at 888 First Street NE., Room 2A, Washington,
DC 20426, or by calling<PHONE_NUMBER>. This filing may also be viewed
on the Commission's Web site at http://www.ferc.gov/docs-filing/elibrary.asp. Enter the docket number excluding the last three digits
in the docket number field to access the document. You may also
register online at http://www.ferc.gov/docs-filing/esubscription.asp to
be notified via email of new filings and issuances related to this or
other pending projects. For assistance, call 1-866-208-3676 or email
<EMAIL_ADDRESS>for TTY, call<PHONE_NUMBER>. A copy is
also available for inspection and reproduction at the address in item
(h) above.
    m. Individuals desiring to be included on the Commission's mailing
list should so indicate by writing to the Secretary of the Commission.
    n. Comments, Protests, or Motions to Intervene: Anyone may submit
comments, a protest, or a motion to intervene in accordance with the
requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211,
.214. In determining the appropriate action to take, the Commission
will consider all protests or other comments filed, but only those who
file a motion to intervene in accordance with the Commission's Rules
may become a party to the proceeding. Any comments, protests, or
motions to intervene must be received on or before the specified
comment date for the particular application.
    o. Filing and Service of Responsive Documents: Any filing must (1)
bear in all capital letters the title ``COMMENTS'', ``PROTEST'', or
``MOTION TO INTERVENE'' as applicable; (2) set forth in the heading the
name of the applicant and the project number of the application to
which the filing responds; (3) furnish the name, address, and telephone
number of the person protesting or intervening; and (4) otherwise
comply with the requirements of 18 CFR 385.2001 through 385.2005. All
comments, motions to intervene, or protests must set forth their
evidentiary basis and otherwise comply with the requirements of 18 CFR
4.34(b). All comments, motions to intervene, or protests should relate
to project works which are the subject of the proposed amendment.
Agencies may obtain copies of the application directly from the
applicant. A copy of any protest or motion to intervene must be served
upon each representative of the applicant specified in the particular
application. If an intervener files comments or documents with the
Commission relating to the merits of an issue that may affect the
responsibilities of a particular resource agency, they must also serve
a copy of the document on that resource agency. A copy of all other
filings in reference to this application must be accompanied by proof
of service on all persons listed in the service list prepared by the
Commission in this proceeding, in accordance with 18 CFR 4.34(b) and
385.2010.

    Dated: April 16, 2015.
Kimberly D. Bose,
Secretary.
[FR Doc. 2015-09753 Filed 4-27-15; 8:45 am]
 BILLING CODE 6717-01-P


[Federal Register: September 19, 2008 (Volume 73, Number 183)]
[Notices]
[Page 54439-54440]
[DOCID:fr19se08-105]

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SECURITIES AND EXCHANGE COMMISSION

[Extension: Rule 12d2-2, SEC File No. 270-86, OMB Control No. 3235-0080
Form 25]

Proposed Collection; Comment Request

Upon written request, copies available from: U.S. Securities and
Exchange Commission, office of Investor Education and Advocacy,
Washington, DC 20549-0213

    Notice is hereby given that pursuant to the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), the Securities and Exchange
Commission (``Commission'') is soliciting comments on the collection of
information summarized below. The Commission

plans to submit this existing collections of information to the Office
of Management and Budget for extension and approval.
     Rule 12d2-2 (17 CFR 240.12d2-2) and Form 25 (17 CFR
249.25) Removal and Notification of Removal from Listing and/or
Registration.
    On February 12, 1935, the Commission adopted Rule 12d2-2,\1\ and
Form 25 under the Securities Exchange Act of 1934 (15 U.S.C. 78b et
seq.) (``Act''), to establish the conditions and procedures under which
a security may be delisted from an exchange and withdrawn from
registration under Section 12(b) of the Act.\2\ The Commission adopted
amendments to Rule 12d2-2 and Form 25 in 2005.\3\ Under the amended
Rule 12d2-2, all issuers and national securities exchanges seeking to
delist and deregister a security in accordance with the rules of an
exchange must file the adopted version of Form 25 with the Commission.
The Commission also adopted amendments to Rule 19d-1 under the Act to
require exchanges to file the adopted version of Form 25 as notice to
the Commission under Section 19(d) of the Act. Finally, the Commission
adopted amendments to exempt options and security futures from Section
12(d) of the Act. These amendments are intended to simplify the
paperwork and procedure associated with a delisting and to unify
general rules and procedures relating to the delisting process.
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    \1\ See Securities Exchange Act Release No. 98 (February 12,
1935).
    \2\ See Securities Exchange Act Release No. 7011 (February 5,
1963), 28 FR 1506 (February 16, 1963).
    \3\ See Securities Exchange Act Release No. 52029 (July 14,
2005), 70 FR 42456 (July 22, 2005).
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    The Form 25 is useful because it informs the Commission that a
security previously traded on an exchange is no longer traded. In
addition, the Form 25 enables the Commission to verify that the
delisting has occurred in accordance with the rules of the exchange.
Further, the Form 25 helps to focus the attention of delisting issuers
to make sure that they abide by the proper procedural and notice
requirements associated with a delisting. Without Rule 12d2-2 and the
Form 25, as applicable, the Commission would be unable to fulfill its
statutory responsibilities.
    There are ten national securities exchanges that trade equity
securities that will be respondents subject to Rule 12d2-2 and Form
25.\4\ The burden of complying with Rule 12d2-2 and Form 25 is not
evenly distributed among the exchanges, however, since there are many
more securities listed on the New York Stock Exchange, the NASDAQ Stock
Market, and the American Stock Exchange LLC than on the other
exchanges. However, for purposes of this filing, the Commission staff
has assumed that the number of responses is evenly divided among the
exchanges. Since approximately 994 responses under Rule 12d2-2 and Form
25 for the purpose of delisting equity securities are received annually
by the Commission from the national securities exchanges, the resultant
aggregate annual reporting hour burden would be, assuming on average
one hour per response, 994 annual burden hours for all exchanges. In
addition, since approximately 371 responses are received by the
Commission annually from issuers wishing to remove their securities
from listing and registration on exchanges, the Commission staff
estimates that the aggregate annual reporting hour burden on issuers
would be, assuming on average one reporting hour per response, 371
annual burden hours for all issuers. Accordingly, the total annual hour
burden for all respondents to comply with Rule 12d2-2 is 1,365 hours.
The related costs associated with these burden hours are $76,177.50.
---------------------------------------------------------------------------

    \4\ The staff notes that there are two additional national
securities exchanges that only trade standardized options which, as
noted above, are exempt from Rule 12d2-2.
---------------------------------------------------------------------------

    Written comments are invited on: (a) Whether the proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information will
have practical utility; (b) the accuracy of the agency's estimate of
the burden of the collection of information; (c) ways to enhance the
quality, utility, and clarity of the information collected; and (d)
ways to minimize the burden of the collection of information on
respondents, including through the use of automated collection
techniques or other forms of information technology. Consideration will
be given to comments and suggestions submitted in writing within 60
days of this publication.
    Comments should be directed to: Lewis W. Walker, Acting Director/
Chief Information Officer, Securities and Exchange Commission, C/O
Shirley Martinson, 6432 General Green Way, Alexandria, Virginia 22312
or send an e-mail to<EMAIL_ADDRESS>Comments must be submitted
within 60 days of this notice.

    Dated: September 15, 2008.
Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-21902 Filed 9-18-08; 8:45 am]

BILLING CODE 8010-01-P