E9-21587. Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of Filing and Order Granting Accelerated Approval of Proposed Rule Change To Amend the Fee Schedule of the Boston Options Exchange Group, LLC

August 31, 2009.

Pursuant to Section 19(b)(1) ^[1] of the Securities Exchange Act of 1934 (“Act”) ^[2] and Rule 19b-4 thereunder,^[3] notice is hereby given that on August 31, 2009, NASDAQ OMX BX, Inc. (“BX” or “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 self-regulatory organization. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons and grant accelerated approval of the proposed rule change.

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

The Exchange is proposing an amendment to the Fee Schedule of the Boston Options Exchange Group, LLC (“BOX”). The text of the proposed rule change is available from the principal office of the Exchange, at the Commission's Public Reference Room and also on the Exchange's Internet Web site at http://nasdaqomxbx.cchwallstreet.com/​NASDAQOMXBX/​Filings/​.

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 these statements may be examined at the places specified in Item III below, and the most significant aspects of such statements are set forth in Sections A, B, and C below.

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

1. Purpose

The Exchange recently submitted a proposed rule change ^[4] with the Commission which eliminated the Liquidity Make or Take Pricing Structure on BOX, except for inbound P and P/A Order executions.^[5] Instead of the fees and credits that had previously been applied under the Liquidity Make or Take Pricing Structure “standard” transaction fees now apply to all classes listed for trading on BOX that are included in the Penny Pilot Program, as referenced in Chapter V, Section 33 of the BOX Rules (“Penny Pilot Classes”).^[6]

Executions on BOX resulting from inbound P and P/A Orders sent via the OCC Hub are subject to the same billing treatment as other executions on BOX. In conjunction with the above referenced rule change the Exchange is now proposing to remove Section 7 of the Fee Schedule in its entirety and the application of the Liquidity Make or Take Pricing to inbound P and P/A Orders sent to and executed on BOX in these Penny Pilot Classes. As a result the Liquidity Make or Take Pricing Structure will no longer exist on BOX. Standard P and P/A fees, as set forth in Section 4 of the BOX Fee Schedule, shall instead apply to inbound P and P/A Orders in all Penny Pilot Classes. In addition, the current Section 8 of the Fee Schedule will be renumbered as new Section 7. If approved, this proposal will conform inbound P and P/A fees with the fees charged to BOX Options Participants for the transactions in the same Penny Pilot Classes.

For example, an inbound P or P/A Order, routed to BOX from an away market executes against an order resting on the BOX Book. The inbound P or P/A Order is the remover of the liquidity. Prior to this proposal, such a transaction may have been subject to the fees set forth in the Liquidity Make or Take Pricing Structure, resulting in the applicable “take” fee (currently $0.45) of Section 7 of the Fee Schedule. Under this proposal, the standard $0.20 inbound P and P/A Order fee would apply.

2. Statutory Basis

The Exchange believes that the proposal is consistent with the requirements of Section 6(b) of the Act,^[7] in general, and Section 6(b)(4) of the Act,^[8] in particular, in that it provides for the equitable allocation of reasonable dues, fees, and other charges among its members and issuers and other persons using its facilities for the purpose of executing inbound P and P/A Orders that are routed to BOX from other market centers. In particular, this proposed fee change will treat inbound P and P/A Orders the same as other orders in Penny Pilot Classes and amend pricing for executions on BOX so as to better compete with the current pricing in place on other exchanges.

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

The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.

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

The Exchange has neither solicited nor received comments on the proposed rule change.

III. 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 (www.sec.gov/​rules/​sro.shtml);​; or
• Send an e-mail to [e-mail]. Please include File Number SR-BX-2009-057 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-BX-2009-057. 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 the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-BX-2009-057 and should be submitted on or before September 29, 2009.

IV. Commission's Findings and Order Granting Accelerated Approval of the Proposed Rule Change

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.^[9] In particular, the Commission finds that the proposed rule change is consistent with Section 6(b)(4) of the Act,^[10] which requires that the rules of an exchange provide for the equitable allocation of reasonable dues, fees and other charges among its members and other persons using its facilities.

The Commission finds good cause for approving this proposal before the 30th day after the publication of notice thereof in the Federal Register pursuant to 19(b)(2)(B).^[11] The proposal conforms the Exchange's fees charged for P Order and P/A Order executions in Penny Pilot Classes with the fees charged for other executions to BOX Participants in such Penny Pilot Classes. An accelerated approval will allow the Exchange to immediately implement a lower fee for market participants executing P Orders and P/A Orders on the Exchange.

V. Conclusion

It is therefore ordered, pursuant to Section 19(b)(2) of the Act,^[12] that the proposed rule change (SR-BX-2009-057) be, and it hereby is, approved on an accelerated basis.

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

Florence E. Harmon,

Deputy Secretary.

Footnotes

1.  15 U.S.C. 78s(b)(1).

2.  15 U.S.C. 78a.

3.  17 CFR 240.19b-4.

4.  See SR-BOX-2009-057.

5.  Terms not otherwise defined herein shall have the meaning proscribed in the Options Order Protection and Locked/Crossed Market Plan, or the BOX Rules, respectively.

6.  A recent proposal submitted by the Exchange for immediate effectiveness previously removed the following three (3) exchange-traded fund share classes from the Liquidity Make or Take pricing structure: (1) Standard & Poor's Depositary Receipts® (SPY); (2) Powershares® QQQ Trust Series 1 (QQQQ); and (3) iShares Russell 2000® Index Fund (IWM). See Securities Exchange Act Release No. 60221 (July 1, 2009), 74 FR 32996 (July 9, 2009) (SR-BX-2009-033). These three classes remain subject only to “standard” fees.

7.  15 U.S.C. 78f(b).

8.  15 U.S.C. 78f(b)(4).

9.  In approving this rule change, the Commission notes that it has considered the proposed rule's impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f).

10.  15 U.S.C. 78f(b)(4).

11.  15 U.S.C. 78s(b)(2)(B).

12.  15 U.S.C. 78s(b)(2).

13.  17 CFR 200.30-3(a)(12).