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61816 Federal Register / Vol. 71, No.

202 / Thursday, October 19, 2006 / Notices

will provide the Nasdaq additional Securities and Exchange Commission, September 27, 2006, The NASDAQ
means for facilitating transactions. 100 F Street, NE., Washington, DC Stock Market LLC (‘‘Nasdaq’’), filed
20549–1090. with the Securities and Exchange
B. Self-Regulatory Organization’s
All submissions should refer to File Commission (‘‘Commission’’ or ‘‘SEC’’)
Statement on Burden on Competition
Number SR–NASDAQ–2006–042. This the proposed rule change as described
Nasdaq does not believe that the file number should be included on the in Items I, and II below, which Items
proposed rule change will result in any subject line if e-mail is used. To help the have been prepared by Nasdaq. On
burden on competition that is not Commission process and review your October 12, 2006, Nasdaq filed
necessary or appropriate in furtherance comments more efficiently, please use Amendment No. 1 to the proposed rule
of the purposes of the Act. only one method. The Commission will change.3 Nasdaq has requested that this
C. Self-Regulatory Organization’s post all comments on the Commission’s proposal, as amended, be approved on
Statement on Comments on the Internet Web site (http://www.sec.gov/ an accelerated basis by October 16, 2006
Proposed Rule Change Received From rules/sro.shtml). Copies of the to coincide with the launch of Nasdaq’s
Members, Participants, or Others submission, all subsequent new Single Book execution system. The
amendments, all written statements Commission is publishing this notice to
Written comments were neither with respect to the proposed rule solicit comments on the proposed rule
solicited nor received. change that are filed with the change, as amended, from interested
III. Date of Effectiveness of the Commission, and all written persons. In addition, the Commission is
Proposed Rule Change and Timing for communications relating to the granting accelerated approval of the
Commission Action proposed rule change between the proposed rule change, as amended.
Commission and any person, other than I. Self-Regulatory Organization’s
Because the foregoing proposed rule
those that may be withheld from the Statement of the Terms of Substance of
change does not: (1) Significantly affect
public in accordance with the the Proposed Rule Change
the protection of investors or the public
provisions of 5 U.S.C. 552, will be
interest; (2) impose any significant Nasdaq proposes to modify Nasdaq
available for inspection and copying in
burden on competition; and (3) by its Rule 3350(a) to establish the national
the Commission’s Public Reference
terms become operative for 30 days after best bid rather than the Nasdaq best bid,
Room. Copies of such filing also will be
the date of this filing, or such shorter as the basis for determining compliance
available for inspection and copying at
time as the Commission may designate with Nasdaq Rule 3350(a).
the principal office of Nasdaq.
if consistent with the protection of Nasdaq also proposes to amend
All comments received will be posted
investors and the public interest, the Nasdaq Rule 4755(a)(2) to clearly
without change; the Commission does
proposed rule change has become describe the test that Nasdaq’s Single
not edit personal identifying
effective pursuant to section Book execution system will use to
information from submissions. You
19(b)(3)(A) 10 of the Act and Rule 19b– validate for compliance with applicable
should submit only information that
4(f)(6) thereunder.11 short sale rules for all securities that
you wish to make available publicly. All
At any time within 60 days of the trade through the system.
submissions should refer to the File
filing of such proposed rule change, the The text of the proposed rule change,
Number SR–NASDAQ–2006–042 and
Commission may summarily abrogate as amended, is below. Proposed new
should be submitted on or before
such rule change if it appears to the language is italicized; proposed
November 9, 2006.
Commission that such action is deletions are in brackets.4
necessary or appropriate in the public For the Commission, by the Division of
Market Regulation, pursuant to delegated * * * * *
interest, for the protection of investors,
or otherwise in furtherance of the authority.12 3350 Short Sale Rule
purposes of the Act. J. Lynn Taylor,
(a) With respect to trades executed on
Assistant Secretary. Nasdaq, no member shall effect a short
IV. Solicitation of Comments [FR Doc. E6–17440 Filed 10–18–06; 8:45 am] sale for the account of a customer or for
Interested persons are invited to BILLING CODE 8011–01–P its own account in a Nasdaq Global
submit written data, views and Market security at or below the current
arguments concerning the foregoing, best (inside) bid displayed in the
including whether the proposed rule SECURITIES AND EXCHANGE [Nasdaq Market Center] National Market
change is consistent with the Act. COMMISSION System when the current best (inside)
Comments may be submitted by any of bid is below the preceding best (inside)
[Release No. 34–54601; File No. SR–
the following methods: NASDAQ–2006–037] bid in the security. For purposes of this
Electronic Comments rule, the term ‘‘customer’’ includes a
Self-Regulatory Organizations; The non-member broker-dealer.
• Use the Commission’s Internet NASDAQ Stock Market LLC; Notice of (b)–(l) No Change.
comment form (http://www.sec.gov/ Filing and Order Granting Accelerated
rules/sro.shtml); or * * * * *
Approval of Proposed Rule Change To
• Send an e-mail to rule- Modify NASDAQ Rules 3350 and 4755 4755. Order Entry Parameters
comments@sec.gov. Please include File
October 13, 2006. (a) System Orders
Number SR–NASDAQ–2006–042 on the
subject line. Pursuant to section 19(b)(1) under the (1) No Change.
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Securities Exchange Act of 1934


Paper Comments 3 In Amendment No. 1, which supplemented the
(‘‘Act’’),1 and Rule 19b–4 thereunder,2
• Send paper comments in triplicate notice is hereby given that on original filing, Nasdaq made certain technical and
clarifying changes following discussions with
to Nancy M. Morris, Secretary, Commission staff.
12 17 CFR 200.30–3(a)(12). 4 Changes are marked to the rule text that appears
10 15 U.S.C. 78s(b)(3)(A). 1 15 U.S.C. 78s(b)(1). in the electronic NASDAQ Manual found at http://
11 17 CFR 240.19b–4(f)(6). 2 17 CFR 240.19b–4. www.nasdaqtrader.com.

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Federal Register / Vol. 71, No. 202 / Thursday, October 19, 2006 / Notices 61817

(2) Short Sale Compliance-System on June 29, 1994, the SEC approved the selects and applies a single bid tick
orders to sell short shall not be executed NASD’s short sale rule applicable to indicator for all such trades executed by
if the execution of such an order would short sales in Nasdaq Global Market that firm.
violate any applicable short sale securities.5 Nasdaq states that in its Nasdaq notes that it elected to apply
regulation of the SEC or Nasdaq. For January 13, 2006, order approving the Nasdaq-based bid tick because at
Nasdaq securities, the System shall Nasdaq’s registration as a national that time the NBBO was regularly
validate for short sale compliance using securities exchange, the Commission different from the best bid that was
a bid tick based upon changes to the granted Nasdaq an exemption from Rule reasonably accessible to many market
national best bid and offer disseminated 10a–1 to permit the application of participants. Nasdaq states that this
pursuant to an effective transaction Nasdaq Rule 3350 (the ‘‘Nasdaq Rule’’) would occur when a market that was
reporting plan. For NYSE and Amex rather than SEC Rule 10a–1 to the relatively inaccessible, such as a
securities, the System shall validate for trading of Nasdaq-listed securities on manual, floor-based market with no
short sale compliance based upon Nasdaq.6 Nasdaq notes, however, that electronic linkages, submitted a bid to
changes to the consolidated last sale SEC Rule 10a–1 continues to apply to the network processor that became part
disseminated pursuant to an effective the trading of securities listed on other of the NBBO. When that bid created a
transaction reporting plan. national securities exchanges. down arrow for the NBBO-based bid
(3)–(4) No Change. Nasdaq states that the Nasdaq Rule tick, Nasdaq participants would be
* * * * * employs a ‘‘bid’’ test rather than a tick precluded from executing short sales,
test because Nasdaq trades are not absent an exemption. Nasdaq notes that
II. Self-Regulatory Organization’s necessarily reported to the tape in this was true even where Nasdaq
Statement of the Purpose of, and chronological order. Nasdaq notes that, participants could not access the other
Statutory Basis for, the Proposed Rule currently, its short sale rule prohibits market and even though that market did
Change short sales at or below the inside bid not itself impose a bid-based short sale
In its filing with the Commission, when the current inside bid is below the restriction. In that case, Nasdaq states
Nasdaq included statements concerning previous inside bid. Nasdaq notes that that the Nasdaq participant could not
the purpose of and basis for the it calculates the inside bid from all execute a short sale on Nasdaq due to
proposed rule change, as amended, and market makers in the security and the downward bid tick, nor could it
discussed any comments it received on disseminates symbols to denote whether execute the sale on the inaccessible
the proposed rule change, as amended. the current inside bid is an ‘‘up-bid’’ or market due to the absence of a linkage
The text of these statements may be a ‘‘down-bid.’’ In addition, Nasdaq notes with that market. Nasdaq notes that at
examined at the places specified in Item that to effect a ‘‘legal’’ short sale on a the same time, Nasdaq’s execution
III below. Nasdaq has prepared down-bid, the short sale must be system could be forced to halt
summaries, set forth in Sections A, B, executed at a price at least $.01 above processing while the inaccessible
and C below, of the most significant the current inside bid. Nasdaq states market set the NBBO. Nasdaq believed
aspects of such statements. that the Nasdaq Rule is in effect from that this situation was inequitable and
9:30 a.m. until 4 p.m. each trading day. that the appropriate outcome was to
A. Self-Regulatory Organization’s Also, Nasdaq notes that from the time establish a bid tick based upon quotes
Statement of the Purpose of, and the Nasdaq Rule was implemented until that were accessible through Nasdaq
Statutory Basis for, the Proposed Rule December of 2002, Nasdaq utilized the systems.
Change NBBO to calculate the bid tick used to Rationale for Proposal. Nasdaq states
determine short sale compliance. that its rationale for using the Nasdaq-
1. Purpose
Nasdaq states that in December of based bid tick rather than the NBBO-
Nasdaq proposes to modify Rule 2002, Nasdaq modified the method it based bid tick for short sale compliance
3350(a) and Rule 4755(a)(2) to state that used to calculate the last bid by having is less powerful today, and there are
short sale compliance for Nasdaq it refer to the ‘‘Nasdaq Inside’’ which is countervailing interests today that did
securities will be based upon changes to comprised of quotations from all not exist in 2002. Nasdaq states that as
the national best bid and offer participants in the Nasdaq Market Nasdaq and the rest of the industry
(‘‘NBBO’’) as is currently the case in the Center (known then as SuperMontage), approach the implementation of
INET system, as opposed to changes in rather than referring to the NBBO.7 Regulation NMS, the NBBO has
the Nasdaq best bid as is currently the Nasdaq notes that it currently calculates assumed, and will continue to assume,
case in the Nasdaq Market Center. and applies the Nasdaq-based bid tick increased importance, and participants
Background. Nasdaq states that will modify their systems to utilize the
indicator to all Nasdaq Market Center
section 10(a) of the Act gives the NBBO for a variety of trading, routing,
trades. With respect to trades executed
Commission plenary authority to and compliance purposes. Nasdaq notes
outside Nasdaq execution systems and
regulate short sales of securities that the majority of Nasdaq members are
reported to Nasdaq, however, Nasdaq
registered on a national securities using the NBBO-based bid tick rather
states that Nasdaq participants have
exchange, as needed to protect than the Nasdaq-based bid tick, and it
been permitted to validate for short sale
investors. Nasdaq notes that although is expected that more firms will do so
compliance by reference either to the
the Commission has regulated short as they program their systems to comply
NBBO-based bid tick or to the Nasdaq-
sales since 1938, that regulation has with Regulation NMS. Thus, Nasdaq
based bid tick, provided that each firm
been limited to short sales of exchange- states that to maintain its use of the
listed securities. Nasdaq states that in 5 Formerly referred to as ‘‘Nasdaq National Nasdaq-based bid tick would, at this
1992, Nasdaq, believing that short-sale point in time, fly in the face of
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Market’’ securities. See Securities Exchange Act


regulation was important to the orderly Release No. 54071 (June 29, 2006); 71 FR 38922 overwhelming regulatory and industry
operation of securities markets, (July 10, 2006) (approving name change). momentum.
6 Securities Exchange Act Release No. 53128
proposed a short sale rule for trading of Nasdaq believes that due to the
(January 13, 2006).
Nasdaq National Market securities that 7 See Securities Exchange Act Release No. 46999 relative activity on Nasdaq’s systems, it
incorporated the protections provided (December 13, 2002); 67 FR 78534 (December 24, will be far more disruptive for Nasdaq
by SEC Rule 10a–1. Nasdaq notes that 2002). to apply the Nasdaq-based bid tick than

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61818 Federal Register / Vol. 71, No. 202 / Thursday, October 19, 2006 / Notices

to apply the NBBO-based bid tick. system, and, in general, to protect comments received will be posted
Nasdaq states that the INET system investors and the public interest. without change; the Commission does
currently uses the NBBO-based bid tick, not edit personal identifying
B. Self-Regulatory Organization’s
and it accounts for approximately 32 information from submissions. You
Statement on Burden on Competition
percent of consolidated trading in should submit only information that
Nasdaq securities, whereas the Nasdaq Nasdaq does not believe that the you wish to make available publicly. All
Market Center accounts for proposed rule change, as amended, will submissions should refer to File
approximately 11 percent market share result in any burden on competition that Number SR–NASDAQ–2006–037 and
in Nasdaq securities. Therefore, Nasdaq is not necessary or appropriate in should be submitted on or before
believes it will be less disruptive to furtherance of the purposes of the Act. November 9, 2006.
continue using the NBBO-based bid tick C. Self-Regulatory Organization’s IV. Commission’s Findings and Order
employed by current INET users. Statement on Comments on the Granting Accelerated Approval of
In addition, Nasdaq notes that the Proposed Rule Change Received From Proposed Rule Change
NASD recently announced that all Members, Participants, or Others
NASD members that execute short sales After careful consideration, the
in the over-the-counter market must Written comments were neither Commission finds that modification of
utilize the NBBO-based bid tick no later solicited nor received. the method used to calculate the bid
than November 3, 2006. Thus, Nasdaq III. Solicitation of Comments tick indicator to determine the
states that since the vast majority of permissibility of a short sale and the
Interested persons are invited to clarification regarding which short sale
Nasdaq members are also NASD submit written data, views, and
members that trade over-the-counter, price test Nasdaq’s Single Book
arguments concerning the foregoing, execution system will use to validate for
Nasdaq members are already on notice including whether the proposed rule
that their systems must use the NBBO- compliance for short sales traded
change, as amended, is consistent with through the system are consistent with
based bid tick for short sale compliance the Act. Comments may be submitted by the requirements of the Act and the
by November 3. Nasdaq states that by any of the following methods:
moving to the NBBO-based bid tick, rules and regulations thereunder
Nasdaq will be creating uniformity Electronic Comments applicable to a national securities
among joint NASD/Nasdaq members • Use the Commission’s Internet exchange.10 In particular, the
that trade Nasdaq securities on Nasdaq comment form (http://www.sec.gov/ Commission finds that the proposed
and in the over-the-counter markets. In rules/sro.shtml); or rule change, as amended, is consistent
addition, Nasdaq notes that this • Send an e-mail to rule- with the requirements of section 6(b)(5)
coincides almost exactly with the final comments@sec.gov. Please include File of the Act,11 which requires, among
roll-out of Nasdaq’s new Single Book Number SR–NASDAQ–2006–037 on the other things, that Nasdaq’s rules be
execution system. Nasdaq states that it subject line. designed to promote just and equitable
would be more disruptive to require principles of trade, to remove
Nasdaq to continue to apply the Nasdaq- Paper Comments impediments to and perfect the
based bid tick during the roll-out of the • Send paper comments in triplicate mechanism of a free and open market
Single Book execution system. to Nancy M. Morris, Secretary, and a national market system, and in
Nasdaq is also proposing to amend Securities and Exchange Commission, general, to protect investors and the
Rule 4755(a)(2) to clearly describe the 100 F Street, NE., Washington, DC public interest.
test that Nasdaq’s Single Book execution 20549–1090. Nasdaq has requested that the
system will use to validate for All submissions should refer to File Commission find good cause for
compliance with applicable short sale Number SR–NASDAQ–2006–037. This approving the proposed rule change, as
rules for all securities that trade through file number should be included on the amended, prior to the 30th day after
the system. Nasdaq states that for subject line if e-mail is used. To help the publication of notice thereof in the
Nasdaq-listed securities, the rule states Commission process and review your Federal Register. Nasdaq has confirmed
that the system will use a bid tick based comments more efficiently, please use to the Commission that it would be
upon the NBBO. For NYSE- and Amex- only one method. The Commission will more disruptive to market participants
listed securities, the system will use a post all comments on the Commission’s to continue to determine the
tick based upon changes to the last sale Internet Web site (http://www.sec.gov/ permissibility of a short sale based on
reported pursuant to an effective rules/sro.shtml). Copies of the the Nasdaq-based bid tick rather than on
transaction reporting plan for those submission, all subsequent the NBBO-based bid tick following
securities. amendments, all written statements implementation of Nasdaq’s Single Book
with respect to the proposed rule execution system. In addition, Nasdaq
2. Statutory Basis has stated that it does not believe that
change that are filed with the
Nasdaq believes that the proposed Commission, and all written firms will face compliance issues, from
rule change, as amended, is consistent communications relating to the a systems perspective or otherwise, if
with the provisions of section 6 of the proposed rule change between the Nasdaq’s Single Book execution system
Act,8 in general, and with section 6(b)(5) Commission and any person, other than validates for short sale compliance
of the Act,9 in particular, in that it is those that may be withheld from the based on the NBBO-based bid tick rather
designed to prevent fraudulent and public in accordance with the than on the Nasdaq-based bid tick.
manipulative acts and practices, to provisions of 5 U.S.C. 552, will be Thus, the Commission finds good cause
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promote just and equitable principles of available for inspection and copying in exists, consistent with sections 6(b)(5)
trade, remove impediments to a free and the Commission’s Public Reference
10 In approving this proposed rule change, the
open market and a national market Section, 100 F Street, NE., Washington,
Commission notes that it has considered the
DC 20549. Copies of such filing also will proposed rule’s impact on efficiency, competition,
8 15 U.S.C. 78f. be available for inspection and copying and capital formation. See 15 U.S.C. 78c(f).
9 15 U.S.C. 78f(b)(5). at the principal office of the NASD. All 11 15 U.S.C. 78f(b)(5).

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Federal Register / Vol. 71, No. 202 / Thursday, October 19, 2006 / Notices 61819

and 19(b)(2) of the Act,12 to approve the available through its NYSE The Exchange notes that the limit
proposed rule change, as amended, on OpenBookTM service. The NYSE has order products of fully automated
an accelerated basis, prior to the 30th designated this proposal as non- markets, such as NYSE Arca’s ArcaBook
day after the date of publication of the controversial and has requested that the and Nasdaq’s TotalView, already
notice of filing thereof in the Federal Commission waive the 30-day pre- provide users with the quotation
Register. operative waiting period contained in information that those markets provide
Rule 19b-4(f)(6)(iii) under the Act.5 The under the CQ Plan.6
V. Conclusion
text of the proposed rule change is The Exchange believes that the
It is therefore ordered, pursuant to available on the Exchange’s Web site addition of NYSE quotation information
section 19(b)(2) of the Act that the (http://www.nyse.com), at the to NYSE OpenBookTM will make NYSE
proposed rule change (SR–NASDAQ– Exchange’s Office of the Secretary, and OpenBookTM a more attractive product
2006–037) is approved on an at the Commission’s Public Reference to the trading desks of broker-dealers
accelerated basis. Room. and institutional investors.
For the Commission, by the Division of II. Self-Regulatory Organization’s
Market Regulation, pursuant to delegated
At this time, the Exchange is not
authority.13
Statement of the Purpose of, and proposing to add or change any
Statutory Basis for, the Proposed Rule OpenBookTM fee or to revise any
J. Lynn Taylor,
Change OpenBookTM contract because of the
Assistant Secretary.
In its filing with the Commission, addition of NYSE quotation
[FR Doc. E6–17441 Filed 10–18–06; 8:45 am] information.
BILLING CODE 8011–01–P
NYSE included statements concerning
the purpose of, and basis for, the 2. Statutory Basis
proposed rule change and discussed any
SECURITIES AND EXCHANGE comments it received on the proposed The Exchange believes that the
COMMISSION rule change. The text of these statements proposed rule change is consistent with
may be examined at the places specified the provisions of Section 6(b) of the
[Release No. 34–54594; File No. SR–NYSE– in Item IV below. The Exchange has Act,7 in general, and with Section
2006–81] 6(b)(5) of the Act,8 in particular, in that
prepared summaries, set forth in
Sections A, B, and C below, of the most it is designed to prevent fraudulent and
Self-Regulatory Organizations; New
significant aspects of such statements. manipulative acts and practices, to
York Stock Exchange LLC; Notice of
promote just and equitable principles of
Filing and Immediate Effectiveness of A. Self-Regulatory Organization’s trade, to foster cooperation and
Proposed Rule Change Relating to the Statement of the Purpose of, and coordination with persons engaged in
Addition of Real-Time Quotation Statutory Basis for, the Proposed Rule processing information with respect to,
Information to the NYSE OpenBookTM Change and facilitating transactions in,
Service
1. Purpose securities, to remove impediments to
October 12, 2006 and perfect the mechanism of a free and
Currently, NYSE OpenBookTM
Pursuant to Section 19(b)(1) of the open market and a national market
consists of a compilation of limit order
Securities Exchange Act of 1934 system, and, in general, to protect
data that the Exchange makes available
(‘‘Act’’),1 and Rule 19b–4 thereunder,2 investors and the public interest.
to market data vendors, broker-dealers,
notice is hereby given that on October private network providers and other B. Self-Regulatory Organization’s
5, 2006, the New York Stock Exchange entities. With this proposed rule change, Statement on Burden on Competition
LLC (‘‘NYSE’’ or ‘‘Exchange’’), filed the Exchange proposes to add the
with the Securities and Exchange Exchange’s quotation information to the The Exchange believes that the
Commission (‘‘Commission’’) the NYSE OpenBookTM package. The proposed rule change will not impose
proposed rule change as described in Exchange’s quotes include the best bid any burden on competition that is not
Items I and II below, which Items have and offer available for a security on the necessary or appropriate in furtherance
been prepared by the NYSE. The Exchange. That best bid and offer of the purposes of the Act.
Exchange has filed the proposal reflects not only the limit orders C. Self-Regulatory Organization’s
pursuant to Section 19(b)(3)(A) of the resident in OpenBookTM, but interest in Statement on Comments on the
Act,3 and Rule 19b–4(f)(6) thereunder,4 the trading crowd and specialists’ Proposed Rule Change Received from
which renders the proposal effective proprietary interest as well. Members, Participants or Others
upon filing with the Commission. The The quotation information regarding
Commission is publishing this notice to the best NYSE bid or offer is the same Written comments were neither
solicit comments on the proposed rule quotation information that the Exchange solicited nor received.
change from interested persons. provides to the Processor under the CQ III. Date of Effectiveness of the
I. Self-Regulatory Organization’s Plan for consolidation with other Proposed Rule Change and Timing for
Statement of the Terms of Substance of markets’ quotation information. That is, Commission Action
the Proposed Rule Change the Exchange is proposing to add the
information that it makes available The foregoing proposed rule change is
The Exchange proposes to add real-
under the CQ Plan to its NYSE subject to Section 19(b)(3)(A)(iii) of the
time quotation information to the limit
OpenBookTM service. The Exchange
order information that it makes
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will make NYSE quotation information 6 The Commission made minor clarifying changes

12 15 U.S.C. 78f(b)(5); 15 U.S.C. 78s(b)(2).


available through NYSE OpenBookTM in to this paragraph of the purpose section. Telephone
real-time and no earlier than it provides conversation between Ron Jordan, Senior Vice
13 17 CFR 200.30–3(a)(12). President, NYSE, and Rahman Harrison, Special
1 15 U.S.C. 78s(b)(1). that quotation information to the Counsel, Division of Market Regulation,
2 17 CFR 240.19b–4. Processor under the CQ Plan. Commission on October 12, 2006.
3 15 U.S.C. 78s(b)(3)(A). 7 15 U.S.C. 78f(b).
4 17 CFR 240.19b–4(f)(6). 5 17 CFR 240.19b–4(f)(6)(iii). 8 15 U.S.C. 78f(b)(5).

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