Federal Register / Vol. 76, No. 38 / Friday, February 25, 2011 / Notices 10631 

14FINRA Response. 

15Asensio Letter. 

16FINRA Response. 

17Asensio Letter. 

18FINRA Response. 

19The Asensio Letter also describes the 

foreclosure of a review of a FINRA-imposed 

sanction through the eligibility proceedings as 

‘‘contrary to the most basic ideals of constitutional 

due process.’’ As referenced above, FINRA believes 

that the eligibility proceedings are not the 

appropriate forum for reviewing FINRA-imposed 

sanctions; however, a process does exist for 

individuals to challenge a FINRA-imposed 

sanction. As such, FINRA also believes the Asensio 

Letter’s argument lacks merit. 

20ASG Letter. 

21FINRA Response. 

22 In approving this proposed rule change, the 

Commission has considered the proposed rule’s 

impact on efficiency, competition, and capital 

formation. See 15 U.S.C. 78c(f). 

23 15 U.S.C. 78o–3(b)(6). 

24 15 U.S.C. 78s(b)(2). 

25 17 CFR 200.30–3(a)(12). 

1 15 U.S.C. 78s(b)(1). 

2 15 U.S.C. 78a. 

3 17 CFR 240.19b–4. 

rule change was an improper attempt to 

adversely impact a New Member 

Application Form (‘‘NMA’’) filed by 

ACO and concurrent MC–400 

application filed by ACO on Mr. 

Asensio’s behalf. In the FINRA 

Response, FINRA contests this 

assertion. Specifically, the FINRA 

Response states that the proposed rule 

change is a separate policy-driven 

proceeding based on its belief that a 

new member applicant should enter 

FINRA membership free of the 

supervisory and operating concerns 

raised by association with a statutorily 

disqualified person or being itself 

subject to a statutory disqualification.14

The FINRA Response further notes that 

the proposed rule change would apply 

only to NMAs and applications for relief 

from a statutory disqualification filed on 

or after the effective date of the 

proposed rule change and, 

consequently, would not impact any 

applications pending before such 

effective date. 

The Asensio Letter also states that the 

proposed rule change was unnecessary 

because FINRA already has authority 

under its current rules to deny an NMA 

based on the existence of a statutory 

disqualification and to deny an MC–400 

application based on the fact that a 

disqualified person is proposing to 

associate with a new member.15 The 

FINRA Response contests this assertion 

by citing the public policy interests 

underlying the proposed rule change’s 

objective—to promote initiation of 

FINRA membership free of statutory 

disqualification concerns. Moreover, 

FINRA believes the proposed rule 

would allow FINRA to conserve 

regulatory resources that would 

otherwise be devoted to considering an 

NMA or MC–400 application that the 

proposed rule change would preclude at 

the outset.16

The Asensio Letter also states that the 

proposal would effectively foreclose use 

of the eligibility proceedings by a 

disqualified person seeking relief from 

FINRA sanctions. Specifically, the 

Asensio Letter states that the eligibility 

proceedings represent the only avenue 

for seeking relief outside of an appeal 

and to effectively use the eligibility 

proceedings for this purpose, a 

disqualified person must be able to 

create a new member applicant to be his 

sponsor; otherwise, a disqualified 

person cannot present his arguments for 

relief free from possible restrictions that 

could be imposed by a member 

sponsor.17 The FINRA Response states 

that the eligibility proceedings are not 

the appropriate forum for reviewing 

sanctions imposed in a formal 

disciplinary action brought by FINRA; 

rather, the correct process for an 

individual to challenge any FINRAimposed sanctions is set forth in the 

FINRA Rule 9300 Series (Review of 

Disciplinary Proceeding By National 

Adjudicatory Council and FINRA Board; 

Application for SEC Review).18

Accordingly, FINRA believes this 

objection lacks merit.19

The second commenter, ASG 

Securities, did not oppose the proposed 

rule change but requested that FINRA 

amend the proposal to (1) extend from 

ten business days to twenty business 

days the period in FINRA Rule 

9522(a)(3) (Notice Regarding an 

Associated Person) during which a 

member may file a Form MC–400A 

application for itself and an associated 

person upon receiving a disqualification 

notice from FINRA staff; and (2) 

prohibit a disqualified person or entity 

from financing a member or providing 

or lending funds to an associated person 

for re-investment into a member.20 The 

FINRA Response states that the 

commenter’s suggestions are outside the 

scope of the rule proposal; as such, it 

does not intend to expand the proposal 

to address these additional issues at this 

time. However, it will consider whether 

to propose additional changes at a later 

date.21

IV. Discussion and Commission 

Findings 

The Commission has carefully 

reviewed the proposed rule change, the 

comments received, and FINRA’s 

response to the comments, and 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 association.22 In particular, 

the Commission finds that the proposed 

rule change is consistent with Section 

15A(b)(6) of the Act,23 which, among 

other things, requires that FINRA rules 

be designed to prevent fraudulent and 

manipulative acts and practices, to 

promote just and equitable principles of 

trade, and, in general, to protect 

investors and the public interest. In 

particular, the Commission agrees that a 

new member applicant should enter 

FINRA membership free of the 

supervisory and operating concerns 

raised by association with a statutorily 

disqualified person or being itself 

subject to a statutory disqualification. 

V. Conclusion 

It is therefore ordered, pursuant to 

Section 19(b)(2) of the Act,24 that the 

proposed rule change (SR–FINRA– 

2010–056), be, and hereby is, approved. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.25

Cathy H. Ahn, 

Deputy Secretary. 

[FR Doc. 2011–4216 Filed 2–24–11; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–63934; File No. SR–NYSE– 

2011–04] 

Self-Regulatory Organizations; New 

York Stock Exchange LLC; Notice of 

Filing and Immediate Effectiveness of 

Proposed Rule Change To Amend the 

Exchange Price List 

February 18, 2011. 

Pursuant to Section 19(b)(1) 1 of the 

Securities Exchange Act of 1934 (the 

‘‘Act’’) 2 and Rule 19b–4 thereunder,3

notice is hereby given that, on February 

14, 2011, New York Stock Exchange 

LLC (‘‘NYSE’’ or the ‘‘Exchange’’) filed 

with the Securities and Exchange 

Commission (the ‘‘Commission’’) the 

proposed rule change as described in 

Items I, II, and III below, which Items 

have been prepared by the selfregulatory organization. The 

Commission is publishing this notice to 

solicit comments on the proposed rule 

change from interested persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange proposes to amend its 

2011 Price List (‘‘Price List’’) for equity 


srobinson on DSKHWCL6B1PROD with NOTICES
10632 Federal Register / Vol. 76, No. 38 / Friday, February 25, 2011 / Notices 

4See Securities Exchange Act Release No. 59430 

(February 20, 2009), 74 FR 9014 (February 27, 2009) 

(File No. SR–NYSE–2009–15) (the ‘‘Original RMG 

Fee Filing’’). 

5Original RMG Fee Filing, 74 FR at 9015. 

6See Securities Exchange Act Release No. 60664 

(September 14, 2009), 74 FR 48110 (September 21, 

2009) (File No. SR–NYSEArca–2009–81) (the 

‘‘NYSE Arca RMG Fee Filing’’). 

7 15 U.S.C. 78f. 

8 15 U.S.C. 78f(b)(4). 

9 15 U.S.C. 78s(b)(3)(A). 

10 17 CFR 240.19b–4(f)(2). 

transactions by revising the description 

of the Risk Management Gateway 

(‘‘RMG’’) fee to clarify that the charge is 

determined on the basis of the capacity 

of the end user’s connection in inbound 

messages per second, rather than the 

actual number of inbound messages. 

The text of the proposed rule change is 

available at the Exchange, the 

Commission’s Public Reference Room, 

http://www.sec.gov, and http:// 

www.nyse.com. 

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, the 

self-regulatory organization included 

statements concerning the purpose of, 

and basis for, the proposed rule change 

and discussed any comments it received 

on the proposed rule change. The text 

of those statements may be examined at 

the places specified in Item IV below. 

The Exchange has prepared summaries, 

set forth in sections A, B, and C below, 

of the most significant parts of such 

statements. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and the 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

The Exchange proposes to amend its 

Price List for equity transactions by 

revising the description of the RMG fee 

to clarify that the charge is determined 

on the basis of the capacity of the end 

user’s connection in inbound messages 

per second, rather than the actual 

number of inbound messages. 

On February 12, 2009, the Exchange 

filed a proposed rule change with the 

Commission that established the fee for 

its RMG service to facilitate the ability 

of Sponsoring Member Organizations to 

monitor and oversee the sponsored 

access activity of their Sponsored 

Participants.4 In the Original RMG Fee 

Filing, the Exchange established a fee of 

$3,000 per month for the first 

‘‘Connection’’ plus $1,000 per month for 

each additional ‘‘Connection.’’ A 

‘‘Connection’’ was defined as up to 1,000 

messages per second inbound, 

regardless of the connection’s actual 

capacity.5 Consequently, if a particular 

end user’s connection has the capacity 

to support 3,000 messages per second 

inbound, that end user’s connection will 

be deemed to be three (3) Connections 

and the charge will be $5,000 per 

month. 

Although it is clear from the Original 

RMG Fee Filing that the key variable in 

determining an end user’s RMG fee is 

the capacity in messages per second 

inbound that the end user’s connection 

will support (i.e., the number of 

Connections), the descriptive language 

that was added to the Price List at that 

time was inartfully worded and could 

be misinterpreted as basing the monthly 

RMG fee on the actual number of 

inbound messages. Consequently, the 

Exchange is proposing to modify the 

descriptive language for the RMG fee in 

the Price List to clarify that the fee is 

based on message capacity. There will 

be no change to the pricing itself or the 

basis on which it is currently calculated. 

The Exchange notes that NYSE Arca, 

Inc. (‘‘NYSE Arca’’), in a rule filing with 

the Commission on September 4, 2009,6

established a fee for its RMG service that 

is exactly the same as the Exchange’s 

RMG fee, including the computation of 

the fee based on message capacity. In 

the NYSE Arca RMG Fee Filing, the 

descriptive language that was added to 

the NYSE Arca Fee Schedule describes 

much more clearly and unambiguously 

the basis on which the RMG fee is 

calculated and the Exchange proposes to 

replace the current descriptive language 

in its Price List with the corresponding 

language from the NYSE Arca Fee 

Schedule. 

2. Statutory Basis 

The Exchange believes that the 

proposed rule change is consistent with 

the provisions of Section 6 of the 

Securities Exchange Act of 1934 (the 

‘‘Act’’),7 in general, and Section 6(b)(4) 

of the Act,8 in particular, in that it is 

designed to provide for the equitable 

allocation of reasonable dues, fees, and 

other charges among its members and 

other persons using its facilities. The 

Exchange believes that the proposal 

does not constitute an inequitable 

allocation of fees, since there will be no 

change to the current RMG fee which 

has been in effect since February 2009, 

or how it is calculated, only to the 

description of the fee for the purposes 

of adding clarity regarding the basis and 

calculation of the fee. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

The Exchange does not believe that 

the proposed rule change will impose 

any burden on competition that is not 

necessary or appropriate in furtherance 

of the purposes of the Act. 

C. Self-Regulatory Organization’s 

Statement on Comments on the 

Proposed Rule Change Received From 

Members, Participants, or Others 

No written comments were solicited 

or received with respect to the proposed 

rule change. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

The foregoing rule change is effective 

upon filing pursuant to Section 

19(b)(3)(A) 9 of the Act and 

subparagraph (f)(2) of Rule 19b–4 10

thereunder, because it establishes a due, 

fee, or other charge imposed by the 

NYSE. 

At any time within 60 days of the 

filing of such proposed rule change, the 

Commission summarily may 

temporarily suspend such rule change if 

it appears to the Commission that such 

action is necessary or appropriate in the 

public interest, for the protection of 

investors, or otherwise in furtherance of 

the purposes of the Act. 

IV. Solicitation of Comments 

Interested persons are invited to 

submit written data, views, and 

arguments concerning the foregoing, 

including whether the proposed rule 

change is consistent with the Act. 

Comments may be submitted by any of 

the following methods: 

Electronic Comments 

• Use the Commission’s Internet 

comment form (http://www.sec.gov/ 

rules/sro.shtml); or 

• Send an e-mail to rulecomments@sec.gov. Please include File 

Number SR–NYSE–2011–04 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–NYSE–2011–04. 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 


srobinson on DSKHWCL6B1PROD with NOTICES
Federal Register / Vol. 76, No. 38 / Friday, February 25, 2011 / Notices 10633 

11 17 CFR 200.30–3(a)(12). 

1 15 U.S.C. 78s(b)(1). 

2 15 U.S.C. 78a. 

3 17 CFR 240.19b–4. 

4See Securities Exchange Act Release No. 59429 

(February 20, 2009), 74 FR 9016 (February 27, 2009) 

(File No. SR–NYSEALTR–2009–12) (the ‘‘Original 

RMG Fee Filing’’). 

5 Id. 

6See Securities Exchange Act Release No. 60664 

(September 14, 2009), 74 FR 48110 (September 21, 

2009) (File No. SR–NYSEArca–2009–81) (the 

‘‘NYSE Arca RMG Fee Filing’’). 

7 15 U.S.C. 78f. 

8 15 U.S.C. 78f(b)(4). 

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 website viewing and 

printing in the Commission’s Public 

Reference Room, 100 F Street, NE., 

Washington, DC 20549, on official 

business days between the hours of 10 

a.m. and 3 p.m. Copies of such filing 

also will be available for inspection and 

copying at the principal office of the 

Exchange. All comments received will 

be posted without change; the 

Commission does not edit personal 

identifying information from 

submissions. You should submit only 

information that you wish to make 

publicly available. All submissions 

should refer to File Number SR–NYSE– 

2011–04 and should be submitted on or 

before March 18, 2011. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.11

Cathy H. Ahn, 

Deputy Secretary. 

[FR Doc. 2011–4226 Filed 2–24–11; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–63935; File No. SR– 

NYSEAMEX–2011–07] 

Self-Regulatory Organizations; NYSE 

Amex LLC; Notice of Filing and 

Immediate Effectiveness of Proposed 

Rule Change To Amend the Exchange 

Price List 

February 18, 2011. 

Pursuant to Section 19(b)(1) 1 of the 

Securities Exchange Act of 1934 (the 

‘‘Act’’) 2 and Rule 19b–4 thereunder,3

notice is hereby given that, on February 

14, 2011, NYSE Amex LLC (‘‘NYSE 

Amex’’ or the ‘‘Exchange’’) filed with the 

Securities and Exchange Commission 

(the ‘‘Commission’’) the proposed rule 

change as described in Items I, II, and 

III 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. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange proposes to amend its 

2011 Price List for equities (‘‘Price List’’) 

by revising the description of the Risk 

Management Gateway (‘‘RMG’’) fee to 

clarify that the charge is determined on 

the basis of the capacity of the end 

user’s connection in inbound messages 

per second, rather than the actual 

number of inbound messages. The text 

of the proposed rule change is available 

at the Exchange, the Commission’s 

Public Reference Room, http:// 

www.sec.gov, and http://www.nyse.com. 

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, the 

self-regulatory organization included 

statements concerning the purpose of, 

and basis for, the proposed rule change 

and discussed any comments it received 

on the proposed rule change. The text 

of those statements may be examined at 

the places specified in Item IV below. 

The Exchange has prepared summaries, 

set forth in sections A, B, and C below, 

of the most significant parts of such 

statements. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and the 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

The Exchange proposes to amend its 

Price List for equities by revising the 

description of the RMG fee to clarify 

that the charge is determined on the 

basis of the capacity of the end user’s 

connection in inbound messages per 

second, rather than the actual number of 

inbound messages. 

On February 12, 2009, the Exchange 

filed a proposed rule change with the 

Commission that established the fee for 

its RMG service to facilitate the ability 

of Sponsoring Member Organizations to 

monitor and oversee the sponsored 

access activity of their Sponsored 

Participants.4 In the Original RMG Fee 

Filing, the Exchange established a fee of 

$3,000 per month for the first 

‘‘Connection’’ plus $1,000 per month for 

each additional ‘‘Connection.’’ A 

‘‘Connection’’ was defined as up to 1,000 

messages per second inbound, 

regardless of the connection’s actual 

capacity.5 Consequently, if a particular 

end user’s connection has the capacity 

to support 3,000 messages per second 

inbound, that end user’s connection will 

be deemed to be three (3) Connections 

and the charge will be $5,000 per 

month. 

Although it is clear from the Original 

RMG Fee Filing that the key variable in 

determining an end user’s RMG fee is 

the capacity in messages per second 

inbound that the end user’s connection 

will support (i.e., the number of 

Connections), the descriptive language 

that was added to the Price List at that 

time was inartfully worded and could 

be misinterpreted as basing the monthly 

RMG fee on the actual number of 

inbound messages. Consequently, the 

Exchange is proposing to modify the 

descriptive language for the RMG fee in 

the Price List to clarify that the fee is 

based on message capacity. There will 

be no change to the pricing itself or the 

basis on which it is currently calculated. 

The Exchange notes that NYSE Arca, 

Inc. (‘‘NYSE Arca’’), in a rule filing with 

the Commission on September 4, 2009,6

established a fee for its RMG service that 

is exactly the same as the Exchange’s 

RMG fee, including the computation of 

the fee based on message capacity. In 

the NYSE Arca RMG Fee Filing, the 

descriptive language that was added to 

the NYSE Arca Fee Schedule describes 

much more clearly and unambiguously 

the basis on which the RMG fee is 

calculated, and the Exchange proposes 

to replace the current descriptive 

language in its Price List with the 

corresponding language from the NYSE 

Arca Fee Schedule. 

2. Statutory Basis 

The Exchange believes that the 

proposed rule change is consistent with 

the provisions of Section 6 of the 

Securities Exchange Act of 1934 (the 

‘‘Act’’),7 in general, and Section 6(b)(4) 

of the Act,8 in particular, in that it is 

designed to provide for the equitable 

allocation of reasonable dues, fees, and 

other charges among its members and 

other persons using its facilities. The 

Exchange believes that the proposal 

does not constitute an inequitable 

allocation of fees, since there will be no 

change to the current RMG fee which 

has been in effect since February 2009, 

or how it is calculated, only to the 

description of the fee for the purposes 


srobinson on DSKHWCL6B1PROD with NOTICES