Federal Register / Vol. 74, No. 146 / Friday, July 31, 2009 / Notices 38249 

13 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3See Securities Exchange Act Release No. 60122 

(June 17, 2009), 74 FR 30184. 

4New York Stock Exchange LLC imposes an 

access fee of $500 per month for its order imbalance 

datafeed. Nasdaq OMX includes order imbalance 

information in its Nasdaq TotalView datafeed. 

Nasdaq OMX imposes end-user charges on both 

professional and nonprofessional subscribers that 

receive TotalView, as well as an array of monthly 

distribution charges that are significantly higher 

than the charge that NYSE Amex is proposing in 

this proposed rule change. 

5See Securities Exchange Act Release No. 59039 

(December 2, 2008), 73 FR 74770 (December 9, 

2008) (SR–NYSEArca-2006–21) (‘‘NYSE Arca 

Order’’). 

6 In approving this proposed rule change, the 

Commission notes that it has considered the 

Continued 

those that may be withheld from the 

public in accordance with the 

provisions of 5 U.S.C. 552, will be 

available for inspection and copying in 

the Commission’s Public Reference 

Room, 100 F Street, NE., Washington, 

DC 20549, on official business days 

between the hours of 10 a.m. and 3 p.m. 

Copies of such filing also will be 

available for inspection and copying at 

the principal office of the Nasdaq. 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–NASDAQ–2009–071 and 

should be submitted on or before 

August 21, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.13

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–18274 Filed 7–30–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–60385; File No. SR– 

NYSEAmex–2009–26] 

Self-Regulatory Organizations; NYSE 

Amex LLC; Order Approving Proposed 

Rule Change To Charge a $500 

Monthly Fee to Recipients of the NYSE 

Amex Order Imbalance Information 

Datafeed 

July 24, 2009. 

I. Introduction 

On June 5, 2009, the NYSE Amex LLC 

(‘‘NYSE Amex’’ or ‘‘Exchange’’) filed 

with the Securities and Exchange 

Commission (‘‘Commission’’), pursuant 

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

Exchange Act of 1934 (the ‘‘Act’’),1 and 

Rule 19b–4 thereunder,2 a proposed rule 

change to charge a $500 monthly fee to 

recipients of the NYSE Amex Order 

Imbalance Information datafeed. The 

proposed rule change was published for 

comment in the Federal Register on 

June 24, 2009.3 The Commission 

received no comments on the proposal. 

This order approves the proposed rule 

change. 

II. Description of the Proposal 

The Exchange proposes to charge a 

$500 monthly fee to recipients of the 

NYSE Amex Order Imbalance 

Information datafeed. NYSE Amex 

Order Imbalance Information provides 

real-time order imbalances that 

accumulate prior to the opening of 

trading on the Exchange and prior to the 

close of trading on the Exchange. The 

Exchange provides this information for 

issues that are likely to be of particular 

trading interest at the opening or 

closing. 

Currently, the Exchange provides this 

datafeed at no cost. The instant filing is 

submitted to establish a $500 monthly 

fee for receipt of the NYSE Amex Order 

Imbalance Information datafeed. This 

proposed $500 monthly fee to recipients 

of the NYSE Amex Order Imbalance 

Information datafeed applies whether 

the recipient receives the datafeed 

directly from the Exchange or indirectly 

from an intermediary. The fee entitles 

the datafeed recipient to make displays 

of that information available to an 

unlimited number of subscribers for no 

extra charge. The Exchange is not 

proposing to impose an end-user or 

display service fee on those subscribers. 

The Exchange states that the $500 

monthly fee would allow vendors to 

redistribute NYSE Amex Order 

Imbalance Information: (1) Without 

having to differentiate between 

professional subscribers and 

nonprofessional subscribers; (2) without 

having to account for the extent of 

access to data; (3) without having to 

procure contracts with its subscribers 

for the benefit of the Exchange; and (4) 

without having to report the number of 

its subscribers. 

The Exchange believes that the fee 

enables the investment community that 

has an interest in the receipt of order 

imbalance information to contribute to 

the Exchange’s operating costs in a 

manner that is appropriate for this 

market data product. 

In setting the level of the NYSE Amex 

Order Imbalance Information Product 

fee, the Exchange states that it took into 

consideration several factors, including: 

(1) The fees that other Exchanges are 

charging for similar services 4; 

(2) consultation with some of the 

entities that the Exchange anticipates 

will be the most likely to take advantage 

of the proposed service; 

(3) the contribution of market data 

revenues that the Exchange believes is 

appropriate for entities that provide 

market data to large numbers of 

investors, which are the entities most 

likely to take advantage of the proposed 

service; and 

(4) the contribution that revenues 

accruing from the proposed fee will 

make to meet the overall costs of the 

Exchange’s operations. 

The Exchange believes that the 

proposed NYSE Amex Order Imbalance 

Information fee would reflect an 

equitable allocation of its overall costs 

to users of its facilities. 

The Exchange believes that the level 

of the fee is consistent with the 

approach set forth in the approval order 

issued by the Commission related to 

ArcaBook fees.5 The Exchange submits 

that the NYSE Amex Order Imbalance 

Information datafeed constitutes ‘‘noncore data’’; i.e., the Exchange does not 

require a central processor to 

consolidate and distribute the product 

to the public pursuant to joint-SRO 

plans. Rather, the Exchange distributes 

this product voluntarily. In addition, the 

Exchange believes that both types of the 

competitive forces that the Commission 

described in the NYSE Arca Order are 

present: (i) The Exchange has a 

compelling need to attract order flow; 

and (ii) the product competes with a 

number of alternative products. 

The Exchange states that it must 

compete vigorously for order flow to 

maintain its share of trading volume. 

This requires the Exchange to act 

reasonably in setting market data fees 

for non-core products such as the NYSE 

Amex Order Imbalance Information 

datafeed. The Exchange hopes that 

NYSE Amex Order Imbalance datafeed 

will enable vendors to distribute NYSE 

Amex order imbalance information 

widely among investors, and thereby 

provide a means for promoting the 

Exchange’s visibility in the marketplace. 

III. Discussion and Commission 

Findings 

The Commission has reviewed 

carefully the proposed rule change 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 exchange.6 In particular, the 


PWALKER on DSK8KYBLC1PROD with NOTICES
38250 Federal Register / Vol. 74, No. 146 / Friday, July 31, 2009 / Notices 

proposed rule’s impact on efficiency, competition, 

and capital formation. 15 U.S.C. 78c(f). 

7 15 U.S.C. 78f(b)(4). 

8 15 U.S.C. 78f(b)(5). 

9 15 U.S.C. 78f(b)(8). 

10 17 CFR 242.603(a). 

11NYSE Amex is an exclusive processor of NYSE 

Amex depth-of-book data under Section 3(a)(22)(B) 

of the Act, 15 U.S.C. 78c(a)(22)(B), which defines 

an exclusive processor as, among other things, an 

exchange that distributes information with respect 

to quotations or transactions on an exclusive basis 

on its own behalf. 

12Securities Exchange Act Release No. 59039 

(December 2, 2008), 73 FR 74770 (December 9, 

2008) (SR–NYSEArca–2006–21). In the NYSE Arca 

Order, the Commission describes in great detail the 

competitive factors that apply to non-core market 

data products. The Commission hereby incorporates 

by reference the data and analysis from the NYSE 

Arca Order into this order. 

13 Id. at 74771. 

14 Id. at 74782. 

15 Id. at 74781. 

16See Securities Exchange Act Release No. 59543 

(March 9, 2009), 74 FR 11159 (March 16, 2009) (SR– 

NYSE–2008–132). 

17 15 U.S.C. 78s(b)(2). 

18 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3See Securities Exchange Act Release No. 60022 

(June 1, 2009), 74 FR 27361 (‘‘Notice’’). 

Commission finds that the proposal is 

consistent with Section 6(b)(4) of the 

Act,7 which requires that an exchange 

have rules that provide for the equitable 

allocation of reasonable dues, fees, and 

other charges among its members and 

other persons using its facilities and the 

requirements under Section 6(b)(5) 8

that the rules of an exchange be 

designed to promote just and equitable 

principles of trade, 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, and not be designed to 

permit unfair discrimination between 

customers, issuers, brokers, or dealers. 

The Commission also finds that the 

proposed rule change is consistent with 

the provisions of Section 6(b)(8) of the 

Act,9 which requires that the rules of an 

exchange not impose any burden on 

competition not necessary or 

appropriate in furtherance of the 

purposes of the Act. Finally, the 

Commission finds that the proposed 

rule change is consistent with Rule 

603(a) of Regulation NMS,10 adopted 

under Section 11A(c)(1) of the Act, 

which requires an exclusive processor 

that distributes information with respect 

to quotations for or transactions in an 

NMS stock to do so on terms that are 

fair and reasonable and that are not 

unreasonably discriminatory.11

Under this proposal, the Exchange 

would charge a $500 monthly fee to 

recipients of the NYSE Amex Order 

Imbalance Information datafeed. The 

$500 monthly fee would allow vendors 

to redistribute NYSE Amex Order 

Imbalance Information: (1) Without 

having to differentiate between 

professional subscribers and 

nonprofessional subscribers; (2) without 

having to account for the extent of 

access to data; (3) without having to 

procure contracts with its subscribers 

for the benefit of the Exchange; and (4) 

without having to report the number of 

its subscribers. 

The Commission has reviewed the 

proposal using the approach set forth in 

the NYSE Arca Order for non-core 

market data fees.12 In the NYSE Arca 

Order, the Commission stated that 

‘‘when possible, reliance on competitive 

forces is the most appropriate and 

effective means to assess whether the 

terms for the distribution of non-core 

data are equitable, fair and reasonable, 

and not unreasonably 

discriminatory.’’ 13 It noted that the 

‘‘existence of significant competition 

provides a substantial basis for finding 

that the terms of an exchange’s fee 

proposal are equitable, fair, reasonable, 

and not unreasonably or unfairly 

discriminatory.’’ 14 If an exchange ‘‘was 

subject to significant competitive forces 

in setting the terms of a proposal,’’ the 

Commission will approve a proposal 

unless it determines that ‘‘there is a 

substantial countervailing basis to find 

that the terms nevertheless fail to meet 

an applicable requirement of the 

Exchange Act or the rules 

thereunder.’’ 15

There are a variety of alternative 

sources of information that impose 

significant competitive pressures on the 

NYSE Amex in setting the terms for 

distributing its market data. The 

Commission believes that the 

availability of those alternatives, as well 

as the NYSE Amex’s compelling need to 

attract order flow, imposed significant 

competitive pressure on the NYSE 

Amex to act equitably, fairly, and 

reasonably in setting the terms of its 

proposal. In addition, the Commission 

recently determined that NYSE was 

subject to significant competitive forces 

in setting fees for a substantially similar 

non-core market data product—NYSE 

Order Imbalance Information 

datafeed.16

Because the NYSE Amex was subject 

to significant competitive forces in 

setting the terms of the proposal, the 

Commission will approve the proposal 

in the absence of a substantial 

countervailing basis to find that its 

terms nevertheless fail to meet an 

applicable requirement of the Act or the 

rules thereunder. An analysis of the 

proposal does not provide such a basis. 

IV. Conclusion 

It is therefore ordered, pursuant to 

Section 19(b)(2) of the Act,17 that the 

proposed rule change (SR–NYSEAmex– 

2009–26) is hereby approved. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.18

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–18275 Filed 7–30–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–60377; File No. SR–FINRA– 

2009–031] 

Self-Regulatory Organizations; 

Financial Industry Regulatory 

Authority, Inc.; Order Approving 

Proposed Rule Change as Amended, 

Relating to the Reporting of Over-theCounter Transactions in Equity 

Securities Executed Outside Normal 

Market Hours 

July 23, 2009. 

I. Introduction 

On May 8, 2009, Financial Industry 

Regulatory Authority, Inc. (‘‘FINRA’’) 

(f/k/a National Association of Securities 

Dealers, Inc. (‘‘NASD’’)) filed with the 

Securities and Exchange Commission 

(‘‘Commission’’), pursuant to Section 

19(b)(1) of the Securities Exchange Act 

of 1934 (‘‘Act’’) 1 and Rule 19b–4 

thereunder,2 a proposed rule change to 

amend FINRA trade reporting rules 

relating to over-the-counter transactions 

in equity securities executed outside 

normal market hours to (1) require that 

any trades executed during the hours 

that a FINRA Facility (the Alternative 

Display Facility (‘‘ADF’’), a Trade 

Reporting Facility (‘‘TRF’’) or the OTC 

Reporting Facility (‘‘ORF’’)) is closed be 

reported within 15 minutes of the 

opening of the Facility, i.e., 8:15 a.m. 

Eastern Time; and (2) conform the trade 

reporting requirements applicable to 

‘‘outside normal market hours’’ 

transacations across FINRA Facilities. 

On May 29, 2009, FINRA filed 

Amendment No. 1 to the proposed Rule 

Change. The proposed rule change was 

published for comment in the Federal 

Register on June 9, 2009.3 The 

Commission received no comment 

letters on the proposed rule change. 


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