9450 Federal Register / Vol. 74, No. 41 / Wednesday, March 4, 2009 / Notices 

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

2 15 U.S.C. 78a. 

3 17 CFR 240.19b–4. 

4 15 U.S.C. 78s(b)(3)(A)(iii). 

5 17 CFR 240.19b–4(f)(6). 

6Amendment No. 1 removed unnecessary 

language regarding the operative date of the 

proposed rule change. 

7See SR–NYSE–2009–14 (submitted on February 

5, 2009). 

8See Securities Exchange Act Release No. 58673 

(September 29, 2008), 73 FR 57707 (October 3, 

2008) (SR–NYSE–2008–60 and SR–Amex 2008–62) 

(approving the Merger). 

9 15 U.S.C. 78f. 

10See Securities Exchange Act Release No. 58705 

(October 1, 2008), 73 FR 58995 (October 8, 2008) 

(SR–Amex 2008–63) (approving the Equities 

Relocation). 

11See Securities Exchange Act Release No. 58705 

(October 1, 2008), 73 FR 58995 (October 8, 2008) 

(SR–Amex 2008–63); Securities Exchange Act 

Release No. 58833 (October 22, 2008), 73 FR 64642 

(October 30, 2008) (SR–NYSE–2008–106); 

Securities Exchange Act Release No. 58839 (October 

23, 2008), 73 FR 64645 (October 30, 2008) (SR– 

NYSEALTR–2008–03); Securities Exchange Act 

Release No. 59022 (November 26, 2008), 73 FR 

73683 (December 3, 2008) (SR–NYSEALTR–2008– 

10); and Securities Exchange Act Release No. 59027 

(November 28, 2008), 73 FR 73681 (December 3, 

2008) (SR–NYSEALTR–2008–11). 

12See Securities Exchange Act Release No. 59096 

(December 12, 2008), 73 FR 77085 (December 18, 

2008) (SR–FINRA–2008–044). 

Dated: February 26, 2009. 

Elizabeth M. Murphy, 

Secretary. 

[FR Doc. E9–4564 Filed 3–3–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59451; File No. SR– 

NYSEALTR–2009–10] 

Self-Regulatory Organizations; Notice 

of Filing and Immediate Effectiveness 

of Proposed Rule Change and 

Amendment No. 1 Thereto by NYSE 

Alternext US LLC Amending Rule 472– 

NYSE Alternext Equities 

(Communications With the Public) 

February 25, 2009. 

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 

5, 2009, NYSE Alternext US LLC (the 

‘‘Exchange’’ or ‘‘NYSE Alternext’’) 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 Exchange filed the 

proposal as a ‘‘non-controversial’’ 

proposed rule change pursuant to 

Section 19(b)(3)(A)(iii) of the Act 4 and 

Rule 19b–4(f)(6) thereunder.5 NYSE 

Alternext filed Amendment No. 1 to the 

proposed rule change on February 12, 

2009.6 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 

Rule 472–NYSE Alternext Equities to 

conform with proposed amendments to 

corresponding NYSE Rule 472 

submitted in a companion filing by the 

New York Stock Exchange LLC 

(‘‘NYSE’’).7

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 purpose of the proposed rule 

change is to amend Rule 472–NYSE 

Alternext Equities to conform with 

proposed amendments to corresponding 

NYSE Rule 472, submitted in a 

companion filing by the NYSE, which 

itself conforms with amendments to 

corresponding FINRA Incorporated 

NYSE Rule 472 recently filed by FINRA 

and approved by the Commission. 

Background 

As described more fully in a related 

rule filing,8 NYSE Euronext acquired 

The Amex Membership Corporation 

(‘‘AMC’’) pursuant to an Agreement and 

Plan of Merger, dated January 17, 2008 

(the ‘‘Merger’’). In connection with the 

Merger, the Exchange’s predecessor, the 

American Stock Exchange LLC 

(‘‘Amex’’), a subsidiary of AMC, became 

a subsidiary of NYSE Euronext called 

NYSE Alternext US LLC, and continues 

to operate as a national securities 

exchange registered under Section 6 of 

the Act.9 The effective date of the 

Merger was October 1, 2008. 

In connection with the Merger, on 

December 1, 2008, the Exchange 

relocated all equities trading conducted 

on the Exchange legacy trading systems 

and facilities located at 86 Trinity Place, 

New York, New York, to trading systems 

and facilities located at 11 Wall Street, 

New York, New York (the ‘‘Equities 

Relocation’’). The Exchange’s equity 

trading systems and facilities at 11 Wall 

Street (the ‘‘NYSE Alternext Trading 

Systems’’) are operated by the NYSE on 

behalf of the Exchange.10

As part of the Equities Relocation, 

NYSE Alternext adopted NYSE Rules 1– 

1004, subject to such changes as 

necessary to apply the Rules to the 

Exchange, as the NYSE Alternext 

Equities Rules to govern trading on the 

NYSE Alternext Trading Systems.11 The 

NYSE Alternext Equities Rules, which 

became operative on December 1, 2008, 

are substantially identical to the current 

NYSE Rules 1–1004 and the Exchange 

continues to update the NYSE Alternext 

Equities Rules as necessary to conform 

with rule changes to corresponding 

NYSE Rules filed by the NYSE. 

Proposed Conforming Amendments to 

NYSE Alternext Equities Rules 

As noted above, the Exchange 

proposes to amend Rule 472—NYSE 

Alternext Equities to conform with 

proposed amendments to corresponding 

NYSE Rule 472 submitted in a 

companion filing by the NYSE. As 

discussed in more detail below, the 

NYSE is filing the proposed rule change 

to harmonize NYSE Rule 472 with 

changes to corresponding Incorporated 

NYSE Rule 472 recently filed by the 

Financial Industry Regulatory 

Authority, Inc. (‘‘FINRA’’) and approved 

by the Commission.12 The Exchange is 

proposing to adopt the NYSE’s proposed 

rule change in the form that it was filed 

with the Commission, subject to such 

technical changes as are necessary to 

apply the changes to the Exchange. The 

Exchange further proposes that the 

operative date of the rule change be the 

same as the operative date of the NYSE’s 

proposed rule change, on which this 

filing is based. 

FINRA amended NASD Rules 2210 

(Communications with the Public) and 

2211 (Institutional Sales Material and 

Correspondence) and FINRA 

Incorporated NYSE Rule 472 

(Communications with the Public) to 

remove, in certain circumstances, the 

Federal Register / Vol. 74, No. 41 / Wednesday, March 4, 2009 / Notices 9451 

13See Securities Exchange Act Release No. 59096 

(December 12, 2008), 73 FR 77085 (December 18, 

2008). 

14FINRA has proposed to amend the current 

requirements governing the supervision and review 

of correspondence, including FINRA Incorporated 

NYSE Rule 342.17 and NASD Rule 3010. See 

Regulatory Notice 08–24 (May 2008). 

15 15 U.S.C. 78f(b). 16 15 U.S.C. 78f(b)(5). 17 15 U.S.C. 78k–1(a)(1). 18 15 U.S.C. 78s(b)(3)(A). 

19 17 CFR 240.19b–4(f)(6). 

20 17 CFR 240.19b–4(f)(6)(iii). 

21For purposes only of waiving the 30-day 

operative delay, the Commission has considered the 

proposed rule’s impact on efficiency, competition, 

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

pre-approval requirements for the use of 

‘‘market letters.’’ 13

Specifically, FINRA created a new 

definition of the term ‘‘market letter’’ in 

NASD Rule 2211 and modified the 

definition in FINRA Incorporated NYSE 

Rule 472 to mean any communication 

specifically excepted from the definition 

of ‘‘research report’’ under NASD Rule 

2711(a)(9)(A) and FINRA Incorporated 

NYSE Rule 472.10(2)(a). In addition, 

FINRA amended the definition of ‘‘sales 

literature’’ in NASD Rule 2210 to 

exclude market letters. FINRA also 

amended FINRA Incorporated NYSE 

Rule 472 to eliminate the requirement 

that a qualified person approve market 

letters in advance of distribution. 

Finally, FINRA amended the definition 

of ‘‘correspondence’’ in NASD Rule 

2211 to include market letters (as well 

as any written letter or electronic mail 

message) distributed by a member to 

one or more of its existing retail 

customers and fewer than 25 

prospective retail customers within any 

30 calendar-day period. 

NYSE correspondingly proposes to 

amend NYSE Rule 472 to conform to 

FINRA’s approved amendments to the 

incorporated version of the Rule. Under 

the proposed amended NYSE Rule 472, 

members and member organizations 

would be permitted to distribute 

‘‘market letters,’’ as redefined, to 

customers and the public without 

obtaining prior approval by a 

supervisory analyst or qualified person. 

As redefined under the proposed 

amendments, ‘‘market letters’’ would 

comprise any communication that is 

excepted from the definition of 

‘‘research report’’ contained in NYSE 

Rule 472.10(2)(a). As communications 

with the public, market letters remain 

subject to the supervision and review 

requirements of NYSE Rule 342.17, 

which require each member and 

member organization to establish 

written policies and procedures that are 

appropriate for their business, size, 

structure and customers for the review 

of such communications.14

The Exchange proposes to 

correspondingly amend Rule 472— 

NYSE Alternext Equities in the form 

proposed by the NYSE, subject to such 

changes as are necessary to apply the 

proposed changes to the Exchange. The 

Exchange also proposes to add ‘‘-NYSE 

Alternext Equities’’ to the title of the 

Rule. 

2. Statutory Basis 

The Exchange believes that the 

proposed rule change is consistent with 

Section 6(b) of the Act,15 in general, and 

further the objectives of Section 6(b)(5) 

of the Act,16 in particular, in that it is 

designed to prevent fraudulent and 

manipulative acts and practices, 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. The 

proposed rule change also supports the 

principles of Section 11A(a)(1) 17 of the 

Act in that it seeks to ensure the 

economically efficient execution of 

securities transactions and fair 

competition among brokers and dealers 

and among exchange markets. 

The Exchange believes that the 

proposed rule change supports the 

objectives of the Act by providing 

greater harmonization among NYSE 

Rules, NYSE Alternext Equities Rules 

and FINRA Rules of similar purpose, 

resulting in less burdensome and more 

efficient regulatory compliance for their 

common members and member 

organizations. To the extent the 

Exchange has proposed changes that 

differ from the proposed NYSE version 

of Rule 472, such changes are technical 

in nature and do not change the 

substance of the proposed NYSE 

Alternext Equities Rule. 

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 Exchange believes that the 

proposal qualifies for immediate 

effectiveness upon filing as a noncontroversial rule change in accordance 

with Section 19(b)(3)(A) of the Act 18

and Rule 19b–4(f)(6) 19 thereunder. The 

Exchange asserts that the proposed rule 

change (i) will not significantly affect 

the protection of investors or the public 

interest, (ii) will not impose any 

significant burden on competition, and 

(iii) by its terms, will not become 

operative for 30 days after the date of 

this filing, or such shorter time as the 

Commission may designate, if 

consistent with the protection of 

investors and the public interest. In 

addition, the Exchange provided the 

Commission with written notice of its 

intent to file the proposed rule change, 

along with a brief description and text 

of the proposed rule change, at least five 

business days prior to the date of filing. 

A proposed rule change filed under 

Rule 19b–4(f)(6) normally does not 

become operative prior to 30 days after 

the date of the filing. However, pursuant 

to Rule19b–4(f)(6)(iii),20 the 

Commission may designate a shorter 

time if such action is consistent with the 

protection of investors and the public 

interest. The Exchange has asked the 

Commission to waive the 30-day 

operative delay so that the proposal may 

become operative immediately upon 

filing. The Exchange believes the waiver 

of this period will allow it to conform 

its rule to NYSE and FINRA rules 

without delay and ensure that there is 

no regulatory gap among those rules. 

The Commission has determined that 

waiving the 30-day operative delay of 

the Exchange’s proposal is consistent 

with the protection of investors and the 

public interest because such waiver will 

allow the Exchange to promptly 

conform its rule to NYSE and FINRA 

rules and ensure elimination of any 

potential regulatory gap.21 Therefore, 

the Commission designates the proposal 

as operative upon filing. At any time 

within 60 days of the filing of the 

proposed rule change, the Commission 

may summarily abrogate 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. 

9452 Federal Register / Vol. 74, No. 41 / Wednesday, March 4, 2009 / Notices 

22 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

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

4 17 CFR 240.19b–4(f)(6)(iii). 

5As defined in Exchange Rule 11.9(c)(5). 

6The Exchange currently charges $0.0025 per 

share removed from the BATS Book, except for 

securities priced below $1.00, for which no access 

fee is charged. 

7Because the Exchange cannot post a bid or offer 

with a partial share amount (e.g., 99.9 shares), any 

Maximum Remove Percentage that would result in 

such an amount will be rounded down to the next 

whole share amount (e.g., 99 shares). 

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–NYSEALTR–2009–10 on 

the subject line. 

Paper Comments 

• Send paper comments in triplicate 

to Elizabeth M. Murphy, Securities and 

Exchange Commission, 100 F Street, 

NE., Washington, DC 20549–1090. 

All submissions should refer to File 

Number SR–NYSEALTR–2009–10. 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 20549–1090. Copies of the filing will 

also be available for inspection and 

copying at the NYSE’s principal office 

and on its Internet Web site at http:// 

www.nyse.com. 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– 

NYSEALTR–2009–10 and should be 

submitted on or before March 25, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.22

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–4558 Filed 3–3–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59457; File No. SR–BATS– 

2009–006] 

Self-Regulatory Organizations; BATS 

Exchange, Inc.; Notice of Filing and 

Immediate Effectiveness of Proposed 

Rule Change To Amend BATS Rule 

11.9, Entitled ‘‘Orders and Modifiers’’ 

February 26, 2009. 

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

Securities Exchange Act of 1934 (the 

‘‘Act’’),1 and Rule 19b–4 thereunder,2

notice is hereby given that on February 

20, 2009, BATS Exchange, Inc. (‘‘BATS’’ 

or the ‘‘Exchange’’) filed with the 

Securities and Exchange Commission 

(‘‘Commission’’) the proposed rule 

change as described in Items I and II 

below, which Items have been prepared 

by the Exchange. The Exchange has 

designated this proposal as a ‘‘noncontroversial’’ proposed rule change 

pursuant to Section 19(b)(3)(A) of the 

Act 3 and Rule 19b–4(f)(6)(iii) 

thereunder,4 which renders it effective 

upon filing with the Commission. 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 is proposing to amend 

BATS Rule 11.9, entitled ‘‘Orders and 

Modifiers,’’ to provide for a new order 

type, a Partial Post Only at Limit Order. 

In addition, the Exchange is proposing 

to eliminate an Exchange order 

processing behavior described in Rule 

11.9(c)(4) and (c)(5) as the ‘‘price sliding 

process’’ due to the fact that this 

functionality is rarely selected by Users 

of the Exchange. 

The text of the proposed rule change 

is available at the Exchange’s website at 

http://www.batstrading.com, at the 

principal office of the Exchange, and at 

the Commission’s Public Reference 

Room. 

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 

Exchange 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 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 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

The purpose of the proposed rule 

change is to provide a new order type 

to Users of the Exchange, a Partial Post 

Only at Limit Order. The Exchange 

currently allows Users to enter BATS 

Post Only Orders,5 which do not remove 

liquidity from the Exchange. Frequently, 

Exchange Users utilize BATS Post Only 

Orders because such Users do not want 

to be charged the access fee for 

removing liquidity from the BATS 

Book.6 However, if such Users could 

receive a price better than their limit 

price (i.e., price improvement), then the 

Exchange believes that such Users may 

wish to remove that liquidity and pay 

the access fee. In addition, regardless of 

whether any part of the order is 

executed with price improvement, the 

Exchange believes that some Users of 

BATS Post Only Orders would be 

willing to remove from the BATS Book 

a certain amount of liquidity at the 

order’s limit price if the residual of the 

order could then post to the BATS Book 

at that limit price. Accordingly, as 

proposed, the new order type will 

enable Users to: (i) enter an order to the 

Exchange that will remove liquidity 

from the Exchange when the order will 

receive price improvement; and (ii) 

designate a ‘‘Maximum Remove 

Percentage,’’ instructing the Exchange to 

execute up to a designated percentage of 

the order size remaining after any 

applicable price improvement execution 

by removing liquidity at the order’s 

limit price if the residual, after 

executions at the limit price, can be 

posted on the BATS Book.7

If no Maximum Remove Percentage is 

entered, then a Partial Post Only at 

Limit Order will only remove liquidity 

to the extent the order will obtain price 

improvement from its limit price. If no 

price improvement on an order is 

obtained, but a Maximum Remove