Federal Register / Vol. 74, No. 41 / Wednesday, March 4, 2009 / Notices 9459 

11 15 U.S.C. 78f. 

12 15 U.S.C. 78f(b)(4). 

13 15 U.S.C. 78s(b)(3)(A)(ii). 

14 17 CFR 240.19b–4(f)(2). 

15 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. 

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

5 17 CFR 240.19b–4(f)(6). 

NASDAQ and NYSE, NASDAQ is 

decreasing the liquidity provider rebate 

it pays to members with an average 

daily volume through the NASDAQ 

Market Center in all securities during 

the month of more than 35 million 

shares of liquidity provided, from 

$0.0031 per share to $0.0028 per share. 

The change reverses an ‘‘inverted’’ 

pricing structure that had previously 

been in effect for this group of members 

with respect to these securities, under 

which the rebate for providing liquidity 

exceeded the charge of $0.0029 to access 

liquidity. 

2. Statutory Basis 

NASDAQ believes that the proposed 

rule change is consistent with the 

provisions of Section 6 of the Act,11 in 

general, and with Section 6(b)(4) of the 

Act,12 in particular, in that it provides 

for the equitable allocation of reasonable 

dues, fees and other charges among 

members and issuers and other persons 

using any facility or system which 

NASDAQ operates or controls. The 

impact of the changes upon the net fees 

paid by a particular market participant 

will depend upon a number of variables, 

including its monthly volume, the order 

types it uses, and the prices of its quotes 

and orders (i.e., its propensity to add or 

remove liquidity). NASDAQ notes that 

it operates in a highly competitive 

market in which market participants can 

readily direct order flow to competing 

venues if they deem fee levels at a 

particular venue to be excessive. In 

general, the proposed changes are 

designed to ensure that the fees charged 

by NASDAQ to route to NYSE and BX 

reflect the fees charged to, and rebates 

received by, NASDAQ in connection 

with such routing. The proposal also 

reduces the rebate paid to certain 

members with respect to providing 

liquidity in stocks listed on venues 

other than NYSE and NASDAQ. 

NASDAQ believes, however, that its 

fees for trading such stocks remain 

competitive with those charged by other 

venues and therefore continue to be 

reasonable and equitably allocated to 

those members that opt to direct orders 

to NASDAQ rather than competing 

venues. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

NASDAQ does not believe that the 

proposed rule change will result in any 

burden on competition that is not 

necessary or appropriate in furtherance 

of the purposes of the Act, as amended. 

C. Self-Regulatory Organization’s 

Statement on Comments on the 

Proposed Rule Change Received From 

Members, Participants, or Others 

Written comments were neither 

solicited nor received. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

The foregoing rule change has become 

effective pursuant to Section 

19(b)(3)(A)(ii) of the Act 13 and 

subparagraph (f)(2) of Rule 19b–4 

thereunder.14 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. 

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–NASDAQ–2009–013 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–NASDAQ–2009–013. 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 will also be available 

for inspection and copying at the 

principal office of the self-regulatory 

organization. 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–2009–013 and should be 

submitted on or before March 25, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.15

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–4563 Filed 3–3–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59450; File No. SR–NYSE– 

2009–14] 

Self-Regulatory Organizations; Notice 

of Filing and Immediate Effectiveness 

of Proposed Rule Change and 

Amendment No. 1 Thereto by New 

York Stock Exchange LLC Amending 

NYSE Rule 472 (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, 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 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 

filed Amendment No. 1 to the proposed 

9460 Federal Register / Vol. 74, No. 41 / Wednesday, March 4, 2009 / Notices 

6Amendment No. 1 removed unnecessary 

language regarding the operative date of the 

proposed rule change. 

7See Securities Exchange Act Release No. 59096 

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

2008) (order approving SR–FINRA–2008–044). 

NYSE Alternext US LLC has submitted a 

companion rule filing to conform its corresponding 

Rule 472–NYSE Alternext Equities to the changes 

proposed in this filing. See SR–NYSEALTR 2009– 

10, submitted February 5, 2009). 

8See Securities Exchange Act Release No. 56148 

(July 26, 2007), 72 FR 42146 (August 1, 2007) (order 

approving the Agreement) and Securities Exchange 

Act Release No. 56147 (July 26, 2007), 72 FR 42166 

(August 1, 2007) (SR–NASD–2007–054) (order 

approving the incorporation of certain NYSE Rules 

as ‘‘Common Rules’’). Paragraph 2(b) of the 17d–2 

Agreement sets forth procedures regarding 

proposed changes by either NYSE or FINRA to the 

substance of any of the Common Rules. 

9FINRA’s rulebook currently has three sets of 

rules: (1) NASD Rules, (2) FINRA Incorporated 

NYSE Rules, and (3) consolidated FINRA Rules. 

The FINRA Incorporated NYSE Rules apply only to 

those members of FINRA that are also members of 

the NYSE (‘‘Dual Members’’), while the 

consolidated FINRA Rules apply to all FINRA 

members. For more information about the FINRA 

rulebook consolidation process, see FINRA 

Information Notice, March 12, 2008. 

10See Securities Exchange Act Release No. 59096 

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

2008). 

11FINRA 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). 

12 15 U.S.C. 78f(b). 

13 15 U.S.C. 78f(b)(5). 

14 15 U.S.C. 78k–1(a)(1). 

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 

NYSE Rule 472 to conform with 

amendments to corresponding FINRA 

Incorporated NYSE Rule 472 (defined 

below) recently filed by the Financial 

Industry Regulatory Authority, Inc. 

(‘‘FINRA’’) and approved by the 

Commission.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 NYSE Rule 472 to 

conform with amendments to 

corresponding FINRA Incorporated 

NYSE Rule 472 recently filed by FINRA 

and approved by the Commission. 

Background 

On July 30, 2007, FINRA’s 

predecessor, the National Association of 

Securities Dealers, Inc. (‘‘NASD’’), and 

NYSE Regulation, Inc. (‘‘NYSER’’) 

consolidated their member firm 

regulation operations into a combined 

organization, FINRA. Pursuant to Rule 

17d–2 under the Act, NYSE, NYSER and 

FINRA entered into an agreement (the 

‘‘Agreement’’) to reduce regulatory 

duplication for their members by 

allocating to FINRA certain regulatory 

responsibilities for certain NYSE rules 

and rule interpretations (‘‘FINRA 

Incorporated NYSE Rules’’).8 As part of 

its effort to reduce regulatory 

duplication and relieve firms that are 

members of both FINRA and the 

Exchange of conflicting or unnecessary 

regulatory burdens, FINRA is now 

engaged in the process of reviewing and 

amending the Common Rules in order to 

create a consolidated FINRA rulebook.9

Proposed Conforming Amendments to 

NYSE Rules 

As discussed in more detail below, 

FINRA amended NASD Rules 2210 and 

2211 and FINRA Incorporated NYSE 

Rule 472. The NYSE hereby proposes to 

amend NYSE Rule 472 to conform to 

FINRA Incorporated NYSE Rule 472, as 

amended. 

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 

pre-approval requirements for the use of 

‘‘market letters.’’ 10

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. 

The Exchange 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 defined 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.11

2. Statutory Basis 

The Exchange believes that the 

proposed rule change is consistent with 

Section 6(b) of the Act,12 in general, and 

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

of the Act,13 in particular, in that they 

are 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) 14 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. 

In particular, the Exchange believes 

that the proposed rule change supports 

the objectives of the Act by providing 

greater harmonization between NYSE 

Rules and FINRA Rules (including 

Common Rules) of similar purpose, 

resulting in less burdensome and more 

Federal Register / Vol. 74, No. 41 / Wednesday, March 4, 2009 / Notices 9461 

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

16 17 CFR 240.19b–4(f)(6). 

17 17 CFR 240.19b–4(f)(6)(iii). 

18For 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). 

19 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). 

efficient regulatory compliance for Dual 

Members. 

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 15

and Rule 19b–4(f)(6) 16 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),17 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 the FINRA NYSE 

Incorporated Rule 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 

rules to the FINRA NYSE Incorporated 

Rule and ensure elimination of any 

potential regulatory gap.18 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. 

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–2009–14 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–NYSE–2009–14. 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–NYSE– 

2009–14 and should be submitted on or 

before March 25, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.19

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–4557 Filed 3–3–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59454; File No. SR– 

NYSEALTR–2009–17] 

Self-Regulatory Organizations; Notice 

of Filing and Immediate Effectiveness 

of Proposed Rule Change by NYSE 

Alternext U.S. LLC To Delete Certain 

Rules Governing the Trading of Listed 

Options 

February 25, 2009. 

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

Securities Exchange Act of 1934 

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

notice is hereby given that on February 

23, 2009, NYSE Alternext US LLC (the 

‘‘Exchange’’ or ‘‘NYSE Alternext’’) 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 filed the proposed rule change 

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

Act 3 and Rule 19b–4(f)(6) 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 proposes to delete old 

rules governing the trading of listed