Federal Register / Vol. 74, No. 41 / Wednesday, March 4, 2009 / Notices 9457 

4 15 U.S.C. 78f. 

5 15 U.S.C. 78f(b)(4). 

6 15 U.S.C. 78s(b)(3)(A)(ii). 

7 17 CFR 240.19b–4(f)(2). 

8 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)(ii). 

4 17 CFR 240.19b–4(f)(2). 

and C below, of the most significant 

aspects of such statements. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

BX is proposing to reduce its fee to 

access liquidity posted on the BX book 

from $0.0022 per share executed to 

$0.0014 per share executed. Since its 

launch on January 16, 2009, BX has 

begun to acquire market share in U.S. 

equities trading. However, in a highly 

competitive environment in which 

routing decisions are affected by 

execution costs and the likelihood of 

accessing liquidity, BX believes that a 

fee reduction will increase the 

likelihood of BX receiving orders ahead 

of other venues posting the same prices, 

thereby encouraging further liquidity 

provision through BX and enhancing its 

market quality through greater depth of 

book. 

2. Statutory Basis 

BX believes that the proposed rule 

change is consistent with the provisions 

of Section 6 of the Act,4 in general, and 

with Section 6(b)(4) of the Act,5 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 BX operates or 

controls. The proposed fee change 

applies uniformly to all BX members. 

The impact of the changes upon the net 

fees paid by a particular market 

participant will depend upon the order 

types that it uses and the prices of its 

quotes and orders (i.e., its propensity to 

add or remove liquidity). BX 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. The 

proposed changes will lower the cost of 

accessing liquidity through BX. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

BX 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 6 and 

subparagraph (f)(2) of Rule 19b–4 

thereunder.7 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–BX–2009–012 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–BX–2009–012. 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–BX– 

2009–012 and should be submitted on 

or before March 25, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.8

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–4556 Filed 3–3–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59455; File No. SR– 

NASDAQ–2009–013] 

Self-Regulatory Organizations; The 

NASDAQ Stock Market LLC; Notice of 

Filing and Immediate Effectiveness of 

Proposed Rule Change To Modify Fees 

for Members Using the NASDAQ 

Market Center 

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 

19, 2009, The NASDAQ Stock Market 

LLC (‘‘NASDAQ’’) filed with the 

Securities and Exchange Commission 

(‘‘Commission’’) the proposed rule 

change as described in Items I, II, and 

III below, which Items have been 

prepared by NASDAQ. Pursuant to 

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

Rule 19b–4(f)(2) thereunder,4 NASDAQ 

has designated this proposal as 

establishing or changing a due, fee, or 

other charge, which renders the 

proposed rule change effective upon 

filing. 

The Commission is publishing this 

notice to solicit comments on the 

9458 Federal Register / Vol. 74, No. 41 / Wednesday, March 4, 2009 / Notices 

5The Commission notes that while provided in 

Exhibit 5 to the filing, the text of the proposed rule 

change is not attached to this notice but is available 

at the Commission’s Public Reference Room and at 

http://www.cchwallstreet.com/nasdaq. 

6See NYSE and NYSE Arca Announce Changes 

in Equities Transaction Pricing, Effective March 1 

(February 2, 2009) (available at http:// 

www.nyse.com/press/1233573357875.html. The key 

features of NYSE’s changes are the introduction of 

a liquidity provider rebate and an increase in order 

execution fees. 

7The current fees are $0.0008 if the order is 

designated as eligible only to remove liquidity from 

the NASDAQ book prior to routing, and $0.00075 

if the order is eligible to post back to the NASDAQ 

book if not executable at the NYSE. There is 

currently no charge or credit for orders that add 

liquidity at NYSE after routing. 

8See Securities Exchange Act Release No. 58721 

(October 2, 2008), 73 FR 59696 (October 9, 2008) 

(SR–NASDAQ–2008–079). 

9See SR–BX–2009–012 (February 19, 2009), 

Securities Exchange Act Release No. 59452 

(February 25, 2009). 

10See http://www.nyse.com/pdfs/ 

NYSEArca_Equities_Fees.pdf. 

proposed rule change from interested 

persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

Nasdaq proposes to modify pricing for 

NASDAQ members using the NASDAQ 

Market Center. NASDAQ will 

implement this rule change on March 2, 

2009. The text of the proposed rule 

change is attached as Exhibit 5 5 and is 

available at http:// 

www.cchwallstreet.com/nasdaq. 

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, 

NASDAQ 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. 

NASDAQ has prepared summaries, set 

forth in Sections A, B, and C below, of 

the most significant aspects of such 

statements. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

NASDAQ is proposing several 

changes to its fees for order execution 

and routing through the NASDAQ 

Market Center. The changes are 

primarily a response to pricing changes 

that were recently announced by the 

New York Stock Exchange (‘‘NYSE’’) 

that affect the fees paid by NASDAQ 

when it routes orders to NYSE.6 As a 

result, NASDAQ is changing its routing 

fees to ensure that its members are not 

disadvantaged when their orders are 

routed to NYSE. 

The changes in fees for routing to 

NYSE apply to securities other than 

exchange-traded funds. An order that 

attempts to execute in the NASDAQ 

Market Center for the full size of the 

order prior to routing and being 

executed at NYSE will receive a $0.0010 

rebate if the order adds liquidity at the 

NYSE after routing, to pass through the 

rebate that NYSE itself will pay. Other 

orders that attempt to execute in the 

NASDAQ Market Center for the full size 

of the order prior to routing will be 

assessed a fee of $0.0018 to reflect the 

NYSE’s new fee to access liquidity.7 For 

orders that do not attempt to execute in 

the NASDAQ Market Center for the full 

size of the order prior to routing, the fee 

will generally be $0.0020 per share 

executed. However, the fee will be 

$0.0019 per share executed for 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, in the case of orders of such 

members that do not attempt to execute 

in the NASDAQ Market Center and are 

not designated as intermarket sweep 

orders. The corresponding fees are 

currently $0.0010 and $0.0009, 

respectively. A pricing tier for members 

with an average daily volume of more 

than 50 million shares of liquidity 

routed to NYSE is being removed, since 

NASDAQ has concluded that members 

would not generally qualify for this tier 

unless they also qualify for the tier for 

members with an average daily volume 

of more than 35 million shares of 

liquidity provided. In addition, obsolete 

language regarding orders that add 

liquidity to the NYSE book but do not 

attempt to execute in NASDAQ prior to 

routing is being removed, since all 

orders that post to the NYSE book must 

check the NASDAQ book prior to 

routing.8

The fee for an order that executes in 

the NYSE closing process as a ‘‘marketat-the-close’’ or ‘‘limit-at-the-close’’ 

order is being increased from $0.0004 to 

$0.0005, and fee for orders that execute 

at the NYSE as an odd lot transaction 

(including the odd lot portion of a 

partial round lot order) is being 

increased from $0.0004 to $0.0010, to 

reflect corresponding changes by NYSE. 

NASDAQ is also introducing a new 

per order fee for members that make 

inefficient use of certain features of 

NASDAQ’s routing facility. When 

NASDAQ members route to the NYSE 

after having their orders check the 

NASDAQ book, they may designate 

their orders as eligible for posting to the 

NASDAQ book after accessing available 

liquidity at NYSE and elsewhere, or 

they may designate their orders for 

posting the NYSE book. The new fee 

will apply to round lot or mixed lot 

orders that attempt to execute in the 

NASDAQ Market Center for the full size 

of the order prior to routing, but that are 

designated as not eligible to post in the 

NASDAQ Market Center (‘‘DOTI 

Orders’’). If a member sends an average 

of more than 10,000 DOTI Orders per 

day during the month, and the ratio 

between total DOTI Orders and DOTI 

Orders that are fully or partially 

executed (either at NASDAQ or NYSE) 

exceeds 300 to 1, then the member will 

be charged a fee of $0.01 for each order 

that exceeds the ratio. For example, if a 

member sends 200,000 DOTI Orders 

during the month and only 100 of the 

orders result in executions, a ratio of 

300 to 1 would equate to 30,000 DOTI 

Orders. Accordingly, the 170,000 DOTI 

Orders in excess of this level would 

each be assessed a fee of $0.01, resulting 

in a charge of $1,700. 

NASDAQ is introducing this new fee 

to address the practice of members 

routing an order to the NYSE book 

through NASDAQ and quickly 

cancelling the order and resubmitting it 

at a different price if it does not execute 

within a short period of time. The 

practice offers no benefits in terms of 

liquidity posted to the NASDAQ book or 

execution or routing revenues, and 

could place unwarranted burdens on 

NASDAQ routing systems. Members 

wishing to continue to use this routing 

strategy may do so through other means 

of routing to NYSE, but will be 

discouraged from doing so through 

NASDAQ systems. 

NASDAQ is also changing its fee for 

routing directed orders (including 

directed intermarket sweep orders) to 

NASDAQ OMX BX, Inc. (‘‘BX’’), 

decreasing the applicable fee from 

$0.0035 per share executed to $0.0016 

per share executed. The change reflects 

the fact that effective March 2, 2009, BX 

will reduce its fee for order executions 

to $0.0014.9 Accordingly, the current fee 

for routing to BX is disproportionate to 

the fee that NASDAQ will be charged by 

BX when conducting such routing. In 

this respect, the change is similar to 

pricing in effect at NYSE Arca, whose 

fees to route to NYSE are lower than its 

fees to route to other venues, to reflect 

the lower fees charged by NYSE itself.10

Finally, with respect to executions of 

securities listed on exchanges other than 

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