12918 Federal Register / Vol. 74, No. 56 / Wednesday, March 25, 2009 / Notices 

53Exchange Act Release No. 59262 (January 16, 

2009), 74 FR 4487 (January 26, 2009). See also 

supra Section II.C. 

54 IPA letter. 

55 2009 ChoiceTrade letter. 

56 Id. 

57 Id. 

58 In approving this proposal, the Commission has 

considered the proposed rule’s impact on 

efficiency, competition, and capital formation. See 

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

59 15 U.S.C. 78o–3(b)(6). 

60 15 U.S.C. 78s(b)(2). 

61 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. 59364 

(February 5, 2009), 74 FR 6941 (hereinafter referred 

to as ‘‘Notice’’). 

4The $2,500 fee may include multiple issues of 

securities from the same issuer on the same 

application. 

5 Derivative Securities Products and Structured 

Products are defined in the NYSE Arca Schedule of 

Fees and Charges at notes 3 and 4. See also Notice, 

supra note 3. The definitions include all Derivative 

Securities Products and Structured Products traded 

on NYSE Arca Equities. 

members are placing their own or a 

control entity’s securities. They also 

point out that some limits are already in 

place via other rules or guidelines. 

NTM 07–27 required additional 

disclosures beyond what was proposed 

by FINRA to the Commission, but 

FINRA requested specific comment as to 

whether those additional disclosures 

should be put back into the Rule.53 Only 

one commenter addressed this question, 

but did support FINRA’s decision to 

remove these additional disclosures.54

One commenter objected to limiting 

the requirement of filing the offering 

document with FINRA to FINRA 

members only.55 FINRA responded that 

private offerings by members raise 

unique conflicts that necessitate the 

Rule. Further, that there is potential for 

abuse in private offerings by nonmembers is not a rationale for 

abandoning the proposal. 

One commenter challenged FINRA’s 

ability to keep the documents submitted 

to them confidential in spite of the 

promise of confidential treatment in 

proposed Rule 5122(d).56 FINRA 

strongly disagreed with this assessment. 

This commenter also argued that there 

were insufficient occurrences of 

disconcerting behavior by members to 

warrant a rule, asserted that the Rule 

required a private placement 

memorandum and objected to a new 

requirement to do so, argued that the 

anti-fraud rules were sufficient to 

address the behavior FINRA was 

concerned with, objected to the filing 

requirement generally, objected to 

making the offering document available 

for the member examination process, 

argued that accredited investors should 

be excepted from the Rule, and argued 

that the Rule was an over-reaction to the 

findings cited by FINRA in the 

proposal.57

IV. Discussion and Findings 

After careful review of the proposed 

rule change, the comments, and 

FINRA’s response to the comments, the 

Commission finds that the proposed 

rule change is consistent with the 

requirements of the Act, and the rules 

and regulations thereunder that are 

applicable to a national securities 

association.58 In particular, the 

Commission believes that the proposed 

rule change is consistent with the 

provisions of Section 15A(b)(6) of the 

Act,59 which requires, among other 

things, 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. The Commission 

believes that FINRA is seeking to protect 

investors and the public interest as a 

result of numerous findings of 

disconcerting behavior by its members 

in connection with MPOs. The 

Commission also believes that FINRA 

has tailored the Rule to prohibit 

members or associated persons from 

offering or selling securities in certain 

MPOs in order to ensure that investors 

are protected from such abusive conduct 

with minimal disruption on capital 

formation. The Commission notes that, 

as explained in the supplementary 

material to the Rule, nothing in the Rule 

shall require a member to prepare a 

private placement memorandum that 

meets the additional requirements of 

Securities Act Rule 502. 

V. Conclusion 

It is therefore ordered, pursuant to 

Section 19(b)(2) of the Act,60 that the 

proposed rule change (File No. SR– 

FINRA–2008–020), as modified by 

Amendment No. 2, be, and hereby is, 

approved. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.61

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–6466 Filed 3–24–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59597; File No. SR– 

NYSEArca-2009–03] 

Self-Regulatory Organizations; NYSE 

Arca, Inc.; Order Approving Proposed 

Rule Change To Establish a Technical 

Original Listing Fee Specific to 

Derivative Securities Products and 

Structured Products 

March 18, 2009. 

I. Introduction 

On January 23, 2009, NYSE Arca, Inc. 

(‘‘NYSE Arca’’ or ‘‘Exchange’’) 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 its rules governing 

NYSE Arca, LLC, which is the equities 

trading facility of NYSE Arca Equities, 

to adopt a technical original listing fee 

applicable specifically to Derivative 

Securities Products and Structured 

Products. Additionally, the Exchange is 

removing from the NYSE Arca Schedule 

of Fees and Charges, a reference to a fee 

waiver that was applicable only in 2007. 

The proposed rule change was 

published in the Federal Register on 

February 11, 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 adopting a 

technical original listing fee of $2,500 

specifically for Derivative Securities 

Products and Structured Products.4

Derivative Securities Products and 

Structured Products 5 are currently 

subject to the Exchange’s existing 

technical original listing fee of $5,000, 

which is applicable to all listed 

securities, except for closed-end funds. 

A technical original listing would occur 

as a result of a change in state of 

incorporation, reincorporation under 

the laws of the same state, reverse split 

stocks, recapitalization, creation of a 

holding company or new company by 

operation of law or through an exchange 

offer, or similar events affecting the 

nature of a listed security. The fee 

applies if the change in the company’s 

status is technical in nature and the 

shareholders of the original company 

receive or retain a share-for-share 

interest in the new company without 

any change in their position in the 

issuer’s capital structure or rights. 

The Exchange further proposes a nonsubstantive change by removing 

Footnote 8 to the NYSE Arca Schedule 

of Fees and Charges, waiving a fee that 

was applicable only in 2007 and thus no 

longer relevant. 


PWALKER on PROD1PC71 with NOTICES
Federal Register / Vol. 74, No. 56 / Wednesday, March 25, 2009 / Notices 12919 

6 15 U.S.C. 78f(b)(4). 

7 15 U.S.C. 78f(b)(5). 

8See Notice, supra note 3. 

9 15 U.S.C. 78f(b)(4). In approving the proposed 

rule change, the Commission has considered the 

proposed rule’s impact in efficiency, competition 

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

10 15 U.S.C. 78s(b)(2). 

11 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. 59308 

(January 28, 2009), 74 FR 5955 (February 3, 2009). 

4The Exchange does not currently perceive a 

demand for a nonprofessional subscriber fee for 

NYSE Arca Trades, but will monitor customer 

response. 

5See Securities Exchange Act Release No. 58444 

(August 29, 2008), 73 FR 51872 (September 5, 2008) 

(SR–NYSEArca–2008–96). 

III. Discussion and Commission’s 

Findings 

After careful review, the Commission 

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. Specifically, the 

Commission finds that the proposal is 

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

Act,6 which requires, among other 

things, that the rules of an exchange 

provide for the equitable allocation of 

reasonable dues, fees, and other charges 

among its members and issuers and 

other persons using its facilities. The 

Commission also finds that the proposal 

is consistent with Section 6(b)(5) of the 

Act,7 that an exchange have rules that 

are designed to remove impediments to 

and perfect the mechanism of a free and 

open market and a national market 

system, and are not designed to permit 

unfair discrimination between issuers. 

According to the Exchange, the 

existing $5,000 fee is unsuitable for 

Derivative Securities Products and 

Structured Products, because it is 

disproportionate in relation to the initial 

and continued listing fees for those 

securities.8 According to the Exchange, 

a $2,500 fee is more consistent with the 

pricing expectations of issuers for those 

securities. Accordingly, the Commission 

believes that the Exchange’s proposed 

fee is reasonable, given that it will be 

applied consistently to all listed 

securities in those classes and is 

consistent with the Exchange’s overall 

approach to pricing for Derivative 

Securities Products and Structured 

Products. 

Moreover, the Commission believes 

that charging a one time $2,500 

application fee for multiple issues of 

securities on a single application is 

appropriate in light of the general fee 

structure for such products. The 

Commission notes that the single fee for 

multiple issues of securities applies 

equally to all Derivative Securities 

Products and Structured Products. 

Finally, the Commission also believes 

that it is appropriate to delete an 

obsolete reference to a fee waiver that 

expired in 2007. 

For the foregoing reasons, the 

Commission agrees that the proposed 

rule change does not constitute an 

inequitable allocation of reasonable 

dues, fees and other charges and does 

not permit unfair discrimination 

between issuers, and is generally 

consistent with the Act.9

IV. Conclusion 

It is therefore ordered, pursuant to 

Section 19(b)(2) of the Act,10 that the 

proposed rule change (SR–NYSEArca2009–03) be, and it hereby is, approved. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.11

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–6464 Filed 3–24–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59598; File No. SR– 

NYSEArca–2009–05] 

Self-Regulatory Organizations; NYSE 

Arca, Inc.; Order Approving Proposed 

Rule Change To Establish Fees for 

NYSE Arca Trades 

March 18, 2009. 

I. Introduction 

On January 21, 2009, NYSE Arca, Inc. 

(‘‘NYSE Arca’’ or ‘‘Exchange’’) 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 introduce its NYSE Arca 

Trades service, a NYSE Arca-only 

market data service that allows a vendor 

to redistribute on a real-time basis the 

same last sale information that NYSE 

Arca reports to the Consolidated Tape 

Association (‘‘CTA’’) for inclusion in the 

CTA’s consolidated data stream and 

certain other related data elements 

(‘‘NYSE Arca Last Sale Information’’), 

and to establish fees for that service. 

The proposed rule change was 

published for comment in the Federal 

Register on February 3, 2009.3 The 

Commission received no comment 

letters on the proposal. This order 

approves the proposed rule change. 

II. Description of the Proposal 

The Exchange proposes to introduce 

NYSE Arca Trades, a new service 

pursuant to which it will allow vendors, 

broker-dealers, and others (‘‘NYSE ArcaOnly Vendors’’) to make available NYSE 

Arca Last Sale Information on a realtime basis. NYSE Arca Last Sale 

Information would include last sale 

information for all securities that are 

traded on the Exchange. The Exchange 

will make NYSE Arca Last Sale 

Information available through its new 

NYSE Arca Trades service at the same 

time as it provides last sale information 

to the processor under the CTA Plan. In 

addition to the information that the 

Exchange provides to CTA, NYSE Arca 

Last Sale Information will also include 

a unique sequence number that the 

Exchange assigns to each trade and that 

allows an investor to track the context 

of the trade through such other 

Exchange market data products as 

ArcaBook®. 

The Exchange proposes to charge 

$750 per month for access to each of the 

NYSE Arca Last Sale Information 

datafeeds that NYSE Arca makes 

available. The Exchange proposes to 

charge each subscriber to an NYSE 

Arca-Only Vendor’s NYSE Arca Trades 

service: $5 per month per display device 

for the receipt and use of NYSE Arca 

Last Sale Information relating to 

Network A and Network B Eligible 

Securities (as the CTA Plan uses those 

terms); and $5 per month per display 

device for the receipt and use of NYSE 

Arca Last Sale Information relating to 

securities listed on Nasdaq.4 The access 

fee applies equally to all NYSE ArcaOnly Vendors that receive the NYSE 

Arca Trades datafeed and the device fee 

applies equally to all subscribers that 

receive an NYSE Arca-Only Vendor’s 

NYSE Arca Trades service. The 

Exchange does not propose to impose 

any program classification charges for 

the use of NYSE Arca Trades. 

NYSE Arca represents that no 

investors or broker-dealers are required 

to subscribe to the product, as they can 

find the same NYSE Arca last sale prices 

either in the Exchange’s NYSE Arca 

Realtime Reference Prices service,5 or 

integrated with the prices that other 

markets make available under the CTA 

Plan. NYSE Arca anticipates that, even 

though NYSE Arca Trades’ Last Sale 

Information provides a less expensive 

alternative to the consolidated price 

information that investors and brokerdealers receive from CTA, the 

information that NYSE Arca contributes 

to the CTA consolidated datafeed and 


PWALKER on PROD1PC71 with NOTICES