12420 Federal Register / Vol. 74, No. 55 / Tuesday, March 24, 2009 / Notices 

13 17 CFR 200.30–3(a)(12). 

1See SR–NYSE–2009–29, to be filed March 13, 

2009. 

2 15 U.S.C. 78s(b)(1). 

3 15 U.S.C. 78a. 

4 17 CFR 240.19b–4. 

5See 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). 

6 15 U.S.C. 78f. 

7See Securities Exchange Act Release No. 58705 

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

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

Relocation). 

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–2009–29 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–NYSE–2009–29. 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–NYSE– 

2009–29 and should be submitted on or 

before April 14, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.13

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–6354 Filed 3–23–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59593; File No. 

NYSEALTR–2009–28] 

Self-Regulatory Organizations; Notice 

of Filing and Immediate Effectiveness 

of Proposed Rule Change by NYSE 

Alternext U.S. LLC Amending NYSE 

Alternext Rules To Delete References 

to Specific Exchange Systems and To 

Remove the Requirement that Opening 

Transactions Receive Specific 

Designations Pursuant to NYSE 

Alternext Rules 79A and 115A. These 

Amendments are Proposed To 

Conform to Amendments Filed by the 

New York Stock Exchange LLC 1

March 17, 2009. 

Pursuant to Section 19(b)(1) 2 of the 

Securities Exchange Act of 1934 (the 

‘‘Act’’) 3 and Rule 19b–4 thereunder,4

notice is hereby given that, on March 

13, 2009, NYSE Alternext U.S. 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, which Items have been 

prepared by the self-regulatory 

organization. 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 Alternext rules to delete 

references to specific Exchange systems 

and to remove the requirement that 

opening transactions receive specific 

designations pursuant to NYSE 

Alternext Rules 79A and 115A. 

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 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

Through this filing, the Exchange 

proposes to amend its rule book to 

delete references to specific Exchange 

systems. The Exchange seeks to replace 

references to ‘‘DOT’’, ‘‘SuperDot’’, 

‘‘Limit Order System’’ and ‘‘Opening 

Automated Report Service’’ (‘‘OARS’’) 

with ‘‘Exchange systems’’. In addition, 

the Exchange seeks to remove the 

requirement that certain opening 

transactions be designated ‘‘OPD’’, 

‘‘OPN’’ pursuant to NYSE Alternext 

Rule 79A (Miscellaneous Requirements 

on Stock Market Procedures) and Rule 

115A (Orders at Opening or in Unusual 

Situations). 

I. Background 

As described more fully in a related 

rule filing,5 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 U.S. LLC, and 

continues to operate as a national 

securities exchange registered under 

Section 6 of the Securities Exchange Act 

of 1934, as amended (the ‘‘Act’’).6 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.7

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 

mstockstill on PROD1PC66 with NOTICES

Federal Register / Vol. 74, No. 55 / Tuesday, March 24, 2009 / Notices 12421 

8See Securities Exchange Act Release No. 58705 

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

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

Relocation); Securities Exchange Act Release No. 

58833 (October 22, 2008), 73 FR 64642 (October 30, 

2008) (SR–NYSE–2008–106) and Securities 

Exchange Act Release No. 58839 (October 23, 2008), 

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

2008–03) (together, approving the Bonds 

Relocation); Securities Exchange Act Release No. 

59022 (November 26, 2008), 73 FR 73683 

(December 3, 2008) (SR–NYSEALTR–2008–10) 

(adopting amendments to NYSE Alternext Equities 

Rules to track changes to corresponding NYSE 

Rules); Securities Exchange Act Release No. 59027 

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

2008) (SR–NYSEALTR–2008–11) (adopting 

amendments to Rule 62—NYSE Alternext Equities 

to track changes to corresponding NYSE Rule 62). 

9See Securities Exchange Act Release No. 16649 

(March 13, 1980) 45 FR 18541 approving SR– 

NYSE–80–09 and Securities Exchange Act Release 

No. 17132 (September 8, 1980) 45 FR 60526 

(September 12, 1980), approving SR–NYSE–80–25. 

10 Display Book® is an order management and 

execution facility that receives and displays orders 

to the DMM and provides a mechanism to execute 

and report transactions and publish the results to 

the Consolidated Tape. In addition, the Display 

Book is connected to a variety of other Exchange 

systems for the purposes of comparison, 

surveillance, and reporting information to 

customers and other market data and national 

market systems. 

NYSE Alternext Trading Systems.8 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. 

On March 1, 1976, the NYSE 

commenced the operation of its 

Designated Order Turnaround (‘‘DOT’’) 

system. It was re-designated ‘‘SuperDot’’ 

(or sometimes cited as ‘‘SuperDOT’’) in 

1984. Today, SuperDot® is an electronic 

order-routing system used by NYSE and 

NYSE Alternext member organizations 

to send market and limit orders directly 

to the trading post where the security is 

traded. The system provides members 

and member organizations the ability to 

enter and manage their order flow on 

the NYSE and the Exchange 

electronically. After the orders have 

been executed, SuperDot uses the same 

electronic circuit to send post-trade 

reports back to member firms. 

At one time, the NYSE’s Limit Order 

System electronically files orders to be 

executed when and if the specific limit 

price of an order is reached and 

electronically updates the Display Book. 

Good ’til Cancelled orders not executed 

on the day of submission are 

automatically stored in this system until 

executed or cancelled. 

When first introduced on the NYSE in 

1980,9 OARS was designed to facilitate 

more efficient and accurate processing 

of orders received by the NYSE prior to 

the opening, a critical point in the 

trading day. It provided automation of 

certain clerical functions carried out at 

the trading post, issued reports on 

executions and substantially reduced 

the number of potential unmatched 

trades since processing was done 

electronically. 

OARS accepts member organizations’ 

pre-opening market orders for execution 

at the opening. OARS automatically 

pairs buy and sell orders and presents 

the imbalance to the DMM up to the 

time of the opening to assist the DMM 

in determining the opening price. Once 

that price is determined and transmitted 

by the DMM, the OARS system assigns 

the price to the orders it holds and 

issues reports back to the entering firms 

and brokers immediately. 

Opening Report ‘‘OPD’’ Opened 

Designation 

NYSE Alternext Rule 79A.20 requires 

a Designated Market Maker to obtain 

prior Floor Official approval if a 

security is going to open at one or more 

dollars away from the closing price at 

the Exchange when the closing price 

was under $20 a share, or two dollars or 

more away from the closing price at the 

Exchange when the closing price was 

$20 per share or more. Under (c) of Rule 

79A.20, when such a transaction is an 

opening trade, the symbol ‘‘OPD’’, 

which means opened, will appear next 

to the transaction when published to the 

Consolidated Tape. 

The ‘‘OPD’’ designation traces back to 

when executions were manually entered 

to be reported to the Consolidated Tape. 

The ‘‘OPD’’ designation served two 

functions. First, because getting Floor 

Official approval required time, 

securities that were opening at one or 

more dollars away from the closing 

price usually had delayed openings. The 

‘‘OPD’’ designation provided notice that 

the stock had in fact commenced 

trading. In addition, ‘‘OPD’’ provided a 

validation to the individual charged 

with manually entering the opening 

transaction information that the price 

associated with the opening transaction 

being reported was valid as the 

transaction would be a dollar or more 

away from the closing price. 

NYSE Alternext Rule 115A.30 

provides that orders stored in OARS 

will receive ‘‘OPN’’ or ‘‘such other 

universal contra as the Exchange may 

designate’’ to identify that the trade took 

place in Exchange systems at the 

opening. ‘‘OPN’’ is used as an omnibus 

account designation to identify market 

orders executed through OARS to the 

member or member organization 

receiving the report of the execution of 

the trade. 

Proposed Amendments 

Exchange Systems 

The NYSE, and therefore NYSE 

Alternext, is enhancing its systems to 

create a strong platform for 

technological growth that offers its 

customers the most comprehensive set 

of trading technology solutions to meet 

their needs and expectations. In order to 

attain this goal, the NYSE is continually 

upgrading its systems that accept, 

manage and report orders. In this 

process, legacy systems that once 

performed the functions governed by 

certain NYSE and NYSE Alternext Rules 

may be upgraded or replaced in their 

entirety. In order to keep pace with the 

enhancements to its technology, the 

Exchange seeks to replace references to 

specific systems that perform a function 

and replace it with the phrase 

‘‘Exchange systems’’. 

The Exchange therefore proposes to 

amend NYSE Alternext Rules 123C 

(Market on The Close Policy And 

Expiration Procedures), 123D (Openings 

and Halts in Trading), 130 (Overnight 

Comparison of Exchange Transactions) 

and 132B (Order Tracking 

Requirements) to replace any references 

to ‘‘Designated Order Turnaround’’, 

‘‘Limit Order System’’, ‘‘DOT’’, 

‘‘SuperDot’’ or ‘‘SuperDOT’’ with 

‘‘Exchange systems’’. 

The OARS system functioning will be 

carried out through similar functioning 

in the Display Book®,10 and as a result, 

there will no longer be a separate system 

for processing openings. As a result, the 

Exchange seeks to remove the references 

to ‘‘Opening Automated Report Service’’ 

from .30 in the Supplementary Material 

to NYSE Alternext Rule 91 (Taking or 

Supplying Securities Named in Order), 

from various references in .30 of NYSE 

Alternext Rule 115A (Orders at Opening 

or in Unusual Situations) and in .10 

under Supplementary Material to Rule 

134 (Differences and Omissions— 

Cleared Transactions). The Exchange 

seeks to insert the phrase ‘‘Exchange 

systems’’ in NYSE Alternext Rules 

91.10, 115A.30 and 134 to replace the 

references to the ‘‘Opening Automated 

Report Service’’ or ‘‘the Service’’. In 

addition, the Exchange proposes to 

substitute the phrase ‘‘securities on the 

Exchange’’ and similar wording to 

replace the phrase ‘‘designated stock’’, 

‘‘designated stocks’’ or ‘‘stocks’’. In 

practice, the instant rules apply to all 

instruments traded on the Exchange, 

which include structured products such 

as capital trusts and warrants. As such, 

mstockstill on PROD1PC66 with NOTICES

12422 Federal Register / Vol. 74, No. 55 / Tuesday, March 24, 2009 / Notices 

11 15 U.S.C. 78f(b)(5). 

1215 U.S.C. 78s(b)(3)(A). 

1317 CFR 240.19b–4(f)(6). 

14 17 CFR 240.19b–4(f)(6)(iii). In addition, Rule 

19b–4(f)(6)(iii) requires the self-regulatory 

organization to give the Commission 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 of the proposed rule change, or such 

shorter time as designated by the Commission. 

NYSE Alternext has satisfied this requirement. 

15For purposes only of waiving the 30-day 

operative delay, the Commission has also 

considered the proposed rule’s effect on efficiency, 

competition, and capital formation. See 15 U.S.C. 

78c(f). 

16 15 U.S.C. 78s(b)(3)(C). 

the broader term ‘‘securities’’ more 

accurately reflects the types of 

instruments traded on the Exchange 

than the narrower term ‘‘stock’’. Finally, 

the Exchange proposes to remove the 

specific references to ‘‘OPN and OARS’’ 

as contras in NYSE Alternext Rule 115A 

and proposes to add language to the 

Rule to indicate that the designation by 

the Exchange of universal contras for 

orders stored in Exchange systems will 

not be deemed inconsistent with NYSE 

Alternext Rules 121.10 and 138. Both 

these rules allow that a substitute name 

may be used with respect to trade 

reports and the use of universal contras 

designated by the Exchange is deemed 

consistent with those requirements. 

‘‘OPD’’ and ‘‘OPN’’ Designations 

These enhancements to NYSE systems 

have also negated the need for the 

‘‘OPD’’ and ‘‘OPN’’ designations. 

Currently NYSE systems process orders, 

allocate the executed shares to the 

various participants, and publish 

reports of executions automatically. 

Given this change from how interest 

was processed in the manual 

environment, ‘‘OPD’’ no longer serves 

the purpose of validating the transaction 

price and is therefore no longer 

necessary, as the opening price is 

systemically validated. As such, the 

Exchange seeks through this filing to 

eliminate the requirement pursuant to 

NYSE Alternext Rule 79A.20(c) that 

opening transactions at one or more 

dollars away from the closing price ‘‘be 

accompanied when published on tape 

by the symbol ‘‘OPD’’. In addition, as 

explained above, the Exchange also 

seeks to remove the reference to ‘‘OPN’’ 

in NYSE Alternext Rule 115A since, 

with the transference of the functions of 

OARS to the NYSE Display Book, the 

universal contra of ‘‘OPN’’ will no 

longer be used. 

2. Statutory Basis 

The Exchange believes that the 

proposed rule change is consistent with 

the requirement under Section 6(b)(5) 11

of the Act that an Exchange have rules 

that are designed to promote just and 

equitable principles of trade, to remove 

impediments to and perfect the 

mechanism of a free and open market 

and national market system, and, in 

general, to protect investors and the 

public interest. The Exchange believes 

that the rescission of the references to 

outdated systems and processes 

promotes just and equitable principles 

of trade and protects investors and the 

public interest because it allows the 

Exchange to upgrade its systems in a 

timely manner thus providing 

customers the most comprehensive and 

all-encompassing set of trading 

technology solutions and mechanisms 

for efficient executions. 

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 

Because the foregoing proposed rule 

change: (1) Does not significantly affect 

the protection of investors or the public 

interest; (2) does not impose any 

significant burden on competition; and 

(3) by its terms, does not become 

operative for 30 days after the date of 

filing, or such shorter time as the 

Commission may designate if consistent 

with the protection of investors and the 

public interest, the proposed rule 

change has become effective pursuant to 

Section 19(b)(3)(A) of the Act 12 and 

Rule 19b–4(f)(6) thereunder.13

A proposed rule change filed under 

Rule 19b–4(f)(6) normally does not 

become operative for 30 days after the 

date of filing.14 However, Rule 19b– 

4(f)(6)(iii) permits the Commission to 

designate a shorter time if such action 

is consistent with the protection of 

investors and the public interest. The 

Exchange requested that the 

Commission waive the 30-day operative 

delay. 

The Commission believes that 

waiving the 30-day operative delay is 

consistent with the protection of 

investors and the public interest. By 

waiving the operative delay, the 

proposed rule change may take effect on 

or about March 16, 2009, when the 

Exchange expects to install these 

technological changes. A waiver of the 

30-day operative delay will also allow 

timely removal of outdated language in 

Exchange rules and avoid any potential 

confusion, and it will ensure that 

Exchange rule text is more accurate. For 

these reasons, the Commission 

designates the proposed rule change as 

operative upon filing.15

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.16

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 NYSEALTR–2009–28 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 NYSEALTR–2009–28. 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 

mstockstill on PROD1PC66 with NOTICES

Federal Register / Vol. 74, No. 55 / Tuesday, March 24, 2009 / Notices 12423 

17 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. 59244 

(January 13, 2009), 74 FR 4065 (January 22, 2009) 

(‘‘Notice’’). 

4See Letter from Ira D. Hammerman, Senior 

Managing Director and General Counsel, Securities 

Industry and Financial Markets Association, to 

Elizabeth Murphy, Secretary, Commission, dated 

February 12, 2009 (‘‘SIFMA Letter’’). 

5See Letter from Jeffrey S. Davis, Vice President 

and Deputy General Counsel, NASDAQ, to 

Elizabeth Murphy, Secretary, Commission, dated 

March 3, 2009 (‘‘NASDAQ Response’’). 

6 Id. 

7See infra note 27. 

8See SIFMA Letter at 2. 

9See NASDAQ Response at 1. 

10 17 CFR 242.603(c). 

11See SIFMA Letter at 2. 

12 17 CFR 242.603(c). 

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 

NYSEALTR–2009–28 and should be 

submitted on or before April 14, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.17

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–6405 Filed 3–23–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59582; File No. SR– 

NASDAQ–2008–102] 

Self-Regulatory Organizations; The 

NASDAQ Stock Market LLC; Order 

Approving Proposed Rule Change as 

Modified by Amendment No. 2 Thereto 

To Establish a Pilot Program for 

NASDAQ Basic Data Feeds 

March 16, 2009. 

I. Introduction 

On December 23, 2008, The NASDAQ 

Stock Market LLC (‘‘NASDAQ’’ 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 

establish a five-month pilot to offer a 

real-time data feed combining both 

NASDAQ’s Best Bid and Offer 

(‘‘QBBO’’) and the ‘‘NASDAQ Last Sale’’ 

(collectively, ‘‘NASDAQ Basic’’). On 

January 8, 2009, NASDAQ filed 

Amendment No. 1 to the proposed rule 

change. On January 12, 2009, NASDAQ 

replaced the original filing and 

Amendment No. 1 by filing Amendment 

No. 2 to the proposed rule change. The 

proposed rule change, as amended, was 

published for comment in the Federal 

Register on January 22, 2009.3 The 

Commission received one comment 

letter on the proposal.4 NASDAQ 

responded to the comment letter on 

March 3, 2009.5 This order approves the 

proposed rule change, as modified by 

Amendment No 2. 

II. Description of the Proposal 

NASDAQ proposes to establish 

NASDAQ Basic, a five-month pilot to 

offer real-time quotation data in 

combination with last sale data solely 

from the NASDAQ Market Center. There 

will be no fees for NASDAQ Basic for 

the first month of the pilot. 

NASDAQ Basic is a ‘‘Level 1’’ product 

containing two data elements: (1) 

Quotation information from the 

NASDAQ Market Center and (2) last sale 

data from the NASDAQ Market Center. 

NASDAQ Basic will be available in 

three forms, NASDAQ Basic for 

NASDAQ, NASDAQ Basic for NYSE, 

and NASDAQ Basic for Alternext. 

NASDAQ stated that it designed 

NASDAQ Basic to meet the needs of 

current and prospective subscribers that 

do not need or are unwilling to pay for 

the consolidated data provided by the 

consolidated Level 1 products. 

NASDAQ proposes to charge each 

professional user of the NASDAQ Basic 

product, a per subscriber monthly 

charge of $10 for NASDAQ-listed stocks, 

$5 for NYSE-listed stocks, and $5 for 

Alternext-listed stocks, and charge each 

non-professional subscriber a per 

subscriber monthly charge of $0.50 for 

NASDAQ-listed stocks, $0.25 for NYSElisted stocks, and $0.25 for Alternextlisted stocks. For users that do not 

require a monthly subscription, there 

will be a per query option available for 

NASDAQ Basic, with a fee of $0.0025 

for NASDAQ-listed stocks, $0.0015 for 

NYSE-listed stocks, and $0.0015 for 

Alternext-listed stocks. Vendors that 

report per query usage to NASDAQ are 

permitted to convert to monthly 

subscriptions when the cost of 

individual users’ queries exceeds the 

cost of the monthly subscription. 

As with the distribution of other 

NASDAQ proprietary products, all 

distributors of NASDAQ Basic will be 

assessed a monthly Distributor Fee in 

addition to any applicable usage fees. 

Each Distributor of NASDAQ Basic for 

NASDAQ-listed stocks shall pay a 

monthly fee of $1,500 for either internal 

or external distribution or both. Each 

Distributor of NASDAQ Basic for NYSElisted stocks will pay a fee of $250 per 

month for internal distribution or $625 

per month external distribution. Each 

Distributor of NASDAQ Basic for 

Alternext-listed stocks will pay a fee of 

$250 per month for internal distribution 

or $625 per month external distribution. 

Distributors that pay the fee for external 

distribution of NASDAQ Basic for NYSE 

and Alternext may distribute the same 

data internally for no additional fee. In 

addition, each Distributor that receives 

Direct Access to the NASDAQ Basic will 

also pay a monthly fee of $2,000 for 

NASDAQ-listed stocks, $1,000 for 

NYSE-listed stocks, and $1,000 for 

Alternext-listed stocks. 

III. Summary of Comments Received 

and NASDAQ’s Responses 

The Commission received one 

comment letter from the Market Data 

Subcommittee of the Securities Industry 

and Financial Markets Association 

(‘‘SIFMA’’) opposing NASDAQ’s 

proposed rule change.6 As an initial 

matter, SIFMA objects to NASDAQ’s 

application of the ‘‘fair and reasonable’’ 

test announced in the NYSE Arca 

Order 7 to NASDAQ Basic’s fees.8

NASDAQ notes that the NYSE Arca 

Order is a valid agency action; therefore, 

NASDAQ believes it is proper to apply 

the ‘‘fair and reasonable’’ test to the 

NASDAQ Basic proposal.9 SIFMA notes 

that SIFMA members that sign up for 

NASDAQ’s new market data feeds will 

still be required to purchase the 

consolidated data for trading 

purposes,10 and, if the other exchanges 

also repackage their own best bids and 

offers and last sale prices, adding 

together all of these fees could result in 

firms paying more, not less, for overall 

market data, and could potentially cause 

considerable technological and 

administrative burdens.11 NASDAQ 

agrees that NASDAQ Basic is not a 

substitute for consolidated data when 

trading and order routing decisions can 

be implemented,12 but rather a less 

expensive alternative to consolidated 

data when consolidated data is not 

required to be displayed, including 

portfolio measurement, back-office 

mstockstill on PROD1PC66 with NOTICES