Federal Register / Vol. 74, No. 57 / Thursday, March 26, 2009 / Notices 13293 

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. 

3See Securities Exchange Act Release No. 59309 

(January 28, 2009), 74 FR 5955 (February 4, 2009). 

4Currently, the Exchange trades only Network A 

securities. The Exchange does not propose to 

impose any program classification charges for the 

use of NYSE Trades. 

5The Exchange proposes to use the revised unit 

of count methodology to determine the device fees 

payable by data recipients applicable to NYSE 

OpenBook® products. See Securities Exchange Act 

Release No. 59544 (March 9, 2009), 74 FR 11162 

(March 16, 2009) (SR–NYSE–2008–131). 

thereunder because it updates NSCC’s 

fee schedule. As such, it provides for 

the equitable allocation of fees among 

its participants. 

(B) Self-Regulatory Organization’s 

Statement on Burden on Competition 

NSCC does not believe that the 

proposed rule change will have any 

impact or impose any burden on 

competition. 

(C) Self-Regulatory Organization’s 

Statement on Comments on the 

Proposed Rule Change Received From 

Members, Participants, or Others 

Written comments relating to the 

proposed rule change have not yet been 

solicited or received. NSCC will notify 

the Commission of any written 

comments received by NSCC. 

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 Rule 19b– 

4(f)(2) 7 promulgated thereunder 

because the proposal changes a due, fee, 

or other charge applicable only to a 

member. At any time within sixty 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–NSCC–2009–02 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–NSCC–2009–02. 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 such filing also will be 

available for inspection and copying at 

the principal office of NSCC. 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–NSCC–2009–02 and should 

be submitted on or before April 16, 

2009. 

For the Commission by the Division of 

Trading and Markets, pursuant to delegated 

authority.8

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–6721 Filed 3–25–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59606; File No. SR–NYSE– 

2009–04] 

Self-Regulatory Organizations; New 

York Stock Exchange LLC; Order 

Approving Proposed Rule Change To 

Establish Fees for NYSE Trades 

March 19, 2009. 

I. Introduction 

On January 27, 2009, the New York 

Stock Exchange LLC (‘‘NYSE’’ 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 Trades service, a 

new NYSE-only market data service that 

allows a vendor to redistribute on a realtime basis the same last sale information 

that NYSE reports to the Consolidated 

Tape Association (‘‘CTA’’) for inclusion 

in the CTA’s consolidated data stream 

and certain other related data elements 

(‘‘NYSE Last Sale Information’’), and to 

establish fees for that service. The 

proposed rule change was published for 

comment in the Federal Register on 

February 4, 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 Trades, a new service pursuant to 

which it will allow vendors, brokerdealers, and others (‘‘NYSE-Only 

Vendors’’) to make available NYSE Last 

Sale Information on a real-time basis. 

NYSE Last Sale Information would 

include last sale information for all 

securities that are traded on the 

Exchange. The Exchange will make 

NYSE Last Sale Information available 

through its new NYSE 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 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 

other Exchange market data products, 

such as NYSE OpenBook® and NYSE 

Info Tools®. 

The Exchange proposes to charge 

$1500 per month for the receipt of 

access to all of the datafeeds of NYSE 

Last Sale Information that the Exchange 

will make available.4 In addition, the 

Exchange proposes to charge each 

subscriber to an NYSE-Only Vendor’s 

NYSE Trades service $15 per month per 

display device for the receipt and use of 

NYSE Last Sale Information.5

NYSE represents that no investors or 

broker-dealers are required to subscribe 

to the product, as they can find the same 

NYSE last sale prices either in the 

13294 Federal Register / Vol. 74, No. 57 / Thursday, March 26, 2009 / Notices 

6See Securities Exchange Act Release No. 57966 

(June 16, 2008), 73 FR 35182 (June 20, 2008) (SR– 

NYSE–2007–04). 

7The latency difference between accessing last 

sales through the NYSE datafeed or through the 

CTA datafeed can be measured in tens of 

milliseconds. 

8See Securities Exchange Act Release Nos. 28407 

(September 6, 1990), 55 FR 37276 (September 10, 

1990); and 49185 (February 4, 2004), 69 FR 6704 

(February 11, 2004). 

9 In approving this proposed rule change, the 

Commission has considered the proposed rule’s 

impact on efficiency, competition, and capital 

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

10 15 U.S.C. 78f(b)(4). 

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

12 15 U.S.C. 78f(b)(6). 

13 17 CFR 242.603(a). 

14NYSE is an exclusive processor of NYSE Trades 

under Section 3(a)(22)(B) of the Act, 15 U.S.C. 

78c(a)(22)(B), which defines an exclusive processor 

as, among other things, an exchange that distributes 

information with respect to quotations or 

transactions on an exclusive basis on its own 

behalf. 

15See Securities Exchange Act Release No. 59039 

(December 2, 2008), 73 FR 74770 (December 9, 

2008) (SR–NYSEArca–2006–21) (‘‘NYSE Arca 

Order’’). In the NYSE Arca Order, the Commission 

describes the competitive factors that apply to noncore market data products. The Commission hereby 

incorporates by reference the data and analysis from 

the NYSE Arca Order into this order. 

16 Id. at 74771. 

17 Id. at 74782. 

18 Id. at 74781. 

19See 17 CFR 242.603(b). (‘‘Every national 

securities exchange on which an NMS stock is 

traded and national securities association shall act 

jointly pursuant to one or more effective national 

market system plans to disseminate consolidated 

information, including a national best bid and 

national best offer, on quotations for and 

transactions in NMS stocks. Such plan or plans 

shall provide for the dissemination of all 

consolidated information for an individual NMS 

stock through a single plan processor.’’). 

Exchange’s NYSE Realtime Reference 

Prices service,6 or integrated with the 

prices that other markets make available 

under the CTA Plan. NYSE anticipates 

that, even though NYSE Trades’ Last 

Sale Information provides a less 

expensive alternative to the 

consolidated price information that 

investors and broker-dealers receive 

from CTA, the information that NYSE 

contributes to the CTA consolidated 

datafeed and the low latency of the CTA 

datafeed will continue to satisfy the 

needs of the vast majority of individual 

and professional investors. The 

Exchange developed NYSE Trades 

primarily at the request of traders who 

are very latency sensitive and 

anticipates that demand for the product 

will derive primarily from investors and 

broker-dealers who desire to use NYSE 

Trades to power certain trading 

algorithms or smart order routers.7

The Exchange will require NYSEOnly Vendors to enter into the form of 

‘‘vendor’’ agreement into which the 

CTA Plan requires recipients of the 

Network A last sale prices information 

datafeeds to enter (the ‘‘Network A 

Vendor Form’’). The Network A Vendor 

Form will authorize the NYSE-Only 

Vendor to provide the NYSE Trades 

service to its subscribers and customers. 

The Network A Participants drafted the 

Network A Vendor Form, it is 

sufficiently generic to accommodate 

NYSE Trades, and it has been in use in 

substantially the same form since 1990.8

The Exchange will require professional 

and non-professional subscribers to 

NYSE Trades to undertake to comply 

with the same contract, reporting, 

payment, and other administrative 

requirements as to which the Network A 

Participants subject them in respect of 

Network A last sale information under 

the CTA Plan. 

III. Discussion 

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.9 In particular, it is consistent 

with Section 6(b)(4) of the Act,10 which 

requires that the rules of a national 

securities exchange provide for the 

equitable allocation of reasonable dues, 

fees, and other charges among its 

members and issuers and other parties 

using its facilities, and Section 6(b)(5) of 

the Act,11 which requires, among other 

things, that the rules of a national 

securities exchange be designed 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, and 

not be designed to permit unfair 

discrimination between customers, 

issuers, brokers, or dealers. 

The Commission also finds that the 

proposed rule change is consistent with 

the provisions of Section 6(b)(8) of the 

Act,12 which requires that the rules of 

an exchange not impose any burden on 

competition not necessary or 

appropriate in furtherance of the 

purposes of the Act. Finally, the 

Commission finds that the proposed 

rule change is consistent with Rule 

603(a) of Regulation NMS,13 adopted 

under Section 11A(c)(1) of the Act, 

which requires an exclusive processor 

that distributes information with respect 

to quotations for or transactions in an 

NMS stock to do so on terms that are 

fair and reasonable and that are not 

unreasonably discriminatory.14

The Commission has reviewed the 

proposal using the approach set forth in 

the NYSE Arca Order for non-core 

market data fees.15 In the NYSE Arca 

Order, the Commission stated that 

‘‘when possible, reliance on competitive 

forces is the most appropriate and 

effective means to assess whether the 

terms for the distribution of non-core 

data are equitable, fair and reasonable, 

and not unreasonably 

discriminatory.’’ 16 It noted that the 

‘‘existence of significant competition 

provides a substantial basis for finding 

that the terms of an exchange’s fee 

proposal are equitable, fair, reasonable, 

and not unreasonably or unfairly 

discriminatory.’’ 17 If an exchange ‘‘was 

subject to significant competitive forces 

in setting the terms of a proposal,’’ the 

Commission will approve a proposal 

unless it determines that ‘‘there is a 

substantial countervailing basis to find 

that the terms nevertheless fail to meet 

an applicable requirement of the 

Exchange Act or the rules 

thereunder.’’ 18

As noted in the NYSE Arca Order, the 

standards in Section 6 of the Act and 

Rule 603 of Regulation NMS do not 

differentiate between types of data and 

therefore apply to exchange proposals to 

distribute both core data and non-core 

data. Core data is the best-priced 

quotations and comprehensive last-sale 

reports of all markets that the 

Commission, pursuant to Rule 603(b), 

requires a central processor to 

consolidate and distribute to the public 

pursuant to joint-SRO plans.19 In 

contrast, individual exchanges and 

other market participants distribute 

non-core data voluntarily. The 

mandatory nature of the core data 

disclosure regime leaves little room for 

competitive forces to determine 

products and fees. Non-core data 

products and their fees are, by contrast, 

much more sensitive to competitive 

forces. The Commission therefore is able 

to use competitive forces in its 

determination of whether an exchange’s 

proposal to distribute non-core data 

meets the standards of Section 6 and 

Rule 603. Because NYSE’s instant 

proposal relates to the distribution of 

non-core data, the Commission will 

apply the market-based approach set 

forth in the NYSE Arca Order. 

In the NYSE Arca Order, the 

Commission discussed two broad types 

of competitive forces that generally 

apply to exchanges in their distribution 

of a non-core data product—the need to 

attract order flow and the availability of 

data alternatives. These forces also 

applied to NYSE in setting the terms of 

this proposal for the NYSE Trades data 

product: (i) NYSE’s compelling need to 

attract order flow from market 

participants; and (ii) the availability to 

Federal Register / Vol. 74, No. 57 / Thursday, March 26, 2009 / Notices 13295 

20Source: ArcaVision (available at 

www.arcavision.com). 

21See NYSE Arca Order at 74784 nn. 218–219 

and accompanying text (noting exchange strategy of 

offering data for free as a means to gain visibility 

in the market place). 

22See Richard Posner, Economic Analysis of Law 

§ 9.1 (5th ed. 1998) (discussing the theory of 

monopolies and pricing). See also U.S. Dep’t of 

Justice & Fed’l Trade Comm’n, Horizontal Merger 

Guidelines § 1.11 (1992), as revised (1997) 

(explaining the importance of alternatives to the 

presence of competition and the definition of 

markets and market power). Courts frequently refer 

to the Department of Justice and Federal Trade 

Commission merger guidelines to define product 

markets and evaluate market power. See, e.g., FTC 

v. Whole Foods Market, Inc., 502 F. Supp. 2d 1 

(D.D.C. 2007); FTC v. Arch Coal, Inc., 329 F. Supp. 

2d 109 (D.D.C. 2004). In considering antitrust 

issues, courts have recognized the value of 

competition in producing lower prices. See, e.g., 

Leegin Creative Leather Products v. PSKS, Inc., 127 

S. Ct. 2705 (2007); Atlanta Richfield Co. v. United 

States Petroleum Co., 495 U.S. 328 (1990); 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

475 U.S. 574 (1986); State Oil Co. v. Khan, 522 U.S. 

3 (1997); Northern Pacific Railway Co. v. U.S., 356 

U.S. 1 (1958). 

23See NYSE Arca Order at 74783. 

24 Id. 

25 Id. 

26 15 U.S.C. 78s(b)(2). 

27 17 CFR 200.30–3(a)(12). 

market participants of alternatives to 

purchasing NYSE’s data. 

Table 1 below provides a recent 

snapshot of the state of competition in 

the U.S. equity markets in the month of 

January 2009: 20

TABLE 1—REPORTED SHARE VOLUME IN U.S.-LISTED EQUITIES DURING JANUARY 2009 (%) 

Trading venue All stocks NYSElisted 

NASDAQlisted 

NASDAQ ............................................................................................................................................................. 27.1 20.5 39.9 

All Non-Exchange ................................................................................................................................................ 26.7 26.2 31.0 

NYSE Arca .......................................................................................................................................................... 17.9 15.7 15.8 

NYSE ................................................................................................................................................................... 14.8 26.2 0.0 

BATS ................................................................................................................................................................... 10.7 9.0 10.8 

International Stock Exchange ............................................................................................................................. 1.3 1.4 1.4 

National Stock Exchange .................................................................................................................................... 0.6 0.7 0.7 

Chicago Stock Exchange .................................................................................................................................... 0.4 0.4 0.3 

CBOE Stock Exchange ....................................................................................................................................... 0.2 0.0 0.1 

NYSE Alternext ................................................................................................................................................... 0.1 0.0 0.0 

NASDAQ OMX BX .............................................................................................................................................. 0.0 0.0 0.0 

The market share percentages in Table 

1 strongly indicate that NYSE must 

compete vigorously for order flow to 

maintain its share of trading volume. 

The need to attract order flow imposes 

significant pressure on NYSE to act 

reasonably in setting its fees for NYSE 

market data, particularly given that the 

market participants that must pay such 

fees often will be the same market 

participants from whom NYSE must 

attract order flow. These market 

participants particularly include the 

large broker-dealer firms that control the 

handling of a large volume of customer 

and proprietary order flow. Given the 

portability of order flow from one 

trading venue to another, any exchange 

that sought to charge unreasonably high 

data fees would risk alienating many of 

the same customers on whose orders it 

depends for competitive survival. 

Moreover, distributing data widely 

among investors, and thereby promoting 

familiarity with the exchange and its 

services, is an important exchange 

strategy for attracting order flow.21

In addition to the need to attract order 

flow, the availability of alternatives to 

NYSE Trades significantly affect the 

terms on which NYSE can distribute 

this market data.22 In setting the fees for 

its NYSE Trades, the Exchange must 

consider the extent to which market 

participants would choose one or more 

alternatives instead of purchasing the 

Exchange’s data.23 Of course, the most 

basic source of information generally 

available at an exchange is the complete 

record of an exchange’s transactions that 

is provided in the core data feeds.24 In 

this respect, the core data feeds that 

include an exchange’s own transaction 

information are a significant alternative 

to the exchange’s market data product.25

The various self-regulatory 

organizations, the several Trade 

Reporting Facilities of FINRA, and ECNs 

that produce proprietary data, as well as 

the core data feed, are all sources of 

competition in non-core data products. 

As Table 1 illustrates, share volume in 

U.S.-listed equities is widely dispersed 

among trading venues, and these venues 

are able to offer competitive data 

products as alternatives to NYSE 

Trades. The Commission believes that 

the availability of those alternatives, as 

well as the NYSE’s compelling need to 

attract order flow, imposed significant 

competitive pressure on the NYSE to act 

equitably, fairly, and reasonably in 

setting the terms of its proposal. 

Because NYSE was subject to 

significant competitive forces in setting 

the terms of the proposal, the 

Commission will approve the proposal 

in the absence of a substantial 

countervailing basis to find that its 

terms nevertheless fail to meet an 

applicable requirement of the Act or the 

rules thereunder. An analysis of the 

proposal does not provide such a basis. 

No comments were submitted on this 

proposal, and the Commission notes 

that the proposal does not unreasonably 

discriminate among types of users. 

IV. Conclusion 

It is therefore ordered, pursuant to 

Section 19(b)(2) of the Act,26 that the 

proposed rule change (SR–NYSE–2009– 

04), be, and it hereby is, approved. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.27

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–6722 Filed 3–25–09; 8:45 am] 

BILLING CODE 8010–01–P 

SMALL BUSINESS ADMINISTRATION 

[Disaster Declaration # 11690 and # 11691] 

Texas Disaster # TX–00334 

AGENCY: Small Business Administration. 

ACTION: Amendment 1. 

SUMMARY: This is an amendment of the 

Administrative declaration of disaster 

for the State of Texas dated 03/10/2009. 

Incident: Bastrop County Wildland 

Fire. 

Incident Period: 02/28/2009 through 

03/13/2009. 

Effective Date: 03/17/2009. 

Physical Loan Application Deadline 

Date: 5/11/2009. 

Economic Injury (EIDL) Loan 

Application Deadline Date: 12/10/2009.