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. 

13296 Federal Register / Vol. 74, No. 57 / Thursday, March 26, 2009 / Notices 

ADDRESSES: Submit completed loan 

applications to: U.S. Small Business 

Administration, Processing and 

Disbursement Center, 14925 Kingsport 

Road, Fort Worth, TX 76155. 

FOR FURTHER INFORMATION CONTACT: A. 

Escobar, Office of Disaster Assistance, 

U.S. Small Business Administration, 

409 3rd Street, SW., Suite 6050, 

Washington, DC 20416 

SUPPLEMENTARY INFORMATION: The notice 

of the Administrator’s disaster 

declaration in the State of Texas, dated 

03/10/2009, is hereby amended to 

establish the incident period for this 

disaster as beginning 02/28/2009 and 

continuing through 03/13/2009. 

All other information in the original 

declaration remains unchanged. 

(Catalog of Federal Domestic Assistance 

Numbers 59002 and 59008) 

Dated: March 18, 2009. 

Darryl K. Hairston, 

Acting Administrator. 

[FR Doc. E9–6742 Filed 3–25–09; 8:45 am] 

BILLING CODE 8025–01–P 

SMALL BUSINESS ADMINISTRATION 

Advisory Committee on Veterans 

Business Affairs; Meeting Notice 

AGENCY: U.S. Small Business 

Administration. 

ACTION: Notice of open Federal Advisory 

Committee meeting. 

SUMMARY: The SBA is issuing this notice 

to announce the location, date, time, 

and agenda for the next meeting of the 

Advisory Committee on Veterans 

Business Affairs. The meeting will be 

open to the public. 

DATES: Tuesday, April 21, 2009, from 9 

a.m. to 5 p.m. and Wednesday, April 22, 

2009, from 9 a.m. to 5 p.m., Eastern 

Standard Time. 

ADDRESSES: U.S. Small Business 

Administration, 409 3rd Street, SW., 

Washington, DC 20416. 

SUPPLEMENTARY INFORMATION: Pursuant 

to section 10(a) (2) of the Federal 

Advisory Committee Act (5 U.S.C., 

Appendix 2), SBA announces the 

meeting of the Advisory Committee on 

Veterans Business Affairs. The Advisory 

Committee on Veterans Business Affairs 

serves as an independent source of 

advice and policy recommendation to 

the Administrator of the U.S. Small 

Business Administration. 

The purpose of the meeting is 

scheduled as a full committee meeting. 

The agenda will include: The purpose 

for this meeting is to study, research, 

and recommend Veterans Business 

Development topics for the SBA’s 

Administrator, the Congress, and to the 

President. 

FOR FURTHER INFORMATION CONTACT: The 

meeting is open to the public; however, 

advance notice of attendance is 

requested. Anyone wishing to attend 

and/or make a presentation to the 

Advisory Committee on Veterans 

Business Affairs must contact Cheryl 

Simms, Program Liaison, by February 2, 

2009, by fax or e-mail in order to be 

placed on the agenda. Cheryl Simms, 

Program Liaison, U.S. Small Business 

Administration, Office of Veterans 

Business Development, 409 3rd Street, 

SW., Washington, DC 20416, Telephone 

number: (202) 619–1697, Fax number: 

202–481–6085, e-mail address: 

cheryl.simms@sba.gov. 

Additionally, if you need 

accommodations because of a disability 

or require additional information, please 

contact Cheryl Simms, Program Liaison 

at (202) 619–1697; e-mail address: 

cheryl.simms@sba.gov, SBA, Office of 

Veterans Business Development, 409 

3rd Street, SW., Washington, DC 20416. 

For more information, please visit our 

Web site at http://www.sba.gov/vets. 

Dated: March 11, 2009. 

Bridget E. Bean, 

Acting SBA Committee Management Officer. 

[FR Doc. E9–6744 Filed 3–25–09; 8:45 am] 

BILLING CODE 

SMALL BUSINESS ADMINISTRATION 

Small Business Size Standards: 

Waiver of the Nonmanufacturer Rule 

AGENCY: U.S. Small Business 

Administration. 

ACTION: Notice of periodic review of 

approved class waivers from the 

Nonmanufacturer Rule for products in 

effect as of March 17, 2009. 

SUMMARY: The U.S. Small Business 

Administration (SBA) is conducting a 

periodic review of approved class 

waivers from the Nonmanufacturer Rule 

for products in effect as of March 17, 

2009. The purpose of this notice is to 

determine if there are any small 

business manufacturers or processors 

for the products listed on the list of 

approved class waivers. The basis for a 

waiver is that no small business 

manufacturers are supplying these 

classes of products to the Federal 

government. The effect of a waiver 

would be to allow otherwise qualified 

small businesses dealers to supply the 

products of any manufacturer on a 

Federal contract set aside for small 

businesses, service-disabled veteranowned small businesses or participants 

in SBA’s 8(a) Business Development 

Program. 

DATES: Comments and source 

information must be submitted within 

April 27, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Edith G. Butler, Program Analyst, by 

telephone at (202) 619–0422; by FAX at 

(202) 481–1788; or my e-mail at 

Edith.Butler@sba.gov. 

SUPPLEMENTARY INFORMATION: Section 

8(a)(17) of the Small Business Act (Act), 

15 U.S.C. 637(a)(17), requires that 

recipients of Federal contracts set aside 

for small businesses, or SBA’s 8(a) 

Business Development Program provide 

the product of a small business 

manufacturer or processor, if the 

recipient is other than the actual 

manufacturer or processor of the 

product. SBA’s regulations provided the 

same for procurements set aside for 

service-disabled veteran-owned small 

business concerns 13 CFR 125.15. This 

requirement is commonly referred to as 

the Nonmanufacturer Rule. See 13 CFR 

121.406(b). Section 8(a)(17)(b)(iv) of the 

Act authorizes SBA to waive the 

Nonmanufacturer Rule for any ‘‘class of 

products’’ for which there are no small 

business manufacturers or processors 

available to participate in the Federal 

market. 

In order to be considered available to 

participate in the Federal market for a 

class of products, a small business 

manufacturer must have submitted a 

proposal for a contract solicitation or 

received a contract from the Federal 

government within the last 24 months. 

13 CFR 1202(c). The SBA defines ‘‘class 

of products’’ based on the Office of 

Management and Budget’s North 

American Industry Classification 

System (NAICS), and product service 

codes. 

The following are products listed on 

SBA’s list of Approved Class Waivers in 

Effect as of March 17, 2009.