15536 Federal Register / Vol. 74, No. 64 / Monday, April 6, 2009 / Notices 

7 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). 

8 15 U.S.C. 78f(b)(4). 

9 15 U.S.C. 78f(b)(5). 

10 15 U.S.C. 78f(b)(8). 

11 17 CFR 242.603(a). 

12NASDAQ is an exclusive processor of its last 

sale data 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 data on an exclusive basis on its own 

behalf. 

13See Securities Exchange Act Release Nos. 

57965 (June 16, 2008), 73 FR 35178 (June 20, 2008) 

(SR–NASDAQ–2006–060); 58894 (October 31, 

2008), 73 FR 66953 (November 12, 2008) (SR– 

NASDAQ–2008–086); and 59186 (December 30, 

2008), 74 FR 743 (January 7, 2009) (SR–NASDAQ– 

2008–103). 

14 Id. 

15See Securities Exchange Act Release No. 59039 

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

2008) (Order Setting Aside Action by Delegated 

Authority and Approving Proposed Rule Change 

Relating to NYSE Arca Data). 

16See supra note 13. 

17See supra note 3. 

18The Exchange has represented that it will file 

a proposed rule change within thirty days of filing 

of this proposal seeking permanent approval of the 

NASDAQ Last Sale Data Feeds pilot program. See 

supra note 3. 

19 15 U.S.C. 78s(b)(2). 

20 17 CFR 200.30–3(a)(12). 

provisions of 5 U.S.C. 552, will be 

available for inspection and copying in 

the Commission’s Public Reference 

Room, on official business days between 

the hours of 10 a.m. and 3 p.m. Copies 

of the filing also will be available for 

inspection and copying at the principal 

office of the Exchange. 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–2009–027 and should be 

submitted on or before April 27, 2009. 

IV. Commission’s Findings and Order 

Granting Accelerated Approval of a 

Proposed Rule Change 

The Commission finds that the 

proposed rule change, to extend the 

pilot program for three months, is 

consistent with the requirements of the 

Act and the rules and regulations 

thereunder applicable to a national 

securities exchange.7 In particular, it is 

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

Act,8 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,9 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,10 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,11 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.12

The Commission approved the fee for 

the NASDAQ Last Sale Data Feeds for 

a pilot period which runs until March 

31, 2009.13 The Commission notes that 

the Exchange proposes to extend the 

pilot program for three months. The 

Commission did not receive any 

comments on the previous extensions of 

the pilot program.14 In addition, the 

Exchange proposes to reduce the fee cap 

applicable to the NASDAQ Last Sale 

Data Feeds from $100,000 per month for 

NASDAQ Last Sale for NASDAQ and 

$50,000 per month for NASDAQ Last 

Sale for NYSE/Amex to $50,000 per 

month total for both feeds. 

On December 2, 2008, the 

Commission issued an approval order 

(‘‘Order’’) that sets forth a market-based 

approach for analyzing proposals by 

self-regulatory organizations to impose 

fees for ‘‘non-core’’ market data 

products, such as the NASDAQ Last 

Sale Data Feeds.15 The Commission 

believes that Nasdaq’s proposal to 

temporarily extend the pilot program is 

consistent with the Act for the reasons 

noted in the Order.16 The Commission 

believes that approving NASDAQ’s 

proposal to temporarily extend the pilot 

program that imposes a fee for the 

NASDAQ Last Sale Data Feeds for an 

additional three months and to reduce 

the cap applicable to the NASDAQ Last 

Sale Data Feeds will be beneficial to 

investors and in the public interest, in 

that it is intended to allow continued 

broad public dissemination of increased 

real-time pricing information. The 

Commission notes that price 

competition provided by other market 

data products were considered by the 

Exchange in determining to reduce the 

fee cap for the NASDAQ Last Sale Data 

Feeds. In addition, extending the pilot 

program for an additional three months 

will allow NASDAQ, consistent with its 

representation,17 to file within 30 days, 

the public to comment on, and the 

Commission to analyze consistent with 

the Order and in light of Section 19(b) 

of the Act, a proposal to permanently 

approve the fee for NASDAQ Last Sale 

Data Feeds.18

The Commission finds good cause for 

approving the proposed rule change 

before the thirtieth day after the date of 

publication of notice of filing thereof in 

the Federal Register. Accelerating 

approval of this proposal is expected to 

benefit investors by continuing to 

facilitate their access to widespread, 

free, real-time pricing information 

contained in the NASDAQ Last Sale 

Data Feeds. In addition, the Commission 

notes that the proposal should benefit 

vendors that make real-time pricing 

information available by potentially 

reducing their monthly fees. Therefore, 

the Commission finds good cause, 

consistent with Section 19(b)(2) of the 

Act,19 to approve the proposed rule 

change on an accelerated basis to extend 

the operation of the pilot until June 30, 

2009. 

V. Conclusion 

It is therefore ordered, pursuant to 

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

proposed rule change (SR–NASDAQ– 

2009–027) is hereby approved on an 

accelerated basis until June 30, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.20

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–7586 Filed 4–3–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

Release No. 34–59653; File No. SR–NYSE– 

2009–34] 

Self-Regulatory Organizations; New 

York Stock Exchange LLC; Notice of 

Filing and Order Granting Accelerated 

Approval of Proposed Rule Change as 

Modified by Amendment No. 1 Thereto 

To Extend the Pilot Period for the 

NYSE Realtime Reference Prices Pilot 

Program 

March 30, 2009. 

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

Securities Exchange Act of 1934 


pwalker on PROD1PC71 with NOTICES
Federal Register / Vol. 74, No. 64 / Monday, April 6, 2009 / Notices 15537 

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

2 17 CFR 240.19b–4. 

3See Securities Exchange Act Release No. 57966 

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

NYSE–2007–04). 

4See Securities Exchange Act Release Nos. 57965 

(June 16, 2008), 73 FR 35178 (June 20, 2008) (SR– 

NASDAQ–2006–060); 57973 (June 16, 2008), 73 FR 

35430 (June 23, 2008) (SR–NASDAQ–2008–050). 

5See Securities Exchange Act Release No. 58444 

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

(SR–NYSEArca–2008–96). 

6The Exchange notes that it will make the NYSE 

Realtime Reference Prices available to vendors no 

earlier than it makes those prices available to the 

processor under the CTA Plan. 

7See Securities Exchange Act Release No. 58893 

(October 31, 2008), 73 FR 66093 (November 6, 2008) 

(SR–NYSE–2008–113). 

8See Securities Exchange Act Release No. 59185 

(December 30, 2008), 74 FR 749 (January 7, 2009) 

(SR–NYSE–2008–141). 

9NYSE will file a proposed rule change within 

thirty days of this Partial Amendment No. 1 seeking 

to make the NYSE Realtime Reference Price service 

a permanent service rather than a pilot program. 

10 15 U.S.C. 78f(b)(4). 11 15 U.S.C. 78f(b)(5). 

(‘‘Act’’) 1 and Rule 19b–4 thereunder,2

notice is hereby given that on March 20, 

2009, the New York Stock Exchange 

LLC (‘‘NYSE’’ or the ‘‘Exchange’’) filed 

with the Securities and Exchange 

Commission (‘‘Commission’’) the 

proposed rule change as described in 

Items I and II below, which Items have 

been prepared by the Exchange. On 

March 27, 2009, NYSE filed 

Amendment No. 1 to the proposed rule 

change. The Commission is publishing 

this notice to solicit comments on the 

proposed rule change from interested 

persons, and is approving the proposal, 

as modified by Amendment No. 1, on an 

accelerated basis. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

NYSE proposes to extend the 

expiration date of its pilot program for 

the NYSE Realtime Reference Prices 

service until June 30, 2009. There is no 

new rule text. 

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 III 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 

In File No. SR–NYSE–2007–04, the 

Exchange established a pilot program 

that allows the Exchange to test the 

viability of a new NYSE-only market 

data service that allows a vendor to 

redistribute on a real-time basis last sale 

prices of transactions that take place on 

the Exchange (‘‘NYSE Realtime 

Reference Prices’’) and to establish a flat 

monthly fee for that service. The 

Commission approved that pilot 

program on June 16, 2008.3

The Exchange intends for the NYSE 

Realtime Reference Prices service to 

accomplish three goals: 

1. To provide a low-cost service that 

will make real-time prices widely 

available to millions of casual investors; 

2. To provide vendors with a real-time 

substitute for delayed prices; and 

3. To relieve vendors of 

administrative burdens. 

This pilot program is similar to pilot 

programs that the Nasdaq Stock Market, 

Inc.4 and NYSE Arca, Inc 5 have 

established. 

The pilot program allows internet 

service providers, traditional market 

data vendors, and others to make 

available NYSE Realtime Reference 

Prices on a real-time basis.6 The NYSE 

Realtime Reference Price information 

includes last sale prices for all securities 

that trade on the Exchange. It includes 

only prices, and not the size of each 

trade and not bid/asked quotations. 

It features a flat, fixed monthly vendor 

fee, no user-based fees, no vendor 

reporting requirements, and no 

professional or non-professional 

subscriber agreements. 

The Exchange established November 

1, 2008 as the end date for the pilot 

program. The Exchange then extended 

that end date to December 31, 2008 7

and then extended it to March 31 2009.8

The Exchange now seeks to extend that 

end date to June 30, 2009.9 Prior to the 

end of the pilot period, the Exchange 

will assess its experience with the 

product and either will submit a 

proposed rule change that seeks to 

extend or modify the pilot program or 

to make it permanent, or it will 

announce publicly that it does not seek 

to extend the pilot program beyond the 

program’s termination date. 

2. Statutory Basis 

The basis under the Act for this 

proposed rule change is the requirement 

under Section 6(b)(4) 10 that an 

exchange have rules that provide for the 

equitable allocation of reasonable dues, 

fees and other charges among its 

members and other persons using its 

facilities and the requirements under 

Section 6(b)(5) 11 that the rules of an 

exchange be designed to promote just 

and equitable principles of trade and 

not to permit unfair discrimination 

between customers, issuers, brokers or 

dealers. 

The Exchange believes that the pilot 

program benefits investors by 

facilitating their prompt access to 

widespread, free, real-time pricing 

information contained in the NYSE 

Realtime Reference Prices service. 

Extending the pilot program will extend 

those benefits while the Exchange 

assesses the service. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

The Exchange does not believe that 

this 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 

The Exchange has not received any 

unsolicited written comments from 

members or other interested parties. 

III. 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–NYSE–2009–34 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–2009–34. 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 


pwalker on PROD1PC71 with NOTICES
15538 Federal Register / Vol. 74, No. 64 / Monday, April 6, 2009 / Notices 

12 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). 13 15 U.S.C. 78f(b)(4). 

14 15 U.S.C. 78f(b)(5). 

15 15 U.S.C. 78f(b)(8). 

16 17 CFR 242.603(a). 

17NYSE is an exclusive processor of its last sale 

data 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 

data on an exclusive basis on its own behalf. 

18See supra notes 3, 7, and 8. NYSE reduced the 

flat monthly fee for NYSE Realtime Reference Prices 

from $100,000 per month to $70,000 per month. See 

Securities Exchange Act Release No. 58443 (August 

29, 2008), 73 FR 52436 (September 9, 2008) (SR– 

NYSE–2008–79). 

19See supra notes 7 and 8. 

20See Securities Exchange Act Release No. 59039 

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

2008) (Order Setting Aside Action by Delegated 

Authority and Approving Proposed Rule Change 

Relating to NYSE Arca Data). 

21See supra notes 3, 7, and 8. 

22The Exchange has represented that it will file 

a proposed rule change within thirty days of filing 

Amendment No. 1 to the proposal seeking to make 

the NYSE Realtime Reference Price service a 

permanent service rather than a pilot program. See 

supra note 9. 

23 15 U.S.C. 78s(b)(2). 

24 17 CFR 200.30–3(a)(12). 

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, on official business days between 

the hours of 10 a.m. and 3 p.m. Copies 

of the filing also will be available for 

inspection and copying at the principal 

office of the Exchange. 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– 

2009–34 and should be submitted on or 

before April 27, 2009. 

IV. Commission’s Findings and Order 

Granting Accelerated Approval of a 

Proposed Rule Change 

The Commission finds that the 

proposed rule change, to extend the 

pilot program for three months, is 

consistent with the requirements of the 

Act and the rules and regulations 

thereunder applicable to a national 

securities exchange.12 In particular, it is 

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

Act,13 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,14 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,15 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,16 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.17

The Commission approved the fee for 

NYSE Realtime Reference Prices for a 

pilot period which runs until March 31, 

2009.18 The Commission notes that the 

Exchange proposes to extend the pilot 

program for three months. The 

Exchange proposes no other changes to 

the existing pilot program. In addition, 

the Commission notes that it did not 

receive any comments on the previous 

extensions of the pilot program.19

On December 2, 2008, the 

Commission issued an approval order 

(‘‘Order’’) that sets forth a market-based 

approach for analyzing proposals by 

self-regulatory organizations to impose 

fees for ‘‘non-core’’ market data 

products, such as NYSE Realtime 

Reference Prices.20 The Commission 

believes that NYSE’s proposal to 

temporarily extend the pilot program is 

consistent with the Act for the reasons 

noted in the Order.21 The Commission 

believes that approving NYSE’s 

proposal to temporarily extend the pilot 

program that imposes a fee for NYSE 

Realtime Reference Prices for an 

additional three months will be 

beneficial to investors and in the public 

interest, in that it is intended to allow 

continued broad public dissemination 

of increased real-time pricing 

information. In addition, extending the 

pilot program for an additional three 

months will allow the public to 

comment on, and the Commission to 

analyze consistent with the Order and 

in light of Section 19(b) of the Act, a 

proposal to permanently approve the fee 

for NYSE Realtime Reference Prices.22

The Commission finds good cause for 

approving the proposed rule change, as 

modified by Amendment No. 1, before 

the thirtieth day after the date of 

publication of notice of filing thereof in 

the Federal Register. Accelerating 

approval of this proposal is expected to 

benefit investors by continuing to 

facilitate their access to widespread, 

free, real-time pricing information 

contained in NYSE Realtime Reference 

Prices. Therefore, the Commission finds 

good cause, consistent with Section 

19(b)(2) of the Act,23 to approve the 

proposed rule change, as modified by 

Amendment No. 1, on an accelerated 

basis to extend the operation of the pilot 

until June 30, 2009. 

V. Conclusion 

It is therefore ordered, pursuant to 

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

proposed rule change (SR–NYSE–2009– 

34), as modified by Amendment No. 1, 

is hereby approved on an accelerated 

basis until June 30, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.24

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–7587 Filed 4–3–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59659; File No. SR–NYSE– 

2009–36] 

Self-Regulatory Organizations; New 

York Stock Exchange LLC; Notice of 

Filing and Immediate Effectiveness of 

Proposed Rule Change by New York 

Stock Exchange LLC Extending to 

September 1, 2009, the Operative Date 

of New York Stock Exchange Rule 2 

Requirement That NYSE-Only Member 

Organizations Apply for and be 

Approved as a Member of the Financial 

Industry Regulatory Authority, Inc. 

March 31, 2009. 

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

Securities Exchange Act of 1934 


pwalker on PROD1PC71 with NOTICES