Federal Register / Vol. 74, No. 64 / Monday, April 6, 2009 / Notices 15571 

8 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3On March 30, 2009, the Exchange withdrew 

Amendment No. 1. 

4References to Amendment No. 1 in Amendment 

No. 2 should be read as Amendment No. 2. 

Telephone call between Theodore Venuti and Sarah 

Albertson, Division of Trading and Markets, 

Commission, and Bridget Spaulding, Managing 

Director, NYSE Market Data, March 31, 2009. 

5See Securities Exchange Act Release No. 58444 

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

(SR–NYSEArca–2008–96). 

6See 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). 

7See Securities Exchange Act Release No. 57966 

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

NYSE–2007–04). 

8The Exchange notes that it will make the NYSE 

Arca Realtime Reference Prices available to vendors 

no earlier than it makes those prices available to the 

processor under the CTA Plan. 

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–NYSEAmex-2009–01. 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– 

NYSEAmex-2009–01 and should be 

submitted on or before April 27, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.8

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–7605 Filed 4–3–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59662; File No. SR– 

NYSEArca–2009–25) 

Self-Regulatory Organizations; NYSE 

Arca, Inc.; Notice of Filing and Order 

Granting Accelerated Approval of 

Proposed Rule Change as Modified by 

Amendment No. 2 Thereto To Extend 

the Pilot Program for NYSE Arca 

Realtime Reference Prices Service 

March 31, 2009. 

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

Securities Exchange Act of 1934 

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

notice is hereby given that on March 20, 

2009, NYSE Arca, Inc. (the ‘‘Exchange’’ 

or ‘‘NYSE Arca’’) 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, 

the Exchange submitted Amendment 

No. 1 to the proposed rule change, 

which was withdrawn.3 On March 30, 

2009, the Exchange filed Amendment 

No. 2 to the proposed rule change.4 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. 2, on an accelerated 

basis. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange proposes to extend the 

expiration date of its pilot program for 

the NYSE Arca 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–NYSEArca–2008–96, 

the Exchange established a pilot 

program that allows the Exchange to test 

the viability of a new NYSE Arca-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 Arca 

Realtime Reference Prices’’) and to 

establish a flat monthly fee for that 

service. The Commission approved that 

pilot program on August 29, 2008.5

The Exchange intends for the NYSE 

Arca 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. (‘‘Nasdaq’’) 6 and the New York 

Stock Exchange, LLC (‘‘NYSE’’) 7 have 

established. 

The pilot program allows internet 

service providers, traditional market 

data vendors, and others (‘‘NYSE ArcaOnly Vendors’’) to make available NYSE 

Arca Realtime Reference Prices on a 

real-time basis.8 The NYSE Arca 

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 


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15572 Federal Register / Vol. 74, No. 64 / Monday, April 6, 2009 / Notices 

9See Securities Exchange Act Release No. 58895 

(October 31, 2008), 73 FR 66956 (November 12, 

2008) (SR–NYSEArca–2008–122). 

10See Securities Exchange Act Release No. 59184 

(December 30, 2008), 74 FR 755 (January 7, 2009) 

(SR–NYSEArca–2008–143). 

11NYSE Arca will file a proposed rule change 

within thirty days of this Partial Amendment No. 

2 seeking to make the NYSE Arca Realtime 

Reference Price service a permanent service rather 

than a pilot program. 

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

13 15 U.S.C. 78f(b)(5). 

14 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). 

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

16 15 U.S.C. 78f(b)(5). 

17 15 U.S.C. 78f(b)(8). 

18 17 CFR 242.603(a). 

19NYSE Arca 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. 

20See supra notes 5, 9, and 10. 

21See supra notes 9 and 10. 

that end date to December 31, 2008 9

and then extended it to March 31, 

2009.10 The Exchange now seeks to 

extend that end date to June 30, 2009.11

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) 12 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) 13 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 Arca 

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 result in 

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–NYSEArca–2009–25 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–NYSEArca–2009–25. 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, 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– 

NYSEArca–2009–25 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.14 In particular, it is 

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

Act,15 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,16 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,17 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,18 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.19

The Commission approved the fee for 

NYSE Arca Realtime Reference Prices 

for a pilot period which runs until 

March 31, 2009.20 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.21


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Federal Register / Vol. 74, No. 64 / Monday, April 6, 2009 / Notices 15573 

22See 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). 

23See supra notes 5, 9, and 10. 

24The Exchange has represented that it will file 

a proposed rule change within thirty days of filing 

Amendment No. 2 to the proposal seeking to make 

the NYSE Arca Realtime Reference Price service a 

permanent service rather than a pilot program. See 

supra note 11. 

25 15 U.S.C. 78s(b)(2). 

26 17 CFR 200.30–3(a)(12). 

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

2 15 U.S.C. 78s–1(b)(3)(A)(ii). 

3 17 CFR 240.19b–4(f)(2). 

4The Commission has modified parts of these 

statements. 

5See Securities Exchange Act Release No. 59294 

(January 23, 2009), 74 FR 5954 (February 3, 2009) 

(File No. SR–OCC–2008–20). OCC’s By-Laws and 

Rules governing the Market Loan Program and the 

provisions governing the Stock Loan/Hedge 

Program are substantively the same, except where 

differences are clearly intended or where the 

context requires a different interpretation based on 

the nature of the transaction. 

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 Arca Realtime 

Reference Prices.22 The Commission 

believes that NYSE Arca’s proposal to 

temporarily extend the pilot program is 

consistent with the Act for the reasons 

noted in the Order.23 The Commission 

believes that approving NYSE Arca’s 

proposal to temporarily extend the pilot 

program that imposes a fee for NYSE 

Arca 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 Arca Realtime Reference 

Prices.24

The Commission finds good cause for 

approving the proposed rule change, as 

modified by Amendment No. 2, 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 Arca Realtime 

Reference Prices. Therefore, the 

Commission finds good cause, 

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

Act,25 to approve the proposed rule 

change, as modified by Amendment No. 

2, on an accelerated basis to extend the 

operation of the pilot until June 30, 

2009. 

Conclusion 

It is therefore ordered, pursuant to 

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

proposed rule change (SR–NYSEArca– 

2009–25), as modified by Amendment 

No. 2, 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.26

Florence E. Harmon, 

Deputy Secretary, 

[FR Doc. E9–7628 Filed 4–3–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59635; File No. SR–OCC– 

2009–03] 

Self-Regulatory Organizations; The 

Options Clearing Corporation; Notice 

of Filing and Immediate Effectiveness 

of a Proposed Rule Change Relating to 

the Schedule of Fees 

March 26, 2009. 

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

Securities Exchange Act of 1934 

(‘‘Act’’),1 notice is hereby given that on 

March 6, 2009, The Options Clearing 

Corporation (‘‘OCC’’) filed with the 

Securities and Exchange Commission 

(‘‘Commission’’) the proposed rule 

change as described in Items I, II, and 

III below, which items have been 

prepared primarily by OCC. OCC filed 

the proposed rule change pursuant to 

Section 19(b)(3)(A)(ii) of the Act 2 and 

Rule 19b–4(f)(2) 3 thereunder so that the 

proposal was effective upon filing with 

the Commission. 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 proposed rule change implements 

changes to OCC’s Schedule of Fees, 

effective May 1, 2009, to reflect the 

adoption of a fee for transactions in 

OCC’s Stock Loan/Hedge and Market 

Loan Programs. 

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, 

OCC 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 these statements 

may be examined at the places specified 

in Item IV below. OCC has prepared 

summaries, set forth in sections (A), (B), 

and (C) below, of the most significant 

aspects of such statements.4

(A) Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

OCC’s Stock Loan/Hedge Program, 

which allows approved Clearing 

Members to register their privately 

negotiated securities lending 

transactions with OCC, benefits OCC’s 

Clearing Members and the industry by 

reducing the cost of credit, increasing 

operational efficiency, and providing 

stability through a central counterparty 

guarantee. Transactions have been free 

to Stock Loan/Hedge participants since 

the program’s inception nearly fifteen 

years ago. 

On January 31, 2009, OCC launched 

its Market Loan Program to create a 

framework for OCC to provide clearing 

services for stock loan and borrow 

transactions effected through electronic 

trading systems, such as the market 

operated by Automated Equity Finance 

Markets, Inc. (‘‘AQS’’), a wholly-owned 

subsidiary of Quadriserve, Inc.5

Although receiving securities lending 

transactions executed through electronic 

trading markets will expand the number 

of securities lending transactions that 

will be cleared and settled by OCC, OCC 

also anticipates that such expansion 

will cause OCC to incur higher ongoing 

administrative, maintenance, and 

systems costs. 

In order to adequately cover costs of 

operating the Programs, effective May 1, 

2009, OCC will implement a one dollar 

($1.00) transaction fee against all new 

loan activity that will be assessed to 

each lender and borrower participating 

in OCC’s Stock and Market Loan 

Programs. The transaction fee will be 

calculated daily, will be billed monthly, 

will only apply to new loans, and will 

not be assessed to recall and return 

transactions. 

The proposed rule change is 

consistent with Section 17A of the Act 

because it benefits clearing members 

and other market participants by 

keeping fees associated with OCC’s 

Stock and Market Loan Programs as low 

as possible while allowing OCC to 

adequately cover the ongoing 

administrative costs. The Programs, in 


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