Federal Register / Vol. 74, No. 66 / Wednesday, April 8, 2009 / Notices 16017 

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

2 17 CFR 240.19b–4. 

3See Release No. 34–59544; 74 Federal Register 

11162 (March 16, 2009); File No. SR–NYSE–2008– 

131. 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59681; File No. SR–NYSE– 

2009–37] 

Self-Regulatory Organizations; New 

York Stock Exchange LLC; Notice of 

Filing of Proposed Rule Change 

Implementing a Cap on Vendors’ 

Administrative Charges for NYSE 

OpenBook 

April 1, 2009. 

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

Securities Exchange Act of 1934 (the 

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

notice is hereby given that on March 26, 

2009, the New York Stock Exchange 

LLC (‘‘NYSE’’ or ‘‘Exchange’’), 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 by the Exchange. 

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 introduce a 

cap on the monthly charges that brokerdealers and vendors are required to pay 

for their use of NYSE OpenBook data for 

the purposes of administering their 

provision of NYSE OpenBook product 

offerings. The text of the proposed rule 

change is available at the Exchange, the 

Commission’s Public Reference Room, 

and http://www.nyse.com. 

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 

NYSE OpenBook responds to the 

desire of some market participants for 

depth-of-book data. It is a compilation 

of limit order data that the Exchange 

provides to market data vendors through 

a data feed. 

Recently, the Commission approved 

the Exchange’s proposed rule change to, 

among other things, establish a one-year 

pilot program to simplify and 

modernize market data administration 

(the ‘‘Unit of Count Filing’’).3 It 

proposed to do so by redefining some of 

the basic ‘‘units of measure’’ that 

vendors are required to report to the 

Exchange and on which the Exchange 

bases its fees for its NYSE OpenBook 

product packages. 

Previously, the Exchange required 

broker-dealers and vendors to report 

and pay for, among other devices, all 

devices that they use to administer their 

provision of NYSE OpenBook services 

to their external customers. Under the 

Unit of Count Filing, in connection with 

a vendor’s internal distribution of NYSE 

OpenBook data, the vendor would be 

required to count as one fee-liable 

entitlement each unique individual (but 

not devices) that the vendor has entitled 

to have access to the Exchange’s NYSE 

OpenBook data. This would include 

vendor personnel whose sole function is 

to administer the vendor’s market data 

services externally, that is, to the 

vendor’s customers. 

After discussions with vendors, the 

Exchange seeks to simplify, limit, and 

clarify the vendor’s payment obligation 

for administering NYSE OpenBook 

services. For that reason, the Exchange 

proposes to modify its policy regarding 

the payment of fees in respect of each 

unique individual that is affiliated with 

the vendor, and to whom the vendor 

distributes NYSE OpenBook data 

internally for administrative purposes. 

A person is ‘‘affiliated’’ with the vendor 

if he or she is an officer, partner, 

member, or employee of the vendor or 

an affiliate of the vendor or enjoys a 

similar status with the vendor or 

affiliate. 

Thus, the Exchange proposes to 

continue its practice of charging user 

fees for internal use of data, but 

proposes to establish a maximum 

monthly amount of $1500 (the 

‘‘Monthly Maximum’’) for entitlements 

consisting of unique individuals within 

a vendor’s organization to whom the 

vendor distributes NYSE OpenBook 

data for the sole purpose of 

administering the vendor’s distribution 

of NYSE OpenBook services externally 

to the vendor’s customers. The Monthly 

Maximum of $1500 means that a vendor 

would have to pay for no more than 25 

NYSE OpenBook administrative 

personnel. 

For this purpose, the Exchange deems 

‘‘administer’’ to mean monitoring and 

surveilling the receipt and use of NYSE 

OpenBook data by the vendor’s 

customers, marketing NYSE OpenBook 

data to potential new customers, 

performing the Exchange-required 

reporting function and the performance 

of similar functions relating to the 

vendor’s provision of NYSE OpenBook 

services to its external customers. It 

does not include, among other things, 

the use of OpenBook data to monitor 

securities, to make trading decisions, to 

value portfolios, in news rooms, or 

otherwise to use NYSE OpenBook data 

to perform any functions not related to 

the provision of NYSE OpenBook 

functions to the vendor’s external 

customers. 

The purpose of this exception is to 

permit vendors to cap their financial 

exposure in performing their NYSE 

OpenBook administrative functions and 

to simplify the tracking and reporting of 

devices used in the administrative 

function. The vendor need only divide 

its internal personnel, using the data, 

into two categories: Those using the 

data to support the vendor’s external 

service, and those using the data for any 

other purposes. Alternatively, a vendor 

that makes no other internal use of data 

other than supporting its external 

service can decide to pay the monthly 

maximum without the need to track and 

report any internal usage. At the same 

time, the Exchange must guard against 

potential abuse of this exception. 

Therefore, the Exchange reserves the 

rights under its contracts with vendors 

to monitor its use closely and to deny 

application of this exception if it 

discovers that a vendor is misusing it, 

such as by allowing personnel to use 

NYSE OpenBook for non-administrative 

functions. 

Any vendor that distributes NYSE 

OpenBook data externally to customers 

is entitled to take advantage of the 

Monthly Maximum, though it 

anticipates that only the largest vendors 

devote sufficient personnel to 

administrative functions to take 

advantage of the Monthly Maximum. In 

the Exchange’s view, limiting the fee 

exposure of its largest vendors does not 

unreasonably discriminate against other 


rwilkins on PROD1PC63 with NOTICES
16018 Federal Register / Vol. 74, No. 66 / Wednesday, April 8, 2009 / Notices 

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

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

6 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3 15 U.S.C. 78s(b)(3)(A)(iii). 

4 17 CFR 240.19b–4(f)(6). 

vendors under Section 603(a)(2) of 

Regulation NMS. 

NYSE OpenBook is subject to 

significant competitive forces and the 

establishment of the Monthly Maximum 

represents a response to that 

competition. As the Exchange stated in 

the Unit of Count Filing, the Exchange 

competes intensely for order flow, 

competing with the other 10 national 

securities exchanges, with ECNs, with 

quotes posted in FINRA’s ADF and 

TRFs, with alternative trading systems, 

and with securities firms that primarily 

trade as principal with their customer 

order flow. The competition is free 

produce [sic] depth-of-book products, 

and Nasdaq, NYSE Arca, and BATS are 

among those who currently do. 

In addition, the Exchange believes 

that no substantial countervailing bases 

exists to support a finding that the 

Monthly Maximum for NYSE OpenBook 

fails to meet the requirement of the Act. 

In sum, the Exchange believes that the 

proposed Monthly Maximum is fair and 

reasonable. 

2. Statutory Basis 

The bases under the Act for this 

proposed rule change are the 

requirement under Section 6(b)(4) 4 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) 5 that the rules of an 

exchange be designed to promote just 

and equitable principles of trade and to 

remove impediments to, and perfect the 

mechanism of, a free and open market 

and a national market system. 

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 

Within 35 days of the date of 

publication of this notice in the Federal 

Register or within such longer period (i) 

as the Commission may designate up to 

90 days of such date if it finds such 

longer period to be appropriate and 

publishes its reasons for so finding or 

(ii) as to which the Exchange consents, 

the Commission will: 

(A) By order approve the proposed 

rule change, or 

(B) Institute proceedings to determine 

whether the proposed rule change 

should be disapproved. 

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 

No. SR–NYSE–2009–37 on the subject 

line. 

Paper Comments 

• Send paper comments in triplicate 

to Elizabeth M. Murphy, Secretary, 

Securities and Exchange Commission, 

Station Place, 100 F Street, NE., 

Washington, DC 20549–1090. 

All submissions should refer to File 

Number SR–NYSE–2009–37. 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 such 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– 

2009–37 and should be submitted on or 

before April 29, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.6

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–7868 Filed 4–7–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59676; File No. SR–CBOE– 

2009–020] 

Self-Regulatory Organizations; 

Chicago Board Options Exchange, 

Incorporated; Notice of Filing and 

Immediate Effectiveness of Proposed 

Rule Change To Change the Close of 

Trading Hours on the Last Day of 

Trading in Expiring Quarterly Index 

Expirations 

April 1, 2009. 

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

Securities Exchange Act of 1934 (the 

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

notice is hereby given that on March 18, 

2009, the Chicago Board Options 

Exchange, Incorporated (‘‘Exchange’’ or 

‘‘CBOE’’) filed with the Securities and 

Exchange Commission (the 

‘‘Commission’’) the proposed rule 

change as described in Items I, II, and 

III below, which Items have been 

prepared by the Exchange. The 

Exchange filed the proposal as a ‘‘noncontroversial’’ proposed rule change 

pursuant to Section 19(b)(3)(A)(iii) of 

the Act 3 and Rule 19b–4(f)(6) 

thereunder.4 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 

CBOE proposes to amend Rule 24.6 to 

change the close of trading hours from 

3:15 p.m. (Chicago time) to 3 p.m. 

(Chicago time) on the last day of trading 

in expiring Quarterly Index Expirations 

(‘‘QIXs’’). The filing also proposes to 

amend Rule 24.9(c) by adding the MiniSPX Index to the list of broad-based 

indices on which the Exchange may list 

QIXs. In addition, the filing proposes to 

amend Rule 24.9 by making technical 


rwilkins on PROD1PC63 with NOTICES