31500 Federal Register / Vol. 75, No. 106 / Thursday, June 3, 2010 / Notices 

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

6 15 U.S.C. 78f(b)(4). 

7 15 U.S.C. 78s(b)(3)(A). 

8 17 CFR 240.19b–4(f)(3). 

9 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. 61936 

(April 16, 2010), 75 FR 21088. 

organized into tables with no changes to 

the text. The remainder of the fees in 

this section are rearranged in order to 

present the fees by topic. The endnotes 

were transplanted and words were 

added to indicate which fee the note 

references within the Fee Schedule. The 

Examinations Fee and FINRA fees 

remain the same. 

Market Access Provider Subsidy, 

Options Floor Broker Subsidy, Routing 

Fees, Proprietary Data Feed Fees, 

NASDAQ OMX PSX 

The Exchange did not amend the 

following sections of the Fee Schedule: 

Market Access Provider Subsidy, 

Options Floor Broker Subsidy, Routing 

Fees, Proprietary Data Feed Fees and 

NASDAQ OMX PSX. As previously 

stated the Exchange eliminated the 

endnotes section and incorporated those 

endnotes into the Fee Schedule instead 

by transplanting them into the 

corresponding pages of the Fee 

Schedule. In addition, the Exchange 

also proposes to amend language in 

endnote 55 which refers to the monthly 

charges for the fees for Trading Floor 

Personnel Registration Fee and the Fees 

for Certain Stock Exchange Clerks by 

removing the dollar amounts from that 

text. 

These proposed changes, as 

previously mentioned, are nonsubstantive amendments and are added 

for the sole purpose of creating a 

simplified, easily readable format for 

displaying the various fees. 

2. Statutory Basis 

The Exchange believes that its 

proposal to amend its Fee Schedule is 

consistent with Section 6(b) of the Act 5

in general, and furthers the objectives of 

Section 6(b)(4) of the Act 6 in particular, 

in that it is an equitable allocation of 

reasonable fees and other charges among 

Exchange members. The Exchange 

believes that this proposal is both 

reasonable and equitable because 

providing the members with a more 

user-friendly Fee Schedule will better 

display the allocation of fees among 

Exchange members. The Exchange 

believes that this proposed format will 

provide additional transparency of 

Exchange fees. 

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 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 either 

solicited or received. 

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) 

of the Act 7 and paragraph (f)(3) of Rule 

19b–4 8 thereunder. At any time within 

60 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–Phlx–2010–77 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–Phlx–2010–77. 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 Web site viewing and 

printing 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 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 

publicly available. All submissions 

should refer to File Number SR–Phlx– 

2010–77 and should be submitted on or 

before June 24, 2010. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.9

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. 2010–13337 Filed 6–2–10; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–62187; File No. SR– 

NYSEAmex–2010–35] 

Self-Regulatory Organizations; NYSE 

Amex LLC; Order Approving Proposed 

Rule Change To Establish NYSE Amex 

Trades and NYSE Amex BBO Services 

and Related Fees 

May 27, 2010. 

I. Introduction 

On April 1, 2010, the NYSE Amex 

LLC (‘‘NYSE Amex’’ or the ‘‘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 establish two NYSE Amex 

market data products, NYSE Amex 

Trades and NYSE Amex BBO and to 

establish market data fees for the same. 

The proposed rule change was 

published for comment in the Federal 

Register on April 22, 2010.3 The 

Commission received no comment 

letters on the proposal. This order 

approves the proposed rule change. 


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4See Securities Exchange Act Release No. 62038 

(May 5, 2010), 75 FR 26825 (May 12, 2010) (SR– 

NYSE–2010–22) (approving on a permanent basis 

the alternative unit-of-count methodology). 

II. Description of the Proposal 

a. Services 

The NYSE Amex Trades service is a 

NYSE Amex-only market data service 

that allows a vendor to redistribute on 

a real-time basis the same last sale 

information that NYSE Amex reports 

under the CTA Plan and the Reporting 

Plan for Nasdaq/National Market 

System Securities Traded on an 

Exchange on an Unlisted or Listed Basis 

(the ‘‘Nasdaq/UTP Plan’’) for inclusion 

in those Plans’ consolidated data 

streams and certain other related data 

elements (‘‘NYSE Amex Last Sale 

Information’’). NYSE Amex Last Sale 

Information would include last sale 

information for all securities that are 

traded on the Exchange and for which 

NYSE Amex reports quotes under the 

CTA Plan or the Nasdaq/UTP Plan. In 

addition, NYSE Amex Last Sale 

Information will also include a unique 

sequence number to each trade that 

allows an investor to track the context 

of the trade through other Exchange 

market data products such as NYSE 

Amex OpenBook®. The Exchange will 

make NYSE Amex Trades available over 

a single datafeed, regardless of the 

markets on which the securities are 

listed. 

NYSE Amex BBO is a NYSE Amexonly market data service that allows a 

vendor to redistribute on a real-time 

basis the same best-bid-and-offer 

information that NYSE Amex reports 

under the CQ Plan and the Nasdaq/UTP 

Plan for inclusion in the NYSE Amex 

BBO Information. NYSE Amex BBO 

Information would include the best bids 

and offers for all securities that are 

traded on the Exchange and for which 

NYSE Amex reports quotes under the 

CQ Plan or the Nasdaq/UTP Plan. The 

Exchange will make NYSE Amex BBO 

available over a single datafeed, 

regardless of the markets on which the 

securities are listed. 

Both NYSE Amex Trades and NYSE 

Amex BBO (collectively, ‘‘NYSE Amex 

Market Data’’) would allow vendors, 

broker-dealers, private network 

providers and other entities (‘‘NYSE 

Amex-Only Vendors’’) to make NYSE 

Amex Last Sale Information and NYSE 

Amex BBO Information available on a 

real-time basis. NYSE Amex-Only 

Vendors may distribute the NYSE Amex 

Trade and NYSE BBO to both 

professional and nonprofessional 

subscribers. 

The Exchange would make NYSE 

Amex Last Sale Information available 

through NYSE Amex Trades no earlier 

than it provides last sale information to 

the processors under the CTA Plan and 

Nasdaq/UTP Plan, as appropriate. The 

Exchange would make NYSE Amex 

BBO Information available through 

NYSE Amex BBO no earlier than it 

makes that information available to the 

processors under the CQ Plan and the 

Nasdaq/UTP Plan. 

b. Fees 

i. Access Fee 

For the receipt of access to the NYSE 

Amex Trades and NYSE Amex BBO, the 

Exchange proposes to charge $750 per 

month. One $750 monthly access fee 

entitles an NYSE Amex-Only Vendor to 

receive NYSE Amex Trades and NYSE 

Amex BBO. The fee applies to receipt of 

NYSE Amex Market Data within the 

NYSE Amex-Only Vendor’s 

organization or outside of it. 

ii. Professional Subscriber Fees 

For the receipt and use of NYSE 

Amex Trades, the Exchange proposes to 

charge $10 per month per professional 

subscriber device. Similarly, for the 

receipt and use of NYSE Amex BBO, the 

Exchange proposes to charge $10 per 

month per professional subscriber 

device. 

For both NYSE Amex Trades and 

NYSE Amex BBO, the Exchange 

proposes to offer an alternative 

methodology to the traditional device 

fee. Instead of charging $10 per month 

per device, it proposes to offer NYSE 

Amex-Only Vendors the option of 

paying $10 per month per ‘‘Subscriber 

Entitlement.’’ The fee entitles the enduser to receive and use NYSE Amex 

Market Data relating to all securities 

traded on NYSE Amex, regardless of the 

market on which a security is listed. For 

the purpose of calculating Subscriber 

Entitlements, the Exchange proposes to 

adopt a unit-of-count methodology that 

is the same as that approved by the 

Commission earlier this year with 

respect to its NYSE OpenBook®

service.4

Under a unit-of-count methodology, 

the Exchange would not define the 

Vendor-subscriber relationship based on 

the manner in which a datafeed 

recipient or subscriber receives data 

(i.e., through controlled displays or 

through data feeds). Instead, the 

Exchange uses billing criteria that 

defines ‘‘Vendors,’’ ‘‘Subscribers,’’ 

‘‘Subscriber Entitlements’’ and 

‘‘Subscriber Entitlement Controls’’ as the 

basis for setting professional subscriber 

fees. The Exchange believes that this 

methodology more closely aligns with 

current data consumption and will 

reduce costs for the Exchange’s 

customers. 

The following basic principles 

underlie this proposal. 

A. Vendors 

• ‘‘Vendors’’ are market data vendors, 

broker-dealers, private network 

providers and other entities that control 

Subscribers’ access to data through 

Subscriber Entitlement Controls. 

B. Subscribers 

• ‘‘Subscribers’’ are unique individual 

persons or devices to which a Vendor 

provides data. Any person or device that 

receives data from a Vendor is a 

Subscriber, whether the person or 

device works for or belongs to the 

Vendor, or works for or belongs to an 

entity other than the Vendor. 

• Only a Vendor may control 

Subscriber access to data. 

• Subscribers may not redistribute 

data in any manner. 

C. Subscriber Entitlements 

• A Subscriber Entitlement is a 

Vendor’s permissioning of a Subscriber 

to receive access to data through an 

Exchange-approved Subscriber 

Entitlement Control. 

• A Vendor may not provide data 

access to a Subscriber except through a 

unique Subscriber Entitlement. 

• The Exchange will require each 

Vendor to provide a unique Subscriber 

Entitlement to each unique Subscriber. 

• At prescribed intervals (normally 

monthly), the Exchange will require 

each Vendor to report each unique 

Subscriber Entitlement. 

D. Subscriber Entitlement Controls 

• A Subscriber Entitlement Control is 

the Vendor’s process of permissioning 

Subscribers’ access to data. 

• Prior to using any Subscriber 

Entitlement Control or changing a 

previously approved Subscriber 

Entitlement Control, a Vendor must 

provide the Exchange with a 

demonstration and a detailed written 

description of the control or change and 

the Exchange must have approved it in 

writing. 

• The Exchange will approve a 

Subscriber Entitlement Control if it 

allows only authorized, unique endusers or devices to access data or 

monitors access to data by each unique 

end-user or device. 

• Vendors must design Subscriber 

Entitlement Controls to produce an 

audit report and make each audit report 

available to the Exchange upon request. 

The audit report must identify: 

1. Each entitlement update to the 

Subscriber Entitlement Control; 


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5 In the case of derived displays, the Vendor is 

required to: (i) Pay the Exchange’s device fees; (ii) 

include derived displays in its reports of NYSE 

Amex Market Data usage; and (iii) use reasonable 

efforts to assure that any person viewing a display 

of derived data understands what the display 

represents and the manner in which it was derived. 

6The Exchange stated that it did not propose to 

establish a nonprofessional subscriber fee for NYSE 

Amex Last Sale Information because an alternative 

to that product is available. See Securities Exchange 

Act Release No. 61403 (January 22, 2010), 75 FR 

4598 (January 28, 2010) (SR–NYSEAmex–2009–85) 

(approving the NYSE Amex Realtime Reference 

Prices service). 

2. The status of the Subscriber 

Entitlement Control; and 

3. Any other changes to the 

Subscriber Entitlement Control over a 

given period. 

• Only the Vendor may have access to 

Subscriber Entitlement Controls. 

Subject to the rules described below, 

the Exchange will require NYSE AmexOnly Vendors to count every Subscriber 

Entitlement, whether it be a person or 

a device. This means that the NYSE 

Amex-Only Vendor must include in the 

count every person and device that has 

access to the data, regardless of the 

purposes for which the person or device 

uses the data. The Exchange will require 

NYSE Amex-Only Vendors to report and 

count all entitlements in accordance 

with the following rules. 

A. The count shall be separate for the 

NYSE Amex Trades and NYSE Amex 

BBO services. This means that a device 

that is entitled to receive both NYSE 

Amex Last Sale Information and NYSE 

Amex BBO Information would count as 

a Subscriber Entitlement for the 

purposes of the NYSE Amex Trades 

service and as a separate Subscriber 

Entitlement for the purposes of the 

NYSE Amex BBO service. 

B. In connection with a Vendor’s 

external distribution of either NYSE 

Amex Trades or NYSE Amex BBO), the 

NYSE Amex-Only Vendor should count 

as one Subscriber Entitlement each 

unique Subscriber that the NYSE AmexOnly Vendor has entitled to have access 

to that type of market data. However, 

where a device is dedicated specifically 

to a single person, the NYSE Amex-Only 

Vendor should count only the person 

and need not count the device. 

C. In connection with a NYSE AmexOnly Vendor’s internal distribution of a 

type of NYSE Amex Market Data, the 

NYSE Amex-Only Vendor should count 

as one Subscriber Entitlement each 

unique person (but not devices) that the 

Vendor has entitled to have access to 

that type of market data. 

D. The NYSE Amex-Only Vendor 

should identify and report each unique 

Subscriber. If a Subscriber uses the same 

unique Subscriber Entitlement to 

receive multiple services, the NYSE 

Amex-Only Vendor should count that as 

one Subscriber Entitlement. However, if 

a unique Subscriber uses multiple 

Subscriber Entitlements to gain access 

to one or more services (e.g., a single 

Subscriber has multiple passwords and 

user identifications), the Vendor should 

report all of those Subscriber 

Entitlements. 

E. The NYSE Amex-Only Vendor 

should report each Subscriber device 

serving multiple users individually as 

well as each person who may access the 

device. As an example, for a single 

device to which the NYSE Amex-Only 

Vendor has granted two people access, 

the Vendor should report three 

Subscriber Entitlements. Only a single, 

unique device that is dedicated to a 

single, unique person may be counted as 

one Subscriber Entitlement. 

F. NYSE Amex-Only Vendors should 

report each unique person who receives 

access through multiple devices as one 

Subscriber Entitlement so long as each 

device is dedicated specifically to that 

person. 

G. The NYSE Amex-Only Vendor 

should include in the count as one 

Subscriber Entitlement devices serving 

no users. 

For example, if a Subscriber’s device 

has no users or multiple users, the 

NYSE Amex-Only Vendor should count 

that device as one Subscriber 

Entitlement. If a NYSE Amex-Only 

Vendor entitles five individuals to use 

one of a Subscriber’s devices, the 

Vendor should count five individual 

entitlements and one device 

entitlement, for a total of six Subscriber 

Entitlements. If a NYSE Amex-Only 

Vendor entitles an individual to receive 

a type of NYSE Amex Market Data over 

a Subscriber device that is dedicated to 

that individual, the Vendor should 

count that as one Subscriber 

Entitlement, not two. 

iii. No Program Classification Fee 

The Exchange does not propose to 

impose any program classification 

charges for the use of NYSE Amex Last 

Sale Information or NYSE Amex BBO 

information. The Exchange recognizes 

that each NYSE Amex-Only Vendor and 

Subscriber will use NYSE Amex Market 

Data differently and that the Exchange 

is one of many markets with whom 

Vendors and Subscribers may enter into 

arrangements for the receipt and use of 

data. In recognition of that, the 

Exchange’s proposed unit-of-count 

methodology does not restrict how 

NYSE Amex-Only Vendors may use 

NYSE Amex Market Data in their 

display services and encourages 

Vendors to create and promote 

innovative uses of NYSE Amex Market 

Data. For instance, a NYSE Amex-Only 

Vendor may use NYSE Amex BBO 

information to create derived 

information displays, such as displays 

that aggregate NYSE Amex BBO 

information with quotation information 

from other markets.5

iv. Nonprofessional Subscriber Fee 

The Exchange proposes to charge each 

NYSE Amex-Only Vendor $5.00 per 

month for each nonprofessional 

subscriber to whom it provides NYSE 

Amex BBO Information. The Exchange 

proposes to impose the charge on the 

NYSE Amex-Only Vendor, rather than 

on the nonprofessional Subscriber.6 In 

addition, the Exchange proposes to 

establish as an alternative to the fixed 

$5.00 monthly fee a fee of $.005 for each 

response that a NYSE Amex-Only 

Vendor disseminates to a 

nonprofessional Subscriber’s inquiry for 

a best bid or offer under NYSE Amex 

BBO. The Exchange proposes to limit a 

NYSE Amex-Only Vendor’s exposure 

under this alternative fee to $5.00 per 

month, the same amount as the 

proposed fixed monthly 

nonprofessional Subscriber flat fee. In 

order to take advantage of the per-query 

fee, a NYSE Amex-Only Vendor must 

document in its Exhibit A that it can: (1) 

Accurately measure the number of 

queries from each nonprofessional 

Subscriber and (2) report aggregate 

query quantities on a monthly basis. 

The Exchange will impose the perquery fee only on the dissemination of 

best bids and offers to nonprofessional 

Subscribers. The per-query charge is 

imposed on NYSE Amex-Only Vendors, 

not end-users, and is payable on a 

monthly basis. NYSE Amex-Only 

Vendors may elect to disseminate NYSE 

Amex BBO pursuant to the per-query 

fee rather than the fixed monthly fee. 

In establishing a nonprofessional 

Subscriber fee for NYSE Amex BBO, the 

Exchange proposes to apply the same 

criteria for qualification as a 

‘‘nonprofessional subscriber’’ as the CTA 

and CQ Plan Participants use. Similar to 

the CTA and CQ Plans, classification as 

a nonprofessional subscriber is subject 

to Exchange review and requires the 

subscriber to attest to his or her 

nonprofessional subscriber status. A 

nonprofessional subscriber is a natural 

person who uses the data solely for his 

personal, non-business use and who is 

neither: 

A. Registered or qualified with the 

Securities and Exchange Commission, 

the Commodities Futures Trading 

Commission, any State securities 

agency, any securities exchange or 


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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). 

12NYSE Amex is an exclusive processor of NYSE 

Amex Trades and NYSE Amex BBO services 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. 

13Securities 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 in great detail the competitive factors that 

apply to non-core market data products. The 

Commission hereby incorporates by reference the 

data and analysis from the NYSE Arca Order into 

this order. 

14 Id. at 74771. 

15 Id. at 74782. 

16 Id. at 74781. 

association, or any commodities or 

futures contract market or association, 

B. Engaged as an ‘‘investment adviser’’ 

as that term is defined in Section 

202(a)(11) of the Investment Advisors 

Act of 1940 (whether or not registered 

or qualified under that act), nor 

C. Employed by a bank or other 

organization exemption from 

registration under Federal and/or State 

securities laws to perform functions that 

would require him/her to be so 

registered or qualified if he/she were to 

perform such function for an 

organization not so exempt. 

The Exchange believes that the 

proposed monthly access fee, 

professional subscriber fee and 

nonprofessional subscriber fee for NYSE 

Amex Trades and NYSE Amex BBO 

enable NYSE Amex-Only Vendors and 

their subscribers to contribute to the 

Exchange’s operating costs in a manner 

that is appropriate for the distribution of 

NYSE Amex Market Data in the form 

taken by the proposed services. 

In setting the level of the proposed 

fees, the Exchange considered several 

factors, including: 

(i) NYSE Amex’s expectation that 

NYSE Amex Trades and NYSE Amex 

BBO are likely to be premium services, 

used by investors most concerned with 

receiving NYSE Amex Market Data on a 

low latency basis; 

(ii) The fees that the CTA and CQ Plan 

Participants, the Nasdaq/UTP Plan 

Participants, Nasdaq, NYSE and NYSE 

Arca are charging for similar services (or 

that NYSE Amex anticipates they will 

soon propose to charge); 

(iii) Consultation with some of the 

entities that the Exchange anticipates 

will be the most likely to take advantage 

of the proposed service; 

(iv) The contribution of market data 

revenues that the Exchange believes is 

appropriate for entities that are most 

likely to take advantage of the proposed 

service; 

(v) The contribution that revenues 

accruing from the proposed fee will 

make to meet the overall costs of the 

Exchange’s operations; 

(vi) The savings in administrative and 

reporting costs that the NYSE Amex 

Trades and NYSE Amex BBO will 

provide to NYSE Amex-Only Vendors 

(relative to counterpart services under 

the CTA, CQ and Nasdaq/UTP Plans); 

and 

(vii) The fact that the proposed fees 

provide alternatives to existing fees 

under the CTA, CQ and Nasdaq/UTP 

Plans, alternatives that vendors will 

purchase only if they determine that the 

perceived benefits outweigh the cost. 

d. Administrative Requirements 

The Exchange will require each NYSE 

Amex-Only Vendor to enter into a 

vendor agreement just as the CTA and 

CQ Plans require recipients of the 

Network A datafeeds to enter (the 

‘‘Consolidated Vendor Form’’). The 

agreement will authorize the NYSE 

Amex-Only Vendor to provide its NYSE 

Amex Market Data service to its 

customers or to distribute the data 

internally. 

In addition, the Exchange will require 

each professional end-user that receives 

NYSE Amex Market Data from a vendor 

or broker-dealer to enter into the form 

of professional subscriber agreement 

into which the CTA and CQ Plans 

require end users of Network A data to 

enter. It will also require NYSE AmexOnly Vendors to subject 

nonprofessional subscribers to the same 

contract requirements as the CTA and 

CQ Plan Participants require of Network 

A nonprofessional subscribers. 

III. Discussion 

After careful consideration, 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.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 has reviewed the 

proposal using the approach set forth in 

the NYSE Arca Order for non-core 

market data fees.13 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.’’ 14 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.’’ 15 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.’’ 16

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 


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17See 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.’’) 

18See NYSE Arca Order at 74779. 

19 Id. 

20 Id. 

21The Commission recently published estimated 

trading percentages in NMS Stocks in its Concept 

Release on Equity Market Structure. See Securities 

Exchange Act Release No. 61358 (January 14, 2010), 

75 FR 3594, 3597 n. 21 (January 21, 2010) (File No. 

S7–02–10). 22See NYSE Arca Order at 74783. 23See 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). 

24See NYSE Arca Order at 74783. 

pursuant to joint-SRO plans.17 In 

contrast, individual exchanges and 

other market participants distribute 

non-core data voluntarily.18 The 

mandatory nature of the core data 

disclosure regime leaves little room for 

competitive forces to determine 

products and fees.19 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 603.20 Because NYSE Amex’s 

instant proposal relates to the 

distribution of non-core data, the 

Commission will apply the marketbased approach set forth in the NYSE 

Arca Order. 

The Exchange proposes to establish: 

(i) A service that would allow a vendor 

to redistribute last sale information for 

which NYSE Amex reports under the 

CTA Plan and the Nasdaq/UTP Plan; 

and (ii) a service that would allow a 

vendor to redistribute best bids and 

offers for all securities that are traded on 

the Exchange and for which NYSE 

Amex reports quotes under the CQ Plan. 

The Exchange proposes to establish a 

monthly vendor fee and an alternative 

fee rate that uses the unit-of-count 

methodology. 

The proposal before the Commission 

relates to fees for NYSE Amex Trades 

and NYSE Amex BBO which are noncore, market data products. As in the 

Commission’s NYSE Arca Order 

analysis, at least two broad types of 

significant competitive forces applied to 

NYSE Amex in setting the terms of this 

proposal: (i) NYSE Amex’s compelling 

need to attract order flow from market 

participants; and (ii) the availability to 

market participants of alternatives to 

purchasing NYSE Amex Market Data. 

Attracting order flow is the core 

competitive concern of any equity 

exchange, including NYSE Amex. 

Attracting order flow is an essential part 

of NYSE Amex’s competitive success. If 

NYSE Amex cannot attract order flow to 

its market, it will not be able to execute 

transactions. If NYSE Amex cannot 

execute transactions on its market, it 

will not generate transaction revenue. If 

NYSE Amex cannot attract orders or 

execute transactions on its market, it 

will not have market data to distribute, 

for a fee or otherwise, and will not earn 

market data revenue and thus not be 

competitive with other exchanges that 

have this ability. Table 1 below provides 

a useful recent snapshot of the state of 

competition in the U.S. equity markets 

in the month of September 2009: 21

TABLE 1—TRADING CENTERS AND ESTIMATED % OF SHAREVOLUME IN NMS STOCKS SEPTEMBER 2009 

Trading venue 

Share 

volume in 

NMS stocks 

(Percent) 

Registered Exchanges: 

NASDAQ ................................................................................................................................................................. 19.4 

NYSE ....................................................................................................................................................................... 14.7 

NYSE Arca .............................................................................................................................................................. 13.2 

BATS ....................................................................................................................................................................... 9.5 

NASDAQ OMX BX .................................................................................................................................................. 3.3 

Other Registered Exchanges .................................................................................................................................. 3.7 

ECNs ..................... 5 ECNS ................................................................................................................................................................... 10.8 

Dark Pools ............ 32 Dark Pools (Estimated) ...................................................................................................................................... 7.9 

Broker-Dealer ........ 200+ Broker-Dealers (Estimated) ........................................................................................................................... 17.5 

Internalization. 

The market share percentages in Table 

1 strongly indicate that NYSE Amex 

must compete vigorously for order flow 

to maintain its share of trading volume. 

This compelling need to attract order 

flow imposes significant pressure on 

NYSE Amex to act reasonably in setting 

its fees for NYSE Amex market data, 

particularly given that the market 

participants that must pay such fees 

often will be the same market 

participants from whom NYSE Amex 

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 seeks to charge unreasonably high 

data fees would risk alienating many of 

the same customers on whose orders it 

depends for competitive survival.22

In addition to the need to attract order 

flow, the availability of alternatives to 

NYSE Amex Market Data significantly 

affect the terms on which NYSE Amex 

can distribute this market data.23 In 

setting the fees for NYSE Amex Market 

Data, NYSE Amex must consider the 

extent to which market participants 

would choose one or more alternatives 

instead of purchasing the exchange’s 

data.24 Of course, the most basic source 

of information generally available at an 


sroberts on DSKD5P82C1PROD with NOTICES
Federal Register / Vol. 75, No. 106 / Thursday, June 3, 2010 / Notices 31505 

25 Id. 

26 Id. 

27 15 U.S.C. 78s(b)(2). 

28 17 CFR 200.30–3(a)(12). 

exchange is the complete record of an 

exchange’s transactions that is provided 

in the core data feeds.25 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.26 The 

various self-regulatory organizations, 

the several Trade Reporting Facilities of 

FINRA, and ECNs that produce 

proprietary data are all sources of 

competition. 

In sum, there are a variety of 

alternative sources of information that 

impose significant competitive 

pressures on NYSE Amex in setting the 

terms for distributing its NYSE Amex 

Market Data. The Commission believes 

that the availability of those 

alternatives, as well as NYSE Amex’s 

compelling need to attract order flow, 

imposed significant competitive 

pressure on NYSE Amex to act 

equitably, fairly, and reasonably in 

setting the terms of its proposal. 

Because NYSE Amex 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. 

V. Conclusion 

It is therefore ordered, pursuant to 

Section 19(b)(2) of the Act,27 that the 

proposed rule change (SR–NYSEAmex2010–35) be, and hereby is, approved. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.28

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. 2010–13335 Filed 6–2–10; 8:45 am] 

BILLING CODE 8010–01–P 

DEPARTMENT OF STATE 

[Public Notice: 7035] 

Defense Trade Advisory Group; Notice 

of Open Meeting 

SUMMARY: The Defense Trade Advisory 

Group (DTAG) will meet in open 

session from 1:30 p.m. to 5 p.m. on 

Wednesday, July 07, 2010, in the East 

Auditorium at the U.S. Department of 

State, Harry S. Truman Building, 

Washington DC. Entry and registration 

will begin at 12:30 p.m. Please use the 

building entrance located at 21st Street, 

NW., Washington, DC, between C & D 

Streets. The membership of this 

advisory committee consists of private 

sector defense trade representatives, 

appointed by the Assistant Secretary of 

State for Political-Military Affairs, who 

advise the Department on policies, 

regulations, and technical issues 

affecting defense trade. The purpose of 

the meeting will be to discuss current 

defense trade issues and topics for 

further study. Agenda topics will be 

posted on the Directorate of Defense 

Trade Controls’ Web site, at http:// 

www.pmddtc.state.gov 2 weeks prior to 

the meeting. 

Members of the public may attend 

this open session and will be permitted 

to participate in the discussion in 

accordance with the Chair’s 

instructions. Members of the public 

may, if they wish, submit a brief 

statement to the committee in writing. 

As access to the Department of State 

facilities is controlled, persons wishing 

to attend the meeting must notify the 

DTAG Alternate Designated Federal 

Officer (DFO) by close of business 

Wednesday, June 30, 2010. If notified 

after this date, the Department’s Bureau 

of Diplomatic Security may not be able 

to complete the necessary processing 

required to attend the plenary session. 

A person requesting reasonable 

accommodation should notify the 

Alternate DFO by the same date. Each 

non-member observer or DTAG member 

that wishes to attend this plenary 

session should provide: His/her name; 

company or organizational affiliation; 

phone number; date of birth; and 

identifying data such as driver’s license 

number, U.S. Government ID, or U.S. 

Military ID, to the DTAG Alternate DFO, 

Patricia Slygh, via e-mail at 

SlyghPC@state.gov. A RSVP list will be 

provided to Diplomatic Security. One of 

the following forms of valid photo 

identification will be required for 

admission to the Department of State 

building: U.S. driver’s license, passport, 

U.S. Government ID or other valid photo 

ID. 

FOR FURTHER INFORMATION CONTACT: 

Patricia Slygh, PM/DDTC, SA–1, 12th 

Floor, Directorate of Defense Trade 

Controls, Bureau of Political-Military 

Affairs, U.S. Department of State, 

Washington, DC 20522–0112; telephone 

(202) 663–2830; FAX (202) 261–8199; or 

e-mail SlyghPC@state.gov. 

Dated: May 27, 2010. 

Robert S. Kovac, 

Designated Federal Officer, Defense Trade 

Advisory Group, Department of State. 

[FR Doc. 2010–13378 Filed 6–2–10; 8:45 am] 

BILLING CODE 4710–25–P 

DEPARTMENT OF STATE 

[Public Notice 7034] 

Bureau of Political-Military Affairs: 

Directorate of Defense Trade Controls; 

Notifications to the Congress of 

Proposed Commercial Export Licenses 

SUMMARY: Notice is hereby given that 

the Department of State has forwarded 

the attached Notifications of Proposed 

Export Licenses to the Congress on the 

dates indicated on the attachments 

pursuant to sections 36(c) and 36(d) and 

in compliance with section 36(f) of the 

Arms Export Control Act (22 U.S.C. 

2776). 

DATES: Effective Date: As shown on each 

of the 14 letters. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Robert S. Kovac, Managing Director, 

Directorate of Defense Trade Controls, 

Bureau of Political-Military Affairs, 

Department of State (202) 663–2861. 

SUPPLEMENTARY INFORMATION: Section 

36(f) of the Arms Export Control Act 

mandates that notifications to the 

Congress pursuant to sections 36(c) and 

36(d) must be published in the Federal 

Register when they are transmitted to 

Congress or as soon thereafter as 

practicable. 

May 6, 2010 (Transmittal No. DDTC 09–141) 

Hon. Nancy Pelosi, Speaker of the House of 

Representatives 

Dear Madam Speaker: Pursuant to Sections 

36(c) and 36(d) of the Arms Export Control 

Act, I am transmitting, herewith, certification 

of a proposed amendment to a manufacturing 

license agreement for the manufacture of 

significant military equipment abroad and 

the export of firearms abroad in the amount 

of $1,000,000 or more. 

The transaction contained in the attached 

certification involves the transfer of defense 

articles, to include technical data, and 

defense services to South Korea, Qatar, 

United Arab Emirates, United Kingdom, the 

Netherlands, Thailand, Chile, and Malaysia 

for the manufacture and sale of the 

Goalkeeper Gun Mount. 

The United States Government is prepared 

to license the export of these items having 

taken into account political, military, 

economic, human rights, and arms control 

considerations. 

More detailed information is contained in 

the formal certification which, though 

unclassified, contains business information 

submitted to the Department of State by the 

applicant, publication of which could cause 

competitive harm to the United States firm 

concerned. 


sroberts on DSKD5P82C1PROD with NOTICES