52436 Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Notices 

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

16 17 CFR 240.19b–4(f)(6). 

17 17 CFR 240.19b–4(f)(6)(iii). In addition, Rule 

19b–4(f)(6)(iii) requires the self-regulatory 

organization to give the Commission notice of its 

intent to file the proposed rule change, along with 

a brief description and text of the proposed rule 

change, at least five business days prior to the date 

of filing of the proposed rule change, or such 

shorter time as designated by the Commission. 

18 17 CFR 240.19b–4(f)(6)(iii). 

19See Email from Lisa J. Fall, General Counsel 

and Corporate Secretary, BOX, to Molly Kim, 

Special Counsel, Division of Trading and Markets, 

Commission, on August 29, 2008. 

20For purposes only of waiving the 30-day 

operative delay, the Commission has considered the 

proposed rule’s impact on efficiency, competition, 

and capital formation. 15 U.S.C. 78c(f). 

21See 15 U.S.C. 78s(b)(3)(C). 22 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

interest; (ii) impose any significant 

burden on competition; and (iii) become 

operative for 30 days from the date on 

which it was filed, or such shorter time 

as the Commission may designate if 

consistent with the protection of 

investors and the public interest, it has 

become effective pursuant to section 

19(b)(3)(A) of the Act15 and Rule 19b–

4(f)(6) thereunder.16

A proposed rule change filed under 

Rule 19b–4(f)(6) normally may not 

become operative prior to 30 days after 

the date of filing.17 However, Rule 19b–

4(f)(6)(iii) permits the Commission to 

designate a shorter time if such action 

is consistent with the protection of 

investors and the public interest.18 The 

Exchange has requested that the 

Commission waive the 5-day pre-filing 

requirement and the 30-day operative 

delay.19 The Commission believes that 

waiving the 5-day pre-filing requirement 

and the 30-day operative delay is 

consistent with the protection of 

investors and the public interest 

because BSE has represented that the 

Instruments of Accession will be 

executed on August 29, 2008, and there 

is no reason to delay implementation of 

the changes to the BOX LLC Agreement 

pursuant to the Instruments of 

Accession. For these reasons, the 

Commission designates the proposal to 

be operative upon filing with the 

Commission.20

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.21

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–BSE–2008–43 on the 

subject line. 

Paper Comments 

• Send paper comments in triplicate 

to Secretary, Securities and Exchange 

Commission, 100 F Street, NE., 

Washington, DC 20549–1090. 

All submissions should refer to File 

Number SR–BSE–2008–43. 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 also will be available 

for inspection and copying at the 

principal office of the BSE. 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–BSE–2008–43 and should 

be submitted on or before September 30, 

2008. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.22

Florence E. Harmon, 

Acting Secretary. 

[FR Doc. E8–20869 Filed 9–8–08; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–58443; File No. SR–NYSE–

2008–79] 

Self-Regulatory Organizations; New 

York Stock Exchange LLC; Notice of 

Filing and Order Granting Accelerated 

Approval of Proposed Rule Change to 

Reduce the Monthly Fee for NYSE 

Realtime Reference Prices 

August 29, 2008. 

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 August 

28, 2008, the New York Stock Exchange 

LLC (the ‘‘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. The 

Commission is publishing this notice to 

solicit comments on the proposed rule 

change from interested persons, and is 

approving the proposal on an 

accelerated basis. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange proposes to reduce the 

fixed monthly fee that applies to its 

‘‘NYSE Realtime Reference Prices’’

service, a service that the Exchange is 

currently providing on a pilot test basis. 

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 

‘‘NYSE Realtime Reference Prices 


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Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Notices 52437 

3See Securities Exchange Act Release No. 57966 

(June 16, 2008), 73 FR 35182 (June 20, 2008). 

4The 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. 

Filing’’),3 the Exchange established a 

pilot program to provide a new NYSEonly 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. The 

Exchange intends for the NYSE 

Realtime Reference Prices service to 

provide a low-cost service that will 

make real-time prices widely available 

to many millions of casual investors, to 

provide vendors with a real-time 

substitute for delayed prices, and to 

relieve vendors of all administrative 

burdens. 

The pilot program, which is currently 

scheduled to terminate on November 1, 

2008, allows internet service providers, 

traditional market data vendors, and 

others (‘‘NYSE-Only Vendors’’) to make 

available NYSE Realtime Reference 

Prices on a real-time basis.4 NYSE 

Realtime Reference Prices information 

includes last sale prices for all securities 

that are traded on the Exchange. It 

includes only prices. It does not include 

the size of each trade and does not 

include bid/asked quotations. 

During the pilot program, the 

Exchange will not permit NYSE-Only 

Vendors to provide NYSE Realtime 

Reference Prices in a context in which 

a trading or order-routing decision can 

be implemented unless the NYSE-Only 

Vendor also provides consolidated 

displays of Network A last sale prices 

available in an equivalent manner, as 

Rule 603(c)(1) of Regulation NMS 

requires. 

The NYSE Realtime Reference Price 

pilot program features a flat, fixed 

monthly vendor fee, no user-based fees, 

no vendor reporting requirements, and 

no professional or non-professional 

subscriber agreements. For the duration 

of the pilot program, the Exchange 

established a monthly flat fee that 

entitles a vendor to receive access to the 

NYSE Realtime Reference Prices 

datafeed. The vendor may use that 

access to provide unlimited NYSE 

Realtime Reference Prices to an 

unlimited number of the vendor’s 

subscribers and customers. 

The Exchange set the flat fee at 

$100,000 per month. The purpose of 

this proposed rule change is to reduce 

the flat monthly fee from $100,000 to 

$70,000. This fee enables vendors to 

make NYSE Realtime Reference Prices 

available without having to differentiate 

between professional subscribers and 

nonprofessional subscribers, without 

having to account for the extent of 

access to the data, and without having 

to report the number of users. 

The Exchange believes that the 

existing fee enables internet service 

providers and traditional vendors that 

have large numbers of casual investors 

as subscribers and customers to 

contribute to the Exchange’s operating 

costs in a manner that is appropriate for 

their means of distribution. After 

consultation with some of the entities 

that have shown the most interest in the 

service, and after a few months of 

experience with the product, the 

Exchange believes that the proposed 

reduction in NYSE Realtime Reference 

Prices pilot program fees will make the 

product more attractive to vendors. An 

increase in the number of vendors that 

determine to provide free access to 

NYSE Realtime Reference prices to their 

internet users would benefit the 

investment community. The fee 

reduction will also respond to the price 

competition provided by alternative 

exchanges, ECNs and the market for 

delayed data. In addition, it will better 

reflect the perceived value of the NYSE 

product and provide a more equitable 

allocation of the Exchange’s overall 

costs to users of its facilities. 

In modifying the level of the NYSE 

Realtime Reference Prices pilot program 

fee, the Exchange also took into 

consideration such other factors as: 

(1) The fees that Nasdaq and other 

markets are charging for similar 

services; 

(2) The contribution of market data 

revenues that the Exchange believes is 

appropriate for entities that provide 

market data to large numbers of 

investors, which are the entities most 

likely to take advantage of the proposed 

fees; 

(3) The contribution that revenues 

accruing from the proposed fees will 

make to meeting the overall costs of the 

Exchange’s operations; 

(4) Projected losses to the Exchange’s 

other sources of market data revenues 

(e.g., from its share of revenues derived 

from Network A nonprofessional 

subscriber fees) as a result of the NYSE 

Realtime Reference Prices service 

competing with those services; 

(5) The savings in administrative and 

reporting costs that the NYSE Realtime 

Reference Prices service will provide to 

NYSE-Only Vendors; and 

(6) The fact that the proposed fees 

provide an alternative to existing 

Network A fees under the CTA Plan, an 

alternative that vendors will purchase 

only if they determine that the 

perceived benefits outweigh the cost. 

Prior to the end of the pilot program 

period, the Exchange will assess its 

experience with the product. It either 

will submit a proposed rule change that 

seeks to extend or modify the pilot 

program or to make it permanent, or 

will announce publicly that it does not 

seek to extend the pilot program beyond 

the pilot 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) 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. In light 

of the Exchange’s experience with the 

NYSE Realtime Reference Prices pilot 

program and after consultation with 

entities participating in the pilot 

program, the Exchange believes that the 

proposed reduction of the NYSE 

Realtime Reference Prices fee is 

equitable. 

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 discussed the 

proposed rules change with entities that 

are participating in the pilot program. 

While those entities have not submitted 

formal, written comments on the 

proposal, the Exchange has consulted 

with them regarding the NYSE Realtime 

Reference Prices fee and the proposed 

rule change reflects their input. 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–2008–79 on the 

subject line. 


jlentini on PROD1PC65 with NOTICES
52438 Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Notices 

5 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). 

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

7 15 U.S.C. 78f(b)(5). 

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

9 17 CFR 242.603(a). 

10NYSE 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. 

11See Securities Exchange Act Release No. 57917 

(June 4, 2008), 73 FR 32751 (June 10, 2008) (Notice 

of Proposed Order Approving Proposal by NYSE 

Arca, Inc. to Establish Fees for Certain Market Data 

and Request for Comment) (‘‘Draft Approval 

Order’’). 

12 15 U.S.C. 78s(b)(2). 

13 17 CFR 200.30–3(a)(12). 

Paper Comments 

• Send paper comments in triplicate 

to Secretary, Securities and Exchange 

Commission, 100 F Street, NE., 

Washington, DC 20549–1090. 

All submissions should refer to File 

Number SR–NYSE–2008–79. 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–NYSE–

2008–79 and should be submitted on or 

before September 30, 2008. 

IV. Commission’s Findings and Order 

Granting Accelerated Approval of a 

Proposed Rule Change 

The Commission finds that the 

proposed rule change, to be 

implemented for the remainder of the 

pilot period, is consistent with the 

requirements of the Act and the rules 

and regulations thereunder applicable to 

a national securities exchange.5 In 

particular, it is consistent with section 

6(b)(4) of the Act,6 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,7

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,8 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,9 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.10

The Commission notes that the 

proposal reduces the flat monthly fee for 

NYSE Realtime Reference Prices from 

$100,000 per month to $70,000 per 

month without reducing the amount of 

data received through NYSE Realtime 

Reference Prices. In addition, the 

Commission notes that the reduced fee 

will apply for the remainder of the pilot 

period. The Commission approved the 

fee for NYSE Realtime Reference Prices 

for a pilot period which runs until 

October 31, 2008. On June 4, 2008, the 

Commission approved for public 

comment a draft approval order that sets 

forth a market-based approach for 

analyzing proposals by self-regulatory 

organizations to impose fees for ‘‘noncore’’ market data products that would 

encompass the NYSE Realtime 

Reference Prices.11 The Commission 

believes that the proposal is consistent 

with the Act for the reasons noted 

preliminarily in the Draft Approval 

Order. Pending review by the 

Commission of comments received on 

the Draft Approval Order, and final 

Commission action thereon, the 

Commission believes that approving 

NYSE’s proposal to reduce the monthly 

fee for the remainder of the pilot period 

would be beneficial to investors and in 

the public interest, in that it should 

result in increased broad public 

dissemination of real-time pricing 

information. The broader approach 

ultimately taken by the Commission 

with respect to non-core market data 

fees will necessarily guide Commission 

action regarding fees for the NYSE 

Realtime Reference Prices beyond the 

pilot period. 

The Commission notes that the 

Exchange reconsidered the original 

factors it used to establish the fee for 

NYSE Realtime Reference Prices in 

determining the proposed reduced flat 

monthly fee. In addition, the 

Commission notes that the Exchange’s 

experience with NYSE Realtime 

Reference Prices, consultation with 

entities that have shown the most 

interest in NYSE Realtime Reference 

Prices, and price competition provided 

by other market data products were 

considered by NYSE in determining to 

reduce the flat monthly fee. 

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 should benefit 

investors by facilitating their access to 

widespread, free, real-time pricing 

information contained in the NYSE 

Realtime Reference Prices. In addition, 

the Commission notes that the proposal 

should benefit vendors that make realtime pricing information available by 

reducing their monthly fees. Therefore, 

the Commission finds good cause, 

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

Act,12 to approve the proposed rule 

change on an accelerated basis only for 

a pilot period to expire on October 31, 

2008, while the Commission analyzes 

comments on the Draft Approval Order. 

V. Conclusion 

It is therefore ordered, pursuant to 

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

proposed rule change (SR–NYSE–2008–

79) is hereby approved on an 

accelerated basis until October 31, 2008. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.13

Florence E. Harmon, 

Acting Secretary. 

[FR Doc. E8–20807 Filed 9–8–08; 8:45 am] 

BILLING CODE 8010–01–P 


jlentini on PROD1PC65 with NOTICES