Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Notices 22989 

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

2 17 CFR 240.19b–4. 

3See Securities Exchange Act Release No. 59681 

(April 1, 2009), 74 FR 16017. 

4See Securities Exchange Act Release No. 59544 

(March 9, 2009), 74 FR 11162 (March 16, 2009) (SR– 

NYSE–2008–131). 

5 In approving this proposed rule change, the 

Commission notes that it has considered the 

proposed rule’s impact on efficiency, competition, 

and capital formation. 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 NYSE depthof-book 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 information with respect to quotations 

or transactions on an exclusive basis on its own 

behalf. 

11Securities 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. 

12See Securities Exchange Act Release No. 59544 

(March 9, 2009), 74 FR 11162 (March 16, 2009) (SR– 

NYSE–2008–131). 

13 15 U.S.C. 78s(b)(2). 

Office Building, Washington, DC 20503 

or send an e-mail to Shagufta Ahmed at 

Shagufta_Ahmed@omb.eop.gov; and (ii) 

Charles Boucher, Director/CIO, 

Securities and Exchange Commission, 

C/O Shirley Martinson, 6432 General 

Green Way, Alexandria, VA 22312; or 

send an e-mail to: 

PRA_Mailbox@sec.gov. Comments must 

be submitted to OMB within 30 days of 

this notice. 

Dated: May 11, 2009. 

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–11361 Filed 5–14–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59898; File No. SR–NYSE– 

2009–37] 

Self-Regulatory Organizations; New 

York Stock Exchange LLC; Order 

Approving Proposed Rule Change 

Implementing a Cap on Vendors’ 

Administrative Charges for NYSE 

OpenBook 

May 11, 2009. 

I. Introduction 

On March 26, 2009, the New York 

Stock Exchange LLC (‘‘NYSE’’ or 

‘‘Exchange’’) filed with the Securities 

and Exchange Commission 

(‘‘Commission’’), pursuant to Section 

19(b)(1) of the Securities Exchange Act 

of 1934 (the ‘‘Act’’),1 and Rule 19b–4 

thereunder,2 a proposed rule change to 

introduce a cap on the monthly charges 

that broker-dealers 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 

proposed rule change was published for 

comment in the Federal Register on 

April 8, 2009.3 The Commission 

received no comments on the proposal. 

This order approves the proposed rule 

change. 

II. Description of the Proposal 

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. A one-year pilot program to 

simplify and modernize market data 

administration (the ‘‘Unit of Count 

Filing’’) was recently approved for its 

NYSE OpenBook product packages.4

The Unit of Count Filing redefined 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. 

Under the proposal, the Exchange 

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. 

III. Discussion and Commission 

Findings 

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.5 In 

particular, the Commission finds that 

the proposal is consistent with Section 

6(b)(4) of the Act,6 which requires 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) 7 that the rules of an 

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

This proposal would cap the fees for 

NYSE OpenBook when used by vendors 

for administrative purposes. The 

Commission has reviewed the proposal 

using the approach set forth in the 

NYSE Arca Order for non-core market 

data fees.11 The Commission recently 

found that NYSE was subject to 

significant competitive forces in setting 

fees for its depth-of-book order data in 

the Unit of Count Filing.12 There are a 

variety of alternative sources of 

information that impose significant 

competitive pressures on the NYSE in 

setting the terms for distributing its 

depth-of-book order data. The 

Commission believes that the 

availability of those alternatives, as well 

as the NYSE’s compelling need to attract 

order flow, imposed significant 

competitive pressure on the NYSE to act 

equitably, fairly, and reasonably in 

setting the terms of its proposal. 

Because the NYSE 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. 

IV. Conclusion 

It is therefore ordered, pursuant to 

Section 19(b)(2) of the Act,13 that the 

proposed rule change (SR–NYSE–2009– 

37) is hereby approved. 

22990 Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Notices 

14 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3A P/A Order, is an order for the principal 

account of a specialist (or equivalent entity on 

another Participant Exchange that is authorized to 

represent Public Customer orders), reflecting the 

terms of a related unexecuted Public Customer 

order for which the specialist is acting as agent. See 

Exchange Rule 1083(k)(i). 

4A P Order is an order for the principal account 

of an Eligible Market Maker. See Exchange Rule 

1083(k)(ii). 

5See Securities Exchange Act Release Nos. 43086 

(July 28, 2000), 65 FR 48023 (August 4, 2000) (order 

approving the Plan) and 43573 (November 16, 

2000), 65 FR 70851 (November 28, 2000) (order 

approving Phlx as a participant in the Plan). 

6See Securities Exchange Act Release No. 59669 

(April 1, 2009), 74 FR 16026. 

7See Securities Exchange Act Release No. 58144 

(July 11, 2008), 73 FR 41394 (July 18, 2008) (SR– 

Phlx–2008–49). 

8 In approving this proposed rule change, the 

Commission notes that it has considered the 

proposed rule’s impact on efficiency, competition, 

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

9 15 U.S.C. 78f(b)(4). 

10 15 U.S.C. 78s(b)(2). 

11 17 CFR 200.30–3(a)(12). 

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

2 15 U.S.C. 78a. 

3 17 CFR 240.19b–4. 

4 15 U.S.C. 78s(b)(3)(A). 

5 17 CFR 240.19b–4(f)(2). 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.14

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–11356 Filed 5–14–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59891; File No. SR–Phlx– 

2009–24] 

Self-Regulatory Organizations; 

NASDAQ OMX PHLX, Inc.; Order 

Approving Proposed Rule Change, as 

Modified by Amendment No. 1 Thereto, 

Increasing Transaction Fees for 

Linkage Inbound Principal Orders and 

Principal Acting as Agent Orders 

May 8, 2009. 

I. Introduction 

On March 24, 2009, the NASDAQ 

OMX PHLX, Inc. (‘‘Phlx’’ or 

‘‘Exchange’’) filed with the Securities 

and Exchange Commission 

(‘‘Commission’’), pursuant to Section 

19(b)(1) of the Securities Exchange Act 

of 1934 (the ‘‘Act’’),1 and Rule 19b–4 

thereunder,2 a proposed rule change 

seeking to increase transaction fees 

applicable to the execution of Principal 

Acting as Agent Orders (‘‘P/A Orders’’) 3

and Principal Orders (‘‘P Orders’’) 4 sent 

to the Exchange via the Intermarket 

Options Linkage (‘‘Linkage’’) under the 

Plan for the Purpose of Creating and 

Operating an Intermarket Option 

Linkage (the ‘‘Plan’’).5 On March 26, 

2009, Phlx submitted Amendment No. 1 

to the proposed rule change. The 

proposed rule change was published for 

comment in the Federal Register on 

April 8, 2009.6 The Commission 

received no comments on the proposal. 

This order approves the proposed rule 

change, as amended. 

II. Description of the Proposal 

The Exchange proposes to amend the 

Equity Options Fees portion of its fee 

schedule relating to transaction fees 

applicable to the execution of P/A 

Orders and P Orders sent to the Linkage 

under the Plan. Specifically, the 

Exchange proposes to increase its 

transaction fees for P/A Orders from the 

current $0.15 per option contract to 

$0.30 per option contract, and for P 

Orders from the current $0.25 per 

option contract to $0.45 per contract. 

This proposal is part of an existing pilot 

program, which is scheduled to expire 

July 31, 2009.7

The Exchange states that the purpose 

of the proposed rule change is to raise 

revenue for the Exchange. The Exchange 

also represents that, consistent with 

current practice, the Exchange: (i) Will 

charge the clearing member organization 

of the sender of P Orders and P/A 

Orders; and (ii) will not charge for the 

execution of Satisfaction Orders sent 

through Linkage. 

The Exchange also proposes a 

technical amendment to the schedule of 

Equity Option Fees by correcting a 

typographical error, changing the word 

‘‘overlaying’’ to read ‘‘overlying.’’ 

III. Discussion and Commission 

Findings 

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.8 In 

particular, the Commission finds that 

the proposal is consistent with Section 

6(b)(4) of the Act,9 which requires 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. The Commission notes that 

the Options Linkage fees are assessed 

pursuant to a pilot scheduled to end on 

July 31, 2009 and that the Commission 

is continuing to evaluate whether such 

fees are appropriate. 

IV. Conclusion 

It is therefore ordered, pursuant to 

Section 19(b)(2) of the Act,10 that the 

proposed rule change (SR–Phlx–2009– 

24), as amended, is hereby approved. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.11

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–11357 Filed 5–14–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59893; File No. SR– 

NYSEArca–2009–38] 

Self-Regulatory Organizations; NYSE 

Arca, Inc.; Notice of Filing and 

Immediate Effectiveness of Proposed 

Rule Change Implementing Fee 

Change 

May 8, 2009. 

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

Securities Exchange Act of 1934 (the 

‘‘Act’’) 2 and Rule 19b–4 thereunder,3

notice is hereby given that on April 30, 

2009, NYSE Arca, Inc. (‘‘NYSE Arca’’ or 

the ‘‘Exchange’’) 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 self-regulatory organization. 

NYSE Arca filed the proposal pursuant 

to Section 19(b)(3)(A) 4 of the Act and 

Rule 19b–4(f)(2) 5 thereunder. 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 amend its 

Schedule of Fees and Charges for 

Exchange Services (the ‘‘Schedule’’). 

While changes to the Schedule pursuant 

to this proposal will be effective upon 

filing, the changes will become 

operative on May 1, 2009. A copy of this 

filing is available on the Exchange’s 

Web site at http://www.nyse.com, at the 

Exchange’s principal office and at the 

Commission’s Public Reference Room. 

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