Federal Register / Vol. 74, No. 102 / Friday, May 29, 2009 / Notices 25795 

19 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3See Exchange Act Rel. No. 59754 (Apr. 13, 

2009), 74 FR 18007 (Apr. 20, 2009). 

4The current FINRA rulebook consists of (1) 

FINRA Rules; (2) NASD Rules; and (3) rules 

incorporated from NYSE (‘‘Incorporated NYSE 

Rules’’) (together, the NASD Rules and Incorporated 

NYSE Rules are referred to as the ‘‘Transitional 

Rulebook’’). While the NASD Rules generally apply 

to all FINRA members, the Incorporated NYSE 

Rules apply only to those members of FINRA that 

are also members of the NYSE (‘‘Dual Members’’). 

The FINRA Rules apply to all FINRA members, 

unless such rules have a more limited application 

by their terms. For more information about the 

rulebook consolidation process, see FINRA 

Information Notice, March 12, 2008 (Rulebook 

Consolidation Process). 

5See Securities Exchange Act Release No. 40659 

(Nov. 10, 1998), 63 FR 64136 (Nov. 18, 1998) (Order 

Approving Proposed Rule Change Relating to 

Mutual Fund Breakpoint Sales). 

6NASD Special Notice to Members 02–85, NASD 

Requires Immediate Member Firm Action Regarding 

Mutual Fund Purchases and Breakpoint Schedules 

(December 2002). 

7See Joint SEC/NASD/NYSE Report of 

Examinations of Broker/Dealers Regarding 

Discounts on Front-End Sales Charges on Mutual 

Funds (March 2003), available at http:// 

www.finra.org/Industry/Issues/Breakpoints/ 

P006438. 

8See Report of the Joint NASD/Industry Task 

Force on Breakpoints (July 2003), available at 

http://www.finra.org/Industry/Issues/Breakpoints/ 

P006422. 

Securities and Exchange Commission, 

100 F Street, NE., Washington, DC 

20549–1090. 

All submissions should refer to File No. 

SR–BATS–2009–015. 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 such filing also will be 

available for inspection and copying at 

the principal office of BATS. 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 No. 

SR–BATS–2009–015 and should be 

submitted on or before June 19, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.19

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–12446 Filed 5–28–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59961; File No. SR–FINRA– 

2009–018] 

Self-Regulatory Organizations; 

Financial Industry Regulatory 

Authority, Inc.; Order Granting 

Approval of Proposed Rule Change To 

Adopt IM–2830–1 (‘‘Breakpoint’’ Sales) 

in the Consolidated FINRA Rulebook 

May 21, 2009. 

On March 26, 2009, Financial 

Industry Regulatory Authority, Inc. 

(‘‘FINRA’’) (f/k/a National Association 

of Securities Dealers, Inc. (‘‘NASD’’)) 

filed with the Securities and Exchange 

Commission (‘‘SEC’’ or ‘‘Commission’’) 

a proposed rule change pursuant to 

Section 19(b)(1) of the Securities 

Exchange Act of 1934 (‘‘Act’’) 1 and Rule 

19b–4 thereunder.2 Notice of the 

proposal was published for comment in 

the Federal Register on April 20, 2009.3

The Commission received no comments 

on the proposed rule change. This order 

approves the proposed rule change. 

I. Description of the Proposed Rule 

Change 

As part of the process of developing 

a new consolidated rulebook 

(‘‘Consolidated FINRA Rulebook’’),4

FINRA proposed to adopt NASD IM– 

2830–1 (‘‘Breakpoint’’ Sales), 

renumbered as FINRA Rule 2342, into 

the Consolidated FINRA Rulebook with 

the minor changes discussed below. 

NASD IM–2830–1 prohibits sales of 

mutual fund shares in amounts below a 

‘‘breakpoint’’ if such sales are made ‘‘so 

as to share in the higher sales charges.’’ 

In the context of mutual fund sales, a 

‘‘breakpoint’’ is that point at which the 

sales charge is reduced for quantity 

purchases of fund shares. 

The application of the standard in 

NASD IM–2830–1 depends on the facts 

and circumstances of particular 

transactions to determine whether a 

member executed a transaction for the 

purpose of earning a higher sales charge. 

In 1998, NASD IM–2830–1 was 

amended to address the use of modern 

portfolio investment strategies that 

utilize many different mutual funds 

with varying investment objectives.5

The amendments specify more precisely 

those facts and circumstances that 

FINRA will consider when examining 

whether trades that miss breakpoints, 

but are made pursuant to bona fide asset 

allocation programs, may have violated 

NASD IM–2830–1. In making such 

determinations, the rule provides that 

FINRA will consider, among other 

things, whether a member has retained 

records that demonstrate that the trade 

was executed in accordance with a bona 

fide asset allocation program that the 

member offers to its customers which is 

designed to meet their diversification 

needs and investment goals, and under 

which the member discloses to its 

customers that they may not qualify for 

breakpoint reductions that are otherwise 

available. 

Breakpoint issues have been of 

concern to the regulatory community. 

On December 23, 2002, FINRA issued 

Special Notice to Members 02–85, 

which reminded firms of their 

obligation to apply correctly breakpoint 

discounts to front-end sales load mutual 

fund transactions.6 In 2003, the staffs of 

FINRA, the SEC, and the NYSE 

conducted examinations of brokerdealers to assess their ability to deliver 

breakpoint discounts and memorialized 

the findings of those examinations in a 

joint report.7 Concurrently, FINRA staff 

and industry members formed a joint 

task force to consider issues regarding 

breakpoints. The joint task force issued 

a report in July 2003 containing 

recommendations for the industry to 

facilitate the accurate delivery of 

breakpoint discounts.8

FINRA proposed to adopt NASD IM– 

2830–1 as FINRA Rule 2342, stating it 

believes this rule continues to be an 

important tool in regulating members’ 

sales of mutual fund shares to ensure 

that they are not sold in dollar amounts 

just below breakpoints so as to share in 

higher sales charges. FINRA proposed to 

eliminate references to ‘‘just and 

equitable principles of trade’’ and make 

other minor changes to the text to reflect 

that it would be a stand-alone rule, 

rather than Interpretive Material, and to 

eliminate certain redundant text that is 

inconsistent with a rules-based format. 

FINRA stated that it will announce 

the implementation date of the 

proposed rule change in a Regulatory 

Notice to be published no later than 90 

days following Commission approval. 

mstockstill on PROD1PC66 with NOTICES

25796 Federal Register / Vol. 74, No. 102 / Friday, May 29, 2009 / Notices 

9 15 U.S.C. 78o–3(b)(6). 

10 In approving this proposal, the Commission has 

considered the proposed rule’s impact on 

efficiency, competition and capital formation. See 

15 U.S.C. 78c(f). 

11 15 U.S.C. 78s(b)(2). 

12 17 CFR 200.30–3(a)(12). 

II. Discussion and Findings 

After careful review of the proposal, 

the Commission finds that the proposed 

rule change is consistent with the 

provisions of Section 15A(b)(6) of the 

Act,9 which requires, among other 

things, that FINRA rules must be 

designed to prevent fraudulent and 

manipulative acts and practices, to 

promote just and equitable principles of 

trade, and, in general, to protect 

investors and the public interest.10 The 

Commission believes that the proposed 

rule change will continue to provide 

FINRA with an important tool in 

regulating members’ sales of mutual 

fund shares, consistent with the goals of 

protecting investors and the public 

interest. 

III. Conclusion 

It is therefore ordered, pursuant to 

Section 19(b)(2) of the Act,11 that the 

proposed rule change (SR–FINRA– 

2009–018) be, and hereby is, approved. 

For the Commission by the Division of 

Trading and Markets, pursuant to delegated 

authority.12

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–12443 Filed 5–28–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59908; File No. SR–BX– 

2009–021] 

Self-Regulatory Organizations; 

NASDAQ OMX BX, Inc.; Notice of Filing 

of Proposed Rule Change to Amend 

the Restated Certificate of 

Incorporation and By-Laws of 

NASDAQ OMX BX, Inc. 

Correction 

In notice document E9–11609, 

beginning on page 23459 in the issue of 

Tuesday, May 19, 2009, make the 

following correction: 

On page 23462, in the second column, 

in the second line, ‘‘June 8, 2009’’ 

should read ‘‘June 9, 2009’’. 

[FR Doc. Z9–11609 Filed 5–28–09; 8:45 am] 

BILLING CODE 1505–01–D 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

Notice of Applications for Certificates 

of Public Convenience and Necessity 

and Foreign Air Carrier Permits Filed 

Under Subpart B (formerly Subpart Q) 

During the Week Ending May 16, 2009 

The following Applications for 

Certificates of Public Convenience and 

Necessity and Foreign Air Carrier 

Permits were filed under Subpart B 

(formerly Subpart Q) of the Department 

of Transportation’s Procedural 

Regulations (See 14 CFR 301.201 et 

seq.). The due date for Answers, 

Conforming Applications, or Motions to 

Modify Scope are set forth below for 

each application. Following the Answer 

period DOT may process the application 

by expedited procedures. Such 

procedures may consist of the adoption 

of a show-cause order, a tentative order, 

or in appropriate cases a final order 

without further proceedings. 

Docket Number: DOT–OST–2009– 

0110. 

Date Filed: May 11, 2009. 

Due Date for Answers, Conforming 

Applications, or Motion to Modify 

Scope: June 1, 2009. 

Description: Application of Federal 

State Unitary Air Enterprise of Ministry 

For Emergency Situations of Russia 

requesting a foreign air carrier permit 

enabling it to engage in charter foreign 

air transportation of property and mail 

between a point or points in the Russian 

Federation and a point or points in the 

United States and in other charter trips 

in foreign air transportation, including 

between any point or points in the 

United States and any point or points in 

a third country or countries, subject to 

pertinent national, bilateral and 

international rules and regulations. 

Docket Number: DOT–OST–2009– 

0116. 

Date Filed: May 12, 2009. 

Due Date for Answers, Conforming 

Applications, or Motion to Modify 

Scope: June 2, 2009. 

Description: Application of Key Lime 

Air Corp. requesting commuter air 

carrier authorization so that it may 

provide scheduled passenger service 

between Denver’s Rocky Mountain 

Metropolitan Airport (BJC) and Grand 

Junction, Colorado (GJT). 

Docket Number: DOT–OST–2009– 

0120. 

Date Filed: May 14, 2009. 

Due Date for Answers, Conforming 

Applications, or Motion to Modify 

Scope: June 4, 2009. 

Description: Application of Vision 

Airlines, Inc. (‘‘Vision’’) requesting an 

amendment to its certificate of public 

convenience and necessity which would 

authorize Vision to engage in scheduled 

interstate air transportation of persons, 

property and mail with large aircraft. 

Renee V. Wright, 

Program Manager, Docket Operations, 

Federal Register Liaison. 

[FR Doc. E9–12570 Filed 5–28–09; 8:45 am] 

BILLING CODE 4910–9X–P 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

Aviation Proceedings, Agreements 

Filed the Week Ending May 16, 2009 

The following Agreements were filed 

with the Department of Transportation 

under the Sections 412 and 414 of the 

Federal Aviation Act, as amended (49 

U.S.C. 1383 and 1384) and procedures 

governing proceedings to enforce these 

provisions. Answers may be filed within 

21 days after the filing of the 

application. 

Docket Number: DOT–OST–2009– 

0113. 

Date Filed: May 11, 2009. 

Parties: Members of the International 

Air Transport Association. 

Subject: CSC/31/Meet/005/09 dated 

April 8, 2009. Finally Adopted 

Resolutions: Resolution 623 and 

Recommended Practice 1630. Intended 

effective date: 1 October 2009. 

Renee V. Wright, 

Program Manager, Docket Operations, 

Federal Register Liaison. 

[FR Doc. E9–12576 Filed 5–28–09; 8:45 am] 

BILLING CODE 4910–9X–P 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

Notice of Application for Approval of 

Discontinuance or Modification of a 

Railroad Signal System or Relief From 

the Requirements of Title 49 Code of 

Federal Regulations Part 236 

Pursuant to Title 49 Code of Federal 

Regulations (CFR) Part 235 and 49 

U.S.C. 20502(a), the following railroad 

has petitioned the Federal Railroad 

Administration (FRA) seeking approval 

for the discontinuance or modification 

of the signal system or relief from the 

requirements of 49 CFR Part 236, as 

detailed below. 

Docket Number FRA–2009–0037. 

Applicant: Norfolk Southern 

Corporation, Mr. B. L. Sykes, Chief 

Engineer C&S Engineering, 

Communications & Signal Department, 

mstockstill on PROD1PC66 with NOTICES