Federal Register / Vol. 74, No. 106 / Thursday, June 4, 2009 / Notices 26905 

11 15 U.S.C. 78s(b)(3)(A). 

12 17 CFR 240.19b–4(f)(6). 

13 17 CFR 240.19b–4(f)(6)(iii). In addition, Rule 

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

organization submit to the Commission written 

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. The Exchange has satisfied this 

requirement. 

14 Id. 

15See Securities Exchange Act Release No. 58179 

(July 17, 2008), 73 FR 42874 (July 23, 2008) (SR– 

Phlx–2008–31). 

16See SR–BX–2009–026, Items 2 and 7. 

17For the purposes only of waiving the 30-day 

operative delay, the Commission has considered the 

proposed rule’s impact on efficiency, competition, 

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

18 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

inbound routing of orders from PHLX to 

BOX through NOS in accordance with 

the terms and conditions governing 

order routing that have been approved 

by the Commission with respect to 

routing of orders from NOM through 

NOS. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

The Exchange does not believe that 

the proposed rule change will result in 

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 

Written comments on the proposed 

rule change were neither solicited nor 

received. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

Because the proposed rule change: (i) 

Does not significantly affect the 

protection of investors or the public 

interest; (ii) does not impose any 

significant burden on competition; and 

(iii) does not become operative for 30 

days after the date of the filing, or such 

shorter time as the Commission may 

designate if consistent with the 

protection of investors and the public 

interest, the proposed rule change has 

become effective pursuant to Section 

19(b)(3)(A) of the Act 11 and Rule 19b– 

4(f)(6) thereunder.12

A proposed rule change filed under 

19b–4(f)(6) normally may not become 

operative prior to 30 days after the date 

of filing.13 However, Rule 19b– 

4(f)(6)(iii) 14 permits the Commission to 

designate a shorter time if such action 

is consistent with the protection of 

investors and the public interest. The 

Exchange has requested that the 

Commission waive the 30-day operative 

delay. The Commission notes that the 

Exchange’s proposal is substantially 

similar to the proposal of another 

national securities exchange previously 

approved by the Commission and does 

not raise any new substantive issues.15

The Exchange proposes to implement 

the proposed rule change when PHLX 

implements its XLII trading system, and 

states that waiving the operative delay 

will ensure that the Exchange is able to 

implement the proposed rule change at 

such time.16 For these reasons, the 

Commission believes that waiving the 

30-day operative delay is consistent 

with the protection of investors and the 

public interest, and designates the 

proposed rule change to be operative 

upon filing with the Commission.17

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–BX–2009–026 on the 

subject line. 

Paper Comments 

• Send paper comments in triplicate 

to Elizabeth M. Murphy, Secretary, 

Securities and Exchange Commission, 

100 F Street, NE., Washington, DC 

20549–1090. 

All submissions should refer to File 

Number SR–BX–2009–026. 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 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–BX–2009–026 and should 

be submitted on or before June 25, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.18

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–12999 Filed 6–3–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–60004; File No. SR–NYSE– 

2009–42] 

Self-Regulatory Organizations; New 

York Stock Exchange LLC; Order 

Approving the Proposed Rule Change 

Implementing NYSE Realtime 

Reference Prices Service on a 

Permanent Basis 

May 29, 2009. 

I. Introduction 

On April 16, 2009, the New York 

Stock Exchange LLC (‘‘NYSE’’ 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 the NYSE Realtime Reference 

Prices service on a permanent basis and 

to establish a flat monthly fee for that 

service. The proposed rule change was 

published for comment in the Federal 

26906 Federal Register / Vol. 74, No. 106 / Thursday, June 4, 2009 / Notices 

3See Securities Exchange Act Release No. 59791 

(April 20, 2009), 74 FR 18755. 4See Securities Exchange Act Release Nos. 57966 

(June 16, 2008), 73 FR 35182 (June 20, 2008) (SR– 

NYSE–2007–04) and 58443 (August 29, 2008), 73 

FR 52436 (September 9, 2008) (SR–NYSE–2008–79). 

The Exchange initially proposed to end the pilot 

program on November 1, 2008. The Commission 

has approved three extensions of the end date for 

the pilot program, which expires on June 30, 2009. 

See Securities Exchange Act Release Nos. 58893 

(October 31, 2008), 73 FR 66093 (November 6, 2008) 

(SR–NYSE–2008–113); 59185 (December 30, 2008), 

74 FR 749 (January 7, 2009) (SR–NYSE–2008–141); 

and 59653 (March 30, 2009), 74 FR 15536 (April 6, 

2009) (SR–NYSE–2009–34). 

5The 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. 

6 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). 

7 15 U.S.C. 78f(b)(4). 

8 15 U.S.C. 78f(b)(5). 

9 15 U.S.C. 78f(b)(8). 

10 17 CFR 242.603(a). 

11NYSE is an exclusive processor of the NYSE 

Realtime Reference Prices service 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. 

Register on April 24, 2009.3 The 

Commission received no comment 

letters on the proposal. This order 

approves the proposed rule change. 

II. Description of the Proposal 

The Exchange proposes to establish 

the NYSE Realtime Reference Prices 

service on a permanent basis and to 

establish a flat monthly fee for that 

service. The Exchange currently 

provides this service pursuant to a pilot 

program.4 The service allows a vendor 

to redistribute, on a real-time basis last 

sale prices of transactions that take 

place on the Exchange (‘‘NYSE Realtime 

Reference Prices’’). The Exchange has 

found that the pilot program provides a 

low-cost service that makes real-time 

prices widely available to casual 

investors, provides vendors with a 

useful real-time substitute for delayed 

prices, and relieves vendors of 

administrative burdens. The product is 

intended to be used for reference 

purposes, rather than as a basis for 

making trading decisions. 

The Service 

The NYSE Realtime Reference Prices 

service allows Internet service 

providers, traditional market data 

vendors, and others (collectively, 

‘‘NYSE-Only Vendors’’) to make 

available NYSE Realtime Reference 

Prices on a real-time basis.5 The NYSE 

Realtime Reference Price information 

includes last sale prices for all securities 

that trade on the Exchange. The product 

includes only prices, and does not 

include the size of each trade or bid/ 

asked quotations. 

As with the pilot program, under the 

permanent service 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 

required by Rule 603(c)(1) of Regulation 

NMS. 

Also, as with the pilot program, the 

permanent service is intended to 

eliminate certain administrative 

burdens associated with the distribution 

of real-time CTA prices. Specifically, 

the permanent service would feature the 

same flat, fixed monthly vendor fee, no 

user-based fees, no vendor reporting 

requirements, and no professional or 

non-professional subscriber agreements. 

The Fee 

The Exchange proposes to retain the 

current $70,000 monthly flat access fee 

for the NYSE Realtime Reference Prices 

service. For that fee, the NYSE-Only 

Vendor may provide unlimited NYSE 

Realtime Reference Prices to an 

unlimited number of the NYSE-Only 

Vendor’s subscribers and customers. 

The pilot program does not impose any 

device or end-user fee for the NYSEOnly Vendors’ distribution of NYSE 

Realtime Reference Prices and the 

Exchange is not proposing to add any 

new fees for the permanent service. 

As with the pilot program, the 

Exchange proposes to require the NYSEOnly Vendor to identify the NYSE trade 

price by placing the text ‘‘NYSE Data’’ 

in close proximity to the display of each 

NYSE Realtime Reference Price or series 

of NYSE Realtime Reference Prices, or 

by complying with such other 

identification requirement as to which 

NYSE may agree. The NYSE-Only 

Vendor may 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. 

Contracts 

As with the pilot program, NYSE 

proposes to allow NYSE-Only Vendors 

to provide NYSE Realtime Reference 

Prices without requiring the end-users 

to enter into contracts for the benefit of 

the Exchange. Instead, the Exchange 

proposes to require NYSE-Only Vendors 

to provide a readily visible hyperlink 

that will send the end-user to a warning 

notice about the end-user’s receipt and 

use of market data. The notice would be 

similar to the notice that vendors 

provide today when providing CTA 

delayed data services. 

The Exchange will require NYSEOnly Vendors to enter into the form of 

‘‘vendor’’ agreement into which the 

CTA and CQ Plans require recipients of 

the Network A datafeeds to enter (the 

‘‘Network A Vendor Form’’). The 

Network A Vendor Form will authorize 

the NYSE-Only Vendor to provide the 

NYSE Realtime Reference Prices service 

to its subscribers and customers. The 

Exchange will supplement the Network 

A Vendor Form with an Exhibit C that 

will provide terms and conditions that 

are unique to the NYSE Realtime 

Reference Prices service. 

III. Discussion and Commission 

Findings 

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.6 In particular, it is consistent 

with Section 6(b)(4) of the Act,7 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,8 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,9 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,10 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.11

Federal Register / Vol. 74, No. 106 / Thursday, June 4, 2009 / Notices 26907 

12See supra note 4. 

13See Securities 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 the competitive factors that apply to noncore market data products. The Commission hereby 

incorporates by reference the data and analysis from 

the NYSE Arca Order into this order. In addition, 

the Commission notes that it recently found that 

NYSE was subject to competitive forces when 

setting the terms of its NYSE OpenBook 

nonprofessional subscriber fee. See Securities 

Exchange Act Release No. 59544 (March 9, 2009), 

74 FR 11162 (March 16, 2009) (SR–NYSE–2008– 

131). 

14 15 U.S.C. 78s(b)(2). 

15 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)(6). 

6See Securities Exchange Act Release No. 59383 

(February 11, 2009), 74 FR 7947 (February 20, 2009) 

(SR–NYSE–2009–07). 

7See Securities Exchange Act Release No. 58673 

(September 29, 2008), 73 FR 57707 (October 3, 

2008) (SR–NYSE–2008–60 and SR–Amex 2008–62) 

(approving the Merger). 

8 15 U.S.C. 78f. 

9See Securities Exchange Act Release No. 58705 

(October 1, 2008), 73 FR 58995 (October 8, 2008) 

(SR–Amex 2008–63) (approving the Equities 

Relocation). 

10See Securities Exchange Act Release No. 58705 

(October 1, 2008), 73 FR 58995 (October 8, 2008) 

(SR–Amex 2008–63) (approving the Equities 

Continued 

This proposal would make permanent 

the NYSE Realtime Reference Prices 

service and make permanent the 

$70,000 flat monthly fee for that 

service.12 The Commission has 

reviewed the proposal using the 

approach set forth in the NYSE Arca 

Order for non-core market data fees.13

There are a variety of alternative sources 

of information that impose significant 

competitive pressures on NYSE in 

setting the terms for distributing the 

NYSE Realtime Reference Prices service. 

The Commission believes that the 

availability of those alternatives, as well 

as NYSE’s compelling need to attract 

order flow, imposed significant 

competitive pressure on NYSE to act 

equitably, fairly, and reasonably in 

setting the terms of its proposal. 

Because 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,14 that the 

proposed rule change (SR–NYSE–2009– 

42), be, and it hereby is, approved. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.15

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–13001 Filed 6–3–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–60001; File No. SR– 

NYSEAmex–2009–21] 

Self-Regulatory Organizations; Notice 

of Filing and Immediate Effectiveness 

of Proposed Rule Change by NYSE 

Amex LLC Amending NYSE Amex 

Equities Rule 123E To Be More 

Consistent With the Exchange’s 

Current Designated Market Maker 

System 

May 29, 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 May 22, 

2009, NYSE Amex LLC (the ‘‘Exchange’’ 

or ‘‘NYSE Amex’’) filed with the 

Securities and Exchange Commission 

(the ‘‘Commission’’) the proposed rule 

change as described in Items I and II 

below, which Items have been prepared 

by the Exchange. NYSE Amex filed the 

proposed rule change pursuant to 

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

19b–4(f)(6) thereunder,5 which renders 

it effective upon filing with the 

Commission. 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 

NYSE Amex Equities Rule 123E (‘‘DMM 

Combination Review Policy’’) to be 

more consistent with the Exchange’s 

current Designated Market Maker 

(‘‘DMM’’) system. The text of the 

proposed rule change is available at the 

Exchange, the Commission’s Public 

Reference Room, and http:// 

www.nyse.com. 

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, the 

self-regulatory organization included 

statements concerning the purpose of, 

and basis for, the proposed rule change 

and discussed any comments it received 

on the proposed rule change. The text 

of those statements may be examined at 

the places specified in Item IV below. 

The Exchange has prepared summaries, 

set forth in sections A, B, and C below, 

of the most significant parts of such 

statements. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

The Exchange proposes to amend 

NYSE Amex Equities Rule 123E (‘‘DMM 

Combination Review Policy’’) to be 

more consistent with the Exchange’s 

current Designated Market Maker 

(‘‘DMM’’) system. These amendments 

are proposed to conform to amendments 

filed by the New York Stock Exchange 

LLC (‘‘NYSE’’).6

I. Background 

As described more fully in a related 

rule filing,7 NYSE Euronext acquired 

The Amex Membership Corporation 

(‘‘AMC’’) pursuant to an Agreement and 

Plan of Merger, dated January 17, 2008 

(the ‘‘Merger’’). In connection with the 

Merger, the Exchange’s predecessor, the 

American Stock Exchange LLC 

(‘‘Amex’’), a subsidiary of AMC, became 

a subsidiary of NYSE Euronext now 

called NYSE Amex LLC, and continues 

to operate as a national securities 

exchange registered under Section 6 of 

the Securities Exchange Act of 1934, as 

amended (the ‘‘Act’’).8 The effective 

date of the Merger was October 1, 2008. 

In connection with the Merger, on 

December 1, 2008, the Exchange 

relocated all equities trading conducted 

on the Exchange legacy trading systems 

and facilities located at 86 Trinity Place, 

New York, New York, to trading systems 

and facilities located at 11 Wall Street, 

New York, New York (the ‘‘Equities 

Relocation’’). The Exchange’s equity 

trading systems and facilities at 11 Wall 

Street (the ‘‘NYSE Amex Trading 

Systems’’) are operated by the NYSE on 

behalf of the Exchange.9

As part of the Equities Relocation, 

NYSE Amex adopted NYSE Rules 1– 

1004, subject to such changes as 

necessary to apply the Rules to the 

Exchange, as the NYSE Amex Equities 

Rules to govern trading on the NYSE 

Amex Trading Systems.10 The NYSE