26902 Federal Register / Vol. 74, No. 106 / Thursday, June 4, 2009 / Notices 

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 Arca is an exclusive processor of the 

NYSE Arca 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. 

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. 

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 17 CFR 240.19b–4. 

3Amendment No. 1 replaced and superseded the 

original filing. 

4See Securities Exchange Act Release No. 59771 

(April 15, 2009), 74 FR 18411. 

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

This proposal would make permanent 

the NYSE Arca Realtime Reference 

Prices service and make permanent the 

$30,000 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 Arca in 

setting the terms for distributing the 

NYSE Arca Realtime Reference Prices 

service. The Commission believes that 

the availability of those alternatives, as 

well as NYSE Arca’s compelling need to 

attract order flow, imposed significant 

competitive pressure on NYSE Arca to 

act equitably, fairly, and reasonably in 

setting the terms of its proposal. 

Because NYSE Arca 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–NYSEArca– 

2009–32), 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. E9–13039 Filed 6–3–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59987; File No. SR–FINRA– 

2009–016] 

Self-Regulatory Organizations; 

Financial Industry Regulatory 

Authority, Inc.; Order Approving 

Proposed Rule Change as Amended, 

Relating to the Adoption of FINRA Rule 

2080 (Obtaining an Order of 

Expungement of Customer Dispute 

Information From the Central 

Registration Depository (CRD 

System)), FINRA Rule 2310 (Direct 

Participation Programs), FINRA Rule 

4551 (Requirements for Alternative 

Trading Systems to Record and 

Transmit Order and Execution 

Information for Security Futures) and 

FINRA Rule 2266 (SIPC Information) in 

the Consolidated FINRA Rulebook 

May 27, 2009. 

I. Introduction 

On March 25, 2009, Financial 

Industry Regulatory Authority, Inc. 

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

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

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 (1) adopt NASD Rules 2130 

(Obtaining an Order of Expungement of 

Customer Dispute Information from the 

Central Registration Depository (CRD 

System)), 2810 (Direct Participation 

Programs) and 3115 (Requirements for 

Alternative Trading Systems to Record 

and Transmit Order and Execution 

Information for Security Futures) as 

FINRA rules in the consolidated FINRA 

rulebook without material change; and 

(2) adopt NASD Rule 2342 (SIPC 

Information) in the consolidated FINRA 

rulebook without material change and to 

delete NYSE Rule 409A (SIPC 

Disclosures). The proposed rule change 

would renumber NASD Rule 2130 as 

FINRA Rule 2080, NASD Rule 2810 as 

FINRA Rule 2310, NASD Rule 3115 as 

FINRA Rule 4551 and NASD Rule 2342 

as FINRA Rule 2266 in the consolidated 

FINRA rulebook. On April 14, 2009, 

FINRA filed Amendment No. 1 to the 

proposed Rule Change.3 The proposed 

rule change was published for comment 

in the Federal Register on April 15, 

2009.4 The Commission received no 

comment letters on the proposed rule 

change. This order approves the 

proposed rule change as amended. 

II. Description of the Proposed Rule 

Change 

FINRA is proposing to adopt NASD 

Rule 2130 without material change in 

the Consolidated FINRA Rulebook as 

FINRA Rule 2080. NASD Rule 2130 

addresses the expungement of customer 

dispute information from the Central 

Registration Depository system. 

FINRA is proposing to adopt NASD 

Rule 2810 without material change in 

the Consolidated FINRA Rulebook as 

FINRA Rule 2310. NASD Rule 2810 

addresses underwriting terms and 

arrangements in public offerings of 

direct participation programs and 

unlisted real estate investment trusts. 

FINRA is proposing to adopt NASD 

Rule 3115 without material change in 

the Consolidated FINRA Rulebook as 

FINRA Rule 4551. NASD Rule 3115 

(Requirements for Alternative Trading 

Systems to Record and Transmit Order 

and Execution Information for Security 

Futures) requires alternative trading 

Federal Register / Vol. 74, No. 106 / Thursday, June 4, 2009 / Notices 26903 

5ATSs generally are registered broker-dealers that 

provide or maintain a marketplace for bringing 

together purchasers and sellers of securities or 

otherwise perform the functions commonly 

performed by a securities exchange but do not 

perform self-regulatory functions. 

6A security future is a contract of sale for future 

delivery of a single security or of a narrow-based 

security index. Security futures are defined as 

‘‘securities’’ under the Act; consequently, the 

federal securities laws are generally applicable to 

security futures. See 15 U.S.C. 78c(a)(10). 

7See U.S. Government Accountability Office, 

‘‘Securities Investor Protection: Steps Needed to 

Better Disclose SIPC Policies to Investors,’’ 

Publication GAO–01–653 (May 25, 2001). 

8 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). 

9 15 U.S.C. 78o–3(b)(6). 

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 17 CFR 240.19b–4. 

3 17 CFR 240.19b–4(f)(6). 

4Securities Exchange Act Release No. 59721 

(April 7, 2009), 74 FR 17245 (April 14, 2009) (SR– 

Phlx–2009–32); Securities Exchange Act Release 

No. 59779 (April 16, 2009), 74 FR 18600 (April 23, 

2009) (SR–Phlx–2009–32, Amendment No. 1). 

systems (‘‘ATSs’’) 5 that accept orders 

for security futures 6 to record and 

report to FINRA certain information 

regarding those orders, including the 

date and time the order was received, 

the security future product name and 

symbol, the details of the order, and the 

date and time that the order was 

executed. The rule provides FINRA with 

an audit trail of orders for security 

futures placed on an ATS. 

FINRA is proposing to adopt NASD 

Rule 2342 without material change in 

the Consolidated FINRA Rulebook as 

FINRA Rule 2266 and to delete 

comparable Incorporated NYSE Rule 

409A. NASD Rule 2342 and 

Incorporated NYSE Rule 409A were 

adopted in response to a May 2001 

report issued by the Government 

Accountability Office (‘‘GAO’’), entitled 

‘‘Securities Investor Protection: Steps 

Needed to Better Disclose SIPC Policies 

to Investors.’’ 7

III. Discussion and Findings 

After careful review, 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 association.8 In particular, 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 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. 

The Commission believes that that 

transferring NASD Rule 2130 into the 

Consolidated FINRA Rulebook will 

ensure that its standards and procedures 

regarding expungement of customer 

dispute information from the CRD 

continue to be reasonably designed to 

ensure that information submitted to 

and maintained in the CRD is accurate 

and complete. The Commission believes 

that transferring NASD Rule 2810 into 

the Consolidated FINRA Rulebook will 

ensure that policies and procedures 

regarding FINRA’s members’ 

participation in public offerings of 

Investment Programs continue to meet 

statutory mandates. The Commission 

believes that transferring NASD Rule 

3115 into the Consolidated FINRA 

Rulebook will continue to allow ATSs 

to provide trading facilities for security 

futures while also ensuring that FINRA 

will receive sufficient information to 

maintain an audit trail regarding the 

trading of security futures on ATSs. 

Finally, the Commission believes that 

transferring NASD Rule 2342 into the 

Consolidated FINRA Rulebook will 

continue to ensure that SIPC 

information is provided to customers 

effectively. The proposed rule change 

makes non-material changes to rules 

that have proven effective in meeting 

the statutory mandates. 

IV. Conclusion 

It is therefore ordered, pursuant to 

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

proposed rule change (SR–FINRA– 

2009–016), as amended, be, and hereby 

is, approved. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.11

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–12997 Filed 6–3–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59999; File No. SR–BX– 

2009–026] 

Self-Regulatory Organizations; 

NASDAQ OMX BX, Inc.; Notice of Filing 

and Immediate Effectiveness of 

Proposed Rule Change Relating to 

Order Routing 

May 28, 2009. 

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 May 21, 

2009, NASDAQ OMX BX, Inc. (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 Exchange has 

designated the proposed rule change as 

constituting a non-controversial rule 

change under Rule 19b–4(f)(6) under the 

Act,3 which renders the proposal 

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 is proposing to modify 

the terms and conditions under which 

the Exchange is affiliated with NASDAQ 

Options Services, LLC (‘‘NOS’’). The 

Exchange proposes to implement the 

proposed rule change when NASDAQ 

OMX PHLX, Inc. (‘‘PHLX’’) implements 

its XL II trading system.4 There is no 

proposed rule language. 

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 

Exchange 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 these 

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 aspects of such 

statements. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

The NASDAQ OMX Group, Inc. 

(‘‘NASDAQ OMX’’) acquired the 

Exchange in August 2008. Prior to the 

acquisition, the Exchange owned a 

21.87% interest in Boston Options 

Exchange Group, LLC (‘‘BOX LLC’’), the 

operator of the Boston Options 

Exchange facility (‘‘BOX’’). BOXR is a 

wholly-owned subsidiary of the 

Exchange, to which the Exchange has 

delegated, pursuant to a delegation plan, 

certain self-regulatory responsibilities 

related to the BOX. 

At the closing of the acquisition by 

NASDAQ OMX, the Exchange 

transferred its interest in BOX LLC to