Federal Register / Vol. 74, No. 106 / Thursday, June 4, 2009 / Notices 26901 

10 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3See Securities Exchange Act Release No. 59790 

(April 20, 2009), 74 FR 18758. 

4See Securities Exchange Act Release No. 58444 

(August 29, 2008), 73 FR 51872 (September 5, 2008) 

(SR–NYSEArca-2008–96). 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. 58895 

(October 31, 2008), 73 FR 66956 (November 12, 

2008) (SR–NYSEArca-2008–122); 59184 (December 

30, 2008), 74 FR 755 (January 7, 2009) (SR– 

NYSEArca-2008–143); and 59662 (March 31, 2009), 

74 FR 15571 (April 6, 2009) (SR–NYSEArca-2009– 

25). 

5The Exchange notes that it will make the NYSE 

Arca Realtime Reference Prices available to vendors 

no earlier than it makes those prices available to the 

processor under the CTA Plan. 

information from submissions. You 

should submit only information that 

you wish to make available publicly. All 

submissions should refer to File No. 

SR–BATS–2009–016 and should be 

submitted on or before June 25, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.10

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–12983 Filed 6–3–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–60002; File No. SR– 

NYSEArca-2009–32] 

Self-Regulatory Organizations; NYSE 

Arca, Inc.; Order Approving the 

Proposed Rule Change Implementing 

NYSE Arca Realtime Reference Prices 

Service on a Permanent Basis 

May 29, 2009. 

I. Introduction 

On April 15, 2009, NYSE Arca, Inc. 

(‘‘NYSE Arca’’ 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 Arca 

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 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 Arca 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 Arca 

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 Arca Realtime Reference 

Prices service allows internet service 

providers, traditional market data 

vendors, and others (collectively, 

‘‘NYSE Arca-Only Vendors’’) to make 

available NYSE Arca Realtime Reference 

Prices on a real-time basis.5 The NYSE 

Arca 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 Arca-Only Vendors to 

provide NYSE Arca Realtime Reference 

Prices in a context in which a trading or 

order-routing decision can be 

implemented unless the NYSE ArcaOnly 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 $30,000 monthly flat access fee 

for the NYSE Arca Realtime Reference 

Prices service. For that fee, the NYSE 

Arca-Only Vendor may provide 

unlimited NYSE Arca Realtime 

Reference Prices to an unlimited 

number of the NYSE Arca-Only 

Vendor’s subscribers and customers. 

The pilot program does not impose any 

device or end-user fee for the NYSE 

Arca-Only Vendors’ distribution of 

NYSE Arca 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 NYSE 

Arca-Only Vendor to identify the NYSE 

Arca trade price by placing the text 

‘‘NYSE Arca Data’’ in close proximity to 

the display of each NYSE Arca Realtime 

Reference Price or series of NYSE Arca 

Realtime Reference Prices, or by 

complying with such other 

identification requirement as to which 

NYSE Arca may agree. The NYSE ArcaOnly Vendor may make NYSE Arca 

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 Arca 

proposes to allow NYSE Arca-Only 

Vendors to provide NYSE Arca 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 

Arca-Only Vendors to provide a readily 

visible hyperlink that will send the enduser to a warning notice about the enduser’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 NYSE 

Arca-Only 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-Arca Only Vendor 

to provide the NYSE Arca 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 Arca 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 

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