4800 Federal Register / Vol. 74, No. 16 / Tuesday, January 27, 2009 / Notices 

7 In approving this proposed rule change, the 

Commission has considered the proposed rule’s 

impact on efficiency, competition, and capital 

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

8 15 U.S.C. 78f(b)(4). 

9The proposal meets the criteria, formulated by 

the Commission in connection with the petition 

filed by NetCoalition, for approval of proposed rule 

changes concerning the distribution of non-core 

market data. See Securities Exchange Act Release 

Nos. 59039 (December 2, 2008), 73 FR 74770 

(December 9, 2008) (SR–NYSEArca–2006–21) and 

55011 (December 27, 2006) (order granting petition 

for review of SR–NYSEArca–2006–21). In its order 

issued in connection with the NetCoalition petition, 

the Commission stated that ‘‘reliance on 

competitive forces is the most appropriate and 

effective means to assess whether the terms for the 

distribution of non-core data are equitable, fair and 

reasonable, and not unreasonably discriminatory.’’ 

73 FR at 74781–82. As such, the ‘‘existence of 

significant competition provides a substantial basis 

for finding that the terms of an exchange’s fee 

proposal are equitable, fair, reasonable, and not 

unreasonably or unfairly discriminatory.’’ Id. at 

74782. If an exchange ‘‘was subject to significant 

competitive forces in setting the terms of a 

proposal,’’ a proposal will be approved unless the 

Commission determines that ‘‘there is a substantial 

countervailing basis to find that the terms 

nevertheless fail to meet an applicable requirement 

of the Exchange Act or the rules thereunder.’’ Id. 

at 74781. 

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. 

4See SR–NYSEArca–2008–108, Securities 

Exchange Act Release No. 34–59004 [sic] 

(November 24, 2008) 73 FR 207 [sic] (October 24, 

2008) [sic] (filing seeking approval for listing and 

trading of options on Managed Fund Shares) and 

SR–NYSEArca–2008–66, Securities [sic] Act 

Release No. 34–59055 [sic] (December 4, 2008) 73 

FR 238 [sic] (December 10, 2008) (filing seeking 

approval for Listing and Trading Options on Shares 

of the iShares COMEX Gold Trust and the iShares 

Silver Trust). 

algorithms and strategies in such a 

way as to render them useless. 

—The Service is a sentiment indicator 

that would provide users with an 

indication of how a specific type of 

market participant feels about certain 

securities, making available to the 

public information that is sometimes 

referred to as ‘‘the word on the street’’ 

as compiled from order flow on the 

trading desks of large broker-dealers. 

—Nasdaq believes that it has provided 

adequate justification for the fees. 

IV. Discussion and Commission 

Findings 

The Commission has reviewed 

carefully the proposed rule change, the 

comment letter, and Nasdaq’s response 

to the comment letter, and 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 7 and, in particular, Section 

6(b)(4) of the Act,8 which requires, 

among other things, that Nasdaq’s rules 

provide for the equitable allocation of 

reasonable dues, fees and other charges 

among members and issuers and other 

persons using any facility or system 

which Nasdaq operates or controls, and 

that it not unfairly discriminate between 

customers, issuers, brokers or dealers. 

The Commission believes that the 

proposed rule change is consistent with 

these statutory standards. 

Nasdaq has represented that the 

Service is a voluntary one, and that the 

information provided to subscribers is 

not comprised of data that brokerdealers are obligated to provide to 

Nasdaq for regulatory purposes because 

of Nasdaq’s status as a self-regulatory 

organization. Additionally, brokerdealers do not need the Service to 

perform their duties, so the decision to 

purchase the Service is truly voluntary 

and dependent upon each brokerdealer’s business model. Finally, 

because the Service is voluntary, 

Nasdaq has met the statutory standard 

by pricing the Service according to free 

market principles; indeed, if Nasdaq 

priced the Service too high, brokerdealers could simply opt not to 

purchase the Service. The Commission 

believes that Nasdaq’s fees for the 

Service are both reasonable and 

equitably allocated.9 Additionally, the 

Commission does not believe that the 

Pathfinder Service will allow reverse 

engineering of the algorithms and 

strategies created by Nasdaq members; 

Nasdaq has explained the various ways 

the information is filtered, and has 

stated that such filtering will prevent 

this from occurring. 

It is therefore ordered, pursuant to 

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

proposed rule change (SR–NASDAQ– 

2008–016) be, and it 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. E9–1674 Filed 1–26–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59264; File No. SR– 

NYSEArca–2009–02] 

Self-Regulatory Organizations; Notice 

of Filing of and Immediate 

Effectiveness of Proposed Rule 

Change by NYSE Arca, Inc. To Amend 

or Eliminate Unnecessary Rule Text 

January 16, 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 January 

8, 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 and II 

below, which Items have been prepared 

by the self-regulatory organization. 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 or 

eliminate several of its rules in order to 

remove unnecessary rule text related to 

terms or systems that are now obsolete. 

The text of the proposed rule change is 

attached to the proposed rule change as 

Exhibit 5. 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 

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 the 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

The purpose of this filing by NYSE 

Arca is to correct certain NYSE Arca 

cross-references and remove obsolete 

and unnecessary rule text. By abolishing 

these out-dated references and 

correcting cross-references, the 

Exchange is not changing or altering any 

obligation, rights, policies or practices 

enumerated within its rules. 

The specific proposed changes are 

discussed in further detail below. 

• Rule 5.3(g). Criteria for Underlying 

Securities: The Exchange is changing the 

numbering within the rule because two 

separate rule filings were approved at 

different times which affected the numbering 

within the rule.4

mstockstill on PROD1PC66 with NOTICES6

Federal Register / Vol. 74, No. 16 / Tuesday, January 27, 2009 / Notices 4801 

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

6 15 U.S.C. 78f(b)(5). 

7 15 U.S.C. 78s(b)(3)(A)(iii). 

8 17 CFR 240.19b–4(f)(6). 

9 15 U.S.C. 78s(b)(3)(A). 

10 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– 

4(f)(6)(iii) requires the Exchange to give the 

Commission written notice of the Exchange’s 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. 

11 17 CFR 240.19b–4(f)(6). 

12 17 CFR 240.19b–4(f)(6)(iii). 

13For 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). 

• Rule 6.20(a). Time Synchronization: The 

Exchange is changing the rule reference from 

Rule 4.25 to Rule 11.18. 

• Rule 6.34. Trading by OTP Holders and 

OTP Firms on the Floor: The Exchange is 

eliminating the references to Rule 6.38 and 

Rule 6.52(a) in Commentary .01 as those 

rules are obsolete and no longer exist. 

• Rule 6.48(c). Discretionary Transaction: 

The Exchange is changing the rule reference 

from Rule 6.39 to Rule 6.84. 

• Rule 6.75(f)(1). Priority and Order 

Allocation Procedures—Open Outcry: The 

Exchange is eliminating the phrase related to 

‘‘Exchange officer’’ as this now obsolete. 

• Rule 6.78(e)(1)(E). Transactions Off the 

Exchange: The Exchange is changing the rule 

reference from Rule 8.103 to Rule 5.33. 

• Rule 6.78. Transaction Off the Exchange. 

Commentary: The Exchange is removing the 

Rule 7.9 Meaning of Premium Bids and 

Offers, Index Options reference as this rule 

is now obsolete and no longer exists. 

2. Statutory Basis 

The Exchange believes that the 

proposed rule change is consistent with 

Section 6(b) of the Securities Exchange 

Act of 1934 (the ‘‘Act’’),5 in general, and 

furthers the objectives of Section 6(b)(5) 

of the Act,6 in particular, because it is 

designed to prevent fraudulent and 

manipulative acts and practices, to 

promote just and equitable principles of 

trade, to foster cooperation and 

coordination with persons engaged in 

facilitating transactions in securities, 

and 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. The 

Exchange believes that the proposed 

rule change will clarify the rule crossreferences and eliminate unnecessary 

confusion in its rule structure. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

The Exchange does not believe that 

the proposed rule change will impose 

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 

No written comments were solicited 

or received with respect to the proposed 

rule change. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

The Exchange has filed the proposed 

rule change pursuant to Section 

19(b)(3)(A)(iii) of the Act 7 and Rule 

19b–4(f)(6) thereunder.8 Because the 

proposed rule change does not: (i) 

Significantly affect the protection of 

investors or the public interest; (ii) 

impose any significant burden on 

competition; and (iii) become operative 

prior to 30 days from the date on which 

it was filed, 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 9 and Rule 19b–4(f)(6)(iii) 

thereunder.10

A proposed rule change filed under 

Rule 19b–4(f)(6) 11 normally does not 

become operative prior to 30 days after 

the date of the filing. However, pursuant 

to Rule 19b–4(f)(6)(iii),12 the 

Commission may designate a shorter 

time if such action is consistent with the 

protection of investors and the public 

interest. The Exchange has asked the 

Commission to waive the 30-day 

operative delay so that the proposal may 

become operative immediately upon 

filing. The Exchange believes the waiver 

of this period will allow it to 

immediately remove outdated and 

obsolete references and terms contained 

in Exchange rules without delay. The 

Commission has determined that 

waiving the 30-day operative delay of 

the Exchange’s proposal is consistent 

with the protection of investors and the 

public interest because such waiver will 

allow the Exchange to promptly remove 

obsolete references and terms contained 

in its rules, thereby avoiding further 

potential confusion and ensuring that 

the rule text of the Exchange is 

accurate.13 Therefore, the Commission 

designates the proposal as operative 

upon filing. 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–NYSEArca–2009–02 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–NYSEArca–2009–02. 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 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 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– 

NYSEArca–2009–02 and should be 

submitted on or before February 17, 

2009. 

mstockstill on PROD1PC66 with NOTICES6

4802 Federal Register / Vol. 74, No. 16 / Tuesday, January 27, 2009 / Notices 

14 17 CFR 200.30–3(a)(12). 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.14

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–1672 Filed 1–26–09; 8:45 am] 

BILLING CODE 8011–01–P 

UNITED STATES SENTENCING 

COMMISSION 

Sentencing Guidelines for United 

States Courts 

AGENCY: United States Sentencing 

Commission. 

ACTION: Notice of period during which 

individuals may apply to be appointed 

to the voting membership of the 

Practitioners Advisory Group; request 

for applications. 

SUMMARY: The Practitioners Advisory 

Group of the United States Sentencing 

Commission is a standing advisory 

group of the United States Sentencing 

Commission pursuant to 28 U.S.C. 995 

and Rule 5.4 of the Commission’s Rules 

of Practice and Procedure. Having 

decided to adopt a formal charter for the 

Practitioners Advisory Group, the 

United States Sentencing Commission is 

reconstituting the voting membership of 

the advisory group under that charter. 

The purpose of the advisory group is (1) 

To assist the Commission in carrying 

out its statutory responsibilities under 

28 U.S.C. 994(o); (2) to provide to the 

Commission its views on the 

Commission’s activities and work, 

including proposed priorities and 

amendments; (3) to disseminate to 

defense attorneys, and to other 

professionals in the defense community, 

information regarding federal 

sentencing issues; and (4) to perform 

other related functions as the 

Commission requests. Under the 

charter, the advisory group will consist 

of not more than 17 voting members, 

each of whom may serve not more than 

two consecutive three-year terms. Of 

those 17 voting members, one shall be 

Chair, one shall be Vice Chair, 12 shall 

be circuit members (one for each federal 

judicial circuit other than the Federal 

Circuit), and three shall be at-large 

members. To be eligible to serve as a 

voting member, an individual must be 

an attorney who (1) Devotes a 

substantial portion of his or her 

professional work to advocating the 

interests of privately represented 

individuals, or of individuals 

represented by private practitioners 

through appointment under the 

Criminal Justice Act of 1964, within the 

federal criminal justice system; (2) has 

significant experience with federal 

sentencing or post-conviction issues 

related to criminal sentences; and (3) is 

in good standing of the highest court of 

the jurisdiction or jurisdictions in 

which he or she is admitted to practice. 

Additionally, to be eligible to serve as 

a circuit member, the individual’s 

primary place of business or a 

substantial portion of his or her practice 

must be in the circuit concerned. Each 

voting member is appointed by the 

Commission. The Commission hereby 

invites any individual who is eligible to 

be appointed to the initial voting 

membership of the Practitioners 

Advisory Group to apply. Applications 

should be received by the Commission 

not later than March 30, 2009. 

Applications may be sent to Michael 

Courlander at the address listed below. 

DATES: Applications for the initial 

voting membership of the Practitioners 

Advisory Group should be received not 

later than March 30, 2009. 

ADDRESSES: Send applications to: 

United States Sentencing Commission, 

One Columbus Circle, NE., Suite 2–500, 

South Lobby, Washington, DC 20002– 

8002, Attention: Public Affairs. 

FOR FURTHER INFORMATION CONTACT: 

Michael Courlander, Public Affairs 

Officer, Telephone: (202) 502–4597. 

SUPPLEMENTARY INFORMATION: Section 

995(a)(1) of title 28, United States Code, 

authorizes the Commission to establish 

general policies and promulgate rules 

and regulations as necessary for the 

Commission to carry out the purposes of 

the Sentencing Reform Act of 1984. 

Having adopted a formal charter for the 

Practitioners Advisory Group, the 

United States Sentencing Commission is 

reconstituting the voting membership of 

the Practitioners Advisory Group under 

that charter. The Commission invites 

any individual who is eligible to be 

appointed to the initial voting 

membership of the Practitioners 

Advisory Group to apply. 

Authority: 28 U.S.C. 994(a), (o), (p), 995; 

USSC Rules of Practice and Procedure 5.2, 

5.4. 

Ricardo H. Hinojosa, 

Acting Chair. 

[FR Doc. E9–1636 Filed 1–26–09; 8:45 am] 

BILLING CODE 2210–40–P 

UNITED STATES SENTENCING 

COMMISSION 

Sentencing Guidelines for United 

States Courts 

AGENCY: United States Sentencing 

Commission. 

ACTION: Notice of proposed amendments 

to sentencing guidelines, policy 

statements, and commentary. Request 

for public comment, including public 

comment regarding retroactive 

application of any of the proposed 

amendments. Notice of public hearing. 

SUMMARY: Pursuant to section 994(a), 

(o), and (p) of title 28, United States 

Code, the United States Sentencing 

Commission is considering 

promulgating certain amendments to the 

sentencing guidelines, policy 

statements, and commentary. This 

notice sets forth the proposed 

amendments and, for each proposed 

amendment, a synopsis of the issues 

addressed by that amendment. This 

notice also sets forth a number of issues 

for comment, some of which are set 

forth together with the proposed 

amendments; some of which are set 

forth independent of any proposed 

amendment; and one of which 

(regarding retroactive application of 

proposed amendments) is set forth in 

the SUPPLEMENTARY INFORMATION portion 

of this notice. 

The proposed amendments and issues 

for comment in this notice are as 

follows: (1) A proposed amendment in 

response to the Identity Theft 

Restitution and Enforcement Act of 

2008, title II of Public Law 110–326, 

including proposed changes to § 2B1.1 

(Larceny, Embezzlement, and Other 

Forms of Theft; Offenses Involving 

Stolen Property; Property Damage or 

Destruction; Fraud and Deceit; Forgery; 

Offenses Involving Altered or 

Counterfeit Instruments Other than 

Counterfeit Bearer Obligations of the 

United States), § 2H3.1 (Interception of 

Communications; Eavesdropping; 

Disclosure of Certain Private or 

Protected Information), and § 3B1.3 

(Abuse of Position of Trust or Use of 

Special Skill), and issues for comment 

regarding the guidelines’ treatment of 

offenses involving fraud, identity theft, 

computers, and communications; (2) a 

proposed amendment in response to the 

Ryan Haight Online Pharmacy 

Consumer Protection Act of 2008, 

Public Law 110–465, including 

proposed changes to § 2D1.1 (Unlawful 

Manufacturing, Importing, Exporting, or 

Trafficking (Including Possession with 

Intent to Commit These Offenses); 

Attempt or Conspiracy) and § 2D3.1 

mstockstill on PROD1PC66 with NOTICES6