Federal Register / Vol. 74, No. 139 / Wednesday, July 22, 2009 / Notices 36293 

8 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). 

9 15 U.S.C. 78o–3(b)(6). 

10 15 U.S.C. 78o–3(b)(7). 

11See Notice for a more detailed description of 

the matter. 

12 15 U.S.C. 78s(b)(2). 

13 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

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

4 17 CFR 240.19b–4(f)(2). 

5The term ‘‘System’’ is defined in BATS Rule 

1.5(aa). 

6The term ‘‘Trading Center’’ is defined in BATS 

Rule 2.11. 

a national securities association.8 In 

particular, the Commission finds that 

the proposal is consistent with Section 

15A(b)(6) of the Act,9 which requires, 

among other things that FINRA’s rules 

be designed to prevent fraudulent and 

manipulative acts and practices, 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. The 

Commission also believes that the 

proposed rule change is consistent with 

the provisions of Section 15A(b)(7) of 

the Act,10 which provides that FINRA 

members, or persons associated with its 

members, must be appropriately 

disciplined for violations of any 

provisions of the Act or FINRA’s rules. 

The Commission believes that making 

the pilot program permanent will 

provide FINRA with a mechanism to 

take action in certain situations against 

a member or an associated person that 

is alleged to have engaged, or is 

engaging, in conduct that violates 

Commission, FINRA, or NASD rules, 

when such intervention is necessary in 

order to prevent likely significant 

dissipation or conversion of assets or 

other significant harm to investors 

before the underlying disciplinary 

proceeding can be completed. At the 

same time, the Commission believes 

that FINRA’s cease and desist 

provisions contain sufficient procedural 

protections to ensure that respondents 

have the opportunity for a fair hearing 

and, if applicable, review thereof. When 

it first sought cease and desist authority 

in 2003, FINRA said that it would use 

the authority sparingly and has, in fact, 

only used its authority once for a TCDO 

and once for a permanent cease and 

desist order.11 FINRA stated in its 

Notice that if the proposal were adopted 

on a permanent basis, it would continue 

to use its cease and desist authority 

judiciously. The Commission expects 

that FINRA will continue to use this 

authority in an appropriate manner. The 

Commission believes it is reasonable 

and consistent with the Act for FINRA 

to adopt the cease and desist rules 

permanently to enable it to stop persons 

from engaging in securities transactions 

or conduct affecting the marketplace, in 

alleged violation of established rules, 

which is likely to cause harm to 

investors or would adversely affect the 

public interest if not addressed 

expeditiously. 

It is therefore ordered, pursuant to 

Section 19(b)(2) of the Act,12 that the 

proposed rule change (SR–FINRA– 

2009–035), be, and hereby is, approved. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.13

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–17349 Filed 7–21–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–60313; File No. SR–BATS– 

2009–023] 

Self-Regulatory Organizations; BATS 

Exchange, Inc.; Notice of Filing and 

Immediate Effectiveness of Proposed 

Rule Change Related to Fees for Use 

of BATS Exchange, Inc. 

July 15, 2009. 

Pursuant to Section 19(b)(1) of the 

Securities Exchange Act of 1934 (the 

‘‘Act’’),1 and Rule 19b–4 thereunder,2

notice is hereby given that on July 9, 

2009, BATS Exchange, Inc. (the 

‘‘Exchange’’ or ‘‘BATS’’) filed with the 

Securities and Exchange Commission 

(‘‘Commission’’) the proposed rule 

change as described in Items I, II and III 

below, which Items have been prepared 

by the Exchange. BATS has designated 

the proposed rule change as one 

establishing or changing a member due, 

fee, or other charge imposed by the 

Exchange under Section 19(b)(3)(A)(ii) 

of the Act 3 and Rule 19b–4(f)(2) 

thereunder,4 which renders the 

proposed rule change 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 modify 

BATS Rule 15.1, entitled ‘‘Authority to 

Prescribe Dues, Fees, Assessments and 

Other Charges,’’ effective immediately. 

The text of the proposed rule change 

is available at the Exchange’s Web site 

at http://www.batstrading.com, at the 

principal office of the Exchange, 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 

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 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 modify 

BATS Rule 15.1 to adopt new paragraph 

(d), which will allow the Exchange to 

pass on certain, specific fees that it is 

charged by the company that operates 

the data center where the Exchange’s 

System 5 is located, as described in 

further detail below. 

Exchange Members wishing to colocate their trading hardware to the 

Exchange’s System can do so by leasing 

space directly from the company that 

owns the data center. The Exchange has 

no involvement in determining the 

terms of any fees paid by the Member 

to lease co-location space and does not 

receive any proceeds from such fee. 

Certain Members of the Exchange 

maintain a co-location relationship with 

another Trading Center’s 6 system that is 

located in the same data center as the 

Exchange. To co-locate to the Exchange, 

rather than leasing additional space near 

the Exchange’s System, some Members 

choose instead to simply cross-connect 

their existing trading hardware from the 

space near another Trading Center’s 

system to the Exchange’s System. In 

such cases, the company that owns the 

data center charges the Exchange a 

monthly cross-connection fee. Pursuant 

to the proposed rule the Exchange will 

pass this cross connection fee on, in 

full, to the applicable Member. 

2. Statutory Basis 

The Exchange believes that the 

proposed rule change is consistent with 

the requirements of the Act and the 


jlentini on DSKJ8SOYB1PROD with NOTICES
36294 Federal Register / Vol. 74, No. 139 / Wednesday, July 22, 2009 / Notices 

7 15 U.S.C. 78f. 

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

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

10 17 CFR 240.19b–4(f)(2). 

11 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

rules and regulations thereunder that 

are applicable to a national securities 

exchange, and, in particular, with the 

requirements of Section 6 of the Act.7

Specifically, the Exchange believes that 

the proposed rule change is consistent 

with Section 6(b)(4) of the Act,8 in that 

it provides for the equitable allocation 

of reasonable dues, fees and other 

charges among members and other 

persons using any facility or system 

which the Exchange operates or 

controls. The Exchange notes that in the 

current, competitive market 

environment, market participants can 

connect to numerous competing venues 

in numerous different ways, and that 

the Exchange currently does not charge 

any direct fees for connecting to the 

Exchange. In addition, the fees applied 

through the proposed rule will not 

result in any direct revenue for the 

Exchange, but rather, are a pass-through 

of fees charged to the Exchange as a 

result of certain Member’s connections 

to the Exchange. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

The Exchange does not believe that 

the proposed rule change imposes any 

burden on competition. 

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. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

The foregoing proposed rule change 

has been designated as a fee change 

pursuant to Section 19(b)(3)(A)(ii) of the 

Act 9 and Rule 19b–4(f)(2) thereunder,10

because it establishes or changes a due, 

fee or other charge imposed on members 

by the Exchange. Accordingly, the 

proposal is effective upon filing with 

the Commission. 

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–BATS–2009–023 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–BATS–2009–023. 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 will also be available 

for inspection and copying at the 

principal office of the self-regulatory 

organization. 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–BATS– 

2009–023 and should be submitted on 

or before August 12, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.11

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–17352 Filed 7–21–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–60315; File No. SR–MSRB– 

2009–10] 

Self-Regulatory Organizations; 

Municipal Securities Rulemaking 

Board; Notice of Filing of Proposed 

Rule Change Relating to Additional 

Voluntary Submissions by Issuers to 

the MSRB’s Electronic Municipal 

Market Access System (EMMA®) 

July 15, 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 July 14, 

2009, the Municipal Securities 

Rulemaking Board (‘‘MSRB’’) filed with 

the Securities and Exchange 

Commission (‘‘Commission’’) the 

proposed rule change as described in 

Items I, II, and III below, which Items 

have been prepared by the MSRB. 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 MSRB has filed with the 

Commission a proposed rule change to 

amend the primary market and 

continuing disclosure services of the 

Electronic Municipal Market Access 

system (‘‘EMMA’’) to permit issuers and 

their designated agents to submit 

preliminary official statements and 

other related pre-sale documents, 

official statements and advance 

refunding documents, as well as 

information relating to the preparation 

and submission of audited financial 

statements and annual financial 

information and links to other 

disclosure information. The MSRB has 

requested an effective date for the 

proposed rule change of a date to be 

announced by the MSRB in a notice 

published on the MSRB Web site, which 

date shall be no later than nine months 

after Commission approval of the 

proposed rule change and shall be 


jlentini on DSKJ8SOYB1PROD with NOTICES