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
Federal Register / Vol. 74, No. 139 / Wednesday, July 22, 2009 / Notices 36295 

3 Obligated persons would be permitted to 

submit primary market documents through the 

EMMA primary market disclosure service only if 

designated as an agent by the issuer. 

4The MSRB believes that posting of such pre-sale 

documents without the related disclosure 

information provided in a preliminary official 

statement would be inconsistent with the core 

disclosure purposes of EMMA. 

5The GFOA–CAFR Certificate is widely viewed 

as indicative of positive achievement in financial 

reporting by state and local governments. The 

MSRB would consider adding in the future 

additional voluntary disclosures of other widely 

accepted, merit-based and independently bestowed 

distinctions with respect to financial or other 

disclosures by issuers or obligated persons. 

6 Under the Act, smaller public reporting 

companies, as non-accelerated filers, generally are 

required to file their annual reports on Form 10– 

K with the Commission within 90 days after the end 

of their fiscal year. The longer 120-day period 

included in the voluntary annual filing undertaking 

of the proposed rule change is designed to 

accommodate additional steps that state and local 

governments often must take—under state law, 

pursuant to their own requirements, or otherwise— 

in completing the work necessary to prepare their 

annual financial information as contemplated under 

Exchange Act Rule 15c2–12. 

announced no later than sixty (60) days 

prior to the effective date. 

The text of the proposed rule change 

is available on the MSRB’s Web site 

(http://www.msrb.org/msrb1/sec.asp), at 

the MSRB’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 

MSRB 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 MSRB 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 proposed rule change consists of 

amendments to the EMMA primary 

market disclosure service to permit 

issuers and their designated agents to 

make voluntary submissions to the 

primary market disclosure service of 

official statements, preliminary official 

statements and related pre-sale 

documents, and advance refunding 

documents (collectively, ‘‘primary 

market documents’’).3 Pre-sale 

documents other than a preliminary 

official statement (including but not 

limited to notices of sale or 

supplemental disclosures) would be 

accepted only if accompanied or 

preceded by the preliminary official 

statement.4 An issuer seeking to make 

submissions of primary market 

documents to the EMMA primary 

market disclosure service would use the 

same accounts established with respect 

to submissions of continuing disclosure 

documents to the EMMA continuing 

disclosure service, subject to additional 

verification procedures to affirmatively 

establish the account holder’s authority 

to act on behalf of the issuer in 

connection with such primary market 

disclosure submissions. 

Submissions of primary market 

documents by issuers and their 

designated agents will be accepted on a 

voluntary basis if, at the time of 

submission, they are accompanied by 

information necessary to accurately 

identify: (i) The category of document 

being submitted; (ii) the issues or 

specific securities to which such 

document is related; and (iii) in the case 

of an advance refunding document, the 

specific securities being refunded 

pursuant thereto. The primary market 

documents and related indexing 

information would be displayed on the 

EMMA Web portal and also would be 

included in EMMA’s primary market 

disclosure subscription service. 

The proposed rule change also would 

amend the EMMA continuing disclosure 

service to permit issuers, obligated 

persons and their agents to make 

voluntary submissions to the continuing 

disclosure service of additional 

categories of disclosures, as well as 

information about their continuing 

disclosure undertakings. Such 

additional continuing disclosures and 

related indexing information would be 

displayed on the EMMA Web portal and 

also would be included in EMMA’s 

continuing disclosure subscription 

service. Such additional items are: 

• Issuer’s or obligated person’s 

undertaking to prepare audited financial 

statements pursuant to generally 

accepted accounting principles 

(‘‘GAAP’’) as established by the 

Governmental Accounting Standards 

Board (‘‘GASB’’), as described below 

(the ‘‘GASB–GAAP undertaking’’); 

• Issuer’s or obligated persons’ 

undertaking to submit annual financial 

information to EMMA within 120 

calendar days after the end of the fiscal 

year, as described below (the ‘‘annual 

filing undertaking’’); 

• Certificate of Achievement for 

Excellence in Financial Reporting 

awarded by the Government Finance 

Officers Association (‘‘GFOA’’) in 

connection with the preparation of a 

Comprehensive Annual Financial 

Report (‘‘CAFR’’) of an issuer (‘‘GFOA– 

CAFR Certificate’’); 5 and 

• Uniform resource locator (URL) of 

the issuer’s or obligated person’s 

Internet-based investor relations or 

other repository of financial/operating 

information. 

The GASB–GAAP undertaking would 

consist of a voluntary undertaking by an 

issuer or obligated person (in the case of 

an obligated person that is a state or 

local governmental entity), either at the 

time of a primary offering or at any time 

thereafter, that the issuer or obligated 

person will prepare its audited financial 

statements in accordance with GAAP as 

established by GASB. The GASB–GAAP 

undertaking would assist investors and 

other market participants in 

understanding how audited financial 

statements were prepared. The fact that 

an issuer or obligated person has 

entered into a GASB–GAAP undertaking 

would be prominently disclosed on the 

EMMA Web portal as a distinctive 

characteristic of the securities to which 

such undertaking applies. If an issuer or 

obligated person that has made a GASB– 

GAAP undertaking later rescinds such 

undertaking, the issuer or obligated 

persons would be able to disclose such 

action through EMMA. The MSRB 

would not confirm the accuracy of any 

GASB–GAAP undertaking and would 

not review or confirm the conformity of 

submitted audited financial statements 

to GASB–GAAP. 

The annual filing undertaking would 

consist of a voluntary undertaking by an 

issuer or obligated person, either at the 

time of a primary offering or at any time 

thereafter, that the issuer or obligated 

person, as appropriate, will submit to 

EMMA its annual financial information 

as contemplated under Rule 15c2–12 of 

the Act by no later than 120 calendar 

days after the end of such issuer’s or 

obligated person’s fiscal year.6 The 

annual filing undertaking would assist 

investors and other market participants 

in understanding when the annual 

financial information is expected to be 

available in the future. The fact that an 

issuer or obligated person has entered 

into an annual filing undertaking would 

be prominently disclosed on the EMMA 

Web portal as a distinctive characteristic 

of the securities to which such 

undertaking applies. If an issuer or 

obligated person that has made an 

annual filing undertaking later rescinds 

such undertaking, the issuer or 

obligated person would be able to 

disclose such action through EMMA. 


jlentini on DSKJ8SOYB1PROD with NOTICES
36296 Federal Register / Vol. 74, No. 139 / Wednesday, July 22, 2009 / Notices 

7 15 U.S.C. 78o–4(b)(2)(C). 

8MSRB Notice 2006–19 (July 27, 2006) (the 

‘‘Concept Release’’); MSRB Notice 2007–5 (January 

25, 2007) (the ‘‘January 2007 Notice’’). Comments 

The MSRB would not review or confirm 

the compliance of an issuer or obligated 

person with its annual filing 

undertaking. 

The GFOA awards the GFOA–CAFR 

Certificate to a government if, based on 

a review process, its CAFR substantially 

complies with both GAAP and GFOA’s 

CAFR program policy. According to 

current GFOA eligibility requirements, 

financial reports must include all funds 

and component units of the 

governmental entity, in accordance with 

GAAP, in order to be considered a 

CAFR. The GFOA–CAFR Certificate 

would assist investors and other market 

participants in assessments of 

information provided in an issuer’s 

CAFR. If an issuer submits a copy of the 

GFOA–CAFR Certificate to EMMA, the 

EMMA Web portal would prominently 

disclose the issuer’s receipt of a GFOA– 

CAFR Certificate as a distinctive 

characteristic of the applicable 

securities. The MSRB would not 

confirm the validity of a GFOA–CAFR 

Certificate submitted to EMMA. 

Finally, a URL of an issuer’s or 

obligated person’s Internet-based 

investor relations or other repository of 

financial/operating information would 

provide investors with an additional 

avenue for obtaining further financial, 

operating or other investment-related 

information about such issuer or 

obligated person. 

The GASB–GAAP undertaking and 

annual filing undertaking could be 

included within the continuing 

disclosure undertaking entered into 

consistent with Exchange Act Rule 

15c2–12 or could be made in a separate 

agreement. Issuers and obligated 

persons would indicate the existence of 

such an undertaking through a data 

input election on EMMA. The URL of an 

issuer’s or obligated person’s investor 

relations or other repository of 

financial/operating information also 

could be entered through a text/data 

input field on EMMA. No document 

would be required to be submitted to 

EMMA in connection with the GASB– 

GAAP undertaking and annual filing 

undertaking or the issuer/obligated 

person URL. The MSRB would include 

an explanation of the GASB–GAAP 

undertaking, annual filing undertaking 

and GFOA–CAFR Certificate on the 

EMMA Web portal. 

2. Statutory Basis 

The MSRB has adopted the proposed 

rule change pursuant to Section 

15B(b)(2)(C) of the Act,7 which provides 

that the MSRB’s rules shall: 

be 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 regulating, clearing, 

settling, processing information with respect 

to, and facilitating transactions in municipal 

securities, to remove impediments to and 

perfect the mechanism of a free and open 

market in municipal securities, and, in 

general, to protect investors and the public 

interest. 

The MSRB believes that the proposed 

rule change is consistent with the Act in 

that it serves to remove impediments to 

and helps perfect the mechanisms of a 

free and open market in municipal 

securities and would serve to promote 

the statutory mandate of the MSRB to 

protect investors and the public interest. 

Voluntary dissemination of preliminary 

official statements through EMMA, 

particularly if made available prior to 

the sale of a primary offering to the 

underwriters, would provide timely 

access by investors and other market 

participants to key information useful in 

making an investment decision in a 

manner that is consistent with the 

MSRB’s statutory authority. The GFOA– 

CAFR Certificate would assist investors 

and other market participants in 

assessments of information provided in 

an issuer’s CAFR, while the GASB– 

GAAP undertaking would assist 

understanding of how such information 

was prepared and the annual filing 

undertaking would assist understanding 

of when such information is expected to 

be available in the future. A URL 

provided by an issuer or obligated 

person would provide investors with an 

additional avenue for obtaining further 

financial, operating or other investmentrelated information about such issuer or 

obligated person. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

The MSRB does not believe the 

proposed rule change would impose any 

burden on competition not necessary or 

appropriate in furtherance of the 

purposes of the Act. The additional 

items of information submitted by 

issuers and obligated persons to the 

EMMA system for public dissemination 

would be available to all persons 

simultaneously. In addition to making 

such information available for free on 

the EMMA Web portal to all members 

of the public, the MSRB would make 

such documents and information 

available by subscription on an equal 

and non-discriminatory basis. Further, 

the proposed rule change would apply 

equally to all issuers and obligated 

persons. 

The MSRB does not believe that 

making the additional items of 

information to be included in the 

EMMA continuing disclosure service 

available to the public would compete 

with other information providers and, to 

the extent other information providers 

were to seek to make such information 

available to the public, such providers 

could obtain the information from the 

MSRB through the subscription service 

on an equal and non-discriminatory 

basis. Further, the MSRB does not 

believe that allowing issuers to submit 

documents to the EMMA primary 

market disclosure service would create 

a burden on or compete inappropriately 

with any other information providers to 

which such documents may also be 

provided and notes that other 

information providers would be able to 

obtain the information from the MSRB 

through the subscription service on an 

equal and non-discriminatory basis. 

The proposed rule change also would 

not impose any additional burdens on 

competition among issuers of municipal 

securities since the voluntary 

submissions provided for under the 

proposed rule change may be made by 

any issuer on an equal and nondiscriminatory basis. Issuers are not 

required to be members of the GFOA in 

order to be eligible for the GFOA–CAFR 

Certificate. Although a fee is assessed 

for the necessary review by the GFOA 

to qualify for the GFOA–CAFR 

Certificate, the GFOA has established a 

sliding fee scale based on revenues that 

it views as addressing affordability for 

small issuers. Some issuers may choose 

not to apply for the GFOA–CAFR 

Certificate based on the fees assessed or 

other considerations. However, the 

proposed rule change would provide for 

disclosure of the additional voluntary 

items if an issuer elects to make such 

disclosures. 

C. Self-Regulatory Organization’s 

Statement on Comments on the 

Proposed Rule Change Received From 

Members, Participants, or Others 

Written comments were neither 

solicited nor received on the proposed 

rule change. Therefore, no comments 

were received with regard to the 

proposed additional items of disclosure 

under the EMMA continuing disclosure 

service. However, several commentators 

provided comments to the MSRB with 

respect to the submission of preliminary 

official statements to EMMA in response 

to a series of notices published by the 

MSRB seeking comment on the 

establishment of EMMA for purposes of 

official statement dissemination.8


jlentini on DSKJ8SOYB1PROD with NOTICES
Federal Register / Vol. 74, No. 139 / Wednesday, July 22, 2009 / Notices 36297 

relating to preliminary official statement 

submissions were received in response to the 

Concept Release from American Government 

Financial Services Company (‘‘AGFS’’), TRB 

Associates (‘‘TRB’’), UMB Bank, N.A. (‘‘UMB’’), and 

Zions Bank Public Finance (‘‘Zions’’). Comments 

relating to preliminary official statement 

submissions were received in response to the 

January 2007 Notice from American Municipal 

Securities, Inc. (‘‘AMS’’), DPC DATA Inc. (‘‘DPC’’), 

Ipreo Holdings LLC (‘‘Ipreo’’), National Association 

of Bond Lawyers (‘‘NABL’’), and Securities Industry 

and Financial Markets Association (‘‘SIFMA’’). 9Bear Stearns & Co., Inc. and Griffin, Kubik, 

Stephens & Thompson, Inc. stated that they 

participated in the formulation of SIFMA’s 

comments on the January 2007 Notice and fully 

supported SIFMA’s positions. 10See Securities Exchange Act Release No. 59636 

(March 27, 2009), 74 FR 15190 (April 2, 2009) (File 

No. SR–MSRB–2009–02). 

SIFMA,9 along with AMS, DPC, Ipreo, 

NABL, TRB, UMB and Zions, supported 

the concept of voluntary submissions of 

preliminary official statements. DPC and 

AGFS suggested that the MSRB explore 

making the submission of preliminary 

official statements mandatory, while 

SIFMA, AMS and NABL emphasized 

that preliminary official statement 

submissions should not be made 

mandatory. The MSRB believes that 

there is considerable value in providing 

a means for centralized access to 

preliminary official statements at or 

prior to the time of trade and in 

sufficient time to make use of the 

information in coming to an investment 

decision. However, the MSRB is 

precluded from mandating pre-sale 

submission of preliminary official 

statements pursuant to Section 

15B(d)(1) of the Act. In its filing with 

the Commission to establish the EMMA 

primary market disclosure service, the 

MSRB stated that it expected to provide 

the opportunity for voluntary 

submissions of and access to 

preliminary official statements through 

EMMA, consistent with the MSRB’s 

statutory authority, pursuant to a future 

filing with the Commission.10 The 

proposed rule change would permit 

such voluntary submissions of 

preliminary official statements. 

SIFMA and DPC noted the importance 

of ensuring version control where both 

preliminary official statements and 

official statements are made available 

(as well as in handling ‘‘stickers’’ to 

official statements), suggesting that the 

MSRB include a mechanism for 

notification to the public when the final 

official statement is posted in cases 

where a preliminary official statement 

has previously been submitted. DPC 

suggested that preliminary official 

statements be deleted when final official 

statements are submitted, while NABL 

suggested that underwriters be 

permitted to request that the 

preliminary official statement be 

removed from the centralized electronic 

system once the ‘‘timeliness of a POS 

has ended,’’ noting that its continued 

availability may confuse investors. 

However, SIFMA opposed the removal 

of the preliminary official statement. 

The MSRB notes that the current 

operation of the EMMA Web portal 

provides processes that address each of 

these suggestions. Under current Rule 

G–32, preliminary official statements, if 

available, are required to be submitted 

by the underwriter by closing solely in 

the circumstance where an official 

statement is not being prepared by the 

issuer or if the official statement is not 

available for submission to EMMA by 

the closing. Once the official statement 

is provided by the underwriter, the 

preliminary official statement generally 

is moved to a document archive that is 

accessible through the EMMA portal 

directly from the page where the link to 

the official statement is provided, 

thereby distinguishing the final official 

statement from the preliminary official 

statement while maintaining public 

access for those wishing to refer back to 

the preliminary official statement. Users 

of the EMMA portal are able to request 

to receive e-mail notifications for 

updates to the disclosure document for 

a specific security, which applies to the 

situation where an official statement is 

submitted to EMMA following an initial 

submission of the preliminary official 

statement. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

Within 35 days of the date of 

publication of this notice in the Federal 

Register or within such longer period (i) 

as the Commission may designate up to 

90 days of such date if it finds such 

longer period to be appropriate and 

publishes its reasons for so finding or 

(ii) as to which the self-regulatory 

organization consents, the Commission 

will: 

A. By order approve such proposed 

rule change, or 

B. Institute proceedings to determine 

whether the proposed rule change 

should be disapproved. 

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 

announced no later than sixty (60) days 

prior to the effective date. 

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–MSRB–2009–10 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–MSRB–2009–10. 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 such filing also will be 

available for inspection and copying at 

the principal office of the MSRB. 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–MSRB–2009–10 and should 

be submitted on or before August 12, 

2009. 


jlentini on DSKJ8SOYB1PROD with NOTICES
36298 Federal Register / Vol. 74, No. 139 / Wednesday, July 22, 2009 / Notices 

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). 

4See Securities Exchange Act Release No. 57323 

(February 13, 2008), 73 FR 9371 (February 20, 2008) 

(SR–NYSE–2008–09). 

5See Securities Exchange Act Release No. 57826 

(May 15, 2008), 73 FR 29802 (May 22, 2008) (SR– 

NASDAQ–2007–001). 

6See Securities Exchange Act Release No. 58328 

(August 8, 2008), 73 FR 47247 (August 13, 2008) 

(SR–NYSE–2008–63). 

7See Securities Exchange Act Release No. 58732 

(October 3, 2008), 73 FR 61183 (October 15, 2008) 

(SR–NYSE–2008–99). 

8See Securities Exchange Act Release No. 59255 

(January 15, 2009) 74 FR 4496 (January 26, 2009) 

(SR–NYSE–2009–02). 

9See Securities Exchange Act Release No. 59581 

(March 9, 2009) 74 FR 12431 (March 24, 2009) (SR– 

NYSE–2009–26). 

10See Securities Exchange Act Release No. 59838 

(April 28, 2009) 74 FR 20767 (May 5, 2009) (SR– 

NYSEArca–2009–36) (See NYSE Arca Rule 7.10). 

11See Securities Exchange Act Release No. 59581 

(March 9, 2009) 74 FR 12431 (March 24, 2009) (SR– 

NYSE–2009–26). 

12See Securities Exchange Act Release No. 60131 

(June 17, 2009) 74 FR 30196 (June 24, 2009) (SR– 

NYSEArca–2009–57). 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.11

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–17354 Filed 7–21–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–60312; File No. SR–NYSE– 

2009–70] 

Self-Regulatory Organizations; New 

York Stock Exchange LLC; Notice of 

Filing and Immediate Effectiveness of 

Proposed Rule Change Extending Until 

August 1, 2009 the Operation of Interim 

NYSE Rule 128, Which Permits the 

Exchange To Cancel or Adjust Clearly 

Erroneous Executions 

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 15, 

2009, New York Stock Exchange LLC 

(‘‘NYSE’’ or 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. NYSE 

has designated the proposed rule change 

as constituting a 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, as amended, from interested 

persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange proposes to extend 

until August 1, 2009, the operation of 

interim NYSE Rule 128 (‘‘Clearly 

Erroneous Executions for NYSE 

Equities’’) which permits the Exchange 

to cancel or adjust clearly erroneous 

executions if they arise out of the use or 

operation of any quotation, execution or 

communication system owned or 

operated by the Exchange, including 

those executions that occur in the event 

of a system disruption or system 

malfunction. The text of the proposed 

rule change is available at the Exchange, 

the Commission’s Public Reference 

Room, and http://www.nyx.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 extend 

until August 1, 2009, the operation of 

interim NYSE Rule 128 (‘‘Clearly 

Erroneous Executions for NYSE 

Equities’’) which permits the Exchange 

to cancel or adjust clearly erroneous 

executions if they arise out of the use or 

operation of any quotation, execution or 

communication system owned or 

operated by the Exchange, including 

those executions that occur in the event 

of a system disruption or system 

malfunction. 

Prior to the implementation of NYSE 

Rule 128 on January 28, 2008,4 the 

NYSE did not have a rule providing the 

Exchange with the authority to cancel or 

adjust clearly erroneous trades of 

securities executed on or through the 

systems and facilities of the NYSE. 

In order for the NYSE to be consistent 

with other national securities exchanges 

which have some version of a clearly 

erroneous execution rule, the Exchange 

is drafting an amended clearly 

erroneous rule which will accommodate 

such other exchanges but will be 

appropriate for the NYSE market model. 

The NYSE notes that the Commission 

approved an amended clearly erroneous 

execution rule for Nasdaq in May 2008.5

On July 28, 2008, the Exchange filed 

with the SEC a request to extend the 

operation of interim Rule 128 until 

October 1, 2008 6 in order to review the 

provisions of Nasdaq’s clearly erroneous 

rule and to consider integrating similar 

standards into its own amendment to 

Rule 128. On October 1, 2008,7 the 

Exchange filed with the SEC a further 

request to extend the operation of 

interim Rule 128 until January 9, 2009 

in order to consider integrating similar 

standards into the amendment to Rule 

128. On January 9, 2009,8 the Exchange 

filed with the SEC a request to extend 

the operation of interim Rule 128 until 

March 9, 2009, indicating that the 

Exchange was still in the process of 

reviewing the Nasdaq rule with a view 

towards incorporating certain 

provisions into the amendment of 

interim Rule 128. 

On February 10, 2009, NYSE Arca 

submitted a proposal to the SEC to 

amend its clearly erroneous rule. The 

NYSE Arca proposed rule differed in 

certain respects from the Nasdaq clearly 

erroneous rule. On March 9, 2009, the 

Exchange filed with the SEC a request 

to extend the operation of interim Rule 

128 until June 9, 2009 9 to finalize 

review of NYSE Arca’s proposed 

amended CEE rule, which included 

marketwide CEE initiatives, to 

determine if it was appropriate to 

incorporate such provisions into the 

Rule 128 amendment. 

Thereafter, on April 24, 2009, NYSE 

Arca filed a revised rule change with the 

Commission to amend its clearly 

erroneous rule (NYSE Arca Rule 7.10).10

The Exchange was in the process of 

finalizing its review of NYSE Arca’s 

revised CEE rule change, which also 

included marketwide CEE initiatives, to 

determine if it was appropriate to 

incorporate all such provisions into 

NYSE’s interim Rule 128 amendment. 

On June 9, 2009, the Exchange filed 

with the SEC a request to extend the 

operation of interim Rule 128 until July 

15, 2009 11 to finalize review of NYSE 

Arca’s proposed amended CEE rule.12

The Exchange anticipates finalizing 

proposed rule text of its clearly 

erroneous execution rule shortly, and is, 

therefore, requesting to extend the 

operation of interim Rule 128 until 

August 1, 2009. Prior to August 1, 2009, 


jlentini on DSKJ8SOYB1PROD with NOTICES