Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Order Granting Accelerated Approval of Proposed Rule Change To Extend the Pilot Program for NYSE Arca Realtime Reference Prices Service, 755-757 [E9-8]
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Federal Register / Vol. 74, No. 4 / Wednesday, January 7, 2009 / Notices
Commission finds that the proposed
rule change is consistent with Section
6(b)(5) of the Act,7 which requires that
the rules of the Exchange be designed,
among other things, 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 believes that the
proposal reasonably balances the
removal of impediments to a free and
open market with the protection of
investors and the public interest, two
principles set forth in Section 6(b)(5) of
the Act. As a result of the proposal, the
permissible percentage of underlying
foreign country securities and/or foreign
country securities underlying ADRs
trading on foreign markets that are not
ISG members or parties to a CSSA with
the Exchange would be limited to 50%
of the overall dollar weight of the index.
The Commission believes that this
portion of the proposal would permit
increased flexibility with respect to
listing and trading Equity Index-Linked
Securities. At the same time, the
proposed amendment also provides that
the securities trading on: (1) Any one
Non-Reciprocal Foreign Market must
not constitute more than 20% of the
overall dollar weight of the index; and
(2) any two Non-Reciprocal Foreign
Markets must not constitute more than
33% of the overall dollar weight of the
index. These conditions establish
concentration limits designed to ensure
that a significant percentage of an
underlying index is not composed of
securities trading on any one or two
Non-Reciprocal Foreign Markets.
Additionally, in light of its proposed
revision to the listing criteria for Equity
Index-Linked Securities, the Exchange
has renewed its representation that its
surveillance procedures applicable to
Equity Index-Linked Securities are
adequate to detect and deter violations
of its Rules and all applicable federal
securities laws.8
The Commission also believes that the
technical and non-substantive changes
to NYSE Arca Equities Rule
5.2(j)(6)(B)(I)(1)(b)(v) clarify the format
and application of the proposed
amendment related to Equity IndexLinked Securities.
impact on efficiency, competition, and capital
formation. See 15 U.S.C. 78c(f).
7 15 U.S.C. 78f(b)(5).
8 See e-Mail from Tim Malinowski, Director,
NYSE Euronext, to Christopher W. Chow, Special
Counsel, Commission, dated December 23, 2008.
See also Securities Exchange Act Release No. 56637
(October 10, 2007), 72 FR 58704, 58709 (October 16,
2007).
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IV. Conclusion
It is therefore ordered, pursuant to
Section 19(b)(2) of the Act,9 that the
proposed rule change (SR–NYSEArca–
2008–121) be, and it hereby is,
approved.
of those statements may be examined at
the places specified in Item III below.
The Exchange has prepared summaries,
set forth in sections A, B, and C below,
of the most significant parts of such
statements.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.10
Florence E. Harmon,
Acting Secretary.
[FR Doc. E9–6 Filed 1–6–09; 8:45 am]
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–59184; File No. SR–
NYSEArca–2008–143]
Self-Regulatory Organizations; NYSE
Arca, Inc.; Notice of Filing and Order
Granting Accelerated Approval of
Proposed Rule Change To Extend the
Pilot Program for NYSE Arca Realtime
Reference Prices Service
December 30, 2008.
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 December
30, 2008, NYSE Arca, Inc. (the
‘‘Exchange’’ or ‘‘NYSE Arca’’) 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
Commission is publishing this notice to
solicit comments on the proposed rule
change from interested persons, and is
approving the proposal on an
accelerated basis.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange proposes to extend the
expiration date of its pilot program for
the NYSE Arca Realtime Reference
Prices service until March 31, 2009.
There is no new rule text.
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
9 15
U.S.C. 78s(b)(2).
CFR 200.30–3(a)(12).
1 15 U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
10 17
PO 00000
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Fmt 4703
Sfmt 4703
1. Purpose
In File No. SR–NYSEArca–2008–96,
the Exchange established a pilot
program that allows the Exchange to test
the viability of a new NYSE Arca-only
market data service that 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’’) and to
establish a flat monthly fee for that
service. The Commission approved that
pilot program on August 29, 2008.3
The Exchange intends for the NYSE
Arca Realtime Reference Prices service
to accomplish three goals:
1. To provide a low-cost service that
will make real-time prices widely
available to millions of casual investors;
2. To provide vendors with a real-time
substitute for delayed prices; and
3. To relieve vendors of
administrative burdens.
This pilot program is similar to pilot
programs that the Nasdaq Stock Market,
Inc. (‘‘Nasdaq’’) 4 and the New York
Stock Exchange, LLC (‘‘NYSE’’) 5 have
established.
The pilot program allows internet
service providers, traditional market
data vendors, and others (‘‘NYSE ArcaOnly Vendors’’) to make available NYSE
Arca Realtime Reference Prices on a
real-time basis.6 The NYSE Arca
Realtime Reference Price information
includes last sale prices for all securities
that trade on the Exchange. It includes
only prices, and not the size of each
trade and not bid/asked quotations.
It features a flat, fixed monthly vendor
fee, no user-based fees, no vendor
reporting requirements, and no
professional or non-professional
subscriber agreements.
3 See Securities Exchange Act Release No. 58444
(August 29, 2008), 73 FR 51872 (September 5, 2008)
(SR–NYSEArca–2008–96).
4 See Securities Exchange Act Release Nos. 57965
(June 16, 2008), 73 FR 35178 (June 20, 2008) (SR–
NASDAQ–2006–060); 57973 (June 16, 2008), 73 FR
35430 (June 23, 2008) (SR–NASDAQ–2008–050).
5 See Securities Exchange Act Release No. 57966
(June 16, 2008), 73 FR 35182 (June 20, 2008) (SR–
NYSE–2007–04).
6 The 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.
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Federal Register / Vol. 74, No. 4 / Wednesday, January 7, 2009 / Notices
The Exchange established November
1, 2008 as the end date for the pilot
program. The Exchange then extended
that end date to December 31, 2008.7
The Exchange now seeks to extend that
end date to March 31, 2009. Prior to the
end of the pilot period, the Exchange
will assess its experience with the
product and either will submit a
proposed rule change that seeks to
extend or modify the pilot program or
to make it permanent, or it will
announce publicly that it does not seek
to extend the pilot program beyond the
program’s termination date.
2. Statutory Basis
The basis under the Act for this
proposed rule change is the requirement
under Section 6(b)(4) 8 that an exchange
have rules that provide for the equitable
allocation of reasonable dues, fees and
other charges among its members and
other persons using its facilities and the
requirements under Section 6(b)(5) 9
that the rules of an exchange be
designed to promote just and equitable
principles of trade and not to permit
unfair discrimination between
customers, issuers, brokers or dealers.
The Exchange believes that the pilot
program benefits investors by
facilitating their prompt access to
widespread, free, real-time pricing
information contained in the NYSE Arca
Realtime Reference Prices service.
Extending the pilot program will extend
those benefits while the Exchange
assesses the service.
B. Self-Regulatory Organization’s
Statement on Burden on Competition
The Exchange does not believe that
this proposed rule change will result in
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
The Exchange has not received any
unsolicited written comments from
members or other interested parties.
III. 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:
7 See Securities Exchange Act Release No. 58895
(October 31, 2008), 73 FR 66956 (November 12,
2008) (SR–NYSEArca–2008–122).
8 15 U.S.C. 78f(b)(4).
9 15 U.S.C. 78f(b)(5).
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Electronic Comments
Act,11 which requires that the rules of
a national securities exchange provide
• Use the Commission’s Internet
for the equitable allocation of reasonable
comment form (https://www.sec.gov/
dues, fees, and other charges among its
rules/sro.shtml); or
members and issuers and other parties
• Send an e-mail to ruleusing its facilities, and Section 6(b)(5) of
comments@sec.gov. Please include File
the Act,12 which requires, among other
Number SR–NYSEArca–2008–143 on
things, that the rules of a national
the subject line.
securities exchange be designed to
promote just and equitable principles of
Paper Comments
trade, to remove impediments to and
• Send paper comments in triplicate
perfect the mechanism of a free and
to Secretary, Securities and Exchange
open market and a national market
Commission, 100 F Street, NE.,
system and, in general, to protect
Washington, DC 20549–1090.
investors and the public interest, and
All submissions should refer to File
not be designed to permit unfair
Number SR–NYSEArca–2008–143. This discrimination between customers,
file number should be included on the
issuers, brokers, or dealers.
subject line if e-mail is used. To help the
The Commission also finds that the
Commission process and review your
proposed rule change is consistent with
comments more efficiently, please use
the provisions of Section 6(b)(8) of the
only one method. The Commission will Act,13 which requires that the rules of
post all comments on the Commission’s an exchange not impose any burden on
Internet Web site (https://www.sec.gov/
competition not necessary or
rules/sro.shtml). Copies of the
appropriate in furtherance of the
submission, all subsequent
purposes of the Act. Finally, the
amendments, all written statements
Commission finds that the proposed
with respect to the proposed rule
rule change is consistent with Rule
change that are filed with the
603(a) of Regulation NMS,14 adopted
Commission, and all written
under Section 11A(c)(1) of the Act,
communications relating to the
which requires an exclusive processor
proposed rule change between the
that distributes information with respect
Commission and any person, other than to quotations for or transactions in an
those that may be withheld from the
NMS stock to do so on terms that are
public in accordance with the
fair and reasonable and that are not
provisions of 5 U.S.C. 552, will be
unreasonably discriminatory.15
The Commission approved the fee for
available for inspection and copying in
NYSE Arca Realtime Reference Prices
the Commission’s Public Reference
Room, on official business days between for a pilot period which runs until
December 31, 2008.16 The Commission
the hours of 10 a.m. and 3 p.m. Copies
notes that the Exchange proposes to
of the filing also will be available for
extend the pilot program for three
inspection and copying at the principal
months. The Exchange proposes no
office of the Exchange. All comments
received will be posted without change; other changes to the existing pilot
program.
the Commission does not edit personal
On December 2, 2008, the
identifying information from
Commission issued an approval order
submissions. You should submit only
(‘‘Order’’) that sets forth a market-based
information that you wish to make
approach for analyzing proposals by
available publicly. All submissions
self-regulatory organizations to impose
should refer to File Number SR–
fees for ‘‘non-core’’ market data
NYSEArca–2008–143 and should be
submitted on or before January 28, 2009. products, such as NYSE Arca Realtime
Reference Prices.17 The Commission
IV. Commission’s Findings and Order
believes that NYSE Arca’s proposal to
Granting Accelerated Approval of a
Proposed Rule Change
11 15 U.S.C. 78f(b)(4).
The Commission finds that the
proposed rule change, to extend the
pilot program for three months, is
consistent with the requirements of the
Act and the rules and regulations
thereunder applicable to a national
securities exchange.10 In particular, it is
consistent with Section 6(b)(4) of the
10 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).
PO 00000
Frm 00086
Fmt 4703
Sfmt 4703
12 15
U.S.C. 78f(b)(5).
U.S.C. 78f(b)(8).
14 17 CFR 242.603(a).
15 NYSE Arca is an exclusive processor of its last
sale data 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 data on an exclusive basis on its own
behalf.
16 See supra notes 3 and 7.
17 See Securities Exchange Act Release No. 59039
(December 2, 2008), 73 FR 74770 (December 9,
2008) (Order Setting Aside Action by Delegated
Authority and Approving Proposed Rule Change
Relating to NYSE Arca Data).
13 15
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Federal Register / Vol. 74, No. 4 / Wednesday, January 7, 2009 / Notices
temporarily extend the pilot program is
consistent with the Act for the reasons
noted in the Order.18 The Commission
believes that approving NYSE Arca’s
proposal to temporarily extend the pilot
program that imposes a fee for NYSE
Arca Realtime Reference Prices for an
additional three months will be
beneficial to investors and in the public
interest, in that it is intended to allow
continued broad public dissemination
of increased real-time pricing
information. In addition, extending the
pilot program for an additional three
months will allow NYSE Arca,
consistent with its representation,19 to
file, the public to comment on, and the
Commission to analyze consistent with
the Order and in light of Section 19(b)
of the Act, a proposal to permanently
approve the fee for NYSE Arca Realtime
Reference Prices.
The Commission finds good cause for
approving the proposed rule change
before the thirtieth day after the date of
publication of notice of filing thereof in
the Federal Register. Accelerating
approval of this proposal is expected to
benefit investors by continuing to
facilitate their access to widespread,
free, real-time pricing information
contained in NYSE Arca Realtime
Reference Prices. Therefore, the
Commission finds good cause,
consistent with Section 19(b)(2) of the
Act,20 to approve the proposed rule
change on an accelerated basis to extend
the operation of the pilot until March
31, 2009.
V. Conclusion
It is therefore ordered, pursuant to
Section 19(b)(2) of the Act, that the
proposed rule change (SR–NYSEArca–
2008–143) is hereby approved on an
accelerated basis until March 31, 2009.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.21
Florence E. Harmon,
Acting Secretary.
[FR Doc. E9–8 Filed 1–6–09; 8:45 am]
BILLING CODE 8011–01–P
18 See
supra notes 3 and 7.
19 The Exchange represents that it intends to file
a proposal seeking permanent approval of NYSE
Arca Realtime Reference Prices. Telephone
conversation between Ronald Jordan, Executive
Vice President, Market Data Services, NYSE
Euronext, and John Roeser, Assistant Director,
Division of Trading and Markets, Commission, on
December 30, 2008.
20 15 U.S.C. 78s(b)(2).
21 17 CFR 200.30–3(a)(12).
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16:10 Jan 06, 2009
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SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–59191; File No. SR–
NYSEArca–2008–139]
Self-Regulatory Organizations; Notice
of Filing of Proposed Rule Change by
NYSE Arca, Inc. Amending the Minor
Rule Plan To Increase Certain
Sanctions
December 31, 2008.
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 December
17, 2008, NYSE Arca, Inc. (‘‘NYSE
Arca’’ or the ‘‘Exchange’’) 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. 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
Rule 10.12 Minor Rule Plan by
increasing certain sanctions contained
in the fine schedule. The Exchange also
proposes to make minor technical
changes at this time. A copy of this
filing is available on the Exchange’s
Web site at https://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
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 Minor Rule Plan (‘‘MRP’’) fosters
compliance with applicable rules and
also helps to reduce the number and
1 15
2 17
PO 00000
U.S.C. 78s(b)(1).
CFR 240.19b–4.
Frm 00087
Fmt 4703
757
extent of rule violations committed by
Options Trading Permit (‘‘OTP’’)
Holders, OTP Firms and associated
persons. The prompt imposition of a
financial penalty helps to quickly
educate and improve the conduct of
OTP Holders, OTP Firms and associated
persons that have engaged in
inadvertent or otherwise minor
violations of the Exchange’s rules,
particularly those who may not pay
attention to mere warnings that they are
violating Exchange rules. By promptly
imposing a meaningful financial penalty
for such violations, the MRP focuses on
correcting conduct before it gives rise to
more serious enforcement action.
Market Makers on NYSE Arca receive
certain rights and privileges in return
for meeting certain obligations. These
obligations include adhering to certain
rules regarding quoting, in-person
trading requirements, and fulfilling the
terms of a Market Maker Appointment.3
Failure to comply with rules these
governing Market Maker obligations
may result in a fine pursuant to the
MRP. At this time the Exchange feels
the current monetary fine levels
contained in the MRP, for violations of
certain rules pertaining to Market
Makers, are too low, given the serious
nature of these rules. In order to act as
an effective deterrent against future
violations, while also serving as a just
penalty for those who commit these
violations, the Exchange proposes to
raise the fine levels for violations
related to certain rules governing Market
Maker obligations. A brief description of
each proposed change is shown below.
Rule 10.12(k)(i)25.
At least 75% of the trading activity of
a Market Maker (measured in terms of
contract volume per quarter) must be in
classes within the Market Maker’s
Appointment. A failure to comply with
the 75% contract volume requirement
may result in a fine of $500.00 for a first
offense, $1,000.00 for a second offense
and $2,500.00 for a third offense. The
Exchange proposes to raise these
suggested fines to $1,000.00 for a first
offense, $2,500.00 for a second offense
and $3,500.00 for a third offense.
Rule 10.12(k)(i)26.
At least 60% of a Market Maker’s
transactions must be executed by the
Market Maker in person or through an
approved facility of the Exchange. A
failure to comply with this 60% inperson trading requirement may result
in a fine of $500.00 for a first offense,
$1,000.00 for a second offense and
$2,500.00 for a third offense. The
Exchange proposes to raise these
3 See NYSE Arca Rule 6.35—Appointment of
Market Makers.
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]]>Agencies
[Federal Register Volume 74, Number 4 (Wednesday, January 7, 2009)]
[Notices]
[Pages 755-757]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-8]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-59184; File No. SR-NYSEArca-2008-143]
Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
and Order Granting Accelerated Approval of Proposed Rule Change To
Extend the Pilot Program for NYSE Arca Realtime Reference Prices
Service
December 30, 2008.
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 December 30, 2008, NYSE Arca, Inc. (the ``Exchange'' or ``NYSE
Arca'') 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
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons, and is approving the
proposal on an accelerated basis.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------
I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange proposes to extend the expiration date of its pilot
program for the NYSE Arca Realtime Reference Prices service until March
31, 2009. There is no new rule text.
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 III 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
In File No. SR-NYSEArca-2008-96, the Exchange established a pilot
program that allows the Exchange to test the viability of a new NYSE
Arca-only market data service that 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'') and to establish a
flat monthly fee for that service. The Commission approved that pilot
program on August 29, 2008.\3\
---------------------------------------------------------------------------
\3\ See Securities Exchange Act Release No. 58444 (August 29,
2008), 73 FR 51872 (September 5, 2008) (SR-NYSEArca-2008-96).
---------------------------------------------------------------------------
The Exchange intends for the NYSE Arca Realtime Reference Prices
service to accomplish three goals:
1. To provide a low-cost service that will make real-time prices
widely available to millions of casual investors;
2. To provide vendors with a real-time substitute for delayed
prices; and
3. To relieve vendors of administrative burdens.
This pilot program is similar to pilot programs that the Nasdaq Stock
Market, Inc. (``Nasdaq'') \4\ and the New York Stock Exchange, LLC
(``NYSE'') \5\ have established.
---------------------------------------------------------------------------
\4\ See Securities Exchange Act Release Nos. 57965 (June 16,
2008), 73 FR 35178 (June 20, 2008) (SR-NASDAQ-2006-060); 57973 (June
16, 2008), 73 FR 35430 (June 23, 2008) (SR-NASDAQ-2008-050).
\5\ See Securities Exchange Act Release No. 57966 (June 16,
2008), 73 FR 35182 (June 20, 2008) (SR-NYSE-2007-04).
---------------------------------------------------------------------------
The pilot program allows internet service providers, traditional
market data vendors, and others (``NYSE Arca-Only Vendors'') to make
available NYSE Arca Realtime Reference Prices on a real-time basis.\6\
The NYSE Arca Realtime Reference Price information includes last sale
prices for all securities that trade on the Exchange. It includes only
prices, and not the size of each trade and not bid/asked quotations.
---------------------------------------------------------------------------
\6\ The 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.
---------------------------------------------------------------------------
It features a flat, fixed monthly vendor fee, no user-based fees,
no vendor reporting requirements, and no professional or non-
professional subscriber agreements.
[[Page 756]]
The Exchange established November 1, 2008 as the end date for the
pilot program. The Exchange then extended that end date to December 31,
2008.\7\ The Exchange now seeks to extend that end date to March 31,
2009. Prior to the end of the pilot period, the Exchange will assess
its experience with the product and either will submit a proposed rule
change that seeks to extend or modify the pilot program or to make it
permanent, or it will announce publicly that it does not seek to extend
the pilot program beyond the program's termination date.
---------------------------------------------------------------------------
\7\ See Securities Exchange Act Release No. 58895 (October 31,
2008), 73 FR 66956 (November 12, 2008) (SR-NYSEArca-2008-122).
---------------------------------------------------------------------------
2. Statutory Basis
The basis under the Act for this proposed rule change is the
requirement under Section 6(b)(4) \8\ that an exchange have rules that
provide for the equitable allocation of reasonable dues, fees and other
charges among its members and other persons using its facilities and
the requirements under Section 6(b)(5) \9\ that the rules of an
exchange be designed to promote just and equitable principles of trade
and not to permit unfair discrimination between customers, issuers,
brokers or dealers.
---------------------------------------------------------------------------
\8\ 15 U.S.C. 78f(b)(4).
\9\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------
The Exchange believes that the pilot program benefits investors by
facilitating their prompt access to widespread, free, real-time pricing
information contained in the NYSE Arca Realtime Reference Prices
service. Extending the pilot program will extend those benefits while
the Exchange assesses the service.
B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that this proposed rule change will
result in 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
The Exchange has not received any unsolicited written comments from
members or other interested parties.
III. 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 (https://
www.sec.gov/rules/sro.shtml); or
Send an e-mail to rule-comments@sec.gov. Please include
File Number SR-NYSEArca-2008-143 on the subject line.
Paper Comments
Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSEArca-2008-143. 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 (https://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 the
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-2008-143 and should be submitted on or before
January 28, 2009.
IV. Commission's Findings and Order Granting Accelerated Approval of a
Proposed Rule Change
The Commission finds that the proposed rule change, to extend the
pilot program for three months, is consistent with the requirements of
the Act and the rules and regulations thereunder applicable to a
national securities exchange.\10\ In particular, it is consistent with
Section 6(b)(4) of the Act,\11\ 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,\12\ 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.
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\10\ 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).
\11\ 15 U.S.C. 78f(b)(4).
\12\ 15 U.S.C. 78f(b)(5).
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The Commission also finds that the proposed rule change is
consistent with the provisions of Section 6(b)(8) of the Act,\13\ 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,\14\ 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.\15\
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\13\ 15 U.S.C. 78f(b)(8).
\14\ 17 CFR 242.603(a).
\15\ NYSE Arca is an exclusive processor of its last sale data
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 data on an exclusive basis on its own behalf.
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The Commission approved the fee for NYSE Arca Realtime Reference
Prices for a pilot period which runs until December 31, 2008.\16\ The
Commission notes that the Exchange proposes to extend the pilot program
for three months. The Exchange proposes no other changes to the
existing pilot program.
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\16\ See supra notes 3 and 7.
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On December 2, 2008, the Commission issued an approval order
(``Order'') that sets forth a market-based approach for analyzing
proposals by self-regulatory organizations to impose fees for ``non-
core'' market data products, such as NYSE Arca Realtime Reference
Prices.\17\ The Commission believes that NYSE Arca's proposal to
[[Page 757]]
temporarily extend the pilot program is consistent with the Act for the
reasons noted in the Order.\18\ The Commission believes that approving
NYSE Arca's proposal to temporarily extend the pilot program that
imposes a fee for NYSE Arca Realtime Reference Prices for an additional
three months will be beneficial to investors and in the public
interest, in that it is intended to allow continued broad public
dissemination of increased real-time pricing information. In addition,
extending the pilot program for an additional three months will allow
NYSE Arca, consistent with its representation,\19\ to file, the public
to comment on, and the Commission to analyze consistent with the Order
and in light of Section 19(b) of the Act, a proposal to permanently
approve the fee for NYSE Arca Realtime Reference Prices.
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\17\ See Securities Exchange Act Release No. 59039 (December 2,
2008), 73 FR 74770 (December 9, 2008) (Order Setting Aside Action by
Delegated Authority and Approving Proposed Rule Change Relating to
NYSE Arca Data).
\18\ See supra notes 3 and 7.
\19\ The Exchange represents that it intends to file a proposal
seeking permanent approval of NYSE Arca Realtime Reference Prices.
Telephone conversation between Ronald Jordan, Executive Vice
President, Market Data Services, NYSE Euronext, and John Roeser,
Assistant Director, Division of Trading and Markets, Commission, on
December 30, 2008.
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The Commission finds good cause for approving the proposed rule
change before the thirtieth day after the date of publication of notice
of filing thereof in the Federal Register. Accelerating approval of
this proposal is expected to benefit investors by continuing to
facilitate their access to widespread, free, real-time pricing
information contained in NYSE Arca Realtime Reference Prices.
Therefore, the Commission finds good cause, consistent with Section
19(b)(2) of the Act,\20\ to approve the proposed rule change on an
accelerated basis to extend the operation of the pilot until March 31,
2009.
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\20\ 15 U.S.C. 78s(b)(2).
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V. Conclusion
It is therefore ordered, pursuant to Section 19(b)(2) of the Act,
that the proposed rule change (SR-NYSEArca-2008-143) is hereby approved
on an accelerated basis until March 31, 2009.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\21\
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\21\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Acting Secretary.
[FR Doc. E9-8 Filed 1-6-09; 8:45 am]
BILLING CODE 8011-01-P
