[Federal Register Volume 74, Number 120 (Wednesday, June 24, 2009)]
[Notices]
[Pages 30192-30194]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-14725]


-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-60123; File No. SR-NYSEAmex-2009-28]


Self-Regulatory Organizations; NYSE Amex LLC; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To Make Available 
Without Charge the NYSE Amex OpenBook\TM\ Datafeeds

June 17, 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 June 12, 2009, NYSE Amex LLC (``NYSE Amex'' 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.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.

---------------------------------------------------------------------------

[[Page 30193]]

I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to make available without charge the NYSE 
Amex OpenBook datafeeds. The text of the proposed rule change is 
available at the Exchange, the Commission's Public Reference Room, and 
http://www.nyse.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
    NYSE Amex proposes to make available without charge the NYSE Amex 
OpenBook datafeeds.

The Service

    NYSE Amex OpenBook responds to the desire of some market 
participants for depth-of-market data. It is a compilation of limit 
order data resident in the NYSE Amex limit order book for both equities 
and options traded on NYSE Amex (collectively, ``NYSE Amex Data'') that 
the Exchange provides through two real-time datafeeds, one for NYSE 
Amex OpenBook data relating to equity securities that trade through 
NYSE Amex facilities and one for NYSE Amex OpenBook data relating to 
options traded through NYSE Amex facilities.\4\ The Exchange updates 
NYSE Amex OpenBook information upon receipt of each displayed limit 
order. For every limit price, NYSE Amex OpenBook includes the aggregate 
order volume. The Exchange makes the datafeeds available to market data 
vendors, broker-dealers, private network providers and other entities 
(collectively, ``Vendors'').
---------------------------------------------------------------------------

    \4\ The NYSE Amex OpenBook datafeed has been operational since 
December 1, 2008 and has been provided free of charge.
---------------------------------------------------------------------------

    Some of the depth-of-book information included in NYSE Amex 
OpenBook is not available through the CQ Plan, the ``Reporting Plan for 
Nasdaq/National Market System Securities Traded on an Exchange on an 
Unlisted or Listed Basis'' (the ``UTP Plan'') \5\ or the OPRA Plan.\6\ 
By making NYSE Amex Data available, NYSE Amex OpenBook enhances market 
transparency and fosters competition among orders and markets. The 
Exchange makes the datafeeds available to members and non-members, and 
permits Vendors to make it available to both professional and 
nonprofessional subscribers.
---------------------------------------------------------------------------

    \5\ The Exchange does not currently trade securities for which 
reporting takes place under the UTP Plan (``UTP Plan Securities''), 
though it has done so in the past and anticipates doing so in the 
near future. Once that [sic] trading re-commences, the NYSE Amex 
OpenBook equities datafeed will include data relating to UTP Plan 
Securities, as well as data relating to securities that report under 
the CTA Plan (``CTA Plan Securities''). For that reason, the 
proposed rule change applies to NYSE Amex Data relating to UTP Plan 
Securities, as well as to NYSE Amex Data relating to CTA Plan 
Securities.
    \6\ The Exchange notes that it makes available to vendors the 
best bids and offers that are included in NYSE Amex OpenBook data no 
earlier than it makes those best bids and offers available to the 
processors under the CQ Plan, the UTP Plan and the OPRA Plan.
---------------------------------------------------------------------------

    NYSE Amex contemplates that it will propose to impose fees for the 
receipt, display and use of NYSE Amex OpenBook. NYSE Amex will submit a 
proposed rule change to the Commission in order to implement those 
fees.

Contracts

    The Exchange will require each recipient of a datafeed containing 
NYSE Amex Data to enter into the form of ``vendor'' agreement into 
which the CTA and CQ Plans require recipients of the Network A 
datafeeds to enter (the ``Consolidated Vendor Form''). That agreement 
will authorize the datafeed recipient to provide NYSE Amex Data 
services to its customers or to distribute the data internally.
    In addition, the Exchange will require each professional end-user 
that receives NYSE Amex Data displays from a vendor or broker-dealer to 
enter into the form of professional subscriber agreement into which the 
CTA and CQ Plans require end users of Network A data to enter and to 
require vendors and broker-dealers to subject nonprofessional 
subscribers to the same contract requirements as the CTA and CQ Plan 
Participants require of Network A non-professional subscribers.
    The Network A Participants drafted the vendor and Network A 
professional subscriber agreements as one-size-fits-all forms to 
capture most categories of market data dissemination. They are 
sufficiently generic to accommodate NYSE Amex Data, subject to the 
Exhibit C requirements described below. The Network A Participants 
submitted the Consolidated Vendor Form and the professional subscriber 
form to the Commission for comment and notice.\7\
---------------------------------------------------------------------------

    \7\ See Securities Exchange Act Release Nos. 22851 (January 31, 
1986), 51 FR 5135 (February 11, 1986); 28407 (September 6, 1990), 55 
FR 37276 (September 10, 1990) (File No. 4-281); and 49185 (February 
4, 2004), 69 FR 6704 (February 11, 2004) (SR-CTA/CQ-2003-01).
---------------------------------------------------------------------------

    Because it was recognized that the Consolidated Vendor Form could 
not anticipate every aspect of a vendor's receipt and use of market 
data or future advances in technology or new product offerings, 
Paragraph 19(a) of the form provides that ``Exhibit C, if any, contains 
additional provisions applicable to any non-standard aspects of 
Customer's Receipt and Use of Market Data.''
    NYSE Amex proposes to subject NYSE Amex OpenBook datafeed 
recipients to the same ``additional'' provisions as NYSE imposes on 
recipients of NYSE OpenBook in an Exhibit C that is substantially the 
same as the NYSE OpenBook Exhibit C. (Exhibit 5 presents the form of 
Exhibit C that the Exchange proposes to use for NYSE AmexOpenBook.) 
Those Exhibit C terms and conditions would:
     Require any display or montage that incorporates NYSE Amex 
OpenBook data with limit orders or other market information that any 
source other than NYSE Amex makes available (an ``Integrated Display'') 
to associate the identifier ``NYSE Amex'' with each element or line of 
NYSE Amex OpenBook data that is included in the Integrated Display, or 
require the Vendor to provide a second integrated display (an 
``Attributed Integrated Display'') that includes such an identifier.
     Require the Vendor to indicate in any Attributed 
Integrated Display the number of shares attributable to the NYSE Amex 
OpenBook bids and offers at each price level.
     Require any Vendor that makes Integrated Displays 
available to also:
    a. Make NYSE Amex OpenBook Information available as a product that 
is separate and apart from information products that include other 
market centers' information; and
    b. Make its subscribers aware of the availability of the stand-
alone NYSE OpenBook product in the same manner as it makes its 
subscribers aware of the integrated product; and (iv).
     Require each Vendor to add to Exhibit A a sample of each 
new screen shot to demonstrate the manner of the

[[Page 30194]]

display and any modification to previous displays.

The Vendor is required to submit the new screen shot no later than at 
the time it first commences to provide the new or modified display to 
others.
    The display requirements do not apply insofar as the data recipient 
distributes NYSE AMEX OpenBook data to its officers, partners and 
employees or to those of its affiliates.
2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with 
and furthers the objectives of Section 6(b)(5) of the Act,\8\ in that 
it is 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. The Exchange believes that this 
proposal is in keeping with those principles by promoting increased 
transparency through the dissemination of NYSE Amex OpenBook data.
---------------------------------------------------------------------------

    \8\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

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

    The Exchange has not solicited, and does not intend to solicit, 
comments regarding this proposed rule change. The Exchange has not 
received any unsolicited written comments from members or other 
interested parties.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Because the foregoing proposed rule change: (i) Does not 
significantly affect the protection of investors or the public 
interest; (ii) does not impose any significant burden on competition; 
and (iii) by its terms, does not become operative for 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, it has become effective pursuant to Section 
19(b)(3)(A) of the Act \9\ and Rule 19b-4(f)(6) thereunder.\10\
---------------------------------------------------------------------------

    \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 self-regulatory organization to submit to the 
Commission written notice of its 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.
---------------------------------------------------------------------------

    The Exchange has requested that the Commission waive the 30-day 
operative delay so that the proposal may become operative immediately 
upon filing in order to immediately provide market participants that 
use NYSE Amex OpenBook with more information about the current state of 
the NYSE Amex market and provide increased transparency to market 
participants. The Commission believes such waiver is consistent with 
the protection of investors and the public interest.\11\ Accordingly, 
the Commission designates the proposed rule change operative upon 
filing with the Commission.
---------------------------------------------------------------------------

    \11\ For purposes only of waiving the 30-day operative delay of 
this proposal, the Commission has considered the proposed rule's 
impact on efficiency, competition, and capital formation. See 15 
U.S.C. 78c(f).
---------------------------------------------------------------------------

    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 [email protected]. Please include 
File Number SR-NYSEAmex-2009-28 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-NYSEAmex-2009-28. 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-NYSEAmex-2009-28 and should be submitted on or before 
July 15, 2009.
---------------------------------------------------------------------------

    \12\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\12\
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-14725 Filed 6-23-09; 8:45 am]
BILLING CODE 8010-01-P