[Federal Register Volume 74, Number 120 (Wednesday, June 24, 2009)]
[Notices]
[Pages 30184-30186]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-14796]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-60122; File No. SR-NYSEAmex-2009-26]


Self-Regulatory Organizations; NYSE Amex LLC; Notice of Filing of 
Proposed Rule Change to Charge a $500 Monthly Fee to Recipients of the 
NYSE Amex Order Imbalance Information Datafeed

June 17, 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 June 5, 2008, the NYSE Amex LLC (``NYSE Amex'' or ``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.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    NYSE Amex LLC (``NYSE Amex'' or the ``Exchange''), formerly the 
American Stock Exchange LLC, proposes to charge a $500 monthly fee to 
recipients of the NYSE Amex Order Imbalance Information datafeed. The 
text of the proposed rule change is available at the Exchange, the 
Commission's Public Reference Room, and http://www.nyse.com.

[[Page 30185]]

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, NYSE Amex 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. NYSE Amex 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
    NYSE Amex LLC (``NYSE Amex'' or the ``Exchange''), formerly the 
American Stock Exchange LLC, proposes to charge a $500 monthly fee to 
recipients of the NYSE Amex Order Imbalance Information datafeed.
    On April 9, 2009, NYSE Amex formally established its NYSE Amex 
Order Imbalance Information datafeed service (the ``Implementation 
Filing'').\3\ Subsequent to the Implementation Filing, NYSE Amex 
amended NYSE Amex Equity Rules 15 and 123C to modify the reference 
price at which the Exchange reports NYSE Amex Order Imbalance 
Information and to clarify what is included or excluded from the NYSE 
Amex Order Imbalance Information reports (the ``Reference Price 
Filing'').\4\
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    \3\ See Securities Exchange Act Release No. 59743 (April 9, 
2009), 74 FR 17699 (April 16, 2009) (SR-NYSEAmex-2009-11).
    \4\ See Securities Exchange Act Release No. 59816 (April 23, 
2009), 74 FR 19614 (April 29, 2009) (SR-NYSEAmex-2009-13).
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    As more fully described in the Implementation Filing and the 
Reference Price Filing, NYSE Amex Order Imbalance Information provides 
real-time order imbalances that accumulate prior to the opening of 
trading on the Exchange and prior to the close of trading on the 
Exchange. The Exchange provides this information for issues that are 
likely to be of particular trading interest at the opening or closing.
    Currently, the Exchange provides this datafeed at no cost. The 
instant filing is submitted to establish a $500 monthly fee for receipt 
of the NYSE Amex Order Imbalance Information datafeed. This proposed 
$500 monthly fee to recipients of the NYSE Amex Order Imbalance 
Information datafeed applies whether the recipient receives the 
datafeed directly from the Exchange or indirectly from an intermediary. 
The fee entitles the datafeed recipient to make displays of that 
information available to an unlimited number of subscribers for no 
extra charge. The Exchange is not proposing to impose an end-user or 
display service fee on those subscribers.
    The $500 monthly fee would allow vendors to redistribute NYSE Amex 
Order Imbalance Information: (1) Without having to differentiate 
between professional subscribers and nonprofessional subscribers; (2) 
without having to account for the extent of access to data; (3) without 
having to procure contracts with its subscribers for the benefit of the 
Exchange; and (4) without having to report the number of its 
subscribers.
    The Exchange submits that the fee enables the investment community 
that has an interest in the receipt of order imbalance information to 
contribute to the Exchange's operating costs in a manner that is 
appropriate for this market data product.
    In setting the level of the NYSE Amex Order Imbalance Information 
Product fee, the Exchange took into consideration several factors, 
including:
    (1) The fees that other Exchanges are charging for similar services 
\5\;
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    \5\ New York Stock Exchange LLC imposes an access fee of $500 
per month for its order imbalance datafeed. Nasdaq OMX includes 
order imbalance information in its Nasdaq TotalView datafeed. Nasdaq 
OMX imposes end-user charges on both professional and 
nonprofessional subscribers that receive TotalView, as well as an 
array of monthly distribution charges that are significantly higher 
than the charge that NYSE Amex is proposing in this proposed rule 
change.
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    (2) Consultation with some of the entities that the Exchange 
anticipates will be the most likely to take advantage of the proposed 
service;
    (3) The contribution of market data revenues that the Exchange 
believes is appropriate for entities that provide market data to large 
numbers of investors, which are the entities most likely to take 
advantage of the proposed service; and
    (4) The contribution that revenues accruing from the proposed fee 
will make to meet the overall costs of the Exchange's operations.
    In short, the Exchange believes that the proposed NYSE Order 
Imbalance Information fee would reflect an equitable allocation of its 
overall costs to users of its facilities.
    The Exchange believes that the level of the fee is consistent with 
the approach set forth in the approval order issued by the Commission 
related to ArcaBook fees.\6\ In the ArcaBook Approval Order, the 
Commission stated that ``when possible, reliance on competitive forces 
is the most appropriate and effective means to assess whether the terms 
for the distribution of non-core data are equitable, fair and 
reasonable, and not unreasonably discriminatory.'' \7\ It noted that if 
significant competitive forces apply to a proposal, the Commission will 
approve it unless a substantial countervailing basis exists.
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    \6\ See Securities Exchange Act Release No. 59039 (December 2, 
2008), 73 FR 74770 (December 9, 2008) (SR-NYSEArca-2006-21) (the 
``ArcaBook Approval Order'').
    \7\ Id. at 74771.
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    The Exchange submits that the NYSE Amex Order Imbalance Information 
datafeed constitutes ``non-core data''; i.e., the Exchange does not 
require a central processor to consolidate and distribute the product 
to the public pursuant to joint-SRO plans. Rather, the Exchange 
distributes this product voluntarily. Furthermore, both types of the 
competitive forces that the Commission described in the ArcaBook 
Approval Order are present: the Exchange has a compelling need to 
attract order flow and the product competes with a number of 
alternative products.
    The Exchange must compete vigorously for order flow to maintain its 
share of trading volume. This requires the Exchange to act reasonably 
in setting market data fees for non-core products such as the NYSE Amex 
Order Imbalance Information datafeed. The Exchange hopes that NYSE Amex 
Order Imbalance datafeed will enable vendors to distribute NYSE Amex 
order imbalance information widely among investors, and thereby provide 
a means for promoting the Exchange's visibility in the marketplace.
2. Statutory Basis
    The bases under the Securities Exchange Act of 1934 (the ``1934 
Act'') for the proposed rule change are 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, to remove impediments 
to, and perfect the mechanism of, a free and open market and a national 
market system, and, in

[[Page 30186]]

general, to protect investors and the public interest.
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    \8\ 15 U.S.C. 78f(b)(4).
    \9\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    No written comments were solicited or received with respect to the 
proposed rule change.

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

    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 Exchange consents, the Commission will:
    (A) By order approve the proposed rule change, or
    (B) Institute proceedings to determine whether the proposed rule 
change should be disapproved.

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 No. SR-NYSEAmex-2009-26 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy, 
Secretary, Securities and Exchange Commission, Station Place, 100 F 
Street, NE., Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSEAmex-2009-26. 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-2009-26 and should be submitted on or before 
July 15, 2009.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\10\
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    \10\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-14796 Filed 6-23-09; 8:45 am]
BILLING CODE 8010-01-P