[Federal Register Volume 75, Number 78 (Friday, April 23, 2010)]
[Notices]
[Pages 21378-21382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-9401]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-61937; File No. SR-NYSEArca-2010-23]


Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
of Proposed Rule Change To Modify NYSE Arca Trades Fees, To Establish 
the NYSE Arca BBO Service and Related Fees, and To Provide an 
Alternative Unit-of-Count Methodology for Those Services

April 16, 2010.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(the ``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given 
that on April 1, 2010, the NYSE Arca, Inc. (``NYSE Arca'' 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 Arca proposes: (A) To modify the professional subscriber fees 
for its NYSE Arca Trades Service; (B) to establish the NYSE Arca BBO 
Service, a service that will make available the Exchange's best bids 
and offers; (C) to establish fees for the NYSE Arca BBO Service; and 
(D) to provide an alternative unit-of-count methodology for the NYSE 
Arca Trades and BBO Services. The text of the proposed rule change is 
available on the Exchange's Web site at http://www.nyse.com, on the 
Commission's Web site at http://www.sec.gov, at NYSE Arca, 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 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
a. NYSE Arca Trades Fees and Unit-of-Count Methodology
    On March 18, 2009, the Commission approved the NYSE Arca Trades 
Service and its fees.\3\ NYSE Arca Trades is a NYSE Arca-only market 
data service that allows a vendor to redistribute on a real-time basis 
the same last sale information that the Exchange reports under the CTA 
Plan and the ``Nasdaq/UTP Plan'' \4\ for inclusion in those plans' 
consolidated data streams and certain other related data elements 
(``NYSE Arca Last Sale Information'').
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    \3\ See Release No. 34-59598; 74 FR 12919 (March 25, 2009); File 
No. SR-NYSEArca-2009-05.
    \4\ Formally referred to as ``the Reporting Plan for Nasdaq/
National Market System Securities Traded on an Exchange on an 
Unlisted or Listed Basis.''
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    The Commission approved two professional subscriber fees for the 
NYSE Arca Trades Service. It approved a fee of $5 per month per display 
device

[[Page 21379]]

for the receipt and use of NYSE Arca Last Sale Information relating to 
Network A and Network B Eligible Securities and $5 per month per 
display device for the receipt and use of NYSE Arca Last Sale 
Information relating to securities listed on Nasdaq.
    The Exchange proposes to make two changes to these fees. First, the 
Exchange proposes to consolidate the two $5.00 fees into one $10.00 
fee. That is, the Exchange proposes to set the professional subscriber 
fee for the NYSE Arca Trades Service at $10.00. This fee would entitle 
professional subscribers to receive NYSE Arca Last Sale Information 
relating to all securities for which last sale information is reported 
under the CTA Plan and the Nasdaq/UTP Plan. Consolidating the two fees 
into one fee makes the NYSE Arca Trades professional subscriber fee 
consistent with the professional subscriber fee that the Exchange 
understands that NYSE Amex LLC (``NYSE Amex'') will propose for a 
substantially similar last sale information service that NYSE Arca 
expects NYSE Amex to file with the Commission in the near future.
    Second, the Exchange proposes to offer an alternative to the per-
device fee, the traditional means for calculating charges. Under the 
alternative, a Vendor could elect to pay on the basis of the number of 
``Subscriber Entitlements'' rather than the basis of the number of 
devices. The ``Subscriber Entitlements'' methodology is the unit-of-
count methodology that the Commission approved earlier this year for 
the proposed rule change that the New York Stock Exchange, LLC 
(``NYSE'') submitted in respect of its NYSE OpenBook[supreg] service 
(the ``Unit-of-Count Filing'').\5\
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    \5\ See Release No. 34-59544; 74 FR 11162 (March 16, 2009); File 
No. SR-NYSE-2008-131.
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    Under that unit-of-count methodology, the Exchange does not define 
the Vendor-subscriber relationship based on the manner in which a 
datafeed recipient or subscriber receives data (i.e., through 
controlled displays or through data feeds). Instead, the Exchange uses 
more subjective billing criteria. Those criteria define ``Vendors,'' 
``Subscribers,'' ``Subscriber Entitlements'' and ``Subscriber 
Entitlement Controls'' as the basis for setting professional subscriber 
fees. The Exchange believes that these changes more closely align with 
current data consumption and will reduce costs for the Exchange's 
customers.
    The following basic principles underlie the ``Subscriber 
Entitlement'' unit-of-count methodology.
    i. Vendors.
     ``Vendors'' are market data vendors, broker-dealers, 
private network providers and other entities that control Subscribers' 
access to data through Subscriber Entitlement Controls.
    ii. Subscribers.
     ``Subscribers'' are unique individual persons or devices 
to which a Vendor provides data. Any person or device that receives 
data from a Vendor is a Subscriber, whether the person or device works 
for or belongs to the Vendor, or works for or belongs to an entity 
other than the Vendor.
     Only a Vendor may control Subscriber access to data.
     Subscribers may not redistribute data in any manner.
    iii. Subscriber Entitlements.
     A Subscriber Entitlement is a Vendor's permissioning of a 
Subscriber to receive access to data through an Exchange-approved 
Subscriber Entitlement Control.
     A Vendor may not provide data access to a Subscriber 
except through a unique Subscriber Entitlement.
     The Exchange will require each Vendor to provide a unique 
Subscriber Entitlement to each unique Subscriber.
     At prescribed intervals (normally monthly), the Exchange 
will require each Vendor to report each unique Subscriber Entitlement.
    iv. Subscriber Entitlement Controls.
     A Subscriber Entitlement Control is the Vendor's process 
of permissioning Subscribers' access to data.
     Prior to using any Subscriber Entitlement Control or 
changing a previously approved Subscriber Entitlement Control, a Vendor 
must provide the Exchange with a demonstration and a detailed written 
description of the control or change and the Exchange must have 
approved it in writing.
     The Exchange will approve a Subscriber Entitlement Control 
if it allows only authorized, unique end-users or devices to access 
data or monitors access to data by each unique end-user or device.
     Vendors must design Subscriber Entitlement Controls to 
produce an audit report and make each audit report available to the 
Exchange upon request. The audit report must identify:
    A. Each entitlement update to the Subscriber Entitlement Control;
    B. The status of the Subscriber Entitlement Control; and
    C. Any other changes to the Subscriber Entitlement Control over a 
given period.
     Only the Vendor may have access to Subscriber Entitlement 
Controls.
    Subject to the rules set forth below, the Exchange will require 
NYSE Arca-Only Vendors to count every Subscriber Entitlement, whether 
it be a person or a device. This means that the Vendor must include in 
the count every person and device that has access to the data, 
regardless of the purposes for which the person or device uses the 
data. The Exchange will require Vendors to report and count all 
entitlements in accordance with the following rules.
    i. As explained below, the Exchange also proposes to adopt the 
``Subscriber Entitlement'' unit-of-count methodology for the NYSE Arca 
BBO Service. The count shall be separate for the NYSE Arca Trades and 
NYSE Arca BBO Services. This means that a device that is entitled to 
receive both NYSE Arca Last Sale Information and NYSE Arca BBO 
Information would count as a Subscriber Entitlement for the purposes of 
the NYSE Arca Trades Service and as a separate Subscriber Entitlement 
for the purposes of the NYSE Arca BBO Service.
    ii. In connection with a Vendor's external distribution of either 
type of NYSE Arca ``Market Data'' (i.e., NYSE Arca Last Sale 
Information or NYSE Arca BBO Information), the Vendor should count as 
one Subscriber Entitlement each unique Subscriber that the Vendor has 
entitled to have access to that type of Market Data. However, where a 
device is dedicated specifically to a single person, the Vendor should 
count only the person and need not count the device.
    iii. In connection with a Vendor's internal distribution of a type 
of NYSE Arca Market Data, the Vendor should count as one Subscriber 
Entitlement each unique person (but not devices) that the Vendor has 
entitled to have access to that type of Market Data.
    iv. The Vendor should identify and report each unique Subscriber. 
If a Subscriber uses the same unique Subscriber Entitlement to receive 
multiple services, the Vendor should count that as one Subscriber 
Entitlement. However, if a unique Subscriber uses multiple Subscriber 
Entitlements to gain access to one or more services (e.g., a single 
Subscriber has multiple passwords and user identifications), the Vendor 
should report all of those Subscriber Entitlements.
    v. The Vendor should report each Subscriber device serving multiple 
users individually as well as each person who may access the device. As 
an example, for a single device to which the Vendor has granted two 
people access, the Vendor should report three Subscriber Entitlements. 
Only a single, unique device that is dedicated to a single,

[[Page 21380]]

unique person may be counted as one Subscriber Entitlement.
    vi. Vendors should report each unique person who receives access 
through multiple devices as one Subscriber Entitlement so long as each 
device is dedicated specifically to that person.
    vii. The Vendor should include in the count as one Subscriber 
Entitlement devices serving no users.
    By way of examples, if a Subscriber's device has no users or 
multiple users, the Vendor should count that device as one Subscriber 
Entitlement. If a Vendor entitles five individuals to use one of a 
Subscriber's devices, the Vendor should count five individual 
entitlements and one device entitlement, for a total of six Subscriber 
Entitlements. If a Vendor entitles an individual to receive a type of 
NYSE Arca Market Data over a Subscriber device that is dedicated to 
that individual, the Vendor should count that as one Subscriber 
Entitlement, not two.
b. The NYSE Arca BBO Service
    The NYSE Arca BBO Service is a new NYSE Arca-only market data 
service that allows a vendor to redistribute on a real-time basis the 
same best-bid-and-offer information that NYSE Arca reports under the CQ 
Plan and the Nasdaq/UTP Plan for inclusion in the those Plans' 
consolidated quotation information data streams (``NYSE Arca BBO 
Information''). NYSE Arca BBO Information would include the best bids 
and offers for all securities that are traded on the Exchange and for 
which NYSE Arca reports quotes under the CQ Plan or the Nasdaq/UTP 
Plan. NYSE Arca will make the NYSE Arca BBO service available over a 
single datafeed, regardless of the markets on which the securities are 
listed.
    The NYSE Arca BBO Service would allow vendors, broker-dealers, 
private network providers and other entities (``NYSE Arca-Only 
Vendors'') to make available NYSE Arca BBO Information on a real-time 
basis. NYSE Arca-Only Vendors may distribute the NYSE Arca BBO Service 
to both professional and nonprofessional subscribers.
    The Exchange would make NYSE Arca BBO Information available through 
its new NYSE Arca BBO Service no earlier than it makes that information 
available to the processor under the CQ Plan or the Nasdaq/UTP Plan, as 
applicable.
c. NYSE Arca BBO Service Fees
i. Access Fee
    For the receipt of access to the NYSE Arca BBO datafeed, the 
Exchange proposes to charge $750 per month. NYSE Arca also currently 
charges $750 for access to the NYSE Arca Trades datafeed. However, one 
$750 monthly access fee entitles an NYSE Arca-Only Vendor to receive 
both the NYSE Arca BBO datafeed as well as the Exchange's NYSE Arca 
Trades datafeed. The fee applies to receipt of NYSE Arca Market Data 
within the Vendor's organization or outside of it.
ii. Professional Subscriber Fee
    For the receipt and use of NYSE Arca BBO Information, the Exchange 
proposes to charge $10 per month per professional subscriber device.
    In addition, the Exchange proposes to offer an alternative 
methodology to the traditional device fee. Instead of charging $10 per 
month per device, it proposes to offer Vendors the option of paying $10 
per month per ``Subscriber Entitlement''.
    The fee entitles the end-user to receive and use NYSE Arca BBO 
Information relating to all securities traded on NYSE Arca, regardless 
of the market on which a security is listed.
    For the purpose of calculating Subscriber Entitlements, the 
Exchange proposes to adopt the unit-of-count methodology that the 
Commission approved earlier this year in approving the Unit-of-Count 
Filing and that the Exchange has proposed to adopt for the NYSE Arca 
Trades Service, as described above.
iii. Nonprofessional Subscriber Fees
    The Exchange proposes to charge each NYSE Arca-Only Vendor $5.00 
per month for each nonprofessional subscriber to whom it provides NYSE 
Arca BBO Information. The Exchange proposes to impose the charge on the 
NYSE Arca-Only Vendor, rather than on the nonprofessional Subscriber. 
At this time, the Exchange does not propose to establish a 
nonprofessional subscriber fee for NYSE Arca Last Sale Information 
because the Exchange has recently submitted to the Commission an 
inexpensive alternative to that product, the NYSE Arca Realtime 
Reference Prices service.\6\
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    \6\ See Release No. 34-61404; 75 FR 5363 (February 2, 2010); 
File No. SR-NYSEArca-2009-85.
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    In addition, the Exchange proposes to establish as an alternative 
to the fixed $5.00 monthly fee a fee of $.005 for each response that a 
NYSE Arca-Only Vendor disseminates to a nonprofessional Subscriber's 
inquiry for a best bid or offer under the NYSE Arca BBO service. The 
Exchange proposes to limit a NYSE Arca-Only Vendor's exposure under 
this alternative fee. It proposes to set at $5.00 per month, the same 
amount as the proposed fixed monthly nonprofessional Subscriber flat 
fee, as the maximum fee that a NYSE Arca-Only Vendor would have to pay 
in respect of each nonprofessional Subscriber for the receipt of the 
NYSE Arca BBO service in any calendar month.
    In order to take advantage of the per-query fee, a NYSE Arca-Only 
Vendor must document in its Exhibit A that it has the ability to 
measure accurately the number of queries from each nonprofessional 
Subscriber and must have the ability to report aggregate query 
quantities on a monthly basis.
    The Exchange will impose the per-query fee only on the 
dissemination of best bids and offers to nonprofessional Subscribers. 
The per-query charge is imposed on NYSE Arca-Only Vendors, not end-
users, and is payable on a monthly basis. NYSE Arca-Only Vendors may 
elect to disseminate the NYSE Arca BBO service pursuant to the per-
query fee rather than the fixed monthly fee.
    In establishing nonprofessional Subscriber fees for the NYSE Arca 
BBO Service, the Exchange proposes to apply the same criteria for 
qualification as a ``nonprofessional subscriber'' as the CTA and CQ 
Plan Participants use. As is true under the CTA and CQ Plans, 
classification as a nonprofessional subscriber is subject to Exchange 
review and requires the subscriber to attest to his or her 
nonprofessional subscriber status. A ``nonprofessional subscriber'' is 
a natural person who uses the data solely for his personal, non-
business use and who is neither:
    A. Registered or qualified with the Securities and Exchange 
Commission, (``SEC''), the Commodities Futures Trading Commission, any 
State securities agency, any securities exchange or association, or any 
commodities or futures contract market or association,
    B. Engaged as an ``investment adviser'' as that term is defined in 
Section 202(a)(11) of the Investment Advisors Act of 1940 (whether or 
not registered or qualified under that act), nor
    C. Employed by a bank or other organization exemption from 
registration under Federal and/or State securities laws to perform 
functions that would require him/her to be so registered or qualified 
if he/she were to perform such function for an organization not so 
exempt.
d. Justification of Fees
    The proposed monthly access fee, professional subscriber fee and 
nonprofessional subscriber fees for the NYSE Arca BBO Service, and the

[[Page 21381]]

proposed combining of the fees for the NYSE Arca Trades Service, enable 
NYSE Arca-Only Vendors and their subscribers to contribute to the 
Exchange's operating costs in a manner that is appropriate for the 
distribution of NYSE Arca Market Data in the form taken by the two 
services.
    In setting the level of the proposed fees, the Exchange took into 
consideration several factors, including:
    (i) NYSE Arca's expectation that the NYSE Arca Trades Service and 
NYSE Arca BBO Services are likely to be premium services, taken by 
investors most concerned with receiving NYSE Arca Market Data on a low 
latency basis;
    (ii) The fees that Nasdaq, NYSE, NYSE Amex and the Participants in 
the CTA, CQ and Nasdaq/UTP Plans are charging for similar services (or 
that NYSE Arca anticipates they will soon propose to charge);
    (iii) Consultation with some of the entities that the Exchange 
anticipates will be the most likely to take advantage of the proposed 
service;
    (iv) The contribution of market data revenues that the Exchange 
believes is appropriate for entities that are most likely to take 
advantage of the proposed service;
    (v) The contribution that revenues accruing from the proposed fee 
will make to meet the overall costs of the Exchange's operations;
    (vi) The savings in administrative and reporting costs that the 
NYSE Arca Trades Service and NYSE Arca BBO Service will provide to NYSE 
Arca-Only Vendors (relative to counterpart services under the CTA, CQ 
and Nasdaq/UTP Plans); and
    (vii) The fact that the proposed fees provide alternatives to 
existing fees under the CTA, CQ and Nasdaq/UTP Plans, alternatives that 
vendors will purchase only if they determine that the perceived 
benefits outweigh the cost.
    The Exchange believes that the levels of the fees are consistent 
with the approach set forth in the order by which the Commission 
approved ArcaBook fees for NYSE Arca.\7\ 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.'' 
\8\ It noted that if significant competitive forces apply to a 
proposal, the Commission would approve it unless a substantial 
countervailing basis exists.
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    \7\ See Release No. 59039 (December 2, 2008), 73 FR 74770 
(December 9, 2008) (SR-NYSE ArcaArca-2006-21) (the ``ArcaBook 
Approval Order'').
    \8\ Id. at 74771.
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    NYSE Arca BBO Information constitutes ``non-core data.'' 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 the product voluntarily.
    In the case of the NYSE Arca BBO Service and the NYSE Arca Trades 
Service, both of the two types of 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 Arca 
BBO Service. The Exchange hopes that the proposed NYSE Arca BBO Service 
will enable vendors to distribute NYSE Arca BBO Information widely 
among investors, and thereby provide a means for promoting the 
Exchange's visibility in the marketplace.
    In addition to the need to attract order flow, the availability of 
alternatives to the NYSE Arca BBO Service and the NYSE Arca Trades 
Service significantly constrain the prices at which the Exchange can 
market those services. All national securities exchanges, the several 
Trade Reporting Facilities of FINRA, ECNs that produce proprietary 
data, as well as the core data feed under the CQ Plan, are all sources 
of competition for the NYSE Arca BBO Service and the NYSE Arca Trades 
Service. Currently:
    (i) Nasdaq offers its last sale information and best-bid-and-offer 
information under services that would provide an alternative to the 
proposed NYSE Arca services;
    (ii) NYSE offers last sale information in services that are 
substantially similar to the NYSE Arca Trades Service and NYSE Arca 
anticipates that NYSE Amex will soon do so too; and
    (iii) The Exchange anticipates that NYSE and NYSE Amex will soon 
propose to provide best-bid-and-offer services that are substantially 
similar to the NYSE Arca BBO Service.
    As an alternative, investors can receive NYSE Arca BBO Information 
from ArcaBook. The information available in the NYSE Arca Trade Service 
or the NYSE Arca BBO Service is also included in the calculation of the 
consolidated last sale price information and best-bid-and-offer 
calculations under the CTA, CQ and Nasdaq/UTP Plans, which comprise 
core datafeeds. Investors may select the NYSE Arca Trade Service or the 
NYSE Arca BBO Service as less expensive alternatives to the CTA, CQ and 
Nasdaq/UTP Plans' consolidated data streams for certain purposes. (Rule 
603(c) of Regulation NMS requires vendors to make the consolidated, 
core datafeeds available to customers when trading and order-routing 
decisions can be implemented.)
e. Administrative Requirements
    In regard to NYSE Arca BBO Information, the Exchange will require 
each Vendor 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 Vendor to provide NYSE Arca BBO Information to its customers or to 
distribute the data internally.
    In addition, the Exchange will require each professional end-user 
that receives NYSE Arca BBO Information 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. It 
will also require Vendors to subject nonprofessional subscribers to the 
same contract requirements as the CTA and CQ Plan Participants require 
of Network A nonprofessional subscribers. The Network A Participants 
submitted the Consolidated Vendor Form and the professional subscriber 
form to the Commission for comment and notice.\9\
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    \9\ See Securities Exchange Act Release Nos. 34-22851 (January 
31, 1986), 34-28407 (September 10, 1990), 34-49185 (February 4, 
2004), and 34-22851 (January 31, 1986).
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2. Statutory Basis
    The bases under the Securities Exchange Act of 1934 (the ``Act'') 
for the proposed rule change are the requirement under Section 6(b)(4) 
\10\ 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) \11\ 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.
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    \10\ 15 U.S.C. 78f(b)(4).
    \11\ 15 U.S.C. 78f(b)(5).
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    The proposed rule change would benefit investors by facilitating 
their prompt access to real-time best-bid-and-offer information 
contained in the NYSE Arca BBO Service and by providing a

[[Page 21382]]

modern methodology alternative for counting fee-liable units. In 
addition, the Exchange believes that the proposed fee would allow 
entities that are most likely to take advantage of the proposed service 
to make an appropriate contribution towards meeting the overall costs 
of the Exchange's operations.
    The Exchange notes that Nasdaq, NYSE and NYSE Amex already impose 
charges for services that are similar to the NYSE Arca Trades service 
and Nasdaq already imposes charges for services that are similar to the 
NYSE Arca BBO service. NYSE Arca anticipates NYSE and NYSE Arca will 
soon propose to establish fees for best-bid-and-offer services that are 
substantially similar to the NYSE Arca BBO service. Thus, the 
Exchange's proposed fees offer any vendor that wishes to provide its 
customers with a single market's last sale information or best-bid-and-
offer information (as opposed to a more expensive consolidated last 
sale or quotation information service) an alternative to Nasdaq, NYSE 
and NYSE Amex.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The NYSE Arca BBO Service proposes to provide an alternative to 
existing services that the Participants make available under the CQ 
Plan. The proposed fees do not alter or rescind any existing fees. In 
addition, it amounts to a competitive response to the products that 
Nasdaq, NYSE and NYSE Amex make available or will soon make available. 
For those reasons, the Exchange does not believe that the 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 discussed the proposed rules change with those 
entities that the Exchange believes would be the most likely to take 
advantage of the proposed NYSE Arca BBO Service by becoming NYSE Arca-
Only Vendors. While those entities have not submitted formal, written 
comments on the proposal, the Exchange has incorporated some of their 
ideas into the proposal and the proposed rule change reflects their 
input. 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

    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-NYSEArca-2010-23 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-NYSEArca-2010-23. 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 Web site 
viewing and printing 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 
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-2010-23 and should be submitted on or before May 14, 2010.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\12\
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    \12\ 17 CFR 200.30-3(a)(12).
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Elizabeth M. Murphy,
Secretary.
[FR Doc. 2010-9401 Filed 4-22-10; 8:45 am]
BILLING CODE 8011-01-P