[Federal Register Volume 87, Number 138 (Wednesday, July 20, 2022)]
[Notices]
[Pages 43371-43373]
[FR Doc No: 2022-15478]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[Docket No. FRA-2021-0037]

Surface Transportation Project Delivery Program; California High-
Speed Rail Authority Audit Report

AGENCY: Federal Railroad Administration (FRA), U.S. Department of
Transportation (DOT).

ACTION: Notice; request for comment.

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SUMMARY: The Surface Transportation Project Delivery Program (STPD
Program), often referred to as the ``NEPA Assignment Program,'' allows
a State to assume FRA's environmental responsibilities for Federal
environmental review, consultation, and compliance under the National
Environmental Policy Act (NEPA) for railroad projects. When a State
assumes these responsibilities, it carries out the assigned
environmental review process, in lieu of FRA. The STPD Program requires
annual audits for the first four years of the State's lead role in the
program to ensure compliance with program requirements. FRA is issuing
this notice to advise the public that it has conducted the second
annual audit of the State of California, acting by and through, the
California High-Speed Rail Authority (CHSRA), and seek comment from the
public on the draft audit report. Following the comment period, FRA
will publish a final audit report.

DATES: Comments must be received on or before August 19, 2022.

ADDRESSES: Comments related to Docket No. FRA-2021-0037 may be
submitted by going to https://www.regulations.gov and following the
online instructions for submitting comments.
    Instructions: All submissions must include the agency name and
docket number (docket #). All comments received will be posted without
change to https://www.regulations.gov; this includes any personal
information. Please see the Privacy Act heading in the SUPPLEMENTARY
INFORMATION section of this document for Privacy Act information
related to any submitted comments or materials.
    Docket: For access to the docket to read background documents or
comments received, go to https://www.regulations.gov and follow the
online instructions for accessing the docket.

FOR FURTHER INFORMATION CONTACT: Marlys Osterhues, Chief Environment
and Project Engineering, RPD, telephone:<PHONE_NUMBER>, email:
[email protected].

SUPPLEMENTARY INFORMATION: Privacy Act Statement: FRA will post
comments it receives without edit, to www.regulations.gov, as described
in the system of records notice, DOT/ALL-14 FDMS, accessible through
www.dot.gov/privacy. In order to facilitate comment tracking and
response, we encourage commenters to provide their name, or the name of
their organization; however, submission of names is completely
optional. Whether commenters identify themselves or not, all timely
comments will be fully considered. If you wish to provide comments
containing proprietary or confidential information, please contact the
agency for alternate submission instructions.

Draft Surface Transportation Project Delivery Program Audit of the
California High-Speed Rail Authority Conducted Between: December 13-16,
2021

Executive Summary

    This report summarizes the results of FRA's second audit of CHSRA's
conduct in carrying out its assigned environmental review
responsibilities between July 1, 2020, and July 30, 2021 (Audit
Period), to assess CHSRA's compliance with applicable Federal law, and
the memorandum of understanding (section 327 MOU) executed July 23,
2019, between CHSRA and FRA. The Secretary, acting by and through FRA,
is required to conduct annual audits of the State during each of the
first 4 years of State participation in the STPD Program. 23 U.S.C.
327(g).
    To conduct the audit, FRA formed a team (Audit Team) in April 2021.
The Audit Team consisted of NEPA subject matter experts (SMEs) from
FRA's environmental and project management divisions and the John A.
Volpe National Transportation Systems Center. In addition, FRA
designated a Senior Environmental Protection Specialist to serve as a
NEPA Assignment Program liaison to CHSRA. The Audit Team reviewed
samples of project documentation related to CHSRA's environmental
decisions completed during the Audit Period, and CHSRA's self-
assessment of its program. In addition, the Audit Team reviewed CHSRA's
internal procedures related to Quality Assurance/Quality Control (QA/
QC), project files, updated guidance documentation, and conducted
interviews with relevant CHSRA staff between December 13 and 16, 2021.
The Audit Team also conducted an interview with the U.S. Army Corps of
Engineers on January 19, 2022. FRA provided CHSRA an opportunity to
review the findings described below and has considered CHSRA's comments
in developing this draft audit report.
    Overall, the Audit Team found that CHSRA continues to carry out its
assigned environmental responsibilities and complies with the
provisions of the section 327 MOU.

Background

    The STPD Program, codified at 23 U.S.C. 327, allows a State to
assume FRA's environmental responsibilities for review, consultation,
and compliance for railroad projects. When a State assumes these
Federal responsibilities, the State becomes solely liable for carrying
out the responsibilities it has assumed, in lieu of the FRA. CHSRA
published its application under the STPD Program on November 9, 2017
and made it available for public comment for 30 days. After considering
public comments, CHSRA submitted its application to FRA on January 31,
2018. The application served as the basis for developing the section
327 MOU, which identifies the responsibilities and obligations that
CHSRA would assume.
    FRA published a notice of the draft section 327 MOU in the Federal
Register on May 2, 2018, for a 30-day comment period to solicit the
views of the public and Federal agencies. After the close of the
comment period, FRA and CHSRA considered comments and proceeded to
execute the section 327 MOU. On July 23, 2019, CHSRA assumed FRA's
responsibilities under NEPA, and the responsibilities for NEPA-related
Federal environmental laws, as described in the section 327 MOU.
    To oversee CHSRA's compliance, FRA conducts annual audits during
each of the first four years of State participation. After the fourth
year, FRA will not conduct annual audits but will monitor CHSRA's
compliance with the section 327 MOU and applicable Federal laws and
policies and assess whether CHSRA is attaining the performance measures
listed in part 10 of the section 327 MOU. During monitoring FRA may
request information from CHSRA and relevant Federal agencies, verify
CHSRA's financial and personnel resources dedicated to carrying out the
section 327 MOU, and review documents and other information. FRA
provides the results of each annual audit to the public and solicits
comment. FRA published the first audit report of CHSRA on April 21,
2021.
    Audits are the primary mechanism through which FRA, oversees
CHSRA's compliance with the provisions in the section 327 MOU. FRA
conducts annual audits to: (1) oversee the State's compliance with this
MOU and applicable Federal laws and policies; (2) determine the State's
attainment of the performance measures identified in part 10 of the
section 327 MOU; and (3) collect information needed for the Secretary's
annual report to Congress pursuant to 23 U.S.C. 327(i). FRA intends to
conduct two more annual audits consistent with 23 U.S.C. 327(g) and
part 11 of the section 327 MOU. FRA will publish the results of each
audit in a draft report and make the report available for public
comment in the Federal Register, before publishing the final audit
report.

Scope and Methodology

    This audit covers all final NEPA decisions issued by CHSRA within
the Audit Period. The Audit Team reviewed a sampling from CHSRA's
project files complied for NEPA decisions; CHSRA's self-assessment
report; and CHSRA current policies, guidance, and manuals relating to
NEPA decisions and the decision-making process. FRA reviewed twelve
reexaminations of previously approved final environmental impact
statements (EIS) and one final EIS/record of decision (ROD),
representing all projects completed within the Audit Period. In
conducting the audit, the Audit Team focused on objectives related to
six NEPA Assignment Program Elements: program management, documentation
and records management, quality assurance and control (QA/QC),
training, performance measurement, and legal sufficiency. Each NEPA
Assignment Program Element is described further below.
    The Audit Team interviewed nine CHSRA staff in CHSRA's regional
offices and its headquarters office. In addition, the Audit Team
interviewed one staff member from the U.S. Army Corps of Engineers to
ensure timely and effective coordination occurs with this Federal
resource agency partner. The Audit Team invited CHSRA staff, middle
management, legal counsel, and executive management to participate in
the interview process to ensure representation from a diverse range of
staff expertise, experience, and program responsibility.
    The Audit Team compared the procedures outlined in CHSRA's current
environmental manuals and policies to the information obtained during
staff interviews and project file reviews to evaluate CHSRA's
performance against its documented procedures. The Audit Team then
assessed CHSRA's performance based on the six NEPA Assignment Program
Elements.

Audit Results

    Overall, FRA found that CHSRA has carried out the environmental
responsibilities assumed through the section 327 MOU and the Audit Team
found that CHSRA is complying with the section 327 MOU. The following
sections detail each of FRA's findings with respect to CHSRA's
performance and the six NEPA Assignment Program Elements.

Program Management

    Consistent with part 4 of the section 327 MOU, the State committed
to maintaining adequate organizational and staff capability at CHSRA to
manage the STPD Program. This includes integrating the STPD Program
into CHSRA's environmental and project

development processes, using the appropriate SMEs, and developing,
maintaining and implementing internal policies and procedures. In
reviewing documentation for this audit, FRA found that CHSRA continues
to implement an effective STPD Program by adhering to its Environmental
Policies and Procedures Handbook, Environmental Compliance Program
Manual, and the QA/QC Plan. The section 327 MOU requires CHSRA to
conduct a self-assessment of their program implementation, and document
actions to improve upon the previous audit self-assessment findings.
CHSRA has conducted the required self-assessment and implemented
actions to improve upon the findings described in the first audit.
    CHSRA has incorporated the STPD Program into its overall project
development process. CHSRA staff and counsel at the headquarters office
are responsible for ensuring NEPA Assignment responsibilities are
fulfilled by reviewing projects for compliance with assigned
environmental laws and regulations independently from those responsible
for developing the NEPA and related documentation as required in part 3
of the section 327 MOU.
    CHSRA environmental staff at the three regional offices continues
to coordinate their NEPA related project-work with headquarters staff
through NEPA Coordinators. While no changes in staff functions have
occurred since the completion of the first audit, the CHSRA NEPA
Assignment Team has demonstrated an increased level of engagement in
the overall project development process during the Audit Period. FRA's
Audit Team found that the CHSRA is effectively incorporating
environmental justice and climate change considerations into the CHSRA
planning process.\1\ CHSRA noted that it is currently updating its
environmental justice guidance. The Audit Team recognizes CHSRA efforts
to ensure compliance with these Administration initiatives through
successfully tracking and implementing commitments.
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    \1\ CHSRA's environmental justice guidance is available at:
https://hsr.ca.gov/wp-content/uploads/docs/programs/title_VI/CHSRA%20EJ%20Guidance%208-14-2012.pdf. CHSRA also publishes an
annual sustainability report documenting its efforts to mitigate
climate impacts. The 2021 report is available at: https://hsr.ca.gov/wp-content/uploads/2021/09/Sustainability_Report_2021.pdf.
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Documentation and Records Management

    In accordance with part 10.2.A of the section 327 MOU, CHSRA agreed
to maintain documented compliance with NEPA and other Federal
environmental statutes and regulations. During the Audit Period CHSRA
issued 13 final NEPA decisions. The Audit Team reviewed the project
files for twelve reexaminations of previously approved Final EISs and
one combined Final EIS/ROD. These projects represented all CHSRA
environmental review decisions completed within the Audit Period. The
Audit Team found that CHSRA maintained a complete final electronic
project record, containing all NEPA-related documentation, in
accordance with the section 327 MOU.

Quality Assurance/Quality Control

    CHSRA agreed to carry out regular QA/QC activities to ensure the
assumed responsibilities are conducted consistent with applicable law
and part 10.2.B of the section 327 MOU. The QA/QC program includes
coordination between the regional environmental staff and the
headquarters' NEPA assignment team, including CHSRA NEPA counsel. The
NEPA assignment team reviews all NEPA documentation and technical
reports to ensure regulatory compliance and technical sufficiency.
CHSRA staff also engage with SMEs, when appropriate, regarding various
environmental resources and regulations.
    During interviews with the Audit Team, CHSRA described the
continued use of comment resolution workshops to ensure appropriate
consideration of all comments, both internal and from external
stakeholders, including agencies. In addition, CHSRA continues to
utilize an electronic file system to manage documentation effectively
across the program. CHSRA provided the Audit Team documentation used to
track QA/QC in the form of project review checklists, comment summary
reports, and other associated documentation with project the file
reviews.
    Based on the information evaluated by the Audit Team, the Audit
Team found that CHSRA is conducting regular QA/QC activities in
accordance with the section 327 MOU.

Training Program

    CHSRA committed to implementing training necessary to meet its
environmental obligations consistent with part 12 of the section 327
MOU. CHSRA developed its NEPA Assignment Training Plan to meet this
requirement. The training covers topics related to CHSRA's assigned
environmental responsibilities. Based on interviews and a review of
training documentation and records, all CHSRA staff received the
training in accordance with the NEPA Assignment Training Plan during
the Audit Period.
    During interviews, CHSRA noted their continuing efforts to ensure
effective coordination with Federal agencies, including the Federal
Aviation Administration. These efforts may include providing additional
training opportunities regarding high-speed rail system requirements.
The Audit Team recognizes CHSRA ongoing activities and will evaluate
these training efforts during the next audit cycle.

Performance Measures

    As described in part 10.2 of the section 327 MOU, FRA and CHSRA
established performance measures that CHSRA will seek to attain, and
that FRA will consider during FRA's audits.
    FRA evaluated CHSRA's administration of its assigned
responsibilities against the performance measures outlined in the 327
MOU. The Audit Team recognizes the CHSRA efforts to implement a robust
self-assessment review process. Based on results of the self-
assessment, project file review and interviews, the FRA Audit Team
found that CHSRA is attaining the performances measures in the section
327 MOU.

Legal Sufficiency

    CHSRA maintains a documented legal sufficiency review for draft and
final documents, which generally includes multiple rounds of review and
procedures for elevating issues of concern, as outlined in the section
327 MOU. This review is conducted by CHSRA NEPA attorneys who also
engage with NEPA outside counsel, as necessary. CHSRA attorneys are
also involved in the preparation of guidance and trainings for staff.
Since the first audit, CHSRA has updated its guidance for reevaluations
and reexaminations, to include a legal sufficiency review for these
documents.

Next Steps

    FRA is providing the draft audit report for public review and
comment for a 30-day period in accordance with 23 U.S.C. 327(g). No
later than 60 days after the close of the comment period, FRA will
publish the final audit report in the Federal Register.

    Issued in Washington, DC.
Jennifer Mitchell,
Deputy Administrator.
[FR Doc. 2022-15478 Filed 7-19-22; 8:45 am]
BILLING CODE 4910-06-P


[Federal Register: January 12, 2009 (Volume 74, Number 7)]
[Notices]
[Page 1268-1273]
[DOCID:fr12ja09-122]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59198; File No. SR-NYSE-2008-131]

Self-Regulatory Organizations; New York Stock Exchange LLC;
Notice of Filing of Proposed Rule Change To Introduce a NYSE
OpenBook[supreg] Nonprofessional Subscriber Fee and To Revise the Unit
of Count That Determines the Device Fees Payable by Data Recipients

January 5, 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 December 18, 2008, the New York Stock Exchange LLC (``NYSE'' 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

    The Exchange is proposing to introduce a nonprofessional subscriber
fee for its NYSE OpenBook[supreg] product offerings and to revise the
unit of count that determines the device fees payable by data
recipients.

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 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 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
    (a) Background. NYSE OpenBook responds to the desire of some market
participants for depth-of-book data. It is a compilation of limit order
data that the Exchange provides to market data vendors through a data
feed.
    NYSE OpenBook is a packaged suite of data feed products. It
includes:
    i. NYSE OpenBook Realtime, by which the Exchange makes NYSE
OpenBook Realtime available on a snapshot basis, with updates
distributed in real-time at intervals of one second; and
    ii. NYSE OpenBook Ultra, by which the Exchange updates NYSE
OpenBook information upon receipt of each displayed limit order, or
upon an event that removes limit orders from NYSE OpenBook (i.e.,
cancellation or execution).
    For no additional charge, the Exchange makes available to
recipients of NYSE OpenBook additional data feeds containing:
    iii. NYSE BestQuote,\3\ which allows customers to see NYSE's best
bid and offer as made available through the Consolidated Quotation
System, and which may contain additional market interest that is not
displayed in the NYSE limit order book and that, therefore, is not
available in NYSE OpenBook; and
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    \3\ NYSE added NYSE BestQuote to the NYSE OpenBook Realtime
package in October 2006. See Release No. 34-54594 (October 12,
2006); 71 FR 61819 (October 19, 2006); File No. SR-NYSE-2006-81.
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    iv. Order Imbalance Information, which includes information
regarding order imbalances prior to the market opening and closing
auctions.

    In June 2008, the Exchange added NYSE OpenBook Ultra and Order
Imbalance Information to the NYSE OpenBook package of products.\4\ In
the NYSE OpenBook Ultra filing, NYSE stated that it would temporarily
make NYSE OpenBook Ultra and Order Imbalance Information available at
no additional fee beyond the charges that the Exchange currently
imposes for the receipt and use of NYSE OpenBook Realtime and NYSE
BestQuote. It also stated that the Exchange would submit any proposed
new or modified fees to the Commission as proposed rule changes and
would not impose any new or modified charges on data feed recipients
and end-users prior to Commission approval. This proposed rule change
proposes to establish a discounted fee for nonprofessional subscribers
that receive and use NYSE OpenBook products.
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    \4\ See Release No. 34-57861; 73 FR 31905 (June 4, 2008); File
No. SR-NYSE-2008-42.
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    Currently, an end-user of NYSE OpenBook pays (or its Vendor pays on
its behalf) the monthly per-terminal NYSE OpenBook device fee of $60.
In addition, a NYSE OpenBook data feed recipient pays a monthly $5,000
access fee for NYSE OpenBook, plus the per-terminal fee if the data
feed recipient also displays the data. These fees currently apply
regardless of whether the recipient receives NYSE OpenBook Realtime or
NYSE OpenBook Ultra and whether the subscriber is a professional
subscriber or a nonprofessional subscriber. The recipients receive NYSE
Order Imbalance Information and NYSE BestQuote for no additional
charge.
    (b) Subscribers and Data Feed Recipients. After consultation with
the Exchange's market data customers, including large and small
redistributors and broker-dealers, the Exchange found that the
marketplace desires a simplified fee structure for its products,
especially regarding the methodology for counting the ``devices'' that
are the subject of the device fee. As technology has made it
increasingly difficult to define ``device'' and to control who has
access to devices, the markets have struggled to make device counts
uniform among their customers.
    i. The Original Model. The markets created the ``device fee''
metric in 1960, when market data vendors first made interrogation
services available to their subscribers. During the 1960s, 1970s and
1980s, a vendor would typically link its servers to display devices
that the vendor provided to its subscribers. The linkages allowed the
subscriber to interrogate the vendor's database for vendor-prepared
displays of stock prices and quotes. The subscriber could do no more
than view the vendor-provided displays of prices and quotes. The vendor
reported the number of display devices through which each subscriber
could receive the vendor's displays and the exchanges imposed fees on
the subscribers based on that number of devices.
    The markets deemed any party that received access to the price and
quote data feeds to constitute something other than a subscriber.
Access to a data feed meant the receipt of prices and quotes in a
manner that allowed the recipient to manipulate and re-format the data
(as opposed to a subscriber's receipt of the vendor's read-only
controlled displays). Such parties (``Data Feed Recipients'') used
their data feed access:
    a. To create interrogation services that they would vend to their
subscribers;
    b. To make the data feeds available to other parties; or
    c. To use the data internally for display, analysis, portfolio
valuation or other purposes other than display.
    The markets imposed access fees on such parties, fees that the
markets have never imposed on subscribers' receipt of controlled
display services.
    ii. The Impact of Technology. During and after the 1980s, the
markets and supporting technology evolved dramatically. Networks of
personal computers replaced direct links between the vendor and each
subscriber device as the standard means for distributing a vendor's
interrogation service to subscribers. Vendors and subscribers applied
``user id and password'' entitlements to control access to the vendor's
interrogation services. In time, controlled display devices became more
sophisticated and enabled the subscriber to use the data for analysis
and other non-display functions, functions previously reserved only for
Data Feed Recipients. Vendors began to provide services in which they
controlled access, but no longer provided pre-set displays of data.
This evolutionary process blurred the historic distinctions between
Data Feed Recipients' uses of data and subscribers' uses of data. As a
result, the traditional measures for billing purposes (i.e., device
fees for subscribers; access, program classification and device fees
for Data Feed Recipients) became difficult to apply. This has resulted
in unnecessary burdens and costs to customers and exchanges alike.
    (c) The Proposed Solution. As part of a one-year pilot and a wider
initiative to simplify and modernize market data administration, the
Exchange proposes to redefine some of the basic ``units of measure''
that Vendors are required to report to the Exchange and on which the
Exchange bases its fees for its NYSE OpenBook product packages. The
Exchange believes that these changes more closely align with current
data consumption, will reduce costs for the Exchange's customers, and,
if successful, will serve as a model for additional pricing
efficiencies.
    Under the proposal, the Exchange will no longer define the Vendor-
subscriber relationship based on the manner in which a Data Feed
Recipient or subscriber receives data (i.e., through controlled
displays or through data feeds). Instead, the Exchange proposes to
adopt billing criteria that are more objective. The following basic
principles underlie this proposal.
    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 individual or device that receives
data from a Vendor is a Subscriber, whether the individual 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.
    The Exchange recognizes that each Vendor and Subscriber will use
NYSE OpenBook data differently and that the Exchange is one of many
markets with whom Vendors and Subscribers may enter into arrangements
for the receipt and use of data. In recognition of that, the Exchange's
proposed solution does not restrict how Vendors may use NYSE OpenBook
data in their display services and encourages Vendors to create and
promote innovative uses of NYSE OpenBook information. For instance, a
Vendor may use NYSE OpenBook data to create derived information
displays, such as displays that aggregate NYSE OpenBook data with data
from other markets.\5\
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    \5\ In the case of derived displays, the Vendor is required to:
(i) Pay the Exchange's device fees (described below); (ii) include
derived displays in its reports of NYSE OpenBook usage; and (iii)
use reasonable efforts to assure that any person viewing a display
of derived data understands what the display represents and the
manner in which it was derived.
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    The proposal does not discriminate among data recipients and users,
as the new ``unit of measure'' concepts would apply equally to
everyone.
    The Exchange intends for the pilot period to provide an opportunity
for it and its customers to assess specific usage issues and to enable
the Exchange to establish a leadership role in effecting change after
soliciting feedback from customers and other industry participants.
    (d) Unit of Count. Subject to the rules set forth below, the
Exchange will require Vendors to count every Subscriber Entitlement,
whether it be an individual 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 individual
or device uses the data. The Exchange believes that eliminating current
exceptions to the device-reporting obligation will subject the count to
a more objective process and will simplify the reporting obligation for
Vendors. Previously, the Exchange has not required Vendors to report
certain programmers and other individuals who receive access to data
for certain specific, non-trading purposes. These exceptions require
the Exchange to monitor the manner through which end-users consume data
and adds cost for both the Exchange and customers. To simplify the
process, the Exchange will require Vendors to report all entitlements
in accordance with the following rules.
    i. In connection with a Vendor's external distribution of NYSE
OpenBook data, the Vendor should count as one Subscriber Entitlement
each unique Subscriber that the Vendor has entitled to have access to
the Exchange's market data. However, where a device is dedicated
specifically to a single individual, the Vendor should count only the
individual and need not count the device.
    ii. In connection with a Vendor's internal distribution of NYSE
OpenBook data, the Vendor should count as one Subscriber Entitlement
each unique individual (but not devices) that the Vendor has entitled
to have access to the Exchange's market data.
    iii. The Vendor should identify and report each unique Subscriber.
If a Subscriber uses the same unique Subscriber Entitlement to gain
access to multiple market data 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 market
data services (e.g., a single Subscriber has multiple passwords and
user identifications), the Vendor should report all of those Subscriber
Entitlements.
    iv. Vendors should report each unique individual person who
receives access through multiple devices as one Subscriber Entitlement
so long as each device is dedicated specifically to that individual.
    v. The Vendor should include in the count as one Subscriber
Entitlement devices serving no entitled individuals. However, if the
Vendor entitles one or more individuals to use the same device, the
Vendor should include only the entitled individuals, and not the
device, in the count.
    (e) Proposed Nonprofessional Subscriber Fee.
    i. The Fee. In addition to the ``unit of measure'' pilot program,
the Exchange also proposes to establish a fee applicable to the receipt
and use of NYSE OpenBook data by nonprofessional Subscribers. Until
now, the Exchange has not established a separate fee for the receipt of
NYSE OpenBook data by nonprofessional Subscribers. NYSE OpenBook
subscribers currently pay a device fee of $60. In previous filings, the
Exchange has declared that it would consider designing a limit order
data product suited for the retail, nonprofessional customer if it
perceived a suitable demand for it. In the proposed rule change, the
Exchange proposes to reduce the NYSE OpenBook device fee to $15 per
month for those investors who qualify as nonprofessional Subscribers.
The Exchange proposes to impose the charge on the Vendor, rather than
on the nonprofessional Subscriber, regardless of whether the Vendor
provides NYSE OpenBook Realtime or NYSE OpenBook Ultra.
    ii. Qualification as a Nonprofessional Subscriber. In establishing
a reduced rate for nonprofessional Subscribers, 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.
    Individuals that qualify as nonprofessional subscribers would be
eligible to enjoy the lower nonprofessional subscriber rate regardless
of whether they receive the NYSE OpenBook service from a Vendor that
receives the NYSE OpenBook datafeed directly from the Exchange, or from
a Vendor that receives the database indirectly through an intermediary.

    (f) Nonprofessional Subscriber Fee Cap. The Exchange proposes to
introduce a monthly maximum amount (the ``Maximum Amount'') that a
broker-dealer would have to pay to provide NYSE OpenBook Realtime or
NYSE OpenBook Ultra to any number of nonprofessional Subscribers so
long as each such Subscriber maintains a brokerage account with the
broker-dealer. The broker-dealer must be registered as a broker/dealer
under the Securities Exchange Act of 1934.
    The Exchange proposes to set the Maximum Amount at $25,000 per
month for each month falling in calendar year 2008. For the months
falling in each subsequent calendar year, the Maximum Amount shall
increase or decrease by the percentage increase or decrease in the
annual cost-of-living adjustment (``COLA'') that the U.S. Social
Security Administration applies to Supplemental Security Income for the
calendar year preceding that subsequent calendar year. For example, if
the COLA for calendar year 2008 is a two percent increase, then the
monthly Maximum Amount for months falling in calendar year 2009 would
increase by two percent to $25,500.
    The Exchange anticipates that the broker-dealers that will enjoy
the benefits of the maximum monthly payment are broker-dealers
servicing a large customer base. As such, they have in place procedures
that:
    i. Enable them to procure readily the nonprofessional subscriber
attestation from each nonprofessional customer, a requirement that is a
prerequisite for qualification as a nonprofessional subscriber; and
    ii. Enable them to review periodically the accounts included under
their nonprofessional cap to ensure their nonprofessional status.
    The Exchange also realizes that these broker-dealers may have a
small number of account-holding customers that technically do not
qualify for the nonprofessional Subscriber fee, but whom a broker-
dealer may inadvertently include under the cap because of the
complexities of managing thousands or even millions of accounts. As a
practical response to compliance and the costs of administration, the
Exchange is proposing the following guidelines under which the Exchange
will not penalize a broker-dealer using the nonprofessional Subscriber
fee cap if the broker-dealer includes a limited number of account-
holding professional Subscribers under the cap.
    A broker-dealer may include professional Subscribers in the
calculation of the monthly maximum amount so long as:
    i. Nonprofessional Subscribers comprise no less than 95 percent of
the pool of Subscribers that are included in the calculation;
    ii. Each professional Subscriber included in the calculation
maintains an active brokerage account directly with the broker-dealer
(that is, with the broker-dealer rather than with a correspondent firm
of the broker-dealer); and
    iii. Each professional Subscriber that is included in the
calculation is not affiliated with the broker-dealer or any of its
affiliates.
    iv. All Subscribers receive access to the identical service,
regardless of whether the Subscribers are professional Subscribers or
nonprofessional Subscribers.
    v. Upon discovery of the inclusion in the cap of an individual that
does not qualify as a nonprofessional Subscriber, the broker-dealer
takes reasonable action to reclassify and report that individual as a
professional Subscriber during the immediately following reporting
period.
    A professional Subscriber is ``affiliated'' with a broker-dealer if
he or she is an officer, partner, member, or employee of the broker-
dealer or an affiliate of the broker-dealer or enjoys a similar status
with the broker-dealer or affiliate.
    Notwithstanding clauses (iii) and (v), the broker-dealer may
include a professional Subscriber that is affiliated with the broker-
dealer or its affiliates (subject to clauses (i) and (ii)) if he or she
accesses market data on-line through his or her personal account solely
for the non-business purpose of managing his or her own portfolio.
    Notwithstanding clause (v), professional Subscribers may constitute
up to five percent of the pool of Subscribers that the broker-dealer
includes in the calculation of the monthly maximum amount if those
professional Subscribers can only view data derived from NYSE OpenBook
Ultra:
    (i) Through the Subscriber's online brokerage account; and
    (ii) In an inquiry/response per-quote display (i.e., not in a
streaming display).
    The purpose of this exception is to permit broker-dealers that
primarily serve non-institutional brokerage account holders to offer a
consistent online client experience without undue administrative
burdens. At the same time, the Exchange must guard against potential
abuse of this exception. Therefore, the Exchange intends to monitor its
use closely and reserves the right to deny application of this
exception if it discovers that a broker-dealer is misusing it, such as
by opening up retail brokerage accounts to disseminate data to
institutional clients.
    If the $15 per-device fee would allow a broker-dealer to pay less
than the Maximum Amount for any month, the broker-dealer may pay the
lower amount for that month.
    The Exchange intends for the Maximum Amount to enable much wider
distribution of NYSE OpenBook data to retail investors holding
brokerage accounts. This will further the goal of market transparency
for investors. The low fee enabling wider retail investor access,
coupled with the five percent ``de minimis'' exception for professional
Subscribers in the Subscriber Pool, reduce administrative burdens and
produce a fee that is fair and reasonable. Moreover, the Maximum Amount
compares favorably with monthly maximums payable to Nasdaq and to the
CTA Plan Participants. Nasdaq set its maximum at $25,000 per month for
nonprofessional subscribers' receipt of TotalView,\6\ although Nasdaq
also requires the additional purchase of its Level 2 product at $9 per
nonprofessional subscriber. Nasdaq's maximum does not apply to OpenView
or to its Level 1 or NQDS services. For calendar year 2007, the CTA
Plan Participants set the maximum at $660,000 per month for internal
distribution of consolidated quotation information within a broker-
dealer's organization and for the broker-dealer's distribution to
nonprofessional subscribers that maintain brokerage accounts (the ``CTA
Maximum Amount'').
---------------------------------------------------------------------------

    \6\ Through TotalView, Nasdaq provides real-time information
relating to the displayed quotes and orders of Nasdaq participants
in UTP Plan Securities. TotalView displays quotes and orders at
multiple prices.
---------------------------------------------------------------------------

    (g) The Fee and the Maximum Amount are Non-Discriminatory. As a
result of the fee reduction for the receipt of NYSE OpenBook data by
nonprofessional Subscribers, the Exchange would apply one device fee in
respect of professional Subscribers to NYSE OpenBook services and a
different, lower device fee in respect of nonprofessional Subscribers.
The use of a lower fee for nonprofessional Subscribers than for
professional Subscribers has a long history. The Exchange played an
active role in CTA's adoption of the first nonprofessional subscriber
fee 25 years ago \7\ and that

reduced fee for nonprofessional subscribers has succeeded in
substantially broadening the access of individual investors to real-
time market information. The Exchange believes that a nonprofessional
Subscriber fee for NYSE OpenBook is likely to broaden the access of
individual investors to NYSE OpenBook information and thereby to
further the statutory goals expressed in section 11A(a)(1)(c) of the
Securities Exchange Act of 1934 (the ``Exchange Act'').
---------------------------------------------------------------------------

    \7\ See the Sixth Substantive Amendment and Sixth Charges
Amendment to the CTA Plan (``Non-Professional Subscribers''), File
No. S7-433, Release Nos. 34-20002 (July 22, 1983), 34-20239
(September 30, 1983) and 34-20386 (November 17, 1983).
---------------------------------------------------------------------------

    Section 603(a)(2) of Regulation NMS requires markets to distribute
market data ``on terms that are not unreasonably discriminatory.''
Given the differences in data usage between professional subscribers
and nonprofessional subscribers and the industry's long acceptance of
different fees for professional subscribers and nonprofessional
subscribers, the Exchange believes that the proposed nonprofessional
subscriber fee does not unreasonably discriminate against the
professional subscriber fee.
    Similarly, the establishment of the Maximum Amount mirrors other
industry fee caps, such as the CTA Maximum Amount and Nasdaq's
TotalView fee cap. The Maximum Amount encourages wider retail
distribution by the Exchange's largest NYSE OpenBook vendors. Any
vendor is entitled to take advantage of the Maximum Amount. In the
Exchange's view, limiting the fee exposure of its largest vendors does
not unreasonably discriminate against other vendors under section
603(a)(2) of Regulation NMS.
    (h) The Fee and the Maximum Amount Are Fair and Reasonable. The
Exchange believes that the reduction in the device fee for
nonprofessional Subscribers to $15 and the Maximum Amount comport with
the standard that the Commission established for determining whether
market data fees relating to non-core market data products are fair and
reasonable. (``Non-core products'' refers to products other than the
consolidated products that markets offer collectively under the joint
industry plans.) In its recent ``Order Setting Aside Action by
Delegated Authority and Approving Proposed Rule Change Relating to NYSE
Arca Data'' (the ``NYSE ArcaBook Approval Order''),\8\ the Commission
reiterated its position from its release approving Regulation NMS that
it should ``allow market forces, rather than regulatory requirements,
to determine what, if any, additional quotations outside the NBBO are
displayed to investors.'' \9\
---------------------------------------------------------------------------

    \8\ See Release No. 34-59039 (December 2, 2008); File No. SR-
NYSEArca-2006-21.
    \9\ See Regulation NMS Release, 70 FR at 37566-37567 (addressing
differences in distribution standards between core data and non-core
data).
---------------------------------------------------------------------------

    The Commission went on to state that:

    The Exchange Act and its legislative history strongly support
the Commission's reliance on competition, whenever possible, in
meeting its regulatory responsibilities for overseeing the SROs and
the national market system. Indeed, competition among multiple
markets and market participants trading the same products is the
hallmark of the national market system.\10\

    \10\ NYSE ArcaBook Approval Order at pp. 46-47.
---------------------------------------------------------------------------

    The Commission then articulated the standard that it will apply in
assessing the fairness and reasonableness of market data fees for non-
core products, as follows:

    With respect to non-core data, * * * the Commission has
maintained a market-based approach that leaves a much fuller
opportunity for competitive forces to work. This market-based
approach to non-core data has two parts. The first is to ask whether
the exchange was subject to significant competitive forces in
setting the terms of its proposal for non-core data, including the
level of any fees. If an exchange was subject to significant
competitive forces in setting the terms of a proposal, the
Commission will approve the proposal unless it determines that there
is a substantial countervailing basis to find that the terms
nevertheless fail to meet an applicable requirement of the Exchange
Act or the rules thereunder.\11\
---------------------------------------------------------------------------

    \11\ Id. at pp. 48-49.

    The Exchange believes that by this standard or any other standard,
the proposed nonprofessional Subscriber fee and the Maximum Amount are
fair and reasonable. NYSE OpenBook is subject to significant
competitive forces and the reduction in the device fee and the
establishment of a Maximum Amount represent, in part, responses to that
competition. To start, the Exchange competes intensely for order flow.
It competes with the other 10 national securities exchanges that
currently trade equities, with electronic communication networks, with
quotes posted in FINRA's Alternative Display Facility and Trade
Reporting Facilities, with alternative trading systems, and with
securities firms that primarily trade as principal with their customer
order flow ``and the competition is fierce.'' \12\
---------------------------------------------------------------------------

    \12\ Id. at p. 52.
---------------------------------------------------------------------------

    In addition, NYSE OpenBook is in competition with a number of
alternative products. NYSE OpenBook does not provide a complete picture
of the full market for a security. Rather, an investor has potentially
dozens of different information sources to choose from in determining
where to send an order. The 12 SROs, the several Trade Reporting
Facilities of FINRA, and ECNs that produce proprietary data are all
sources of competition. Each is currently permitted to produce depth-
of-book products, and many currently do, including Nasdaq, NYSE Arca,
and BATS. In addition, investors can probe market depth by ``pinging''
the various markets (by routing oversized marketable limit orders) to
access an exchange's total liquidity available at an order's limit
price or better. In addition, NYSE OpenBook faces the threat of
competition from the independent distribution of order data by
securities firms and data vendors.
    Moreover, the Exchange believes that the great majority of
investors do not believe that it is necessary to purchase a depth-of-
book product from the Exchange, given other sources of information on
market depth in Exchange-listed stocks. The Exchange has a substantial
trading share in Exchange-listed stocks, yet less than 10 percent of
professional users that purchase core data in Exchange-listed stocks
through CTA also purchase NYSE OpenBook. As the Commission said in the
NYSE ArcaBook Approval Order, ``the fact that 95% of the professional
users of [Nasdaq] core data choose not to purchase the depth-of-book
order data of a major exchange strongly suggests that no exchange has
monopoly pricing power for its depth-of-book order data.'' \13\
---------------------------------------------------------------------------

    \13\ Id. at p. 64.
---------------------------------------------------------------------------

    In addition, the Exchange believes that no substantial
countervailing basis exists to support a finding that the
nonprofessional fee for NYSE OpenBook fails to meet the requirement of
the Exchange Act.
    In sum, the availability of a variety of alternative sources of
information imposes significant competitive pressures on NYSE OpenBook
and NYSE's compelling need to attract order flow imposes significant
competitive pressure on NYSE to act equitably, fairly, and reasonably
in setting NYSE OpenBook fees. The significant reduction in the NYSE
OpenBook device fee, from $60 to $15, for investors who qualify as
nonprofessional Subscribers and the establishment of the Maximum Amount
are, in part, responses to that pressure.
    (i) Impact of Changes. The Exchange anticipates that switching from
the ``per-device'' metric to the ``Subscriber'' metric will enable the
Exchange to reclassify as Subscribers certain of its customers that the
Exchange currently classifies as Vendors. The reclassified customers
would no longer be subject to

access fees. This will essentially lower their fees from $5,000 per
month to $60 per month per individual and device. In addition, the
``Subscriber'' metric should reduce administrative costs, as it should
simplify the processes of counting customer entitlements and reporting.
    The introduction of the proposed nonprofessional Subscriber Fee,
subject to the monthly Maximum Amount payable, will respond to the
growing demand from broker-dealers to provide depth-of-book information
to their account-holding customers. It will lower the fees payable for
NYSE OpenBook data in respect of nonprofessional Subscribers from $60
per month per individual and device to $15 per month per individual and
device.
    The Exchange believes that the nonprofessional Subscriber Fee
reflects an equitable allocation of its overall costs to users of its
facilities. The Exchange believes that the proposed fee and the Maximum
Amount are fair and reasonable and that it is fair and reasonable to
charge nonprofessional subscribers lower rates than their professional
subscriber counterparts.
    (j) Contracts. The Exchange will require each nonprofessional
Subscriber that receives NYSE OpenBook Realtime or NYSE OpenBook Ultra
from a vendor, broker-dealer or other entity to enter into the Network
A nonprofessional subscriber agreement or an agreement that
incorporates the essential terms of the nonprofessional subscriber
agreement.\14\
---------------------------------------------------------------------------

    \14\ The Network A nonprofessional subscriber agreement has been
in effect since the CTA and CQ Plan Participants first filed it with
the Commission in 1983. See Release No. 34-20385 (November 17,
1983).
---------------------------------------------------------------------------

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) \15\ 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) \16\ 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 general, to protect investors and the public
interest.
---------------------------------------------------------------------------

    \15\ 15 U.S.C. 78f(b)(4).
    \16\ 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 the 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

    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_ADDRESS>Please include
File No. SR-NYSE-2008-131 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-NYSE-2008-131. 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-
NYSE-2008-131 and should be submitted on or before February 2, 2009.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\17\
---------------------------------------------------------------------------

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

Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-348 Filed 1-9-09; 8:45 am]

BILLING CODE 8011-01-P


[Federal Register: April 8, 2009 (Volume 74, Number 66)]
[Notices]
[Page 16029-16031]
[DOCID:fr08ap09-120]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59684; File No. SR-NYSE-2009-32]

Self-Regulatory Organizations; Notice of Filing and Immediate
Effectiveness of Proposed Rule Change by New York Stock Exchange LLC To
Extend Until August 31, 2009, the Application of the NYSE Arca Transfer
Standard

April 1, 2009.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Exchange Act''),\2\ and Rule 19b-4 thereunder,\3\ notice is
hereby given that on March 17, 2009, New York Stock Exchange LLC (the
``NYSE'' or the ``Exchange'') filed with the Securities and Exchange
Commission (``Commission'') the proposed rule change as described in
Items I and II below, which Items have been prepared by the Exchange.
The Exchange has designated this proposal eligible for immediate
effectiveness pursuant to Rule 19b-4(f)(6) \4\ under the Exchange Act.
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.
    \4\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

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

    The Exchange proposes to amend Section 102.01C of the Listed
Company Manual (the ``Manual'') to extend until August 31, 2009, the
application of the special initial listing standard applicable only to
companies that are listed on NYSE Arca, Inc. (``NYSE Arca'').
    The text of the proposed rule change is available on the Exchange's
Web site (http://www.nyse.com), at the Exchange's Office of the
Secretary 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 these statements may be examined at
the places specified in Item IV below. The NYSE 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
    Section 102.01C of the Manual includes an initial listing standard
that is applicable only to companies that are listed on NYSE Arca, Inc.
(``NYSE Arca'') as of October 1, 2008 and that transfer to the Exchange
on or before March 31, 2009 (the ``NYSE Arca Transfer Standard'').\5\
The NYSE Arca Transfer Standard was adopted in connection with NYSE
Euronext's business strategy of consolidating its equities listings on
two of the three U.S. registered securities exchanges it owns--the NYSE
and NYSE Alternext US LLC. As part of this transition, the Exchange
wished to offer the opportunity to list on the NYSE to all suitable
NYSE Arca companies. Most companies currently listed on NYSE Arca would
meet the NYSE's continued listing requirements set forth in Section
802.01B of the Manual for companies listed under the Exchange's
Earnings Test.\6\ However, a number of these companies that meet the
NYSE's continued listing standards do not qualify to list under any of
the existing

NYSE initial listing standards. In order to list these companies, the
Exchange adopted the NYSE Arca Transfer Standard.\7\
---------------------------------------------------------------------------

    \5\ See Securities Exchange Act Release No. 58741 (October 6,
2008), 73 FR 60378 (October 10, 2008) (SR-NYSE-2008-97).
    \6\ Companies listed under the Earnings Test are considered to
be below compliance standards if their average global market
capitalization over a consecutive 30-trading-day period is less than
$75,000,000 and, at the same time, total stockholders' equity is
less than $75,000,000. In addition Section 802.01B requires all
listed companies to maintain a minimum of $25 million in global
market capitalization and Section 802.01C requires all listed
companies to maintain a $1.00 minimum stock price.
    \7\ Companies transferring from NYSE Arca under the NYSE Arca
Transfer Standard are required to have $75 million in total market
capitalization for 90 consecutive days prior to applying for listing
and $20 million in market value of publicly-held shares (but not the
$100 million market value of publicly-held shares requirement of
Section 102.01B). Such companies have to meet the holders, publicly-
held shares and trading volume requirements set forth in Section
102.01A and the $4 stock price requirement of Section 102.01B.
---------------------------------------------------------------------------

    At the time of initial adoption of the NYSE Arca Transfer Standard,
the Exchange believed that all of the NYSE Arca companies that were
suitable for NYSE listing would be able to transfer prior to March 31,
2009. However, due to the turbulent market conditions of recent months,
a number of these companies have experienced significant reductions in
their stock prices and, consequently, are not currently qualified for
listing on the NYSE. Companies whose total market capitalization has
fallen below $75 million are particularly problematic, as the NYSE Arca
Transfer Standard requires companies to exceed this threshold for at
least 90 consecutive days prior to applying for listing. Any company
whose total market capitalization is currently below $75 million would
not have sufficient time prior to March 31 to meet this requirement
even if its total market capitalization exceeded $75 million on the
date of this filing. In light of the extraordinary market conditions,
the Exchange proposes to extend from March 31 to August 31, 2009, the
life of the NYSE Arca Transfer Standard. The Exchange believes that
this extension will enable companies to transfer from NYSE Arca to the
NYSE that, but for the overall decline in the equities markets, would
have qualified to transfer during the life of the NYSE Arca Transfer
Standard as initially adopted.
    The Exchange believes it is appropriate to extend the time period
during which it can apply the NYSE Arca Transfer Standard as a short-
term listing standard applicable only to NYSE Arca companies. These
companies listed on NYSE Arca on the assumption that it would exist as
a permanent listing market and it is solely because of a business
decision made by NYSE Euronext that these companies will need to
transfer their listings. Many of these companies listed on NYSE Arca
because of its association with the NYSE and in the expectation that
they would ultimately switch their listing to the NYSE when they met
the NYSE's listing standards. As such, the Exchange believe that
fairness dictates that it should seek to list these companies on the
NYSE where such a listing is appropriate and in the interests of the
investing public.
    The NYSE will only list companies under the NYSE Arca Transfer
Standard if it believes that those companies are suitable for trading
on the NYSE. All of the companies that would be listed under the NYSE
Arca Transfer Standard will far exceed the NYSE's continued listing
standards at the time of initial listing and will be in compliance with
NYSE Arca continued listing standards. In addition, the same staff in
NYSE Regulation's Financial Compliance and Corporate Governance groups
is responsible for ongoing compliance reviews of both NYSE and NYSE
Arca companies. As such, the NYSE Regulation staff involved in making
initial listing determinations on the NYSE is extremely familiar with
the companies currently listed on NYSE Arca and is uniquely positioned
to determine whether those companies are suitable for listing on the
NYSE. The Exchange believes its depth of knowledge with respect to NYSE
Arca companies makes it appropriate to list them on this one time basis
under a less onerous standard than the Exchange applies to other
listing applicants. Companies listing under the NYSE Arca Transfer
Standard will be subject to the standard listing application and review
process applicable to all listing applicants and, if Exchange staff
determine that an NYSE Arca company is not suitable for listing on the
NYSE--notwithstanding its qualification under the numerical
requirements of the NYSE Arca Transfer Standard--the Exchange will not
list that company.
    The requirements of the NYSE Arca Transfer Standard exceed those
established by Exchange Act Rule 3a51-1(a)(2) (the ``Penny Stock
Rule'').\8\ The NYSE Arca Transfer Standard's requirement that an
applicant have $75 million in global market capitalization for 90 days
prior to transferring from NYSE Arca exceeds the $50 million market
capitalization for 90 days prior to listing option in the Penny Stock
Rule, as well as the $50 million market capitalization requirement of
Rule 3a51-1(a)(2)(i)(B). In addition, companies listing under the NYSE
Arca Transfer Standard will be required at the time of transfer to have
a $4 stock price, 400 round lot holders and 1.1 million publicly held
shares, thereby meeting or exceeding all of the Penny Stock Rule's
remaining requirements.
---------------------------------------------------------------------------

    \8\ 17 CFR 240.a51-1(a)(ii).
---------------------------------------------------------------------------

    Companies listing under the NYSE Arca Transfer Standard will have
to comply with all other applicable Exchange listing rules, including
the Exchange's corporate governance requirements. As with all other
listing applicants, the Exchange reserves the right to deny listing to
any company seeking to list under the NYSE Arca Transfer Standard if
the Exchange determines that the listing of any such company is not in
the interests of the Exchange or the public interest.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with Section 6(b) \9\ of the Exchange Act, in general, and furthers the
objectives of Section 6(b)(5) of the Exchange Act \10\ in particular in
that it is designed to promote just and equitable principles of trade,
to foster cooperation and coordination with persons engaged in
regulating, clearing, settling, processing information with respect to,
and facilitating transactions in securities, 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 the proposed amendment is
consistent with the protection of investors and the public interest in
that the requirements of the NYSE Arca Transfer Standard are
sufficiently stringent that the proposed amendment will not lead to the
listing of any companies that are not suited for listing on the NYSE.
In addition, the proposal applies for a limited period to a small
number of companies that are subject to unique and disadvantageous
circumstances.
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    \9\ 15 U.S.C. 78f(b).
    \10\ 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 Exchange Act.

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

    Written comments were neither solicited nor received.

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

    Because the 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) does not become
operative for 30 days after the date of the filing, or such shorter
time as the Commission may designate if consistent with the protection
of investors and the public interest, the proposed rule change has
become effective pursuant to Section 19(b)(3)(A) of the Act \11\ and
Rule 19b-4(f)(6) thereunder.\12\
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    \11\ 15 U.S.C. 78s(b)(3)(A).
    \12\ 17 CFR 240.19b-4(f)(6). Pursuant to Rule 19b-4(f)(6)(iii)
under the Act, the Exchange is required to give 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.
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    A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the
Act \13\ normally does not become operative for 30 days after the date
of its filing. However, Rule 19b-4(f)(6)(iii) \14\ permits the
Commission to designate a shorter time if such action is consistent
with the protection of investors and the public interest. The Exchange
has requested that the Commission waive the 30-day operative delay.
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    \13\ 17 CFR 240.19b-4(f)(6).
    \14\ 17 CFR 240.19b-4(f)(6)(iii).
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    The Commission believes that waiving the 30-day operative delay is
consistent with the protection of investors and the public interest
because it would allow the exchange to keep in place, without
interruption, the operation of the NYSE Arca Transfer Standard.
    The Commission expects that the Exchange will deny listing to any
company seeking to list pursuant to the proposed rule change if the
Exchange determines that the listing of any such company is not in the
interests of the Exchange or the public interest. In accordance with
the terms of the proposed rule, the Exchange will apply this standard
only for the very narrow category of companies, listed on NYSE Arca as
of October 1, 2008, that transfer to the Exchange on or before August
31, 2009. Since NYSE Regulation's Financial Compliance and Corporate
Governance groups are responsible for ongoing compliance reviews of
both NYSE and NYSE Arca companies, the Commission believes the Exchange
should be sufficiently familiar with companies seeking to transfer to
be able to determine if any such company is an appropriate transfer
candidate. The Commission expects the NYSE to only list those NYSE Arca
transfers which they believe, through their past expertise reviewing
these companies, are suitable for trading on the NYSE and the
maintenance of fair and orderly markets. For these reasons, the
Commission designates that the proposed rule change become operative
immediately upon filing.\15\
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    \15\ For purposes only of waiving the 30-day operative delay,
the Commission has considered the proposed rule's impact on
efficiency, competition, and capital formation. 15 U.S.C. 78c(f).
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    At any time within 60 days of the filing of the proposed rule
change, the Commission may summarily abrogate the 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 Exchange 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_ADDRESS>Please include
File Number SR-NYSE-2009-32 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-NYSE-2009-32. 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 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-
NYSE-2009-32 and should be submitted on or before April 29, 2009.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\16\
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    \16\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E9-7870 Filed 4-7-09; 8:45 am]

BILLING CODE 8010-01-P


[Federal Register: November 27, 2006 (Volume 71, Number 227)]
[Proposed Rules]
[Page 68517]
[DOCID:fr27no06-19]

=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2006-0016; FRL-8248-2]

Approval and Promulgation of Air Quality Implementation Plans;
Texas; Revisions to Reid Vapor Pressure Requirements for Gasoline

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP)
revision submitted by Texas on October 4, 2001. The revisions pertain
to Reid Vapor Pressure (RVP) requirements for gasoline. The revisions
add exemptions to RVP requirements for research laboratories and
academic institutions, competition racing, and gasoline that is being
stored or transferred that is not used in the affected counties. The
revisions also reduce record keeping requirements for retail gasoline
dispensing outlets in the affected counties, and correct a
typographical error. We are proposing approval of the revisions
pursuant to section 110 and part D of the Federal Clean Air Act.

DATES: Written comments should be received on or before December 27,
2006.

ADDRESSES: Comments may be mailed to Mr. Thomas Diggs, Chief, Air
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross
Avenue, Suite 1200, Dallas, Texas 75202-2733. Comments may also be
submitted electronically or through hand delivery/courier by following
the detailed instructions in the ADDRESSES section of the direct final
rule located in the rules section of this Federal Register.

FOR FURTHER INFORMATION CONTACT: Alima Patterson, State/Oversight
Section (6PD-O), Environmental Protection Agency, Region 6, 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone<PHONE_NUMBER>;
fax number<PHONE_NUMBER>; e-mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: In the final section of this Federal
Register, EPA is approving the State's SIP submittal as a direct rule
without prior proposal because the Agency views this as
noncontroversial submittal and anticipates no adverse comments. A
detailed rationale for the approval is set forth in the direct final
rule. If no adverse comments are received in response to this action no
further activity is contemplated. If EPA receives adverse comments, the
direct final rule will be withdrawn and all public comments received
will be addressed in a subsequent final rule based on this proposed
rule. EPA will not institute a second comment period. Any parties
interested in commenting on this action should do so at this time.
    For additional information, see the direct final rule which is
located in the rules section of this Federal Register.

    Dated: November 9, 2006.
Lawrence E. Starfield,
Acting Regional Administrator, Region 6.
[FR Doc. E6-19992 Filed 11-24-06; 8:45 am]

BILLING CODE 6560-50-P