 1 TRI DATA RELEASE PAPER for Stakeholder Outreach I. BACKGROUND This is one of three papers which describe aspects of the Toxics Release Inventory ( TRI) Program and raise issues for stakeholder input. The scope of each paper corresponds to a phase of the annual TRI reporting cycle. TRI data for a calendar year must be reported to EPA each year by July 1st after the end of the year. Therefore, reporting years are the same as calendar years. The " reporting cycle" begins with EPA's compliance assistance activities, including the development of its reporting forms and instructions package that is mailed to facilities in approximately March of each year. Once EPA receives the forms, it enters the data from the forms ( over 91,000 in 2000) in its TRI database. After entry into the database, EPA runs a number of data quality checks on both the facility identification information and on the chemical specific data. After the data entry and data quality steps are completed, the TRI database is " frozen" for analysis and development of data products for release to the public. Generally, EPA announces the annual release of the TRI data by holding a press event or issuing a press release, and simultaneously notifying a wide range of stakeholders.

The background paper for this stakeholder process is entitled TRI Data Collection, Processing and Management, and addresses the TRI data process beginning with submission of the forms and ending at the data " freeze." This paper, TRI Data Release Issue Paper is the second of the three; it discusses TRI data products, the process for analyzing and releasing the TRI data, uses of the data, and issues and considerations associated with these aspects of the TRI program. The third paper is TRI Compliance Assistance Activities. TRI compliance assistance activities are carried out throughout the year with certain of the activities being closely aligned with the reporting cycle.

As noted above, each year, once EPA finishes processing the TRI data it receives the previous July 1, the Agency " freezes" the data in order to prepare the data for the TRI public data release. Once the TRI data is " frozen," it takes the Agency approximately 3 months to conduct the analyses, prepare the data release reports, and prepare the data access tools to be ready to " release" the data to the public. Providing quality assurance of data and quality management of the public information and data tools is a key component at this time.

EPA makes the TRI data available to the public in several different ways. First, the data are provided to the public on line through two EPA data access tools: TRI Explorer and the EPA Envirofacts on line data warehouse. Second, the Agency prepares a two volume Public Data Release ( PDR) report and an Executive Summary which are made available in both hard copy and on the TRI website. Additional background materials, including charts and graphs, state and national data files,  2 press materials, etc., are also made available on the TRI website.

While some stakeholders have voiced concerns that EPA is not providing the data early enough, others have emphasized the need for the Agency to analyze the data and provide the type of context contained in the PDR reports at the same time EPA makes the TRI data publicly available each year. Undertaking these analyses and preparing the reports in a manner consistent with EPA quality systems affects the timing of the release of the data.

The purpose of this issue paper is to describe the data release process and how the TRI data is used, in order to solicit stakeholder input on the process and the data products. The next section of the paper, TRI Data Products, describes the many reports and data access tools EPA makes available for the TRI data release each year. The following section, entitled TRI Data Release Process describes how the data products are prepared, including a schedule of the tasks involved. The last section discusses several important aspects of the data release process ( following the data freeze), such as timing of the release, the need for context for the data, the extent of data quality efforts, etc., as well as options for changing these aspects of the release. In each section we have included questions in italics to help focus the stakeholder comments.

II. TRI DATA PRODUCTS Public Data Release Reports Beginning in 1988, EPA has prepared a Public Data Release Report, or set of reports, each year in order to summarize the TRI data. The last 5 years' data release reports are available at www. epa. gov/ tri/ tridata/ index. htm# pdr. The reports can also be obtained by calling the TRI Documents distribution line at ( 202) 564 9554.

In the last several years the Agency has been preparing three reports for the TRI data release. One is the Public Data Release Report, which provides a variety of analyses of the data including industry analyses, trend analyses, analyses of the data by media, by state, and by chemical. It also includes a large chemical table which summarizes the releases for each chemical for the current year and select previous years, including the first year of reporting on the chemical. The first chapter of this report explains the TRI reporting requirements and how they have changed over time. It also describes each data element and explains the factors to consider when using the data. These reports are roughly 400 pages long, including appendices that are approximately 200 pages. They contain over 150 tables and figures.

When the Agency is reporting on a set of chemicals or industries for the first time, the data release report will usually include more in depth analyses of those industry sectors or chemicals. For  3 instance, this year's Public Data Release report on the 2000 TRI data included an extensive section on persistent bioaccumulative toxic chemicals, for which reporting requirements were revised in 2000.

The second major information product prepared each year is the " State Fact Sheets" report, which is a compilation of 4 page fact sheets on the TRI data for each state as well as summary tables which present state rankings on a variety of measures including total releases, on site releases, off site releases, total waste managed, releases from manufacturing, and from non manufacturing industries. The individual state fact sheets include lists of top ranked facilities for each state.

The third information product is an executive summary which is approximately 12 pages and provides an overview of the data, including summary tables, charts and graphs showing the distribution of releases and total wastes by industry, by media, and over time. It includes a short explanation of the TRI reporting requirements and the factors to be considered when using the data.

In the past few years, in efforts to make the TRI data available as early as possible, information products have been made available on the internet at the time the data is released and the printed reports have been made available approximately 6 weeks later. Thus, the Agency is able to release the TRI data 6 weeks earlier.

EPA would like comments on each of the data release reports, including how they meet users' data and information needs, and suggestions for changes.

TRI Electronic Data Access Tools EPA has two main TRI electronic data access tools, the TRI Explorer ( www. epa. gov/ triexplorer/ chemical. htm) and Envirofacts ( www. epa. gov/ enviro). Both can be accessed through the TRI web site at www. epa. gov/ tri. TRI Explorer is a user friendly tool that enables the user to generate reports on chemical releases and other waste management activities by facilities, chemicals, geographic areas, or industry type at the county, state, or national level. Envirofacts is EPA's on line data " warehouse" which provides the public with direct access to EPA databases including TRI. Users can access basic facility information and chemical reports, which tabulate air emissions, surface water discharges, releases to land, underground injections, and transfers to off site locations. Envirofacts also allows for custom queries, allowing the user to focus on specific data elements of interest.

In addition to these data access tools, EPA prepares TRI data files ( in ASCII) that more sophisticated users can take and analyze themselves using data management and analytical tools of their choice, e. g., spreadsheets or other data management tools. These TRI data files are made available on the TRI web site ( www. epa. gov/ tri/ tridata/ state_ data_ files. htm). They are available by state or on a  4 national basis.

EPA is seeking users' comments on these data access tools, including comments on how they do or don't meet user needs. Please be as specific as possible about the data access tool( s) you are commenting on, and about any suggestions for improvements.

There are two other tools for accessing TRI data which have been developed by other organizations. One is RTKNET ( www. rtk. net), developed by the organization OMB Watch. It provides access to a number of databases, including TRI, for communities to learn about their environment. The other is TOXNET, a National Library of Medicine tool to search the TRI data online ( www. toxnet. nlm. nih. gov). Before EPA had its own electronic data access tools, TOXNET provided the only electronic access to the TRI data.

Other TRI Data Products When the TRI data is made available to the public each year, the Agency creates a Data Release web page ( www. epa. gov/ tri/ tridata/ tri00/ index. htm) that provides users with the TRI reports, access to TRI Explorer and Envirofacts, and a number of other information products that help summarize and provide context for the data. These include a set of press materials which contain summary charts, graphs, and tables, an overview of the TRI program which includes an explanation of the limitations of the data, Q's and A's, and other information that provides context to the TRI data.

EPA would like comments on these additional data tools in terms of how well they meet users' needs.

EPA is also seeking comments on the whole suite of tools made available for accessing and using the TRI data. Do these tools as a whole meet the wide range of user needs? Do users need more links to other data, including exposure, health, and environmental data, in order to effectively utilize the TRI data? Is more context information needed? Are there ways EPA can partner with other organizations to produce new tools?

III. TRI DATA RELEASE PROCESS Development of all the data products that have been described here takes approximately 3 months, with many of the project tasks being done simultaneously. EPA has contractor support for preparing both the data release reports and the on line data access tools. The most time consuming part of the process of analyzing and releasing the data is the preparation of the two volume data release reports, which take the entire three months, including review time. Figure 1 ( attached) lays out the steps required to prepare the data release reports and the TRI Explorer data access tool. Many of the  5 steps are performed simultaneously because of the need to release the data as soon as possible.

One of the first steps in the process is preparing an outline and list of tables and figures to be included in the data release reports. This is done prior to the data freeze. Following the data freeze, the first major task involved with preparing the data release reports is to develop the data tables for preparing the public data release reports and for checking the TRI Explorer. These are necessary to analyze the data and write up the results. These tables are submitted to EPA for review. Preparing a first draft of the entire Public Data Release report takes about 8 weeks from the time the data is frozen ( some of the text is prepared before all the tables are run). After review and comment by EPA the draft needs to be sent to the design subcontractor for layout. This step takes about 1 week. Finally approximately 2 weeks are needed for review and comment by the Agency.

The State Fact Sheets and the ranking tables contained in the State Fact Sheets Report take roughly 2 weeks to prepare in draft form, and then a week is required for formatting and layout by the design subcontractor. Then they are submitted to EPA for review both by EPA and the states. EPA has the regional TRI coordinators distribute individual state fact sheets to the TRI coordinators in their region to review and make sure they are consistent with their databases. This review/ correction process takes approximately 2.5 weeks. Therefore, a total of about 5 6 weeks is necessary for preparation of the State Fact Sheets Report.

The Executive Summary takes approximately 6 weeks to prepare, including approximately 2 weeks for analyzing the data and developing the tables and 2 weeks for the text. In addition, approximately 2 weeks is needed for review and design work on the report. Finally a week is needed for printing.

Timeframes for the development of the additional data release materials are provided in Figure 1, i. e. roughly 1.5 weeks for the contractor to develop press materials, 4 weeks for EPA to create the national and state data files in ASCII, 6 weeks for EPA to develop and coordinate Agency review of a set of Qs and As on the data ( once the tables are prepared), and 5 weeks to prepare materials for notifying interested parties of the data release.

Preparation of the TRI Explorer for the TRI public data release varies depending upon whether enhancements are being introduced at the time of the data release. If no new enhancements are being introduced, it should take approximately 2 months to prepare the TRI Explorer for the data release. If new enhancements are being introduced, additional time is needed for developing, testing, and correcting the tool, increasing the total time needed to about 2.5  3 months.

IV. OPTIONS FOR RELEASING THE TRI DATA EARLIER  6 There are ways in which the Agency could reduce the amount of time it takes to make the data available after the data freeze. One way would be to simply make the data available through Envirofacts and TRI Explorer. This would take approximately 6 7 weeks from the data freeze. However, it would not allow the Agency time to analyze the data in order to answer questions that might be raised nor time to prepare contextual materials other than the standard documents that explain the data and its limitations. In addition, it would eliminate part of the data quality efforts that are carried out during this time period.

Another option for reducing the amount of time it takes to release the data would be to prepare the Executive Summary, as is currently done, along with the release of the data on TRI Explorer and Envirofacts. This would take approximately 8 9 weeks from the data freeze and would allow a little time to review the data and to begin to anticipate questions. However, very little analysis could be done in this time. In both cases, the complete Public Data Release Reports could be completed and released after the release of the data.

V. ISSUES AND CONSIDERATIONS Timing All things being equal, we would clearly like to make the TRI data available to the public as early as possible since data is more useful the more current it is. Since the reporting deadline is July 1 following the year for which the data is reported, there is a statutory 6 month delay before the data are submitted to EPA and the states. As is discussed in more detail in the paper describing the processing of the TRI data, the Agency takes a few months to enter the data and undertake quality assurance measures before freezing the data. This paper has discussed the process the Agency traditionally goes through to analyze the data and prepare reports summarizing and explaining the data. In order to release the data sooner after freezing the data, we would need to forego some or all of the analysis and report writing, which could have implications for the quality of the data, and the amount of analysis and context made available to the public.

EPA is seeking comment on the timing of the data release, and on the preferred tradeoffs that should be made in order to change the timing of the data release. For instance, if a commenter feels strongly that the TRI data needs to be released at least 3 months earlier, we would like the commenter's suggestions regarding how to accomplish that, e. g., specific recommendations on scaling back or eliminating the data release reports Context EPA has always prepared its data analysis and some type of report prior to releasing the data.  7 In addition, some type of press announcement is always made at the time of the release to make people aware that the data is available. Over the years, many stakeholders have indicated that they feel it is important for the Agency to provide context when releasing the data since, otherwise, there could be a lot of room for misinterpretation. Providing this context adds to the time it takes to make the data available.

EPA is seeking comment on the context currently provided when we release the TRI data, including specific recommendations for change. For instance, if you would like to see more context provided, please provide recommended additions.

Extent of Data Analysis Given the huge volume of data in the TRI database, there is much analysis that can be done on it. However, the Agency is limited in the amount of analysis that can be done on the data because of the need to make the data available as quickly as possible. Therefore, there are many questions about the data which cannot be fully answered at the time of the data release. If we consider trying to accelerate the data release schedule, we need to recognize the fact that the Agency's analysis of the data will be even more limited than it has been. Therefore, questions may be raised about the data that cannot be answered immediately.

EPA is seeking comment on the extent of the data analysis currently conducted as well as specific recommendations for change. If you are recommending that the Agency conduct additional analysis prior to releasing the data, please comment on your willingness to have the data released later than it currently is.

Data Quality Assuring the quality of the TRI data has been, and continues to be an important aspect of the TRI Program. The utility of the data is dependent upon how credible it is. The most important data quality activities are discussed in the other issue papers. For example, the compliance assistance issue paper discusses the many TRI guidance documents, training workshops, the hotline, etc. The other issue paper addressing TRI data receipt and processing discusses several data quality steps taken prior to the data freeze. In addition, as the data is analyzed following the data freeze, additional quality assurance is undertaken. At this stage in the process, it is very difficult for the Agency to change the data since it has already been " frozen" and generally many analyses have already been performed. Therefore, if significant errors are discovered, the remedy is usually to explain them in a footnote.

If EPA were to try and speed the release of the TRI data following the data release, data quality could be compromised to some extent. For example, in the process of developing the Public  8 Data Release and State Fact Sheets reports, EPA occasionally discovers significant errors, mostly resulting from erroneous submissions. If EPA were to simply make the data available through Envirofacts and TRI Explorer, it's unlikely these types of errors would be caught, partly due to the fact that we would not be having the states check the State Fact Sheet data.

Options for expediting the TRI data release are likely to include eliminating or reengineering some of the data quality activities, and placing greater responsibility on the reporting facilities to submit their data correctly in the first place. This could compromise data quality in the short run as we move to the new approach, but could benefit the program in the long run.

EPA is seeking comment on users' trade off preferences between data quality and timing of the data release. For instance, is expediting the release of the data important enough to users that they are willing to tolerate the possibility that there will be more errors in the data at the time of release?

Digital Divide Given budget constraints, the growth of the Internet, and the pressure to make information available as quickly as possible, we have become more and more reliant on the Internet to make the TRI data available. We need to keep in mind that there are still many citizens that need the TRI data who cannot access it electronically very easily. Many of the options for expediting the release of the data rely exclusively on electronic data access.

EPA is seeking comment on whether or not the digital divide is a significant issue, and if it is, how EPA should be addressing it with respect to the TRI public data release.


[Federal Register: February 25, 2009 (Volume 74, Number 36)]
[Notices]
[Page 8600-8603]
[DOCID:fr25fe09-109]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59415; File No. SR-NYSE-2009-13]

Self-Regulatory Organizations; Notice of Filing and Immediate
Effectiveness of Proposed Rule Change by New York Stock Exchange LLC
Amending Certain NYSE Rules To Reflect That Designated Market Makers on
the Exchange No Longer Act as Agents for Orders Entered on the Exchange

February 18, 2009.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby
given that, on February 4, 2009, New York Stock Exchange LLC (``NYSE''
or the ``Exchange'') filed with the Securities and Exchange Commission
(the ``Commission'') the proposed rule change as described in Items I
and II below, which Items have been prepared by the self-regulatory
organization. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C.78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 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 proposes to amend certain NYSE rules to reflect that
Designated Market Makers (``DMMs'') on the Exchange will no longer act
as agents for orders entered on the Exchange.
    The text of the proposed rule change is available at http://
www.nyse.com, the Exchange, and 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
    Through this filing, the Exchange proposes to amend certain NYSE
rules to reflect that the Designated Market Makers (``DMMs'') no longer
have agency responsibilities for orders entered on the NYSE Display
Book[supreg] (``Display Book'').\4\
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    \4\ The Display Book[supreg] system is an order management and
execution facility. The Display Book system receives and displays
orders to the DMM, contains the Book, and provides a mechanism to
execute and report transactions and publish results to the
Consolidated Tape. The Display Book system is connected to a number
of other Exchange systems for the purposes of comparison,
surveillance, and reporting information to customers and other
market data and national market systems.
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    The Exchange notes that parallel changes are proposed to be made to
the rules of the NYSE Alternext Exchange (formerly the American Stock
Exchange).\5\
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    \5\ See SR-NYSE Alternext-2009-09 (to be filed February 4,
2009).
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Background
    On June 12, 2008, the NYSE filed a set of proposed rule changes
designed to transform its market structure and reinforce the NYSE as
the premier venue for price discovery, liquidity, competitive quotes
and price improvement.\6\ That and other filings \7\ formed the core
initiatives submitted by the Exchange to reinforce its dynamic and
competitive marketplace.
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    \6\ See Securities Exchange Act Release No. 58184 (July 17,
2008), 73 FR 42853 (July 23, 2008) (SR-NYSE-2008-46).
    \7\ See for example, Securities Exchange Act Release No. 58052
(June 27, 2008), 73 FR 38274 (July 3, 2008) (SR-NYSE-2008-45)
(amending NYSE Rule 98); see also Securities Exchange Act Release
No. 58363 (August 14, 2008), 73 FR 49514 (August 21, 2008) (SR-NYSE-
2008-52) (amending the NYSE allocation policy).
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    As outlined in SR-NYSE-2008-46 (the ``New Market Model filing''),
the changes to the Exchange's marketplace included the replacement of
Exchange specialists with DMMs. The function of the DMM is
substantially different from the manner in which specialists functioned
vis-[agrave]-vis the relationship between Exchange order givers and
representation of these orders in the marketplace. DMMs no longer
receive copies of orders entered in Exchange systems prior to the
orders publication to all market participants by Display Book.
Similarly, DMMs do not have a negative obligation which would require
the DMM to yield trading for the DMM unit's proprietary account in
order to allow public orders to be executed against each other. DMMs
therefore trade on parity with all market participants.
    Incoming orders to buy and sell submitted to the Exchange are
eligible for automatic quoting and immediate and automatic execution.
Instead of the DMM, the NYSE Display Book is responsible for tracking
the liquidity available at each specified price point. NYSE systems
automatically review the liquidity available on the Display Book for
execution and then using sophisticated execution logic access the
necessary liquidity to consummate trades. Exchange systems report
executions to the entering parties, update the quote and process order
cancellations.
    Although the DMM no longer receives order by order information, he
or she is still responsible for the execution of manual transactions on
the Exchange including opening and re-opening transactions, closing
transactions, block transactions, gap quote situations and when trading
reaches LRPs that would lock or cross the market.\8\ DMMs are
responsible for choosing the price \9\ and the executions of the orders
at that price during those specific situations.
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    \8\ See NYSE Rule 104(a)(2)-(5).
    \9\ In an opening and reopening trade, Display Book will verify
that all interest that must be executed in the opening or reopening
can be executed at the price chosen by the DMM. If all the interest
that must be executed in the transaction cannot be executed at that
price, the Display Book will block the execution. In addition, when
executing blocks (10,000 shares or more or value of $200,000 or
more), trading out of a gap quote situation or an LRP that locks or
crossed the market, the Display Book may adjust the execution price
if there is enough interest on the Display Book to complete the
transaction at a better price.
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    In the current NYSE trading environment, the DMM no longer
functions as an agent for orders on the Display Book because the DMM
does not control order by order information. As such the Exchange
proposes through this filing to amend legacy rules that retain the
concept of the Exchange market maker as agent.
Proposed Rule Changes
    Certain Exchange rules contain language that refers to the DMM
``holding,'' ``receiving,'' and/or ``accepting'' orders. These concepts
were consistent with the role performed by former specialist but are
inconsistent with the role of the DMM. The Exchange therefore proposes
to amend NYSE Rules 13 (``Definitions of Orders''), 91 (``Taking or
Supplying Securities Named in Order''), 123A (``Miscellaneous
Requirements'') and 123B (``Exchange Automated Order Routing Systems'')
to remove this concept.
    Specifically, the Exchange proposes to delete the Supplementary
Material.10 of NYSE Rule 13 in its entirety to remove language that
provides a DMM must accept any order given to him, unless he obtains
Floor Official approval to decline an order. The Exchange further seeks
to remove the phrase ``the DMM via'' \10\ from Supplementary
Material.40 of NYSE Rule 91 that governs a DMM making a proprietary
trade against an order, but retain the procedural provisions. In
Supplementary Material to Rule 123A, the Exchange proposes to delete
.10 (``Limited orders-Market orders'') since it speaks to a member
giving an order to the DMM. The first paragraph of .20 (``Sending
orders to DMMs'') in that rule is proposed for deletion as it governs
members and member organizations transmitting orders to DMMs. The
Exchange further proposes to amend .20 of NYSE Rule 123A to: (i) Delete
the concept of orders being sent to the DMMs; and (ii) change the title
to ``Changes in Day Orders'' which reflects the retained material.
Similarly, Supplementary Material .31 (``Orders sent to
representatives''), .32 (``Report not received''), .33 (``Addressed
order or order handed to DMM''), .34 (``Unaddressed order''), .35
(``Erroneous statement''), .36 (``Legibility of orders''), .37
(``Identity of stock''), .38 (``Reports, written and oral'') and .39
(``Duplicate reports'') of NYSE Rule 123A are proposed for deletion as
they speak to transmitting or giving orders to DMMs, DMMs receiving
orders, DMMs giving reports on orders, and similar provisions.
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    \10\ See e-mail from Deanna G. W. Logan, Managing Director, NYSE
Regulation, Inc., to David Liu, Assistant Director, Division of
Trading and Markets, Commission, dated February 13, 2009 (making
technical edits) (``February 13th e-mail'').
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    In addition, the Exchange proposes to delete NYSE Rule
123B(b)(2)(B) because it speaks of orders received by the DMM through
the Designated Order Turnaround System and to erroneous reports sent by
the DMM on executions. These functions are no longer handled in this
manner. As previously explained, order acceptance and reports of
executions are handled by Exchange systems. The Exchange also proposes
to delete NYSE Rule 123B(d) because it describes orders being sent to
and executed by the DMM.
    The Exchange also proposes to amend paragraph (2)(A) of Rule
123B(b) to have it apply to all members if the member

makes an erroneous report of the price of a transaction, by
substituting the word ``member'' for the word ``broker'' in the rule.
This will then include situations in which a DMM makes an erroneous
report as to price on a transaction.
    NYSE Rule 92(d)(6) (``Limitations on Members' Trading Because of
Customers' Orders'') is further proposed for deletion as it restricts
DMM proprietary trading during the hours the Exchange is closed. The
restriction was predicated on the former specialist system where the
specialist had knowledge of customer orders in his or her possession.
The restriction is obviated by the fact that the DMM no longer
``holds'' customer orders. Nevertheless, as members, DMMs will continue
to be subject to the rule's general prohibition. Similarly, the last
sentence of NYSE Rule 127(d)(3) (``Block Crosses Outside the Prevailing
NYSE Quotation'') is proposed for deletion because it also is
predicated on the DMM retaining stock for the DMM's own account at a
price at which the DMM ``holds'' unexecuted customer orders.\11\
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    \11\ See February 13th e-mail, supra, note 10.
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    The Exchange believes that the amendments proposed herein to remove
legacy rule language that is inconsistent with the role of the DMM as
approved by the Commission in the New Market Model filing are necessary
to adequately reflect the functions performed by the DMM.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section
6(b) of the Securities Exchange Act of 1934 (the ``Act''),\12\ in
general, and furthers the objectives of Section 6(b)(5) of the Act,\13\
in particular, in that it is designed to prevent fraudulent and
manipulative acts and practices, to promote just and equitable
principles of trade, to remove impediments to and perfect the mechanism
of a free and open market and a national market system, and, in
general, to protect investors and the public interest. The Exchange
believes the proposed rule changes are consistent with these principles
in that it amends legacy rules to accurately reflect the role performed
by the Exchange's market maker thus removing impediments to and
perfecting the mechanism of a free and open market.
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    \12\ 15 U.S.C. 78f(b).
    \13\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

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

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

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

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

    Because the foregoing proposed rule change: (1) Does not
significantly affect the protection of investors or the public
interest; (2) does not impose any significant burden on competition;
and (3) by its terms, does not become operative for 30 days after the
date of 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 \14\ and Rule 19b-4(f)(6) thereunder.\15\
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    \14\ 15 U.S.C. 78s(b)(3)(A).
    \15\ 17 CFR 240.19b-4(f)(6).
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    A proposed rule change filed under Rule 19b-4(f)(6) normally does
not become operative for 30 days after the date of filing.\16\ However,
Rule 19b-4(f)(6)(iii) permits the Commission to designate a shorter
time if such action is consistent with the protection of investors and
the public interest. The Exchange requested that the Commission waive
the 30-day operative delay and designate the proposed rule change
operative upon filing.
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    \16\ 17 CFR 240.19b-4(f)(6)(iii). In addition, Rule 19b-
4(f)(6)(iii) requires the self-regulatory organization to give the
Commission 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. NYSE has satisfied this requirement.
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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.
The proposed rule change seeks to remove legacy language that is
inconsistent with the role performed by DMMs as approved by the
Commission in the New Market Model filing.\17\ Furthermore, it seeks to
clarify its rule text in order to avoid any undue confusion on the part
of Exchange market participants as it relates to the function performed
by DMMs. Therefore, the Commission designates the proposal operative
upon filing.\18\
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    \17\ See supra note 6.
    \18\ For purposes only of waiving the operative delay for this
proposal, the Commission has considered the proposed rule's impact
on efficiency, competition, and capital formation. See 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 such rule change if it
appears to the Commission that such action is necessary or appropriate
in the public interest, for the protection of investors, or otherwise
in furtherance of the purposes of the Act.\19\
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    \19\ 15 U.S.C. 78s(b)(3)(C).
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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 Number SR-NYSE-2009-13 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-2009-13. 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-2009-13 and should be submitted on or before March
18, 2009.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\20\
Florence E. Harmon,
Deputy Secretary.
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    \20\ 17 CFR 200.30-3(a)(12).
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 [FR Doc. E9-3980 Filed 2-24-09; 8:45 am]

BILLING CODE 8011-01-P