
[Federal Register: July 17, 2009 (Volume 74, Number 136)]
[Notices]               
[Page 34817-34822]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17jy09-121]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-60287; File No. SR-NYSE-2009-69]

 
Self-Regulatory Organizations; Notice of Filing and Immediate 
Effectiveness of Proposed Rule Change by New York Stock Exchange LLC 
Amending NYSE Rule 72 To Eliminate Parity Allocations for DMM Interest 
Added Intra Day During a Slow Quote or When Verbally Trading With Floor 
Brokers at the Point of Sale

July 10, 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 July 9, 2009, New York Stock Exchange LLC (``NYSE'' or 
the ``Exchange'') filed with the Securities and Exchange Commission 
(``SEC'' or the ``Commission'') the proposed rule change as described 
in Items I and II 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\ 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 NYSE Rule 72 to eliminate parity 
allocations for DMM interest added intra day during a slow quote or 
when verbally trading with Floor brokers at the point of sale. The text 
of the proposed rule change is available at the Exchange, the 
Commission's Public Reference Room, and http://www.nyse.com.

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

    In its filing with the Commission, the self-regulatory organization 
included statements concerning the purpose of, and basis for, the 
proposed rule change and discussed any comments it received on the 
proposed rule change. The text of those statements may be examined at 
the places specified in Item IV below. The Exchange has prepared 
summaries, set forth in sections A, B, and C below, of the most 
significant parts of such statements.

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

1. Purpose
    NYSE proposes to amend NYSE Rule 72 to eliminate parity executions 
for DMM interest added intra-day during a slow quote or when verbally 
trading with Floor brokers at the point of sale (``slow trading 
condition''). Through this proposal Exchange systems' allocation logic 
will be modified so that DMM interest added intra day during a slow 
trading condition yield to all other interest present at the price 
point. As such, all other interest eligible to receive an execution at 
the price will receive share allocation in full before any shares are 
allocated to the additional DMM interest. If shares remain, then the 
DMM interest added at the price point during the slow trading condition 
would receive an allocation. If no shares remain then the DMM interest 
will not be allocated any shares in the transaction and would be 
cancelled by operation of the proposed rule.
    The Exchange notes that parallel changes are proposed to be made to 
the rules of the NYSE Amex LLC (formerly the American Stock 
Exchange).\4\
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    \4\ See SR-NYSEAmex-2009-40.

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[[Page 34818]]

a. Background
    Currently market participants' interest for round-lot executions on 
the Exchange is allocated on an equal basis, (i.e., parity) among the 
participants at a price point unless one of the participants has 
established priority,\5\ that is, the participant was the only interest 
at the price point when that price point was quoted. Individual Floor 
brokers and the Designated Market Maker (``DMM'') registered in the 
security each constitute a single market participant and all Off-Floor 
orders entered in Exchange systems at the Exchange BBO together 
constitute a single market participant (``Off-Floor Participant'') for 
the purpose of share allocation.
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    \5\ See NYSE Rule 72(a). A participant that is the only interest 
displayed at the price point when such price is or becomes the best 
bid or offer published by the Exchange is entitled to priority for 
the displayed portion of his or her order (Priority Interest). 
Priority Interest is allocated the first 15% of any execution (a 
minimum of one round lot). For the remainder of that execution, the 
participant that established priority receives a parity allocation 
with other interest available at that price. Exchange systems repeat 
the allocation logic for the participant that established priority 
until the participant's order is completely executed or cancelled. 
Any non Priority Interest of the participant that established 
priority is executed on parity.
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    When allocating shares based on parity, Exchange systems divide the 
size of the executing order by the number of participants. The total 
number of shares to be allocated to each participant is distributed 
equally among the participants where possible. Within the single Off-
Floor Participant, shares executed are allocated in order of time 
priority of receipt of Off-Floor Participant Interest into Exchange 
systems. Executions are allocated in round-lots.
Example Simple Parity Allocation
    Display Book has displayed two bids from Off-Floor Participants for 
a total volume of 200 shares; the DMM and one Floor broker are bidding 
at the same time for 100 shares each.

Order 1 100 shares &       Off-Floor Participant.
 Order 2 100 shares.
DMM 100 shares....................  Participant A.
Floor Broker 1 100 shares.........  Participant B.


    A market order for 300 shares to sell being automatically executed 
by Exchange systems will allocate 100 shares to Off-Floor Participant 
Order 1, Participant A and Participant B.
    In the event the number of shares to be executed at the price point 
is insufficient to allocate round-lots to all the participants eligible 
to receive an execution at the price point, the Exchange systems 
creates an allocation wheel of the eligible participants at the price 
point and the available shares are distributed to the participants in 
turn.
    On each trading day, the allocation wheel for each security is set 
to begin with the participant whose interest is entered or retained 
first on a time basis. Thereafter, participants are added to the wheel 
as their interest joins existing interest at a particular price point. 
If a participant cancels his, her or its interest and then rejoins, 
that participant joins as the last position on the wheel at that time.
Example Parity Allocation Distributed to Multiple Participants
    Display Book has displayed two bids from Off-Floor Participants for 
a total volume of 200 shares, the DMM and three Floor brokers are 
bidding at the same time for 100 shares each.

Order 1 100 shares &       Off-Floor Participant.
 Order 2 100 shares.
DMM 100 shares....................  Participant A.
Floor Broker 1 100 shares.........  Participant B.
Floor Broker 2 100 shares.........  Participant C.
Floor Broker 3 100 shares.........  Participant D.


    A market order for 300 shares to sell being automatically executed 
by Exchange systems will allocate 100 shares to Off-Floor Participant 
Order 1, Participant A and Participant B.
    Subsequently, another order to sell 300 shares at the same price is 
received by Exchange systems. Those shares will be allocated to 
Participant C, Participant D, and Order 2 Off-Floor 
Participant.
    DMM interest added during a slow trading condition pursuant to 
provisions of current NYSE Rule 72 also executes on parity. Pursuant to 
current rules, Exchange systems do not distinguish between the DMM 
interest added at the time of the slow trading condition and the s-
Quotes representing DMM interest present on the Display book prior to 
the slow trading condition.
Example Current Parity Allocation of DMM Added Interest During a Slow 
Trading Condition
    In the table below, the Exchange Market is 200 shares bid at the 
price of $20.05 and 200 shares offered at a price of $20.10. The price 
point of $20.03 is designated as a Liquidity Replenishment Point 
(``LRP'').\6\ An order to sell 600 shares with a limit price of $20.02 
is received by Exchange systems. There are 100 shares bid at the prices 
of $20.04 and $20.03. Additionally, there are 200 shares bid at the 
price of $20.02 and $20.01.
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    \6\ LRPs are pre-determined price points that temporarily 
convert the automatic Exchange market to an auction market in order 
to dampen volatility when the market is experiencing a large price 
movement based on a security's typical trading characteristics or 
market conditions over short periods of time during the trading day. 
LRPs allow for the solicitation of additional liquidity.

                                         Display Book Prior to Execution
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    Protected bid             Bid size              Bid price             Offer price            Offer size
----------------------------------------------------------------------------------------------------------------
                       .....................  .....................             $20.10                    200
----------------------------------------------------------------------------------------------------------------
                                     200                 $20.05
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                                     100                 $20.04
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[[Page 34819]]


                                     100            $20.03\LRP\
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                                     200                 $20.02
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                                     200                 $20.01
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    Given the information above, the order will execute 200 shares at 
the bid price of $20.05 leaving 400 shares. At the next price of $20.04 
it will execute an additional 100 leaving 300 shares. The order will 
then execute an additional 100 shares at the LRP price of $20.03 and 
have 200 shares of the incoming limit order remaining.

                                      Display Book After Initial Executions
----------------------------------------------------------------------------------------------------------------
  Protected bid         Bid size          Bid price         Offer price         Offer size          Residual
----------------------------------------------------------------------------------------------------------------
                   .................                              $20.10                200
----------------------------------------------------------------------------------------------------------------
                   .................           $20.05
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                   .................           $20.04
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            200    .................      $20.03\LRP\
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                               200             $20.02    .................  .................              200
----------------------------------------------------------------------------------------------------------------
                               200             $20.01
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    After the execution at the LRP price of $20.03, Exchange systems 
enter a slow trading condition because the previous executions have 
traded down to an LRP prior to the order's limit price of $20.02. There 
are now 200 shares of away market interest bid at a price of $20.03. 
The DMM needs to: (i) Clear the crossed market created by the away 
market interest bid at the price of $20.03 that is crossed against the 
residual at $20.02; and (ii) trade the residual against the 200 shares 
bid at the price of $20.02 to clear the internal lock on the Exchange. 
The DMM enters an additional 200 shares of DMM interest to sell at the 
price point of $20.02 below the LRP price point in order to facilitate 
the clearing of the locked/crossed market. However, when the DMM hits 
the enter button to consummate the trade, the away market bid is no 
longer available. The residual 200 shares of the sell limit order will 
be executed at the price of $20.02 with 100 shares allocated to the 
interest on the Display Book and 100 shares allocated to the DMM 
interest added during the slow trading condition. 100 shares of the 
interest to sell on the Display Book remain unexecuted at the price of 
$20.02. The remaining 100 shares of sell interest become the Exchange's 
offer and the best available bid which is 200 shares at the price of 
$20.01 will be quoted as illustrated in the table below.

                                         Display Book After LRP Cleared
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    Protected bid             Bid size              Bid price             Offer price            Offer size
----------------------------------------------------------------------------------------------------------------
                       .....................  .....................             $20.02                    100
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                                     200                 $20.01
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b. Proposed Amendment to NYSE Rule 72
    The Exchange proposes to amend its allocation logic to have DMM 
interest added intra day during a slow trading condition yield to all 
other interest present at the price point. If shares remain after 
allocation to all other eligible interest, then the DMM interest added 
at the price point would receive an allocation. If no shares remain 
then the DMM interest will not be allocated any shares in the 
transaction.
Example Proposed Parity Allocation During a Slow Trading Condition
    In the table below, the Exchange Market is 200 shares bid at the 
price of $20.05 and 200 shares offered at a price of $20.10. The price 
point of $20.03 is designated as an LRP. An order to sell 600 shares 
with a limit price of $20.02 is received by Exchange systems. There are 
100 shares bid at the prices of $20.04 and $20.03. Additionally, there 
are 200 shares bid at the price of $20.02 and $20.01.

                                         Display Book Prior to Execution
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    Protected bid             Bid size              Bid price             Offer price            Offer size
----------------------------------------------------------------------------------------------------------------
                       .....................  .....................             $20.10                    200
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[[Page 34820]]


                                     200                 $20.05
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                                     100                 $20.04
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                                     100            $20.03\LRP\
----------------------------------------------------------------------------------------------------------------
                                     200                 $20.02
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                                     200                 $20.01
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    Given the information above, the order will execute 200 shares at 
the bid price of $20.05 leaving 400 shares. At the next price of $20.04 
it will execute an additional 100 leaving 300 shares. The order will 
then execute an additional 100 shares at the LRP price of $20.03 and 
have 200 shares of the incoming limit order remaining.

                                      Display Book After Initial Executions
----------------------------------------------------------------------------------------------------------------
   Protected bid          Bid size           Bid price         Offer price       Offer size         Residual
----------------------------------------------------------------------------------------------------------------
                     .................  ..................         $20.10               200
----------------------------------------------------------------------------------------------------------------
                     .................           $20.05
----------------------------------------------------------------------------------------------------------------
                     .................           $20.04
----------------------------------------------------------------------------------------------------------------
             200     .................      $20.03\LRP\
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                                200              $20.02     ................  ................            200
----------------------------------------------------------------------------------------------------------------
                                200              $20.01
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    After the execution at the LRP price of $20.03, Exchange systems 
enter a slow trading condition because the previous executions have 
traded down to an LRP prior to the order's limit price. There are now 
200 shares of away market interest bid at a price of $20.03. The DMM 
needs to: (i) Clear the crossed market created by the away market 
interest bid at the price of $20.03 that is crossed against the 
residual at $20.02; and (ii) trade the residual against the 200 shares 
bid at the price of $20.02 to clear the internal lock on the Exchange. 
The DMM enters an additional 200 shares of DMM interest to sell at the 
price point of $20.02 below the LRP price point in order to facilitate 
the clearing of the locked/crossed market. However, when the DMM hits 
the enter button to consummate the trade, the away market bid is no 
longer available. Exchange systems will execute the 200 shares of the 
limit buy order at the price of $20.02. Pursuant to the proposed rule 
modification, Exchange systems will allocate 200 shares to the interest 
on the Display Book and no shares will be allocated to the DMM interest 
added during the slow trading condition. Pursuant to the proposed rule, 
the DMM interest will be cancelled. Exchange systems will further 
update the quote to the best bid available on the Exchange, 200 shares 
bid at the price of $20.01 and 200 shares offered at the price of 
$20.10.

                     Display Book After LRP Cleared
------------------------------------------------------------------------
     Bid size          Bid price         Offer price       Offer size
------------------------------------------------------------------------
                   .................        $20.02               100
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         200             $20.01
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    DMM interest entered at the price point prior to the DMM adding 
interest during a slow trading condition will continue to receive an 
allocation pursuant to the current parity rule.
Example Proposed Parity Allocation During a Slow Trading Condition With 
Previously Entered DMM s-Quotes Representing DMM Interest
    In the table below, the Exchange Market is 200 shares bid at the 
price of $20.05 and 200 shares offered at a price of $20.10. The price 
point of $20.03 is designated as an LRP. An order to sell 800 shares 
with a limit price of $20.02 is received by Exchange systems. There are 
100 shares bid at the prices of $20.04 and $20.03. Additionally, there 
are 300 shares of non DMM interest and 100 shares of DMM interest bid 
at the price of $20.02.

                                         Display Book Prior to Execution
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                  Bid size
---------------------------------------------       Bid price             Offer price            Offer size
     DMM s-Quotes             Non DMM
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                       .....................  .....................             $20.10                    200
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                                     200                 $20.05      .....................  ....................
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                                     100                 $20.04      .....................  ....................
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[[Page 34821]]


                                     100           $20.03 \LRP\      .....................  ....................
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              100                    300                 $20.02      .....................  ....................
----------------------------------------------------------------------------------------------------------------
                                     100                 $20.01      .....................  ....................
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    Given the information above, the order will execute 200 shares at 
the bid price of $20.05 leaving 600 shares. At the next price of $20.04 
it will execute an additional 100 leaving 500 shares. The order will 
then execute an additional 100 shares at the LRP price of $20.03 and 
have 400 shares of the incoming limit order remaining.

                                                          Display Book After Initial Executions
--------------------------------------------------------------------------------------------------------------------------------------------------------
                 Bid size
-------------------------------------------       Bid price            Offer price           Offer size          Protected offer          Residual
    DMM s-Quotes             Non DMM
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                      ....................  ....................             $20.10                   200     ....................  ....................
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                      ....................             $20.05     ....................  ....................  ....................  ....................
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                      ....................             $20.04     ....................  ....................  ....................  ....................
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                      ....................        $20.03\LRP\     ....................  ....................  ....................  ....................
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              100                   300                $20.02     ....................  ....................  ....................                400
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                                    100                $20.01     ....................  ....................                200     ....................
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    After the execution at the LRP price of $20.03, Exchange systems 
enter a slow trading condition because the previous executions have 
traded down to an LRP prior to the order's limit price. There are also 
200 shares of away market interest now offered at a price of $20.01. 
The DMM needs to clear the internal lock on the Exchange at the price 
of $20.02 and the cross market condition created by the Exchange's bid 
at $20.02 and the protected offer at the price of $20.01. To accomplish 
this, the DMM enters 200 additional shares of DMM interest to buy at 
the price point of $20.02 below the LRP price point in order to 
facilitate the clearing of the locked/crossed market. However, when the 
DMM hits the enter button to consummate the trade, the away market 
offer is no longer available. Exchange systems will execute the 
remaining 400 shares of the limit order at the price of $20.02. 
Pursuant to the proposed rule modification, Exchange systems will 
allocate 300 shares to the Non DMM Interest on the Display Book and 100 
shares to the DMM s-Quote interest originally present at the price 
point of $20.02 will be fully executed. Pursuant to the proposed rule, 
the additional DMM interest added during the slow trading condition at 
the time of the trade is not allocated anything in the trade and is 
cancelled. Exchange systems will further update the quote to reflect 
100 shares bid at the price of $20.01 and 200 shares offered at the 
price of $20.10.

                     Display Book After LRP Cleared
------------------------------------------------------------------------
     Bid size          Bid price         Offer price       Offer size
------------------------------------------------------------------------
                   .................        $20.10               200
------------------------------------------------------------------------
         100             $20.01       ................  ................
------------------------------------------------------------------------

    As outlined by the examples above, the Exchange proposes to amend 
NYSE Rule 72 to add subparagraph (c)(xi) to restrict DMM interest added 
during a slow trading condition intra day from receiving an allocation 
on parity; rather, such interest will yield to all other interest at 
the price point. Pursuant to proposed NYSE Rule 72(c)(xi) DMM interest 
added during a slow trading condition will be allocated shares only 
after all other interest eligible to receive an execution at the price 
point is executed in full and if not executed will be cancelled. 
Proposed NYSE Rule 72 (c)(xi) will further provide that DMM interest 
present at the price point prior to the entry of DMM interest during 
the slow trading condition will continue to be allocated on a parity 
basis.
    The Exchange will commence implementation of the systemic changes 
to allow Exchange systems to be modified so that DMM interest added 
intra day during a slow trading condition will yield to all other 
interest present at the price point on or about July 10, 2009. The 
Exchange intends to progressively implement this systemic change for 
DMM interest added intra day on a security by security basis as it 
gains experience with the new technology until it is operative in all 
securities traded on the Floor. During the implementation, the Exchange 
will identify on its website which securities have been transitioned to 
the new system.
2. Statutory Basis
    The basis under the Securities Exchange Act of 1934 (the ``Act'') 
\7\ for these proposed rule changes is the requirement under Section 
6(b)(5) \8\ that an Exchange have rules that are designed to promote 
just and equitable principles of trade, to remove impediments to and 
perfect the mechanism of a free and open market and a national market 
system and, in general, to protect investors and the public interest. 
The Exchange believes that eliminating parity allocations for DMM 
interest added intra day during a slow quote or when verbally trading

[[Page 34822]]

with Floor brokers at the point of sale is consistent with the above 
principles because it will increase the possibility of executions for 
the public orders on the Exchange in those situations where DMMs add 
interest to facilitate an execution.
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    \7\ 15 U.S.C. 78a.
    \8\ 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: (i) Does not 
significantly affect the protection of investors or the public 
interest; (ii) does not impose any significant burden on competition; 
and (iii) by its terms, does not become operative for 30 days from the 
date on which it was filed, or such shorter time as the Commission may 
designate, if consistent with the protection of investors and the 
public interest, it has become effective pursuant to Section 
19(b)(3)(A) of the Act \9\ and Rule 19b-4(f)(6) thereunder.\10\
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    \9\ 15 U.S.C. 78s(b)(3)(A).
    \10\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii) 
requires the self-regulatory organization to submit to the 
Commission written notice of its intent to file the proposed rule 
change, along with a brief description and text of the proposed rule 
change, at least five business days prior to the date of filing of 
the proposed rule change, or such shorter time as designated by the 
Commission. The Exchange has satisfied this requirement.
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    A proposed rule change filed under Rule 19b-4(f)(6) \11\ normally 
does not become operative prior to 30 days after the date of the 
filing. However, pursuant to Rule 19b-4(f)(6)(iii),\12\ the Commission 
may designate a shorter time if such action is consistent with the 
protection of investors and the public interest. The Exchange has asked 
the Commission to waive the 30-day operative delay so that the proposal 
may become operative immediately upon filing.
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    \11\ 17 CFR 240.19b-4(f)(6).
    \12\ 17 CFR 240.19b-4(f)(6)(iii).
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    The Exchange has requested that the Commission waive the 30-day 
operative delay in order to permit the Exchange to immediately 
implement modifications to its systems to require certain DMM interest 
to yield to other interest on the Display Book during slow trading 
conditions, as discussed in full above, which should increase the 
quality of executions on the Exchange, including public customer 
orders. The Commission believes such waiver is consistent with the 
protection of investors and the public interest.\13\ Accordingly, the 
Commission designates the proposed rule change operative upon filing 
with the Commission.
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    \13\ For purposes only of waiving the 30-day operative delay of 
this proposal, the Commission has considered the proposed rule's 
impact on efficiency, competition, and capital formation. See 15 
U.S.C. 78c(f).
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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.

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 rule-comments@sec.gov. Please include 
File Number SR-NYSE-2009-69 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-2009-69. 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-2009-69 and should be submitted on or before August 7, 2009.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\14\
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    \14\ 17 CFR 200.30-3(a)(12).
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Elizabeth M. Murphy,
Secretary.
[FR Doc. E9-17013 Filed 7-16-09; 8:45 am]

BILLING CODE 8010-01-P
