
[Federal Register: July 28, 2009 (Volume 74, Number 143)]
[Notices]               
[Page 37281-37285]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28jy09-88]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-60356; File No. SR-NYSE-2009-08]

 
Self-Regulatory Organizations; New York Stock Exchange LLC; Order 
Approving Proposed Rule Change Rescinding NYSE Rule 110 Which 
Establishes the Role of Competitive Traders and Exchange Rule 107A 
Which Establishes the Role of the Registered Competitive Market Makers

July 21, 2009.

I. Introduction

    On April 6, 2009, the New York Stock Exchange LLC (``NYSE'' or the 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission''), pursuant to Section 19(b)(1) of the Securities 
Exchange Act of 1934 (the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ a 
proposed rule change to rescind NYSE Rule 110, which establishes the 
role of Competitive Traders (``CTs''), and Exchange Rule

[[Page 37282]]

107A, which establishes the role of the Registered Competitive Market 
Makers (``RCMMs'').\3\ The proposed rule change was published for 
comment in the Federal Register on April 16, 2009.\4\ The Commission 
received two comment letters on the proposal.\5\ On July 10, 2009 the 
Exchange filed a comment response letter.\6\ This order approves the 
proposed rule change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ The Exchange also proposes to make conforming amendments to 
NYSE Rules 36, 98, 123, 111, 476A, 800, 900 and 1600 to eliminate 
references to RCMMs and CTs.
    \4\ See Securities Exchange Act Release No. 59746 (April 10, 
2009), 74 FR 17702 (the ``Notice'').
    \5\ See letter from Robert Baxter and Charles Bocklet, Partners, 
Green Mountain Trading LLC (``GMT'') to Elizabeth M. Murphy, 
Secretary, Commission (``Elizabeth Murphy'') (``GMT Comment 
Letter''). See also e-mail from Chris Forbes to Elizabeth Murphy, 
dated July 9, 2009 (``Forbes E-mail'').
    \6\ See letter from Pia K. Thompson, Assistant Secretary, New 
York Stock Exchange LLC to Elizabeth Murphy, dated July 10, 2009 
(``NYSE Response Letter'').
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II. Description of the Proposal

    Currently, NYSE Rule 107A governs the registration and obligations 
of RCMMs. Similarly, NYSE Rule 110 governs the registration and 
obligations of CTs. CTs and RCMMs were first established by the 
Exchange in 1964 and 1978, respectively, as classes of floor traders 
that could commit capital to trade in a manner that provides additional 
liquidity, contribute to mitigating price fluctuations, and enhance 
competition.\7\ In 1981, the Commission adopted Rule 11a1-5, which 
provides that:
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    \7\ For a detailed discussion on the background and functions of 
RCMMs and CTs, see Notice, supra note 4.

    Any transaction by a New York Stock Exchange registered 
competitive market maker * * * effected in compliance with [NYSE's] 
governing rules shall be deemed to be of a kind which is consistent 
with the purposes of section 11(a)(1) of the Act, the protection of 
investors, and the maintenance of fair and orderly markets.\8\
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    \8\ 17 CFR 240.11a1-5. See Securities Exchange Act Release No. 
17569 (February 24, 1981), 46 FR 14888 (March 3, 1981). Section 
11(a)(1) of the Act prohibits a member of a national securities 
exchange from effecting transactions on that exchange for its own 
account, the account of an associated person, or an account over 
which it or its associated person exercises discretion unless an 
exception applies. 15 U.S.C. 78k(a).

    Included among RCMM's affirmative obligations under Section B of 
Rule 107A are requirements for a RCMM to: (i) Make a bid or offer in a 
stock that contributes to the maintenance of a fair and orderly market 
in such stock whenever called upon by certain parties, and (ii) effect 
all purchases and sales for the RCMM's proprietary account in a manner 
that contributes to the maintenance of price continuity with reasonable 
depth and minimizes the effects of a temporary disparity between supply 
and demand. In addition, NYSE Rule 107A requires a RCMM to avoid 
participation as a dealer during the opening of the stock in a manner 
that would disrupt the public balance of supply and demand, subject to 
certain exceptions. Further, a RCMM may not effect transactions for its 
own account or the account of its member organization that are not a 
part of a course of dealings reasonably calculated to contribute to the 
maintenance of price continuity with reasonable depth and to the 
minimizing of the effects of any temporary disparity between supply and 
demand. NYSE Rule 107A.10 describes the conditions under which a RCMM 
must be ready to enter the market if called upon by a Floor Official or 
Floor broker to narrow the quotation spread or add liquidity to the 
market.
    NYSE Rule 110 describes the obligations applicable to CTs. For 
example, members acting as CTs that desire to purchase or sell stock 
for accounts in which they have an interest are prohibited from 
congregating in a particular stock, and individually or as a group, 
intentionally or unintentionally, dominating the market in that stock. 
CTs are also subject to meeting certain stabilization tests which are 
computed on a monthly basis.
    The Exchange proposes to rescind NYSE Rule 110 and NYSE Rule 107A, 
eliminating CTs and RCMMs as recognized classes of floor traders on the 
Exchange.\9\ The Exchange notes that the volume and speed of the 
securities markets has increased dramatically since the inception of 
the CTs and RCMMs and that the majority of trades on the Exchange are 
now executed electronically. When the Exchange introduced its Hybrid 
Market,\10\ the Exchange determined that a review of the viability of 
RCMMs and CTs to trade in the more electronic trading environment was 
warranted and undertook to assess the contributions of RCMMs and CTs to 
the liquidity available to the NYSE. Thus, in October 2005, the 
Exchange implemented a moratorium on the qualification and registration 
of new CTs and RCMMs while the Exchange conducted a study on the future 
viability of CTs and RCMMs (``Moratorium'').\11\ The Moratorium was 
extended six times \12\ while the Exchange continued its evaluation of 
CT and RCMM trading.
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    \9\ The Exchange also proposes to make conforming amendments to 
NYSE Rules 36, 98, 476A, 111, 800, 900 and 1600 to eliminate 
references to RCMMs and CTs.
    \10\ See Securities Exchange Act Release No. 53539 (March 22, 
2006), 71 FR 16353 (March 31, 2006) (SR-NYSE-2004-05) (establishing 
the Hybrid Market).
    \11\ See Securities Exchange Act Release No. 52648 (October 21, 
2005), 70 FR 62155 (October 28, 2005) (SR-NYSE-2005-63).
    \12\ See Securities Exchange Act Release Nos. 54140 (July 13, 
2006), 71 FR 41491 (July 21, 2006) (SR-NYSE-2006-48); 54985 
(December 21, 2006), 72 FR 171 (January 3, 2007) (SR-NYSE-2006-113); 
55992 (June 29, 2007), 72 FR 37289 (July 9, 2007) (SR-NYSE-2007-57); 
56556 (September 27, 2007), 72 FR 56421 (October 3, 2007) (SR-NYSE-
2007-86); 57072 (December 31, 2007), 73 FR 1252 (January 7, 2008) 
(SR-NYSE-2007-125); and 57601 (April 2, 2008), 73 FR 19123 (April 8, 
2008) (SR-NYSE-2008-22). The Moratorium was also amended to grant 
RCMM firms the ability to replace a RCMM who relinquishes his or her 
registration and ceases to conduct business as a RCMM during the 
Moratorium with a newly qualified and registered RCMM. See 
Securities Exchange Act Release No. 53549 (March 24, 2006), 71 FR 
16388 (March 31, 2006) (SR-NYSE-2006-11).
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    In October 2008, the Commission approved the Exchange's new market 
model filing (``Next Generation NYSE'').\13\ In light of the 
implementation of the NYSE's new market model, the Exchange again 
extended the Moratorium several times to evaluate the viability of the 
RCMMs and CTs under its revised structure.\14\
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    \13\ See Securities Exchange Act Release No. 58845 (October 24, 
2008), 73 FR 64379 (October 29, 2008) (SR-NYSE-2008-46).
    \14\ See Securities Exchange Act Release Nos. 58033 (June 26, 
2008), 73 FR 38265 (July 3, 2008) (SR-NYSE-2008-49); 58713 (October 
2, 2008), 73 FR 59024 (October 8, 2008) (SR-NYSE-2008-96); and 59069 
(December 8, 2008), 73 FR 76081 (December 15, 2008) (SR-NYSE-2008-
124). The Exchange extended the Moratorium three additional times 
due to the filing of this current proposed rule change in order to 
maintain the Moratorium until the completion of the Rule 19b-4 rule 
filing process for this proposed rule change. See Securities 
Exchange Act Release Nos. 59551 (March 10, 2009), 74 FR 11624 (March 
18, 2009) (SR-NYSE-2009-24); 60062 (June 8, 2009), 74 FR 28297 (June 
15, 2009) (SR-NYSE-2009-53); and 60197 (June 30, 2009), 74 FR 32663 
(July 8, 2009) (SR-NYSE-2009-62).
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    The Exchange notes that, at the time the Moratorium was first 
imposed, there were 11 registered RCMMs and one registered, but 
inactive, CT. In December 2006, the largest RCMM firm ceased its RCMM 
business and left the floor, eliminating 6 RCMMs from the floor. This 
reduced the number of RCMMs operating on the Exchange to five.\15\ 
These remaining five RCMMs are associated with two member 
organizations.
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    \15\ Registration as an RCMM is applicable only to individual 
members, not member organizations. See NYSE Rule 107A(1). 
Accordingly, RCMM trading licenses are issued to individual members.
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    In its study of the CT and RCMM trading in the more electronic 
environment, the Exchange reviewed the trading data associated with the 
CT and RCMM order execution. The Exchange's review found that the CT 
class of floor trader had not executed

[[Page 37283]]

any transactions on the floor as a result of the non-usage of the CT 
license and therefore provided no contribution to the quality of the 
NYSE Market.
    The Exchange also states that, from May 2004 to December 2004, RCMM 
trading volume comprised only .018% of the total NYSE trading volume 
for that time period. In 2005, the year that the Moratorium was 
implemented, RCMM trading volume comprised only .017% of the total NYSE 
trading volume for the year. In 2006, the RCMM trading volume comprised 
.008% of the total NYSE trading volume for the year. After the largest 
RCMM firm ceased its business in December 2006, RCMM trading volume in 
2007 and 2008 comprised only .001% of the NYSE total trading volume for 
each of those years.
    The Exchange also represents that, from August 2005 through 
February 2008, RCMM monthly average trading volume for that time period 
never exceeded .021% of the Exchange's total trading volume for that 
time period. On average during this time period, RCMMs comprised only 
.006% of the NYSE's trading volume. The Exchange asserts that review of 
the trading volume prior to and during the Moratorium indicates that 
RCMM/CT trading volume was minimally affected by the Moratorium.
    The Exchange further states that, for the time period from July 
2008 to December 2008, RCMM and CT average trading volume did not 
exceed .0011% of the Exchange's total trading volume per month for that 
time period. On average over these six months, RCMMs comprised only 
.001% of the NYSE's trading volume. The Exchange's review also found 
that the CT class of floor trader still had not executed any 
transactions on the floor as a result of the non-usage of the CT 
license and therefore provided no contribution to the market quality on 
the NYSE. The Exchange reports that RCMM trading in 2009 (as of the 
date the Exchange filed this proposed rule change) comprised 
approximately .001% of the total NYSE trading volume.
    In light of these statistics, the Exchange concluded that the level 
of participation of the RCMMs and CTs no longer serve as viable 
supplemental market makers because they no longer contribute 
significantly to the overall liquidity available on the NYSE.
    In addition to reviewing the trading statistics of the RCMMs and 
the sole, inactive CT, NYSE Market and NYSE Regulation reviewed the 
technology, operational and regulatory costs required to adequately 
support and surveil RCMM and CT trading activity in a predominantly 
electronic trading environment. Following such review, the Exchange 
concluded that the development of technology specifically designed to 
comport with the RCMM and CT trading rules in the context of Next 
Generation NYSE would not be cost effective in view of the minimal 
current trading volume of the five RCMMs and the nonexistent trading 
volume of the one registered CT.
    Moreover, NYSE notes that it has developed a new class of 
electronic liquidity providers, Supplemental Liquidity Providers 
(``SLPs'') \16\ that, the Exchange contends, has largely supplanted the 
role once filled by RCMMs and CTs. SLPs are off-floor entities that 
quote and trade on the NYSE electronically. The operation of SLPs is 
intended to provide incentives for quoting and to add competition to 
the existing group of floor-based liquidity providers, the designated 
market makers (``DMMs'').\17\
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    \16\ See Securities Exchange Act Release No. 58877 (October 29, 
2008), 73 FR 65904 (November 5, 2008) (SR-NYSE-2008-108). See also 
NYSE Rule 107B.
    \17\ A SLP is required to quote at the National Best Bid 
(``NBB'') or the National Best Offer (``NBO'') at least 5% of the 
trading day for each assigned security in round lots to maintain its 
status as an SLP. If a SLP posts liquidity in its assigned 
securities that results in an execution, the Exchange will pay the 
SLP a financial rebate per share for such executions provided that 
the SLP meets its monthly quoting requirement for rebates averaging 
3% at the NBB or NBO in its assigned securities in round lots.
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III. Summary of Comments \18\ 
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    \18\ In addition to the GMT Comment Letter, the Commission also 
received the Forbes E-mail from Chris Forbes, who identified himself 
as a RCMM on the floor of the NYSE. See supra note 5. Mr. Forbes 
expressed his belief that RCMMs can provide a vital service on the 
NYSE. Mr. Forbes did not provide any further substantive arguments 
against the NYSE's proposal to eliminate CTs and RCMMs as classes of 
floor traders.
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    In its comment letter, GMT objects to the Exchange's elimination of 
CTs and RCMMs as classes of floor traders on the NYSE for several 
reasons. First, GMT argues that the Exchange's assertion that CTs and 
RCMMs provide only limited liquidity to the Exchange as compared to the 
overall trading volume on the NYSE is invalid because the Exchange 
itself imposed a limitation on the growth of the RCMM community by 
placing the Moratorium on the registration of new RCMMs.\19\ As such, 
the GMT Comment Letter speculates that, had the Exchange permitted the 
registration of additional RCMMs, the group's trading volume would have 
been much greater, and contended that over 100 NYSE members desired to 
become RCMMs.
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    \19\ See GMT Comment Letter, supra note 5.
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    In addition, GMT questions the reliability of the Exchange's data 
on RCMM trading because it ``only accounts for trading done through 
hand-held systems or `paper' trading on the floor.'' \20\ GMT asserts 
that, had the Exchange included volume traded away from the floor via 
the DOT system in its review, the trading data would have been 
``dramatically larger,'' particularly if NYSE had not placed the 
Moratorium on RCMMs and if the number of RCMMs had numbered ``500 or 
1000.''
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    \20\ Id.
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    Finally, GMT argues that RCMMs should be maintained as an 
additional source of liquidity on the floor, in addition to the 
liquidity supplied from DMMs and from off the floor by SLPs, and 
advocates for a trial period during which RCMMs could receive rebate 
incentives and upgraded handheld technology, among other things, to 
determine whether RCMMs could benefit the Exchange's market.\21\
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    \21\ Id.
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    In the NYSE Response Letter, the Exchange notes that the RCMM 
community has never been large.\22\ Specifically, the Exchange states 
that there were only eleven registered RCMMs at the time the Moratorium 
was imposed and, since the year 2000, the number of registered RCMMs 
has never exceeded thirteen.\23\ Further, the Exchange notes that, in 
the filing, it had included volume data for a period preceding the 
imposition of the Moratorium and, as indicated, that volume was small 
in comparison to overall trading volume on the Exchange. In addition, 
the Exchange responded that the elimination of the RCMM and CT 
categories would not revoke the Exchange memberships of these 
individuals.\24\ If they retain their memberships, the Exchange notes 
that they would be able to trade from off the floor through the 
Exchange's electronic systems, without the obligations currently 
applicable to RCMMs trading on the Exchange. Moreover, the Exchange 
states that the current RCMMs would be able to seek to become Floor 
brokers or DMMs if they wish to continue to trade on the floor of the 
Exchange.\25\ Thus, the Exchange contends that the elimination of RCMMs 
and CTs would not prevent these individuals from trading and adding 
liquidity to the Exchange.
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    \22\ See NYSE Response Letter, supra note 6.
    \23\ Id.
    \24\ Id.
    \25\ Id.
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    Finally, the Exchange states that it has consulted with the RCMM 
community over a period of years to determine whether to continue the 
RCMM trading category.\26\ However, the Exchange has

[[Page 37284]]

concluded that it is not cost effective to devote resources to the 
facilitation and regulation of RCMM or CT trading in view of the 
limited liquidity provided by these floor traders.\27\
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    \26\ Id.
    \27\ Id.
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IV. Discussion and Commission Findings

    After careful review, the Commission finds that the proposed rule 
change is consistent with the requirements of the Act and the rules and 
regulations thereunder applicable to a national securities 
exchange.\28\ In particular, the Commission finds that the proposal is 
consistent with Section 6(b)(5) of the Act,\29\ which requires that an 
exchange have rules 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.
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    \28\ In approving this proposed rule change, the Commission 
notes that it has considered the proposed rule's impact on 
efficiency, competition, and capital formation. 15 U.S.C. 78c(f).
    \29\ 15 U.S.C. 78f(b)(5).
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    The Commission believes that it is reasonable and consistent with 
the Act for the Exchange to eliminate RCMMs and CTs as classes of floor 
traders on the Exchange. The Commission notes that the Exchange 
analyzed this issue over a three-year period to review the 
contributions of RCMMs and CTs to the liquidity of the Exchange in 
light of its more electronic trading environment. As detailed above, 
the Exchange's data demonstrated that the trading of RCMMs and CTs on 
the Exchange amounted to a negligible portion of the overall trading 
volume of the Exchange. For example, according to NYSE, from August 
2005 through February 2008, RCMM monthly average trading volume for 
that time period never exceeded .021% of the Exchange's total trading 
volume and, on average, RCMMs comprised only .006% of the NYSE's 
trading volume. In addition, NYSE represents that, during the time 
period reviewed, there was no trading on the Exchange by CTs.
    The GMT Comment Letter takes issue with the Exchange's RCMM trading 
data, stating that the low RCMM trading volume figures were the result 
of the Exchange imposing the Moratorium and thereby restricting the 
size of the RCMM community. However, as the NYSE Response Letter notes, 
the GMT Comment Letter fails to address the fact that NYSE did review 
and provide data for a period of time prior to the Moratorium. 
Specifically, the Notice stated that from May 2004 to December 2004, 
before the Moratorium was imposed, RCMM trading volume comprised only 
.018% of the total trading volume on the Exchange and that in 2005, the 
year that the Moratorium was implemented (in October 2005), RCMM 
trading volume comprised only .017% of the total NYSE trading volume 
for the year. Thus, it appears that RCMM trading volume was quite 
limited in comparison to the overall trading volume of the Exchange, 
even before the Exchange imposed the Moratorium. In addition, the NYSE 
Response Letter represents that, even before the implementation of the 
Moratorium, the RCMM community has always been relatively small, with a 
maximum of only 13 individuals registered as RCMMs since the year 2000.
    The GMT Comment Letter also criticizes the RCMM trading data 
because it fails to take into account trading done on the DOT System. 
However, the Commission notes that GMT itself concedes that adding the 
DOT trading data for the five active RCMMs would not have made a 
significant difference in the figures.
    In light of the above, the Commission believes that the Exchange's 
conclusion that RCMMs and CTs no longer serve as viable supplemental 
market makers and no longer contribute significantly to the overall 
liquidity available on the NYSE is reasonable.
    Further, the Commission notes that the Exchange also considered the 
technological, operational and regulatory costs required to adequately 
support and surveil RCMM and CT trading activity. According to the 
Exchange, the rules and functions of RCMMs and CTs were developed when 
NYSE was a manual trading center and are not well-suited for the 
electronic, high speed trading environment found on the Exchange 
today.\30\ The Commission notes that the Exchange concluded that it 
would not be cost effective to develop technology specifically designed 
to comport with the RCMM and CT trading rules in the context of Next 
Generation NYSE in view of the minimal current trading volume of the 
five RCMMs and the nonexistent trading volume of the one registered CT. 
Instead, the Exchange argues that SLPs ``largely supplanted'' the role 
that the RCMMs and CTs once filled on the Exchange.
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    \30\ See Notice, supra note 4.
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    Though the GMT Comment Letter argues that more floor traders mean 
more liquidity and efficient price discovery and thus the Exchange 
should retain RCMMs and CTs as classes of floor traders,\31\ the 
Commission agrees with NYSE that there are a number of other types of 
market participants to provide liquidity, competition, and price 
discovery, even after the elimination of the CTs and RCMMs. Along with 
SLPs who quote and trade electronically from off the floor, DMMs and 
Floor brokers will still provide liquidity and competition on the floor 
of the Exchange. Importantly, as NYSE noted in its Response Letter, the 
Exchange is not rescinding RCMM and CT traders' membership to the 
Exchange.\32\ Members currently operating as RCMMs and CTs may choose 
to continue to trade and provide liquidity to the Exchange either by 
trading from off of the floor through the Exchange's electronic systems 
or by trading as a different class of trader, such as Floor brokers or 
DMMs, assuming they are willing and able to meet the requirements 
applicable to such classes of traders.
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    \31\ See GMT Comment Letter, supra note 5.
    \32\ See Notice, supra note 4.
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    The GMT Comment Letter also argues that the rule change should be 
delayed to allow for additional input and testing, and to implement a 
one-year trial period.\33\ However, according to NYSE, the continuation 
of RCMM and CT trading would require trading system enhancements, the 
cost of continued development of surveillance technology and 
procedures, and staff training and hours spent in these efforts. 
Moreover, as noted in the NYSE Response Letter, the Exchange has 
consulted with RCMM firms over several years regarding whether this 
class of traders should be continued. The Commission also notes that 
the Exchange has already extended the Moratorium a number of times over 
a period of more than three years. Thus, the Commission finds NYSE's 
proposal to be reasonable in balancing the costs of maintaining RCMMs 
and CTs as classes of trades on the Exchange against the benefits that 
they provide to the Exchange.
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    \33\ Id.
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    Finally, the Commission recognizes that the Exchange operates in a 
competitive marketplace and believes that the Exchange should have the 
ability to structure its rules to accommodate the implementation of its 
own business model, provided that such rules comply with the Act and 
the rules promulgated thereunder. Given the considerations noted 
above--the limited trading volume of RCMMs and CTs, the high costs of 
maintaining and surveiling these classes of floor traders, the 
existence of other market participants to provide liquidity and 
competition, as

[[Page 37285]]

well as the fact that those currently trading as RCMMs or CTs may 
choose to continue trading in another role as members of the Exchange--
the Commission believes that the Exchange's decision to eliminate RCMMs 
and CTs from the Exchange is reasonable and within the business 
judgment of the Exchange, and is consistent with the Act.

IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\34\ that the proposed rule change (SR-NYSE-2009-08) be, and hereby 
is, approved.
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    \34\ 15 U.S.C. 78s(b)(2).
    \35\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\35\
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-17879 Filed 7-27-09; 8:45 am]

BILLING CODE 8010-01-P
