
[Federal Register: September 27, 2010 (Volume 75, Number 186)]
[Notices]               
[Page 59301-59303]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27se10-139]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-62964; File No. SR-NYSE-2010-53]

 
Self-Regulatory Organizations; Notice of Filing and Immediate 
Effectiveness of Proposed Rule Change by New York Stock Exchange LLC 
Amending NYSE Rule 36

September 21, 2010.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(the ``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given 
that on September 14, 2010, the 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 Exchange. The 
Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend NYSE Rule 36 (``Communications 
Between Exchange and Members' Offices'') to incorporate the provisions 
of its current Wireless Policy. 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 the 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    NYSE proposes to amend NYSE Rule 36 (``Communications Between 
Exchange and Members' Offices'') to incorporate the provisions of its 
current Wireless Policy into Supplementary Material .70 of the Rule.\3\ 
The Wireless Policy was previously approved by the Commission.\4\
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    \3\ The Exchange notes that parallel changes are proposed to the 
rules of its affiliate, NYSE Amex LLC. See SR-NYSEAmex-2010-71.
    \4\ See Securities Exchange Act Release No. 36156 (August 25, 
1995), 60 FR 45756 (September 1, 1995) (SR-NYSE-95-22). The Wireless 
Policy was attached as an exhibit to the proposed rule change that 
most recently amended the Wireless Policy. See Securities Exchange 
Act Release No. 59626 (March 25, 2009), 74 FR 14831 (April 1, 2009) 
(SR-NYSE-2009-33).
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Background

    Current NYSE rules permit a Floor broker to communicate information 
to a customer using a wired telephone line,\5\ NYSE approved portable 
telephones,\6\ or through a written electronic communication from the 
Floor brokers' hand-held device as permitted by the NYSE's ``Wireless 
Data Communications Initiatives.'' Wireless communications

[[Page 59302]]

can be sent and received directly to and from a Floor broker's hand-
held device and orders entered from off the Floor may be transmitted 
directly to a hand-held device, bypassing the booth. Floor brokers may 
send order-related messages and information (e.g., cancellations and 
administrative messages, as well as market probes and market looks) 
back to the customer directly through the hand-held device.
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    \5\ NYSE Rule 36.20.
    \6\ NYSE Rule 36.21.
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    Pursuant to the Exchange's Wireless Policy, a record must be 
established and maintained for transmissions that are sent: (1) From a 
member's off-Floor location to a booth terminal and then retransmitted 
from the booth terminal to a member's hand-held device; or (2) directly 
to the hand-held device, bypassing the booth. Orders sent from off-
Floor to the booth or the hand-held device are first sent through a 
secured network and routed to an Exchange-wired database that captures 
and records the orders. Likewise, order-related messages or information 
generated from the Floor broker's booth or hand-held device are 
transmitted back to the Exchange-wired databases via the secured 
wireless network, where the information is captured and recorded, and 
then sent off-Floor to the customer via the Exchange's secured network. 
The Exchange records all of the information sent to and transmitted 
from the hand-held devices.
Proposed Amendments to NYSE Rule 36
    The Exchange proposes to revise NYSE Rule 36 to incorporate the 
provisions of its Wireless Policy, previously approved by the 
Commission, in Supplementary Material .70 of the Rule. In addition, the 
Exchange is making certain clarifying changes as part of the 
incorporation of the Wireless Policy into the Rule.
    First, the Exchange proposes to clarify the language in 
Supplementary Material .70 and the Wireless Policy by using consistent 
terminology when referring to the hand-held devices in the proposed 
rule change. Thus, for example, references in paragraph (a) of the 
current Supplementary Material to ``wireless trading devices'' would be 
changed to ``wireless hand-held devices.'' The use of consistent 
terminology would make clear that the Exchange is referencing the same 
type of device in both paragraphs of the proposed rule.
    Second, the Exchange is clarifying that Floor brokers may send 
order-related messages outside their member organizations only to 
customers. In this regard, the Exchange is clarifying the rule text to 
provide that order-related messages and information include market 
looks. The Exchange also notes that a customer must be specifically 
enabled by the Floor broker to receive communications from the Floor 
broker's hand-held device.
    For purposes of this proposed rule change, the term ``customer'' 
means a person who the Floor broker reasonably believes is receiving 
the order-related message(s) in consideration of a securities 
transaction or potential securities transaction with the Floor broker. 
Whether such a belief is reasonable is based on the relevant facts and 
circumstances including, without limitation: whether the customer is a 
bona fide market participant; any prior history of the customer 
entering orders with the Floor broker for execution on the Exchange; 
and acknowledgement by the customer (including by negative consent) 
that the customer is receiving order-related messages in consideration 
of a securities transaction or potential securities transaction with 
the Floor broker. A Floor broker may provide order-related messages to 
a customer pursuant to proposed Supplementary Material .70 
notwithstanding the fact that the customer's receipt of particular 
messages does not lead to an order with the Floor broker.
    Third, the Exchange is clarifying that the Wireless Policy does not 
allow Floor brokers to retransmit datafeeds received on hand-held 
devices or send orders to another hand-held device.\7\
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    \7\ However, Floor brokers are permitted to provide their 
customers with specific data points from datafeeds made available on 
the hand-held devices.
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    Fourth, the Exchange is clarifying that Floor brokers may send 
trade reports on their hand-held devices.
    Finally, the Exchange is clarifying that the Wireless Policy 
applies not only to member organizations but also to employees of 
member organizations.
    As proposed, Supplementary Material .70 is substantially similar to 
the Exchange's Wireless Policy as previously filed with and approved by 
the Commission.
2. Statutory Basis
    The basis under the Act for this proposed rule change 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 instant proposal is in keeping 
with these principles because the incorporation of the Wireless Policy 
in the Exchange's rules promotes transparency and makes clear what type 
of information may be communicated to and from hand-held devices.
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    \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 does not: (i) 
Significantly affect the protection of investors or the public 
interest; (ii) impose any significant burden on competition; and (iii) 
become operative for 30 days from the date on which it was filed, or 
such shorter time as the Commission may designate, 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) 
requires a self-regulatory organization to give the Commission 
written notice of its intent to file 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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    A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the 
Act \11\ normally does not become operative for 30 days after the date 
of its filing. However, Rule 19b-4(f)(6) \12\ permits the Commission to 
designate a shorter time if such action is consistent with the 
protection of investors and the public interest. NYSE requests that the 
Commission waive the 30-day operative delay so that the proposal may 
become operative immediately upon filing. The Commission notes that the 
proposed rule change codifies into rule text an existing policy and 
provides certain other clarifications. For this reason, the Commission 
believes that waiving the 30-day operative delay \13\ is consistent 
with the protection of investors and the public interest. Therefore, 
the

[[Page 59303]]

Commission designates the proposal operative upon filing.
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    \11\ 17 CFR 240.19b-4(f)(6).
    \12\ 17 CFR 240.19b-4(f)(6).
    \13\ For purposes only of waiving the 30-day operative delay, 
the Commission has considered the proposed rule's impact on 
efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
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    At any time within the 60-day period beginning on the date of the 
filing of the proposed rule change, the Commission summarily may 
temporarily suspend 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-2010-53 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-2010-53. 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,\14\ all subsequent 
amendments, all written statements with respect to the proposed rule 
change that are filed with the Commission, and all written 
communications relating to the proposed rule change between the 
Commission and any person, other than those that may be withheld from 
the public in accordance with the provisions of 5 U.S.C. 552, will be 
available for Web site viewing and printing in the Commission's Public 
Reference Room, on official business days between the hours of 10 a.m. 
and 3 p.m. Copies of the filing also will be available for inspection 
and copying at the principal office of the Exchange. All comments 
received will be posted without change; the Commission does not edit 
personal identifying information from submissions. You should submit 
only information that you wish to make available publicly. All 
submissions should refer to File Number SR-NYSE-2010-53 and should be 
submitted on or before October 18, 2010.
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    \14\ The text of the proposed rule change is available on the 
Commission's Web site at http://www.sec.gov/rules/sro.shtml.
    \15\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\15\
Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-24176 Filed 9-24-10; 8:45 am]
BILLING CODE 8010-01-P

