Federal Register / Vol. 74, No. 19 / Friday, January 30, 2009 / Notices 5709 

6 15 U.S.C. 78s(b)(3)(A). 

7 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. 

8 17 CFR 240.19b–4(f)(6). 

9 17 CFR 240.19b–4(f)(6). 

10For 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). 11 17 CFR 200.30–3(a)(12). 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

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 6 and Rule 19b– 

4(f)(6) thereunder.7

A proposed rule change filed 

pursuant to Rule 19b–4(f)(6) under the 

Act 8 normally does not become 

operative for 30 days after the date of its 

filing. However, Rule 19b–4(f)(6) 9

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. The Commission believes that 

waiving the 30-day operative delay 10 is 

consistent with the protection of 

investors and the public interest 

because such waiver will allow the 

Exchange to immediately provide 

additional information to investors at no 

cost. Therefore, the Commission 

designates the proposal operative upon 

filing. 

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 rulecomments@sec.gov. Please include File 

Number SR–NYSE–2009–05 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–2009–05. 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, 100 F Street, NE., Washington, 

DC 20549, 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 publicly available. All 

submissions should refer to File 

Number SR–NYSE–2009–05 and should 

be submitted on or before February 20, 

2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.11

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–1981 Filed 1–29–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59299; File No. SR–NYSE– 

2009–06] 

Self-Regulatory Organizations; Notice 

of Filing and Immediate Effectiveness 

of Proposed Rule Change by New York 

Stock Exchange LLC To Temporarily 

Lower Its Average Global Market 

Capitalization Continued Listing 

Standard 

January 27, 2009. 

Pursuant to Section 19(b)(1) of the 

Securities Exchange Act of 1934 

(‘‘Exchange Act’’),1 and Rule 19b–4 

thereunder,2 notice is hereby given that 

on January 22, 2009, New York Stock 

Exchange, LLC (the ‘‘NYSE’’ or the 

‘‘Exchange’’) filed with the Securities 

and Exchange Commission 

(‘‘Commission’’) the proposed rule 

change as described in Items I and II 

below, which Items have been prepared 

by the Exchange. The Commission is 

publishing this notice to solicit 

comments on the proposed rule change 

from interested persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange proposes to lower 

temporarily from $25 million to $15 

million the average market 

capitalization required of listed 

companies under Section 802.01B of the 

Exchange’s Listed Company Manual 

(the ‘‘Manual’’). This temporary 

reduction will apply through April 22, 

2009. The text of the proposed rule 

change is available on the Exchange’s 

Web site (http://www.nyse.com), at the 

Exchange’s Office of the Secretary and 

at the Commission’s Public Reference 

room. 

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, the 

self-regulatory organization included 

statements concerning the purpose of 

and basis for the proposed rule change 

and discussed any comments it received 

on the proposed rule change. The text 

of these statements may be examined at 

the places specified in Item IV below. 

The NYSE has prepared summaries, set 

forth in Sections A, B and C below, of 

the most significant aspects of such 

statements. 

mstockstill on PROD1PC66 with NOTICES

5710 Federal Register / Vol. 74, No. 19 / Friday, January 30, 2009 / Notices 

3Any company whose consecutive 30 trading-day 

average global market capitalization has fallen 

below $15 million prior to the date of submission 

of this filing will continue to be subject to delisting. 

Any company whose 30 consecutive trading-day 

average global market capitalization falls below $15 

million at any time after the submission of this 

filing will be subject to delisting, including if that 

30 trading-day period includes trading days prior to 

the submission of this filing. For example, a 

company whose 30 consecutive trading-day average 

global market capitalization falls below $15 million 

10 days after submission of this filing (so that a 

portion of that 30 trading-day period preceded and 

a portion of the period followed submission of this 

filing) will be subject to delisting. 

4Section 804 of the Manual provides that a 

request for review of a delisting determination will 

ordinarily stay the suspension of the subject 

security pending the review, but the Exchange staff 

may immediately suspend from trading any security 

pending review should it determine that such 

immediate suspension is necessary or appropriate 

in the public interest, for the protection of 

investors, or to promote just and equitable 

principles of trade. The lowered $15 million 

standard will be applied to any company for which 

the Exchange has not yet announced a suspension 

of trading pending delisting by the date of this 

filing, including any company whose suspension 

under the $25 million standard had been stayed 

pending appeal which is trading on the Exchange 

pending the outcome of the appeal process. Such 

companies will benefit from the lowered standard, 

assuming they are and remain above the requisite 

$15 million average market cap. If the sole basis for 

delisting in such a case is the company’s 

noncompliance with the $25 million market 

capitalization requirement, NYSE Regulation will 

inform the company in writing that it is 

withdrawing its delisting determination and that 

the company’s appeal is now moot. As noted above, 

any such company remains subject to suspension 

and delisting under the Exchange’s other continued 

listing standards. 

5See, e.g., Securities Exchange Act Release No. 

58588 (September 18, 2008), 73 FR 55174 

(September 24, 2008) (‘‘The Commission is aware 

of the continued potential of sudden and excessive 

fluctuations of securities prices and disruption in 

the functioning of the securities markets that could 

threaten fair and orderly markets. Given the 

importance of confidence in our financial markets 

as a whole, we have also become concerned about 

sudden and unexplained declines in the prices of 

securities. Such price declines can give rise to 

questions about the underlying financial condition 

of an issuer, which in turn can create a crisis of 

confidence without a fundamental underlying basis. 

This crisis of confidence can impair the liquidity 

and ultimate viability of an issuer, with potentially 

broad market consequences.’’). 

6See Securities Exchange Act Release No. 49154 

(January 29, 2004), 69 FR 5633 (February 5, 2004) 

(SR–NYSE–2003–43). 

7 15 U.S.C. 78f(b). 

8 15 U.S.C. 78f(b)(5). 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

Section 802.01B of the Manual 

provides that the Exchange will 

promptly delist any company (including 

limited partnerships and real estate 

investment trusts (‘‘REITs’’)) if it is 

determined that the company has an 

average global market capitalization 

over a consecutive 30 trading-day 

period of less than $25 million, 

regardless of the original listing 

standard under which it listed. A 

company is not eligible to utilize the 

cure procedures set forth in Sections 

802.02 and 802.03 with respect to this 

criterion and instead is immediately 

subject to the Exchange’s delisting 

procedures set forth in Section 804 of 

the Manual. Through April 22, 2009, 

this provision will apply only to 

companies (including limited 

partnerships and REITs) whose average 

global market capitalization over a 

consecutive 30 trading-day period falls 

below $15 million.3 Companies that fall 

below the $25 million market 

capitalization requirement but not 

below the $15 million level will benefit 

from this modified requirement to the 

extent that they are not otherwise 

subject to suspension under the 

Exchange’s other continued listing 

criteria.4 All of the Exchange’s other 

continued listing criteria will continue 

to apply during this period and 

companies that meet the modified 

average global market capitalization 

requirement during this period may be 

deemed to be below compliance or 

delisted for falling below other 

quantitative standards or pursuant to 

the ‘‘Other Criteria’’ set forth in Section 

802.01D. 

In the past several months, the U.S. 

and global equities markets have 

experienced extreme volatility and a 

precipitous decline in trading prices of 

many securities. The Commission has 

acknowledged in several recent 

emergency Orders that these unusual 

market conditions threaten the fair and 

orderly functioning of the securities 

markets and can lead to a crisis of 

confidence among investors regarding 

the viability of companies whose stock 

prices have declined significantly.5 As a 

consequence of this market crisis, the 

number of companies listed on the 

Exchange whose average global market 

capitalization has fallen below $25 

million over a 30 trading-day period has 

been significantly higher than the 

historical norm. The Exchange believes 

that, in many cases, these companies 

have experienced precipitous stock 

price declines not due to companyspecific issues, but because of the 

general decline in investor confidence 

and other unusual circumstances 

affecting the broad market. 

Consequently, the Exchange believes 

that many of these companies may 

remain suitable for continued listing 

and that their market capitalizations 

may well return to prior levels once the 

current market turbulence passes. 

The Exchange believes that 

temporarily lowering the 30 trading-day 

average global market capitalization 

requirement from $25 million to $15 

million will facilitate the retention, 

during this period of market turbulence, 

of companies whose size and quality 

makes them suitable for continued 

listing on the NYSE. The proposed 

modified requirement will enable these 

companies to remain listed in the 

current difficult market conditions with 

the prospect of a future recovery in their 

stock prices enabling them to comply 

with the $25 million market 

capitalization requirement upon its 

reinstatement. The Exchange has chosen 

to temporarily lower this listing 

standard rather than to impose a 

complete moratorium on application of 

the standard, because it continues to 

believe that, even at this time, 

companies whose market capitalization 

deteriorates to a level below $15 million 

are not suitable for continued listing on 

the Exchange. 

The Exchange notes that it adopted its 

$25 million average global market 

capitalization requirement as recently as 

2004—at a time when stock prices and 

the overall market were far higher than 

they are currently—and that the 

requirement prior to that date was $15 

million.6 Consequently, the Exchange 

has recent experience with the 

continued listing of companies whose 

average global market capitalization 

exceeds $15 million but is lower than 

$25 million, and is comfortable allowing 

these companies to continue to be listed 

on the Exchange for a temporary period. 

The Exchange notes that, unlike with 

the Exchange’s other quantitative listing 

standards, Section 802.01B does not 

provide companies with any period of 

time to take steps to attempt to regain 

compliance with the standard. The 

Exchange believes that temporarily 

lowering the level at which a company’s 

average global market capitalization 

subjects it to automatic delisting is 

appropriate in light of the extreme 

volatility in companies’ stock prices in 

the current market and the absence of 

any cure provisions in the rule. 

2. Statutory Basis 

The Exchange believes that the 

proposed rule change is consistent with 

Section 6(b) 7 of the Exchange Act, in 

general, and furthers the objectives of 

Section 6(b)(5) of the Exchange Act 8 in 

particular in that it is designed to 

promote just and equitable principles of 

trade, to foster cooperation and 

coordination with persons engaged in 

regulating, clearing, settling, processing 

mstockstill on PROD1PC66 with NOTICES

Federal Register / Vol. 74, No. 19 / Friday, January 30, 2009 / Notices 5711 

9 15 U.S.C. 78s(b)(3)(A). 

10 17 CFR 240.19b–4(f)(6). Pursuant to Rule 19b– 

4(f)(6)(iii) under the Act, the Exchange is required 

to give the Commission written notice of its intent 

to file the proposed rule change, along with a brief 

description and text of the proposed rule change, 

at least five business days prior to the date of filing 

of the proposed rule change, or such shorter time 

as designated by the Commission. The Exchange 

has satisfied this requirement. 

11 17 CFR 240.19b–4(f)(6). 

12 17 CFR 240.19b–4(f)(6)(iii). 

13For purposes only of waiving the 30-day 

operative delay, the Commission has considered the 

proposed rule’s impact on efficiency, competition, 

and capital formation. 15 U.S.C. 78c(f). 

14 17 CFR 200.30–3(a)(12). 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

information with respect to, and 

facilitating transactions in securities, to 

remove impediments to and perfect the 

mechanism of a free and open market 

and a national market system, and, in 

general, to protect investors and the 

public interest. The proposed rule 

change is designed to remove 

uncertainty regarding the ability of 

certain companies to remain listed on 

the NYSE during the current highly 

unusual market conditions, thereby 

protecting investors, facilitating 

transactions in securities, and removing 

an impediment to a free and open 

market. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

The Exchange does not believe that 

the proposed rule change will impose 

any burden on competition that is not 

necessary or appropriate in furtherance 

of the purposes of the Exchange Act. 

C. Self-Regulatory Organization’s 

Statement on Comments on the 

Proposed Rule Change Received From 

Members, Participants, or Others 

Written comments were neither 

solicited nor received. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

Because the proposed rule change: (i) 

Does not significantly affect the 

protection of investors or the public 

interest; (ii) does not impose any 

significant burden on competition; and 

(iii) does not become operative for 30 

days after the date of the filing, or such 

shorter time as the Commission may 

designate if consistent with the 

protection of investors and the public 

interest, the proposed rule change has 

become effective pursuant to Section 

19(b)(3)(A) of the Act 9 and Rule 19b– 

4(f)(6) thereunder.10

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)(iii) 12

permits the Commission to designate a 

shorter time if such action is consistent 

with the protection of investors and the 

public interest. The Exchange has 

requested that the Commission waive 

the 30-day operative delay. 

The Commission believes that 

waiving the 30-day operative delay is 

consistent with the protection of 

investors and the public interest 

because it will allow the NYSE to 

immediately implement a temporary 

measure to lower its continued listing 

requirement relating to average global 

market capitalization to respond to 

recent market volatility and conditions. 

The Commission notes that the 

Exchange’s current standard does not 

provide companies with a period of 

time to regain compliance and, instead, 

companies failing to meet this standard 

are immediately subject to the 

Exchange’s delisting procedures in 

Section 804 of the Manual. As such, the 

Commission believes that waiving the 

30-day operative delay will provide 

certain companies with immediate relief 

from being delisted as a result of the 

current market conditions, provided 

that their average global market 

capitalization over a consecutive 30-day 

trading period remains at $15 million or 

above. For these reasons, the 

Commission designates that the 

proposed rule change become operative 

immediately upon filing.13

At any time within 60 days of the 

filing of the proposed rule change, the 

Commission may summarily abrogate 

the rule change if it appears to the 

Commission that such action is 

necessary or appropriate in the public 

interest, for the protection of investors, 

or otherwise in furtherance of the 

purposes of the Act. 

IV. Solicitation of Comments 

Interested persons are invited to 

submit written data, views and 

arguments concerning the foregoing, 

including whether the proposed rule 

change is consistent with the Exchange 

Act. Comments may be submitted by 

any of the following methods: 

Electronic Comments 

• Use the Commission’s Internet 

comment form 

(http://www.sec.gov/rules/sro.shtml); or 

• Send an e-mail to rulecomments@sec.gov. Please include File 

Number SR–NYSE–2009–06 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–2009–06. This file 

number should be included on the 

subject line if e-mail is used. To help the 

Commission process and review your 

comments more efficiently, please use 

only one method. The Commission will 

post all comments on the Commission’s 

Internet Web site 

(http://www.sec.gov/rules/sro.shtml). 

Copies of the submission, all subsequent 

amendments, all written statements 

with respect to the proposed rule 

change that are filed with the 

Commission, and all written 

communications relating to the 

proposed rule change between the 

Commission and any person, other than 

those that may be withheld from the 

public in accordance with the 

provisions of 5 U.S.C. 552, will be 

available for inspection and copying in 

the Commission’s Public Reference 

Room, on official business days between 

the hours of 10 a.m. and 3 p.m. Copies 

of the filing also will be available for 

inspection and copying at the principal 

office of the Exchange. All comments 

received will be posted without change; 

the Commission does not edit personal 

identifying information from 

submissions. You should submit only 

information that you wish to make 

available publicly. All submissions 

should refer to File Number SR–NYSE– 

2009–06 and should be submitted on or 

before February 20, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.14

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–2016 Filed 1–29–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59289; File No. SR– 

NYSEArca–2009–06] 

Self-Regulatory Organizations; NYSE 

Arca, Inc.; Notice of Filing and 

Immediate Effectiveness of Proposed 

Rule Change to Introduce a Pilot 

Program for NYSE Arca Trades 

January 23, 2009. 

Pursuant to Section 19(b)(1) of the 

Securities Exchange Act of 1934 

(‘‘Act’’) 1 and Rule 19b–4 thereunder,2

notice is hereby given that on January 

21, 2009, NYSE Arca, Inc. (‘‘NYSE 

mstockstill on PROD1PC66 with NOTICES