40150 Federal Register / Vol. 63, No. 143 / Monday, July 27, 1998 / Notices

11 15 U.S.C. 78s(b)(2).

12 17 CFR 200.30–3(a)(12).

1Article IV, Section 13.

2Exchange Rule 635.

3Exchange Rules 600 and 613.

4 ‘‘Any controversy between parties who are

members, allied members or member organizations

and any controversy between a member, allied

member or member organization and any other

person arising out of the business of such member,

allied member or member organization, or the

dissolution of a member organization, shall at the

instance of any such party, be submitted for

arbitration in accordance with the provisions of this

Constitution and such rules as the Board may from

time to time adopt.’’ (Article XI, Sec. 1).

‘‘Any dispute, claim or controversy between a

customer or non-member and a member, allied

member, member organization and/or associated

person arising in connection with the business of

such member, allied member, member organization

and/or associated person in connection with his

activities as an associated person shall be arbitrated

under the Constitution and Rules of the New York

Stock Exchange, Inc. as provided by any duly

executed and enforceable written agreement or

upon the demand of the customer or non-member.’’

Exchange Rule 600.

5See Exchange Rule 621.

6Spear, Leeds & Kellogg v. Central Life Assurance

Co., 85 F.3d 21 (2d Cir. 1996).

prepare official statements on behalf of

issuers, the Commission is of the

opinion that an underwriter that

prepares an official statement on behalf

of an issuer would be deemed to have

received the official statement from the

issuer immediately upon the issuer

approving the distribution of the

completed official statement in final

form.

In codifying its long-standing position

in the Offering Price Disclosure

Provision, the Board not only improves

the information available to customers

to determine the cost of their

investments, but also improves the

historical data analysts use to compare

similarly priced and structured deals in

various municipalities. The Commission

believes disclosure of accurate pricing

data should help facilitate competitive

pricing in the municipal securities

markets.

IV. Conclusion

For the above reason, the Commission

believes that the proposed rule change

is consistent with the provisions of the

Act, and in particular with Section

15B(b)(2)(C).

It is therefore ordered, pursuant to

Section 19(b)(2) of the Act,11 that the

proposed rule change (SR–MSRB–97–

14), is hereby approved/

For the Commission, by the Division of

Market Regulation, pursuant to delegated

authority.12

Jonathan G. Katz,

Secretary.

[FR Doc. 98–19985 Filed 7–24–98; 8:45 am]

BILLING CODE 8010–01–M

SECURITIES AND EXCHANGE

COMMISSION

[Release No. 34–40229; File No. SR–NYSE–

98–20]

Self-Regulatory Organizations; Notice

of Filing of Proposed Rule Change by

the New York Stock Exchange, Inc.

Relating to an Interpretation of Article

IV, Section 14 of the Exchange

Constitution

July 17, 1998.

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

Securities Exchange Act of 1934

(‘‘Act’’), 15 U.S.C. 78s(b)(1), notice is

hereby given that on July 10, 1998, the

New York Stock Exchange, Inc.

(‘‘NYSE’’ or ‘‘Exchange’’) filed with the

Securities and Exchange Commission

(‘‘Commission’’) the proposed rule

change as described in Items I, II, and

III below, which Items have been

prepared by the self-regulatory

organization. The Commission is

publishing this notice to solicit

comments on the proposed rule change

from interested persons.

I. Self-Regulatory Organization’s

Statement of the Terms of Substance of

the Proposed Rule Change

The Exchange proposes to interpret

Article IV, Section 14 of the Exchange

Constitution to provide that decisions of

the Director of Arbitration regarding

jurisdiction and hearing situs are not

subject to review by the Exchange’s

Board of Directors.

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 its

received on the proposed rule change.

The text of these statements may be

examined at the places specified in Item

IV below. The self-regulatory

organization has prepared summaries,

set forth in Sections A, B, and C below,

of the most significant aspects of such

statements.

A. Self-Regulatory Organization’s

Statement of the Purpose of, and

Statutory Basis for, the Proposed Rule

Change

1. Purpose

The purpose of the proposed

resolution is to interpret Article IV,

Section 14 of the Exchange Constitution

so that decisions of the Director of

Arbitration on issues of jurisdiction and

hearings situs are not subject to review

by the Exchange’s Board at the request

of a member, member organization,

allied member or approved person. This

section of the Exchange Constitution

provides that where the Board has

delegated its powers to an officer or

employee, ‘‘a member, member

organization, allied member of approved

person affected by a decision of any

officer or employee * * * may require

a review by the Board of such decision.’’

No explicit exception is made for

actions taken by the Director of

Arbitration. Moreover, this provision is

not applicable to persons other than

members, member organizations, or

allied members of approved persons

affected by a decision of the Director of

Arbitration. However, Exchange Rule

621 and applicable law provide for the

review of the Director’s decisions by

arbitrators or the courts. In addition, the

Board has the authority to interpret the

Constitution.1

The Director of Arbitration is

‘‘charged with the duty of performing all

ministerial duties in connection with

matters submitted for arbitration.’’ 2

These duties include making the initial

decisions regarding jurisdiction and

hearing situs.3 Exchange Rule 613 deals

with the situs of a hearing and provides

that ‘‘[t]he time and place for the initial

hearing shall be determined by the

Director of Arbitration and each hearing

thereafter by the arbitrators.’’

Article XI, Section 1 of the Exchange

Constitution and Exchange Rule 600

establish the jurisdiction of the

Exchange’s arbitration forum.4 When a

claim is submitted for arbitration at the

Exchange, the Director of Arbitration, as

part of the ‘‘ministerial duties in

connection with matters submitted for

arbitration,’’ determines whether the

claim submitted falls within the

parameters of the Exchange’s

jurisdiction.

The arbitrators are empowered to

interpret and determine the

applicability of all provisions of the

Arbitration Rules 5 and thereby the

Exchange believes they can overturn

decisions of the Director of Arbitration

regarding situs of he first hearing.

Decisions of the Director Arbitration

regarding jurisdiction are subject to

review by the courts.6

The NYSE notes that in the past,

members have requested, and the Board

has granted, review of the Director of

Arbitration’s decisions on jurisdiction

and hearing situs.

The Exchange notes that interlocutory

procedural decisions are rarely

appealable in judicial and arbitral
Federal Register / Vol. 63, No. 143 / Monday, July 27, 1998 / Notices 40151

7See NYSE Rule 621; see also Federal Arbitration

Act, 9 U.S.C. 1 et seq.

8 15 U.S.C. 78f(b)(5). 9 17 CFR 200.30–3(a)(12).

processes. Generally, they are reserved

for consideration as part of any overall

review of the lowest court’s or

arbitrator’s decision. This reservation

occurs in part because interlocutory

appeals are frequently employed by

parties simply to gain tactical advantage

in the dispute. In addition, a substantive

resolution of the conflict will often moot

the procedural issues.

Inasmuch as this review by the Board

of staff action is in the nature of an

interlocutory appeal, the arbitrators and

the courts may subsequently review the

Board’s decision. This may result in an

unnecessary delay in the final

resolution of an arbitration claim.

The Exchange notes that as a matter

of statutory interpretation, when two

statutes speak to the same subject

matter, and one is general and the other

is specific, the specific is usually

interpreted to qualify or control the

general. In this case, the Exchange

Constitution and Rules, as well as the

statutory framework within which

alternative dispute resolution processes

operate, create a specific scheme for

review of administrative decisions of

the Director of Arbitration.7 The

Exchange believes that this specific

scheme obviates the need for review of

the Director’s decisions under the

Exchange Constitution’s general scheme

for Board review of staff actions.

Accordingly, the Exchange believes it is

well within the norms of statutory

construction for the Board to interpret

the specific scheme for the review of the

decisions of the Director to displace the

general scheme.

2. Statutory Basis

The Exchange believes that the

proposed change is consistent with

Section 6(b)(5) of the Act 8 in that it

promotes just and equitable principles

of trade by insuring that members and

member organizations and the public

have a fair and impartial forum for the

resolution of their disputes.

B. Self-Regulatory Organization’s

Statement on Burden on Competition

The Exchange does not believe that

the proposed rule change will impose

any inappropriate burden on

competition.

C. Self-Regulatory Organization’s

Statement on Comments on the

Proposed Rule Change Received From

Members, Participants, or Others

No written comments were either

solicited or received.

III. Date of Effectiveness of the

Proposed Rule Change and Timing for

Commission Action

Within 35 days of the publication of

this notice is Federal Register or within

such longer period (i) as the

Commission may designate up to 90

days of such date if it finds such longer

period to be appropriate and publishes

its reasons for so finding or (ii) as to

which the self-regulatory organization

consents, the Commission will:

(A) By order approve the proposed

rule change, or

(B) Institute proceedings to determine

whether the proposed rule change

should be disapproved.

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.

Persons making written submissions

should file six copies thereof with the

Secretary, Securities and Exchange

Commission, 450 Fifth Street, NW.,

Washington, DC 20549. 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 at

the Commission’s Public Reference

Room. Copies of such filing will also be

available for inspection and copying at

the principal office of the Exchange. All

submissions should refer to File No.

SR–NYSE–98–20 and should be

submitted by August 17, 1998.

For the Commission, by the Division of

Market Regulation, pursuant to delegated

authority.9

Jonathan G. Katz,

Secretary.

[FR Doc. 98–19984 Filed 7–24–98; 8:45 am]

BILLING CODE 8010–01–M

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

Environmental Impact Statement: FRA

Regulation of the Use of Locomotive

Horns at Highway-Rail Grade

Crossings Nationwide (FRA Docket No.

RSGC–7)

AGENCY: Federal Railroad

Administration (FRA), Department of

Transportation (DOT).

ACTION: Notice of Extension of Comment

Period.

SUMMARY: FRA is issuing this notice to

advise the public that the comment

period for identifying the scope of

FRA’s planned environmental impact

statement (EIS) on a proposed regulation

related to the use of locomotive horns at

highway-rail grade crossings is extended

to August 7, 1998.

FOR FURTHER INFORMATION CONTACT:

David Valenstein, Environmental

Specialist, Office of Railroad

Development, Federal Railroad

Administration (RDV 13), 400 Seventh

Street, SW (Mail Stop 20), Washington,

D.C. 20590, (telephone 202–493–6368).

SUPPLEMENTAL INFORMATION:

Background

On May 26, 1998, the Federal

Railroad Administration (FRA)

published a notice of intent to prepare

an environmental impact statement for

the proposed regulation of the use of

locomotive horns at rail-highway grade

crossings, as required by Section 20153

to title 49 United States Code, (63 Fed.

Reg. 28549). Comments on the scope of

the environmental document were

requested by June 19, 1998. The FRA is

extending the period in which

comments will be accepted to August 7,

1998.

Scoping and Comments

Comments and suggestions are invited

from all interested agencies and the

public at large to insure the full range

of issues related to the proposed action

and all reasonable alternatives are

addressed and all significant issues are

identified. In particular, FRA is

interested in determining whether there

are any other reasonable alternatives

consistent with the provisions of 49

U.S.C. 20153 and whether there are

other areas of environmental concern

where there might be the potential for

significant impacts, either adverse or

favorable, as a result of promulgating

the proposed rule. Persons interested in

providing comments on the scope of

this environmental document should do

so by August 7, 1998. Comments can be