11146 Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Notices 

13See infra notes 5 and 6. 

14For purposes only of waiving the operative date 

of this proposal, the Commission has considered 

the rule’s impact on efficiency, competition, and 

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

15 17 CFR 200.30–3(a)(12). 

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

2Securities Exchange Release Act No. 53970 

(June 12, 2006), 71 FR 34974 (June 16, 2006) (File 

No. SR–DTC–2006–08). 

3See Securities Exchange Release Act No. 55306 

(Feb. 15, 2007) 72 FR 8217 (Feb. 23, 2007) (File No. 

SR–DTC–2006–21) (modifying the fees from the 

original filing). 

4 Dividend fees will continue to be collected 

through the current rate adjustment process. The 

dividend fee is incorporated into the final rate paid 

on the dividend by the agent on payment date and 

covers their cost for servicing the dividend 

payment. 

5ADR agreements are filed with the Commission 

and are usually posted on the depositary bank’s 

Web site. All fees discussed herein are collectively 

termed ‘‘ADR agent fees.’’ 

the operative delay is consistent with 

the protection of investors and the 

public interest because such waiver will 

enable CBOE Rule 6.45A(b) to continue 

without interruption. The Commission 

notes that the rule has been in effect on 

a pilot basis since March 14, 2005 13 and 

therefore does not raise any novel or 

significant regulatory issues. Therefore, 

the Commission designates the 

proposed rule change as operative upon 

filing.14

At any time within 60 days of the 

filing of such 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–CBOE–2009–016 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–CBOE–2009–016. 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 the filing also will be available 

for inspection and copying at the 

principal office of the CBOE. 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–CBOE–2009–016 and 

should be submitted on or before April 

6, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.15

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–5572 Filed 3–13–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59540; File No. SR–DTC– 

2009–05] 

Self-Regulatory Organizations; The 

Depository Trust Company; Notice of 

Filing of a Proposed Rule Change 

Relating To Expanding the Scope and 

Timing To Collect and Pass-Through 

Fees Owed by Participants to 

American Depositary Receipt Agents 

March 9, 2009. 

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

Securities Exchange Act of 1934 

(‘‘Act’’),1 notice is hereby given that on 

February 25, 2009, The Depository Trust 

Company (‘‘DTC’’) 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 primarily by DTC. 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 

DTC proposes to expand the scope 

and timing that DTC can collect and 

pass-through fees owed by participants 

to American Depositary Receipt 

(‘‘ADR’’) agents. 

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, 

DTC 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. DTC 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 

On June 12, 2006, the Commission 

approved a rule filing for DTC to 

establish a mechanism for DTC to 

collect and pass through custody fees 

owed by DTC participants to ADR 

agents for issues that do not pay 

periodic dividends.2 Currently, DTC 

collects custody fees, called Depository 

Service Fees (‘‘DSF’’), from participants 

once a year per CUSIP. DTC collects 

DSFs at the request of the depositary 

bank and only for issues that have not 

paid a dividend in the last 12 months. 

In addition to collecting the DSF, DTC 

charges its participants three percent 

(3%) of the ADR agent fee up to a 

maximum of $10,000 per CUSIP 

(‘‘collection charge’’) in order to cover 

costs incurred in collecting and passing 

through DSFs.3

Based on the experience to date and 

with increased challenges due to the 

rapid growth of unsponsored ADRs, the 

depositary banks and DTC have 

discussed expanding and refining the 

current DSF collection process. With 

this rule filing, DTC proposes to collect 

all allowable DSFs, dividend fees,4 passthrough expenses, or other special fees 

as governed by the ADR agreement.5

Additionally, DTC is proposing to 

increase the maximum collection charge 

to $20,000 per CUSIP. In order to collect 

Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Notices 11147 

6Fees may be collected multiple times in any 

given calendar year depending on the terms of the 

ADR agreement. 

7 15 U.S.C. 78q–1. 

8 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

the ADR agent fees, the ADR depositary 

banks will be required to notify DTC 

thirty calendar days prior to the record 

date that a DSF or other fee is due and 

payable.6 Moreover, DTC will require 

that the ADR depositary bank submit an 

attestation that the specific fee(s) is 

allowable under the ADR agreement 

with the issuer. The attestation will be 

in a form prescribed by DTC and may 

be changed periodically to address 

operational issues. If a participant asks 

DTC to substantiate the fee, DTC may 

require the ADR depositary to provide 

DTC with a copy of the ADR agreement 

with the issuer and highlight the fee 

schedule. DTC may at its discretion 

provide copies of the agreement to its 

participants to substantiate the fee. 

As a result of this rule filing, the fee 

schedule for assessing ADR agent fees 

will be revised. First, ADR agent fees 

will apply to all fees permitted under 

the ADR agreement; the reference to 

‘‘issues not paying periodic dividends’’ 

would be deleted. Second, as discussed 

above, the maximum ADR agent fee 

would be increased to $20,000 from 

$10,000. 

DTC has discussed this proposal with 

The Securities Industry and Financial 

Markets Association’s (‘‘SIFMA’’) 

Operations Committee and Dividend 

Division and with various participants. 

The SIFMA Operations Committee 

endorsed DTC’s plan to collect ADR 

agent fees, and the Dividend Division 

and DTC participants did not object to 

DTC moving forward. DTC states that 

the proposed ADR agent fee collection 

process will eliminate invoice and 

check processing for DTC participants 

and the depositary banks because ADR 

depositaries will no longer have to mail 

invoices and reminders to participants 

holding ADR securities at DTC. 

Participants will also have a more 

transparent view into upcoming ADR 

agent fees and a centralized source for 

information about the ADR agent fee 

and the collection process. DTC expects 

to begin collecting ADR agent fees as 

expanded by this rule filing in the first 

full month following the approval of 

this filing. 

DTC believes that the proposed rule 

change is consistent with the 

requirements of Section 17A of the Act 7

and the rules and regulations 

thereunder because it updates DTC’s fee 

schedule and provides for the equitable 

allocation of fees among its participants. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

DTC does not believe that the 

proposed rule change will have any 

impact or impose any burden on 

competition. 

C. Self-Regulatory Organization’s 

Statement on Comments on the 

Proposed Rule Change Received From 

Members, Participants, or Others 

DTC has not solicited or received 

written comments relating to the 

proposed rule change. DTC will notify 

the Commission of any written 

comments it receives. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

Within thirty-five days of the date of 

publication of this notice in the Federal 

Register or within such longer period (i) 

as the Commission may designate up to 

ninety 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 such 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. 

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 rulecomment@sec.gov. Please include File 

No. SR–DTC–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 No. 

SR–DTC–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. to 3 p.m. 

Copies of such filing also will be 

available for inspection and copying at 

DTC’s principal office and on DTC’s 

Web site at http://www.dtc.org/impNtc/ 

mor/index.html. 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 No. SR–DTC–2009– 

05 and should be submitted on or before 

April 6, 2009. 

For the Commission by the Division of 

Trading and Markets, pursuant to delegated 

authority.8

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–5567 Filed 3–13–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59548; File No. SR–ISE– 

2009–10] 

Self-Regulatory Organizations; 

International Securities Exchange, 

LLC; Notice of Filing and Immediate 

Effectiveness of Proposed Rule 

Change To Amend the Exchange’s 

Obvious Error Rules 

March 10, 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 February 

25, 2009, the International Securities 

Exchange, LLC (‘‘ISE’’ 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 selfregulatory organization. The Exchange