Federal Register / Vol. 70, No. 220 / Wednesday, November 16, 2005 / Notices 69617 

11 15 U.S.C. 78o–3(b)(6). 

12 17 CFR 200.30–3(a)(12). 

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

2 15 U.S.C. 78a. 

3 17 CFR 240.19b–4. 

NASD will announce the effective 

date of the proposed rule change in a 

Notice to Members to be published no 

later than 60 days following 

Commission approval. The effective 

date will be 30 days following 

publication of the Notice to Members 

announcing Commission approval. 

2. Statutory Basis 

NASD believes that the proposed rule 

change is consistent with the provisions 

of Section 15A(b)(6) of the Act,11 which 

requires, among other things, that NASD 

rules must be designed to prevent 

fraudulent and manipulative acts and 

practices, to promote just and equitable 

principles of trade, and, in general, to 

protect investors and the public interest. 

NASD believes that the proposed rule 

change will reduce significant, longterm fails to deliver in the marketplace. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

NASD does not believe that the 

proposed rule change will result in any 

burden on competition that is not 

necessary or appropriate in furtherance 

of the purposes of the Act, as amended. 

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 

Within 35 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 

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 such proposed 

rule change, or 

(b) Institute proceedings to determine 

whether the proposed rule change 

should be disapproved. 

IV. Solicitation of Comments 

The Commission notes that in Section 

3210(b) of the proposed rule, consistent 

with the application of Regulation SHO, 

the NASD excludes from the close out 

requirement of Section 3210(a) of the 

proposed rule the amount of the fail to 

deliver position that the participant of a 

registered clearing agency had at a 

registered clearing agency on the 

settlement day immediately preceding 

the day that the security became a nonreporting threshold security. The 

Commission specifically requests 

comment on this aspect of proposed 

Rule 3210. 

Interested persons are invited to 

submit written data, views and 

arguments concerning the foregoing, 

including whether the proposed rule 

change, as amended, 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–NASD–2004–044 on the 

subject line. 

Paper Comments 

• Send paper comments in triplicate 

to Jonathan G. Katz, Secretary, 

Securities and Exchange Commission, 

100 F Street, NE., Washington, DC 

20549–9303. 

All submissions should refer to File 

Number SR–NASD–2004–044. 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. Copies of such filing also will 

be available for inspection and copying 

at the principal office of NASD. 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 the File 

Number SR–NASD–2004–044 and 

should be submitted on or before 

December 7, 2005. 

For the Commission, by the Division of 

Market Regulation, pursuant to delegated 

authority.12

Jonathan G. Katz, 

Secretary. 

[FR Doc. E5–6306 Filed 11–15–05; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–52760; File No. SR–NYSE–

2005–75] 

Self-Regulatory Organizations; New 

York Stock Exchange, Inc.; Notice of 

Filing of Proposed Rule Change 

Relating to Section 802.01E of the 

Listed Company Manual 

November 10, 2005. 

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

Securities Exchange Act of 1934 (‘‘Act’’

or ‘‘Exchange Act’’) 2 and Rule 19b–4 

thereunder,3 notice is hereby given that 

on October 26, 2005, the New York 

Stock Exchange, Inc. (‘‘Exchange’’ or 

‘‘NYSE’’) filed with the Securities and 

Exchange Commission (‘‘Commission’’

or ‘‘SEC’’) the proposed rule change as 

described in Items I, II, and III 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 proposed rule filing reflects 

amendments to the Listed Company 

Manual procedures applicable to 

companies that fail to file in a timely 

manner their annual report required by 

the Act. The text of the proposed rule 

change is set forth below. Additions are 

in italics and deletions are in brackets. 

Listed Company Manual 

* * * * * 

802.00 Continued Listing Criteria 

* * * * * 

802.01E SEC Annual Report Timely 

Filing Criteria 

A company that fails to file its annual 

report (Forms 10–K, 10–KSB, 20–F, 40–

F or N–CSR) with the SEC in a timely 

manner will be subject to the following 

procedures: Once the Exchange 

identifies that a company has failed to 

file a timely periodic annual report with 

the SEC by the later of (a) the date that 

69618 Federal Register / Vol. 70, No. 220 / Wednesday, November 16, 2005 / Notices 

the annual report was required to be 

filed with the SEC by the applicable 

form or (b) if a Form 12b–25 was timely 

filed with the SEC, the extended filing 

due date for the annual report, the 

Exchange will notify the company in 

writing of [its status] the procedures set 

forth below. For purposes of this [Para.] 

Section 802.01E, the later of these two 

dates will be referred to as the ‘‘Filing 

Due Date.’’

Within five days of receipt of this 

notification, the company will be 

required to (a) contact the Exchange to 

discuss the status of the annual report 

filing, and (b) [if it has not already done 

so,] issue a press release disclosing the 

status of the filing, noting the delay, the 

reason for the delay and the anticipated 

filing date, if known. If the company has 

not [fails to] issued [this] the required 

press release [in a timely manner] by the 

fifth day following receipt of this 

notification, the Exchange will itself 

issue a press release stating that the 

company has failed to timely file its 

annual report with the SEC. 

During the [nine] six-month period 

from the Filing Due Date, the Exchange 

will monitor the company and the status 

of the filing, including through contact 

with the company, until the annual 

report is filed. If the company fails to 

file the annual report within [nine] six 

months from the Filing Due Date, the 

Exchange may, in its sole discretion, 

allow the company’s securities to be 

traded for up to an additional [three] 

six-month trading period depending on 

the company’s specific circumstances. If 

the Exchange determines that an 

additional trading period of up to [three] 

six months is not appropriate, 

suspension and delisting procedures 

will commence in accordance with the 

procedures set out in [Para.] Section 

804.00 of the Listed Company Manual. 

A company is not eligible to follow the 

procedures outlined in [Paras.] Sections 

802.02 and 802.03 with respect to this 

criteria. 

In determining whether an additional 

up to [three] six-month trading period is 

appropriate, the Exchange will consider 

the likelihood that the filing can be 

made during the additional period, as 

well as the company’s general financial 

status, based on information provided 

by a variety of sources, including the 

company, its audit committee, its 

outside auditors, the staff of the SEC 

and any other regulatory body. The 

Exchange strongly encourages 

companies to provide ongoing 

disclosure on the status of the annual 

report filing to the market through press 

releases, and will also take the 

frequency and detail of such 

information into account in determining 

whether an additional [three] six-month 

trading period is appropriate. 

If the Exchange determines that an 

additional up to [three] six-month 

trading period is appropriate and the 

company fails to file its periodic annual 

report by the end of the additional 

period, suspension and delisting 

procedures will, subject to the 

provisions below, commence in 

accordance with the procedures set out 

in [Para.] Section 804.00. In certain 

unique circumstances, a listed company 

that is delayed in filing its annual report 

beyond the twelve-month period 

described above because its financial 

statements have not yet been completed 

may have a position in the market 

(relating to both the nature of its 

business and its very large publicly-held 

market capitalization) such that its 

delisting from the Exchange would be 

significantly contrary to the national 

interest and the interests of public 

investors. In such case, when the 

Exchange believes that the company 

remains suitable for listing given: 

1. Its continuing compliance with 

applicable quantitative and qualitative 

listing standards; 

2. Its continued ability to meet current 

debt obligations and adequately finance 

operations; 

3. Its progress, as reported to the 

Exchange, in completing its financial 

statements; 

4. Whether it has been publicly 

transparent on its status, issuing press 

releases regarding its progress in 

completing its financial statements and 

providing other information regarding 

its financial status; and 

5. The reasonable expectation that the 

company will be able to resume timely 

filings in the future, 

the Exchange, in its sole discretion, may 

determine to allow the listed company 

to continue listing beyond the twelvemonth period. The Exchange will advise 

the SEC of, and publish on the NYSE’s 

website, any such determination. 

The Exchange will reevaluate such 

determination once every three months. 

If the Exchange reaffirms its decision to 

allow trading to continue, the Exchange 

will advise the SEC of, and publish on 

the NYSE’s website, that reaffirmation. 

Note that, regardless of the 

procedures described above, if, at any 

time, the Exchange deems it necessary 

or appropriate in the public interest or 

for the protection of investors, trading in 

any security can be suspended 

immediately, and[,] the Exchange will 

follow [in accordance with] the 

procedures set out in [Para.] Section 

804.00[, application made to the SEC] to 

delist the security. 

* * * * * 

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 

Exchange included statements 

concerning the purpose of and basis for 

the proposed rule change. The text of 

these statements may be examined at 

the places specified in item IV below 

and is set forth in sections A, B, and C 

below. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

The Exchange recently approved 

section 802.01E of the NYSE’s Listed 

Company Manual which codifies the 

Exchange’s procedures relating to 

situations where companies fail to 

satisfy the Commission’s filing 

requirements for annual reports on 

Forms 10–K, 10–KSB, 20–F, 40–F, or N–

CSR in a timely manner. 

Section 802.01E currently provides 

that if a company fails to timely file a 

periodic annual report with the SEC, the 

Exchange will monitor the company and 

the status of the filing. If the company 

fails to file the annual report within 

nine months from the filing due date, 

the Exchange may, in its sole discretion, 

allow the company’s securities to be 

traded for up to an additional threemonth trading period depending on the 

company’s specific circumstances, but 

in any event if the company does not 

file its periodic annual report by the end 

of the one year period, the Exchange 

will begin suspension and delisting 

procedures in accordance with the 

procedures in section 804.00. 

The Exchange believes that there are 

certain unique listed companies that 

have a position in the market (relating 

to both the nature of their business and 

their very large publicly-held market 

capitalization) such that their delisting 

from the Exchange would be 

significantly contrary to the national 

interest and the interests of public 

investors, notwithstanding a delay in an 

annual report filing that extended 

beyond one year. 

The Exchange is, therefore, proposing 

to amend section 802.01E to provide 

that, for these certain unique companies 

that remain suitable for listing given 

their relative financial health and 

compliance with the NYSE’s 

quantitative and qualitative listing 

standards, and with respect to which 

there is a reasonable expectation that 

the company will be able to resume 

timely filings in the future, the 

Federal Register / Vol. 70, No. 220 / Wednesday, November 16, 2005 / Notices 69619 

4The Commission notes that the Exchange is 

clarifying the type of information that must be 

included in the press release. 

5 15 U.S.C. 78f(b)(5). 6 17 CFR 200.30–3(a)(12). 

Exchange may forebear, at its sole 

discretion, from commencing 

suspension and delisting, 

notwithstanding their failure to file 

within the time periods specified in 

section 802.01E. The Exchange will 

advise the SEC of, and publish on the 

NYSE’s Web site, any such 

determination. In addition, the 

Exchange will reevaluate such 

determination once every three months 

and, if the Exchange reaffirms its 

decision to allow trading to continue, 

the Exchange will advise the SEC of, 

and publish on the NYSE’s website, that 

reaffirmation. 

In all such cases, Exchange staff will 

continue to hold regular discussions 

and meetings with the company’s 

management, directors, regulators and 

advisors to monitor the status of the 

annual report filing, as well as the 

company’s compliance with the NYSE’s 

other qualitative and quantitative 

requirements, and to determine whether 

to allow the company to continue to 

trade despite the continued failure to 

file an annual report with the SEC. In 

addition, in order to provide investors 

with appropriate notice that companies 

have failed to file their annual reports 

with the SEC in a timely manner, the 

Exchange will continue to monitor and 

disseminate transparent information on 

the failure of such companies to file 

their annual report with the SEC, 

including through appending an ‘‘.LF’’

indicator in the financial status field of 

the company’s ticker symbol and 

distributing that information via the low 

speed ticker and through our data 

stream to market data vendors. 

The NYSE also maintains an up to 

date list of companies that are late in 

filing their annual reports with the SEC 

on our Web site at http://www.nyse.com. 

Additionally, each NYSE listed 

company has a unique data page on the 

site and, when applicable, this page 

indicates that the company is 

considered a late filer. 

With respect to all companies subject 

to section 802.01E, the Exchange is also 

proposing to (i) shorten the initial 

monitoring period for companies that 

miss their Filing Due Date from nine to 

six months and (ii) lengthen from three 

to six months the additional period that 

the Exchange may grant companies 

prior to the commencement of 

suspension and delisting procedures. In 

addition, the Exchange is proposing 

minor amendments to section 802.01E 

to clarify the requirements regarding 

procedures for press releases relating to 

late filings.4

2. Statutory Basis 

The basis under the Exchange Act for 

this proposed rule change is the 

requirement under section 6(b)(5) 5 that 

an exchange have rules that are 

designed to prevent fraudulent and 

manipulative acts and practices, to 

promote just and equitable principles of 

trade, to remove impediments to, and 

perfect the mechanism of a free and 

open market and, in general, to protect 

investors and the public interest. 

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 

The Exchange has neither solicited 

nor received written comments on the 

proposed rule change. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

Within 35 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 

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 NYSE 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 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–2005–75 on the 

subject line. 

Paper Comments 

Send paper comments in triplicate to 

Jonathan G. Katz, Secretary, Securities 

and Exchange Commission, 100 F 

Street, NE., Washington, DC 20549–

9303. All submissions should refer to 

File Number SR–NYSE–2005–75. 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. Copies of such filing also will be 

available for inspection and copying at 

the principal office of the NYSE. 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–2005–75 and should 

be submitted on or before December 7, 

2005. 

For the Commission, by the Division of 

Market Regulation, pursuant to delegated 

authority.6

Jonathan G. Katz, 

Secretary. 

[FR Doc. 05–22777 Filed 11–10–05; 4:38 pm] 

BILLING CODE 8010–01–P 

SMALL BUSINESS ADMINISTRATION 

[Disaster Declaration # 10245 and # 10246] 

Indiana Disaster # IN–00002 

AGENCY: U.S. Small Business 

Administration. 

ACTION: Notice. 

SUMMARY: This is a Notice of the 

Presidential declaration of a major