54446 Federal Register / Vol. 73, No. 183 / Friday, September 19, 2008 / Notices 

11 17 CFR 240.19b–4(f)(6)(iii). In addition, Rule 

19b–4(f)(6)(iii) requires the Exchange to give the 

Commission written notice of the Exchange’s 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 the pre-filing requirement. 

12 17 CFR 240.19b–4(f)(6). 

13 17 CFR 240.19b–4(f)(6)(iii). 

14For purposes only of waiving the operative 

delay for this proposal, the Commission has 

considered the proposed rule’s impact on 

efficiency, competition, and capital formation. See 

15 U.S.C. 78c(f). 

15 15 U.S.C. 78s(b)(3)(C). For purposes of 

calculating the 60-day period within which the 

Commission may summarily abrogate the proposal, 

the Commission considers the period to commence 

on September 11, 2008, the date on which the 

Exchange submitted Amendment No. 1. 

16 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3 15 U.S.C. 80a–1. 

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 

prior to 30 days from the date on which 

it was filed, 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 and Rule 19b–4(f)(6)(iii) 

thereunder.11

A proposed rule change filed under 

Rule 19b–4(f)(6) 12 normally does not 

become operative prior to 30 days after 

the date of the filing. However, pursuant 

to Rule 19b–4(f)(6)(iii), 13 the 

Commission may 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 so that the proposed 

rule change may become operative 

pursuant to Section 19(b)(3)(A) and Rule 

19b–4(f)(6) at the same time that 

FINRA’s proposed amendments become 

operative. 

The purpose of the proposed rule 

change is to conform NYSE Rules to 

FINRA’s proposed amendments to 

certain NYSE Incorporated Rules, in 

furtherance of the consolidation of the 

member firm regulations functions of 

NYSE Regulation and FINRA. NYSE 

requests that the operative date of the 

proposed rule change be the same as the 

operative date of FINRA’s proposal in 

order to ensure that the NYSE Rules 

maintain their status as Common Rules 

under the 17d–2 Agreement. As 

provided in paragraph 2(b) of the 

Agreement, FINRA and NYSE will, 

absent a disagreement about the 

substance of a proposed rule change to 

one of the Common Rules, promptly 

propose conforming changes to ensure 

that such rules continue to be Common 

Rules under the Agreement. For this 

reason, the Commission designates that 

the proposed rule change has become 

operative as of September 12, 2008.14

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.15

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–2008–80 on the 

subject line. 

Paper Comments 

• Send paper comments in triplicate 

to Secretary, Securities and Exchange 

Commission, Station Place, 100 F Street, 

NE., Washington, DC 20549–1090. 

All submissions should refer to File 

Number SR–NYSE–2008–80. 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–2008–80 and should 

be submitted on or before October 10, 

2008. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.16

Florence E. Harmon, 

Acting Secretary. 

[FR Doc. E8–21948 Filed 9–18–08; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–58518; File No. SR– 

NYSEArca–2008–94] 

Self-Regulatory Organizations; Notice 

of Filing of Proposed Rule Change by 

NYSE Arca, Inc. Amending NYSE Arca 

Equities Rules 5.1(b)(14) and 5.2(j)(2) 

To Permit the Listing of ELNs That Are 

Linked to Securities Issued by 

Companies Registered Under the 

Investment Company Act of 1940 

Date: September 11, 2008. 

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

Securities Exchange Act of 1934 1 (the 

‘‘Exchange Act’’) and Rule 19b–4 

thereunder,2 notice is hereby given that 

on August 25, 2008, NYSE Arca, Inc. 

(‘‘NYSE Arca’’ or ‘‘Exchange’’), through 

its wholly owned subsidiary, NYSE 

Arca Equities, Inc. (‘‘NYSE Arca 

Equities’’), 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 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 amend 

NYSE Arca Equities Rule 5.1(b)(14), the 

Exchange’s definition of Equity-Linked 

Notes (‘‘ELNs’’), and NYSE Arca 

Equities Rule 5.2(j)(2), the Exchange’s 

listing standards for ELNs, to permit the 

listing of ELNs that are linked to 

securities that are issued by companies 

registered under the Investment 

Company Act of 1940 (‘‘1940 Act’’) 3


jlentini on PROD1PC65 with NOTICES
Federal Register / Vol. 73, No. 183 / Friday, September 19, 2008 / Notices 54447 

4E-mail from Tim Malinowski, Director, NYSE 

Euronext, to Arisa Tinaves, Division of Trading and 

Markets, Commission, dated September 3, 2008. 

5See NYSE Arca Equities Rule 5.2(j)(6)(B)(I). See 

also Securities Exchange Act Release No. 56879 

(December 3, 2007), 72 FR 69271 (December 7, 

2007) (SR–NYSEArca–2007–110) (approving Equity 

Index-Linked Securities underlying indexes to be 

based in whole or in part upon companies 

registered under the 1940 Act and are listed on a 

national securities exchange). 

and are listed on a national securities 

exchange. The text of the proposed rule 

change is available on the Exchange’s 

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

Exchange’s principal office, and at the 

Commission’s Public Reference Room.4

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 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 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

The Exchange is proposing to amend 

NYSE Arca Equities Rule 5.1(b)(14), the 

Exchange’s definition of ELNs, and 

NYSE Arca Equities Rule 5.2(j)(2), the 

Exchange’s listing standards for ELNs, 

to permit the listing of ELNs that are 

linked to securities that are issued by 

companies registered under the 1940 

Act and are listed on a national 

securities exchange, as set forth below. 

This proposal is based upon the 

Exchanges listing rules for Equity IndexLinked Securities which allow 

underlying indexes to be based in whole 

or in part upon companies registered 

under the 1940 Act and are listed on a 

national securities exchange.5

Definition of ELN 

NYSE Arca Equities Rule 5.1(b)(14) 

currently defines ELNs as notes that are 

linked, in whole or in part, to the 

market performance of up to thirty (30) 

common stocks or non-convertible 

preferred stocks. The Exchange 

proposes to amend the Rule to define 

ELNs as notes that are linked, in whole 

or in part, to the market performance of 

up to thirty (30) underlying equity 

securities that meet the criteria in NYSE 

Arca Equities Rule 5.2(j)(2). The 

Exchange believes that it is more 

appropriate to set forth the criteria for 

the underlying securities in the listing 

criteria for ELNs rather than in the 

definitions section. Further, the 

Exchange believes that the crossreference serves a useful purpose in that 

it alerts readers to the fact that the 

Exchange has listing criteria for ELNs 

and where it can be found. In addition, 

the Exchange proposes this change in 

order to avoid the administrative burden 

of amending the definition each time 

that the Exchange proposes to amend 

the ELN listing criteria. 

The Linked Securities 

NYSE Arca Equities Rule 5.2(j)(2)(C) 

currently provides minimum standards 

applicable to the linked securities and 

the issuers of such securities. Under 

NYSE Arca Equities Rule 5.2(j)(2)(C)(ii), 

each issuer of an underlying security to 

which an ELN is to be linked must be 

a reporting company pursuant to the 

Exchange Act that is listed on a national 

securities exchange. The Exchange 

proposes to expand this provision to 

provide that an issuer of an underlying 

security to which an ELN is to be linked 

may also be a 1940 Act registered 

investment company. In addition, the 

Exchange proposes to further clarify the 

Rule to state that, in either case, any 

underlying security to which the ELN is 

to be linked must be listed on a national 

securities exchange. 

The Exchange believes that expanding 

the listing criteria for ELNs to 

encompass notes that are linked to the 

securities of investment companies will 

provide investors with enhanced 

investment options and flexibility. The 

Exchange also believes that there would 

be no investor protection concerns with 

this expansion because each linked 

security is required to individually 

satisfy the applicable listing standards 

set forth in Rule 5.2(j)(2), including that 

the investment company be registered 

under the 1940 Act and that the 

underlying securities be listed on a 

national securities exchange. The 

Exchange also believes that the 

availability of financial information for 

the underlying securities of 1940 Act 

registered investment companies, like 

the Exchange Act reporting companies, 

have disclosure obligations under the 

federal securities laws. The Exchange 

believes that such information serves to 

protect investors and the public interest. 

The Exchange notes that 1940 Act 

registered investment company 

securities trade on the same exchange 

platforms as equity securities registered 

under the Exchange Act and are subject 

to the same exchange trading rules as 

equity securities. As such, the Exchange 

believes that it is appropriate to permit 

1940 Act registered investment 

companies to be an underlying security 

for ELNs. 

In NYSE Arca Equities Rule 

5.2(j)(2)(C)(ii)(2), the Exchange proposes 

to replace the term ‘‘common stock’’ 

with the term ‘‘shares’’ in order to take 

into account that certain underlying 

securities, particularly those that are 

securities issued by 1940 Act registered 

investment companies, are not labeled 

‘‘common stock.’’ Similarly, in NYSE 

Arca Equities Rule 5.2(j)(2)(D)(i), the 

Exchange proposes to eliminate the term 

‘‘common’’ when it qualifies ‘‘shares’’ in 

order to take into account that certain 

underlying securities, particularly those 

that are securities issued by 1940 Act 

registered investment companies, are 

not labeled ‘‘common shares.’’ 

As revised, the term ‘‘shares’’ shall 

encompass common stock, nonconvertible preferred stock and 

securities issued by 1940 Act registered 

investment companies as eligible 

underlying securities. Therefore, with 

respect to NYSE Arca Equities Rule 

5.2(j)(2)(C)(ii)(2), the combined trading 

volume of each non-U.S. security (a 

security issued by a non-U.S. company) 

and other related non-U.S. securities 

occurring in the U.S. market or in 

markets with which the Exchange has in 

place a comprehensive surveillance 

sharing agreement must represent (on a 

share equivalent basis for any American 

Depository Shares (‘‘ADSs’’)) at least 

50% of the combined world-wide 

trading volume in each such non-U.S. 

security, other related non-U.S. 

securities, and other classes of common 

stock, non-convertible preferred stock or 

securities of 1940 Act registered 

investment companies related to each 

such non-U.S. security, as the case may 

be, over the six month period preceding 

the date of listing. In addition, with 

respect to NYSE Arca Equities Rule 

5.2(j)(2)(D)(i): (1) An issuance of ELNs 

relating to any U.S. security may not 

exceed five percent of the total 

outstanding common stock, nonconvertible preferred stock, or securities 

of 1940 Act registered investment 

companies for each such underlying 

security, as the case may be; and (2) the 

issuance of ELNs relating to any 

underlying non-U.S. security 

represented by ADSs, common stock, 

non-convertible preferred stock, or 

securities of 1940 Act registered 

investment companies, or otherwise, 

may not exceed: (a) Two percent of the 

total shares outstanding of the relevant 

underlying security worldwide if at 

least 20 percent of the worldwide 


jlentini on PROD1PC65 with NOTICES
54448 Federal Register / Vol. 73, No. 183 / Friday, September 19, 2008 / Notices 

6E-mail from Tim Malinowski, Director, NYSE 

Euronext, to Edward Cho, Special Counsel, Division 

of Trading and Markets, Commission, dated 

September 9, 2008. 

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

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

9E-mail from Tim Malinowski, Director, NYSE 

Euronext, to Edward Cho, Special Counsel, Division 

of Trading and Markets, Commission, dated August 

27, 2008. 10 17 CFR 200.30–3(a)(12). 

trading volume in each non-U.S. 

security and related non-U.S. security 

occurs in the U.S. market during the sixmonth period preceding the date of 

listing; or (b) three percent of the total 

shares outstanding of the relevant 

underlying security worldwide if at 

least 50 percent of the worldwide 

trading volume in each non-U.S. 

security and related non-U.S. security 

occurs in the U.S. market during the sixmonth period preceding the date of 

listing; and (c) five percent of the total 

shares outstanding of the relevant 

underlying security worldwide if at 

least 70 percent of the worldwide 

trading volume in each non-U.S. 

security and related non-U.S. security 

occurs in the U.S. market during the sixmonth period preceding the date of 

listing.6

Additional Technical Changes 

The Exchange proposes to correct the 

numbering of NYSE Arca Equities Rule 

5.2(j)(2)(C)(iv) to NYSE Arca Equities 

Rule 5.2(j)(2)(C)(iii). The Exchange also 

proposes to change the reference to the 

Division of Market Regulation to the 

Division of Trading and Markets in 

NYSE Arca Equities Rule 5.2(j)(2)(D)(i). 

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),8 in particular, in that it 

is designed to prevent fraudulent and 

manipulative acts and practices, to 

promote just and equitable principles of 

trade, to foster cooperation and 

coordination with persons engaged in 

facilitating transactions in securities, 

and to remove impediments to and 

perfect the mechanisms of a free and 

open market and a national market 

system, and, in general, to protect 

investors and the public interest. The 

Exchange believes that expanding the 

listing criteria for ELNs to encompass 

notes that are linked to the securities of 

investment companies will provide 

investors with enhanced investment 

options and flexibility. The Exchange 

also believes that the availability of 

financial information for the underlying 

securities of 1940 Act registered 

investment companies, like the 

Exchange Act reporting companies, 

have disclosure obligations under the 

federal securities laws. 

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 

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 

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 Exchange 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. 

The Exchange has requested accelerated 

approval of this proposed rule change 

prior to the 30th day after the date of 

publication of the notice in the Federal 

Register.9

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–NYSEArca–2008–94 on the 

subject line. 

Paper Comments 

• Send paper comments in triplicate 

to Secretary, Securities and Exchange 

Commission, 100 F Street, NE., 

Washington, DC 20549–1090. 

All submissions should refer to File 

Number SR–NYSE–Arca–2008–94. 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 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–NYSEArca–2008–94 and 

should be submitted on or before 

October 6, 2008. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.10

Florence E. Harmon, 

Acting Secretary. 

[FR Doc. E8–21901 Filed 9–18–08; 8:45 am] 

BILLING CODE 8010–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

Notice of Intent To Request Approval 

From the Office of Management and 

Budget of a New Information 

Collection Activity, Request for 

Comments; Revisions to Digital Flight 

Data Recorder Regulations for Boeing 

737 Airplanes and for All Part 125 

Airplanes 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Notice and request for 

comments. 

SUMMARY: The FAA invites public 

comments about our intention to request 

the Office of Management and Budget 


jlentini on PROD1PC65 with NOTICES