Federal Register / Vol. 73, No. 188 / Friday, September 26, 2008 / Notices 55887 

8 15 U.S.C. 78f(b)(4). 

9 15 U.S.C. 78f(b)(5). 

10 15 U.S.C. 78s(b)(2). 

11 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. 

an inequitable allocation of fees. The 

Commission notes that the Exchange 

has represented that after 

consummation of the Merger, the annual 

fee revenue paid by companies to the 

Amex prior to the Merger will be 

available to NYSE Regulation to finance 

its regulatory activities in relation to 

Amex-listed companies, regardless of 

whether such companies remain on 

NYSE Alternext US or have chosen to 

transfer their listing to the NYSE at 

some point during the year either before 

or after the Merger. Since the retroactive 

effect is conditioned on consummation 

of the Merger, the fee waiver recognizes 

that these regulatory efficiencies will 

only occur upon that event. 

The Commission also notes that the 

fee waiver is for a limited time, 

applicable to the remainder of the 

calendar year in which the transfer 

occurs. Annual fees for both Amex and 

NYSE Arca transfers will continue to be 

assessed after the initial pro-rated 

annual fee waiver. The limited period of 

the fee waiver helps to ensure that that 

NYSE will have adequate fees to 

continue compliance and oversight of 

its listing program. 

In summary, based on the reasons set 

forth above, including NYSE’s 

assertions that (i) the same regulatory 

staff on both Amex (that will have been 

absorbed by NYSE Regulation) and 

NYSE Regulation will have conducted a 

substantial review of an Amex or NYSE 

Arca company that NYSE Regulation 

will be able to rely upon as a baseline 

in qualifying the company for both 

listing on the Exchange and in 

conducting ongoing compliance 

activities with respect to any such 

company; and (ii) the retroactive effect 

for Amex transfers will only occur if the 

Merger is consummated, the 

Commission believes it is not 

inequitable or unfair to provide for a 

waiver of annual fees for a limited 

period of time. The Commission 

expects, and the Exchange has 

represented, that a rigorous and 

independent review of compliance with 

the listing standards will be conducted 

for any company seeking to take 

advantage of the fee waiver, just as for 

any company that lists on the Exchange. 

In addition, the Commission expects the 

Exchange to maintain its commitment of 

resources to its regulatory oversight of 

the listing process and its ongoing 

compliance review of listed companies 

under its regulatory program. 

Based on the above, the Commission 

believes the proposed fee waiver does 

not constitute an inequitable allocation 

of reasonable dues, fees, and other 

charges under Section 6(b)(4) of the 

Act,8 does not permit unfair 

discrimination between issuers under 

Section 6(b)(5) of the Act,9 and is 

otherwise consistent with the 

requirements of the Act. 

IV. Conclusion 

It is therefore ordered, pursuant to 

Section 19(b)(2) of the Act,10 that the 

proposed rule change (SR–NYSE–2008– 

74) is hereby approved. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.11

Florence E. Harmon, 

Acting Secretary. 

[FR Doc. E8–22658 Filed 9–25–08; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–58596; File No. SR– 

NYSEArca–2008–98] 

Self-Regulatory Organizations; Notice 

of Filing and Immediate Effectiveness 

of Proposed Rule Change by NYSE 

Arca, Inc., Amending NYSE Arca 

Equities Rule 7.35 Governing Auctions 

September 19, 2008. 

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

Securities Exchange Act of 1934 (the 

‘‘Act’’) 2 and Rule 19b–4 thereunder,3

notice is hereby given that, on 

September 15, 2008, NYSE Arca, Inc. 

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

with the Securities and Exchange 

Commission (the ‘‘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 amend 

NYSE Arca Equities Rule 7.35(c) and (e) 

to permit the Exchange to conduct a 

Market Order Auction and a Closing 

Auction in all exchange listed 

‘‘Derivative Securities Products’’ as 

defined by NYSE Arca Equities Rule 

7.34(a)(4)(A). 

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 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 proposes to amend 

NYSE Arca Equities Rule 7.35(c) and (e) 

to permit the Exchange to conduct a 

Market Order Auction and a Closing 

Auction in all exchange listed 

‘‘Derivative Securities Products’’ as 

defined by NYSE Arca Equities Rule 

7.34(a)(4)(A). 

Currently NYSE Arca Equities Rule 

7.35(c) states that the Exchange will 

conduct a Market Order Auction in (i) 

exchange-listed securities for which the 

Corporation is the primary market; (ii) 

all exchange-listed exchange traded 

funds; and (iii) NYSE listed securities 

subject to a sub-penny trading 

condition. Similarly, NYSE Arca 

Equities Rule 7.35(e) states that the 

Exchange will conduct a Closing 

Auction in (i) exchange-listed securities 

for which the Corporation is the primary 

market; (ii) all exchange-listed exchange 

traded funds; and (iii) NYSE listed 

securities subject to a sub-penny trading 

condition. The Exchange proposes to 

expand subpart (ii) in both Rules by 

replacing the term ‘‘exchange-listed 

exchange traded funds’’ with the term 

‘‘exchange-listed Derivative Securities 

Products’’ as that term is defined in 

NYSE Arca Equities Rule 7.34(a)(4)(A). 

The Exchange believes this rule 

change will foster increased liquidity by 

expanding the type of securities eligible 

for Market Order and Closing auctions. 

This proposed amendment is also 

consistent with Rules 4752 and 4754 of 

the Nasdaq Stock Market, L.L.C. 

(‘‘Nasdaq’’), which do not limit the 

securities or products that may be 

traded in the opening and closing 

auctions. 

2. Statutory Basis 

The proposed rule change is 

consistent with section 6(b) of the Act 


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55888 Federal Register / Vol. 73, No. 188 / Friday, September 26, 2008 / Notices 

4 15 U.S.C. 78s(b)(3)(A). 

5 17 CFR 240.19b–4(f)(6). 

6 In addition, Rule 19b–4(f)(6)(iii) requires the 

self-regulatory organization to give the Commission 

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. NYSE Arca has satisfied this 

requirement. 

7For 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). 

8See Securities Exchange Act Release No. 54155 

(July 14, 2006), 71 FR 41291 (July 20, 2006) (SR– 

NASDAQ–2006–001) (approving, among other 

things, Nasdaq Rules 4752 and 4754.) 

9 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3NYSE Euronext, the ultimate parent company of 

the Exchange, has agreed to acquire the Amex 

pursuant to an Agreement and Plan of Merger, 

dated as of January 17, 2008. After the closing of 

the Merger, the Amex will be renamed NYSE 

Alternext US LLC. 

4See Securities Exchange Act Release No. 58297 

(August 4, 2008), 73 FR 46683. 

in general, and furthers the objectives of 

section 6(b)(5) 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 mechanism of a free and 

open market and a national market 

system. This proposed rule change will 

foster increased liquidity by expanding 

the type of securities eligible for Market 

Order and Closing auctions. 

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 

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 

The proposed rule change has become 

effective pursuant to section 19(b)(3)(A) 

of the Act 4 and Rule 19b–4(f)(6) 

thereunder 5 because the foregoing 

proposed rule: (1) Does not significantly 

affect the protection of investors or the 

public interest; (2) does not impose any 

significant burden on competition; and 

(3) does not become operative for 30 

days after the date of filing, or such 

shorter time as the Commission may 

designate if consistent with the 

protection of investors and the public 

interest.6 The Exchange notes that this 

filing does not propose any new policies 

or provisions that are unique or 

unproven, and is consistent with 

Nasdaq Rules 4752 and 4754. 

The Exchange has asked the 

Commission to waive the 30-day 

operative delay and designate the 

proposed rule change as operative upon 

filing. The Commission hereby grants 

the Exchange’s request.7 The 

Commission believes that such action is 

consistent with the protection of 

investors and the public interest 

because the Exchange’s proposal is 

similar to that of another exchange that 

was previously approved by the 

Commission.8

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–NYSEArca–2008–98 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–NYSEArca–2008–98. 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–NYSEArca–2008–98 and 

should be submitted on or before 

October 17, 2008. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.9

Florence E. Harmon, 

Acting Secretary. 

[FR Doc. E8–22654 Filed 9–25–08; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–58598; File No. SR– 

NYSEArca–2008–78] 

Self-Regulatory Organizations; NYSE 

Arca, Inc.; Order Approving Proposed 

Rule Change To Waive Annual Fees for 

Securities Transferring to NYSE Arca 

From NYSE Alternext US 

September 19, 2008. 

I. Introduction 

On July 23, 2008, NYSE Arca, Inc. 

(‘‘NYSE Arca’’ or ‘‘Exchange’’) filed 

with the Securities and Exchange 

Commission (‘‘Commission’’), pursuant 

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

Exchange Act of 1934 (‘‘Act’’),1 and 

Rule 19b–4 thereunder,2 a proposed rule 

change to waive annual listing fees for 

securities transferring to NYSE Arca 

from NYSE Alternext US after the 

closing of the purchase of the American 

Stock Exchange LLC (‘‘Amex’’) by NYSE 

Euronext (the ‘‘Merger’’).3 The proposed 

rule change was published in the 

Federal Register on August 11, 2008.4


jlentini on PROD1PC65 with NOTICES