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


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Federal Register / Vol. 73, No. 188 / Friday, September 26, 2008 / Notices 55889 

5 15 U.S.C. 78f(b)(4). 

6 15 U.S.C. 78f(b)(5). 

7 In approving this proposed rule change, the 

Commission notes that it has considered the 

proposed rules’ impact on efficiency, competition, 

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

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). 

The Commission received no comments 

on the proposal. This order approves the 

proposed rule change. 

II. Description of the Proposal 

The Exchange proposes that securities 

transferring to NYSE Arca from NYSE 

Alternext US after the closing of the 

Merger will not be charged any prorated 

annual fee for the remainder of the year 

in which the Merger takes place. The fee 

waiver in the preceding sentence will be 

of no further effect if the closing of the 

Merger does not take place by March 31, 

2009. 

The Exchange believes this proposed 

fee waiver does not render the 

allocation of its listing fees inequitable 

or unfairly discriminatory, in particular 

because, after the Merger, NYSE 

Regulation, Inc. (‘‘NYSE Regulation’’) 

will perform listed company regulation 

for both the Exchange and NYSE 

Alternext US, including a substantial 

review of companies upon original 

listing. The Exchange notes that many of 

the regulatory staff who currently 

perform initial and continued listing 

reviews at the Amex will become 

employees of NYSE Regulation at the 

time of the Merger and will continue to 

perform the same duties with respect to 

NYSE Alternext US securities after the 

Merger. The Exchange represents that 

securities transferring from NYSE 

Alternext US will be subjected to the 

same rigorous regulatory review as any 

other securities with respect to which 

an application for listing is made to the 

Exchange. However, the Exchange 

expects that, on average, the review of 

securities transferring from NYSE 

Alternext US to the Exchange will be 

less costly than the review of a transfer 

from an unaffiliated market, as the 

Amex listing regulatory staff that will 

have been absorbed by NYSE Regulation 

will already have performed a 

substantial review of any NYSE 

Alternext US-listed issuer, and NYSE 

Regulation will be able to rely on that 

prior work as a baseline in qualifying 

the issuer for listing on the Exchange 

and in conducting ongoing compliance 

activities with respect to any such 

issuer. In support of its proposal, the 

Exchange also notes that transferring 

issuers would have already paid annual 

continued listing fees to the Amex for 

the calendar year in which the transfer 

took place. 

III. Discussion 

The Commission finds that the 

proposed rule change is consistent with 

the requirements of the Act and the 

rules and regulations thereunder 

applicable to a national securities 

exchange and, in particular, the 

requirements of section 6(b) of the Act 

and the rules and regulations 

thereunder. Specifically, the 

Commission finds that the proposal is 

consistent with sections 6(b)(4) 5 and 

6(b)(5) of the Act,6 which require that an 

exchange have rules that provide for the 

equitable allocation of reasonable dues, 

fees, and other charges among its 

members and other persons using its 

facilities, and are designed, among other 

things, to promote just and equitable 

principles of trade, to remove 

impediments to and perfect the 

mechanism of a free and open market 

and a national market system, to protect 

investors and the public interest, and to 

not permit unfair discrimination 

between customers, issuers, brokers, or 

dealers.7

National securities exchanges 

traditionally assess annual listing fees 

on listed companies at the beginning of 

the calendar year. When a company 

transfers to another marketplace, such 

annual fees are typically pro-rated by 

the new market for the remainder of the 

calendar year. Annual fees aid a listed 

market in, among other things, 

conducting its regulatory 

responsibilities to ensure compliance by 

listed companies with continued listing 

standards and other regulatory 

requirements. The Commission notes 

that an Amex issuer seeking to transfer 

to the Exchange has already paid annual 

continued listing fees to another 

national securities exchange for the 

calendar year in which it transferred. 

Further, the Commission recognizes that 

subsequent to the consummation of the 

Merger, both Amex as NYSE Alternext 

US and NYSE Arca will be under the 

same common ownership. The 

Commission also notes that the 

Exchange anticipates the review of 

securities transferring from NYSE 

Alternext US to be less costly than the 

review of a transfer from an unaffiliated 

market, because Amex listing regulatory 

staff that will be part of NYSE 

Regulation will continue to perform 

both initial and continued listing 

reviews. However, 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. 

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. 

In summary, for the reasons set forth 

above, including NYSE Arca’s assertion 

that the same regulatory staff on Amex 

(that will have been absorbed by NYSE 

Regulation) will have conducted a 

substantial review of an Amex company 

that NYSE Regulation will be able to 

rely upon as a baseline in qualifying the 

company for listing on the Exchange 

and in conducting ongoing compliance 

activities with respect to any such 

company, the Commission believes it is 

not inequitable or unfair to provide for 

a waiver of annual fees for a limited 

period of time after the merger is 

consummated. 

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–NYSEArca– 

2008–78) 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. E8–22655 Filed 9–25–08; 8:45 am] 

BILLING CODE 8010–01–P 


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