Self-Regulatory Organizations; Notice of Filing and Immediate Effectiveness of Proposed Rule Change by NYSE Alternext US LLC To Extend Its Temporary Program Relating to Section 31-Related Funds, 69712-69714 [E8-27426]
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Federal Register / Vol. 73, No. 224 / Wednesday, November 19, 2008 / Notices
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transferring from another exchange,
serve as a means for an exchange to
screen issuers and to provide listed
status only to bona fide companies that
have sufficient public float, investor
base, and trading interest to provide the
depth and liquidity necessary to
promote fair and orderly markets.
Adequate standards are especially
important given the expectations of
investors regarding exchange trading
and the imprimatur of listing on a
particular market. Once a security has
been approved for initial listing,
maintenance criteria allow an exchange
to monitor the status and trading
characteristics of that issue to ensure
that it continues to meet the exchange’s
standards for market depth and liquidity
so that fair and orderly markets can be
maintained.
The Commission believes that the
proposed rule change will provide a
means for a narrow category of
companies, whose common stock is
currently listed on NYSE Arca, to list on
the Exchange. In particular, for
companies that otherwise meet NYSE’s
distribution, market value, and price
listing requirements,15 the proposed
rule change will allow the Exchange the
discretion to list companies that meet
the proposed standards. In addition, the
Commission expects that the Exchange
will deny listing to any company
seeking to list pursuant to the proposed
rule change if the Exchange determines
that the listing of any such company is
not in the interests of the Exchange or
the public interest.
In accordance with the terms of the
proposed rule, the Exchange will apply
this standard only for the very narrow
category of companies, listed on NYSE
Arca as of October 1, 2008, that transfer
to the Exchange on or before March 31,
2009. Since NYSE Regulation’s
Financial Compliance and Corporate
Governance groups are responsible for
ongoing compliance reviews of both
NYSE and NYSE Arca companies, the
Commission believes the Exchange
should be sufficiently familiar with
companies seeking to transfer to be able
to determine if any such company is an
appropriate transfer candidate. While
the new standards are lower than those
previously applied to new NYSE
listings, the Commission believes that
the new criteria, coupled with the
15 Companies listing under this standard would
still have to meet all the requirements set forth in
Section 102.01A and the price listing requirement
in Section 102.01B. Those sections include
distribution, market value and price requirements.
The Commission believes that these requirements
will help ensure that the company has requisite
liquidity for listing on the Exchange. Companies
would also have to comply with all applicable
NYSE corporate governance requirements.
VerDate Aug<31>2005
15:14 Nov 18, 2008
Jkt 217001
existing applicable listing requirements
in Sections 102.01(A) and (B),16 should
help to ensure a minimum level of
depth and liquidity to maintain fair and
orderly markets.
In approving the proposal, the
Commission recognizes that the new
standard is applicable only to a small
segment of transfers from a single
market for a limited time. The
Commission believes that this is
reasonable and consistent with the Act
given the business plans of the
Exchange, but more importantly the
compliance expertise of NYSE staff in
evaluating the potential NYSE Arca
transfers. The Commission expects the
NYSE to only list those NYSE Arca
transfers which they believe, through
their past expertise reviewing these
companies, are suitable for trading on
the NYSE and the maintenance of fair
and orderly markets.
For the reasons set forth above, the
Commission finds that the proposed
rule change is consistent with the Act.
IV. Conclusion
It is therefore ordered, pursuant to
Section 19(b)(2) of the Act,17 that the
proposed rule change (SR–NYSE–2008–
97), as modified by Amendment No. 1,
be, and hereby is, approved.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.18
Florence E. Harmon,
Acting Secretary.
[FR Doc. E8–27424 Filed 11–18–08; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–58933; File No. SR–
NYSEALTR–2008–05]
Self-Regulatory Organizations; Notice
of Filing and Immediate Effectiveness
of Proposed Rule Change by NYSE
Alternext US LLC To Extend Its
Temporary Program Relating to
Section 31–Related Funds
November 12, 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 November
7, 2008, NYSE Alternext US LLC
16 Only the price requirement in 102.01B would
apply to NYSE Arca transfers. See supra note 8 and
accompanying text.
17 15 U.S.C. 78s(b)(2).
18 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.
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(‘‘NYSE Alternext’’ or the ‘‘Exchange’’)
filed with the Securities and Exchange
Commission the proposed rule changes
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 changes
from interested persons.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The NYSE Alternext, formerly known
as the American Stock Exchange LLC
(‘‘Amex’’), proposes to extend until
January 13, 2009 a temporary program,
which allows member firms to
voluntarily submit funds previously
accumulated by the member firms
pursuant to Rule 393 and not forwarded
to be subsequently used by the
Exchange to satisfy its obligation to
remit Section 31 fees to the
Commission.
The text of the proposed rule change
is available on the Exchange’s Web site
at www.nyse.com, at the Exchange’s
principal office, and at the
Commission’s Public Reference Room.
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 these statements may be examined at
the places specified in Item IV below.
NYSE Alternext 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
1. Purpose
Pursuant to Section 31 of the Act 4
and Commission Rule 31,5 NYSE
Alternext US and other national
securities exchanges are required to pay
a transaction fee to the Commission that
is designed to recover the costs related
to the government’s supervision and
regulation of the securities markets and
securities professionals. To offset this
obligation, NYSE Alternext US assesses
its clearing and self-clearing members a
regulatory fee in accordance with Rule
393, which mirrors Section 31 in both
4 15
5 17
U.S.C. 78ee.
CFR 240.31.
E:\FR\FM\19NON1.SGM
19NON1
Federal Register / Vol. 73, No. 224 / Wednesday, November 19, 2008 / Notices
scope and amount. Clearing members
may in turn seek to charge a fee to their
customers or correspondent firms. Any
allocation of the fee between the
clearing member and its correspondent
firm or customer is the responsibility of
the clearing member.
Reconciling the amounts reported to
the Exchange and the amounts collected
from the customers historically had
been difficult for member firms, causing
surpluses to accumulate at some
member firms (referred to as
‘‘accumulated funds’’). These
accumulated funds were not remitted to
the Exchange by certain members,
despite the fact that these charges may
have been previously identified as
‘‘Section 31 Fees’’ or ‘‘SEC Fee’’ by the
firms.6 In addition, since Amex used a
‘‘self-reporting’’ methodology for its
members to report and remit amounts
payable pursuant to Rule 393 prior to
the implementation of its billing system
in December 2007, the Exchange
accumulated amounts in excess of the
amounts due and paid by the Exchange
to the Commission pursuant to Section
31 and Rule 31 (‘‘Exchange accumulated
funds’’).
In May 2008, the Commission
approved the adoption of
Commentary.01 to Rule 393 that allows
firms, on a one-time-only basis,
voluntarily to remit historically
accumulated funds to the Exchange.
These funds will be used to pay the
Exchange’s current Section 31 fees in
conformity with prior representations
made by member firms. In addition, a
member or member organization may
designate all or part of the Exchange
accumulated excess held by the
Exchange and allocated to such member
be used by the Exchange in accordance
with the new Commentary to Rule 393.
Finally, to the extent the payment of
these historically accumulated funds or
Exchange accumulated funds is in
excess of the Section 31 fees due the
Commission from NYSE Alternext US,
such surplus shall be used by the
Exchange to offset regulatory costs.
In accordance with Rule 393,
Commentary.01 the effective dates of
the temporary program were from May
cprice-sewell on PROD1PC64 with NOTICES
6 The
Commission stated in its release adopting
new Rule 31 and Rule 31T that ‘‘it is misleading
to suggest that a customer or [self-regulatory
organization] member incurs an obligation to the
Commission under Section 31.’’ See Securities
Exchange Act Release No. 49928 (June 28, 2004), 69
FR 41060 (July 7, 2004). In response to this
statement, the Exchange issued a Notice to members
regarding its Rule 393 Fee and the SEC’s ‘‘Section
31 Fee’’, and provided guidance for members and
member organizations that choose to charge their
customers fees. See Amex Notice REG 2004–42
Finance (October 29, 2004).
VerDate Aug<31>2005
15:14 Nov 18, 2008
Jkt 217001
23, 2008 through October 23, 2008.7 In
the interest of providing member firms
with additional notice of the temporary
program and providing additional
opportunity for member firms to remit
historically accumulated funds in
accordance with such program, the
Exchange now proposes to extend the
program through January 13, 2009. The
Exchange believes that an extension of
its temporary program will permit the
Exchange to provide additional notice of
the program to members firms and will
provide a transparent way of addressing
the issue of accumulated funds held at
the member firm level and by the
Exchange.8
2. Statutory Basis
The proposed rule change is
consistent with Section 6(b) of the Act 9
in general and furthers the objectives of
Section 6(b)(5) of the Act 10 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,
to remove impediments to and perfect
the mechanism 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 an extension of its
temporary program until January 13,
2009 will permit the Exchange to
provide additional notice to member
firms regarding the program and will
provide a transparent way of addressing
the issue of accumulated funds held at
the member firm level and by the
Exchange.
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 purpose 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
Because the proposed rule change: (i)
Does not significantly affect the
protection of investors or the public
interest; (ii) does not impose any
significant burden on competition; and
(iii) does not become operative for 30
days after the date of the filing, 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 11 and Rule 19b–
4(f)(6) thereunder.12
The Exchange has requested that the
Commission waive the 30-day operative
delay in this case. The Commission
hereby grants the Exchange’s request
and believes that doing so is consistent
with the protection of investors and the
public interest. The Commission
previously found similar proposals from
other SROs to be consistent with the
Act.13 The Commission is not aware of
any issue that should cause it to revisit
those findings or preclude the
immediate operativeness of the
extension of the NYSE Alternext
proposal. The Commission notes that,
because the program is voluntary, it
imposes no obligation on any NYSE
Alternext member that believes that
accumulated funds should be retained
or disposed of in another manner. For
these reasons, the Commission
designates that the proposed rule
change become operative immediately
upon filing.14
At any time within 60 days of the
filing of the proposed rule change, the
Commission may summarily abrogate
11 15
U.S.C. 78s(b)(3)(A).
CFR 240.19b–4(f)(6). Pursuant to Rule 19b–
4(f)(6)(iii) under the Act, the Exchange is required
to give the Commission written 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. The Exchange
has satisfied this requirement.
13 See Securities Exchange Act Release No. 58108
(July 7, 2008), 73 FR 40413 (July 14, 2008) (SR–
NYSE–2007–64); Securities Exchange Act Release
No. 55886 (June 8, 2007), 72 FR 32935 (June 14,
2007) (SR–NASD–2007–027).
14 For purposes only of waiving the 30-day
operative delay, the Commission has considered the
proposed rule’s impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
12 17
7 See Securities Exchange Act Release No. 57829
(May 16, 2008), 73 FR 30173 (May 23, 2008) (SR–
Amex–2007–107) (order approving procedures
under Rule 393 regarding Section 31-related funds).
8 The Exchange notes that the date of proposed
termination of the program coincides with the
termination date of a similar temporary program
implemented by the New York Stock Exchange
LLC. See Securities Exchange Act Release No.
58108 (July 7, 2008), 73 FR 40413 (July 14, 2008)
(SR–NYSE–2007–64).
9 15 U.S.C. 78f(b).
10 15 U.S.C. 78f(b)(5).
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69713
E:\FR\FM\19NON1.SGM
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69714
Federal Register / Vol. 73, No. 224 / Wednesday, November 19, 2008 / Notices
the 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.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.15
Florence E. Harmon,
Acting Secretary.
[FR Doc. E8–27426 Filed 11–18–08; 8:45 am]
IV. Solicitation of Comments
BILLING CODE 8011–01–P
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
SMALL BUSINESS ADMINISTRATION
Data Collection Available for Public
Comments and Recommendations
Notice and request for
comments.
ACTION:
cprice-sewell on PROD1PC64 with NOTICES
SUMMARY: In accordance with the
Paperwork Reduction Act of 1995, this
notice announces the Small Business
Administration’s intentions to request
approval on a new and/or currently
approved information collection.
DATES: Submit comments on or before
Paper Comments
January 20, 2009.
ADDRESSES: Send all comments
• Send paper comments in triplicate
regarding whether this information
to Secretary, Securities and Exchange
collection is necessary for the proper
Commission, 100 F Street, NE.,
performance of the function of the
Washington, DC 20549–1090.
agency, whether the burden estimates
All submissions should refer to File
Number SR–NYSEALTR–2008–05. This are accurate, and if there are ways to
minimize the estimated burden and
file number should be included on the
subject line if e-mail is used. To help the enhance the quality of the collection, to
Jacqueline West, Assistant
Commission process and review your
Administrator, Office of 8(a) Review,
comments more efficiently, please use
only one method. The Commission will Small Business Administration, 409 3rd
post all comments on the Commission’s Street, SW., 8th floor, Wash., DC 20416.
FOR FURTHER INFORMATION CONTACT:
Internet Web site (https://www.sec.gov/
Jacqueline West, Assistant
rules/sro.shtml). Copies of the
Administrator, Office of 8(a) Program
submission, all subsequent
Review, 202–205–7521,
amendments, all written statements
jacqueline.west@sba.gov, Curtis B. Rich,
with respect to the proposed rule
Management Analyst, 202–205–7030,
change that are filed with the
curtis.rich@sba.gov.
Commission, and all written
communications relating to the
SUPPLEMENTARY INFORMATION: The
proposed rule change between the
information is necessary to determine
Commission and any person, other than whether HubZone eligibility
those that may be withheld from the
requirements are met and if the firm is
public in accordance with the
a small business; has a principal office
provisions of 5 U.S.C. 552, will be
in a HubZone; 35% of it’s employees
available for inspection and copying in
reside in a HubZone; and at least 51%
the Commission’s Public Reference
owned by U.S. citizens.
Room, on official business days between
Title: ‘‘HubZone Program Electronic
the hours of 10 a.m. and 3 p.m. Copies
Application; Recertification and
of the filing also will be available for
Program Examination.’’
inspection and copying at the principal
Description of Respondents: Small
office of the Exchange. All comments
Businesses Seeking Certification.
received will be posted without change;
Form Number: 2103.
the Commission does not edit personal
Annual Responses: 6,375.
identifying information from
Annual Burden: 10,725.
submissions. You should submit only
Jacqueline White,
information that you wish to make
Chief, Administrative Information Branch.
available publicly. All submissions
should refer to File Number SR–
[FR Doc. E8–27377 Filed 11–18–08; 8:45 am]
NYSEALTR–2008–05 and should be
BILLING CODE 8025–01–P
submitted on or before December 10,
2008.
15 15 17 CFR 200.30–3(a)(12).
15:14 Nov 18, 2008
Jkt 217001
[Public Notice 6430]
Termination of Statutory Debarment
Pursuant to Section 38(g)(4) of the
Arms Export Control Act for Interaero,
Inc.
ACTION:
• Use the Commission’s Internet
comment form (https://www.sec.gov/
rules/sro.shtml); or
• Send an e-mail to rulecomments@sec.gov. Please include File
Number SR–NYSEALTR–2008–05 on
the subject line.
VerDate Aug<31>2005
DEPARTMENT OF STATE
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Notice.
SUMMARY: Notice is hereby given that
the Department of State has terminated
the statutory debarment of Interaero,
Inc. pursuant to section 38(g)(4) of the
Arms Export Control Act (AECA) (22
U.S.C. 2778).
DATES: Effective November 19, 2008.
FOR FURTHER INFORMATION CONTACT:
David C. Trimble, Director, Office of
Defense Trade Controls Compliance,
Directorate of Defense Trade Controls,
Bureau of Political-Military Affairs,
Department of State (202) 663–2807.
SUPPLEMENTARY INFORMATION: Section
38(g)(4) of the AECA and section 127.11
of the International Traffic in Arms
Regulations (ITAR) prohibit the
issuance of export licenses or other
approvals to a person if that person, or
any party to the export, has been
convicted of violating the AECA and
certain other U.S. criminal statutes
enumerated at section 38(g)(1) of the
AECA and section 120.27 of the ITAR.
A person convicted of violating the
AECA is also subject to statutory
debarment under section 127.7 of the
ITAR.
In December 2004, Interaero, Inc. was
convicted of violating the AECA (U.S.
District Court, District of Columbia,
1:04–cr–00317–JGP–1). Based on this
conviction, Interaero, Inc. was
statutorily debarred pursuant to section
38(g)(4) of the AECA and section 127.7
of the ITAR and, thus, prohibited from
participating directly or indirectly in
exports of defense articles and defense
services. Notice of debarment was
published in the Federal Register (71
FR 5402, February 1, 2006).
Section 38(g)(4) of the AECA permits
termination of debarment after
consultation with the other appropriate
U.S. agencies and after a thorough
review of the circumstances
surrounding the conviction and a
finding that appropriate steps have been
taken to mitigate any law enforcement
concerns. As a condition of
reinstatement, Interaero will not be
involved in any way with the export of,
or otherwise trade in, United States
Munitions List items permanently.
Therefore, the Department of State has
determined that Interaero, Inc. has taken
appropriate steps to address the causes
of the violations and to mitigate any law
E:\FR\FM\19NON1.SGM
19NON1
]]>Agencies
[Federal Register Volume 73, Number 224 (Wednesday, November 19, 2008)]
[Notices]
[Pages 69712-69714]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-27426]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-58933; File No. SR-NYSEALTR-2008-05]
Self-Regulatory Organizations; Notice of Filing and Immediate
Effectiveness of Proposed Rule Change by NYSE Alternext US LLC To
Extend Its Temporary Program Relating to Section 31-Related Funds
November 12, 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 November 7, 2008, NYSE Alternext US LLC (``NYSE
Alternext'' or the ``Exchange'') filed with the Securities and Exchange
Commission the proposed rule changes 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
changes from interested persons.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 15 U.S.C. 78a.
\3\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------
I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The NYSE Alternext, formerly known as the American Stock Exchange
LLC (``Amex''), proposes to extend until January 13, 2009 a temporary
program, which allows member firms to voluntarily submit funds
previously accumulated by the member firms pursuant to Rule 393 and not
forwarded to be subsequently used by the Exchange to satisfy its
obligation to remit Section 31 fees to the Commission.
The text of the proposed rule change is available on the Exchange's
Web site at www.nyse.com, at the Exchange's principal office, and at
the Commission's Public Reference Room.
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 these statements may be examined at
the places specified in Item IV below. NYSE Alternext 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
1. Purpose
Pursuant to Section 31 of the Act \4\ and Commission Rule 31,\5\
NYSE Alternext US and other national securities exchanges are required
to pay a transaction fee to the Commission that is designed to recover
the costs related to the government's supervision and regulation of the
securities markets and securities professionals. To offset this
obligation, NYSE Alternext US assesses its clearing and self-clearing
members a regulatory fee in accordance with Rule 393, which mirrors
Section 31 in both
[[Page 69713]]
scope and amount. Clearing members may in turn seek to charge a fee to
their customers or correspondent firms. Any allocation of the fee
between the clearing member and its correspondent firm or customer is
the responsibility of the clearing member.
---------------------------------------------------------------------------
\4\ 15 U.S.C. 78ee.
\5\ 17 CFR 240.31.
---------------------------------------------------------------------------
Reconciling the amounts reported to the Exchange and the amounts
collected from the customers historically had been difficult for member
firms, causing surpluses to accumulate at some member firms (referred
to as ``accumulated funds''). These accumulated funds were not remitted
to the Exchange by certain members, despite the fact that these charges
may have been previously identified as ``Section 31 Fees'' or ``SEC
Fee'' by the firms.\6\ In addition, since Amex used a ``self-
reporting'' methodology for its members to report and remit amounts
payable pursuant to Rule 393 prior to the implementation of its billing
system in December 2007, the Exchange accumulated amounts in excess of
the amounts due and paid by the Exchange to the Commission pursuant to
Section 31 and Rule 31 (``Exchange accumulated funds'').
---------------------------------------------------------------------------
\6\ The Commission stated in its release adopting new Rule 31
and Rule 31T that ``it is misleading to suggest that a customer or
[self-regulatory organization] member incurs an obligation to the
Commission under Section 31.'' See Securities Exchange Act Release
No. 49928 (June 28, 2004), 69 FR 41060 (July 7, 2004). In response
to this statement, the Exchange issued a Notice to members regarding
its Rule 393 Fee and the SEC's ``Section 31 Fee'', and provided
guidance for members and member organizations that choose to charge
their customers fees. See Amex Notice REG 2004-42 Finance (October
29, 2004).
---------------------------------------------------------------------------
In May 2008, the Commission approved the adoption of Commentary.01
to Rule 393 that allows firms, on a one-time-only basis, voluntarily to
remit historically accumulated funds to the Exchange. These funds will
be used to pay the Exchange's current Section 31 fees in conformity
with prior representations made by member firms. In addition, a member
or member organization may designate all or part of the Exchange
accumulated excess held by the Exchange and allocated to such member be
used by the Exchange in accordance with the new Commentary to Rule 393.
Finally, to the extent the payment of these historically accumulated
funds or Exchange accumulated funds is in excess of the Section 31 fees
due the Commission from NYSE Alternext US, such surplus shall be used
by the Exchange to offset regulatory costs.
In accordance with Rule 393, Commentary.01 the effective dates of
the temporary program were from May 23, 2008 through October 23,
2008.\7\ In the interest of providing member firms with additional
notice of the temporary program and providing additional opportunity
for member firms to remit historically accumulated funds in accordance
with such program, the Exchange now proposes to extend the program
through January 13, 2009. The Exchange believes that an extension of
its temporary program will permit the Exchange to provide additional
notice of the program to members firms and will provide a transparent
way of addressing the issue of accumulated funds held at the member
firm level and by the Exchange.\8\
---------------------------------------------------------------------------
\7\ See Securities Exchange Act Release No. 57829 (May 16,
2008), 73 FR 30173 (May 23, 2008) (SR-Amex-2007-107) (order
approving procedures under Rule 393 regarding Section 31-related
funds).
\8\ The Exchange notes that the date of proposed termination of
the program coincides with the termination date of a similar
temporary program implemented by the New York Stock Exchange LLC.
See Securities Exchange Act Release No. 58108 (July 7, 2008), 73 FR
40413 (July 14, 2008) (SR-NYSE-2007-64).
---------------------------------------------------------------------------
2. Statutory Basis
The proposed rule change is consistent with Section 6(b) of the Act
\9\ in general and furthers the objectives of Section 6(b)(5) of the
Act \10\ 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, to remove
impediments to and perfect the mechanism 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 an extension of its
temporary program until January 13, 2009 will permit the Exchange to
provide additional notice to member firms regarding the program and
will provide a transparent way of addressing the issue of accumulated
funds held at the member firm level and by the Exchange.
---------------------------------------------------------------------------
\9\ 15 U.S.C. 78f(b).
\10\ 15 U.S.C. 78f(b)(5).
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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 purpose 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
Because the proposed rule change: (i) Does not significantly affect
the protection of investors or the public interest; (ii) does not
impose any significant burden on competition; and (iii) does not become
operative for 30 days after the date of the filing, 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 \11\ and
Rule 19b-4(f)(6) thereunder.\12\
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\11\ 15 U.S.C. 78s(b)(3)(A).
\12\ 17 CFR 240.19b-4(f)(6). Pursuant to Rule 19b-4(f)(6)(iii)
under the Act, the Exchange is required to give the Commission
written 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.
The Exchange has satisfied this requirement.
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The Exchange has requested that the Commission waive the 30-day
operative delay in this case. The Commission hereby grants the
Exchange's request and believes that doing so is consistent with the
protection of investors and the public interest. The Commission
previously found similar proposals from other SROs to be consistent
with the Act.\13\ The Commission is not aware of any issue that should
cause it to revisit those findings or preclude the immediate
operativeness of the extension of the NYSE Alternext proposal. The
Commission notes that, because the program is voluntary, it imposes no
obligation on any NYSE Alternext member that believes that accumulated
funds should be retained or disposed of in another manner. For these
reasons, the Commission designates that the proposed rule change become
operative immediately upon filing.\14\
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\13\ See Securities Exchange Act Release No. 58108 (July 7,
2008), 73 FR 40413 (July 14, 2008) (SR-NYSE-2007-64); Securities
Exchange Act Release No. 55886 (June 8, 2007), 72 FR 32935 (June 14,
2007) (SR-NASD-2007-027).
\14\ For purposes only of waiving the 30-day operative delay,
the Commission has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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At any time within 60 days of the filing of the proposed rule
change, the Commission may summarily abrogate
[[Page 69714]]
the 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 (https://
www.sec.gov/rules/sro.shtml); or
Send an e-mail to rule-comments@sec.gov. Please include
File Number SR-NYSEALTR-2008-05 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-NYSEALTR-2008-05. 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 (https://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, 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-NYSEALTR-2008-05 and should be submitted on or before
December 10, 2008.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\15\
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\15\ 15 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-27426 Filed 11-18-08; 8:45 am]
BILLING CODE 8011-01-P
