Self-Regulatory Organizations; Notice of Filing and Immediate Effectiveness of Proposed Rule Change by New York Stock Exchange LLC Amending the Exchange's Timely Alert Policy, 20516-20518 [E9-10119]

Download as PDF 20516 Federal Register / Vol. 74, No. 84 / Monday, May 4, 2009 / Notices Nasdaq believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,7 in general, and with Section 6(b)(5) of the Act,8 in particular, in that the proposal 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 regulating, clearing, settling, processing information with respect to, and 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. As one of seven options market in the national market system, Nasdaq’s fees must be competitive and low in order for Nasdaq to attract order flow, execute orders, and grow as a market. Nasdaq believes that its fees are fair and reasonable and consistent with the Exchange Act. B. Self-Regulatory Organization’s Statement on Burden on Competition Nasdaq 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. To the contrary, Nasdaq has designed its fees to compete effectively for the execution of options contracts and to reduce the overall cost to investors of options trading. 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. tjames on PRODPC75 with NOTICES III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Pursuant to Section 19(b)(3)(A)(ii) of the Act 9 and Rule 19b–4(f)(2) thereunder,10 Nasdaq has designated this proposal as establishing or changing a due, fee, or other charge applicable only to members, which renders the proposed rule change effective upon filing. Nasdaq will make the proposed pricing schedule operational on April 13, 2009. 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 7 15 U.S.C. 78f. U.S.C. 78f(b)(5). 9 15 U.S.C. 78s(b)(3)(A)(ii). 10 17 CFR 240.19b–4(f)(2). 8 15 VerDate Nov<24>2008 15:26 May 01, 2009 Jkt 217001 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 rulecomments@sec.gov. Please include File Number SR–NASDAQ–2009–034 on the subject line. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.11 Florence E. Harmon, Deputy Secretary. [FR Doc. E9–10118 Filed 5–1–09; 8:45 am] BILLING CODE 8010–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–59823; File No. SR–NYSE– 2009–40] Self-Regulatory Organizations; Notice of Filing and Immediate Effectiveness of Proposed Rule Change by New York Stock Exchange LLC Amending the Exchange’s Timely Alert Policy April 27, 2009. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the ‘‘Act’’),1 and Rule 19b–4 thereunder,2 Paper Comments notice is hereby given that on April 8, • Send paper comments in triplicate 2009, New York Stock Exchange, LLC to Elizabeth M. Murphy, Secretary, (‘‘NYSE’’ or the ‘‘Exchange’’) filed with Securities and Exchange Commission, the Securities and Exchange 100 F Street, NE., Washington DC Commission (the ‘‘Commission’’ or 20549–1090. ‘‘SEC’’) the proposed rule change as described in Items I, II, and III below, All submissions should refer to File which Items have been prepared by the Number SR–NASDAQ–2009–034. This Exchange. The Commission is file number should be included on the subject line if e-mail is used. To help the publishing this notice to solicit comments on the proposed rule change Commission process and review your from interested persons. comments more efficiently, please use only one method. The Commission will I. Self-Regulatory Organization’s post all comments on the Commission’s Statement of the Terms of Substance of Internet Web site (https://www.sec.gov/ the Proposed Rule Change rules/sro.shtml). Copies of the The Exchange proposes to amend submission, all subsequent Section 202.06 of the Listed Company amendments, all written statements Manual to provide that companies can with respect to the proposed rule comply with the Exchange’s immediate change that are filed with the release policy by disseminating the Commission, and all written information by any Regulation Fair communications relating to the Disclosure (‘‘Regulation FD’’) compliant proposed rule change between the Commission and any person, other than method (or combination of methods). The text of the proposed rule change is those that may be withheld from the available at the Exchange, the public in accordance with the Commission’s Public Reference Room, provisions of 5 U.S.C. 552, will be and https://www.nyse.com. available for inspection and copying in the Commission’s Public Reference II. Self-Regulatory Organization’s Room, 100 F Street, NE., Washington, Statement of the Purpose of, and DC 20549, on official business days Statutory Basis for, the Proposed Rule between the hours of 10 a.m. and 3 p.m. Change Copies of such filing also will be In its filing with the Commission, the available for inspection and copying at self-regulatory organization included the principal office of the Exchange. All statements concerning the purpose of, comments received will be posted and basis for, the proposed rule change without change; the Commission does and discussed any comments it received not edit personal identifying on the proposed rule change. The text information from submissions. You of those statements may be examined at should submit only information that the places specified in Item IV below. you wish to make available publicly. All submissions should refer to File No. 11 17 CFR 200.30–3(a)(12). SR–NASDAQ–2009–034 and should be 1 15 U.S.C. 78s(b)(1). submitted on or before May 26, 2009. 2 17 CFR 240.19b–4. PO 00000 Frm 00067 Fmt 4703 Sfmt 4703 E:\FR\FM\04MYN1.SGM 04MYN1 Federal Register / Vol. 74, No. 84 / Monday, May 4, 2009 / Notices 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 tjames on PRODPC75 with NOTICES 1. Purpose Section 202.05 of the Listed Company Manual requires a listed company to release quickly to the public any news or information which might reasonably be expected to materially effect the market for its securities (the ‘‘immediate release policy’’). Section 202.06 provides that companies should comply with the immediate release policy by issuing a press release. Regulation FD was adopted by the SEC in 2000 in order to curb the selective disclosure of material nonpublic information by issuers to analysts and institutional investors.3 Generally, Regulation FD requires that when an issuer discloses material information, it do so publicly. Public disclosure under Regulation FD can be accomplished by filing a Form 8–K with the SEC or through another method of disclosure that is reasonably designed to provide broad, non-exclusionary distribution of the information to the public. In addition to a broadly disseminated press release, Regulation FD compliant methods of disclosure may include furnishing to or filing with the SEC a Form 8–K as well as conference calls, press conferences and webcasts, so long as the public is provided adequate notice (generally by press release) and granted access.4 Since the adoption of Regulation FD, some non-NYSE listed companies have adopted the practice of issuing material disclosures in a Form 8–K rather than by way of a press release. It has been the Exchange’s experience that some companies are confused as to their disclosure obligations under Exchange rules, with companies sometimes assuming that a disclosure in a Form 8–K is sufficient to comply with the Exchange’s immediate release policy. Furthermore, some companies that do understand the Exchange’s press release requirements have expressed the view that a press release is redundant when the company is filing a Form 8–K to meet its Regulation FD requirements. In addition, some companies wish to publicize material news through the 3 See Securities Exchange Act Release No. 43154 (August 15, 2000), 65 FR 51716 (August 24, 2000) (‘‘Regulation FD Adopting Release’’). 4 See Regulation FD Adopting Release at pages 51723–51724. VerDate Nov<24>2008 15:26 May 01, 2009 Jkt 217001 company website, as the SEC has provided recent guidance that this approach is appropriate under certain circumstances.5 The Exchange now proposes to amend Section 202.06 to provide that companies may comply with the immediate release policy by disseminating the information using any method (or combination of methods) that constitutes compliance with Regulation FD. Foreign private issuers are subject to the timely alert policy but they are not required to comply with Regulation FD. Notwithstanding their exemption from Regulation FD, Section 202.06 will allow foreign private issuers to comply with the timely alert policy by any method (or combination of methods) that would constitute compliance with Regulation FD for a domestic U.S. issuer. While the Exchange continues to believe that there are benefits to the market and investors generally if companies issue press releases when disclosing material information, the Exchange nonetheless believes that it is appropriate to harmonize its requirements in this regard with Regulation FD and Nasdaq rules thereby eliminating the confusion inherent in having different regimes applied by the two largest listing exchanges and the SEC.6 The Exchange believes that many companies will continue to issue press releases in relation to material news events, but also believes that it is appropriate to enable companies to utilize the flexibility and discretion with respect to the method of disclosure provided by Regulation FD. Section 202.06(B) currently provides that, when the announcement of news of a material event or a statement dealing with a rumor which calls for immediate release is made shortly before the opening or during market hours (9:30 a.m. to 5 p.m., New York time 7), it is recommended that the company’s Exchange representative be notified by telephone at least ten minutes prior to release of the announcement. This timely notification enables the Exchange to consider whether, in the opinion of the Exchange, trading in the security should be temporarily halted.8 The Exchange 5 See Securities Exchange Act Release No. 58288 (August 1, 2008), 73 FR 45862 (August 7, 2008). 6 See Securities Exchange Act Release No. 46288 (July 31, 2002), 67 FR 51306 (August 7, 2002) (SR– NASD–2002–85) (the ‘‘Nasdaq Amendment’’). 7 While the NYSE’s trading day ends officially at 4 p.m., New York time, there are crossing sessions until 5 p.m., New York time. 8 See NYSE Rule 123D(1) for the Exchange’s procedures with respect to delayed openings and trading halts pending dissemination of material news. PO 00000 Frm 00068 Fmt 4703 Sfmt 4703 20517 proposes to amend this text to make it clear that the notification to the Exchange of such announcements is a requirement of the rule and not just a recommendation. In addition, the Exchange proposes to amend Section 202.06(B) to require the listed company when contacting the Exchange to disclose to the Exchange the substance of the announcement, identify to the Exchange the Regulation FD-compliant method it intends to use to disseminate the news and provide the Exchange with the information necessary to locate the information upon publication. The rule is also amended to require the company, when the announcement is in written form, to provide the text of the proposed announcement to the Exchange by email at the time it notifies the Exchange. The Exchange will continue to evaluate the materiality of these disclosures and implement temporary trading halts, where appropriate, to facilitate the orderly dissemination of certain issuer announcements having a potentially material impact on the price of the securities. The Exchange is also proposing several other minor changes to Section 202.06. The Exchange is adding a parenthetical to Section 202.06(B), referring readers to Exchange Rule 123D(1) for the Exchange’s policies with respect to delayed openings and trading halts. Additionally, Section 202.06(C) is being amended (i) to provide that public disclosures which may significantly affect trading should be provided to the Exchange by e-mail rather than by facsimile as is currently the case and (ii) to conform to the change to Section 202.06(B) by providing that material news may be disseminated by any Regulation FD compliant method and not just by press release. 2. Statutory Basis The Exchange believes the proposed rule change is consistent with and furthers the objectives of Section 6(b)(5) of the Act,9 in that it is designed to prevent fraudulent and manipulative practices, to promote just and equitable principles of trade,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.10 9 15 U.S.C. 78f(b)(5). Commission notes that, in the purpose section of the Form 19b–4, the Exchange provided a more complete statutory basis for the proposed rule change, as follows: The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Securities Exchange Act of 1934 (the 10 The E:\FR\FM\04MYN1.SGM Continued 04MYN1 20518 Federal Register / Vol. 74, No. 84 / Monday, May 4, 2009 / Notices 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. tjames on PRODPC75 with NOTICES III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act 11 and Rule 19b–4(f)(6) thereunder.12 Because the 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.13 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. ‘‘Act’’), in general, and furthers the objectives of Section 6(b)(5) of the Act, in particular in that it is designed to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and 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 the proposed amendment is consistent with the investor protection objectives of the Act in that it harmonizes the Exchange’s immediate release policies with the SEC’s requirements in Regulation FD. 11 15 U.S.C. 78s(b)(3)(A)(iii). 12 17 CFR 240.19b–4(f)(6). 13 The Commission notes that 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. VerDate Nov<24>2008 15:26 May 01, 2009 Jkt 217001 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 rulecomments@sec.gov. Please include File Number SR–NYSE–2009–40 on the subject line. Paper Comments • Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.14 Florence E. Harmon, Deputy Secretary. [FR Doc. E9–10119 Filed 5–1–09; 8:45 am] BILLING CODE 8010–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–59824; File No. SR–CBOE– 2009–018] Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Order Approving Proposed Rule Change To Permanently Establish the Short Term Option Series Pilot Program April 27, 2009. On March 13, 2009, the Chicago Board Options Exchange, Incorporated (‘‘Exchange’’ or ‘‘CBOE’’) filed with the Securities and Exchange Commission (‘‘Commission’’), pursuant to Section 19(b)(1) of the Securities Exchange Act All submissions should refer to File of 1934 (‘‘Act’’),1 and Rule 19b–4 Number SR–NYSE–2009–40. This file thereunder,2 a proposed rule change to number should be included on the permanently establish its Short Term subject line if e-mail is used. To help the Option Series pilot program (the Commission process and review your ‘‘Weeklys Program’’). The proposed rule comments more efficiently, please use change was published for comment in only one method. The Commission will the Federal Register on March 26, post all comments on the Commission’s 2009.3 The Commission received no Internet Web site (https://www.sec.gov/ comment letters on the proposed rule rules/sro.shtml). Copies of the change. This order approves the submission, all subsequent proposed rule change. amendments, all written statements The Commission approved the Weeklys Program on a pilot basis on with respect to the proposed rule July 12, 2005.4 The proposed rule change that are filed with the change permanently establishes the Commission, and all written Weeklys Program. The proposal also communications relating to the consolidates the subsections of Rules proposed rule change between the Commission and any person, other than 5.5 and 24.9 and make conforming, nonthose that may be withheld from the 14 17 CFR 200.30–3(a)(12). public in accordance with the 1 15 U.S.C. 78s(b)(1). provisions of 5 U.S.C. 552, will be 2 17 CFR 240.19b–4. 3 See Securities Exchange Act Release No. 59601 available for inspection and copying in (March 19, 2009), 74 FR 13281. the Commission’s Public Reference 4 See Securities Exchange Act Release No. 52011 Room, on official business days between (July 12, 2005), 70 FR 41451 (July 19, 2005) (SR– the hours of 10 a.m. and 3 p.m. Copies CBOE–2004–63) (‘‘Weeklys Pilot Program Approval of the filing also will be available for Order’’). The Weeklys Program has since been extended and is currently scheduled to expire on inspection and copying at the principal July 12, 2009. See Securities Exchange Act Release office of the Exchange. All comments Nos. 53984 (June 14, 2006), 71 FR 35718 (June 21, received will be posted without change; 2006) (SR–CBOE–2006–48), 56050 (July 11, 2007), 72 FR 39472 (July 18, 2007) (SR–CBOE–2007–76); the Commission does not edit personal and 58094 (July 3, 2008), 73 FR 40000 (July 11, identifying information from 2008) (SR–CBOE–2008–70). See also Securities submissions. You should submit only Exchange Act Release Nos. 54338 (August 21, 2006), 71 FR 50952 (August 28, 2006) (SR–CBOE– information that you wish to make 2006–49) (order approving an increase in the available publicly. All submissions number of series that may be listed for a class should refer to File Number SR–NYSE– selected to participate in the Weeklys Program from 2009–40 and should be submitted on or five to seven) and 58870 (October 28, 2008), 73 FR 65430 (November 3, 2008) (SR–CBOE–2008–110) before May 26, 2009. PO 00000 (immediately effective rule change increasing the number of series that may be listed for a classes selected to participate in the Weeklys Program from seven series to 20 series). Frm 00069 Fmt 4703 Sfmt 4703 E:\FR\FM\04MYN1.SGM 04MYN1

Agencies

[Federal Register Volume 74, Number 84 (Monday, May 4, 2009)]
[Notices]
[Pages 20516-20518]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-10119]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59823; File No. SR-NYSE-2009-40]


 Self-Regulatory Organizations; Notice of Filing and Immediate 
Effectiveness of Proposed Rule Change by New York Stock Exchange LLC 
Amending the Exchange's Timely Alert Policy

April 27, 2009.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given 
that on April 8, 2009, New York Stock Exchange, LLC (``NYSE'' or the 
``Exchange'') filed with the Securities and Exchange Commission (the 
``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.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend Section 202.06 of the Listed Company 
Manual to provide that companies can comply with the Exchange's 
immediate release policy by disseminating the information by any 
Regulation Fair Disclosure (``Regulation FD'') compliant method (or 
combination of methods). The text of the proposed rule change is 
available at the Exchange, the Commission's Public Reference Room, and 
https://www.nyse.com.

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.

[[Page 20517]]

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
    Section 202.05 of the Listed Company Manual requires a listed 
company to release quickly to the public any news or information which 
might reasonably be expected to materially effect the market for its 
securities (the ``immediate release policy''). Section 202.06 provides 
that companies should comply with the immediate release policy by 
issuing a press release.
    Regulation FD was adopted by the SEC in 2000 in order to curb the 
selective disclosure of material non-public information by issuers to 
analysts and institutional investors.\3\ Generally, Regulation FD 
requires that when an issuer discloses material information, it do so 
publicly. Public disclosure under Regulation FD can be accomplished by 
filing a Form 8-K with the SEC or through another method of disclosure 
that is reasonably designed to provide broad, non-exclusionary 
distribution of the information to the public. In addition to a broadly 
disseminated press release, Regulation FD compliant methods of 
disclosure may include furnishing to or filing with the SEC a Form 8-K 
as well as conference calls, press conferences and webcasts, so long as 
the public is provided adequate notice (generally by press release) and 
granted access.\4\
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    \3\ See Securities Exchange Act Release No. 43154 (August 15, 
2000), 65 FR 51716 (August 24, 2000) (``Regulation FD Adopting 
Release'').
    \4\ See Regulation FD Adopting Release at pages 51723-51724.
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    Since the adoption of Regulation FD, some non-NYSE listed companies 
have adopted the practice of issuing material disclosures in a Form 8-K 
rather than by way of a press release. It has been the Exchange's 
experience that some companies are confused as to their disclosure 
obligations under Exchange rules, with companies sometimes assuming 
that a disclosure in a Form 8-K is sufficient to comply with the 
Exchange's immediate release policy. Furthermore, some companies that 
do understand the Exchange's press release requirements have expressed 
the view that a press release is redundant when the company is filing a 
Form 8-K to meet its Regulation FD requirements. In addition, some 
companies wish to publicize material news through the company website, 
as the SEC has provided recent guidance that this approach is 
appropriate under certain circumstances.\5\
---------------------------------------------------------------------------

    \5\ See Securities Exchange Act Release No. 58288 (August 1, 
2008), 73 FR 45862 (August 7, 2008).
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    The Exchange now proposes to amend Section 202.06 to provide that 
companies may comply with the immediate release policy by disseminating 
the information using any method (or combination of methods) that 
constitutes compliance with Regulation FD. Foreign private issuers are 
subject to the timely alert policy but they are not required to comply 
with Regulation FD. Notwithstanding their exemption from Regulation FD, 
Section 202.06 will allow foreign private issuers to comply with the 
timely alert policy by any method (or combination of methods) that 
would constitute compliance with Regulation FD for a domestic U.S. 
issuer. While the Exchange continues to believe that there are benefits 
to the market and investors generally if companies issue press releases 
when disclosing material information, the Exchange nonetheless believes 
that it is appropriate to harmonize its requirements in this regard 
with Regulation FD and Nasdaq rules thereby eliminating the confusion 
inherent in having different regimes applied by the two largest listing 
exchanges and the SEC.\6\\\ The Exchange believes that many companies 
will continue to issue press releases in relation to material news 
events, but also believes that it is appropriate to enable companies to 
utilize the flexibility and discretion with respect to the method of 
disclosure provided by Regulation FD.
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    \6\ See Securities Exchange Act Release No. 46288 (July 31, 
2002), 67 FR 51306 (August 7, 2002) (SR-NASD-2002-85) (the ``Nasdaq 
Amendment'').
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    Section 202.06(B) currently provides that, when the announcement of 
news of a material event or a statement dealing with a rumor which 
calls for immediate release is made shortly before the opening or 
during market hours (9:30 a.m. to 5 p.m., New York time \7\), it is 
recommended that the company's Exchange representative be notified by 
telephone at least ten minutes prior to release of the announcement. 
This timely notification enables the Exchange to consider whether, in 
the opinion of the Exchange, trading in the security should be 
temporarily halted.\8\ The Exchange proposes to amend this text to make 
it clear that the notification to the Exchange of such announcements is 
a requirement of the rule and not just a recommendation. In addition, 
the Exchange proposes to amend Section 202.06(B) to require the listed 
company when contacting the Exchange to disclose to the Exchange the 
substance of the announcement, identify to the Exchange the Regulation 
FD-compliant method it intends to use to disseminate the news and 
provide the Exchange with the information necessary to locate the 
information upon publication. The rule is also amended to require the 
company, when the announcement is in written form, to provide the text 
of the proposed announcement to the Exchange by email at the time it 
notifies the Exchange.
---------------------------------------------------------------------------

    \7\ While the NYSE's trading day ends officially at 4 p.m., New 
York time, there are crossing sessions until 5 p.m., New York time.
    \8\ See NYSE Rule 123D(1) for the Exchange's procedures with 
respect to delayed openings and trading halts pending dissemination 
of material news.
---------------------------------------------------------------------------

    The Exchange will continue to evaluate the materiality of these 
disclosures and implement temporary trading halts, where appropriate, 
to facilitate the orderly dissemination of certain issuer announcements 
having a potentially material impact on the price of the securities.
    The Exchange is also proposing several other minor changes to 
Section 202.06. The Exchange is adding a parenthetical to Section 
202.06(B), referring readers to Exchange Rule 123D(1) for the 
Exchange's policies with respect to delayed openings and trading halts. 
Additionally, Section 202.06(C) is being amended (i) to provide that 
public disclosures which may significantly affect trading should be 
provided to the Exchange by e-mail rather than by facsimile as is 
currently the case and (ii) to conform to the change to Section 
202.06(B) by providing that material news may be disseminated by any 
Regulation FD compliant method and not just by press release.
2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with 
and furthers the objectives of Section 6(b)(5) of the Act,\9\ in that 
it is designed to prevent fraudulent and manipulative practices, to 
promote just and equitable principles of trade,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.\10\
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    \9\ 15 U.S.C. 78f(b)(5).
    \10\ The Commission notes that, in the purpose section of the 
Form 19b-4, the Exchange provided a more complete statutory basis 
for the proposed rule change, as follows: The Exchange believes that 
the proposed rule change is consistent with Section 6(b) of the 
Securities Exchange Act of 1934 (the ``Act''), in general, and 
furthers the objectives of Section 6(b)(5) of the Act, in particular 
in that it is designed to promote just and equitable principles of 
trade, to foster cooperation and coordination with persons engaged 
in regulating, clearing, settling, processing information with 
respect to, and 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 the proposed 
amendment is consistent with the investor protection objectives of 
the Act in that it harmonizes the Exchange's immediate release 
policies with the SEC's requirements in Regulation FD.

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[[Page 20518]]

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 Exchange has filed the proposed rule change pursuant to Section 
19(b)(3)(A)(iii) of the Act \11\ and Rule 19b-4(f)(6) thereunder.\12\ 
Because the 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.\13\
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    \11\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \12\ 17 CFR 240.19b-4(f)(6).
    \13\ The Commission notes that 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.
---------------------------------------------------------------------------

    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 (https://www.sec.gov/rules/sro.shtml); or
     Send an e-mail to rule-comments@sec.gov. Please include 
File Number SR-NYSE-2009-40 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSE-2009-40. 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-
NYSE-2009-40 and should be submitted on or before May 26, 2009.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\14\
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    \14\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-10119 Filed 5-1-09; 8:45 am]
BILLING CODE 8010-01-P
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