Self-Regulatory Organizations; Notice of Filing and Immediate Effectiveness of Proposed Rule Change by New York Stock Exchange LLC To Extend the Pilot Program in Relation to Certain of Its Continued Listing Standards, 57730-57732 [E9-26877]
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Federal Register / Vol. 74, No. 215 / Monday, November 9, 2009 / Notices
C. Self-Regulatory Organization’s
Statement on Comments on the
Proposed Rule Change Received From
Members, Participants or Others
The Exchange has not solicited, and
does not intend to solicit, comments on
this proposed rule change. The
Exchange has not received any
unsolicited written comments from
members or other interested parties.
should submit only information that
you wish to make available publicly. All
submissions should refer to File
Number SR–ISE–2009–89 and should be
submitted on or before November 30,
2009.
IV. Commission’s Findings and Order
Granting Accelerated Approval of
Proposed Rule Change
The Commission finds that the
proposed rule change is consistent with
the requirements of the Act and the
Interested persons are invited to
rules and regulations thereunder
submit written data, views, and
applicable to a national securities
arguments concerning the foregoing,
exchange.10 Specifically, the
including whether the proposed rule
Commission finds that the proposed
change is consistent with the Act.
rule change is consistent with Section
Comments may be submitted by any of
6(b)(4) 11 of the Act, which requires that
the following methods:
the rules of a national securities
Electronic Comments
exchange provide for the equitable
allocation of reasonable dues, fees, and
• Use the Commission’s Internet
other charges among members and
comment form (https://www.sec.gov/
issuers and other persons using its
rules/sro.shtml); or
facilities.
• Send an e-mail to ruleAs described more fully above, ISE
comments@sec.gov. Please include File
recently amended DECN’s fee schedule
No. SR–ISE–2009–89 on the subject
for ISE Members to, among other things,
line.
adopt new fees, rebates and associated
Paper Comments
flags for adding and removing liquidity
during pre and post hours trading, add
• Send paper comments in triplicate
an additional method to qualify for the
to Elizabeth M. Murphy, Secretary,
Ultra Tier rebate, modify the Super Tier
Securities and Exchange Commission,
rebate to include transactions in Tape B
100 F Street, NE., Washington, DC
securities, adopt a charge for adding
20549–1090.
liquidity on EDGA unless certain
All submissions should refer to File
volume thresholds are met, revise the
Number SR–ISE–2009–89. This file
fees for adding liquidity on EDGX and
number should be included on the
subject line if e-mail is used. To help the EDGA and made conforming changes to
the flags associated with these rebates
Commission process and review your
and fees.12 The fee changes made
comments more efficiently, please use
only one method. The Commission will pursuant to the Member Fee Filing
became operative on November 1, 2009.
post all comments on the Commissions
DECN receives rebates and is charged
Internet Web site (https://www.sec.gov/
fees for transactions it executes on
rules/sro.shtml). Copies of the
EGDX or EDGA in its capacity as an
submission, all subsequent
introducing broker for its non-ISE
amendments, all written statements
member subscribers.
with respect to the proposed rule
The current proposal, which will
change that are filed with the
apply retroactively to November 1,
Commission, and all written
2009, will allow DECN to pass through
communications relating to the
the revised rebates and fees to the nonproposed rule change between the
Commission and any person, other than ISE member subscribers for which it
acts an introducing broker. The
those that may be withheld from the
Commission finds that the proposal is
public in accordance with the
consistent with the Act because it will
provisions of 5 U.S.C. 552, will be
provide rebates and charge fees to nonavailable for inspection and copying in
ISE member subscribers that are
the Commission’s Public Reference
equivalent to those established for ISE
Room, 100 F Street, NE., Washington,
member subscribers in the Member Fee
DC 20549, on official business days
between the hours of 10 a.m. and 3 p.m. Filing.13
Copies of such filing also will be
10 In approving this proposal, the Commission has
available for inspection and copying at
considered its impact on efficiency, competition,
the principal office of the ISE. All
and capital formation. 15 U.S.C. 78c(f).
comments received will be posted
11 15 U.S.C. 78f(b)(4).
without change; the Commission does
12 See File No. SR–ISE–2009–88 (the ‘‘Member
not edit personal identifying
Fee Filing’’).
13 Id.
information from submissions. You
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III. Solicitation of Comments
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ISE has requested that the
Commission find good cause for
approving the proposed rule change
prior to the thirtieth day after
publication of notice of filing thereof in
the Federal Register. As discussed
above, the proposal will allow DECN to
pass through to non-ISE member
subscribers the revised rebate and fees
established for ISE member subscribers
in the Member Fee Filing, resulting in
equivalent rebates and fees for ISE
member and non-member subscribers.
In addition, because the proposal will
apply the revised rebates and fees
retroactively to November 1, 2009, the
revised rebates and fees will have the
same effective date, thereby promoting
consistency in the DECN’s fee schedule.
Accordingly, the Commission finds
good cause, pursuant to Section 19(b)(2)
of the Act, for approving the proposed
rule change prior to the thirtieth day
after the date of publication of notice of
filing thereof in the Federal Register.
V. Conclusion
It is therefore ordered, pursuant to
Section 19(b)(2) of the Act,14 that the
proposed rule change (SR–ISE–2009–89)
be, and hereby is, approved on an
accelerated basis.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.15
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9–26879 Filed 11–6–09; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–60911; File No. SR–NYSE–
2009–109]
Self-Regulatory Organizations; Notice
of Filing and Immediate Effectiveness
of Proposed Rule Change by New York
Stock Exchange LLC To Extend the
Pilot Program in Relation to Certain of
Its Continued Listing Standards
November 2, 2009.
Pursuant to Section 19(b)(1) 1 of the
Securities Exchange Act of 1934 (the
‘‘Exchange Act’’),2 and Rule 19b–4
thereunder,3 notice is hereby given that,
on October 30, 2009, New York Stock
Exchange LLC (‘‘NYSE’’ or the
‘‘Exchange’’) filed with the Securities
and Exchange Commission
(‘‘Commission’’) the proposed rule
14 15
U.S.C. 78s(b)(2).
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.
15 17
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Federal Register / Vol. 74, No. 215 / Monday, November 9, 2009 / Notices
change as described in Items I and II
below, which items have been prepared
by the Exchange. The Exchange has
designated this proposal eligible for
immediate effectiveness pursuant to
Rule 19b–4(f)(6) 4 under the Exchange
Act. 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 extend
until February 28, 2010, the operation of
an amendment to the continued listing
requirements in Section 802.01B of the
Exchange’s Listed Company Manual
(the ‘‘Manual’’) that is currently in effect
on a pilot program basis (the ‘‘Pilot
Program’’). The Exchange also proposes
to remove from Section 102.01C of the
Manual references to the ‘‘Initial Listing
Standard for Companies Transferring
from NYSE Arca,’’ as it has ceased to be
operative.
The text of the proposed rule change
is available on the Exchange’s Web site
(https://www.nyse.com), at the
Exchange’s Office of the Secretary 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.
The NYSE has prepared summaries, set
forth in Sections A, B and C below, of
the most significant aspects of such
statements.
mstockstill on DSKH9S0YB1PROD with NOTICES
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
1. Purpose
Prior to the adoption of the Pilot
Program,5 Section 802.01B(I) of the
Manual provided that any company that
qualified to list under the Earnings Test
set out in Section 102.01C(I) or in
Section 103.01B(I) (in the case of foreign
private issuers) or pursuant to the
requirements set forth under the Assets
4 17
CFR 240.19b–4(f)(6).
Securities Exchange Act Release No. 59996
(May 28, 2009), 74 FR 26912 (June 4, 2009) (SR–
NYSE–2009–48) (the ‘‘Pilot Program Notice’’).
5 See
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16:52 Nov 06, 2009
Jkt 220001
and Equity Test set forth in Section
102.01C(IV) or the ‘‘Initial Listing
Standard for Companies Transferring
from NYSE Arca’’ (the ‘‘NYSE Arca
Transfer Standard’’) set forth in Section
102.01(C)(V) was considered to be
below compliance standards if such
company’s average global market
capitalization over a consecutive 30
trading-day period was less than $75
million and, at the same time, total
stockholders’ equity was less than $75
million. Under the Pilot Program,
companies that listed under the initial
listing standards set forth in the
immediately preceding sentence are
considered to be below compliance
standards if average global market
capitalization over a consecutive 30
trading-day period is less than $50
million and, at the same time, total
stockholders’ equity is less than $50
million. The Pilot Program expires by its
terms on October 31, 2009, and the
Exchange now proposes to extend its
application for an additional five
months, until February 28, 2010.
For companies listed under the
Earnings Test, the Pilot Program
returned continued listing requirements
to those in place prior to the adoption
of the current requirements on June 9,
2005.6 Consequently, prior to
implementation of the Pilot Program,
the Exchange had considerable
historical experience with the continued
listing of companies that had continued
to trade on the Exchange with global
market capitalization and stockholders’
equity each below $75 million but
greater than $50 million. In addition,
the Exchange’s experience under the
Pilot Program has been very positive, as
none of the companies that were [sic]
deemed back in compliance as a result
of the adoption of the Pilot Program
have [sic] subsequently fallen below the
standard as amended by the Pilot
program as of the date of this filing.
Based on this experience, the Exchange
believes that companies that exceed the
continued listing standards as amended
by the Pilot Program are suitable for
continued listing on the Exchange.
The Exchange notes that the
continued listing standards as amended
by the Pilot Program are still higher than
those of any other national securities
exchange. Consequently, the Exchange
believes that the Pilot Program is
consistent with the protection of
investors and the public interest and
does not raise any novel regulatory
6 See Securities Exchange Act Release No. 51813
(June 9, 2005), 70 FR 35484 (June 20, 2005) (SR–
NYSE–2004–20). The Assets and Equity Test set
forth in Section 102.01C(IV) and the NYSE Arca
Transfer Standard set forth in Section 102.01C(V)
were adopted subsequent to this amendment.
PO 00000
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57731
issues. In addition, the Exchange notes
that the Commission stated in the Pilot
Program Notice 7 that it believed that the
continued listing standards adopted
under the Pilot Program met the
requirements established in Exchange
Act Rule 3a51–1(a)(2)(ii) 8 in that [sic]
were reasonably related to the initial
listing standards set forth in paragraph
(a)(20)(i) of Exchange Act Rule 3a51–1
(the ‘‘Penny Stock Rule’’).9
The NYSE Arca Transfer Standard
explicitly provided for the transfer of
companies from NYSE Arca to the
Exchange on or before August 31, 2009.
As that date has passed, the Exchange
is deleting the standard from Section
102.01(C) of the Manual. The reference
to the NYSE Arca Transfer Standard in
Section 802.01B is retained, as it
continues to be relevant because it
indicates which continued listing
standard will be applied to companies
that originally listed under the NYSE
Arca Transfer Standard. A parenthetical
has been added to Section 802.01B to
indicate that the NYSE Arca Transfer
Standard is no longer operative.
2. Statutory Basis
The Exchange believes that the
proposed rule change is consistent with
Section 6(b) 10 of the Exchange Act, in
general, and furthers the objectives of
Section 6(b)(5) 11 of the Exchange 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 extension to the Pilot
Program is consistent with the investor
protection objectives of the Exchange
Act in that the continued listing
standards under the Pilot Program are
set at a high enough level that only
companies that are suitable for
continued listing on the Exchange will
exceed the standards. The deletion of
the NYSE Arca Transfer Standard is not
a substantive change, as that standard
was not operative after August 31, 2009.
7 See
the Pilot Program Notice at Note 5.
CFR 240.a51–1(a)(2)(ii).
9 17 CFR 240.a51–1.
10 15 U.S.C. 78f(b).
11 15 U.S.C. 78f(b)(5).
8 17
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57732
Federal Register / Vol. 74, No. 215 / Monday, November 9, 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 Exchange Act.
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.
III. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
Because the foregoing proposed rule
change: (1) Does not significantly affect
the protection of investors or the public
interest; (2) does not impose any
significant burden on competition; and
(3) by its terms does not become
operative for 30 days after the date of
this 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) 12 of the Act and
Rule 19b–4(f)(6) thereunder.13
A proposed rule change filed under
Rule 19b–4(f)(6) 14 normally may not
become operative prior to 30 days after
the date of filing. However, Rule 19b–
4(f)(6)(iii) 15 permits the Commission to
designate a shorter time if such action
is consistent with the protection of
investors and the public interest. The
Exchange requests that the Commission
waive the 30-day operative delay, as
specified in Rule 19b–4(f)(6)(iii),16
which would make the rule change
operative upon filing.
The Commission believes that
waiving the 30-day operative delay is
consistent with the protection of
investors and the public interest
because such waiver will allow the
current Pilot Program to continue
without interruption. The Commission
notes that the standards under the Pilot
Program are identical, for those
companies qualifying under the
Earnings Test, to those in effect on the
Exchange prior to the adoption of the
12 15
U.S.C. 78s(b)(3)(A).
CFR 240.19b–4(f)(6). In addition, Rule 19b–
4(f)(6)(iii) requires a self-regulatory organization to
provide the Commission with 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 fulfilled this requirement.
14 Id.
15 17 CFR 240.19b–4(f)(6)(iii).
16 Id.
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13 17
VerDate Nov<24>2008
16:52 Nov 06, 2009
Jkt 220001
current standards in 2005.17 The NYSE
represents that the continued listing
standards proposed under the Pilot
Program are higher than similar
standards currently in place on other
exchanges. In addition, the Commission
notes that the pilot period will allow the
NYSE and the Commission to continue
to assess the new continued listing
standards. Finally, the Commission
notes that the deletion of the NYSE Arca
Transfer Standard from Section 102.01C
is not a substantive change, as that
standard is no longer operative. For
these reasons, the Commission
designates the proposed rule change
operative upon filing.18
At any time within 60 days of the
filing of such 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.
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–
2009–109 and should be submitted on
or before November 30, 2009.
IV. Solicitation of Comments
Interested persons are invited to
submit written data, views and
arguments concerning the foregoing,
including whether the proposed rule
change is consistent with the Exchange
Act. Comments may be submitted by
any of the following methods:
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.19
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9–26877 Filed 11–6–09; 8:45 am]
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–2009–109 on the
subject line.
Paper Comments
• Send paper comments in triplicate
to Secretary, Securities and Exchange
Commission, 100 F Street, NE.,
Washington, DC 20549–1090.
All submissions should refer to File
Number SR–NYSE–2009–109. 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
17 See Securities Exchange Act Release No. 51813
(June 9, 2005), 70 FR 35484 (June 20, 2005) (SR–
NYSE–2004–20).
18 For 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).
PO 00000
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BILLING CODE 8011–01–P
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
Notice of Applications for Certificates
of Public Convenience and Necessity
and Foreign Air Carrier Permits Filed
Under Subpart B (Formerly Subpart Q)
During the Week Ending October 24,
2009
The following Applications for
Certificates of Public Convenience and
Necessity and Foreign Air Carrier
Permits were filed under Subpart B
(formerly Subpart Q) of the Department
of Transportation’s Procedural
Regulations (See 14 CFR 301.201 et.
seq.). The due date for Answers,
Conforming Applications, or Motions to
Modify Scope are set forth below for
each application. Following the Answer
period DOT may process the application
by expedited procedures. Such
procedures may consist of the adoption
of a show-cause order, a tentative order,
or in appropriate cases a final order
without further proceedings.
Docket Number: DOT–OST–2009–
0267.
Date Filed: October 23, 2009.
19 17
E:\FR\FM\09NON1.SGM
CFR 200.30–3(a)(12).
09NON1
]]>Agencies
[Federal Register Volume 74, Number 215 (Monday, November 9, 2009)]
[Notices]
[Pages 57730-57732]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-26877]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-60911; File No. SR-NYSE-2009-109]
Self-Regulatory Organizations; Notice of Filing and Immediate
Effectiveness of Proposed Rule Change by New York Stock Exchange LLC To
Extend the Pilot Program in Relation to Certain of Its Continued
Listing Standards
November 2, 2009.
Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Exchange Act''),\2\ and Rule 19b-4 thereunder,\3\ notice is
hereby given that, on October 30, 2009, New York Stock Exchange LLC
(``NYSE'' or the ``Exchange'') filed with the Securities and Exchange
Commission (``Commission'') the proposed rule
[[Page 57731]]
change as described in Items I and II below, which items have been
prepared by the Exchange. The Exchange has designated this proposal
eligible for immediate effectiveness pursuant to Rule 19b-4(f)(6) \4\
under the Exchange Act. 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\ 15 U.S.C. 78a.
\3\ 17 CFR 240.19b-4.
\4\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------
I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange proposes to extend until February 28, 2010, the
operation of an amendment to the continued listing requirements in
Section 802.01B of the Exchange's Listed Company Manual (the
``Manual'') that is currently in effect on a pilot program basis (the
``Pilot Program''). The Exchange also proposes to remove from Section
102.01C of the Manual references to the ``Initial Listing Standard for
Companies Transferring from NYSE Arca,'' as it has ceased to be
operative.
The text of the proposed rule change is available on the Exchange's
Web site (https://www.nyse.com), at the Exchange's Office of the
Secretary 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. The NYSE 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
Prior to the adoption of the Pilot Program,\5\ Section 802.01B(I)
of the Manual provided that any company that qualified to list under
the Earnings Test set out in Section 102.01C(I) or in Section
103.01B(I) (in the case of foreign private issuers) or pursuant to the
requirements set forth under the Assets and Equity Test set forth in
Section 102.01C(IV) or the ``Initial Listing Standard for Companies
Transferring from NYSE Arca'' (the ``NYSE Arca Transfer Standard'') set
forth in Section 102.01(C)(V) was considered to be below compliance
standards if such company's average global market capitalization over a
consecutive 30 trading-day period was less than $75 million and, at the
same time, total stockholders' equity was less than $75 million. Under
the Pilot Program, companies that listed under the initial listing
standards set forth in the immediately preceding sentence are
considered to be below compliance standards if average global market
capitalization over a consecutive 30 trading-day period is less than
$50 million and, at the same time, total stockholders' equity is less
than $50 million. The Pilot Program expires by its terms on October 31,
2009, and the Exchange now proposes to extend its application for an
additional five months, until February 28, 2010.
---------------------------------------------------------------------------
\5\ See Securities Exchange Act Release No. 59996 (May 28,
2009), 74 FR 26912 (June 4, 2009) (SR-NYSE-2009-48) (the ``Pilot
Program Notice'').
---------------------------------------------------------------------------
For companies listed under the Earnings Test, the Pilot Program
returned continued listing requirements to those in place prior to the
adoption of the current requirements on June 9, 2005.\6\ Consequently,
prior to implementation of the Pilot Program, the Exchange had
considerable historical experience with the continued listing of
companies that had continued to trade on the Exchange with global
market capitalization and stockholders' equity each below $75 million
but greater than $50 million. In addition, the Exchange's experience
under the Pilot Program has been very positive, as none of the
companies that were [sic] deemed back in compliance as a result of the
adoption of the Pilot Program have [sic] subsequently fallen below the
standard as amended by the Pilot program as of the date of this filing.
Based on this experience, the Exchange believes that companies that
exceed the continued listing standards as amended by the Pilot Program
are suitable for continued listing on the Exchange.
---------------------------------------------------------------------------
\6\ See Securities Exchange Act Release No. 51813 (June 9,
2005), 70 FR 35484 (June 20, 2005) (SR-NYSE-2004-20). The Assets and
Equity Test set forth in Section 102.01C(IV) and the NYSE Arca
Transfer Standard set forth in Section 102.01C(V) were adopted
subsequent to this amendment.
---------------------------------------------------------------------------
The Exchange notes that the continued listing standards as amended
by the Pilot Program are still higher than those of any other national
securities exchange. Consequently, the Exchange believes that the Pilot
Program is consistent with the protection of investors and the public
interest and does not raise any novel regulatory issues. In addition,
the Exchange notes that the Commission stated in the Pilot Program
Notice \7\ that it believed that the continued listing standards
adopted under the Pilot Program met the requirements established in
Exchange Act Rule 3a51-1(a)(2)(ii) \8\ in that [sic] were reasonably
related to the initial listing standards set forth in paragraph
(a)(20)(i) of Exchange Act Rule 3a51-1 (the ``Penny Stock Rule'').\9\
---------------------------------------------------------------------------
\7\ See the Pilot Program Notice at Note 5.
\8\ 17 CFR 240.a51-1(a)(2)(ii).
\9\ 17 CFR 240.a51-1.
---------------------------------------------------------------------------
The NYSE Arca Transfer Standard explicitly provided for the
transfer of companies from NYSE Arca to the Exchange on or before
August 31, 2009. As that date has passed, the Exchange is deleting the
standard from Section 102.01(C) of the Manual. The reference to the
NYSE Arca Transfer Standard in Section 802.01B is retained, as it
continues to be relevant because it indicates which continued listing
standard will be applied to companies that originally listed under the
NYSE Arca Transfer Standard. A parenthetical has been added to Section
802.01B to indicate that the NYSE Arca Transfer Standard is no longer
operative.
2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with Section 6(b) \10\ of the Exchange Act, in general, and furthers
the objectives of Section 6(b)(5) \11\ of the Exchange 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 extension to the Pilot Program is consistent with the
investor protection objectives of the Exchange Act in that the
continued listing standards under the Pilot Program are set at a high
enough level that only companies that are suitable for continued
listing on the Exchange will exceed the standards. The deletion of the
NYSE Arca Transfer Standard is not a substantive change, as that
standard was not operative after August 31, 2009.
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\10\ 15 U.S.C. 78f(b).
\11\ 15 U.S.C. 78f(b)(5).
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[[Page 57732]]
B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Exchange Act.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants or Others
Written comments were neither solicited nor received.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Because the foregoing proposed rule change: (1) Does not
significantly affect the protection of investors or the public
interest; (2) does not impose any significant burden on competition;
and (3) by its terms does not become operative for 30 days after the
date of this 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) \12\ of the Act and Rule 19b-4(f)(6)
thereunder.\13\
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\12\ 15 U.S.C. 78s(b)(3)(A).
\13\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires a self-regulatory organization to provide the Commission
with 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 fulfilled this requirement.
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A proposed rule change filed under Rule 19b-4(f)(6) \14\ normally
may not become operative prior to 30 days after the date of filing.
However, Rule 19b-4(f)(6)(iii) \15\ permits the Commission to designate
a shorter time if such action is consistent with the protection of
investors and the public interest. The Exchange requests that the
Commission waive the 30-day operative delay, as specified in Rule 19b-
4(f)(6)(iii),\16\ which would make the rule change operative upon
filing.
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\14\ Id.
\15\ 17 CFR 240.19b-4(f)(6)(iii).
\16\ Id.
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The Commission believes that waiving the 30-day operative delay is
consistent with the protection of investors and the public interest
because such waiver will allow the current Pilot Program to continue
without interruption. The Commission notes that the standards under the
Pilot Program are identical, for those companies qualifying under the
Earnings Test, to those in effect on the Exchange prior to the adoption
of the current standards in 2005.\17\ The NYSE represents that the
continued listing standards proposed under the Pilot Program are higher
than similar standards currently in place on other exchanges. In
addition, the Commission notes that the pilot period will allow the
NYSE and the Commission to continue to assess the new continued listing
standards. Finally, the Commission notes that the deletion of the NYSE
Arca Transfer Standard from Section 102.01C is not a substantive
change, as that standard is no longer operative. For these reasons, the
Commission designates the proposed rule change operative upon
filing.\18\
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\17\ See Securities Exchange Act Release No. 51813 (June 9,
2005), 70 FR 35484 (June 20, 2005) (SR-NYSE-2004-20).
\18\ For 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).
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At any time within 60 days of the filing of such 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 Exchange 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-2009-109 on the subject line.
Paper Comments
Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSE-2009-109. 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-2009-109 and should be submitted on or before November 30, 2009.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\19\
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\19\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-26877 Filed 11-6-09; 8:45 am]
BILLING CODE 8011-01-P
