Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Section 140 of the NYSE MKT LLC Company Guide To Introduce an Initial Application Fee, 76158-76160 [2012-30978]

Download as PDF 76158 Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Notices C. Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others Written comments relating to the proposed rule change have not been solicited or received. ICC will notify the Commission of any written comments received by ICC. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Within 45 days of the date of publication of this notice in the Federal Register or within such longer period up to 90 days (i) as the Commission may designate if it finds such longer period to be appropriate and publishes its reasons for so finding or (ii) as to which the self-regulatory organization consents, the Commission will: (A) By order approve or disapprove the proposed rule change or (B) Institute proceedings to determine whether the proposed rule change should be disapproved. 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 email to rulecomments@sec.gov. Please include File Number SR–ICC–2012–24 on the subject line. tkelley on DSK3SPTVN1PROD with 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–ICC–2012–24. This file number should be included on the subject line if email 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 VerDate Mar<15>2010 06:31 Dec 22, 2012 Jkt 229001 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 Web site viewing and printing in the Commission’s Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of such filings will also be available for inspection and copying at the principal office of ICE Clear Credit and on ICE Clear Credit’s Web site at https:// www.theice.com/publicdocs/ regulatory_filings/ ICEClearCredit_120512a.pdf. 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–ICC–2012–24 and should be submitted on or before January 16, 2013. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.5 Kevin M. O’Neill, Deputy Secretary. [FR Doc. 2012–31021 Filed 12–21–12; 4:15 pm] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–68469; File No. SR– NYSEMKT–2012–70] Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Section 140 of the NYSE MKT LLC Company Guide To Introduce an Initial Application Fee December 19, 2012. 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 December 6, 2012, NYSE MKT LLC (‘‘NYSE MKT’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘Commission’’) the proposed rule change as described in Items I, II, and III below, which Items have been prepared by the self-regulatory organization. The Commission is publishing this notice to solicit 5 17 CFR 200.30–3(a)(12). U.S.C.78s(b)(1). 2 17 CFR 240.19b–4. 1 15 PO 00000 Frm 00191 Fmt 4703 Sfmt 4703 comments on the proposed rule change from interested persons. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to amend Section 140 of its Company Guide to introduce an Initial Application Fee. The Exchange proposes to immediately reflect the proposed changes in the Company Guide, but not to implement the proposed changes until January 1, 2013. The text of the proposed rule change is available on the Exchange’s Web site at www.nyse.com, at the principal office of the Exchange, 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 those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements. A. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose The Exchange proposes to amend Section 140 of its Company Guide to introduce an Initial Application Fee. The Exchange proposes to immediately reflect the proposed changes in the Company Guide, but not to implement the proposed changes until January 1, 2013.3 The Exchange proposes to introduce an Initial Application Fee of $5,000 within Section 140 of the Company Guide, which would be effective January 1, 2013. An issuer would be required to pay an Initial Application Fee if it applied to list shares of common or preferred stock or common stock equivalents on the Exchange, including securities issued by non-U.S. companies, except that an issuer: 3 The Exchange has proposed changes to the Company Guide, as reflected in the Exhibit 5 attached hereto, in a manner that would permit readers of the Company Guide to identify the changes that would be implemented on January 1, 2013. The Commission notes that the Exhibit 5 referenced in the previous sentence is attached to the filing, not to this Notice. E:\FR\FM\26DEN1.SGM 26DEN1 Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Notices tkelley on DSK3SPTVN1PROD with (i) Applying to transfer from a national securities exchange to list exclusively on the Exchange; or (ii) Applying to list on the Exchange that is already listed on any other national securities exchange would not be required to pay an Initial Application Fee in connection with its application for such listing or dual listing. Accordingly, issuers for which the Initial Application Fee waivers would be applicable would generally be the same as the issuers for which the Original Listing Fees would be waived, as provided in Section 140 of the Company Guide.4 The Initial Application Fee would be nonrefundable. In accordance with Section 201 of the Company Guide, an issuer applying to list an equity security on the Exchange is subject to a preliminary confidential review by NYSE Regulation, Inc. (‘‘NYSER’’) in which NYSER determines the issuer’s qualification for listing. If NYSER determines in connection with this preliminary confidential review that the issuer is qualified for listing, the issuer is informed that it has been cleared as eligible to list and that the Exchange will accept a formal Original Listing Application from the Issuer. It is the Exchange’s practice to notify the issuer of its eligibility clearance and the conditions to its listing by means of a letter (the ‘‘pre-clearance’’ letter). For an issuer subject to the Initial Application Fee, its payment would be a prior condition to eligibility clearance being granted. As a practical matter, the Exchange anticipates that an issuer would pay the Initial Application Fee after NYSER has completed its preliminary confidential review and has determined that the issuer is eligible to submit a formal Original Listing Application, but before the ‘‘preclearance’’ letter has been issued. Typically, the Exchange is in contact with an issuer prior to the issuance of a ‘‘pre-clearance’’ letter and provides oral confirmation of the issuer’s eligibility clearance prior to the issuance of the ‘‘pre-clearance’’ letter. The Initial Application Fee would be applied towards the applicable Original Listing Fees for an issuer that lists common or preferred stock or common stock equivalents on the Exchange. If an 4 See Section 140 of the Company Guide. See also Securities Exchange Act Release Nos. 68117 (October 26, 2012), 77 FR 66207 (November 2, 2012) (SR–NYSEMKT–2012–51), and 59560 (March 11, 2009), 74 FR 11392 (March 17, 2009) (SR– NYSEALTR–2009–02). The Initial Application Fee would only apply with respect to the listing of common or preferred stock or common stock equivalents. Original Listing Fees are not limited in this respect. VerDate Mar<15>2010 06:31 Dec 22, 2012 Jkt 229001 issuer paid an Initial Application Fee in connection with the application to list common or preferred stock or common stock equivalents but did not immediately list such security, the Issuer would not be required to pay a subsequent Initial Application Fee if it later listed such security so long as (i) the issuer had a registration statement regarding such security on file with the Commission, or, (ii) if the issuer withdrew its registration statement, the issuer refiled a registration statement regarding such security within 12 months of the date of such withdrawal. The Exchange is proposing the Initial Application Fee because it would allow the Exchange to recover, in part, the costs associated with processing and evaluating an issuer’s application, irrespective of whether the relevant issuance qualifies for listing or whether such issuer decides to list on the Exchange. In addition, the Initial Application Fee would provide a disincentive for impractical applications by issuers. The proposed change is not otherwise intended to address any other matter, and the Exchange is not aware of any significant problem that issuers would have in complying with the proposed change. 2. Statutory Basis The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Securities Exchange Act of 1934 (the ‘‘Act’’),5 in general, and furthers the objectives of Section 6(b)(4) and 6(b)(5) of the Act,6 in particular, because it provides for the equitable allocation of reasonable dues, fees, and other charges among its members, issuers and other persons using its facilities and does not unfairly discriminate between customers, issuers, brokers or dealers. The Exchange believes that the proposed Initial Application Fee of $5,000 is reasonable because it would allow the Exchange to recover, in part, the costs associated with processing and evaluating an issuer’s application, irrespective of whether the relevant issuance qualifies for listing or whether such issuer decides to list on the Exchange. In this regard, the Exchange believes that the Initial Application Fee of $5,000 is reasonably related to the amount of time, resources and cost associated with the Exchange’s review of an initial application for listing common or preferred stock or common stock equivalents, including securities 5 15 6 15 PO 00000 U.S.C. 78f(b). U.S.C. 78f(b)(4) and 15 U.S.C. 78f(b)(5). Frm 00192 Fmt 4703 Sfmt 4703 76159 issued by non-U.S. companies.7 Furthermore, the Exchange believes that the Initial Application Fee is reasonable because it would provide a disincentive for impractical applications by issuers. The Exchange believes that the Initial Application Fee is equitable and not unfairly discriminatory because it would be charged to all issuers that apply for listing common or preferred stock or common stock equivalents on the Exchange, except, as proposed, those issuers that qualify for a waiver. In this regard, the Exchange believes that it is equitable and not unfairly discriminatory to charge an Initial Application Fee to issuers that apply to list common or preferred stock or common stock equivalents on the Exchange, but not to issuers of other types of securities. Specifically, while the Exchange conducts a comprehensive and thorough review of every listing application it receives, regardless of security type or issuer, the Exchange believes that its costs associated with processing and evaluating an issuer’s application to list common or preferred stock or common stock equivalents on the Exchange are generally significantly higher than the costs associated with other types of securities, such that it is equitable and not unfairly discriminatory to charge the Initial Application Fee only to issuers of common or preferred stock or common stock equivalents. In this regard, the Exchange notes that the review that is required to be performed with respect to an issuer of common or preferred stock or common stock equivalents is more extensive than that required for the review of, for example, an issuer of a closed-end fund. The Exchange also believes that it is reasonable to provide a waiver of the Initial Application Fee to an issuer applying to transfer from a national securities exchange to list exclusively on the Exchange or applying to list on the Exchange that is already listed on any other national securities exchange because the issuer would have already paid a listing fee and may have already paid an application fee to the other exchange for the initial application to list on that market.8 Accordingly, it is 7 The Exchange notes that NASDAQ charges a non-refundable $5,000 application fee to issuers on The NASDAQ Capital Market. See NASDAQ Rule 5920. See also Securities Exchange Act Release No. 59663 (March 31, 2009), 74 FR 15552 (April 6, 2009) (SR–NASDAQ–2009–018). NASDAQ also charges a non-refundable $25,000 application fee to issuers on The NASDAQ Global Market. See NASDAQ Rule 5910. See also Securities Exchange Act Release No. 61669 (March 5, 2010), 75 FR 11958 (March 12, 2010) (SR–NASDAQ–2009–081). 8 See Id. [sic]. E:\FR\FM\26DEN1.SGM 26DEN1 76160 Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Notices reasonable to not charge the Initial Application Fee so as to avoid doublecharging issuers for the listing of their shares of common or preferred stock or common stock equivalents. It is also equitable and not unfairly discriminatory to waive the Initial Application Fee because all such issuers would be eligible for the waiver of the Initial Application Fee. It is also equitable and not unfairly discriminatory because such issuers would be under no obligation to transfer their listing to the Exchange or dually list on the Exchange and would be disincentivized to do so if they were subject to the Initial Application Fee. In this regard, the waiver would contribute to providing issuers with the ability to choose the listing market that best suits their needs and that is the ideal market for listing their shares of common or preferred stock or common stock equivalents. Overall, the Exchange believes that instances of the Initial Application Fee waiver being granted to issuers that apply to list on the Exchange will be relatively rare. Accordingly, the Exchange does not anticipate that it will experience any meaningful diminution in revenue as a result of the proposed waiver and therefore does not believe that the proposed waiver would in any way negatively affect its ability to continue to adequately fund its regulatory program or the services that the Exchange provides to issuers. 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. tkelley on DSK3SPTVN1PROD with III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A) 9 of the Act and subparagraph (f)(2) of Rule 19b–410 thereunder, because it establishes a due, fee, or other charge imposed by the NYSE MKT. 9 15 U.S.C. 78s(b)(3)(A). CFR 240.19b–4(f)(2). 10 17 VerDate Mar<15>2010 06:31 Dec 22, 2012 Jkt 229001 At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend 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 email to rulecomments@sec.gov. Please include File Number SR–NYSEMKT–2012–70 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–NYSEMKT–2012–70. This file number should be included on the subject line if email 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 Web site viewing and printing in the Commission’s Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of such filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make PO 00000 Frm 00193 Fmt 4703 Sfmt 4703 publicly available. All submissions should refer to File Number SR– NYSEMKT–2012–70 and should be submitted on or before January 16, 2013. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.11 Kevin M. O’Neill, Deputy Secretary. [FR Doc. 2012–30978 Filed 12–21–12; 4:15 pm] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [File No. 500–1] New Generation Biofuels Holdings, Inc.; Order of Suspension of Trading December 21, 2012. It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of New Generation Biofuels Holdings, Inc. because it has not filed any periodic reports since the period ended June 30, 2011. The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed company. Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the above-listed company is suspended for the period from 9:30 a.m. EST, on December 21, 2012 through 11:59 p.m. EST, on January 7, 2013. By the Commission. Jill M. Peterson, Assistant Secretary. [FR Doc. 2012–31151 Filed 12–21–12; 4:15 pm] BILLING CODE 8011–01–P SOCIAL SECURITY ADMINISTRATION Agency Information Collection Activities: Proposed Request and Comment Request The Social Security Administration (SSA) publishes a list of information collection packages requiring clearance by the Office of Management and Budget (OMB) in compliance with Public Law 104–13, the Paperwork Reduction Act of 1995, effective October 1, 1995. This notice includes revisions to and an extension of OMB-approved information collections. SSA is soliciting comments on the accuracy of the agency’s burden 11 17 E:\FR\FM\26DEN1.SGM CFR 200.30–3(a)(12). 26DEN1

Agencies

SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 77, Number 247 (Wednesday, December 26, 2012)]
[Notices]
[Pages 76158-76160]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-30978]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-68469; File No. SR-NYSEMKT-2012-70]

Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and
Immediate Effectiveness of Proposed Rule Change To Amend Section 140 of
the NYSE MKT LLC Company Guide To Introduce an Initial Application Fee

December 19, 2012.
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 December 6, 2012, NYSE MKT LLC (``NYSE MKT'' or ``Exchange'')
filed with the Securities and Exchange Commission (``Commission'') the
proposed rule change as described in Items I, II, and III below, which
Items have been prepared by the self-regulatory organization. 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.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

The Exchange proposes to amend Section 140 of its Company Guide to
introduce an Initial Application Fee. The Exchange proposes to
immediately reflect the proposed changes in the Company Guide, but not
to implement the proposed changes until January 1, 2013. The text of
the proposed rule change is available on the Exchange's Web site at
www.nyse.com, at the principal office of the Exchange, 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 those statements may be examined at
the places specified in Item IV below. The Exchange has prepared
summaries, set forth in sections A, B, and C below, of the most
significant parts of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
The Exchange proposes to amend Section 140 of its Company Guide to
introduce an Initial Application Fee. The Exchange proposes to
immediately reflect the proposed changes in the Company Guide, but not
to implement the proposed changes until January 1, 2013.\3\
---------------------------------------------------------------------------

\3\ The Exchange has proposed changes to the Company Guide, as
reflected in the Exhibit 5 attached hereto, in a manner that would
permit readers of the Company Guide to identify the changes that
would be implemented on January 1, 2013. The Commission notes that
the Exhibit 5 referenced in the previous sentence is attached to the
filing, not to this Notice.
---------------------------------------------------------------------------

The Exchange proposes to introduce an Initial Application Fee of
$5,000 within Section 140 of the Company Guide, which would be
effective January 1, 2013. An issuer would be required to pay an
Initial Application Fee if it applied to list shares of common or
preferred stock or common stock equivalents on the Exchange, including
securities issued by non-U.S. companies, except that an issuer:

[[Page 76159]]

(i) Applying to transfer from a national securities exchange to
list exclusively on the Exchange; or
(ii) Applying to list on the Exchange that is already listed on any
other national securities exchange

would not be required to pay an Initial Application Fee in connection
with its application for such listing or dual listing. Accordingly,
issuers for which the Initial Application Fee waivers would be
applicable would generally be the same as the issuers for which the
Original Listing Fees would be waived, as provided in Section 140 of
the Company Guide.\4\ The Initial Application Fee would be non-
refundable.
---------------------------------------------------------------------------

\4\ See Section 140 of the Company Guide. See also Securities
Exchange Act Release Nos. 68117 (October 26, 2012), 77 FR 66207
(November 2, 2012) (SR-NYSEMKT-2012-51), and 59560 (March 11, 2009),
74 FR 11392 (March 17, 2009) (SR-NYSEALTR-2009-02). The Initial
Application Fee would only apply with respect to the listing of
common or preferred stock or common stock equivalents. Original
Listing Fees are not limited in this respect.
---------------------------------------------------------------------------

In accordance with Section 201 of the Company Guide, an issuer
applying to list an equity security on the Exchange is subject to a
preliminary confidential review by NYSE Regulation, Inc. (``NYSER'') in
which NYSER determines the issuer's qualification for listing. If NYSER
determines in connection with this preliminary confidential review that
the issuer is qualified for listing, the issuer is informed that it has
been cleared as eligible to list and that the Exchange will accept a
formal Original Listing Application from the Issuer. It is the
Exchange's practice to notify the issuer of its eligibility clearance
and the conditions to its listing by means of a letter (the ``pre-
clearance'' letter).
For an issuer subject to the Initial Application Fee, its payment
would be a prior condition to eligibility clearance being granted. As a
practical matter, the Exchange anticipates that an issuer would pay the
Initial Application Fee after NYSER has completed its preliminary
confidential review and has determined that the issuer is eligible to
submit a formal Original Listing Application, but before the ``pre-
clearance'' letter has been issued. Typically, the Exchange is in
contact with an issuer prior to the issuance of a ``pre-clearance''
letter and provides oral confirmation of the issuer's eligibility
clearance prior to the issuance of the ``pre-clearance'' letter.
The Initial Application Fee would be applied towards the applicable
Original Listing Fees for an issuer that lists common or preferred
stock or common stock equivalents on the Exchange. If an issuer paid an
Initial Application Fee in connection with the application to list
common or preferred stock or common stock equivalents but did not
immediately list such security, the Issuer would not be required to pay
a subsequent Initial Application Fee if it later listed such security
so long as (i) the issuer had a registration statement regarding such
security on file with the Commission, or, (ii) if the issuer withdrew
its registration statement, the issuer refiled a registration statement
regarding such security within 12 months of the date of such
withdrawal. The Exchange is proposing the Initial Application Fee
because it would allow the Exchange to recover, in part, the costs
associated with processing and evaluating an issuer's application,
irrespective of whether the relevant issuance qualifies for listing or
whether such issuer decides to list on the Exchange. In addition, the
Initial Application Fee would provide a disincentive for impractical
applications by issuers. The proposed change is not otherwise intended
to address any other matter, and the Exchange is not aware of any
significant problem that issuers would have in complying with the
proposed change.
2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Securities Exchange Act of 1934 (the
``Act''),\5\ in general, and furthers the objectives of Section 6(b)(4)
and 6(b)(5) of the Act,\6\ in particular, because it provides for the
equitable allocation of reasonable dues, fees, and other charges among
its members, issuers and other persons using its facilities and does
not unfairly discriminate between customers, issuers, brokers or
dealers.
---------------------------------------------------------------------------

\5\ 15 U.S.C. 78f(b).
\6\ 15 U.S.C. 78f(b)(4) and 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

The Exchange believes that the proposed Initial Application Fee of
$5,000 is reasonable because it would allow the Exchange to recover, in
part, the costs associated with processing and evaluating an issuer's
application, irrespective of whether the relevant issuance qualifies
for listing or whether such issuer decides to list on the Exchange. In
this regard, the Exchange believes that the Initial Application Fee of
$5,000 is reasonably related to the amount of time, resources and cost
associated with the Exchange's review of an initial application for
listing common or preferred stock or common stock equivalents,
including securities issued by non-U.S. companies.\7\ Furthermore, the
Exchange believes that the Initial Application Fee is reasonable
because it would provide a disincentive for impractical applications by
issuers.
---------------------------------------------------------------------------

\7\ The Exchange notes that NASDAQ charges a non-refundable
$5,000 application fee to issuers on The NASDAQ Capital Market. See
NASDAQ Rule 5920. See also Securities Exchange Act Release No. 59663
(March 31, 2009), 74 FR 15552 (April 6, 2009) (SR-NASDAQ-2009-018).
NASDAQ also charges a non-refundable $25,000 application fee to
issuers on The NASDAQ Global Market. See NASDAQ Rule 5910. See also
Securities Exchange Act Release No. 61669 (March 5, 2010), 75 FR
11958 (March 12, 2010) (SR-NASDAQ-2009-081).
---------------------------------------------------------------------------

The Exchange believes that the Initial Application Fee is equitable
and not unfairly discriminatory because it would be charged to all
issuers that apply for listing common or preferred stock or common
stock equivalents on the Exchange, except, as proposed, those issuers
that qualify for a waiver. In this regard, the Exchange believes that
it is equitable and not unfairly discriminatory to charge an Initial
Application Fee to issuers that apply to list common or preferred stock
or common stock equivalents on the Exchange, but not to issuers of
other types of securities. Specifically, while the Exchange conducts a
comprehensive and thorough review of every listing application it
receives, regardless of security type or issuer, the Exchange believes
that its costs associated with processing and evaluating an issuer's
application to list common or preferred stock or common stock
equivalents on the Exchange are generally significantly higher than the
costs associated with other types of securities, such that it is
equitable and not unfairly discriminatory to charge the Initial
Application Fee only to issuers of common or preferred stock or common
stock equivalents. In this regard, the Exchange notes that the review
that is required to be performed with respect to an issuer of common or
preferred stock or common stock equivalents is more extensive than that
required for the review of, for example, an issuer of a closed-end
fund.
The Exchange also believes that it is reasonable to provide a
waiver of the Initial Application Fee to an issuer applying to transfer
from a national securities exchange to list exclusively on the Exchange
or applying to list on the Exchange that is already listed on any other
national securities exchange because the issuer would have already paid
a listing fee and may have already paid an application fee to the other
exchange for the initial application to list on that market.\8\
Accordingly, it is

[[Page 76160]]

reasonable to not charge the Initial Application Fee so as to avoid
double-charging issuers for the listing of their shares of common or
preferred stock or common stock equivalents. It is also equitable and
not unfairly discriminatory to waive the Initial Application Fee
because all such issuers would be eligible for the waiver of the
Initial Application Fee. It is also equitable and not unfairly
discriminatory because such issuers would be under no obligation to
transfer their listing to the Exchange or dually list on the Exchange
and would be disincentivized to do so if they were subject to the
Initial Application Fee. In this regard, the waiver would contribute to
providing issuers with the ability to choose the listing market that
best suits their needs and that is the ideal market for listing their
shares of common or preferred stock or common stock equivalents.
---------------------------------------------------------------------------

\8\ See Id. [sic].
---------------------------------------------------------------------------

Overall, the Exchange believes that instances of the Initial
Application Fee waiver being granted to issuers that apply to list on
the Exchange will be relatively rare. Accordingly, the Exchange does
not anticipate that it will experience any meaningful diminution in
revenue as a result of the proposed waiver and therefore does not
believe that the proposed waiver would in any way negatively affect its
ability to continue to adequately fund its regulatory program or the
services that the Exchange provides to issuers.

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 foregoing rule change is effective upon filing pursuant to
Section 19(b)(3)(A) \9\ of the Act and subparagraph (f)(2) of Rule 19b-
4\10\ thereunder, because it establishes a due, fee, or other charge
imposed by the NYSE MKT.
---------------------------------------------------------------------------

\9\ 15 U.S.C. 78s(b)(3)(A).
\10\ 17 CFR 240.19b-4(f)(2).
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At any time within 60 days of the filing of such proposed rule
change, the Commission summarily may temporarily suspend 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 email to rule-comments@sec.gov. Please include
File Number SR-NYSEMKT-2012-70 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-NYSEMKT-2012-70. This
file number should be included on the subject line if email 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 Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549, on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of such filing also will be available
for inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make publicly available. All
submissions should refer to File Number SR-NYSEMKT-2012-70 and should
be submitted on or before January 16, 2013.
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\11\ 17 CFR 200.30-3(a)(12).

For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\11\
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-30978 Filed 12-21-12; 4:15 pm]
BILLING CODE 8011-01-P

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