

[Federal Register: December 21, 2006 (Volume 71, Number 245)]
[Notices]               
[Page 76714-76715]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21de06-110]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-54917; File No. SR-NYSE-2006-45]

 
Self-Regulatory Organizations; New York Stock Exchange LLC; 
Notice of Filing of Proposed Rule Change Relating to Amendments to 
Exchange Rule 638 Concerning Mediation

December 11, 2006.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby 
given that on June 22, 2006, the New York Stock Exchange LLC (``NYSE'' 
or the ``Exchange'') filed with the Securities and Exchange Commission 
the proposed rule change as described in Items I, II, and III below, 
which Items have been prepared by the NYSE. The Commission is 
publishing this notice to solicit comments on the proposed rule change 
from interested persons.
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    \1\ 15 U.S.C.78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 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 is proposing amendments to Rule 638 concerning 
mediation. The amendments are, in part, housekeeping in nature as they 
remove references relating to an expired mediation pilot program and 
reposition certain provisions of the rule. In addition, the proposed 
amendments codify certain existing mediation procedures. The text of 
the proposed rule change is available on the NYSE's Web site (http://www.nyse.com
), at the NYSE's principal office, and at the Commission's 

Public Reference Room.

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

    In its filing with the Commission, the NYSE included statements 
concerning the purpose of and basis for 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
    Mediation is offered by the Exchange to parties, on a voluntary 
basis, both before and after an arbitration claim has been filed. A 
neutral, impartial individual, who serves as the mediator, facilitates 
discussion of the issues in an attempt to reach a settlement. The 
mediator does not render a decision.
    In 1998, the Exchange adopted, on a pilot basis, Rule 638 to 
provide for mandatory mediation in all intra-industry disputes and 
voluntary mediation in all customer disputes for claims of $500,000 or 
more. As an incentive for parties to use mediation, the pilot program 
provided for the Exchange to pay the mediator's fee, up to $500 for a 
single mediation session of up to four hours. In December 2000, the 
pilot was amended to lower the threshold for customer disputes to 
$250,000. The Exchange's experience with the pilot led to the 
conclusion that mediation is most successful when parties enter into it 
of their own accord. For this reason, the pilot was allowed to expire 
on January 31, 2003. Thereafter, the Exchange adopted the current 
mediation rules that provide for voluntary mediation pending 
arbitration, as well as prior to arbitration.
    The proposal would remove references to the expired pilot program. 
The proposed amendments would also codify certain existing mediation 
procedures, including that: (1) The

[[Page 76715]]

mediator's fees and method of payment are subject to agreement of the 
parties and the mediator, and all such fees and costs incurred in 
mediation are the parties' responsibility; (2) an adjournment fee will 
be assessed if an arbitration hearing is adjourned for purposes of the 
parties pursuing mediation unless the fee is waived under Exchange Rule 
617; (3) a mediator may not represent a party or act as an arbitrator 
in an arbitration relating to the matter arbitrated, nor be called to 
testify regarding the mediation in any proceeding; and (4) the 
mediation is confidential and no record is kept of the proceeding, and, 
except as may be required by law, the parties and mediator agree not to 
disclose the substance of the mediation without the prior written 
authorization of all parties to the mediation.
    In addition, the proposed rule would clarify that any party may 
withdraw from mediation at any time prior to the execution of a 
settlement agreement upon written notification to all other parties, 
the mediator, and the Director of Arbitration. It also would clarify 
that parties may select a mediator on their own or request a list of 
potential mediators from the Exchange, and that, upon request of any 
party, the Director of Arbitration would send the parties a list of 
five potential mediators together with the mediators' biographical 
information described in Rule 608. At that time, any party to the 
mediation would be able to request additional names from the Director 
of Arbitration. The proposed rule also would provide that the parties 
shall advise the Exchange as to the name of the agreed-upon mediator. 
In addition, it would clarify that once the parties agree to mediate, 
the Exchange would facilitate the mediation, if requested, by 
contacting the mediator selected and by assisting in making necessary 
arrangements, as well as that parties to mediation may use the Exchange 
meeting facilities in New York, when available, without charge.
2. Statutory Basis
    The proposed changes are consistent with Section 6(b)(5) \4\ of the 
Act \5\ in that they promote just and equitable principles of trade by 
ensuring that members and member organizations and the public have fair 
and flexible alternatives for the resolution of their disputes.
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    \4\ 15 U.S.C. 78f(b)(5).
    \5\ 15 U.S.C. 78a.
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants or Others

    The Exchange has neither solicited nor received written comments on 
the proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Within 35 days of the date of publication of this notice in the 
Federal Register or within such longer period (i) As the Commission may 
designate up to 90 days of such date 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 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 (http://www.sec.gov/rules/sro.shtml.
); or     Send an e-mail to rule-comments@sec.gov. Please include 

File Number SR-NYSE-2006-45 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NYSE-2006-45. This file 
number should be included on the subject line if e-mail is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's Internet Web site (http://www.sec.gov/rules/sro/shtml
). Copies of the submission, all subsequent amendments, all 

written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for inspection and 
copying in the Commission's Public Reference Room, 100 F Street, NE., 
Washington, DC. Copies of such filing also will be available for 
inspection and copying at the principal office of the NYSE. 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-2006-45 and should be 
submitted at or before January 11, 2007.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\6\
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    \6\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E6-21818 Filed 12-20-06; 8:45 am]

BILLING CODE 8011-01-P
