

[Federal Register: April 24, 2007 (Volume 72, Number 78)]
[Rules and Regulations]               
[Page 20409-20414]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24ap07-10]                         


[[Page 20409]]

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Part III





Securities and Exchange Commission





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17 CFR Part 230



Covered Securities Pursuant to Section 18 of the Securities Act of 
1933; Final Rule


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Part 230

[Release No. 33-8791; File No. S7-18-06]
RIN 3235-AJ73

 
Covered Securities Pursuant to Section 18 of the Securities Act 
of 1933

AGENCY: Securities and Exchange Commission.

ACTION: Final rule.

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SUMMARY: The Securities and Exchange Commission (``SEC'' or 
``Commission'') is adopting an amendment to a rule under Section 18 of 
the Securities Act of 1933 (``Securities Act'') to designate securities 
listed, or authorized for listing, on the Nasdaq Capital Market tier of 
The NASDAQ Stock Market LLC (``Nasdaq'') as covered securities for 
purposes of Section 18 of the Securities Act. Covered securities under 
Section 18 of the Securities Act are exempt from State law registration 
requirements. The Commission also is making a correction to the rule 
text to conform it to the language of Section 18 of the Securities Act.

DATES: Effective Date: May 24, 2007.

FOR FURTHER INFORMATION CONTACT: Heather Seidel, Assistant Director, 
(202) 551-5608, Hong-anh Tran, Special Counsel, (202) 551-5637, or 
Michou Nguyen, Special Counsel, (202) 551-5634, Division of Market 
Regulation (``Division''), Commission, 100 F Street, NE., Washington, 
DC 20549-6628.

SUPPLEMENTARY INFORMATION:

I. Introduction

    In 1996, Congress amended Section 18 of the Securities Act to 
exempt from state registration requirements securities listed, or 
authorized for listing, on the New York Stock Exchange LLC (``NYSE''), 
the American Stock Exchange LLC (``Amex''), or the National Market 
System of The NASDAQ Stock Market LLC (``Nasdaq/NGM'') \1\ 
(collectively, the ``Named Markets''), or any national securities 
exchange designated by the Commission to have substantially similar 
listing standards to those markets.\2\ More specifically, Section 18(a) 
of the Securities Act provides that ``no law, rule, regulation, or 
order, or other administrative action of any State * * * requiring, or 
with respect to, registration or qualification of securities * * * 
shall directly or indirectly apply to a security that--(A) is a covered 
security.'' \3\ Covered securities are defined in Section 18(b)(1) of 
the Securities Act to include those securities listed, or authorized 
for listing, on the Named Markets, or securities listed, or authorized 
for listing, on a national securities exchange (or tier or segment 
thereof) that has listing standards that the Commission determines by 
rule are ``substantially similar'' to the Named Markets.\4\
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    \1\ As of July 1, 2006, the National Market System of The NASDAQ 
Stock Market LLC is known as the Nasdaq Global Market. See 
Securities Exchange Act Release Nos. 53799 (May 12, 2006), 71 FR 
29195 (May 19, 2006) and 54071 (June 29, 2006), 71 FR 38922 (July 
10, 2006).
    \2\ See National Securities Markets Improvement Act of 1996, 
Pub. L. No. 104-290, 110 Stat. 3416 (October 11, 1996).
    \3\ 15 U.S.C. 77r(a).
    \4\ 15 U.S.C. 77r(b)(1)(A) and (B). In addition, securities of 
the same issuer that are equal in seniority or senior to a security 
listed on a Named Market or national securities exchange designated 
by the Commission as having substantially similar listing standards 
to a Named Market are covered securities for purposes of Section 18 
of the Securities Act. 15 U.S.C. 77r(b)(1)(C).
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    Pursuant to Section 18(b)(1)(B) of the Securities Act, the 
Commission adopted Rule 146.\5\ Rule 146(b) lists those national 
securities exchanges, or segments or tiers thereof, that the Commission 
has determined to have listing standards substantially similar to those 
of the Named Markets and thus securities listed on such exchanges are 
deemed covered securities.\6\
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    \5\ Securities Exchange Act Release No. 39542 (January 13, 
1998), 63 FR 3032 (January 21, 1998) (determining that the listing 
standards of the Chicago Board Options Exchange, Incorporated 
(``CBOE''), Tier 1 of the Pacific Exchange, Inc. (``PCX'') (now 
known as NYSE Arca, Inc.), and Tier 1 of the Philadelphia Stock 
Exchange, Inc. (``Phlx'') were substantially similar to those of the 
Named Markets and that securities listed pursuant to those standards 
would be deemed covered securities for purposes of Section 18 of the 
Securities Act). In 2004, the Commission amended Rule 146(b) to 
designate options listed on the International Securities Exchange, 
Inc. (``ISE'') (now known as the International Securities Exchange, 
LLC) as covered securities for purposes of Section 18(b) of the 
Securities Act.
    \6\ 17 CFR 230.146(b).
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    Nasdaq has petitioned the Commission to amend Rule 146(b) to 
determine that its listing standards for securities listed on the 
Nasdaq Capital Market (``NCM'') \7\ are substantially similar to those 
of the Named Markets and, accordingly, that securities listed pursuant 
to such listing standards are covered securities for purposes of 
Section 18(b) of the Securities Act.\8\
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    \7\ The Nasdaq Capital Market was previously named the Nasdaq 
SmallCap Market.
    \8\ See letter from Edward S. Knight, Executive Vice President 
and General Counsel, Nasdaq, to Nancy M. Morris, Secretary, 
Commission, dated March 1, 2006 (File No. 4--513) (``Nasdaq 
Petition'').
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    On November 22, 2006, the Commission issued a release proposing to 
amend Rule 146(b) to designate securities listed on the NCM as covered 
securities for purposes of Section 18(a) of the Securities Act.\9\ The 
Commission received seven comment letters, all expressing overall 
support for the Nasdaq Petition.\10\ In connection with its petition, 
Nasdaq filed a proposed rule change to amend its quantitative listing 
standards for NCM securities to make its NCM listing standards 
substantially similar to the Named Markets.\11\ On April 18, 2007, the 
Commission approved this proposed rule change.\12\
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    \9\ Securities Act Release No. 8754 (November 16, 2006), 71 FR 
67762 (November 22, 2006) (``Proposing Release'').
    \10\ See letter to Nancy M. Morris, Secretary, Commission, from 
Alan M. Parness, Vice Chair, State Regulation of Securities 
Committee of the American Bar Association Section of Business Law 
(``ABA Committee''), dated April 3, 2006 (``ABA Committee April 3rd 
Letter''); letter to Nancy M. Morris, Secretary, Commission, from 
Patricia D. Struck, The North American Securities Administrators 
Association (``NASAA'') President and Wisconsin Securities 
Administrator, dated March 29, 2006 (``NASAA March 29th Letter''); 
electronic mail to Robert L.D. Colby, Acting Director, Division, 
Commission, from Randall Schumann, Legal Counsel, Wisconsin DFI-
Division of Securities, NASAA Corporation Finance Section Member, 
dated June 1, 2006; letter to Nancy M. Morris, Secretary, 
Commission, from Alan M. Parness, Vice Chair, ABA Committee, dated 
December 20, 2006 (``ABA Committee December 20th Letter''); letter 
to Nancy M. Morris, Secretary, Commission, from Joseph P. Borg, 
NASAA President and Director, Alabama Securities Commission, dated 
December 21, 2006 (``NASAA December 21st Letter''); letter to Nancy 
M. Morris, Secretary, Commission, from Joseph P. Borg, NASAA 
President and Director, Alabama Securities Commission, dated 
December 21, 2006 (``NASAA Supplemental Letter''); and letter to 
Nancy M. Morris, Secretary, Commission, from Phillip B. Kennedy, 
Esq., Gaeta & Eveson, P.A., dated December 19, 2006 (``Kennedy 
Letter''). In addition, the Commission's Advisory Committee on 
Smaller Public Companies recommended on April 23, 2006 that the 
Commission make NCM stocks ``covered securities.'' SEC Advisory 
Committee on Smaller Public Companies, Final Report, at 97-100 
(2006).
    \11\ See Securities Exchange Act Release Nos. 54378 (August 28, 
2006) (``Nasdaq Proposed Rule Change''), 71 FR 52351 (September 5, 
2006).
    \12\ Securities Exchange Act Release No. 55642 (April 18, 2007) 
(``NCM Listing Standard Amendments'').
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    Based on the approved changes to the NCM listing standards and 
after careful comparison, the Commission concludes that the listing 
standards of the NCM are substantially similar to the listing standards 
of the Named Markets. Accordingly, the Commission today is amending 
Rule 146(b) to designate securities listed, or authorized for listing, 
on the NCM as covered securities under Section 18(b)(1) of the 
Securities Act.\13\ Amending Rule 146(b) to include securities listed, 
or authorized for listing, on the NCM as covered securities will exempt 
those securities from state registration

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requirements as set forth under Section 18(a) of the Securities 
Act.\14\
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    \13\ 15 U.S.C. 77r(b)(1).
    \14\ 15 U.S.C. 77r(a).
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II. Amendment to Rule 146(b) to Include Nasdaq NCM Securities

    Under Section 18(b)(1)(B) of the Securities Act,\15\ the Commission 
has the authority to compare the listing standards of a petitioner with 
those of the NYSE, Amex, or Nasdaq/NGM. The Commission initially 
compared Nasdaq's listing standards for all NCM securities with only 
one of the Named Markets. If the listing standards in a particular 
category did not meet the standards of that market, the Commission 
compared the petitioner's standards to the other two Named Markets.\16\ 
In addition, the Commission interpreted the ``substantially similar'' 
standard to require listing standards at least as comprehensive as 
those of the Named Markets.\17\ If a petitioner's listing standards are 
higher than the Named Markets, then the Commission still determined 
that the petitioner's listing standards are substantially similar to 
the Named Markets. Finally, the Commission notes that differences in 
language or approach would not necessarily lead to a determination that 
the listing standards of the petitioner are not substantially similar 
to those of a Named Market.
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    \15\ 15 U.S.C. 77r(b)(1)(A).
    \16\ This approach is consistent with the approach that the 
Commission has previously taken. See Securities Act Release Nos. 
7422 (June 9, 1997), 62 FR 32705 (June 17, 1997) and 7494 (January 
13, 1998), 63 FR 3032 (January 21, 1998).
    \17\ Securities Act Release No. 7422, supra note 16.
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    The Commission has reviewed the NCM's listing standards, as 
amended,\18\ and, for the reasons discussed below, believes that the 
standards are substantially similar to those of the Named Markets. 
Accordingly, the Commission is amending Rule 146(b) to include 
securities listed, or authorized for listing, on the NCM. Because the 
Commission believes Nasdaq's qualitative listing standards for NCM 
securities are identical to the qualitative listing standards for 
Nasdaq/NGM securities,\19\ the discussion below focuses on the NCM 
quantitative listing standards.
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    \18\ See NCM Listing Standard Amendments, supra, note 12.
    \19\ Such qualitative listing standards relate to, among other 
things, the number of independent directors required, conflicts of 
interest, composition of the audit committee, executive 
compensation, shareholder meeting requirements, voting rights, 
quorum, code of conduct, proxies, shareholder approval of certain 
corporate actions, and the annual and interim reports requirements. 
See Nasdaq Rule 4350.
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A. Common Stock

    As discussed in the Proposing Release, the Commission preliminarily 
believed that some, but not all, of the requirements in Nasdaq's then-
existing quantitative initial listing standards for common stock 
listing on the NCM were substantially similar to those of Amex's common 
stock listing standards. The NCM Listing Standard Amendments modify 
those NCM initial listing standards for common stock to require an 
issuer to have:
     Shareholder's equity of $4 million and net income from 
continuing operations of $750,000 in the most recently completed fiscal 
year or in two of the last three most recently completed fiscal years, 
and a market value of publicly held shares of $5 million;
     Shareholder's equity of $4 million, a market value of 
listed securities of $50 million, and a market value of publicly held 
shares of $15 million; or
     Shareholder's equity of $5 million, a two-year operating 
history, and a market value of publicly held shares of $15 million.\20\
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    \20\ See NCM Listing Standard Amendments, supra, note 12.

In light of these rule changes, the Commission finds the NCM initial 
listing standards for common stock to be substantially similar to those 
of Amex.
    The Commission finds that the continued listing requirements for 
common stock listed on the NCM, while not identical, are substantially 
similar to those of Amex. Amex's delisting criteria are triggered by 
poor financial condition or operating results of the issuer.\21\ 
Specifically, Amex will consider delisting an equity issue if: (i) 
Stockholders' equity is less than $2 million and such issuer has 
sustained losses from continuing operations and/or net losses in two of 
its three most recent fiscal years; (ii) stockholders' equity is less 
than $4 million and such issuer has sustained losses from continuing 
operations and/or net losses in three of its four most recent fiscal 
years; (iii) stockholders' equity is less than $6 million if such 
issuer has sustained losses from continuing operations and/or net 
losses in its five most recent fiscal years; or (iv) the issuer has 
sustained losses which are so substantial in relation to its overall 
operations or its existing financial resources, or its financial 
condition has become so impaired that it appears questionable, in the 
opinion of the Exchange, as to whether such company will be able to 
continue operations and/or meet its obligations as they mature.\22\
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    \21\ See generally Sections 1001 through 1006 of the Amex 
Company Guide.
    \22\ See Section 1003(a) of the Amex Company Guide. Amex also 
will consider delisting if: (i) An issuer has sold or otherwise 
disposed of its principal operating assets or has ceased to be an 
operating company or has discontinued a substantial portion of its 
operations or business; (ii) if substantial liquidation of the 
issuer has been made; or (iii) if advice has been received, deemed 
by the Exchange to be authoritative, that the security is without 
value, or in the case of a common stock, such stock has been selling 
for a substantial period of time at a low price. See Section 1003(c) 
and (f)(v) of the Amex Company Guide.
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    Although Nasdaq's NCM does not have the same continued listing 
requirements, Nasdaq also looks at the financial condition and 
operating results of the issuer. Specifically, for continued listing, 
Nasdaq requires an issuer to have shareholder's equity of at least $2.5 
million, market value of listed securities of at least $35 million, or 
net income of $500,000 from continuing operations in the past fiscal 
year or two out of its three past fiscal years.\23\ Further, Nasdaq 
requires that the listed issue have a minimum bid price for continued 
listing of $1 per share.\24\ In addition, for continued listing, Nasdaq 
requires an issuer to have a minimum of 500,000 publicly held shares 
with a market value of at least $1 million.\25\
    The Commission finds that the maintenance criteria for common stock 
listed on Amex and on the NCM are substantially similar.\26\
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    \23\ Nasdaq Rule 4310(c)(2)(B)(i)-(iii).
    \24\ Nasdaq Rule 4310(c)(4). Amex will consider delisting if the 
price per share is ``low.'' See Amex Rule 1003(f)(v).
    \25\ Nasdaq Rule 4310(c)(7)(A). Amex will consider delisting the 
common stock of an issuer if the aggregate market value of such 
publicly held shares is less than $1 million for more than 90 
consecutive days, the number of publicly held shares is less than 
200,000 shares, or the number of its public stockholders is less 
than 300. See Section 1003(b) of the Amex Company Guide.
    \26\ As noted above, the Commission has interpreted the 
substantially similar standard to require listing standards at least 
as comprehensive as those of the Named Markets, and differences in 
language or approach of the listing standards are not dispositive.
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B. Secondary Classes of Common Stocks

    Only Nasdaq has listing standards for the trading of a secondary 
class of common stock. A secondary class of common stock is a class of 
common stock of an issuer that has another class of common stock listed 
on an exchange. The Commission compared the NCM listing standards for 
secondary classes of common stock and preferred stocks with the listing 
standards of the Nasdaq/NGM.
    As discussed in the Proposing Release, the Commission preliminarily 
believed that with respect to the number

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of round lot holders,\27\ bid price,\28\ and number of publicly held 
shares \29\ requirements,\30\ Nasdaq's initial and continued listing 
requirements for secondary classes of common stock and preferred stocks 
listing on the NCM were substantially similar to the listing standards 
for the Nasdaq/NGM. The Commission did not, however, believe that the 
initial continued listing requirements for market value of publicly 
held shares for NCM were substantially similar to Nasdaq/NGM 
standards.\31\
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    \27\ Both Nasdaq NCM and NGM require 100 round lot holders. See 
NASD Rules 4310(c)(6)(B) and 4420(k)(4). Nasdaq/NGM also requires 
100 round lot holders for continued listing. Although the NCM 
requirements previously did not explicitly require a continuing 
number of round lot holders, the NCM Listing Standard Amendments 
clarified that the 100 round lot holders requirement also will apply 
as a continued listing requirement for the NCM preferred and 
secondary classes of common stock standards. See NCM Listing 
Standard Amendments, supra note 12.
    \28\ While the NCM bid price requirement for initial listing is 
$4 and the Nasdaq/NGM requirement is $5, the Commission believes 
that these standards are substantially similar. Both NGM and NCM 
require a $1 bid price for continued listing. See Nasdaq Rules 
4310(c)(4), 4420(k)(3), and 4450(h)(3).
    \29\ Both Nasdaq NCM and NGM require 200,000 publicly held 
shares for initial listing, and 100,000 publicly held shares for 
continued listing. See Nasdaq Rules 4310(c)(7)(B), 4420(k)(1), and 
4450(h)(1).
    \30\ The Commission notes that these requirements apply to 
instances when the common stock or common stock equivalent security 
of the issuer is listed on Nasdaq/NGM, NCM, Global Select Market 
(``GSM'') (the GSM is a segment of the NGM, see Securities Exchange 
Act Release Nos. 53799 and 54071, supra note 1), or another national 
securities exchange. If the common stock or common stock equivalent 
is not listed on one of these markets then the security must meet 
the common stock listing requirements for the relevant market 
(either Nasdaq/NGM or NCM). See generally NASD Rules 4310(c)(6)(B) 
and 4420(k).
    \31\ See Proposing Release, supra note 9, at notes 43-44 and 
accompanying text.
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    In the NCM Listing Standard Amendments, Nasdaq increased the NCM 
listing standards for both preferred and secondary classes of common 
stock for the market value of publicly held shares to $3.5 million for 
initial listing and $1 million for continued listing.\32\ Nasdaq also 
increased its initial and continued NCM listing rules for secondary 
classes of common stock and preferred stock to require that the common 
stock or common stock equivalent of the issuer either be listed on 
Nasdaq or be a covered security as defined in Rule 146(b).\33\ In light 
of these revisions to the NCM's initial and continued listing standards 
for secondary classes of common stock and preferred stocks, the 
Commission finds that the NCM's rules for initial and continued listing 
for secondary classes of common stock and preferred stock are 
substantially similar to Nasdaq/NGM's rules.
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    \32\ See NCM Listing Standard Amendments, supra note 12.
    \33\ Id.
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C. Convertible Debt

    The Commission has compared the NCM listing standards for 
convertible debt to Amex's listing standards for debt.\34\ In the NCM 
Listing Standards Amendments, Nasdaq added a debt rating requirement 
similar to a requirement in Amex's listing standards.\35\ Specifically, 
Nasdaq requires that for the initial listing of convertible debt, one 
of the following conditions must be met: (i) The issuer of the debt 
security must also have an equity security listed on the Amex, NYSE, or 
Nasdaq; (ii) an issuer of equity security listed on the Amex, NYSE, or 
Nasdaq, directly or indirectly owns a majority interest in, or is under 
common control with, the issuer of the debt security; (iii) an issuer 
of equity security listed on the Amex, NYSE, or Nasdaq has guaranteed 
the debt security; (iv) a nationally recognized securities rating 
organization (an ``NRSRO'') has assigned a current rating to the debt 
security that is no lower than an S&P Corporation ``B'' rating or 
equivalent rating by another NRSRO; or (v) if no NRSRO has assigned a 
rating to the issue, an NRSRO has currently assigned an investment 
grade rating to an immediately senior issue or a rating that is no 
lower than an S&P Corporation ``B'' rating, or an equivalent rating by 
another NRSRO, to a pari passu or junior issue.\36\ The Listing 
Standards Amendment also requires that current sale information be 
available in the United States for the underlying security into which a 
convertible debt issue is convertible. Accordingly, the Commission 
finds that the NCM's listing standards for convertible debt are 
substantially similar to those of Amex.
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    \34\ See generally Nasdaq Rule 4310(c)(5) and Sections 104 and 
1003 of the Amex Company Guide.
    \35\ See NCM Listing Standard Amendments, supra note 12.
    \36\ See Nasdaq Rule 4310(c)(5)(B).
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    The Commission also finds that the continued listing requirements 
for convertible debt securities listed on the NCM are substantially 
similar to Amex's requirements. The NCM listing standards require that 
the principal amount outstanding be maintained at $5 million.\37\ Amex 
generally will delist a bond if the aggregate market value or the 
principal amount of the bond publicly held is less than $400,000, or if 
the issuer is not able to meet its obligations on the listed debt.\38\ 
Although not identical, the Commission believes that both standards are 
designed to ensure the continued liquidity of the debt security, and 
thus are substantially similar.
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    \37\ Id.
    \38\ See Section 1003(b)(iv) of the Amex Company Guide. Section 
1003(e) of the Amex Company Guide states that convertible bonds will 
be reviewed when the underlying security is delisted and will be 
delisted when the underlying security is no longer the subject of 
real-time reporting in the United States. The Commission does not 
believe that this is material because although Nasdaq does not have 
an identical rule, it does have the discretion to delist beyond its 
standards.
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D. Warrants

    The Commission compared Nasdaq's NCM listing standards for warrants 
to the Nasdaq/NGM standards. In the Proposing Release, the Commission 
stated that it preliminarily believed that the NCM standards were not 
substantially similar to the Nasdaq/NGM standards. The NCM Listing 
Standard Amendments, however, increased the required number of warrants 
that must be outstanding for initial listing on the NCM from 100,000 to 
400,000.\39\ Though not identical, the Commission believes this initial 
listing requirement is substantially similar to Nasdaq/NGM requirements 
that there be 450,000 warrants outstanding for initial listing. The NCM 
Listing Standard Amendments also added a requirement for initial and 
continued listing that the security underlying the warrant be listed on 
Nasdaq or be a covered security as described in Section 18(b).\40\ The 
Commission believes this requirement is substantially similar to the 
Nasdaq/NGM standard that requires that, for continued listing, the 
common stock of the issuer must continue to be listed on the Nasdaq/
NGM.\41\ In light of the changes made by the NCM Listing Standard 
Amendments, the Commission finds the NCM's listing standards for 
warrants are substantially similar to those of Nasdaq/NGM.
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    \39\ See NCM Listing Standard Amendments, supra note 12.
    \40\ Id.
    \41\ See Nasdaq Rule 4450(d).
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E. Index Warrants

    Index warrants traded on the NCM, must meet the same initial and 
continuing listing standards as index warrants traded on the Nasdaq/NGM 
market.\42\ Therefore, the Commission finds that the listing standards 
for index warrants traded on the NCM are substantially similar to the 
standards applicable to index warrants traded on the Nasdaq/NGM market.
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    \42\ See generally Nasdaq Rule 4310(c)(9)(C).

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[[Page 20413]]

F. Units

    The NCM, Amex, and Nasdaq/NGM all evaluate the initial and 
continued listing of a unit by looking to its components.\43\ If all of 
the components of a unit individually meet the standards for listing, 
then the unit would meet the standards for listing.\44\ In light of the 
NCM Listing Standard Amendments, which increase the listing 
requirements for the different categories of securities discussed above 
that could make up the components of a unit, the Commission finds that 
the NCM listing standards for units are substantially similar to both 
Amex and Nasdaq/NGM listing standards.\45\
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    \43\ A unit is a type of security consisting of two or more 
different types of securities (e.g., a combination of common stocks 
and warrants). See Securities Exchange Act Release No. 48464 
(September 9, 2003), 68 FR 54250 (September 16, 2003).
    \44\ See generally Section 101(g) of the Amex Company Guide and 
Nasdaq Rules 4310(c)(10) and 4420(h)(1)(a)-(c).
    \45\ See NCM Listing Standard Amendments, supra note 12.
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III. Other Changes to Rule 146(b)

A. Clarifying Changes in Response to Comments

    In response to comments received from the ABA Committee and NASAA, 
the Commission is making a minor amendment to Rule 146(b) to include 
securities ``authorized for listing'' on a market named in Rule 146(b).
    NASAA and the ABA Committee expressed concern regarding a 
discrepancy between the language of Section 18 under the Securities Act 
and Rule 146(b) thereunder. Section 18 defines covered securities as 
securities ``listed, or authorized for listing'' on the Named Markets, 
or the other exchanges that have listing standards that the Commission 
has deemed to be substantially similar to the Named Markets. Rule 
146(b), however, deems as ``covered securities'' only securities 
listed, not those that are ``authorized for listing,'' pursuant to 
exchange rules that the Commission has found to be substantially 
similar to the Named Markets. NASAA and the ABA Committee expressed 
concern that some issuers that are authorized for listing but not yet 
listed on an exchange identified in Rule 146(b) would not clearly be 
exempt from state qualification or registration requirements. They 
recommend that the Commission clarify the language in Rule 146(b) to 
conform it to the language of Section 18(b)(1)(B) of the Securities 
Act.\46\ The Commission believes that this clarifying change to Rule 
146(b) is consistent with Congressional intent, as well as the 
Commission's intent, is appropriate, and addresses the commenters'' 
concerns.\47\
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    \46\ See ABA Committee April 3rd Letter; ABA Committee December 
20th Letter; and NASAA Supplemental Letter, supra note 10.
    \47\ The Administrative Procedure Act (``APA'') generally 
requires an agency to publish notice of a proposed rulemaking in the 
Federal Register. The APA's notice and comment requirement does not 
apply, however, if the agency ``for good cause finds * * * that 
notice and public procedure are impracticable, unnecessary, or 
contrary to the public interest.'' Sec. 5. U.S.C. Section 
553(b)(3)(B). The Commission finds good cause to include the 
language ``authorized for listing'' to the rule because prior notice 
is unnecessary. The change does not alter the substance of the rule 
and incorporates language from the statute.
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    Another commenter expressed concern about a perceived ambiguity in 
Rule 146(b)(2). Rule 146(b)(2) conditions the designation of securities 
on the exchanges specified under Rule 146(b)(1) as ``covered 
securities'' as long as their listing standards continue to be 
substantially similar to those of the Named Markets. The commenter 
believes that it is not clear who makes this determination and 
recommends that the phrase ``as determined by the Commission'' should 
be added to the language of Rule 146(b)(2).\48\ The Commission believes 
that this change is unnecessary because Section 18 clearly states that 
``covered securities'' are those the Commission determines are 
substantially similar to the Named Markets. Similarly, Rule 146 
specifies that it is the Commission that has found that listed 
exchanges, or segments thereof, have listing standards substantially 
similar to those of the Named Markets. The Commission also notes that 
since this rule has been in effect, the problem described by the 
commenter has not occurred and does not believe that further amendment 
to the language of the rule is required at this time.
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    \48\ See Kennedy Letter, supra note 10.
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B. Changes to Exchanges'' Names

    The Commission is amending Rule 146(b), as proposed, to reflect the 
following name changes:
     Sections (b)(1) and (b)(2) of Rule 146 use the term 
``Nasdaq/NMS'' to refer to the National Market System of The NASDAQ 
Stock Market LLC. As noted above, on July 1, 2006, what was the 
National Market System of The NASDAQ Stock Market LLC became known as 
the Nasdaq Global Market.\49\ The Commission is making a conforming 
change to Rule 146(b).
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    \49\ See Securities Exchange Act Release Nos. 53799 and 54071, 
supra note 1.
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     Rule 146(b)(1)(i) refers to the Pacific Exchange 
Incorporated. In April 2006, the Pacific Exchange, Incorporated was 
renamed NYSE Arca, Inc.\50\ The Commission is making a conforming 
change to Rule 146(b).
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    \50\ See Securities Exchange Act Release No. 53615 (April 7, 
2006), 71 FR 19226 (April 13, 2006).
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     Rule 146(b)(1)(iv) refers to the International Securities 
Exchange, Incorporated. In September 2006, the International Securities 
Exchange, Incorporated was renamed the International Securities 
Exchange, LLC. The Commission is making a conforming change to Rule 
146(b).
     Finally, the Commission is amending paragraph (1)(ii) of 
Rule 146(b) to reflect the legal name of the Philadelphia Stock 
Exchange, Inc.\51\
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    \51\ In the Proposing Release, the Nasdaq Global Market and the 
Nasdaq Capital Market were inadvertently referred to as the Nasdaq 
National Global Market and the Nasdaq National Capital Market. Those 
typographical errors are corrected in this adopting release.
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IV. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 does not apply because the 
proposed amendment to Rule 146(b) does not impose recordkeeping or 
information collection requirements or other collection of information, 
which require the approval of the Office of Management and Budget under 
44 U.S.C. 3501 et seq.

V. Cost-Benefit Analysis

    Congress amended Section 18 of the Securities Act to exempt covered 
securities from state registration requirements. These securities are 
listed, or authorized for listing, on the Named Markets or any other 
national securities exchange determined by the Commission to have 
substantially similar listing standards to the Named Markets.\52\ 
Consistent with statutory authority, the Commission has determined that 
the listing standards for securities listed, or authorized for listing, 
on the NCM are substantially similar to those of either the Amex or 
Nasdaq/NGM. Securities listed, or authorized for listing, on the NCM 
therefore would be covered securities subject only to federal 
regulation.
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    \52\ 15 U.S.C. 77r(b)(1)(B).
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    By exempting securities listed, or authorized for listing, on the 
NCM from state law registration requirements, the Commission expects 
that the listing process for those securities will become easier as one 
layer of regulation is eliminated. Moreover, the Commission also 
expects adoption of the rule will reduce the administrative burden the 
issuers of covered securities face inasmuch as compliance with state 
blue

[[Page 20414]]

sky law requirements is preempted.\53\ The Commission solicited 
comments concerning the costs and benefits associated with the proposal 
and received two comments. The commenters believe that the proposed 
amendments to Rule 146(b) to provide ``covered securities'' status for 
securities authorized for listing, or approved for listing on the NCM, 
should reduce substantial costs for investors, given those securities 
would be exempted from state law registration requirements.\54\
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    \53\ Several commenters also expect this outcome. See ABA 
Committee April 3rd Letter; ABA Committee December 20th Letter; and 
Kennedy Letter, supra note 10.
    \54\ See ABA Committee December 20th Letter and Kennedy Letter, 
supra note 10.
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    The Commission also believes that the amendment to Rule 146(b) will 
permit Nasdaq to compete with other markets whose listed securities are 
exempt from state law registration requirements for new securities 
products and listings. This result has the potential to enhance 
competition and, potentially, liquidity, thus benefiting market 
participants and the public. The Commission does not believe that there 
are any significant costs to investors associated with the preemption 
of state registration requirements for securities listed, or authorized 
for listing, on the NCM. The Commission notes that there may be some 
cost to investors through the loss of benefits of state registration 
and oversight, although the cost is difficult to quantify. Furthermore, 
the Commission believes that Congress contemplated these costs to the 
economic benefits of exempting covered securities from state 
regulation.

VI. Consideration of Promotion of Efficiency, Competition, and Capital 
Formation

    As required under the Securities Act,\55\ the Commission considered 
the rule's impact on efficiency, competition, and capital formation. 
National securities exchanges compete for the listing of securities. 
Thus, the Commission believes that amending Rule 146(b) to designate 
securities listed, or authorized for listing, on the NCM as covered 
securities will offer potential benefits for investors because it would 
facilitate the ability of Nasdaq to compete for listings, which will 
potentially increase competition and enhance the overall liquidity, and 
thus the efficiency of the U.S. securities markets. The Commission also 
believes that the rule will serve to reduce the cost of raising capital 
because it will streamline the registration process for issuers listing 
on the NCM. In addition, the Commission believes that the rule 
amendment, consistent with Congressional action, is designed to promote 
efficiency by removing a layer of duplicative regulation. The 
Commission solicited comments on the amendment's effect on competition, 
efficiency, and capital formation. Commenters generally believed that 
this proposal would improve efficiency and facilitate capital formation 
by eliminating state registration for issuers seeking to list their 
securities on the NCM.\56\ The Commission also believes that the 
amendment to Rule 146(b) will permit Nasdaq to compete with other 
markets whose securities are exempt from state law registration 
requirements for new securities products and listings. Finally, the 
amendment to Rule 146(b) will not impair efficiency, competition, and 
capital formation because it will impose no recordkeeping or compliance 
burdens, but will provide a limited purpose exemption under the federal 
securities laws. Thus, the Commission concludes that the amendment to 
Rule 146(b) would promote efficiency, competition, and capital 
formation.
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    \55\ 15 U.S.C. 77b(b).
    \56\ See ABA Committee April 3rd Letter; ABA Committee December 
20th Letter; and Kennedy Letter, supra note 10.
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VII. Regulatory Flexibility Act Certification

    The Commission has certified, pursuant to Section 605(b) of the 
Regulatory Flexibility Act,\57\ that the amendment to Rule 146 will not 
have a significant economic impact on a substantial number of small 
entities. This certification was incorporated into the Proposing 
Release. The Commission solicited comments as to the nature of any 
impact on small entities, and generally on whether the amendment to 
Rule 146(b) could have an effect that has not been considered. No 
comments were received.
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    \57\ 5 U.S.C. 605(b).
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VIII. Statutory Authority

    The Commission is amending Rule 146 pursuant to the Securities Act 
of 1933,\58\ particularly Sections 18(b)(1)(B) and 19(a).\59\
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    \58\ 15 U.S.C. 77a et seq.
    \59\ 15 U.S.C. 77r(b)(1)(B) and 77s(a).
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Text of the Rule

List of Subjects in 17 CFR Part 230

    Securities.

0
For the reasons set forth in the preamble, Title 17, Chapter II of the 
Code of Federal Regulations is amended as follows:

PART 230--GENERAL RULES AND REGULATIONS, SECURITIES ACT OF 1933

0
1. The general authority citation for part 230 is revised to read as 
follows:

    Authority: 15 U.S.C. 77b, 77c, 77d, 77f, 77g, 77h, 77j, 77r, 
77s, 77z-3, 77sss, 78c, 78d, 78j, 78l, 78m, 78n, 78o, 78t, 78w, 
78ll(d), 78mm, 80a-8, 80a-24, 80a-28, 80a-29, 80a-30, and 80a-37, 
unless otherwise noted.
* * * * *

0
2. Section 230.146 is amended by revising paragraphs (b)(1) and (b)(2) 
to read as follows:


Sec.  230.146  Rules under Section 18 of the Act.

* * * * *
    (b) * * *
    (1) For purposes of Section 18(b) of the Act (15 U.S.C. 77r), the 
Commission finds that the following national securities exchanges, or 
segments or tiers thereof, have listing standards that are 
substantially similar to those of the New York Stock Exchange 
(``NYSE''), the American Stock Exchange (``Amex''), or the National 
Market System of the Nasdaq Stock Market (``Nasdaq/NGM''), and that 
securities listed, or authorized for listing, on such exchanges shall 
be deemed covered securities:
    (i) Tier I of the NYSE Arca, Inc.;
    (ii) Tier I of the Philadelphia Stock Exchange, Inc.;
    (iii) The Chicago Board Options Exchange, Incorporated;
    (iv) Options listed on the International Securities Exchange, LLC; 
and
    (v) The Nasdaq Capital Market.
    (2) The designation of securities in paragraphs (b)(1)(i) through 
(v) of this section as covered securities is conditioned on such 
exchanges' listing standards (or segments or tiers thereof) continuing 
to be substantially similar to those of the NYSE, Amex, or Nasdaq/NGM.

    Dated: April 18, 2007.

    By the Commission.
Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E7-7713 Filed 4-23-07; 8:45 am]

BILLING CODE 8010-01-P
