
[Federal Register: August 11, 2008 (Volume 73, Number 155)]
[Notices]               
[Page 46683-46685]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11au08-125]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-58297; File No. SR-NYSEArca-2008-78]

 
Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
of Proposed Rule Change To Waive Annual Fees for Securities 
Transferring to NYSE Arca From NYSE Alternext U.S.

August 4, 2008.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given 
that, on July 23, 2008, NYSE Arca, Inc. (``NYSE Arca'' 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 Exchange. The Commission is publishing 
this notice to solicit comments on the proposal from interested 
persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend its rules governing NYSE Arca, LLC 
(also referred to as the ``NYSE Arca Marketplace''), which is the 
equities trading facility of NYSE Arca Equities. The Exchange proposes 
that securities transferring to NYSE Arca from NYSE Alternext U.S. \3\ 
after the closing of the purchase of the American Stock Exchange LLC by 
NYSE Euronext (the ``Merger'') will not be charged any prorated Annual 
Fee for the remainder of the year in which the Merger takes place. The 
fee waiver in the preceding sentence will be of no further effect if 
the closing of the Merger does not take place by March 31, 2009.
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    \3\ After the closing of the Merger, the Amex will be renamed 
NYSE Alternext U.S. LLC.
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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 the 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes that securities transferring to NYSE Arca 
from NYSE Alternext U.S. after the closing of the Merger will not be 
charged any prorated Annual Fee for the remainder of the year in which 
the Merger takes place. The fee waiver in the preceding sentence will 
be of no further effect if the closing of the Merger does not take 
place by March 31, 2009.
    NYSE Euronext, the ultimate parent company of the Exchange, has 
agreed to

[[Page 46684]]

acquire the Amex pursuant to an Agreement and Plan of Merger, dated as 
of January 17, 2008. It is currently anticipated that the acquisition 
will be consummated during the third quarter of 2008.\4\ In connection 
with the acquisition, the Exchange anticipates that some issuers of 
NYSE Alternext U.S.-listed securities that qualify for listing on the 
Exchange may choose to transfer their listing to the Exchange. 
Consequently, the Exchange proposes to grant issuers transferring the 
listing of their securities to the Exchange from NYSE Alternext U.S. 
during the calendar year in which the Merger is consummated a waiver of 
the prorated annual listing fee that would normally be payable in 
connection with the first partial calendar year of listing on the 
Exchange. The Exchange believes this is appropriate as issuers 
transferring to the Exchange from NYSE Alternext U.S. will already have 
paid annual continued listing fees to the Amex for the calendar year in 
which they transfer. The proposed fee waiver will have no further 
effect if the Merger is not consummated by March 31, 2009.
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    \4\ The members of the Amex voted to approve the transaction on 
June 17, 2008. No vote of the NYSE Euronext shareholders is 
required. The sole remaining condition to the consummation of the 
transaction is the approval by the Division of Trading and Markets 
of certain rule filings the NYSE and Amex expect to submit in the 
near future.
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    The Exchange believes this proposed fee waiver does not render the 
allocation of its listing fees inequitable or unfairly discriminatory, 
in particular because, after the Merger, NYSE Regulation, Inc. (``NYSE 
Regulation'') will perform listed company regulation for both the 
Exchange and NYSE Alternext U.S., including a substantial review of 
companies upon original listing. Many of the regulatory staff who 
currently perform initial and continued listing reviews at the Amex 
will become employees of NYSE Regulation at the time of the Merger and 
will continue to perform the same duties with respect to NYSE Alternext 
U.S. securities after the Merger. Securities transferring from NYSE 
Alternext U.S. will be subjected to the same rigorous regulatory review 
as any other securities with respect to which an application for 
listing is made to the Exchange. However, the Exchange expects that, on 
average, the review of securities transferring from NYSE Alternext U.S. 
to the Exchange will be less costly than the review of a transfer from 
an unaffiliated market, as the Amex listing regulatory staff that will 
have been absorbed by NYSE Regulation will already have performed a 
substantial review of any NYSE Alternext U.S.-listed issuer, and NYSE 
Regulation will be able to rely on that prior work as a baseline in 
qualifying the issuer for listing on the Exchange and in conducting 
ongoing compliance activities with respect to any such issuer.
2. Statutory Basis
    The basis under the Exchange Act for this proposed rule change is 
the requirement under Section 6(b)(4) \5\ that an exchange has rules 
that provide for the equitable allocation of reasonable dues, fees and 
other charges among its members and other persons using its facilities. 
The Exchange believes that the proposed fee waiver does not render the 
allocation of its listing fees inequitable or unfairly discriminatory 
because it is simply a recognition of the fact that issuers 
transferring the listing of securities from NYSE Alternext U.S. will 
already have paid fees to another exchange which will at that time be 
under the same ownership as the Exchange. The Exchange believes that 
the fee waiver is appropriate because the same regulatory staff will 
review securities on both markets and the Exchange will therefore 
benefit from regulatory efficiencies arising out of NYSE Regulation's 
prior examination of any issuers that transfer their securities.
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    \5\ 15 U.S.C. 78f(b)(4).
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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 Exchange Act.

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

    Written comments on the proposed rule change were neither solicited 
nor received.

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 such 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-NYSEArca-2008-78 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-NYSEArca-2008-78. 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 20549, on official business days between the hours 
of 10 a.m. and 3 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 available publicly. All 
submissions should refer to File Number SR-NYSEArca-2008-78 and should 
be submitted on or before September 2, 2008.


[[Page 46685]]


    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\6\
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    \6\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-18387 Filed 8-8-08; 8:45 am]

BILLING CODE 8010-01-P
