
[Federal Register: March 25, 2009 (Volume 74, Number 56)]
[Notices]               
[Page 12918-12919]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25mr09-186]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59597; File No. SR-NYSEArca-2009-03]

 
Self-Regulatory Organizations; NYSE Arca, Inc.; Order Approving 
Proposed Rule Change To Establish a Technical Original Listing Fee 
Specific to Derivative Securities Products and Structured Products

March 18, 2009.

I. Introduction

    On January 23, 2009, NYSE Arca, Inc. (``NYSE Arca'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission''), pursuant to Section 19(b)(1) of the Securities 
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a 
proposed rule change to amend its rules governing NYSE Arca, LLC, which 
is the equities trading facility of NYSE Arca Equities, to adopt a 
technical original listing fee applicable specifically to Derivative 
Securities Products and Structured Products. Additionally, the Exchange 
is removing from the NYSE Arca Schedule of Fees and Charges, a 
reference to a fee waiver that was applicable only in 2007. The 
proposed rule change was published in the Federal Register on February 
11, 2009.\3\ The Commission received no comments on the proposal. This 
order approves the proposed rule change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 59364 (February 5, 
2009), 74 FR 6941 (hereinafter referred to as ``Notice'').
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II. Description of the Proposal

    The Exchange proposes adopting a technical original listing fee of 
$2,500 specifically for Derivative Securities Products and Structured 
Products.\4\ Derivative Securities Products and Structured Products \5\ 
are currently subject to the Exchange's existing technical original 
listing fee of $5,000, which is applicable to all listed securities, 
except for closed-end funds. A technical original listing would occur 
as a result of a change in state of incorporation, reincorporation 
under the laws of the same state, reverse split stocks, 
recapitalization, creation of a holding company or new company by 
operation of law or through an exchange offer, or similar events 
affecting the nature of a listed security. The fee applies if the 
change in the company's status is technical in nature and the 
shareholders of the original company receive or retain a share-for-
share interest in the new company without any change in their position 
in the issuer's capital structure or rights.
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    \4\ The $2,500 fee may include multiple issues of securities 
from the same issuer on the same application.
    \5\ Derivative Securities Products and Structured Products are 
defined in the NYSE Arca Schedule of Fees and Charges at notes 3 and 
4. See also Notice, supra note 3. The definitions include all 
Derivative Securities Products and Structured Products traded on 
NYSE Arca Equities.
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    The Exchange further proposes a non-substantive change by removing 
Footnote 8 to the NYSE Arca Schedule of Fees and Charges, waiving a fee 
that was applicable only in 2007 and thus no longer relevant.

[[Page 12919]]

III. Discussion and Commission's Findings

    After careful review, the Commission finds that the proposed rule 
change is consistent with the requirements of the Act and the rules and 
regulations thereunder applicable to a national securities exchange. 
Specifically, the Commission finds that the proposal is consistent with 
Section 6(b)(4) of the Act,\6\ which requires, among other things, that 
the rules of an exchange provide for the equitable allocation of 
reasonable dues, fees, and other charges among its members and issuers 
and other persons using its facilities. The Commission also finds that 
the proposal is consistent with Section 6(b)(5) of the Act,\7\ that an 
exchange have rules that are designed to remove impediments to and 
perfect the mechanism of a free and open market and a national market 
system, and are not designed to permit unfair discrimination between 
issuers.
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    \6\ 15 U.S.C. 78f(b)(4).
    \7\ 15 U.S.C. 78f(b)(5).
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    According to the Exchange, the existing $5,000 fee is unsuitable 
for Derivative Securities Products and Structured Products, because it 
is disproportionate in relation to the initial and continued listing 
fees for those securities.\8\ According to the Exchange, a $2,500 fee 
is more consistent with the pricing expectations of issuers for those 
securities. Accordingly, the Commission believes that the Exchange's 
proposed fee is reasonable, given that it will be applied consistently 
to all listed securities in those classes and is consistent with the 
Exchange's overall approach to pricing for Derivative Securities 
Products and Structured Products.
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    \8\ See Notice, supra note 3.
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    Moreover, the Commission believes that charging a one time $2,500 
application fee for multiple issues of securities on a single 
application is appropriate in light of the general fee structure for 
such products. The Commission notes that the single fee for multiple 
issues of securities applies equally to all Derivative Securities 
Products and Structured Products. Finally, the Commission also believes 
that it is appropriate to delete an obsolete reference to a fee waiver 
that expired in 2007.
    For the foregoing reasons, the Commission agrees that the proposed 
rule change does not constitute an inequitable allocation of reasonable 
dues, fees and other charges and does not permit unfair discrimination 
between issuers, and is generally consistent with the Act.\9\
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    \9\ 15 U.S.C. 78f(b)(4). In approving the proposed rule change, 
the Commission has considered the proposed rule's impact in 
efficiency, competition and capital formation. See 15 U.S.C. 78c(f).
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IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\10\ that the proposed rule change (SR-NYSEArca-2009-03) be, and it 
hereby is, approved.
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    \10\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\11\
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    \11\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-6464 Filed 3-24-09; 8:45 am]

BILLING CODE 8010-01-P
