
[Federal Register: December 8, 2009 (Volume 74, Number 234)]
[Notices]               
[Page 64797-64798]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08de09-117]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-61091; File No. SR-NYSE-2009-117]

 
Self-Regulatory Organizations; New York Stock Exchange LLC; 
Notice of Filing of Proposed Rule Change Amending Its Listing Fees for 
Structured Products

December 1, 2009.
    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 November 19, 2009, New York Stock Exchange LLC (``NYSE'' 
or the ``Exchange'') filed with the Securities and Exchange Commission 
(the ``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.
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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 proposes to apply a maximum fee in any calendar year 
(including initial and annual listing fees) of $500,000 in connection 
with the listing under Section 902.05 of the Listed Company Manual (the 
``Manual'') of any individual issuance of securities.
    The text of the proposed rule change is available on the Exchange's 
Web site at http://www.nyse.com, at the Exchange's Office of the 
Secretary 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 the 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to apply a maximum listing fee in any 
calendar year (including initial and annual listing fees) of $500,000 
in connection with the listing under Section 902.05 of the Manual of 
any individual issuance of securities.
    Section 902.05 sets forth listing fees applicable to securities 
traded on the equity floor of the Exchange and listed under Section 
703.18, the equity criteria set out in Section 703.19, and Section 
703.21. Section 902.05 currently provides that issuers of ``retail debt 
securities'' (i.e., debt securities that are listed under the equity 
criteria set out in Section 703.19 and traded on the equity floor of 
the Exchange) are subject to an annual maximum aggregate listing fee of 
$500,000 for all retail debt securities issued in a calendar year. 
Companies are also subject under Section 902.02 to the maximum of 
$500,000 per issuer for initial and annual fees payable on listed 
equity securities. In addition, as stated in Sections 902.02 and 
902.05, the total maximum fee of $500,000 billable to an issuer in a 
calendar year under the fee cap in Section 902.02 includes all annual 
fees billed to an issuer for listed retail debt securities. By 
contrast, securities listed under Section 902.05 other than retail debt 
securities are not subject to the maximum fees set forth in Section 
902.02 or any maximum fee established in Section 902.05 itself. 
Consequently, the Exchange believes that it is appropriate to establish 
a maximum fee in any calendar year (including both initial and annual 
listing fees) per issuance listed under Section 902.05 of $500,000. 
Doing so addresses an anomaly under the Exchange's fee structure, 
whereby issuers of securities listed under Section 902.05 (other than 
retail debt securities) could pay fees in excess of $500,000, while 
their fees for all other categories of securities would be capped. The 
Exchange notes that--based on historical experience--it is quite rare 
for a transaction to be subject to initial or annual listing fees under 
Section 902.05 that exceed $500,000, [sic] As such, the Exchange does 
not believe that the revenue it would forego as a result of the 
proposed fee cap would negatively affect its ability to fund its 
regulatory program. The Exchange believes it is appropriate to have a 
separate fee cap for each individual issuance of structured products, 
as many companies (especially in the financial sector) list multiple 
new classes of structured products within a calendar year, requiring 
the repeated utilization of the Exchange's operational and regulatory 
resources to a degree that is not normally the case with respect to 
equity securities subject to the cap under Section 902.02.
    The Exchange proposes to apply Section 902.05 as amended by this 
filing retroactively to any securities listed on or after the date of 
original submission of this filing. The Exchange believes this approach 
is appropriate, as it will enable companies to benefit from the 
proposed fee cap without having to delay their listing until after 
Commission approval of the filing solely for the purpose of benefitting 
from that fee reduction. The Exchange notes that no company will pay 
higher initial or annual listing fees in connection with the listing of 
structured products as a result of the proposed amendment and some 
companies will pay less if their fees in relation to an individual 
structured product would exceed $500,000 in the absence of the proposed 
cap.
2. Statutory Basis
    The bases under the Act for this proposed rule change are the 
requirement under Section 6(b)(4) \4\ that an exchange have rules that 
provide for the equitable allocation of reasonable dues, fees and other 
charges among its members, listed companies and other persons using its 
facilities and the requirement under Section 6(b)(5) \5\ that an 
exchange have rules that are not designed to permit unfair 
discrimination between customers, issuers, brokers, or dealers. The

[[Page 64798]]

Exchange believes that the proposed new cap on initial and annual 
listing fees for structured products represents an equitable allocation 
of fees among its listed companies, as all companies listing structured 
products will be subject to the same fee schedule.
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    \4\ 15 U.S.C. 78f(b)(4).
    \5\ 15 U.S.C. 78f(b)(5).
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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

    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

    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-2009-117 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-NYSE-2009-117. 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 the filing will also 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-NYSE-2009-117 and should be 
submitted on or before December 29, 2009.
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    \6\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\6\
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-29141 Filed 12-7-09; 8:45 am]

BILLING CODE 8011-01-P
