[Federal Register Volume 68, Number 137 (Thursday, July 17, 2003)]
[Notices]
[Pages 42438-42442]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-18067]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-48151; File No. SR-Amex-2003-63]


Self-Regulatory Organizations; Notice of Filing and Order 
Granting Accelerated Approval of Proposed Rule Change and Amendment No. 
1 Thereto by the American Stock Exchange LLC Relating to the Listing 
and Trading of Notes Linked to the Performance of the Amex 
Biotechnology Index

July 10, 2003.
    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 June 17, 2003, the American Stock Exchange LLC (``Amex'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``SEC'' or ``Commission'') the proposed rule change as described in 
Items I and II below, which Items have been prepared by the Exchange.

[[Page 42439]]

On June 23, 2003, the Exchange filed Amendment No. 1 to the proposed 
rule change.\3\ The Commission is publishing this notice to solicit 
comments on the proposed rule change, as amended, from interested 
persons and is approving the proposal on an accelerated basis.
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    \1\ 15 U.S.C. 78s(b)(l).
    \2\ 17 CFR 240.19b-4.
    \3\ See Letter from Jeffrey P. Burns, Associate General Counsel, 
Amex, to Nancy Sanow, Assistant Director, Division of Market 
Regulation (``Division''), Commission, dated June 20, 2003 
(``Amendment No. 1''). In Amendment No. 1, the Exchange clarified 
its policy regarding the use of non-public information by employees. 
Employees involved in the selection and maintenance of the index are 
part of the marketing staff and are also covered by the insider 
trading prohibitions. Telephone conversation between Jeffrey P. 
Burns, Associate General Counsel, Amex, and Mia C. Zur, Attorney, 
Division of Market Regulation, Commission, on July 7, 2003.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to list and trade under section 107A of the 
Amex Company Guide (``Company Guide''), notes linked to the performance 
of the Amex Biotechnology Index (the ``Biotech Index'' or Index'').

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 Amex 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 these statements may be examined at the places specified in 
Item III below. The Amex 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 the 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    Under section 107A of the Company Guide, the Exchange may approve 
for listing and trading securities which cannot be readily categorized 
under the listing criteria for common and preferred stocks, bonds, 
debentures, or warrants.\4\ The Amex proposes to list for trading under 
section 107A of the Company Guide notes, the performance of which is 
linked to the Biotech Index (the ``Accelerated Return Notes'' or 
``Notes'').\5\ The Biotech Index is determined, calculated and 
maintained solely by the Amex.\6\ The Notes will provide for a 
multiplier of any positive performance of the Index during such term 
subject to a maximum payment amount or ceiling.
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    \4\ See Securities Exchange Act Release No. 27753 (March 1, 
1990), 55 FR 8626 (March 8, 1990) (order approving File No. SR-Amex-
89-29).
    \5\ Merrill Lynch & Co., Inc. (``Merrill Lynch'') and the Amex 
have entered into a non-exclusive license agreement providing for 
the use of the Index by Merrill Lynch and certain affiliates and 
subsidiaries in connection with certain securities including these 
Notes. Amex is not responsible and will not participate in the 
issuance and creation of the Notes.
    \6\ The Biotech Index is an equal dollar weighted index designed 
to measure the performance of a cross section of companies in the 
biotechnology industry that are primarily involved in the use of 
biological processes to develop products or provide services. Such 
processes include, but are not limited to, recombinant DNA 
technology, molecular biology, genetic engineering, monoclonal 
antibody-based technology, lipid/liposome technology, and genomics. 
The Index was established with a benchmark value of 200.00 on 
October 18, 1991. The Index is rebalanced quarterly based on closing 
prices on the third Friday in January, April, July & October to 
ensure that each component stock continues to represent 
approximately equal weight in the Index. The securities included in 
the Biotech Index are listed on the Amex, New York Stock Exchange, 
Inc. (``NYSE'') or traded through the Nasdaq Stock Market, Inc. 
(``Nasdaq'').
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    The Notes will conform to the listing guidelines under section 107A 
\7\ and continued listing guidelines under sections 1001-1003 \8\ of 
the Company Guide. The Notes are senior non-convertible debt securities 
of Merrill Lynch. The Notes will have a term of not less than one, nor 
more than ten years. Merrill Lynch will issue the Notes in 
denominations of whole units (a ``Unit''), with each Unit representing 
a single Note. The original public offering price will be $10 per Unit. 
The Notes will entitle the owner at maturity to receive an amount based 
upon the percentage change of the Biotech Index. At maturity, if the 
value of the Index has increased over the term of the Notes, a 
beneficial owner will be entitled to receive a payment on the Notes 
equal to three (3) times the amount of that percentage increase, not to 
exceed a maximum payment (the ``Capped Value'') to be determined at the 
time of issuance of the Notes.\9\ The Notes will not have a minimum 
principal amount that will be repaid, and accordingly, payment on the 
Notes prior to or at maturity may be less than the original issue price 
of the Notes. Accordingly, the Notes are not ``principal protected,'' 
and are fully exposed to any decline in the level of the Biotech 
Index.\10\ The Notes are also not callable by the Issuer.
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    \7\ The initial listing standards for the Notes require: (1) A 
minimum public distribution of one million units; (2) a minimum of 
400 shareholders; (3) a market value of at least $4 million; and (4) 
a term of at least one year. In addition, the listing guidelines 
provide that the issuer have assets in excess of $100 million, 
stockholder's equity of at least $10 million, and pre-tax income of 
at least $750,000 in the last fiscal year or in two of the three 
prior fiscal years. In the case of an issuer which is unable to 
satisfy the earning criteria stated in section 101 of the Company 
Guide, the Exchange will require the issuer to have the following: 
(1) assets in excess of $200 million and stockholders' equity of at 
least $10 million; or (2) assets in excess of $100 million and 
stockholders' equity of at least $20 million.
    \8\ The Exchange's continued listing guidelines are set forth in 
sections 1001 through 1003 of Part 10 to the Exchange's Company 
Guide. section 1002(b) of the Company Guide states that the Exchange 
will consider removing from listing any security where, in the 
opinion of the Exchange, it appears that the extent of public 
distribution or aggregate market value has become so reduced to make 
further dealings on the Exchange inadvisable. With respect to 
continued listing guidelines for distribution of the Notes, the 
Exchange will rely, in part, on the guidelines for bonds in Section 
1003(b)(iv). Section 1003(b)(iv)(A) provides that the Exchange will 
normally consider suspending dealings in, or removing from the list, 
a security if the aggregate market value or the principal amount of 
bonds publicly held is less than $400,000.
    \9\ The capped value is expected to represent an appreciation of 
16% to 20% over the original public offering price of the Notes. 
Thus, maximum payment is not expected to exceed between $11.60 and 
$12.00 per Note. See Merrill Lynch & Co., Inc., Accelerated Return 
Notes Linked to the Amex Biotechnology IndexSM, 
Preliminary Prospectus Supplement dated June 16, 2003.
    \10\ A negative return of the Index will reduce the redemption 
amount at maturity with the potential that the holder of the Note 
could lose his entire investment.
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    The payment that a holder or investor of a Note will be entitled to 
receive (the ``Redemption Amount'') depends entirely on the relation of 
the average of the values of the Biotech Index at the close of the 
market on the five (5) business days shortly before the maturity of the 
Notes (the ``Ending Value'') and the closing value of the Biotech Index 
on the date the Notes are priced for initial sale to the public (the 
``Starting Value'').
    If the Ending Value is greater than the Starting Value, the 
Redemption Amount per Unit will equal:
[GRAPHIC] [TIFF OMITTED] TN17JY03.000


[[Page 42440]]


    If the Ending Value is less than or equal to the Starting Value, 
the Redemption Amount per Unit will equal:
[GRAPHIC] [TIFF OMITTED] TN17JY03.001

    The Notes are cash-settled in U.S. dollars and do not give the 
holder any right to receive a portfolio security, dividend payments or 
any other ownership right or interest in the portfolio of securities 
comprising the Biotech Index. The Notes are designed for investors who 
want to participate or gain exposure to the Biotech Index, subject to a 
cap, and who are willing to forego market interest payments on the 
Notes during such term. The Commission has previously approved the 
listing of options, and securities the performance of which have been 
linked to, or based on, the Biotech Index.\11\
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    \11\ See Securities Exchange Act Release Nos. 31245 (September 
28, 1992), 57 FR 45844 (October 5, 1992) (approving the listing and 
trading of long-term options (``LEAPS'') based on the Amex 
Biotechnology Index and a reduced value Amex Biotechnology Index); 
and 45305 (January 17, 2002), 67 FR 3753 (January 25, 2002) 
(approving the listing and trading of non-principal protected 
exchangeable notes linked to the Biotech-Pharmaceutical Index).
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    As of June 12, 2003, the market capitalization of the securities 
included in the Biotech Index ranged from a high of $84.1 billion to a 
low of $556.2 million. The average daily trading volume for these same 
securities for the last six (6) months, as of the same date, ranged 
from a high of 11.6 million shares to a low of 349,268 shares.\12\ The 
value of the Biotech Index will be disseminated at least once every 
fifteen (15) seconds throughout the trading day.
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    \12\ As of June 12, 2003 the Biotech Index was composed of 
shares of the following companies: Affymetrix, Inc. (AFFX); Amgen 
Inc. (AMGN); Applera Corporation--Celera Genomics Group (CRA); 
Biogen, Inc. (BGEN); Cephalon, Inc. (CEPH); Chiron Corporation 
(CHIR); Enzon, Inc. (ENZN); Genentech, Inc. (DNA); Genzyme 
Corporation (GENZ); Gilead Sciences, Inc. (GILD); Human Genome 
Sciences, Inc. (HGSI); IDEC Pharmaceuticals Corporation (IDPH); 
Invitrogen Corporation (IVGN); Medimmune, Inc. (MEDI); Millennium 
Pharmaceuticals, Inc. (MLNM); Protein Design Labs, Inc. (PDLI) and 
Vertex Pharmaceuticals Incorporated (VRTX).
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    Because the Notes are linked to an index comprised of equity 
securities, the Amex's existing equity floor trading rules will apply 
to the trading of the Notes. First, pursuant to Amex Rule 411, the 
Exchange will impose a duty of due diligence on its members and member 
firms to learn the essential facts relating to every customer prior to 
trading the Notes.\13\ Second, the Notes will be subject to the equity 
margin rules of the Exchange.\14\ Third, the Exchange will, prior to 
trading the Notes, distribute a circular to the membership providing 
guidance with regard to member firm compliance responsibilities 
(including suitability recommendations) when handling transactions in 
the Notes and highlighting the special risks and characteristics of the 
Notes. With respect to suitability recommendations and risks, the 
Exchange will require members, member organizations and employees 
thereof recommending a transaction in the Notes: (1) To determine that 
such transaction is suitable for the customer, and (2) to have a 
reasonable basis for believing that the customer can evaluate the 
special characteristics of, and is able to bear the financial risks of 
such transaction. In addition, Merrill Lynch will deliver a prospectus 
in connection with the initial sales of the Notes.
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    \13\ Amex Rule 411 requires that every member, member firm or 
member corporation use due diligence to learn the essential facts, 
relative to every customer and to every order or account accepted.
    \14\ See Amex Rule 462.
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    The Exchange represents that its surveillance procedures are 
adequate to properly monitor the trading of the Notes. Specifically, 
the Exchange will rely on its existing surveillance procedures 
governing equities, which have been deemed adequate under the Act. In 
addition, the Exchange also has a general policy, which prohibits the 
distribution of material, non-public information by its employees.
2. Statutory Basis
    The Exchange believes that the proposed rule change, as amended, is 
consistent with section 6(b) of the Act \15\ in general, and furthers 
the objectives of section 6(b)(5),\16\ in particular, in that it is 
designed to prevent fraudulent and manipulative acts and practices, to 
promote just and equitable principles of trade, to remove impediments 
to and perfect the mechanism of a free and open market and, in general, 
to protect investors and the public interest.
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    \15\ 15 U.S.C. 78f(b).
    \16\ 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.

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

    The Exchange did not receive any written comments on the proposed 
rule change.

III. Solicitation of Comments

    Interested persons are invited to submit written data, views and 
arguments concerning the foregoing, including whether the proposed rule 
change, as amended, is consistent with the Act. Persons making written 
submissions should file six copies thereof with the Secretary, 
Securities and Exchange Commission, 450 Fifth Street, NW., Washington, 
DC 20549-0609. 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 at the Commission's Public Reference Room. Copies of such 
filing will also be available for inspection and copying at the 
principal office of the Exchange. All submissions should refer to the 
File No. SR-Amex-2003-63 and should be submitted by August 7, 2003.

IV. Commission's Findings and Order Granting Accelerated Approval of 
Proposed Rule Change

    After careful consideration, 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, and, in particular, with the requirements of section 6(b)(5) 
of the Act.\17\ The Commission finds that this proposal is similar to 
several approved instruments

[[Page 42441]]

currently listed and traded on the Amex.\18\ Accordingly, the 
Commission finds that the listing and trading of the Notes based on the 
Index is consistent with the Act and will promote, among other things, 
just and equitable principles of trade and will facilitate transactions 
in securities, and, in general, protect investors and the public 
interest consistent with section 6(b)(5) of the Act.\19\
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    \17\ 15 U.S.C. 78f(b)(5).
    \18\ See Securities Exchange Act Release Nos. 47983 (June 4, 
2003), 68 FR 35032 (June 11, 2003) (approving the listing and 
trading of non-principal protected notes linked to the S&P 500); 
47911 (May 22, 2003), 68 FR 32558 (May 30, 2003) (approving the 
listing and trading of non-principal protected notes linked to the 
S&P 500); 46883 (November 21, 2002), 67 FR 71216 (November 29, 2002) 
(approving the listing and trading of non-principal protected notes 
linked to the DJIA); and 45305 (January 17, 2002), 67 FR 3753 
(January 25, 2002) (approving the listing and trading of non-
principal protected exchangeable notes linked to the Biotech-
Pharmaceutical Index).
    \19\ 15 U.S.C. 78f(b)(5). In approving this rule, the Commission 
notes that it has considered the proposed rule's impact on 
efficiency, competition, and capital formation. 15 U.S.C. 78c(f).
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    As described more fully above, at maturity, the holder of a Note 
will receive an amount based upon the percentage change of the Biotech 
Index. Specifically, at maturity, the holder of a Note will be entitled 
to receive a payment equal to three times the amount of that percentage 
increase, not to exceed a certain maximum payment, if the value of the 
Biotech Index has increased over the term of such Note. The Notes will 
provide investors who are willing to forego market interest payments 
during the term of the Notes with a means to participate or gain 
exposure to the Index, subject to a cap.
    The Commission notes that the Notes are not-leveraged, non-
principal protected instruments. The Notes are debt instruments whose 
price will be derived and based upon the value of the Biotech Index. 
The Notes do not have a minimum principal amount that will be repaid at 
maturity, and the payments of the Notes prior to or at maturity may be 
less than the original issue price of the Notes. Thus, if the value of 
the Biotech Index has declined at maturity, the holder of the Note will 
receive less than the original public offering price of the Note. 
Accordingly, the level of risk involved in the purchase or sale of the 
Notes is similar to the risk involved in the purchase or sale of 
traditional common stock. Because the final rate of return of the Notes 
is derivatively priced and based upon the performance of an index of 
securities, because the Notes are debt instruments that do not 
guarantee a return of principal, and because investors' potential 
return is limited by the Capped Amount, if the value of the Biotech 
Index has increased over the term of such Note, there are several 
issues regarding the trading of this type of product. However, for the 
reasons discussed below, the Commission believes that the Exchange's 
proposal adequately addresses the concerns raised by this type of 
product.
    The Commission notes that the Exchange's rules and procedures that 
address the special concerns attendant to the trading of hybrid 
securities will be applicable to the Notes. In particular, by imposing 
the hybrid listing standards, suitability, disclosure, and compliance 
requirements noted above, the Commission believes that the Exchange has 
addressed adequately the potential problems that could arise from the 
hybrid nature of the Notes. Moreover, the Commission notes that the 
Exchange will distribute a circular to its membership calling attention 
to the specific risks associated with the Notes. The Commission also 
notes that Merrill Lynch will deliver a prospectus in connection with 
the initial sale of the Notes. In addition, the Commission notes that 
Amex will incorporate and rely upon its existing surveillance procedure 
governing equities, which have been deemed adequate under the Act. 
Moreover, the Commission also notes that the Exchange has a general 
policy that prohibits the distribution of material, non-public 
information by its employees, which is necessary given Amex's role in 
selecting components and maintaining the Index.
    In approving this product, the Commission recognizes, that Biotech 
Index is an equal dollar weighted index listed on Nasdaq, the NYSE and 
the Amex. The Commission notes that the Biotech Index is determined, 
calculated, and maintained by Amex. As of June 12, 2003, the market 
capitalization of the securities included in the Biotech Index ranged 
from a high of $84.1 billion to a low of $556.2 million. The average 
daily trading volume for these same securities for the last six (6) 
months, as of the same date, ranged from a high of 11.6 million shares 
to a low of 349,268 shares.\20\
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    \20\ As of June 12, 2003 the Biotech Index was composed of 
shares of the following companies: Affymetrix, Inc. (AFFX); Amgen 
Inc. (AMGN); Applera Corporation-Celera Genomics Group (CRA); 
Biogen, Inc. (BGEN); Cephalon, Inc. (CEPH); Chiron Corporation 
(CHIR); Enzon, Inc. (ENZN); Genentech, Inc. (DNA); Genzyme 
Corporation (GENZ); Gilead Sciences, Inc. (GILD); Human Genome 
Sciences, Inc. (HGSI); IDEC Pharmaceuticals Corporation (IDPH); 
Invitrogen Corporation (IVGN); Medimmune, Inc. (MEDI); Millennium 
Pharmaceuticals, Inc. (MLNM); Protein Design Labs, Inc. (PDLI) and 
Vertex Pharmaceuticals Incorporated (VRTX).
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    Given the relatively large trading volume and capitalization of the 
compositions of the stocks underlying the Biotech Index, the Commission 
believes that the listing and trading of the Notes that are linked to 
the Biotech Index, should not unduly impact the market for the 
underlying securities comprising the Biotech Index or raise 
manipulative concerns. As discussed more fully above, the underlying 
stocks comprising the Biotech Index are well-capitalized, highly liquid 
stocks. Moreover, the issuers of the underlying securities comprising 
the Biotech Index, are subject to reporting requirements under the Act, 
and all of the component stocks are either listed or traded on, or 
traded through the facilities of, U.S. securities markets. 
Additionally, the Amex's surveillance procedures will serve to deter as 
well as detect any potential manipulation.
    Furthermore, the Commission notes that the Notes are depending upon 
the individual credit of the Issuer, Merrill Lynch. To some extent this 
credit risk is minimized by the Exchange's listing standards in section 
107A of the Company Guide which provide the only issuers satisfying 
substantial asset and equity requirements may issues securities such as 
the Notes. In addition, the Exchange's ``Other Securities'' listing 
standards further require that the Notes have a market value of at 
least $4 million.\21\ Furthermore, financial information regarding 
Merrill Lynch, in addition to the information on the common stocks 
comprising the Biotech Index, will be publicly available.\22\
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    \21\ See Company Guide Section 107A.
    \22\ The Commission notes that the component stocks that 
comprise the Biotech Index are reporting companies under the Act, 
and the Notes will be registered under section 12 of the Act.
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    The Commission also has a systemic concern, however, that a broker-
dealer such as Merrill Lynch, or a subsidiary providing a hedge for the 
issuer will incur position exposure. However, as the Commission has 
concluded in previous approval orders for other hybrid instruments 
issued by broker-dealers,\23\ the Commission believes that this concern 
is minimal given the size

[[Page 42442]]

of the Notes issuance \24\ in relation to the net worth of Merrill 
Lynch.
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    \23\ See Securities Exchange Act Release Nos. 44913 (October 9, 
2001), 66 FR 52469 (October 15, 2001) (order approving the listing 
and trading of notes whose return is based on the performance of the 
Nasdaq-100 Index) (File No. SR-NASD-2001-73); 44483 (June 27, 2001), 
66 FR 35677 (July 6, 2001) (order approving the listing and trading 
of notes whose return is based on a portfolio of 20 securities 
selected from the Amex Institutional Index) (File No. SR-Amex-2001-
40); and 37744 (September 27, 1996), 61 FR 52480 (October 7, 1996) 
(order approving the listing and trading of notes whose return is 
based on a weighted portfolio of healthcare/biotechnology industry 
securities) (File No. SR-Amex-96-27).
    \24\ The Commission notes that the issuance is $10 million. See 
Merrill Lynch & Co., Inc., Accelerated Return Notes Linked to the 
Amex Biotechnology Index \SM\, Preliminary Prospectus Supplement 
dated June 16, 2003.
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    Finally, the Commission notes that the value of the Biotech Index 
will be disseminated at least once every fifteen seconds throughout the 
trading day. The Commission believes that providing access to the value 
of the Biotech Index at least once every fifteen seconds throughout the 
trading day is extremely important and will provide benefits to 
investors in the product.
    The Commission finds good cause for approving the proposed rule 
change, as amended, prior to the thirtieth day after the date of 
publication of the notice of filing thereof in the Federal Register. 
The Exchange has requested accelerated approval because this product is 
similar to several other instruments currently listed and traded on the 
Amex.\25\
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    \25\ See supra note 17.
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    The Commission believes that the Notes will provide investors with 
an additional investment choice and that accelerated approval of the 
proposal will allow investors to begin trading the Notes promptly. 
Additionally, the Notes will be listed pursuant to Amex's existing 
hybrid security listing standards as described above. Based on the 
above, the Commission believes there is good cause, consistent with 
section 6(b)(5) and 19(b)(2) of the Act,\26\ to approve the proposal, 
as amended, on an accelerated basis.
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    \26\ 15 U.S.C. 78f(b)(5) and 78s(b)(2).
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V. Conclusion

    It is therefore ordered, pursuant to section 19(b)(2) of the 
Act,\27\ that the proposed rule change (SR-Amex-2003-63), as amended, 
is hereby approved on an accelerated basis.
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    \27\ 15 U.S.C. 78s(b)(2).
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    For the Commission by the Division of Market Regulation, pursuant 
to delegated authority.\28\
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    \28\ 17 CFR 200.30-3(A)(12).

Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 03-18067 Filed 7-16-03; 8:45 am]
BILLING CODE 8010-01-P