[Federal Register Volume 68, Number 209 (Wednesday, October 29, 2003)]
[Notices]
[Pages 61710-61711]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-27227]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-48685; File No. SR-NYSE-2003-32]


Self-Regulatory Organizations; Notice of Filing and Immediate 
Effectiveness of Proposed Rule Change by the New York Stock Exchange, 
Inc. Relating to the Listing Fees for Closed-End Funds

October 23, 2003.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice hereby is given that 
on October 9, 2003, the New York Stock Exchange, Inc. (``NYSE'' 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 NYSE 
has represented that the proposal meets the criteria of paragraph 
(f)(6) of Rule 19b-4 and, therefore, may take effect immediately. 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\ 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 NYSE proposes to amend Section 902.02 of its Listed Company 
Manual to implement a $75,000 cap on the collective original listing 
fees payable by any two or more closed-end funds from the same fund 
family listing at the same time. Below is the text of the proposed rule 
change. Proposed new language is italicized.
* * * * *
Listed Company Manual

902.00 Listing Fees

* * * * *

902.02 Schedule of Current Listing Fees

* * * * *
A. Original Listing Fee
    A special charge of $36,800 in addition to initial fees (described 
below) is payable in connection with the original listing of a 
company's stock. In any event, each issuer is subject to a minimum 
original listing fee of $150,000 inclusive of the special charge 
referenced in the preceding sentence.
    The special charge is also applicable to an application which in 
the opinion of the Exchange is a ``back-door listing''. See Para. 
703.08 (F) for definition.
    Original listings of closed-end funds are not subject to either the 
special charge or to the minimum original listing fee. Closed end funds 
will instead pay an original listing fee based on the number of shares 
outstanding upon listing. Closed-end funds with up to 10 million shares 
outstanding will be subject to a $20,000 original listing fee, closed 
end funds with greater than 10 million shares up to 20 million shares 
outstanding will be subject to a $30,000 original listing fee, and 
closed end funds with more than 20 million shares outstanding will be 
subject to a $40,000 original listing fee. Original listings of closed-
end funds are also not subject to the initial fees described below.
    If two or more closed-end funds from the same fund family list at 
the same time, the Exchange will cap the collective original listing 
fee for those funds at $75,000. A fund family consists of closed end 
funds with a common investment adviser or investment advisers who are 
``affiliated persons'' as defined in Section 2(a)(3) of the Investment 
Company Act of 1940, as amended.
* * * * *

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 NYSE included statements 
concerning the purpose of, and basis for, the proposed rule change and 
discussed any comments it received regarding the proposed rule change. 
The text of these statements may be examined at the places specified in 
Item IV below. The NYSE 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 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    In recognition of the increasing cost pressures facing closed-end 
funds, the Exchange recently reduced the original listing fees 
applicable to closed-end funds by establishing a three-tiered structure 
based on the number of shares outstanding.\3\ Closed-end funds with up 
to 10 million shares outstanding are subject to a $20,000 original 
listing fee; funds with greater than 10 million shares up to 20 million 
shares outstanding are charged a $30,000 original listing fee; and 
funds with more than 20 million shares outstanding are subject to a 
$40,000 original listing fee.
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    \3\ See Securities Exchange Act Release No. 48360 (August 18, 
2003), 68 FR 51045 (August 25, 2003) (SR-NYSE-2003-22).
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    The Exchange states that it inadvertently omitted in SR-NYSE-2003-
22 an additional proposal to impose a cap of $75,000 on the collective 
original listing fees payable by two or more closed-end funds from the 
same fund family listing at the same time. Accordingly, the Exchange 
proposes that there be a cap of $75,000 on the collective original 
listing fees payable by a group of two or more closed-end funds from 
the same fund family listing at the same time. A fund family consists 
of closed-end funds with a common investment adviser or investment 
advisers who are ``affiliated persons'' as defined in Section 2(a)(3) 
of the Investment Company Act of 1940.\4\ The Exchange clarifies that 
the $75,000 cap is available regardless of whether the funds are 
transferring from another market or making an initial issuance of 
shares. In fact, if some of the funds listing at the same time are 
transferring to the Exchange, and others are conducting an initial 
public offering, the funds would still be eligible for the collective 
$75,000 cap.
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    \4\ 15 U.S.C. 80a-2(a)(3).
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2. Statutory Basis
    The NYSE believes that the basis for the proposed rule change is 
Section 6(b)(4) of the Act,\5\ which requires that an exchange have 
rules that provide for the equitable allocation of reasonable dues, 
fees, and other charges among its

[[Page 61711]]

members and issuers and other persons using its facilities.
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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 NYSE does not believe that the proposed rule change would 
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

    The NYSE has neither solicited nor received written comments on the 
proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    The Exchange asserts that, because the foregoing proposed rule 
change does not: (i) Significantly affect the protection of investors 
or the public interest; (ii) impose any significant burden on 
competition; and (iii) become operative for 30 days from the date on 
which it was filed (or such shorter time as the Commission may 
designate), it may become effective pursuant to Section 19(b)(3)(A) of 
the Act \6\ and Rule 19b-4(f)(6) thereunder.\7\ At any time within 60 
days of the filing of the proposed rule change, the Commission may 
summarily abrogate such rule change if it appears to the Commission 
that such action is necessary or appropriate in the public interest, 
for the protection of investors, or otherwise in furtherance of the 
purposes of the Act.\8\
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    \6\ 15 U.S.C. 78s(b)(3)(A).
    \7\ 17 CFR 240.19b-4(f)(6).
    \8\ See 15 U.S.C. 78s(b)(3)(C).
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    A proposed rule change filed under Rule 19b-4(f)(6) normally would 
not become operative prior to 30 days after the date of the filing. 
However, Rule 19b-4(f)(6) permits the Commission to designate a shorter 
time if such action is consistent with the protection of investors and 
the public interest. The Exchange has requested that the Commission 
designate the proposed rule change operative immediately upon filing. 
The Commission believes that capping the initial listing fees payable 
by any two or more closed-end funds from the same fund family will 
benefit those who invest in such funds by reducing the costs associated 
with the issuance of the shares. Accordingly, the Commission hereby 
determines to waive the 30-day pre-operative period, and the proposed 
rule change becomes operative immediately.\9\
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    \9\ For purposes only of accelerating the operative date of this 
proposal, the Commission has considered the proposed rule's impact 
on efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
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    Rule 19b-4(f)(6) also requires the self-regulatory organization 
submitting the proposed rule change to give the Commission written 
notice of its intent to file the proposed rule change, along with a 
brief description and text of the proposed rule change, at least five 
business days prior to the date of filing, or such shorter time as 
designated by the Commission. The NYSE has requested that the 
Commission waive the five-day pre-filing requirement, and the 
Commission hereby grants that request.

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. 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 File No. SR-NYSE-2003-32 and 
should be submitted by November 19, 2003.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\10\
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    \10\ 17 CFR 200.30-3(a)(12).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 03-27227 Filed 10-28-03; 8:45 am]
BILLING CODE 8010-01-P