[Federal Register Volume 70, Number 85 (Wednesday, May 4, 2005)]
[Notices]
[Pages 23288-23290]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E5-2169]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-51628; File No. SR-NYSE-2005-28]


Self-Regulatory Organizations; Notice of Filing and Immediate 
Effectiveness of Proposed Rule Change by the New York Stock Exchange, 
Inc. Relating to Its Original Financial Listing Standards Pilot Program

April 28, 2005.
    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 April 25, 2005, 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 and 
II below, which items have been prepared by the Exchange. The proposed 
rule change has been filed by the NYSE as a ``non-controversial'' rule 
change pursuant to Rule 19b-4(f)(6) under the Act.\3\ 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.
    \3\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange seeks to extend its original financial listing 
standards pilot program (the ``Pilot Program'') \4\ until the earlier 
of July 31, 2005, or such date as the Commission may approve File 
Number SR-NYSE-2004-20,\5\ which seeks permanent approval of the Pilot 
Program. The Pilot Program established revised financial standards 
applicable to the listing of equity securities on the Exchange. The 
Pilot Program is currently in effect on an extended basis until the 
earlier of April 30, 2005, or such date as the Commission may approve 
File Number SR-NYSE-2004-20.\6\
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    \4\ See Securities Exchange Act Release Nos. 51104 (January 28, 
2005), 70 FR 6482 (February 7, 2005) (File No. SR-NYSE-2005-08); 
50615 (October 29, 2004), 69 FR 64799 (November 8, 2004) (File No. 
SR-2004-58); 50123 (July 29, 2004), 69 FR 57474 (August 5, 2004) 
(File No. SR-NYSE-2004-40); and 49154 (January 29, 2004), 69 FR 5633 
(February 5, 2004) (approving File No. SR-NYSE-2003-43).
    \5\ See Securities Exchange Act Release No. 51332 (March 8, 
2005), 70 FR 15392 (March 25, 2005).
    \6\ See Securities Exchange Act Release No. 51104, supra note 4.
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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 Exchange 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 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 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    On January 29, 2004, the Commission granted accelerated approval to 
the Pilot Program on a six-month pilot basis through July 30, 2004.\7\ 
Two comments were received in response to File Number SR-NYSE-2003-
43.\8\ The NYSE thereafter filed File Number SR-NYSE-2004-15 on March 
16, 2004 for immediate effectiveness,\9\ which suspended portions of 
the original Pilot Program regarding minimum numerical continued 
listing set forth in section 802.01B of the NYSE's Listed Company 
Manual. In File Number SR-NYSE-2004-15, the Exchange noted its 
intention to publish the requirements of the original Pilot Program 
regarding minimum numerical continued listing standards set forth 
Section 802.01B for public comment on a non-accelerated timeframe. File 
Number SR-NYSE-2004-15 did not, however, affect the Pilot Program with 
respect to original listing standards set forth in sections 102.01C and 
103.01B of the NYSE's Listed Company Manual or the Pilot Program's non-
substantive change to the language of section 802.01C.
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    \7\ See Securities Exchange Act Release No. 49154, supra note 4.
    \8\ See letters to Jonathan G. Katz, Secretary, Commission, from 
W. Randy Eaddy, Kilpatrick Stockton LLP, dated March 11, 2004, and 
Kenneth A. Hoogstra, von Briesen & Roper, s.c., dated February 25, 
2004.
    \9\ See Securities Exchange Act Release No. 49443 (March 18, 
2004), 69 FR 13929 (March 24, 2004) (File No. SR-NYSE-2004-15).
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    On April 4, 2004, the Exchange filed File Number SR-NYSE-2004-20, 
which seeks permanent approval for the Pilot Program currently in 
effect with respect to the Exchange's original minimum listing 
standards and approval of the continued minimum listing standards as 
originally proposed in File Number SR-NYSE-2003-43. File Number SR-
NYSE-2004-20 was published in the Federal Register on July 2, 2004.\10\ 
Three comment letters were received in response to File Number SR-NYSE-
2004-20.\11\ Following consideration of these comment letters, the 
Exchange filed Amendment No. 2 to File Number SR-NYSE-2004-20 on August 
31,

[[Page 23289]]

2004.\12\ On October 12, 2004, the Exchange filed File Number SR-NYSE-
2004-58 to extend the Pilot Program until January 31, 2005.\13\ On 
January 13, 2005, the Exchange filed File Number SR-NYSE 2005-08 to 
extend the Pilot Program until April 30, 2005.\14\Thereafter, the 
Exchange filed amendments to File Number SR-NYSE-2004-20 on November 
29, 2004,\15\ December 17, 2004,\16\ January 25, 2005,\17\ February 17, 
2005,\18\ and March 4, 2005.\19\ File Number SR-NYSE-2004-20, as 
amended, was re-published for comment in the Federal Register on March 
25, 2005.\20\ Therefore, the Exchange believes it is appropriate to 
extend the amended Pilot Program until the earlier of July 31, 2005, or 
such date as the Commission may approve File Number SR-NYSE-2004-20.
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    \10\ See supra note 5.
    \11\ See letters to Jonathan G. Katz, Secretary, Commission, 
from Richard F. Latour, President & CEO, MicroFinancial 
Incorporated, July 15, 2004, Kenneth A. Hoogstra, von Briesen & 
Roper, s.c., dated July 20, 2004, and John L. Patenaude, Vice 
President Finance and Chief Financial Officer, Nashua Corporation, 
dated July 22, 2004.
    \12\ See letter to Nancy J. Sanow, Assistant Director, Division, 
Commission, from Darla C. Stuckey, Corporate Secretary, NYSE, dated 
August 31, 2004 (``Amendment No. 2'').
    \13\ See Securities Exchange Act Release No. 50615, supra note 
4.
    \14\ See Securities Exchange Act Release No. 51104, supra note 
4.
    \15\ See Amendment No. 3, dated November 29, 2004, submitted by 
Mary Yeager, Assistant Corporate Secretary, NYSE.
    \16\ See Amendment No. 4, dated December 17, 2004, submitted by 
Mary Yeager, Assistant Corporate Secretary, NYSE.
    \17\ See Amendment No. 5, dated January 25, 2005, submitted by 
Mary Yeager, Assistant Corporate Secretary, NYSE.
    \18\ See Amendment No. 6, dated February 17, 2005, submitted by 
Mary Yeager, Assistant Corporate Secretary, NYSE.
    \19\ See Amendment No. 7, dated March 4, 2005, submitted by Mary 
Yeager, Assistant Corporate Secretary, NYSE.
    \20\ See Securities Exchange Act Release No. 51332, supra note 
5.
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b)(5) of the Act \21\ because 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 a national market system, and, 
in general, to protect investors and the public interest.
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    \21\ 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

    Written comments were neither solicited nor received with respect 
to the proposed rule change.

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

    Because the foregoing proposed rule change (1) does not 
significantly affect the protection of investors or the public 
interest; (2) does not impose any significant burden on competition; 
and (3) by its terms, does not become operative until 30 days from the 
date on which it was filed, or such shorter time as the Commission may 
designate if consistent with the protection of investors and the public 
interest, and the Exchange provided the Commission with written notice 
of its intent to file the proposed rule change at least five business 
days prior to the date of filing of the proposed rule change, or such 
shorter time as designated by the Commission, it has become effective 
pursuant to section 19(b)(3)(A) of the Act \22\ and Rule 19b-4(f)(6) 
thereunder.\23\ At any time within 60 days of the filing of this 
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.
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    \22\ 15 U.S.C. 78s(b)(3)(A).
    \23\ 17 CFR 240.19b-4(f)(6).
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    Although Rule 19b-4(f)(6) under the Act \24\ requires that an 
Exchange submit a notice of its intent to file at least five business 
days prior to the filing date, the Commission is waiving this 
requirement at the Exchange's request in view of the fact that the 
proposed rule change seeks to continue the existing Pilot Program. The 
NYSE has also requested that the Commission waive the 30-day operative 
delay. The Commission believes waiving the 30-day operative delay is 
consistent with the protection of investors and the public interest. 
Waiver of the operative date will allow the Exchange's Pilot Program to 
continue without any interruption in service to issuers and investors. 
For these reasons, the Commission designates the proposal to be 
effective and operative upon filing with the Commission.\25\
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    \24\ Id.
    \25\ For purposes only of waiving the 30-day operative delay of 
this proposal, the Commission has considered the proposed rule's 
impact on efficiency, competition, and capital formation. 15 U.S.C. 
78c(f).
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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 [email protected]. Please include 
File Number SR-NYSE-2005-28 on the subject line.

Paper Comments

     Send paper comments in triplicate to Jonathan G. Katz, 
Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., 
Washington, DC 20549-0609.
    All submissions should refer to File Number SR-NYSE-2005-28. 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 Section, 450 Fifth 
Street, NW., Washington, DC 20549. Copies of such filing also will be 
available on NYSE's Web site (http://www.nyse.com/regulation/construles/1098741855384.html) and for inspection and copying at the 
principal office of NYSE. 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-2005-28 and should be submitted on or before May 25, 2005.


[[Page 23290]]


    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\26\
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    \26\ 17 CFR 200.30-3(a)(12).
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J. Lynn Taylor,
Assistant Secretary.
[FR Doc. E5-2169 Filed 5-3-05; 8:45 am]
BILLING CODE 8010-01-P