[Federal Register Volume 70, Number 90 (Wednesday, May 11, 2005)]
[Notices]
[Pages 24849-24850]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E5-2307]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-51661; File No. SR-NYSE-2005-15]


Self-Regulatory Organizations; Notice of Filing and Immediate 
Effectiveness of Proposed Rule Change and Amendment Nos. 1 and 2 
Thereto by the New York Stock Exchange, Inc. Relating to Elimination of 
Exchange Rules 499 and 501A

May 5, 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 February 9, 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\ On March 16, 
2005, NYSE filed Amendment No. 1 to the proposed rule change.\4\ On 
April 22, 2005, NYSE filed Amendment No. 2 to the proposed rule 
change.\5\ The Commission is publishing this notice to solicit comments 
on the proposed rule change, as amended, 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).
    \4\ In Amendment No. 1, NYSE clarified that NYSE Rule 499 has 
not been updated to reflect all of the current requirements of 
Sections 801.00 through 804.00 of the NYSE Listed Company Manual.
    \5\ Amendment No. 2 superseded the originally-filed proposed 
rule change and Amendment No. 1 in their entirety.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to eliminate NYSE Rules 499 and 501A. NYSE 
Rule 499 relates to the same requirements set out in Sections 801.00 to 
804.00 of the Exchange's Listed Company Manual (the ``LCM'') and NYSE 
Rule 501A restates Section 12(d) of the Act.\6\ The Exchange also 
proposes to eliminate references to NYSE Rule 499 in Section 801.00 of 
the NYSE LCM. The text of the proposed rule change is available on the 
NYSE's Web site (http://www.nyse.com), at the NYSE's Office of the 
Secretary, and at the Commission's Public Reference Room.
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    \6\ 15 U.S.C. 78l(d).
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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
    The Exchange proposes to eliminate NYSE Rules 499 and 501A. NYSE 
Rule 499 (Suspension from Dealings or Removal from List by Action of 
the Exchange) sets forth the requirements for the continued listing of 
securities on the NYSE, as well as the procedures for delisting 
securities that do not meet the continued listing criteria. These 
requirements and procedures are also set forth as NYSE Listed Company 
Manual Sections 801.00 through 804.00, although NYSE Rule 499 has not 
been updated to reflect all of the current requirements of Sections 
801.00 through 804.00. For example, NYSE Rule 499 Supplementary 
Material .20, Numerical and Other Criteria, Item 8--REITS sets forth a 
quantitative continued listing standard for REITs of $30,000,000 in 
both total market capitalization and stockholders' equity. For purposes 
of the equivalent Listed Company Manual Section 802.01 requirement, 
this standard was amended in July 1999 \7\ and June 2001 \8\ so that 
the current continued financial listing standard for REITs is average 
market capitalization over 30 consecutive trading days of at least 
$15,000,000. Another example of the outdated nature of NYSE Rule 499 is 
Supplementary Material .20, Numerical and Other Criteria, Item 17--``A 
Class of Non-Voting Common Stock is Created.'' This item was actually 
eliminated from Section 802.01D of the Listed Company Manual in 
1996.\9\
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    \7\ See Securities Exchange Act Release No. 42194 (December 1, 
1999), 64 FR 69311 (December 10, 1999) (File No. SR-NYSE-99-29).
    \8\ See Securities Exchange Act Release No. 44481 (June 27, 
2001), 66 FR 35303 (July 3, 2001) (File No. SR-NYSE-2001-02).
    \9\ See Securities Exchange Act Release No. 37238 (May 22, 
1996), 61 FR 27123 (May 30, 1996) (File No. SR-NYSE-96-06).

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[[Page 24850]]

    The Exchange believes it is appropriate that the requirements 
relating to the continued trading and delisting of listed companies' 
securities be set forth solely in the Listed Company Manual. The 
inclusion of NYSE Rule 499 in the Exchange Rules preceded the creation 
of the Listed Company Manual and is an historical anomaly, as the 
Exchange Rules are generally applicable only to members rather than 
listed companies. Accordingly, the Exchange believes that the continued 
listing and delisting requirements are more properly solely contained 
in the Listed Company Manual.
    The Exchange also proposes to eliminate NYSE Rule 501A (Withdrawal 
from Listing and Registration Under Securities Exchange Act of 1934), 
which simply refers to and restates the Section 12(d) of the Exchange 
Act relating to the withdrawal or delisting of a security.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b)(5) of the Act \10\ 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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    \10\ 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 \11\ and Rule 19b-4(F)(6) 
thereunder.\12\ 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.\13\
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    \11\ 15 U.S.C. 78s(b)(3)(A).
    \12\ 17 CFR 240.19b-4(F)(6).
    \13\ For purposes of calculating the 60-day abrogation period, 
the Commission considers the proposed rule change to have been filed 
on April 22, 2005, the date NOSE filed Amendment No. 2.
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    Although Rule 19b-4(F)(6) under the Act \14\ 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 eliminate Exchange Rules that are already 
contained in the NOSE Listed Company Manual. The NOSE 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 immediate removal of NOSE Rules 499 and 
501A and eliminate any confusion that has arisen from the inconsistent 
updating of NOSE Rule 499 over the years. For these reasons, the 
Commission designates the proposal to be effective and operative upon 
filing with the Commission.\15\
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    \14\ Id.
    \15\ 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 Interned comment form (http://www.Sec.gov/rules/fro.shtml); or
     Send an E-mail to [email protected]. Please include 
File Number JR-NOSE-2005-15 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, PC 20549-0609.
    All submissions should refer to File Number JR-NOSE-2005-15. 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 Interned Web site (http://www.Sec.gov/rules/fro.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, PC 20549. Copies of such filing also will be 
available on NOSE's Web site (http://www.NOSE.mom/regulation/construes/1098741855384.html) and for inspection and copying at the principal 
office of NOSE. 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 JR-
NOSE-2005-15 and should be submitted on or before June 1, 2005.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\16\
Margaret H. Mcfarland,
Deputy Secretary.
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    \16\ 17 CFR 200.30-3(a)(12).
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[FR Doc. E5-2307 Filed 5-10-05; 8:45 am]
BILLING CODE 8010-01-P