[Federal Register Volume 83, Number 206 (Wednesday, October 24, 2018)]
[Notices]
[Pages 53687-53688]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-23175]


-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-84450; File No. SR-NYSE-2018-50]


Self-Regulatory Organizations; New York Stock Exchange LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To 
Amend Section 902.02 of the NYSE Listed Company Manual Regarding 
Information on Listed Securities of a Foreign Private Issuer Obtained 
From a U.S. or Non-U.S. Securities Depository

October 18, 2018.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby given 
that on October 4, 2018, New York Stock Exchange LLC (``NYSE'' or the 
``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. 
The Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend Section 902.02 of the NYSE Listed 
Company Manual (the ``Manual'') to enable the Exchange to make use of 
information obtained from a U.S. [sic] securities depository in 
determining how many shares of a listed class of securities of a 
foreign private issuer are issued and outstanding in the United States. 
The proposed rule change is available on the Exchange's website at 
www.nyse.com, at the principal office of the Exchange, 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
    Sections 902.02 and 902.03 of the Manual provide that the Exchange 
bills listed foreign private issuers annual and supplemental listing 
fees only on those shares issued and outstanding in the United States. 
In order to calculate a foreign private issuer's annual fees, Section 
902.02 specifies that the Exchange will calculate a four-quarter 
average of securities issued and outstanding in the United States 
during the preceding year.\4\ The Exchange obtains information on the 
number of securities issued and outstanding in the United States, 
including securities registered in the United States and securities 
held through any U.S. nominee, from each issuer's transfer agent and/or 
ADR depositary bank.
---------------------------------------------------------------------------

    \4\ Section 902.02 states that the purpose of calculating this 
quarterly average is to recognize the possibility of flow-back and 
flow-in of securities to and from the home country market and more 
reasonably reflect the number of securities in the United States 
over the course of the year.
---------------------------------------------------------------------------

    In the case of a foreign private issuer whose securities are listed 
directly on the Exchange (and not in the form of American depositary 
receipts (``ADRs'')), the Exchange relies on the company's home country 
transfer agent to provide the required information about shares 
outstanding in the United States. However, in the case of a small 
number of issuers, it has been the Exchange's recent experience that 
the home country transfer agent has indicated that it is able to 
provide the number of shares held by registered holders with U.S. 
addresses but is unable to provide this information with respect to 
securities held through the U.S. depository \5\ or, in some instances, 
held through a non-U.S. securities depository.\6\ Consequently, the

[[Page 53688]]

Exchange proposes to amend the applicable provision in Section 902.02 
to enable it, when necessary, to seek to obtain information about 
shares held through the U.S. depository or a non-U.S. depository 
directly from the applicable depository itself. The proposed rule 
change will provide a transparent methodology for determining an 
accurate share total for billing purposes in those limited 
circumstances where the methodology provided under the current rule is 
unavailable.
---------------------------------------------------------------------------

    \5\ The Depository Trust Company (``DTC'') is currently the only 
securities depository registered with the SEC. The Exchange assumes 
that all shares held at DTC are issued and outstanding in the United 
States for purposes of its annual fee billing calculation, with the 
exception of any shares held at DTC by a foreign depository as 
nominee for beneficial owners outside the United States.
    \6\ In the case of certain companies whose securities have 
trading markets in both the United States and a foreign country, the 
depository in the applicable foreign country holds shares at DTC as 
nominee for beneficial owners in the foreign jurisdiction. As the 
shares in the foreign depository's position at DTC are not issued 
and outstanding in the United States, the Exchange excludes them 
from its annual fee billing calculation.
---------------------------------------------------------------------------

2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Act,\7\ in general, and furthers the 
objectives of Sections 6(b)(4) \8\ of the Act, in particular, in that 
it is designed to provide for the equitable allocation of reasonable 
dues, fees, and other charges and is not designed to permit unfair 
discrimination among its members and issuers and other persons using 
its facilities. The Exchange also believes that the proposed rule 
change is consistent with Section 6(b)(5) of the Act, in particular in 
that it is designed to promote just and equitable principles of trade, 
to foster cooperation and coordination with persons engaged in 
regulating, clearing, settling, processing information with respect to, 
and facilitating transactions in securities, 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.
---------------------------------------------------------------------------

    \7\ 15 U.S.C. 78f(b).
    \8\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

    The proposed rule change provides for an equitable allocation of 
fees and is reasonable under Section 6(b)(4) in that it is designed to 
ensure that the Exchange can bill all foreign private issuers in every 
case on the basis of an accurate calculation of shares issued and 
outstanding in the United States. The proposal is not unfairly 
discriminatory under Section 6(b)(5) because the combination of 
methodologies the Exchange will use will enable it to obtain the same 
information for all foreign private issuers and bill them all on the 
same basis and will allow the Exchange to calculate accurately shares 
issued and outstanding in the United States for billing purposes.

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 purpose of the Act. The proposed amendment does 
not impose any burden on competition as its purpose is to assist the 
Exchange in obtaining information it needs to bill listed foreign 
private issuers according to a preexisting fee schedule.

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

    The Exchange has filed the proposed rule change pursuant to Section 
19(b)(3)(A)(iii) of the Act \9\ and Rule 19b-4(f)(6) thereunder.\10\ 
Because the 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 prior to 
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, the proposed rule change has become 
effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-
4(f)(6)(iii) thereunder.
---------------------------------------------------------------------------

    \9\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \10\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of such proposed rule 
change, the Commission summarily may temporarily suspend 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. If the Commission 
takes such action, the Commission shall institute proceedings under 
Section 19(b)(2)(B) \11\ of the Act to determine whether the proposed 
rule change should be approved or disapproved.
---------------------------------------------------------------------------

    \11\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

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 email to [email protected]. Please include 
File Number SR-NYSE-2018-50 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities 
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSE-2018-50. This file 
number should be included on the subject line if email 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 website (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 website viewing and printing in 
the Commission's Public Reference Room, 100 F Street NE, Washington, DC 
20549 on official business days between the hours of 10:00 a.m. and 
3:00 p.m. Copies of such filing also will be available for inspection 
and copying at the principal office of the Exchange. All comments 
received will be posted without change. Persons submitting comments are 
cautioned that we do not redact or edit personal identifying 
information from comment submissions. You should submit only 
information that you wish to make available publicly. All submissions 
should refer to File Number SR-NYSE-2018-50, and should be submitted on 
or before November 14, 2018.
---------------------------------------------------------------------------

    \12\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\12\
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018-23175 Filed 10-23-18; 8:45 am]
 BILLING CODE 8011-01-P