[Federal Register: May 14, 2007 (Volume 72, Number 92)]
[Notices]
[Page 27160-27164]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14my07-68]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-55720; File No. SR-NYSEArca-2007-22]
Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
of Proposed Rule Change and Amendment Nos. 1 and 2 Thereto Relating to
Listing and Annual Fees for Derivative Securities Products and Closed-
End Funds
May 7, 2007.
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 27, 2007, NYSE Arca, Inc. (``NYSE Arca'' or the
``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 substantially prepared by NYSE
Arca. On May 1, 2007, NYSEArca filed Amendment No. 1 to the proposed
rule change.\3\ On May 3, 2007, NYSEArca filed Amendment No. 2 to the
proposed rule change.\4\ 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\ Amendment No. 1 replaces and supersedes the original filing
in its entirety.
\4\ Amendment No. 2 conforms a single category in the annual fee
chart for Derivative Securities Products in the purpose section with
the Fee Schedule; and amends the purpose section to reflect that an
additional issuer listed a series of Investment Company Units on the
Exchange on March 28, 2007.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
NYSE Arca, through its wholly owned subsidiary NYSE Arca Equities,
Inc. (``NYSE Arca Equities''), is proposing to amend its Schedule of
Fees and Charges (``Fee Schedule'') to revise the listing fees
applicable to Derivative Securities Products, Closed-End Funds and
Structured Products listed on NYSE Arca, L.L.C. (``NYSE Arca
Marketplace''), the equities facility of NYSE Arca Equities. The
Exchange also proposes related modifications to the Fee Schedule. The
text of the proposed rule change is available at NYSE Arca, the
Commission's Public Reference Room, and http://www.nysearca.com.
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, NYSE Arca 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. NYSE Arca 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
NYSE Arca has determined to revise the listing fees specifically
applicable to Derivative Securities Products (or
[[Page 27161]]
``Products''), Closed-End Funds and Structured Products,\5\ as follows:
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\5\ For purposes of this proposal, Derivative Securities
Products include securities qualified for listing and trading on
NYSE Arca under the following NYSE Arca Equities Rules: Rule
5.2(j)(3) (Investment Company Units), 5.2(j)(5) (Equity Gold
Shares), 8.100 Portfolio Depositary Receipts), 8.200 (Trust Issued
Receipts), 8.201 (Commodity-Based Trust Shares), 8.202 (Currency
Trust Shares), 8.300 (Partnership Units), and 8.400 (Paired Trust
Securities), as these rules may be amended from time to time.
Closed-End Funds are a type of investment company registered
under the Investment Company Act of 1940 that offer a fixed number
of shares. Their assets are professionally managed in accordance
with the Closed-End Fund's investment objectives and policies, and
may be invested in stocks, fixed income securities or a combination
of both.
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(1) Eliminate the Application Processing Fee for Derivative
Securities Products, Closed-End Funds and Structured Products;
(2) Impose an original listing fee of $5,000 per Derivative
Securities Product;
(3) Reduce, for some Derivative Securities Products, the Annual
Fee; and
(4) Establish a listing and annual fee schedule for Closed-End
Funds based on New York Stock Exchange LLC (``NYSE'') fees for Closed-
End Funds as set forth in Section 902.04 of the NYSE Listed Company
Manual.
This filing also proposes a number of related modifications to the
Fee Schedule. The proposed revisions will apply as of January 1, 2007
(with the exception of listing fees for Closed-End Funds).
Summary of Current and Proposed Fees
1. Application Processing Fee
Currently, NYSE Arca levies a non-refundable application processing
fee of $500 for all applications to list ``Funds'' (which term
currently encompasses Exchange-Traded Funds and Closed-End Funds)
submitted at the same time by a Fund issuer or ``family'' regardless of
the number of Funds to be listed. This fee is currently credited
towards the applicable initial Listing Fee if the application is
approved, or if the Fund issuer or ``family'' is not subject to an
initial Listing Fee, towards the applicable Annual Fee. With this
filing, NYSE Arca proposes to eliminate such Application Processing Fee
and will impose no such fee for Derivative Securities Products, Closed-
End Funds or Structured Products.
2. Listing Fee
Currently, NYSE Arca charges a one-time Listing Fee of $20,000 for
the first Fund listed by a Fund issuer or Fund ``family,'' but does not
currently charge a Listing Fee for subsequent additional listings of
Funds from the same Fund issuer or ``family,'' regardless of whether
one or more previously listed Funds remains listed on NYSE Arca.\6\
Further, this Listing Fee applies regardless of whether the Fund(s)
lists in conjunction with an initial public offering, transfers from
another marketplace, or concurrently lists or is already listed on
another exchange or market.
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\6\ Footnote 1 to the Exchange's current Fee Schedule states
that Fund ``families'' are those with a common investment advisor or
investment advisors, which are ``affiliated persons'' as defined in
the securities laws.
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a. Derivative Securities Products
With this filing, NYSE Arca proposes separate Listing Fees for
Derivative Securities Products and Closed-End Funds. For Derivative
Securities Products, NYSE Arca Equities proposes a Listing Fee fixed at
$5,000 per Derivative Securities Product. The proposed Listing Fee
applies regardless of whether the Product lists in conjunction with an
initial public offering, transfers from another marketplace, or
concurrently lists or is already listed on another exchange or market.
b. Closed-End Funds \7\
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\7\ These fees are substantially identical to the fees charged
by the NYSE for Closed-End Funds. See NYSE Listed Company Manual,
Section 902.04.
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When a Closed-End Fund lists a class of common stock, or first
lists a class of preferred stock in a case where common stock is not
already listed, NYSE Arca Equities proposes Listing Fees as follows:
------------------------------------------------------------------------
Total
Number of securities issued listing fee
------------------------------------------------------------------------
Up to and including 10 million............................. $20,000
Over 10 million up to and including 20 million............. 30,000
Over 20 million............................................ 40,000
------------------------------------------------------------------------
(1) Listing Additional Securities by a Closed-End Fund
In the case of the following types of additional listings, Listing
Fees are calculated on a per share basis for each class according to
the Listing Fee schedule below:
At the time it first lists, a Closed-End Fund lists one or
more classes of preferred stock or warrants in addition to a primary
class of common stock or preferred stock;
Once listed, a Closed-End Fund lists additional shares of
a class of previously listed securities; or
Once listed, a Closed-End Fund lists a new class of
preferred stock or warrants.
To the extent that an issuer lists more than one class of the same
type of security, the class with the greatest number of shares issued
will be deemed the primary class.
When determining Listing Fees, calculations are made at each level
of the schedule up to the last level applicable to the number of
securities being listed. The total Listing Fee equals the sum of the
amounts calculated at each level of the schedule. (Examples are
provided below, under ``Calculating Listing Fees.'')
------------------------------------------------------------------------
Fee per
Number of securities issued share
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Up to and including 2 million............................. $0.01475
Over 2 million up to and including 4 million.............. 0.0074
Over 4 million up to and including 300 million............ 0.0035
Over 300 million.......................................... 0.0019
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(2) Limitations on Closed-End Fund Listing Fees
Fund Family Discount. If two or more closed-end funds from the same
fund family list at approximately the same time, the Exchange will cap
the collective Listing Fee for those funds at $75,000. The Exchange
will consider funds from the same fund family to be listing at
approximately the same time if an issuer provides notice that such
funds will be listed as part of the same transaction. 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.
Limitation on Listing Fees for Additional Class of Common Shares. A
Closed-End Fund that applies to list a new class of common shares in
addition to its primary class will be charged a fixed Listing Fee of
$5,000 in lieu of the per share schedule.
Minimum Listing Fee for Subsequent Listing of Additional
Securities. NYSE Arca will impose a minimum application fee for a
subsequent listing of additional securities of $2,500. When listing
additional securities, an issuer is billed Listing Fees in an amount
equal to the greater of the $2,500 minimum supplemental listing
application fee and the fee calculated on a per share basis. This
applies to the listing of additional shares of an already listed equity
security or to the listing of an additional class of equity security
(other than a new class of common shares).
Fee for Certain Changes. NYSE Arca will charge a $2,500 fee for
changes that involve modifications to Exchange
[[Page 27162]]
records, for example, changes of name, par value, title of security or
designation.
Application Fee for Technical Original Listings and Reverse Stock
Splits. NYSE Arca will apply a $5,000 application fee for a Technical
Original Listing if the change in the issuer's status is technical in
nature and the shareholders of the original issuer receive or retain a
share-for-share interest in the new issuer without any change in their
equity position or rights. For example, a change in a Closed-End Fund's
state of incorporation or a reincorporation or formation of a holding
company that replaces a listed Closed-End Fund would be considered a
Technical Original Listing. The $5,000 application fee also will apply
to a reverse stock split.
Maximum Listing Fee for Stock Splits and Stock Dividends. Listing
fees on shares issued in conjunction with stock splits and stock
dividends will be capped at $150,000 per split or issuance.
Maximum Listing Fee for Issuance of Additional Shares of a Listed
Class. Listing Fees on the issuance of additional shares of an already
listed class of stock are capped at $500,000 per transaction, for
example, in the case where shares are issued in conjunction with a
merger or consolidation where a listed company survives, subsequent
public offerings of a listed security and conversions of convertible
securities into a listed security.
Discounts on Listing Fees. In the case of transactions such as a
consolidation between two or more listed issuers that result in the
formation of a new issuer, or a merger or consolidation between a
listed issuer and an unlisted issuer that results in the unlisted
issuer surviving or the creation of a new issuer, where at the
conclusion of the transaction a previously unlisted issuer immediately
lists, Listing Fees for that new issuer are calculated at a rate of 25%
of total Listing Fees for each class of securities being listed (to the
extent that the total calculated listing fee for a class of common
stock would be greater than $250,000, the calculation would be 25% of
the $250,000 maximum for a new listing of common stock).
No discount will be applied where a listed issuer survives the
merger or consolidation, or in the case of a backdoor listing (i.e.,
resulting from a merger, acquisition or consolidation which has the
effect of circumventing the standards for original listing).
Listing Fees for Pre-emptive Rights. Preemptive rights representing
equity securities are not subject to a separate Listing Fee. As of the
date that preemptive rights are exercised, Listing Fees will accrue on
the securities issued and the issuer will be billed for those Listing
Fees at the beginning of the following year.
(3) Calculating Listing Fees
Treasury stock, restricted stock and shares issued in conjunction
with the exercise of an over-allotment option, if applicable, are
included in the number of shares a Closed-End Fund is billed for at the
time a security is first listed.
The following are examples of how Listing Fees would be calculated
by a closed-end fund in the case of an original listing and a
subsequent additional issuance of common stock:
Example A: A closed-end fund listing 50 million common shares in
the context of an initial public offering or transfer from another
market would pay total Listing Fees of $40,000.
Example B: The same closed-end fund subsequently applies to list
an additional 5 million shares of common stock that are immediately
issued. The closed-end fund will pay total Listing Fees of $17,500
for the subsequent listing. Since the closed-end fund already has 50
million shares outstanding, the Listing Fee for the additional 5
million shares is calculated at a rate of $0.0035 per share.
c. Structured Products
The Fee Schedule is being amended to specify that the $20,000
Listing Fee, in addition to Initial Public Offerings, applies to an
initial listing (e.g., a listing transfer to NYSE Arca from another
exchange).
3. Annual Fees
Currently, NYSE Arca charges Annual Fees specifically for Exchange-
Traded Funds and Closed-End Funds based on the aggregate total shares
outstanding of such Funds listed by the same Fund issuer or Fund
``family,'' as follows:
------------------------------------------------------------------------
Aggregate total shares outstanding Annual fee
------------------------------------------------------------------------
Less than 10 million....................................... $5,000
10 million to less than 30 million......................... 10,000
30 million to less than 50 million......................... 15,000
50 million to less than 100 million........................ 20,000
100 million to less than 250 million....................... 30,000
250 million to less than 500 million....................... 40,000
500 million to less than 750 million....................... 50,000
750 million to less than one billion....................... 60,000
Greater than one billion................................... 80,000
------------------------------------------------------------------------
Annual Fees are assessed beginning in the first full calendar year
following the year of listing. The aggregate total shares outstanding
is calculated based on the total shares outstanding as reported by the
Fund issuer or Fund ``family'' in its most recent periodic filing with
the Commission or other publicly available information. Annual Fees are
not pro-rated or reduced for Funds that delist for any reason. Annual
Fees apply regardless of whether any of these Funds is listed
elsewhere.
a. Derivative Securities Products
NYSE Arca Equities proposes revised Annual Fees for Derivative
Securities Products based on total shares outstanding for each issue,
as follows:
------------------------------------------------------------------------
Aggregate total shares outstanding (each issue) Annual fee
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Less than 25 million....................................... $2,000
25 million up to 49,999,999................................ 4,000
50 million up to 99,999,999................................ 8,000
100 million up to 249,999,999.............................. 15,000
250 million up to 499,999,999.............................. 20,000
500 million and over....................................... 25,000
------------------------------------------------------------------------
The revised Annual Fee for Derivative Securities Products will be
billed quarterly in arrears effective as of January 1, 2007. As such,
billing for the first calendar quarter of 2007, for example, will be
based on the number of shares outstanding for an issue on March 30,
2007. For example, for an issue with 45 million shares outstanding on
March 30, 2007, the Annual Fee payable for the quarter would be $1,000
($4,000 Annual Fee divided by 4). If, at the end of the second calendar
quarter of 2007, the number of shares outstanding for such issue
increased to 55 million, the Annual Fee payable for such quarter would
be $2,000 ($8,000 Annual Fee divided by 4). The Exchange believes it is
appropriate to apply the revised Annual Fees to issuers of the
specified securities as of January 1, 2007 to permit the Exchange to
apply the fee in the same manner to all such issuers listed on the
Exchange, including those listed in the first quarter of 2007. The
revised Annual Fee is expected to be lower for some issuers than the
current Annual Fee.
b. Closed-End Funds
(1) Annual Fee Schedule for Primary Listed Security
NYSE Arca Equities proposes the following Annual Fee Schedule for a
Closed-End Fund's primary class of listed security (common stock, or
preferred stock if no common stock is listed) and will be equal to the
greater of the minimum fee or the fee calculated on a per share basis:
Per Share Rate--$0.00093 per share
[[Page 27163]]
Minimum Fee--$25,000
The Annual Fee for Closed-End Funds is payable in January each
year, and issuers are subject to Annual Fees in the year of listing,
pro-rated based on days listed that calendar year.
(2) Additional Classes of Listed Equity Issues
The Annual Fee for equity issues other than the primary class of
security listed will be the greater of the minimum or the fee
calculated on a per share basis:
Per Share Rate--$0.00093 per share
Minimum Fee--$5,000
(3) Limitations on Annual Fees
Fund families that list between 3 and 14 Closed-End Funds will
receive a 5% discount off the calculated Annual Fee for each fund
listed, and those with 15 or more listed Closed-End Funds will receive
a discount of 15%. No fund family shall pay aggregate Annual Fees in
excess of $1,000,000 in any given year.
In the case of transactions involving listed issuers (such as a
consolidation between two or more listed issuers that results in the
formation of a new issuer, or a merger or consolidation between a
listed issuer and an unlisted issuer that results in the unlisted
issuer surviving or the creation of a new issuer), where at the
conclusion of the transaction a previously unlisted issuer immediately
lists, Annual Fees will not be charged to that new issuer for the year
in which it lists to the extent that the transaction concludes after
March 31. To the extent that the transaction concludes on or before
March 31 in any calendar year, however, the newly listing issuer will
be charged pro rata Annual Fees from the date of listing to the end of
the year.
In addition, to the extent that a listed issuer is involved in a
consolidation between two or more listed issuers that results in the
formation of a new issuer, or a merger or consolidation between a
listed issuer and an unlisted issuer that results in the unlisted
issuer surviving or the creation of a new issuer, or a merger between
two listed issuers where one listed issuer survives, and the
transaction concludes on or before March 31 in any calendar year, the
non-surviving listed issuer(s) will only be subject to pro rata Annual
Fees for that year through the date of the conclusion of the
transaction. To the extent that the transaction concludes after March
31, the non-surviving listed issuer(s) will be subject to full Annual
Fees for that year.
4. Implementation
NYSE Arca proposes to implement these revised fees, as applicable,
to all issuers of Derivative Securities Products, Closed-End Funds and
Structured Products as of January 1, 2007 with the exception of listing
fees for Closed-End Funds, which will take effect as of the date of
Commission approval of the proposed rule change. The Exchange believes
such implementation date is appropriate under the circumstances
described below. NYSE Arca believes this proposal will streamline and
clarify the fees applicable to Derivative Securities Products and
Closed-End Funds, making them easier to understand and apply while
continuing to provide for adequate support of the ongoing costs of
issuer services, including regulatory oversight and product and service
offerings. Further, this proposal aligns NYSE Arca listing and annual
fees for Derivative Securities Products and Closed-End Funds with the
fees charged by the NYSE, further simplifying the Fee Schedule and
helping NYSE Arca to compete more effectively for listings.
For Derivative Securities Products, the proposed Listing Fees
provide an alternative fee structure and will in certain circumstances
be lower for issuers than the previous Fee Schedule. The Exchange
believes it is appropriate to apply these potential cost savings to
issuers as of January 2007.\8\
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\8\ The Exchange notes that, with one exception discussed below,
the only Derivative Securities Products currently listed on the
Exchange are Investment Company Units (Exchange-Traded Funds) of one
issuer of two separate trusts, which were listed on the Exchange in
2006. Because these listings were transfers from another national
securities exchange, the issuer incurred no listing fee, in
accordance with Commentary .04 to the Exchange's Fee Schedule (which
will cease to have effect on December 31, 2007). The Exchange has
advised the issuer of the proposed changes to the Listing and Annual
Fees. These two trusts listed six and 13 funds, respectively. Except
for Commentary .04, the listing fee for each trust would have been
$20,000. For new Derivative Securities Product issues, an issuer
listing five or more issues would incur a higher listing fee under
the proposed schedule than under the current schedule (e.g., an
issuer listing six funds would pay $30,000, and $5,000 for each
subsequent fund listed.) An additional issuer listed a series of
Investment Company Units on the Exchange on March 28, 2007, and the
issuer would incur an initial listing fee of $20,000 under the
current fee schedule and $5,000 under the proposed schedule.
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As discussed above, the revised Annual Fee for Derivative
Securities Products will be billed quarterly in arrears, beginning
after the first calendar quarter in 2007, effective as of January 1,
2007. The Annual Fee is expected to be lower for some Derivative
Securities Products issuers than the current Annual Fee, but may be
higher in some cases depending on the number of funds listed by the
same issuer and the shares outstanding for each fund.\9\ The proposed
Annual Fee for Closed-End Funds will apply as of January 1, 2007, and,
for issuers listed in calendar year 2007, will be pro-rated based on
days listed in 2007.\10\
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\9\ Taking the example of the two trusts discussed above (see
preceding footnote), the two trusts would have incurred Annual Fees
of $30,000 and $50,000, respectively, based on the total aggregate
shares of each trust outstanding at year-end 2006 (assuming the
funds of each trust had been listed the entire year and the shares
outstanding remained constant throughout the year). Under the
proposed fee schedule, Annual Fees will be based on total shares
outstanding of each fund. Accordingly, under the same circumstances
described above, the trusts would incur an Annual Fee of $20,000 and
$81,000, respectively, based on shares outstanding of each of their
funds.
\10\ The Exchange notes that application of the proposed Annual
Fee as of January 1, 2007 for Closed-End Funds will potentially
impact only a few issuers. Following discussions, beginning in 2006,
with Closed-End Fund issuers about changes to the Annual Fee, eight
of these funds delisted from the Exchange. The Exchange dually lists
three Closed-End Funds, one of which is pending delisting.
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2. Statutory Basis
NYSE Arca believes that the proposal is consistent with Section
6(b) \11\ of the Act, in general, and Section 6(b)(4)\12\ of the Act,
in particular, in that it provides for the equitable allocation of
reasonable dues, fees and other charges among its issuers and other
persons using its facilities.
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\11\ 15 U.S.C. 78f(b).
\12\ 15 U.S.C. 78f(b)(4).
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B. Self-Regulatory Organization's Statement on Burden on Competition
NYSE Arca 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
NYSE Arca has neither solicited nor received written comments on
the proposed modifications to its fee schedule.
Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Within 35 days of the date of publication of this notice in the
Federal Register or within such longer period (i) as the Commission may
designate up to 90 days of such date if it finds such longer period to
be appropriate and publishes its reasons for so finding or (ii) as to
which the Exchange consents, the Commission will:
(A) By order approve such proposed rule change, or
[[Page 27164]]
(B) Institute proceedings to determine whether the proposed rule
change should be disapproved.
III. 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 rule-comments@sec.gov. Please include
File No. SR-NYSEArca-2007-22 on the subject line.
Paper Comments
Send paper comments in triplicate to Nancy M. Morris,
Secretary, Securities and Exchange Commission, Station Place, 100 F
Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSEArca-2007-22. 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 Room. 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; 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-NYSEArca-2007-22 and should be submitted on or before
June 4, 2007.
For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\13\
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\13\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E7-9177 Filed 5-11-07; 8:45 am]
BILLING CODE 8010-01-P