[Federal Register: November 22, 2006 (Volume 71, Number 225)]
[Notices]
[Page 67657-67659]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22no06-129]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-54766; File No. S7-06-05]
Order Granting the New York Stock Exchange Inc.'s (n/k/a the New
York Stock Exchange LLC) Application for an Exemption Pursuant to
Section 36 of the Securities Exchange Act of 1934
November 16, 2006.
I. Introduction
On May 26, 2005, the Securities and Exchange Commission (the
``Commission'') received an application from the New York Stock
Exchange, Inc. (n/k/a the New York Stock Exchange LLC) (``NYSE'' or
``Exchange'') \1\ for an exemption pursuant to section 36 \2\ of the
Securities Exchange Act of 1934 (the ``Exchange Act''),\3\ in
accordance with the procedures set forth in Exchange Act Rule 0-12.\4\
The NYSE has requested exemptive relief from section 12(a) of the
Exchange Act \5\ to permit its members and brokers or dealers to trade
certain unregistered debt securities on its facilities.\6\ On July 8,
2005, the Commission approved publication of a notice of the
application submitted by the NYSE, a proposed exemption order,\7\ and a
proposed rule change by the NYSE that would incorporate the terms of
the proposed exemption into the NYSE's rules.\8\ We received 19 comment
letters on the proposed exemption order.\9\ The responses are discussed
[[Page 67658]]
more fully below. This order grants the NYSE's application for an
exemption, subject to the conditions set forth below.
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\1\ On October 17, 2006, the NYSE submitted an updated
application to the Commission.
\2\ 15 U.S.C. 78mm. Section 36 of the Exchange Act gives the
Commission the authority to exempt any person, security or
transaction from any Exchange Act provision by rule, regulation or
order, to the extent that the exemption is necessary or appropriate
in the public interest and consistent with the protection of
investors.
\3\ 15 U.S.C. 78a et seq.
\4\ 17 CFR 240.0-12. Exchange Act Rule 0-12 sets forth
procedures for filing applications for orders for exemptive relief
pursuant to section 36.
\5\ 15 U.S.C. 78l(a).
\6\ The NYSE made its exemption request with regard to the
Automated Bond System (``ABS''), an existing bond trading facility.
Subsequently, the NYSE filed a proposed rule change, SR-NYSE-2006-37
(the ``NYSE Bonds Proposal''), to establish a new trading facility,
NYSE Bonds, which would replace ABS. Accordingly, the Commission is
granting the exemption described herein for use in conjunction with
ABS and any successor bond trading facility, which would include
NYSE Bonds, in the event that the NYSE Bonds Proposal is approved.
\7\ See Release No. 34-51998 (July 8, 2005), 70 FR 40748 (July
15, 2005).
\8\ See Release No. 34-51999 (July 8, 2005), 70 FR 41067 (July
15, 2005) (SR-NYSE-2004-69).
\9\ The commenters are as follows: Bond Market Association;
Representative Michael Castle; Mr. William Dolan; Mr. Donald
Dueweke; Mr. Howard Friedman; Ms. Robyn Greene; Mr. Denis Kelleher;
Mr. Ron Klein; Mr. Dennis J. Lehr; Multiple Markets, Inc.; the
National Association of Securities Dealers, Inc.; NASDAQ Stock
Market LLC; New York Stock Exchange LLC; Mr. Joseph Riveiro; Mr.
David Russell Jr.; and Mr. Fred Siesel.
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In connection with NYSE's request for an exemption, it has also
proposed a rule change, SR-NYSE-2004-69, to establish rules for the
trading of unlisted debt securities on the Exchange. The Commission,
via authority delegated to the Division of Market Regulation, today is
also approving that rule change,\10\ as well as a rule change relating
to trade reporting for transactions in unregistered debt securities
proposed by the National Association of Securities Dealers, Inc.
(``NASD'').\11\
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\10\ See Release No. 34-54767 (November 16, 2006) (SR-NYSE-2004-
69).
\11\ See Release No. 34-54768 (November 16, 2006) (SR-NASD-2006-
110).
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II. Order Granting the New York Stock Exchange's Application for an
Exemption Pursuant to Section 36 of the Securities Exchange Act of 1934
Section 12(a) of the Exchange Act provides in relevant part that
``[i]t shall be unlawful for any ``member, broker or dealer to effect
any transaction in any security (other than an exempted security) on a
national securities exchange unless a registration is effective as to
such security for such exchange.'' Section 12(b) of the Exchange Act
\12\ dictates how the registration referred to in section 12(a) must be
accomplished. Accordingly, all equity and debt securities that are not
``exempted securities'' or are not otherwise exempt from Exchange Act
registration must be registered by the issuer under the Exchange Act
before a member, broker or dealer may trade that class of securities on
a national securities exchange.
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\12\ 15 U.S.C. 78l(b).
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Contrarily, brokers or dealers who trade debt securities otherwise
than on a national securities exchange may trade debt securities
regardless of whether the issuer registered that class of debt under
the Exchange Act. This is so because Exchange Act registration for
securities traded other than on a national securities exchange is
required only for certain equity securities. In particular, section
12(g) of the Exchange Act,\13\ the only Exchange Act provision other
than section 12(a) to impose an affirmative Exchange Act registration
requirement, requires the registration of equity securities
exclusively.
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\13\ 15 U.S.C. 78l(g). Section 12(g)(1) of the Exchange Act and
Rule 12g-1 [17 CFR 240.12g-1] promulgated thereunder require an
issuer to register a class of equity securities if the issuer of the
securities, at the end of its fiscal year, has more than $10,000,000
in total assets and a class of equity securities held by 500 or more
recordholders.
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As the Commission has stated in the past, we believe that this
disparate regulatory treatment may have negatively and unnecessarily
affected the structure and development of the debt markets.\14\ In
1994, to reduce existing regulatory distinctions between exchange-
traded debt securities and unlisted debt securities that trade in the
``over-the-counter'' (``OTC'') market, we adopted Exchange Act Rule
3a12-11.\15\ Rule 3a12-11 provides for the automatic effectiveness of
Form 8-A registration statements for exchange-traded debt securities,
exempts exchange-traded debt from the borrowing restrictions under
section 8(a) of the Exchange Act,\16\ and exempts exchange-traded debt
from certain proxy and information statement requirements under
sections 14(a), (b) and (c) of the Exchange Act.\17\ Despite these
efforts, the vast majority of secondary trading of debt securities
continues to occur in the OTC market, which suggests that there still
may be regulatory impediments that need to be addressed.\18\
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\14\ See Release Nos. 34-34922 (November 1, 1994), 59 FR 55342
(November 7, 2004), and 34-34139 (June 1, 1994), 59 FR 29398 (June
7, 1994).
\15\ 17 CFR 240.3a12-11.
\16\ 15 U.S.C. 78h(a).
\17\ 15 U.S.C. 78n(a), (b) and (c).
\18\ The NYSE estimates that there are over 22,000 publicly
offered corporate bond issues having a par value in excess of $3
trillion but only 8% of the $3 trillion par value is registered
under the Exchange Act and so may be traded on the NYSE. See NYSE's
request for exemptive relief. Letter to Jonathan G. Katz, Secretary,
Commission, from Mary Yeager, NYSE, dated May 26, 2005. See Release
No. 34-51998.
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In addition, we have sought to increase the level of transparency
in the public debt markets. We have long believed that price
transparency in the U.S. capital markets is fundamental to promoting
the fairness and efficiency of our markets.\19\ In 1998, the
Commission's staff conducted a review of the public debt markets and
found that in the area of corporate debt securities, price transparency
was deficient.\20\ Following the staff's 1998 review, the NASD was
encouraged to develop systems to receive and redistribute prices of
transactions in corporate debt securities on an immediate basis.\21\
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\19\ See Testimony of Chairman Arthur Levitt Before the House
Subcommittee on Finance and Hazardous Materials, Committee on
Commerce, Concerning Transparency in the United States Debt Market
and Mutual Fund Fees and Expenses (September 29, 1998).
\20\ Id.
\21\ Id.
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We view the exemptive relief requested by the NYSE as another step
to improve the public debt markets. The Commission believes that
granting the NYSE's application will serve the public interest by
minimizing unnecessary regulatory disparity and promoting competition.
Currently, unlike on a national securities exchange, broker-dealers may
trade debt securities in the OTC market regardless of whether the
issuer registered that class of debt under the Exchange Act. The
exemption is designed to minimize that disparate regulatory treatment
and promote competition between the corporate debt security markets.
Moreover, the exemption may improve the existing level of transparency
on the current OTC market.
At the same time, the conditions of the exemption serve to protect
investors by minimizing any reduction in information available as a
result of the exemption. Further, the conditions are designed to ensure
that investors continue to have access to comprehensive public
information about an issuer, including the issuer's detailed disclosure
in a registration statement filed under the Securities Act of 1933 and
accompanying trust indenture qualified under the Trust Indenture Act of
1939, and substantially all of the public information that would be
available if the debt securities were registered under Section 12 of
the Exchange Act.
We received 19 comment letters on the proposed exemption order. The
commenters generally supported the proposed exemption. We have,
however, added an additional condition to the exemption based on a
response from the Bond Market Association (``BMA''). The BMA expressed
concern that debt securities of an issuer that does not have equity
securities listed on a national securities exchange, such as a wholly-
owned subsidiary of an issuer of equity securities, would lose the
exemption from state law regulation provided by Section 18 of the
Securities Act \22\ for ``covered securities'' if the
[[Page 67659]]
NYSE unilaterally delisted debt securities eligible for trading under
this exemption order. To address this concern, we have added a new
condition to the order stating that the NYSE will delist a class of
debt securities only if the issuer of the class of debt security does
not object to the delisting. As the potential loss of covered security
status under Section 18 of the Securities Act would be an unintended
consequence of this exemption, this additional condition would allow an
issuer with listed debt securities to maintain covered security status
with respect to its securities at its option.
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\22\ 15 U.S.C. 77r. Section 18 of the Securities Act preempts
state regulation that would require the registration or
qualification of covered securities, or registration or
qualification of securities transactions that involve covered
securities. Under Section 18, a security is a ``covered security''
if it is: (1) listed, or authorized for listing, on the NYSE or the
American Stock Exchange, or listed, or authorized for listing, on
the National Market System of the Nasdaq Stock Market (or any
successor to such entities); (2) listed, or authorized for listing,
on a national securities exchange (or tier or segment thereof) that
has listing standards that the Commission determines by rule (on its
own initiative or on the basis of a petition) are substantially
similar to the listing standards applicable to securities described
above; or (3) is a security of the same issuer that is equal in
seniority or that is a senior security to a security described in
the two preceding paragraphs.
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Another commenter, the NASDAQ Stock Market LLC, argued that
limiting the bonds eligible to trade pursuant to this exemption
exclusively to companies with equity listed on the NYSE, or their
wholly-owned subsidiaries, would potentially be anti-competitive to
other national securities exchanges. We do not believe this exemption
will provide the NYSE with an unfair competitive advantage over other
exchanges. Although the unlisted bonds that will trade on the ABS, and
any successor bond trading facility pursuant to this exemption will not
be eligible to trade on other exchanges pursuant to the unlisted
trading privileges of Section 12(f) of the Exchange Act,\23\ another
exchange may petition the Commission for similar relief that would
permit that exchange's members to trade unregistered debt securities on
its facilities subject to the conditions imposed by the Commission in
this order.
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\23\ 15 U.S.C. 78l(f). Section 12(f) of the Exchange Act permits
a national securities exchange to extend unlisted trading privileges
to any security that is listed and registered on a national
securities exchange.
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In granting this relief, we expect that the NYSE will design and
implement all rules related to the relief in a manner that protects
investors and the public interest and does not unfairly discriminate
between customers, issuers, brokers or dealers. We view the exemptive
relief requested by the NYSE as another step to improve the public
markets and believe that granting the NYSE's application will minimize
unnecessary regulatory disparity, promote competition and transparency
in the public debt markets and is necessary and appropriate in the
public interest and consistent with the protection of investors.
Accordingly, it is ordered pursuant to Section 36 of the Exchange
Act that, under the terms and conditions set forth below, an NYSE
member, broker or dealer may effect a transaction on the ABS, and any
successor bond trading facility, in a debt security that has not been
registered under Section 12(b) of the Exchange Act without violating
Section 12(a) of the Exchange Act.\24\ This exemption does not extend
to any other section or provision of the Exchange Act.
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\24\ As noted previously, NYSE members will be able to effect
transactions on the NYSE in accordance with the terms of this
exemption without violating NYSE rules only after SR-NYSE-2004-69
becomes effective.
For purposes of this order, a ``debt security'' is:
Any security that, if the class of securities were listed on the
NYSE, would be listed under Sections 102.03 or 103.05 of the NYSE's
Listed Company Manual. A debt security does not include any security
that, if the class of securities were listed on the NYSE, would be
listed under Sections 703.19 or 703.21 of the NYSE's Listed Company
Manual. Provided, however, under no circumstances does a debt
security include any security that is defined as an ``equity
security'' under Section 3(a)(11) of the Exchange Act.
References to Sections 102.03, 103.05, 703.19, and 703.21 of the NYSE's
Listed Company Manual are to those sections as in effect on January 31,
2005.
For purposes of this order, the following conditions must be
satisfied:
(1) The issuer of the debt security has registered the offer and
sale of such security under the Securities Act of 1933;\25\
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\25\ 15 U.S.C. 77a et seq.
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(2) The issuer of the debt security, or the issuer's parent company
if the issuer is a wholly-owned subsidiary,\26\ has at least one class
of common or preferred equity securities registered under Section 12(b)
of the Exchange Act and listed on the NYSE;
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\26\ The terms ``parent'' and ``wholly-owned'' have the same
meanings as defined in Rule 1-02 of Regulation S-X [17 CFR 210.1-
02].
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(3) The transfer agent of the debt security is registered under
Section 17A of the Exchange Act;\27\
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\27\ 15 U.S.C. 78q-1.
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(4) The trust indenture for the debt security is qualified under
the Trust Indenture Act of 1939;\28\
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\28\ 15 U.S.C. 77aaa--77bbbb.
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(5) The NYSE has complied with the undertakings set forth in its
exemptive application to distinguish between debt securities registered
under Section 12(b) of the Exchange Act and listed on the NYSE and debt
securities trading pursuant to this order; and
(6) The NYSE will delist a class of debt securities that are listed
on the NYSE as of the date of this order only if the issuer of that
class of debt security does not object to the delisting of those
securities.
By the Commission.
Nancy M. Morris,
Secretary.
[FR Doc. E6-19738 Filed 11-21-06; 8:45 am]
BILLING CODE 8011-01-P