Notices. Notice tentatively approving finance transaction

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BILLING CODE 6325-38-P SECURITIES AND EXCHANGE COMMISSION Proposed Extension of Collection of Information; Comment Request Upon Written Request, Copies Available From: Securities and Exchange Commission, Office of Filings and Information Services, Washington, DC 20549. *Extension:* Rule 15Ba2-5; SEC File No. 270-91; OMB Control No. 3235-0088. Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ), the Securities and Exchange Commission (“Commission”) is soliciting comments on the collection of information summarized below.

The Commission plans to submit this existing collection of information to the Office of Management and Budget for extension and approval. • Rule 15Ba2-5—Registration of Fiduciaries On July 7, 1975, effective July 16, 1975 ( *see* 41 FR 28948, July 14, 1975), the Commission adopted Rule 15Ba2-5 under the Securities Exchange Act of 1934 (“Exchange Act”) to permit a duly-appointed fiduciary to assume immediate responsibility for the operation of a municipal securities dealer's business.

Without the rule, the fiduciary would not be able to assume operation until it registered as a municipal securities dealer. Under the rule, the registration of a municipal securities dealer is deemed to be the registration of any executor, administrator, guardian, conservator, assignee for the benefit of creditors, receiver, trustee in insolvency or bankruptcy, or other fiduciary, appointed or qualified by order, judgment, or decree of a court of competent jurisdiction to continue the business of such municipal securities dealer, provided that such fiduciary files with the Commission, within 30 days after entering upon the performance of his duties, a statement setting forth as to such fiduciary substantially the same information required by Form MSD or Form BD.

The statement is necessary to ensure that the Commission and the public have adequate information about the fiduciary. There is approximately 1 respondent per year that requires an aggregate total of 4 hours to comply with this rule. This respondent makes an estimated 1 annual response. Each response takes approximately 4 hours to complete. Thus, the total compliance burden per year is 4 burden hours. The approximate cost per hour is $20, resulting in a total cost of compliance for the respondent of approximately $80 ( *i.e.* , 4 hours × $20).

Written comments are invited on:

(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility;

(b)the accuracy of the Commission's estimates of the burden of the proposed collection of information;

(c)ways to enhance the quality, utility, and clarity of the information to be collected; and

(d)ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication. Please direct any comments or suggestions in writing to: R. Corey Booth, Chief Information Officer, Office of Information Technology, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549. Dated: May 13, 2005. Margaret H. McFarland, Deputy Secretary. [FR Doc. E5-2753 Filed 5-31-05; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION Proposed Collection; Comment Request Upon Written Request, Copies Available From: Securities and Exchange Commission, Office of Filings and Information Services, Washington, DC 20549. *Extension:* Rule 17a-22; SEC File No. 270-202; OMB Control No. 3235-0196. Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ), the Securities and Exchange Commission (“Commission”) is soliciting comments on the collection of information summarized below. The Commission plans to submit this existing collection of information to the Office of Management and Budget for extension and approval. • Rule 17a-22 Supplemental Material of Registered Clearing Agencies Rule 17a-22 under the Securities Exchange Act of 1934 (“Exchange Act”) 1 requires all registered clearing agencies to file with the Commission three copies of all materials they issue or make generally available to their participants or other entities with whom they have a significant relationship. The filings with the Commission must be made within ten days after the materials are issued, and when the Commission is not the appropriate regulatory agency, the clearing agency must file one copy of the material with its appropriate regulatory agency. The Commission is responsible for overseeing clearing agencies and uses the information filed pursuant to Rule 17a-22 to determine whether a clearing agency is implementing procedural or policy changes. The information filed aides the Commission in determining whether such changes are consistent with the purposes of Section 17A of the Exchange Act. Also, the Commission uses the information to determine whether a clearing agency has changed its rules without reporting the actual or prospective change to the Commission as required under Section 19(b) of the Exchange Act. 1 15 U.S.C. 78a *et seq.* The respondents to Rule 17a-22 generally are registered clearing agencies. The frequency of filings made by clearing agencies pursuant to Rule 17a-22 varies, but on average there are approximately 200 filings per year per clearing agency. Because the filings consist of materials that have been prepared for widespread distribution, the additional cost to the clearing agencies associated with submitting copies to the Commission is relatively small. The Commission staff estimates that the cost of compliance with Rule 17a-22 to all registered clearing agencies is approximately $3,000. This represents one dollar per filing in postage, or a total of $2,000. The remaining $1,000 is the estimated cost of additional printing, envelopes, and other administrative expenses. Written comments are invited on:

(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility;

(b)the accuracy of the agency's estimates of the burden of the proposed collection of information;

(c)ways to enhance the quality, utility, and clarity of the information to be collected; and

(1)Delivers to the person a written statement containing the exact nature and extent of the person's obligations under the loan arrangement; the risks and disadvantages of the loan arrangement; and all commissions, discounts, and other remuneration received and to be received in connection with the transaction by the broker-dealer or certain related persons (unless the person receives certain materials from the lender or broker-dealer which contain the required information); and

(2)obtains from the person information on the person's financial situation and needs, reasonably determines that the transaction is suitable for the person, and retains on file and makes available to the person on request a written statement setting forth the broker-dealer's basis for determining that the transaction was suitable. The collection of information required by the Rule is necessary to execute the Commission's mandate under the Securities Exchange Act of 1934 (“Exchange Act”) to prevent fraudulent, manipulative, and deceptive acts and practices by broker-dealers. There are approximately 50 respondents that require an aggregate total of 600 hours to comply with the Rule. Each of these approximately 50 registered broker-dealers makes an estimated 6 annual responses, for an aggregate total of 300 responses per year. Each response takes approximately 2 hours to complete. Thus, the total compliance burden per year is 600 burden hours. The approximate cost per hour is $25.00 (based on an annual salary of $52,000 for clerical labor), resulting in a total compliance cost of $15,000 (600 hours @ $25.00 per hour). Written comments are invited on:

(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(b)the accuracy of the agency's estimate of the burden of the collection of information;

(c)ways to enhance the quality, utility, and clarity of the information collected; and

(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility;

(b)the accuracy of the agency's estimates of the burden of the proposed collection of information;

(c)ways to enhance the quality, utility, and clarity of the information to be collected; and

(d)ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication. Please direct your written comments to R. Corey Booth, Chief Information Officer, Securities and Exchange Commission, 450 5th Street, NW., Washington, DC 20549. Dated: May 13, 2005. Margaret H. McFarland, Deputy Secretary. [FR Doc. E5-2756 Filed 5-31-05; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION Proposed Collection; Comment Request Upon Written Request, Copies Available From: Securities and Exchange Commission, Office of Filings and Information Services, Washington, DC 20549. Extension: Form BDW, SEC File No. 270-17; OMB Control No. 3235-0018. Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ) the Securities and Exchange Commission (“Commission”) is soliciting comments on the collection of information summarized below. The Commission plans to submit this existing collection of information to the Office of Management and Budget for extension and approval. Fully registered broker-dealers and notice-registered broker-dealers use Form BDW (17 CFR 249.501a) to withdraw from registration with the Commission, the self-regulatory organizations, and the states. It is estimated that approximately 900 fully registered broker-dealers annually will incur an average burden of 15 minutes, or 0.25 hours, to file for withdrawal on Form BDW via the internet with Web CRD, a computer system operated by the National Association of Securities Dealers, Inc. that maintains information regarding fully registered broker-dealers and their registered personnel. It is further estimated that 140 futures commission merchants that are notice-registered broker-dealers annually will incur an average burden of 15 minutes, or 0.25 hours, to file for withdrawal on Form BDW by sending the completed Form BDW to the National Futures Association, which maintains information regarding notice-registered broker-dealers on behalf of the Commission. The annualized compliance burden per year is 260 hours [1,040 (900 fully registered broker-dealers + 140 notice-registered broker-dealers) × .25 = 260 hours]. The annualized cost to respondents, utilizing staff at an estimated cost of $101 per hour, would be $26,260 (260 × $101 = $26,260). Written comments are invited on:

(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(b)the accuracy of the agency's estimate of the burden of the collection of information;

(c)ways to enhance the quality, utility, and clarity of the information collected; and

(i)The Issuer maintains the principal listing for the Security on the New York Stock Exchange (“NYSE”);

(ii)the maintenance of multiple listings requires significant time and expense in ensuring compliance with the rules and disclosure requirements of both the NYSE and the Phlx; and

(iii)in the judgment of the Board, the benefits of continued listing on the Phlx are outweighed by the incremental cost and administrative burden of such listing. The Issuer states in its application that it has met the requirements of Phlx Rule 809 governing an issuer's voluntary withdrawal of a security from listing and registration by providing the required documents for withdrawal from Phlx. The Issuer's application relates solely to the withdrawal of the Security from listing on the Phlx, and shall not affect its continued listing on the NYSE or its obligation to be registered under Section 12(b) of the Act. 3 3 15 U.S.C. 78 *l* (b). Any interested person may, on or before June 15, 2005, comment on the facts bearing upon whether the application has been made in accordance with the rules of Phlx, and what terms, if any, should be imposed by the Commission for the protection of investors. All comment letters may be submitted by either of the following methods: Electronic Comments • Use the Commission's Internet comment form *(http://www.sec.gov/rules/delist.shtml);* or • Send an e-mail to *rule-comments@sec.gov.* Please include the File Number 1-03822 or; 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 1-03822. This file number should be included on the subject line if e-mail is used. To help us 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/delist.shtml* ). Comments are also available for public inspection and copying in the Commission's Public Reference Room. All comments received will be posted without change; we do not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. The Commission, based on the information submitted to it, will issue an order granting the application after the date mentioned above, unless the Commission determines to order a hearing on the matter. For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 4 4 17 CFR 200.30-3(a)(1). Jonathan G. Katz, Secretary. [FR Doc. E5-2749 Filed 5-31-05; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-51736, File No. SR-MSRB-2004-09] Self-Regulatory Organizations; Municipal Securities Rulemaking Board; Order Approving Proposed Rule Change Relating to Advertisements of Municipal Fund Securities Under MSRB Rule G-21 May 24, 2005. On December 16, 2004, the Municipal Securities Rulemaking Board (“MSRB” or “Board”), filed with the Securities and Exchange Commission (“SEC” or “Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”), 1 and Rule 19b-4 thereunder, 2 a proposed rule change amending MSRB Rule G-21, on advertising, to establish specific requirements with respect to advertisements by brokers, dealers and municipal securities dealers (“dealers”) relating to municipal fund securities. The proposed rule change was published for comment in the **Federal Register** on December 30, 2004. 3 The Commission received three comment letters regarding the proposal. 4 On March 8, 2005, the MSRB filed a response to the first two comment letters and requested that the SEC make the proposed rule change effective 180 days after the proposed rule change is approved. 5 On May 10, 2005, the MSRB filed a response to the third comment letter from Fund Distributors and modified the MSRB's request in the First Response Letter regarding the effective date of the proposed rule change. 6 This order approves the proposed rule change. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 *See* Securities Exchange Act Release No. 50919 (December 22, 2004), 69 FR 78499 (December 30, 2004). 4 *See* e-mail letter from David Pearlman, Chairman, College Savings Foundation (“CSF”), to *rule-comments@sec.gov* , dated January 14, 2005 (“CSF's Letter”); letter to Jonathan G. Katz, Secretary, Commission, from Tamara K. Salmon, Senior Associate Counsel, Investment Company Institute (“ICI”), dated January 19, 2005 (“ICI's Letter”); and letter from Joseph J. Connolly, Eckert Seamans Cherin & Mellott, LLC, on behalf of its client PFM Fund Distributors, Inc. (“Fund Distributors”), dated February 18, 2005 (“Fund Distributors” Letter”). 5 *See* letter from Ernesto A. Lanza, Senior Associate General Counsel, MSRB, to Martha M. Haines, Chief, Office of Municipal Securities, Commission, dated March 8, 2005 (“MSRB's First Response Letter”). The MSRB's First Response Letter does not respond to Fund Distributors' Letter because Fund Distributors' Letter was received by the Commission after the end of the comment period. 6 *See* letter from Ernesto A. Lanza, Senior Associate General Counsel, MSRB, to Martha M. Haines, Chief, Office of Municipal Securities, Commission, dated May 4, 2005 (“MSRB's Second Response Letter”). The proposed rule change amends MSRB Rule G-21 to establish specific standards applicable to advertisements of municipal fund securities by dealers. In its filing, the MSRB proposed an effective date for the proposed rule change of the first calendar day of the month beginning 90 or more calendar days after SEC approval. CSF's Letter and ICI's Letter generally supported the proposed amendments, which would bring advertising rules for municipal fund securities more in line with the requirements of Rule 482 adopted by the SEC under the Securities Act of 1933, as amended. 7 CSF's Letter requested additional time to implement systems changes needed to comply with the proposal, and requested that there be a 180-day transition period from the effective date of the proposal until the date of required compliance. ICI's Letter recommended that the proposed 90-day compliance period be extended to a period of at least 210 days to accommodate the changes necessitated by the revised rule. 7 15 U.S.C. 77a *et seq.* In addition, ICI's Letter noted that the MSRB has published for comment related amendments to Rule G-21 that would supplement the proposed rule change (the “additional draft amendments”), and recommended the proposed rule change and the additional draft amendments, if ultimately approved, be made effective in a coordinated manner to avoid a two-step compliance process. The MSRB's First Response Letter stated that the MSRB had approved the filing with the SEC of the additional draft amendments to Rule G-21 at its February meeting, and also stated that the MSRB would request an effective date for the additional draft amendments that coincides with the effective date for the proposed rule change. The MSRB's First Response Letter also stated that they understand that, in many cases, issuers will be involved in the process of preparing the disseminated performance data that dealers will use in their advertisements and for compliance with the requirements in the additional draft amendments. Accordingly, the MSRB's First Response Letter stated that they believe that additional time for the issuer community to prepare for the timeframes required under the new advertising requirements would be appropriate, and requested that the SEC amend the proposed rule change to be effective 180 days after the proposed rule change is approved. The MSRB's Second Response Letter, drafted after additional discussions with SEC staff, recommended that all advertisements for municipal fund securities submitted or caused to be submitted for publication by a dealer on or after September 1, 2005 comply with section

(e)of Rule G-21, as amended by the proposed rule change, except for paragraphs (e)(i)(C) and (e)(ii) relating to calculation and presentation of performance data and those provisions of paragraph (e)(i)(D) pertaining to paragraph (e)(i)(C), and that all advertisements for municipal fund securities submitted or caused to be submitted for publication by a dealer on or after December 1, 2005 comply with all provisions of section

(e)of Rule G-21. Fund Distributors' Letter stated that municipal fund securities consist of the securities of two broad classes of issuers: local government investment pools (LGIPs) and what are known as section 529 college savings plans. Fund Distributors' Letter urged the Commission to decline to adopt the proposed rule change to the extent that the amendments apply to the historical performance data of LGIPs because those amendments fail to recognize the unique perspective of the financially sophisticated municipal governments which use LGIPs in their cash management programs. The MSRB's Second Response Letter stated that although they agree that many investors in the LGIP market may be “financially sophisticated municipal governments,” as characterized by Fund Distributors, they believe that a large number of LGIP investors consist of entities such as small municipalities, school and other special purpose districts, and various other governmental entities that may have only part-time or otherwise limited financial staffs who may well not be financially sophisticated. The MSRB's Second Response Letter further stated that they believe that the proposed rule change will further investor protection in the LGIP market and therefore should be approved as submitted. The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to the MSRB 8 and, in particular, the requirements of Section 15B(b)(2)(C) of the Act and the rules and regulations thereunder. 9 Section 15B(b)(2)(C) of the Act requires, among other things, that the MSRB's rules be designed to prevent fraudulent and manipulative acts and practices, 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 municipal securities, to remove impediments to and perfect the mechanism of a free and open market in municipal securities, and, in general, to protect investors and the public interest. 10 In particular, the Commission finds that the proposed rule change will further investor protection by raising the standards for advertisements of municipal fund securities and by making information provided in such advertisements comparable for different municipal fund securities investments and between municipal fund securities and registered mutual funds. 8 In approving this rule the Commission notes that it has considered the proposed rule's impact on efficiency, competition and capital formation. 15 U.S.C. 78c(f). 9 15 U.S.C. 78o-4(b)(2)(C). 10 *Id.* The Commission finds that the MSRB's recommendation concerning the effective date of the proposal falls within the statutory parameters and therefore agrees that all advertisements for municipal fund securities submitted or caused to be submitted for publication by a dealer on or after September 1, 2005 must comply with section

(e)of Rule G-21. These compliance dates also would apply to the additional draft amendments, when filed with (and if approved by) the Commission. In addition, the Commission believes that the amendments should be applied to LGIPs as well as section 529 plans because investor protection issues may be raised in connection with the sale by dealers of interests in local government pools as well as section 529 plans. *It is therefore ordered* , pursuant to Section 19(b)(2) of the Act, 11 that the proposed rule change (SR-MSRB-2004-09) be, and hereby is, approved. 11 15 U.S.C. 78s(b)(2). For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 12 12 17 CFR 200.30-3(a)(12). Margaret H. McFarland, Deputy Secretary. [FR Doc. E5-2750 Filed 5-31-05; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-51737; File No. SR-MSRB-2005-07] Self-Regulatory Organizations; Municipal Securities Rulemaking Board; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Regarding Amendment to Rule G-8, on Recordkeeping, Relating to Delivery of Customer Agreements Containing Predispute Arbitration Clauses May 24, 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 29, 2005, the Municipal Securities Rulemaking Board (“MSRB” or “Board”), filed with the Securities and Exchange Commission (“Commission” or “SEC”) the proposed rule change as described in Items I and II below, which Items have been prepared by the MSRB. The MSRB has filed the proposal as a “non-controversial” rule change pursuant to Section 19(b)(3)(A)(iii) of the Act, 3 and Rule 19b-4(f)(6) thereunder, 4 which renders the proposal effective upon filing with the Commission. However, the MSRB has set an effective date of May 1, 2005, to coincide with recent amendments to NASD Rule 3110(f), on predispute arbitration agreements with customers. 5 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 17 CFR 240.19b-4. 3 15 U.S.C. 78s(b)(3)(A)(iii). 4 17 CFR 240.19b-4(f)(6). 5 SEC Release No. 34-51526 (April 12, 2005). I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The MSRB is filing with the Commission a proposed rule change consisting of an amendment to Rule G-8, on recordkeeping, to conform to NASD's recent amendments to Rule 3110(f). NASD's amendments conform its requirements with the Commission's recordkeeping rules by extending the time period for delivery of a copy of a customer account agreement containing a predispute arbitration clause from the time of signing to within 30 days of signing. 6 The MSRB has set an effective date for the amendments of May 1, 2005, to coincide with the effective date of the recent amendments to NASD Rule 3110(f), and, consistent with NASD, has extended the compliance date to June 1, 2005 for the prior amendments to Rule G-8(a)(xi)(M)(1), on required disclosures in customer agreements containing predispute arbitration clauses. 7 The text of the proposed rule change is available on the MSRB's Web site ( *http://www.msrb.org* ), at the MSRB's principal office, and at the Commission's Public Reference Room. 6 NASD's filing (File No. SR-NASD-2005-045) was granted accelerated approval in SEC Release No. 34-51526 (April 12, 2005). 7 SEC Release 34-51534 (April 12, 2005). 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 MSRB 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 MSRB 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 On March 21, 2005, the MSRB filed, for immediate effectiveness, a proposed rule change consisting of an amendment to Rule G-8 to add requirements governing the use of predispute arbitration agreements with customers, consistent with NASD requirements as set forth in NASD Rule 3110(f). 8 Shortly thereafter, NASD filed an amendment to Rule 3110(f) to conform to SEC recordkeeping rules, in particular Exchange Act Rule 17a-3(a)(17)(i)(B)(1), 9 by extending the time period for delivery of a copy of a customer account agreement containing a predispute arbitration clause from the time of signing to within 30 days of signing. 10 The NASD amendments also extend the compliance date of its prior amendments to Rule 3110(f)(1), on required disclosures, to June 1, 2005. 8 File No. SR-MSRB-2005-05. The filing also contained a technical amendment to Rule A-11, on indemnification, to delete its obsolete references to arbitrators. On April 1, 2005, the MSRB submitted Amendment No. 1 to the filing to replace, in its entirety, the proposed language to Rule G-8 with new language that conformed with the language of NASD Rule 3110(f), as amended. *See* MSRB Notices 2005-18 (March 21, 2005) and 2005-21 (April 1, 2005). The Commission published notice of the filing for immediate effectiveness in Release No. 34-51534 (April 12, 2005). The effective date for the amendments to Rule G-8 is May 1, 2005. 9 17 CFR 240.17a-3(a)(17)(b)(1). This SEC rule requires a broker-dealer, among other things, to keep a record indicating that the broker-dealer has furnished to each customer within 30 days of opening the account a copy of the account record, or alternate document, containing the customer's name, address, telephone number, date of birth, employment status, annual income, net worth, the account's investment objectives, and other information. 10 The Commission published notice of the NASD filing and an order granting accelerated approval in Release No. 34-51526 (April 12, 2005). As stated previously, it is the MSRB's intent to make its requirements governing the use of predispute arbitration agreements with customers consistent with NASD requirements in this area. Accordingly, the MSRB is submitting the proposed rule change to amend Rule G-8, consistent with NASD Rule 3110(f) as most recently amended. As noted in NASD's filing, the purpose of the proposed rule change regarding the delivery of customer agreements is to conform the time period for delivery of copies of any customer agreement containing a predispute arbitration clause to customers with SEC requirements as set forth in its recordkeeping rules. 11 Specifically, the proposed rule change would require dealers to comply with such delivery requirements within 30 days of signing of the customer agreement. 11 File No. SR-NASD-2005-045 at 19. Both NASD and MSRB requirements, as previously filed, are effective as of May 1, 2005. 12 As part of its most recent amendments, NASD extended to June 1, 2005 the compliance date for its provision regarding required disclosures in any customer agreement containing a predispute arbitration clause. 13 Thus, the MSRB has set an effective date for the amendments of May 1, 2005, and has extended the compliance date for its prior amendments to Rule G-8(a)(xi)(M)(1), on required disclosures, to June 1, 2005. Beginning June 1, 2005, all customer agreements containing predispute arbitration clauses must include the new disclosure required by Rule G-8(a)(xi)(M)(1). 14 The MSRB is requesting that the Commission waive the five-day pre-filing notice requirement and the 30-day delayed effective date requirement for “non-controversial” filings submitted pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-4(f)(6) thereunder, so that MSRB effective dates will coincide with NASD's for the same requirements. 12 SEC Release No.'s 34-50713 (November 22, 2004) and 34-51534 (April 12, 2005). 13 SEC Release No. 34-51526 (April 12, 2005). 14 However, any dealer that wishes to use customer agreements containing the new disclosure language required by MSRB Rule G-8(a)(xi)(M)(1) may do so prior to the compliance date of June 1, 2005. 2. Statutory Basis The MSRB believes that the proposed rule change is consistent with Section 15B(b)(2)(C) and

(D)of the Act, 15 which provides that MSRB rules shall: 15 15 U.S.C. 78o-4(b)(2)(C), (D). be designed to prevent fraudulent and manipulative acts and practices, 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 municipal securities, to remove impediments to and perfect the mechanism of a free and open market in municipal securities, and, in general, to protect investors and the public interest * * * [and] if the Board deems appropriate, provide for the arbitration of claims, disputes, and controversies relating to transactions in municipal securities * * *. The MSRB believes that the proposed rule change is consistent with these provisions in that it would provide for the protection of investors and the public interest by ensuring that customers of brokers, dealers and municipal securities dealers, including bank dealers and municipal-only dealers, receive information regarding arbitration and predispute arbitration agreements in a timely fashion. The proposed rule change also would ensure consistent treatment across the securities markets regarding these requirements. B. Self-Regulatory Organization's Statement on Burden on Competition The MSRB does not believe that the proposed rule change will result in any burden on competition 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 on the proposal. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Because the proposed rule change:

(i)Does not significantly affect the protection of investors or the public interest;

(ii)does not impose any significant burden on competition; and

(iii)does not become operative for 30 days (or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest) from the date on which it was filed, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act 16 and Rule 19b-4(f)(6) thereunder. 17 16 15 U.S.C. 78s(b)(3)(A). 17 17 CFR 240.19b-4(f)(6). A proposed rule change filed under Rule 19b-4(f)(6) normally does not become operative prior to 30 days after the date of the filing. However, Rule 19b-4(f)(6)(iii) permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The MSRB has asked the Commission to waive the 30-day operative delay. The Commission hereby grants this request. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest because such waiver will enable the MSRB to make the effective date of the proposed rule change coincide with NASD's for the same requirements. The effective date for the amendments will be May 1, 2005. The MSRB has extended the compliance date for its prior amendments to Rule G-8(a)(xi)(M)(1) to June 1, 2005, to coincide with NASD's compliance date for the same provisions. The MSRB has also requested that the Commission waive the pre-filing notice requirement of at least five business days (or such shorter time as designated by the Commission). 18 The Commission hereby grants the MSRB's request to waive the pre-filing requirement. 19 18 17 CFR 240.19b-4(f)(6)(iii). 19 For purposes only of accelerating the operative date of this proposal, the Commission has considered the proposed rule's impact on efficiency, competition, and capital formation. 15 U.S.C. 78c(f). At any time within 60 days of the filing of the 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. 20 20 *See* Section 19(b)(3)(C) of the Act, 15 U.S.C. 78s(b)(3)(C). 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 *rule-comments@sec.gov.* Please include File Number SR-MSRB-2005-07 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-MSRB-2005-07. 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 MSRB. 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-MSRB-2005-07 and should be submitted on or before June 22, 2005. For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 21 21 17 CFR 200.30-3(a)(12). Margaret H. McFarland, Deputy Secretary. [FR Doc. E5-2751 Filed 5-31-05; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-51735; File No. SR-NASD-2004-165] Self-Regulatory Organizations; National Association of Securities Dealers, Inc.; Notice of Filing of Proposed Rule Change and Amendment Nos. 1 and 2 Thereto Relating to NASD Rule 2790 May 24, 2005. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act” or “Act”) 1 and Rule 19b-4 thereunder, 2 notice is hereby given that on October 29, 2004, the National Association of Securities Dealers, Inc. (“NASD”) filed with the Securities and Exchange Commission (“SEC” or “Commission”) the proposed rule change as described in Items I, II and III below, which Items have been prepared by NASD. On February 1, 2005, NASD submitted Amendment No. 1 to the proposed rule change. 3 On April 18, 2005, NASD submitted 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. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 Amendment No. 1 included minor changes to the rule text of the proposed rule change. 4 Amendment No. 2 included minor changes to the proposed rule change including clarifying that most REITs have invested assets at the time of their initial public offering. I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change NASD is filing with the Commission a proposed rule change to amend subparagraph (i)(9) of NASD Rule 2790 to exclude from the definition of “new issue” securities offerings of a business development company (“BDC”), a direct participation program (“DPP”), and a real estate investment trust (“REIT”). NASD also is proposing a technical change to the exemption for foreign investment companies in subparagraph (c)(6) of NASD Rule 2790 to clarify the scope of the exemption as reflected in a recent NASD staff memorandum dated August 6, 2004 (“Staff Memorandum”). 5 In addition, NASD is proposing to amend NASD Rule 2790 to codify the filing requirement for distribution information. Below is the text of the proposed rule change. Proposed new language is italicized; proposed deletions are bracketed. 5 The Staff Memorandum is available on the NASD's Web site at *http://www.nasdr.com.* 2700. Securities Distributions 2790. Restrictions on the Purchase and Sale of Initial Equity Public Offerings

(a)through

(b)No Change.

(c)General Exemptions The general prohibitions in paragraph

(a)of this rule shall not apply to sales to and purchases by the following accounts or persons, whether directly or through accounts in which such persons have a beneficial interest:

(1)through

(5)No Change.

(6)An investment company organized under the laws of a foreign jurisdiction, provided that:

(A)The investment company is listed on a foreign exchange *for sale to the public* or authorized for sale to the public by a foreign regulatory authority; and

(B)No person owning more than 5% of the shares of the investment company is a restricted person;

(7)through

(10)No Change.

(d)through

(h)No Change.

(i)Definitions

(1)through

(8)No Change.

(9)“New issue” means any initial public offering of an equity security as defined in Section 3(a)(11) of the Act, made pursuant to a registration statement or offering circular. New issue shall not include:

(A)Offerings made pursuant to an exemption under Section 4(1), 4(2) or 4(6) of the Securities Act of 1933, or SEC Rule 504 if the securities are “restricted securities” under SEC Rule 144(a)(3), or Rule 144A or Rule 505 or Rule 506 adopted thereunder;

(B)Offerings of exempted securities as defined in Section 3(a)(12) of the Act, and rules promulgated thereunder;

(C)Offerings of securities of a commodity pool operated by a commodity pool operator as defined under Section 1a(5) of the Commodity Exchange Act;

(D)Rights offerings, exchange offers, or offerings made pursuant to a merger or acquisition;

(E)Offerings of investment grade asset-backed securities;

(F)Offerings of convertible securities;

(G)Offerings of preferred securities;

(H)Offerings of an investment company registered under the Investment Company Act of 1940; [and]

(I)Offerings of securities (in ordinary share form or ADRs registered on Form F-6) that have a pre-existing market outside of the United States[.]; *and* *(J) Offerings of a business development company as defined in Section 2(a)(48) of the Investment Company Act of 1940, a direct participation program as defined in NASD Rule 2810(a)(4), or a real estate investment trust as defined in Section 856 of the Internal Revenue Code.*

(10)No Change. *(j) Information Required To Be Filed* *(1) The book-running managing underwriter of a new issue shall be required to file the following information in the time and manner specified by NASD with respect to new issues:* *(A) The initial list of distribution participants and their underwriting commitment and retention amounts on or before the offering date; and* *(B) The final list of distribution participants and their underwriting commitment and retention amounts no later than three business days after the offering date.* II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, NASD 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. NASD 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 I. *Securities Offerings of BDCs, DPPs, and REITs.* Currently, the definition of “new issue” under subparagraph (i)(9) of NASD Rule 2790 excludes, among other things, securities offerings of closed-end investment companies registered under the Investment Company Act of 1940 (the “Investment Company Act”). NASD staff has observed that securities of closed-end investment companies “typically commence trading at the public offering price with little potential for trading at a premium because the fund's assets at the time of the offering are the capital it has previously raised.” 6 Moreover, if there is a premium, it is generally small. In light of these facts, NASD exempted securities of closed-end investment companies registered under the Investment Company Act from the definition of “new issue,” noting that including such offerings within the scope of NASD Rule 2790 would do little to further the purposes of the Rule and, moreover, may impair the ability of such companies to obtain capital. 7 For similar reasons, as discussed below, NASD is proposing to exclude from the definition of “new issue” securities offerings of BDCs as defined in Section 2(a)(48) of the Investment Company Act, 8 DPPs as defined in NASD Rule 2810(a)(4), and REITs as defined in Section 856 of the Internal Revenue Code (the “Code”). 9 6 Securities Exchange Act Release No. 48701 (October 24, 2003), 68 FR 62126 (October 31, 2003) (order approving File No. SR-NASD-99-60). 7 *Id.* ; Securities Exchange Act Release No. 43627 (November 28, 2000), 65 FR 76316 (December 6, 2000) (notice of filing of Amendment No. 2 to File No. SR-NASD-99-60). 8 15 U.S.C. 80a-2(a)(48). 9 26 U.S.C. 856. A. *BDCs.* According to NASD, through the passage of the Small Business Investment Incentive Act of 1980 and the corresponding amendments to the Investment Company Act, Congress enacted a regulatory structure for BDCs in an effort to encourage capital investment in small developing businesses and financially troubled businesses. 10 10 *See* Investment Company Act Release No. 11493 (December 16, 1980), 45 FR 83479 (December 19, 1980). A BDC is defined as a domestic, closed-end investment company that: is operated for the purpose of making investments in small and developing businesses and financially troubled businesses; that must make available significant managerial assistance to certain of its portfolio companies; and that has notified the Commission of its election to be subject to the provisions of Sections 55 through 65 of the Investment Company Act. 11 According to NASD, while a BDC technically is not registered under the Investment Company Act, it is subject to many of the same requirements that are applicable to registered investment companies. 12 11 *See* Section 2(a)(48) of the Investment Company Act; 15 U.S.C. 80a-2(a)(48). 12 For example, in December 2003, the Commission adopted a new rule under the Investment Company Act that requires each registered investment company as well as each BDC to adopt and implement written policies and procedures reasonably designed to prevent violation of the federal securities laws, review those policies and procedures annually for their adequacy and the effectiveness of their implementation, and designate a chief compliance officer to be responsible for administering the policies and procedures. *See* Investment Company Act Release No. 26299 (December 17, 2003), 68 FR 74714 (December 24, 2003) (Final Rule Relating to Compliance Programs of Investment Companies and Investment Advisers). Section 55 of the Investment Company Act, 13 in part, describes the securities in which a BDC can invest. These securities generally must comprise at least 70% of the value of the BDC's investment assets and include securities of certain companies, cash, cash items, U.S. government securities, and high quality debt instruments. The companies in which a BDC can invest are primarily “eligible portfolio companies” as defined in Section 2(a)(46) of the Investment Company Act, 14 which generally include small developing businesses and financially troubled businesses. Further, NASD staff understands that BDCs are similar to registered closed-end investment companies in that a BDC's primary asset at the time of its initial public offering is the capital it has raised through the offering process. Thus, NASD believes that like registered closed-end investment companies, BDCs generally commence trading at their public offering price and premiums, if any, tend to be very small. 13 15 U.S.C. 80a-54. 14 15 U.S.C. 80a-2(a)(46). B. *DPPs and REITs.* A DPP, as defined in NASD Rule 2810(a)(4), is a program that provides for flow-through tax consequences regardless of the structure of the legal entity or vehicle for distribution, including, but not limited to, oil and gas programs, cattle programs, condominium securities, Subchapter S corporate offerings and all other programs of a similar nature, regardless of the industry represented by the program, or any combination thereof. NASD Rule 2810 excludes REITs from the definition of a DPP. A REIT is a recognized investment vehicle for income-generating real estate, and it is allowed to benefit from the tax advantages of a trust as long as certain asset, income, and distribution criteria have been satisfied as set forth in the Code. 15 For instance, pursuant to the Code, at least 75 percent of a REIT's gross income must be derived from real estate, and at least 75 percent of the value of its total assets must be represented by real estate assets, cash and cash items, and Government securities. 16 15 *See* Section 856 of the Code; 26 U.S.C. 856. 16 *Id.* According to NASD, nearly all DPPs and a few REITs, at the time of their initial public offering, have no invested assets. The initial public offering raises capital, which is subsequently invested. As such, NASD believes that the initial public offerings of these DPPs and REITs, like registered closed-end investment companies, are not expected to open at a premium. Like registered closed-end funds, the primary asset of these DPPs and REITs immediately following the public offering is the capital raised in the offering. According to NASD, most REITs making an initial public offering have invested assets upon consummation of the offering. Although the common stock of these REITs has a greater potential for immediate premiums in the secondary market, NASD staff's review of such offerings has shown that even in these cases, premiums, if any, tend to be small. According to NASD, because the assets of REITs ( *e.g.* , rental properties or mortgage portfolio) generally have a reasonably determinable market value, it is rare that REITs will commence trading at a significant premium. Moreover, NASD believes that investors typically invest in REITs for income rather than capital appreciation, which may further limit premiums in the immediate aftermarket. For these reasons, NASD is proposing to exclude securities offerings of all BDCs, DPPs, and REITs from the definition of “new issue” under subparagraph (i)(9) of NASD Rule 2790. As noted above, NASD staff has found that historically most of these offerings have not traded at a substantial premium. If warranted by future developments in the trading pattern of such securities in the immediate secondary market, however, the staff would reconsider the appropriateness of a blanket exclusion for these types of offerings. II. *Foreign Investment Company Exemption.* NASD also is proposing a technical change to the exemption for foreign investment companies in subparagraph (c)(6) of NASD Rule 2790 to clarify the scope of the exemption as reflected in the Staff Memorandum. The Staff Memorandum was prepared in response to inquiries about whether the foreign investment company exemption would apply to various hedge funds and other funds exempt from registration under the Investment Company Act that were listed on a foreign exchange (such as the Irish Stock Exchange). In the Staff Memorandum, NASD staff explained that the foreign investment company exemption is intended to extend to foreign investment companies that are similar to U.S. registered investment companies. 17 NASD staff further explained the exemption for foreign investment companies extends only to an investment company organized under the laws of a foreign jurisdiction that is either “listed on a foreign exchange for sale to the public” or “authorized for sale to the public,” and that does not have any restricted person that beneficially owns more than 5% of the company's shares. 17 In *Notice to Members* (“NtM”) 97-30, which proposed the foreign investment company exception in the Free-Riding and Withholding Interpretation, IM-2110-1 (the predecessor to Rule 2790), NASD stated that: Purchases of shares of investment companies registered under the Investment Company Act of 1940 (1940 Act) are exempt from the restrictions of the Interpretation. The rationale for this existing provision is that the interest of any one restricted person in an investment company ordinarily is *de minimis* and that, because the ownership of investment company shares generally is subject to frequent turnover, determining compliance with the Interpretation would be extremely difficult in this context. *NASD Regulation is proposing to extend this rationale to the purchase of shares of foreign entities that are similar to U.S. investment companies.* (emphasis added). Likewise, in *NtM* 03-79, which announced the SEC's approval of NASD Rule 2790, NASD explained that “the foreign investment company exception is intended to extend benefits to foreign investment entities that are similar to U.S. mutual funds.” The Staff Memorandum also reiterated the position in *NtM* 03-79 that a foreign investment company that is limited to select investors would not be considered as “for sale to the public.” As NASD staff explained, foreign investment companies that are limited to high net worth individuals are not eligible for the foreign investment company exception. According to NASD, inasmuch as U.S. registered investment companies are not limited to sale to high net worth individuals, it would be inconsistent to permit foreign investment companies to impose such requirements and still avail themselves of the exemption provided for foreign investment companies under NASD Rule 2790. NASD believes that none of the reasons underlying the exemption for U.S. registered investment companies, such as broad public ownership, the difficulty in identifying beneficial owners, the ability of any public investor to purchase an interest in the investment company, and the generally negligible interest of any single restricted person, are likely to be present with a foreign investment company offered only to high net worth individuals. Moreover, NASD staff believes that the purposes of NASD Rule 2790 could easily be frustrated by purchases of large quantities of a new issue by a foreign investment company listed on a foreign exchange that is owned entirely or principally by broker-dealer personnel (or other restricted persons). According to NASD, a foreign investment company that is limited to select investors would, however, be eligible to purchase new issues in accordance with the *de minimis* exemption set forth in subparagraph (c)(4) of NASD Rule 2790. While NASD staff believes the text of NASD Rule 2790, *NtM* 03-79, and the rulemaking history of the foreign investment company provision support the interpretation provided in the Staff Memorandum, NASD staff also believes that it is appropriate to amend the rule text. Specifically, NASD is proposing to revise the foreign investment company exemption to state as follows:

(6)An investment company organized under the laws of a foreign jurisdiction, provided that:

(A)The investment company is listed on a foreign exchange for sale to the public or authorized for sale to the public by a foreign regulatory authority; and

(B)No person owning more than 5% of the shares of the investment company is a restricted person. III. *Information Required to be Filed.* In 1996, NASD initiated a regulatory service, “NASDesk,” for members to transmit underwriting commitment and retention information to NASD's Free-Riding Regulatory Database. NASD communicated with members regarding the “hot issue” status of initial public offerings (“IPOs”) using a companion system, “Compliance Desk.” 18 To coincide with the implementation of NASD Rule 2790, NASD replaced NASDesk/Compliance Desk with a new system for members to submit new issue distribution information named “IPO Distribution Manager.” 19 IPO Distribution Manager is a Web-based application that permits the book-running managing underwriter to transmit distribution information to NASD through Web COBRA, the Web-based filing system that members are required to use when filing information about IPOs under the Corporate Financing Rule (NASD Rule 2710). 18 *See NtM* 96-18. 19 *See NtM* 04-20 (March 2004). NASD is proposing to amend NASD Rule 2790 to codify the requirement for the book-running managing underwriter to file distribution information as announced in NtM 04-20.

(2)Statutory Basis NASD believes that the proposed rule change, as amended, is consistent with the provisions of Section 15A(b)(6) of the Act, 20 which requires, among other things, that NASD rules must be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, and, in general, to protect investors and the public interest. NASD believes that the proposed rule change to NASD Rule 2790, as described herein, protects investors and the public interest by ensuring that member firms make a bona fide public offering of securities at the public offering price. 20 15 U.S.C. 78o-3(b)(6). B. Self-Regulatory Organization's Statement on Burden on Competition NASD does not believe that the proposed rule change, as amended, will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. 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. III. 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 self-regulatory organization consents, the Commission will: A. By order approve such proposed rule change, or B. Institute proceedings to determine whether the proposed rule change should be disapproved. 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 *rule-comments@sec.gov. Please include File Number* SR-NASD-2004-165. Paper Comments • Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW, Washington, DC 20549. All submissions should refer to File Number SR-NASD-2004-165. 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 for inspection and copying at the principal office of the NASD. 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-NASD-2004-165 and should be submitted on or before June 22, 2005. For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 21 21 17 CFR 200.30-3(a)(12). Margaret H. McFarland, Deputy Secretary. [FR Doc. E5-2752 Filed 5-31-05; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-51741; File No. SR-NASD-2005-054] Self-Regulatory Organizations; National Association of Securities Dealers, Inc.; Order Granting Accelerated Approval of Proposed Rule Change and Amendment No. 1 Thereto Relating to Certain Amendments to the Restated Certificate of Incorporation and the By-Laws of The Nasdaq Stock Market, Inc May 25, 2005. I. Introduction On April 19, 2005, the National Association of Securities Dealers (“NASD”), through its subsidiary, The Nasdaq Stock Market Inc. (“Nasdaq”), filed with the Securities and Exchange Commission (“Commission” or “SEC”) a proposed rule change, pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder, 2 to make certain amendments to the Nasdaq Restated Certificate of Incorporation (the “Certificate”) and the Nasdaq By-Laws (the “By-Laws”) to phase out the current classified board structure and provide for the annual election of all members of the Nasdaq Board of Directors (the “Nasdaq Board”). The proposed rule change was published for comment in the **Federal Register** on May 4, 2005. 3 The Commission received no comments on the proposal. On May 25, 2005, Nasdaq submitted Amendment No. 1 to the proposed rule change. 4 This order grants accelerated approval to the proposed rule change, as amended. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 *See* Securities Exchange Act Release No. 51626 (April 28, 2005), 70 FR 23286 (May 4, 2005). 4 In Amendment No. 1, Nasdaq modified the text of their proposed rule change to reflect NASD and stockholder approval of the proposed amendments to Nasdaq's Certificate of Incorporation. Specifically, the Amendment stated that the Board of Governors of the NASD (the “NASD Board”) approved the proposed rule change on April 21, 2005, and that Nasdaq's stockholders approved the proposed rule change at the 2005 annual meeting of stockholders which was held on May 25, 2005. Amendment No. 1 is a technical amendment and, therefore, not subject to notice and comment. II. Discussion and Commission Findings The Commission has reviewed the proposed rule change, as amended, and finds that it is consistent with the requirements of Section 15A of the Act, 5 and the rules and regulations thereunder applicable to a national securities association. 6 In particular, the Commission finds that the proposed rule change is consistent with Sections 15A(b)(2) and

(6)of the Act, 7 which require, among other things, that Nasdaq be so organized and have the capacity to be able to carry out the purposes of the Act and to comply with and enforce compliance with the provisions of the Act, and that Nasdaq's rules be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, and, in general, to protect investors and the public interest. The Commission believes that the proposed rule change will serve the public interest by enhancing the accountability of board members through more frequent elections and thereby may help Nasdaq fulfill its obligations under the Act. 5 15 U.S.C. 78 *o* -3. 6 In approving the proposed rule change, the Commission has considered its impact on efficiency, competition, and capital formation. 15 U.S.C. 78c(f). 7 15 U.S.C. 78 *o* -3(b)(2) and (6). The Commission finds good cause for approving the proposed rule change prior to the thirtieth day after the date of publication of notice thereof in the **Federal Register** . In order for the amendments to the Certificate and the By-Laws to take effect as approved, Nasdaq requested that the Commission accelerate approval of the proposed rule change on May 25, 2005, immediately after the filing of the amendment indicating approval by Nasdaq's stockholders and the NASD Board. Accelerating approval will allow for the timely filing, of the proposed changes being made to the Certificate, with the Secretary of State of the State of Delaware. Furthermore, approval of the proposed rule change on May 25, 2005 will avert the need for a second stockholder vote at a later meeting that would entail additional expense and delay while not conferring benefits from a regulatory or corporate governance standpoint. Accordingly, the Commission finds good cause, consistent with Sections 15A(b)(6) and 19(b) of the Exchange Act, to approve the proposed rule change, as amended, on an accelerated basis. III. Conclusion It is therefore ordered, pursuant to Section 19(b)(2) of the Act, 8 that proposed rule change (SR-NASD-2005-054), as amended, is approved on an accelerated basis. 8 15 U.S.C. 78s(b)(2). 9 17 CFR 200.30-3(a)(12). For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 9 Jill M. Peterson, Assistant Secretary. [FR Doc. E5-2767 Filed 5-31-05; 8:45 am] BILLING CODE 8010-01-P DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Docket No. MC-F-21012] 1 CUSA CSS, LLC d/b/a Crew Shuttle Services—Acquisition of Assets and Business Operations—Crew Shuttle Service, Inc. AGENCY: Surface Transportation Board, DOT. ACTION: Notice tentatively approving finance transaction. SUMMARY: CUSA CSS, LLC d/b/a Crew Shuttle Services (CUSA CSS or Applicant), a federally regulated motor carrier (MC-522544), has filed an application under 49 U.S.C. 14303 to purchase the assets and business operations of Crew Shuttle Service, Inc. (Crew or Seller). Persons wishing to oppose this application must follow the rules at 49 CFR 1182.5 and 1182.8. The Board has tentatively approved the transaction, and, if no opposing comments are timely filed, this notice will be the final Board action. 1 A request for interim approval under 49 U.S.C. 14303(i) was included in this filing (STB Docket No. MC-F-21012 TA). Temporary approval was granted by decision served on May 16, 2005, which approval became effective on that date. DATES: Comments must be filed by July 18, 2005. Applicant may file a reply by August 1, 2005. If no comments are filed by July 18, 2005, this notice is effective on that date. ADDRESSES: Send an original and 10 copies of any comments referring to STB Docket No. MC-F-21012 to: Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423-0001. In addition, send one copy of comments to Applicant's representative: Stephen Flott, Flott & Co. PC, PO Box 17655, Arlington, VA 22216-7655. FOR FURTHER INFORMATION CONTACT: Joseph H. Dettmar,

(202)565-1600. [Federal Information Relay Service

(FIRS)for the hearing impaired: 1-800-877-8339.] SUPPLEMENTARY INFORMATION: CUSA CSS is a new company wholly owned and created by CUSA, LLC

(CUSA)to undertake this transaction. CUSA is a noncarrier which owns 19 federally regulated and non-federally regulated motor carriers. CUSA is, in turn, wholly owned by noncarrier KBUS Holdings, LLC (KBUS), which acquired the assets and business operations of the federally regulated motor carriers formerly owned by Coach USA, Inc., and then consolidated those assets/operations into the motor passenger carriers now controlled by CUSA. 2 These carriers have more than 3,700 employees and operate approximately 1,100 motor coaches and over 700 other revenue vehicles in 35 states. Annual revenues for the companies controlled by CUSA exceeded $220 million for 2004. According to Applicant, the experienced senior management team that CUSA now has in place has identified the acquisition of Crew as a strategic way to expand its contract passenger business in the Pacific Northwest. 2 *See KBUS Holdings, LLC—Acquisition of Assets and Business Operations—All West Coachlines, Inc., et al.* , STB Docket No. MC-F-21000 (STB served July 23, 2003). Crew is a motor passenger contract carrier that has served businesses, principally in the railroad industry, for many years in the Pacific Northwest pursuant to federal operating authority granted in Docket No. MC-264436. Applicant has entered into an agreement with Seller and its shareholders to buy Seller's assets, including vehicles and business operations. CUSA CSS has submitted information, as required by 49 CFR 1182.2(a)(7), to demonstrate that the proposed transaction is consistent with the public interest under 49 U.S.C. 14303(b). Applicant states that the proposed acquisition will not adversely impact fixed charges or adversely impact the interests of employees of companies whose assets and businesses are being acquired. It asserts that granting the application will allow CUSA CSS to take advantage of economies of scale and substantial benefits offered by CUSA's centralized management system, including interest cost savings and reduced operating costs. In addition, applicant has submitted all of the other statements and certifications required by 49 CFR 1182.2. Additional information, including a copy of the application may be obtained from Applicant's representative. Under 49 U.S.C. 14303(b), the Board must approve and authorize a transaction found to be consistent with the public interest, taking into consideration at least:

(1)The effect of the transaction on the adequacy of transportation to the public;

(2)the total fixed charges that result; and

(3)the interest of affected carrier employees. On the basis of the application, the Board finds that the proposed acquisition of assets and business operations is consistent with the public interest and should be authorized. If any opposing comments are timely filed, this finding will be deemed vacated and, unless a final decision can be made on the record as developed, a procedural schedule will be adopted to reconsider the application. See 49 CFR 1182.6(c). If no opposing comments are filed by the expiration of the comment period, this notice will take effect automatically and will be the final Board action. Board decisions and notices are available on our Web site at *http://WWW.STB.DOT.GOV.* This decision will not significantly affect either the quality of the human environment or the conservation of energy resources. *It is ordered:* 1. The proposed finance transaction (acquisition of assets and business operations) is approved and authorized, subject to the filing of opposing comments. 2. If timely opposing comments are filed, the findings made in this notice will be deemed vacated. 3. This notice will be effective on July 18, 2005, unless timely opposing comments are filed. 4. A copy of this notice will be served on:

(1)The U.S. Department of Transportation, Federal Motor Carrier Safety Administration, 400 7th Street, SW., Room 8214, Washington, DC 20590;

(2)the U.S. Department of Justice, Antitrust Division, 10th Street & Pennsylvania Avenue, NW., Washington, DC 20530; and

(3)the U.S. Department of Transportation, Office of the General Counsel, 400 7th Street, SW., Washington, DC 20590. Decided: May 20, 2005. By the Board, Chairman Nober, Vice Chairman Buttrey, Commissioner Mulvey. Vernon A. Williams, Secretary. [FR Doc. 05-10727 Filed 5-31-05; 8:45 am]

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