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Code · REGISTER · 2005-09-14 · Securities and Exchange Commission (“Commission”) · BILLING CODE 7590-01-P SECURITIES AND EXCHANGE COMMISSION [Investment Company Act Release No. 27058; 812-12893] Eaton Vance Senior Income Trust, et al.; Notice of Application September 7, 2005. AGENCY · Notices

Notices. Notice of an application for an order under section 12(d)(1)(J) of the Investment Company Act of 1940 (“Act”) for an exemption from sections 12(d)(1)(A) and (B) of the Act, under sections 6(c) and 17(b) for an exemption from section 17(a) of the Act, and under section 17(d) of the Act and rule 17d-1 under the Act to permit certain joint transactions

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BILLING CODE 7590-01-P SECURITIES AND EXCHANGE COMMISSION [Investment Company Act Release No. 27058; 812-12893] Eaton Vance Senior Income Trust, et al.; Notice of Application September 7, 2005. AGENCY: Securities and Exchange Commission (“Commission”). ACTION: Notice of an application for an order under section 12(d)(1)(J) of the Investment Company Act of 1940 (“Act”) for an exemption from sections 12(d)(1)(A) and
(B)of the Act, under sections 6(c) and 17(b) for an exemption from section 17(a) of the Act, and under section 17(d) of the Act and rule 17d-1 under the Act to permit certain joint transactions. Summary of Application: Applicants request an order to permit certain registered management investment companies (“Investing Funds”) to use cash collateral received in connection with a securities lending program (“Cash Collateral”) to purchase shares of affiliated money market funds or an affiliated cash management vehicle that relies on section 3(c)(1) or 3(c)(7) of the Act. Applicants: Eaton Vance Senior Income Trust, Eaton Vance Floating-Rate Income Trust, Eaton Vance Short Duration Diversified Income Fund, Eaton Vance Enhanced Equity Income Fund, Eaton Vance Enhanced Equity Income Fund II, Eaton Vance California Municipal Income Trust, Eaton Vance Florida Municipal Income Trust, Eaton Vance Massachusetts Municipal Income Trust, Eaton Vance Michigan Municipal Income Trust, Eaton Vance Municipal Income Trust, Eaton Vance New Jersey Municipal Income Trust, Eaton Vance New York Municipal Income Trust, Eaton Vance Ohio Municipal Income Trust, Eaton Vance Pennsylvania Municipal Income Trust, Eaton Vance Advisers Senior Floating-Rate Fund, Eaton Vance Prime Rate Reserves, EV Classic Senior Floating-Rate Fund, Eaton Vance Institutional Senior Floating-Rate Fund, Eaton Vance Growth Trust, Eaton Vance Investment Trust, Eaton Vance Municipals Trust, Eaton Vance Municipals Trust II, Eaton Vance Mutual Funds Trust, Eaton Vance Series Trust, Eaton Vance Series Trust II, Eaton Vance Special Investment Trust, Eaton Vance Variable Trust, Growth Portfolio, Global Growth Portfolio, Cash Management Portfolio, Government Obligations Portfolio, High Income Portfolio, Tax-Managed Growth Portfolio, Strategic Income Portfolio, Large-Cap Value Portfolio, Special Equities Portfolio, Utilities Portfolio, Senior Debt Portfolio, Floating-Rate Portfolio, Tax-Managed Small-Cap Growth Portfolio, Tax-Managed International Equity Portfolio, Tax-Managed Value Portfolio, Boston Income Portfolio, Tax-Managed Multi-Cap Opportunity Portfolio, Tax-Managed Mid-Cap Core Portfolio, Investment Grade Income Portfolio, Small-Cap Portfolio, Large-Cap Growth Portfolio, Large-Cap Core Portfolio, Small-Cap Growth Portfolio, Tax-Managed Small-Cap Value Portfolio, Eaton Vance Limited Duration Income Fund, Investment Portfolio, Capital Growth Portfolio, Eaton Vance Insured California Municipal Bond Fund, Eaton Vance Insured California Municipal Bond Fund II, Eaton Vance Insured Florida Municipal Bond Fund, Eaton Vance Insured Massachusetts Municipal Bond Fund, Eaton Vance Insured Michigan Municipal Bond Fund, Eaton Vance Insured Municipal Bond Fund, Eaton Vance Insured Municipal Bond Fund II, Eaton Vance Tax-Managed Buy-Write Income Fund, Eaton Vance Insured New Jersey Municipal Bond Fund, Eaton Vance Insured New York Municipal Bond Fund, Eaton Vance Insured New York Municipal Bond Fund II, Eaton Vance Insured Ohio Municipal Bond Fund, Eaton Vance Insured Pennsylvania Municipal Bond Fund, Eaton Vance Senior Floating-Rate Trust, Eaton Vance Tax-Advantaged Dividend Income Fund, Eaton Vance Tax-Advantaged Global Dividend Income Fund, Eaton Vance Tax-Advantaged Global Dividend Opportunities Fund, on behalf of themselves or their series (each, a “Fund,” and collectively, the “Funds”); Eaton Vance Management (“EVM”), Boston Management & Research, Atlanta Capital Management Company, LLC, Fox Asset Management, Inc., and Parametric Portfolio Associates LLC (each, an “Adviser” and together with EVM, the “Advisers”). Filing Dates: The application was filed on October 4, 2002, and amended on September, 2, 2005. Hearing or Notification of Hearing: An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on October 3, 2005, and should be accompanied by proof of service on applicants, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons may request notification of a hearing by writing to the Commission's Secretary. ADDRESSES: Secretary, U.S. Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-9303. Applicants, c/o Robert A. Wittie, Esq., Kirkpatrick & Lockhart, LLP, 1800 Massachusetts Avenue, NW., Washington, DC 20036. FOR FURTHER INFORMATION CONTACT: Marc R. Ponchione, Senior Counsel, at
(202)551-6874, or Nadya B. Roytblat, Assistant Director, at
(202)551-6821 (Division of Investment Management, Office of Investment Company Regulation). SUPPLEMENTARY INFORMATION: The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Branch, 100 F Street, NE., Washington DC 20549-0102 (tel. 202-551-5850). Applicants' Representations 1. Each Investing Fund is registered under the Act as an open-end or closed-end management investment company and is organized as a business trust formed under the laws of Massachusetts or a trust formed under the laws of New York. Each Adviser is registered as an investment adviser under the Investment Advisers Act of 1940. EVM is a direct wholly-owned subsidiary of Eaton Vance Corp. (“EV Corp.”) and Boston Management & Research is a direct wholly-owned subsidiary of EVM. Atlanta Capital Management Company, LLC, Fox Asset Management, Inc., and Parametric Portfolio Associates LLC each are indirect majority-owned subsidiaries of EV Corp. Each Investing Fund has entered into a management or advisory and service contract with one of the Advisers pursuant to which the Adviser provides investment management advice and manages the Investing Fund's business affairs. 1 Applicants request that the relief extend to any entity controlling, controlled by, or under common control with EVM (included in the term “Adviser”) and any other registered management investment company or series thereof that is advised by an Adviser (included in the term “Funds”). 2 1 Under their respective management or advisory contracts, certain closed-end Investing Funds will calculate their advisory fees on a gross assets basis, which includes Cash Collateral, to reflect investment leverage. These closed-end Investing Funds, and any other Investing Fund that calculates its advisory fee on a basis that includes Cash Collateral are referred to as the “Cash Collateral Fee Investing Funds.” 2 All entities that currently intend to rely on the requested relief have been named as applicants. Any entity that relies on the requested relief will do so only in accordance with the terms and conditions of the application. 2. The Investing Funds have the ability to increase their income by lending portfolio securities to borrowers, such as registered broker-dealers or other institutional investors deemed by the Adviser to be of good credit standing, through a securities lending program (“Securities Lending Program”). Loans will be continuously secured by collateral, the value of which will range from between 100% and 105%, depending on the type of collateral posted and securities loaned, plus any interest accrued to date. Collateral will consist of cash and other types of instruments such as U.S. Government securities or irrevocable letters of credit. The Securities Lending Program, including the investment of any Cash Collateral, will comply with all present and future applicable Commission and staff positions regarding securities lending arrangements. 3. Applicants request relief to permit:
(a)Each Investing Fund to use its Cash Collateral to purchase shares of money market Funds that are in the same group of investment companies (as defined in section 12(d)(1)(G) of the Act) as the Investing Fund and comply with rule 2a-7 under the Act (“Money Market Funds”) and a cash management vehicle that is excluded from the definition of investment company under section 3(c)(1) or 3(c)(7) of the Act and is advised by an Adviser (“Private Fund,” and together with the Money Market Funds, the “Central Funds”), and the Central Funds to sell their respective shares to and to purchase (or redeem) such shares from the Investing Funds; and
(b)the Advisers to effect such purchases and sales. Applicants' Legal Analysis 1. Section 12(d)(1)(A) of the Act provides that no registered investment company may acquire securities of another investment company representing more than 3% of the acquired company's outstanding voting stock, more than 5% of the acquiring company's total assets, or, together with the securities of other investment companies, more than 10% of the acquiring company's total assets. Section 12(d)(1)(B) of the Act prohibits a registered open-end investment company, its principal underwriter, and any broker or dealer from selling any security of the investment company to another investment company if the sale will cause the acquiring company to own more than 3% of the acquired company's voting stock, or if the sale will cause more than 10% of the acquired company's voting stock to be owned by investment companies. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person or transaction from any provision of section 12(d)(1) if and to the extent that the exemption is consistent with the public interest and the protection of investors. 2. Applicants request an exemption under section 12(d)(1)(J) to permit the Investing Funds to use Cash Collateral to purchase shares of the Money Market Funds in excess of the limits imposed by section 12(d)(1)(A), and each Money Market Fund, its principal underwriter, and any broker or dealer to sell the Money Market Fund's shares to the Investing Funds in excess of the limits in section 12(d)(1)(B). Applicants represent that the proposed transactions will not result in an inappropriate layering of fees because shares of the Central Funds sold to the Investing Funds will not be subject to a sales load, redemption fee, distribution fee under a plan adopted in accordance with rule 12b-1 under the Act, or service fee (as defined in Rule 2830(b)(9) of the Conduct Rules of the National Association of Securities Dealers (“NASD Conduct Rules”), or if such shares are subject to any such sales load, redemption fee, distribution fee, or service fee, the Adviser will waive its advisory fee for each Investing Fund in an amount that offsets the amount of such fees incurred by the Investing Fund. For Cash Collateral Fee Investing Funds, before the next meeting of the board of trustees (“Board”) of a Cash Collateral Fee Investing Fund is held for the purpose of voting on an advisory contract with the Adviser under section 15 of the Act, the Adviser will provide the Board with specific information regarding the approximate cost to the Adviser of, or the portion of the advisory fee under the existing advisory contract with the Adviser attributable to, managing the Cash Collateral of the Cash Collateral Fee Investing Fund that can be expected to be invested in the Central Funds. Before approving any advisory contract with the Adviser for a Cash Collateral Fee Investing Fund, the Board, including a majority of the trustees who are not “interested persons,” as defined in section 2(a)(19) of the Act (“Independent Trustees”), shall consider to what extent, if any, the advisory fees charged to the Cash Collateral Fee Investing Fund by the Adviser should be reduced to account for reduced services provided to the Cash Collateral Fee Investing Fund as a result of Cash Collateral being invested in the Central Funds. Applicants also represent that the Central Funds will not acquire securities of any investment company or company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in section 12(d)(1)(A) of the Act, except that a Money Market Fund may acquire shares of another Money Market Fund in reliance on section 12(d)(1)(E) of the Act. Applicants further state that the Money Market Funds will be managed specifically to maintain a highly liquid portfolio and, therefore, will not be susceptible to control through the threat of large scale redemptions. For these reasons, applicants believe that the proposed transactions will not give rise to the abuses that sections 12(d)(1)(A) and
(B)under the Act were designed to prevent. 3. Sections 17(a)(1) and 17(a)(2) of the Act prohibit an affiliated person of a registered investment company, or any affiliated person of the affiliated person (“second-tier affiliate”) from selling any security to, or purchasing any security from, the registered investment company. Section 2(a)(3) of the Act defines an “affiliated person” of another person to include: any person directly or indirectly owning, controlling, or holding with power to vote 5% or more of the outstanding voting securities of the other person; any person 5% or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote, by such other person; any person directly or indirectly controlling, controlled by, or under common control with, the other person; and, in the case of an investment company, its investment adviser. Control is defined in section 2(a)(9) of the Act to mean “the power to exercise a controlling influence over the management or policies of a company, unless such power is solely the result of an official position with such company.” 4. Applicants state that because the Advisers will serve as investment advisers of the Investing Funds and the Central Funds, the Advisers could be deemed to control the Investing Funds and the Central Funds, and the Advisers are under common control. Accordingly, the Investing Funds and the Central Funds may be deemed to be under common control and affiliated persons of each other. In addition, if an Investing Fund acquires 5% or more of the outstanding voting securities of a Central Fund, the Central Fund could be deemed an affiliated person of the Investing Fund. As a result, applicants state that the sale of shares of the Central Funds to the Investing Funds, and the redemption of such shares in connection with the investment of Cash Collateral may be prohibited under Section 17(a). 5. Section 17(b) of the Act authorizes the Commission to exempt a transaction from section 17(a) if the terms of the proposed transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching on the part of any person concerned, and the proposed transaction is consistent with the policy of each registered investment company concerned and with the general purposes of the Act. Section 6(c) of the Act provides that the Commission may exempt any person, security, or transaction from any provision of the Act if the exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. 6. Applicants request an order under sections 6(c) and 17(b) of the Act to permit the Investing Funds to use Cash Collateral to purchase shares of the Central Funds, and the Central Funds to sell their respective shares to and to purchase (or redeem) such shares from the Investing Funds. Applicants state that the Investing Funds will retain their ability to invest Cash Collateral directly in money market instruments as authorized by their respective investment objectives and policies if they can achieve a higher return or for any other reason. Applicants state that the Investing Funds will invest in the Central Funds on the same basis as any other holder of Central Fund shares. Applicants state that an Investing Fund will invest its Cash Collateral in a Central Fund only if the Central Fund has been approved for investment by the Investing Fund. For these reasons, applicants believe that the terms of the proposed transactions are reasonable and fair and are consistent with the general purposes of the Act as well as with the policy of each Investing Fund. 7. Section 17(d) of the Act and rule 17d-1 under the Act prohibit an affiliated person of a registered investment company, acting as principal, from participating in or effecting any transaction in connection with any joint enterprise or joint arrangement in which the investment company participates, unless the Commission has approved the joint arrangement. Under rule 17d-1, in passing on applications for orders under section 17(d), the Commission considers whether the participation of the registered investment company is consistent with the provisions, policies, and purposes of the Act and the extent to which the participation is on a basis different from or less advantageous than that of other participants. 8. Applicants state that the Investing Funds, by purchasing shares of the Central Funds, the Advisers, by managing the assets of the Investing Funds invested in the Central Funds, and the Central Funds, by selling shares to and redeeming shares from the Investing Funds, could be deemed to be participants in a joint enterprise or other joint arrangement within the meaning of section 17(d) and rule 17d-1. Applicants request an order pursuant to rule 17d-1 under the Act to permit certain joint transactions in accordance with section 17(d) of the Act and rule 17d-1 thereunder. 9. In considering whether to approve a joint transaction under rule 17d-1, the Commission considers whether the investment company's participation in the proposed transaction is consistent with the provisions, policies, and purposes of the Act, and the extent to which the participation is on a basis different from or less advantageous than that of other participants. Applicants state that the investment by the Investing Funds in shares of the Central Funds would be on the same basis and indistinguishable from any other shareholder account maintained by the Central Fund. Accordingly, applicants believe that the conditions for relief under rule 17d-1 under the Act are satisfied. Applicants' Conditions Applicants agree that any order of the Commission granting the requested relief will be subject to the following conditions: 1. Before an Investing Fund may participate in the Securities Lending Program, a majority of the Board, including a majority of the Independent Trustees, will approve the Investing Fund's participation in the Securities Lending Program. The Board also will evaluate the securities lending arrangement and its results no less frequently than annually and determine that any investment of Cash Collateral in the Central Funds is in the best interest of the shareholders of the Investing Fund. 2. Investment of Cash Collateral in shares of the Central Funds will be in accordance with each Investing Fund's respective investment restrictions and policies as recited in the Investing Fund's prospectus and statement of additional information. An Investing Fund will invest Cash Collateral in a Central Fund only if the Central Fund has been approved for investment by the Investing Fund. 3. The Central Funds shall not acquire securities of any investment company or company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in section 12(d)(1)(A) of the Act, except that a Money Market Fund may acquire the shares of another Money Market Fund in reliance on section 12(d)(1)(E) of the Act. 4. Shares of the Central Funds sold to the Investing Funds either will not be subject to a sales load, redemption fee, distribution fee under a plan adopted in accordance with rule 12b-1 under the Act, or service fee (as defined in Rule 2830(b)(9) of the NASD Conduct Rules) or, if such shares are subject to any such sales load, redemption fee, distribution fee, or service fee, the Adviser will waive its advisory fee for each Investing Fund in an amount that offsets the amount of such fees incurred by the Investing Fund. 5. Each Investing Fund will purchase and redeem shares of the Private Fund as of the same time and at the same price, and will receive dividends and bear its proportionate share of expenses on the same basis, as other shareholders of the Private Fund. A separate account will be established in the shareholder records of the Private Fund for the account of each Investing Fund. 6. The Private Fund will comply with sections 17(a), (d), and
(e)and section 18 of the Act as if the Private Fund were a registered open-end investment company. With respect to all redemption requests made by an Investing Fund, the Private Fund will comply with section 22(e) of the Act. The Adviser, as sole trustee or managing member of the Private Fund, will adopt procedures designed to ensure that the Private Fund complies with sections 17(a), (d), and (e), 18 and 22(e) of the Act. The Adviser to the Private Fund will periodically review and update, as appropriate, such procedures and will maintain books and records describing such procedures, and maintain the records required by rules 31a-1(b)(1), 31a-1(b)(2)(ii), and 31a-1(b)(9) under the Act. All books and records required to be made pursuant to this condition will be maintained and preserved for a period of not less than six years from the end of the fiscal year in which any transaction occurred, the first two years in an easily accessible place, and will be subject to examination by the Commission and its staff. 7. The Private Fund will use the amortized cost method of valuation as defined in rule 2a-7 under the Act and will comply with rule 2a-7. The Adviser to the Private Fund will adopt and monitor the procedures described in rule 2a-7(c)(7) under the Act and will take such other actions as are required to be taken under those procedures. An Investing Fund may only purchase shares of the Private Fund if the Adviser determines on an ongoing basis that the Private Fund is in compliance with rule 2a-7 under the Act. The Adviser will preserve for a period not less than six years from the date of determination, the first two years in an easily accessible place, a record of the determination and the basis upon which the determination was made. This record will be subject to examination by the Commission and the staff. 8. Each Investing Fund and each Central Fund that may rely on the order shall be advised by an Adviser. Each Investing Fund and Money Market Fund will be in the same group of investment companies as defined in section 12(d)(1)(G) of the Act. 9. Before the next meeting of the Board of a Cash Collateral Fee Investing Fund is held for the purpose of voting on an advisory contract with the Adviser under section 15 of the Act, the Adviser will provide the Board with specific information regarding the approximate cost to the Adviser of, or the portion of the advisory fee under the existing advisory contract with the Adviser attributable to, managing the Cash Collateral of the Cash Collateral Fee Investing Fund that can be expected to be invested in the Central Funds. Before approving any advisory contract with the Adviser for a Cash Collateral Fee Investing Fund, the Board, including a majority of the Independent Trustees, shall consider to what extent, if any, the advisory fees charged to the Cash Collateral Fee Investing Fund by the Adviser should be reduced to account for reduced services provided to the Cash Collateral Fee Investing Fund as a result of Cash Collateral being invested in the Central Funds. In addition, the Cash Collateral Fee Investing Fund's minute books will record fully the Board's consideration in approving the advisory contract with the Adviser, including the considerations relating to fees referred to above. 10. The Board of any Investing Fund will satisfy the fund governance standards as defined in Rule 0-1(a)(7) under the Act by the compliance date for the rule. For the Commission, by the Division of Investment Management, under delegated authority. Jonathan G. Katz, Secretary. [FR Doc. E5-5005 Filed 9-13-05; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [File No. 1-03788] Issuer Delisting; Notice of Application of N.V. Koninklijke Nederlandsche Petroleum Maatschappij (English Translation, Royal Dutch Petroleum Company) To Withdraw Its Ordinary Shares, Par Value 0.56 Euro, From Listing and Registration on the New York Stock Exchange, Inc. September 7, 2005. On August 10, 2005, N.V. Koninklijke Nederlandsche Petroleum Maatschappij (English translation, Royal Dutch Petroleum Company), a company organized pursuant to the laws of the Netherlands (“Issuer”), filed an application with the Securities and Exchange Commission (“Commission”) pursuant to Section 12(d) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 12d2-2(d) thereunder, 2 to withdraw its ordinary shares, par value 0.56 euro (“Security”), from listing and registration on the New York Stock Exchange, Inc. (“NYSE”). 1 15 U.S.C. 78 *l* (d). 2 17 CFR 240.12d2-2(d). On August 5, 2005, a delegate committee of the Board of Management (“Committee”) of the Issuer approved resolutions to withdraw the Security from listing on NYSE. The Committee stated that the following reasons factored into its decision to withdraw the Security from NYSE. First, the Committee considered that in approving the unification transaction between the Issuer and The “Shell” Transport and Trading Company, p.l.c., and recommending the public exchange offer (“Offer”) by Royal Dutch Shell, plc (“Royal Dutch Shell”) it was understood that following completion of the Offer that expired on July 18, 2005 and depending on the level of acceptance, Royal Dutch Shell intended to request the Issuer to seek delisting of its shares. It was noted that the Offer documents in relation to the unification transaction contemplated that Royal Dutch Shell would request such delisting. Second, the Committee also considered the likely effects of delisting described in the Offer documentation, including reduced liquidity and the fact that the Security in New York registry form might no longer constitute “margin securities.” Third, the Chairman of the Committee informed the Committee that this forecast regarding reduced liquidity has proved accurate: trading volumes in the Security have decreased on Euronext Amsterdam and NYSE after July 19, 2005. In this regard, the Committee considered that should interest exist in trading the Security, an over-the-counter market might offer an adequate market for trading the Security. Fourth, furthermore, the Committee considered that a liquid market has developed and is being maintained in shares in the Issuer's parent company, Royal Dutch Shell, on the London Stock Exchange, Euronext Amsterdam, and NYSE. The Committee considered that these listings required Royal Dutch Shell to comply with listing rules and corporate governance requirements, and therefore that delisting of the Security from Euronext Amsterdam and NYSE would not result in investors in the Shell Group of Companies, (“Shell Group”) no longer benefiting from such corporate governance requirements. The Committee also noted that the proposed delisting would not impair the ability of investors interested in acquiring an interest in the Shell Group to acquire such an interest. Fifth, the Committee also noted that Royal Dutch Shell has publicly reserved the right to use any legally permitted method to obtain 100% of the Security. Sixth, the Committee also considered the cost of the listing fees and administrative time and expense associated with maintaining listings. In view of the factors noted above, the Committee expressed its unanimous view that the benefits of the Issuer to delist the Security from both Euronext Amsterdam and NYSE outweigh any disadvantages of such delisting for the remaining minority shareholders. The Issuer stated in its application that it has complied with the rules of NYSE by providing NYSE with the required documents governing an issuer's voluntary withdrawal of a security from listing and registration. The Issuer's application relates solely to the withdrawal of the Security from listing on NYSE and from registration under Section 12(b) of the Act, 3 and shall not affect its obligation to be registered under Section 12(g) of the Act. 4 3 15 U.S.C. 78 *l* (b). 4 15 U.S.C. 78 *l* (g). Any interested person may, on or before September 29, 2005 comment on the facts bearing upon whether the application has been made in accordance with the rules of NYSE, 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 • Send an e-mail to *rule-comments@sec.gov* . Please include the File Number 1-03788 or; Paper Comments • Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-9303. All submissions should refer to File Number 1-03788. 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. 5 5 17 CFR 200.30-3(a)(1). Jonathan G. Katz, Secretary. [FR Doc. E5-5004 Filed 9-13-05; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 35-28026] Filings Under the Public Utility Holding Company Act of 1935, as Amended (“Act”) September 8, 2005. Notice is hereby given that the following filing(s) has/have been made with the Commission pursuant to provisions of the Act and rules promulgated under the Act. All interested persons are referred to the application(s) and/or declaration(s) for complete statements of the proposed transaction(s) summarized below. The application(s) and/or declaration(s) and any amendment(s) is/are available for public inspection through the Commission's Branch of Public Reference. Interested persons wishing to comment or request a hearing on the application(s) and/or declaration(s) should submit their views in writing by October 3, 2005, to the Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-9303, and serve a copy on the relevant applicant(s) and/or declarant(s) at the address(es) specified below. Proof of service (by affidavit or, in the case of an attorney at law, by certificate) should be filed with the request. Any request for hearing should identify specifically the issues of facts or law that are disputed. A person who so requests will be notified of any hearing, if ordered, and will receive a copy of any notice or order issued in the matter. After October 3, 2005, the application(s) and/or declaration(s), as filed or as amended, may be granted and/or permitted to become effective. Ameren Corp., et al. (70-10078) Ameren Corporation (“Ameren”), a registered holding company, 1901 Chouteau Avenue, St. Louis, Missouri 63103, CILCORP Inc. (“CILCORP”), a wholly owned exempt holding company subsidiary of Ameren, AmernEnergy Resources Generating Company (“AERG”), a wholly owned indirect electric utility company subsidiary of Ameren, and CILCORP Investment Management, Inc. (“CIM”) a wholly owned direct nonutility subsidiary of CILCORP, all at 300 Liberty Street, Peoria, Illinois 61602, have filed an application-declaration under sections 6(a), 7, 9(a),10, 11(b)(1), 12(b) and 12(f) of the Act and rule 45 under the Act. I. Background A. The Ameren System Ameren directly owns all of the issued and outstanding common stock of Union Electric Company, dba “AmerenUE,” Central Illinois Public Service Company, dba “AmerenCIPS,” and Illinois Power Company dba “AmerenIP.” Additionally, through CILCORP, Ameren owns all of the issued and outstanding common stock of Central Illinois Light Company, dba “AmerenCILCO.” AmerenCILCO also holds all of the outstanding common stock of AERG, an electric utility generating subsidiary to which AmerenCILCO transferred substantially all of its generating assets in October 2003. Together, AmerenUE, AmerenCIPS, AmerenIP and AmerenCILCO provide retail and wholesale electric service to approximately 2.3 million customers and retail natural gas service to approximately 935,000 customers in parts of Missouri and Illinois. CIM holds investments in several leasing transactions, including those held through its wholly-owned subsidiaries: CIM Air Leasing, Inc. (“CIM Air”), CILCORP Lease Management Inc. (“CLM”), CIM Leasing, Inc. (“CIM Leasing”) and CIM Energy Investments, Inc. (“CIM Energy”). CIM also owns interests in the following partnerships: Midwest Corporate Tax Credit Fund, LP; Midwest Corporate Tax Credit Fund II, LP; Provident Tax Credit Fund III, LP; Illinois Equity Fund 1992 Limited Partnership; Illinois Equity Fund 1994 Limited Partnership; Illinois Equity Fund 1996 Limited Partnership; and Illinois Equity Fund 1998 Limited Partnership (collectively, “Housing Credit Partnerships”). B. Past Orders By order dated January 29, 2003, (HCAR No. 27645, “Initial Order”), the Commission authorized Ameren to acquire all of the issued and outstanding common stock of CILCORP. Ameren completed the acquisition of CILCORP on January 31, 2003. In the Initial Order, the Commission reserved jurisdiction over Ameren's retention of certain indirect non-utility subsidiaries and investments of CILCORP under section 11(b)(1) of the Act, including the following: • CIM's 40% interest—held by CIM Air through a grantor trust—in Freighter Express Partners (“FEP”), which owns a commercial aircraft that is leased to an unrelated third party under an agreement dated as of October 1, 1993 and subject to non-recourse lease debt (“FEP Partnership Interest”). • CIM's 100% interest—held by CIM Leasing through a grantor trust—in passenger railcars that are leased to an unrelated third party under an agreement dated as of September 1, 1993 and subject to non-recourse lease debt (“Railcars Interest”). • CLM's 7.4257% interest—held through a grantor trust—in Unit No. 1 of the Springerville Power Plant, which is leased to an unrelated third party under an agreement dated December 15, 1986 and subject to non-recourse lease debt (“Power Plant Interest”). • CLM's 49.9% interest—held by two wholly-owned subsidiaries, CLM Inc., IV (“CLM IV”) and CLM XII, Inc. (“CLM XII”)—in D.C.L. Leasing Partners Limited Partnership, Ltd.-IV (“DCL IV”), which owns an office building in California that is leased to an unrelated third party under an agreement dated November 10, 1982 and subject to a mortgage (the “California Office Building Interest”). • CLM's 49.9% interest in D.C.L. Leasing Partners Limited Partnership, Ltd.-VI (“DCL VI”), which owns an office building in Delaware that is leased to an unrelated third party under an agreement dated April 1, 1984 and subject to a mortgage (“Delaware Office Building Interest”). CLM XI, Inc. (“CLM XI”) and CLM Inc., VI (“CLM VI”), each a wholly owned subsidiary of CLM X, Inc. (“CLM X”), together own the Delaware Office Building Interest. CLM X is a wholly-owned subsidiary of CLM. • CLM's 14.95016611% interest—held by CLM VI through a grantor trust—in a waste-to-energy electric generating facility that is leased to an unrelated third party under an agreement dated July 21, 1997 and subject to non-recourse lease debt (“Generation Facility Interest”). • CLM's 50% interest—held by CLM Inc.—VII (“CLM VII”) and CLM Inc.—VIII (“CLM VIII”), each a wholly owned subsidiary of CLM, through a grantor trust—in 24 commercial real estate properties, each of which is leased to an unrelated third party under an agreement dated as of December 1, 1986 and subject to non-recourse lease debt (“Commercial Real Estate Interest”). The Railcars Interest, the Power Plant Interest, and the Generation Facility Interest are referred to as the “Equipment Interests;” the FEP Partnership Interest, the California Office Building Interest, the Delaware Office Building Interest, and the Commercial Real Estate Interest are referred to as the “Non-Equipment Interests;” the Equipment Interests and the Non-Equipment Interests are together referred to as the “Lease Interests.” By order dated April 15, 2004, (HCAR No. 27835, “Supplemental Order”), the Commission determined that certain nonutility interests and investments—referred to as the “Non-Retainable Interests”—of CILCORP, including the Lease Interests described above, are not retainable by Ameren under the standards of section 11(b)(1) of the Act. The Supplemental Order requires that Ameren cause CIM or any subsidiary to sell or otherwise dispose of the Non-Retainable Interests not later than January 31, 2006. Ameren committed that, within 24 months of receipt, it would either:
(1)Expend the net proceeds from any sale or disposition of a Non-Retainable Interest to either retire or cancel securities representing indebtedness of the transferor or otherwise purchase property other than “nonexempt property” within the meaning of section 1083 of the Internal Revenue Code of 1986, as amended (“Code”); or
(2)invest such amount as a contribution to the capital, or as paid-in surplus, of another direct or indirect subsidiary of Ameren in a manner that satisfies the non-recognition provisions of Code section 1081. C. Summary of Relevant Provisions of the Code Code section 1081(b)(1) provides for the non-recognition of gain or loss from a sale or exchange of property made to comply with a Commission order. Code section 1082(a)(2) requires that any unrecognized gain under Code section 1081(b)(1) be applied to reduce the basis of the transferor's remaining assets in a specified manner. An exception from this non-recognition treatment exists under Code section 1081(b)(1) where certain “nonexempt property” is received by the transferor. If any “nonexempt property” is received, 1 the gain must be recognized unless, within 24 months of the transfer, the “nonexempt property” is expended for property other than “nonexempt property” or invested in accordance with Code section 1081(b)(2) and the Commission's order recites that such expenditure or investment is necessary or appropriate to the integration or simplification of the transferor's holding company system. Code section 1081(b)(3) provides that an appropriate expenditure for property other than “nonexempt property” for purposes of Code section 1081(b)(2) includes each of:
(1)A payment in complete or partial retirement or cancellation of securities representing indebtedness of the transferor; and
(2)the amount of any liability of the transferor that is assumed (or to which transferred property is subject) in connection with any transfer of property in obedience to a Commission order. 1 Under section 1083(e) of the Code, “nonexempt property” is defined to include, among other things, cash indebtedness of the transferor that is cancelled or assumed by the purchaser in the exchange. Code section 1081(d) provides for the non-recognition of gain or loss from certain inter-company transactions within the same system group if such transactions are effected to comply with a Commission order. D. Sale of the Lease Interests CILCORP states that it intends to enter into one or more definitive agreements to sell all of the Lease Interests. The sale of the Lease Interests would result in a significant amount of gain for Federal income tax purposes. Ameren would structure the sale transaction(s) in a manner that would enable it to utilize the non-recognition provisions of Code section 1081, as contemplated by the Supplemental Order. To achieve this result, Ameren would cause CILCORP, CIM, and certain of its other direct and indirect subsidiaries (as described below) to engage in a series of essentially simultaneous inter-company transactions the purposes of which would be:
(1)To transfer certain investments of CIM that are not among the Non-Retainable Interests (and are thus not part of the assets being sold) to other direct or indirect subsidiaries of Ameren; and
(2)to structure the sale(s) of the Lease Interests to occur from a subsidiary or subsidiaries of Ameren with sufficient tax basis in similar classes of property to absorb the basis reductions required by Code section 1082(b). More specifically, to comply with the Supplemental Order, Ameren and its subsidiaries intend to engage in the following transactions (collectively, “Proposed Transactions”): 1. On or prior to the earliest closing date with respect to the sale(s) of any or all of the Lease Interests (“Closing Date”), Ameren Energy Resources Company (“Resources”), an intermediate subsidiary that is owned directly by Ameren, would contribute the stock of certain of its direct nonutility subsidiaries to Ameren Energy Development Company (“Development”), 2 which is also a direct wholly-owned nonutility subsidiary of Resources. 2 Resources would contribute to Development the stock that it holds in Illinois Materials Supply Co., Ameren Energy Marketing Company, and Ameren Energy Fuels and Services Company, which are “energy-related companies” under rule 58, and Electric Energy, Inc. and AmerenEnergy Medina Valley Cogen (No. 4), which are “exempt wholesale generators” under section 32 of the Act. By order dated December 18, 2003 (HCAR No. 27777, “December 2003 Order”), the Commission authorized Ameren to reorganize its ownership interest in exempt and nonexempt nonutility subsidiaries under intermediate subsidiaries. 2. On or prior to the Closing Date:
(a)CIM would distribute the stock of CIM Energy to CILCORP;
(b)CIM would transfer its interests in the Housing Credit Partnerships to an affiliated entity by a combination of distributions and contributions; and
(c)CIM Leasing would transfer its interest in SunAmerica 51 to an affiliated entity by a combination of distributions and contributions. 3. On or prior to the Closing Date, CLM VI would distribute the Generation Facility Interest to CLM X, and CLM X would distribute the Generation Facility Interest to CLM. On or prior to the Closing Date, CLM would distribute the Power Plant Interest and the Generation Facility Interest to CIM, and CIM would contribute the Power Plant Interest and the Generation Facility Interest to CIM Leasing. 4. On or prior to the Closing Date, CIM would transfer the stock of CIM Leasing to AERG in exchange for a promissory note (“AERG Note”) and possibly cash (together with the AERG Note, “AERG Consideration”). 5. On or prior to the Closing Date, CIM would distribute the AERG Consideration to CILCORP. 6. On or prior to the Closing Date, CILCORP would transfer the stock of CIM to Resources in exchange for a promissory note (“Resources Note”) and possibly cash (together with the Resources Note, “Resources Consideration”). 7. On or prior to the Closing Date, Ameren would cause each of CIM Air, CLM, CIM Leasing, CLM IV, CLM VI, CLM VII, CLM VIII, CLM X, CLM XI, and CLM XII to convert into Delaware limited liability companies and would cause CIM to convert into an Illinois limited liability company. 3 3 By the December 2003 Order, the Commission authorized Ameren to convert its nonutility subsidiaries from one business form to another. 8. On the closing date with respect to the applicable Lease Interests, AERG would sell the CIM Leasing membership interest and/or any of the Equipment Interests to a buyer or buyers, in each case in exchange for cash, which would be treated for federal income tax purposes as a deemed sale of the Equipment Interests. 9. On the closing date with respect to the applicable Lease Interests, Resources would sell the CIM membership interest and/or any of the Non-Equipment Interests to a buyer or buyers, in each case in exchange for cash, which would be treated for federal income tax purposes as a deemed sale of the Non-Equipment Interests. 10. On the closing date with respect to the applicable Lease Interests, or within 24 months after that date, AERG would expend the cash received from the buyer(s) to reduce the AERG Note or would otherwise expend or invest such cash in accordance with Code section 1081(b). 11. On the closing date with respect to the applicable Lease Interests, or within 24 months after that date, Resources would expend the cash received from the buyer(s) to reduce the Resources Note. 4 4 Applicants expect that the AERG Note and the Resources Note would be retired on or shortly after the latest applicable closing date. Applicants state that the Proposed Transactions are intended in part to allow Ameren to match the unrecognized gain from the sale of the Lease Interests under Code section 1081(b) to certain subsidiaries of Ameren that have a sufficiently high tax basis in other similar classes of property so that the unrecognized gain can be fully absorbed by the basis reductions required by Code section 1082(a)(2). 5 5 Ameren has requested that the Internal Revenue Service issue a private letter ruling confirming the federal income tax consequences of the Proposed Transactions. Applicants state that it is possible that the Internal Revenue Service may require Ameren to modify the Proposed Transactions to obtain the private letter ruling. The Proposed Transactions would include any IRS-required modification, to the extent the modification allows Ameren to comply with the Supplemental Order and is otherwise acceptable to Ameren. II. Requests for Authority Applicants request that the Commission modify the Supplemental Order to eliminate the deadline (January 31, 2006) by which Ameren must complete the sale or other disposition of the Non-Retainable Interests. Applicants request authority for:
(1)AERG to issue the AERG Note (in consideration for the stock of CIM Leasing);
(2)CIM to acquire the AERG Note; and
(3)AERG to acquire of the stock of CIM Leasing. In addition, in accordance with Code section 1081(f) and the Supplemental Order, Ameren requests that the Commission issue a further supplemental order in this proceeding confirming that:
(1)The proposed disposition of the Lease Interests through the Proposed Transactions would be a disposition for cash or cash equivalents in compliance with the Supplemental Order;
(2)the application of the net proceeds to retire all or part of the AERG Note and the Resources Note would be a complete or partial retirement of securities representing indebtedness of AERG and Resources;
(3)the amount of liabilities assumed and the amount of liabilities to which transferred property is subject upon the disposition of the Lease Interests through the Proposed Transactions would be an expenditure for property other than “nonexempt property” in compliance with the Supplemental Order; and
(4)accordingly, each of the Proposed Transactions is necessary or appropriate to the integration or simplification of the Ameren holding company system and would effectuate the provisions of section 11(b)(1) of the Act, , and will be made in obedience to the supplemental order and the further supplemental order in this proceeding. For the Commission by the Division of Investment Management, pursuant to delegated authority. Jonathan G. Katz, Secretary. [FR Doc. E5-5013 Filed 9-13-05; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-52375; File No. SR-CHX-2005-21] Self-Regulatory Organizations; Chicago Stock Exchange, Inc.; Notice of Filing of Proposed Rule Change and Amendments No. 1 and 2 Thereto Requiring Its Participants To Provide Electronic Mail Addresses to the Exchange September 1, 2005. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”) 1 and Rule 19b-4 thereunder, 2 notice is hereby given that on July 18, 2005, the Chicago Stock Exchange, Inc. (“CHX” or “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 prepared by the CHX. On August 30, 2005, the Exchange filed Amendment No. 1 to the proposed rule change. 3 On September 1, 2005, the Exchange filed Amendment No. 2 to the proposed rule change. 4 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 In Amendment No. 1, the Exchange made several minor clarifications to the proposed rule change, including changes to the proposed rule text to require members to promptly update electronic mail addresses they provide to the Exchange, to clarify that the proposal will not supersede or modify any other provisions of Exchange rules that set out a specific method for the receipt of information from the Exchange, and to modify Part II.A.1 to more closely conform it to the text of the proposed rule change. 4 In Amendment No. 2, the Exchange changed the text of the proposed rule so that it uses the term “electronic mail” instead of the term “e-mail.” I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to amend the text of its proposed new Rule 17, in Article III of the Exchange's Rules, which would require participants and participant firms to provide electronic mail addresses to the Exchange for use in transmitting notices and other communications. Specifically, the Exchange proposes to
(1)amend the text to require that participants and participant firms promptly update any electronic mail addresses provided to the Exchange when the addresses change or are no longer valid; and
(2)amend the text to confirm that the proposal does not supersede or modify, in addition to specific provisions relating to the service of process or other materials in disciplinary proceedings, any other provisions of Exchange rules that set out a specific method for the receipt of information from the Exchange. The text of this proposed rule is available on the Exchange's Web site at *http://www.chx.com/rules/proposed_rules_htm* and in the Commission's Public Reference Room. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the CHX included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received regarding the proposal. The text of these statements may be examined at the places specified in Item IV below. The CHX 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 The Exchange recently submitted a proposal to add a new Rule 17 to Article III of the Exchange's Rules to require each participant and participant firm to provide the Exchange with an electronic mail address that the Exchange may use to distribute notices and communications. The proposal is designed to allow the Exchange to take advantage of technology to communicate with participants in a more efficient and cost-effective manner, for routine communications as well as in appropriate emergency situations. Among other things, the Exchange anticipates that it would be able to provide participants with electronic copies of the weekly bulletin, which today are mailed to many of the Exchange's participants in hard copies. Importantly, the original version of the Exchange's proposed rule change specifically noted that it does not modify or supersede any rule that sets out a different method of service required as part of a disciplinary proceeding. Those materials would continue to be provided by the more conventional means set out in the rules. 5 The Exchange now proposes to amend the proposed rule text to
(1)require participants and participant firms to promptly update any electronic mail addresses provided to the Exchange when the addresses change or are no longer valid; and
(2)confirm that the proposal does not supersede or modify any other provisions of Exchange rules that set out a specific method for the receipt of information from the Exchange. 5 *See* Article XII (“Discipline and Trial Proceedings”). 2. Statutory Basis The CHX believes the proposal is consistent with Section 6(b) of the Act, 6 in general, and furthers the objectives of Section 6(b)(5) of the Act, 7 in particular, in that it promotes just and equitable principles of trade, removes impediments to, and perfects the mechanism of, a free and open market and a national market system, and, in general, protects investors and the public interest by allowing the Exchange to take advantage of available technology to communicate with its participants in a more efficient and cost-effective manner. 6 15 U.S.C. 78(f)(b). 7 15 U.S.C. 78(f)(b)(5). B. Self-Regulatory Organization's Statement on Burden on Competition The Exchange does not believe that the proposed rule change will impose any burden on competition. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Changes Received From Members, Participants or Others No written comments were either solicited or received. III. Date of Effectiveness of the Proposed Rule Changes and Timing for Commission Action Within 35 days of the date of publication of this notice in the **Federal Register** or within such other 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 the 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 proposal, as amended, 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-CHX-2005-21 on the subject line. Paper Comments • Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-9303. All submissions should refer to File No. SR-CHX-2005-21. 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 will also be available for inspection and copying at the principal office of the CHX. 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 No. SR-CHX-2005-21 and should be submitted on or before October 5, 2005. For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 8 8 17 CFR 200.30-3(a)(12). Jonathan G. Katz, Secretary. [FR Doc. E5-5006 Filed 9-13-05; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-52394; File No. SR-NSCC-2005-11] Self-Regulatory Organizations; National Securities Clearing Corporation; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to the Interpretation of the Definition of “Insurance Company” Under Its Rules and Procedures September 8, 2005. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”), 1 notice is hereby given that on August 17, 2005, the National Securities Clearing Corporation (“NSCC”) filed with the Securities and Exchange Commission (“Commission”) a proposed rule change as described in Items I, II, and III below, which items have been prepared primarily by NSCC. The Commission is publishing this notice to solicit comments on the proposed rule change from interested parties. 1 15 U.S.C. 78s(b)(1). I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The proposed rule change consists of an interpretation of the definition of “Insurance Company” under NSCC's rules and procedures in the context of insurance company applicants. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, NSCC 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. NSCC has prepared summaries, set forth in sections (A), (B), and
(C)below, of the most significant aspects of these statements. 2 2 The Commission has modified the text of the summaries prepared by NSCC.
(A)Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change Under NSCC's rules, “Insurance Company” is defined as “any company, partnership, limited liability corporation or other organization or entity who is subject to supervision or regulation pursuant to the provisions of state insurance law and issues insurance contracts.” NSCC's rules do not define the term “state” in this context. The Fixed Income Clearing Corporation (“FICC”) Rules incorporate the definition of “insurance company” used in the Investment Company Act of 1940, as amended (“1940 Act”). 3 Both the Act and the 1940 Act define a “State” to mean any state of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, or any other possession of the United States. As a result, an insurance company organized and supervised, for example, in the District of Columbia, would constitute an Insurance Company under the 1940 Act and FICC's rules. 3 15 U.S.C. 80a-1. Accordingly, consistent with the definition used by FICC, NSCC has determined it is appropriate with regard to NSCC membership applicants that are insurance companies to interpret the term “state” under its rules within the context of insurance company admission standards, as including any state of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, or any other possession of the United States. The proposed change is consistent with Section 17A of the Act 4 and the rules and regulations thereunder applicable to NSCC because it will clarify NSCC's rules and procedures with regard to categorizing applicants for membership. By eliminating a potential misinterpretation of its membership requirements, NSCC believes that it will thereby provide enhanced protections to NSCC and its members and will assist NSCC in assuring the safeguarding of funds and securities in its custody or control or for which it is responsible. 4 15 U.S.C. 78q-1.
(B)Self-Regulatory Organization's Statement on Burden on Competition NSCC does not believe that the proposed rule change will have any impact or impose any burden on competition.
(C)Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others Written comments relating to the proposed rule change have not yet been solicited or received. NSCC will notify the Commission of any written comments received by NSCC. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The foregoing rule change has become effective upon filing pursuant to Section 19(b)(3)(A)(i) of the Act 5 and Rule 19b-4(f)(1) 6 thereunder because it constitutes a stated policy, practice, or interpretation with respect to the meaning, administration, or enforcement of an existing rule. At any time within sixty 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. 5 15 U.S.C. 78s(b)(3)(A)(i). 6 17 CFR 240.19b-4(f)(1). 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-NSCC-2005-11 on the subject line. Paper Comments • Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-9303. All submissions should refer to File Number SR-NSCC-2005-11. 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, 100 F Street, NE., Washington, DC 20549. Copies of such filing also will be available for inspection and copying at the principal office of NSCC and on NSCC's Web site at *http://www.nscc.com.* 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-NSCC-2005-11 and should be submitted on or before October 5, 2005. For the Commission by the Division of Market Regulation, pursuant to delegated authority. 7 7 17 CFR 200.30-3(a)(12). Jonathan G. Katz, Secretary. [FR Doc. E5-5009 Filed 9-13-05; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-52397; File No. SR-NSCC-2005-12] Self-Regulatory Organizations; National Securities Clearing Corporation; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Modify Automated Customer Account Transfer Service Rules and Procedures September 8, 2005. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”), 1 notice is hereby given that on August 23, 2005, the National Securities Clearing Corporation (“NSCC”) filed with the Securities and Exchange Commission (“Commission”) the rule change described in Items I, II, and III below, which items have been prepared primarily by NSCC. The Commission is publishing this notice to solicit comments on the rule change from interested parties. 1 15 U.S.C. 78s(b)(1). I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The rule change modifies NSCC's Automated Customer Account Transfer Service (“ACATS”) Rules and Procedures by eliminating the provision that allows delivering members to initiate the transfer of a custody redelivery position purchased by the delivering member for the benefit of a customer's account to a receiving member. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, NSCC included statements concerning the purpose of and basis for the rule change and discussed any comments it received on the rule change. The text of these statements may be examined at the places specified in Item IV below. NSCC has prepared summaries, set forth in sections (A), (B), and
(C)below, of the most significant aspects of these statements. 2 2 The Commission has modified the text of the summaries prepared by NSCC.
(A)Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change NSCC's ACATS enables members to transfer accounts of their customers between themselves on an automated basis. Currently, NSCC's Rule 50 provides that delivering members may, among other things, initiate the transfer of a custody redelivery position purchased by a delivering member for the benefit of a customer's account to a receiving member. While other features of delivering member initiated partial account transfers are utilized by members, this custody redelivery function is substantially unused. Accordingly, NSCC is deleting this function and removing reference to it from Rule 50. NSCC believes the rule change is consistent with the requirements of Section 17A of the Act 3 and the rules and regulations thereunder applicable to NSCC because it eliminates a substantially unused feature of ACATS and as such, NSCC believes it is a change to an existing service that will not adversely affect the safeguarding of securities and funds in NSCC's custody or control and will not significantly affect the respective rights or obligations of NSCC or its participants. 3 15 U.S.C. 78q-1.
(B)Self-Regulatory Organization's Statement on Burden on Competition NSCC does not believe that the rule change will have an impact or impose any burden on competition.
(C)Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others Written comments relating to the rule change have not yet been solicited or received. NSCC will notify the Commission of any written comments received by NSCC. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The foregoing rule change has become effective upon filing pursuant to Section 19(b)(3)(A) of the Act 4 and Rule 19b-4(f) 5 thereunder because it does not significantly affect the respective rights or obligations of the clearing agency or persons using the service and does not adversely affect the safeguarding of securities or funds in the custody or control of NSCC or for which it is responsible. At any time within sixty days of the filing of the 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. 4 15 U.S.C. 78s(b)(3)(A). 5 17 CFR 240.19b-4(f). IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the 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-NSCC-2005-12 on the subject line. Paper Comments • Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-9303. All submissions should refer to File Number SR-NSCC-2005-12. 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 rule change that are filed with the Commission, and all written communications relating to the 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, 100 F Street, NE., Washington, DC 20549. Copies of such filings also will be available for inspection and copying at the principal office of NSCC and on NSCC's Web site at *http://www.nscc.com.* 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-NSCC-2005-12 and should be submitted on or before October 5, 2005. For the Commission by the Division of Market Regulation, pursuant to delegated authority. 6 6 17 CFR 200.30-3(a)(12). Jonathan G. Katz, Secretary. [FR Doc. E5-5010 Filed 9-13-05; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-52391; File No. SR-NYSE-2004-47] Self-Regulatory Organizations; New York Stock Exchange, Inc.; Order Approving Proposed Rule Change and Amendment No. 1 Thereto To Amend Rule 352 Concerning Guarantees and Sharing in Accounts September 7, 2005. I. Introduction On August 14, 2004, the New York Stock Exchange, Inc. (“NYSE” or the “Exchange”) filed with the Securities and Exchange Commission (“SEC” or the “Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Exchange Act”) 1 and Rule 19b-4 thereunder, 2 a proposed rule relating to amendments to Rule 352 concerning guarantees and sharing in accounts. On July 6, 2005, the Exchange filed Amendment No. 1 to its proposed rule change. The proposed rule change, as amended, was published for comment in the **Federal Register** on August 5, 2005. 3 The Commission received no comments on the proposal. This order approves 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. 52179 (July 29, 2005), 70 FR 45461 (August 5, 2005). II. Description of the Proposed Rule Change Background Rule 352 (the “Rule”) generally prohibits members, member organizations, and specified associated persons of such from entering into arrangements that guarantee the payment of a debit balance in any customer account; guarantee a customer against loss; or establish a profit and/or loss-sharing agreement with a customer. The amendments proposed herein expand the Rule to include specific limitations on loan arrangements between personnel associated with a member organization in any registered capacity on the one hand, and customers on the other. In addition, the amendments integrate the Rule's Interpretation into the proposed Rule text, and otherwise clarify both the Rule's scope and purpose. Loan Arrangements Between Registered Personnel and Customers The Exchange does not currently have a rule that specifically addresses the issue of loan arrangements between member organization personnel and customers; however, the Exchange believes that such arrangements, given their inherent potential for conflict of interest and abuse, are generally not a good business practice. Bearing this concern in mind, it is recognized that there are certain situations when such loans may be appropriate. Accordingly, proposed paragraphs
(e)and
(f)to Rule 352 would limit loan arrangements, between persons associated with a member organization in any registered capacity and customers, to certain prescribed situations. As outlined in detail below, proposed Rule 352(e) requires written supervisory procedures that would limit loan arrangements between registered member organization personnel and customers of the member organization to those arising either in the context of a prescribed personal or business relationship outside of the broker-customer relationship, or to those involving other registered personnel of the member organization. Proposed Rule 352(f) further requires detailed written supervisory procedures that would require that certain loan arrangements between registered member organization personnel and customers of the member organization be disclosed to the member organization for prior approval. Limitations on Loan Arrangements Proposed Rule 352(e) would permit a person associated with a member organization in any registered capacity to borrow money from or lend money to a customer of such person only if:
(A)The member organization has written supervisory procedures permitting the borrowing and lending of money between such registered persons and their customers; and
(B)the lending or borrowing arrangement meets one of the following conditions:
(1)The customer is a member of such registered person's immediate family; or
(2)the customer is a financial institution regularly engaged in the business of providing credit, financing, or loans, or other entity or person that regularly arranges or extends credit in the ordinary course of business; or
(3)the customer and the registered person are both registered persons of the same member organization; or
(4)the lending arrangement is based on a personal relationship with the customer, such that the loan would not have been solicited, offered, or given had the customer and the registered person not maintained a relationship outside of the broker/customer relationship; or
(5)the lending arrangement is based on a business relationship outside of the broker-customer relationship. Loan Procedures Proposed Rule 352(f)(1) would require member organizations to pre-approve, in writing, the lending or borrowing arrangements described in proposed paragraphs (e)(3) (between registered persons of the same member organization); (e)(4) (involving a personal relationship outside the context of the broker-customer relationship); and (e)(5) (involving a business relationship outside the context of the broker-customer relationship). With respect to the lending or borrowing arrangements described in proposed Rule 352(e)(1) between a person associated with a member organization in any registered capacity and a customer that is a member of such registered person's immediate family, proposed paragraph (f)(2) would permit a member organization's written procedures to indicate that registered persons are not required to notify the member organization or receive member organization approval either prior to or subsequent to entering into a lending or borrowing arrangement with an immediate family member. For purposes of this proposed rule, the term “immediate family” is defined in proposed paragraph 352(g) to include parents, grandparents, mother-in-law or father-in-law, husband or wife, brother or sister, brother-in-law or sister-in-law, son-in law or daughter-in-law, children, grandchildren, cousin, aunt or uncle, or niece or nephew, and would also include any other person whom the registered person supports, directly or indirectly, to a material extent. With respect to the lending or borrowing arrangements described in proposed Rule 352(e)(2) between a person associated with a member organization in any registered capacity and a customer that is a financial institution regularly engaged in the business of providing credit, financing, or loans, or other entity or person that regularly arranges or extends credit in the ordinary course of business, proposed paragraph (f)(3) would permit a member organization's written procedures to indicate that registered persons are not required to notify the member organization or receive approval either prior to or subsequent to entering into a lending or borrowing arrangements with a customer that is a prescribed financial institution, provided that the loan has been made on commercial terms that the customer generally makes available to members of the general public similarly situated as to need, purpose, and creditworthiness. For purposes of proposed paragraph (e)(2), a member organization may rely on the registered person's written representation that the terms of the loan meet the standards required by proposed paragraph (f)(3). Integration of the Rule's Interpretation The NYSE Interpretation Handbook contains an exception to the general prohibition, under current Rule 352(c), against sharing or agreeing to share in any profits or losses in any customer's account or from any transaction transacted therein. 4 The Interpretation states, in part, that: “* * * where a participatory compensation arrangement is entered into by a member organization that itself is registered with the SEC as an investment adviser, and such arrangement complies with Section 205(1) and the rules thereunder, the arrangement will not be deemed violative of Rule 352(c) if the arrangement arises in the context of such member organization's advisory relationship with the customer. Member organizations may not have such participatory compensation arrangements if they are only acting as a broker for the customer.” 4 *See* text of the proposed rule change which is available on the NYSE's Web site ( *http://www.NYSE.com* ), at the NYSE's principal office, and at the Commission's Public Reference Room. Since this exemption for member organizations acting in the capacity of a registered investment adviser is not referred to nor reasonably implied by the Rule, it is proposed that it be deleted in its entirety from the Interpretation Handbook, and integrated into the proposed Rule text. 5 5 *Id.* In addition, the Interpretation text reference to Section 205(1) of the Investment Advisers Act of 1940 is inaccurate. It is proposed that the reference be corrected to read “Section 205 * * * unless exempt pursuant to Section 203(b) of the Advisers Act.” 6 The proposed change simply clarifies the scope and original intent of the reference, and does not alter the substance of the Interpretation. 6 *Id.* Miscellaneous Rule Text Clarifications The Exchange has taken this opportunity to rearrange and clarify certain sections of the Rule. For example, the text of Rule 352(b) arguably suggests an application of the Rule to a category broader than that of “customers” ( *e.g.* , encompassing broker-dealers). Specifically, it states that “no member, allied member, registered representative or officer shall guarantee or in any way represent that either he or his employer will guarantee any customer against loss in *any* account or on *any* transaction” (italics added). It is proposed that this text be amended to specify “customer” accounts and “customer” transactions in order to remove any suggestion that proposed Rule 352 is to be construed more expansively than other NYSE sales practice rules. These proposed amendments are consistent with both the original intent of the Rule and the Exchange's ongoing interpretation of it. It is proposed that the text of Rule 352(c) be amended, as reflected in proposed Rule 352(b), to clarify that its general restriction against receiving or agreeing to receive a share in the profits or losses of any customer account extends to officers of a member organization who are acting in the capacity of a registered representative. Inclusion of the term “officer” also makes proposed paragraph
(b)consistent with proposed paragraph (a). Current Rule 352 paragraphs
(a)and
(b)have been combined into proposed paragraph (a). Further, the exceptions to the general prohibition against sharing in profits and losses which are currently in paragraphs .10 and .20 of the Rule's Supplemental Material have been clarified and relocated to proposed paragraph 352(c) under the heading “Joint Accounts and Order Errors.” Additional amendments are non-substantive changes, such as the clarification of rule text and the revision of dated language to reflect current usage. III. Discussion and Findings After careful review, the Commission finds that the proposed rule change, as amended, is consistent with the requirements of the Exchange Act and the rules and regulations thereunder applicable to a national securities exchange, and in particular, with the requirements of Sections 6(b)(5) 7 of the Exchange Act. Section 6(b)(5) requires, among other things, that the rules of an exchange be designed to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and national market system, and in general, to protect investors and the public interest. The Commission believes that the proposed rule change, as amended, is designed to accomplish these ends
(1)by placing limitations on loan arrangements between personnel associated with a member organization in any registered capacity on the one hand, and customers on the other,
(2)by integrating the Rule's Interpretation into the proposed Rule, and
(3)by clarifying both the Rule's scope and purpose with respect to prohibiting members, member organizations, and specified associated persons of such from entering into arrangements that guarantee the payment of a debit balance in any customer account; guarantee a customer against loss; or establish a profit and/or loss-sharing agreement with a customer. 7 15 U.S.C. 78f(b)(5). IV. Conclusions *It is therefore ordered* , pursuant to Section 19(b)(2) of the Act, 8 that the proposed rule change (SR-NYSE-2004-47), as amended, be, and hereby is, approved. 8 15 U.S.C. 78s(b)(2). For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 9 9 17 CFR 200.30-3(a)(12). Jonathan G. Katz, Secretary. [FR Doc. E5-5007 Filed 9-13-05; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-52386; File No. SR-NYSE-2005-04] Self-Regulatory Organizations; New York Stock Exchange, Inc.; Order Approving Proposed Rule Change and Amendment No. 1 Thereto Relating to Interpretation of NYSE Rule 311 (“Formation and Approval of Member Organizations”) Codifying Certain Qualification Requirements for Criteria for Dual- or Multi-Designation of Principal Executive Officers September 7, 2005. On January 6, 2005, the New York Stock Exchange, Inc. (“NYSE”) filed with the Securities and Exchange Commission (“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 to amend NYSE Rule 311 to codify certain qualification requirements for principal executive officers, Chief Financial Officers (“CFOs”) and Chief Operations Officers (“COOs”) and to state when an individual may serve in two or more of these roles. On July 25, 2005, the NYSE amended the proposed rule change. The proposed rule change, as amended, was published for notice and comment in the **Federal Register** on August 5, 2005. 3 The Commission received no comment letters on the proposal. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 *See* Securities Exchange Act Release No. 52181 (August 1, 2005), 70 FR 45459. The proposed rule change would amend NYSE Rule 311 to codify:
(i)Qualification requirements for COOs and CFOs;
(ii)criteria for the dual-designation of introducing firm COOs and CFOs;
(iii)criteria for other dual designation and multi-designation of principal executive officer functions;
(iv)criteria for co-designation of such functions; and
(v)limitations on the employment of principal executive officers. The Commission finds that the proposed rule change, as amended, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange. 4 In particular, the Commission finds that the proposed rule change is consistent with Section 6(c)(3)(B) of the Act, 5 which states that an Exchange may prescribe standards of training, experience and competence for persons associated with Exchange members and may bar a natural person from becoming a member or person associated with a member if such standards are not met. The Commission believes that by codifying and clarifying the Exchange's policies, the proposed amendments should provide Exchange members or persons associated with Exchange members, guidance on the Exchange's requirements for designation of principal executive officers. The Commission notes that the requirement contained in Interpretation of NYSE Rule 311(b)(5) Section /03 for prompt notification to the Exchange, and in Interpretation of NYSE Rule 311(b)(5) Sections /04, /05 and /06 for prior written approval of the Exchange will enable the Exchange to monitor the decisions of member organizations to ensure that they are appropriately tailored to meet the needs of each organization as well as the qualification requirements of the Exchange. 4 In approving this proposed rule change, the Commission has considered the proposed rule's impact on efficiency, competition, and capital formation. 15 U.S.C. 78c(f). 5 15 U.S.C. 78f(c)(3)(B). *It is therefore ordered,* pursuant to Section 19(b)(2) of the Act, 6 that the proposed rule change (SR-NYSE-2005-04), as amended, be and is hereby approved. 6 15 U.S.C. 78s(b)(2). For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 7 7 17 CFR 200.30-3(a)(12). Jonathan G. Katz, Secretary. [FR Doc. E5-5008 Filed 9-13-05; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-52396; File No. SR-NYSE-2005-55] Self-Regulatory Organizations; New York Stock Exchange, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to the Deletion of Superseded Corporate Governance Standards (Sections 303.00, 303.01, and 303.02 of the Listed Company Manual) September 8, 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 August 19, 2005, the New York Stock Exchange, Inc. (“NYSE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I and II below, which Items have been prepared by the Exchange. The Exchange filed the proposal pursuant to Section 19(b)(3)(A) of the Act 3 and Rule 19b-4(f)(6) thereunder, 4 which renders the proposal effective upon filing with the Commission. 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). 4 17 CFR 240.19b-4(f)(6). I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The NYSE proposes to delete Sections 303.00, 303.01, and 303.02 of the Listed Company Manual (“LCM”) in their entirety because these sections were completely superseded by Section 303A of the LCM as of July 31, 2005. The text of the proposed rule change is available on the NYSE's Web site ( *http://www.nyse.com* ), at the NYSE's Office of the Secretary, and at the Commission's Public Reference Room. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The NYSE 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 the Statutory Basis for, the Proposed Rule Change 1. Purpose On November 4, 2003, the SEC approved LCM Section 303A which provides a new set of corporate governance listing standards for listed companies. 5 As adopted, Section 303A.00 established a transition period to provide companies with a reasonable timeframe within which to comply with the new requirements. During this transition period, listed companies were required to continue to comply with Sections 303.00, 303.01, and 303.02 of the LCM, to the extent that they were not yet required to comply with Section 303A. Listed companies were required to comply fully with the applicable requirements of Section 303A by October 31, 2004, except that foreign private issuers were given until July 31, 2005 to comply with the new audit committee standards of Section 303A.06. As of July 31, 2005, all listed companies are now required to fully comply with Section 303A. As such, Sections 303.00, 303.01, and 303.02 have no further application and, to avoid confusion, the Exchange proposes to delete them from the LCM in their entirety. 5 *See* Securities Exchange Act Release No. 48745 (November 4, 2003), 68 FR 64154 (November 12, 2003) (SR-NYSE-2002-33). 2. Statutory Basis The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act 6 in general and furthers the objectives of Section 6(b)(5) 7 in particular, in that it is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to remove impediments to, and perfect the mechanism of, a free and open market and a national market system, and in general, to protect investors and the public interest. 6 15 U.S.C. 78f(b). 7 15 U.S.C. 78f(b)(5). B. Self-Regulatory Organization's Statement on Burden on Competition The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others No written comments were solicited or received with respect to the proposed rule change. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Because the foregoing proposed rule change does not:
(i)Significantly affect the protection of investors or the public interest;
(ii)impose any significant burden on competition; and
(iii)become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, if consistent with the protection of investors and the public interest, it has become effective pursuant to Section 19(b)(3)(A) of the Act 8 and Rule 19b-4(f)(6) thereunder. 9 As required under Rule 19b-4(f)(6)(iii) under the Act, 10 the Exchange provided the Commission with written notice of its intent to file the proposed rule change, along with a brief description and text of the proposed rule change, at least five business days prior to the date of the filing of the proposed rule change. 8 15 U.S.C. 78s(b)(3)(A). 9 17 CFR 240.19b-4(f)(6). 10 17 CFR 240.19b-4(f)(6)(iii). A proposed rule change filed under 19b-4(f)(6) normally may not become operative prior to 30 days after the date of filing. 11 However, Rule 19b-4(f)(6)(iii) 12 permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange has requested that the Commission waive the 30-day operative delay and render the proposed rule change to become operative immediately. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest. Waiver of the 30-day operative delay would enable the Exchange to remove Sections 303.00, 303.01, and 303.02 of the LCM as quickly as possible and prevent any potential confusion as to the applicability of these sections. For the reasons stated above, the Commission therefore designates the proposal to become operative immediately. 13 11 *Id.* 12 *Id.* 13 For purposes of waiving the operative date of this proposal only, the Commission has considered the impact of the proposed rule 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. 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-NYSE-2005-55 on the subject line. Paper Comments • Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, Station Place, 100 F Street, NE., Washington, DC 20549-9303. All submissions should refer to File Number SR-NYSE-2005-55. 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 NYSE. 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-NYSE-2005-55 and should be submitted on or before October 5, 2005. For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 14 14 17 CFR 200.30-3(a)(12). Jonathan G. Katz, Secretary. [FR Doc. E5-5012 Filed 9-13-05; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-52390; File No. SR-PCX-2005-103] Self-Regulatory Organizations; Pacific Exchange, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to Obligations of Lead Market Makers September 7, 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 September 2, 2005, the Pacific Exchange, Inc. (“PCX” or “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 the Exchange. The Exchange filed the proposed rule change pursuant to Section 19(b)(3)(A)(i) of the Act 3 and Rule 19b-4(f)(1) thereunder, 4 which render the proposal effective upon filing with the Commission. 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)(i). 4 17 CFR 240.19b-4(f)(1). I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to amend PCX Rule 6.82(c)(15) to change the operative date of the rule. The text of the proposed rule change is available on the Exchange's Web site ( *http://www.pacificex.com* ), at the Exchange's Office of the Secretary, and at the Commission's Public Reference Room. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose The purpose of this filing is to amend PCX Rule 6.82(c)(15), Obligations of Lead Market Makers, to change the operative date of the rule to January 1, 2006. This date allows the Exchange to implement the technology to automate the routing out over linkage of public customer orders, which will facilitate Lead Market Maker compliance with the rule 2. Statutory Basis The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act 5 in general, and furthers the objectives of Section 6(b)(5) of the Act 6 in particular, because the proposed rule change is 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 facilitating transactions in securities, and to remove impediments to and perfect the mechanism of a free and open market and a national market system. 5 15 U.S.C. 78f(b). 6 15 U.S.C. 78f(b)(5). B. Self-Regulatory Organization's Statement on Burden on Competition The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others Written comments on the proposed rule change were neither solicited nor received. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act 7 and paragraph
(f)of Rule 19b-4 thereunder, 8 because it is a stated policy, practice, or interpretation with respect to the meaning, administration, or enforcement of an existing rule. 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. 7 15 U.S.C. 78s(b)(3)(A). At the request of the Exchange, the Commission staff has added the reference to subparagraph
(A)in the reference to Section 19(b)(3)(A). Telephone conversation between Alden Adkins, Chief Regulatory Officer, Exchange, and Kim Allen, Attorney, Division of Market Regulation (“Division”), Commission, on September 7, 2005 8 17 CFR 240.19b-4(f). At the request of the Exchange, the Commission staff has changed the reference from subparagraph
(e)to paragraph
(f)of Rule 19b-4. Telephone conversation between Alden Adkins, Chief Regulatory Officer, Exchange, and Kim Allen, Attorney, Division, Commission, on September 7, 2005. 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-PCX-2005-103 on the subject line. Paper Comments • Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-9303. All submissions should refer to File Number SR-PCX-2005-103. 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-PCX-2005-103 and should be submitted on or before October 5, 2005. For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 9 9 17 CFR 200.30-3(a)(12). Jonathan G. Katz, Secretary. [FR Doc. E5-5011 Filed 9-13-05; 8:45 am] BILLING CODE 8010-01-P SMALL BUSINESS ADMINISTRATION [Disaster Declaration # 10190] Kansas Disaster # KS-00004 AGENCY: U.S. Small Business Administration. ACTION: Notice. SUMMARY: This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the State of Kansas (FEMA—1600—DR) dated 8/23/2005. *Incident:* Severe storms and flooding. *Incident Period:* 6/30/2005 through 7/1/2005. *Effective Date:* 8/23/2005. *Physical Loan Application Deadline Date:* 10/24/2005. ADDRESSES: Submit completed loan applications to: U.S. Small Business Administration, Disaster Area Office 3, 14925 Kingsport Road, Fort Worth, TX 76155. FOR FURTHER INFORMATION CONTACT: A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, Suite 6050, Washington, DC 20416. SUPPLEMENTARY INFORMATION: Notice is hereby given that as a result of the President's major disaster declaration on 8/23/2005, applications for Private Non-Profit organizations that provide essential services of a governmental nature may file disaster loan applications at the address listed above or other locally announced locations. The following areas have been determined to be adversely affected by the disaster: Primary Counties: Cherokee, Crawford, Neosho. The Interest Rates are: Percent Other (Including Non-profit Organizations) With Credit Available Elsewhere 4.750 Businesses and Non-profit Organizations Without Credit Available Elsewhere 4.000 The number assigned to this disaster for physical damage is 10190. (Catalog of Federal Domestic Assistance Number 59008) Cheri L. Cannon, Acting Associate Administrator for Disaster Assistance. [FR Doc. 05-18202 Filed 9-13-05; 8:45 am]
Connectionstraces to 7
5 references not yet in our index
  • 15 USC 78
  • 17 CFR 240.12
  • 17 CFR 240.19
  • 15 USC 78(f)(b)
  • 15 USC 78(f)(b)(5)
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cites case law
Notices
Notice of an application for an order under section 12(d)(1)(J) of the Investment Company Act of 1940 (“Act”) for an exemption from sections 12(d)(1)(A) and (B) of the Act, under sections 6(c) and 17(b) for an exemption from section 17(a) of the Act, and under section 17(d) of the Act and rule 17d-1 under the Act to permit certain joint transactions
C.F.R.§ 200.30-3
U.S.C.§ 78s
U.S.C.§ 552
U.S.C.§ 80a–1
U.S.C.§ 78q–1
U.S.C.§ 78f
U.S.C.§ 78c
Cite15 USC 78
Cite17 CFR 240.12
Cite17 CFR 240.19
Cite15 USC 78(f)(b)
Cite15 USC 78(f)(b)(5)
Cites 12Cited by 0 across 0 sources
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