Notices. Notice

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BILLING CODE 3110-01-C SECURITIES AND EXCHANGE COMMISSION [Release No. 34-52686; File No. SR-Amex-2005-099] Self-Regulatory Organizations; American Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change and Amendment Nos. 1 and 2 Thereto Relating to the Adoption of a Cap on Certain Fees for Options on Indexes, Exchange Traded Fund Shares, and Trust Issued Receipts October 27, 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 30, 2005, the American Stock Exchange LLC (“Amex” 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 Exchange.

On October 17, 2005, the Exchange filed Amendment No. 1 to the proposed rule change. 3 On October 21, 2005, the Exchange filed Amendment No. 2 to the proposed rule change. 4 Amex has designated this proposal as one establishing or changing a due, fee, or other charge imposed by a self-regulatory organization pursuant to Section 19(b)(3)(A)(ii) of the Act 5 and Rule 19b-4(f)(2) thereunder, 6 which renders the proposal effective upon filing with the Commission. The Commission is publishing this notice to solicit comments on the proposed rule change, as amended, from interested persons. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 In Amendment No. 1, the Exchange made clarifying changes to the purpose and statutory basis sections of the proposal and made non-substantive changes to the text of the proposed rule change. 4 In Amendment No. 2, the Exchange made clarifying changes to the purpose and statutory basis sections of the proposal and non-substantive changes to the statutory basis section and the text of the proposed rule change. 5 15 U.S.C. 78s(b)(3)(A)(ii). 6 17 CFR 240.19b-4(f)(2).

I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change Amex proposes to adopt a cap on fees for transactions in options on indexes, Exchange Traded Fund Shares (“ETFs”), and Trust Issued Receipts (“TIRs”). The text of the proposed rule change is available on Amex's Web site ( *http://www.amex.com* ), at Amex's principal office, 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, Amex included statements concerning the purpose of, and basis for, the proposed rule change, as amended, and discussed any comments it received on the proposal.

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 the Statutory Basis for, the Proposed Rule Change 1. Purpose The Exchange proposes to put in place a cap on certain fees charged to members for customer transactions in options on indexes, ETFs, and TIRs that exceed certain volume levels. 7 Specifically, the Exchange will provide a volume trade discount to members for customer transactions in the form of a cap on transaction, comparison, and floor brokerage fees in index, ETF, and TIR options.

The fee cap will be applied on a trade-by-trade basis. Thus, for customer transactions in index, ETF, and TIR options of more than 2,000 contracts, the options transaction, comparison, and floor brokerage fees will be charged to the member on the first 2,000 contracts only. As the Exchange does not currently charge members the transaction, comparison, or floor brokerage fees for customer transactions in options on the Nasdaq 100 Shares (symbol: QQQQ), the fee cap being proposed herein will not be extended to options on that ETF. 7 Effective September 1, 2005, the Exchange began charging members a fee on customer transactions in ETF and TIR options.

The three types of fees—transaction ($0.08), comparison ($0.04), and floor brokerage ($0.03)—result in a total fee on ETF and TIR options of $0.15 per contract side. *See* Securities Exchange Act Release No. 52493 (September 22, 2005), 70 FR 56941 (September 29, 2005). The purpose of this proposal is to help the Exchange remain competitive in these products by providing a large customer fee cap similar to those applied by other option exchanges to the trading of options on indexes, ETFs, and TIRs.

The Exchange proposes that the fee cap proposed in this rule filing be effective on October 3, 2005. 2. Statutory Basis The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act 8 in general, and furthers the objectives of Section 6(b)(4) of the Act 9 in particular, in that it is designed to provide for the equitable allocation of reasonable dues, fees, and other charges among its members and issuers and other persons using its facilities.

In particular, the Exchange believes that, since other options exchanges have applied similar large customer fee caps to the trading of options on indexes, ETFs, and TIRs, the proposed customer fee cap will help the Exchange to remain competitive. 8 15 U.S.C. 78f(b). 9 15 U.S.C. 78f(b)(4). B. Self-Regulatory Organization's Statement on Burden on Competition Amex 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 Change Received From Members, Participants or Others The Exchange did not solicit or receive any written comments with respect to the proposal.

II. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The foregoing proposed rule change, as amended, has been designated as a fee change pursuant to Section 19(b)(3)(A)(ii) of the Act 10 and Rule 19b-4(f)(2) 11 thereunder. Accordingly, the proposal is effective upon filing with the Commission. 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. 12 10 15 U.S.C. 78s(b)(3)(A)(ii). 11 17 CFR 240.19b-4(f)(2). 12 The effective date of the original proposed rule change is September 30, 2005, the effective date of Amendment No. 1 is October 17, 2005, and the effective date of Amendment No. 2 is October 21, 2005.

For purposes of calculating the 60-day period within which the Commission may summarily abrogate the proposed rule change, as amended, under Section 19(b)(3)(C) of the Act, the Commission considers the period to commence on October 21, 2005, the date on which the Exchange submitted Amendment No. 2. *See* 15 U.S.C. 78s(b)(3)(C). III. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, 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 Number SR-Amex-2005-099 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-Amex-2005-099.

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-Amex-2005-099 and should be submitted on or before November 25, 2005. 13 17 CFR 200.30-3(a)(12). For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 13 Jonathan G.

Katz, Secretary. [FR Doc. E5-6084 Filed 11-2-05; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-52690; File No. SR-Amex-2005-067] Self-Regulatory Organizations; American Stock Exchange LLC; Notice of Filing of Proposed Rule Change To Expand Its $2.50 Strike Price Program October 27, 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 June 17, 2005, the American Stock Exchange LLC (“Amex” 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 Amex.

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. I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to amend Commentary .06 to Amex Rule 903 to expand the $2.50 Strike Price Program (“2.50 Strike Program”) for individual equity options to allow the listing of 2.50 point strike prices between $50 and $75.

Below is the text of the proposed rule change. Proposed new language is in *italics;* proposed deletions are in [brackets]. Rule 903. Series of Options Open for Trading

(a)through (d). No Change. Commentary * * * .01 through .05 No Change. .06 *(a) $2.50 Strike Price Program. Pursuant to a program initially approved by the SEC in 1995,* [The options exchanges] *the Exchange* may select up to [200] *51* options classes on individual stocks for which the interval of strike prices will be $2.50 where the strike price is greater than $25 but less than $50. [The 200 options classes are selected by the various options exchanges pursuant to any agreement mutually agreed to by the individual exchanges and approved by the Commission.] In addition to those options selected by the Exchange, the strike price interval may be $2.50 in any multiply-traded option once another exchange trading that option selects such option, as part of this program. [The Exchange and any of the other options exchanges may also list strike prices of $2.50 on any option class that was selected by the NYSE pursuant to this program.] *(b) In addition, on any option class that has been selected as part of the $2.50 Strike Price Program pursuant to paragraph

(a)in respect of an underlying security that is principally traded on a national securities exchange, the principal exchange market in which the underlying security is traded; and

(b)in respect of an underlying security which is principally traded in the over-the-counter market, in the case of equity securities, the market reflected by Nasdaq, and in the case of all other securities, the market reflected by any widely recognized quotation dissemination system or service. The current 2.50 Strike Program is set forth in Commentary .06 to Amex Rule 903. The 2.50 Strike Program permits the Exchange to list 2.50 point strike prices for selected options trading at strike prices greater than $25 but less than $50, excluding LEAPS. Initially adopted in 1995 as a pilot program, the options exchanges at that time were permitted to list 2.50 point strike prices up to $50 on a total of up to 100 option classes. 4 In 1998, the pilot was permanently approved and expanded to allow the options exchanges to select up to 200 option classes for 2.50 point strike prices up to $50. 5 Of the current 200 options classes eligible for the 2.50 Strike Program, 51 have been allocated to the Amex. In addition, each options exchange is permitted to list 2.50 point strike prices on any option class that another options exchange selects under the 2.50 Strike Program. 4 *See* Securities Exchange Act Release No. 35993 (July 15, 1995), 60 FR 35993 (July 19, 1995). 5 *See* Securities Exchange Act Release No. 41662 (November 12, 1998), 63 FR 64297 (November 19, 1998). The Exchange believes that the 2.50 Strike Program has created additional trading opportunities for customers benefiting the marketplace. The existence of 2.50 point strike prices affords customers the ability to more closely tailor investment strategies to the precise movement of the underlying security. Accordingly, the Amex believes that the proposal to expand the 2.50 Strike Program for 2.50 point strike prices between $50 and $75 should further benefit customers and the market by providing greater trading opportunities for those underlying stocks that have low volatility and thus trade in a narrow range. 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 promote just and equitable principles of trade, remove impediments to and perfect the mechanisms of a free and open market and a national market system, and, in general, 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 Amex does not believe that the proposed rule change would impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others 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 Within 35 days of the date of publication of this notice in the **Federal Register** or within such longer period

(i)as the Commission may designate up to 90 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding, or

(ii)as to which the Amex consents, the Commission will:

(A)By order approve such proposed rule change; or

(a)above, the Exchange may list $2.50 strike prices between $50 and $75, provided the $2.50 strike prices between $50 and $75 are no more than $10 from the closing price of the underlying stock in its primary market on the preceding day. For example, if an option class has been selected as part of $2.50 Strike Price Program, and the underlying stock closes at $48.50 in its primary market, the Exchange may list the $52.50 strike price and the $57.50 strike price on the next business day. If an underlying security closes at $54, the Exchange may list the $52.50 strike price, the $57.50 strike price, and the $62.50 strike price on the next business day.* *(c) An option class shall remain in the $2.50 Strike Price Program until otherwise designated by the Exchange and a decertification notice is sent to the Options Clearing Corporation.* .06-.08 No change. 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 CBOE included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it had received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The CBOE 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 CBOE proposes to amend CBOE Rule 5.5, Interpretation and Policy .05, to allow the listing of $2.50 strike prices between $50 and $75 on those option classes that have been selected as part of the $2.50 Strike Price Program, provided the $2.50 strike prices between $50 and $75 are no more than $10 from the closing price of the underlying stock in its primary market on the preceding day. For example, and as expressly described in the proposed change to Rule 5.5, if an option class has been selected as part of $2.50 Strike Price Program, and the underlying stock closes at $48.50 in its primary market, the CBOE could list the $52.50 strike price and the $57.50 strike price on the next business day. If an underlying security closes at $54, the CBOE could list the $52.50 strike price, the $57.50, and the $62.50 strike price on the next business day. The $2.50 Strike Price Program was initially adopted in 1995 as a joint pilot program of the options exchanges, whereby the options exchanges were permitted to list $2.50 strike prices up to $50 on a total of up to 100 option classes. The $2.50 Strike Price Program was later permanently approved and expanded in 1998 to allow the options exchanges to select up to 200 classes on which to list $2.50 strike prices up to $50. Of these 200 option classes eligible for the $2.50 Strike Price Program, 60 classes were allocated to the CBOE pursuant to a formula approved by the Commission. Each options exchange, however, is permitted to list $2.50 strike prices on any option class that another exchange selects as part of the $2.50 Strike Price Program. The CBOE believes that the experiences over the past 10 years with the $2.50 Strike Price Program have produced positive results. Specifically, the $2.50 Strike Price Program has stimulated customer interest by creating additional trading opportunities, by providing more flexibility in trading decisions, and by affording customers the ability to more closely tailor investment strategies to the precise movement of the underlying security. The CBOE's proposal to expand the $2.50 Strike Price Program as described in this proposed rule change is intended to provide customers with greater flexibility in their investment choices for those stocks priced between $50 and $75 that have a low volatility and thus trades in narrow range. The CBOE represents that Options Price Reporting Authority has the capacity to accommodate the increase in the number of series added pursuant to this rule change. Finally, the proposed rule change makes other technical changes to Rule 5.5, Interpretation and Policy .05, including expressly noting in the rule text:

(i)The total number of option classes, *i.e.* 60, that the CBOE has been allocated of the 200 classes that are eligible for the Program; and

(ii)that an option class shall remain in the $2.50 Strike Price Program until otherwise designated by the Exchange and a decertification notice is sent to the Options Clearing Corporation. 2. Statutory Basis The Exchange believes that the proposed rule change is consistent with section 6(b) of the Act, 3 in general, and furthers the objectives of section 6(b)(5), 4 in particular, in that it is designed to promote just and equitable principles of trade as well as to protect investors and the public interest, by increasing trading opportunities which should, in turn, increase the depth and liquidity of the marketplace. 3 15 U.S.C. 78f(b). 4 15 U.S.C. 78f(b)(5). B. Self-Regulatory Organization's Statement on Burden on Competition The CBOE does not believe that the proposed rule change would impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others The Exchange neither received nor solicited written comments on the proposal. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Within 35 days of the date of publication of this notice in the **Federal Register** or within such longer period

(i)as the Commission may designate up to 90 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding, or

(ii)as to which the CBOE consents, the Commission will:

(A)By order approve such proposed rule change; or

(B)Institute proceedings to determine whether the proposed rule change should be disapproved. IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form ( *http://www.sec.gov/rules/sro.shtml* ); or • Send an e-mail to *rule-comments@sec.gov* . Please include File Number SR-CBOE-2005-39 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-CBOE-2005-39. 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 the CBOE. 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 publicly available. All submissions should refer to File Number SR-CBOE-2005-39 and should be submitted on or before November 25, 2005. 5 17 CFR 200.30-3(a)(12). For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 5 Jonathan G. Katz, Secretary. [FR Doc. E5-6095 Filed 11-2-05; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-52691; File No. SR-CHX-2005-33] Self-Regulatory Organizations; Chicago Stock Exchange, Inc.; Notice of Filing and Order Granting Accelerated Approval to a Proposed Rule Change To Establish Certain Fees With Respect to Transactions Executed Through the Intermarket Trading System October 27, 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 October 24, 2005, the Chicago Stock Exchange, Inc. (“CHX” or “Exchange”) filed with the Securities and Exchange Commission (“Commission” or “SEC”) the proposed rule change as described in Items I and II below, which Items have been prepared by the CHX. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons, and is approving the proposal on an accelerated basis. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to enter into arrangements with other national securities exchanges to pass certain fees they have collected from members for transactions executed on another exchange through the Intermarket Trading System (“ITS”). This proposal does not require changes to CHX rule text. 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 III 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 Section 31 of the Act 3 requires each national securities exchange to pay the Commission a fee based on the aggregate dollar amount of certain sales of securities (“covered sales”). Rules 31 and 31T, adopted by the Commission in June 2004, 4 established procedures for the calculation and collection of Section 31 fees on such covered sales. Rule 31 requires each national securities exchange that owes Section 31 fees to submit a completed Form R31 to the Commission each month, beginning with July 2004. Rule 31T required each exchange to submit a completed Form R31 for each of the months September 2003 to June 2004, inclusive. Each national securities exchange must report its covered sales volume based on the data from a designated clearing agency, when available. The designated clearing agency for covered sales of equity securities is the National Securities Clearing Corporation (“NSCC”). These covered sales are reported in Part I of Form R31, and each exchange is required to “provide in Part I only the data supplied to it by a designated clearing agency.” 5 The data supplied by NSCC for the period September 2003 through August 2004 did not accurately reflect the aggregate dollar value of the covered sales occurring on each exchange to permit reports to be made in accordance with new Rules 31 and 31T. In particular, the data NSCC reported to each national securities exchange included non-covered sales data for sales originating on one exchange and executed on another exchange through the ITS. 6 3 15 U.S.C. 78ee. 4 *See* Securities Exchange Act Release No. 49928 (June 28, 2004), 69 FR 41060 (July 7, 2004) (“Adopting Release”). 5 17 CFR 240.31(b)(5). 6 As a result of this and other inaccuracies in the data reported by NSCC, the national securities exchanges were unable to report accurate information on Form R31, unless they made adjustments to the NSCC data based on data other than that provided by NSCC. On October 6, 2004, the Commission's Division of Market Regulation (“Division”) issued a “no-action” letter advising exchanges for whom NSCC acts as a designated clearing agency under Rule 31, that the Division staff would not recommend that the Commission take enforcement action if a national securities exchange adjusts the data provided by NSCC to accurately reflect covered sales occurring on the national securities exchange. *See* letter from Robert L.D. Colby, Deputy Director, Division, Commission to Ellen J. Neely, Senior Vice President and General Counsel, CHX, dated October 6, 2004. Section 31 requires that national securities exchanges pay a fee based on the aggregate dollar amount of sales of securities transacted on the exchange. Given the specific language of Section 31, the Commission in the Adopting Release for Rules 31 and 31T advised that the current methodology for treating sales of securities that occur through ITS 7 was no longer appropriate and that “it would be simpler and more transparent for each covered [self-regulatory organization (“SRO”)] to report all covered sales that occur on its market.” The Commission further stated: 7 In the Adopting Release, the Commission described the current methodology: “SRO A sends an ITS commitment to a member of SRO B to sell a security, and the commitment is executed on SRO B. Under existing arrangements, SRO A pays the Section 31 fee arising from this trade and passes the fee to its member that initiated the trade. * * * [T]he SROs devised this system because SRO B does not have the ability to require members of SRO A to reimburse it for the cost of its Section 31 fees.” Adopting Release, 69 FR at 41067. The Commission acknowledges that a covered SRO on which a covered sale occurs as a result of an incoming ITS order may not be able to collect funds to pay the Section 31 fee from one of its own members. However, Section 31 does not address the manner or extent to which covered SROs may seek to recover the amounts that they pay pursuant to Section 31 from their members. Covered SROs may wish to devise new arrangements for passing fees between themselves so that the funds are collected from the covered SRO that originated the ITS order. 8 8 *Id.* The Commission further noted that any such arrangements devised by the SROs would have to be established pursuant to Section 19(b) of the Act and Rule 19b-4 thereunder. A subcommittee of the ITS Operating Committee 9 (“Subcommittee”) has had discussions in order to devise new arrangements for passing fees between the ITS participants that

(1)were collected from their members for the months of September 2003 through August 2004; and

(2)are being collected from their members beginning in September 2004 and continuing. This proposed rule change is being submitted by the CHX with the understanding that the other exchanges participating in the proposed arrangement devised by the subcommittee will be submitting substantially similar rule change proposals. 10 9 The ITS participants are American Stock Exchange LLC, Boston Stock Exchange (“BSE”), Chicago Board Options Exchange, CHX, National Association of Securities Dealers (“NASD”), National Stock Exchange, New York Stock Exchange (“NYSE”), Pacific Exchange, and Philadelphia Stock Exchange. 10 NASD has determined not to participate in the arrangement for passing fees between exchanges although they participated in many of the conference calls regarding the proposed arrangement. Pursuant to the new arrangement being proposed, each ITS participant exchange determines whether it has received and executed more in dollar value of covered sales than it has originated and sent to each other ITS participant exchange. For example, for the historical period, September 2003 through August 2004, SRO A sent ITS commitments for covered sales whose dollar value was $150 million to SRO B for execution. SRO A collected fees from its members to fund its Section 31 obligation for those covered sales executed on SRO B. SRO B, as the executing market center, is obligated to pay the Section 31 fee to the SEC. During the same period, SRO B sent ITS commitments for covered sales whose dollar value was $210 million to SRO A. SRO B collected fees from its members for those covered sales executed on SRO A. SRO A, as the executing market center, is obligated to pay the Section 31 fee to the SEC. Since SRO A executed a greater dollar value of covered sales from SRO B than it sent to SRO B, the proposed arrangement requires SRO A to determine the amount of the fees collected by SRO B from its members based on the aggregate dollar value of covered sales from SRO B and executed on SRO A through ITS commitments. When invoicing SRO B, SRO A will deduct the amount of the fee it owes to SRO B ( *i.e.* , the fee amount based on SRO A's $210 million in aggregate covered sales less the fee amount based on SRO B's $150 million in aggregate covered sales) and will invoice only for the difference of $60 million. Once the fees have been invoiced and paid for the historical period, the ITS participant exchanges plan to use the same arrangement for the period beginning September 2004 and continuing. It is anticipated that the invoicing process will occur twice yearly to coincide with the March 15 and September 30 payment schedule for Section 31 fees set forth in the Act. To implement this proposed arrangement, an ITS participant exchange will require access to the aggregate dollar value of buy and sell transactions occurring through ITS. Under the proposed arrangement for fees collected for the months of September 2003 through August 2004, an ITS participant exchange may choose to use data obtained from the Inter-market Surveillance Information System (“ISIS”) or data that provides comparable information that includes aggregate dollar value of ITS transactions. 11 The ISIS data is sorted by originating market center ( *i.e.* , the sender of an ITS commitment) and receiving market center ( *i.e.* , the market center that executes the ITS commitment). Using this data, each ITS participant exchange can determine on a monthly basis the dollar value of all executed commitments sent to and received from another ITS participant exchange. 11 The NYSE has made available to the ITS participants spreadsheets for each month in the period using the ISIS data. At its meeting on February 23, 2005, the Subcommittee asked the Securities Industry Automation Corporation (“SIAC”) to determine the time and expense involved for SIAC to use the ITS database that it maintains to provide reports of the aggregate dollar value of buy and sell transactions occurring through ITS to the ITS participants. On March 15, 2005, representatives of the Subcommittee authorized SIAC to develop new reports. SIAC has developed these reports and it is anticipated that by the end of 2005, it will no longer be necessary for ISIS data to be used. The new reports provided by SIAC will be used by ITS participants in connection with determining which ITS participant exchange will pay the fee for transactions occurring through ITS and which ITS participant exchange has collected the fee from its members. The CHX believes that the proposed arrangement is a fair and efficient means for passing fees collected at one ITS participant exchange based upon executions of covered sales occurring at another ITS participant exchange. The CHX acknowledges that the legal duty to report and pay the Section 31 fee remains with the ITS participant on which the sale was in fact transacted. 2. Statutory Basis This proposal would establish a process for SROs to enter into arrangements to pass fees they have collected from members for transactions executed on another SRO through ITS. For these reasons, the Exchange believes that the proposed rule change is consistent with the Act and the rules and regulations thereunder that are applicable to a national securities exchange and, in particular, the requirements of Section 6(b) of the Act. 12 Specifically, the Exchange believes the proposed rule change is consistent with the requirements of Section 6(b)(5) of the Act, 13 in that it is designed to promote just and equitable principles of trade, to prevent fraudulent and manipulative acts and practices, and, in general, to protect investors and the public interest. In addition, the Exchange believes that the proposed rule change is consistent with the provisions of Section 6(b)(4) of the Act, 14 which requires that the rules of an exchange provide for the equitable allocation of reasonable dues, fees, and other charges among its members and issuers and other persons using its facilities. 12 15 U.S.C. 78f(b). 13 15 U.S.C. 78f(b)(5). 14 15 U.S.C. 78f(b)(4). 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. 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-CHX-2005-33 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-CHX-2005-33. 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 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 Number SR-CHX-2005-33 and should be submitted on or before November 25, 2005. IV. Commission's Findings and Order Granting Accelerated Approval of a Proposed Rule Change After careful consideration, the Commission finds that the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to a national securities exchange. 15 In particular, the Commission believes that the proposal is consistent with Section 6(b)(4) of the Act, 16 which requires that the rules of an exchange provide for the equitable allocation of reasonable dues, fees, and other charges among its members and issuers and other persons using its facilities. National securities exchanges obtain funds to pay their Section 31 fees to the Commission by charging fees to broker-dealers who generate the covered sales on which Section 31 fees are based. An exchange can obtain most of these funds by imposing a fee on one of its members whenever the member is on the sell side of a transaction. However, when the exchange accepts an ITS commitment to buy, the ultimate seller is a party on another market. The exchange lacks the ability to pass a fee to that seller directly, because the seller may not be a member of the exchange. Under the proposed arrangement, which the Commission understands will be adopted by each of the ITS participant exchanges, 17 the exchange that routed the ITS commitment away will continue to collect a fee from the broker-dealer that placed the sell order. Then, with respect to each ITS participant exchange, the exchange will determine whether it is a net sender or net receiver of ITS trades and send fees to or accept fees from each other exchange accordingly. The Commission believes this is an equitable manner for the exchanges to obtain funds to pay their Section 31 fees on covered sales resulting from ITS trades. 15 In approving this proposal, the Commission has considered its impact on efficiency, competition, and capital formation. *See* 15 U.S.C. 78c(f). 16 15 U.S.C. 78f(b)(4). 17 *See* letter from George W. Mann, Jr., Executive Vice President and General Counsel, BSE, and Chairman, Subcommittee, to Michael Gaw, Assistant Director, Division, Commission, dated September 29, 2005. Under Section 19(b)(2) of the Act, 18 the Commission may not approve any proposed rule change prior to the thirtieth day after the date of publication of the notice of filing thereof, unless the Commission finds good cause for so doing. The Commission hereby finds good cause for approving the proposed rule change prior to the thirtieth day after publishing notice of filing thereof in the **Federal Register** . In this case, the Commission does not believe a comment period is necessary because all of the parties affected by the proposed fee—the other ITS participant exchanges—have already consented to and will adopt the same fee arrangement. 19 18 15 U.S.C. 78s(b)(2). 19 *See supra* note 17. For the reasons set forth above, the Commission finds good cause to accelerate approval of the proposed rule change pursuant to Section 19(b)(2) of the Act. 20 20 *Id* . V. Conclusion It is therefore ordered, pursuant to Section 19(b)(2) of the Act, 21 that the proposed rule change (SR-CHX-2005-33) is hereby approved on an accelerated basis. 21 *Id* . 22 17 CFR 200.30-3(a)(12). For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 22 Jonathan G. Katz, Secretary. [FR Doc. E5-6085 Filed 11-2-05; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-52679; File No. SR-NASD-2005-112] Self-Regulatory Organizations; National Association of Securities Dealers, Inc.; Notice of Filing of Proposed Rule Change Relating to Amendments To Rule 3360 To Expand Short-Interest Reporting To OTC Equity Securities October 26, 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 20, 2005, the National Association of Securities Dealers, Inc. (“NASD”) filed with the Securities and Exchange Commission (“SEC” or “Commission”) the proposed rule change as described in Items I, II and III below, which Items have been prepared by NASD. 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. I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change NASD is proposing to amend Rule 3360 to expand the short interest reporting requirements to over-the-counter (“OTC”) equity securities. Below is the text of the proposed rule change. Proposed new language is in italics; proposed deletions are in brackets. 3360 Short-Interest Reporting

(a)Each member shall maintain a record of total “short” positions in all customer and proprietary firm accounts in *OTC Equity Securities* , securities included in The Nasdaq Stock Market, and in each other security listed on a registered national securities exchange and not otherwise reported to another self-regulatory organization and shall regularly report such information to NASD in such a manner as may be prescribed by NASD. [For the purposes of this rule, the term “customer” includes a broker/dealer.] Reports shall be made as of the close of the settlement date designated by NASD. Reports shall be received by NASD no later than the second business day after the reporting settlement date designated by NASD.

(b)For purposes of this Rule[,]: *(1)* “short” positions to be reported are those resulting from “short sales” as that term is defined in SEC Rule 200 of Regulation SHO, with the exception of positions that meet the requirements of Subsections (e)(1), (6), (7), (8), and

(10)of SEC Rule 10a-1 adopted under the Act[.]; *(2) the term “customer” includes a broker-dealer; and* *(3) the term “OTC Equity Securities” shall mean any equity security that is not listed on The Nasdaq Stock Market or a national securities exchange.* II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, NASD included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. NASD has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose NASD is proposing to amend Rule 3360, Short-Interest Reporting, to require that members maintain and report on a monthly basis total short positions in OTC equity securities in all customer and proprietary firm accounts. 3 Currently, Rule 3360(a) requires members to maintain a record of total short positions 4 in all customer 5 and proprietary firm accounts in Nasdaq securities (and listed securities if not reported to another self-regulatory organization (“SRO”)) and requires members to report such information to NASD on a monthly basis. NASD believes that expanding the monthly short interest reporting requirements to OTC equity securities will increase the information available to public investors and other interested parties related to trading in OTC equity securities. Accordingly, NASD proposes to amend Rule 3360(a) to require that members maintain and report to NASD short sale positions for OTC equity securities. For purposes of the proposed rule change, OTC equity securities would be defined as any equity security that is not listed on The Nasdaq Stock Market or a national securities exchange. 3 Non-self-clearing broker-dealers generally are considered to have satisfied their reporting requirement by making appropriate arrangements with their respective clearing organizations. *See Notice to Members* 03-08 (January 2003). 4 Rule 3360(b) provides that short positions required to be reported under the rule are those resulting from short sales as the term is defined in SEC Rule 200 of Regulation SHO, with limited exceptions. SEC Rule 200 of Regulation SHO provides, in part, the following: “The term ‘short sale' shall mean any sale of a security which the seller does not own or any sale which is consummated by the delivery of a security borrowed by, or for the account of, the seller.” 17 CFR 242.200(a). 5 Short sale positions held for other broker-dealers that fall within the definition of short position provided in Rule 3360(b) must be reported under Rule 3360(a), unless these positions already are reported to an SRO. *See Notice to Members* 03-08 (January 2003). NASD will announce the effective date of the proposed rule change in a *Notice to Members* to be published no later than 60 days following Commission approval. In recognition of the technological and systems changes the proposed rule change may require, the effective date will be 90 days following publication of the *Notice to Members* announcing Commission approval. 2. Statutory Basis NASD believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act, 6 which requires, among other things, that NASD rules must be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, and, in general, to protect investors and the public interest. NASD believes that the proposed rule change will increase the information available to public investors and other interested parties related to trading in OTC equity securities. 6 15 U.S.C. 78o-3(b)(6). B. Self-Regulatory Organization's Statement on Burden on Competition NASD does not believe that the proposed rule change will result in 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 were neither solicited nor received. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Within 35 days of the date of publication of this notice in the **Federal Register** or within such longer period

(i)as the Commission may designate up to 90 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding or

(ii)as to which the self-regulatory organization consents, the Commission will: A. By order approve such proposed rule change, or B. Institute proceedings to determine whether the proposed rule change should be disapproved. IV. Solicitation of Comments The Commission notes that the NASD is proposing an implementation period for proposed NASD Rule 3360. Specifically, the Commission notes that the NASD is proposing that it will announce the effective date of the proposed rule change in a Notice to Members to be published no later than 60 days following Commission approval and that the effective date of the proposed rule change will be 90 days following publication of the Notice to Members announcing Commission approval. The Commission specifically requests comment regarding whether this implementation period could be shorter. Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form ( *http://www.sec.gov/rules/sro.shtml* ); or • Send an e-mail to *rule-comments@sec.gov* . Please include File Number SR-NASD-2005-112 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-NASD-2005-112. 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, 100 F Street, NE., Washington, DC 20549. Copies of such filing also will be available for inspection and copying at the principal office of NASD. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to the File Number SR-NASD-2005-112 and should be submitted on or before November 25, 2005. 7 17 CFR 200.30-3(a)(12). For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 7 Jonathan G. Katz, Secretary. [FR Doc. E5-6086 Filed 11-2-05; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-52692; File No. SR-NASD-2005-064] Self-Regulatory Organizations; National Association of Securities Dealers, Inc.; Order Granting Approval of Proposed Rule Change as Amended by Amendment No. 1 Relating to the Publication of Decisions Issued by the National Adjudicatory Council Pursuant to NASD Rule 1015 October 28, 2005. I. Introduction On May 12, 2005, the National Association of Securities Dealers, Inc. (“NASD”) filed with the Securities and Exchange Commission (“SEC” or “Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder, 2 a proposed rule change to amend NASD Interpretive Material 8310-2, “Release of Disciplinary and Other Information Through the Public Disclosure Program” (“IM-8310-2”) to authorize the NASD to release to the public information with respect to any decision issued by the National Adjudicatory Council (“NAC”) pursuant to NASD Rule 1015, “Review of National Adjudicatory Council.” 3 The proposed rule change was published for notice and comment in the **Federal Register** on June 13, 2005 (“Notice”). 4 The Commission received two comment letters on the proposal. 5 On July 26, 2005, the NASD filed a response to comments. 6 On October 6, 2005, the NASD filed Amendment No. 1 to the proposed rule change. 7 This order approves the proposed rule change, as amended. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 NASD Rule 1015 is part of the NASD Rule 1010 Series governing membership proceedings. These proceedings involve both the review of new member applications (NASD Rule 1014) and continuing membership applications seeking approval of a change in ownership, control, or business operations (NASD Rule 1017). *See infra* notes 15-17 and accompanying text. 4 *See* Securities Exchange Act Release No. 51786 (June 6, 2005), 70 FR 34170. 5 *See* letters from James Antosh, Chief Operating Officer and Chief Financial Officer of a privately owned broker-dealer (“Antosh”) dated June 30, 2005 and Joseph W. Mays, Jr., President, Securities Consulting Group, Inc. (“Mays”) dated July 5, 2005, both of which were addressed to Jonathan G. Katz, Secretary, Commission. 6 *See* July 26, 2005 letter from Shirley H. Weiss, Associate General Counsel, NASD, to Katherine A. England, Assistant Director, Division of Market Regulation, SEC (“NASD Response Letter”). 7 In Amendment No. 1, NASD made non-substantive changes to clarify the form of the NAC decisions authorized to be released to the public. It is a technical amendment and is not subject to notice and comment. II. Summary of Comments The Commission received two comment letters on the proposed rule change. 8 Both commenters opposed the proposed rule change on the general basis that publication of NAC decisions issued under NASD Rule 1015 would infringe on personal rights of privacy and confidentiality by permitting NASD to reveal to the public details concerning private transactions between private individuals. The following is a summary of the major concerns that the commenters raised. 8 *See supra* note 5. A. Details Concerning Private Transactions Between Private Individuals Will Be Released for Anyone to View One commenter believes that the proposal to disclose NAC decisions has “crossed the line” where personal rights to privacy would be diminished. 9 The commenter believes the NASD should not be allowed to publicly reveal private transactions between private individuals and expresses concern that persons appearing before the NAC would have less privacy and confidentiality than would be afforded in a civil court. 10 The commenter agrees that the public has a right to information when it entrusts its assets to others, but believes that the release of NAC decisions would publicly disclose sensitive details of business transactions, trade secrets, or financial information. 11 As a result, the commenter views the consideration for the public's right to information as embodied in this proposal to have “crossed the line.” 12 9 *See* Antosh at 1. 10 *Id* . 11 *Id* . 12 *Id* . B. The Release of NAC Decisions Regarding “Associated Persons,” as Defined in the NASD Rules, Violates Constitutional Rights to Confidentiality and Privacy Another commenter expresses disapproval of the proposal because he believes it will result in the disclosure of shareholders of broker-dealers, who are included in the definition of “Associated Person” under the NASD Rules. 13 The commenter states that the definition of Associated Person has been adjusted by the NASD and the SEC to apply, among others, to individuals or entities that are non-employee shareholders of an Applicant broker-dealer who do not “supervise, manage or direct the activities of the broker-dealer or are members of the board of directors.” 14 The commenter further explains that because such shareholders are included in the NASD's formal consideration of a broker-dealer's application for membership 15 or a broker-dealer's application for approval of a change in ownership, control, or business operations, 16 the information concerning such shareholders would be incorporated into any NAC decision if such Applicant broker-dealer elects to appeal the NASD decision in accordance with NASD Rule 1015. 17 13 *See* Mays at 1. The term “Associated Person” means:

(1)A natural person registered under NASD Rules; or

(2)a sole proprietor, or any partner, officer, director, branch manager of the Applicant, or any person occupying a similar status or performing similar functions;

(3)any company, government or political subdivision or agency or instrumentality of a government controlled by or controlling the Applicant;

(4)any employee of the Applicant, except any person whose functions are solely clerical or ministerial;

(5)any person directly or indirectly controlling the Applicant whether or not such person is registered or exempt from registration under NASD By-laws or NASD Rules;

(6)any person engaged in investment banking or securities business controlled directly or indirectly by the Applicant whether such person is registered or exempt from registration under NASD By-laws or NASD Rules; or

(7)any person who will be or is anticipated to be a person described in

(1)through

(6)above. *See* NASD Rule 1011(b). The term “Applicant” means a person that applies for membership in the Association under NASD Rule 1013 or a member that files an application for approval of a change in ownership, control, or business operations under NASD Rule 1017. *See* NASD Rule 1011(a). The term “Association” means, collectively, the NASD, NASD Regulation, Nasdaq, and NASD Dispute Resolution. *See* NASD Rule 0120(b). 14 *See* Mays at 1. 15 *See* NASD Rule 1014. 16 *See* NASD Rule 1017. 17 Under NASD Rule 1015, an aggrieved Applicant may file a written request for NAC review of the NASD's decision issued under NASD Rules 1014 or 1017. *See generally* NASD Rule 1015. As a result, the commenter believes that the release of information in NAC decisions, as contemplated by the proposed rule change, would reveal confidential information regarding non-employee shareholders and concludes that release of the information should not be permitted. 18 The commenter argues that, as a consequence of the proposal, such shareholders would be denied their “constitutional rights” to confidentiality and privacy, and the release of information regarding such shareholders would directly violate federal and state law pertaining to the protection of confidentiality and privacy generally afforded to individuals and legal entities. 19 18 *See* Mays at 1. The NAC's decision will include a description of the NASD's decision, including its rationale, a description of the principal issues raised, a summary of the evidence, a statement as to whether the NASD's decision is affirmed, modified, or reversed, and a rationale for the decision that references the applicable standards. *See* NASD Rule 1015(j). 19 *See* Mays at 1. III. NASD's Response to Comments On July 26, 2005, the NASD responded to the comments. 20 As a general preface, the NASD first notes in its response that disclosure of NAC decisions under the proposed rule change would not involve every application for NASD membership, but would be limited to those applications that culminate in appeal proceedings before the NAC. 21 20 *See supra* note 6. 21 *See* NASD Response Letter at 1. Regarding a commenter's concern that the proposed rule change would result in the disclosure of details concerning private transactions between private individuals, the NASD argues that the attendant disclosure of an Applicant's proposed or executed business arrangements or transactions with other persons must be balanced against the public's interest in being able to review the NAC decisions. 22 The NASD states that furnishing potential new members and members that are considering a change in ownership, control, or business operations the opportunity to review the NAC decisions issued under NASD Rule 1015 will assist Applicants in understanding the standards that must be met under NASD Rule 1014 or 1017, as the case may be, and the manner in which the NAC applies the standards. 23 Additionally, the NASD believes that public investors will benefit from the availability of information about any limitations placed on members, where the limitations result from proceedings before the NAC. 24 As stated in the Notice, the NASD represents that under the proposed rule change, the names of any persons who are not themselves under consideration or review as part of the membership application process will not be disclosed when the NAC decision is published. 25 Finally, the NASD notes that the information contained in NAC decisions is already subject to publication if an Applicant appeals an adverse NAC decision to the SEC, “because the SEC makes its decision in such matters available to the public, including on the SEC's web site.” 26 22 *See id.* 23 *Id.* at 1-2. 24 *Id.* at 2. 25 *Id.* 26 *Id.* In response to a commenter's concern that the NASD should not be permitted to release information about persons who may be non-employee shareholders of a broker-dealer, the NASD notes that it is not aware of any cognizable constitutional or statutory claim that pertains to the violation of protected rights to confidentiality and privacy. 27 The NASD acknowledges that as a self-regulatory organization, it must comport with its duty of fairness. The NASD argues that the proposed rule change is consistent with this duty and furthers a “reasonable regulatory purpose.” 28 27 *Id.* 28 *Id.* Under this proposed rule change, the NASD explains that the shareholders of broker-dealers who are not otherwise employed by the broker-dealer or engaged in the broker-dealer's business will be on notice that their names will be subject to release to the public if they meet the definition of Associated Person in NASD Rule 1011(b) and the Applicant appeals an adverse decision to the NAC. 29 The NASD states that shareholder status, alone, would not trigger disclosure under the proposed rule change. Rather, an individual or entity who is not registered with the NASD or otherwise engaged in the broker-dealer's business would meet the definition of Associated Person only if the individual or entity “directly or indirectly controls the applicant.” 30 The NASD states that the definition of Associated Person excludes passive investors who are not control persons of the broker-dealer, such as non-employee shareholders and shareholders who are otherwise not directly engaged in the broker-dealer's business. 31 29 *Id.* 30 *Id. See also* NASD Rule 1011(b). The Commission notes that a broker-dealer's information reported on Form BD (Uniform Application for Broker-Dealer Registration), which may include information about a person(s) who directly or indirectly controls the broker-dealer, is publicly available. 31 *Id.* The NASD represents that it would consider certain information concerning lenders of 5% or more of the Applicant's net capital in determining whether the Applicant meets all standards for admission, a change in ownership or control, or a material change in its business operations. *See id.* Finally, the NASD argues that information about control persons can be a critical part of its consideration of membership applications and applications in connection with a member's change of ownership, control or business operations. 32 The NASD believes that, in the interest of protecting investors and serving the public interest, when the NAC's decisions are based on information regarding an Applicant's control persons, public investors and current members should be allowed to review such information. 33 32 *Id.* 33 *Id.* IV. Discussion and Commission Findings The Commission has carefully reviewed the proposed rule change, as amended, the comment letters, and the NASD Response Letter, and finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities association 34 and, in particular, section 15A(b)(6) of the Act. 35 Section 15A(b)(6) requires, among other things, that the rules of a national securities association be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, and, in general, to protect investors and the public interest. The Commission finds that the proposal to amend IM-8310-2 to give NASD authority to release to the public information with respect to any decision issued by the NAC pursuant to NASD Rule 1015 is consistent with section 15A(b)(6) of the Act. The Commission believes that the proposal is reasonably designed to

(i)allow potential new NASD members and current members considering a change in ownership, control, or business operations to better understand the standards that must be met under NASD Rule 1014 or 1017, as the case may be, and the manner in which such standards are applied; and

(ii)afford the general public, including public investors, the opportunity to be better informed of the membership process and the rationale behind the NAC's decision-making, particularly with respect to those instances in which the NAC issues an adverse decision. 34 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). 35 15 U.S.C.78o-3(b)(6). Based on the NASD's representations, the Commission believes the proposed rule change will not unreasonably infringe on rights of privacy or confidentiality by permitting the NASD to publish detailed information with respect to decisions issued by the NAC. With regard to a commenter's assertions that the proposal will reveal to the public details concerning private transactions between private persons, the Commission believes that, after weighing the negative impact of public disclosure of such transactions against the positive impact of enhanced knowledge of the NASD standards of NASD Rules 1014 and 1017, the publication of NAC decisions would promote just and equitable principles of trade by allowing current NASD members, potential NASD members, and the general public equal access to, and a better understanding of, the specific application and interpretation of such standards. The Commission believes that public investors will benefit from the availability of information about any adverse decisions against Applicants and limitations placed on members, where such adverse decisions and limitations are a result of proceedings before the NAC, because the factors that are instrumental in the granting of membership or the expansion of business activities will be articulated in the decisions and made available to the public as a result of the proposed rule change. With respect to NAC decisions involving applications for NASD membership, reviewed pursuant to NASD Rule 1014, or applications for a change in ownership, control, or business operations, reviewed pursuant to NASD Rule 1017, the Commission further notes that access to such decisions would not only benefit future Applicants in the application process, but would also promote efficiency by deterring meritless appeals, and foster consistency by assisting the NASD in its review of such applications and serve as useful precedent for future NAC decisions. Finally, the Commission recognizes that the information contained in the NAC decisions is already subject to publication if an Applicant appeals an adverse NAC decision to the Commission because the Commission makes its decisions in such matters available to the public. The Commission believes that the public availability of such information furthers the goals outlined in section 15A(b)(6) of the Act by making more transparent NASD's rules and regulations, and promoting the coordination of an unimpeded flow of information that encourages a free and open market for investors and the general public. Regarding a commenter's assertion that the proposal permits the improper disclosure of non-employee shareholders of a broker-dealer not engaged in the management of such broker-dealer's business because such shareholders would be included within the definition of Associated Person in NASD Rule 1011(b), the Commission believes the NASD has adequately responded to this concern. 36 Additionally, as Amendment No. 1 to the proposed rule change clarifies, in the interest of protecting privacy, the NAC decisions will not routinely publish the names of persons who are not themselves under consideration or review as part of the application process. 37 Finally, the Commission believes that the proposed rule change furthers a legitimate regulatory purpose and does not implicate constitutional scrutiny or violate any cognizable federal or state statute related to the protection of confidentiality and privacy. 36 *See supra* notes 30-31 and accompanying text. 37 *See supra* note 7. With regard to all other issues raised by the commenters, the Commission is satisfied that the NASD has adequately and accurately addressed the commenters' concerns. V. Conclusion *It is therefore ordered* , pursuant to section 19(b)(2) of the Act 38 , that the proposed rule change (SR-NASD-2005-064) be, and it hereby is, approved, as amended. 38 15 U.S.C. 78s(b)(2). For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 39 39 17 CFR 200.30-3(a)(12). Jonathan G. Katz, Secretary. [FR Doc. E5-6096 Filed 11-2-05; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-52688; File No. SR-NYSE-2005-66] Self-Regulatory Organizations; New York Stock Exchange, Inc.; Notice of Filing of Proposed Rule Change and Amendment No. 1 Thereto To Amend Rule 460 (Specialists Participating in Contests) October 27, 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 29, 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, II and III below, which Items have been prepared by the NYSE. On October 25, 2005, the Exchange filed Amendment No. 1 to the proposed rule change. 3 The Commission is publishing this notice to solicit comments on the proposed rule change, as amended, from interested persons. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 In Amendment No. 1, the Exchange made clarifying changes to the text of the proposed rule change and non-substantive changes to the purpose section. I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The proposed rule change is an amendment to NYSE Rule 460 (Specialists Participating in Contests). The text of the proposed rule change is set forth below. Additions are in *italics.* Rule 460. Specialists Participating in Contests

(a)No member or his member organization or any other member, allied member, or approved person or officer or employee of the member organization shall participate in a proxy contest or a company if such member specializes in the stock of that company. Specialists as Directors

(b)No member or his member organization or any other member, allied member, or approved person in such member organization or officer or employee of the member organization shall be a director of a company if such member specializes in the stock of that company. * * * Supplementary Material: * * .10 Control relationships—Business transactions—Finder's Fees—No specialist or his member organization or any other member, allied member or approved person in such member organization or officer or employee thereof, individually or in the aggregate shall acquire directly or indirectly the beneficial ownership of more than 10% of the outstanding shares of any equity security in which the specialist is registered, unless such security is

(i)a convertible or derivative security, American Depositary Receipt, Global Depositary Receipt, or similar instrument, the conversion of which into common stock of the issuer would not result in a position in the common stock exceeding the 10% threshold;

(ii)an investment company unit or Trust Issued Receipt, the redemption of which would not result in a position, directly or indirectly, in any equity security in which the specialist is registered exceeding the 10% threshold; or

(iii)a security such as a currency warrant which trades in relationship to the value of that underlying currency or a security such as an index warrant which trades in relationship to the value of that underlying index. With respect to the securities specified in (iii), the specialist must obtain the permission of the Exchange to exceed the 10% threshold, and in no event may the specialist acquire directly or indirectly the beneficial ownership of more than 25% of the issue. This provision applies regardless of whether the beneficial ownership is acquired for investment, trading, or any other purpose. If the beneficial ownership of any or all of such persons reaches or exceeds 5% of the outstanding shares of any such security, the specialist or his organization shall promptly report this fact to the Market Surveillance Division. Any such person shall, at the request of the Market Surveillance Division, promptly take appropriate action either to dispose of such beneficial ownership or reduce or eliminate his interest in the specialist organization, as may be acceptable to the Exchange. No specialist or his member organization or any other member, allied member or approved person in such member organization or officer or employee thereof shall engage in any business transaction (including loans, etc.) with any company in whose stock the specialist is registered, or accept a finder's fee from such company; provided, however, that a specialist registered in a security issued by an investment company may purchase and redeem the listed security, or securities that can be subdivided or converted into the listed security, from the issuer as appropriate to facilitate the maintenance of a fair and orderly market in the subject security. This prohibition on business transactions shall not apply, however, to the receipt of routine business services, goods, materials, or insurance, on terms that would be generally available. .11 Definition of an Investment Company Unit—The term “Investment Company Unit” in paragraph .10 above shall be the same as that in Section 703.16 of the Listed Company Manual. .12 Definition of a Trust Issued Receipt—The term “Trust Issued Receipt” in paragraph .10 above shall be the same as that in Rule 1200. .20 The restrictions in paragraphs

(a)and .10 above shall not apply, except as provided herein, to an approved person entitled to an exemption from this Rule pursuant to Rule 98. The restriction on acquisition of 10% or more of the outstanding shares of any equity security in which an associated specialist is registered, as provided in Rule 460.10, shall apply to such approved person separate and distinct from the restriction as applied to any or all other persons specified in Rule 460.10, and positions of the approved person shall not be aggregated with the positions of any one or more other persons specified in Rule 460.10. The same principle applies with respect to the reporting of positions specified in Rule 460.10. An approved person entitled to an exemption from this Rule may engage in business transactions with a company in whose stock an associated specialist is registered, may accept a finder's fee from such company, and may act as an underwriter in any capacity for a distribution of securities issued by such company. *.25 The restrictions in paragraph* .10 above relating to business transactions between a specialist or his member organization or any other member, allied member or approved person in such member organization or officer or employee thereof shall not apply to Investment Company Units (as defined in paragraph 703.16 of the Exchange's Listed Company Manual), Trust Issued Receipts (defined in NYSE Rule 1200), and derivative instruments based on one or more securities, currencies or commodities (collectively referred to as Exchange-Traded Funds or “ETFs”), if the following conditions are met: *(i) The specialist or his member organization or any other member, allied member or approved person in such member organization or officer or employee thereof only enters into the business transaction with the sponsor of the ETF and the sponsor is not involved in the day-to-day administration of the ETF; and* *(ii) Any fee or other compensation in connection with the business transaction paid to the specialist or his member organization or any other member, allied member or approved person in such member organization or officer or employee thereof must not be dependent on the trading price or daily trading volume of the ETF; and* *(iii) The specialist or his member organization or any other member, allied member or approved person in such member organization or officer or employee thereof must notify and provide a full description to the Exchange of any business transaction or relationship, except those of a routine and generally available nature as described in paragraph .10 above, it may have with any sponsor of an ETF that he or it is registered as specialist in.* (Remainder of rule unchanged.) 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 NYSE 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 NYSE Rule 460.10, in part, restricts a specialist or his member organization or any other member, allied member or approved person in such member organization or officer or employee thereof, not entitled to a NYSE Rule 98 exemption, from engaging in: “Any business transaction (including loans, etc.) with any company in whose stock the specialist is registered * * * This prohibition on business transactions shall not apply, however, to the receipt of routine business services, goods, materials, or insurance, on terms that would be generally available.” The rule is intended to ensure that specialists and their affiliates do not enter into a material business relationship with an issuer in whose security the specialist is registered, such that the specialist's or affiliate's status may create conflicts of interest with respect to the specialist's affirmative and negative obligations to maintain a fair and orderly market in the security. Currently, NYSE Rule 460.20 provides exemptions from NYSE Rule 460(a) and .10 to an approved person entitled to a NYSE Rule 98 exemption with respect to business transactions with issuers. This is because the functional separation required by NYSE Rule 98 eliminates the conflict of interest concern. The Exchange proposes to add an exemption, in a new section, .25, from the restriction on business transactions between a specialist or his member organization or any other member, allied member or approved person in such member organization or officer or employee thereof and the sponsor of any Exchange Traded Funds (“ETFs”) in which the specialist is registered. For purposes of the proposed rule, ETFs are Investment Company Units (defined in paragraph 703.16 of the Exchange's Listed Company Manual), Trust Issued Receipts, such as HOLDRs (defined in NYSE Rule 1200), and derivative instruments based on one or more securities, currencies or commodities. Since ETFs are based on derivatives or indices representing multiple securities, or a single commodity or currency, and the specialist registered to that ETF is not a market maker in any of the underlying component securities, commodities or currencies, 4 the Exchange believes that any potential for conflicts which might have an undue influence or impact on the ETF trading price is removed. The ETF trading price is generally only a reflection of the price changes of the different base vehicle or vehicles trading elsewhere and perhaps trading on a different exchange or market. 4 Exchange member organizations registered as specialists in ETFs are separate member organizations from those registered as specialists in underlying equities. (NYSE Rule 103B.VIII). The word “underlying” and the rule citation appearing in the preceding sentence were added by telephone conference between David Matta, Principal Rule Counsel, N, and David L. Orlic, Attorney, Division of Market Regulation, Commission, on October 27, 2005. The proposed rule would allow business transactions between a specialist or his member organization or any other member, allied member or approved person in such member organization or officer or employee thereof and the sponsor of the ETF. Generally, the sponsor of an ETF is responsible for establishing the trust that issues the ETF shares, the registration of the ETF shares with the Commission, and the filing of required periodic reports. The trustee is responsible for the day-to-day administration of the trust, including keeping the trust's operational records. While the sponsor generally oversees the performance of the trustee and the trust's principal service providers, it does not exercise day-to-day oversight over the trustee or such service providers. The amended rule will provide that any fee or other compensation paid in connection with the business transaction to a specialist or his member organization or any other member, allied member or approved person in such member organization or officer or employee thereof not have any relationship to the trading price or daily trading volume of the ETF. This will further diminish any potential ability for a specialist or his member organization or any other member, allied member or approved person in such member organization or officer or employee thereof to unduly influence trading for its own benefit, and further diminish any incentive for any such person to compromise its specialist obligations in maintaining fair and orderly markets. It is also designed to prevent the ETF sponsor from unduly influencing its specialist or his member organization or any other member, allied member or approved person in such member organization or officer or employee thereof. Finally, a specialist or his member organization or any other member, allied member or approved person in such member organization or officer or employee thereof must notify and provide a full description to the Exchange of any business transaction or relationship, except those of a routine and generally available nature as described in NYSE Rule 460.10, it may have with any sponsor of an ETF in which it is registered as a specialist. 2. Statutory Basis The Exchange believes that the proposal is consistent with Section 6(b) 5 of the Act, in general, and Section 6(b)(5) 6 of the Act, in particular, in that it is designed to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system and, in general, to protect investors and the public interest. 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 The Exchange did not solicit or receive any written comments with respect to the proposed rule change. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Within 35 days of the date of publication of this notice in the **Federal Register** or within such longer period

(i)as the Commission may designate up to 90 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding or

(ii)as to which the self-regulatory organization consents, the Commission will: A. by order approve 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 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-2005-66 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-2005-66. 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-NYSE-2005-66 and should be submitted on or before November 25, 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. E5-6091 Filed 11-2-05; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-52696; File No. SR-NYSE-2005-35] Self-Regulatory Organizations; New York Stock Exchange, Inc.; Order Approving a Proposed Rule Change Relating to Changes to Listed Company Manual Section 902.00 Regarding Listing Fees October 28, 2005. I. Introduction On May 18, 2005, the New York Stock Exchange, Inc. (“NYSE” or “Exchange”) 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 proposal to amend the current fee chapter set out in sections 902.01 to 902.04 of the Listed Company Manual (“Manual”) and reorganize the relevant sections of the Manual into a format setting out fees by type of listed security. The proposed rule change was published for comment in the **Federal Register** on September 23, 2005. 3 The Commission received no comments regarding the proposal. This order approves the proposed rule change. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 *See* Securities Exchange Act Release No. 52463 (September 16, 2005), 70 FR 55933. The filing proposes to amend and to reorganize the current listing fees chapter set forth in section 902.00 through section 902.04 of the Manual. Among other things, the Exchange proposes to decrease the current total issuer per annum fee cap by 50% from $1 million to $500,000, with certain exceptions. In addition, the Exchange proposes reducing the Listing Fee schedule to three tiers instead of the current four-tier structure. The Exchange also proposes to set forth Listing Fees for all types of securities as per share numbers instead of the current per million share approach and specify the fees applicable to tracking stocks. The Exchange further proposes to decrease the Listing Fee cap for shares issued in conjunction with stock splits by 40% to $150,000 per stock split and eliminate the three year cap on stock splits as well as apply the $150,000 fee cap to stock dividends. The Exchange also proposes increasing the current minimum application fee in certain situations; increasing the current minimum application fee for the authorization of a subsequent application to list additional securities or another class of equity securities, or to make changes (such as a change in the name or par value) applicable to issuers that list equity securities; increasing the special charge that is applied when a company first lists a class of common stock; and eliminating the current application fee applicable to processing minor amendments to previously filed applications. With respect to annual listing fees, the Exchange proposes increasing the current minimum annual fee payable on a common stock or a preferred-only listing from $35,000 to $38,000; clarifying that the annual fee for each class of equity security listed is equal to the greater of the minimum fee or the fee calculated on a per share basis of $0.00093; and clearly setting out the minimum and per share rates applicable to each type of listed security. Finally, the Exchange is proposing to make a number of changes and clarifications to its current billing policies. The Commission finds that the proposed rule change 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(b)(5) of the Act, 5 which requires, among other things, that the rules of a national securities exchange be 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. 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(b)(5). The Commission believes that the reorganization of the current fee chapter set out in sections 902.01 to 902.04 of the Listed Company Manual will make those sections clearer, more concise, and easier to use. Guidelines on how fees are calculated as well as numerical examples in each section provide appropriate clarification, where necessary. Further, the Commission believes that the modifications to the Listing Fee schedule simplifies the fee structure for its members. While certain companies may pay higher listing fees than under the current fee schedule, the fee schedule overall is consistent with the Exchange's recent revisions to their fees generally. 6 6 *See, e.g.* Securities Exchange Act Release No. 49414 (March 12, 2004), 69 FR 13078 (March 19, 2004). IV. Conclusion *It is therefore ordered,* pursuant to section 19(b)(2) of the Act, 7 that the proposed rule change (SR-NYSE-2005-35) is approved. 7 15 U.S.C. 78s(b)(2). 8 17 CFR 200.30-3(a)(12). For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 8 Jonathan G. Katz, Secretary. [FR Doc. E5-6092 Filed 11-2-05; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-52685; File No. SR-NYSE-2005-17] Self-Regulatory Organizations; New York Stock Exchange, Inc.; Notice of Filing of Proposed Rule Change and Amendment Nos. 1 and 2 Thereto To Amend NYSE Rule 472 (“Communications With the Public”) October 26, 2005. Pursuant to Section 19(b)(1) 1 of the Securities Exchange Act of 1934 (the “Exchange Act”), 2 and Rule 19b-4 thereunder, 3 notice is hereby given that on February 15, 2005, the New York Stock Exchange, Inc. (“NYSE” or the “Exchange”) filed with the Securities and Exchange Commission (“SEC” or the “Commission”) the proposed rule change as described in Items I, II, and III below, which Items have been prepared by the Exchange. On August 12, 2005, the NYSE submitted Amendment No. 1 to the proposed rule change. 4 On October 19, 2005, the NYSE submitted Amendment No. 2 to the proposed rule change. 5 The Commission is publishing this notice to solicit comments on the proposed rule change, as amended, from interested persons. 1 15 U.S.C. 78s(b)(1). 2 15 U.S.C. 78a. 3 17 CFR 240.19b-4. 4 Amendment No. 1 clarifies the proposal and includes additional information on the use of the term “Qualified Investor.” 5 Amendment No. 2 to the proposed rule change makes a technical amendment to the filing. I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange is filing with the Commission a proposed amendment to NYSE Rule 472, which will exempt certain communications with the public from the pre-use review and approval requirement. Below is the text of the proposed rule change. Proposed new language is *italicized* ; proposed deletions are in [brackets]. Rule 472 Communications With the Public Approval of Communications and Research Reports (a)(1) *Except for institutional sales material* , [E] *e* ach advertisement[,] *and* market letter, *and all* sales literature or other similar type of communication which is generally distributed or made available by a member or member organization to customers or the public must be approved in advance by a member, allied member, supervisory analyst, or qualified person designated under the provisions of Rule 342(b)(1). *All communications with the public are subject to the standards set forth under Rule 342.17.* *(2)(A) Written policies and procedures relating to institutional sales material are required. Such policies and procedures must include a risk-based system to conduct “spot-check” reviews of institutional sales material, prior to distribution or within a reasonable period of time thereafter, for compliance with Rule 472. Factors to be considered in conducting such risk-based reviews must include, at minimum, i) the source of the material (i.e., the department from which the material originates); ii) the functions and responsibilities of persons producing the material; iii) the quantity of material produced per person; iv) the disciplinary history of persons producing the material; v) the content of the material; and vi) the formatting of the material.* *(B) The materials selected must be reviewed to determine, at minimum: i) Whether they qualify as institutional sales material pursuant to Rule 472 Supplementary Material .10(6); ii) whether the material gives rise to any conflicts of interest; and iii) whether the material complies with the content standards of Rule 472(i).* [(2)] ( *3* ) Research reports must be prepared or approved, in advance, by a supervisory analyst acceptable to the Exchange under the provisions of Rule 344. Where a supervisory analyst does not have technical expertise in a particular product area, the basic analysis contained in such report may be co-approved by a product specialist designated by the organization. In the event that the member organization has no principal or employee qualified with the Exchange to approve such material, it must be approved by a qualified supervisory analyst in another member organization by arrangement between the two member organizations. (b)(1) through (k)(3) UNCHANGED Supplementary Material: * * * .10 Definitions

(1)Communication—The term “Communication” is deemed to include, but is not limited to advertisements, market letters, research reports, sales literature, electronic communications, communications in and with the press and wires and memoranda to branch offices or correspondent firms which are shown or distributed to customers or the public.

(2)Research Report—“Research report” is generally defined as a written or electronic communication which includes an analysis of equity securities of individual companies or industries, and provides information reasonably sufficient upon which to base an investment decision. For purposes of approval by a supervisory analyst pursuant to Rule 472(a)[(2)] *(3)* , the term research report includes but is not limited to, a report which recommends equity securities, derivatives of such securities, including options, debt and other types of fixed income securities, single stock futures products, and other investment vehicles subject to market risk.

(3)Advertisement—“Advertisement” is defined to include, but is not limited to, any sales communications that is published, or designed for use in any print, electronic or other public media such as newspapers, periodicals, magazines, radio, television, telephone recordings, web sites, motion pictures, audio or video device, telecommunications device, billboards or signs.

(4)Market Letters—“Market Letters” are defined as, but are not limited to, any written comments on market conditions, individual securities, or other investment vehicles that are not defined as research reports. They also may include “follow-ups” to research reports and articles prepared by members or member organizations which appear in newspapers and periodicals.

(5)Sales literature—“Sales literature” is defined as, but is not limited to, written or electronic communications including, but not limited to, telemarketing scripts, performance reports or summaries, form letters, seminar texts, and press releases discussing or promoting the products, services, and facilities offered by a member or member organization, the role of investment in an individual's overall financial plan, or other material calling attention to any other communication. *(6) Institutional Sales Material—For purposes of Rule 472, the term “institutional sales material” includes any communication, other than “research reports” and “advertisements” as those terms are defined in Supplementary Material section .10

(2)and .10(3) respectively, that is distributed or made available only to “Qualified Investors” as defined in section 3(a)(54) of the Securities Exchange Act of 1934, as amended. A member or member organization may not treat a communication as having been distributed or made available only to Qualified Investors if such member or member organization has reason to believe that the communication, or any excerpt thereof, will be forwarded or made available to any person other than a Qualified Investor.* .20 through .120 UNCHANGED 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 Exchange is proposing an amendment to NYSE Rule 472, which will exempt certain communications with the public provided to institutional investors from the pre-use review and approval requirement. Exchange Rule 472 (“Communications with the Public”) prescribes supervisory standards for several types of communications. It currently requires that all market letters, advertisements, sales literature and similar communications be approved in advance by a member, allied member, supervisory analyst, or qualified person designated under the provisions of NYSE Rule 342(b)(1). Communications deemed to be research reports must be prepared or approved, in advance, by a supervisory analyst acceptable to the Exchange under the provisions of NYSE Rule 344 (“Research Analysts and Supervisory Analysts”) (see NYSE Rule 472.10 for definitions of types of communications). The proposed amendment would exempt communications, except advertising and research reports, from prior-approval requirements if they are directed only to “Qualified Investors,” as that term is defined under Section 3(a)(54) 6 of the Exchange Act. The exempted communications are defined as “institutional sales material.” 6 15 U.S.C. 78c(a)(54). According to the NYSE, the Qualified Investor standard was chosen because it is an established definition, readily recognized in the securities industry, that encompasses what are generally understood to be “sophisticated” investors. 7 Although it includes certain individuals (natural persons), they are subject to a higher financial standard (any natural person who owns and invests on a discretionary basis, not less than $25,000,000 in investments) than an “Accredited Investor” (natural persons with net worth of $1,000,000 or $200,000 annual income) defined under Rules 215(e) and

(f)8 of the Securities Act of 1933 (the “Securities Act”) 9 or a “Qualified Purchaser” (natural person who owns not less than $5,000,000 in investments) under Section 2(a)(51) the Investment Company Act of 1940. 10 7 Exchange Act Section 3(a)(54) expressly defines the term “qualified investor,” and provides authority to the Commission by rule or order to expand the definition to include any other person, taking into consideration such factors as the person's financial sophistication, net worth, and knowledge and experience in financial matters. Subsection

(xi)of Section 3(a)(54)(A) provides that “any corporation, company, or partnership that owns and invests on a discretionary basis, not less than $25,000,000 in investments” is a qualified investor. The Commission interpreted the term “company” as used in this subsection to have a broad meaning that encompasses any other type of entity not otherwise specifically listed in Section 3(a)(54). In addition, subsection

(v)of Section 3(a)(54)(A) includes certain employee benefit plans within the definition of “qualified investor.” The Commission clarified that any State sponsored employee benefit plan, or any other employee benefit plan, within the meaning of the Employee Retirement Income Security Act of 1974, other than an individual retirement account, qualifies only if the investment decisions are made by a plan fiduciary, as defined in Section 3(21) of that Act, which is either a bank, savings and loan association, insurance company, or registered investment adviser. Section 3(a)(54) expressly limited the definition of “qualified investor” to these types of employee benefit plans, and the Commission's interpretation does not cover other types of employee benefit plans. See Release No. 47364 (February 13, 2003), 68 FR 8686 (Feb. 24, 2003). 8 17 CFR 230.215(e) and (f). 9 15 U.S.C. 77a. 10 15 U.S.C. 80a-2(a)(51). According to the NYSE, the rationale for the proposed amendment is based on the fact that the types of communications to be exempted from pre-use review (primarily trader commentary, market “color” comments, and other spontaneous market-related communications) are provided as an ongoing, time-sensitive service to sophisticated investors. The NYSE believes that these types of communications are generally understood by such investors to be of-the-moment commentary, not to be confused with formalized, detailed, and prescriptive materials that would rise to the level of research. The NYSE notes that the following types of communications are illustrative of exempted communications (neither advertising nor research) addressed by the proposed amendment: 11 11 *See* Joint Memorandum of NASD and the New York Stock Exchange (NYSE Information Memo Nos. 02-26, dated June 26, 2002 and 04-10, dated March 9, 2004). • Summaries of, or commentary on economic, political or market conditions that do not recommend or rate individual securities. • Notices of ratings or price target changes that do not contain any narrative discussion or analysis of the company, provided that the member or member organization simultaneously directs the readers of the notice as to where they may obtain the most recent research report on the subject company (such report would be subject to pre-distribution approval and would include disclosures required by NYSE Rule 472, including “conflicts of interest” disclosures). • Information conveyed by trading desk representatives who evaluate and analyze trading conditions for the market as a whole or for particular market sectors. Such communications may include risk arbitrage opportunities such as the near-simultaneous buying and selling of the same or similar securities in different markets to profit on market price differentials. According to the NYSE, generally speaking, in order for the foregoing information to be effective it must be conveyed in a timely manner. Accordingly, virtually all such information is transmitted electronically. The NYSE believes that requiring item-by-item pre-use review undercuts the value that timeliness imparts to such communications. Further, the NYSE notes that given that the exempted materials do not provide information reasonably sufficient upon which to base an investment decision (in which case, they would be deemed research) a prior-approval requirement is unwarranted in light of the sophistication and financial wherewithal of the recipients. According to the NYSE, it is also noted that, unlike research analysts, the preparers ( *e.g.* , trading desk personnel) of these types of communications are not generally subject to the same risk of pressure from investment bankers that could bias or compromise the integrity of the material. Accordingly, the NYSE notes that research reports, which require disclosure of such potential conflicts of interest, remain subject to pre-use review and approval by a supervisory analyst, and include all potential conflict of interest disclosures required by NYSE Rule 472. According to the NYSE, the proposed amendment recognizes an essential distinction, reflected in federal securities laws, between protections afforded retail investors and certain designated institutional/sophisticated investors. In this regard, the NYSE believes that many of the disclosure/review requirements in connection with the registration, sale, and/or re-sale of securities to the public, are not statutorily required when such offerings do not involve a public offering ( *e.g.* , private placements made in accordance with Regulation D 12 under the Securities Act) or are limited to institutional investors ( *e.g.* , re-sales made in accordance with Rules 144 13 and 144A 14 under the Securities Act). NYSE believes that the proposed amendment also recognizes a similar distinction found in the rules of other self-regulatory organizations. 15 12 17 CFR 230.501-508. 13 17 CFR 230.144. 14 17 CFR 230.144A. 15 The Securities and Exchange Commission approved amendments to NASD Rule 2210 and approved new Rule 2211 which, inter alia, exclude all communications to institutional investors from NASD member pre-use approval, from NASD filing requirements, and from many of NASD's content standards. *See* Release No. 34-47820 (May 9, 2003), 68 FR 27116 (May 19, 2003) (SR-NASD-00-12). According to the NYSE, as a safeguard, the proposed amendment makes clear that “institutional sales materials” ( *i.e.* , those sales materials other than advertisements and research) remain fully subject to supervisory requirements prescribed by NYSE Rule 342.17 which include: Appropriate written policies and procedures; provision for the education and training of employees with respect to such policies and procedures; documentation of such education and training; and surveillance and follow-up to ensure that such policies and procedures are implemented and adhered to. Also, notwithstanding the proposed exemptions, the NYSE believes that all communications remain subject to the general standards for all communications under NYSE Rule 472(i) which prohibit: Any untrue statement or omission of a material fact; a statement that is false or misleading; promises of specific results; exaggerated or unwarranted claims; opinions for which there is no reasonable basis; and projections or forecasts of future events which are not clearly labeled as forecasts. The proposed amendment further requires written policies and procedures relating to institutional sales material that include a risk-based system to conduct “spot-check” reviews of such material, prior to distribution or within a reasonable period of time thereafter, for compliance with NYSE Rule 472. According to the NYSE, factors to be considered in conducting a risk-based review of institutional sales material must include, at minimum:

(1)The source of the material ( *i.e.* , the department from which the material originates to identify possible inter-departmental conflicts of interest); 16 16 *See* NYSE Information Memo No. 91-22, dated June 28, 1991 for joint NYSE/NASD guidance on “Chinese Wall” policies and procedures with respect to material, non-public information.

(2)The functions and responsibilities of persons producing the material (to identify persons with access to sensitive information);

(3)The quantity of material produced per person (to concentrate on those persons issuing the most material);

(4)The disciplinary history of persons producing the material (a disciplinary history might warrant pre-use review, or other regulatory action in some instances);

(5)The content and formatting of the material, to determine whether it qualifies for post-distribution review as institutional sales material under NYSE Rule 472 Supplementary Material .10(6) ( *i.e.* , to determine that it is not research or advertising), and to review for conflicts of interest ( *e.g.* , recommendations of securities in which the author or the firm holds a proprietary position); and

(6)Whether the material complies with the content standards of NYSE Rule 472(i). In sum, the Exchange believes the proposed amendment would expedite the transmission of time-sensitive market materials to sophisticated customers, while retaining appropriate supervisory controls, follow-up, and review. It is also proposed that paragraph 472(a)(2) be repositioned and renumbered 472(a)(3) and that the reference to this paragraph in 472.10(2) be likewise amended to reflect the change. The NYSE believes that these are non-substantive amendments.

(2)Statutory Basis The statutory basis for this proposed rule change is Section 6(b)(5) of the Exchange Act 17 which requires, among other things, that the rules of the Exchange be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, and in general to protect investors and the public interests. The proposed rule is consistent with this section in that it would expedite transmission of time sensitive communication to sophisticated investors while retaining appropriate controls, follow-up, and review of such materials and persons. 17 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 not necessary or appropriate in furtherance of the purposes of the Exchange Act. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others The Exchange has neither solicited nor received written comments on the proposed rule change. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Within 35 days of the date of publication of this notice in the **Federal Register** or within such longer period

(i)as the Commission may designate up to 90 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding, or

(ii)as to which the Exchange consents, the Commission:

(a)By order approve such proposed rule change, or

(b)Institute proceedings to determine whether the proposed rule change should be disapproved. IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, 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 e-mail to *rule-comments@sec.gov* . Please include File Number SR-NYSE-2005-17 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-NYSE-2005-17. 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-2005-17 and should be submitted on or before November 25, 2005. 18 17 CFR 200.30-3(a)(12). For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 18 Jonathan G. Katz, Secretary. [FR Doc. E5-6094 Filed 11-2-05; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-52672; File No. SR-PCX-2005-121] Self-Regulatory Organizations; Pacific Exchange, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Add to Its Current Revenue Sharing Program an Opportunity To Share in ETP Operating Revenue for Cross Orders in Tape C Securities October 25, 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 October 21, 2005, the Pacific Exchange, Inc. (“PCX” or “Exchange”), through its wholly owned subsidiary, PCX Equities, Inc. (“PCXE”), 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) 4 thereunder, 5 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). 5 The Exchange provided the Commission with written notice of its intention to file this proposed rule change on September 9, 2005. *See* Rule 19b-4(f)(6), 17 CFR 240.19b-4(f)(6). I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to amend its rules governing the Archipelago Exchange (“ArcaEx”), the equities trading facility of PCXE. With this proposed rule change, the Exchange proposes to add to its current revenue sharing program an opportunity to share in ETP Operating Revenue for Cross Orders 6 in Tape C securities. The text of the proposed rule change is available at the PCX's Web site ( *http://www.pacificex.com* ), at the PCX's principal office, and at the Commission's Public Reference Room. 6 *See* PCXE Rule 7.31 for Cross Order definitions. 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 its proposal 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. PCX 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 proposes to modify the current ArcaEx revenue sharing program applicable to Cross Orders executed in ArcaEx Tape C securities. The Exchange proposes to add language to the ArcaEx fee schedule describing the new ETP Operating Revenue sharing program. The proposal is similar to revenue sharing programs currently in place at the Nasdaq Stock Market and the National Stock Exchange, 7 although it will be a more narrow application of such programs because it is limited to Cross Orders. 7 *See* Securities Exchange Act Release Nos. 48303 (August 8, 2003), 68 FR 48654 (August 14, 2003) and 46688 (October 18, 2002), 67 FR 65816 (October 28, 2002). The NSX program includes book fees and technology fees, and the Nasdaq program includes technology fees. ArcaEx does not charge technology fees or book fees, and as such, these fees are not included in the proposed calculation of ETP Operating Revenue, *infra.* Under the proposal, ETP Holders would be eligible to share in ETP Operating Revenue (“ETPOR”) associated with Cross Orders in Tape C securities. Specifically, ETPOR is defined as operating revenue that is generated by ETP Holders and consists of transaction fees and market data revenue that is attributable to ETP Holders' Cross Order executions. ETPOR shall not include any investment income or regulatory monies. The sharing of ETPOR shall be based on each ETP Holder's pro rata contribution to ETPOR and the amount shared shall not exceed ETPOR. Under the proposal, PCX's Board of Directors would have the authority to determine the appropriate amount of ETPOR to be shared with ETP Holders. In making this determination, the Board would balance the objective of sharing a meaningful percentage of ETPOR with the objective of maintaining ArcaEx's financial integrity. 8 Such payments would be made quarterly after ArcaEx has accounted for operating expenses and working capital contributions. ArcaEx proposes to implement such changes effective November 1, 2005. 8 Regulatory fees are currently separately allocated to PCX and as such, ArcaEx will not compromise funds that would be used for regulatory responsibilities. A specific example of how the proposal would be implemented follows. First, the number of cross order executions in Tape C securities would be determined by ETP Holder for the quarter. Second, transaction fees and market data revenue (ETPOR) associated with such executions would be calculated. Third, PCX's Board of Directors would determine what percentage of ETPOR would be shared with ETP Holders. Fourth, that percentage would be allocated on a pro rata basis to ETP Holders based on their relative number of cross order executions in Tape C securities. The rationale for these changes is to reduce the costs incurred by ETP Holders in executing Cross Orders on ArcaEx and to make the pricing for executions on the ArcaEx more competitive. The Exchange evaluated the economics of modifying its current revenue sharing program and determined that is [ *sic* ] was feasible and appropriate, given the costs involved and competitive concerns. 2. Statutory Basis The Exchange believes that the proposed rule change is consistent with Section 6(b) 9 of the Act, in general, and furthers the objectives of Section 6(b)(5), 10 in particular, because it is designed to facilitate transactions in securities, to promote just and equitable principles of trade, to enhance competition, and to protect investors and the public interest. 9 15 U.S.C. 78f(b). 10 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 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, it has become effective pursuant to Section 19(b)(3)(A) of the Act 11 and Rule 19b-4(f)(6) thereunder. 12 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. 11 15 U.S.C. 78s(b)(3)(A). 12 17 CFR 240.19b-4(f)(6). The PCX has asked the Commission to waive the 30-day operative delay. The Commission believes waiving the 30-day operative delay is consistent with the protection of investors and the public interest. Such waiver will allow the PCX to implement competitive pricing of ArcaEx Cross Orders in Tape C securities. For these reasons, the Commission designates the proposal to be effective and operative upon filing with the Commission. 13 13 For purposes only of waiving the 30-day operative delay, the Commission has considered the proposed rule's impact on efficiency, competition, and capital formation. *See* 15 U.S.C. 78c(f). 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-2005-121 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-2005-121. 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 PCX. 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-2005-121 and should be submitted on or before November 25, 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. E5-6083 Filed 11-2-05; 8:45 am] BILLING CODE 8010-01-P SMALL BUSINESS ADMINISTRATION [Disaster Declaration # 10222 and # 10223] Florida Disaster # FL-00011 AGENCY: Small Business Administration. ACTION: Notice. SUMMARY: This is a Notice of the Presidential declaration of a major disaster for the State of Florida (FEMA-1609-DR), dated October 24, 2005. *Incident:* Hurricane Wilma. *Incident Period:* October 23, 2005 and continuing. *Effective Date:* October 24, 2005. *Physical Loan Application Deadline Date:* December 23, 2005. *EIDL Loan Application Deadline Date:* July 24, 2006. ADDRESSES: Submit completed loan applications to: U.S. Small Business Administration, National Processing and Disbursement Center, 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 October 24, 2005, applications for disaster loans may be filed 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: Collier, Lee, and Monroe. Contiguous Counties: Florida: Broward, Charlotte, Glades, Hendry, and Miami-Dade. The Interest Rates are: Percent Homeowners with Credit Available Elsewhere 5.375 Homeowners without Credit Available Elsewhere 2.687 Businesses with Credit Available Elsewhere 6.557 Businesses & Small Agricultural Cooperatives without Credit Available Elsewhere 4.000 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 102228 and for economic injury is 102230. (Catalog of Federal Domestic Assistance Numbers 59002 and 59008) Herbert L. Mitchell, Associate Administrator for Disaster Assistance. [FR Doc. 05-21956 Filed 11-2-05; 8:45 am]

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