[Federal Register: July 20, 2009 (Volume 74, Number 137)]
[Notices]
[Page 35220-35221]
[DOCID:fr20jy09-88]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-60305; File No. SR-NYSE-2009-66]

Self-Regulatory Organizations; Notice of Filing and Immediate
Effectiveness of Proposed Rule Change by New York Stock Exchange LLC To
Lower Its Market Capitalization Continued Listing Standard

July 14, 2009.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Exchange Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby
given that on July 2, 2009, New York Stock Exchange, LLC (the ``NYSE''
or the ``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II below, which Items have been prepared by the Exchange. The Exchange
has designated this proposal eligible for immediate effectiveness
pursuant to Rule 19b-4(f)(6) \3\ under the Exchange Act. The Commission
is publishing this notice to solicit comments on the proposed rule
change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to permanently lower its market
capitalization continued listing standard set forth in Section 802.01B
of the Exchange's Listed Company Manual (the ``Manual'') from $25
million to $15 million. The text of the proposed rule change is
available on the Exchange's Web site (http://www.nyse.com), at the
Exchange's Office of the Secretary and at the Commission's Public
Reference room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the self-regulatory organization
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
Statutory Basis for, the Proposed Rule Change

1. Purpose
    In response to the unusual market conditions over the last twelve
months, the Exchange previously adopted a policy (by means of an
immediately effective rule filing \4\) providing that, through April
22, 2009, its average global market capitalization continued listing
standard will apply only to companies (including limited partnerships
and real estate investment trusts (``REITs'')) whose average global
market capitalization over a consecutive 30 trading-day period falls
below $15 million.\5\ In a subsequent filing, the Exchange extended the
period for which it temporarily lowered its market capitalization
continued listing standard, so that the lower standard is currently in
place through June 30, 2009.\6\ The Exchange now proposes to make
permanent this lowering of its market capitalization continued listing
standard (including as it applies to limited partnerships and REITs).
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    \4\ See Securities Exchange Act Release No. 59299 (January 27,
2009), 74 FR 5709 (January 30, 2009) (SR-NYSE-2009-06).
    \5\ Section 802.01B of the Manual provides that the Exchange
will promptly delist any company (including limited partnerships and
REITs) if it is determined that the company has an average global
market capitalization over a consecutive 30 trading-day period of
less than $25 million, regardless of the original listing standard
under which it listed. A company is not eligible to utilize the cure
procedures set forth in Sections 802.02 and 802.03 with respect to
this criterion and instead is immediately subject to the Exchange's
delisting procedures set forth in Section 804 of the Manual.
    \6\ See Securities Exchange Act Release No. 59510 (March 4,
2009), 74 FR 10636 (March 11, 2009) (SR-NYSE-2009-21).
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    The Exchange notes that it adopted its $25 million average global
market capitalization requirement as recently as 2004--at a time when
stock prices were far higher than they are currently--and that the
requirement prior to that date was $15 million.\7\ In addition, the
temporary lowering of the standard through June 30, 2009, has provided
the Exchange with more recent experience with the continued listing of
companies whose average global market capitalization exceeds $15
million but is lower than $25 million. This experience has made the
Exchange comfortable allowing the continued listing of companies that
have a market capitalization above $15 million but below $25 million,
because the Exchange's experience has been that, where these companies
are otherwise in compliance with all of the Exchange's other
qualitative and quantitative continued listing standards, they remain
viable enterprises and suitable for auction market trading. The
Exchange also notes that, unlike with the Exchange's other quantitative
listing standards, Section 802.01B does not provide companies with any
period of time to take steps to attempt to regain compliance with the
standard. The Exchange further notes that its continued listing
standards after permanent adoption of the $15 million market
capitalization continued listing standard will continue to be at least
as stringent as those of any other national securities exchange.
Consequently, the Exchange believes that the proposed amendment is
consistent with the protection of investors and the public interest and
does not raise any novel regulatory issues. In addition, the proposed
amendment does not affect the status of NYSE listed securities under
Securities Exchange Act Rule 3a51-1(a) (the ``Penny Stock Rule''),\8\\\
as the Exchange's initial listing standards satisfy the requirements of
Rule 3a51-1(a)(2)(i) \9\ and the continued listing standards as amended
are reasonably related to those initial listing standards, as required
by 3a51-1(a)(2)(ii).\10\ In particular, the $15 million market
capitalization continued listing standard is reasonably related to (i)
the market value of listed securities of $50 million for 90 consecutive
days prior to applying for listing initial listing requirement of Rule
3a51-1(a)(2)(i)(A)(2) \11\ and (ii) the market value of listed
securities of $50 million initial listing requirement of Rule 3a51-
1(a)(2)(i)(B).\12\
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    \7\ See Securities Exchange Act Release No. 49154 (January 29,
2004), 69 FR 5633 (February 5, 2004) (SR-NYSE-2003-43).
    \8\ 17 CFR 240.a51-1(a). [sic]
    \9\ 17 CFR 240.a51-1(a)(2)(i). [sic]
    \10\ 17 CFR 240.a51-1(a)(2)(ii). [sic]
    \11\ 3a51-1(a)(2)(i)(A)(2). [sic]
    \12\ Rule 3a51-1(a)(2)(i)(B).
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with Section 6(b) \13\ of the Securities Exchange Act of 1934 (the
``Act''),\14\ in general, and furthers the objectives of Section
6(b)(5) \15\ 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. The NYSE's continued listing
requirements as amended by the proposed rule change remain at least as
stringent as those of any other national securities exchange and,
consequently, the proposed amendment is consistent with the protection
of investors and the public interest.
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    \13\ 15 U.S.C. 78f(b).
    \14\ See 15 U.S.C. 78a.
    \15\ 15 U.S.C. 78f(b)(5).
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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 Exchange 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

    Because the proposed rule change: (i) Does not significantly affect
the protection of investors or the public interest; (ii) does not
impose any significant burden on competition; and (iii) does not become
operative for 30 days after the date of the filing, or such shorter
time as the Commission may designate if consistent with the protection
of investors and the public interest, the proposed rule change has
become effective pursuant to Section 19(b)(3)(A) of the Act \16\ and
Rule 19b-4(f)(6) thereunder.\17\
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    \16\ 15 U.S.C. 78s(b)(3)(A).
    \17\ 17 CFR 240.19b-4(f)(6). Pursuant to Rule 19b-4(f)(6)(iii)
under the Act, the Exchange is required to give the Commission
written notice of its intent to file the proposed rule change, along
with a brief description and text of the proposed rule change, at
least five business days prior to the date of filing of the proposed
rule change, or such shorter time as designated by the Commission.
The Commission has determined to waive this requirement.
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    A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the
Act \18\ normally does not become operative for 30 days after the date
of its filing. However, Rule 19b-4(f)(6)(iii) \19\ permits the
Commission to designate a shorter time if such action is consistent
with the protection of investors and the public interest. The Exchange
has requested that the Commission waive the 30-day operative delay.
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    \18\ 17 CFR 240.19b-4(f)(6).
    \19\ 17 CFR 240.19b-4(f)(6)(iii).
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    The Commission believes that waiving the 30-day operative delay is
consistent with the protection of investors and the public interest
because the proposal will return the Exchange's market capitalization
continued listing standard to the same level that it was in 2004 to $15
million.\20\ In addition, the Commission notes that the $15 million
market capitalization standard, which immediately subjects a company
failing to meet this standard to the Exchange's delisting procedures in
Section 804 of the Manual, is at least as stringent as the continued
listing requirements of another national securities exchange.\21\ For
these reasons, the Commission believes that the proposed rule change
does not raise any new regulatory issues. Accordingly, the Commission
designates that the proposed rule change become operative immediately
upon filing.\22\
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    \20\ See supra note 7.
    \21\ See The NASDAQ Stock Market LLC Rule 5450.
    \22\ 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. 15 U.S.C. 78c(f).
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    At any time within 60 days of the filing of the proposed rule
change, the Commission may summarily abrogate the rule change if it
appears to the Commission that such action is necessary or appropriate
in the public interest, for the protection of investors, or otherwise
in furtherance of the purposes of the Act.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Exchange 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<EMAIL_ADDRESS>Please include
File Number SR-NYSE-2009-66 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSE-2009-66. 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, on official business
days between the hours of 10 a.m. and 3 p.m. Copies of the 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-2009-66 and should be submitted on or before August 10, 2009.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\23\
Florence E. Harmon,
Deputy Secretary.
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    \23\ 17 CFR 200.30-3(a)(12).
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[FR Doc. E9-17139 Filed 7-17-09; 8:45 am]

BILLING CODE 8010-01-P


[Federal Register Volume 85, Number 248 (Monday, December 28, 2020)]
[Notices]
[Pages 84463-84464]
[FR Doc No: 2020-28542]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2020-0030; Notice 1]

Collins Bus Corporation, Receipt of Petition for Decision of
Inconsequential Noncompliance

AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).

ACTION: Receipt of petition.

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SUMMARY: Collins Bus Corporation (Collins) has determined that certain
model year (MY) 2012-2020 Ford and Chevrolet school buses do not fully
comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 217, Bus
Emergency Exits and Window Retention and Release. Collins filed a
noncompliance report dated April 15, 2020. Collins subsequently
petitioned NHTSA on April 30, 2020, for a decision that the subject
noncompliance is inconsequential as it relates to motor vehicle safety.
This notice announces receipt of Collins's petition.

DATES: Send comments on or before January 27, 2021.

ADDRESSES: Interested persons are invited to submit written data,
views, and arguments on this petition. Comments must refer to the
docket and notice number cited in the title of this notice and
submitted by any of the following methods:
     Mail: Send comments by mail addressed to the U.S.
Department of Transportation, Docket Operations, M-30, West Building
Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC
20590.
     Hand Delivery: Deliver comments by hand to the U.S.
Department of Transportation, Docket Operations, M-30, West Building
Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC
20590. The Docket Section is open on weekdays from 10 a.m. to 5 p.m.
except for Federal holidays.
     Electronically: Submit comments electronically by logging
onto the Federal Docket Management System (FDMS) website at https://www.regulations.gov/. Follow the online instructions for submitting
comments.
     Comments may also be faxed to<PHONE_NUMBER>.
    Comments must be written in the English language, and be no greater
than 15 pages in length, although there is no limit to the length of
necessary attachments to the comments. If comments are submitted in
hard copy form, please ensure that two copies are provided. If you wish
to receive confirmation that comments you have submitted by mail were
received, please enclose a stamped, self-addressed postcard with the
comments. Note that all comments received will be posted without change
to https://www.regulations.gov, including any personal information
provided.
    All comments and supporting materials received before the close of
business on the closing date indicated above will be filed in the
docket and will be considered. All comments and supporting materials
received after the closing date will also be filed and will be
considered to the fullest extent possible.
    When the petition is granted or denied, notice of the decision will
also be published in the Federal Register pursuant to the authority
indicated at the end of this notice.
    All comments, background documentation, and supporting materials
submitted to the docket may be viewed by anyone at the address and
times given above. The documents may also be viewed on the internet at
https://www.regulations.gov by following the online instructions for
accessing the docket. The docket ID number for this petition is shown
in the heading of this notice.
    DOT's complete Privacy Act Statement is available for review in a
Federal Register notice published on April 11, 2000 (65 FR 19477-78).

SUPPLEMENTARY INFORMATION:
    I. Overview: Collins has determined that certain MY 2012-2020 Ford
and Chevrolet school buses do not fully comply with the requirements of
paragraph S5.5.3(b) of FMVSS No. 217, Bus Emergency Exits and Window
Retention and Release (49 CFR 571.217). Collins filed a noncompliance
report dated April 15, 2020, pursuant to 49 CFR part 573, Defect and
Noncompliance Responsibility and Reports. Collins subsequently
petitioned NHTSA on April 30, 2020, for an exemption from the
notification and remedy requirements of 49 U.S.C. Chapter 301 on the
basis that this noncompliance is inconsequential as it relates to motor
vehicle safety, pursuant to 49 U.S.C. 30118(d) and 30120(h) and 49 CFR
part 556, Exemption for Inconsequential Defect or Noncompliance.
    This notice of receipt of Collins's petition is published under 49
U.S.C. 30118 and 30120 and does not represent any Agency decision or
other exercise of judgment concerning the merits of the petition.
    II. Buses Involved: Approximately 11,079 MY 2012-2012;2020 Ford and
Chevrolet school buses manufactured between February 2, 2012, and April
3, 2020, are potentially involved:

 Ford TH 400
 Ford Sh416, models SL, SH, DH, DE, TH, and TL
 Chevrolet DE516
 Chevrolet DH516
 Chevrolet DH500
 Ford TL 400
 Ford T24
 Chevrolet DH400
    III. Noncompliance: Collins explains that the noncompliance is that
the letter

height for the operating instructions describing the motions necessary
to unlatch and open the emergency exits in the subject school buses
does not fully comply with the requirements set forth in paragraph
S5.5.3(b) of FMVSS No. 217. Specifically, the operating instructions
describing the motions necessary to unlatch and open the emergency
window exits are only eight (8) millimeters in height rather than the
required one (1) centimeter.
    IV. Rule Requirements: Paragraph S5.5.3(b) of FMVSS No. 217
includes the requirements relevant to this petition. Paragraph
S5.5.3(b) requires that concise operating instructions describing the
motions necessary to unlatch and open the emergency exit shall be
located within 15 centimeters of the release mechanism on the inside
surface of the bus. These instructions shall be in letters at least 1
centimeter high and of a color that contrasts with its background.
    V. Summary of Collins's Petition: The following views and arguments
presented in this section, ``V. Summary of Collins's Petition,'' are
the views and arguments provided by Collins. They have not been
evaluated by the Agency and do not reflect the views of the Agency.
Collins describes the subject noncompliance and contends that the
noncompliance is inconsequential as it relates to motor vehicle safety.
    In support of its petition, Collins offers the following reasoning:
    1. The Noncompliance is Inconsequential to Motor Vehicle Safety:
Collins states that the 2-millimeter deficiency in the letter height is
inconsequential to motor vehicle safety. The actual height of the
emergency window exit operating instructions letters--eight (8)
millimeters--is 80 percent of the height required by FMVSS No. 217 (ten
(10) millimeters). NHTSA has previously granted inconsequential
noncompliance petitions for labeling defects across various motor
vehicle safety standards, including for more significant lettering
height deficiencies:
     Notice Granting Petition by Kia Motors: Letters as little
as 53.1 percent of the minimum height requirement. See 69 FR 41333
(July 8, 2004) (Docket No. NHTSA-2004-17439).
     Notice Granting Petition by General Motors: Lettering
height 76.3 percent of the minimum height requirement. See 81 FR 92963
(Docket No. NHTSA-2016-0093).
     Notice Granting Petition by Hyundai: Letters as little as
78.1 percent of the minimum height requirement. See 69 FR 41568 (Docket
No. NHTSA-2004-17439).
     Notice Granting Petition by Mercedes-Benz: Letters ``about
78 percent of the minimum height required for such letters.'' See 67 FR
72026 (Docket No. NHTSA-2002-12544).
    2. Further, the instruction label includes the words ``Emergency
Exit'' in letters with a height of 11 millimeters, which not only meets
but substantially exceeds the 1-centimeter requirement. See 67 FR 72026
(noting that some of the letters did meet the minimum height
requirements in finding that insufficient height of other letters did
not have an adverse effect on vehicle safety).
    3. Collins claims that the height discrepancy does not affect the
readability of the instructions. See 67 FR 72026 (finding that letters
which were roughly 78 percent of the required size (which required size
was nearly one-third of the relevant one-centimeter letter height
requirement at issue here) would not ``degrade the legibility'' of the
words); 81 FR 92964 (finding ``the lettering height for the park brake
applied indicator `Park' at 2.44 mm versus the FMVSS No. 135
requirement of 3.2 mm poses little if any risk to motor vehicle
safety'').
    4. Further, Collins says the discrepancy does not compromise the
conspicuity of the instructions. The instructions are not only in a
color that sharply contrasts with their background (red) as required by
FMVSS No. 217, the letters are additionally in bold and block capital
letters, which is not required by the standard but which preserves the
8-millimeter height across the width of the words and increases the
visibility of the instructions. See 81 FR 92964 (finding the use of all
capitalized letters, where not required, provided ``a more pronounced
indicator''). And as noted above, some of the words in the label (i.e.,
``Emergency Exit'') not only meet but exceed the minimum height
requirement, thereby increasing the visibility of the instructions.
    5. Collins states that NHTSA has previously granted petitions for
inconsequential noncompliance under FMVSS No. 217 for conditions that
present a more direct safety risk than the potential safety risk (if
any) created here. See New Flyer of America, Inc.; Grant of Application
for Decision of Inconsequential Noncompliance, 63 FR 32694 (granting
petition for inconsequential noncompliance where buses were
manufactured with only one emergency exit instead of two); IC
Corporation, Grant of Petition for Decision of Inconsequential
Noncompliance, 70 FR 24464 (granting petition for inconsequential
noncompliance where school buses were manufactured with two emergency
doors under the same post and roof bow panel space).
    6. Finally, Collins states that the emergency window exit
instructions on the affected vehicles meet all other labeling
requirements of FMVSS No. 217 and do not affect the actual operation of
the emergency window exit, and Collins has not received any complaints
regarding the size or visibility of the instructions and is not aware
of any injuries associated with the size or visibility of the
instructions. Collins has corrected the noncompliance in all buses
remaining within its possession.
    Collins concludes by again contending that the subject
noncompliance is inconsequential as it relates to motor vehicle safety,
and that its petition to be exempted from providing notification of the
noncompliance, as required by 49 U.S.C. 30118, and a remedy for the
noncompliance, as required by 49 U.S.C. 30120, should be granted.
    Collins's complete petition and all supporting documents are
available by logging onto the Federal Docket Management System (FDMS)
website at https://www.regulations.gov and by following the online
search instructions to locate the docket number as listed in the title
of this notice.
    NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and
30120(h)) that permit manufacturers to file petitions for a
determination of inconsequentiality allow NHTSA to exempt manufacturers
only from the duties found in sections 30118 and 30120, respectively,
to notify owners, purchasers, and dealers of a defect or noncompliance
and to remedy the defect or noncompliance. Therefore, any decision on
this petition only applies to the subject buses that Collins no longer
controlled at the time it determined that the noncompliance existed.
However, any decision on this petition does not relieve vehicle
distributors and dealers of the prohibitions on the sale, offer for
sale, or introduction or delivery for introduction into interstate
commerce of the noncompliant buses under their control after Collins
notified them that the subject noncompliance existed.

(Authority: 49 U.S.C. 30118, 30120: delegations of authority at 49
CFR 1.95 and 501.8)

Otto G. Matheke III,
Director, Office of Vehicle Safety Compliance.
[FR Doc. 2020-28542 Filed 12-23-20; 8:45 am]
BILLING CODE 4910-59-P