[Federal Register: October 26, 2005 (Volume 70, Number 206)]
[Notices]
[Page 61866-61875]
[DOCID:fr26oc05-141]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-52638; File No. SR-NYSE-2005-37]

Self-Regulatory Organizations; New York Stock Exchange, Inc.;
Notice of Filing of Proposed Rule Change and Amendment No. 1 Thereto
Relating to Amendments to Certain Sections of the Exchange Constitution
Concerning the Exchange's Hearing Board and Related Amendments to
Exchange Rule 475 and Rule 476

October 19, 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 May 23, 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 September
9, 2005, NYSE amended the proposed rule change (``Amendment No.
1'').\3\ The Commission is publishing this notice to solicit comments
on the proposed rule change, as amended, from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Amendment No.1 filed on September 9, 2005. In Amendment
No. 1, the Exchange made technical corrections to proposed rule text
contained in Exhibit 5 of the original filing.
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I. Self-Regulatory Organization's Statement of the Terms of the
Substance of the Proposed Rule Change

    The Exchange proposes to amend Article IX of the Exchange's
Constitution and NYSE Rules 475 and 476 to modify certain aspects of
the Exchange's disciplinary procedures and to provide a structure for a
summary suspension hearing and a ``call-up'' procedure for review by
members of the Board of Directors (``Board''), certain members of the
Board of Executives listed in NYSE Rule 476(f), any member of the
Regulation, Enforcement and Listing Standards Committee and either the
Division of the Exchange that initiated the proceedings or the
respondent. The text of the proposed rule change, as amended, is below.
Proposed new language is in italics; proposed deletions are in
brackets.\4\
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    \4\ The rule as set forth herein reflects several minor
revisions to the proposal's rule text that the Exchange has
committed to incorporate in an amendment to the filing. Telephone
conversation between Peggy Kuo, Chief Hearing Officer, NYSE and
Cyndi N. Rodriquez, Special Counsel, Division of Market Regulations
(``Division''), Commission on September 29, 2005.
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* * * * *
Disciplinary Rules (Rules 475--477)
Rule 475. Prohibition or Limitation with Respect to Access to Services
Offered by the Exchange or a Member or Member Organization--Summary
Proceedings
    (a) Except as provided [is] in subsection (b) of this Rule, the
Exchange shall not prohibit or limit any person with respect to access
to services offered by the Exchange or any member or member
organization thereof unless the Exchange shall have notified such
person in writing of, and shall have given such person, upon not less
than 15 days prior written notice, an opportunity to be heard upon, the
specific grounds for such prohibition or limitation. The Exchange shall
keep a record of any proceeding pursuant to this Rule. Any
determination by the Exchange to prohibit or limit any person with
respect to access to services offered by the Exchange or a member or
member organization thereof shall be supported by a statement setting
forth

the specific grounds on which the prohibition or limitation is based.
    (b) The Exchange may summarily--
    (i) suspend a member, member organization, allied member, approved
person, or registered or non-registered employee of a member or member
organization who has been and is expelled or suspended from any other
self-regulatory organization, as defined in Section 3(a)(26) of the
Securities Exchange Act of 1934, or barred or suspended from being
associated with a member or any such self-regulatory organization
provided, however, that any such summary suspension imposed by the
Exchange shall not exceed the termination of the suspension imposed by
such other self-regulatory organization on such member, member
organization, allied member, approved person, or registered or non-
registered employee;
    (ii) suspend a member or member organization who is in such
financial or operating difficulty that the Exchange determines and so
notifies the Securities and Exchange Commission that the member or
member organization cannot be permitted to continue to do business as a
member or member organization with safety to investors, creditors,
other members or member organizations, or the Exchange;
    (iii) limit or prohibit any person with respect to access to
services offered by the Exchange if subparagraph (i) or (ii) of this
subsection is applicable to such person or, in the case of a person who
is not a member or member organization, if the Exchange determines that
such person does not meet the qualification requirements or other
prerequisites for such access and such person cannot be permitted to
continue to have such access with safety to investors, creditors,
members, member organizations, or the Exchange.
    Any person aggrieved by any such summary action shall be notified
in writing of, and shall be promptly afforded an opportunity to be
heard by the Exchange upon, the specific grounds for such summary
action. The Exchange shall keep a record of any proceeding pursuant to
the Rule. Any determination by the Exchange with respect to such
summary action shall be supported by a statement setting forth the
specific grounds on which the summary action is based. The Commission,
by order, may stay any such summary action in accordance with the
provisions of the Securities Exchange Act of 1934.
    (c) Hearings and proceedings pursuant to subsections (a) and (b) of
this Rule shall be under the jurisdiction of a Hearing Officer,
appointed by the Board, acting alone. The Hearing Officer shall
schedule and conduct Hearings promptly and, in doing so, provide such
discovery to the person whose access or suspension is the subject of
the Hearing and to the Exchange officers and employees as provided for
under Rule 476(c). The Hearing Officer shall render determinations
based upon the record at such Hearings. No determinations by the
Hearing Officer shall be effective to modify, reverse or terminate a
summary action until and unless (i) ten days have elapsed after the
determination has been rendered and (ii) during such ten days, no
request for review has been filed with the Secretary of the Exchange
pursuant to the next sentence. Any member of the Board, any member of
the Board of Executives referred to in Rule 476(f), any member of the
Regulation, Enforcement and Listing Standards Committee and either the
Division of the Exchange initiating the proceedings or the respondent
may require a review by the Board of any determination by the Hearing
Officer by filing with the Secretary of the Exchange a written request
therefor within ten days following such determination. The Board shall
have power to affirm, modify or reverse any such determination, or
remand the matter to the Hearing Officer for further proceedings.
    [c](d) Whenever a member or member organization fails to perform
his or its contracts, becomes insolvent, or is in such financial or
operating difficulty that he or it cannot be permitted to continue to
do business as a member or member organization with safety to
investors, creditors, other members or member organizations, or the
Exchange, such member or member organization shall promptly give
written notice thereof to the Secretary of the Exchange.
    [d](e) If the Board of Directors determines, after not less than
ten days written notice to a member described in Section 1(a) of
Article II who is suspended under the provisions of this Rule, that the
protection of the persons entitled to make claim against the proceeds
of the transfer of the membership of such member under Section 11 of
Article II of the Constitution requires the transfer of the membership
of such member, such membership may be disposed of by the Board of
Directors. In any case, if a member suspended under the provisions of
this Rule is not reinstated within one year from the time of his
suspension, or within such further time as the Board of Directors may
grant, his membership shall be disposed of by the Board of Directors;
but the Board may, by the affirmative vote of a majority of the
Directors then in office, extend the time for settlement for periods
not exceeding one year each.
    [e](f) Any person suspended under the provisions of this Rule
shall, at the request of the Exchange, submit to the Exchange his or
its books and records (including those books and records with respect
to which such person has access or control) or the books and records of
any employee thereof and furnish information to or to appear or testify
before or cause any such employee to appear or testify before the
Exchange.
    [f](g) Any person suspended under the provisions of this Rule may,
at any time, be reinstated by the Board of Directors.
    [g](h) Any person suspended under the provisions of this Rule may
be disciplined in accordance with the Rules of the Exchange for any
offense committed by him or it either before or after his or its
suspension in all respects as if he or it were not under such
suspension.
    [h](i) A member suspended under the provisions of this Rule shall
be deprived during the term of his suspension of all rights and
privileges of membership, but such suspension shall not operate to bar
or affect the payments provided for by Article XV of the Constitution
in the event of his death. Any suspension under the provisions of this
Rule of a member or allied member shall create a vacancy in any office
or position held by such member or allied member.
    (j) The limitations on the Chief Executive Officer contained in
Rule 476(l) shall apply to all matters under this Rule.
Rule 476. Disciplinary Proceedings Involving Charges Against Members,
Member Organizations, Allied Members, Approved Persons, Employees, or
Others
    (a) If a member, member organization, allied member, approved
person, registered or non-registered employee of a member or member
organization or person otherwise subject to the jurisdiction of the
Exchange is adjudged guilty in a proceeding under this Rule of any of
the following offenses--
    [1.](1) violating any provision of the Securities Exchange Act of
1934 or any rule or regulation thereunder;
    [2.](2) violating any of his or its agreements with the Exchange;
    [3.](3) violating any provision of the Constitution or any Rule
adopted by the Board of Directors of the Exchange;
    [4.](4) making a material misstatement to the Exchange;
    [5.](5) fraud or fraudulent acts;
    [6.](6) conduct or proceeding inconsistent with just and equitable
principles of trade;

    [7.](7) acts detrimental to the interest or welfare of the
Exchange;
    [8.](8) making a fictitious bid, offer or transaction or giving an
order for the purchase or sale of securities the execution of which
would involve no change of beneficial ownership or executing such an
order with knowledge of its character;
    [9.](9) making any purchases or sales or offers of purchase or sale
of securities for the purpose of upsetting the equilibrium of the
market or bringing about a condition in which prices will not fairly
reflect market values, or assisting in making any such purchases or
sales with knowledge of such purpose, or being, with such knowledge, a
party to or assisting in carrying out any plan or scheme for the making
of such purchases or sales or offers of purchase or sale;
    [10.](10) having made a misstatement or omission of fact on his or
its application for membership or approval, or on any financial
statement, report, or other submission filed with the Exchange; or
    [11.](11) refusing or failing to comply with a request of the
Exchange to submit his or its books and records (including those books
and records with respect to which such member, member organization,
allied member, approved person, registered or non-registered employee
or person otherwise subject to the jurisdiction of the Exchange has
access and control) to the Exchange, any other self-regulatory
organization, as defined in Section 3(a)(26) of the Securities Exchange
Act of 1934, any contract market, as referenced in Section 6(a) of the
Commodities Exchange Act, any registered futures association, as
referenced in Section 17 of the Commodities Exchange Act, or any
foreign self-regulatory organization or association with which the
Exchange has entered into an agreement or to furnish information to or
to appear or testify before the Exchange or such other organization or
association, as specified above, or failing to take any of the
foregoing actions on the date or within the time period that the
Exchange requires; or if a member who is registered as a specialist is
adjudged guilty in a proceeding under this Rule of substantial or
continued failure to engage in a course of dealings for his own account
to assist in the maintenance, so far as practicable, of a fair and
orderly market in any security in which he is registered; then, in any
such event, the Hearing Panel or, when authorized by this Rule, a
Hearing Officer shall, in accordance with the procedures set forth in
this Rule, impose one or more of the following disciplinary sanctions
on such member, member organization, allied member, approved person,
registered or non-registered employee or person otherwise subject to
the jurisdiction of the Exchange: expulsion; suspension; limitation as
to activities, functions, and operations, including the suspension or
cancellation of a registration in, or assignment of, one or more
stocks; fine; censure; suspension or bar from being associated with any
member or member organization; or any other fitting sanction. [In any
proceeding under this Rule, any sanction imposed may be remitted or
reduced by the Hearing Panel on such terms and conditions as it deems
fair and equitable.]
    (b) All proceedings under this Rule, except as to matters [referred
to in paragraph (c),] which are resolved by a Hearing Officer when
authorized by this Rule, shall be conducted at a Hearing in accordance
with the provisions of this Rule and shall be held before a Hearing
Panel consisting of at least three persons of integrity and judgment: a
Hearing Officer, who shall [be Chairman of] chair the Panel, [with the
remainder of the Panel being] and at least two members of the Hearing
Board, at least one of whom shall be engaged in securities activities
differing from that of the respondent or, if retired, was so engaged in
differing activities at the time of retirement. In any disciplinary
proceeding involving activities on the Floor of the Exchange, no more
than one of the persons serving on the Hearing Panel shall be, or if
retired, shall have been, active on the Floor of the Exchange. A
Hearing Panel can include only one retired person.
    The Chairman, subject to the approval of the Board [of Directors],
shall from time to time appoint a Hearing Board to be composed of such
number of members and allied members of the Exchange who are not
members of the Board of [Directors] Executives, and registered
employees and non-registered employees of members and member
organizations, and such other persons as set forth in the rules as the
Chairman shall deem necessary. Former members, allied members, or
registered and non-registered employees of members and member
organizations who have retired from the securities industry can be
appointed to the Hearing Board within five years of their retirement.
The members of the Hearing Board shall be appointed annually and shall
serve at the pleasure of the Board [of Directors]. The Chairman,
subject to the approval of the Board [of Directors], shall also
designate [from among the officers and employees of the Exchange] a
Chief Hearing Officer and one or more other Hearing Officers who shall
have no Exchange duties or functions relating to the investigation or
preparation of disciplinary matters and who shall be appointed annually
and shall serve as Hearing Officers at the pleasure of the Board [of
Directors]. An individual cannot be a Hearing Officer (including the
Chief Hearing Officer) if he or she is, or within the last three years
was, a member, allied member, or registered or non-registered employee
of a member or member organization.
    [In any hearing under this Rule involving as a respondent therein a
member, member organization, allied member, or approved person, the
members of the Hearing Board serving on the Panel shall be members or
allied members and at least one of whom, to the extent reasonably
possible, is engaged in similar activities as the respondent. In any
such proceeding relating to activities on the Floor of the Exchange, at
least one of the persons serving on the Panel shall be a member active
on the Floor of the Exchange. In any such proceeding relating to any
other activities, at least one of the persons serving on the Panel
shall work in the office of a member or member organization which
engages in a business involving substantial direct contact with
securities customers.]
    [In any hearing under this Rule involving as a respondent therein a
registered or non-registered employee of a member or member
organization who is not a member or allied member, the members of the
Hearing Board serving on the Panel shall be registered employees or
non-registered employees of members and member organizations who are
not members or allied members and at least one of whom, to the extent
reasonably possible, is engaged in similar activities as the
respondent. In any such proceeding relating to such employee's
activities on the Floor of the Exchange, at least one of the persons
serving on the Panel shall be a registered or non-registered employee
of a member or member organization active on the Floor of the Exchange
who is not a member or allied member. In any such proceeding relating
to any other activities at least one of the persons serving on the
Panel shall work in the office of a member or member organization which
engages in a business involving substantial direct contact with
securities customers.]
    [In any hearing under this Rule involving as joint respondents
therein one or more members or member organizations, allied members or
approved persons, together with one or more registered or non-
registered employees of a member or member

organization who are not members or allied members, at least one of the
persons serving on the Panel shall be a member or allied member and at
least one other person serving on the Panel shall be a registered or
non-registered employee of a member or member organization who is not a
member or allied member, and the functional qualifications required of
Hearing Panel members as stated above shall be satisfied.]
    For all purposes of this Rule, the decision of a majority of the
Panel shall be the decision of the Panel and shall be final and
conclusive, unless a request to the Board [of Directors] for review is
filed as provided in this Rule.
    (c) Upon application to the Chief Hearing Officer [of the Exchange]
by either party to a proceeding, the Chief Hearing Officer, or any
Hearing Officer designated by the Chief Hearing Officer, shall resolve
any and all procedural and evidentiary matters and substantive legal
motions, and may require the Exchange to permit the respondent to
inspect and copy documents or records in the possession of the Exchange
which are material to the preparation of the defense or are intended
for use by the [d]Division [or department] of the Exchange initiating
the proceeding as evidence in chief at the [h]Hearing. The respondent
may be required to provide discovery of non-privileged documents and
records to the Exchange. This provision does not authorize the
discovery or inspection of reports, memoranda, or other internal
Exchange documents prepared by the Exchange in connection with the
proceeding. There shall be no interlocutory appeal to the Board [of
Directors] of any determination as to which this provision applies.
    (d) Except as provided in paragraph (g), in any proceeding under
this Rule before a Hearing Panel, or Hearing Officer as provided by
this rule, the specific charges against the respondent shall be in the
form of a written statement (Charge Memorandum) and shall be signed by
an authorized officer or employee of the Exchange on behalf of the
[d]Division [or department] of the Exchange bringing the charges. A
copy of such Charge Memorandum (including any exhibits attached
thereto) shall be filed with the Hearing Board at the same time it is
served upon the respondent. Service shall be deemed effective by
personal service of such Charge Memorandum, or by leaving same either
at the respondent's last known office address during business hours or
respondent's last place of residence as reflected in Exchange records,
or upon mailing same to the respondent at the aforesaid office address
or place of residence. The Hearing Board shall assume jurisdiction upon
receipt of the Charge Memorandum.
    An Answer to the Charge Memorandum shall be filed not later than
twenty five days from the date of service or within such longer period
of time as the [Exchange] Hearing Officer may deem proper.
    The Answer shall be in writing, signed by or on behalf of the
respondent and filed with the Hearing Board, with a copy served on the
[d]Division [or department] of the Exchange bringing the charges. The
Answer shall indicate specifically which assertions of fact and charges
in the Charge Memorandum are denied and which are admitted; and shall
also contain any specific facts in contradiction of the charges and any
affirmative defenses. A general denial without more shall not be deemed
to satisfy this requirement. Any assertions of fact not specifically
denied in the Answer may be deemed admitted and failure to file an
Answer may be deemed an admission of any facts asserted in the Charge
Memorandum.
    The Hearing Board shall set a schedule for filing of motions and
shall establish Hearing dates. If the respondent has failed to file an
Answer, the Division of the Exchange bringing the charges, by motion,
accompanied by proof of notice to the respondent, may request a
determination of guilt by default, and may recommend a penalty to be
imposed. If the respondent opposes the motion, the Hearing Officer, on
a determination that respondent had adequate reason to fail to file an
Answer, may adjourn the Hearing date and direct the respondent to
promptly file an Answer. If the default motion is unopposed, or
respondent did not have adequate reason to fail to file an Answer, or
respondent failed to file an Answer after being given an opportunity to
do so, the Hearing Officer, on a determination that respondent has had
notice of the charges and that the Exchange has jurisdiction in the
matter, may find guilt and determine penalty.
    Notice of the [h]Hearing to be held for the purpose of considering
the charges shall be served upon the Division of the Exchange and the
respondent as provided above[, who shall be]. The respondent shall be
entitled to be personally present thereat if a natural person, and if
other than a natural person, by a designee. The Hearing Officer shall
determine the specific facts [put into] in issue [by the Charge
Memorandum and the Answer], and with respect to those facts only, both
the [d]Division [or department] of the Exchange bringing the charges
and the respondent may produce witnesses and any other evidence and
they may examine and cross-examine any witnesses so produced. [If the
respondent has failed to file an Answer or if the facts and charges in
the Charge Memorandum are not specifically denied, any witnesses or
other evidence may be limited to the determination of the penalty to be
imposed. In the event a respondent who has failed to file an Answer
appears at the hearing, such respondent shall not be entitled to
produce witnesses or other evidence or testify in defense of the facts
or charges contained in the Charge Memorandum unless the Hearing Panel
determines that such respondent had adequate reason to excuse his
failure to file an Answer. Upon such determination by the Hearing
Panel, the hearing may be adjourned and the respondent may be directed
to promptly file a written Answer.] After hearing all the witnesses and
considering all the evidence, the Hearing Panel shall determine whether
the respondent is guilty of the charges. If the Hearing Panel
determines that the respondent is guilty, it shall fix and impose the
penalty or penalties.
    (e) The Exchange shall keep a record of any [h]Hearing conducted
under this Rule and a written notice of the result setting forth the
requirements contained in Section 6(d)(1) of the Securities Exchange
Act of 1934 shall be served upon the respondent and the [d]Division [or
department] of the Exchange which brought the charges.
    The determination of the Hearing Panel, or of the Hearing Officer
on a determination of default, and any penalty imposed, shall be final
and conclusive twenty five days after notice thereof has been served
upon the respondent in the manner provided in paragraph (d) above,
unless a request to the Board [of Directors] for review of such
determination and/or penalty is filed as hereinafter provided. If such
a request to the Board [of Directors] for review is filed as
hereinafter provided, any penalty imposed shall be stayed pending the
outcome of such review.
    (f) The Division [or department] of the Exchange which brought the
charges, the respondent, [or] and any member of the Board, [of
Directors or] any member of the Board of Executives [of the Exchange]
representing the groups referenced in clauses (ii) and (iii) of Article
V, Section 2(b) of the Exchange Constitution, any member of the Board
of Executives in such other categories as the Board, by rule, shall
designate, and any member of the Regulation, Enforcement and Listing
Standards Committee may require a review by the Board of any
determination or penalty,

or both, imposed by a Hearing Panel or Hearing Officer. A request for
review shall be made by filing with the Secretary of the Exchange a
written request therefore, which states the basis and reasons for such
review, within twenty-five days after notice of the determination and/
or penalty is served upon the respondent. The Secretary of the Exchange
shall give notice of any such request for review to the [d]Division [or
department] of the Exchange which brought the charges and any
respondent affected thereby.
    Any review by the Board [of Directors] shall be based on oral
arguments and written briefs and shall be limited to consideration of
the record before the Hearing Panel or Hearing Officer. Upon review,
the Board [of Directors], by the affirmative vote of a majority of the
Directors then in office, may sustain any determination or penalty
imposed, or both, may modify or reverse any such determination, and may
increase, decrease or eliminate any such penalty, or impose any penalty
permitted under the provisions of this Rule, as it deems appropriate.
Unless the Board [of Directors] otherwise specifically directs, the
determination and penalty, if any, of the Board [of Directors] after
review shall be final and conclusive subject to the provisions for
review of the Securities Exchange Act of 1934.
    Notwithstanding the foregoing, if either party upon review applies
to the Board [of Directors] for leave to adduce additional evidence,
and shows to the satisfaction of the Board [of Directors] that the
additional evidence is material and that there was reasonable ground
for failure to adduce it before the Hearing Panel or Hearing Officer,
the Board [of Directors] may remand the case [to a Hearing Panel] for
further proceedings, in whatever manner and on whatever conditions the
Board [of Directors] considers appropriate.
    (g) In lieu of the procedures set forth in paragraph (d) above, a
Hearing [Panel] Officer acting alone [,at a hearing called for that
purpose,] shall also determine whether a member, member organization,
allied member, approved person, or registered or non-registered
employee of a member or member organization has committed any one or
more of the offenses specified in paragraph (a) above, on the basis of
a written Stipulation and Consent entered into between the respondent
and any authorized officer or employee of the Exchange. Any such
Stipulation and Consent shall contain a stipulation with respect to the
facts, or the basis for findings of fact by the Hearing [Panel]
Officer; a consent to findings of fact by the Hearing [Panel] Officer,
including a finding that a specified offense had been committed; and a
consent to the imposition of a specified penalty.
    A Hearing Officer shall convene a Hearing Panel, if the Hearing
Officer requires clarification or further information on the
Stipulation and Consent, or if either party requests a Hearing before a
Hearing Panel. A Hearing Officer, acting alone, may not reject a
Stipulation or Consent, but shall convene a Hearing Panel to consider
such action. Notice of any Hearing held for the purpose of considering
a Stipulation and Consent shall be served upon the respondent as
provided in paragraph (d) above. In any such [h]Hearing, if the Hearing
Panel determines that the respondent has committed an offense, it may
impose the penalty agreed to in such Stipulation and Consent [or any
penalty which is less severe than the stipulated penalty, as it deems
appropriate]. In addition, a Hearing Panel may reject such Stipulation
and Consent.
    Such rejection shall not preclude the parties to the proceeding
from entering into a modified Stipulation and Consent which shall be
presented to a Hearing Panel in accordance with the provisions of this
subsection, nor shall such rejection preclude the Exchange from
bringing or presenting the same or different charges to a Hearing Panel
in accordance with the provisions of paragraph (d) above. The Exchange
shall keep a record of any Hearing conducted under this Rule and a
written notice of the result setting forth the requirements contained
in Section 6(d)(1) of the Securities Exchange Act of 1934 shall be
served on the parties to the proceeding.
    The determination of the Hearing Panel or Hearing Officer and any
penalty imposed shall be final and conclusive, twenty five days after
notice thereof has been served upon the respondent in the manner
provided in paragraph (d) above, unless a request to the Board [of
Directors] for review of such determination and/or penalty is filed as
hereinafter provided. If such a request to the Board [of Directors] for
review is filed as hereinafter provided, any penalty imposed shall be
stayed pending the outcome of such review. Any member of the Board, [of
Directors or of] the Board of Executives [of the Exchange] specified in
or designated pursuant to paragraph (f) above and any member of the
Regulation, Enforcement & Listing Standards Committee may require a
review by the Board of any determination or penalty, or both, imposed
by a Hearing Panel or Hearing Officer in connection with a Stipulation
and Consent. [In addition, the division or department of the Exchange
which entered into the written consent may require a review by the
Board of Directors of any penalty which is less severe than the
stipulated penalty.] The respondent or the [d]Division [or department]
which entered into the written consent may require a review by the
Board [of Directors] of any rejection of a Stipulation and Consent by
the Hearing Panel.
    A request for review shall be made by filing with the Secretary of
the Exchange a written request therefor, which states the basis and
reasons for such review, within twenty-five days after notice of the
determination and/or penalty is served on the respondent. The Secretary
of the Exchange shall give notice of any such request for review to the
[d]Division [or department] of the Exchange involved in the proceeding
and any respondent affected thereby.
    Any review by the Board [of Directors] shall consist of oral
arguments and written briefs and shall be limited to consideration of
the record before the Hearing Panel or Hearing Officer. Upon review,
the Board [of Directors], by the affirmative vote of a majority of the
Directors then in office, may fix and impose the penalty agreed to in
such Stipulation and Consent or any penalty which is less severe than
the stipulated penalty, or may remand for further proceedings. Unless
the Board [of Directors] otherwise specifically directs, the
determination and penalty, if any, of the Board [of Directors] after
review shall be final and conclusive subject to the provisions for
review of the Securities Exchange Act of 1934.
    (h) A member, member organization, allied member, approved person,
or registered or non-registered employee of a member or member
organization, or any other person shall have the right to be
represented by legal counsel or other representative in any [h]Hearing
or review held pursuant to the provisions of this Rule and in any
investigation before any committee, officer, or employee of the
Exchange. A Hearing Officer may impose a fine or any other appropriate
sanction on any party or the party's representative for improper
conduct in connection with a matter before the Hearing Board, and may,
if appropriate, exclude any participant, including any party, witness,
attorney or representative from a Hearing on the basis of such conduct.
    (i) A member or allied member of the Exchange who is associated
with a member organization is liable to the same discipline and
penalties for any act or omission of such member

organization as for his own personal act or omission. The Hearing Panel
which considers the charges against such member or allied member or the
Board [of Directors] upon any review thereof, may relieve him from the
penalty therefor or may remit or reduce such penalty on such terms and
conditions as the Panel or the Board shall deem fair and equitable.
    (j) When a member is suspended under the provisions of this Rule,
such member shall be deprived during the term of his suspension of all
rights and privileges of membership. No such suspension shall operate
to bar or affect the payments provided for by Article XV of the
Constitution of the Exchange in the event of the death of the suspended
member. The expulsion of a member shall terminate all rights and
privileges arising out of his membership except such rights as he may
have under the provisions of Sections 11 and 14 of Article II of the
Constitution.
    (k) Any approved person or registered or non-registered employee
who shall neglect to pay any fine within forty five days after the same
shall become payable may, after written notice mailed to such person at
either his office or last place of residence as reflected in Exchange
records, be summarily suspended from association in any capacity with a
member organization or have his approval withdrawn until such fine is
paid. (See Art. X, Sec. 6 for penalties imposed upon members, allied
members and member organizations for failure to pay fines or other sums
due the Exchange.)
    Whenever a member, member organization, allied member, approved
person or registered or non-registered employee of a member or member
organization is suspended under the provisions of this Rule, [he or it]
that person or organization may be proceeded against for any offense
other than that for which such member, member organization, allied
member, approved person or registered or non-registered employee was
suspended. The suspension or expulsion of a member or allied member
under the provisions of this Rule shall create a vacancy in any office
or position held by him.
    (l) Notwithstanding any other provisions of this Rule, the Chief
Executive Officer (a) may not require a review by the Board under this
Rule and (b) shall be recused from deliberations and actions of the
Board with respect to matters to be reviewed by the Board under this
Rule.
* * * * *
NYSE Constitution
* * * * *
ARTICLE IX Disciplinary Proceedings
    Sec. 1. Disciplinary Rules. The Board shall adopt such rules as it
deems necessary or appropriate for the discipline of members, member
organizations, allied members, approved persons, and registered and
non-registered employees of members and member organizations for the
violation of the Act, the rules of the Exchange and for such other
offenses as may be set forth in the rules of the Exchange. The Board
shall also adopt such rules as it deems necessary or appropriate
governing the conduct of disciplinary proceedings including
disciplinary hearings and reviews thereof. The determination and
penalty, if any, of the Board after review shall be final and
conclusive, subject to the provisions of the Act.
    Sec. 2. Hearing Panel. All proceedings relating to disciplinary
matters, except as otherwise specifically set forth in the rules of the
Exchange [with respect to procedural and evidentiary matters,] shall be
conducted before a hearing panel consisting of at least three
persons[;]: a hearing officer, who shall [be chairman of] chair the
panel, [with the remainder of the panel being] and at least two members
of the hearing board.
    Sec. 3. Hearing Board. The Chairman of the Board, subject to the
approval of the Board, shall from time to time appoint a hearing board
to be composed of such number of members and allied members of the
Exchange who are not members of the Board or of the Board of
Executives, and registered employees and non-registered employees of
members and member organizations, and such other persons as set forth
in the rules, as the Chairman of the Board shall deem necessary. The
members of the hearing board shall be appointed annually and serve at
the pleasure of the Board. The Chairman of the Board, subject to the
approval of the Board, shall also designate [from among the officers
and employees of the Exchange] a chief hearing officer and one or more
other hearing officers who shall have no Exchange duties or functions
relating to the investigation or preparation of disciplinary matters
and who shall be appointed annually and shall serve as hearing officers
at the pleasure of the Board. An individual cannot be a hearing officer
(including the chief hearing officer) if he or she is, or within the
last three years was, a member, allied member, or registered or non-
registered employee of a member or member organization.
    Sec. 4. Composition of Hearing Panel. [In any disciplinary
proceeding involving as a respondent therein a member, member
organization, allied member, or approved person, the members of the
hearing board serving on the panel shall be members or allied members.
In any such proceeding relating to activities on the floor of the
Exchange, at least one of the persons serving on the panel shall be a
member active on the floor of the Exchange. In any such proceeding
relating to any other activities, at least one of the persons serving
on the panel shall work in the office of a member or member
organization which engages in a business involving substantial direct
contact with securities customers.]
    [In any disciplinary proceeding involving as a respondent therein a
registered or non-registered employee of a member or member
organization who is not a member or allied member, the members of the
hearing board serving on the panel shall be registered employees or
non-registered employees of members or member organizations who are not
members or allied members. In any such proceeding relating to such
employee's activities on the floor of the Exchange, at least one of the
persons serving on the panel shall be a registered or non-registered
employee of a member or member organization active on the floor of the
Exchange who is not a member or allied member. In any such proceeding
relating to any other activities, at least one of the persons serving
on the panel shall work in the office of a member or member
organization which engages in a business involving substantial direct
contact with securities customers.]
    [In any disciplinary proceeding involving as joint respondents
therein one or more members or member organizations, allied members or
approved persons, together with one or more registered or non-
registered employees of a member or member organization who are not
members or allied members, at least one of the persons serving on the
panel shall be a member or allied member and at least one other person
serving on the panel shall be a registered or non-registered employee
of a member or member organization who is not a member or allied
member, and the functional qualifications required of hearing panel
members as stated in this Section shall be satisfied.]
    A hearing panel shall be composed of a hearing officer, who shall
chair the panel, and at least two members of the hearing board, at
least one of whom shall be engaged in securities activities differing
from that of the respondent. In

any disciplinary proceeding involving activities on the Floor of the
Exchange, no more than one of the persons serving on the hearing panel
shall be active on the Floor of the Exchange. The decision of a
majority of the panel shall be the decision of the panel and shall be
final and conclusive, unless a request to the Board for review is filed
as provided in this Article and in the rules of the Exchange.
    Sec. 5. Penalties. If a member, member organization, allied member,
approved person or registered or non-registered employee of a member or
member organization is adjudged guilty in any disciplinary proceeding,
the hearing panel, or, to the extent provided in the rules, the hearing
officer, shall impose one or more of the following disciplinary
sanctions: expulsion, suspension; limitation as to activities,
functions, and operations, including the suspension or cancellation of
a registration in, or assignment of, one or more stocks, fine, censure,
suspension or bar from being associated with any member or member
organization, or any other fitting sanction. [In any disciplinary
proceeding, any sanction imposed may be remitted or reduced by the
hearing panel on such terms and conditions as it shall deem fair and
equitable. In a disciplinary proceeding involving a written consent to
the imposition of a specified penalty, the hearing panel in imposing a
penalty, may impose the penalty agreed to or any penalty which is less
severe than the stipulated penalty as it deems appropriate or the
hearing panel may reject such consent.]
    Sec. 6. Review. In a disciplinary proceeding not involving a
written consent to the imposition of a specified penalty, any member,
member organization, allied member, approved person, or registered or
non-registered employee of a member or member organization, adjudged
guilty of any charge, or the division [or department] of the Exchange
which brought the charges, [or] and any member of the Board, [or] any
member of the Board of Executives representing the groups referenced in
clauses (ii) and (iii) of Article V, Section 2(b), any member of the
Board of Executives in such other categories as the Board, by rule,
shall designate, and any member of the Regulation, Enforcement &
Listing Standards Committee, may, in accordance with procedures set
forth in the rules of the Exchange, require a review by the Board, of
any determination or penalty, or both [, imposed by the hearing panel].
Upon review, the Board, by the affirmative vote of a majority of the
entire Board, may sustain any determination or penalty imposed, may
modify or reverse any such determination, and may increase, decrease or
eliminate any such penalty, or impose any penalty permitted under this
Article as it deems appropriate.
    In a disciplinary proceeding involving a written consent to the
imposition of a specified penalty, any member of the Board, or the
Board of Executives specified in or designated pursuant to the
preceding paragraph, and any member of the Regulation, Enforcement &
Listing Standards Committee may require a review by the Board of any
determination or penalty, or both[, imposed by the hearing panel. In
any such proceeding, the division or department which entered into the
written consent, may require a review by the Board of any penalty,
including any determination related thereto, imposed by the hearing
panel, which is less severe than the stipulated penalty]. The
respondent or the division or department which entered into the written
consent may require a review by the Board of any rejection of the
written consent by the hearing panel. Any review provided in this
paragraph shall be conducted in accordance with procedures set forth in
the rules of the Exchange. Upon review, the Board, by the affirmative
vote of a majority of the entire Board, may fix and impose the penalty
agreed to in such written consent or any penalty which is less severe
than the stipulated penalty, or remand the case for further
proceedings.
    Notwithstanding any other provisions of this Section, the Chief
Executive Officer (a) may not require a review by the Board under this
Section and (b) shall be recused from deliberations and actions of the
Board with respect to matters to be reviewed by the Board under this
Section.
* * * * *

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
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to amend Article IX of the Exchange's
Constitution and NYSE Rules 475 and 476 to modify certain aspects of
the Exchange's disciplinary procedures and to provide a structure for a
summary suspension hearing to prohibit or limit a person's access to
services and a ``call-up'' procedure for review by members of the
Board, certain members of the Board of Executives listed in NYSE Rule
476(f), any member of the Regulation, Enforcement and Listing Standards
Committee and either the Division of the Exchange that initiated the
proceedings or the respondent.

Amendment to NYSE Rule 475

    NYSE Rule 475 currently provides a process for the Exchange: (i) To
prohibit or limit a person with respect to access of services offered
by the Exchange, or (ii) to summarily suspend an Exchange member or
member organization facing certain circumstances, such as financial or
operating difficulties, or expulsion or suspension by another self-
regulatory organization (``SRO''). NYSE Rule 475 permits the subject
individual or organization to request and obtain a hearing. The
proposed rule change would provide a structure for such a hearing and
for a ``call-up'' procedure for review by members of the Board and
certain members of the Board of Executives, any member of the
Regulation, Enforcement and Listing Standards Committee and either the
Division of the Exchange that initiated the proceedings or the
respondent.

Amendments to Constitution and NYSE Rule 476

Amendments to Constitution

    At the Exchange's annual members' meeting on April 7, 2005, the
members voted to amend the Exchange's Constitution to modify certain
aspects of the Exchange's disciplinary process. The Exchange had
engaged former Federal judge Stanley Sporkin to review and make
recommendations regarding the Exchange's disciplinary process. The
amendments adopted at the member's meeting were proposed by the
Exchange's Board, in part, in response to Judge Sporkin's
recommendations. The amendments would:
     Require that at least one member of any hearing panel be
employed in a field of activity other than that in which the charged
person is employed;

     Remove the constitutional requirement that full panels
handle stipulations and uncontested cases;
     Permit individuals who are not employees of the Exchange
to serve as hearing officers;
     In conjunction with the proposed amendments to the
Exchange's principal disciplinary rule, NYSE Rule 476, permit former
members and allied members, and former registered and non-registered
employees of members and member organizations to be appointed to the
Hearing Board within five years of their retirement;
     Remove the constitutional requirement that a hearing panel
decide all matters except procedural and evidentiary matters; and
     Relieve members of the Board of Executives (other than
those representing the trading floor) from the responsibility for
``calling up'' disciplinary decisions for review, and extend that
responsibility to all members of the Regulation, Enforcement and
Listing Standards Committee.
    A collateral effect of the changes would be to reduce the overlap
between the Constitutional text and NYSE Rule 476 by removing some of
the detail that is currently in the Constitution. The Exchange believes
that this would enable the Board to effect further refinements to the
Exchange's disciplinary process without a vote of the membership, so
long as those changes are consistent with the revised Constitutional
text.

Composition of Hearing Panels in Disciplinary Proceedings

    The Exchange's Constitution currently requires that disciplinary
hearings be conducted before a hearing panel consisting of a hearing
officer (an Exchange staff member) and two peer panelists. Charges
against a member must be heard by a panel including two members;
charges against member firm employees must be heard by a panel
including other member firm employees; and cases involving activity on
the Exchange floor must include at least one panelist engaged in floor
activities. The Exchange believes that this ``trial by peers''
requirement raises a concern about bias and perception of bias. In
cases involving charges against individuals on the trading floor, the
perception of bias is potentially heightened because of the relatively
small floor community. Although the Exchange has found no empirical
evidence to indicate that bias exists in the Exchange's disciplinary
proceedings, the Exchange believes that any perception of bias would be
reduced if at least one member of a hearing panel were required to be
employed in a field of activity other than that in which the charged
person is employed.
    For example, in a case involving the trading floor, charges against
a specialist or floor broker would be heard before a hearing panel
consisting of no more than one individual employed on the trading
floor. In effect, the available pool of panelists to hear a particular
matter would be expanded, and any possible perceptions of bias in
having a majority of the panel members in the same line of business as
the respondent would be avoided. The amendments would, nevertheless,
allow individuals with extensive knowledge of the securities industry,
in general, and the particular business of the respondent to serve on
hearing panels.
    Furthermore, the proposed rule change would permit hearing officers
to handle stipulations and uncontested cases without the full hearing
panel. Currently, all disciplinary hearings (including settled cases,
in which a respondent consents to a penalty, and uncontested cases, in
which a respondent does not file an answer to the charges) must be
heard before a full hearing panel. Under the constitutional amendments,
in conjunction with the proposed amendments to NYSE Rule 476, a hearing
officer of the Exchange, acting alone, could consider such uncontested
cases and settled cases and impose penalties, without a hearing, in
order to expedite resolution of such matters. The hearing officer would
convene a hearing panel and hold a hearing if either the Enforcement
Division or the respondent requests a hearing before a full panel, or
if the hearing officer on his or her own initiative calls for a
hearing. Moreover, the hearing officer could not reject a stipulated
penalty without convening a hearing panel.

The Amendments to the Constitution, in Conjunction With the Proposed
Amendments to NYSE Rule 476, Would Allow Non-NYSE Employees To Serve as
Hearing Officers and Certain Recently Retired Individuals To Be
Appointed to the Hearing Board

    The amendments to the Constitution would eliminate the requirement
that Exchange hearing officers be employees or officers of the
Exchange, thereby enabling the Exchange to retain outside professionals
to serve as hearing officers if needed. For example, if the Exchange
experienced a sudden increase in disciplinary cases, it could retain
part-time hearing officers to manage the increased caseload. However,
under the amendments to the Constitution and the proposed amendments to
NYSE Rule 476, an individual who is, or was within the last three
years, a member, allied member, or registered or non-registered
employee of a member or member organization would not be eligible to
serve as a hearing officer.
    The proposed rule change also would allow former members, allied
members, and former registered and non-registered employees of members
and member organizations to be appointed to the Hearing Board within
five years of their retirement.\5\ This would enlarge the pool of
individuals with the requisite expertise to adjudicate cases. In
addition, these individuals could more readily serve during normal
business hours, potentially allowing cases to be resolved more
expeditiously. However, a hearing panel could include only one retired
person.
---------------------------------------------------------------------------

    \5\ The proposed rule change would amend NYSE Rule 476 to state
that members of its Board of Executives may not serve on the Hearing
Board. The Exchange, however, has advised that it intends to submit
an amendment to the proposed rule change to conform the text of NYSE
Rule 476 regarding the composition of the Hearing Board with the
language contained in Article IX, Section 3 of the Exchange's
Constitution. In this regard, NYSE Rule 476 will be amended to state
that Hearing Board members may not be members of the Exchange's
Board or of its Board of Executives. Telephone conversation between
Peggy Kuo, Chief Hearing Officer, NYSE and Cyndi N. Rodriguez,
Special Counsel, Division, Commission on October 17, 2005.
---------------------------------------------------------------------------

Hearing Officer Authority To Resolve Substantive Legal Motions

    The proposed rule change would permit hearing officers to resolve
substantive legal motions, such as motions to dismiss and motions for
summary judgment, by no longer requiring that a hearing panel resolve
such motions. This authority could serve to expedite the hearing
process by allowing the hearing officer to resolve motions that
currently require action by the full panel. In addition, these motions
often involve legal issues that the hearing officer, who historically
has been an attorney, is best suited to resolve.

``Call Up'' Authority Reallocated

    At present, all members of the Board of Executives (as well as all
Directors other than the Chief Executive Officer) have the right and
the responsibility to ``call up'' disciplinary decisions for review.
The Exchange believes that the Board of Executives' members who
represent investors, listed companies, ``upstairs'' firms, and others
do not ordinarily have the requisite experience to discharge this
responsibility well. On the other hand, the Exchange believes that the
Board of Executives' members representing the trading floor and

members of the Regulation, Enforcement and Listing Standards Committee
are well suited to discharge this responsibility. The amendments to the
Constitution and NYSE Rule 476 would reallocate this responsibility
accordingly, but would preserve the Board of Directors' right to charge
other classes of members of the Board of Executives with this
responsibility if warranted.

Amendment to NYSE Rule 476

Composition of Hearing Panels in Disciplinary Proceedings

    The Exchange's Constitution and Rules currently require that
disciplinary hearings be conducted before a Hearing Panel consisting of
a Hearing Officer (an Exchange staff member) and two peer panelists.
Charges against a member must be heard by a panel including two
members; charges against member firm employees must be heard by a panel
including other member firm employees; and cases involving activity on
the Exchange floor must include at least one panelist engaged in floor
activities. The Exchange believes that the requirement of ``trial by
peers'' raises a concern about bias and perception of bias,
particularly with respect to charges against individuals on the trading
floor, given the relatively small floor community.
    The proposed rule changes would reverse these requirements, in
effect, requiring that at least one panelist in every case be employed
in an area of responsibility other than that of the person facing
charges. With respect to cases involving the trading floor, the intent
of the proposal is such that charges against a specialist or floor
broker would be heard before a panel consisting of no more than one
individual employed on the trading floor. By doing so, the available
pool of panelists to hear a particular matter would be expanded, and
the perception of bias in having a majority of the panel members in the
same line of business as the respondent would be avoided. The proposals
would, nevertheless, allow individuals with extensive knowledge of the
securities industry in general, and the particular business of the
respondent, to serve on Hearing Panels.
    Furthermore, at present, all disciplinary hearings (including
settled cases, in which a respondent consents to a penalty, and
uncontested cases, in which a respondent does not file an answer to the
charges) must be heard before a Hearing Panel. The proposal would
confer authority on an Exchange Hearing Officer alone to consider
consents and uncontested cases, without a hearing, in order to expedite
resolution of such matters. The Hearing Officer would convene a panel
and hold a hearing if either Enforcement or the respondent requests a
hearing before a full panel, or if the Hearing Officer, on his or her
own initiative, calls for a hearing. Moreover, the Hearing Officer
could not reject a stipulated penalty without convening a Hearing
Panel.

Conferring Jurisdiction on the Hearing Board Upon Filing of the Charge
Memorandum

    Under current procedures, the hearing in a disciplinary matter is
scheduled only upon request of the Division of Enforcement, after a
respondent's answer is received or the time to file an answer has
expired. The Hearing Board has no jurisdiction to resolve any issues
that arise until the Division of Enforcement requests a hearing, and a
respondent has no avenue of recourse if the respondent believes there
has been an unreasonable or prejudicial delay. The proposed rule
changes would require the filing of charges with the Hearing Board at
the time they are served on the respondent. The Hearing Board would
assume jurisdiction of the matter at that juncture and be able to
schedule expeditiously hearings, as well as rule on pre-hearing
motions.

Hearing Officer Authority To Order Pre-Hearing Discovery and Resolve
Substantive Legal Motions

    Today, a Hearing Officer has clear authority to order pre-hearing
discovery of documents from the Division of Enforcement. The proposed
rule change would clarify the Hearing Officer's authority to order
discovery from the respondent as well. In addition, the proposal would
permit the Hearing Officer to resolve substantive legal motions, such
as motions to dismiss and motions for summary judgment.

Hearing Officer Authority To Penalize Contemptuous Participants

    A Hearing Officer must necessarily have the authority to control
the proceedings, including dealing with obstreperous and disruptive
participants. The proposal would make this authority clear, and permit
the Hearing Officer to impose fines on a party for inappropriate
behavior of either the party or the party's representative. This
authority would not be limited to dealing with such behavior during a
hearing, but would allow for sanctions to be imposed at any time during
the course of proceedings. The Hearing Officer could also, in extreme
situations, exclude any such persons from further participation in the
proceeding.

Allowing Non-NYSE Employees To Serve as Hearing Officers, and Allowing
Certain Recently Retired Individuals To Be Appointed to the Hearing
Board

    The proposed rule changes would eliminate the requirement that
Exchange Hearing Officers be employees or officers of the Exchange,
thereby enabling the Exchange to retain outside consultants to serve as
Hearing Officers, if and when needed. The proposals also would allow
recently retired members, allied members, registered and non-registered
employees of members and member organizations to be appointed to the
Hearing Board within five years of their retirement.

``Call Up'' Authority Reallocated

    At present, all members of the Board of Executives (as well as all
Directors other than the Chief Executive Officer) have the right to
``call up'' disciplinary decisions for review. This authority would be
reallocated to members of the Board, Board of Executives' members
representing the trading floor, and members of the Regulation,
Enforcement and Listing Standards Committee.
2. Statutory Basis
    The Exchange believes that the proposed rule change, as amended, is
consistent with Section 6(b)(5) \6\ of the Act in that it promotes just
and equitable principles of trade by ensuring that members and member
organizations and the public have a fair and impartial forum for the
resolution of their disputes.
---------------------------------------------------------------------------

    \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, as
amended, would 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, as amended.

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:
     By order approve such proposed rule change; or
     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 an e-mail to<EMAIL_ADDRESS>Please include

File Number SR-NYSE-2005-37 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-2005-37. 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 NYSE and on
the NYSE's Web site, http://www.nyse.com. All comments received will be posted

without change; the Commission does not edit personal identifying
information from submissions. You should submit only information that
you wish to make available publicly. All submissions should refer to
File Number SR-NYSE-2005-37 and should be submitted on or before
November 16, 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. E5-5923 Filed 10-25-05; 8:45 am]

BILLING CODE 8010-01-P


[Federal Register Volume 87, Number 87 (Thursday, May 5, 2022)]
[Notices]
[Pages 26749-26750]
[FR Doc No: 2022-09638]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 2705-037]

Seattle City Light; Notice of Application for Surrender of
License, Soliciting Comments, Motions To Intervene, and Protests; and
Notice of Existing Licensee's Intent Not To File a New License
Application

    Take notice that the following hydroelectric application has been
filed with the Commission and is available for public inspection:
    a. Type of Proceeding: Application for surrender of license.
    b. Project No.: 2705-037.
    c. Date Filed: January 28, 2022.
    d. Licensee: Seattle City Light.
    e. Name of Project: Newhalem Creek Hydroelectric Project.
    f. Location: The project is located on the Newhalem Creek in
Whatcom County, Washington. The project occupies federal lands within
the Ross Lake National Recreation Area managed by the National Park
Service.
    g. Filed Pursuant to: Federal Power Act, 16 U.S.C. 791a-825r.
    h. Licensee Contact: Mr. Michael Haynes, Assistant General Manager,
Seattle City Light, P.O. Box 3402, Seattle, WA 98124.
    i. FERC Contact: Diana Shannon,<PHONE_NUMBER>,
[email protected].
    j. Deadline for filing comments, interventions, and protests: May
31, 2022.
    The Commission strongly encourages electronic filing. Please file
motions to intervene, protests and comments using the Commission's
eFiling system at http://www.ferc.gov/docs-filing/efiling.asp.
Commenters can submit brief comments up to 6,000 characters, without
prior registration, using the eComment system at http://www.ferc.gov/docs-filing/ecomment.asp. You must include your name and contact
information at the end of your comments. For assistance, please contact
FERC Online Support at [email protected],<PHONE_NUMBER> (toll
free), or<PHONE_NUMBER> (TTY). In lieu of electronic filing, please
send a paper copy to: Secretary, Federal Energy Regulatory Commission,
888 First Street NE, Washington, DC 20426. The first page of any filing
should include docket number P-2705-037.
    The Commission's Rules of Practice and Procedure require all
intervenors filing documents with the Commission to serve a copy of
that document on each person whose name appears on the official service
list for the project. Further, if an intervenor files comments or
documents with the Commission relating to the merits of an issue that
may affect the responsibilities of a particular resource agency, they
must also serve a copy of the document on that resource agency.
    k. Description of Request: The licensee proposes to surrender the
project which occupies 6.4 acres of federal land managed by the
National Park Service. The licensee states that the project is no
longer operational and had not been consistently in service since 2010
due to the following issues: Leaks in the power tunnel; maintenance
needs at the headworks and powerhouse; and safety concerns along the
access road due to an active landslide. The licensee states that the
revenues anticipated form continued operation of the Project were
exceeded by the estimated costs of making the needed repairs and
seeking relicensing. In its surrender application, the licensee
proposes to: Remove the diversion dam and associated headworks
structures, tailrace fish barrier, and certain overhead transmission
lines; seal the rock shaft and power tunnel; decommission the access
road and powerhouse; and leave the powerhouse, tailrace, and penstock
in place. The current license expires on January 31, 2027.
    l. At least five years, but no more than five and one-half years,
before the expiration of a license for a major water power project
subject to sections 14 and 15 of the Federal Power Act, the licensee
must file with the Commission a letter that contains an unequivocal
statement of the licensee's intent to file or not to file an
application for a subsequent license. 18 CFR 16.6(a)-(c) (2021).
    m. If such a licensee informs the Commission that it does not
intend to file an application for a new license, nonpower license, or
exemption for the project, the licensee may not file an application for
a new license, nonpower license, or exemption for the project, either
individually or in conjunction with an entity or entities that are not
currently licensees of the project. 18 CFR 16.24(a).
    n. On April 28, 2021, Seattle City Light, the existing licensee for
the Newhalem Creek Hydroelectric Project No. 2705, filed notice of its
intent to not file an application for a new license.\1\ On January 28,
2022, Seattle City Light filed an application for surrender of license.
By filing a notice of intent not to file an application for a new
license and an application to surrender its license, Seattle City Light
has clearly expressed its intent not to file an application for a new
license.
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    \1\ Because Seattle City Light filed the notice of intent to not
file an application for a new license more than five and one-half
years before the expiration of the license and filed an application
for surrender of license more than five years but not more than five
and one-half years before the expiration of the license, we waive
the applicable requirement in 18 CFR 16.6(c)(1).
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    o. Locations of the Application: This filing may be viewed on the
Commission's website at http://www.ferc.gov/docs-filing/elibrary.asp.
Enter the docket number excluding the last three digits in the docket
number field to access the document. You may also register online at
http://www.ferc.gov/docs-filing/esubscription.asp to be notified via
email of new filings and issuances related to this or other pending
projects. For assistance, call 1-866-208-3676 or email
[email protected], for TTY, call<PHONE_NUMBER>. A copy is
also available for inspection and reproduction in the Commission's
Public Reference Room located at 888 First Street NE, Room 2A,
Washington, DC 20426, or by calling<PHONE_NUMBER>.
    p. Individuals desiring to be included on the Commission's mailing
list should so indicate by writing to the Secretary of the Commission.
    q. Comments, Protests, or Motions to Intervene: Anyone may submit
comments, a protest, or a motion to intervene in accordance with the
requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211,
.212 and .214. In determining the appropriate action to take, the
Commission will consider all protests or other comments filed, but only
those who file a motion to intervene in accordance with the
Commission's Rules may become a party to the proceeding. Any comments,
protests, or motions to intervene must be received on or before the
specified comment date for the particular application.
    r. Filing and Service of Responsive Documents: Any filing must (1)
bear in all capital letters the title ``COMMENTS'', ``PROTEST'', or
``MOTION TO INTERVENE'' as applicable; (2) set forth in the heading the
name of the applicant and the project number of the application to
which the filing responds; (3) furnish the name, address, and telephone
number of the person protesting or intervening; and (4) otherwise
comply with the requirements of 18 CFR 385.2001 through 385.2005. All
comments, motions to intervene, or protests must set forth their
evidentiary basis and otherwise comply with the

requirements of 18 CFR 4.34(b). All comments, motions to intervene, or
protests should relate to the surrender application that is the subject
of this notice. Agencies may obtain copies of the application directly
from the applicant. A copy of any protest or motion to intervene must
be served upon each representative of the applicant specified in the
particular application. If an intervener files comments or documents
with the Commission relating to the merits of an issue that may affect
the responsibilities of a particular resource agency, they must also
serve a copy of the document on that resource agency. A copy of all
other filings in reference to this application must be accompanied by
proof of service on all persons listed in the service list prepared by
the Commission in this proceeding, in accordance with 18 CFR 4.34(b)
and 385.2010.

    Dated: April 29, 2022.
Kimberly D. Bose,
Secretary.
[FR Doc. 2022-09638 Filed 5-4-22; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register Volume 78, Number 61 (Friday, March 29, 2013)]
[Notices]
[Page 19355]
[FR Doc No: 2013-07379]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

Announcement of Charter Renewal of the Radio Technical Commission
for Aeronautics (RTCA), Inc.

SUMMARY: The FAA is issuing this notice to advise the public of the
charter renewal of RTCA, 1110.77U, a Federal Advisory Committee that
seeks resolution of issues and challenges involving air transportation
concepts, requirements, operational capabilities, and the associated
use of technology and related considerations to aeronautical operations
that impact the future Air Traffic Management System. This charter
renewal will take effect on April 1, 2013, and will expire after 2
years.

FOR FURTHER INFORMATION CONTACT: Paige Williams, Administrative
Officer, Federal Aviation Administration, 950 L'Enfant Plaza SW.,
Mailstop 4th floor, 081, Washington, DC 20591,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: Pursuant to section 10(a) (2) of the Federal
Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., App.), notice is
hereby given for the charter renewal of RTCA, 1110.77U. RTCA is a not-
for-profit organization of government and industry representatives.
RTCA benefits the public interest and supports the FAA in performing
its duties and responsibilities under Subtitle VII, 49 U.S.C. 40101.
The FAA and seven other government agencies use RTCA as a federal
advisory committee. On January 2, 1976, the FAA, the major government
user of RTCA products, assumed sponsorship on behalf of all government
agencies. RTCA brings together representatives of the government and
industry to form special committees and steering committees to provide
advice and recommendations on key operational and technological issues
that impact the Next Generation Air Transportation System (NextGen)
implementation and the Air Traffic Management System. This order can be
found on the FAA.GOV Web site under ``Regulations & Policies'' and
select ``Orders & Notices'' or you can also find this order on the
MyFAA Employee Web site. Use ``Tools & Resources'' and select ``Orders
& Notices'' or directly at http://www.faa.gov/documentLibrary/media/Order/1110.77U.pdf.

    Issued in Washington, DC, on March 26, 2013.
Paige Williams,
Management Analyst, NextGen, Business Operations Group, Federal
Aviation Administration.
[FR Doc. 2013-07379 Filed 3-28-13; 8:45 am]
BILLING CODE 4910-13-P