03-26644. Self Regulatory Organizations; New York Stock Exchange, Inc.; Order Granting Approval to Proposed Rule Change Relating to Continuing Annual Fees for “Repackaged” Securities

October 15, 2003.

On August 28, 2003, the New York Stock Exchange, Inc. (“NYSE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) ^[1] and Rule 19b-4 thereunder, ^[2] a proposed rule change to amend Section 902.02 of the NYSE's Listed Company Manual to implement certain changes to the continuing annual listing fees payable in connection with certain structured products called “repackaged” securities (“Repacks”), and to reinstate the Exchange's “15-year” policy with respect to previously listed Repacks.

The proposed rule change was published for comment in the Federal Register on September 10, 2003.^[3] The Commission received no comments on the proposal.

The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange ^[4] and, in particular, the requirements of Section 6 of the Act ^[5] and the rules and regulations thereunder. The Commission finds specifically that the proposed rule change is consistent with Section 6(b) of the Act, ^[6] and in particular with Section 6(b)(4) of the Act, ^[7] in that it is designed to provide for the equitable allocation of reasonable dues, fees, and other charges among its members and issuers and other persons using its facilities. The Commission believes that reinstatement of the “15-year” policy for Repacks listed prior to January 1, 2003, should eliminate the unintended consequence of imposing an economic burden on Repack trusts that do not have sufficient funding to pay continuing annual listing fees because the trust had relied on the policy. The Commission notes that, with respect to Repacks listed after January 1, 2003, the continuing annual listing fees will be applicable to Repacks at the time of listing and will remain in effect for the life of the security (i.e., the “15-year” policy will not apply). The Commission believes that the proposed rule change should provide guidance as to applicable fees for present and future Repacks ^[8] and should provide trust depositors with notice for Repacks listed after January 1, 2003 to reserve funding to pay continuing annual listing fees.

It is therefore ordered, pursuant to Section 19(b)(2) of the Act, ^[9] that the proposed rule change (File No. SR-NYSE-2003-25) be, and it hereby is, approved.

For the Commission, by the Division of Market Regulation, pursuant to delegated authority.^[10]

Margaret H. McFarland,

Deputy Secretary.

Footnotes

1.  15 U.S.C. 78s(b)(1).

2.  17 CFR 240.19b-4.

3.  See Securities Exchange Act Release No. 48429 (September 3, 2003), 68 FR 53411.

4.  In approving this proposed rule change, the Commission notes that it has considered the proposed rule's impact on efficiency, competition, and capital formation. 15 U.S.C. 78c(f).

5.  15 U.S.C. 78f.

6.  15 U.S.C. 78f(b).

7.  15 U.S.C. 78f(b)(4).

8.  The proposed rule change is effective from the date of this approval order and cannot be applied retroactively.

9.  15 U.S.C. 78s(b)(2).

10.  17 CFR 200.30-3(a)(12).