From: George Rutherfurd
I have just learned that the NYSE has actually issued, on October 26, 2005, the Information Memo submitted for SEC approval in the above-referenced rule submission (NYSE 05-81). This is plainly illegal, as the Commission has yet to issue an approval order giving the NYSE legal authority to act in this matter.
As I have noted in other correspondence (see particularly my December 11, 2005 comment letter) an "interpretation" is eligible for immediate effectiveness only if the Commission determines that it has been "properly designated" as an interpretation pursuant to SEC Rule 19b-4(f). The Commission has made no such determination, nor, as my correspondence demonstrates in very specific detail, can it.
The NYSE knows full well that it does not have SEC approval in this matter, as it has resubmitted the Information Memo once in November and twice in December, without having obtained SEC approval.
The SEC staff must advise the NYSE that it has acted improperly here, and that it must rescind Information Memo 05-81 unless and until the SEC approves a properly submitted, formal amendment to the text of Rule 108, subject to the normal prior public comment process.
The NYSE's actions here are deeply disappointing. How can one have confidence in a "regulator" that does not itself follow the law?