Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Order Granting Accelerated Approval of Proposed Rule Change and Amendment Nos. 1 and 2 Relating to Trading Claymore MACROshares Oil Up Tradeable Shares and Claymore MACROshares Oil Down Tradeable Shares Pursuant to Unlisted Trading Privileges, 1253-1257 [E7-157]

Download as PDF Federal Register / Vol. 72, No. 6 / Wednesday, January 10, 2007 / Notices mstockstill on PROD1PC61 with NOTICES of the unregistered investment pool industry has grown, and Unregistered Investment Pools and their advisers have become significant participants in the industry. FICC reexamined its treatment of participants that are Unregistered Investment Pools and has determined it is necessary to enhance the clearing membership standards applicable to these entities. FICC is proposing to adopt a definition for Unregistered Investment Pool, which will identify the entities that would become subject to the enhanced membership requirements for such entities. Under the new membership requirements, an Unregistered Investment Pool is an entity that holds a pool of securities and/or other assets that meets the following criteria: (i) It is not registered as an investment company under the Investment Company Act of 1940, (ii) it does not register its securities offerings under the Securities Act of 1933, and (iii) it has an investment advisor that is registered with the Commission under the Investment Advisers Act of 1940, or if the investment adviser is not registered, the Unregistered Investment Pool has a lock-up period of two (2) years or greater. Entities that meet the definition of Unregistered Investment Pool will be eligible to apply to become MBSD clearing participants only if they meet the new membership criteria set forth below.5 The MBSD’s current participants that fall within the definition of Unregistered Investment Pool will have one year from the date of approval of this rule filing in which to conform to the new minimum financial and qualitative rating requirements. The new membership requirements for Unregistered Investment Pools are as follows: (1) SEC Registration: The investment advisor of the Unregistered Investment Pool must: (i) be registered with the Commission under the Investment Advisers Act of 1940 or (ii) if it is not registered with the Commission, the Unregistered Investment Pool that the investment adviser advises must have an initial lock-up period of two (2) years or greater. (2) Minimum Net Assets: The Unregistered Investment Pool will be required to have and to maintain net ‘‘net assets’’ to more accurately state the financial requirement. 5 It is important to note that entities that meet the MBSD’s definition of Unregistered Investment Pool will be treated as such by the MBSD regardless of whether the entity considers itself to be an Unregistered Investment Pool. VerDate Aug<31>2005 14:22 Jan 09, 2007 Jkt 211001 assets of $250 million or greater.6 If the Unregistered Investment Pool does not meet the $250 million net asset requirement but the Unregistered Investment Pool has net assets of at least $50 million 7 or greater, the Unregistered Investment Pool will be eligible for MBSD clearing membership if its investment advisor has assets under management of at least $1.5 billion and advises an existing MBSD clearing participant. (3) Qualitative Rating: The MBSD will require an Unregistered Investment Pool to obtain a minimum required rating of ‘‘above average’’ as a result of an FICC internal qualitative assessment. FICC believes it is important to consider qualitative factors in order to assess both Unregistered Investment Pool applicants and members.8 III. Discussion Section 17A(b)(3)(F) of the Act requires that the rules of a clearing agency be designed to assure the safeguarding of securities and funds which are in its custody or control.9 The Commission finds that FICC’s proposed rule change is consistent with this requirement because by enhancing membership requirements for Unregistered Investment Pools, FICC should be better able to mitigate financial risk to itself and to its 6 The $250 million net assets requirement is the requirement that will be applicable to Unregistered Investment Pools whose financial statements are prepared in accordance with U.S. GAAP. Those Unregistered Investment Pools whose financial statements are prepared using other types of GAAP will be subject to the higher minimum requirements as determined by Article III, Rule 1, Section 2 of the MBSD’s Rules. 7 The $50 million net assets requirement is the requirement that will be applicable to Unregistered Investment Pools whose financial statements are prepared in accordance with U.S. GAAP. Those Unregistered Investment Pools whose financial statements are prepared using other types of GAAP will be subject to the higher minimum requirements as determined by Article III, Rule 1, Section 2 of the MBSD’s Rules. 8 Staff in the MBSD’s Risk Division will determine a qualitative rating for each Unregistered Investment Pool applicant and will review qualitative ratings of Unregistered Investment Pool members on an annual basis. The assessment will include consideration of factors deemed relevant by the Risk Division, including management, capital, strategy and risk profile, and internal controls. (Because responsibility for these factors with respect to a particular Unregistered Investment Pool may be with the Unregistered Investment Pool, with the investment advisor, with some other entity (i.e., a third party service provider), or with some combination of these, Risk staff will perform the assessment for each factor with the entity or entities it deems appropriate.) The assessment will assess the strengths and weaknesses of these factors and will assign a qualitative rating to the Unregistered Investment Pool. In order to qualify for membership, Unregistered Investment Pools must meet a qualitative rating of at least ‘‘above average’’ as determined by the Risk Division’s staff. 9 15 U.S.C. 78q–1(b)(3)(F). PO 00000 Frm 00042 Fmt 4703 Sfmt 4703 1253 members and therefore should be better able to assure the safeguarding of securities and funds that are in its custody or control or for which it is responsible. IV. Conclusion On the basis of the foregoing, the Commission finds that the proposal is consistent with the requirements of the Act and in particular with the requirements of Section 17A of the Act 10 and the rules and regulations thereunder. It is therefore ordered, pursuant to Section 19(b)(2) of the Act, that the proposed rule change (File No. SR– FICC–2006–10) be and hereby is approved.11 For the Commission by the Division of Market Regulation, pursuant to delegated authority.12 Florence E. Harmon, Deputy Secretary. [FR Doc. E7–158 Filed 1–9–07; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–55033; File No. SR– NYSEArca-2006–75] Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Order Granting Accelerated Approval of Proposed Rule Change and Amendment Nos. 1 and 2 Relating to Trading Claymore MACROshares Oil Up Tradeable Shares and Claymore MACROshares Oil Down Tradeable Shares Pursuant to Unlisted Trading Privileges December 29, 2006. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’),1 and Rule 19b–4 thereunder,2 notice is hereby given that on October 10, 2006, NYSE Arca, Inc. (the ‘‘Exchange’’), through its wholly owned subsidiary NYSE Arca Equities, Inc. (‘‘NYSE Arca Equities’’), filed with the Securities and Exchange Commission (the ‘‘Commission’’) the proposed rule change as described in Items I and II below, which Items have been substantially prepared by the Exchange. On November 9, 2006, the Exchange filed Amendment No. 1 to the proposed 10 15 U.S.C. 78q–1. approving the proposed rule change, the Commission considered efficiency, competition and capital formation. 15 U.S.C. 78c(f). 12 17 CFR 200.30–3(a)(12). 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 11 In E:\FR\FM\10JAN1.SGM 10JAN1 1254 Federal Register / Vol. 72, No. 6 / Wednesday, January 10, 2007 / Notices rule change.3 The Exchange filed Amendment No. 2 to the proposed rule change on December 12, 2006.4 The Commission is publishing this notice and order to solicit comment on the proposed rule change, as amended, from interested persons and to approve the proposed rule change and Amendment Nos. 1 and 2 thereto on an accelerated basis. mstockstill on PROD1PC61 with NOTICES I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Exchange, through its whollyowned subsidiary NYSE Arca Equities, proposes to amend its rules governing NYSE Arca, LLC (also referred to as the ‘‘NYSE Arca Marketplace’’), the equities trading facility of NYSE Arca Equities. The Exchange proposes new NYSE Arca Equities Rule 8.400 to permit trading, either by listing or pursuant to unlisted trading privileges (‘‘UTP’’), of ‘‘Paired Trust Shares.’’ Pursuant to this proposed new rule, the Exchange initially proposes to trade, pursuant to UTP: (1) Claymore MACROshares Oil Up Tradeable Shares (the ‘‘Up-MACRO 5 Tradeable Shares’’) and (2) Claymore MACROshares Oil Down Tradeable 3 Amendment No. 1 replaced and superseded the original filing in its entirety. 4 In Amendment No. 2, the Exchange, among other things, (1) Added proposed NYSE Arca Equities Rule 8.400(e)(1) and (4) relating to limitations on dealings of certain Market Makers in order to address potential conflicts of interest in connection with acting as a Market Maker in Paired Trust Shares, (2) added proposed NYSE Arca Equities Rule 8.400(e)(2)–(3) to ensure that Market Makers handling the Paired Trust Shares provide the Exchange with all the necessary information relating to their trading in the asset, commodity or other economic interest underlying the Reference Price for the Paired Trust Shares, or their trading in any related derivatives, (3) revised the description of the offering process for the MACRO Tradeable Shares and the MACRO Holding Shares to reflect that there will be a continuous creation and offering of MACRO Tradeable Shares and MACRO Holding Shares by Authorized Participants, (4) eliminated the rule text providing for possible recapitalization of the Holding Trust based on specified event, (5) revised the continued listing standards (in the event that the Exchange is the listing market for a series of Paired Trust Shares in the future) in proposed NYSE Arca Equities Rule 8.400(d) to require the availability on an intraday basis at 15-second intervals of certain market data and estimates of per share underlying values, to require the underlying value of each paired Holding Trust to be available on a daily basis to all market participants at the same time, and to require the Exchange to file a proposed rule change pursuant to Rule 19b–4 of the Act if a substitute index or other replacement benchmark is selected for the determination of the Referenced Price, (6) clarified certain trading rules applicable to the MACRO Tradeable Shares, and (7) made a number of other corrections and clarifications to the description in the Purpose Section of the characteristics of the MACRO Holding Trusts, MACRO Tradeable Trusts, MACRO Holding Shares and the MACRO Tradeable Shares. 5 MACRO is a federally-registered servicemark of MacroMarkets LLC (‘‘MacroMarkets’’). VerDate Aug<31>2005 14:22 Jan 09, 2007 Jkt 211001 Shares (the ‘‘Down-MACRO Tradeable Shares’’ and together with the UpMACRO Tradeable Shares, the ‘‘MACRO Tradeable Shares’’). The MACRO Tradeable Shares are issued by and represent an undivided beneficial interest in (1) the Claymore MACROshares Oil Up Tradeable Trust (the ‘‘Up-MACRO Tradeable Trust’’) and (2) the Claymore MACROshares Oil Down Tradeable Trust (the ‘‘DownMACRO Tradeable Trust’’), respectively. The assets of these trusts (collectively, the ‘‘MACRO Tradeable Trusts’’) each will consist exclusively of a majority of the Claymore MACROshares Oil Up Holding Shares (‘‘Up-MACRO Holding Shares’’) issued by the Claymore MACROshares Oil Up Holding Trust (‘‘Up-MACRO Holding Trust’’) and the Claymore MACROshares Oil Down Holding Shares (‘‘Down-MACRO Holding Shares’’) issued by the Claymore MACROshares Oil Down Holding Trust (‘‘Down-MACRO Holding Trust’’).6 The text of the proposed rule change is available on the Exchange’s Web site at http://www.nysearca.com, at the principal office of the Exchange 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 Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item III below. The Exchange has prepared summaries, set forth in Sections (A), (B), and (C) below, of the most significant aspects of such statements. A. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change (1) Purpose The Exchange proposes to add new NYSE Arca Equities Rule 8.400 to permit trading, either by listing or pursuant to UTP, of securities issued by a pair of related trusts and based on an index or other numerical variable (‘‘Reference Price’’) whose value reflects the value of assets, prices or other economic interests. When the Exchange 6 The Up-MACRO Holding Shares and DownMACRO Holding Shares (collectively, MACRO Holding Shares’’) will not be listed or traded on the Exchange. PO 00000 Frm 00043 Fmt 4703 Sfmt 4703 is the listing market for Paired Trust Shares, the Paired Trust Shares will be subject to the continued listing and trading criteria under proposed new NYSE Arca Rule 8.400(d). For each separate and discrete Reference Price that may underlie Paired Trust Shares, the Exchange will submit a filing pursuant to Section 19(b) 7 of the Act subject to Commission review and approval. The Exchange may eventually seek to revise the proposed listing criteria and trading rules to permit the listing and trading of Paired Trust Shares pursuant to Rule 19b–4(e) under the Act. Pursuant to proposed NYSE Arca Equities Rule 8.400, the Exchange proposes to trade pursuant to UTP the MACRO Tradeable Shares. The Commission previously approved the listing and trading of the MACRO Tradeable Shares on the American Stock Exchange LLC (‘‘Amex’’).8 The Exchange deems the MACRO Tradeable Shares to be equity securities, thus rendering trading in the MACRO Tradeable Shares subject to the Exchange’s existing rules governing the trading of equity securities. The MACRO Tradeable Shares will trade on the NYSE Arca Marketplace from 9:30 a.m. until 4:15 p.m. (New York time). Quotations for and last sale information regarding the MACRO Tradeable Shares are disseminated through the Consolidated Tape System (‘‘CTS’’). During each trading day, the Amex, acting as the calculation agent, will publish to the CTS, at least every 15 seconds during the entire time that the MACRO Tradeable Shares trade on the Amex (normally 9:30 a.m. to 4:15 p.m. each Price Determination Day 9), an indicative value, referred to as an Indicative Intraday Value (‘‘IIV’’), representing the estimated underlying value per share of both the Up-MACRO Tradeable Shares and the DownMACRO Tradeable Shares. The Amex will also publish these values on its 7 15 U.S.C. 78s(b). Securities Exchange Act Release No. 34– 54839 (SR–Amex–2006–82) (November 29, 2006) (the ‘‘Amex Order’’). 9 A ‘‘Price Determination Day’’ for this purpose is each day on which trading of the light sweet crude oil futures contract of the designated maturity occurs by open outcry on the trading floor of the NYMEX (located in New York City, New York) through the use of verbal or hand signals, rather than through electronic or other means. Price Determination Days are generally the same as business days—that is, any day other than a Saturday, a Sunday or a day on which banking institutions and stock exchanges in New York, New York are authorized or required by law, regulation or executive order to close. If a substitute reference oil price is being used, the Price Determination Day will be each day on which this price is determined by, or in accordance with the rules of, the substitute oil price provider. 8 See E:\FR\FM\10JAN1.SGM 10JAN1 Federal Register / Vol. 72, No. 6 / Wednesday, January 10, 2007 / Notices mstockstill on PROD1PC61 with NOTICES Web site. To enable this calculation, the Amex will receive real time price data from the NYMEX for the light sweet crude oil futures contract that trades on the NYMEX from two major market data vendors, from the opening of trading of the light sweet crude oil futures contract on NYMEX at 10 a.m. to the close of trading of the MACRO Tradeable Shares on the Amex at 4:15 p.m. (New York City time). In addition, the closing price of the MACRO Tradeable Shares on the NYSE Arca Marketplace will be available on the Exchange’s Web site. Because the NYMEX market for the light sweet crude oil futures contract will be closed for portions of the period from 9:30 a.m. to 4:15 p.m. ET, the IIV calculated values will become fixed at such time as the NYMEX contract stops trading during this time.10 From 9:30 a.m. to 4:15 p.m. ET, however, if trading in the NYMEX light sweet crude oil futures contract is occurring on the CME Globex electronic trading platform, then those trades will be used to update IIV values. The administrative agent, Claymore Securities, will maintain a Web site (http:// www.ClaymoreMacroShares.com) that is publicly accessible at no charge and will contain the following information posted by the trustee on each Price Determination Day: 11 • The daily Price Level Percentage Change of the Applicable Reference Price of Crude Oil; • The daily underlying value 12 of the Up-MACRO Holding Trust and the per share underlying value of the UpMACRO Holding Shares and the UpMACRO Tradeable Shares; and • The daily underlying value of the Down-MACRO Holding Trust and the per share underlying value of the Down10 The IIV calculated value between the opening of trading of the MACRO Tradeable Shares at 9:30 a.m. and the opening of trading of the light sweet crude oil futures contract on NYMEX at 10 a.m. (New York City time) will be based on the final price from the prior trading day. 11 As a condition of initial listing, the Exchange will receive a representation on behalf of the Holding Trusts and Tradeable Trusts that the underlying value per share of each Holding Share and each Tradeable Share will be calculated daily and will be made available to all market participants at the same time. 12 The ‘‘underlying value’’ of a MACRO Holding Trust on each Price Determination Day represents the aggregate amount of the assets in the paired MACRO Holding Trusts to which that MACRO Holding Trust would be entitled if the settlement contracts were settled on that day. The determination of the ‘‘underlying value’’ of a MACRO Holding Trust on a given Price Determination Day is calculated using the following formula, which is designed to ensure that a $1 change in the settlement price of the Applicable Reference Price of Crude Oil will result in a $1 change in the per share underlying value of each MACRO Holding Share. VerDate Aug<31>2005 14:22 Jan 09, 2007 Jkt 211001 MACRO Holding Shares and the DownMACRO Tradeable Shares. Pricing and other information for NYMEX light sweet crude oil futures contracts, including those designated to be the Applicable Reference Price, is available through major market data vendors such as Reuters and Bloomberg. Unless exemptive or no-action relief is available, the MACRO Tradeable Shares will be subject to the short sale rule, Rule 10a–1 under the Securities Exchange Act of 1934, as amended (the ‘‘Act’’). If exemptive or no-action relief is provided, the Exchange will issue a notice detailing the terms of the exemption or relief. Prior to the commencement of trading, the Exchange will inform its ETP Holders in an Information Bulletin of the special characteristics and risks associated with trading the MACRO Tradeable Shares. Specifically, the Information Bulletin will discuss the following: (1) What the MACRO Tradeable Shares are; (2) how they are created and exchanged for MACRO Holding Shares by Authorized Participants (and that MACRO Holding Shares are issuable and redeemable only in MACRO Units); (3) NYSE Arca Equities Rule 9.2(a),13 which imposes a duty of due diligence on its ETP Holders to learn the essential facts relating to every customer prior to trading the Shares; (4) dissemination of information regarding the underlying value of each paired MACRO Holding Trust and the share of that underlying value allocable to one Up-MACRO Holding Share, one Up-MACRO Tradeable Share, one Down-MACRO Holding Share and one Down-MACRO Tradeable Share; (5) the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued MACRO Tradeable Shares prior to or concurrently with the confirmation of a transaction; and (6) trading information. In addition, the Information Bulletin will reference that the MACRO Holding Trusts and the MACRO Tradeable Trusts are subject to various fees and 13 The Exchange amended NYSE Arca Equities Rule 9.2(a) to provide that ETP Holders, before recommending a transaction, must have reasonable grounds to believe that the recommendation is suitable for the customer based on any facts disclosed by the customer as to his other security holdings and as to his financial situation and needs. Further, the proposed rule amendment provides, with a limited exception, that prior to the execution of a transaction recommended to a non-institutional customer, the ETP Holders shall make reasonable efforts to obtain information concerning the customer’s financial status, tax status, investment objectives, and any other information that they believe would be useful to make a recommendation. See Securities Exchange Act Release No. 54045 (June 26, 2006), 71 FR 37971 (July 3, 2006) (SR– PCX–2005–115). PO 00000 Frm 00044 Fmt 4703 Sfmt 4703 1255 expenses described in the Registration Statement. The Information Bulletin will also reference that the Commission has no jurisdiction over the trading of the NYMEX light sweet crude oil futures contract. The Information Bulletin will also discuss any exemptive, no-action and interpretive relief granted by the Commission from any rules under the Act. The Exchange intends to utilize its existing surveillance procedures applicable to derivative products to monitor trading in the MACRO Tradeable Shares. The Exchange represents that these procedures are adequate to properly monitor Exchange trading of the MACRO Tradeable Shares and to deter and detect violations of Exchange rules. 2. Statutory Basis The proposed rule change is consistent with Section 6(b) 14 of the Act, in general, and furthers the objectives of Section 6(b)(5) 15 in particular in that it is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, and to remove impediments to and perfect the mechanism of a free and open market and a national market system. In addition, the proposed rule change is consistent with Rule 12f–5 16 under the Act because it deems the MACRO Tradeable Shares to be equity securities, thus rendering the MACRO Tradeable Shares subject to the Exchange’s rules governing the trading of equity securities. B. Self-Regulatory Organization’s Statement on Burden on Competition The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. C. Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others Written comments on the proposed rule change were neither solicited nor received. III. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, 14 15 U.S.C. 78f(b). U.S.C. 78f(b)(5). 16 17 CFR 240.12f–5. 15 15 E:\FR\FM\10JAN1.SGM 10JAN1 1256 Federal Register / Vol. 72, No. 6 / Wednesday, January 10, 2007 / Notices including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: mstockstill on PROD1PC61 with NOTICES Commission finds that the proposed rule change is consistent with Section 6(b)(5) of the Act,18 which requires that an exchange have rules designed, among other things, to promote just and Electronic Comments equitable principles of trade, to remove • Use the Commission’s Internet impediments to and perfect the comment form (http://www.sec.gov/ mechanism of a free and open market rules/sro.shtml); or and a national market system, and in • Send an e-mail to rulegeneral to protect investors and the comments@sec.gov. Please include File public interest. No. SR–NYSEArca–2006–75 on the In addition, the Commission finds subject line. that the proposal is consistent with Section 12(f) of the Act,19 which permits Paper Comments an exchange to trade, pursuant to UTP, • Send paper comments in triplicate a security that is listed and registered on to Nancy M. Morris, Secretary, another exchange.20 The Commission Securities and Exchange Commission, notes that it previously approved the Station Place, 100 F Street NE., listing and trading of the MACRO Washington, DC 20549–1090. Tradeable Shares on Amex.21 The All submissions should refer to File Commission also finds that the proposal No. SR–NYSEArca–2006–75. This file is consistent with Rule 12f–5 under the number should be included on the Act,22 which provides that an exchange subject line if e-mail is used. To help the shall not extend UTP to a security Commission process and review your unless the exchange has in effect a rule comments more efficiently, please use or rules providing for transactions in the only one method. The Commission will class or type of security to which the post all comments on the Commission’s exchange extends UTP.23 The Exchange Internet Web site (http://www.sec.gov/ has represented that it meets this rules/sro.shtml). Copies of the requirement because it deems the submission, all subsequent MACRO Tradeable Shares to be equity amendments, all written statements securities, thus rendering trading in the with respect to the proposed rule MACRO Tradeable Shares subject to the change that are filed with the Exchange’s existing rules governing the Commission, and all written trading of equity securities. communications relating to the The Commission further believes that proposed rule change between the the proposal is consistent with Section Commission and any person, other than 11A(a)(1)(C)(iii) of the Act,24 which sets those that may be withheld from the forth Congress’ finding that it is in the public in accordance with the public interest and appropriate for the provisions of 5 U.S.C. 552, will be protection of investors and the available for inspection and copying in maintenance of fair and orderly markets the Commission’s Public Reference Room. Copies of such filing also will be to assure the availability to brokers, dealers, and investors of information available for inspection and copying at with respect to quotations for and the principal offices of the Exchange. transactions in securities. All comments received will be posted without change; the Commission does A. Surveillance not edit personal identifying The Commission notes that the information from submissions. You Exchange has represented that its should submit only information that surveillance procedures are adequate to you wish to make available publicly. All submissions should refer to File No. 18 15 U.S.C. 78f(b)(5). SR–NYSEArca–2006–75 and should be 19 15 U.S.C. 78l(f). 20 Section 12(a) of the Act, 15 U.S.C. 78l(a), submitted on or before January 31, 2007. IV. Commission’s Findings and Order Granting Accelerated Approval of the Proposed Rule Change After careful review, 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.17 In particular, the 17 In approving this rule change, the Commission notes that it has considered the proposed rule’s impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). VerDate Aug<31>2005 14:22 Jan 09, 2007 Jkt 211001 generally prohibits a broker-dealer from trading a security on a national securities exchange unless the security is registered on that exchange pursuant to Section 12 of the Act. Section 12(f) of the Act excludes from this restriction trading in any security to which an exchange ‘‘extends UTP.’’ When an exchange extends UTP to a security, it allows its members to trade the security as if it were listed and registered on the exchange even though it is not so listed and registered. 21 See Amex Order, supra note 7. 22 17 CFR 240.12f–5. 23 The Exchange has adopted in conjunction with the approval of this filing new NYSE Arca Equities Rule 8.400 to permit trading, either by listing or pursuant to UTP, of Paired Trust Shares. 24 15 U.S.C. 78k–1(a)(1)(C)(iii). PO 00000 Frm 00045 Fmt 4703 Sfmt 4703 monitor trading in the Paired Trust Shares. The Exchange’s Information Sharing Agreement with the NYMEX for the purpose of providing information in connection with trading in or related to futures contracts traded on the NYMEX creates the basis for the Exchange to monitor for fraudulent and manipulative practices in the trading of the Paired Trust Shares. Moreover, adoption of proposed NYSE Arca Equities Rule 8.400(e) should facilitate surveillance because it will require ETP Holders acting as registered Market Makers in the Paired Trust Shares to provide the Exchange with information relating to trading in the asset, commodity or other economic interest underlying the Reference Price, options, related futures or options on futures, or any other related derivatives. B. Dissemination of Information Quotations for and last sale information regarding the MACRO Trust Shares are disseminated through the CTS. Furthermore, Amex will publish through the CTS and on its Web site the IIV, representing the estimated underlying value per share of both the UP–MACRO Tradeable Shares and the Down-MACRO Tradeable Shares every 15 seconds during the entire time between 9:30 a.m. to 4:15 p.m. NYSE Arca Equities Rule 7.34 describes the situations when the Exchange will halt trading. In particular, NYSE Arca Equities Rule 7.34(a)(4)(B) requires the Exchange to immediately halt trading in the MACRO Tradeable Shares if the listing market halts trading because the IIV or the value of the applicable Index is not calculated or widely disseminated. In cases were the Exchange is acting as the listing market for a series of Paired Trust Shares, the Exchange will halt trading no later than the beginning of the trading day following the interruption if the interruption to the dissemination of the IIVs or the futures contract prices persists past the trading day in which it occurred. The Commission believes that these trading halt rules will help ensure that an appropriate level of transparency exists with respect to MACRO Tradeable Shares to allow for the maintenance of fair and orderly markets. C. Listing and Trading The Commission finds that the Exchange’s proposed rules and procedures for the listing and trading of the Paired Trust Shares are consistent with the Act. The Paired Trust Shares will trade as equity securities subject to the Exchange’s existing rules governing the trading of equity securities. The Commission finds that proposed NYSE E:\FR\FM\10JAN1.SGM 10JAN1 mstockstill on PROD1PC61 with NOTICES Federal Register / Vol. 72, No. 6 / Wednesday, January 10, 2007 / Notices Arca Equities Rule 8.400(e) establishing certain restrictions on ETP Holders acting as registered Market Makers in Paired Trust Shares is reasonably designed to address potential conflicts of interest in connection with ETP Holders acting as registered Market Makers in Paired Trust Shares.25 The Commission believes that the listing and delisting criteria for the Paired Trust Shares should help to maintain a minimum level of liquidity and therefore minimize the potential for manipulation of the Paired Trust Shares. Additionally, the Commission finds that proposed NYSE Arca Equities Rule 8.400(e) is reasonably designed to help ensure that an ETP Holder acting as a Market Maker in Paired Trust Shares provide the Exchange with all the necessary information relating to their trading in the asset, commodity or other economic interest underlying the Reference Price, related options, related futures or options on futures, or any other related derivatives. The Commission notes that, if the MACRO Tradeable Shares should be delisted by the listing exchange, the Exchange would no longer have authority to trade the MACRO Tradeable Shares pursuant to this approval order. In support of this proposal, the Exchange has made the following representations: 1. The Exchange’s surveillance procedures are adequate to properly monitor Exchange trading of the MACRO Tradeable Shares. 2. Prior to the commencement of trading, the Exchange will inform its ETP Holders in an Information Bulletin of the special characteristics and risks associated with trading the MACRO Tradeable Shares. 3. The Exchange will require ETP Holders to deliver a prospectus to investors purchasing newly issued MACRO Tradeable Shares prior to or concurrently with the confirmation of a transaction and will note this prospectus delivery requirement in the information circular. This approval order is conditioned on the Exchange’s adherence to these representations. The Commission finds good cause for approving this proposal before the thirtieth day after the publication of notice thereof in the Federal Register. As noted previously, the Commission previously found that the listing and trading of the MACRO Tradeable Shares on Amex is consistent with the Act. The 25 Proposed NYSE Arca Equities Rule 8.400(e) provides that the prohibitions in NYSE Arca Equities Rule 7.26 apply to an ETP Holder acting as a registered Market Maker in Paired Trust Shares. VerDate Aug<31>2005 14:22 Jan 09, 2007 Jkt 211001 Commission presently is not aware of any regulatory issue that should cause it to revisit that earlier finding or preclude the trading of the MACRO Tradeable Shares on the Exchange pursuant to UTP. Therefore, accelerating approval of this proposal should benefit investors by creating, without undue delay, additional competition in the market for the MACRO Tradeable Shares. V. Conclusion It is therefore ordered, pursuant to Section 19(b)(2) of the Act,26 that the proposed rule change (SR–NYSEArca– 2006–75), as amended by Amendment Nos. 1 and 2, be and hereby is, approved on an accelerated basis. For the Commission, by the Division of Market Regulation, pursuant to delegated authority.27 Nancy M. Morris, Secretary. [FR Doc. E7–157 Filed 1–9–07; 8:45 am] BILLING CODE 8011–01–P SMALL BUSINESS ADMINISTRATION [Disaster Declaration #10770 and #10771] New York Disaster #NY–00041 U.S. Small Business Administration. ACTION: Notice. AGENCY: 27 17 PO 00000 U.S.C. 78s(b)(2). CFR 200.30–3(a)(12). Frm 00046 Fmt 4703 Sfmt 4703 The following areas have been determined to be adversely affected by the disaster: Primary Counties (Physical Damage and Economic Injury Loans): Broome, Chenango. Contiguous Counties (Economic Injury Loans Only): New York; Cortland, Delaware, Madison, Otsego, Tioga. Pennsylvania; Susquehanna, Wayne. The Interest Rates are: Percent For Physical Damage: Homeowners With Credit Available Elsewhere: ..................... Homeowners Without Credit Available Elsewhere: ............. Businesses With Credit Available Elsewhere: ..................... Other (Including Non-Profit Organizations) With Credit Available Elsewhere: ............. Businesses and Non-Profit Organizations Without Credit Available Elsewhere: ............. For Economic Injury: Businesses & Small Agricultural Cooperatives Without Credit Available Elsewhere .............. 6.000 3.000 8.000 5.250 4.000 4.000 The number assigned to this disaster for physical damage is 10770 B and for economic injury is 107710. (Catalog of Federal Domestic Assistance Numbers 59002 and 59008) SUMMARY: This is a Notice of the Presidential declaration of a major disaster for the State of New York (FEMA–1670–DR), dated 12/22/2006. Incident: Severe Storms and Flooding. Incident Period: 11/16/2006 through 11/17/2006. Effective Date: 12/22/2006. Physical Loan Application Deadline Date: 2/20/2007. Economic Injury (Eidl) Loan Application Deadline Date: 9/24/2007. ADDRESSES: Submit completed loan applications to: U.S. Small Business Administration, Processing And Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155. FOR FURTHER INFORMATION CONTACT: A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416. SUPPLEMENTARY INFORMATION: Notice is hereby given that as a result of the President’s major disaster declaration on 12/22/2006, applications for disaster loans may be filed at the address listed above or other locally announced locations. 26 15 1257 James E. Rivera, Acting Associate Administrator for Disaster Assistance. [FR Doc. E7–142 Filed 1–9–07; 8:45 am] BILLING CODE 8025–01–P SMALL BUSINESS ADMINISTRATION [Disaster Declaration #10768 and #10769] Pennsylvania Disaster #PA–00007 U.S. Small Business Administration. ACTION: Notice. AGENCY: SUMMARY: This is a notice of an Administrative declaration of a disaster for the Commonwealth of Pennsylvania dated 12/27/2006. Incident: Severe Storms and Tornadoes. Incident Period: 12/1/2006. Effective Date: 12/27/2006. Physical Loan Application Deadline Date: 2/26/2007. Economic Injury (EIDL) Loan Application Deadline Date: 9/27/2007. ADDRESSES: Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth , TX 76155. E:\FR\FM\10JAN1.SGM 10JAN1

Agencies

[Federal Register Volume 72, Number 6 (Wednesday, January 10, 2007)]
[Notices]
[Pages 1253-1257]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-157]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-55033; File No. SR-NYSEArca-2006-75]


Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
and Order Granting Accelerated Approval of Proposed Rule Change and 
Amendment Nos. 1 and 2 Relating to Trading Claymore MACROshares Oil Up 
Tradeable Shares and Claymore MACROshares Oil Down Tradeable Shares 
Pursuant to Unlisted Trading Privileges

December 29, 2006.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on October 10, 2006, NYSE Arca, Inc. (the ``Exchange''), through its 
wholly owned subsidiary NYSE Arca Equities, Inc. (``NYSE Arca 
Equities''), filed with the Securities and Exchange Commission (the 
``Commission'') the proposed rule change as described in Items I and II 
below, which Items have been substantially prepared by the Exchange. On 
November 9, 2006, the Exchange filed Amendment No. 1 to the proposed

[[Page 1254]]

rule change.\3\ The Exchange filed Amendment No. 2 to the proposed rule 
change on December 12, 2006.\4\ The Commission is publishing this 
notice and order to solicit comment on the proposed rule change, as 
amended, from interested persons and to approve the proposed rule 
change and Amendment Nos. 1 and 2 thereto on an accelerated basis.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ Amendment No. 1 replaced and superseded the original filing 
in its entirety.
    \4\ In Amendment No. 2, the Exchange, among other things, (1) 
Added proposed NYSE Arca Equities Rule 8.400(e)(1) and (4) relating 
to limitations on dealings of certain Market Makers in order to 
address potential conflicts of interest in connection with acting as 
a Market Maker in Paired Trust Shares, (2) added proposed NYSE Arca 
Equities Rule 8.400(e)(2)-(3) to ensure that Market Makers handling 
the Paired Trust Shares provide the Exchange with all the necessary 
information relating to their trading in the asset, commodity or 
other economic interest underlying the Reference Price for the 
Paired Trust Shares, or their trading in any related derivatives, 
(3) revised the description of the offering process for the MACRO 
Tradeable Shares and the MACRO Holding Shares to reflect that there 
will be a continuous creation and offering of MACRO Tradeable Shares 
and MACRO Holding Shares by Authorized Participants, (4) eliminated 
the rule text providing for possible recapitalization of the Holding 
Trust based on specified event, (5) revised the continued listing 
standards (in the event that the Exchange is the listing market for 
a series of Paired Trust Shares in the future) in proposed NYSE Arca 
Equities Rule 8.400(d) to require the availability on an intraday 
basis at 15-second intervals of certain market data and estimates of 
per share underlying values, to require the underlying value of each 
paired Holding Trust to be available on a daily basis to all market 
participants at the same time, and to require the Exchange to file a 
proposed rule change pursuant to Rule 19b-4 of the Act if a 
substitute index or other replacement benchmark is selected for the 
determination of the Referenced Price, (6) clarified certain trading 
rules applicable to the MACRO Tradeable Shares, and (7) made a 
number of other corrections and clarifications to the description in 
the Purpose Section of the characteristics of the MACRO Holding 
Trusts, MACRO Tradeable Trusts, MACRO Holding Shares and the MACRO 
Tradeable Shares.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange, through its wholly-owned subsidiary NYSE Arca 
Equities, proposes to amend its rules governing NYSE Arca, LLC (also 
referred to as the ``NYSE Arca Marketplace''), the equities trading 
facility of NYSE Arca Equities. The Exchange proposes new NYSE Arca 
Equities Rule 8.400 to permit trading, either by listing or pursuant to 
unlisted trading privileges (``UTP''), of ``Paired Trust Shares.'' 
Pursuant to this proposed new rule, the Exchange initially proposes to 
trade, pursuant to UTP: (1) Claymore MACROshares Oil Up Tradeable 
Shares (the ``Up-MACRO \5\ Tradeable Shares'') and (2) Claymore 
MACROshares Oil Down Tradeable Shares (the ``Down-MACRO Tradeable 
Shares'' and together with the Up-MACRO Tradeable Shares, the ``MACRO 
Tradeable Shares'').
---------------------------------------------------------------------------

    \5\ MACRO[supreg] is a federally-registered servicemark of 
MacroMarkets LLC (``MacroMarkets'').
---------------------------------------------------------------------------

    The MACRO Tradeable Shares are issued by and represent an undivided 
beneficial interest in (1) the Claymore MACROshares Oil Up Tradeable 
Trust (the ``Up-MACRO Tradeable Trust'') and (2) the Claymore 
MACROshares Oil Down Tradeable Trust (the ``Down-MACRO Tradeable 
Trust''), respectively. The assets of these trusts (collectively, the 
``MACRO Tradeable Trusts'') each will consist exclusively of a majority 
of the Claymore MACROshares Oil Up Holding Shares (``Up-MACRO Holding 
Shares'') issued by the Claymore MACROshares Oil Up Holding Trust 
(``Up-MACRO Holding Trust'') and the Claymore MACROshares Oil Down 
Holding Shares (``Down-MACRO Holding Shares'') issued by the Claymore 
MACROshares Oil Down Holding Trust (``Down-MACRO Holding Trust'').\6\
---------------------------------------------------------------------------

    \6\ The Up-MACRO Holding Shares and Down-MACRO Holding Shares 
(collectively, MACRO Holding Shares'') will not be listed or traded 
on the Exchange.
---------------------------------------------------------------------------

    The text of the proposed rule change is available on the Exchange's 
Web site at http://www.nysearca.com, at the principal office of the 
Exchange 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 Exchange included statements 
concerning the purpose of, and basis for, the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item III below. The Exchange has prepared summaries, set forth in 
Sections (A), (B), and (C) below, of the most significant aspects of 
such statements.

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

(1) Purpose
    The Exchange proposes to add new NYSE Arca Equities Rule 8.400 to 
permit trading, either by listing or pursuant to UTP, of securities 
issued by a pair of related trusts and based on an index or other 
numerical variable (``Reference Price'') whose value reflects the value 
of assets, prices or other economic interests. When the Exchange is the 
listing market for Paired Trust Shares, the Paired Trust Shares will be 
subject to the continued listing and trading criteria under proposed 
new NYSE Arca Rule 8.400(d). For each separate and discrete Reference 
Price that may underlie Paired Trust Shares, the Exchange will submit a 
filing pursuant to Section 19(b) \7\ of the Act subject to Commission 
review and approval. The Exchange may eventually seek to revise the 
proposed listing criteria and trading rules to permit the listing and 
trading of Paired Trust Shares pursuant to Rule 19b-4(e) under the Act.
---------------------------------------------------------------------------

    \7\ 15 U.S.C. 78s(b).
---------------------------------------------------------------------------

    Pursuant to proposed NYSE Arca Equities Rule 8.400, the Exchange 
proposes to trade pursuant to UTP the MACRO Tradeable Shares. The 
Commission previously approved the listing and trading of the MACRO 
Tradeable Shares on the American Stock Exchange LLC (``Amex'').\8\
---------------------------------------------------------------------------

    \8\ See Securities Exchange Act Release No. 34-54839 (SR-Amex-
2006-82) (November 29, 2006) (the ``Amex Order'').
---------------------------------------------------------------------------

    The Exchange deems the MACRO Tradeable Shares to be equity 
securities, thus rendering trading in the MACRO Tradeable Shares 
subject to the Exchange's existing rules governing the trading of 
equity securities. The MACRO Tradeable Shares will trade on the NYSE 
Arca Marketplace from 9:30 a.m. until 4:15 p.m. (New York time).
    Quotations for and last sale information regarding the MACRO 
Tradeable Shares are disseminated through the Consolidated Tape System 
(``CTS''). During each trading day, the Amex, acting as the calculation 
agent, will publish to the CTS, at least every 15 seconds during the 
entire time that the MACRO Tradeable Shares trade on the Amex (normally 
9:30 a.m. to 4:15 p.m. each Price Determination Day \9\), an indicative 
value, referred to as an Indicative Intraday Value (``IIV''), 
representing the estimated underlying value per share of both the Up-
MACRO Tradeable Shares and the Down-MACRO Tradeable Shares. The Amex 
will also publish these values on its

[[Page 1255]]

Web site. To enable this calculation, the Amex will receive real time 
price data from the NYMEX for the light sweet crude oil futures 
contract that trades on the NYMEX from two major market data vendors, 
from the opening of trading of the light sweet crude oil futures 
contract on NYMEX at 10 a.m. to the close of trading of the MACRO 
Tradeable Shares on the Amex at 4:15 p.m. (New York City time). In 
addition, the closing price of the MACRO Tradeable Shares on the NYSE 
Arca Marketplace will be available on the Exchange's Web site.
---------------------------------------------------------------------------

    \9\ A ``Price Determination Day'' for this purpose is each day 
on which trading of the light sweet crude oil futures contract of 
the designated maturity occurs by open outcry on the trading floor 
of the NYMEX (located in New York City, New York) through the use of 
verbal or hand signals, rather than through electronic or other 
means. Price Determination Days are generally the same as business 
days--that is, any day other than a Saturday, a Sunday or a day on 
which banking institutions and stock exchanges in New York, New York 
are authorized or required by law, regulation or executive order to 
close. If a substitute reference oil price is being used, the Price 
Determination Day will be each day on which this price is determined 
by, or in accordance with the rules of, the substitute oil price 
provider.
---------------------------------------------------------------------------

    Because the NYMEX market for the light sweet crude oil futures 
contract will be closed for portions of the period from 9:30 a.m. to 
4:15 p.m. ET, the IIV calculated values will become fixed at such time 
as the NYMEX contract stops trading during this time.\10\ From 9:30 
a.m. to 4:15 p.m. ET, however, if trading in the NYMEX light sweet 
crude oil futures contract is occurring on the CME Globex electronic 
trading platform, then those trades will be used to update IIV values.
---------------------------------------------------------------------------

    \10\ The IIV calculated value between the opening of trading of 
the MACRO Tradeable Shares at 9:30 a.m. and the opening of trading 
of the light sweet crude oil futures contract on NYMEX at 10 a.m. 
(New York City time) will be based on the final price from the prior 
trading day.
---------------------------------------------------------------------------

    The administrative agent, Claymore Securities, will maintain a Web 
site (http://www.ClaymoreMacroShares.com) that is publicly accessible 
at no charge and will contain the following information posted by the 
trustee on each Price Determination Day: \11\
---------------------------------------------------------------------------

    \11\ As a condition of initial listing, the Exchange will 
receive a representation on behalf of the Holding Trusts and 
Tradeable Trusts that the underlying value per share of each Holding 
Share and each Tradeable Share will be calculated daily and will be 
made available to all market participants at the same time.
---------------------------------------------------------------------------

     The daily Price Level Percentage Change of the Applicable 
Reference Price of Crude Oil;
     The daily underlying value \12\ of the Up-MACRO Holding 
Trust and the per share underlying value of the Up-MACRO Holding Shares 
and the Up-MACRO Tradeable Shares; and
---------------------------------------------------------------------------

    \12\ The ``underlying value'' of a MACRO Holding Trust on each 
Price Determination Day represents the aggregate amount of the 
assets in the paired MACRO Holding Trusts to which that MACRO 
Holding Trust would be entitled if the settlement contracts were 
settled on that day. The determination of the ``underlying value'' 
of a MACRO Holding Trust on a given Price Determination Day is 
calculated using the following formula, which is designed to ensure 
that a $1 change in the settlement price of the Applicable Reference 
Price of Crude Oil will result in a $1 change in the per share 
underlying value of each MACRO Holding Share.
---------------------------------------------------------------------------

     The daily underlying value of the Down-MACRO Holding Trust 
and the per share underlying value of the Down-MACRO Holding Shares and 
the Down-MACRO Tradeable Shares.
    Pricing and other information for NYMEX light sweet crude oil 
futures contracts, including those designated to be the Applicable 
Reference Price, is available through major market data vendors such as 
Reuters and Bloomberg.
    Unless exemptive or no-action relief is available, the MACRO 
Tradeable Shares will be subject to the short sale rule, Rule 10a-1 
under the Securities Exchange Act of 1934, as amended (the ``Act''). If 
exemptive or no-action relief is provided, the Exchange will issue a 
notice detailing the terms of the exemption or relief.
    Prior to the commencement of trading, the Exchange will inform its 
ETP Holders in an Information Bulletin of the special characteristics 
and risks associated with trading the MACRO Tradeable Shares. 
Specifically, the Information Bulletin will discuss the following: (1) 
What the MACRO Tradeable Shares are; (2) how they are created and 
exchanged for MACRO Holding Shares by Authorized Participants (and that 
MACRO Holding Shares are issuable and redeemable only in MACRO Units); 
(3) NYSE Arca Equities Rule 9.2(a),\13\ which imposes a duty of due 
diligence on its ETP Holders to learn the essential facts relating to 
every customer prior to trading the Shares; (4) dissemination of 
information regarding the underlying value of each paired MACRO Holding 
Trust and the share of that underlying value allocable to one Up-MACRO 
Holding Share, one Up-MACRO Tradeable Share, one Down-MACRO Holding 
Share and one Down-MACRO Tradeable Share; (5) the requirement that ETP 
Holders deliver a prospectus to investors purchasing newly issued MACRO 
Tradeable Shares prior to or concurrently with the confirmation of a 
transaction; and (6) trading information.
---------------------------------------------------------------------------

    \13\ The Exchange amended NYSE Arca Equities Rule 9.2(a) to 
provide that ETP Holders, before recommending a transaction, must 
have reasonable grounds to believe that the recommendation is 
suitable for the customer based on any facts disclosed by the 
customer as to his other security holdings and as to his financial 
situation and needs. Further, the proposed rule amendment provides, 
with a limited exception, that prior to the execution of a 
transaction recommended to a non-institutional customer, the ETP 
Holders shall make reasonable efforts to obtain information 
concerning the customer's financial status, tax status, investment 
objectives, and any other information that they believe would be 
useful to make a recommendation. See Securities Exchange Act Release 
No. 54045 (June 26, 2006), 71 FR 37971 (July 3, 2006) (SR-PCX-2005-
115).
---------------------------------------------------------------------------

    In addition, the Information Bulletin will reference that the MACRO 
Holding Trusts and the MACRO Tradeable Trusts are subject to various 
fees and expenses described in the Registration Statement. The 
Information Bulletin will also reference that the Commission has no 
jurisdiction over the trading of the NYMEX light sweet crude oil 
futures contract. The Information Bulletin will also discuss any 
exemptive, no-action and interpretive relief granted by the Commission 
from any rules under the Act.
    The Exchange intends to utilize its existing surveillance 
procedures applicable to derivative products to monitor trading in the 
MACRO Tradeable Shares. The Exchange represents that these procedures 
are adequate to properly monitor Exchange trading of the MACRO 
Tradeable Shares and to deter and detect violations of Exchange rules.
2. Statutory Basis
    The proposed rule change is consistent with Section 6(b) \14\ of 
the Act, in general, and furthers the objectives of Section 6(b)(5) 
\15\ in particular in that it is designed to prevent fraudulent and 
manipulative acts and practices, to promote just and equitable 
principles of trade, to foster cooperation and coordination with 
persons engaged in facilitating transactions in securities, and to 
remove impediments to and perfect the mechanism of a free and open 
market and a national market system.
---------------------------------------------------------------------------

    \14\ 15 U.S.C. 78f(b).
    \15\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    In addition, the proposed rule change is consistent with Rule 12f-5 
\16\ under the Act because it deems the MACRO Tradeable Shares to be 
equity securities, thus rendering the MACRO Tradeable Shares subject to 
the Exchange's rules governing the trading of equity securities.
---------------------------------------------------------------------------

    \16\ 17 CFR 240.12f-5.
---------------------------------------------------------------------------

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants or Others

    Written comments on the proposed rule change were neither solicited 
nor received.

III. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing,

[[Page 1256]]

including whether the proposed rule change is consistent with the Act. 
Comments may be submitted by any of the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://
www.sec.gov/rules/sro.shtml); or
     Send an e-mail to rule-comments@sec.gov. Please include 
File No. SR-NYSEArca-2006-75 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris, 
Secretary, Securities and Exchange Commission, Station Place, 100 F 
Street NE., Washington, DC 20549-1090.
    All submissions should refer to File No. SR-NYSEArca-2006-75. This 
file number should be included on the subject line if e-mail is used. 
To help the Commission process and review your comments more 
efficiently, please use only one method. The Commission will post all 
comments on the Commission's Internet Web site (http://www.sec.gov/
rules/sro.shtml). Copies of the submission, all subsequent amendments, 
all written statements with respect to the proposed rule change that 
are filed with the Commission, and all written communications relating 
to the proposed rule change between the Commission and any person, 
other than those that may be withheld from the public in accordance 
with the provisions of 5 U.S.C. 552, will be available for inspection 
and copying in the Commission's Public Reference Room. Copies of such 
filing also will be available for inspection and copying at the 
principal offices 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 No. SR-NYSEArca-2006-75 and should be submitted on or before 
January 31, 2007.

IV. Commission's Findings and Order Granting Accelerated Approval of 
the Proposed Rule Change

    After careful review, 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.\17\ In particular, the Commission finds that the proposed 
rule change is consistent with Section 6(b)(5) of the Act,\18\ which 
requires that an exchange have rules designed, among other things, to 
promote just and equitable principles of trade, to remove impediments 
to and perfect the mechanism of a free and open market and a national 
market system, and in general to protect investors and the public 
interest.
---------------------------------------------------------------------------

    \17\ In approving this rule change, the Commission notes that it 
has considered the proposed rule's impact on efficiency, 
competition, and capital formation. See 15 U.S.C. 78c(f).
    \18\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    In addition, the Commission finds that the proposal is consistent 
with Section 12(f) of the Act,\19\ which permits an exchange to trade, 
pursuant to UTP, a security that is listed and registered on another 
exchange.\20\ The Commission notes that it previously approved the 
listing and trading of the MACRO Tradeable Shares on Amex.\21\ The 
Commission also finds that the proposal is consistent with Rule 12f-5 
under the Act,\22\ which provides that an exchange shall not extend UTP 
to a security unless the exchange has in effect a rule or rules 
providing for transactions in the class or type of security to which 
the exchange extends UTP.\23\ The Exchange has represented that it 
meets this requirement because it deems the MACRO Tradeable Shares to 
be equity securities, thus rendering trading in the MACRO Tradeable 
Shares subject to the Exchange's existing rules governing the trading 
of equity securities.
---------------------------------------------------------------------------

    \19\ 15 U.S.C. 78l(f).
    \20\ Section 12(a) of the Act, 15 U.S.C. 78l(a), generally 
prohibits a broker-dealer from trading a security on a national 
securities exchange unless the security is registered on that 
exchange pursuant to Section 12 of the Act. Section 12(f) of the Act 
excludes from this restriction trading in any security to which an 
exchange ``extends UTP.'' When an exchange extends UTP to a 
security, it allows its members to trade the security as if it were 
listed and registered on the exchange even though it is not so 
listed and registered.
    \21\ See Amex Order, supra note 7.
    \22\ 17 CFR 240.12f-5.
    \23\ The Exchange has adopted in conjunction with the approval 
of this filing new NYSE Arca Equities Rule 8.400 to permit trading, 
either by listing or pursuant to UTP, of Paired Trust Shares.
---------------------------------------------------------------------------

    The Commission further believes that the proposal is consistent 
with Section 11A(a)(1)(C)(iii) of the Act,\24\ which sets forth 
Congress' finding that it is in the public interest and appropriate for 
the protection of investors and the maintenance of fair and orderly 
markets to assure the availability to brokers, dealers, and investors 
of information with respect to quotations for and transactions in 
securities.
---------------------------------------------------------------------------

    \24\ 15 U.S.C. 78k-1(a)(1)(C)(iii).
---------------------------------------------------------------------------

A. Surveillance

    The Commission notes that the Exchange has represented that its 
surveillance procedures are adequate to monitor trading in the Paired 
Trust Shares. The Exchange's Information Sharing Agreement with the 
NYMEX for the purpose of providing information in connection with 
trading in or related to futures contracts traded on the NYMEX creates 
the basis for the Exchange to monitor for fraudulent and manipulative 
practices in the trading of the Paired Trust Shares.
    Moreover, adoption of proposed NYSE Arca Equities Rule 8.400(e) 
should facilitate surveillance because it will require ETP Holders 
acting as registered Market Makers in the Paired Trust Shares to 
provide the Exchange with information relating to trading in the asset, 
commodity or other economic interest underlying the Reference Price, 
options, related futures or options on futures, or any other related 
derivatives.

B. Dissemination of Information

    Quotations for and last sale information regarding the MACRO Trust 
Shares are disseminated through the CTS. Furthermore, Amex will publish 
through the CTS and on its Web site the IIV, representing the estimated 
underlying value per share of both the UP-MACRO Tradeable Shares and 
the Down-MACRO Tradeable Shares every 15 seconds during the entire time 
between 9:30 a.m. to 4:15 p.m.
    NYSE Arca Equities Rule 7.34 describes the situations when the 
Exchange will halt trading. In particular, NYSE Arca Equities Rule 
7.34(a)(4)(B) requires the Exchange to immediately halt trading in the 
MACRO Tradeable Shares if the listing market halts trading because the 
IIV or the value of the applicable Index is not calculated or widely 
disseminated. In cases were the Exchange is acting as the listing 
market for a series of Paired Trust Shares, the Exchange will halt 
trading no later than the beginning of the trading day following the 
interruption if the interruption to the dissemination of the IIVs or 
the futures contract prices persists past the trading day in which it 
occurred. The Commission believes that these trading halt rules will 
help ensure that an appropriate level of transparency exists with 
respect to MACRO Tradeable Shares to allow for the maintenance of fair 
and orderly markets.

C. Listing and Trading

    The Commission finds that the Exchange's proposed rules and 
procedures for the listing and trading of the Paired Trust Shares are 
consistent with the Act. The Paired Trust Shares will trade as equity 
securities subject to the Exchange's existing rules governing the 
trading of equity securities. The Commission finds that proposed NYSE

[[Page 1257]]

Arca Equities Rule 8.400(e) establishing certain restrictions on ETP 
Holders acting as registered Market Makers in Paired Trust Shares is 
reasonably designed to address potential conflicts of interest in 
connection with ETP Holders acting as registered Market Makers in 
Paired Trust Shares.\25\
---------------------------------------------------------------------------

    \25\ Proposed NYSE Arca Equities Rule 8.400(e) provides that the 
prohibitions in NYSE Arca Equities Rule 7.26 apply to an ETP Holder 
acting as a registered Market Maker in Paired Trust Shares.
---------------------------------------------------------------------------

    The Commission believes that the listing and delisting criteria for 
the Paired Trust Shares should help to maintain a minimum level of 
liquidity and therefore minimize the potential for manipulation of the 
Paired Trust Shares. Additionally, the Commission finds that proposed 
NYSE Arca Equities Rule 8.400(e) is reasonably designed to help ensure 
that an ETP Holder acting as a Market Maker in Paired Trust Shares 
provide the Exchange with all the necessary information relating to 
their trading in the asset, commodity or other economic interest 
underlying the Reference Price, related options, related futures or 
options on futures, or any other related derivatives.
    The Commission notes that, if the MACRO Tradeable Shares should be 
delisted by the listing exchange, the Exchange would no longer have 
authority to trade the MACRO Tradeable Shares pursuant to this approval 
order.
    In support of this proposal, the Exchange has made the following 
representations:
    1. The Exchange's surveillance procedures are adequate to properly 
monitor Exchange trading of the MACRO Tradeable Shares.
    2. Prior to the commencement of trading, the Exchange will inform 
its ETP Holders in an Information Bulletin of the special 
characteristics and risks associated with trading the MACRO Tradeable 
Shares.
    3. The Exchange will require ETP Holders to deliver a prospectus to 
investors purchasing newly issued MACRO Tradeable Shares prior to or 
concurrently with the confirmation of a transaction and will note this 
prospectus delivery requirement in the information circular.
    This approval order is conditioned on the Exchange's adherence to 
these representations.
    The Commission finds good cause for approving this proposal before 
the thirtieth day after the publication of notice thereof in the 
Federal Register. As noted previously, the Commission previously found 
that the listing and trading of the MACRO Tradeable Shares on Amex is 
consistent with the Act. The Commission presently is not aware of any 
regulatory issue that should cause it to revisit that earlier finding 
or preclude the trading of the MACRO Tradeable Shares on the Exchange 
pursuant to UTP. Therefore, accelerating approval of this proposal 
should benefit investors by creating, without undue delay, additional 
competition in the market for the MACRO Tradeable Shares.

V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\26\ that the proposed rule change (SR-NYSEArca-2006-75), as 
amended by Amendment Nos. 1 and 2, be and hereby is, approved on an 
accelerated basis.
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    \26\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\27\
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    \27\ 17 CFR 200.30-3(a)(12).
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Nancy M. Morris,
Secretary.
[FR Doc. E7-157 Filed 1-9-07; 8:45 am]
BILLING CODE 8011-01-P