Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Order Granting Accelerated Approval of Proposed Rule Change as Modified by Amendment No. 1 Thereto To Trade Shares of 81 Funds of the ProShares Trust Pursuant to Unlisted Trading Privileges, 3462-3466 [E7-1058]

Download as PDF 3462 Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Notices notes that NASD’s amendments were largely in response to comments that the Commission received. The Commission believes that Amendment No. 6 adequately responds to commenters’ concerns and notes that the proposed changes raise no new issues of regulatory concern. Accordingly, the Commission believes that granting accelerated approval to the filing is appropriate. IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the filing, including whether the filing is consistent with the Act. Comments may be submitted by any of the following methods: ycherry on PROD1PC64 with NOTICES Electronic Comments • Use the Commission’s Internet comment form (http://www.sec.gov/ rules/sro.shtml); or • Send an e-mail to rulecomments@sec.gov. Please include File Number SR–NASD–2003–168 on the subject line. Paper Comments • Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090. All submissions should refer to File Number SR–NASD–2003–168. 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 the filing also will be available for inspection and copying at the principal office of the NASD. 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 VerDate Aug<31>2005 14:58 Jan 24, 2007 Jkt 211001 Number SR–NASD–2003–168 and should be submitted on or before February 15, 2007. VI. Conclusion For the foregoing reasons, the Commission finds that the proposed rule change, as amended, is consistent with the requirements of the Act and rules and regulations thereunder applicable to a national securities association, and, in particular, Section 15A(b)(6) of the Act 70 and 15A(i) of the Act.71 It is therefore ordered, pursuant to Section 19(b)(2) of the Act,72 that the proposed rule change (SR–NASD–2003– 168) is hereby approved on an accelerated basis. For the Commission, by the Division of Market Regulation, pursuant to delegated authority.73 Florence E. Harmon, Deputy Secretary. [FR Doc. E7–1108 Filed 1–24–07; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–55125; File No. SR– NYSEArca–2006–87] Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Order Granting Accelerated Approval of Proposed Rule Change as Modified by Amendment No. 1 Thereto To Trade Shares of 81 Funds of the ProShares Trust Pursuant to Unlisted Trading Privileges January 18, 2007. 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 November 13, 2006, NYSE Arca, Inc. (‘‘Exchange’’), through its wholly owned subsidiary NYSE Arca Equities, Inc. (‘‘NYSE Arca Equities’’), filed with the Securities and Exchange Commission (‘‘Commission’’) the proposed rule change as described in Items I and II below, which Items have been substantially prepared by the Exchange. On January 11, 2007, the Exchange filed Amendment No. 1 to the proposed rule change. This order provides notice of the proposed rule change, as amended, and approves the proposal on an accelerated basis. 70 15 U.S.C. 78o–3(b)(6). 71 15 U.S.C. 78o–3(i). 72 15 U.S.C. 78s(b)(2). 73 17 CFR 200.30–3(a)(12). 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. PO 00000 Frm 00080 Fmt 4703 Sfmt 4703 I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Exchange, through NYSE Arca Equities, proposes to trade pursuant to unlisted trading privileges (‘‘UTP’’) shares (‘‘Shares’’) of 81 funds (‘‘Funds’’) of the ProShares Trust (‘‘Trust’’) based on numerous underlying securities indexes. The text of the proposed rule change is available on the Exchange’s Web site at (http://www.nysearca.com), at the Exchange’s Office of the Secretary, and at the Commission. 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 trade the Shares of the 81 Funds pursuant to UTP under NYSE Arca Equities Rule 5.2(j)(3).3 The Commission has approved the original listing and trading of the Shares on the American Stock Exchange LLC (‘‘Amex’’).4 The Funds are referred to as the Ultra Funds, Short Funds, and UltraShort Funds, as described more fully below. Each Fund would attempt, on a daily basis, to achieve its investment objective by corresponding to a specified multiple of the performance, or the inverse performance, of a particular equity securities index that underlies that Fund (each an ‘‘Underlying Index’’). Ultra Funds: Certain Funds seek daily investment results, before fees and expenses, that correspond to twice (200%) the daily performance of the Underlying Indexes (‘‘Ultra Funds’’).5 If such Funds meet 3 Under NYSE Arca Equities Rule 5.2(j)(3) the Exchange may propose to list and/or trade pursuant to UTP ‘‘Investment Company Units.’’ 4 See Securities Exchange Act Release No. 55117 (January 17, 2007) (SR–Amex–2006–101). 5 The Commission has previously approved trading certain Ultra Funds, Short Funds, and E:\FR\FM\25JAN1.SGM 25JAN1 Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Notices their objective, the net asset value (the ‘‘NAV’’) 6 of the Shares of each Fund should increase (on a percentage basis) approximately twice as much as the Fund’s Underlying Index when the prices of the securities in such Index increase on a given day, and should lose approximately twice as much when such prices decline on a given day. The Short Funds and UltraShort Funds (as described below) each have investment objectives that seek investment results corresponding to an inverse performance of the Underlying Indexes. The Ultra Funds are (1) Ultra Russell 2000, (2) Ultra S&P SmallCap 600, (3) Ultra S&P500/Citigroup Value, (4) Ultra S&P500/Citigroup Growth, (5) Ultra S&P MidCap 400/Citigroup Value, (6) Ultra S&P MidCap 400/Citigroup Growth, (7) Ultra S&P SmallCap 600/Citigroup Value, (8) Ultra S&P SmallCap 600/ Citigroup Growth, (9) Ultra Basic Materials, (10) Ultra Consumer Goods, (11) Ultra Consumer Services, (12) Ultra Financials, (13) Ultra Health Care, (14) Ultra Industrials, (15) Ultra Oil & Gas, (16) Ultra Real Estate, (17) Ultra Semiconductors, (18) Ultra Technology, (19) Ultra Utilities, (20) Ultra Russell Midcap Index, (21) Ultra Russell Midcap Growth Index, (22) Ultra Russell Midcap Value Index, (23) Ultra Russell 1000 Index, (24) Ultra Russell 1000 Growth Index, (25) Ultra Russell 1000 Value Index, (26) Ultra Russell 2000 Growth Index, and (27) Ultra Russell 2000 Value Index. ycherry on PROD1PC64 with NOTICES Short Funds The Exchange also proposes to trade Shares of certain Funds that seek daily investment results, before fees and expenses, that correspond to the inverse or opposite of the daily performance (¥100%) of the Underlying Indexes (‘‘Short Funds’’). If such a Fund is successful in meeting its objective, the NAV of the corresponding Shares should increase approximately as much (on a percentage basis) as the respective Underlying Index loses when the prices of the securities in the Index decline on a given day, or should decrease approximately as much as the respective Index gains when prices in the Index rise on a given day. The Short Funds are (1) Short Russell 2000, (2) Short S&P SmallCap 600, (3) UltraShort Funds of the ProShares Trust on the Exchange pursuant to UTP under NYSE Arca Equities Rule 5.2(j)(3). See Securities Exchange Act Release No. 54026 (June 21, 2006), 71 FR 36850 (June 28, 2006) (SR–PCX–2005–115). 6 NAV per Share of each Fund is computed by dividing the value of the net assets of such Fund (i.e., the value of its total assets less total liabilities) by its total number of Shares outstanding. Expenses and fees are accrued daily and taken into account for purposes of determining NAV. VerDate Aug<31>2005 14:58 Jan 24, 2007 Jkt 211001 Short S&P500/Citigroup Value, (4) Short S&P500/Citigroup Growth, (5) Short S&P MidCap 400/Citigroup Value, (6) Short S&P MidCap 400/Citigroup Growth, (7) Short S&P SmallCap 600/ Citigroup Value, (8) Short S&P SmallCap 600/Citigroup Growth, (9) Short Basic Materials, (10) Short Consumer Goods, (11) Short Consumer Services, (12) Short Financials, (13) Short Health Care, (14) Short Industrials, (15) Short Oil & Gas, (16) Short Real Estate, (17) Short Semiconductors, (18) Short Technology, (19) Short Utilities, (20) Short Russell Midcap Index, (21) Short Russell Midcap Growth Index, (22) Short Russell Midcap Value Index, (23) Short Russell 1000 Index, (24) Short Russell 1000 Growth Index, (25) Short Russell 1000 Value Index, (26) Short Russell 2000 Growth Index, and (27) Short Russell 2000 Value Index. Ultra-Short Funds The Exchange also proposes to trade Shares of certain Funds that seek daily investment results, before fees and expenses, that correspond to twice the inverse (¥200%) of the daily performance of the Underlying Indexes (‘‘UltraShort Funds’’). If such a Fund is successful in meeting its objective, the NAV of the corresponding Shares should increase approximately twice as much (on a percentage basis) as the respective Underlying Index loses when the prices of the securities in the Index decline on a given day, or should decrease approximately twice as much as the respective Underlying Index gains when such prices rise on a given day. The UltraShort Funds include (1) UltraShort Russell 2000, (2) UltraShort S&P SmallCap 600, (3) UltraShort S&P500/Citigroup Value, (4) UltraShort S&P500/Citigroup Growth, (5) UltraShort S&P MidCap 400/Citigroup Value, (6) UltraShort S&P MidCap 400/ Citigroup Growth, (7) UltraShort S&P SmallCap 600/Citigroup Value, (8) UltraShort S&P SmallCap 600/Citigroup Growth, (9) UltraShort Basic Materials, (10) UltraShort Consumer Goods, (11) UltraShort Consumer Services, (12) UltraShort Financials, (13) UltraShort Health Care, (14) UltraShort Industrials, (15) UltraShort Oil & Gas, (16) UltraShort Real Estate, (17) UltraShort Semiconductors, (18) UltraShort Technology, (19) UltraShort Utilities, (20) UltraShort Russell Midcap Index, (21) UltraShort Russell Midcap Growth Index, (22) UltraShort Russell Midcap Value Index, (23) UltraShort Russell 1000 Index, (24) UltraShort Russell 1000 Growth Index, (25) UltraShort Russell 1000 Value Index, (26) UltraShort PO 00000 Frm 00081 Fmt 4703 Sfmt 4703 3463 Russell 2000 Growth Index, and (27) UltraShort Russell 2000 Value Index. The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange’s existing rules governing the trading of equity securities. Amex would disseminate for each Fund on a daily basis by means of Consolidated Tape Association (‘‘CTA’’) and CQ High Speed Lines information with respect to an Indicative Intra-Day Value (‘‘IIV’’) (as defined and discussed below), quotations for and last sale information concerning the shares, recent NAV, shares outstanding, and estimated and total cash amount per Creation Unit. Amex would make available on its Web site daily trading volume, closing price, NAV and final dividend amounts to be paid for each Fund. The NAV of each Fund is calculated and determined each business day at the close of regular trading, typically 4 p.m. Eastern Time (‘‘ET’’). The NAV would be calculated and disseminated at the same time to all market participants.7 The daily closing index value and the percentage change in the daily closing index value for each Underlying Index would be publicly available on various Web sites such as http:// www.bloomberg.com. Data regarding each Underlying Index is also available from the respective index provider to subscribers. Several independent data vendors also package and disseminate index data in various value-added formats (including vendors displaying both securities and index levels and vendors displaying index levels only). The value of each Underlying Index would be updated intra-day on a realtime basis as its individual component securities change in price, and the intraday values of each Underlying Index would be disseminated at least every 15 seconds throughout Amex’s trading day (i.e., the Exchange’s Core Trading Session) by Amex or another organization authorized by the relevant Underlying Index provider. To provide updated information relating to each Fund for use by investors, professionals, and persons wishing to create or redeem Shares, Amex would disseminate through the facilities of the CTA: (1) Continuously throughout Amex’s trading day (i.e., the Exchange’s Core Trading session), the market value of a Share; and (2) at least every 15 seconds throughout Amex’s trading day (i.e., the Exchange’s Core Trading session), the IIV as calculated 7 Amex has represented that if the NAV is not disseminated to all market participants at the same time, it would halt trading in the shares of the Funds. If Amex halts trading for this reason, then the Exchange would do so as well. E:\FR\FM\25JAN1.SGM 25JAN1 3464 Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Notices ycherry on PROD1PC64 with NOTICES by the Amex. Comparing these two figures helps an investor to determine whether, and to what extent, the Shares may be selling at a premium or a discount to NAV. Shares would trade on the NYSE Arca Marketplace from 9:30 a.m. ET until 8 p.m. ET, even if the IIV is not disseminated from 4:15 p.m. ET to 8 p.m. ET.8 The Exchange has appropriate rules to facilitate transactions in the Shares during these trading sessions. Each investor would have access to the current portfolio composition of each Fund through the Trust’s Web site (http://www.proshares.com) 9 and/or at Amex’s Web site (http:// www.amex.com). With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares of a Fund. Trading may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. These may include: (1) The extent to which trading is not occurring in the securities comprising an Underlying Index and/or the Financial Instruments of a Fund, or (2) whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present. In addition, trading in Shares would be subject to trading halts caused by extraordinary market volatility pursuant to the Exchange’s ‘‘circuit breaker’’ rule 10 or by the halt or suspension of trading of the underlying securities. Moreover, the Exchange represents that it would cease trading the Shares of 8 Because NSCC does not disseminate the new basket amount to market participants until approximately 6 p.m. to 7 p.m. ET, an updated IIV is not possible to calculate during the Exchange’s late trading session (from 4:15 p.m. to 8 p.m. ET). The Exchange also states that the official index sponsors for the Underlying Indexes currently do not calculate updated index values during the Exchange’s late trading session; however, if the index sponsors do so in the future, the Exchange would not trade this product unless such official index value is widely disseminated. 9 The Trust’s Web site is publicly accessible at no charge, and contains the following information for each Fund’s Shares: (1) The prior business day’s closing NAV, the reported closing price, and a calculation of the premium or discount of such price in relation to the closing NAV; (2) data for a period covering at least the four previous calendar quarters (or the life of a Fund, if shorter) indicating how frequently each Fund’s Shares traded at a premium or discount to NAV based on the daily closing price and the closing NAV, and the magnitude of such premiums and discounts; (3) its prospectus and product description; and (4) other quantitative information such as daily trading volume. The prospectus and/or product description for each Fund would inform investors that the Trust’s Web site has information about the premiums and discounts at which the Fund’s Shares have traded. 10 See NYSE Arca Equities Rule 7.12. VerDate Aug<31>2005 14:58 Jan 24, 2007 Jkt 211001 a Fund if the listing market stops trading the Shares because of a regulatory halt similar to a halt based on NYSE Arca Equities Rule 7.12. UTP trading in the Shares is also governed by the trading halts provisions of NYSE ARCA Equities Rule 7.34 relating to temporary interruptions in the calculation or wide dissemination of the IIV or the value of the underlying index. Shares would be deemed ‘‘Eligible Listed Securities,’’ as defined in NYSE Arca Equities Rule 7.55, for purposes of the Intermarket Trading System (‘‘ITS’’) Plan and therefore would be subject to the trade through provisions of NYSE Arca Equities Rule 7.56, which require that ETP Holders avoid initiating tradethroughs for ITS securities. Unless exemptive or no-action relief is available, the Shares would be subject to the short sale rule, Rule 10a–1, and Regulation SHO under the Act. If exemptive or no-action relief is provided, the Exchange would issue a notice detailing the terms of the exemption or relief. Prior to the commencement of trading, the Exchange would inform its ETP Holders in an Information Bulletin of the special characteristics and risks associated with trading the Shares. Specifically, the Information Bulletin would discuss the following: (1) The procedures for purchases and redemptions of Shares in Creation Unit Aggregations (and that Shares are not individually redeemable); (2) NYSE Arca Equities Rule 9.2(a), 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; (3) how information regarding the IIV is disseminated; (4) the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (5) trading information. The Information Bulletin would reference that the Fund is subject to various fees and expenses described in the Registration Statement. The Bulletin would also discuss any exemptive, noaction, interpretive relief granted by the Commission from any rules under the Act. The Information Bulletin would disclose that the NAV for the Shares would be calculated after 4 p.m. ET each trading day. The Exchange intends to utilize its existing surveillance procedures applicable to derivative products to monitor trading in the Shares. The Exchange represents that these procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules. The PO 00000 Frm 00082 Fmt 4703 Sfmt 4703 Exchange’s current trading surveillance focuses on detecting securities trading outside their normal patterns. When such situations are detected, surveillance analysis follows and investigations are opened, where appropriate, to review the behavior of all relevant parties for all relevant trading violations. In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees. Finally, the Exchange may obtain information via the Intermarket Surveillance Group (‘‘ISG’’) from other exchanges who are members or affiliates of the ISG.11 2. Statutory Basis The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,12 in general, and furthers the objectives of Section 6(b)(5) 13 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 Exchange believes that the proposed rule change is consistent with Rule 12f–5 14 under the Act because it deems the Shares to be equity securities, thus rendering the 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 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 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, including whether the proposed rule 11 For a list of the current members and affiliate members of ISG, see http://www.isgportal.com. 12 15 U.S.C. 78f(b). 13 15 U.S.C. 78f(b)(5). 14 17 CFR 240.12f–5. E:\FR\FM\25JAN1.SGM 25JAN1 Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Notices change is consistent with the Act. Comments may be submitted by any of the following methods: ycherry on PROD1PC64 with NOTICES particular, the Commission finds that the proposed rule change is consistent with Section 6(b)(5) of the Act,16 which requires that an exchange have rules Electronic Comments designed, among other things, to • Use the Commission’s Internet promote just and equitable principles of comment form (http://www.sec.gov/ trade, to remove impediments to and rules/sro.shtml); or perfect the mechanism of a free and • Send an e-mail to ruleopen market and a national market comments@sec.gov. Please include File system, and in general to protect Number SR–NYSEArca–2006–87 on the investors and the public interest. The subject line. Commission believes that this proposal should benefit investors by increasing Paper Comments competition among markets that trade • Send paper comments in triplicate the Shares. to Nancy M. Morris, Secretary, In addition, the Commission finds Securities and Exchange Commission, that the proposal is consistent with 100 F Street, NE., Washington, DC Section 12(f) of the Act,17 which permits 20549–1090. an exchange to trade, pursuant to UTP, All submissions should refer to File a security that is listed and registered on Number SR–NYSEArca–2006–87. This another exchange.18 The Commission file number should be included on the notes that it previously approved the subject line if e-mail is used. To help the listing and trading of the Shares on Commission process and review your Amex.19 The Commission also finds that comments more efficiently, please use the proposal is consistent with Rule only one method. The Commission will 20 post all comments on the Commission’s 12f–5 under the Act, which provides that an exchange shall not extend UTP Internet Web site (http://www.sec.gov/ to a security unless the exchange has in rules/sro.shtml). Copies of the effect a rule or rules providing for submission, all subsequent transactions in the class or type of amendments, all written statements security to which the exchange extends with respect to the proposed rule UTP. The Exchange has represented that change that are filed with the it meets this requirement because it Commission, and all written deems the Shares to be equity securities, communications relating to the thus rendering trading in the Shares proposed rule change between the Commission and any person, other than subject to the Exchange’s existing rules governing the trading of equity those that may be withheld from the securities. public in accordance with the The Commission further believes that provisions of 5 U.S.C. 552, will be the proposal is consistent with Section available for inspection and copying in 11A(a)(1)(C)(iii) of the Act,21 which sets the Commission’s Public Reference forth Congress’ finding that it is in the Room. Copies of such filing also will be public interest and appropriate for the available for inspection and copying at the principal office of the Exchange. All protection of investors and the maintenance of fair and orderly markets comments received will be posted to assure the availability to brokers, without change; the Commission does dealers, and investors of information not edit personal identifying with respect to quotations for and information from submissions. You transactions in securities. Quotations for should submit only information that you wish to make available publicly. All and last sale information regarding the Shares are disseminated through the submissions should refer to File facilities of the CTA and the Number SR–NYSEArca–2006–87 and Consolidated Quotation System. should be submitted on or before Furthermore, the IIV, updated to reflect February 15, 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, as amended, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.15 In 15 In approving this rule change, the Commission notes that it has considered the proposal’s impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). VerDate Aug<31>2005 14:58 Jan 24, 2007 Jkt 211001 16 15 U.S.C. 78f(b)(5). U.S.C. 78l(f). 18 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. 19 See supra note 4. 20 17 CFR 240.12f–5. 21 15 U.S.C. 78k–1(a)(1)(C)(iii). 17 15 PO 00000 Frm 00083 Fmt 4703 Sfmt 4703 3465 changes in currency exchange rates, will be calculated by Amex and published via the facilities of the Consolidated Tape Association on a 15-second delayed basis throughout the Exchange’s Core Trading Session. In addition, if the listing market halts trading when the IIV is not being calculated or disseminated, the Exchange would halt trading in the Shares. The Exchange has represented that it would follow the procedures with respect to trading halts set forth in NYSE Arca Equities Rule 7.34. The Commission notes that, if the Shares should be delisted by the listing exchange, the Exchange would no longer have authority to trade the Shares pursuant to this 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 Shares in all trading sessions and to deter and detect violations of Exchange rules. 2. Prior to the commencement of trading, the Exchange would inform its ETP Holders in an Information Bulletin of the special characteristics and risks associated with trading the Shares. 3. Prior to the commencement of trading, the Exchange would inform its ETP Holders in an Information Bulletin the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction. 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 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 finding or would preclude the trading of the 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 Shares. V. Conclusion It is therefore ordered, pursuant to Section 19(b)(2) of the Act,22 that the proposed rule change (SR–NYSEArca– 22 15 E:\FR\FM\25JAN1.SGM U.S.C. 78s(b)(2). 25JAN1 3466 Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Notices 2006–87), as amended, be and it hereby is, approved on an accelerated basis. For the Commission, by the Division of Market Regulation, pursuant to delegated authority.23 Nancy M. Morris, Secretary. [FR Doc. E7–1058 Filed 1–24–07; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–55124; File No. SR–OCC– 2006–20] Self-Regulatory Organizations; The Options Clearing Corporation; Order Approving Proposed Rule Change To Accelerate the Expiration Date of American-Style Equity Options That Have Been Adjusted To Call for CashOnly Delivery January 18, 2007. ycherry on PROD1PC64 with NOTICES I. Introduction On October 26, 2006, The Options Clearing Corporation (‘‘OCC’’) filed with the Securities and Exchange Commission (‘‘Commission’’) proposed rule change SR–OCC–2006–20 pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’).1 Notice of the proposal was published in the Federal Register on November 29, 2006.2 The Commission received no comment letters. For the reasons discussed below, the Commission is approving the proposed rule change. II. Description In a cash-out merger, the common equity of the acquired company (‘‘Security’’) is converted into a right to receive a fixed amount of cash. On the day after the announced consummation date for the merger, the stock exchanges on which the Security is traded suspend all trading in the Security. Concurrently, the options exchanges discontinue trading in options overlying the Security. If a customer does not liquidate an out-of-the money option position before the exchange halts trading, its broker must carry the position until it expires. With increasing volume and the proliferation of options with long expiration dates, clearing members’ cost and operational overhead of carrying these positions is significant. In an effort to reduce these costs, OCC seeks to modify its rules to accelerate the expiration date of American-style 23 17 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 Securities Exchange Act Release No. 54793 (November 20, 2006), 71 FR 69172. 1 15 VerDate Aug<31>2005 14:58 Jan 24, 2007 Jkt 211001 equity options that are adjusted to call for a cash deliverable to the earliest practicable regular expiration date.3 The exercise by exception price threshold for the adjusted contracts will be $.01 per share of the amount of the cash deliverable.4 OCC will implement the foregoing rule changes on January 1, 2008, to allow clearing members and customers sufficient time to prepare for the change of methodology. OCC will not implement the rule changes until definitive copies of an appropriate revision of or supplement to the options disclosure document, Characteristics and Risks of Standardized Options, are available for distribution. particular Section 17A of the Act and the rules and regulations thereunder. It is therefore ordered, pursuant to Section 19(b)(2) of the Act,8 that the proposed rule change (File No. SR– OCC–2006–20) be and hereby is approved. III. Discussion Section 19(b) of the Act directs the Commission to approve a proposed rule change of a self-regulatory organization if it finds that such proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to such organization.5 Section 17A(b)(3)(F) of the Act requires that the rules of a clearing agency be designed to promote the prompt and accurate clearance and settlement of securities transactions.6 The Commission finds that OCC’s rule change is consistent with these requirements because by accelerating the expiration date of American-style equity options that are adjusted to call for a cash deliverable OCC makes procedures for clearance and settlement of these options more efficient and thereby reduces unnecessary costs on investors and persons facilitating transactions by and acting on behalf of investors. As such, the proposed rule change should better enable OCC to promote the prompt and accurate clearance and settlement of securities transactions.7 Reporting and Recordkeeping Requirements Under OMB Review IV. Conclusion On the basis of the foregoing, the Commission finds that the proposed rule change is consistent with the requirements of the Act and in 3 OCC rules currently contain a provision for acceleration of the expiration date of European-style equity options that have been converted to a cash deliverable. 4 Every option contract that has an exercise price below (in the case of a call) or above (in the case of a put) the amount of the cash deliverable by $.01 or more will be deemed to have been exercised immediately prior to the accelerated expiration time unless the clearing member directs otherwise. OCC also is making a conforming change to Rule 1106. 5 15 U.S.C. 78s(b). 6 15 U.S.C. 78q–1(b)(3)(F). 7 In approving the proposed rule change, the Commission considered the proposal’s impact on efficiency, competition, and capital formation. 15 U.S.C. 78c(f). PO 00000 Frm 00084 Fmt 4703 Sfmt 4703 For the Commission by the Division of Market Regulation, pursuant to delegated authority.9 Florence E. Harmon, Deputy Secretary. [FR Doc. E7–1059 Filed 1–24–07; 8:45 am] BILLING CODE 8011–01–P SMALL BUSINESS ADMINISTRATION Small Business Administration. Notice of Reporting Requirements Submitted for OMB Review. AGENCY: ACTION: SUMMARY: Under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35), agencies are required to submit proposed reporting and recordkeeping requirements to OMB for review and approval, and to publish a notice in the Federal Register notifying the public that the agency has made such a submission. DATES: Submit comments on or before February 26, 2007. If you intend to comment but cannot prepare comments promptly, please advise the OMB Reviewer and the Agency Clearance Officer before the deadline. Copies: Request for clearance (OMB 83–1), supporting statement, and other documents submitted to OMB for review may be obtained from the Agency Clearance Officer. ADDRESSES: Address all comments concerning this notice to: Agency Clearance Officer, Jacqueline White, Small Business Administration, 409 3rd Street, SW., 5th Floor, Washington, DC 20416; and David_Rostker@omb.eop.gov, fax number 202–395–7285 Office of Information and Regulatory Affairs, Office of Management and Budget. FOR FURTHER INFORMATION CONTACT: Jacqueline White, Agency Clearance Officer, jacqueline.white@sba.gov (202) 205–7044. SUPPLEMENTARY INFORMATION: Title: Pro-Net. Form No: N/A. Frequency: On Occasion. Description of Respondents: Small Firms. 8 15 9 17 E:\FR\FM\25JAN1.SGM U.S.C. 78s(b)(2). CFR 200.30–3(a)(12). 25JAN1

Agencies

[Federal Register Volume 72, Number 16 (Thursday, January 25, 2007)]
[Notices]
[Pages 3462-3466]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-1058]


-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-55125; File No. SR-NYSEArca-2006-87]


Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
and Order Granting Accelerated Approval of Proposed Rule Change as 
Modified by Amendment No. 1 Thereto To Trade Shares of 81 Funds of the 
ProShares Trust Pursuant to Unlisted Trading Privileges

January 18, 2007.
    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 November 13, 2006, NYSE Arca, Inc. (``Exchange''), through its 
wholly owned subsidiary NYSE Arca Equities, Inc. (``NYSE Arca 
Equities''), filed with the Securities and Exchange Commission 
(``Commission'') the proposed rule change as described in Items I and 
II below, which Items have been substantially prepared by the Exchange. 
On January 11, 2007, the Exchange filed Amendment No. 1 to the proposed 
rule change. This order provides notice of the proposed rule change, as 
amended, and approves the proposal on an accelerated basis.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

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

    The Exchange, through NYSE Arca Equities, proposes to trade 
pursuant to unlisted trading privileges (``UTP'') shares (``Shares'') 
of 81 funds (``Funds'') of the ProShares Trust (``Trust'') based on 
numerous underlying securities indexes.
    The text of the proposed rule change is available on the Exchange's 
Web site at (http://www.nysearca.com), at the Exchange's Office of the 
Secretary, and at the Commission.

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 trade the Shares of the 81 Funds pursuant 
to UTP under NYSE Arca Equities Rule 5.2(j)(3).\3\ The Commission has 
approved the original listing and trading of the Shares on the American 
Stock Exchange LLC (``Amex'').\4\
---------------------------------------------------------------------------

    \3\ Under NYSE Arca Equities Rule 5.2(j)(3) the Exchange may 
propose to list and/or trade pursuant to UTP ``Investment Company 
Units.''
    \4\ See Securities Exchange Act Release No. 55117 (January 17, 
2007) (SR-Amex-2006-101).
---------------------------------------------------------------------------

    The Funds are referred to as the Ultra Funds, Short Funds, and 
UltraShort Funds, as described more fully below. Each Fund would 
attempt, on a daily basis, to achieve its investment objective by 
corresponding to a specified multiple of the performance, or the 
inverse performance, of a particular equity securities index that 
underlies that Fund (each an ``Underlying Index'').
    Ultra Funds:
    Certain Funds seek daily investment results, before fees and 
expenses, that correspond to twice (200%) the daily performance of the 
Underlying Indexes (``Ultra Funds'').\5\ If such Funds meet

[[Page 3463]]

their objective, the net asset value (the ``NAV'') \6\ of the Shares of 
each Fund should increase (on a percentage basis) approximately twice 
as much as the Fund's Underlying Index when the prices of the 
securities in such Index increase on a given day, and should lose 
approximately twice as much when such prices decline on a given day. 
The Short Funds and UltraShort Funds (as described below) each have 
investment objectives that seek investment results corresponding to an 
inverse performance of the Underlying Indexes.
---------------------------------------------------------------------------

    \5\ The Commission has previously approved trading certain Ultra 
Funds, Short Funds, and UltraShort Funds of the ProShares Trust on 
the Exchange pursuant to UTP under NYSE Arca Equities Rule 
5.2(j)(3). See Securities Exchange Act Release No. 54026 (June 21, 
2006), 71 FR 36850 (June 28, 2006) (SR-PCX-2005-115).
    \6\ NAV per Share of each Fund is computed by dividing the value 
of the net assets of such Fund (i.e., the value of its total assets 
less total liabilities) by its total number of Shares outstanding. 
Expenses and fees are accrued daily and taken into account for 
purposes of determining NAV.
---------------------------------------------------------------------------

    The Ultra Funds are (1) Ultra Russell 2000, (2) Ultra S&P SmallCap 
600, (3) Ultra S&P500/Citigroup Value, (4) Ultra S&P500/Citigroup 
Growth, (5) Ultra S&P MidCap 400/Citigroup Value, (6) Ultra S&P MidCap 
400/Citigroup Growth, (7) Ultra S&P SmallCap 600/Citigroup Value, (8) 
Ultra S&P SmallCap 600/Citigroup Growth, (9) Ultra Basic Materials, 
(10) Ultra Consumer Goods, (11) Ultra Consumer Services, (12) Ultra 
Financials, (13) Ultra Health Care, (14) Ultra Industrials, (15) Ultra 
Oil & Gas, (16) Ultra Real Estate, (17) Ultra Semiconductors, (18) 
Ultra Technology, (19) Ultra Utilities, (20) Ultra Russell Midcap 
Index, (21) Ultra Russell Midcap Growth Index, (22) Ultra Russell 
Midcap Value Index, (23) Ultra Russell 1000 Index, (24) Ultra Russell 
1000 Growth Index, (25) Ultra Russell 1000 Value Index, (26) Ultra 
Russell 2000 Growth Index, and (27) Ultra Russell 2000 Value Index.

Short Funds

    The Exchange also proposes to trade Shares of certain Funds that 
seek daily investment results, before fees and expenses, that 
correspond to the inverse or opposite of the daily performance (-100%) 
of the Underlying Indexes (``Short Funds''). If such a Fund is 
successful in meeting its objective, the NAV of the corresponding 
Shares should increase approximately as much (on a percentage basis) as 
the respective Underlying Index loses when the prices of the securities 
in the Index decline on a given day, or should decrease approximately 
as much as the respective Index gains when prices in the Index rise on 
a given day.
    The Short Funds are (1) Short Russell 2000, (2) Short S&P SmallCap 
600, (3) Short S&P500/Citigroup Value, (4) Short S&P500/Citigroup 
Growth, (5) Short S&P MidCap 400/Citigroup Value, (6) Short S&P MidCap 
400/Citigroup Growth, (7) Short S&P SmallCap 600/Citigroup Value, (8) 
Short S&P SmallCap 600/Citigroup Growth, (9) Short Basic Materials, 
(10) Short Consumer Goods, (11) Short Consumer Services, (12) Short 
Financials, (13) Short Health Care, (14) Short Industrials, (15) Short 
Oil & Gas, (16) Short Real Estate, (17) Short Semiconductors, (18) 
Short Technology, (19) Short Utilities, (20) Short Russell Midcap 
Index, (21) Short Russell Midcap Growth Index, (22) Short Russell 
Midcap Value Index, (23) Short Russell 1000 Index, (24) Short Russell 
1000 Growth Index, (25) Short Russell 1000 Value Index, (26) Short 
Russell 2000 Growth Index, and (27) Short Russell 2000 Value Index.

Ultra-Short Funds

    The Exchange also proposes to trade Shares of certain Funds that 
seek daily investment results, before fees and expenses, that 
correspond to twice the inverse (-200%) of the daily performance of the 
Underlying Indexes (``UltraShort Funds''). If such a Fund is successful 
in meeting its objective, the NAV of the corresponding Shares should 
increase approximately twice as much (on a percentage basis) as the 
respective Underlying Index loses when the prices of the securities in 
the Index decline on a given day, or should decrease approximately 
twice as much as the respective Underlying Index gains when such prices 
rise on a given day.
    The UltraShort Funds include (1) UltraShort Russell 2000, (2) 
UltraShort S&P SmallCap 600, (3) UltraShort S&P500/Citigroup Value, (4) 
UltraShort S&P500/Citigroup Growth, (5) UltraShort S&P MidCap 400/
Citigroup Value, (6) UltraShort S&P MidCap 400/Citigroup Growth, (7) 
UltraShort S&P SmallCap 600/Citigroup Value, (8) UltraShort S&P 
SmallCap 600/Citigroup Growth, (9) UltraShort Basic Materials, (10) 
UltraShort Consumer Goods, (11) UltraShort Consumer Services, (12) 
UltraShort Financials, (13) UltraShort Health Care, (14) UltraShort 
Industrials, (15) UltraShort Oil & Gas, (16) UltraShort Real Estate, 
(17) UltraShort Semiconductors, (18) UltraShort Technology, (19) 
UltraShort Utilities, (20) UltraShort Russell Midcap Index, (21) 
UltraShort Russell Midcap Growth Index, (22) UltraShort Russell Midcap 
Value Index, (23) UltraShort Russell 1000 Index, (24) UltraShort 
Russell 1000 Growth Index, (25) UltraShort Russell 1000 Value Index, 
(26) UltraShort Russell 2000 Growth Index, and (27) UltraShort Russell 
2000 Value Index.
    The Exchange deems the Shares to be equity securities, thus 
rendering trading in the Shares subject to the Exchange's existing 
rules governing the trading of equity securities. Amex would 
disseminate for each Fund on a daily basis by means of Consolidated 
Tape Association (``CTA'') and CQ High Speed Lines information with 
respect to an Indicative Intra-Day Value (``IIV'') (as defined and 
discussed below), quotations for and last sale information concerning 
the shares, recent NAV, shares outstanding, and estimated and total 
cash amount per Creation Unit. Amex would make available on its Web 
site daily trading volume, closing price, NAV and final dividend 
amounts to be paid for each Fund. The NAV of each Fund is calculated 
and determined each business day at the close of regular trading, 
typically 4 p.m. Eastern Time (``ET''). The NAV would be calculated and 
disseminated at the same time to all market participants.\7\
---------------------------------------------------------------------------

    \7\ Amex has represented that if the NAV is not disseminated to 
all market participants at the same time, it would halt trading in 
the shares of the Funds. If Amex halts trading for this reason, then 
the Exchange would do so as well.
---------------------------------------------------------------------------

    The daily closing index value and the percentage change in the 
daily closing index value for each Underlying Index would be publicly 
available on various Web sites such as http://www.bloomberg.com. Data 
regarding each Underlying Index is also available from the respective 
index provider to subscribers. Several independent data vendors also 
package and disseminate index data in various value-added formats 
(including vendors displaying both securities and index levels and 
vendors displaying index levels only).
    The value of each Underlying Index would be updated intra-day on a 
real-time basis as its individual component securities change in price, 
and the intra-day values of each Underlying Index would be disseminated 
at least every 15 seconds throughout Amex's trading day (i.e., the 
Exchange's Core Trading Session) by Amex or another organization 
authorized by the relevant Underlying Index provider.
    To provide updated information relating to each Fund for use by 
investors, professionals, and persons wishing to create or redeem 
Shares, Amex would disseminate through the facilities of the CTA: (1) 
Continuously throughout Amex's trading day (i.e., the Exchange's Core 
Trading session), the market value of a Share; and (2) at least every 
15 seconds throughout Amex's trading day (i.e., the Exchange's Core 
Trading session), the IIV as calculated

[[Page 3464]]

by the Amex. Comparing these two figures helps an investor to determine 
whether, and to what extent, the Shares may be selling at a premium or 
a discount to NAV.
    Shares would trade on the NYSE Arca Marketplace from 9:30 a.m. ET 
until 8 p.m. ET, even if the IIV is not disseminated from 4:15 p.m. ET 
to 8 p.m. ET.\8\ The Exchange has appropriate rules to facilitate 
transactions in the Shares during these trading sessions.
---------------------------------------------------------------------------

    \8\ Because NSCC does not disseminate the new basket amount to 
market participants until approximately 6 p.m. to 7 p.m. ET, an 
updated IIV is not possible to calculate during the Exchange's late 
trading session (from 4:15 p.m. to 8 p.m. ET). The Exchange also 
states that the official index sponsors for the Underlying Indexes 
currently do not calculate updated index values during the 
Exchange's late trading session; however, if the index sponsors do 
so in the future, the Exchange would not trade this product unless 
such official index value is widely disseminated.
---------------------------------------------------------------------------

    Each investor would have access to the current portfolio 
composition of each Fund through the Trust's Web site (http://
www.proshares.com) \9\ and/or at Amex's Web site (http://www.amex.com).
---------------------------------------------------------------------------

    \9\ The Trust's Web site is publicly accessible at no charge, 
and contains the following information for each Fund's Shares: (1) 
The prior business day's closing NAV, the reported closing price, 
and a calculation of the premium or discount of such price in 
relation to the closing NAV; (2) data for a period covering at least 
the four previous calendar quarters (or the life of a Fund, if 
shorter) indicating how frequently each Fund's Shares traded at a 
premium or discount to NAV based on the daily closing price and the 
closing NAV, and the magnitude of such premiums and discounts; (3) 
its prospectus and product description; and (4) other quantitative 
information such as daily trading volume. The prospectus and/or 
product description for each Fund would inform investors that the 
Trust's Web site has information about the premiums and discounts at 
which the Fund's Shares have traded.
---------------------------------------------------------------------------

    With respect to trading halts, the Exchange may consider all 
relevant factors in exercising its discretion to halt or suspend 
trading in the Shares of a Fund. Trading may be halted because of 
market conditions or for reasons that, in the view of the Exchange, 
make trading in the Shares inadvisable. These may include: (1) The 
extent to which trading is not occurring in the securities comprising 
an Underlying Index and/or the Financial Instruments of a Fund, or (2) 
whether other unusual conditions or circumstances detrimental to the 
maintenance of a fair and orderly market are present. In addition, 
trading in Shares would be subject to trading halts caused by 
extraordinary market volatility pursuant to the Exchange's ``circuit 
breaker'' rule \10\ or by the halt or suspension of trading of the 
underlying securities.
---------------------------------------------------------------------------

    \10\ See NYSE Arca Equities Rule 7.12.
---------------------------------------------------------------------------

    Moreover, the Exchange represents that it would cease trading the 
Shares of a Fund if the listing market stops trading the Shares because 
of a regulatory halt similar to a halt based on NYSE Arca Equities Rule 
7.12. UTP trading in the Shares is also governed by the trading halts 
provisions of NYSE ARCA Equities Rule 7.34 relating to temporary 
interruptions in the calculation or wide dissemination of the IIV or 
the value of the underlying index.
    Shares would be deemed ``Eligible Listed Securities,'' as defined 
in NYSE Arca Equities Rule 7.55, for purposes of the Intermarket 
Trading System (``ITS'') Plan and therefore would be subject to the 
trade through provisions of NYSE Arca Equities Rule 7.56, which require 
that ETP Holders avoid initiating trade-throughs for ITS securities.
    Unless exemptive or no-action relief is available, the Shares would 
be subject to the short sale rule, Rule 10a-1, and Regulation SHO under 
the Act. If exemptive or no-action relief is provided, the Exchange 
would issue a notice detailing the terms of the exemption or relief.
    Prior to the commencement of trading, the Exchange would inform its 
ETP Holders in an Information Bulletin of the special characteristics 
and risks associated with trading the Shares. Specifically, the 
Information Bulletin would discuss the following: (1) The procedures 
for purchases and redemptions of Shares in Creation Unit Aggregations 
(and that Shares are not individually redeemable); (2) NYSE Arca 
Equities Rule 9.2(a), 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; (3) how information regarding the IIV is 
disseminated; (4) the requirement that ETP Holders deliver a prospectus 
to investors purchasing newly issued Shares prior to or concurrently 
with the confirmation of a transaction; and (5) trading information.
    The Information Bulletin would reference that the Fund is subject 
to various fees and expenses described in the Registration Statement. 
The Bulletin would also discuss any exemptive, no-action, interpretive 
relief granted by the Commission from any rules under the Act. The 
Information Bulletin would disclose that the NAV for the Shares would 
be calculated after 4 p.m. ET each trading day.
    The Exchange intends to utilize its existing surveillance 
procedures applicable to derivative products to monitor trading in the 
Shares. The Exchange represents that these procedures are adequate to 
properly monitor Exchange trading of the Shares in all trading sessions 
and to deter and detect violations of Exchange rules. The Exchange's 
current trading surveillance focuses on detecting securities trading 
outside their normal patterns. When such situations are detected, 
surveillance analysis follows and investigations are opened, where 
appropriate, to review the behavior of all relevant parties for all 
relevant trading violations. In addition, the Exchange also has a 
general policy prohibiting the distribution of material, non-public 
information by its employees. Finally, the Exchange may obtain 
information via the Intermarket Surveillance Group (``ISG'') from other 
exchanges who are members or affiliates of the ISG.\11\
---------------------------------------------------------------------------

    \11\ For a list of the current members and affiliate members of 
ISG, see http://www.isgportal.com.
---------------------------------------------------------------------------

2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Act,\12\ in general, and furthers the 
objectives of Section 6(b)(5) \13\ 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.
---------------------------------------------------------------------------

    \12\ 15 U.S.C. 78f(b).
    \13\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    In addition, the Exchange believes that the proposed rule change is 
consistent with Rule 12f-5 \14\ under the Act because it deems the 
Shares to be equity securities, thus rendering the Shares subject to 
the Exchange's rules governing the trading of equity securities.
---------------------------------------------------------------------------

    \14\ 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 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

    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, including whether the proposed rule

[[Page 3465]]

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 Number SR-NYSEArca-2006-87 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-1090.
    All submissions should refer to File Number SR-NYSEArca-2006-87. 
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 office of the Exchange. All comments received will be posted 
without change; the Commission does not edit personal identifying 
information from submissions. You should submit only information that 
you wish to make available publicly. All submissions should refer to 
File Number SR-NYSEArca-2006-87 and should be submitted on or before 
February 15, 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, as amended, is consistent with the requirements of the Act and 
the rules and regulations thereunder applicable to a national 
securities exchange.\15\ In particular, the Commission finds that the 
proposed rule change is consistent with Section 6(b)(5) of the Act,\16\ 
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. The Commission believes that this proposal should 
benefit investors by increasing competition among markets that trade 
the Shares.
---------------------------------------------------------------------------

    \15\ In approving this rule change, the Commission notes that it 
has considered the proposal's impact on efficiency, competition, and 
capital formation. See 15 U.S.C. 78c(f).
    \16\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    In addition, the Commission finds that the proposal is consistent 
with Section 12(f) of the Act,\17\ which permits an exchange to trade, 
pursuant to UTP, a security that is listed and registered on another 
exchange.\18\ The Commission notes that it previously approved the 
listing and trading of the Shares on Amex.\19\ The Commission also 
finds that the proposal is consistent with Rule 12f-5 under the 
Act,\20\ 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. The Exchange has represented that it meets this 
requirement because it deems the Shares to be equity securities, thus 
rendering trading in the Shares subject to the Exchange's existing 
rules governing the trading of equity securities.
---------------------------------------------------------------------------

    \17\ 15 U.S.C. 78l(f).
    \18\ 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.
    \19\ See supra note 4.
    \20\ 17 CFR 240.12f-5.
---------------------------------------------------------------------------

    The Commission further believes that the proposal is consistent 
with Section 11A(a)(1)(C)(iii) of the Act,\21\ 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. Quotations for and last sale information regarding the 
Shares are disseminated through the facilities of the CTA and the 
Consolidated Quotation System. Furthermore, the IIV, updated to reflect 
changes in currency exchange rates, will be calculated by Amex and 
published via the facilities of the Consolidated Tape Association on a 
15-second delayed basis throughout the Exchange's Core Trading Session. 
In addition, if the listing market halts trading when the IIV is not 
being calculated or disseminated, the Exchange would halt trading in 
the Shares. The Exchange has represented that it would follow the 
procedures with respect to trading halts set forth in NYSE Arca 
Equities Rule 7.34.
---------------------------------------------------------------------------

    \21\ 15 U.S.C. 78k-1(a)(1)(C)(iii).
---------------------------------------------------------------------------

    The Commission notes that, if the Shares should be delisted by the 
listing exchange, the Exchange would no longer have authority to trade 
the Shares pursuant to this 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 Shares in all trading sessions and to 
deter and detect violations of Exchange rules.
    2. Prior to the commencement of trading, the Exchange would inform 
its ETP Holders in an Information Bulletin of the special 
characteristics and risks associated with trading the Shares.
    3. Prior to the commencement of trading, the Exchange would inform 
its ETP Holders in an Information Bulletin the requirement that ETP 
Holders deliver a prospectus to investors purchasing newly issued 
Shares prior to or concurrently with the confirmation of a transaction.
    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 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 finding or would preclude the 
trading of the 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 Shares.

V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\22\ that the proposed rule change (SR-NYSEArca-

[[Page 3466]]

2006-87), as amended, be and it hereby is, approved on an accelerated 
basis.
---------------------------------------------------------------------------

    \22\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\23\
---------------------------------------------------------------------------

    \23\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Nancy M. Morris,
Secretary.
 [FR Doc. E7-1058 Filed 1-24-07; 8:45 am]
BILLING CODE 8011-01-P