Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change and Amendment No. 1 Thereto To Adopt Generic Listing and Trading Rules for Commodity-Based Trust Shares, Currency Trust Shares, and Commodity Index Trust Shares, 47996-48001 [E8-18853]
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47996
Federal Register / Vol. 73, No. 159 / Friday, August 15, 2008 / Notices
to another exchange which, in the case
of NYSE Arca, is currently under
common ownership with the Exchange,
and, in the case of NYSE Alternext U.S.
will, upon consummation of the
acquisition, be under the same
ownership as the Exchange. The
Exchange believes that the fee waiver is
not unfairly discriminatory and does not
constitute an inequitable allocation of
fees because the same regulatory staff
will review securities on all three
markets and the Exchange will therefore
benefit from regulatory efficiencies
arising out of NYSE Regulation’s prior
examination of any companies that
transfer. The Exchange believes that the
application of the waiver to companies
transferring to the NYSE from Amex
prior to the Merger is not unfairly
discriminatory and does not constitute
an inequitable allocation of fees because
the annual fee revenue collected by the
Amex from these companies will be
available to NYSE Regulation to finance
its regulatory oversight of those
companies after the Merger.
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 purpose of the Exchange Act.
C. Self-Regulatory Organization’s
Statement on Comments on the
Proposed Rule Change Received From
Members, Participants or Others
The Exchange has neither solicited
nor received written comments on the
proposed rule change.
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III. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
Within 35 days of the date of
publication of this notice in the Federal
Register or within such longer period (i)
as the Commission may designate up to
90 days of such date if it finds such
longer period to be appropriate and
publishes its reasons for so finding or
(ii) as to which the self-regulatory
organization consents, the Commission
will:
(A) By order approve the proposed
rule change, or
(B) Institute proceedings to determine
whether the proposed rule change
should be disapproved.
IV. Solicitation of Comments
Interested persons are invited to
submit written data, views and
arguments concerning the foregoing,
including whether the proposed rule
change is consistent with the Act.
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Comments may be submitted by any of
the following methods:
SECURITIES AND EXCHANGE
COMMISSION
Electronic Comments
[Release No. 34–58332; File No. SR–
NYSEArca–2008–51]
• Use the Commission’s Internet
comment form (https://www.sec.gov/
rules/sro.shtml); or
• Send e-mail to rulecomments@sec.gov. Please include File
Number SR–NYSE–2008–74 on the
subject line.
Paper Comments
• Send paper comments in triplicate
to Secretary, Securities and Exchange
Commission, 100 F Street, NE.,
Washington, DC 20549–1090.
Self-Regulatory Organizations; NYSE
Arca, Inc.; Notice of Filing of Proposed
Rule Change and Amendment No. 1
Thereto To Adopt Generic Listing and
Trading Rules for Commodity-Based
Trust Shares, Currency Trust Shares,
and Commodity Index Trust Shares
August 8, 2008.
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 June 13,
2008, NYSE Arca, Inc. (‘‘NYSE Arca’’ or
All submissions should refer to File
‘‘Exchange’’), through its wholly owned
Number SR–NYSE–2008–74. This file
subsidiary, NYSE Arca Equities, Inc.
number should be included on the
(‘‘NYSE Arca Equities’’), filed with the
subject line if e-mail is used. To help the
Securities and Exchange Commission
Commission process and review your
(‘‘Commission’’) the proposed rule
comments more efficiently, please use
change as described in Items I, II, and
only one method. The Commission will III below, which Items have been
post all comments on the Commission’s prepared by the Exchange. On August 5,
Internet Web site (https://www.sec.gov/
2008, NYSE Arca filed Amendment No.
rules/sro/shtml). Copies of the
1 to the proposed rule change. The
submission, all subsequent
Commission is publishing this notice to
amendments, all written statements
solicit comments on the proposed rule
with respect to the proposed rule
change, as amended, from interested
change that are filed with the
persons.
Commission, and all written
I. Self-Regulatory Organization’s
communications relating to the
Statement of the Terms of Substance of
proposed rule change between the
the Proposed Rule Change
Commission and any person, other than
The Exchange proposes to amend
those that may be withheld from the
NYSE Arca Equities Rules 8.201
public in accordance with the
(Commodity-Based Trust Shares), 8.202
provisions of 5 U.S.C. 552, will be
(Currency Trust Shares), and 8.203
available for inspection and copying in
(Commodity Index Trust Shares) to
the Commission’s Public Reference
Room, on official business days between adopt generic listing and trading rules
for such securities. The text of the
the hours of 10 a.m. and 3 p.m. Copies
proposed rule change is available at the
of the filing will also be available for
Exchange, the Commission’s Public
inspection and copying at the principal
Reference Room, and https://
office of the NYSE. All comments
www.nyse.com.
received will be posted without change;
II. Self-Regulatory Organization’s
the Commission does not edit personal
Statement of the Purpose of, and
identifying information from
Statutory Basis for, the Proposed Rule
submissions. You should submit only
Change
information that you wish to make
available publicly. All submissions
In its filing with the Commission, the
should refer to File number SR–NYSE–
Exchange included statements
concerning the purpose of, and basis for,
2008–74 and should be submitted by
the proposed rule change and discussed
September 5, 2008.
any comments it received on the
For the Commission, by the Division of
proposed rule change. The text of these
Trading and Markets, pursuant to delegated
statements may be examined at the
authority.5
places specified in Item IV below. The
Florence E. Harmon,
Exchange has prepared summaries, set
Acting Secretary.
forth in Sections A, B, and C below, of
[FR Doc. E8–18893 Filed 8–14–08; 8:45 am]
the most significant aspects of such
statements.
BILLING CODE 8010–01–P
1 15
5 17
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CFR 200.30–3(a)(12).
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2 17
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U.S.C. 78s(b)(1).
CFR 240.19b–4.
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A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
1. Purpose
The Exchange currently has rules
permitting the listing and trading,
including trading pursuant to unlisted
trading privileges (‘‘UTP’’), of
Commodity-Based Trust Shares (NYSE
Arca Equities Rule 8.201),3 Currency
Trust Shares (NYSE Arca Equities Rule
8.202),4 and Commodity Index Trust
Shares (NYSE Arca Equities Rule
8.203).5 The Exchange proposes to
amend NYSE Arca Equities Rules 8.201,
8.202, and 8.203 to include provisions
for the listing and trading (including
trading pursuant to UTP) of CommodityBased Trust Shares, Currency Trust
Shares, and Commodity Index Trust
Shares, respectively (collectively, the
‘‘Shares’’), pursuant to Rule 19b–4(e)
under the Act.6
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Generic Listing Standards
Rule 19b–4(e) under the Act provides
that the listing and trading of a new
derivative securities product by a selfregulatory organization (‘‘SRO’’) shall
not be deemed a proposed rule change,
pursuant to section (c)(1) of Rule 19b–
4,7 if the Commission has approved,
pursuant to section 19(b) of the Act,8 the
SRO’s trading rules, procedures, and
listing standards for the product class
that would include the new derivatives
securities product, and the SRO has a
surveillance program for the product
class. The Exchange proposes to adopt
generic listing standards under
amended NYSE Arca Equities Rules
8.201, 8.202, and 8.203 for the Shares
pursuant to which it would be able to
trade such securities without
Commission approval of each
individual product pursuant to section
19(b)(2) of the Act.9 The Exchange
represents that any securities it lists
and/or trades pursuant to NYSE Arca
3 See Securities Exchange Act Release No. 51067
(January 21, 2005), 70 FR 3952 (January 27, 2005)
(SR–PCX–2004–132) (approving NYSE Arca
Equities Rule 8.201 and the trading of shares of the
iShares COMEX Gold Trust pursuant to UTP).
4 See Securities Exchange Act Release No. 53253
(February 8, 2006), 71 FR 8029 (February 15, 2006)
(SR–PCX–2005–123) (approving NYSE Arca
Equities Rule 8.202 and the trading of shares of the
Euro Currency Trust pursuant to UTP).
5 See Securities Exchange Act Release No. 54025
(June 21, 2006), 71 FR 36856 (June 28, 2006) (SR–
NYSEArca–2006–12) (approving NYSE Arca
Equities Rule 8.203 and the trading of shares of the
iShares GSCI Commodity-Indexed Trust pursuant
to UTP).
6 17 CFR 240.19b–4(e).
7 17 CFR 240.19b–4(c)(1).
8 17 U.S.C. 78s(b).
9 15 U.S.C. 78s(b)(2).
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Equities Rule 8.201, 8.202, or 8.203 will
satisfy the standards set forth therein.
The Exchange states that, within five
business days after commencement of
trading of a security pursuant to NYSE
Arca Equities Rule 8.201, 8.202 or 8.203,
as proposed to be amended, the
Exchange will file a Form 19b–4(e).10
Commodity-Based Trust Shares
The Exchange proposes to amend
Commentary .04 to NYSE Arca Equities
Rule 8.201 to incorporate generic listing
and trading standards for CommodityBased Trust Shares.11 In addition to the
general requirements of NYSE Arca
Equities Rule 8.201, Commodity-Based
Trust Shares listed on the Exchange
pursuant to Rule 19b–4(e) must satisfy
the following initial listing criteria. For
a series of Commodity-Based Trust
Shares listed on the Exchange, a
minimum of 100,000 shares is required
to be outstanding at the commencement
of trading.12 In addition, for both listed
Commodity-Based Trust Shares and
those traded pursuant to UTP: (1) The
value of the commodity held by the
applicable trust must be disseminated
10 See 17 CFR 240.19b–4(e)(2)(ii); 17 CFR
249.820.
11 The Commission has previously approved
issues of Commodity-Based Trust Shares for listing
and trading. See, e.g., Securities Exchange Act
Release Nos. 50603 (October 28, 2004), 69 FR 64614
(November 5, 2004) (SR–NYSE–2004–22)
(approving the listing and trading of shares of the
streetTRACKS Gold Trust); 51058 (January 19,
2005), 70 FR 3749 (January 26, 2005) (SR–Amex–
2004–38) (approving the listing and trading of
shares of the iShares COMEX Gold Trust); 53521
(March 20, 2006), 71 FR 14967 (March 24, 2006)
(SR–Amex–2005–072) (approving the listing and
trading of shares of the iShares Silver Trust); and
56041 (July 11, 2007), 72 FR 39114 (July 17, 2007)
(SR–NYSEArca–2007–43) (granting accelerated
approval to list and trade shares of the iShares
COMEX Gold Trust). E-mail from Michael Cavalier,
Associate General Counsel, NYSE Euronext, to
Edward Cho, Special Counsel, and Steven Varholik,
Staff Attorney, Division of Trading and Markets,
Commission, dated June 18, 2008 (confirming the
types of securities that were approved for listing
and trading under NYSE Arca Equities Rule 8.201).
12 The Exchange notes that the proposed 100,000share minimum is the same as the requirement in
Commentary .01(d) of NYSE Arca Equities Rule
5.2(j)(3) applicable to Investment Company Units
(‘‘Units’’), which provides that a minimum of
100,000 shares of a series of Units is required to be
outstanding at the commencement of trading. In
addition, the 100,000-share minimum is
comparable to requirements previously applied to
series of Units approved by the Commission for
exchange listing pursuant to section 19(b)(2) of the
Act. See, e.g., Securities Exchange Act Release No.
52816 (November 21, 2005), 70 FR 71574, 71578
n.19 and accompanying text (November 29, 2005)
(SR–NYSE–2005–70) (approving the listing and
trading of shares of the iShares Index Funds and
noting that the Exchange has required a minimum
number of 100,000 shares of Units to be outstanding
in connection with the initial listing of shares of the
iShares FTSE/Xinhua China 25 Index Fund, which
the Commission noted to be comparable to
requirements previously applied to other listed
series of Units).
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47997
by one or more major market data
vendors on at least a 15-second delayed
basis; (2) the Indicative Trust Value
must be calculated and widely
disseminated by the Exchange or one or
more major market data vendors on at
least a 15-second basis during the Core
Trading Session as defined in NYSE
Arca Equities Rule 7.34; 13 and (3) the
Exchange will implement written
surveillance procedures applicable to
Commodity-Based Trust Shares.
The Exchange proposes to amend
NYSE Arca Equities Rule 8.201(c)(1) to
provide that Commodity-Based Trust
Shares may be redeemed at the request
of an Authorized Participant (as defined
in the trust’s prospectus) by the trust,
which will deliver to the redeeming
Authorized Participant the quantity of
the underlying commodity.14 The
references to redemption ‘‘at the
holder’s request’’ and delivery of the
underlying commodity to the ‘‘holder’’
would be deleted. This amendment
reflects the fact that it is the Authorized
Participant that actually makes the
redemption request and receives the
specified proceeds upon redemption,
and that a beneficial holder other than
an Authorized Participant must utilize
an Authorized Participant to effect a
redemption. This rationale also applies
to insertion of the term ‘‘Authorized
Participant’’ in NYSE Arca Equities
Rules 8.202 and 8.203, as described
below.
The Exchange also proposes to delete
the provision in NYSE Arca Equities
Rule 8.201(e)(2)(iv) which provides that
the Exchange will consider the
suspension of trading or removal from
listing of a series of Commodity-Based
Trust Shares if the Exchange stops
providing a hyperlink on its Web site to
the updated value of the underlying
13 Pursuant to NYSE Arca Equities Rule 7.34(a),
the NYSE Arca Marketplace will have three trading
sessions each day the Exchange is open for business
unless otherwise determined by the Exchange:
Opening Session—begins at 1:00:00 a.m. (Pacific
Time) and concludes at the commencement of the
Core Trading Session. The Opening Auction and
the Market Order Auction shall occur during the
Opening Session.
Core Trading Session—begins at 6:30:00 a.m.
(Pacific Time) or at the conclusion of the Market
Order Auction, whichever comes later, and
concludes at 1:00:00 p.m. (Pacific Time).
Late Trading Session—begins following the
conclusion of the Core Trading Session and
concludes at 5:00:00 p.m. (Pacific Time).
14 The term ‘‘Authorized Participant’’ generally is
defined in prospectuses for issues of CommodityBased Trust Shares, Currency Trust Shares, and
Commodity Index Trust Shares as an entity that (1)
is a registered broker-dealer, or other securities
market participant such as a bank or other financial
institution that is not required to register as a
broker-dealer to engage in securities transactions;
(2) is a Depository Trust Company participant; and
(3) has entered into an Authorized Participant
Agreement with the trust.
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commodity. The Exchange believes such
information is widely available from
market data vendors and an Exchange
hyperlink is not necessary to provide
investors with access to such
information.
Proposed Commentary .05 to NYSE
Arca Equities Rule 8.201 provides that
Commodity-Based Trust Shares will be
subject to the Exchange’s equity trading
rules. Proposed Commentary .06 to
NYSE Arca Equities Rule 8.201 provides
that if the Indicative Trust Value or
value of the commodity applicable to a
series of Commodity-Based Trust Shares
is not being disseminated as required,
the Exchange may halt trading during
the day on which such interruption first
occurs. If such interruption persists past
the trading day in which it occurred, the
Exchange will halt trading no later than
the beginning of the trading day
following the interruption. If the
Exchange becomes aware that the net
asset value (‘‘NAV’’) applicable to a
series of Commodity-Based Trust Shares
is not being disseminated to all market
participants at the same time, it will halt
trading in such series until such time as
the NAV is available to all market
participants.
Currency Trust Shares
The Exchange proposes to amend the
definition of the term ‘‘Currency Trust
Shares’’ in NYSE Arca Equities Rule
8.202(c) to provide that such shares may
be issued by a trust that holds more than
one non-U.S. currency. In addition,
NYSE Arca Equities Rule 8.202(c)
would be amended to provide that
Currency Trust Shares may be
surrendered by an Authorized
Participant (as defined in the trust’s
prospectus) to the trust, which will
deliver to the redeeming Authorized
Participant the specified non-U.S.
currency or currencies. The reference to
the surrender of Currency Trust Shares
by the beneficial owner would be
deleted. NYSE Arca Equities Rule
8.202(d), relating to the designation of
the non-U.S. currency, is proposed to be
amended to clarify the rule’s application
to an issue of Currency Trust Shares that
holds more than one non-U.S. currency.
Commentary .01 to NYSE Arca Equities
Rule 8.202 also would be amended to
clarify that Currency Trust Shares are
Trust Issued Receipts that can hold
multiple currencies.
The Exchange proposes to amend
Commentary .04 to NYSE Arca Equities
Rule 8.202 to incorporate generic listing
and trading standards for Currency
Trust Shares.15 In addition to the
15 The Commission has previously approved a
number of issues of Currency Trust Shares for
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general requirements of NYSE Arca
Equities Rule 8.202, Currency Trust
Shares listed on the Exchange must
satisfy the following initial listing
criteria. For each series of Currency
Trust Shares, a minimum of 100,000
shares of a series of Currency Trust
Shares is required to be outstanding at
the commencement of trading.16 In
addition, for both listed Currency Trust
Shares and those traded pursuant to
UTP: (1) The value of the applicable
non-U.S. currency must be disseminated
by one or more major market data
vendors on at least a 15-second delayed
basis; (2) the Indicative Trust Value
must be calculated and widely
disseminated by the Exchange or one or
more major market data vendors on at
least a 15-second basis during the Core
Trading Session as defined in NYSE
Arca Equities Rule 7.34; and (3) the
Exchange will implement written
surveillance procedures applicable to
Currency Trust Shares.
Proposed Commentary .05 to NYSE
Arca Equities Rule 8.202 provides
certain ‘‘firewall’’ requirements where
the value of a Currency Trust Share is
based in whole or in part on an index
that is maintained by a broker-dealer, as
well as requirements on any advisory
committee, supervisory board, or similar
entity that advises or that makes certain
decisions regarding the index, similar to
the requirements currently specified in
Commentary .01(b)(1) to NYSE Arca
Equities Rule 5.2(j)(3).
Proposed Commentary .06 to NYSE
Arca Equities Rule 8.202 provides that
Currency Trust Shares will be subject to
the Exchange’s equity trading rules.
Proposed Commentary .07 to NYSE
Arca Equities Rule 8.202 provides that,
if the Indicative Trust Value or the value
of the currency, currencies, or currency
index applicable to a series of Currency
Trust Shares is not being disseminated
as required, the Exchange may halt
listing and trading. See, e.g., Securities Exchange
Act Release Nos. 52843 (November 28, 2005), 70 FR
72486 (December 5, 2005) (SR–NYSE 2005–65)
(granting accelerated approval for the listing and
trading of shares of the CurrencyShares Euro Trust);
54020 (June 20, 2006), 71 FR 36579 (June 27, 2006)
(SR–NYSE–2006–35) (granting accelerated approval
for the listing and trading of shares of the
CurrencyShares Australian Dollar Trust,
CurrencyShares British Pound Sterling Trust,
CurrencyShares Canadian Dollar Trust,
CurrencyShares Mexican Peso Trust,
CurrencyShares Swedish Krona Trust, and
CurrencyShares Swiss Franc Trust); 55268
(February 9, 2007), 72 FR 7793 (February 20, 2007)
(SR–NYSE–2007–03) (granting accelerated approval
for the listing and trading of shares of the
CurrencyShares Japanese Yen Trust); and 56131
(July 25, 2007), 72 FR 42212 (August 1, 2007) (SR–
NYSEArca–2007–57) (granting accelerated approval
for the listing and trading of shares of the
CurrencyShares Trusts).
16 See supra note 12.
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trading during the day on which such
interruption first occurs. If such
interruption persists past the trading
day in which it occurred, the Exchange
will halt trading no later than the
beginning of the trading day following
the interruption. If the Exchange
becomes aware that the NAV applicable
to a series of Currency Trust Shares is
not being disseminated to all market
participants at the same time, it will halt
trading in such series until such time as
the NAV is available to all market
participants.
Commodity Index Trust Shares
The Exchange proposes to amend the
definition of the term ‘‘Commodity
Index Trust Shares’’ in NYSE Arca
Equities Rule 8.203(c) to accommodate
shares issued by a trust that holds
commodities included in an index or
portfolio, as well as a trust that holds
commodity futures on a specified index
or portfolio, or that holds interests in a
commodity pool that holds commodity
futures or interests in a commodity pool
as defined in the Commodity Exchange
Act, and is managed by a commodity
pool operator registered with the
Commodity Futures Trading
Commission. In addition, NYSE Arca
Equities Rule 8.203(c) would be
amended to provide that Commodity
Index Trust Shares may be surrendered
to the trust by an Authorized Participant
(as defined in the trust’s prospectus),
which will deliver to the redeeming
Authorized Participant the specified
proceeds. The reference to surrender of
Commodity Index Trust Shares by the
beneficial owner would be deleted.
The Exchange also proposes to amend
Commentary .01 to NYSE Arca Equities
Rule 8.203 to provide that a Commodity
Index Trust Share is a Trust Issued
Receipt that holds commodities
included in, or long positions in futures
contracts on a specified commodity
index or portfolio, or interests in a
commodity pool which, in turn, holds
such commodities or long positions,
deposited with the applicable trust.
Commentary .04 to NYSE Arca Equities
Rule 8.203 would be amended to
incorporate generic listing and trading
standards for Commodity Index Trust
Shares.17
17 The Commission has previously approved a
number of issues of Commodity Index Trust Shares
for listing and trading. See, e.g., Securities
Exchange Act Release Nos. 54013 (June 16, 2006),
71 FR 36372 (June 26, 2006) (SR–NYSE–2006–17)
(approving the listing and trading of shares of the
iShares GSCI Trust); 55585 (April 5, 2007), 72 FR
18500 (April 12, 2007) (SR–NYSE–2006–75)
(approving the listing and trading of shares of the
iShares GS Commodity Light Energy Indexed Trust;
iShares GS Commodity Industrial Metals Indexed
Trust; iShares GS Commodity Livestock Indexed
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In addition to the general
requirements of NYSE Arca Equities
Rule 8.203, Commodity Index Trust
Shares listed on the Exchange must
satisfy the following initial listing
criteria: (1) A minimum of 100,000
shares of a series of Commodity Index
Trust Shares is required to be
outstanding at the commencement of
trading;18 and (2) the issue must meet
one of the following initial listing
standards: (a) The commodities
included in a specified commodity
index, long positions in futures
contracts on a specified commodity
index, or interests in a commodity pool
which, in turn, holds such long
positions held by the applicable trust
shall have been reviewed or approved
for the trading of Commodity-Linked
Securities, Commodity Index Trust
Shares or options or other derivatives by
the Commission under section 19(b)(2)
of the Act 19 and rules thereunder, and
the conditions set forth in the
Commission’s approval order, including
with respect to comprehensive
surveillance sharing agreements,
continue to be satisfied; or (b) with
respect to trusts holding long positions
in futures contracts on a specified
commodity index, or interests in a
commodity pool which, in turn, holds
such long positions, the pricing
information for index components must
be derived from a market which is an
Intermarket Surveillance Group (‘‘ISG’’)
member or with which the Exchange
has a comprehensive surveillance
sharing agreement. An index may
include components representing not
more than 10% of the dollar weight of
such index for which the pricing
information is derived from markets that
do not meet such requirements;
provided, however, that no single
component subject to this exception
exceeds 7% of the dollar weight of the
applicable index.
In addition, for both listed
Commodity Index Trust Shares and
those traded pursuant to UTP: (1) The
value of the applicable underlying index
Trust; and iShares GS Commodity Non-Energy
Indexed Trust); 56932 (December 7, 2007), 72 FR
71178 (December 14, 2007) (SR–NYSEArca–2007–
112) (granting accelerated approval for the listing
and trading of shares of the S&P GSCI CommodityIndexed Trust); and 57456 (March 7, 2008), 73 FR
13599 (March 13, 2008) (SR–NYSEArca–2007–91)
(granting accelerated approval for the listing and
trading of shares of the iShares S&P GSCI Energy
Commodity-Indexed Trust; iShares S&P GSCI
Natural Gas Commodity-Indexed Trust; iShares S&P
GSCI Industrial Metals Commodity-Indexed Trust;
iShares S&P GSCI Light Energy Commodity-Indexed
Trust; iShares S&P GSCI Livestock CommodityIndexed Trust; and iShares S&P GSCI Non-Energy
Commodity-Indexed Trust).
18 See supra note 12.
19 15 U.S.C. 78s(b)(2).
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19:03 Aug 14, 2008
Jkt 214001
or portfolio must be disseminated by
one or more major market data vendors
on at least a 15-second delayed basis
and, with respect to trusts holding
commodities included in a specified
index or portfolio, the applicable
commodity spot price or prices must be
disseminated by one or more major
market data vendors on at least a
15-second delayed basis; (2) the
Indicative Trust Value must be
calculated and widely disseminated by
the Exchange or one or more major
market data vendors on at least a 15second basis during the Core Trading
Session as defined in NYSE Arca
Equities Rule 7.34; and (3) the Exchange
will implement written surveillance
procedures applicable to Commodity
Index Trust Shares.
Proposed Commentary .05 to NYSE
Arca Equities Rule 8.203 provides
certain ‘‘firewall’’ requirements where
the value of a Commodity Index Trust
Share is based in whole or in part on an
index that is maintained by a brokerdealer, as well as requirements on any
advisory committee, supervisory board,
or similar entity that advises or that
makes certain decisions regarding the
index, similar to the requirements
specified in Commentary .01(b)(1) to
NYSE Arca Equities Rule 5.2(j)(3).
Proposed Commentary .06 to NYSE
Arca Equities Rule 8.203 provides that
Commodity Index Trust Shares will be
subject to the Exchange’s equity trading
rules. Proposed Commentary .07 to
NYSE Arca Equities Rule 8.203 provides
that, if the Indicative Trust Value, the
value of the underlying index or
portfolio, or the commodity spot price
or prices applicable to a series of
Commodity Index Trust Shares is not
being disseminated as required, the
Exchange may halt trading during the
day on which such interruption first
occurs. If such interruption persists past
the trading day in which it occurred, the
Exchange will halt trading no later than
the beginning of the trading day
following the interruption. If the
Exchange becomes aware that the NAV
applicable to a series of Commodity
Index Trust Shares is not being
disseminated to all market participants
at the same time, it will halt trading in
such series until such time as the NAV
is available to all market participants.
Proposed NYSE Arca Equities Rules
8.201(j), 8.202(j), and 8.203(j) each also
provide that the Exchange may submit
a rule filing pursuant to Section 19(b)(2)
of the Act 20 to permit the listing and
trading of Commodity-Based Trust
Shares, Currency Trust Shares, and
Commodity Based Trust Shares,
20 17
PO 00000
U.S.C. 78s(b)(2).
Frm 00124
Fmt 4703
respectively, that do not otherwise meet
the standards set forth in proposed
Commentary .04 to each such rule.
Trading Rules Applicable to the Shares
The Shares will be subject to all
Exchange rules governing the trading of
equity securities. The Exchange’s equity
margin rules will apply to transactions
in the Shares. Shares will trade during
trading hours set forth in NYSE Arca
Equities Rule 7.34(a).21
Surveillance
The Exchange intends to utilize its
existing surveillance procedures
applicable to derivative products,
including Commodity-Based Trust
Shares, Currency Trust Shares, and
Commodity Index Trust Shares, 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 or
applicable federal securities laws.
The Exchange’s current trading
surveillance focuses on detecting when
securities trade 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.
The Exchange notes that components
underlying Commodity-Based Trust
Shares, Currency Trust Shares, and
Commodity Index Trust Shares are
based on spot prices of the relevant
commodity or currency, as the case may
be, and such underlying commodities or
currencies are traded in over-thecounter markets rather than on
exchanges. In addition, as noted above,
with respect to Commodity Index Trust
Shares, where the trust holds long
positions in futures contracts on a
specified commodity index, or interests
in a commodity pool which, in turn,
holds such long positions, the pricing
information for index components must
be derived from a market which is an
ISG member or with which the
Exchange has a comprehensive
surveillance sharing agreement. An
index may include components
representing not more than 10% of the
dollar weight of such index for which
the pricing information is derived from
markets that do not meet such
requirements; provided, however, that
no single component subject to this
exception can exceed 7% of the dollar
weight of the applicable index.
21 See
Sfmt 4703
47999
E:\FR\FM\15AUN1.SGM
supra note 13.
15AUN1
48000
Federal Register / Vol. 73, No. 159 / Friday, August 15, 2008 / Notices
The Exchange states that it may also
obtain information via ISG from other
exchanges who are members of the
ISG.22 In addition, the Exchange also
has a general policy prohibiting the
distribution of material, non-public
information by its employees.
mstockstill on PROD1PC66 with NOTICES
Information Bulletin
Prior to the commencement of
trading, the Exchange will inform its
ETP Holders 23 in an Information
Bulletin of the special characteristics
and risks associated with trading an
issue of Commodity-Based Trust Shares,
Currency Trust Shares, or Commodity
Index Trust Shares. Specifically, the
Information Bulletin will discuss the
following: (1) The procedures for
purchases and redemptions of Shares;
(2) NYSE Arca Equities Rule 9.2(a),24
which imposes a duty of due diligence
on ETP Holders to learn the essential
facts relating to every customer prior to
trading an issue of Shares; (3) how
information regarding the Indicative
Trust Value is disseminated; (4) the
risks involved in trading an issue of
Shares during the Opening and Late
Trading Sessions when an updated
Indicative Trust Value will not be
calculated or publicly disseminated; (5)
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 (6) trading
information. The Information Bulletin
will advise ETP Holders, prior to the
commencement of trading, of the
prospectus delivery requirements
applicable to the relevant issue of
Shares. The Exchange notes that
investors purchasing Shares directly
from the applicable trust will receive a
prospectus; ETP Holders purchasing
Shares from the trust for resale to
investors will deliver a prospectus to
such investors.
In addition, the Information Bulletin
will reference that an issue of Shares is
subject to various fees and expenses
described in the applicable prospectus
22 For a list of current members of the ISG, see
https://www.isgportal.org.
23 See NYSE Arca Equities Rule 1.1(n).
24 NYSE Arca Equities Rule 9.2(a) (Diligence as to
Accounts) provides 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 rule provides, with a limited exception,
that prior to the execution of a transaction
recommended to a non-institutional customer, the
ETP Holder shall make reasonable efforts to obtain
information concerning the customer’s financial
status, tax status, investment objectives, and any
other information that the ETP Holder believes
would be useful to make a recommendation.
VerDate Aug<31>2005
19:03 Aug 14, 2008
Jkt 214001
and that there is no regulated source of
last sale information regarding physical
commodities or non-U.S. currencies,
and that the Commission has no
jurisdiction over the trading of physical
commodities, currencies, or futures
contracts on which the value of an issue
of Shares may be based.
2. Statutory Basis
The Exchange believes that the
proposed rule change is consistent with
Section 6(b) of the Act,25 in general, and
furthers the objectives of Section 6(b)(5)
of the Act,26 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, 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 Exchange believes
that the proposed rules applicable to
trading pursuant to generic listing and
trading criteria, together with the
Exchange’s surveillance procedures
applicable to trading in the securities
covered by the proposed rules, serve to
foster investor protection. The Exchange
further believes that the proposed rules
will enhance market competition by
assisting in bringing Commodity-Based
Trust Shares, Currency Trust Shares,
and Commodity Index Trust Shares to
the market more quickly, consistent
with the Commission’s adoption of Rule
19b–4(e) under the Act.
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
The Exchange states that it has neither
solicited nor received written comments
on the proposed rule change.
III. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
Within 35 days of the date of
publication of this notice in the Federal
Register or within such longer period (i)
as the Commission may designate up to
90 days of such date if it finds such
25 15
26 15
PO 00000
U.S.C. 78f(b).
U.S.C. 78f(b)(5).
Frm 00125
Fmt 4703
Sfmt 4703
longer period to be appropriate and
publishes its reasons for so finding or
(ii) as to which the Exchange consents,
the Commission will:
A. By order approve such proposed
rule change, or
B. Institute proceedings to determine
whether the proposed rule change
should be disapproved.
IV. Solicitation of Comments
Interested persons are invited to
submit written data, views, and
arguments concerning the foregoing,
including whether the proposed rule
change is consistent with the Act.
Comments may be submitted by any of
the following methods:
Electronic Comments
• Use the Commission’s Internet
comment form (https://www.sec.gov/
rules/sro.shtml); or
• Send an e-mail to rulecomments@sec.gov. Please include File
Number SR–NYSEArca–2008–51 on the
subject line.
Paper Comments
• Send paper comments in triplicate
to Secretary, Securities and Exchange
Commission, 100 F Street, NE.,
Washington, DC 20549–1090.
All submissions should refer to File
Number SR–NYSEArca–2008–51. 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 (https://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, 100 F Street, NE., Washington,
DC 20549, on official business days
between the hours of 10 a.m. and 3 p.m.
Copies of the 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
E:\FR\FM\15AUN1.SGM
15AUN1
Federal Register / Vol. 73, No. 159 / Friday, August 15, 2008 / Notices
Number SR–NYSEArca–2008–51 and
should be submitted on or before
September 5, 2008.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.27
Florence E. Harmon,
Acting Secretary.
[FR Doc. E8–18853 Filed 8–14–08; 8:45 am]
BILLING CODE 8010–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–58334; File No. SR–Phlx–
2008–59]
Self-Regulatory Organizations; Notice
of Filing and Immediate Effectiveness
of Proposed Rule Change by the
Philadelphia Stock Exchange, Inc.
Relating to Changes to Its Equity
Option Fees
August 8, 2008.
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 August 1,
2008, Philadelphia Stock Exchange, Inc.
(‘‘Phlx’’ or ‘‘Exchange’’) filed with the
Securities and Exchange Commission
(‘‘SEC’’ or ‘‘Commission’’) the proposed
rule change as described in Items I, II,
and III below, which Items have been
prepared by the Phlx. On August 8,
2008, the Exchange filed Amendment
No. 1 to the proposed rule change. The
Commission is publishing this notice to
solicit comments on the proposed rule
change, as amended, from interested
persons.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Phlx, pursuant to Section 19(b)(1)
of the Act 3 and Rule 19b–4 thereunder,4
proposes to amend its equity option fees
as follows: (1) Reduce its equity option
transaction charge to $0.01 per contract
for Registered Options Traders
(‘‘ROTs’’) 5 and specialists for contract
27 17
CFR 200.30–3(a)(12).
U.S.C. 78s(b)(1).
CFR 240.19b–4.
3 15 U.S.C. 78s(b)(1).
4 17 CFR 240.19b–4.
5 ROT equity option transaction charges are
referred to on the Exchange’s fee schedule as
‘‘Registered Option Trader (on floor).’’ This charge
applies to ROTs, Streaming Quote Traders
(‘‘SQTs’’), and Remote Streaming Quote Traders
(‘‘RSQTs’’). SQTs and RSQTs are considered to be
ROTs pursuant to Exchange Rule 1014. ROT
transactions entered from off-floor would continue
to be included in the broker/dealer equity option
transaction charges for billing purposes, as set forth
in footnote 3 of the Exchange’s Summary of Equity
Option, and MNX, NDX, RUT and RMN Charges fee
schedule.
1 15
mstockstill on PROD1PC66 with NOTICES
2 17
VerDate Aug<31>2005
19:03 Aug 14, 2008
Jkt 214001
volume above 4.5 million contracts per
month (‘‘Volume Threshold’’); (2) delete
the ROT equity option comparison
charge for contract volume above the
Volume Threshold; and (3) delete the
$0.08 per contract side rebate for ROTs
and $0.07 per contract side rebate for
specialists in connection with trades
occurring as part of a dividend, merger,
and short stock interest strategy.
This proposal is scheduled to become
effective for trades settling on or after
August 1, 2008.
The text of the proposed rule change
is available on the Exchange’s Web site
at https://www.phlx.com/regulatory/
reg_rulefilings.aspx.
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
Phlx included statements concerning
the purpose of, and basis for, the
proposed rule change and discussed any
comments it received on the proposed
rule change. The text of these statements
may be examined at the places specified
in Item IV below. The 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 purpose of the proposed rule
change is to revise the Exchange’s fee
schedule in order to remain competitive
and encourage additional order flow to
the Exchange. Pursuant to this proposal,
the Exchange intends to amend its
equity option transaction charges for
ROTs and specialists. For contract
volume below the Volume Threshold,
ROTs would continue to be assessed the
current equity option transaction charge
of $0.19 per contract and specialists
would be assessed the current equity
option transaction charge of $0.21 per
contract. Thereafter, both ROTs and
specialists would be assessed an equity
option transaction charge of $0.01 per
contract for contract volume over the
Volume Threshold for that month. ROTs
would not be charged the current $0.03
per contract equity option comparison
charge for any transactions over the
Volume Threshold.6 Thus, the total
equity option transaction and
comparison charge for both specialists
and ROTs would be $0.01 per contract
6 Specialists are not currently assessed a
comparison charge.
PO 00000
Frm 00126
Fmt 4703
Sfmt 4703
48001
for contract volume over the Volume
Threshold for that month.
Currently, a fee credit of $0.21 per
contract is given to specialists that incur
equity option transaction charges when
a customer order is delivered
electronically via Phlx XL 7 or via the
Exchange’s Options Floor Broker
Management System (‘‘FBMS’’),8 and is
then executed via the Intermarket
Option Linkage (‘‘Linkage’’) 9 as a
Principal Acting as Agent Order (‘‘P/A
Order’’). In connection with decreasing
the equity option transaction charge for
specialists as described above, the fee
credit would now be equal to the
applicable equity option transaction
charge per contract (i.e. $0.21 per
contract or $0.01 per contract), in order
not to give a credit that is greater than
the equity option transaction charge that
is imposed.
To determine the Volume Threshold,
the Exchange would aggregate the
trading activity of separate ROTs and
specialist member organizations if there
is at least 75% common ownership
between the member organizations as
reflected on each member organizations’
Form BD, Schedule A.10 Contract
volume resulting from dividend, merger,
and short stock interest strategies 11 and
contract volume resulting from
specialists that incur Phlx equity option
transaction charges when a customer
order is delivered electronically via
Phlx XL 12 or via FBMS and is then
executed via Linkage as a P/A Order
would not be included in the Volume
Threshold calculation. In addition,
currently, the Exchange does not assess
ROT equity option transaction and
comparison charges and specialist
equity option transaction charges on
additional qualifying transactions on
7 See
Exchange Rule 1080.
is designed to enable Floor Brokers and/
or their employees to enter, route and report
transactions stemming from options orders received
on the Exchange. See Exchange Rule 1080,
Commentary .06.
9 Linkage is governed by the Options Linkage
Authority under the conditions set forth under the
Plan for the Purpose of Creating and Operating an
Intermarket Option Linkage (the ‘‘Plan’’) approved
by the Commission. The registered U.S. options
markets are linked together on a real-time basis
through a network capable of transporting orders
and messages to and from each market.
10 An ROT’s or a specialist’s monthly contract
volume is determined at the member organization
affiliation level, e.g., if five ROTs are affiliated with
member organization ABC as reflected by Exchange
records for the entire month, all of the volume from
those five ROTs counts towards member
organization ABC’s Volume Threshold for that
month.
11 The current equity option comparison and
transaction caps of $1,000 and $25,000 that are
imposed in connection with dividend, merger and
short stock interest strategies would continue to
apply.
12 See Exchange Rule 1080.
8 FBMS
E:\FR\FM\15AUN1.SGM
15AUN1
]]>Agencies
[Federal Register Volume 73, Number 159 (Friday, August 15, 2008)]
[Notices]
[Pages 47996-48001]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-18853]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-58332; File No. SR-NYSEArca-2008-51]
Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
of Proposed Rule Change and Amendment No. 1 Thereto To Adopt Generic
Listing and Trading Rules for Commodity-Based Trust Shares, Currency
Trust Shares, and Commodity Index Trust Shares
August 8, 2008.
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 June 13, 2008, NYSE Arca, Inc. (``NYSE Arca'' or ``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, II,
and III below, which Items have been prepared by the Exchange. On
August 5, 2008, NYSE Arca filed Amendment No. 1 to the proposed rule
change. The Commission is publishing this notice to solicit comments on
the proposed rule change, as amended, from interested persons.
---------------------------------------------------------------------------
\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 proposes to amend NYSE Arca Equities Rules 8.201
(Commodity-Based Trust Shares), 8.202 (Currency Trust Shares), and
8.203 (Commodity Index Trust Shares) to adopt generic listing and
trading rules for such securities. The text of the proposed rule change
is available at the Exchange, the Commission's Public Reference Room,
and https://www.nyse.com.
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 IV below. The Exchange has prepared summaries, set forth in
Sections A, B, and C below, of the most significant aspects of such
statements.
[[Page 47997]]
A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
1. Purpose
The Exchange currently has rules permitting the listing and
trading, including trading pursuant to unlisted trading privileges
(``UTP''), of Commodity-Based Trust Shares (NYSE Arca Equities Rule
8.201),\3\ Currency Trust Shares (NYSE Arca Equities Rule 8.202),\4\
and Commodity Index Trust Shares (NYSE Arca Equities Rule 8.203).\5\
The Exchange proposes to amend NYSE Arca Equities Rules 8.201, 8.202,
and 8.203 to include provisions for the listing and trading (including
trading pursuant to UTP) of Commodity-Based Trust Shares, Currency
Trust Shares, and Commodity Index Trust Shares, respectively
(collectively, the ``Shares''), pursuant to Rule 19b-4(e) under the
Act.\6\
---------------------------------------------------------------------------
\3\ See Securities Exchange Act Release No. 51067 (January 21,
2005), 70 FR 3952 (January 27, 2005) (SR-PCX-2004-132) (approving
NYSE Arca Equities Rule 8.201 and the trading of shares of the
iShares[supreg] COMEX Gold Trust pursuant to UTP).
\4\ See Securities Exchange Act Release No. 53253 (February 8,
2006), 71 FR 8029 (February 15, 2006) (SR-PCX-2005-123) (approving
NYSE Arca Equities Rule 8.202 and the trading of shares of the Euro
Currency Trust pursuant to UTP).
\5\ See Securities Exchange Act Release No. 54025 (June 21,
2006), 71 FR 36856 (June 28, 2006) (SR-NYSEArca-2006-12) (approving
NYSE Arca Equities Rule 8.203 and the trading of shares of the
iShares[supreg] GSCI Commodity-Indexed Trust pursuant to UTP).
\6\ 17 CFR 240.19b-4(e).
---------------------------------------------------------------------------
Generic Listing Standards
Rule 19b-4(e) under the Act provides that the listing and trading
of a new derivative securities product by a self-regulatory
organization (``SRO'') shall not be deemed a proposed rule change,
pursuant to section (c)(1) of Rule 19b-4,\7\ if the Commission has
approved, pursuant to section 19(b) of the Act,\8\ the SRO's trading
rules, procedures, and listing standards for the product class that
would include the new derivatives securities product, and the SRO has a
surveillance program for the product class. The Exchange proposes to
adopt generic listing standards under amended NYSE Arca Equities Rules
8.201, 8.202, and 8.203 for the Shares pursuant to which it would be
able to trade such securities without Commission approval of each
individual product pursuant to section 19(b)(2) of the Act.\9\ The
Exchange represents that any securities it lists and/or trades pursuant
to NYSE Arca Equities Rule 8.201, 8.202, or 8.203 will satisfy the
standards set forth therein. The Exchange states that, within five
business days after commencement of trading of a security pursuant to
NYSE Arca Equities Rule 8.201, 8.202 or 8.203, as proposed to be
amended, the Exchange will file a Form 19b-4(e).\10\
---------------------------------------------------------------------------
\7\ 17 CFR 240.19b-4(c)(1).
\8\ 17 U.S.C. 78s(b).
\9\ 15 U.S.C. 78s(b)(2).
\10\ See 17 CFR 240.19b-4(e)(2)(ii); 17 CFR 249.820.
---------------------------------------------------------------------------
Commodity-Based Trust Shares
The Exchange proposes to amend Commentary .04 to NYSE Arca Equities
Rule 8.201 to incorporate generic listing and trading standards for
Commodity-Based Trust Shares.\11\ In addition to the general
requirements of NYSE Arca Equities Rule 8.201, Commodity-Based Trust
Shares listed on the Exchange pursuant to Rule 19b-4(e) must satisfy
the following initial listing criteria. For a series of Commodity-Based
Trust Shares listed on the Exchange, a minimum of 100,000 shares is
required to be outstanding at the commencement of trading.\12\ In
addition, for both listed Commodity-Based Trust Shares and those traded
pursuant to UTP: (1) The value of the commodity held by the applicable
trust must be disseminated by one or more major market data vendors on
at least a 15-second delayed basis; (2) the Indicative Trust Value must
be calculated and widely disseminated by the Exchange or one or more
major market data vendors on at least a 15-second basis during the Core
Trading Session as defined in NYSE Arca Equities Rule 7.34; \13\ and
(3) the Exchange will implement written surveillance procedures
applicable to Commodity-Based Trust Shares.
---------------------------------------------------------------------------
\11\ The Commission has previously approved issues of Commodity-
Based Trust Shares for listing and trading. See, e.g., Securities
Exchange Act Release Nos. 50603 (October 28, 2004), 69 FR 64614
(November 5, 2004) (SR-NYSE-2004-22) (approving the listing and
trading of shares of the streetTRACKS Gold Trust); 51058 (January
19, 2005), 70 FR 3749 (January 26, 2005) (SR-Amex-2004-38)
(approving the listing and trading of shares of the iShares COMEX
Gold Trust); 53521 (March 20, 2006), 71 FR 14967 (March 24, 2006)
(SR-Amex-2005-072) (approving the listing and trading of shares of
the iShares Silver Trust); and 56041 (July 11, 2007), 72 FR 39114
(July 17, 2007) (SR-NYSEArca-2007-43) (granting accelerated approval
to list and trade shares of the iShares COMEX Gold Trust). E-mail
from Michael Cavalier, Associate General Counsel, NYSE Euronext, to
Edward Cho, Special Counsel, and Steven Varholik, Staff Attorney,
Division of Trading and Markets, Commission, dated June 18, 2008
(confirming the types of securities that were approved for listing
and trading under NYSE Arca Equities Rule 8.201).
\12\ The Exchange notes that the proposed 100,000-share minimum
is the same as the requirement in Commentary .01(d) of NYSE Arca
Equities Rule 5.2(j)(3) applicable to Investment Company Units
(``Units''), which provides that a minimum of 100,000 shares of a
series of Units is required to be outstanding at the commencement of
trading. In addition, the 100,000-share minimum is comparable to
requirements previously applied to series of Units approved by the
Commission for exchange listing pursuant to section 19(b)(2) of the
Act. See, e.g., Securities Exchange Act Release No. 52816 (November
21, 2005), 70 FR 71574, 71578 n.19 and accompanying text (November
29, 2005) (SR-NYSE-2005-70) (approving the listing and trading of
shares of the iShares Index Funds and noting that the Exchange has
required a minimum number of 100,000 shares of Units to be
outstanding in connection with the initial listing of shares of the
iShares FTSE/Xinhua China 25 Index Fund, which the Commission noted
to be comparable to requirements previously applied to other listed
series of Units).
\13\ Pursuant to NYSE Arca Equities Rule 7.34(a), the NYSE Arca
Marketplace will have three trading sessions each day the Exchange
is open for business unless otherwise determined by the Exchange:
Opening Session--begins at 1:00:00 a.m. (Pacific Time) and
concludes at the commencement of the Core Trading Session. The
Opening Auction and the Market Order Auction shall occur during the
Opening Session.
Core Trading Session--begins at 6:30:00 a.m. (Pacific Time) or
at the conclusion of the Market Order Auction, whichever comes
later, and concludes at 1:00:00 p.m. (Pacific Time).
Late Trading Session--begins following the conclusion of the
Core Trading Session and concludes at 5:00:00 p.m. (Pacific Time).
---------------------------------------------------------------------------
The Exchange proposes to amend NYSE Arca Equities Rule 8.201(c)(1)
to provide that Commodity-Based Trust Shares may be redeemed at the
request of an Authorized Participant (as defined in the trust's
prospectus) by the trust, which will deliver to the redeeming
Authorized Participant the quantity of the underlying commodity.\14\
The references to redemption ``at the holder's request'' and delivery
of the underlying commodity to the ``holder'' would be deleted. This
amendment reflects the fact that it is the Authorized Participant that
actually makes the redemption request and receives the specified
proceeds upon redemption, and that a beneficial holder other than an
Authorized Participant must utilize an Authorized Participant to effect
a redemption. This rationale also applies to insertion of the term
``Authorized Participant'' in NYSE Arca Equities Rules 8.202 and 8.203,
as described below.
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\14\ The term ``Authorized Participant'' generally is defined in
prospectuses for issues of Commodity-Based Trust Shares, Currency
Trust Shares, and Commodity Index Trust Shares as an entity that (1)
is a registered broker-dealer, or other securities market
participant such as a bank or other financial institution that is
not required to register as a broker-dealer to engage in securities
transactions; (2) is a Depository Trust Company participant; and (3)
has entered into an Authorized Participant Agreement with the trust.
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The Exchange also proposes to delete the provision in NYSE Arca
Equities Rule 8.201(e)(2)(iv) which provides that the Exchange will
consider the suspension of trading or removal from listing of a series
of Commodity-Based Trust Shares if the Exchange stops providing a
hyperlink on its Web site to the updated value of the underlying
[[Page 47998]]
commodity. The Exchange believes such information is widely available
from market data vendors and an Exchange hyperlink is not necessary to
provide investors with access to such information.
Proposed Commentary .05 to NYSE Arca Equities Rule 8.201 provides
that Commodity-Based Trust Shares will be subject to the Exchange's
equity trading rules. Proposed Commentary .06 to NYSE Arca Equities
Rule 8.201 provides that if the Indicative Trust Value or value of the
commodity applicable to a series of Commodity-Based Trust Shares is not
being disseminated as required, the Exchange may halt trading during
the day on which such interruption first occurs. If such interruption
persists past the trading day in which it occurred, the Exchange will
halt trading no later than the beginning of the trading day following
the interruption. If the Exchange becomes aware that the net asset
value (``NAV'') applicable to a series of Commodity-Based Trust Shares
is not being disseminated to all market participants at the same time,
it will halt trading in such series until such time as the NAV is
available to all market participants.
Currency Trust Shares
The Exchange proposes to amend the definition of the term
``Currency Trust Shares'' in NYSE Arca Equities Rule 8.202(c) to
provide that such shares may be issued by a trust that holds more than
one non-U.S. currency. In addition, NYSE Arca Equities Rule 8.202(c)
would be amended to provide that Currency Trust Shares may be
surrendered by an Authorized Participant (as defined in the trust's
prospectus) to the trust, which will deliver to the redeeming
Authorized Participant the specified non-U.S. currency or currencies.
The reference to the surrender of Currency Trust Shares by the
beneficial owner would be deleted. NYSE Arca Equities Rule 8.202(d),
relating to the designation of the non-U.S. currency, is proposed to be
amended to clarify the rule's application to an issue of Currency Trust
Shares that holds more than one non-U.S. currency. Commentary .01 to
NYSE Arca Equities Rule 8.202 also would be amended to clarify that
Currency Trust Shares are Trust Issued Receipts that can hold multiple
currencies.
The Exchange proposes to amend Commentary .04 to NYSE Arca Equities
Rule 8.202 to incorporate generic listing and trading standards for
Currency Trust Shares.\15\ In addition to the general requirements of
NYSE Arca Equities Rule 8.202, Currency Trust Shares listed on the
Exchange must satisfy the following initial listing criteria. For each
series of Currency Trust Shares, a minimum of 100,000 shares of a
series of Currency Trust Shares is required to be outstanding at the
commencement of trading.\16\ In addition, for both listed Currency
Trust Shares and those traded pursuant to UTP: (1) The value of the
applicable non-U.S. currency must be disseminated by one or more major
market data vendors on at least a 15-second delayed basis; (2) the
Indicative Trust Value must be calculated and widely disseminated by
the Exchange or one or more major market data vendors on at least a 15-
second basis during the Core Trading Session as defined in NYSE Arca
Equities Rule 7.34; and (3) the Exchange will implement written
surveillance procedures applicable to Currency Trust Shares.
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\15\ The Commission has previously approved a number of issues
of Currency Trust Shares for listing and trading. See, e.g.,
Securities Exchange Act Release Nos. 52843 (November 28, 2005), 70
FR 72486 (December 5, 2005) (SR-NYSE 2005-65) (granting accelerated
approval for the listing and trading of shares of the CurrencyShares
Euro Trust); 54020 (June 20, 2006), 71 FR 36579 (June 27, 2006) (SR-
NYSE-2006-35) (granting accelerated approval for the listing and
trading of shares of the CurrencyShares Australian Dollar Trust,
CurrencyShares British Pound Sterling Trust, CurrencyShares Canadian
Dollar Trust, CurrencyShares Mexican Peso Trust, CurrencyShares
Swedish Krona Trust, and CurrencyShares Swiss Franc Trust); 55268
(February 9, 2007), 72 FR 7793 (February 20, 2007) (SR-NYSE-2007-03)
(granting accelerated approval for the listing and trading of shares
of the CurrencyShares Japanese Yen Trust); and 56131 (July 25,
2007), 72 FR 42212 (August 1, 2007) (SR-NYSEArca-2007-57) (granting
accelerated approval for the listing and trading of shares of the
CurrencyShares Trusts).
\16\ See supra note 12.
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Proposed Commentary .05 to NYSE Arca Equities Rule 8.202 provides
certain ``firewall'' requirements where the value of a Currency Trust
Share is based in whole or in part on an index that is maintained by a
broker-dealer, as well as requirements on any advisory committee,
supervisory board, or similar entity that advises or that makes certain
decisions regarding the index, similar to the requirements currently
specified in Commentary .01(b)(1) to NYSE Arca Equities Rule 5.2(j)(3).
Proposed Commentary .06 to NYSE Arca Equities Rule 8.202 provides
that Currency Trust Shares will be subject to the Exchange's equity
trading rules. Proposed Commentary .07 to NYSE Arca Equities Rule 8.202
provides that, if the Indicative Trust Value or the value of the
currency, currencies, or currency index applicable to a series of
Currency Trust Shares is not being disseminated as required, the
Exchange may halt trading during the day on which such interruption
first occurs. If such interruption persists past the trading day in
which it occurred, the Exchange will halt trading no later than the
beginning of the trading day following the interruption. If the
Exchange becomes aware that the NAV applicable to a series of Currency
Trust Shares is not being disseminated to all market participants at
the same time, it will halt trading in such series until such time as
the NAV is available to all market participants.
Commodity Index Trust Shares
The Exchange proposes to amend the definition of the term
``Commodity Index Trust Shares'' in NYSE Arca Equities Rule 8.203(c) to
accommodate shares issued by a trust that holds commodities included in
an index or portfolio, as well as a trust that holds commodity futures
on a specified index or portfolio, or that holds interests in a
commodity pool that holds commodity futures or interests in a commodity
pool as defined in the Commodity Exchange Act, and is managed by a
commodity pool operator registered with the Commodity Futures Trading
Commission. In addition, NYSE Arca Equities Rule 8.203(c) would be
amended to provide that Commodity Index Trust Shares may be surrendered
to the trust by an Authorized Participant (as defined in the trust's
prospectus), which will deliver to the redeeming Authorized Participant
the specified proceeds. The reference to surrender of Commodity Index
Trust Shares by the beneficial owner would be deleted.
The Exchange also proposes to amend Commentary .01 to NYSE Arca
Equities Rule 8.203 to provide that a Commodity Index Trust Share is a
Trust Issued Receipt that holds commodities included in, or long
positions in futures contracts on a specified commodity index or
portfolio, or interests in a commodity pool which, in turn, holds such
commodities or long positions, deposited with the applicable trust.
Commentary .04 to NYSE Arca Equities Rule 8.203 would be amended to
incorporate generic listing and trading standards for Commodity Index
Trust Shares.\17\
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\17\ The Commission has previously approved a number of issues
of Commodity Index Trust Shares for listing and trading. See, e.g.,
Securities Exchange Act Release Nos. 54013 (June 16, 2006), 71 FR
36372 (June 26, 2006) (SR-NYSE-2006-17) (approving the listing and
trading of shares of the iShares GSCI Trust); 55585 (April 5, 2007),
72 FR 18500 (April 12, 2007) (SR-NYSE-2006-75) (approving the
listing and trading of shares of the iShares GS Commodity Light
Energy Indexed Trust; iShares GS Commodity Industrial Metals Indexed
Trust; iShares GS Commodity Livestock Indexed Trust; and iShares GS
Commodity Non-Energy Indexed Trust); 56932 (December 7, 2007), 72 FR
71178 (December 14, 2007) (SR-NYSEArca-2007-112) (granting
accelerated approval for the listing and trading of shares of the
S&P GSCI Commodity-Indexed Trust); and 57456 (March 7, 2008), 73 FR
13599 (March 13, 2008) (SR-NYSEArca-2007-91) (granting accelerated
approval for the listing and trading of shares of the iShares S&P
GSCI Energy Commodity-Indexed Trust; iShares S&P GSCI Natural Gas
Commodity-Indexed Trust; iShares S&P GSCI Industrial Metals
Commodity-Indexed Trust; iShares S&P GSCI Light Energy Commodity-
Indexed Trust; iShares S&P GSCI Livestock Commodity-Indexed Trust;
and iShares S&P GSCI Non-Energy Commodity-Indexed Trust).
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[[Page 47999]]
In addition to the general requirements of NYSE Arca Equities Rule
8.203, Commodity Index Trust Shares listed on the Exchange must satisfy
the following initial listing criteria: (1) A minimum of 100,000 shares
of a series of Commodity Index Trust Shares is required to be
outstanding at the commencement of trading;\18\ and (2) the issue must
meet one of the following initial listing standards: (a) The
commodities included in a specified commodity index, long positions in
futures contracts on a specified commodity index, or interests in a
commodity pool which, in turn, holds such long positions held by the
applicable trust shall have been reviewed or approved for the trading
of Commodity-Linked Securities, Commodity Index Trust Shares or options
or other derivatives by the Commission under section 19(b)(2) of the
Act \19\ and rules thereunder, and the conditions set forth in the
Commission's approval order, including with respect to comprehensive
surveillance sharing agreements, continue to be satisfied; or (b) with
respect to trusts holding long positions in futures contracts on a
specified commodity index, or interests in a commodity pool which, in
turn, holds such long positions, the pricing information for index
components must be derived from a market which is an Intermarket
Surveillance Group (``ISG'') member or with which the Exchange has a
comprehensive surveillance sharing agreement. An index may include
components representing not more than 10% of the dollar weight of such
index for which the pricing information is derived from markets that do
not meet such requirements; provided, however, that no single component
subject to this exception exceeds 7% of the dollar weight of the
applicable index.
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\18\ See supra note 12.
\19\ 15 U.S.C. 78s(b)(2).
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In addition, for both listed Commodity Index Trust Shares and those
traded pursuant to UTP: (1) The value of the applicable underlying
index or portfolio must be disseminated by one or more major market
data vendors on at least a 15-second delayed basis and, with respect to
trusts holding commodities included in a specified index or portfolio,
the applicable commodity spot price or prices must be disseminated by
one or more major market data vendors on at least a 15-second delayed
basis; (2) the Indicative Trust Value must be calculated and widely
disseminated by the Exchange or one or more major market data vendors
on at least a 15-second basis during the Core Trading Session as
defined in NYSE Arca Equities Rule 7.34; and (3) the Exchange will
implement written surveillance procedures applicable to Commodity Index
Trust Shares.
Proposed Commentary .05 to NYSE Arca Equities Rule 8.203 provides
certain ``firewall'' requirements where the value of a Commodity Index
Trust Share is based in whole or in part on an index that is maintained
by a broker-dealer, as well as requirements on any advisory committee,
supervisory board, or similar entity that advises or that makes certain
decisions regarding the index, similar to the requirements specified in
Commentary .01(b)(1) to NYSE Arca Equities Rule 5.2(j)(3). Proposed
Commentary .06 to NYSE Arca Equities Rule 8.203 provides that Commodity
Index Trust Shares will be subject to the Exchange's equity trading
rules. Proposed Commentary .07 to NYSE Arca Equities Rule 8.203
provides that, if the Indicative Trust Value, the value of the
underlying index or portfolio, or the commodity spot price or prices
applicable to a series of Commodity Index Trust Shares is not being
disseminated as required, the Exchange may halt trading during the day
on which such interruption first occurs. If such interruption persists
past the trading day in which it occurred, the Exchange will halt
trading no later than the beginning of the trading day following the
interruption. If the Exchange becomes aware that the NAV applicable to
a series of Commodity Index Trust Shares is not being disseminated to
all market participants at the same time, it will halt trading in such
series until such time as the NAV is available to all market
participants.
Proposed NYSE Arca Equities Rules 8.201(j), 8.202(j), and 8.203(j)
each also provide that the Exchange may submit a rule filing pursuant
to Section 19(b)(2) of the Act \20\ to permit the listing and trading
of Commodity-Based Trust Shares, Currency Trust Shares, and Commodity
Based Trust Shares, respectively, that do not otherwise meet the
standards set forth in proposed Commentary .04 to each such rule.
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\20\ 17 U.S.C. 78s(b)(2).
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Trading Rules Applicable to the Shares
The Shares will be subject to all Exchange rules governing the
trading of equity securities. The Exchange's equity margin rules will
apply to transactions in the Shares. Shares will trade during trading
hours set forth in NYSE Arca Equities Rule 7.34(a).\21\
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\21\ See supra note 13.
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Surveillance
The Exchange intends to utilize its existing surveillance
procedures applicable to derivative products, including Commodity-Based
Trust Shares, Currency Trust Shares, and Commodity Index Trust Shares,
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 or applicable federal securities laws.
The Exchange's current trading surveillance focuses on detecting
when securities trade 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.
The Exchange notes that components underlying Commodity-Based Trust
Shares, Currency Trust Shares, and Commodity Index Trust Shares are
based on spot prices of the relevant commodity or currency, as the case
may be, and such underlying commodities or currencies are traded in
over-the-counter markets rather than on exchanges. In addition, as
noted above, with respect to Commodity Index Trust Shares, where the
trust holds long positions in futures contracts on a specified
commodity index, or interests in a commodity pool which, in turn, holds
such long positions, the pricing information for index components must
be derived from a market which is an ISG member or with which the
Exchange has a comprehensive surveillance sharing agreement. An index
may include components representing not more than 10% of the dollar
weight of such index for which the pricing information is derived from
markets that do not meet such requirements; provided, however, that no
single component subject to this exception can exceed 7% of the dollar
weight of the applicable index.
[[Page 48000]]
The Exchange states that it may also obtain information via ISG
from other exchanges who are members of the ISG.\22\ In addition, the
Exchange also has a general policy prohibiting the distribution of
material, non-public information by its employees.
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\22\ For a list of current members of the ISG, see https://
www.isgportal.org.
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Information Bulletin
Prior to the commencement of trading, the Exchange will inform its
ETP Holders \23\ in an Information Bulletin of the special
characteristics and risks associated with trading an issue of
Commodity-Based Trust Shares, Currency Trust Shares, or Commodity Index
Trust Shares. Specifically, the Information Bulletin will discuss the
following: (1) The procedures for purchases and redemptions of Shares;
(2) NYSE Arca Equities Rule 9.2(a),\24\ which imposes a duty of due
diligence on ETP Holders to learn the essential facts relating to every
customer prior to trading an issue of Shares; (3) how information
regarding the Indicative Trust Value is disseminated; (4) the risks
involved in trading an issue of Shares during the Opening and Late
Trading Sessions when an updated Indicative Trust Value will not be
calculated or publicly disseminated; (5) 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 (6) trading information. The Information Bulletin will advise ETP
Holders, prior to the commencement of trading, of the prospectus
delivery requirements applicable to the relevant issue of Shares. The
Exchange notes that investors purchasing Shares directly from the
applicable trust will receive a prospectus; ETP Holders purchasing
Shares from the trust for resale to investors will deliver a prospectus
to such investors.
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\23\ See NYSE Arca Equities Rule 1.1(n).
\24\ NYSE Arca Equities Rule 9.2(a) (Diligence as to Accounts)
provides 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 rule provides, with a limited
exception, that prior to the execution of a transaction recommended
to a non-institutional customer, the ETP Holder shall make
reasonable efforts to obtain information concerning the customer's
financial status, tax status, investment objectives, and any other
information that the ETP Holder believes would be useful to make a
recommendation.
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In addition, the Information Bulletin will reference that an issue
of Shares is subject to various fees and expenses described in the
applicable prospectus and that there is no regulated source of last
sale information regarding physical commodities or non-U.S. currencies,
and that the Commission has no jurisdiction over the trading of
physical commodities, currencies, or futures contracts on which the
value of an issue of Shares may be based.
2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Act,\25\ in general, and furthers the
objectives of Section 6(b)(5) of the Act,\26\ 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, 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 Exchange
believes that the proposed rules applicable to trading pursuant to
generic listing and trading criteria, together with the Exchange's
surveillance procedures applicable to trading in the securities covered
by the proposed rules, serve to foster investor protection. The
Exchange further believes that the proposed rules will enhance market
competition by assisting in bringing Commodity-Based Trust Shares,
Currency Trust Shares, and Commodity Index Trust Shares to the market
more quickly, consistent with the Commission's adoption of Rule 19b-
4(e) under the Act.
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\25\ 15 U.S.C. 78f(b).
\26\ 15 U.S.C. 78f(b)(5).
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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
The Exchange states that it has neither solicited nor received
written comments on the proposed rule change.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Within 35 days of the date of publication of this notice in the
Federal Register or within such longer period (i) as the Commission may
designate up to 90 days of such date if it finds such longer period to
be appropriate and publishes its reasons for so finding or (ii) as to
which the Exchange consents, the Commission will:
A. By order approve such proposed rule change, or
B. Institute proceedings to determine whether the proposed rule
change should be disapproved.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
Use the Commission's Internet comment form (https://
www.sec.gov/rules/sro.shtml); or
Send an e-mail to rule-comments@sec.gov. Please include
File Number SR-NYSEArca-2008-51 on the subject line.
Paper Comments
Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSEArca-2008-51.
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 (https://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, 100 F Street,
NE., Washington, DC 20549, on official business days between the hours
of 10 a.m. and 3 p.m. Copies of the 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
[[Page 48001]]
Number SR-NYSEArca-2008-51 and should be submitted on or before
September 5, 2008.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\27\
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\27\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-18853 Filed 8-14-08; 8:45 am]
BILLING CODE 8010-01-P
