Self-Regulatory Organizations; NYSE Arca, Inc.; Order Approving Proposed Rule Change Amending NYSE Arca Equities Rule 5.2(j)(3) in Connection With Generic Listing Standards for Multiple Fund Shares and Inverse Fund Shares, 63756-63759 [E8-25505]

Download as PDF 63756 Federal Register / Vol. 73, No. 208 / Monday, October 27, 2008 / Notices available for inspection and copying in the Commission’s Public Reference Room, 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 Number SR– NYSEALTR–2008–02 and should be submitted on or before November 17, 2008. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.7 Florence E. Harmon, Acting Secretary. [FR Doc. E8–25528 Filed 10–24–08; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–58825; File No. SR– NYSEArca–2008–89] Self-Regulatory Organizations; NYSE Arca, Inc.; Order Approving Proposed Rule Change Amending NYSE Arca Equities Rule 5.2(j)(3) in Connection With Generic Listing Standards for Multiple Fund Shares and Inverse Fund Shares October 21, 2008. mstockstill on PROD1PC66 with NOTICES I. Introduction On August 25, 2008, NYSE Arca, Inc. (‘‘Exchange’’ or ‘‘NYSE Arca’’), through its wholly owned subsidiary, NYSE Arca Equities, Inc. (‘‘NYSE Arca Equities’’), filed with the Securities and Exchange Commission (‘‘Commission’’) pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 a proposed rule change to amend NYSE Arca Equities Rule 5.2(j)(3) in connection with generic listing standards for Multiple Fund Shares and Inverse Fund Shares. The proposed rule change was published for comment in the Federal Register on September 16, 2008.3 The Commission received no comment letters on the proposed rule change. This order approves the proposed rule change. 7 17 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 3 See Securities Exchange Act Release No. 58484 (September 8, 2008), 73 FR 53472. 1 15 VerDate Aug<31>2005 17:13 Oct 24, 2008 Jkt 217001 II. Description of the Proposed Rule Change The Exchange proposes to amend Commentaries .01, .02, and .03 and to adopt new Commentary .04, to NYSE Arca Equities Rule 5.2(j)(3), the Exchange’s initial listing standards for Investment Company Units (‘‘ICUs’’), to permit the listing and trading of ICUs issued by an open-end management investment company that seek to provide investment results, before fees and expenses, that either correspond to a specified multiple of the percentage performance on a given day of a particular benchmark domestic equity index, international equity index, Fixed Income Securities 4 index, or a combination thereof (‘‘Multiple Fund Shares’’) or that correspond inversely up to minus or negative 300 percent (¥300%) of the percentage performance on a given day of a particular domestic equity index, international equity index, Fixed Income Securities index, or a combination thereof (‘‘Inverse Fund Shares,’’ and together with Multiple Fund Shares, collectively, ‘‘Fund Shares’’), in each case, pursuant to Rule 19b–4(e) under the Act.5 Specifically, the Exchange proposes to remove the current limitation to listing Multiple Fund Shares and Inverse Fund Shares 6 and to amend Commentaries .01, .02, and .03 to NYSE Arca Equities Rule 5.2(j)(3) to permit the Exchange to approve the listing and trading of 4 Fixed Income Securities are debt securities that are notes, bonds, debentures, or evidence of indebtedness that include, but are not limited to, U.S. Department of Treasury securities, government-sponsored entity securities, municipal securities, trust preferred securities, supranational debt, and debt of a foreign country or a subdivision thereof. See Commentary .02 to NYSE Arca Equities Rule 5.2(j)(3). 5 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 Rule 19b–4(c)(1) under the Act, if the Commission has approved, pursuant to Section 19(b) of the Act, the SRO’s trading rules, procedures, and listing standards for the product class that would include the new derivative securities product, and the SRO has a surveillance program for the product class. See 17 CFR 240.19b– 4(e)(1). A new derivative securities product means any type of option, warrant, hybrid securities product, or any other security, other than a single equity option or a security futures product, whose value is based, in whole or in part, upon the performance of, or interest in, an underlying instrument. See 17 CFR 240.19b–4(e). 6 See Commentaries .02 and .03 to NYSE Arca Equities Rule 5.2(j)(3) (currently prohibiting the Exchange from approving for listing and trading pursuant to Rule 19b–4(e) a series of ICUs that are issued by an open-end management investment company that seeks to provide investment results that either exceed the performance of a specified index by a specified multiple or that correspond to the inverse of the performance of a specified index by a specified multiple). PO 00000 Frm 00084 Fmt 4703 Sfmt 4703 Multiple Fund Shares and Inverse Fund Shares pursuant to Rule 19b–4(e) under the Act, provided that each of the applicable conditions and requirements set forth in Commentaries .01, .02, or .03 to NYSE Arca Equities Rule 5.2(j)(3), as proposed to be amended, and proposed Commentary .04 to NYSE Arca Equities Rule 5.2(j)(3) are satisfied. Lastly, the Exchange proposes to make a minor, non-substantive language change to Commentary .02(ii) to NYSE Arca Equities Rule 5.2(j)(3). Limitation on Leverage In connection with the listing and trading of Multiple Fund Shares, Commentaries .01, .02, and .03 to NYSE Arca Equities Rule 5.2(j)(3), as amended, would not provide a limitation on leverage. Specifically, the proposal would permit the Exchange to approve, pursuant to Rule 19b–4(e) under the Act, the listing and trading of Multiple Fund Shares that seek to provide investment results, before fees and expenses, corresponding to any multiple, without limitation, of the percentage performance on a given day of a particular domestic or international equity index, Fixed Income Securities index, or a combination thereof. In connection with Inverse Fund Shares, Commentaries .01, .02, and .03 to NYSE Arca Equities Rule 5.2(j)(3), as amended, would expressly prohibit the Exchange from approving pursuant to Rule 19b–4(e) under the Act the listing and trading of Inverse Fund Shares that seek to provide investment results, before fees and expenses, in an amount that exceeds ¥300% of the percentage performance of the underlying benchmark index. Specifically, with respect to the listing and trading of Inverse Fund Shares that seek to provide investment results, before fees and expenses, in an amount that exceeds ¥300% of the percentage performance of the underlying benchmark index, the Exchange’s proposal would continue to require specific Commission approval pursuant to section 19(b)(2) of the Act.7 Availability of Information About Fund Shares and Underlying Indexes The Exchange also proposes to adopt new Commentary .04 to NYSE Arca Equities Rule 5.2(j)(3), which would only apply to a series of Multiple Fund Shares and Inverse Fund Shares issued by an open-end management investment company. Proposed Commentary .04 to NYSE Arca Equities Rule 5.2(j)(3) would require the composition of portfolio holdings of a fund be disclosed daily on 7 15 E:\FR\FM\27OCN1.SGM U.S.C. 78s(b)(2). 27OCN1 Federal Register / Vol. 73, No. 208 / Monday, October 27, 2008 / Notices mstockstill on PROD1PC66 with NOTICES its Internet Web site and to include, as applicable: (1) The identity and number of shares held of each specific equity security; (2) the identity and amount held of each specific Fixed Income Security; (3) the specific types of financial instruments, which include, but are not limited to, stock index futures contracts, options on futures contracts, options on securities and indices, equity caps, collars, and floors, swap agreements, forward contracts, and repurchase agreements (collectively, ‘‘Financial Instruments’’), as well as the characteristics of such Financial Instruments; and (4) the cash equivalents and amount of cash held in such portfolio. The Exchange states that this public Web site disclosure of the portfolio composition of a fund would coincide with the disclosure of the ‘‘IIV File’’ 8 and the ‘‘PCF File.’’ 9 Therefore, the same portfolio information (including accrued expenses and dividends) would be provided on the public Web site, as well as in the IIV File and PCF File provided to ‘‘Authorized Participants.’’ 10 The Exchange further states that the format of the public Web site disclosure and the IIV File and PCF File could differ because the public Web site will list all portfolio holdings, while the IIV File and PCF File would similarly provide the portfolio holdings, but in a format appropriate for Authorized Participants, i.e., the exact components of a Creation Unit. Accordingly, investors would have access to the current portfolio composition of a fund through the fund’s Web site. 8 Because the National Securities Clearing Corporation’s (‘‘NSCC’’) system for the receipt and dissemination to its participants of the portfolio composition file (‘‘PCF File’’) is not currently capable of processing information with respect to Financial Instruments, an ‘‘IIV File’’ has been developed, which is used to disclose a fund’s holdings of Financial Instruments. The IIV File is posted to a password-protected Web site before the opening of business on each business day, and all NSCC participants and the Exchange have access to a password and the Web site containing the IIV File. 9 The PCF File for a fund includes the list of names and the required number of shares of each deposit security, as well as any cash information to be included in the next trading day’s ‘‘Creation Unit’’ (the minimum aggregation size of shares required to effect a creation or redemption of shares). The information in the PCF File will be available to all participating in the NSCC system. 10 Authorized Participants are the only persons that may place orders to create and redeem Creation Units. Authorized Participants must be registered broker-dealers or other securities market participants, such as banks and other financial institutions, that are exempt from registration as broker-dealers to engage in securities transactions, who are Depository Trust Company participants. VerDate Aug<31>2005 17:13 Oct 24, 2008 Jkt 217001 Trading Halts The Exchange states that existing trading halt requirements for ICUs would apply to Multiple Fund Shares and Inverse Fund Shares. In particular, NYSE Arca Equities Rule 5.5(g)(2)(b) provides that, if the intraday indicative value (‘‘IIV’’) or the index value applicable to that series of ICUs is not being disseminated as required, the Exchange may halt trading during the day in which the interruption to the dissemination of the IIV or the index value occurs. If the interruption to the dissemination of the IIV or the index value persists past the trading day in which it occurred, the Exchange would halt trading no later than the beginning of the trading day following the interruption.11 In addition, proposed Commentary .04(b) to NYSE Arca Equities Rule 5.2(j)(3) requires the Exchange to halt trading of Fund Shares if the Exchange becomes aware that the net asset value (‘‘NAV’’) is not being disseminated to all market participants at the same time or the daily public Web site disclosure of its portfolio holdings does not occur. Proposed Commentary .04(b) to NYSE Arca Equities Rule 5.2(j)(3) further provides that the Exchange may resume trading in such Fund Shares only when the NAV is disseminated to all market participants at the same time or the daily public Web site disclosure of portfolio holdings occurs, as appropriate. In addition to other factors that may be relevant, the Exchange states that it may consider factors in exercising its discretion to halt or suspend trading in Multiple Fund Shares and/or Inverse Fund Shares. These factors would include, without limitation, (1) the extent to which trading is not occurring in securities comprising an underlying index and/or the Financial Instruments relating to the Fund Shares, or (2) whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present.12 In the case of Financial Instruments, the Exchange represents that a notification procedure would be implemented so that timely notice from the investment adviser is received by the Exchange when a particular Financial Instrument is in default or shortly to be in default. Notification from the investment adviser would be made by phone, facsimile, or 11 If a series of ICUs are traded on the Exchange pursuant to unlisted trading privileges, the Exchange would halt trading if the primary listing market halts trading in such series. See NYSE Arca Equities Rule 7.34(a). 12 See NYSE Arca Equities Rule 5.5(g)(2)(b). PO 00000 Frm 00085 Fmt 4703 Sfmt 4703 63757 e-mail. The Exchange would then determine on a case-by-case basis whether a default of a particular Financial Instrument justifies a trading halt of the Multiple Fund Shares and/ or Inverse Fund Shares, as applicable. Trading in Multiple Fund Shares and/or Inverse Fund Shares would also be halted if the circuit breaker parameters pursuant to NYSE Arca Equities 7.12 are reached.13 Continued Listing and Trading Criteria The Exchange states that the continued listing and trading requirements for ICUs set forth in NYSE Arca Equities Rule 5.5(g)(2) would apply to Multiple Fund Shares and Inverse Fund Shares. Suitability Currently, NYSE Arca Equities Rule 9.2(a) (Diligence as to Accounts) provides that an ETP Holder, before recommending a transaction in ICUs, must have reasonable grounds to believe that the recommendation is suitable for the customer based on any facts disclosed by the customer as to its other security holdings and as to its 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 must make reasonable efforts to obtain information concerning the customer’s financial status, tax status, investment objectives, and any other information that such ETP Holder believes would be useful to make a recommendation. Prior to the commencement of trading, the Exchange would inform its ETP Holders of the suitability requirements of NYSE Arca Equities Rule 9.2(a) in an Information Bulletin. Specifically, ETP Holders would be reminded in the Information Bulletin that, in recommending transactions in these securities, they must have a reasonable basis to believe that (1) the recommendation is suitable for a customer given reasonable inquiry concerning the customer’s investment objectives, financial situation, needs, and any other information known by such member, and (2) the customer can evaluate the special characteristics, and is able to bear the financial risks, of an investment in Multiple Fund Shares and Inverse Fund Shares. In connection with the suitability obligation, the Information Circular would also provide that members must make reasonable efforts to obtain the following information: (1) The customer’s financial status; (2) the customer’s tax 13 See E:\FR\FM\27OCN1.SGM id. 27OCN1 63758 Federal Register / Vol. 73, No. 208 / Monday, October 27, 2008 / Notices status; (3) the customer’s investment objectives; and (4) such other information used or considered to be reasonable by such member or registered representative in making recommendations to the customer. the proposed rule change is similar to another exchange’s generic listing requirements for Multiple Fund Shares and Inverse Fund Shares.18 With respect to the listing and trading of a series of Inverse Fund Shares that seek to provide investment results that exceed III. Discussion and Commission’s ¥300% of the percentage performance Findings of an underlying benchmark index, the The Commission has carefully Commission further notes that the reviewed the proposed rule change and Exchange would be required to obtain finds that it is consistent with the prior Commission approval pursuant to requirements of section 6 of the Act 14 section 19(b)(2) of the Act. and the rules and regulations The Commission also notes that Fund thereunder applicable to a national Shares must comply with all of the securities exchange.15 In particular, the applicable provisions under NYSE Arca Commission finds that the proposed Equities Rules 5.2(j)(3), as proposed to rule change is consistent with section be amended, and 5.5(g)(2), as well as all 6(b)(5) of the Act,16 which requires, other requirements applicable to ICUs among other things, that the Exchange’s including, without limitation, rules be designed to promote just and requirements relating to the equitable principles of trade, to remove dissemination of intraday indicative impediments to and perfect the value, index value, disclosure of mechanism of a free and open market portfolio holdings, rules and policies and a national market system, and, in governing the trading of equity general, to protect investors and the securities, trading hours, trading halts, surveillance, firewalls, and Information public interest. The Commission believes that the Bulletins to ETP Holders, as set forth in proposal reasonably balances the prior Commission orders approving the removal of impediments to a free and generic listing rules applicable to the open market with the protection of listing and trading of ICUs. The Commission further notes that investors and the public interest, two the proposed rule change is reasonably principles set forth in section 6(b)(5) of designed to promote fair disclosure of the Act. The Commission notes that it has previously approved the listing and information that may be necessary to price the Shares appropriately and to trading of various leveraged exchangeprevent trading when a reasonable traded funds, including trading degree of transparency cannot be pursuant to unlisted trading privileges assured. Proposed Commentary .04 to on the Exchange, that seek daily NYSE Arca Equities Rule 5.2(j)(3) investment results, before fees and requires daily public Web site expenses, that correspond to twice the disclosure of the composition of a inverse or opposite of the daily performance (¥200%) of the underlying fund’s portfolio holdings, including the index.17 The Commission also notes that identities and amount of securities comprising the underlying benchmark 14 15 U.S.C. 78f. index, the specific types and 15 In approving this proposed rule change, the characteristics of Financial Instruments, Commission has considered the proposed rule’s and any cash and cash equivalents held impact on efficiency, competition, and capital in such portfolio. With respect to such formation. See 15 U.S.C. 78c(f). 16 15 U.S.C. 78f(b)(5). e.g., Securities Exchange Act Release Nos. 56713 (October 29, 2007), 72 FR 61915 (November 1, 2007) (SR–Amex–2007–74) (approving the listing and trading of Rydex Leveraged Funds, Inverse Funds and Leveraged Inverse Funds); 52553 (October 3, 2005), 70 FR 59100 (October 11, 2005) (SR–Amex–2004–62) (approving the listing and trading of the ProShares Ultra Funds and Short Funds); 54040 (June 23, 2006), 71 FR 37629 (June 30, 2006) (SR–Amex–2006–41) (approving the listing and trading of the ProShares UltraShort Funds); 55117 (January 17, 2007), 72 FR 3442 (January 25, 2007) (SR–Amex–2006–101) (approving the listing and trading of Ultra, Short and UltraShort Funds based on various indexes); 56592 (October 1, 2007), 72 FR 57364 (October 9, 2007) (SR–Amex–2007–60) (approving the listing and trading of ProShares Ultra, Short and UltraShort Funds based on various international indexes); and 56998 (December 19, 2007), 72 FR 73404 (December 27, 2007) (SR–Amex–2007–104) (approving the listing and trading of ProShares Ultra, Short and UltraShort Funds based on several mstockstill on PROD1PC66 with NOTICES 17 See, VerDate Aug<31>2005 17:13 Oct 24, 2008 Jkt 217001 fixed income indexes, among others). See also, e.g., Securities Exchange Act Release Nos. 56763 (November 7, 2007), 72 FR 64103 (November 14, 2007) (SR–NYSEArca–2007–81) (approving UTP trading of shares of funds of Rydex ETF Trust); 56601 (October 2, 2007), 72 FR 57625 (October 10, 2007) (SR–NYSEArca–2007–79) (approving UTP trading of shares of eight funds of the ProShares Trust); 55125 (January 18, 2007), 72 FR 3462 (January 25, 2007) (SR–NYSEArca–2006–87) (approving UTP trading of shares of 81 funds of the ProShares Trust); and 54026 (June 21, 2006), 71 FR 36850 (June 28, 2006) (SR–PCX–2005–115) (approving UTP trading of shares of funds of the ProShares Trust). 18 See Securities Exchange Act Release No. 57660 (April 14, 2008), 73 FR 21391 (April 21, 2008) (SR– Amex–2007–131) (approving generic listing standards for Multiple Fund Shares and generic listing standards for Inverse Fund Shares that correspond inversely up to ¥200% of the percentage performance of a particular underlying benchmark index). PO 00000 Frm 00086 Fmt 4703 Sfmt 4703 Financial Instruments, the Commission notes that a notification procedure will be implemented by the Exchange so that timely notice from the investment adviser is submitted to the Exchange if a particular Financial Instrument is in default or is shortly to be in default. The Exchange states that, after receipt of such notice, it would determine on a case-by-case basis whether such default justifies a trading halt of Multiple Fund Shares or Inverse Fund Shares, as the case may be. The Commission also notes that the Exchange would be required to halt trading in Multiple Fund Shares and Inverse Fund Shares if certain values are not disseminated as required or cease to be disseminated to all market participants at the same time.19 In addition, the Commission notes that NYSE Arca Equities Rule 9.2(a), which sets forth the Exchange’s suitability requirements, would apply to the trading of Multiple Fund Shares and Inverse Fund Shares. Specifically, ETP Holders, before recommending a transaction to a non-institutional customer in such securities, must have reasonable grounds to believe that the recommendation is suitable for the customer, based on facts disclosed by the customer after reasonable inquiry concerning the customer’s investment objectives, financial situation, needs, and any other information that such ETP Holder believes would be useful to make a recommendation. ETP Holders must also have a reasonable basis to believe that the customer can evaluate the special characteristics, and is able to bear the financial risks, of investments in Multiple Fund Shares and Inverse Fund Shares. An Information Bulletin would inform ETP Holders of the suitability requirements of NYSE Arca Equities Rule 9.2(a) prior to the commencement of trading in such securities. In sum, the Commission believes that the Exchange’s proposed amendments to Commentaries .01, .02, and .03, and adoption of new Commentary .04, to NYSE Arca Equities Rule 5.2(j)(3) relating to the listing and trading of Multiple Fund Shares and Inverse Fund Shares should fulfill the intended objective of Rule 19b–4(e) under the Act by allowing such derivative securities products to be listed and traded without separate Commission approval. The Commission believes that the proposed rule change should facilitate the listing and trading of additional types of exchange-traded products and reduce the time frame for bringing these 19 See proposed Commentary .04(b) to NYSE Arca Equities Rule 5.2(j)(3); NYSE Arca Equities Rule 5.5(g)(2). E:\FR\FM\27OCN1.SGM 27OCN1 Federal Register / Vol. 73, No. 208 / Monday, October 27, 2008 / Notices securities to market, thereby reducing the burdens on issuers and other market participants and promoting competition. For the foregoing reasons, the Commission believes that the proposed rule change is consistent with the Act and finds good cause for approving the proposed rule change. IV. Conclusion It is therefore ordered, pursuant to section 19(b)(2) of the Act,20 that the proposed rule change (SR–NYSEArca– 2008–89) be, and it hereby is, approved. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.21 Florence E. Harmon, Acting Secretary. [FR Doc. E8–25505 Filed 10–24–08; 8:45 am] BILLING CODE 8011–01–P Kentucky: Breckinridge. All other information in the original declaration remains unchanged. (Catalog of Federal Domestic Assistance Numbers 59002 and 59008) Herbert L. Mitchell, Associate Administrator for Disaster Assistance. [FR Doc. E8–25481 Filed 10–24–08; 8:45 am] [Disaster Declaration #11449 and #11450] Indiana Disaster Number IN–00026 U.S. Small Business Administration. ACTION: Amendment 4. mstockstill on PROD1PC66 with NOTICES AGENCY: SUMMARY: This is an amendment of the Presidential declaration of a major disaster for the State of Indiana (FEMA—1795—DR), dated 09/23/2008. Incident: Severe Storms and Flooding. Incident Period: 09/12/2008 through 10/06/2008. Effective Date: 10/16/2008. Physical Loan Application Deadline Date: 11/24/2008. EIDL Loan Application Deadline Date: 06/23/2009. ADDRESSES: Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155. FOR FURTHER INFORMATION CONTACT: A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416. SUPPLEMENTARY INFORMATION: The notice of the Presidential disaster declaration for the State of Indiana, dated 09/23/ 2008 is hereby amended to include the following areas as adversely affected by the disaster: Primary Counties: (Physical Damage and Economic Injury Loans): Floyd, Perry, Scott, Washington. Contiguous Counties: (Economic Injury Loans Only): 20 15 21 17 U.S.C. 78s(b)(1). CFR 200.30–3(a)(12). VerDate Aug<31>2005 18:07 Oct 24, 2008 Jkt 217001 (Catalog of Federal Domestic Assistance Numbers 59002 and 59008) Herbert L. Mitchell, Associate Administrator for Disaster Assistance. [FR Doc. E8–25484 Filed 10–24–08; 8:45 am] BILLING CODE 8025–01–P SMALL BUSINESS ADMINISTRATION BILLING CODE 8025–01–P [Disaster Declaration #11409 and #11410] SMALL BUSINESS ADMINISTRATION Florida Disaster Number FL–00035 [Disaster Declaration #11418 and #11419] AGENCY: Louisiana Disaster Number LA–00019 ACTION: U.S. Small Business Administration. AGENCY: ACTION: SMALL BUSINESS ADMINISTRATION 63759 Amendment 5. SUMMARY: This is an amendment of the Presidential declaration of a major disaster for the State of Louisiana (FEMA–1786–DR), dated 09/02/2008. Incident: Hurricane Gustav. Incident Period: 09/01/2008 through 09/11/2008. Effective Date: 10/16/2008. Physical Loan Application Deadline Date: 11/03/2008. EIDL Loan Application Deadline Date: 06/02/2009. ADDRESSES: Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155. FOR FURTHER INFORMATION CONTACT: A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416. The notice of the Presidential disaster declaration for the State of Louisiana, dated 09/02/ 2008 is hereby amended to include the following areas as adversely affected by the disaster: Primary Parishes: (Physical Damage and Economic Injury Loans): East Carroll, Madison, Morehouse, Ouachita, Richland, Tensas, Union, West Carroll, Winn, Concordia. Contiguous Parishes/Counties: (Economic Injury Loans Only): Louisiana: Bienville, Claiborne, Jackson, Lincoln. Arkansas: Ashley, Chicot, Union. Mississippi: Adams, Claiborne, Issaquena, Jefferson, Warren. All other information in the original declaration remains unchanged. SUPPLEMENTARY INFORMATION: PO 00000 Frm 00087 Fmt 4703 Sfmt 4703 U.S. Small Business Administration. Amendment 6. SUMMARY: This is an amendment of the Presidential declaration of a major disaster for the State of Florida (FEMA– 1785–DR), dated 08/26/2008. Incident: Tropical Storm Fay. Incident Period: 08/18/2008 through 09/12/2008. Effective Date: 10/16/2008. Physical Loan Application Deadline Date: 10/27/2008. EIDL Loan Application Deadline Date: 05/26/2009. ADDRESSES: Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155. FOR FURTHER INFORMATION CONTACT: A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416. The notice of the Presidential disaster declaration for the State of Florida, dated 08/26/ 2008 is hereby amended to include the following areas as adversely affected by the disaster: Primary Counties: (Physical Damage and Economic Injury Loans): Bradford, Clay, Madison, Taylor. Contiguous Counties: (Economic Injury Loans Only): Florida: Dixie, Hamilton, Lafayette, Suwannee. Georgia: Lowndes. All other information in the original declaration remains unchanged. SUPPLEMENTARY INFORMATION: (Catalog of Federal Domestic Assistance Numbers 59002 and 59008) Herbert L. Mitchell, Associate Administrator for Disaster Assistance. [FR Doc. E8–25483 Filed 10–24–08; 8:45 am] BILLING CODE 8025–01–P E:\FR\FM\27OCN1.SGM 27OCN1

Agencies

[Federal Register Volume 73, Number 208 (Monday, October 27, 2008)]
[Notices]
[Pages 63756-63759]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-25505]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-58825; File No. SR-NYSEArca-2008-89]


Self-Regulatory Organizations; NYSE Arca, Inc.; Order Approving 
Proposed Rule Change Amending NYSE Arca Equities Rule 5.2(j)(3) in 
Connection With Generic Listing Standards for Multiple Fund Shares and 
Inverse Fund Shares

October 21, 2008.

I. Introduction

    On August 25, 2008, NYSE Arca, Inc. (``Exchange'' or ``NYSE 
Arca''), through its wholly owned subsidiary, NYSE Arca Equities, Inc. 
(``NYSE Arca Equities''), filed with the Securities and Exchange 
Commission (``Commission'') pursuant to section 19(b)(1) of the 
Securities Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 
thereunder,\2\ a proposed rule change to amend NYSE Arca Equities Rule 
5.2(j)(3) in connection with generic listing standards for Multiple 
Fund Shares and Inverse Fund Shares. The proposed rule change was 
published for comment in the Federal Register on September 16, 2008.\3\ 
The Commission received no comment letters on the proposed rule change. 
This order approves the proposed rule change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 58484 (September 8, 
2008), 73 FR 53472.
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II. Description of the Proposed Rule Change

    The Exchange proposes to amend Commentaries .01, .02, and .03 and 
to adopt new Commentary .04, to NYSE Arca Equities Rule 5.2(j)(3), the 
Exchange's initial listing standards for Investment Company Units 
(``ICUs''), to permit the listing and trading of ICUs issued by an 
open-end management investment company that seek to provide investment 
results, before fees and expenses, that either correspond to a 
specified multiple of the percentage performance on a given day of a 
particular benchmark domestic equity index, international equity index, 
Fixed Income Securities \4\ index, or a combination thereof (``Multiple 
Fund Shares'') or that correspond inversely up to minus or negative 300 
percent (-300%) of the percentage performance on a given day of a 
particular domestic equity index, international equity index, Fixed 
Income Securities index, or a combination thereof (``Inverse Fund 
Shares,'' and together with Multiple Fund Shares, collectively, ``Fund 
Shares''), in each case, pursuant to Rule 19b-4(e) under the Act.\5\
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    \4\ Fixed Income Securities are debt securities that are notes, 
bonds, debentures, or evidence of indebtedness that include, but are 
not limited to, U.S. Department of Treasury securities, government-
sponsored entity securities, municipal securities, trust preferred 
securities, supranational debt, and debt of a foreign country or a 
subdivision thereof. See Commentary .02 to NYSE Arca Equities Rule 
5.2(j)(3).
    \5\ 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 Rule 19b-4(c)(1) under the Act, if the Commission has 
approved, pursuant to Section 19(b) of the Act, the SRO's trading 
rules, procedures, and listing standards for the product class that 
would include the new derivative securities product, and the SRO has 
a surveillance program for the product class. See 17 CFR 240.19b-
4(e)(1). A new derivative securities product means any type of 
option, warrant, hybrid securities product, or any other security, 
other than a single equity option or a security futures product, 
whose value is based, in whole or in part, upon the performance of, 
or interest in, an underlying instrument. See 17 CFR 240.19b-4(e).
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    Specifically, the Exchange proposes to remove the current 
limitation to listing Multiple Fund Shares and Inverse Fund Shares \6\ 
and to amend Commentaries .01, .02, and .03 to NYSE Arca Equities Rule 
5.2(j)(3) to permit the Exchange to approve the listing and trading of 
Multiple Fund Shares and Inverse Fund Shares pursuant to Rule 19b-4(e) 
under the Act, provided that each of the applicable conditions and 
requirements set forth in Commentaries .01, .02, or .03 to NYSE Arca 
Equities Rule 5.2(j)(3), as proposed to be amended, and proposed 
Commentary .04 to NYSE Arca Equities Rule 5.2(j)(3) are satisfied.
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    \6\ See Commentaries .02 and .03 to NYSE Arca Equities Rule 
5.2(j)(3) (currently prohibiting the Exchange from approving for 
listing and trading pursuant to Rule 19b-4(e) a series of ICUs that 
are issued by an open-end management investment company that seeks 
to provide investment results that either exceed the performance of 
a specified index by a specified multiple or that correspond to the 
inverse of the performance of a specified index by a specified 
multiple).
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    Lastly, the Exchange proposes to make a minor, non-substantive 
language change to Commentary .02(ii) to NYSE Arca Equities Rule 
5.2(j)(3).

Limitation on Leverage

    In connection with the listing and trading of Multiple Fund Shares, 
Commentaries .01, .02, and .03 to NYSE Arca Equities Rule 5.2(j)(3), as 
amended, would not provide a limitation on leverage. Specifically, the 
proposal would permit the Exchange to approve, pursuant to Rule 19b-
4(e) under the Act, the listing and trading of Multiple Fund Shares 
that seek to provide investment results, before fees and expenses, 
corresponding to any multiple, without limitation, of the percentage 
performance on a given day of a particular domestic or international 
equity index, Fixed Income Securities index, or a combination thereof.
    In connection with Inverse Fund Shares, Commentaries .01, .02, and 
.03 to NYSE Arca Equities Rule 5.2(j)(3), as amended, would expressly 
prohibit the Exchange from approving pursuant to Rule 19b-4(e) under 
the Act the listing and trading of Inverse Fund Shares that seek to 
provide investment results, before fees and expenses, in an amount that 
exceeds -300% of the percentage performance of the underlying benchmark 
index. Specifically, with respect to the listing and trading of Inverse 
Fund Shares that seek to provide investment results, before fees and 
expenses, in an amount that exceeds -300% of the percentage performance 
of the underlying benchmark index, the Exchange's proposal would 
continue to require specific Commission approval pursuant to section 
19(b)(2) of the Act.\7\
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    \7\ 15 U.S.C. 78s(b)(2).
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Availability of Information About Fund Shares and Underlying Indexes

    The Exchange also proposes to adopt new Commentary .04 to NYSE Arca 
Equities Rule 5.2(j)(3), which would only apply to a series of Multiple 
Fund Shares and Inverse Fund Shares issued by an open-end management 
investment company. Proposed Commentary .04 to NYSE Arca Equities Rule 
5.2(j)(3) would require the composition of portfolio holdings of a fund 
be disclosed daily on

[[Page 63757]]

its Internet Web site and to include, as applicable: (1) The identity 
and number of shares held of each specific equity security; (2) the 
identity and amount held of each specific Fixed Income Security; (3) 
the specific types of financial instruments, which include, but are not 
limited to, stock index futures contracts, options on futures 
contracts, options on securities and indices, equity caps, collars, and 
floors, swap agreements, forward contracts, and repurchase agreements 
(collectively, ``Financial Instruments''), as well as the 
characteristics of such Financial Instruments; and (4) the cash 
equivalents and amount of cash held in such portfolio.
    The Exchange states that this public Web site disclosure of the 
portfolio composition of a fund would coincide with the disclosure of 
the ``IIV File'' \8\ and the ``PCF File.'' \9\ Therefore, the same 
portfolio information (including accrued expenses and dividends) would 
be provided on the public Web site, as well as in the IIV File and PCF 
File provided to ``Authorized Participants.'' \10\ The Exchange further 
states that the format of the public Web site disclosure and the IIV 
File and PCF File could differ because the public Web site will list 
all portfolio holdings, while the IIV File and PCF File would similarly 
provide the portfolio holdings, but in a format appropriate for 
Authorized Participants, i.e., the exact components of a Creation Unit. 
Accordingly, investors would have access to the current portfolio 
composition of a fund through the fund's Web site.
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    \8\ Because the National Securities Clearing Corporation's 
(``NSCC'') system for the receipt and dissemination to its 
participants of the portfolio composition file (``PCF File'') is not 
currently capable of processing information with respect to 
Financial Instruments, an ``IIV File'' has been developed, which is 
used to disclose a fund's holdings of Financial Instruments. The IIV 
File is posted to a password-protected Web site before the opening 
of business on each business day, and all NSCC participants and the 
Exchange have access to a password and the Web site containing the 
IIV File.
    \9\ The PCF File for a fund includes the list of names and the 
required number of shares of each deposit security, as well as any 
cash information to be included in the next trading day's ``Creation 
Unit'' (the minimum aggregation size of shares required to effect a 
creation or redemption of shares). The information in the PCF File 
will be available to all participating in the NSCC system.
    \10\ Authorized Participants are the only persons that may place 
orders to create and redeem Creation Units. Authorized Participants 
must be registered broker-dealers or other securities market 
participants, such as banks and other financial institutions, that 
are exempt from registration as broker-dealers to engage in 
securities transactions, who are Depository Trust Company 
participants.
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Trading Halts

    The Exchange states that existing trading halt requirements for 
ICUs would apply to Multiple Fund Shares and Inverse Fund Shares. In 
particular, NYSE Arca Equities Rule 5.5(g)(2)(b) provides that, if the 
intraday indicative value (``IIV'') or the index value applicable to 
that series of ICUs is not being disseminated as required, the Exchange 
may halt trading during the day in which the interruption to the 
dissemination of the IIV or the index value occurs. If the interruption 
to the dissemination of the IIV or the index value persists past the 
trading day in which it occurred, the Exchange would halt trading no 
later than the beginning of the trading day following the 
interruption.\11\
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    \11\ If a series of ICUs are traded on the Exchange pursuant to 
unlisted trading privileges, the Exchange would halt trading if the 
primary listing market halts trading in such series. See NYSE Arca 
Equities Rule 7.34(a).
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    In addition, proposed Commentary .04(b) to NYSE Arca Equities Rule 
5.2(j)(3) requires the Exchange to halt trading of Fund Shares if the 
Exchange becomes aware that the net asset value (``NAV'') is not being 
disseminated to all market participants at the same time or the daily 
public Web site disclosure of its portfolio holdings does not occur. 
Proposed Commentary .04(b) to NYSE Arca Equities Rule 5.2(j)(3) further 
provides that the Exchange may resume trading in such Fund Shares only 
when the NAV is disseminated to all market participants at the same 
time or the daily public Web site disclosure of portfolio holdings 
occurs, as appropriate.
    In addition to other factors that may be relevant, the Exchange 
states that it may consider factors in exercising its discretion to 
halt or suspend trading in Multiple Fund Shares and/or Inverse Fund 
Shares. These factors would include, without limitation, (1) the extent 
to which trading is not occurring in securities comprising an 
underlying index and/or the Financial Instruments relating to the Fund 
Shares, or (2) whether other unusual conditions or circumstances 
detrimental to the maintenance of a fair and orderly market are 
present.\12\ In the case of Financial Instruments, the Exchange 
represents that a notification procedure would be implemented so that 
timely notice from the investment adviser is received by the Exchange 
when a particular Financial Instrument is in default or shortly to be 
in default. Notification from the investment adviser would be made by 
phone, facsimile, or e-mail. The Exchange would then determine on a 
case-by-case basis whether a default of a particular Financial 
Instrument justifies a trading halt of the Multiple Fund Shares and/or 
Inverse Fund Shares, as applicable. Trading in Multiple Fund Shares 
and/or Inverse Fund Shares would also be halted if the circuit breaker 
parameters pursuant to NYSE Arca Equities 7.12 are reached.\13\
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    \12\ See NYSE Arca Equities Rule 5.5(g)(2)(b).
    \13\ See id.
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Continued Listing and Trading Criteria

    The Exchange states that the continued listing and trading 
requirements for ICUs set forth in NYSE Arca Equities Rule 5.5(g)(2) 
would apply to Multiple Fund Shares and Inverse Fund Shares.

Suitability

    Currently, NYSE Arca Equities Rule 9.2(a) (Diligence as to 
Accounts) provides that an ETP Holder, before recommending a 
transaction in ICUs, must have reasonable grounds to believe that the 
recommendation is suitable for the customer based on any facts 
disclosed by the customer as to its other security holdings and as to 
its 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 must make 
reasonable efforts to obtain information concerning the customer's 
financial status, tax status, investment objectives, and any other 
information that such ETP Holder believes would be useful to make a 
recommendation.
    Prior to the commencement of trading, the Exchange would inform its 
ETP Holders of the suitability requirements of NYSE Arca Equities Rule 
9.2(a) in an Information Bulletin. Specifically, ETP Holders would be 
reminded in the Information Bulletin that, in recommending transactions 
in these securities, they must have a reasonable basis to believe that 
(1) the recommendation is suitable for a customer given reasonable 
inquiry concerning the customer's investment objectives, financial 
situation, needs, and any other information known by such member, and 
(2) the customer can evaluate the special characteristics, and is able 
to bear the financial risks, of an investment in Multiple Fund Shares 
and Inverse Fund Shares. In connection with the suitability obligation, 
the Information Circular would also provide that members must make 
reasonable efforts to obtain the following information: (1) The 
customer's financial status; (2) the customer's tax

[[Page 63758]]

status; (3) the customer's investment objectives; and (4) such other 
information used or considered to be reasonable by such member or 
registered representative in making recommendations to the customer.

III. Discussion and Commission's Findings

    The Commission has carefully reviewed the proposed rule change and 
finds that it is consistent with the requirements of section 6 of the 
Act \14\ 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, among other things, that the Exchange's rules 
be designed 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.
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    \14\ 15 U.S.C. 78f.
    \15\ In approving this proposed rule change, the Commission has 
considered the proposed rule's impact on efficiency, competition, 
and capital formation. See 15 U.S.C. 78c(f).
    \16\ 15 U.S.C. 78f(b)(5).
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    The Commission believes that the proposal reasonably balances the 
removal of impediments to a free and open market with the protection of 
investors and the public interest, two principles set forth in section 
6(b)(5) of the Act. The Commission notes that it has previously 
approved the listing and trading of various leveraged exchange-traded 
funds, including trading pursuant to unlisted trading privileges on the 
Exchange, that seek daily investment results, before fees and expenses, 
that correspond to twice the inverse or opposite of the daily 
performance (-200%) of the underlying index.\17\ The Commission also 
notes that the proposed rule change is similar to another exchange's 
generic listing requirements for Multiple Fund Shares and Inverse Fund 
Shares.\18\ With respect to the listing and trading of a series of 
Inverse Fund Shares that seek to provide investment results that exceed 
-300% of the percentage performance of an underlying benchmark index, 
the Commission further notes that the Exchange would be required to 
obtain prior Commission approval pursuant to section 19(b)(2) of the 
Act.
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    \17\ See, e.g., Securities Exchange Act Release Nos. 56713 
(October 29, 2007), 72 FR 61915 (November 1, 2007) (SR-Amex-2007-74) 
(approving the listing and trading of Rydex Leveraged Funds, Inverse 
Funds and Leveraged Inverse Funds); 52553 (October 3, 2005), 70 FR 
59100 (October 11, 2005) (SR-Amex-2004-62) (approving the listing 
and trading of the ProShares Ultra Funds and Short Funds); 54040 
(June 23, 2006), 71 FR 37629 (June 30, 2006) (SR-Amex-2006-41) 
(approving the listing and trading of the ProShares UltraShort 
Funds); 55117 (January 17, 2007), 72 FR 3442 (January 25, 2007) (SR-
Amex-2006-101) (approving the listing and trading of Ultra, Short 
and UltraShort Funds based on various indexes); 56592 (October 1, 
2007), 72 FR 57364 (October 9, 2007) (SR-Amex-2007-60) (approving 
the listing and trading of ProShares Ultra, Short and UltraShort 
Funds based on various international indexes); and 56998 (December 
19, 2007), 72 FR 73404 (December 27, 2007) (SR-Amex-2007-104) 
(approving the listing and trading of ProShares Ultra, Short and 
UltraShort Funds based on several fixed income indexes, among 
others). See also, e.g., Securities Exchange Act Release Nos. 56763 
(November 7, 2007), 72 FR 64103 (November 14, 2007) (SR-NYSEArca-
2007-81) (approving UTP trading of shares of funds of Rydex ETF 
Trust); 56601 (October 2, 2007), 72 FR 57625 (October 10, 2007) (SR-
NYSEArca-2007-79) (approving UTP trading of shares of eight funds of 
the ProShares Trust); 55125 (January 18, 2007), 72 FR 3462 (January 
25, 2007) (SR-NYSEArca-2006-87) (approving UTP trading of shares of 
81 funds of the ProShares Trust); and 54026 (June 21, 2006), 71 FR 
36850 (June 28, 2006) (SR-PCX-2005-115) (approving UTP trading of 
shares of funds of the ProShares Trust).
    \18\ See Securities Exchange Act Release No. 57660 (April 14, 
2008), 73 FR 21391 (April 21, 2008) (SR-Amex-2007-131) (approving 
generic listing standards for Multiple Fund Shares and generic 
listing standards for Inverse Fund Shares that correspond inversely 
up to -200% of the percentage performance of a particular underlying 
benchmark index).
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    The Commission also notes that Fund Shares must comply with all of 
the applicable provisions under NYSE Arca Equities Rules 5.2(j)(3), as 
proposed to be amended, and 5.5(g)(2), as well as all other 
requirements applicable to ICUs including, without limitation, 
requirements relating to the dissemination of intraday indicative 
value, index value, disclosure of portfolio holdings, rules and 
policies governing the trading of equity securities, trading hours, 
trading halts, surveillance, firewalls, and Information Bulletins to 
ETP Holders, as set forth in prior Commission orders approving the 
generic listing rules applicable to the listing and trading of ICUs.
    The Commission further notes that the proposed rule change is 
reasonably designed to promote fair disclosure of information that may 
be necessary to price the Shares appropriately and to prevent trading 
when a reasonable degree of transparency cannot be assured. Proposed 
Commentary .04 to NYSE Arca Equities Rule 5.2(j)(3) requires daily 
public Web site disclosure of the composition of a fund's portfolio 
holdings, including the identities and amount of securities comprising 
the underlying benchmark index, the specific types and characteristics 
of Financial Instruments, and any cash and cash equivalents held in 
such portfolio. With respect to such Financial Instruments, the 
Commission notes that a notification procedure will be implemented by 
the Exchange so that timely notice from the investment adviser is 
submitted to the Exchange if a particular Financial Instrument is in 
default or is shortly to be in default. The Exchange states that, after 
receipt of such notice, it would determine on a case-by-case basis 
whether such default justifies a trading halt of Multiple Fund Shares 
or Inverse Fund Shares, as the case may be. The Commission also notes 
that the Exchange would be required to halt trading in Multiple Fund 
Shares and Inverse Fund Shares if certain values are not disseminated 
as required or cease to be disseminated to all market participants at 
the same time.\19\
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    \19\ See proposed Commentary .04(b) to NYSE Arca Equities Rule 
5.2(j)(3); NYSE Arca Equities Rule 5.5(g)(2).
---------------------------------------------------------------------------

    In addition, the Commission notes that NYSE Arca Equities Rule 
9.2(a), which sets forth the Exchange's suitability requirements, would 
apply to the trading of Multiple Fund Shares and Inverse Fund Shares. 
Specifically, ETP Holders, before recommending a transaction to a non-
institutional customer in such securities, must have reasonable grounds 
to believe that the recommendation is suitable for the customer, based 
on facts disclosed by the customer after reasonable inquiry concerning 
the customer's investment objectives, financial situation, needs, and 
any other information that such ETP Holder believes would be useful to 
make a recommendation. ETP Holders must also have a reasonable basis to 
believe that the customer can evaluate the special characteristics, and 
is able to bear the financial risks, of investments in Multiple Fund 
Shares and Inverse Fund Shares. An Information Bulletin would inform 
ETP Holders of the suitability requirements of NYSE Arca Equities Rule 
9.2(a) prior to the commencement of trading in such securities.
    In sum, the Commission believes that the Exchange's proposed 
amendments to Commentaries .01, .02, and .03, and adoption of new 
Commentary .04, to NYSE Arca Equities Rule 5.2(j)(3) relating to the 
listing and trading of Multiple Fund Shares and Inverse Fund Shares 
should fulfill the intended objective of Rule 19b-4(e) under the Act by 
allowing such derivative securities products to be listed and traded 
without separate Commission approval. The Commission believes that the 
proposed rule change should facilitate the listing and trading of 
additional types of exchange-traded products and reduce the time frame 
for bringing these

[[Page 63759]]

securities to market, thereby reducing the burdens on issuers and other 
market participants and promoting competition.
    For the foregoing reasons, the Commission believes that the 
proposed rule change is consistent with the Act and finds good cause 
for approving the proposed rule change.

IV. Conclusion

    It is therefore ordered, pursuant to section 19(b)(2) of the 
Act,\20\ that the proposed rule change (SR-NYSEArca-2008-89) be, and it 
hereby is, approved.
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    \20\ 15 U.S.C. 78s(b)(1).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\21\
Florence E. Harmon,
Acting Secretary.
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    \21\ 17 CFR 200.30-3(a)(12).
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[FR Doc. E8-25505 Filed 10-24-08; 8:45 am]
BILLING CODE 8011-01-P