Self-Regulatory Organizations; Notice of Filing of Proposed Rule Change by NYSE Arca, Inc. Relating to Listing of the Wilshire Micro-Cap ETF, 41252-41254 [2010-17192]
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Federal Register / Vol. 75, No. 135 / Thursday, July 15, 2010 / Notices
C. Self-Regulatory Organization’s
Statement on Comments on the
Proposed Rule Change Received From
Members, Participants or Others
No written comments were either
solicited or received.
III. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
The foregoing rule change has become
effective pursuant to Section
19(b)(3)(A)(ii) of the Act 18 and
paragraph (f)(2) of Rule 19b–4 19
thereunder. At any time within 60 days
of the filing of the proposed rule change,
the Commission may summarily
abrogate such rule change if it appears
to the Commission that such action is
necessary or appropriate in the public
interest, for the protection of investors,
or otherwise in furtherance of the
purposes of the Act.
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:
those that may be withheld from the
public in accordance with the
provisions of 5 U.S.C. 552, will be
available for Web site viewing and
printing 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 such filing
also will be available for inspection and
copying at the principal office of the
Exchange. All comments received will
be posted without change; the
Commission does not edit personal
identifying information from
submissions. You should submit only
information that you wish to make
publicly available. All submissions
should refer to File Number SR–Phlx–
2010–94 and should be submitted on or
before August 5, 2010.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.20
Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010–17193 Filed 7–14–10; 8:45 am]
BILLING CODE 8010–01–P
SECURITIES AND EXCHANGE
COMMISSION
srobinson on DSKHWCL6B1PROD with NOTICES
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–Phlx–2010–94 on the
subject line.
[Release No. 34–62471; File No. SR–
NYSEArca–2010–64]
Paper Comments
• Send paper comments in triplicate
to Elizabeth M. Murphy, Secretary,
Securities and Exchange Commission,
Station Place, 100 F Street, NE.,
Washington, DC 20549–1090.
All submissions should refer to File
Number SR–Phlx–2010–94. 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
Pursuant to Section 19(b)(1) 1 of the
Securities Exchange Act of 1934 (the
‘‘Act’’) 2 and Rule 19b–4 thereunder,3
notice is hereby given that, on July 1,
2010, NYSE Arca, Inc. (the ‘‘Exchange’’
or ‘‘NYSE Arca’’) filed with the
Securities and Exchange Commission
(the ‘‘Commission’’) the proposed rule
change as described in Items I, II, and
III below, which Items have been
prepared by the self-regulatory
organization. The Commission is
publishing this notice to solicit
comments on the proposed rule change
from interested persons.
Self-Regulatory Organizations; Notice
of Filing of Proposed Rule Change by
NYSE Arca, Inc. Relating to Listing of
the Wilshire Micro-Cap ETF
July 8, 2010.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange proposes to list and
trade shares of the Wilshire Micro-Cap
ETF under NYSE Arca Equities Rule
5.2(j)(3). The text of the proposed rule
20 17
CFR 200.30–3(a)(12).
U.S.C. 78s(b)(1).
2 15 U.S.C. 78a.
3 17 CFR 240.19b–4.
1 15
18 15
19 17
U.S.C. 78s(b)(3)(A)(ii).
CFR 240.19b–4(f)(2).
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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
self-regulatory organization 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 those 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 parts of such
statements.
A. Self-Regulatory Organization’s
Statement of the Purpose of, and the
Statutory Basis for, the Proposed Rule
Change
1. Purpose
The Exchange proposes to list and
trade the Shares of the Wilshire MicroCap ETF (the ‘‘Fund’’) under NYSE Arca
Equities Rule 5.2(j)(3), the Exchange’s
listing standards for Investment
Company Units (‘‘Units’’).4 The Fund is
a series of the Claymore ExchangeTraded Fund Trust.
The Fund seeks investment results
that correspond generally to the
performance, before the Fund’s fees and
expenses, of the Wilshire US Micro-Cap
IndexSM (the ‘‘Wilshire Micro-Cap’’ or
the ‘‘Index’’).5
The Exchange is submitting this
proposed rule change because the Index
for the Fund does not meet all of the
‘‘generic’’ listing requirements of
Commentary .01(a)(A) to NYSE Arca
Equities Rule 5.2(j)(3) applicable to
listing of ICUs based on US indexes.
The Index meets all such requirements
except for those set forth in
Commentary .01(a)(A)(1) 6 and
4 An Investment Company Unit is a security that
represents an interest in a registered investment
company that holds securities comprising, or
otherwise based on or representing an interest in,
an index or portfolio of securities (or holds
securities in another registered investment
company that holds securities comprising, or
otherwise based on or representing an interest in,
an index or portfolio of securities). See NYSE Arca
Equities Rule 5.2(j)(3)(A).
5 See the Claymore Exchange-Traded Fund
Trust’s registration statement on Form N–1A, dated
May 18, 2010 (File Nos. 333–134551; 811–21906)
(‘‘Registration Statement’’). Statements herein
regarding the Fund, the Shares and the Wilshire US
Micro-Cap Index are based on the Registration
Statement.
6 Commentary .01(a)(A)(1) to NYSE Arca Equities
Rule 5.2(j)(3) provides that component stocks
(excluding Units and securities defined in Section
2 of Rule 8, collectively, ‘‘Derivative Securities
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.01(a)(A)(5).7 Specifically, as of April
21, 2010, 76.93% of the weight of the
Index components have a market
capitalization greater than $75 million.
In addition, as of April 21, 2010, the
Index included 201 non-NMS stocks out
of a total of approximately 1,564
components in the Index. Thus, nonNMS stocks comprised approximately
12.8% of the number of stocks in the
Index. Stocks comprising 97.3% of the
weight of the Index were NMS stocks.8
According to the Registration
Statement, the Fund, using a low cost
‘‘passive’’ or ‘‘indexing’’ investment
approach, will seek to replicate, before
the Fund’s fees and expenses, the
performance of the Wilshire Micro-Cap.
The Wilshire Micro-Cap is a rules-based
index comprised of approximately 1,564
securities of micro-capitalization
companies as of March 31, 2010, as
defined by Wilshire Associates
Incorporated (‘‘Wilshire’’ or the ‘‘Index
Provider’’). The Wilshire Micro-Cap is
designed to represent micro-sized
companies and is a subset of the
Wilshire 5000 Total Market IndexSM
(the ‘‘Wilshire 5000’’). The Wilshire
Micro-Cap represents a float-adjusted,
market capitalization-weighted index of
the issues ranked below 2500 by market
capitalization of the Wilshire 5000.
The Exchange represents that: (1)
Except for Commentary .01(a)(A)(1) and
.01(a)(A)(5) to NYSE Arca Equities Rule
5.2(j)(3), the Shares of the Fund
currently satisfy all of the generic listing
standards under NYSE Arca Equities
Rule 5.2(j)(3); (2) the continued listing
standards under NYSE Arca Equities
Rules 5.2(j)(3) and 5.5(g)(2) applicable to
Units shall apply to the Shares; and (3)
the Trust is required to comply with
Rule 10A–3 9 under the Act for the
initial and continued listing of the
Shares. In addition, the Exchange
represents that the Shares will comply
with all other requirements applicable
to Units including, but not limited to,
requirements relating to the
Products’’) that in the aggregate account for at least
90% of the weight of the index or portfolio
(excluding such Derivative Securities Products)
each shall have a minimum market value of at least
$75 million.
7 Commentary .01(a)(A)(5) to NYSE Arca Equities
Rule 5.2(j)(3) provides that all securities in the
index or portfolio shall be US Component Stocks
listed on a national securities exchange and shall
be NMS Stocks as defined in Rule 600 of Regulation
NMS under the Securities Exchange Act of 1934 (17
U.S.C. 78a) (‘‘Act’’). NYSE Arca Equities Rule
5.2(j)(3) defines the term ‘‘US Component Stock’’ as
an equity security that is registered under Sections
12(b) or 12(g) of the Act or an American Depositary
Receipt, the underlying equity security of which is
registered under Sections 12(b) or 12(g) of the Act.
8 Non-NMS stocks are traded either on the OTC
Bulletin Board or the Pink OTC Markets.
9 17 CFR 240.10A–3.
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dissemination of key information such
as the value of the Index and Intraday
Indicative Value, rules governing the
trading of equity securities, trading
hours, trading halts, surveillance, and
Information Bulletin to ETP Holders, as
set forth in Exchange rules applicable to
Units and prior Commission orders
approving the generic listing rules
applicable to the listing and trading of
Units.10
The Exchange believes that,
notwithstanding the fact that the Index
does not meet certain generic listing
criteria in NYSE Arca Equities Rule
5.2(j)(3), Commentary .01, the Index is
sufficiently broad-based, and the Index
stocks are sufficiently liquid to deter
potential manipulation. As of June 9,
2010, the average market capitalization
of Index stocks was $82.52 million,
62.82% of the Index weight was
comprised of stocks with a global
monthly trading volume of greater than
one million shares, and 77.82% of the
Index weight was comprised of stocks
with a global monthly trading volume of
greater than 500,000 shares. The average
global monthly trading volume for Index
stocks for the period December 2009
through May 2010 ranged from 3.7
million to 9.7 million shares. In
addition, as of April 21, 2010, stocks
comprising only 2.7% of the Index
weight were non-NMS stocks.
Detailed descriptions of the Fund, the
Index, procedures for creating and
redeeming Shares, transaction fees and
expenses, dividends, distributions,
taxes, risks, and reports to be distributed
to beneficial owners of the Shares can
be found in the Registration Statement
or on the Web site for the Fund
(https://www.claymore.com), as
applicable.
mechanisms of a free and open market
and a national market system. The
Exchange believes that the proposed
rule change will facilitate the listing and
trading of an additional type of
exchange-traded product that will
enhance competition among market
participants, to the benefit of investors
and the marketplace.
2. Statutory Basis
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:
The proposed rule change is
consistent with Section 6(b) 11 of the
Act, in general, and furthers the
objectives of Section 6(b)(5),12 in
particular, in that it is designed to
prevent fraudulent and manipulative
acts and practices, to promote just and
equitable principles of trade, to foster
cooperation and coordination with
persons engaged in facilitating
transactions in securities, and to remove
impediments to and perfect the
10 See, e.g., Securities Exchange Act Release No.
44551 (July 12, 2001), 66 FR 37716 (July 19, 2001)
(SR–PCX–2001–14) (order approving generic listing
standards for Units and Portfolio Depositary
Receipts); Securities Exchange Act Release No.
41983 (October 6, 1999), 64 FR 56008 (October 15,
1999) (SR–PCX–98–29) (order approving rules for
listing and trading of Units).
11 15 U.S.C. 78f(b).
12 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
No written comments were solicited
or received with respect to 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 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
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–2010–64 on the
subject line.
Paper Comments
• Send paper comments in triplicate
to Elizabeth M. Murphy, Secretary,
Securities and Exchange Commission,
100 F Street, NE., Washington, DC
20549–1090.
E:\FR\FM\15JYN1.SGM
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41254
Federal Register / Vol. 75, No. 135 / Thursday, July 15, 2010 / Notices
All submissions should refer to File
Number SR–NYSEArca–2010–64. 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 Web site viewing and
printing 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 such filing
also will be available for inspection and
copying at the principal office of the
Exchange. All comments received will
be posted without change; the
Commission does not edit personal
identifying information from
submissions. You should submit only
information that you wish to make
available publicly. All submissions
should refer to File Number SR–
NYSEArca–2010–64 and should be
submitted on or before August 5, 2010.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.13
Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010–17192 Filed 7–14–10; 8:45 am]
BILLING CODE 8010–01–P
SECURITIES AND EXCHANGE
COMMISSION
srobinson on DSKHWCL6B1PROD with NOTICES
July 8, 2010.
I. Introduction
On March 30, 2010, the Financial
Industry Regulatory Authority, Inc.
(‘‘FINRA’’) filed with the Securities and
Exchange Commission (‘‘Commission’’),
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A. Expansion of Information Released
through BrokerCheck
Pursuant to FINRA Rule 8312(b),
BrokerCheck is an online application
through which the public may obtain
information regarding current and
former members, associated persons and
persons who were associated with a
member within the preceding two years.
Historic Complaints 6 regarding such
persons are disclosed pursuant to Rule
8312(b) only if: (i) A matter became a
Historic Complaint on or after March 19,
2007; (ii) the most recent Historic
Complaint or currently reported
customer complaint, arbitration or
litigation is less than ten years old; and
(iii) the person has a total of three or
more currently disclosable regulatory
actions, currently reported customer
complaints, arbitrations or litigations, or
Historic Complaints (subject to the
limitation that they became Historic
Complaints on or after March 19, 2007),
or any combination thereof (the ‘‘three
strikes provision’’).7 In addition,
U.S.C. 78s(b)(1).
CFR 240.19b–4.
3 See Securities Exchange Act Release No. 61927
(April 16, 2010), 75 FR 21064 (April 22, 2010) (SR–
FINRA–2010–012) (‘‘Notice’’).
4 See Exhibit A for a list of comment letters.
5 See letter to Elizabeth M. Murphy, Secretary,
Commission, from Richard E. Pullano, Associate
Vice President and Chief Counsel, FINRA, dated
June 21, 2010 (‘‘Response Letter’’).
6 Historic Complaints are customer complaints
that were reported on a uniform registration form
that are more than two years old and that have not
been settled or adjudicated and customer
complaints, arbitrations, or litigations that have
been settled for an amount less than the specified
dollar amount (identified on the customer
complaint question) and are therefore no longer
reportable on a uniform registration form. See
FINRA Rule 8312(b)(7).
7 Id. In addition, if a person meets the three
criteria established for disclosing Historic
Complaints, only those Historic Complaints that
became Historic Complaints after March 19, 2007
will be displayed through BrokerCheck.
2 17
Self-Regulatory Organizations;
Financial Industry Regulatory
Authority, Inc.; Order Approving a
Proposed Rule Change To Amend
FINRA Rule 8312 (FINRA BrokerCheck
Disclosure)
CFR 200.30–3(a)(12).
II. Description of the Proposal
1 15
[Release No. 34–62476; File No. SR–FINRA–
2010–012]
13 17
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 FINRA
Rule 8312 (FINRA BrokerCheck
Disclosure) to (i) expand the
information released through
BrokerCheck, both in terms of scope and
time; and (ii) establish a formal process
to dispute the accuracy of, or update,
information disclosed through
BrokerCheck. The proposal was
published for comment in the Federal
Register on April 22, 2010.3 The
Commission received fourteen
comments on the proposal.4 FINRA
responded to the comments on June 21,
2010.5 This order approves the
proposed rule change.
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pursuant to FINRA Rule 8312(c),
BrokerCheck allows the public to obtain
certain limited information regarding
formerly associated persons, regardless
of the time elapsed since they were
associated with a member, if they were
the subject of any final regulatory
action.8
In connection with its most recent
change to BrokerCheck,9 FINRA stated
that it would consider whether to
provide greater disclosure of
information through BrokerCheck.10
Based on its continued evaluation of the
BrokerCheck program, FINRA proposes
to (i) expand the BrokerCheck
disclosure period for formerly
associated persons of a member from
two years to ten years and (ii) eliminate
the conditions that must be met before
Historic Complaints will be displayed in
BrokerCheck (i.e. the three strikes
provision) and, thereby, make publicly
available in BrokerCheck all Historic
Complaints that were archived after the
implementation of Central Registration
Depository (‘‘CRD®’’ or ‘‘Web CRD’’) on
August 16, 1999.11
Additionally, FINRA proposes to
make publicly available on a permanent
basis information regarding formerly
associated persons, regardless of the
time elapsed since they were associated
with a member, if they were convicted
of or pled guilty or nolo contendere to
a crime; 12 were the subject of a civil
injunction in connection with
investment-related activity or a civil
court finding of involvement in a
violation of any investment-related
statute or regulation; 13 or were named
as a respondent or defendant in an
investment-related, consumer-initiated
8 A ‘‘final regulatory action’’ includes any final
action of the Commission, Commodity Futures
Trading Commission, a Federal banking agency, the
National Credit Union Administration, another
Federal regulatory agency, a State regulatory
agency, a foreign financial regulatory authority, or
a self-regulatory organization, including actions that
have been appealed. See Questions 14C, 14D, and
14E on Form U4, as well as Question 7D of Form
U5. See also Section 3(a)(39) of the Act.
9 See Securities Exchange Act Release No. 61002
(November 13, 2009), 74 FR 61193 (November 23,
2009) (SR–FINRA–2009–050).
10 See letter to Elizabeth M. Murphy, Secretary,
Commission, from Richard E. Pullano, Associate
Vice President and Chief Counsel, Registration and
Disclosure, FINRA, dated October 15, 2009, in
response to comments received regarding Securities
Exchange Act Release No. 60462 (August 7, 2009),
74 FR 41470 (August 17, 2009) (SR–FINRA–2009–
050); see also discussion of comments in Securities
Exchange Act Release No. 61002 (November 13,
2009), 74 FR 61193 (November 23, 2009) (SR–
FINRA–2009–050).
11 See proposed FINRA Rule 8312(b).
12 See Questions 14A(1)(a) and 14B(1)(a) on Form
U4, as well as Questions 7C(1) and 7C(3) on Form
U5.
13 See Questions 14H(1)(a) and 14H(1)(b) on Form
U4.
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]]>Agencies
[Federal Register Volume 75, Number 135 (Thursday, July 15, 2010)]
[Notices]
[Pages 41252-41254]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-17192]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-62471; File No. SR-NYSEArca-2010-64]
Self-Regulatory Organizations; Notice of Filing of Proposed Rule
Change by NYSE Arca, Inc. Relating to Listing of the Wilshire Micro-Cap
ETF
July 8, 2010.
Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby
given that, on July 1, 2010, NYSE Arca, Inc. (the ``Exchange'' or
``NYSE Arca'') filed with the Securities and Exchange Commission (the
``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been prepared by the self-regulatory
organization. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 15 U.S.C. 78a.
\3\ 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 list and trade shares of the Wilshire
Micro-Cap ETF under NYSE Arca Equities Rule 5.2(j)(3). 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 self-regulatory organization
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 those 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 parts of such statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and the
Statutory Basis for, the Proposed Rule Change
1. Purpose
The Exchange proposes to list and trade the Shares of the Wilshire
Micro-Cap ETF (the ``Fund'') under NYSE Arca Equities Rule 5.2(j)(3),
the Exchange's listing standards for Investment Company Units
(``Units'').\4\ The Fund is a series of the Claymore Exchange-Traded
Fund Trust.
---------------------------------------------------------------------------
\4\ An Investment Company Unit is a security that represents an
interest in a registered investment company that holds securities
comprising, or otherwise based on or representing an interest in, an
index or portfolio of securities (or holds securities in another
registered investment company that holds securities comprising, or
otherwise based on or representing an interest in, an index or
portfolio of securities). See NYSE Arca Equities Rule 5.2(j)(3)(A).
---------------------------------------------------------------------------
The Fund seeks investment results that correspond generally to the
performance, before the Fund's fees and expenses, of the Wilshire US
Micro-Cap Index\SM\ (the ``Wilshire Micro-Cap'' or the ``Index'').\5\
---------------------------------------------------------------------------
\5\ See the Claymore Exchange-Traded Fund Trust's registration
statement on Form N-1A, dated May 18, 2010 (File Nos. 333-134551;
811-21906) (``Registration Statement''). Statements herein regarding
the Fund, the Shares and the Wilshire US Micro-Cap Index are based
on the Registration Statement.
---------------------------------------------------------------------------
The Exchange is submitting this proposed rule change because the
Index for the Fund does not meet all of the ``generic'' listing
requirements of Commentary .01(a)(A) to NYSE Arca Equities Rule
5.2(j)(3) applicable to listing of ICUs based on US indexes. The Index
meets all such requirements except for those set forth in Commentary
.01(a)(A)(1) \6\ and
[[Page 41253]]
.01(a)(A)(5).\7\ Specifically, as of April 21, 2010, 76.93% of the
weight of the Index components have a market capitalization greater
than $75 million. In addition, as of April 21, 2010, the Index included
201 non-NMS stocks out of a total of approximately 1,564 components in
the Index. Thus, non-NMS stocks comprised approximately 12.8% of the
number of stocks in the Index. Stocks comprising 97.3% of the weight of
the Index were NMS stocks.\8\
---------------------------------------------------------------------------
\6\ Commentary .01(a)(A)(1) to NYSE Arca Equities Rule 5.2(j)(3)
provides that component stocks (excluding Units and securities
defined in Section 2 of Rule 8, collectively, ``Derivative
Securities Products'') that in the aggregate account for at least
90% of the weight of the index or portfolio (excluding such
Derivative Securities Products) each shall have a minimum market
value of at least $75 million.
\7\ Commentary .01(a)(A)(5) to NYSE Arca Equities Rule 5.2(j)(3)
provides that all securities in the index or portfolio shall be US
Component Stocks listed on a national securities exchange and shall
be NMS Stocks as defined in Rule 600 of Regulation NMS under the
Securities Exchange Act of 1934 (17 U.S.C. 78a) (``Act''). NYSE Arca
Equities Rule 5.2(j)(3) defines the term ``US Component Stock'' as
an equity security that is registered under Sections 12(b) or 12(g)
of the Act or an American Depositary Receipt, the underlying equity
security of which is registered under Sections 12(b) or 12(g) of the
Act.
\8\ Non-NMS stocks are traded either on the OTC Bulletin Board
or the Pink OTC Markets.
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According to the Registration Statement, the Fund, using a low cost
``passive'' or ``indexing'' investment approach, will seek to
replicate, before the Fund's fees and expenses, the performance of the
Wilshire Micro-Cap. The Wilshire Micro-Cap is a rules-based index
comprised of approximately 1,564 securities of micro-capitalization
companies as of March 31, 2010, as defined by Wilshire Associates
Incorporated (``Wilshire'' or the ``Index Provider''). The Wilshire
Micro-Cap is designed to represent micro-sized companies and is a
subset of the Wilshire 5000 Total Market Index\SM\ (the ``Wilshire
5000''). The Wilshire Micro-Cap represents a float-adjusted, market
capitalization-weighted index of the issues ranked below 2500 by market
capitalization of the Wilshire 5000.
The Exchange represents that: (1) Except for Commentary
.01(a)(A)(1) and .01(a)(A)(5) to NYSE Arca Equities Rule 5.2(j)(3), the
Shares of the Fund currently satisfy all of the generic listing
standards under NYSE Arca Equities Rule 5.2(j)(3); (2) the continued
listing standards under NYSE Arca Equities Rules 5.2(j)(3) and
5.5(g)(2) applicable to Units shall apply to the Shares; and (3) the
Trust is required to comply with Rule 10A-3 \9\ under the Act for the
initial and continued listing of the Shares. In addition, the Exchange
represents that the Shares will comply with all other requirements
applicable to Units including, but not limited to, requirements
relating to the dissemination of key information such as the value of
the Index and Intraday Indicative Value, rules governing the trading of
equity securities, trading hours, trading halts, surveillance, and
Information Bulletin to ETP Holders, as set forth in Exchange rules
applicable to Units and prior Commission orders approving the generic
listing rules applicable to the listing and trading of Units.\10\
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\9\ 17 CFR 240.10A-3.
\10\ See, e.g., Securities Exchange Act Release No. 44551 (July
12, 2001), 66 FR 37716 (July 19, 2001) (SR-PCX-2001-14) (order
approving generic listing standards for Units and Portfolio
Depositary Receipts); Securities Exchange Act Release No. 41983
(October 6, 1999), 64 FR 56008 (October 15, 1999) (SR-PCX-98-29)
(order approving rules for listing and trading of Units).
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The Exchange believes that, notwithstanding the fact that the Index
does not meet certain generic listing criteria in NYSE Arca Equities
Rule 5.2(j)(3), Commentary .01, the Index is sufficiently broad-based,
and the Index stocks are sufficiently liquid to deter potential
manipulation. As of June 9, 2010, the average market capitalization of
Index stocks was $82.52 million, 62.82% of the Index weight was
comprised of stocks with a global monthly trading volume of greater
than one million shares, and 77.82% of the Index weight was comprised
of stocks with a global monthly trading volume of greater than 500,000
shares. The average global monthly trading volume for Index stocks for
the period December 2009 through May 2010 ranged from 3.7 million to
9.7 million shares. In addition, as of April 21, 2010, stocks
comprising only 2.7% of the Index weight were non-NMS stocks.
Detailed descriptions of the Fund, the Index, procedures for
creating and redeeming Shares, transaction fees and expenses,
dividends, distributions, taxes, risks, and reports to be distributed
to beneficial owners of the Shares can be found in the Registration
Statement or on the Web site for the Fund (https://www.claymore.com), as
applicable.
2. Statutory Basis
The proposed rule change is consistent with Section 6(b) \11\ of
the Act, in general, and furthers the objectives of Section
6(b)(5),\12\ in particular, in that it is designed to prevent
fraudulent and manipulative acts and practices, to promote just and
equitable principles of trade, to foster cooperation and coordination
with persons engaged in facilitating transactions in securities, and to
remove impediments to and perfect the mechanisms of a free and open
market and a national market system. The Exchange believes that the
proposed rule change will facilitate the listing and trading of an
additional type of exchange-traded product that will enhance
competition among market participants, to the benefit of investors and
the marketplace.
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\11\ 15 U.S.C. 78f(b).
\12\ 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
No written comments were solicited or received with respect to 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 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. 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-2010-64 on the subject line.
Paper Comments
Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.
[[Page 41254]]
All submissions should refer to File Number SR-NYSEArca-2010-64. 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 Web site
viewing and printing 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 such filing also will be
available for inspection and copying at the principal office of the
Exchange. All comments received will be posted without change; the
Commission does not edit personal identifying information from
submissions. You should submit only information that you wish to make
available publicly. All submissions should refer to File Number SR-
NYSEArca-2010-64 and should be submitted on or before August 5, 2010.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\13\
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\13\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-17192 Filed 7-14-10; 8:45 am]
BILLING CODE 8010-01-P
