Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change Relating to the Listing and Trading of the STARTM, 36314-36321 [2012-14767]

Download as PDF 36314 Federal Register / Vol. 77, No. 117 / Monday, June 18, 2012 / Notices 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.34 At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend 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. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or 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: printing in the Commission’s Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 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–Phlx– 2012–77 and should be submitted on or before July 9, 2012. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.35 Kevin M. O’Neill, Deputy Secretary. [FR Doc. 2012–14768 Filed 6–15–12; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION • Use the Commission’s Internet comment form (https://www.sec.gov/ rules/sro.shtml); or • Send an email to rulecomments@sec.gov. Please include File Number SR–Phlx–2012–77 on the subject line. [Release No. 34–67183; File No. SR– NYSEArca–2012–55] Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change Relating to the Listing and Trading of the STARTM Global Buy-Write ETF Under NYSE Arca Equities Rule 8.600 Paper Comments mstockstill on DSK4VPTVN1PROD with NOTICES Electronic Comments June 12, 2012. • Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090. All submissions should refer to File Number SR–Phlx–2012–77. This file number should be included on the subject line if email 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 Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’ or ‘‘Exchange Act’’) 1 and Rule 19b–4 thereunder,2 notice is hereby given that, on May 31, 2012, NYSE Arca, Inc. (‘‘Exchange’’ or ‘‘NYSE Arca’’) 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. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to list and trade the following under NYSE Arca Equities Rule 8.600 (‘‘Managed Fund Shares’’): STARTM Global Buy-Write ETF. The text of the proposed rule change is available on the Exchange’s Web site at www.nyse.com, at the 35 17 CFR 200.30–3(a)(12). U.S.C.78s(b)(1). 2 17 CFR 240.19b–4. 1 15 34 15 U.S.C. 78s(b)(3)(A)(ii). VerDate Mar<15>2010 17:02 Jun 15, 2012 Jkt 226001 PO 00000 Frm 00065 Fmt 4703 Sfmt 4703 principal office of the Exchange, and at the Commission’s Public Reference Room. II. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the 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 Statutory Basis for, the Proposed Rule Change 1. Purpose The Exchange proposes to list and trade shares (‘‘Shares’’) of the following under NYSE Arca Equities Rule 8.600, which governs the listing and trading of Managed Fund Shares: 3 STARTM Global Buy-Write ETF (‘‘Fund’’).4 The Shares will be offered by AdvisorShares Trust (‘‘Trust’’), a statutory trust organized 3 A Managed Fund Share is a security that represents an interest in an investment company registered under the Investment Company Act of 1940 (15 U.S.C. 80a–1) (‘‘1940 Act’’) organized as an open-end investment company or similar entity that invests in a portfolio of securities selected by its investment adviser consistent with its investment objectives and policies. In contrast, an open-end investment company that issues Investment Company Units, listed and traded on the Exchange under NYSE Arca Equities Rule 5.2(j)(3), seeks to provide investment results that correspond generally to the price and yield performance of a specific foreign or domestic stock index, fixed income securities index, or combination thereof. 4 The Commission approved NYSE Arca Equities Rule 8.600 and the listing and trading of certain funds of the PowerShares Actively Managed Exchange-Traded Funds Trust on the Exchange pursuant to Rule 8.600 in Securities Exchange Act Release No. 57619 (April 4, 2008), 73 FR 19544 (April 10, 2008) (SR–NYSEArca–2008–25). The Commission also previously approved listing and trading on the Exchange of a number of actively managed funds under Rule 8.600. See, e.g., Securities Exchange Act Release Nos. 57801 (May 8, 2008), 73 FR 27878 (May 14, 2008) (SR– NYSEArca–2008–31) (order approving Exchange listing and trading of twelve actively-managed funds of the WisdomTree Trust); 60981 (November 10, 2009), 74 FR 59594 (November 18, 2009) (SR– NYSEArca–2009–79) (order approving listing and trading of five fixed income funds of the PIMCO ETF Trust); 63076 (October 12, 2010), 75 FR 63874 (October 18, 2010) (SR–NYSEArca–2010–79) (order approving listing and trading of Cambria Global Tactical ETF); 63329 (November 17, 2010), 75 FR 71760 (November 24, 2010) (SR–NYSEArca–2010– 86) (order approving listing and trading of Peritus High Yield ETF). E:\FR\FM\18JNN1.SGM 18JNN1 Federal Register / Vol. 77, No. 117 / Monday, June 18, 2012 / Notices mstockstill on DSK4VPTVN1PROD with NOTICES under the laws of the State of Delaware and registered with the Commission as an open-end management investment company.5 The investment adviser to the Fund is AdvisorShares Investments, LLC (‘‘Adviser’’). Partnervest Advisory Services, LLC serves as investment subadviser to the Fund (‘‘Partnervest’’ or ‘‘Sub-Adviser’’) and provides day-to-day portfolio management of the Fund. Foreside Fund Services, LLC (‘‘Distributor’’) is the principal underwriter and distributor of the Fund’s Shares. The Bank of New York Mellon (‘‘Administrator’’) serves as administrator, custodian, and transfer agent for the Fund. Commentary .06 to Rule 8.600 provides that, if the investment adviser to the investment company issuing Managed Fund Shares is affiliated with a broker-dealer, such investment adviser shall erect a ‘‘fire wall’’ between the investment adviser and the brokerdealer with respect to access to information concerning the composition and/or changes to such investment company portfolio. In addition, Commentary .06 further requires that personnel who make decisions on the open-end fund’s portfolio composition must be subject to procedures designed to prevent the use and dissemination of material, nonpublic information regarding the open-end fund’s portfolio.6 Commentary .06 to Rule 5 The Trust is registered under the 1940 Act. On October 28, 2011, the Trust filed an amendment to its registration statement on Form N–1A under the Securities Act of 1933 (15 U.S.C. 77a) (‘‘1933 Act’’) and under the 1940 Act relating to the Fund (File Nos. 333–157876 and 811–22110) (‘‘Registration Statement’’). The description of the operation of the Trust and the Fund herein is based, in part, on the Registration Statement. In addition, the Commission has issued an order granting certain exemptive relief to the Trust under the 1940 Act. See Investment Company Act Release No. 28822 (July 20, 2009) (File No. 812–13488) (‘‘Exemptive Order’’). 6 An investment adviser to an open-end fund is required to be registered under the Investment Advisers Act of 1940 (‘‘Advisers Act’’). As a result, the Adviser and Sub-Adviser and their related personnel are subject to the provisions of Rule 204A–1 under the Advisers Act relating to codes of ethics. This Rule requires investment advisers to adopt a code of ethics that reflects the fiduciary nature of the relationship to clients as well as compliance with other applicable securities laws. Accordingly, procedures designed to prevent the communication and misuse of non-public information by an investment adviser must be consistent with Rule 204A–1 under the Advisers Act. In addition, Rule 206(4)–-7 under the Advisers Act makes it unlawful for an investment adviser to provide investment advice to clients unless such investment adviser has (i) adopted and implemented written policies and procedures reasonably designed to prevent violation, by the investment adviser and its supervised persons, of the Advisers Act and the Commission rules adopted thereunder; (ii) implemented, at a minimum, an annual review regarding the adequacy of the policies and procedures established pursuant to VerDate Mar<15>2010 17:02 Jun 15, 2012 Jkt 226001 8.600 is similar to Commentary .03(a)(i) and (iii) to NYSE Arca Equities Rule 5.2(j)(3); however, Commentary .06 in connection with the establishment of a ‘‘fire wall’’ between the investment adviser and the broker-dealer reflects the applicable open-end fund’s portfolio, not an underlying benchmark index, as is the case with index-based funds. Neither the Adviser nor the SubAdviser is affiliated with a brokerdealer. In the event (a) the Adviser or the Sub-Adviser becomes newly affiliated with a broker-dealer, or (b) any new adviser or sub-adviser becomes affiliated with a broker-dealer, it will implement a fire wall with respect to such broker-dealer regarding access to information concerning the composition and/or changes to the portfolio, and will be subject to procedures designed to prevent the use and dissemination of material, non-public information regarding such portfolio. According to the Registration Statement, the Fund’s investment objective is to seek consistent repeatable returns across all market cycles. The Fund is a ‘‘fund-of-funds’’ and, under normal market conditions,7 intends to invest at least 60% of its total assets in exchange-traded funds (‘‘ETFs’’) 8 and exchange-traded notes (‘‘ETNs’’) 9 that seek to track a diversified basket of global indices and investment sectors and in exchange-traded pooled investment vehicles that invest directly in commodities or currencies and that are registered pursuant to the 1933 Act (together with ETFs and ETNs, ‘‘Underlying ETPs’’) 10 that meet certain subparagraph (i) above and the effectiveness of their implementation; and (iii) designated an individual (who is a supervised person) responsible for administering the policies and procedures adopted under subparagraph (i) above. 7 The term ‘‘under normal market conditions’’ includes, but is not limited to, the absence of extreme volatility or trading halts in the equity markets or the financial markets generally; operational issues causing dissemination of inaccurate market information; or force majeure type events such as systems failure, natural or manmade disaster, act of God, armed conflict, act of terrorism, riot or labor disruption, or any similar intervening circumstance. 8 For purposes of this proposed rule change, ETFs are securities registered under the 1940 Act such as those listed and traded on the Exchange under NYSE Arca Equities Rules 5.2(j)(3), 8.100, and 8.600. 9 For purposes of this proposed rule change, ETNs are securities that are registered pursuant to the 1933 Act such as those listed and traded on the Exchange pursuant to NYSE Arca Equities Rule 5.2(j)(6). 10 Underlying ETPs include, in addition to ETFs and ETNs, the following securities: Trust Issued Receipts (as described in NYSE Arca Equities Rule 8.200); Commodity-Based Trust Shares (as described in NYSE Arca Equities Rule 8.201); Currency Trust Shares (as described in NYSE Arca Equities Rule 8.202); Commodity Index Trust Shares (as described in NYSE Arca Equities Rule PO 00000 Frm 00066 Fmt 4703 Sfmt 4703 36315 selection criteria established by the SubAdviser. The selection criteria include size, historical track record, diversification among indices, the correlation of an index to other indices, and an ability to write exchange-listed covered call options on the particular Underlying ETP.11 An Underlying ETP may be disposed of should it no longer meet the selection criteria. The Fund currently intends to invest primarily in the securities of ETFs consistent with the requirements of Section 12(d)(1) of the 1940 Act, or any rule, regulation, or order of the Commission or interpretation thereof. The Underlying ETPs in which the Fund will invest will primarily be Underlying ETPs that hold substantially all of their assets in securities representing a country (or region) specific index. The Sub-Adviser seeks to achieve the Fund’s investment objective by using a proprietary overwrite strategy known as Volatility Enhanced Global Appreciation (‘‘VEGA’’). Through VEGA, the Fund will invest in Underlying ETPs in combination with call options on generally all such Underlying ETPs to seek cumulative price appreciation from the portfolio’s global exposure while generating an additional return stream from the sale of covered call and/or cash-secured put options.12 While the Fund is permitted to invest up to 40% of its total assets in call options on Underlying ETPs, the Adviser expects that, under normal market conditions, the Fund will invest no more than 15% in such call options on a daily basis. To the extent cash and cash equivalents in the Fund’s portfolio serve as collateral for cash-secured put options, such cash and cash equivalents may not be invested in Underlying ETPs, additional options or other 8.203); and closed-end funds. The Underlying ETPs all will be listed and traded in the U.S. on registered exchanges. The ETFs in which the Fund may invest will primarily be index-based ETFs that hold substantially all of their assets in securities representing a specific index. 11 The options in which the Fund will invest will be U.S. exchange-listed. 12 According to the Registration Statement, a covered call option involves holding a long position in a particular asset, in this case shares of an Underlying ETP, and writing a call option on that same asset with the goal of realizing additional income from the option premium. A put option is a contract that gives the owner of the option the right to sell a specified amount of the asset underlying the option at a specified price (‘‘strike price’’) within a specified time. When a put option is exercised or assigned, the writer of the option is obligated to purchase the requisite amount of the asset underlying the option to complete the sale. A put option is considered cash-secured when the writer of the put option segregates an amount of cash or cash equivalents sufficient to cover the purchase price of the asset underlying the option. E:\FR\FM\18JNN1.SGM 18JNN1 36316 Federal Register / Vol. 77, No. 117 / Monday, June 18, 2012 / Notices mstockstill on DSK4VPTVN1PROD with NOTICES similar investments in pursuit of the Fund’s investment objective. Rather, on a day-to-day basis, such collateral may be invested in U.S. Government securities, short-term, high quality fixed income securities, money market instruments, cash, and other cash equivalents with maturities of one year or less, or Underlying ETPs that hold such investments.13 The Sub-Adviser will use VEGA, a proprietary quantitative and qualitative investment process, to determine the optimal Underlying ETPs and options for the strategy. The process focuses on the performance of a comprehensive portfolio of assets based on the combination of risk, return, and their correlation to each other. Consistent with VEGA, call options will be sold on generally all of the Underlying ETPs at a strike price equivalent to targets based on volatility and quantitative criteria. As calls are covered and/or expire, additional options on the Underlying ETPs will be sold. The average time 13 According to the Registration Statement, all options written on indices or securities must be covered. The Commission staff has indicated that a written call option on a security may be covered if a fund: (1) Owns the security underlying the call until the option is exercised or expires; (2) holds an American-style call on the same security as the call written with an exercise price (a) no greater than the exercise price of the call written or (b) greater than the exercise price of the call written if the difference is maintained by the fund in cash or other liquid assets designated on the fund’s records or placed in a segregated account with the fund’s custodian; (3) has an absolute and immediate right to acquire the security without additional cost (or if additional consideration is required, cash or other liquid assets in such amount have been segregated); or (4) segregates cash or other liquid assets on the fund’s records or with the custodian in an amount equal to (when added to any margin on deposit) the current market value of the call option, but not less than the exercise price, marked to market daily. See, e.g., letter dated February 2, 1989, from L. Hope Lewis, Division of Investment Management, to Alan Rosenblat, Dechert, Price & Rhoads (regarding Hutton Options Trading L.P.; File No. 811–5391); letter dated March 30, 1987, from Gerald T. Lins, Division of Investment Management, to Thomas E. Heftler, Strook, Strook and Lavan (regarding Dreyfus Strategic Investing and Dreyfus Strategic Income; File Nos. 811–4688 and 811– 4748). If the call option is exercised by the purchaser during the option period, the seller is required to deliver the underlying security against payment of the exercise price or pay the difference. The seller’s obligation terminates upon expiration of the option period or when the seller executes a closing purchase transaction with respect to such option. All put options written by the Fund will be covered by: (1) Segregating cash, cash equivalents, such as U.S. Treasury securities or overnight repurchase agreements, or other liquid assets on the Fund’s records or with the custodian having a value at least equal to the exercise price of the option (less cash received, if any); or (2) holding a put option on the same security as the option written where the exercise price of the written put option is (i) equal to or higher than the exercise price of the option written or (ii) less than the exercise price of the option written provided the Fund segregates cash or other liquid assets in the amount of the difference. VerDate Mar<15>2010 17:02 Jun 15, 2012 Jkt 226001 until expiration for the option portfolio will be typically one quarter (91 days) or less, so that premiums may be received on options on Underlying ETPs approximately four times per year. The Sub-Adviser, however, will reserve the right to close out or enter into options on a more or less frequent basis in its discretion if it believes it is in the best interest of the Fund. The Sub-Adviser periodically will monitor the performance of the Fund’s portfolio and systematically rebalance and initiate tactical shifts in the underlying investments when the strategy indicates it is both optimal and beneficial to do so. VEGA is designed to generate quarterly returns in the form of premiums received from the sale of covered call and/or cash-secured put options. The amount of the premium will typically be determined at the start of the quarter, and realized either at expiration or sooner if the strategy determines that conditions warrant covering the short option position beforehand.14 Except for premium amounts required for transactional and portfolio management purposes, the Sub-Adviser, in its discretion, may allocate the accumulated premium in ‘‘principal protection’’ and/or ‘‘reinvestment strategies,’’ as described below. The ‘‘principal protection’’ feature is intended as a means to profit and/or hedge against potential price declines of 20% or greater of Underlying ETPs. The feature may be implemented when volatility declines and/or security prices rise and the Sub-Adviser determines the cost of principal protection to be beneficial. The cost of the protection is expected to be paid from accumulated option premiums but principal may be used. The use of principal protection entails the purchase of put options on Underlying ETPs representing some or all of the Fund’s portfolio holdings. The risk of buying long puts is limited to the loss of the premium paid for the purchase of the put. Option premiums received by the Fund will remain in cash or cash equivalents or may be invested in 14 According to the Registration Statement, the risks of covered call writing include the potential for the market to rise sharply. In such instance, the buyer of the call option would likely acquire the Underlying ETP from the Fund and the return on that Underlying ETP would be limited to the premium received and the difference between the strike price and the purchase price until such time as the Underlying ETP is repurchased as applicable. The risks of cash-secured put writing include the potential for the price of the Underlying ETP to decline significantly causing the put writer, the Fund, to have an unrealized loss due to the high stock purchase price. PO 00000 Frm 00067 Fmt 4703 Sfmt 4703 Underlying ETPs that invest primarily in U.S. treasuries or other cash equivalent securities. The Sub-Adviser also will utilize a reinvestment strategy whereby accumulated option premiums may be reinvested back into additional shares of Underlying ETPs held by the Fund based on the Sub-Adviser’s view of the market. Principal Fund Investments The Fund, through its investment in Underlying ETPs, may invest in equity securities. Equity securities represent ownership interests in a company or partnership and consist of common stocks, preferred stocks, warrants to acquire common stock, securities convertible into common stock, and investments in master limited partnerships, rights, and depositary receipts, including American Depositary Receipts (‘‘ADRs’’) and Global Depositary Receipts (‘‘GDRs’’).15 The Fund, through its investment in Underlying ETPs, may purchase equity securities traded in the U.S. on registered exchanges or the over-thecounter market. The Fund, through its investment in Underlying ETPs, may invest in the equity securities of foreign issuers, including the securities of foreign issuers in emerging countries. Emerging or developing markets exist in countries that are considered to be in the initial stages of industrialization. The Fund, through its investment in Underlying ETPs, may invest in closedend funds, pooled investment vehicles that are registered under the 1940 Act and whose shares are listed and traded on U.S. national securities exchanges. The Fund, or the Underlying ETPs in which it invests, may invest in U.S. government securities. Securities issued or guaranteed by the U.S. government or its agencies or instrumentalities include U.S. Treasury securities, which are backed by the full faith and credit of the U.S. Treasury and which differ only in their interest rates, maturities, and times of issuance. According to the Registration Statement, certain U.S. government securities are issued or guaranteed by agencies or instrumentalities of the U.S. government including, but not limited to, obligations of U.S. government agencies or instrumentalities such as Fannie Mae, Freddie Mac, the Government National Mortgage Association, the Small 15 ADRs and GDRs are certificates evidencing ownership of shares of a foreign issuer. Depositary receipts may be sponsored or unsponsored. These certificates are issued by depositary banks and generally trade on an established market in the United States or elsewhere. E:\FR\FM\18JNN1.SGM 18JNN1 Federal Register / Vol. 77, No. 117 / Monday, June 18, 2012 / Notices mstockstill on DSK4VPTVN1PROD with NOTICES Business Administration, the Federal Farm Credit Administration, the Federal Home Loan Banks, Banks for Cooperatives (including the Central Bank for Cooperatives), the Federal Land Banks, the Federal Intermediate Credit Banks, the Tennessee Valley Authority, the Export-Import Bank of the United States, the Commodity Credit Corporation, the Federal Financing Bank, the Student Loan Marketing Association, the National Credit Union Administration, and the Federal Agricultural Mortgage Corporation. The Fund, through its investments in Underlying ETPs from time to time, in the ordinary course of business, may purchase securities on a when-issued or delayed-delivery basis (i.e., delivery and payment can take place between a month and 120 days after the date of the transaction). The Fund, or the Underlying ETPs in which it invests, may invest in U.S. Treasury zero-coupon bonds. The Fund, through its investment in ETFs, may invest in shares of real estate investment trusts (‘‘REITs’’). Other Investments To respond to adverse market, economic, political, or other conditions, the Fund may invest 100% of its total assets, without limitation, in highquality debt securities and money market instruments either directly or through Underlying ETPs. The Fund may be invested in this manner for extended periods depending on the SubAdviser’s assessment of market conditions. Debt securities and money market instruments include shares of other mutual funds, commercial paper, certificates of deposit, bankers’ acceptances, U.S. Government securities, repurchase agreements, and bonds that are BBB or higher. The Fund may also invest a substantial portion of its assets in such instruments at any time to maintain liquidity or pending selection of investments in accordance with its policies. The Fund may invest in derivatives, including, for example, options, futures, options on futures, and swaps. While the Fund currently does not intend to invest in swaps, it may invest up to 10% of its total assets in swaps. The Fund may invest in derivatives to gain market exposure, enhance returns, or hedge against market declines. Other than options on Underlying ETPs in which the Fund may invest, as described above, the Fund may trade U.S. exchange-listed put and call options on other securities, securities indices, and currencies, as the SubAdviser determines is appropriate in seeking the Fund’s investment objective VerDate Mar<15>2010 17:02 Jun 15, 2012 Jkt 226001 and except as restricted by the Fund’s investment limitations.16 While the Fund may invest in put and call options on other securities, the Adviser expects that, under normal market conditions, the Fund will invest from 0% up to 10% in such put and call options on a daily basis. The Fund may invest up to 10% of its total assets in futures contracts and related options on futures contracts for bona fide hedging; attempting to offset changes in the value of securities held or expected to be acquired or be disposed of; attempting to gain exposure to a particular market, index, or instrument; or other risk management purposes. To the extent the Fund uses futures and/or options on futures, it will do so in accordance with Rule 4.5 under the Commodity Exchange Act (‘‘CEA’’).17 The Fund may enter into repurchase agreements with financial institutions, which may be deemed to be loans. The Fund also may enter into reverse repurchase agreements without limit as part of the Fund’s investment strategy. The Fund may not with respect to 75% of its total assets, purchase securities of any issuer (except securities issued or guaranteed by the U.S. Government, its agencies or instrumentalities, or shares of investment companies) if, as a result, (i) more than 5% of its total assets would be invested in the securities of such issuer, or (ii) more than 10% of the outstanding voting securities of any one issuer would be held by the Fund. For purposes of this policy, the issuer of the underlying security will be deemed to be the issuer of any respective depositary receipt.18 The Fund may not invest 25% or more of its total assets in the securities of one or more issuers conducting their principal business activities in the same industry or group of industries. This limitation does not apply to investments in securities issued or guaranteed by the U.S. Government, its agencies or instrumentalities, or shares of investment companies. The Fund will not invest 25% or more of its total assets in any investment company that so concentrates.19 16 See supra note 11. to the Registration Statement, the Trust, on behalf of all of its series, including the Fund, has filed a notice of eligibility for exclusion from the definition of the term ‘‘commodity pool operator’’ in accordance with Rule 4.5 and, therefore, the Fund is not subject to registration or regulation as a commodity pool operator under the CEA. 18 The diversification standard is set forth in Section 5(b)(1) of the 1940 Act. 19 See Form N–1A, Item 9. The Commission has taken the position that a fund is concentrated if it 17 According PO 00000 Frm 00068 Fmt 4703 Sfmt 4703 36317 The Fund may hold up to an aggregate amount of 15% of its net assets in illiquid securities (calculated at the time of investment), including Rule 144A securities and loan participation interests. The Fund will monitor its portfolio liquidity on an ongoing basis to determine whether, in light of current circumstances, an adequate level of liquidity is being maintained, and will consider taking appropriate steps in order to maintain adequate liquidity if, through a change in values, net assets, or other circumstances, more than 15% of the Fund’s net assets are held in illiquid securities. Illiquid securities include securities subject to contractual or other restrictions on resale and other instruments that lack readily available markets as determined in accordance with Commission staff guidance.20 According to the Registration Statement, the Fund will seek to qualify for treatment as a Regulated Investment Company (‘‘RIC’’) under the Internal Revenue Code.21 invests more than 25% of the value of its total assets in any one industry. See, e.g., Investment Company Act Release No. 9011 (October 30, 1975), 40 FR 54241 (November 21, 1975). 20 The Commission has stated that long-standing Commission guidelines have required open-end funds to hold no more than 15% of their net assets in illiquid securities and other illiquid assets. See Investment Company Act Release No. 28193 (March 11, 2008), 73 FR 14618 (March 18, 2008), footnote 34. See also Investment Company Act Release No. 5847 (October 21, 1969), 35 FR 19989 (December 31, 1970) (Statement Regarding ‘‘Restricted Securities’’); Investment Company Act Release No. 18612 (March 12, 1992), 57 FR 9828 (March 20, 1992) (Revisions of Guidelines to Form N–1A). A fund’s portfolio security is illiquid if it cannot be disposed of in the ordinary course of business within seven days at approximately the value ascribed to it by the fund. See Investment Company Act Release No. 14983 (March 12, 1986), 51 FR 9773 (March 21, 1986) (adopting amendments to Rule 2a–7 under the 1940 Act); Investment Company Act Release No. 17452 (April 23, 1990), 55 FR 17933 (April 30, 1990) (adopting Rule 144A under the 1933 Act). 21 26 U.S.C. 851. One of several requirements for RIC qualification is that the Fund must receive at least 90% of the Fund’s gross income each year from dividends, interest, payments with respect to securities loans, gains from the sale or other disposition of stock, securities or foreign currencies, or other income derived with respect to the Fund’s investments in stock, securities, foreign currencies and net income from an interest in a qualified publicly traded partnership (‘‘90% Test’’). A second requirement for qualification as a RIC is that the Fund must diversify its holdings so that, at the end of each fiscal quarter of the Fund’s taxable year: (a) at least 50% of the market value of the Fund’s total assets is represented by cash and cash items, U.S. Government securities, securities of other RICs, and other securities, with these other securities limited, in respect to any one issuer, to an amount not greater than 5% of the value of the Fund’s total assets or 10% of the outstanding voting securities of such issuer; and (b) not more than 25% of the value of its total assets are invested in the securities (other than U.S. Government securities or securities of other RICs) of any one issuer or two or more issuers which the Fund controls and which are E:\FR\FM\18JNN1.SGM Continued 18JNN1 36318 Federal Register / Vol. 77, No. 117 / Monday, June 18, 2012 / Notices Except for Underlying ETPs that may hold non-U.S. issues, the Fund will not otherwise invest in non-U.S.-registered issues. The Fund does not intend to invest in leveraged, inverse, or inverse leveraged Underlying ETPs. The Fund’s investments will be consistent with the Fund’s investment objective and will not be used to enhance leverage. That is, while the Fund will be permitted to borrow as permitted under the 1940 Act, the Fund’s investments will not be used to seek performance that is the multiple or inverse multiple (i.e., 2Xs and 3Xs) of the Fund’s broad-based securities market index (as defined in Form N– 1A).22 Determination of Net Asset Value The Fund will calculate net asset value (‘‘NAV’’) by: (i) Taking the current market value of its total assets; (ii) subtracting any liabilities; and (iii) dividing that amount by the total number of Shares owned by shareholders. The Fund will calculate NAV once each business day as of the regularly scheduled close of trading on the New York Stock Exchange (‘‘NYSE’’) (normally, 4:00 p.m., Eastern Time). In calculating NAV, the Fund generally will value investment portfolios at market price. If market prices are unavailable or the Fund thinks that they are unreliable, or when the value of a security has been materially affected by events occurring after the relevant market closes, the Fund will price those securities at fair value as determined in good faith using methods approved by the Fund’s Board of Trustees.23 Creation and Redemption of Shares mstockstill on DSK4VPTVN1PROD with NOTICES The Fund will offer and issue Shares on a continuous basis at NAV only in aggregated lots of 50,000 or more Shares (each a ‘‘Creation Unit’’ or ‘‘Creation Unit Aggregation’’), generally in exchange for: (i) A basket of equity securities (‘‘Deposit Securities’’); and (ii) an amount of cash (‘‘Cash Component’’). Shares are redeemable only in Creation Unit Aggregations, and, generally, in engaged in the same, similar, or related trades or businesses, or the securities of one or more qualified publicly traded partnership (‘‘Asset Test’’). 22 The Fund’s broad-based securities market index, which is to be determined, will be identified in an amendment to the Registration Statement. 23 The use of fair valuation in pricing a security involves the consideration of a number of subjective factors and therefore, is susceptible to the unavoidable risk that the valuation may be higher or lower than the price at which the security might actually trade if a reliable market price were readily available. VerDate Mar<15>2010 17:02 Jun 15, 2012 Jkt 226001 exchange for portfolio securities and a specified cash payment. A ‘‘creator’’ will enter into an authorized participant agreement (‘‘Participant Agreement’’) with the Distributor or use a Depository Trust Company (‘‘DTC’’) participant who has executed a Participant Agreement (‘‘Authorized Participant’’), and deposit into the Fund a portfolio of securities closely approximating the holdings of the Fund and a specified amount of cash, together totaling the NAV of the Creation Unit(s), in exchange for 50,000 Shares of the Fund (or multiples thereof). All orders to purchase Creation Units must be received by the Distributor no later than the close of the regular trading session on the NYSE (ordinarily 4:00 p.m., Eastern Time) on the date such order is placed in order for the purchase of Creation Units to be effected based on the NAV of Shares of the Fund as next determined on such date after receipt of the order in proper form. Shares may be redeemed only in Creation Units at their NAV next determined after receipt of a redemption request in proper form by the Fund through the Administrator and only on a business day. With respect to the Fund, the Administrator, through the National Securities Clearing Corporation (‘‘NSCC’’), will make available immediately prior to the opening of business on the Exchange (currently 9:30 a.m., Eastern Time) on each business day, the portfolio of securities (‘‘Fund Securities’’) that will be applicable to redemption requests received in proper form on that day. Fund Securities received on redemption may not be identical to Deposit Securities which are applicable to creations of Creation Units. Unless cash redemptions are available or specified for the Fund, the redemption proceeds for a Creation Unit generally will consist of Fund Securities plus cash in an amount equal to the difference between the NAV of the Shares being redeemed, as next determined after a receipt of a request in proper form, and the value of the Fund Securities less a redemption transaction fee, as described in the Registration Statement. In the event that the Fund Securities have a value greater than the NAV of the Shares, a compensating cash payment equal to the differential will be required to be made by or through an Authorized Participant by the redeeming shareholder. The Shares will conform to the initial and continued listing criteria under NYSE Arca Equities Rule 8.600. The Exchange represents that, for initial and/or continued listing, the Fund will be in compliance with Rule 10A–3 PO 00000 Frm 00069 Fmt 4703 Sfmt 4703 under the Exchange Act,24 as provided by NYSE Arca Equities Rule 5.3. A minimum of 100,000 Shares for the Fund will be outstanding at the commencement of trading on the Exchange. The Exchange will obtain a representation from the issuer of the Shares that the NAV per Share will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time. Availability of Information The Fund’s Web site (www.advisorshares.com), which will be publicly available prior to the public offering of Shares, will include a form of the prospectus for the Fund that may be downloaded. The Fund’s Web site will include additional quantitative information updated on a daily basis, including, for the Fund, (1) daily trading volume, the prior business day’s reported closing price, NAV and midpoint of the bid/ask spread at the time of calculation of such NAV (‘‘Bid/Ask Price’’),25 and a calculation of the premium and discount of the Bid/Ask Price against the NAV, and (2) data in chart format displaying the frequency distribution of discounts and premiums of the daily Bid/Ask Price against the NAV, within appropriate ranges, for each of the four previous calendar quarters. On each business day, before commencement of trading in Shares in the Core Trading Session on the Exchange, the Fund will disclose on its Web site the Disclosed Portfolio as defined in NYSE Arca Equities Rule 8.600(c)(2) that will form the basis for the Fund’s calculation of NAV at the end of the business day.26 On a daily basis, the Adviser will disclose for each portfolio security and other financial instrument of the Fund the following information on the Fund’s Web site: Ticker symbol (if applicable), name of security and financial instrument, number of shares or dollar value of securities and financial instruments held in the portfolio, and percentage weighting of the security and financial instrument in the portfolio. 24 17 CFR 240.10A–3. Bid/Ask Price of the Fund will be determined using the mid-point of the highest bid and the lowest offer on the Exchange as of the time of calculation of the Fund’s NAV. The records relating to Bid/Ask Prices will be retained by the Fund and its service providers. 26 Under accounting procedures followed by the Fund, trades made on the prior business day (‘‘T’’) will be booked and reflected in NAV on the current business day (‘‘T+1’’). Accordingly, the Fund will be able to disclose at the beginning of the business day the portfolio that will form the basis for the NAV calculation at the end of the business day. 25 The E:\FR\FM\18JNN1.SGM 18JNN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 77, No. 117 / Monday, June 18, 2012 / Notices The Web site information will be publicly available at no charge. In addition, a basket composition file, which includes the security names and share quantities required to be delivered in exchange for the Fund’s Shares, together with estimates and actual cash components, will be publicly disseminated daily prior to the opening of the NYSE via NSCC. The basket represents one Creation Unit of the Fund. Investors can also obtain the Trust’s Statement of Additional Information (‘‘SAI’’), the Fund’s Shareholder Reports, and the Trust’s Form N–CSR and Form N–SAR, filed twice a year. The Trust’s SAI and Shareholder Reports are available free upon request from the Trust, and those documents and the Form N–CSR and Form N–SAR may be viewed on-screen or downloaded from the Commission’s Web site at www.sec.gov. Information regarding market price and trading volume of the Shares will be continually available on a real-time basis throughout the day on brokers’ computer screens and other electronic services. Information regarding the previous day’s closing price and trading volume information for the Shares will be published daily in the financial section of newspapers. Quotation and last-sale information for the Shares will be available via the Consolidated Tape Association (‘‘CTA’’) high-speed line and, for the Underlying ETPs, will be available from the national securities exchanges on which they are listed. Quotation and last-sale information for the U.S. exchange-listed options in which the Fund will invest will be available from the applicable U.S. options exchange via the Options Price Reporting Authority (‘‘OPRA’’). In addition, the Portfolio Indicative Value, as defined in NYSE Arca Equities Rule 8.600(c)(3), will be widely disseminated by one or more major market data vendors at least every 15 seconds during the Core Trading Session.27 The dissemination of the Portfolio Indicative Value, together with the Disclosed Portfolio, will allow investors to determine the value of the underlying portfolio of the Fund on a daily basis and to provide a close estimate of that value throughout the trading day. The intra-day, closing, and settlement prices of the other portfolio securities and instruments are also readily available from the national securities exchanges trading such securities, automated 27 Currently, it is the Exchange’s understanding that several major market data vendors widely disseminate Portfolio Indicative Values taken from CTA or other data feeds. VerDate Mar<15>2010 17:02 Jun 15, 2012 Jkt 226001 quotation systems, published or other public sources, or on-line information services such as Bloomberg or Reuters. Additional information regarding the Trust and the Shares, including investment strategies, risks, creation and redemption procedures, fees, portfolio holdings disclosure policies, distributions, and taxes is included in the Registration Statement. All terms relating to the Fund that are referred to, but not defined in, this proposed rule change are defined in the Registration Statement. Trading Halts With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares of the Fund.28 Trading in Shares of the Fund will be halted if the circuit breaker parameters in NYSE Arca Equities Rule 7.12 have been reached. Trading also may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. These may include: (1) The extent to which trading is not occurring in the securities and/or the financial instruments comprising the Disclosed Portfolio of the Fund; or (2) whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present. Trading in the Shares will be subject to NYSE Arca Equities Rule 8.600(d)(2)(D), which sets forth circumstances under which Shares of the Fund may be halted. Trading Rules The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange’s existing rules governing the trading of equity securities. Shares will trade on the NYSE Arca Marketplace from 4:00 a.m. to 8:00 p.m., Eastern Time in accordance with NYSE Arca Equities Rule 7.34 (Opening, Core, and Late Trading Sessions). The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions. As provided in NYSE Arca Equities Rule 7.6, Commentary .03, the minimum price variation (‘‘MPV’’) for quoting and entry of orders in equity securities traded on the NYSE Arca Marketplace is $0.01, with the exception of securities that are priced less than $1.00 for which the MPV for order entry is $0.0001. 28 See NYSE Arca Equities Rule 7.12, Commentary .04. PO 00000 Frm 00070 Fmt 4703 Sfmt 4703 36319 Surveillance The Exchange intends to utilize its existing surveillance procedures applicable to derivative products (which include Managed Fund 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 and applicable federal securities laws. The Exchange’s current trading surveillance focuses on detecting securities trading outside their normal patterns. When such situations are detected, surveillance analysis follows and investigations are opened, where appropriate, to review the behavior of all relevant parties for all relevant trading violations. The Exchange may obtain information via the Intermarket Surveillance Group (‘‘ISG’’) from other exchanges that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement.29 In addition, the Exchange could obtain information from the U.S. exchanges, all of which are ISG members, on which the Underlying ETPs and options are listed and traded. In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees. Information Bulletin Prior to the commencement of trading, the Exchange will inform its Equity Trading Permit (‘‘ETP’’) Holders in an Information Bulletin (‘‘Bulletin’’) of the special characteristics and risks associated with trading the Shares. Specifically, the Bulletin will discuss the following: (1) The procedures for purchases and redemptions of Shares in Creation Unit Aggregations (and that Shares are not individually redeemable); (2) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its ETP Holders to learn the essential facts relating to every customer prior to trading the Shares; (3) the risks involved in trading the Shares during the Opening and Late Trading Sessions when an updated Portfolio Indicative Value will not be calculated or publicly disseminated; (4) how information regarding the Portfolio Indicative Value is disseminated; (5) the requirement that ETP Holders deliver a prospectus to 29 For a list of the current members of ISG, see www.isgportal.org. The Exchange notes that not all components of the Disclosed Portfolio for the Fund may trade on markets that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement. E:\FR\FM\18JNN1.SGM 18JNN1 36320 Federal Register / Vol. 77, No. 117 / Monday, June 18, 2012 / Notices mstockstill on DSK4VPTVN1PROD with NOTICES investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (6) trading information. In addition, the Bulletin will reference that the Fund is subject to various fees and expenses described in the Registration Statement. The Bulletin will discuss any exemptive, no-action, and interpretive relief granted by the Commission from any rules under the Exchange Act. The Bulletin will also disclose that the NAV for the Shares will be calculated after 4:00 p.m., Eastern Time each trading day. 2. Statutory Basis The basis under the Exchange Act for this proposed rule change is the requirement under Section 6(b)(5) 30 that an exchange have rules that are designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to remove impediments to, and perfect the mechanism of a free and open market, and, in general, to protect investors and the public interest. The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed and traded on the Exchange pursuant to the initial and continued listing criteria in NYSE Arca Equities Rule 8.600. Neither the Adviser nor the Sub-Adviser is affiliated with a brokerdealer. The Exchange has in place surveillance procedures that are adequate to properly monitor trading in the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws. The Exchange may obtain information via ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement. The holdings of the Fund will be comprised primarily of U.S. exchange-listed Underlying ETPs. The listing and trading of such Underlying ETPs is subject to rules of the exchanges on which they are listed and traded, as approved by the Commission. The options contracts held by the Fund will be U.S. exchangelisted. Except for Underlying ETPs that may hold non-U.S. issues, the Fund will not otherwise invest in non-U.S.registered issues. The Fund may invest up to 10% of its total assets in futures contracts and related options on futures contracts for bona fide hedging. While the Fund may invest in put and call options on securities other than Underlying ETPs, the Adviser expects 30 15 U.S.C. 78f(b)(5). VerDate Mar<15>2010 17:02 Jun 15, 2012 Jkt 226001 that, under normal market conditions, the Fund will invest from 0% up to 10% in such put and call options on a daily basis. While the Fund currently does not intend to invest in swaps, it may invest up to 10% of its total assets in swaps. The Fund may hold up to an aggregate amount of 15% of its net assets in illiquid securities (calculated at the time of investment), including Rule 144A securities and loan participation interests. The Fund does not intend to invest in leveraged, inverse, or inverse leveraged Underlying ETPs. The Fund’s investments will be consistent with the Fund’s investment objective and will not be used to enhance leverage. The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest in that the Exchange will obtain a representation from the issuer of the Shares that the NAV per Share will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time. In addition, a large amount of information will be publicly available regarding the Fund and the Shares, thereby promoting market transparency. Moreover, the Portfolio Indicative Value will be widely disseminated at least every 15 seconds during the Core Trading Session by one or more major market data vendors. Quotation and last-sale information for the Shares will be available via CTA high-speed line and, for the Underlying ETPs, will be available from the national securities exchanges on which they are listed. Quotation and last-sale information for the U.S. exchange-listed options in which the Fund will invest will be available via OPRA. On each business day, before commencement of trading in Shares in the Core Trading Session on the Exchange, the Fund will disclose on its Web site the Disclosed Portfolio that will form the basis for the Fund’s calculation of NAV at the end of the business day. Information regarding market price and trading volume of the Shares will be continually available on a real-time basis throughout the day on brokers’ computer screens and other electronic services, and quotation and last-sale information will be available via the CTA high-speed line. The Web site for the Fund will include a form of the prospectus for the Fund and additional data relating to NAV and other applicable quantitative information. Moreover, prior to the commencement of trading, the Exchange will inform its ETP Holders in an Information Bulletin of the special PO 00000 Frm 00071 Fmt 4703 Sfmt 4703 characteristics and risks associated with trading the Shares. Trading in Shares of the Fund will be halted if the circuit breaker parameters in NYSE Arca Equities Rule 7.12 have been reached or because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable, and trading in the Shares will be subject to NYSE Arca Equities Rule 8.600(d)(2)(D), which sets forth circumstances under which Shares of the Fund may be halted. In addition, as noted above, investors will have ready access to information regarding the Fund’s holdings, the Portfolio Indicative Value, the Disclosed Portfolio, and quotation and last-sale information for the Shares. The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest in that it will facilitate the listing and trading of additional types of actively-managed exchange-traded products that will enhance competition among market participants, to the benefit of investors and the marketplace. As noted above, the Exchange has in place surveillance procedures relating to trading in the Shares and may obtain information via ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement. In addition, as noted above, investors will have ready access to information regarding the Fund’s holdings, the Portfolio Indicative Value, the Disclosed Portfolio, and quotation and last-sale information for the Shares. 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 45 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 E:\FR\FM\18JNN1.SGM 18JNN1 Federal Register / Vol. 77, No. 117 / Monday, June 18, 2012 / Notices (ii) as to which the self-regulatory organization consents, the Commission will: (A) By order approve or disapprove 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: mstockstill on DSK4VPTVN1PROD with NOTICES Electronic Comments • Use the Commission’s Internet comment form (https://www.sec.gov/ rules/sro.shtml); or • Send an email to rulecomments@sec.gov. Please include File Number SR–NYSEArca–2012–55 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. All submissions should refer to File Number SR–NYSEArca–2012–55. This file number should be included on the subject line if email 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 Section, 100 F Street NE., Washington, DC 20549–1090, on official business days between 10:00 a.m. and 3:00 p.m. Copies of the filing will also be available for inspection and copying at the NYSE’s principal office and on its Internet Web site at www.nyse.com. 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 VerDate Mar<15>2010 17:02 Jun 15, 2012 Jkt 226001 submissions should refer to File Number SR–NYSEArca–2012–55 and should be submitted on or before July 9, 2012. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.31 Kevin M. O’Neill, Deputy Secretary. [FR Doc. 2012–14767 Filed 6–15–12; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–67185; File No. SR–NYSE– 2012–17] Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing of Proposed Rule Change Amending Independence Policy of the Board of Directors of NYSE Euronext and Creating New Independence Policy for Boards of Directors of the New York Stock Exchange LLC, NYSE MKT LLC, NYSE Regulation, Inc. and NYSE Market, Inc. June 12, 2012. 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 6, 2012, New York Stock Exchange LLC (‘‘NYSE’’ or the ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘Commission’’) the proposed rule change as described in Items I and II below, which Items have been prepared by the Exchange. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to amend the Independence Policy of the Board of Directors of NYSE Euronext (the ‘‘NYSE Euronext Director Independence Policy’’) and create a new independence policy (the ‘‘Subsidiary Director Independence Policy’’) for the boards of directors of the Exchange, NYSE MKT LLC (‘‘NYSE MKT’’), NYSE Market, Inc. (‘‘NYSE Market’’) and NYSE Regulation, Inc. (‘‘NYSE Regulation’’ and, together, the ‘‘Regulated Subsidiaries’’).3 In addition, the Exchange proposes to amend the Amended and Restated 31 17 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 3 NYSE MKT and NYSE Arca, Inc. (‘‘NYSE Arca’’) are filing substantially the same proposed rule change. 1 15 PO 00000 Frm 00072 Fmt 4703 Sfmt 4703 36321 Bylaws of NYSE Euronext, the Amended and Restated Bylaws of NYSE Market, Inc., Third Amended and Restated Bylaws of NYSE Regulation, Inc., the Third Amended and Restated Operating Agreement of New York Stock Exchange LLC and the Second Amended and Restated Operating Agreement of NYSE MKT LLC (collectively the ‘‘Organizational Documents’’) to make certain conforming changes described below. The text of the proposed rule change is available on the Exchange’s Web site at www.nyse.com, at the principal office of the Exchange, and at the Commission’s Public Reference Room. II. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of 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 Statutory Basis for, the Proposed Rule Change 1. Purpose The purpose of this rule filing is to amend the NYSE Euronext Director Independence Policy, create the Subsidiary Director Independence Policy for the boards of directors of the Regulated Subsidiaries, and make certain conforming changes to the Organizational Documents, as set forth below. NYSE Euronext Director Independence Policy Under the Proposed Rule Change, the NYSE Euronext Director Independence Policy would be amended to reflect the following changes (the ‘‘Proposed Amendments’’): (i) A majority (as opposed to 75%) of the board of directors of NYSE Euronext (the ‘‘Board’’) would be required to be independent; (ii) Executive officers of listed companies would no longer be prohibited from being considered independent for purposes of the Board; (iii) The ‘‘additional independence requirements’’ at the end of the current NYSE Euronext Director Independence E:\FR\FM\18JNN1.SGM 18JNN1

Agencies

SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 77, Number 117 (Monday, June 18, 2012)]
[Notices]
[Pages 36314-36321]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-14767]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-67183; File No. SR-NYSEArca-2012-55]

Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
of Proposed Rule Change Relating to the Listing and Trading of the
STAR^TM Global Buy-Write ETF Under NYSE Arca Equities Rule
8.600

June 12, 2012.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'' or ``Exchange Act'') \1\ and Rule 19b-4 thereunder,\2\ notice
is hereby given that, on May 31, 2012, NYSE Arca, Inc. (``Exchange'' or
``NYSE Arca'') 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. 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\ 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 the following under NYSE
Arca Equities Rule 8.600 (``Managed Fund Shares''): STAR^TM
Global Buy-Write ETF. The text of the proposed rule change is available
on the Exchange's Web site at www.nyse.com, at the principal office of
the Exchange, and at the Commission's Public Reference Room.

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

In its filing with the Commission, the 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
Statutory Basis for, the Proposed Rule Change

1. Purpose
The Exchange proposes to list and trade shares (``Shares'') of the
following under NYSE Arca Equities Rule 8.600, which governs the
listing and trading of Managed Fund Shares: \3\ STAR^TM
Global Buy-Write ETF (``Fund'').\4\ The Shares will be offered by
AdvisorShares Trust (``Trust''), a statutory trust organized

[[Page 36315]]

under the laws of the State of Delaware and registered with the
Commission as an open-end management investment company.\5\ The
investment adviser to the Fund is AdvisorShares Investments, LLC
(``Adviser''). Partnervest Advisory Services, LLC serves as investment
sub-adviser to the Fund (``Partnervest'' or ``Sub-Adviser'') and
provides day-to-day portfolio management of the Fund. Foreside Fund
Services, LLC (``Distributor'') is the principal underwriter and
distributor of the Fund's Shares. The Bank of New York Mellon
(``Administrator'') serves as administrator, custodian, and transfer
agent for the Fund.
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\3\ A Managed Fund Share is a security that represents an
interest in an investment company registered under the Investment
Company Act of 1940 (15 U.S.C. 80a-1) (``1940 Act'') organized as an
open-end investment company or similar entity that invests in a
portfolio of securities selected by its investment adviser
consistent with its investment objectives and policies. In contrast,
an open-end investment company that issues Investment Company Units,
listed and traded on the Exchange under NYSE Arca Equities Rule
5.2(j)(3), seeks to provide investment results that correspond
generally to the price and yield performance of a specific foreign
or domestic stock index, fixed income securities index, or
combination thereof.
\4\ The Commission approved NYSE Arca Equities Rule 8.600 and
the listing and trading of certain funds of the PowerShares Actively
Managed Exchange-Traded Funds Trust on the Exchange pursuant to Rule
8.600 in Securities Exchange Act Release No. 57619 (April 4, 2008),
73 FR 19544 (April 10, 2008) (SR-NYSEArca-2008-25). The Commission
also previously approved listing and trading on the Exchange of a
number of actively managed funds under Rule 8.600. See, e.g.,
Securities Exchange Act Release Nos. 57801 (May 8, 2008), 73 FR
27878 (May 14, 2008) (SR-NYSEArca-2008-31) (order approving Exchange
listing and trading of twelve actively-managed funds of the
WisdomTree Trust); 60981 (November 10, 2009), 74 FR 59594 (November
18, 2009) (SR-NYSEArca-2009-79) (order approving listing and trading
of five fixed income funds of the PIMCO ETF Trust); 63076 (October
12, 2010), 75 FR 63874 (October 18, 2010) (SR-NYSEArca-2010-79)
(order approving listing and trading of Cambria Global Tactical
ETF); 63329 (November 17, 2010), 75 FR 71760 (November 24, 2010)
(SR-NYSEArca-2010-86) (order approving listing and trading of
Peritus High Yield ETF).
\5\ The Trust is registered under the 1940 Act. On October 28,
2011, the Trust filed an amendment to its registration statement on
Form N-1A under the Securities Act of 1933 (15 U.S.C. 77a) (``1933
Act'') and under the 1940 Act relating to the Fund (File Nos. 333-
157876 and 811-22110) (``Registration Statement''). The description
of the operation of the Trust and the Fund herein is based, in part,
on the Registration Statement. In addition, the Commission has
issued an order granting certain exemptive relief to the Trust under
the 1940 Act. See Investment Company Act Release No. 28822 (July 20,
2009) (File No. 812-13488) (``Exemptive Order'').
---------------------------------------------------------------------------

Commentary .06 to Rule 8.600 provides that, if the investment
adviser to the investment company issuing Managed Fund Shares is
affiliated with a broker-dealer, such investment adviser shall erect a
``fire wall'' between the investment adviser and the broker-dealer with
respect to access to information concerning the composition and/or
changes to such investment company portfolio. In addition, Commentary
.06 further requires that personnel who make decisions on the open-end
fund's portfolio composition must be subject to procedures designed to
prevent the use and dissemination of material, nonpublic information
regarding the open-end fund's portfolio.\6\ Commentary .06 to Rule
8.600 is similar to Commentary .03(a)(i) and (iii) to NYSE Arca
Equities Rule 5.2(j)(3); however, Commentary .06 in connection with the
establishment of a ``fire wall'' between the investment adviser and the
broker-dealer reflects the applicable open-end fund's portfolio, not an
underlying benchmark index, as is the case with index-based funds.
Neither the Adviser nor the Sub-Adviser is affiliated with a broker-
dealer. In the event (a) the Adviser or the Sub-Adviser becomes newly
affiliated with a broker-dealer, or (b) any new adviser or sub-adviser
becomes affiliated with a broker-dealer, it will implement a fire wall
with respect to such broker-dealer regarding access to information
concerning the composition and/or changes to the portfolio, and will be
subject to procedures designed to prevent the use and dissemination of
material, non-public information regarding such portfolio.
---------------------------------------------------------------------------

\6\ An investment adviser to an open-end fund is required to be
registered under the Investment Advisers Act of 1940 (``Advisers
Act''). As a result, the Adviser and Sub-Adviser and their related
personnel are subject to the provisions of Rule 204A-1 under the
Advisers Act relating to codes of ethics. This Rule requires
investment advisers to adopt a code of ethics that reflects the
fiduciary nature of the relationship to clients as well as
compliance with other applicable securities laws. Accordingly,
procedures designed to prevent the communication and misuse of non-
public information by an investment adviser must be consistent with
Rule 204A-1 under the Advisers Act. In addition, Rule 206(4)--7
under the Advisers Act makes it unlawful for an investment adviser
to provide investment advice to clients unless such investment
adviser has (i) adopted and implemented written policies and
procedures reasonably designed to prevent violation, by the
investment adviser and its supervised persons, of the Advisers Act
and the Commission rules adopted thereunder; (ii) implemented, at a
minimum, an annual review regarding the adequacy of the policies and
procedures established pursuant to subparagraph (i) above and the
effectiveness of their implementation; and (iii) designated an
individual (who is a supervised person) responsible for
administering the policies and procedures adopted under subparagraph
(i) above.
---------------------------------------------------------------------------

According to the Registration Statement, the Fund's investment
objective is to seek consistent repeatable returns across all market
cycles. The Fund is a ``fund-of-funds'' and, under normal market
conditions,\7\ intends to invest at least 60% of its total assets in
exchange-traded funds (``ETFs'') \8\ and exchange-traded notes
(``ETNs'') \9\ that seek to track a diversified basket of global
indices and investment sectors and in exchange-traded pooled investment
vehicles that invest directly in commodities or currencies and that are
registered pursuant to the 1933 Act (together with ETFs and ETNs,
``Underlying ETPs'') \10\ that meet certain selection criteria
established by the Sub-Adviser. The selection criteria include size,
historical track record, diversification among indices, the correlation
of an index to other indices, and an ability to write exchange-listed
covered call options on the particular Underlying ETP.\11\ An
Underlying ETP may be disposed of should it no longer meet the
selection criteria.
---------------------------------------------------------------------------

\7\ The term ``under normal market conditions'' includes, but is
not limited to, the absence of extreme volatility or trading halts
in the equity markets or the financial markets generally;
operational issues causing dissemination of inaccurate market
information; or force majeure type events such as systems failure,
natural or man-made disaster, act of God, armed conflict, act of
terrorism, riot or labor disruption, or any similar intervening
circumstance.
\8\ For purposes of this proposed rule change, ETFs are
securities registered under the 1940 Act such as those listed and
traded on the Exchange under NYSE Arca Equities Rules 5.2(j)(3),
8.100, and 8.600.
\9\ For purposes of this proposed rule change, ETNs are
securities that are registered pursuant to the 1933 Act such as
those listed and traded on the Exchange pursuant to NYSE Arca
Equities Rule 5.2(j)(6).
\10\ Underlying ETPs include, in addition to ETFs and ETNs, the
following securities: Trust Issued Receipts (as described in NYSE
Arca Equities Rule 8.200); Commodity-Based Trust Shares (as
described in NYSE Arca Equities Rule 8.201); Currency Trust Shares
(as described in NYSE Arca Equities Rule 8.202); Commodity Index
Trust Shares (as described in NYSE Arca Equities Rule 8.203); and
closed-end funds. The Underlying ETPs all will be listed and traded
in the U.S. on registered exchanges. The ETFs in which the Fund may
invest will primarily be index-based ETFs that hold substantially
all of their assets in securities representing a specific index.
\11\ The options in which the Fund will invest will be U.S.
exchange-listed.
---------------------------------------------------------------------------

The Fund currently intends to invest primarily in the securities of
ETFs consistent with the requirements of Section 12(d)(1) of the 1940
Act, or any rule, regulation, or order of the Commission or
interpretation thereof.
The Underlying ETPs in which the Fund will invest will primarily be
Underlying ETPs that hold substantially all of their assets in
securities representing a country (or region) specific index.
The Sub-Adviser seeks to achieve the Fund's investment objective by
using a proprietary overwrite strategy known as Volatility Enhanced
Global Appreciation (``VEGA''). Through VEGA, the Fund will invest in
Underlying ETPs in combination with call options on generally all such
Underlying ETPs to seek cumulative price appreciation from the
portfolio's global exposure while generating an additional return
stream from the sale of covered call and/or cash-secured put
options.\12\ While the Fund is permitted to invest up to 40% of its
total assets in call options on Underlying ETPs, the Adviser expects
that, under normal market conditions, the Fund will invest no more than
15% in such call options on a daily basis. To the extent cash and cash
equivalents in the Fund's portfolio serve as collateral for cash-
secured put options, such cash and cash equivalents may not be invested
in Underlying ETPs, additional options or other

[[Page 36316]]

similar investments in pursuit of the Fund's investment objective.
Rather, on a day-to-day basis, such collateral may be invested in U.S.
Government securities, short-term, high quality fixed income
securities, money market instruments, cash, and other cash equivalents
with maturities of one year or less, or Underlying ETPs that hold such
investments.\13\
---------------------------------------------------------------------------

\12\ According to the Registration Statement, a covered call
option involves holding a long position in a particular asset, in
this case shares of an Underlying ETP, and writing a call option on
that same asset with the goal of realizing additional income from
the option premium. A put option is a contract that gives the owner
of the option the right to sell a specified amount of the asset
underlying the option at a specified price (``strike price'') within
a specified time. When a put option is exercised or assigned, the
writer of the option is obligated to purchase the requisite amount
of the asset underlying the option to complete the sale. A put
option is considered cash-secured when the writer of the put option
segregates an amount of cash or cash equivalents sufficient to cover
the purchase price of the asset underlying the option.
\13\ According to the Registration Statement, all options
written on indices or securities must be covered. The Commission
staff has indicated that a written call option on a security may be
covered if a fund: (1) Owns the security underlying the call until
the option is exercised or expires; (2) holds an American-style call
on the same security as the call written with an exercise price (a)
no greater than the exercise price of the call written or (b)
greater than the exercise price of the call written if the
difference is maintained by the fund in cash or other liquid assets
designated on the fund's records or placed in a segregated account
with the fund's custodian; (3) has an absolute and immediate right
to acquire the security without additional cost (or if additional
consideration is required, cash or other liquid assets in such
amount have been segregated); or (4) segregates cash or other liquid
assets on the fund's records or with the custodian in an amount
equal to (when added to any margin on deposit) the current market
value of the call option, but not less than the exercise price,
marked to market daily. See, e.g., letter dated February 2, 1989,
from L. Hope Lewis, Division of Investment Management, to Alan
Rosenblat, Dechert, Price & Rhoads (regarding Hutton Options Trading
L.P.; File No. 811-5391); letter dated March 30, 1987, from Gerald
T. Lins, Division of Investment Management, to Thomas E. Heftler,
Strook, Strook and Lavan (regarding Dreyfus Strategic Investing and
Dreyfus Strategic Income; File Nos. 811-4688 and 811-4748). If the
call option is exercised by the purchaser during the option period,
the seller is required to deliver the underlying security against
payment of the exercise price or pay the difference. The seller's
obligation terminates upon expiration of the option period or when
the seller executes a closing purchase transaction with respect to
such option. All put options written by the Fund will be covered by:
(1) Segregating cash, cash equivalents, such as U.S. Treasury
securities or overnight repurchase agreements, or other liquid
assets on the Fund's records or with the custodian having a value at
least equal to the exercise price of the option (less cash received,
if any); or (2) holding a put option on the same security as the
option written where the exercise price of the written put option is
(i) equal to or higher than the exercise price of the option written
or (ii) less than the exercise price of the option written provided
the Fund segregates cash or other liquid assets in the amount of the
difference.
---------------------------------------------------------------------------

The Sub-Adviser will use VEGA, a proprietary quantitative and
qualitative investment process, to determine the optimal Underlying
ETPs and options for the strategy. The process focuses on the
performance of a comprehensive portfolio of assets based on the
combination of risk, return, and their correlation to each other.
Consistent with VEGA, call options will be sold on generally all of the
Underlying ETPs at a strike price equivalent to targets based on
volatility and quantitative criteria. As calls are covered and/or
expire, additional options on the Underlying ETPs will be sold. The
average time until expiration for the option portfolio will be
typically one quarter (91 days) or less, so that premiums may be
received on options on Underlying ETPs approximately four times per
year. The Sub-Adviser, however, will reserve the right to close out or
enter into options on a more or less frequent basis in its discretion
if it believes it is in the best interest of the Fund. The Sub-Adviser
periodically will monitor the performance of the Fund's portfolio and
systematically rebalance and initiate tactical shifts in the underlying
investments when the strategy indicates it is both optimal and
beneficial to do so.
VEGA is designed to generate quarterly returns in the form of
premiums received from the sale of covered call and/or cash-secured put
options. The amount of the premium will typically be determined at the
start of the quarter, and realized either at expiration or sooner if
the strategy determines that conditions warrant covering the short
option position beforehand.\14\
---------------------------------------------------------------------------

\14\ According to the Registration Statement, the risks of
covered call writing include the potential for the market to rise
sharply. In such instance, the buyer of the call option would likely
acquire the Underlying ETP from the Fund and the return on that
Underlying ETP would be limited to the premium received and the
difference between the strike price and the purchase price until
such time as the Underlying ETP is repurchased as applicable. The
risks of cash-secured put writing include the potential for the
price of the Underlying ETP to decline significantly causing the put
writer, the Fund, to have an unrealized loss due to the high stock
purchase price.
---------------------------------------------------------------------------

Except for premium amounts required for transactional and portfolio
management purposes, the Sub-Adviser, in its discretion, may allocate
the accumulated premium in ``principal protection'' and/or
``reinvestment strategies,'' as described below.
The ``principal protection'' feature is intended as a means to
profit and/or hedge against potential price declines of 20% or greater
of Underlying ETPs. The feature may be implemented when volatility
declines and/or security prices rise and the Sub-Adviser determines the
cost of principal protection to be beneficial. The cost of the
protection is expected to be paid from accumulated option premiums but
principal may be used. The use of principal protection entails the
purchase of put options on Underlying ETPs representing some or all of
the Fund's portfolio holdings. The risk of buying long puts is limited
to the loss of the premium paid for the purchase of the put.
Option premiums received by the Fund will remain in cash or cash
equivalents or may be invested in Underlying ETPs that invest primarily
in U.S. treasuries or other cash equivalent securities.
The Sub-Adviser also will utilize a reinvestment strategy whereby
accumulated option premiums may be reinvested back into additional
shares of Underlying ETPs held by the Fund based on the Sub-Adviser's
view of the market.
Principal Fund Investments
The Fund, through its investment in Underlying ETPs, may invest in
equity securities. Equity securities represent ownership interests in a
company or partnership and consist of common stocks, preferred stocks,
warrants to acquire common stock, securities convertible into common
stock, and investments in master limited partnerships, rights, and
depositary receipts, including American Depositary Receipts (``ADRs'')
and Global Depositary Receipts (``GDRs'').\15\ The Fund, through its
investment in Underlying ETPs, may purchase equity securities traded in
the U.S. on registered exchanges or the over-the-counter market.
---------------------------------------------------------------------------

\15\ ADRs and GDRs are certificates evidencing ownership of
shares of a foreign issuer. Depositary receipts may be sponsored or
unsponsored. These certificates are issued by depositary banks and
generally trade on an established market in the United States or
elsewhere.
---------------------------------------------------------------------------

The Fund, through its investment in Underlying ETPs, may invest in
the equity securities of foreign issuers, including the securities of
foreign issuers in emerging countries. Emerging or developing markets
exist in countries that are considered to be in the initial stages of
industrialization.
The Fund, through its investment in Underlying ETPs, may invest in
closed-end funds, pooled investment vehicles that are registered under
the 1940 Act and whose shares are listed and traded on U.S. national
securities exchanges.
The Fund, or the Underlying ETPs in which it invests, may invest in
U.S. government securities. Securities issued or guaranteed by the U.S.
government or its agencies or instrumentalities include U.S. Treasury
securities, which are backed by the full faith and credit of the U.S.
Treasury and which differ only in their interest rates, maturities, and
times of issuance. According to the Registration Statement, certain
U.S. government securities are issued or guaranteed by agencies or
instrumentalities of the U.S. government including, but not limited to,
obligations of U.S. government agencies or instrumentalities such as
Fannie Mae, Freddie Mac, the Government National Mortgage Association,
the Small

[[Page 36317]]

Business Administration, the Federal Farm Credit Administration, the
Federal Home Loan Banks, Banks for Cooperatives (including the Central
Bank for Cooperatives), the Federal Land Banks, the Federal
Intermediate Credit Banks, the Tennessee Valley Authority, the Export-
Import Bank of the United States, the Commodity Credit Corporation, the
Federal Financing Bank, the Student Loan Marketing Association, the
National Credit Union Administration, and the Federal Agricultural
Mortgage Corporation.
The Fund, through its investments in Underlying ETPs from time to
time, in the ordinary course of business, may purchase securities on a
when-issued or delayed-delivery basis (i.e., delivery and payment can
take place between a month and 120 days after the date of the
transaction).
The Fund, or the Underlying ETPs in which it invests, may invest in
U.S. Treasury zero-coupon bonds. The Fund, through its investment in
ETFs, may invest in shares of real estate investment trusts
(``REITs'').
Other Investments
To respond to adverse market, economic, political, or other
conditions, the Fund may invest 100% of its total assets, without
limitation, in high-quality debt securities and money market
instruments either directly or through Underlying ETPs. The Fund may be
invested in this manner for extended periods depending on the Sub-
Adviser's assessment of market conditions. Debt securities and money
market instruments include shares of other mutual funds, commercial
paper, certificates of deposit, bankers' acceptances, U.S. Government
securities, repurchase agreements, and bonds that are BBB or higher.
The Fund may also invest a substantial portion of its assets in such
instruments at any time to maintain liquidity or pending selection of
investments in accordance with its policies.
The Fund may invest in derivatives, including, for example,
options, futures, options on futures, and swaps. While the Fund
currently does not intend to invest in swaps, it may invest up to 10%
of its total assets in swaps. The Fund may invest in derivatives to
gain market exposure, enhance returns, or hedge against market
declines.
Other than options on Underlying ETPs in which the Fund may invest,
as described above, the Fund may trade U.S. exchange-listed put and
call options on other securities, securities indices, and currencies,
as the Sub-Adviser determines is appropriate in seeking the Fund's
investment objective and except as restricted by the Fund's investment
limitations.\16\ While the Fund may invest in put and call options on
other securities, the Adviser expects that, under normal market
conditions, the Fund will invest from 0% up to 10% in such put and call
options on a daily basis.
---------------------------------------------------------------------------

\16\ See supra note 11.
---------------------------------------------------------------------------

The Fund may invest up to 10% of its total assets in futures
contracts and related options on futures contracts for bona fide
hedging; attempting to offset changes in the value of securities held
or expected to be acquired or be disposed of; attempting to gain
exposure to a particular market, index, or instrument; or other risk
management purposes. To the extent the Fund uses futures and/or options
on futures, it will do so in accordance with Rule 4.5 under the
Commodity Exchange Act (``CEA'').\17\
---------------------------------------------------------------------------

\17\ According to the Registration Statement, the Trust, on
behalf of all of its series, including the Fund, has filed a notice
of eligibility for exclusion from the definition of the term
``commodity pool operator'' in accordance with Rule 4.5 and,
therefore, the Fund is not subject to registration or regulation as
a commodity pool operator under the CEA.
---------------------------------------------------------------------------

The Fund may enter into repurchase agreements with financial
institutions, which may be deemed to be loans. The Fund also may enter
into reverse repurchase agreements without limit as part of the Fund's
investment strategy.
The Fund may not with respect to 75% of its total assets, purchase
securities of any issuer (except securities issued or guaranteed by the
U.S. Government, its agencies or instrumentalities, or shares of
investment companies) if, as a result, (i) more than 5% of its total
assets would be invested in the securities of such issuer, or (ii) more
than 10% of the outstanding voting securities of any one issuer would
be held by the Fund. For purposes of this policy, the issuer of the
underlying security will be deemed to be the issuer of any respective
depositary receipt.\18\
---------------------------------------------------------------------------

\18\ The diversification standard is set forth in Section
5(b)(1) of the 1940 Act.
---------------------------------------------------------------------------

The Fund may not invest 25% or more of its total assets in the
securities of one or more issuers conducting their principal business
activities in the same industry or group of industries. This limitation
does not apply to investments in securities issued or guaranteed by the
U.S. Government, its agencies or instrumentalities, or shares of
investment companies. The Fund will not invest 25% or more of its total
assets in any investment company that so concentrates.\19\
---------------------------------------------------------------------------

\19\ See Form N-1A, Item 9. The Commission has taken the
position that a fund is concentrated if it invests more than 25% of
the value of its total assets in any one industry. See, e.g.,
Investment Company Act Release No. 9011 (October 30, 1975), 40 FR
54241 (November 21, 1975).
---------------------------------------------------------------------------

The Fund may hold up to an aggregate amount of 15% of its net
assets in illiquid securities (calculated at the time of investment),
including Rule 144A securities and loan participation interests. The
Fund will monitor its portfolio liquidity on an ongoing basis to
determine whether, in light of current circumstances, an adequate level
of liquidity is being maintained, and will consider taking appropriate
steps in order to maintain adequate liquidity if, through a change in
values, net assets, or other circumstances, more than 15% of the Fund's
net assets are held in illiquid securities. Illiquid securities include
securities subject to contractual or other restrictions on resale and
other instruments that lack readily available markets as determined in
accordance with Commission staff guidance.\20\
---------------------------------------------------------------------------

\20\ The Commission has stated that long-standing Commission
guidelines have required open-end funds to hold no more than 15% of
their net assets in illiquid securities and other illiquid assets.
See Investment Company Act Release No. 28193 (March 11, 2008), 73 FR
14618 (March 18, 2008), footnote 34. See also Investment Company Act
Release No. 5847 (October 21, 1969), 35 FR 19989 (December 31, 1970)
(Statement Regarding ``Restricted Securities''); Investment Company
Act Release No. 18612 (March 12, 1992), 57 FR 9828 (March 20, 1992)
(Revisions of Guidelines to Form N-1A). A fund's portfolio security
is illiquid if it cannot be disposed of in the ordinary course of
business within seven days at approximately the value ascribed to it
by the fund. See Investment Company Act Release No. 14983 (March 12,
1986), 51 FR 9773 (March 21, 1986) (adopting amendments to Rule 2a-7
under the 1940 Act); Investment Company Act Release No. 17452 (April
23, 1990), 55 FR 17933 (April 30, 1990) (adopting Rule 144A under
the 1933 Act).
---------------------------------------------------------------------------

According to the Registration Statement, the Fund will seek to
qualify for treatment as a Regulated Investment Company (``RIC'') under
the Internal Revenue Code.\21\
---------------------------------------------------------------------------

\21\ 26 U.S.C. 851. One of several requirements for RIC
qualification is that the Fund must receive at least 90% of the
Fund's gross income each year from dividends, interest, payments
with respect to securities loans, gains from the sale or other
disposition of stock, securities or foreign currencies, or other
income derived with respect to the Fund's investments in stock,
securities, foreign currencies and net income from an interest in a
qualified publicly traded partnership (``90% Test''). A second
requirement for qualification as a RIC is that the Fund must
diversify its holdings so that, at the end of each fiscal quarter of
the Fund's taxable year: (a) at least 50% of the market value of the
Fund's total assets is represented by cash and cash items, U.S.
Government securities, securities of other RICs, and other
securities, with these other securities limited, in respect to any
one issuer, to an amount not greater than 5% of the value of the
Fund's total assets or 10% of the outstanding voting securities of
such issuer; and (b) not more than 25% of the value of its total
assets are invested in the securities (other than U.S. Government
securities or securities of other RICs) of any one issuer or two or
more issuers which the Fund controls and which are engaged in the
same, similar, or related trades or businesses, or the securities of
one or more qualified publicly traded partnership (``Asset Test'').

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

[[Page 36318]]

Except for Underlying ETPs that may hold non-U.S. issues, the Fund
will not otherwise invest in non-U.S.-registered issues.
The Fund does not intend to invest in leveraged, inverse, or
inverse leveraged Underlying ETPs. The Fund's investments will be
consistent with the Fund's investment objective and will not be used to
enhance leverage. That is, while the Fund will be permitted to borrow
as permitted under the 1940 Act, the Fund's investments will not be
used to seek performance that is the multiple or inverse multiple
(i.e., 2Xs and 3Xs) of the Fund's broad-based securities market index
(as defined in Form N-1A).\22\
---------------------------------------------------------------------------

\22\ The Fund's broad-based securities market index, which is to
be determined, will be identified in an amendment to the
Registration Statement.
---------------------------------------------------------------------------

Determination of Net Asset Value
The Fund will calculate net asset value (``NAV'') by: (i) Taking
the current market value of its total assets; (ii) subtracting any
liabilities; and (iii) dividing that amount by the total number of
Shares owned by shareholders.
The Fund will calculate NAV once each business day as of the
regularly scheduled close of trading on the New York Stock Exchange
(``NYSE'') (normally, 4:00 p.m., Eastern Time).
In calculating NAV, the Fund generally will value investment
portfolios at market price. If market prices are unavailable or the
Fund thinks that they are unreliable, or when the value of a security
has been materially affected by events occurring after the relevant
market closes, the Fund will price those securities at fair value as
determined in good faith using methods approved by the Fund's Board of
Trustees.\23\
---------------------------------------------------------------------------

\23\ The use of fair valuation in pricing a security involves
the consideration of a number of subjective factors and therefore,
is susceptible to the unavoidable risk that the valuation may be
higher or lower than the price at which the security might actually
trade if a reliable market price were readily available.
---------------------------------------------------------------------------

Creation and Redemption of Shares
The Fund will offer and issue Shares on a continuous basis at NAV
only in aggregated lots of 50,000 or more Shares (each a ``Creation
Unit'' or ``Creation Unit Aggregation''), generally in exchange for:
(i) A basket of equity securities (``Deposit Securities''); and (ii) an
amount of cash (``Cash Component''). Shares are redeemable only in
Creation Unit Aggregations, and, generally, in exchange for portfolio
securities and a specified cash payment.
A ``creator'' will enter into an authorized participant agreement
(``Participant Agreement'') with the Distributor or use a Depository
Trust Company (``DTC'') participant who has executed a Participant
Agreement (``Authorized Participant''), and deposit into the Fund a
portfolio of securities closely approximating the holdings of the Fund
and a specified amount of cash, together totaling the NAV of the
Creation Unit(s), in exchange for 50,000 Shares of the Fund (or
multiples thereof).
All orders to purchase Creation Units must be received by the
Distributor no later than the close of the regular trading session on
the NYSE (ordinarily 4:00 p.m., Eastern Time) on the date such order is
placed in order for the purchase of Creation Units to be effected based
on the NAV of Shares of the Fund as next determined on such date after
receipt of the order in proper form.
Shares may be redeemed only in Creation Units at their NAV next
determined after receipt of a redemption request in proper form by the
Fund through the Administrator and only on a business day. With respect
to the Fund, the Administrator, through the National Securities
Clearing Corporation (``NSCC''), will make available immediately prior
to the opening of business on the Exchange (currently 9:30 a.m.,
Eastern Time) on each business day, the portfolio of securities (``Fund
Securities'') that will be applicable to redemption requests received
in proper form on that day. Fund Securities received on redemption may
not be identical to Deposit Securities which are applicable to
creations of Creation Units. Unless cash redemptions are available or
specified for the Fund, the redemption proceeds for a Creation Unit
generally will consist of Fund Securities plus cash in an amount equal
to the difference between the NAV of the Shares being redeemed, as next
determined after a receipt of a request in proper form, and the value
of the Fund Securities less a redemption transaction fee, as described
in the Registration Statement. In the event that the Fund Securities
have a value greater than the NAV of the Shares, a compensating cash
payment equal to the differential will be required to be made by or
through an Authorized Participant by the redeeming shareholder.
The Shares will conform to the initial and continued listing
criteria under NYSE Arca Equities Rule 8.600. The Exchange represents
that, for initial and/or continued listing, the Fund will be in
compliance with Rule 10A-3 under the Exchange Act,\24\ as provided by
NYSE Arca Equities Rule 5.3. A minimum of 100,000 Shares for the Fund
will be outstanding at the commencement of trading on the Exchange. The
Exchange will obtain a representation from the issuer of the Shares
that the NAV per Share will be calculated daily and that the NAV and
the Disclosed Portfolio will be made available to all market
participants at the same time.
---------------------------------------------------------------------------

\24\ 17 CFR 240.10A-3.
---------------------------------------------------------------------------

Availability of Information
The Fund's Web site (www.advisorshares.com), which will be publicly
available prior to the public offering of Shares, will include a form
of the prospectus for the Fund that may be downloaded. The Fund's Web
site will include additional quantitative information updated on a
daily basis, including, for the Fund, (1) daily trading volume, the
prior business day's reported closing price, NAV and mid-point of the
bid/ask spread at the time of calculation of such NAV (``Bid/Ask
Price''),\25\ and a calculation of the premium and discount of the Bid/
Ask Price against the NAV, and (2) data in chart format displaying the
frequency distribution of discounts and premiums of the daily Bid/Ask
Price against the NAV, within appropriate ranges, for each of the four
previous calendar quarters. On each business day, before commencement
of trading in Shares in the Core Trading Session on the Exchange, the
Fund will disclose on its Web site the Disclosed Portfolio as defined
in NYSE Arca Equities Rule 8.600(c)(2) that will form the basis for the
Fund's calculation of NAV at the end of the business day.\26\
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\25\ The Bid/Ask Price of the Fund will be determined using the
mid-point of the highest bid and the lowest offer on the Exchange as
of the time of calculation of the Fund's NAV. The records relating
to Bid/Ask Prices will be retained by the Fund and its service
providers.
\26\ Under accounting procedures followed by the Fund, trades
made on the prior business day (``T'') will be booked and reflected
in NAV on the current business day (``T+1''). Accordingly, the Fund
will be able to disclose at the beginning of the business day the
portfolio that will form the basis for the NAV calculation at the
end of the business day.
---------------------------------------------------------------------------

On a daily basis, the Adviser will disclose for each portfolio
security and other financial instrument of the Fund the following
information on the Fund's Web site: Ticker symbol (if applicable), name
of security and financial instrument, number of shares or dollar value
of securities and financial instruments held in the portfolio, and
percentage weighting of the security and financial instrument in the
portfolio.

[[Page 36319]]

The Web site information will be publicly available at no charge.
In addition, a basket composition file, which includes the security
names and share quantities required to be delivered in exchange for the
Fund's Shares, together with estimates and actual cash components, will
be publicly disseminated daily prior to the opening of the NYSE via
NSCC. The basket represents one Creation Unit of the Fund.
Investors can also obtain the Trust's Statement of Additional
Information (``SAI''), the Fund's Shareholder Reports, and the Trust's
Form N-CSR and Form N-SAR, filed twice a year. The Trust's SAI and
Shareholder Reports are available free upon request from the Trust, and
those documents and the Form N-CSR and Form N-SAR may be viewed on-
screen or downloaded from the Commission's Web site at www.sec.gov.
Information regarding market price and trading volume of the Shares
will be continually available on a real-time basis throughout the day
on brokers' computer screens and other electronic services. Information
regarding the previous day's closing price and trading volume
information for the Shares will be published daily in the financial
section of newspapers. Quotation and last-sale information for the
Shares will be available via the Consolidated Tape Association
(``CTA'') high-speed line and, for the Underlying ETPs, will be
available from the national securities exchanges on which they are
listed. Quotation and last-sale information for the U.S. exchange-
listed options in which the Fund will invest will be available from the
applicable U.S. options exchange via the Options Price Reporting
Authority (``OPRA''). In addition, the Portfolio Indicative Value, as
defined in NYSE Arca Equities Rule 8.600(c)(3), will be widely
disseminated by one or more major market data vendors at least every 15
seconds during the Core Trading Session.\27\ The dissemination of the
Portfolio Indicative Value, together with the Disclosed Portfolio, will
allow investors to determine the value of the underlying portfolio of
the Fund on a daily basis and to provide a close estimate of that value
throughout the trading day. The intra-day, closing, and settlement
prices of the other portfolio securities and instruments are also
readily available from the national securities exchanges trading such
securities, automated quotation systems, published or other public
sources, or on-line information services such as Bloomberg or Reuters.
---------------------------------------------------------------------------

\27\ Currently, it is the Exchange's understanding that several
major market data vendors widely disseminate Portfolio Indicative
Values taken from CTA or other data feeds.
---------------------------------------------------------------------------

Additional information regarding the Trust and the Shares,
including investment strategies, risks, creation and redemption
procedures, fees, portfolio holdings disclosure policies,
distributions, and taxes is included in the Registration Statement. All
terms relating to the Fund that are referred to, but not defined in,
this proposed rule change are defined in the Registration Statement.
Trading Halts
With respect to trading halts, the Exchange may consider all
relevant factors in exercising its discretion to halt or suspend
trading in the Shares of the Fund.\28\ Trading in Shares of the Fund
will be halted if the circuit breaker parameters in NYSE Arca Equities
Rule 7.12 have been reached. Trading also may be halted because of
market conditions or for reasons that, in the view of the Exchange,
make trading in the Shares inadvisable. These may include: (1) The
extent to which trading is not occurring in the securities and/or the
financial instruments comprising the Disclosed Portfolio of the Fund;
or (2) whether other unusual conditions or circumstances detrimental to
the maintenance of a fair and orderly market are present. Trading in
the Shares will be subject to NYSE Arca Equities Rule 8.600(d)(2)(D),
which sets forth circumstances under which Shares of the Fund may be
halted.
---------------------------------------------------------------------------

\28\ See NYSE Arca Equities Rule 7.12, Commentary .04.
---------------------------------------------------------------------------

Trading Rules
The Exchange deems the Shares to be equity securities, thus
rendering trading in the Shares subject to the Exchange's existing
rules governing the trading of equity securities. Shares will trade on
the NYSE Arca Marketplace from 4:00 a.m. to 8:00 p.m., Eastern Time in
accordance with NYSE Arca Equities Rule 7.34 (Opening, Core, and Late
Trading Sessions). The Exchange has appropriate rules to facilitate
transactions in the Shares during all trading sessions. As provided in
NYSE Arca Equities Rule 7.6, Commentary .03, the minimum price
variation (``MPV'') for quoting and entry of orders in equity
securities traded on the NYSE Arca Marketplace is $0.01, with the
exception of securities that are priced less than $1.00 for which the
MPV for order entry is $0.0001.
Surveillance
The Exchange intends to utilize its existing surveillance
procedures applicable to derivative products (which include Managed
Fund 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 and applicable federal securities laws.
The Exchange's current trading surveillance focuses on detecting
securities trading outside their normal patterns. When such situations
are detected, surveillance analysis follows and investigations are
opened, where appropriate, to review the behavior of all relevant
parties for all relevant trading violations.
The Exchange may obtain information via the Intermarket
Surveillance Group (``ISG'') from other exchanges that are members of
ISG or with which the Exchange has in place a comprehensive
surveillance sharing agreement.\29\ In addition, the Exchange could
obtain information from the U.S. exchanges, all of which are ISG
members, on which the Underlying ETPs and options are listed and
traded.
---------------------------------------------------------------------------

\29\ For a list of the current members of ISG, see
www.isgportal.org. The Exchange notes that not all components of the
Disclosed Portfolio for the Fund may trade on markets that are
members of ISG or with which the Exchange has in place a
comprehensive surveillance sharing agreement.
---------------------------------------------------------------------------

In addition, the Exchange also has a general policy prohibiting the
distribution of material, non-public information by its employees.
Information Bulletin
Prior to the commencement of trading, the Exchange will inform its
Equity Trading Permit (``ETP'') Holders in an Information Bulletin
(``Bulletin'') of the special characteristics and risks associated with
trading the Shares. Specifically, the Bulletin will discuss the
following: (1) The procedures for purchases and redemptions of Shares
in Creation Unit Aggregations (and that Shares are not individually
redeemable); (2) NYSE Arca Equities Rule 9.2(a), which imposes a duty
of due diligence on its ETP Holders to learn the essential facts
relating to every customer prior to trading the Shares; (3) the risks
involved in trading the Shares during the Opening and Late Trading
Sessions when an updated Portfolio Indicative Value will not be
calculated or publicly disseminated; (4) how information regarding the
Portfolio Indicative Value is disseminated; (5) the requirement that
ETP Holders deliver a prospectus to

[[Page 36320]]

investors purchasing newly issued Shares prior to or concurrently with
the confirmation of a transaction; and (6) trading information.
In addition, the Bulletin will reference that the Fund is subject
to various fees and expenses described in the Registration Statement.
The Bulletin will discuss any exemptive, no-action, and interpretive
relief granted by the Commission from any rules under the Exchange Act.
The Bulletin will also disclose that the NAV for the Shares will be
calculated after 4:00 p.m., Eastern Time each trading day.
2. Statutory Basis
The basis under the Exchange Act for this proposed rule change is
the requirement under Section 6(b)(5) \30\ that an exchange have rules
that are designed to prevent fraudulent and manipulative acts and
practices, to promote just and equitable principles of trade, to remove
impediments to, and perfect the mechanism of a free and open market,
and, in general, to protect investors and the public interest.
---------------------------------------------------------------------------

\30\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

The Exchange believes that the proposed rule change is designed to
prevent fraudulent and manipulative acts and practices in that the
Shares will be listed and traded on the Exchange pursuant to the
initial and continued listing criteria in NYSE Arca Equities Rule
8.600. Neither the Adviser nor the Sub-Adviser is affiliated with a
broker-dealer. The Exchange has in place surveillance procedures that
are adequate to properly monitor trading in the Shares in all trading
sessions and to deter and detect violations of Exchange rules and
applicable federal securities laws. The Exchange may obtain information
via ISG from other exchanges that are members of ISG or with which the
Exchange has entered into a comprehensive surveillance sharing
agreement. The holdings of the Fund will be comprised primarily of U.S.
exchange-listed Underlying ETPs. The listing and trading of such
Underlying ETPs is subject to rules of the exchanges on which they are
listed and traded, as approved by the Commission. The options contracts
held by the Fund will be U.S. exchange-listed. Except for Underlying
ETPs that may hold non-U.S. issues, the Fund will not otherwise invest
in non-U.S.-registered issues. The Fund may invest up to 10% of its
total assets in futures contracts and related options on futures
contracts for bona fide hedging. While the Fund may invest in put and
call options on securities other than Underlying ETPs, the Adviser
expects that, under normal market conditions, the Fund will invest from
0% up to 10% in such put and call options on a daily basis. While the
Fund currently does not intend to invest in swaps, it may invest up to
10% of its total assets in swaps. The Fund may hold up to an aggregate
amount of 15% of its net assets in illiquid securities (calculated at
the time of investment), including Rule 144A securities and loan
participation interests. The Fund does not intend to invest in
leveraged, inverse, or inverse leveraged Underlying ETPs. The Fund's
investments will be consistent with the Fund's investment objective and
will not be used to enhance leverage.
The proposed rule change is designed to promote just and equitable
principles of trade and to protect investors and the public interest in
that the Exchange will obtain a representation from the issuer of the
Shares that the NAV per Share will be calculated daily and that the NAV
and the Disclosed Portfolio will be made available to all market
participants at the same time. In addition, a large amount of
information will be publicly available regarding the Fund and the
Shares, thereby promoting market transparency. Moreover, the Portfolio
Indicative Value will be widely disseminated at least every 15 seconds
during the Core Trading Session by one or more major market data
vendors. Quotation and last-sale information for the Shares will be
available via CTA high-speed line and, for the Underlying ETPs, will be
available from the national securities exchanges on which they are
listed. Quotation and last-sale information for the U.S. exchange-
listed options in which the Fund will invest will be available via
OPRA. On each business day, before commencement of trading in Shares in
the Core Trading Session on the Exchange, the Fund will disclose on its
Web site the Disclosed Portfolio that will form the basis for the
Fund's calculation of NAV at the end of the business day. Information
regarding market price and trading volume of the Shares will be
continually available on a real-time basis throughout the day on
brokers' computer screens and other electronic services, and quotation
and last-sale information will be available via the CTA high-speed
line. The Web site for the Fund will include a form of the prospectus
for the Fund and additional data relating to NAV and other applicable
quantitative information. Moreover, prior to the commencement of
trading, the Exchange will inform its ETP Holders in an Information
Bulletin of the special characteristics and risks associated with
trading the Shares. Trading in Shares of the Fund will be halted if the
circuit breaker parameters in NYSE Arca Equities Rule 7.12 have been
reached or because of market conditions or for reasons that, in the
view of the Exchange, make trading in the Shares inadvisable, and
trading in the Shares will be subject to NYSE Arca Equities Rule
8.600(d)(2)(D), which sets forth circumstances under which Shares of
the Fund may be halted. In addition, as noted above, investors will
have ready access to information regarding the Fund's holdings, the
Portfolio Indicative Value, the Disclosed Portfolio, and quotation and
last-sale information for the Shares.
The proposed rule change is designed to perfect the mechanism of a
free and open market and, in general, to protect investors and the
public interest in that it will facilitate the listing and trading of
additional types of actively-managed exchange-traded products that will
enhance competition among market participants, to the benefit of
investors and the marketplace. As noted above, the Exchange has in
place surveillance procedures relating to trading in the Shares and may
obtain information via ISG from other exchanges that are members of ISG
or with which the Exchange has entered into a comprehensive
surveillance sharing agreement. In addition, as noted above, investors
will have ready access to information regarding the Fund's holdings,
the Portfolio Indicative Value, the Disclosed Portfolio, and quotation
and last-sale information for the Shares.

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 45 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

[[Page 36321]]

(ii) as to which the self-regulatory organization consents, the
Commission will:
(A) By order approve or disapprove 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 email to rule-comments@sec.gov. Please include
File Number SR-NYSEArca-2012-55 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.

All submissions should refer to File Number SR-NYSEArca-2012-55. This
file number should be included on the subject line if email 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 Section, 100 F Street
NE., Washington, DC 20549-1090, on official business days between 10:00
a.m. and 3:00 p.m. Copies of the filing will also be available for
inspection and copying at the NYSE's principal office and on its
Internet Web site at www.nyse.com. 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-2012-55 and should be submitted on or before
July 9, 2012.

For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\31\
---------------------------------------------------------------------------

\31\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-14767 Filed 6-15-12; 8:45 am]
BILLING CODE 8011-01-P

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