

[Federal Register: June 2, 2006 (Volume 71, Number 106)]
[Notices]               
[Page 32164-32171]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02jn06-136]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-53875; File No. SR-NYSEArca-2006-11]

 
Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
and Order Granting Accelerated Approval of Proposed Rule Change 
Relating to the Trading of the United States Oil Fund, LP Pursuant to 
Unlisted Trading Privileges

May 25, 2006.
    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 April 26, 2006, NYSE Arca, Inc. (the ``Exchange''), through its 
wholly owned subsidiary NYSE Arca Equities, Inc. (``NYSE Arca 
Equities'' or the ``Corporation''), 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 and is 
approving the proposal on an accelerated basis.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange, through its wholly owned subsidiary NYSE Arca 
Equities, proposes to amend its rules governing NYSE Arca, L.L.C. (also 
referred to as the ``NYSE Arca Marketplace''), the equities trading 
facility of NYSE Arca Equities. The Exchange proposes new NYSE Arca 
Equities Rule 8.300 in order to permit trading, either by listing or 
pursuant to unlisted trading privileges (``UTP''), units in a 
partnership that is a commodity pool under the Commodity Exchange Act 
(``CEA'') that is designed to track a specified commodity or index of 
commodities by holding any combination of investments (i) comprised of 
or based on futures contracts, options on futures contracts, forward 
contracts, swaps, and over-the-counter (``OTC'') contracts for 
commodities or based on price changes in commodities, and (ii) in 
securities that may be required to satisfy margin or collateral 
requirements associated with investments in the financial instruments 
listed in item (i) above (such units are referred to generally herein 
as ``Partnership Units''). Pursuant to these proposed rules, the 
Exchange initially proposes to trade, pursuant to UTP, units 
(``Units'') of the United States Oil Fund, LP (``USOF'' or the 
``Partnership'').
    The text of the proposed rule change appears below. Additions are 
underlined.
* * * * *
Rules of NYSE Arca Equities, Inc.
Rule 8.300
Partnership Units
    (a) The Corporation will consider for trading, whether by listing 
or pursuant to unlisted trading privileges, Partnership Units that meet 
the criteria of this Rule.
    (b) Definitions. The following terms as used in the Rule shall, 
unless the context otherwise requires, have the meanings herein 
specified:
    (1) Commodity. The term ``commodity'' is defined in Section 1(a)(4) 
of the Commodity Exchange Act.
    (2) Partnership Units. The term ``Partnership Units'' for purposes 
of this Rule means a security (a) that is issued by a partnership that 
invests in any combination of futures contracts, options on futures 
contracts, forward contracts, commodities and/or securities; and (b) 
that is issued and redeemed daily in specified aggregate amounts at net 
asset value.
    (c) Designation. The Corporation may list and trade Partnership 
Units based on an underlying asset, commodity or security. Each issue 
of a Partnership Unit shall be designated as a separate series and 
shall be identified by a unique symbol.
    (d) Initial and Continued Listing. Partnership Units will be listed 
and/or traded on the Corporation subject to application of the 
following criteria:
    (1) Initial Listing--The Corporation will establish a minimum 
number of Partnership Units required to be outstanding at the time of 
commencement of trading on the Corporation.
    (2) Continued Listing--The Corporation will consider removing from 
listing Partnership Units under any of the following circumstances:
    (i) if following the initial twelve month period following the 
commencement of trading of Partnership Units, (A) the partnership has 
more than 60 days remaining until termination and there are fewer than 
50 record and/or beneficial holders of Partnership Units for 30 or more 
consecutive trading days; (B) if the partnership has fewer than 50,000 
Partnership Units issued and outstanding; or (C) if the market value of 
all Partnership Units issued and outstanding is less than $1,000,000;
    (ii) if the value of the underlying benchmark investment, commodity 
or asset is no longer calculated or available on at least a 15-second 
delayed basis or the Corporation stops providing a hyperlink on its Web 
site to any such investment, commodity, or asset value;
    (iii) if the Indicative Partnership Value is no longer made 
available on at least a 15-second delayed basis; or
    (iv) if such other event shall occur or condition exists which in 
the opinion of the Corporation makes further dealings on the 
Corporation inadvisable.
    Upon termination of a partnership, the Corporation requires that 
Partnership Units issued in connection with such partnership be removed 
from Corporation listing. A partnership will terminate in accordance 
with the provisions of the partnership prospectus.
    (3) Term--The stated term of the partnership shall be as stated in 
the prospectus. However, such entity may be terminated under such 
earlier circumstances as may be specified in the Partnership 
prospectus.
    (4) General Partner--The following requirements apply:
    (i) The general partner of a partnership must be an entity having 
substantial capital and surplus and the experience and facilities for 
handling partnership business. In cases where, for any reason, an 
individual has been appointed as general partner, a qualified entity 
must also be appointed as general partner.
    (ii) No change is to be made in the general partner of a listed 
issue without prior notice to and approval of the Corporation.
    (5) Voting--Voting rights shall be as set forth in the applicable 
partnership prospectus.
    (e) Market Maker Accounts.

[[Page 32165]]

    (1) An ETP Holder acting as a registered Market Maker in 
Partnership Units is obligated to comply with Rule 7.26 pertaining to 
limitations on dealings when such Market Maker, or affiliate of such 
Market Maker, engages in Other Business Activities. For purposes of 
Partnership Units, Other Business Activities shall include acting as a 
Market Maker or functioning in any capacity involving market-making 
responsibilities in the underlying asset or commodity, related futures 
or options on futures, or any other related derivatives. However, an 
approved person of an ETP Holder acting as a registered Market Maker in 
Partnership Units that has established and obtained Corporation 
approval of procedures restricting the flow of material, non-public 
market information between itself and the ETP Holder pursuant to Rule 
7.26, and any member, officer or employee associated therewith, may act 
in a market making capacity, other than as a Market Maker in the 
Partnership Units on another market center, in the underlying asset or 
commodity, related futures or options on futures, or any other related 
derivatives.
    (2) The ETP Holder acting as a registered Market Maker in 
Partnership Units must file, with the Corporation, in a manner 
prescribed by the Corporation, and keep current a list identifying all 
accounts for trading the underlying asset or commodity, related futures 
or options on futures, or any other related derivatives, which the ETP 
Holder acting as registered Market Maker may have or over which it may 
exercise investment discretion. No ETP Holder acting as registered 
Market Maker in the Partnership Units shall trade in the underlying 
asset or commodity, related futures or options on futures, or any other 
related derivatives, in an account in which an ETP Holder acting as a 
registered Market Maker, directly or indirectly, controls trading 
activities, or has a direct interest in the profits or losses thereof, 
which has not been reported to the Corporation as required by this 
Rule.
    (3) In addition to the existing obligations under Corporation rules 
regarding the production of books and records (See, e.g. Rule 4.4), the 
ETP Holder acting as a registered Market Maker in Partnership Units 
shall make available to the Corporation such books, records or other 
information pertaining to transactions by such entity or any limited 
partner, officer or approved person thereof, registered or non-
registered employee affiliated with such entity for its or their own 
accounts in the underlying asset or commodity, related futures or 
options on futures, or any other related derivatives, as may be 
requested by the Corporation.
    (4) In connection with trading the underlying asset or commodity, 
related futures or options on futures or any other related derivative 
(including Partnership Units), the ETP Holder acting as a registered 
Market Maker in Partnership Units shall not use any material nonpublic 
information received from any person associated with an ETP Holder or 
employee of such person regarding trading by such person or employee in 
the physical asset or commodity, futures or options on futures, or any 
other related derivatives.
    (f) Limitation of Corporation Liability. Neither the Corporation 
nor any agent of the Corporation shall have any liability for damages, 
claims, losses or expenses caused by any errors, omissions, or delays 
in calculating or disseminating any underlying asset or commodity 
value, the current value of the underlying asset or commodity if 
required to be deposited to the partnership in connection with issuance 
of Partnership Units; net asset value; or other information relating to 
the purchase, redemption or trading of Partnership Units, resulting 
from any negligent act or omission by the Corporation or any agent of 
the Corporation, or any act, condition or cause beyond the reasonable 
control of the Corporation or its agent, including, but not limited to, 
an act of God; fire; flood; extraordinary weather conditions; war; 
insurrection; riot; strike; accident; action of government; 
communications or power failure; equipment or software malfunction; or 
any error, omission or delay in the reports of transactions in an 
underlying asset or commodity.
    The Corporation will file separate proposals under Section 19(b) of 
the Securities Exchange Act of 1934 before listing and trading separate 
and distinct Partnership Units designated on different underlying 
investments, commodities and/or assets.

Commentary

    .01 The Exchange requires that Equity Trading Permit holders 
provide to all purchasers of newly issued Partnership Units a 
prospectus for the series of Partnership Units.
* * * * *

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. The 
text of these statements may be examined at the places specified in 
Item III below, and is set forth in Sections A, B, and C below.

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

1. Purpose
    The Exchange proposes to add new NYSE Arca Equities Rule 8.300 in 
order to permit trading, either by listing or pursuant to UTP, units in 
a partnership that holds commodity-based or linked investments. 
Pursuant to this proposed rule, the Exchange initially proposes to 
trade pursuant to UTP the Units, which represent ownership of a 
fractional undivided interest in the net assets of USOF.\3\ The 
Commission previously approved the original listing and trading of the 
Units by the American Stock Exchange LLC (``Amex'').\4\
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    \3\ USOF, a Delaware limited partnership, is a commodity pool. 
The Exchange states that USOF is not an investment company as 
defined in Section 3(a) of the Investment Company Act of 1940. The 
offering of the Units of the Partnership is registered with the 
Commission under the Securities Act of 1933.
    \4\ See Securities Exchange Act Release Nos. 53582 (March 31, 
2006), 71 FR 17510 (April 6, 2006) (order granting approval to SR-
Amex-2005-127) (``Amex Order''); 53324 (February 16, 2006), 71 FR 
9614 (February 24, 2006) (``USOF Notice'').
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    The investment objective of the USOF is for its net asset value 
(``NAV'') \5\ to reflect the performance of the spot price of West 
Texas Intermediate light, sweet crude oil delivered to Cushing, 
Oklahoma (the ``WTI light, sweet crude oil''),\6\ as represented by the 
performance of the price of the ``Benchmark Oil Futures Contract,'' 
less the expense of operation of USOF. The ``Benchmark Oil Futures 
Contract'' is the near-month (i.e., spot month) future contract for 
delivery of WTI light, sweet crude oil traded on the New York 
Mercantile Exchange (``NYMEX'').\7\
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    \5\ NAV is the total assets, less total liabilities of USOF, 
determined on the basis of generally accepted accounting principles. 
NAV per Unit is the NAV of USOF divided by the number of outstanding 
Units.
    \6\ The types of crude oil are typically described by a 
combination of their physical attributes and their place of origin. 
A few of these types of crude oil are widely traded and their prices 
serve as benchmarks in determining the spot and forward prices of 
the other types of crude oil. The three most important types of 
crude oil that are used as benchmarks are the light, sweet crude oil 
from the United States known as ``West Texas Intermediate,'' a 
light, sweet crude oil from Europe's North Sea known as ``Brent 
Crude,'' and a medium crude oil from the Middle East known as 
``Dubai Crude.'' These three types of crude oil are the ones used 
most frequently in the trading of listed futures contracts, listed 
options, and non-exchange listed derivative contracts based on crude 
oil.
    \7\ The Exchange will file a Form 19b-4 to obtain Commission 
approval for the continued trading of the Units should the General 
Partner change the Benchmark Oil Futures Contract from this NYMEX 
WTI light, sweet crude oil futures contract.

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[[Page 32166]]

    The assets of USOF will consist of futures contracts for light, 
sweet crude oil and other petroleum based fuels that are traded on the 
NYMEX or other U.S. and foreign exchanges \8\ (collectively, ``Oil 
Futures Contracts''). USOF will also purchase other oil interests, such 
as cash-settled options on Oil Futures Contracts, forward contracts for 
oil, and OTC transactions that are based on the price of oil, other 
petroleum-based fuels, and indices based on the foregoing 
(collectively, ``Other Oil Interests''). (Oil Futures Contracts and 
Other Oil Interests are collectively referred to as ``Oil Interests.'') 
The Oil Interests for light, sweet crude oil and other petroleum based 
fuels in which USOF will invest are based on domestic oil, (WTI light, 
sweet crude oil), international oil (Brent Crude Oil), heating oil, 
natural gas, and gasoline. A description of these commodities and the 
primary trading market for futures contracts based on such commodities 
is set forth in the USOF Notice.\9\
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    \8\ USOF will primarily purchase WTI light, sweet crude Oil 
Futures Contracts traded on the NYMEX, but may also purchase Oil 
Futures Contracts on other exchanges, including the Intercontinental 
Exchange, formerly known as the International Petroleum Exchange, 
which operates its futures business through ICE Futures (``ICE 
Futures'') and the Singapore Oil Exchange.
    \9\ See USOF Notice, supra note 4.
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    USOF will also invest in short term obligations of the United 
States Government (``Treasuries'') to be used to satisfy its current or 
future margin and collateral requirements and to otherwise satisfy its 
obligations with respect to its investments in Oil Interests.
    (a) The Units. In January 2005, the Commission approved an Exchange 
rule (NYSE Arca Equities Rule 8.201) for the listing and trading of 
Commodity-Based Trust Shares.\10\ Commodity-Based Trust Shares are 
trust issued receipts (``TIRs'') based on the value of an underlying 
commodity or index of commodities held by a trust. Because of USOF's 
structure as a partnership and the nature of its investments, the 
current Commodity-Based Trust Shares rule (NYSE Arca Equities Rule 
8.201) does not specifically permit the Exchange to trade this product. 
This proposal seeks to expand the ability of the Exchange to list and/
or trade securities based on a portfolio of underlying investments that 
may not be ``securities'' in circumstances where the issuer is a 
partnership, organized as a commodities pool under the CEA.
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    \10\ See Securities Exchange Act Release Nos. 51067 (January 21, 
2005), 70 FR 3952 (January 27, 2005) (approving general standards 
for the listing and trading of Commodity-Based Trust Shares and 
trading pursuant to UTP of shares of the iShares(r) COMEX Gold 
Trust); 51245 (February 23, 2005), 70 FR 10731-01 (March 4, 2005) 
(approving the trading pursuant to UTP of shares of the 
streetTRACKS[reg] Gold Trust); 53520 (March 20, 2006), 71 FR 14977 
(March 24, 2006) (approving the trading pursuant to UTP of shares of 
the iShares Silver Trust). See also Securities Exchange Act Release 
No. 53736 (April 27, 2006), 71 FR 26582 (May 5, 2006) (proposal to 
trade pursuant to UTP shares of the DB Commodity Index Tracking 
Fund).
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    Under proposed NYSE Arca Equities Rule 8.300, the Exchange would be 
able to trade pursuant to UTP the Units issued by USOF. For units 
issued by other commodity-based partnerships or other types of units 
issued by USOF, if any, the Exchange would submit a filing pursuant to 
Section 19(b) of the Act, subject to the review and approval of the 
Commission.
    A description of the liquidity, depth, and pricing mechanisms of 
the international oil market, the regulation of futures, operation of 
the USOF, and a description of the Units is set forth in the Amex Order 
and the USOF Notice.\11\ To summarize, issuances of Units will be made 
only in baskets of 100,000 Units or multiples thereof (a ``Basket''). 
The Partnership will issue and redeem Baskets of the Units on a 
continuous basis by or through participants who have entered into 
authorized purchaser agreements (each, an ``Authorized Purchaser'')\12\ 
with the General Partner,\13\ at the net asset value (``NAV'') per Unit 
next determined after an order to purchase the Units in a Basket is 
received in proper form. Baskets may be issued and redeemed on any 
Business day (defined as any day other than a day on which the Amex, 
the NYMEX, or the New York Stock Exchange is closed for regular 
trading) through ALPS Distributors, Inc. (the ``Marketing Agent'') in 
exchange for cash and/or Treasuries, which Brown Brothers Harriman & 
Co. (the ``Custodian'' and the ``Administrator'') receives from 
Authorized Purchasers or transfers to Authorized Purchasers, in each 
case on behalf of USOF. Baskets are then separable upon issuance into 
identical Units that will be traded on the NYSE Arca Marketplace as 
equity securities.\14\
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    \11\ See supra note 4.
    \12\ An ``Authorized Purchaser'' is a person, who at the time of 
submitting to the General Partner an order to create or redeem one 
or more Baskets, (i) is a registered broker-dealer or other market 
participant, such as a bank or other financial institution that is 
exempt from broker-dealer registration, (ii) is a Depository Trust 
Company Participant, and (iii) has in effect a valid Authorized 
Purchaser Agreement.
    \13\ The General Partner is Victoria Bay Asset Management, LLC, 
a single member Delaware limited liability company wholly owned by 
Wainwright Holdings, Inc. The General Partner, which was formed for 
the specific purpose of managing and controlling USOF, has 
registered as a Commodity Pool Operator (``CPO'') with the Commodity 
Futures Trading Commission (``CFTC'') and has become a member of the 
National Futures Association (``NFA'').
    \14\ The Exchange expects that the number of outstanding Units 
will increase and decrease as a result of creations and redemptions 
of Baskets.
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    Baskets will be issued in exchange for Treasuries and/or cash in an 
amount equal to the NAV per Unit times 100,000 Units (the ``Basket 
Amount''). Authorized Purchasers that wish to purchase a Basket must 
transfer the Basket Amount to the Administrator (the ``Deposit 
Amount''). Authorized Purchasers that wish to redeem a Basket will 
receive an amount of Treasuries and cash in exchange for each Basket 
surrendered in an amount equal to the NAV per Basket (the ``Redemption 
Amount'').
    On each business day, the Administrator will make available, prior 
to 9:30 a.m. Eastern Time (``ET''), the estimated Basket Amount for the 
creation of a Basket based on the prior day's NAV.\15\ According to the 
Amex Order, the Amex will disseminate at least every 15 seconds 
throughout the trading day, via the facilities of the Consolidated Tape 
Association (``CTA''), an amount representing, on a per Unit basis, the 
current indicative value of the Basket Amount (See ``Indicative 
Partnership Value'' below). Shortly after 4 p.m. ET, the Administrator 
will determine the NAV for USOF as described below. At or about 4 p.m. 
ET on each business day, the Administrator will determine the Actual 
Basket Amount (``Actual Basket Amount'') for orders placed by 
Authorized Purchasers received before 12 p.m. ET that day. Thus, 
although Authorized Purchasers place orders to purchase Units during 
the trading day until 12 p.m. ET, the Actual Basket Amount is 
determined as of 4 p.m. ET.
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    \15\ The Administrator will make available an ``estimated'' 
Basket Amount prior to the opening of trading on the Exchange, 
rather than the Actual Basket Amount, which will not be available 
until shortly after 4 p.m. ET each business day, as described below. 
All such information (NAV, Actual Basket Amount, Estimated Basket 
Amount, and daily disclosure of portfolio holdings) will be 
available to all market participants at the same time to avoid any 
informational disadvantage.
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    Shortly after 4 p.m. ET on each business day, the Administrator, 
Amex, and the General Partner will disseminate the NAV for the Units 
and the Actual Basket Amount (for orders placed during the day). The 
Basket Amount and the NAV are communicated by the Administrator to all 
Authorized Purchasers via facsimile or electronic mail message. 
According to the Amex Order, the Amex will also disclose the NAV and 

[[Page 32167]]

http://www.amex.com.\16\ On each day that the Amex is open for regular 

trading, the Administrator will adjust the Deposit Amount as 
appropriate to reflect the prior day's Partnership NAV and accrued 
expenses. The Administrator will then determine the Deposit Amount for 
a given business day.
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    \16\ See supra note 15.
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    The Administrator will calculate NAV as follows: (1) Determine the 
current value of USOF assets and (2) subtract the liabilities of USOF. 
The NAV will be calculated at 4 p.m. ET using the settlement value \17\ 
of Oil Futures Contracts traded on the NYMEX as of the close of open-
outcry trading on the NYMEX at 2:30 p.m. ET, and for the value of other 
Oil Futures Interests and Treasuries, the value of such investments as 
of the earlier of 4 p.m. ET or the close of trading on the New York 
Stock Exchange. The NAV is calculated by including any unrealized 
profit or loss on Oil Futures Contracts and other Oil Interests and any 
other credit or debit accruing to USOF but unpaid or not received by 
USOF. The NAV is then used to compute all fees (including the 
management and administrative fees) that are calculated from the value 
of Partnership assets. The Administrator will calculate the NAV per 
unit by dividing the NAV by the number of Units outstanding. The 
calculation methodology for the NAV is described in more detail in the 
Amex Order.
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    \17\ See NYMEX Rule 6.52.
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    The Units will not be individually redeemable but will only be 
redeemable in Baskets. To redeem, an Authorized Participant will be 
required to accumulate enough Units to constitute a Basket (i.e., 
100,000 Units). Authorized Participants that wish to redeem a Basket 
will receive the Redemption Amount in exchange for each Basket 
surrendered.\18\ The operation of the Partnership and creation and 
redemption process is described in more detail in the Amex Order.
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    \18\ Authorized Purchasers are required to pay a transaction fee 
of $1,000 for each order to create or redeem one or more Baskets.
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(b) Dissemination and Availability of Information.

(i) Oil Futures Contracts

    The daily settlement prices for the NYMEX traded Oil Futures 
Contracts held by USOF are publicly available on the NYMEX Web site at 
http://www.nymex.com The Exchange's Web site at http://www.nysearca.com.
 will also include a hyperlink to the NYMEX Web site 
for the purpose of disclosing futures contract pricing. In addition, 
various market data vendors and news publications publish futures 
prices and related data. The Exchange represents that quote and last 
sale information for the Oil Futures Contracts are widely disseminated 
through a variety of market data vendors worldwide, including Bloomberg 
and Reuters. According to the Amex Order, last sale information for the 
Benchmark Oil Futures Contract will be updated and disseminated at 
least every 15 seconds by one or more major market data vendors during 
the time the Units trade. However, from 2:30 p.m. ET to the opening of 
NYMEX ACCESS at 3:15 p.m. ET, the pricing for the Benchmark Oil Futures 
Contract will not be updated. The Exchange further represents that 
real-time futures data is available by subscription from Reuters and 
Bloomberg. The NYMEX also provides delayed futures information on 
current and past trading sessions and market news free of charge on its 
Web site. The specific contract specifications for the Oil Futures 
Contracts are also available on the NYMEX Web site and the ICE Futures 
Web site at https://www.theice.com.


(ii) USOF Units

    The Web site for USOF, which will be publicly accessible at no 
charge and to which the Exchange will provide a hyperlink on its Web 
site (http://www.nysearca.com), will include the following information: 

(1) The prior business day's NAV and the reported closing price; (2) 
the mid-point of the bid-ask price \19\ in relation to the NAV as of 
the time the NAV is calculated (the ``Bid-Ask Price''); (3) calculation 
of the premium or discount of such price against such NAV; (4) data in 
chart form displaying the frequency distribution of discounts and 
premiums of the Bid-Ask Price against the NAV, within appropriate 
ranges for each of the four previous calendar quarters; (5) the 
prospectus and the most recent periodic reports filed with the 
Commission or required by the CFTC; and (6) other applicable 
quantitative information. In addition, information on USOF's daily 
portfolio holdings will be available on its Web site at http://www.unitedstatesoilfund.com
 and will be equally accessible to investors 

and Authorized Purchasers.
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    \19\ The Bid-Ask Price of Units is determined using the highest 
bid and lowest offer as of the time of calculation of the NAV.
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    As described above, the NAV for USOF will be calculated and 
disseminated daily. According to the Amex Order, the Amex also intends 
to disseminate for USOF on a daily basis by means of CTA/CQ High Speed 
Lines information with respect to the Indicative Partnership Value (as 
discussed below), recent NAV, Units outstanding, the estimated Basket 
Amount and the Deposit Amount (e.g., the Actual Basket Amount). The 
Exchange will make available on its Web site daily trading volume, 
closing prices and the NAV. The closing price and settlement prices of 
the Oil Futures Contracts held by USOF are also readily available from 
the NYMEX, automated quotation systems, published or other public 
sources, or on-line information services such as Bloomberg or Reuters. 
In addition, the Exchange will provide a hyperlink on its Web site at 
http://www.nysearca.com to USOF's Web site.


(iii) Indicative Partnership Value

    According to the Amex Order, the Amex will disseminate through the 
facilities of the CTA an updated Indicative Partnership Value (the 
``Indicative Partnership Value'') per Unit basis at least every 15 
seconds from 9:30 a.m. to 4:15 p.m. ET. The Indicative Partnership 
Value will be calculated based on the Treasuries and cash required for 
creations and redemptions (i.e., NAV per limit x 100,000) adjusted to 
reflect the price changes of the current Benchmark Oil Futures 
Contract.
    The Indicative Partnership Value will not reflect price changes to 
the price of the current Benchmark Oil Futures Contract between the 
close of open-outcry trading of these oil futures contract on the NYMEX 
at 2:30 p.m. ET and the open of trading on the NYMEX ACCESS market at 
3:15 p.m. ET.\20\ The Indicative Partnership Value after 3:15 p.m. ET 
will reflect changes to the current Benchmark Oil Futures Contract as 
provided for through NYMEX ACCESS. The value of a Unit may accordingly 
be influenced by the non-concurrent trading hours of the Amex and 
NYMEX. While the Units will trade on the Amex from 9:30 a.m. to 4:15 
p.m. ET, the current Benchmark Oil Futures Contract will trade, in 
open-outcry, on the NYMEX from 10 a.m. ET to 2:30 p.m. ET and NYMEX 
ACCESS from 3:15 p.m. ET through the following morning 9:50 a.m. ET.
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    \20\ NYMEX ACCESS[reg], an electronic trading system, is open 
for price discovery on the NYMEX light, sweet crude oil futures 
contract each Monday through Thursday at 3:15 p.m. ET through the 
following morning at 9:50 a.m. ET, from 3:15-5 p.m. Friday, and from 
7 p.m. Sunday night until Monday morning 9:50 a.m. ET. Telephone 
Conference between David Strandberg, Director, NYSE Arca Equities 
Inc., and Angela Muehr, Attorney, Division of Market Regulation 
(``Division''), Commission, on May 25, 2006.

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[[Page 32168]]

    While the NYMEX (open outcry) is open for trading, the Indicative 
Partnership Value can be expected to closely approximate the value per 
unit of the Basket Amount.\21\ However, during Exchange trading hours 
when the Oil Futures Contracts have ceased trading, spreads and 
resulting premiums or discounts may widen, and therefore, increase the 
difference between the price of the Units and the NAV of the Units. The 
Exchange believes that dissemination of the Indicative Partnership 
Value based on the cash amount required for a Basket provides 
additional information that is not otherwise available to the public 
and is useful to professionals and investors in connection with the 
Units trading on NYSE Arca Marketplace or the creation or redemption of 
the Units.
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    \21\ Telephone Conference between David Strandberg, Director, 
NYSE Arca Equities Inc., and Angela Muehr, Attorney, Division, 
Commission, on May 25, 2006.
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    (c) Continued Listing and UTP Trading Criteria. While the Exchange 
immediately seeks to trade the Units pursuant to UTP, the Exchange is 
also adopting general initial and continued listing standards 
applicable to all Partnership Units in the event the Exchange were to 
list such Partnership Units. In such an event, the Exchange would still 
file a Form 19b-4 to list such Partnership Units. Nevertheless, such 
continued listing standards are included below.
    When the Exchange is the listing market for Partnership Units, the 
Partnership will be subject to the continued listing and trading 
criteria under proposed new NYSE Arca Equities Rule 8.300. In 
particular, the proposed continued listing criteria provides that the 
Exchange will consider removal from listing of such Partnership Units 
under any of the following circumstances:
     If, following the initial twelve month period from the 
date of commencement of trading of the Partnership Units, (i) the 
Partnership has more than 60 days remaining until termination and there 
are fewer than 50 record and/or beneficial holders of the Partnership 
Units for 30 or more consecutive trading days; (ii) the Partnership has 
fewer than 50,000 Partnership Units issued and outstanding; or (iii) 
the market value of all Partnership Units issued and outstanding is 
less than $1,000,000;
     If the value of the underlying benchmark investment, 
commodity or asset is no longer calculated or available on at least a 
15-second delayed basis or the Exchange stops providing a hyperlink on 
its Web site to any such investment, commodity or asset value;
     If the Indicative Partnership Value is no longer made 
available on at least a 15-second delayed basis; or
     If such other event shall occur or condition exists which 
in the opinion of the Exchange makes further dealings on the Exchange 
inadvisable.
    In addition, the Exchange will remove Partnership Units from 
listing and trading upon termination of the Partnership.
    If the Exchange is trading Partnership Units pursuant to UTP, such 
as the Units, then the Exchange will cease trading in the Units if (i) 
the listing market stops trading the Units because of a regulatory halt 
similar to a halt based on NYSE Arca Equities Rule 7.12 or a halt 
because the Indicative Partnership Value or the value of the underlying 
spot commodity or Oil Futures Contract is no longer available; or (ii) 
the listing market delists the Units. Additionally, the Exchange may 
cease trading the Units if such other event shall occur or condition 
exists which in the opinion of the Exchange makes further dealings on 
the Exchange inadvisable.
    The Exchange represents that it prohibits the initial and/or 
continued listing of any security that is not in compliance with Rule 
10A-3 under the Exchange Act.\22\
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    \22\ See Rule 10A-3(c)(7), 17 CFR 240.10A-3(c)(7) (stating that 
a listed issuer is not subject to the requirements of Rule 10A-3 if 
the issuer is organized as an unincorporated association that does 
not have a board of directors and the activities of the issuer are 
limited to passively owning or holding securities or other assets on 
behalf of or for the benefit of the holders of the listed 
securities).
---------------------------------------------------------------------------

    (d) Trading Rules. The Exchange deems the Units to be equity 
securities, thus rendering trading in the Partnership subject to the 
Exchange's existing rules governing the trading of equity securities. 
Trading in the Units on the Exchange will occur in accordance with NYSE 
Arca Equities Rule 7.34(a), except that the Units will not be eligible 
to trade during the Opening Session (4 a.m. to 9:30 a.m. ET) or the 
Late Trading Session (4:15 p.m. to 8 p.m. ET) unless the Indicative 
Partnership Value is disseminated during that time.\23\ The Exchange 
has appropriate rules to facilitate transactions in the Units during 
all trading sessions. The minimum trading increment for Units on the 
Exchange will be $0.01.
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    \23\ If the Indicative Partnership Value is disseminated during 
the Opening and/or Late Trading Sessions, NYSE Arca will file a 
proposal under Section 19(b) of the Act before permitting trading 
during those Sessions.
---------------------------------------------------------------------------

    Further, the Exchange has proposed new NYSE Arca Equities Rule 
8.300(e), which sets forth certain restrictions on ETP Holders acting 
as registered Market Makers in Units to facilitate surveillance. NYSE 
Arca Equities Rule 8.300(e)(2)-(3) will require that the ETP Holder 
acting as a registered Market Maker in the Units provide the Exchange 
with necessary information relating to its trading in the underlying 
asset or commodity, related futures or options on futures, or any other 
related derivatives. NYSE Arca Equities Rule 8.300(e)(4) will prohibit 
the ETP Holder acting as a registered Market Maker in the Units from 
using any material nonpublic information received from any person 
associated with an ETP Holder or employee of such person regarding 
trading by such person or employee in the underlying asset or 
commodity, related futures or options on futures or any other related 
derivative (including the Units). In addition, NYSE Arca Equities Rule 
8.300(e)(1) will prohibit the ETP Holder acting as a registered Market 
Maker in the Units from being affiliated with a market maker in the 
underlying asset or commodity, related futures or options on futures or 
any other related derivative unless adequate information barriers are 
in place, as provided in NYSE Arca Equities Rule 7.26.
    As a general matter, the Exchange has regulatory jurisdiction over 
its ETP Holders and their associated persons, which includes any person 
or entity controlling an ETP Holder, as well as a subsidiary or 
affiliate of an ETP Holder that is in the securities business. A 
subsidiary or affiliate of an ETP Holder that does business only in 
commodities or futures contracts would not be subject to Exchange 
jurisdiction, but the Exchange could obtain information regarding the 
activities of such subsidiary or affiliate through surveillance sharing 
agreements with regulatory organizations of which such subsidiary or 
affiliate is a member.
    With respect to trading halts, the Exchange may consider all 
relevant factors in exercising its discretion to halt or suspend 
trading in the Units. Trading in the Units may be halted because of 
market conditions or for reasons that, in the view of the Exchange, 
make trading in the Units inadvisable. These may include (i) the extent 
to which trading is not occurring in the current Benchmark Oil Futures 
Contract, or (ii) whether other unusual conditions or circumstances 
detrimental to the maintenance of a fair and orderly market are 
present. In addition, trading in Units will be subject to trading halts 
caused by extraordinary market

[[Page 32169]]

volatility pursuant to the Exchange's ``circuit breaker'' rule \24\ or 
by the halt or suspension of the trading of the current Benchmark Oil 
Futures Contract.
---------------------------------------------------------------------------

    \24\ See NYSE Arca Equities Rule 7.12.
---------------------------------------------------------------------------

    If the Exchange is the listing market for Partnership Units, the 
Exchange will halt trading in the Partnership Units if: (i) The value 
of the underlying benchmark investment, commodity or asset updated at 
least every 15 seconds from a source not affiliated with the sponsor, 
partnership, or the Exchange is no longer available; (ii) the 
Indicative Partnership Value per Unit updated at least every 15 seconds 
is no longer available, or (iii) the Exchange stops providing on the 
Exchange's Web site, via a hyperlink to the partnership's Web site, 
such value of the underlying investment, commodity or asset and 
Indicative Partnership Value per Unit.\25\
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    \25\ In the event the value of the underlying benchmark 
investment, commodity or asset or the Indicative Partnership Value 
is no longer calculated or disseminated, the Exchange would 
immediately contact the Commission to discuss measures that may be 
appropriate under the circumstances.
---------------------------------------------------------------------------

    If the Exchange is trading Partnership Units pursuant to UTP, such 
as the Units, the Exchange will cease trading the Units if (i) the 
listing market stops trading the Units because of a regulatory halt 
similar to NYSE Arca Equities Rule 7.12 or a halt because the 
Indicative Partnership Value or the value of the underlying spot 
commodity or Oil Futures Contract is no longer available, or (ii) the 
listing market delists the Units. Additionally, the Exchange may cease 
trading the Units if such other event shall occur or condition exists 
which in the opinion of the Exchange makes further dealings on the 
Exchange inadvisable.
    Units will be deemed ``Eligible Listed Securities,'' as defined in 
NYSE Arca Equities Rule 7.55, for purposes of the Intermarket Trading 
System (``ITS'') Plan and therefore will be subject to the trade 
through provisions of NYSE Arca Equities Rule 7.56, which require that 
ETP Holders avoid initiating trade-throughs for ITS securities.
    USOF sought and received certain exemptive relief for the Units, 
including relief from the short sale rule, Rule 10a-1, and Regulation 
SHO under the Act.\26\
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    \26\ See letter from James A. Brigagliano, Acting Associate 
Director, Division, Commission, to Mr. James M. Cain, Esq., 
Sutherland, Asbill & Brennan LLP, dated April 7, 2006.
---------------------------------------------------------------------------

    (e) Surveillance. The Exchange intends to utilize its existing 
surveillance procedures applicable to derivative products and shares of 
the streetTRACKS Gold Trust \27\ to monitor trading in the Units. The 
Exchange represents that these procedures are adequate to monitor 
Exchange trading of the Units.
---------------------------------------------------------------------------

    \27\ See supra note 10.
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    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 is able to 
obtain information regarding trading in the Units and the underlying 
Oil Futures Contracts through ETP Holders in connection with such ETP 
Holders' proprietary or customer trades which they effect on any 
relevant market. In addition, the Exchange may obtain trading 
information via the Intermarket Surveillance Group (``ISG'') from other 
exchanges who are members or affiliates of the ISG, including the CBOT. 
In addition, the Exchange has an Information Sharing Agreement in place 
with NYMEX for the purpose of providing information in connection with 
trading in or related to futures contracts traded on the NYMEX. To the 
extent that USOF invests in Oil Interests traded on other exchanges, 
the Exchange will enter into information sharing agreements, acceptable 
to the Commission staff, with those particular exchanges.\28\
---------------------------------------------------------------------------

    \28\ In such event, the Exchange will file a proposed rule 
change pursuant to Rule 19b-4 of the Act, indicating such 
surveillance arrangements.
---------------------------------------------------------------------------

    (f) Information Bulletin. 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 Units. 
Specifically, the Information Bulletin will discuss the following: (i) 
The procedures for purchases and redemptions of Units in Baskets (and 
that Units are not individually redeemable); (ii) NYSE Arca Equities 
Rule 9.2(a),\29\ which imposes a duty of due diligence on its ETP 
Holders to learn the essential facts relating to every customer prior 
to trading the Units; (iii) how information regarding the Indicative 
Partnership Value is disseminated; (iv) the requirement that ETP 
Holders deliver a prospectus to investors purchasing newly issued Units 
prior to or concurrently with the confirmation of a transaction; and 
(v) trading information. For example, the Information Bulletin will 
advise ETP Holders, prior to the commencement of trading, of the 
prospectus delivery requirements applicable to the Partnership. The 
Exchange notes that investors purchasing Units directly from the 
Partnership (by delivery of the Deposit Amount) will receive a 
prospectus. ETP Holders purchasing Units from the Partnership for 
resale to investors will deliver a prospectus to such investors.
---------------------------------------------------------------------------

    \29\ The Exchange has proposed to amend NYSE Arca Equities Rule 
9.2(a) (``Diligence as to Accounts'') to provide that ETP Holders, 
before recommending a transaction, must have reasonable grounds to 
believe that the recommendation is suitable for the customer based 
on any facts disclosed by the customer as to his other security 
holdings and as to his financial situation and needs. Further, the 
proposed rule amendment provides that prior to the execution of a 
transaction recommended to a non-institutional customer, the ETP 
Holders should make reasonable efforts to obtain information 
concerning the customer's financial status, tax status, investment 
objectives and any other information that they believe would be 
useful to make a recommendation. See Amendment No. 1 to SR-PCX-2005-
115 (November 21, 2005).
---------------------------------------------------------------------------

    In addition, the Information Bulletin will reference that the 
Partnership is subject to various fees and expenses described in the 
Registration Statement. The Information Bulletin will also reference 
the fact that there is no regulated source of last sale information 
regarding physical commodities, and that the Commission has no 
jurisdiction over the trading of WTI light, sweet crude oil, Brent 
crude oil, heating oil, gasoline, natural gas or other petroleum-based 
fuels, that the CFTC has regulatory jurisdiction over the trading of 
oil-based futures contracts and related options, and that trading in 
certain OTC commodity based derivatives is not within the jurisdiction 
of the CFTC and may therefore be effectively unregulated. Further, the 
Information Bulletin will disclose that the NAV for the Units will be 
calculated shortly after 4 p.m. ET each trading day.
    The Information Bulletin will also discuss any relief, if granted, 
by the Commission or the staff from any rules under the Act.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Act \30\ in general and furthers the 
objectives of Section 6(b)(5),\31\ in particular, in that it is 
designed to promote just and equitable principles of trade, to foster 
cooperation and coordination with persons engaged in facilitating 
transaction in securities, to remove impediments and perfect the 
mechanisms of a free and open market, and, in general, to protect 
investors and the public interest.
---------------------------------------------------------------------------

    \30\ 15 U.S.C. 78s(b).
    \31\ 15 U.S.C. 78s(b)(5).
---------------------------------------------------------------------------

    In addition, the Exchange believes that the proposal is consistent 
with Rule 12f-5 under the Act \32\ because it deems the Units to be 
equity securities, thus rendering the Units subject to the

[[Page 32170]]

Exchange's existing rules governing the trading of equity securities.
---------------------------------------------------------------------------

    \32\ 17 CFR 240.12f-5.
---------------------------------------------------------------------------

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change 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

    Written comments on the proposed rule change were neither solicited 
nor received.

III. Solicitation of Comments

    Interested persons are invited to submit written data, views and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml.
); or     Send an e-mail to rule-comments@sec.gov. Please include 

File Number SR-NYSEArca-2006-11 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris, 
Secretary, Securities and Exchange Commission, Station Place, 100 F 
Street, NE., Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSEArca-2006-11. This 
file number should be included on the subject line if e-mail is used. 
To help the Commission process and review your comments more 
efficiently, please use only one method. The Commission will post all 
comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml
). Copies of the submission, all subsequent amendments, 

all written statements with respect to the proposed rule change that 
are filed with the Commission, and all written communications relating 
to the proposed rule change between the Commission and any person, 
other than those that may be withheld from the public in accordance 
with the provisions of 5 U.S.C. 552, will be available for inspection 
and copying in the Commission's Public Reference Room. Copies of such 
filing also will be available for inspection and copying at the 
principal office of the Exchange. All comments received will be posted 
without change; the Commission does not edit personal identifying 
information from submissions. You should submit only information that 
you wish to make available publicly. All submissions should refer to 
File Number SR-NYSEArca-2006-11 and should be submitted on or before 
June 23, 2006.

IV. Commission's Findings and Order Granting Accelerated Approval of 
Proposed Rule Change

    The Commission finds that the proposed rule change is consistent 
with the requirements of the Act and the rules and regulations 
thereunder applicable to a national securities exchange.\33\ In 
particular, the Commission finds that the proposed rule change is 
consistent with Section 6(b)(5) of the Act,\34\ which requires that an 
exchange have rules designed, among other things, to promote just and 
equitable principles of trade, to remove impediments to and perfect the 
mechanism of a free and open market and a national market system, and 
in general to protect investors and the public interest.
---------------------------------------------------------------------------

    \33\ In approving this rule change, the Commission notes that it 
has considered the proposed rule's impact on efficiency, 
competition, and capital formation. See 15 U.S.C. 78c(f).
    \34\ 15 U.S.C. 78f(b)(5).
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    In addition, the Commission finds that the proposal is consistent 
with Section 12(f) of the Act,\35\ which permits an exchange to trade, 
pursuant to UTP, a security that is listed and registered on another 
exchange.\36\ The Commission notes that it previously approved the 
listing and trading of the Units on the Amex.\37\ The Commission also 
finds that the proposal is consistent with Rule 12f-5 under the 
Act,\38\ which provides that an exchange shall not extend UTP to a 
security unless the exchange has in effect a rule or rules providing 
for transactions in the class or type of security to which the exchange 
extends UTP. NYSEArca rules deem the Units to be equity securities, 
thus trading in the Units will be subject to the Exchange's existing 
rules governing the trading of equity securities.
---------------------------------------------------------------------------

    \35\ 15 U.S.C. 78l(f).
    \36\ Section 12(a) of the Act, 15 U.S.C. 78l(a), generally 
prohibits a broker-dealer from trading a security on a national 
securities exchange unless the security is registered on that 
exchange pursuant to Section 12 of the Act. Section 12(f) of the Act 
excludes from this restriction trading in any security to which an 
exchange ``extends UTP.'' When an exchange extends UTP to a 
security, it allows its members to trade the security as if it were 
listed and registered on the exchange even though it is not so 
listed and registered.
    \37\ See Amex Order, supra note 4.
    \38\ 17 CFR 240.12f-5.
---------------------------------------------------------------------------

    The Commission further believes that the proposal is consistent 
with Section 11A(a)(1)(C)(iii) of the Act,\39\ which sets forth 
Congress's finding that it is in the public interest and appropriate 
for the protection of investors and the maintenance of fair and orderly 
markets to assure the availability to brokers, dealers, and investors 
of information with respect to quotations for and transactions in 
securities.
---------------------------------------------------------------------------

    \39\ 15 U.S.C. 78k-1(a)(1)(C)(iii).
---------------------------------------------------------------------------

    In support of the portion of the proposed rule change regarding UTP 
of the Units, the Exchange has made the following representations:
    1. The Exchange has appropriate rules to facilitate transactions in 
this type of security in all trading sessions.
    2. The Exchange's surveillance procedures are adequate to properly 
monitor the trading of the Units on the Exchange.
    3. The Exchange will distribute an Information Bulletin to its 
members prior to the commencement of trading of the Units on the 
Exchange that explains the special characteristics and risks of trading 
the Units.
    4. The Exchange will require a member with a customer who purchases 
newly issued Units on the Exchange to provide that customer with a 
product prospectus and will note this prospectus delivery requirement 
in the Information Bulletin.
    5. The Exchange will cease trading in the Units if (i) the listing 
market stops trading the Units because of a regulatory halt similar to 
a halt based on NYSE Arca Equities Rule 7.12 and/or a halt because the 
Indicative Partnership Value or the value of the underlying Oil Futures 
Contract for WTI light, sweet crude oil is no longer available, or (ii) 
the listing market delists the Units. Additionally, the Exchange may 
cease trading the Units if such other event shall occur or condition 
exists which in the opinion of the Exchange makes further dealings on 
the Exchange inadvisable.
    This approval order is conditioned on the Exchange's adherence to 
these representations.
    The Commission finds good cause for approving this proposed rule 
change before the thirtieth day after the publication of notice thereof 
in the Federal Register. As noted previously, the Commission previously 
found that the listing and trading of these Units on the Amex is 
consistent with the Act.\40\ The Commission presently is not aware of 
any issue that would cause it to

[[Page 32171]]

revisit that earlier finding or preclude the trading of these funds on 
the Exchange pursuant to UTP. Therefore, accelerating approval of this 
proposed rule change should benefit investors by creating, without 
undue delay, additional competition in the market for these Units.
---------------------------------------------------------------------------

    \40\ See Amex Order, supra note 4.
---------------------------------------------------------------------------

V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the Act, 
that the proposed rule change (SR-NYSEArca-2006-11), is hereby approved 
on an accelerated basis.\41\
---------------------------------------------------------------------------

    \41\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\42\
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    \42\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

J. Lynn Taylor,
Assistant Secretary.
[FR Doc. E6-8547 Filed 6-1-06; 8:45 am]

BILLING CODE 8010-01-P
