
[Federal Register: March 24, 2008 (Volume 73, Number 57)]
[Notices]               
[Page 15550-15554]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24mr08-100]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-57505; File No. SR-NYSEArca-2008-20]

 
Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
of Proposed Rule Change and Amendment No. 1 Thereto To Adopt Listing 
Rules Relating to Fixed Income Index-Linked Securities, Futures-Linked 
Securities, and Multifactor Index-Linked Securities

March 14, 2008.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on February 14, 2008, NYSE Arca, Inc. (``NYSE Arca'' or ``Exchange''), 
through its wholly owned subsidiary, NYSE Arca Equities, Inc. (``NYSE 
Arca Equities''), filed with the Securities and Exchange Commission 
(``Commission'') the proposed rule change as described in Items I, II, 
and III below, which Items have been substantially prepared by the 
Exchange. On March 14, 2008, the Exchange filed Amendment No. 1 to the 
proposed rule change. The Commission is publishing this notice to 
solicit comments on the proposed rule change, as amended, from 
interested persons.
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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 proposes to amend NYSE Arca Equities Rule 5.2(j)(6), 
which sets forth the Exchange's listing standards for Equity Index-
Linked Securities, Commodity-Linked Securities, and Currency-Linked 
Securities,\3\ to permit the listing and trading of Fixed Income Index-
Linked Securities, Futures-Linked Securities, and Multifactor Index-
Linked Securities thereunder. The text of the proposed rule change is 
available at the Exchange, the Commission's Public Reference Room, and 
http://www.nyse.com.
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    \3\ Equity Index-Linked Securities are securities that provide 
for the payment at maturity of a cash amount based on the 
performance of an underlying index or indexes of equity securities 
(``Equity Reference Asset''). Commodity-Linked Securities are 
securities that provide for the payment at maturity of a cash amount 
based on the performance of one or more physical commodities or 
commodity futures, options or other commodity derivatives or 
Commodity-Based Trust Shares (as defined in NYSE Arca Equities Rule 
8.201), or a basket or index of any of the foregoing (``Commodity 
Reference Asset''). Currency-Linked Securities are securities that 
provide for the payment at maturity of a cash amount based on the 
performance of one or more currencies, or options or currency 
futures or other currency derivatives or Currency Trust Shares (as 
defined in NYSE Arca Equities Rule 8.202), or a basket or index of 
any of the foregoing (``Currency Reference Asset''). See NYSE Arca 
Equities Rule 5.2(j)(6). As a result of the proposed rule change, 
``Index-Linked Securities,'' which currently include Equity Index-
Linked Securities, Commodity-Linked Securities, and Currency-Linked 
Securities, will also include, by definition, Fixed Income Index-
Linked Securities, Futures-Linked Securities, and Multifactor Index-
Linked Securities.
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II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements 
concerning the purpose of, and basis for, the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item IV below. The Exchange has prepared summaries, set forth in 
Sections A, B, and C below, of the most significant aspects of such 
statements.

[[Page 15551]]

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

1. Purpose
    The Exchange proposes to amend NYSE Arca Equities Rule 5.2(j)(6) to 
adopt new generic listing standards, pursuant to which the Exchange 
would be able to list and trade Fixed Income Index-Linked Securities, 
Futures-Linked Securities, and Multifactor Index-Linked Securities 
without Commission approval under Rule 19b-4(e) under the Act,\4\ and 
to make conforming changes to Commentary .01 of NYSE Arca Equities Rule 
5.2(j)(6) to extend its application to Futures-Linked Securities and 
Multifactor Index-Linked Securities that are composed in part of 
Commodity, Currency, or Futures Reference Assets (as defined herein).
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    \4\ Rule 19b-4(e)(1) under the Act provides that the listing and 
trading of a new derivative securities product by a self-regulatory 
organization (``SRO'') shall not be deemed a proposed rule change, 
pursuant to paragraph (c)(1) of Rule 19b-4 under the Act (17 CFR 
240.19b-4(c)(1)), if the Commission has approved, pursuant to 
Section 19(b) of the Act (15 U.S.C. 78s(b)), the SRO's trading 
rules, procedures, and listing standards for the product class that 
would include the new derivatives securities product, and the SRO 
has a surveillance program for the product class. See 17 CFR 
240.19b-4(e).
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    The Exchange represents that any securities it lists and/or trades 
pursuant to Rule 19b-4(e)(1) and NYSE Arca Equities Rule 5.2(j)(6), as 
amended, will satisfy the proposed standards set forth therein. The 
Exchange states that within five business days after commencement of 
trading of any such security under NYSE Arca Equities Rule 5.2(j)(6), 
as amended, the Exchange will file a Form 19b-4(e).\5\
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    \5\ See 17 CFR 240.19b-4(e)(2)(ii); 17 CFR 249.820.
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Fixed Income Index-Linked Securities

    Fixed Income Index-Linked Securities are securities that provide 
for the payment at maturity based on the performance of one or more 
indexes or portfolios of debt securities that are notes, bonds, 
debentures, or evidence of indebtedness that include, but are not 
limited to, U.S. Department of Treasury securities (``Treasury 
Securities''), government-sponsored entity securities (``GSE 
Securities''), municipal securities, trust preferred securities, 
supranational debt and debt of a foreign country or subdivision 
thereof, or a basket or index of any of the foregoing (collectively, 
``Fixed Income Reference Asset''). Fixed Income Index-Linked 
Securities, like other Index-Linked Securities, will be subject to the 
general criteria in NYSE Arca Equities Rule 5.2(j)(6)(A) for initial 
listing.
    For the initial listing of a series of Fixed Income Index-Linked 
Securities, the Fixed Income Reference Asset must either: (1) Have been 
reviewed and approved for the trading of options, Investment Company 
Units (as defined in NYSE Arca Equities Rule 5.2(j)(3)), or other 
derivatives by the Commission under Section 19(b)(2) of the Act \6\ and 
rules thereunder and the conditions set forth in the Commission's 
approval order continue to be satisfied, or (2) meet the following 
requirements: \7\
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    \6\ 15 U.S.C. 78s(b)(2).
    \7\ The Exchange notes that the quantitative standards for Fixed 
Income Reference Assets are substantially similar to those set forth 
under Commentary .02 to NYSE Arca Equities Rule 5.2(j)(3) relating 
to fixed income securities underlying Investment Company Units. See 
Commentary .02 to NYSE Arca Equities Rule 5.2(j)(3).
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     Components of the Fixed Income Reference Asset that, in 
the aggregate, account for at least 75% of the dollar weight of the 
Fixed Income Reference Asset must each have a minimum original 
principal amount outstanding of $100 million or more;
     A component of the Fixed Income Reference Asset may be a 
convertible security, however, once the convertible security component 
converts to the underlying equity security, the component is removed 
from the Fixed Income Reference Asset;
     No component of the Fixed Income Reference Asset 
(excluding Treasury Securities and GSE Securities) will represent more 
than 30% of the dollar weight of the Fixed Income Reference Asset, and 
the five highest dollar weighted components in the Fixed Income 
Reference Asset will not, in the aggregate, account for more than 65% 
of the dollar weight of the Fixed Income Reference Asset;
     An underlying Fixed Income Reference Asset (excluding one 
consisting entirely of exempted securities) \8\ must include a minimum 
of 13 non-affiliated issuers; and
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    \8\ The Exchange notes that, for purposes of this standard, 
exempted securities refers to Treasury Securities and GSE 
Securities, as defined in proposed NYSE Arca Equities Rule 
5.2(j)(6)(iv).
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     Component securities that, in the aggregate, account for 
at least 90% of the dollar weight of the Fixed Income Reference Asset 
must be from one of the following: (1) Issuers that are required to 
file reports pursuant to Sections 13 and 15(d) of the Act; \9\ or (2) 
issuers that have a worldwide market value of outstanding common equity 
held by non-affiliates of $700 million or more; or (3) issuers that 
have outstanding securities that are notes, bonds, debentures, or 
evidence of indebtedness having a total remaining principal amount of 
at least $1 billion; or (4) exempted securities, as defined in Section 
3(a)(12) of the Act; \10\ or (5) issuers that are a government of a 
foreign country or a political subdivision of a foreign country; and
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    \9\ 15 U.S.C. 78m; 15 U.S.C. 78o(d).
    \10\ 15 U.S.C. 78c(a)(12).
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    With respect to any series of Fixed Income Index-Linked Securities, 
the value of the Fixed Income Reference Asset must be widely 
disseminated to the public by one or more major market vendors at least 
once per business day. In addition, the Exchange will commence 
delisting or removal proceedings if: \11\
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    \11\ The Exchange notes that the continued listing standards for 
each of Fixed Income Index-Linked Securities, Futures-Linked 
Securities, and Multifactor Index-Linked Securities are 
substantially similar to those standards currently applicable to 
other Index-Linked Securities.
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     Any of the initial listing criteria for Fixed Income 
Index-Linked Securities are not continuously maintained;
     The aggregate market value or the principal amount of the 
Fixed Income Index-Linked Securities publicly held is less than 
$400,000;
     The value of the Fixed Income Reference Asset is no longer 
calculated or available and a new Fixed Income Reference is 
substituted, unless the new Fixed Income Reference Asset meets the 
requirements of NYSE Arca Equities Rule 5.2(j)(6); or
     Such other event shall occur or condition exists that, in 
the opinion of the Exchange, makes further dealings on the Exchange 
inadvisable.

Futures-Linked Securities

    Futures-Linked Securities are securities that provide for the 
payment at maturity based on the performance of an index of (1) futures 
on Treasury Securities, GSE Securities, supranational debt and debt of 
a foreign country or a subdivision thereof, or options or other 
derivatives on any of the foregoing, or (2) interest rate futures or 
options or derivatives on the foregoing (collectively, ``Futures 
Reference Asset''). Futures-Linked Securities will also be subject to 
the general criteria in NYSE Arca Equities Rule 5.2(j)(6)(A) for 
initial listing. An issue of Futures-Linked Securities must meet one of 
the initial listing standards set forth below:
     The Futures Reference Asset to which the security is 
linked shall have been reviewed and approved for the trading of 
Futures-Linked Securities or options or other derivatives by the 
Commission under Section 19(b)(2) of the Act \12\ and rules thereunder 
and the

[[Page 15552]]

conditions set forth in the Commission's approval order, including with 
respect to comprehensive surveillance sharing agreements, continue to 
be satisfied; or
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    \12\ 15 U.S.C. 78s(b)(2).
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     The pricing information for components of a Futures 
Reference Asset must be derived from a market which is an Intermarket 
Surveillance Group (``ISG'') member or affiliate member or with which 
the Exchange has a comprehensive surveillance sharing agreement. A 
Futures Reference Asset may include components representing not more 
than 10% of the dollar weight of such Futures Reference Asset for which 
the pricing information is derived from markets that do not meet the 
specified foregoing requirements; provided, however, that no single 
component subject to this exception exceeds 7% of the dollar weight of 
the Futures Reference Asset.
    In addition, an issue of Futures-Linked Securities must meet both 
of the following initial listing criteria:
     The value of the Futures Reference Asset must be 
calculated and widely disseminated by one or more major market data 
vendors on at least a 15-second basis during the Core Trading Session 
(as defined in NYSE Arca Equities Rule 7.34); \13\ and
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    \13\ See NYSE Arca Equities Rule 7.34 (describing the three 
trading sessions of the Exchange to include the Opening Session, 
from 4 a.m. to 9:30 a.m. Eastern Time or ``ET,'' Core Trading 
Session, from 9:30 a.m. to 4 p.m. ET, and Late Trading Session, from 
4 p.m. to 8 p.m. ET).
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     In the case of Futures-Linked Securities that are 
periodically redeemable, the indicative value of the subject Futures-
Linked Securities must be calculated and widely disseminated by the 
Exchange or one or more major market data vendors on at least a 15-
second basis during the Core Trading Session. The Exchange will 
commence delisting or removal proceedings if:
     Any of the initial listing criteria for Futures-Linked 
Securities are not continuously maintained;
     The aggregate market value or the principal amount of the 
Futures-Linked Securities publicly held is less than $400,000;
     The value of the Futures Reference Asset is no longer 
calculated or available and a new Futures Reference Asset is 
substituted, unless the new Futures Reference Asset meets the 
requirements of NYSE Arca Equities Rule 5.2(j)(6); or
     Such other event shall occur or condition exists which, in 
the opinion of the Exchange, makes further dealings on the Exchange 
inadvisable.

Multifactor Index-Linked Securities

    Multifactor Index-Linked Securities are securities that provide for 
payment at maturity based on the performance of any combination of two 
or more Equity Reference Assets, Commodity Reference Assets, Currency 
Reference Assets, Fixed Income Reference Assets, or Futures Reference 
Assets (collectively, the ``Multifactor Reference Asset,'' and together 
with Equity Reference Assets, Commodity Reference Assets, Currency 
Reference Assets, Fixed Income Reference Assets, and Futures Reference 
Assets, collectively, the ``Reference Assets''). In addition, a 
Multifactor Reference Asset may include as a component a notional 
investment in cash or a cash equivalent based on a widely accepted 
overnight loan interest rate, London Interbank Offered Rate 
(``LIBOR''), Prime Rate, or an implied interest rate based on observed 
market spot and foreign currency forward rates. The Exchange states 
that, for purposes of a notional investment as a component of a 
Multifactor Reference Asset, a long LIBOR weighting would represent a 
leverage charge offsetting long positions in the underlying Reference 
Assets.
    Multifactor Index-Linked Securities will be subject to the general 
criteria under NYSE Arca Equities Rule 5.2(j)(6)(A) for initial 
listing. In addition, for a series of Multifactor Index-Linked 
Securities to be appropriate for listing, each component of the 
Multifactor Reference Asset must either: (1) Have been reviewed and 
approved for the trading of options, Investment Company Units, or other 
derivatives under Section 19(b)(2) of the Act \14\ and rules thereunder 
and the conditions set forth in the Commission's approval order 
continued to be satisfied; or (2) meet the applicable requirements for 
initial and continued listing set forth in the relevant section of NYSE 
Arca Equities Rule 5.2(j)(6). In addition, an issue of Multifactor 
Index-Linked Securities must meet both of the following initial listing 
criteria:
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    \14\ 15 U.S.C. 78s(b)(2).
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     The value of the Multifactor Reference Asset must be 
calculated and widely disseminated to the public on at least a 15-
second basis during the time the Multifactor Index-Linked Security 
trades on the Exchange; and
     In the case of Multifactor Index-Linked Securities that 
are periodically redeemable, the indicative value of the Multifactor 
Index-Linked Securities must be calculated and widely disseminated by 
one or more major market data vendors on at least a 15-second basis 
during the time the Multifactor Index-Linked Securities trade on the 
Exchange. The Exchange will commence delisting or removal proceedings 
if:
     Any of the initial listing criteria for Multifactor Index-
Linked Securities are not continuously maintained;
     The aggregate market value or the principal amount of the 
Multifactor Index-Linked Securities publicly held is less than 
$400,000;
     The value of the Multifactor Reference Asset is no longer 
calculated or available and a new Multifactor Reference Asset is 
substituted, unless the new Multifactor Reference Assets meets the 
requirements of NYSE Arca Equities Rule 5.2(j)(6); or
     Such other event shall occur or condition exists that, in 
the opinion of the Exchange, makes further dealings on the Exchange 
inadvisable.

Information Circular

    Upon evaluating the nature and complexity of each Fixed Income 
Index-Linked Security, Futures-Linked Security, or Multifactor Index-
Linked Security, the Exchange represents that it will prepare and 
distribute, if appropriate, an Information Circular to ETP Holders \15\ 
describing the product. Accordingly, the Information Circular will 
disclose the particular structure and corresponding risks of a Fixed 
Income Index-Linked Security, Futures-Linked Security, or Multifactor 
Index-Linked Security traded on the Exchange. In particular, the 
Information Circular will set forth the Exchange's suitability rule 
that requires ETP Holders recommending a transaction in Fixed Income 
Index-Linked Securities, Futures-Linked Securities, or Multifactor 
Index-Linked Securities: (1) To determine that such transaction is 
suitable for the customer (NYSE Arca Equities Rule 9.2(a)); and (2) to 
have a reasonable basis for believing that the customer can evaluate 
the special characteristics, and is able to bear the financial risks, 
of such transaction. In addition, the Information Circular will 
reference the requirement that ETP Holders must deliver a prospectus to 
investors purchasing newly issued Index-Linked Securities prior to or 
concurrently with the confirmation of a transaction. The Information 
Circular will also note that all of the Exchange's equity trading rules 
will be applicable to trading in Fixed Income Index-Linked

[[Page 15553]]

Securities, Futures-Linked Securities, and Multifactor Index-Linked 
Securities. Finally, the Information Circular will discuss the risks 
involved in trading such securities during the Opening and Late Trading 
Sessions \16\ when an updated indicative value or Reference Asset 
value, as applicable, will not be calculated or publicly disseminated.
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    \15\ ETP Holder refers to a sole proprietorship, partnership, 
corporation, limited liability company, or other organization in 
good standing that has been issued an Equity Trading Permit or 
``ETP.'' An ETP Holder must be a registered broker or dealer 
pursuant to Section 15 of the Act. See NYSE Arca Equities Rule 
1.1(n).
    \16\ See supra note 13.
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Surveillance

    The Exchange intends to utilize its existing surveillance 
procedures applicable to derivative products (including Index-Linked 
Securities) to monitor trading in Fixed Income Index-Linked Securities, 
Futures-Linked Securities, and Multifactor Index-Linked Securities. The 
Exchange represents that these procedures are adequate to properly 
monitor Exchange trading of such securities in all trading sessions and 
to deter and detect violations of Exchange rules. The Exchange's 
current trading surveillance focuses on detecting when securities trade 
outside their normal patterns. When such situations are detected, 
surveillance analysis follows and investigations are opened, where 
appropriate, to review the behavior of all relevant parties for all 
relevant trading violations. The Exchange may also obtain information 
via ISG from other exchanges who are members or affiliate members of 
ISG.\17\ In addition, the Exchange also has a generally policy 
prohibiting the distribution of material, non-public information by its 
employees.
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    \17\ The Exchange notes that not all of the instruments 
underlying Index-Linked Securities may trade on exchanges that are 
members or affiliate members of ISG.
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Trading Halts

    If the indicative value or Reference Asset value applicable to a 
series of Index-Linked Securities is not being disseminated as 
required, the Exchange may halt trading during the day on which the 
interruption first occurs. If such interruption persists past the 
trading day in which it occurred, the Exchange will halt trading no 
later than the beginning of the trading day following the interruption.

Firewall Procedures

    Fixed Income Index-Linked Securities, Futures-Linked Securities, 
and Multifactor Index-Linked Securities, like other Index-Linked 
Securities, will be subject to the firewall requirements under NYSE 
Arca Equities Rule 5.2(j)(6)(C). The firewall requirements provide 
that, if the value of an Index-Linked Security is based in whole or in 
part on an index that is maintained by a broker-dealer, the broker-
dealer shall erect a ``firewall'' around the personnel responsible for 
the maintenance of the underlying index or who have access to 
information concerning changes and adjustments to the index, and the 
index shall be calculated by a third party who is not a broker-dealer.
    Furthermore, as provided in NYSE Arca Equities Rule 5.2(j)(6)(C), 
any advisory committee, supervisory board, or similar entity that 
advises an index licensor or administrator or that makes decisions 
regarding the index or portfolio composition, methodology, and related 
matters must implement and maintain, or be subject to, procedures 
designed to prevent the use and dissemination of material, non-public 
information regarding the applicable index or portfolio.

Commentary .01

    The Exchange has also proposed conforming changes to Commentary .01 
to NYSE Arca Equities Rule 5.2(j)(6) relating to the obligations of an 
Exchange ETP Holder acting as a registered Market Maker in order to 
extend its application to Futures-Linked Securities and Multifactor 
Index-Linked Securities to the extent that such securities are 
composed, in part, of Commodity, Currency, or Futures Reference 
Assets.\18\
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    \18\ The Exchange states that Equity Index-Linked Securities and 
Fixed Income Index-Linked Securities are excluded from Commentary 
.01 to NYSE Arca Rule 5.2(j)(6) because such securities are subject 
to the requirements of NYSE Arca Equities Rule 7.26 (Limitations on 
Dealings).
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Act,\19\ in general, and furthers the 
objectives of Section 6(b)(5) of the Act,\20\ in particular, in that it 
is designed to prevent fraudulent and manipulative acts and practices, 
to promote just and equitable principles of trade, to foster 
cooperation and coordination with persons engaged in facilitating 
transactions in securities, to remove impediments to and perfect the 
mechanism of a free and open market and a national market system, and, 
in general, to protect investors and the public interest. The Exchange 
states that the proposed rules applicable to trading pursuant to 
generic listing and trading criteria, together with the Exchange's 
surveillance procedures applicable to trading in the securities covered 
by the proposed rules, serve to foster investor protection.
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    \19\ 15 U.S.C. 78f(b).
    \20\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants or Others

    The Exchange states that it has neither solicited nor received 
written comments on the proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Within 35 days of the date of publication of this notice in the 
Federal Register or within such longer period (i) as the Commission may 
designate up to 90 days of such date if it finds such longer period to 
be appropriate and publishes its reasons for so finding or (ii) as to 
which the Exchange consents, the Commission will:
    A. By order approve such proposed rule change, or
    B. Institute proceedings to determine whether the proposed rule 
change should be disapproved.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://
www.sec.gov/rules/sro.shtml); or
     Send an e-mail to rule-comments@sec.gov. Please include 
File Number SR-NYSEArca-2008-20 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NYSEArca-2008-20. 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

[[Page 15554]]

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, 100 F Street, NE., Washington, DC 20549, on 
official business days between the hours of 10 a.m. and 3 p.m. Copies 
of the filing also will be available for inspection and copying at the 
principal office of the Exchange. All comments received will be posted 
without change; the Commission does not edit personal identifying 
information from submissions. You should submit only information that 
you wish to make available publicly. All submissions should refer to 
File Number SR-NYSEArca-2008-20 and should be submitted on or before 
April 14, 2008.

For the Commission, by the Division of Trading and Markets, pursuant 
to delegated authority.\21\
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    \21\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E8-5793 Filed 3-21-08; 8:45 am]

BILLING CODE 8011-01-P
