
[Federal Register: September 17, 2008 (Volume 73, Number 181)]
[Notices]               
[Page 53915-53918]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17se08-148]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-58512; File No. SR-NYSEArca-2008-85]

 
Self-Regulatory Organizations; NYSE Arca, Inc.; Order Granting 
Accelerated Approval of a Proposed Rule Change Relating to the Listing 
and Trading of Shares of the PowerShares Active U.S. Real Estate Fund

 September 11, 2008.
    On August 11, 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'') pursuant to Section 19(b)(1) of the 
Securities Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 
thereunder,\2\ a proposed rule change to list and trade shares 
(``Shares'') of the PowerShares Active U.S. Real Estate Fund (``Fund'') 
under NYSE Arca Equities Rule 8.600. The proposed rule change was 
published in the Federal Register on August 26, 2008 for a 15-day 
comment period.\3\ The Commission received no comments on the proposal. 
This order grants approval to the proposed rule change on an 
accelerated basis.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 58395 (August 20, 
2008), 73 FR 50382.
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I. Description of the Proposal

    The Exchange proposes to list and trade the Shares pursuant to NYSE 
Arca Equities Rule 8.600, which governs the listing of Managed Fund 
Shares.\4\ The Exchange states that the Shares will conform to the 
initial and continued listing criteria under that rule.
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    \4\ 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) (``1940 Act'') organized as an 
open-end management 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 a combination thereof.
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    The Shares will be offered by PowerShares Actively Managed 
Exchange-Traded Fund Trust (``Trust''),\5\ a business trust organized 
under the laws of the State of Delaware and registered with the 
Commission as an open-end management investment company. The Exchange 
states that the Fund will not purchase or sell securities in markets 
outside the United States. The Exchange represents that, for initial 
and/or continued listing, the Fund will be in compliance with Rule 10A-
3 under the Act,\6\ as provided by NYSE Arca Equities Rule 5.3.
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    \5\ The Trust is registered under the 1940 Act. On June 26, 
2008, the Trust filed with the Commission a Registration Statement 
for the Fund on Form N-1A under the Securities Act of 1933 (15 
U.S.C. 77a) and under the 1940 Act relating to the Fund (File Nos. 
333-147622 and 811-22148) (``Registration Statement''). The Exchange 
states that the description of the operation of the Trust herein is 
based on the Registration Statement.
    \6\ 17 CFR 240.10A-3.
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A. Description of the Fund

    Invesco PowerShares Capital Management LLC (``Adviser'') is the 
investment adviser for the Fund and is registered as an ``investment 
adviser'' under the Investment Advisers Act of 1940 (``Advisers 
Act'').\7\ Invesco Institutional (N.A.), Inc. is the Fund's primary 
investment sub-adviser and is also registered as an ``investment 
adviser'' under the Advisers Act. Invesco Aim Distributors, Inc. (the 
``Distributor'') serves as the principal underwriter and distributor 
for the Fund.\8\
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    \7\ 15 U.S.C. 80b-1. The Exchange represents that the Adviser 
and its related personnel are subject to Rule 204A-1 under the 
Advisers Act (17 CFR 275.204A-1). This rule specifically requires 
the adoption of a code of ethics by an investment adviser to 
include, at a minimum: (1) A standard or standards of business 
conduct that reflect the fiduciary obligations of such investment 
adviser and its supervised persons; (2) provisions requiring its 
supervised persons to comply with applicable federal securities 
laws; (3) provisions that require all access persons to report, and 
such investment adviser to review, their personal securities 
transactions and holdings periodically as specifically set forth in 
Rule 204A-1; (4) provisions requiring supervised persons to report 
any violations of the code of ethics promptly to the chief 
compliance officer (``CCO'') or, provided the CCO also receives 
reports of all violations, to other persons designated in the code 
of ethics; and (5) provisions requiring the investment adviser to 
provide each of its supervised persons with a copy of the code of 
ethics and any amendments, and requiring its supervised persons to 
provide to such investment adviser written acknowledgement of their 
receipt of the code and any amendments. 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 rules adopted thereunder, (ii) reviewed no less frequently 
than annually the adequacy of the policies and procedures 
established pursuant to (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 (i) above. See 17 CFR 275.206(4)-7.
    \8\ The Exchange states that the Adviser is affiliated with the 
Distributor, a broker-dealer. As required by Commentary .07 to NYSE 
Arca Equities Rule 8.600, the Exchange represents that the Adviser 
has implemented a ``fire wall'' with respect to such broker-dealer 
regarding access to information concerning the composition and/or 
changes to the Fund's portfolio. Commentary .07 to NYSE Arca 
Equities Rule 8.600 also requires personnel, who make decisions on 
the portfolio composition of the Fund, must be subject to procedures 
designed to prevent the use and dissemination of material nonpublic 
information regarding the applicable Fund's portfolio.
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    The Exchange states that, according to the Registration Statement, 
the Fund has an investment objective of high total return through 
growth of capital and current income. It seeks to achieve its 
investment objective by investing, under normal market conditions, at 
least 80% of its assets in securities of companies that are principally 
engaged in the U.S. real estate industry.\9\ Specifically, the Fund 
plans to invest principally in equity real estate investment trusts 
(``REITs''). Equity REITs pool investors'' funds for investments 
primarily in real estate properties or real estate-related loans (e.g., 
mortgages). The Fund may also invest in real estate operating companies 
(``REOCs''), as well as securities of other companies

[[Page 53916]]

principally engaged in the U.S. real estate industry. REOCs are similar 
to REITs, except that REOCs reinvest their earnings into the business, 
rather than distributing them to unit-holders like REITs. The 80% 
investment policy is non-fundamental and requires 60 days' prior 
written notice to shareholders before it can be changed. In 
constructing the portfolio, the sub-advisers (as described in the 
Registration Statement) analyze quantitative and statistical metrics to 
identify attractively priced securities. The security and portfolio 
evaluation process is generally conducted monthly. The sub-advisers 
will consider selling or reducing a security position if (1) the 
relative attractiveness of a security falls below desired levels, (2) a 
particular security's risk/return profile changes significantly, or (3) 
a more attractive investment opportunity is identified.
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    \9\ A company is considered to be principally engaged in the 
U.S. real estate industry if: (i) It derives 50% of its revenues or 
profits from the ownership, leasing, construction, financing, or 
sale of U.S. real estate; or (ii) it has at least 50% of the value 
of its assets invested in U.S. real estate.
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    In addition, creations and redemptions of Shares will occur in 
large specified blocks referred to as ``Creation Units.'' The Creation 
Unit size for the Fund is 50,000 Shares. The net asset value (``NAV'') 
of the Fund will normally be determined as of the close of the regular 
trading session on the New York Stock Exchange LLC (ordinarily 4 p.m. 
Eastern time or ``ET'') on each business day.

B. Availability of Information

    The Fund's Web site (www.powershares.com), which will be publicly 
available at no charge prior to the public offering of Shares, will 
include a form of the prospectus for the Fund that may be downloaded. 
The Web site will include additional quantitative information updated 
on a daily basis, including: (1) Daily trading volume, the prior 
business day's reported closing price, NAV and the mid-point of the 
bid/ask spread at the time of calculation of such NAV (``Bid/Ask 
Price''),\10\ 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),\11\ that will form the basis 
for the Fund's calculation of NAV at the end of the business day.\12\
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    \10\ The Bid/Ask Price of the Fund is determined using 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.
    \11\ The Disclosed Portfolio means the identities and quantities 
of the securities and other assets held by the Fund that will form 
the basis for the calculation of NAV at the end of the business day. 
See NYSE Arca Equities Rule 8.600(c)(2).
    \12\ 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.
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    Investors can also obtain the Trust's Statement of Additional 
Information (``SAI''), the Fund's Shareholder Reports, and its 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.
    Information regarding market price and trading volume of the Shares 
is and 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 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. In addition, the Portfolio Indicative Value (``PIV''), as defined 
in NYSE Arca Equities Rule 8.600(c)(3),\13\ will be disseminated by the 
Exchange at least every 15 seconds during the Core Trading Session 
through the facilities of CTA. The dissemination of the PIV, together 
with the Disclosed Portfolio, will allow investors to determine the 
value of the underlying portfolio of a Fund on a daily basis and to 
provide a close estimate of that value throughout the trading day.
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    \13\ The Portfolio Indicative Value is the estimated indicative 
value of a Managed Fund Share based on current information regarding 
the value of the securities and other assets in the Disclosed 
Portfolio. See NYSE Arca Equities Rule 8.600(c)(3).
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    The Exchange states that more information regarding the Shares and 
the Fund, including investment strategies, risks, creation and 
redemption procedures, fees, portfolio holdings disclosure policies, 
distributions, and taxes can be found in the Registration 
Statement.\14\
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    \14\ See supra note 5. All terms relating to the Fund that are 
referred to, but not defined in, the proposed rule change are 
defined in the Registration Statement.
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C. Initial and Continued Listing Criteria

    The Fund will be subject to the initial and continued listing 
criteria of NYSE Arca Equities Rule 8.600(d). The Exchange established 
that a minimum of 100,000 Shares will be required to be outstanding at 
the time of commencement of trading on the Exchange. In addition, the 
Exchange has represented that it will obtain a representation from the 
Fund 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.

D. 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.\15\ Trading in the Shares 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 comprising the 
Disclosed Portfolio and/or the financial instruments 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.
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    \15\ See Commentary .04 to NYSE Arca Equities Rule 7.12.
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E. 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. The Shares will trade 
on the NYSE Arca Marketplace from 4 a.m. to 8 p.m. ET, in accordance 
with NYSE Arca Equities Rule 7.34 (Trading Sessions). The Exchange 
states that it has appropriate rules to facilitate transactions in the 
Shares during all trading sessions (Opening, Core Trading, and Late 
Trading Sessions). The minimum trading increment for the Shares on the 
Exchange will be $0.01.

F. 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

[[Page 53917]]

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 
states that its 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 further states that it may obtain information via the 
Intermarket Surveillance Group (``ISG'') from other exchanges who are 
members of ISG. In addition, the Exchange states that it has a general 
policy prohibiting the distribution of material, non-public information 
by its employees.

G. Information Bulletin

    Prior to the commencement of trading, the Exchange will inform its 
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 
PIV will not be calculated or publicly disseminated; (4) how 
information regarding the PIV is disseminated; (5) the requirement that 
ETP Holders deliver a prospectus to 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 Act. The 
Bulletin will also disclose that the NAV for the Shares will be 
calculated after 4 p.m. ET each trading day.

II. Discussion and Commission's Findings

    The Commission has carefully reviewed the proposed rule change and 
finds that it is consistent with the requirements of Section 6 of the 
Act \16\ and the rules and regulations thereunder applicable to a 
national securities exchange.\17\ In particular, the Commission finds 
that the proposal is consistent with Section 6(b)(5) of the Act,\18\ 
which requires, among other things, that the Exchange's rules be 
designed to promote just and equitable principles of trade, to remove 
impediments to and perfect the mechanism of a free and open market and 
a national market system, and, in general, to protect investors and the 
public interest.
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    \16\ 15 U.S.C. 78f.
    \17\ In approving this proposed rule change the Commission has 
considered the proposed rule's impact on efficiency, competition, 
and capital formation. See 15 U.S.C. 78c(f).
    \18\ 15 U.S.C. 78f(b)(5).
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    The Commission finds that the proposal to list and trade the Shares 
on the Exchange is consistent with Section 11A(a)(1)(C)(iii) of the 
Act,\19\ which sets forth Congress' 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. Quotation and last-sale 
information for the Shares will be available via the CTA high-speed 
line, and the Exchange will disseminate the PIV at least every 15 
seconds during the Core Trading Session. In addition, the Fund will 
make available on its Web site the Disclosed Portfolio that will form 
the basis for its calculation of the NAV, which will be determined as 
of the close of the regular trading session on the New York Stock 
Exchange LLC.
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    \19\ 15 U.S.C. 78k-1(a)(1)(C)(iii).
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    The Exchange further states that information regarding the market 
price and volume of the Shares will be continually available on a real-
time basis throughout the day via electronic services, and that the 
previous day's closing price and trading volume information for the 
Shares will be published daily in the financial sections of newspapers. 
The Fund's Web site, which will be publicly accessible at no charge, 
will include additional quantitative information updated on a daily 
basis, including: (1) Daily trading volume, the prior business day's 
reported closing price, NAV, the Bid/Ask Price, 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.
    The Commission also believes that the proposal to list and trade 
the Shares is reasonably designed to promote fair disclosure of 
information that may be necessary to price the Shares appropriately and 
to prevent trading when a reasonable degree of transparency cannot be 
assured. The Commission notes that the Exchange will obtain a 
representation from the Fund 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. Additionally, if 
it becomes aware that the NAV per Share or the Disclosed Portfolio is 
not disseminated daily to all market participants at the same time, the 
Exchange will halt trading in the Shares until that information is 
available to all market participants.\20\ Further, if the PIV is not 
being disseminated as required, the Exchange may halt trading during 
the day in which the disruption occurs and, if the interruption 
persists past the day in which it occurred, the Exchange will halt 
trading no later than the beginning of the trading day following the 
interruption.\21\ The Commission notes that the Exchange represents 
that the Adviser has implemented a ``fire wall'' between it and the 
Distributor, an affiliated broker-dealer, regarding access to 
information concerning the composition and/or changes to the Fund's 
portfolio, as required by Commentary .07 to NYSE Arca Equities Rule 
8.600. Finally, the Commission notes that the Reporting Authority, as 
defined in NYSE Arca Equities Rule 8.600(d)(2)(B)(ii),\22\ that 
provides the Disclosed Portfolio must implement and maintain, or be 
subject to, procedures designed to prevent the use and dissemination of 
material non-public information regarding the actual components of the 
portfolio.
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    \20\ See NYSE Arca Equities Rule 8.600(d)(2)(D).
    \21\ See id.
    \22\ The term ``Reporting Authority'' with respect to a 
particular series of Managed Fund Shares means NYSE Arca Equities, 
an institution, or a reporting service designed by NYSE Arca 
Equities or by the exchange that lists a particular series of 
Managed Fund Shares (if NYSE Arca Equities is trading such series 
pursuant to unlisted trading privileges) as the official source for 
calculating and reporting information relating to such series 
including, but not limited to, the PIV, Disclosed Portfolio, amount 
of any cash distribution to holders of Managed Fund Shares, NAV, or 
other information relating to the issuance, redemption, or trading 
of Managed Fund Shares. See NYSE Arca Equities Rule 8.600(c)(4).
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    The Exchange has represented that the Shares are equity securities 
subject to the Exchange's rules governing the trading of equity 
securities. In support

[[Page 53918]]

of this proposal, the Exchange has made the following representations:
    (1) The Shares will conform to the initial and continued listing 
criteria under NYSE Arca Equities Rule 8.600.
    (2) The Exchange's surveillance 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.
    (3) Prior to the commencement of trading, the Exchange will inform 
its ETP Holders in a Bulletin of the special characteristics and risks 
associated with trading the Shares. Specifically, the Information 
Circular will discuss the following: (a) The procedures for purchases 
and redemptions of Shares in Creation Unit aggregations (and that 
Shares are not individually redeemable); (b) 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; (c) the risks involved in trading the Shares during the 
Opening and Late Trading Sessions when an updated PIV will not be 
calculated or publicly disseminated; (d) how information regarding the 
PIV is disseminated; (e) the requirement that ETP Holders deliver a 
prospectus to investors purchasing newly issued Shares prior to or 
concurrently with the confirmation of a transaction; and (f) trading 
information.
    (4) The Fund will be in compliance with Rule 10A-3 under the 
Act,\23\ as provided by NYSE Arca Equities Rule 5.3.
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    \23\ See supra note 6.
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    (5) The Fund will not purchase or sell securities in markets 
outside the United States. This approval order is based on the 
Exchange's representations.
    For the foregoing reasons, the Commission finds that the proposed 
rule change is consistent with Section 6(b)(5) of the Act \24\ and the 
rules and regulations thereunder applicable to a national securities 
exchange.
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    \24\ 15 U.S.C. 78f(b)(5).
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III. Accelerated Approval

    The Commission finds good cause, pursuant to Section 19(b)(2) of 
the Act,\25\ for approving the proposal prior to the thirtieth day 
after the date of publication of the Notice in the Federal Register. 
The Commission notes that it has approved the listing and trading on 
the Exchange of shares of other actively managed exchange-traded funds 
that are similar to the Shares of the Fund \26\ and that it has 
received no comments regarding the proposed rule change. The Commission 
finds that the proposed rule change does not raise any novel regulatory 
issues and believes that accelerating approval of this proposal should 
benefit investors by creating, without undue delay, additional 
competition in the market for Managed Fund Shares.
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    \25\ 15 U.S.C. 78s(b)(2).
    \26\ See, e.g., Securities Exchange Act Release No. 57619 (April 
4, 2008), 73 FR 19544 (April 10, 2008) (SR-NYSEArca-2008-25) 
(approving the listing and trading of shares of the PowerShares 
Active AlphaQ Fund, the PowerShares Active Alpha Multi-Cap Fund, the 
PowerShares Active Mega-Cap Portfolio, and the PowerShares Active 
Low Duration Portfolio).
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IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\27\ that the proposed rule change (SR-NYSEArca-2008-85) be, and it 
hereby is, approved on an accelerated basis.
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    \27\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\28\
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    \28\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-21706 Filed 9-16-08; 8:45 am]

BILLING CODE 8010-01-P
