
[Federal Register: October 2, 2008 (Volume 73, Number 192)]
[Notices]               
[Page 57399-57401]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02oc08-125]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-58647; File No. SR-NYSEArca-2008-99]

 
Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change Relating to the 
ProShares Trust II

September 25, 2008.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Exchange Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby 
given that on September 18, 2008, NYSE Arca, Inc. (``NYSE Arca'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission'') the proposed rule change 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.
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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

    Pursuant to the provisions of Section 19(b)(1) of the Exchange 
Act,\3\ NYSE Arca, through its wholly-owned subsidiary NYSE Arca 
Equities, Inc. (``NYSE Arca Equities''), is submitting this proposed 
rule change in connection with the listing and trading on the Exchange 
of shares (``Shares'') of fourteen (14) funds (``Funds'') of ProShares 
Trust II (formerly known as Commodities & Currency Trust) (``Trust'') 
based on several currencies, commodities and commodities indexes, 
relating to the names of the Trust and the Funds, the Funds' Web site 
disclosure relating to the availability of information regarding the 
Shares, and the expected price of the Shares at commencement of 
trading. The text of the proposed rule change is available on the 
Exchange's Web site at www.nyse.com, at the Exchange's principal office 
and at the Commission's Public Reference Room.
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    \3\ 15 U.S.C. 78s(b)(1).
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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 self-regulatory organization 
included statements concerning the purpose of, and basis for, the 
proposed rule change and discussed any comments it received on the 
proposed rule change. The text of 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 parts of such statements.

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

1. Purpose
    The Commission has approved the listing of the Shares on the 
Exchange pursuant to Section 19(b)(2) \4\ of the Exchange Act. The 
Exchange intends to list and trade the Shares pursuant to NYSE Arca 
Equities Rule 8.200, Commentary .02, which permits the trading of Trust 
Issued Receipts (``TIRs'') either by listing or pursuant to unlisted 
trading privileges (``UTP'').\5\ The Commission previously approved the 
Shares for listing on the American Stock Exchange LLC (``Amex'') \6\ 
and for trading on the Exchange pursuant to UTP.\7\ The Exchange is 
filing this proposal to reflect changes to the names of the Trust and 
the Funds, to clarify the Funds' Web site disclosure relating to the 
availability of information regarding the Shares, and to correct a 
representation in the NYSE Arca Order regarding the expected price of 
the Shares at commencement of trading. Additional information regarding 
the Funds and the Trust is included in the NYSE Arca Order and the Amex 
Order.
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    \4\ 15 U.S.C. 78(s)(b)(2).
    \5\ See Securities Exchange Act Release No. 58457 (September 3, 
2008), 73 FR 52711 (September 10, 2008) (SR-NYSEArca-2008-91) 
(``NYSE Arca Order'').
    \6\ See Securities Exchange Act Release No. 58161 (July 15, 
2008), 73 42380 (July 21, 2008) (SR-Amex-2008-39). Notice of the 
Amex proposed rule change was published in Securities Exchange Act 
Release No. 57932 (June 5, 2008), 73 FR 33467 (June 12, 2008) 
(``Amex Order'')
    \7\ See Securities Exchange Act Release No. 58162 (July 15, 
2008), 73 FR 42391 (July 21, 2008) (SR-NYSEArca-2008-73).
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    In the NYSE Arca Order, the Commission approved listing on the 
Exchange of the following Funds of the Trust (formerly known as 
Commodities & Currency Trust): (1) Ultra DJ-AIG Commodity ProShares, 
(2) UltraShort DJ-AIG Commodity ProShares, (3) Ultra DJ-AIG Agriculture 
ProShares, (4) UltraShort DJ-AIG Agriculture ProShares, (5) Ultra DJ-
AIG Crude Oil ProShares, (6) UltraShort DJAIG Crude Oil ProShares, (7) 
Ultra Gold ProShares, (8) UltraShort Gold ProShares, (9) Ultra Silver 
ProShares, (10) UltraShort Silver ProShares, (11) Ultra Euro ProShares, 
(12) UltraShort Euro ProShares, (13) Ultra Yen ProShares and (14) 
UltraShort Yen ProShares. The Trust has advised

[[Page 57400]]

the Exchange that the Trust intends to rebrand the Funds as follows: 
(1) ProShares Ultra DJ-AIG Commodity, (2) ProShares UltraShort DJ-AIG 
Commodity, (3) ProShares Ultra DJ-AIG Agriculture, (4) ProShares 
UltraShort DJ-AIG Agriculture, (5) ProShares Ultra DJ-AIG Crude Oil, 
(6) ProShares UltraShort DJAIG Crude Oil, (7) ProShares Ultra Gold, (8) 
ProShares UltraShort Gold, (9) ProShares Ultra Silver, (10) ProShares 
UltraShort Silver, (11) ProShares Ultra Euro, (12) ProShares UltraShort 
Euro, (13) ProShares Ultra Yen and (14) ProShares UltraShort Yen.
Availability of Information Regarding the Shares
    To clarify the representations made in the NYSE Arca Order 
regarding availability of information, the Web sites for the Funds and/
or the Exchange, which are publicly accessible at no charge, will 
contain the following information: (a) The most current NAV per Share; 
(b) the reported closing price; (c) calculation of the premium or 
discount of such price against the NAV per Share; (d) data in chart 
form displaying the frequency distribution of discounts and premiums of 
the reported closing price against the NAV per Share, within 
appropriate ranges for each of the four (4) previous calendar quarters; 
(e) the prospectus; and (f) other applicable quantitative information.
    All other information relating to availability of information 
regarding the Shares remains as stated in the NYSE Arca Order.
Criteria for Initial and Continued Listing.
    To correct a representation made in the NYSE Arca Order regarding 
the criteria for initial and continued listing, the price of the Shares 
is expected to be in a range from $20 to $70 per Share at the 
commencement of trading on the Exchange. The Shares will not be subject 
to an initial offering period as described in the Amex Order and the 
NYSE Arca Order and the expected price range does not relate to any 
such offering period.
2. Statutory Basis
    The proposed rule change is consistent with Section 6(b) \8\ of the 
Exchange Act in general and furthers the objectives of Section 6(b)(5) 
\9\ 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 regulating, clearing, settling, processing 
information with respect to, and facilitating transaction in 
securities, and, in general to protect investors and the public 
interest. The proposal provides clarifying information regarding the 
operation of the Funds. The Exchange believes that the proposal will 
facilitate the listing and trading of additional types of commodity and 
currency-based investments that will enhance competition among market 
participants, to the benefit of investors and the marketplace.
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    \8\ 15 U.S.C. 78f(b).
    \9\ 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 purpose of the Exchange Act.

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

    No written comments were solicited or received with respect to the 
proposed rule change.

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

    The Exchange has designated the proposed rule change as one that: 
(i) Does not significantly affect the protection of investors or the 
public interest; (ii) does not impose any significant burden on 
competition; and (iii) by its terms, does not become operative for 30 
days from the date on which it was filed, or such shorter time as the 
Commission may designate if consistent with the protection of investors 
and the public interest. Therefore, the foregoing proposed rule change 
has become effective pursuant to Section 19(b)(3)(A) of the Exchange 
Act \10\ and Rule 19b-4(f)(6) thereunder.\11\
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    \10\ 15 U.S.C. 78s(b)(3)(A).
    \11\ 17 CFR 240.19b-4(f)(6).
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    A proposed rule change filed under Rule 19b-4(f)(6) normally does 
not become operative until 30 days after the date of filing.\12\ 
However, Rule 19b-4(f)(6)(iii) \13\ permits the Commission to designate 
a shorter time if such action is consistent with the protection of 
investors and the public interest. In view of the immediate nature of 
the relief requested, the Exchange seeks to have the proposed 
amendments become operative immediately. The Exchange requests that the 
Commission waive the 30-day delayed operative date, so that the 
proposed rule change may become immediately operative pursuant to 
Section 19(b)(3)(A) and Rule 19b-4(f)(6) thereunder. The Exchange 
believes that waiver of the 30-day operative delay is consistent with 
the protection of investors and the public interest because the 
proposed rule change should benefit investors by clarifying information 
regarding the names and operation of the Funds. The Commission believes 
that waiving the 30-day operative delay is consistent with the 
protection of investors and the public interest. The Commission 
therefore grants the Exchange's request and designates the proposal to 
be operative upon filing.\14\
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    \12\ Id. In addition, Rule 19b-4(f)(6)(iii) requires a s self-
regulatory organization to give the Commission written notice of its 
intent to file the proposed rule change at least five business days 
prior to the date of filing of the proposed rule change, or such 
shorter time as designated by the Commission. The Exchange has 
satisfied this requirement.
    \13\ 17 CFR 240.19b-4(f)(6).
    \14\ For purposes only of waiving the 30-day operative delay, 
the Commission has considered the proposed rule's impact on 
efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
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    At any time within 60 days of the filing of the proposed rule 
change, the Commission may summarily abrogate such rule change if it 
appears to the Commission that such action is necessary or appropriate 
in the public interest, for the protection of investors, or otherwise 
in furtherance of the purposes of the Exchange Act.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Exchange 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-2008-99 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NYSEArca-2008-99. 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

[[Page 57401]]

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, 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 self-regulatory organization. 
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-
99 and should be submitted on or before October 23, 2008.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\15\
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    \15\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Acting Secretary.
 [FR Doc. E8-23192 Filed 10-1-08; 8:45 am]

BILLING CODE 8011-01-P
