
[Federal Register: November 4, 2008 (Volume 73, Number 214)]
[Notices]               
[Page 65709-65712]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04no08-87]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-58873; File No. SR-NYSEArca-2008-110]

 
Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
and Order Granting Accelerated Approval of Proposed Rule Change 
Relating to Listing Shares of the MacroShares $100 Oil Up Trust and the 
MacroShares $100 Oil Down Trust

October 28, 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 October 15, 2008, NYSE Arca, Inc. (``NYSE Arca'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission'') the proposed rule change as described in Items I and 
II below, which Items have been prepared by the Exchange. The 
Commission is publishing this notice and order to solicit comments on 
the proposed rule change from interested persons and to approve 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.
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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 Act,\3\ NYSE 
Arca, through its wholly owned subsidiary NYSE Arca Equities, Inc. 
(``NYSE Arca Equities''), proposes to list and trade under NYSE Arca 
Equities Rule 8.400 (``Paired Trust Shares'') shares of the MacroShares 
$100 Oil Up Trust (``Up Trust'') and the MacroShares $100 Oil Down 
Trust (``Down Trust'', and, together with the Up Trust, the 
``Trusts''). The shares of the Up Trust are referred to as the Up 
MacroShares, and the shares of the Down Trust are referred to as the 
Down MacroShares (collectively, the ``Shares''). The text of the 
proposed rule change is available on the Exchange's Web site at http://
www.nyse.com, at the Exchange's principal office and at the Public 
Reference Room of the Commission.
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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 III below. The Exchange has prepared 
summaries, set forth in sections A, B, and C below, of the most 
significant parts of such statements.

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

1. Purpose
    The Exchange proposes to list and trade under NYSE Arca Equities 
Rule 8.400 (``Paired Trust Shares'') the Up MacroShares (symbol: UOY) 
and the Down MacroShares (symbol: DOY).\4\ The Up MacroShares and the 
Down MacroShares will be offered by the Up Trust and the Down Trust, 
respectively, established by MACRO Securities Depositor LLC, as 
depositor, under the laws of the State of New York. The Trusts are not 
registered with the Commission as investment companies.\5\ The Trusts 
are currently listed on NYSE Alternext US LLC (NYSE Alternext US 
(formerly, the American Stock Exchange LLC (``Amex'')) and are traded 
on the Exchange pursuant to unlisted trading privileges (``UTP'').\6\ 
Prior to listing on the Exchange, the Trusts would be required to 
satisfy the applicable delisting procedures of NYSE Alternext US and 
applicable statutory and regulatory requirements, including, without 
limitation, Section 12 of the

[[Page 65710]]

Act,\7\ relating to listing the MacroShares Units on the Exchange.\8\
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    \4\ The Commission approved trading a similar product on the 
Exchange pursuant to unlisted trading privileges when it approved 
NYSE Arca Equities Rule 8.400. See Securities Exchange Act Release 
No. 55033 (December 29, 2006), 72 FR 1253 (January 10, 2007) (SR-
NYSEArca-2006-75) (approving UTP trading of Claymore MACROshares Oil 
Up Tradeable Shares and Claymore MACROshares Oil Down Tradeable 
Shares). The Commission also approved such product for listing and 
trading on the American Stock Exchange LLC. See Securities Exchange 
Act Release No. 54839 (November 29, 2006), 71 FR 70804 (December 6, 
2006) (SR-Amex-2006-82) (approving listing and trading Claymore 
MACROshares Oil Up Tradeable Shares and Claymore MACROshares Oil 
Down Tradeable Shares).
    \5\ The Shares are being offered by the Trusts under the 
Securities Act of 1933, as amended. On April 17, 2008, the depositor 
filed with the Commission a Registration Statement on Form S-1 for 
both the Up MacroShares (File No. 333-150282-01) (``Up Trust 
Registration Statement'') and the Down MacroShares (File No. 333-
150282-02) (``Down Trust Registration Statement'' and together with 
the Up Trust Registration Statement, the ``Registration 
Statements'').
    \6\ See Securities Exchange Act Release No. 58057 (June 30, 
2008), 73 FR 38474 (July 7, 2008) (SR-Amex-2008-36) (order approving 
listing of the Trusts on the Amex) (``Amex Order''); Securities 
Exchange Act Release No. 58058 (June 30, 2008), 73 FR 38484 (July 7, 
2008) (SR-NYSEArca-2008-65) (order approving trading of the Trusts 
on the Exchange pursuant to UTP) (``NYSE Arca Order'').
    \7\ 15 U.S.C. 78(l).
    \8\ See e-mail from Michael Cavalier, Chief Counsel, NYSE 
Euronext, to Christopher W. Chow, Special Counsel, Commission, dated 
October 16, 2008. The Exchange will seek the voluntary consent of 
the issuer of the MacroShares Units to be delisted from NYSE 
Alternext US and listed on the Exchange. The Exchange notes that its 
approval of the Trusts' listing applications would be required prior 
to listing.
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    The Exchange represents that the Shares satisfy the requirements of 
Rule 8.400 and thereby qualify for listing on the Exchange. 
Descriptions of the Shares and of the Trusts are included in the Amex 
Order. The Shares are Trading Shares as defined in Rule 8.400(b)(1)(B).
    The Trusts have represented to the Exchange that they are relying 
on the exemption provided for passive trusts under Rule 10A-3(c)(7) \9\ 
under the Act with respect to establishment of an independent audit 
committee.
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    \9\ 17 CFR 240.10A-3(c)(7).
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    More information regarding the Shares, the Trusts, the Applicable 
Reference Price of Crude Oil, quarterly distributions, final 
distributions, underlying values, risks, fees and expenses, termination 
triggers, and creation and redemption procedures can be found in the 
Registration Statements and the Amex Order.\10\
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    \10\ Terms relating to the Trusts referred to, but not defined, 
herein are defined in the Registration Statements.
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Availability of Information
    Intraday Indicative Values. Throughout each price determination 
day, NYSE Alternext US, acting as the calculation agent for each Trust, 
will calculate and disseminate, at least every 15 seconds during the 
Exchange's Core Trading Session, through the facilities of the 
Consolidated Tape Association (``CTA''), an estimated value (referred 
to as an ``Intraday Indicative Value'' or ``IIV'') for the underlying 
value per Share of both the Up MacroShares and the Down MacroShares. 
The purpose of this disclosure is to promote liquidity and intraday 
pricing transparency with respect to these estimated per-Share 
underlying values, which can be used in connection with other related 
market information. To enable this calculation, the NYSE Alternext US 
will receive real time price data from the NYMEX through two major 
market data vendors for the light sweet crude oil futures contract of 
the designated maturity that trades on the NYMEX.
    Because the NYMEX market for the light sweet crude oil futures 
contract will be closed for portions of the Core Trading Session, the 
IIV calculated values will become fixed and will not be updated at such 
times that the NYMEX contract is not trading.\11\ Conversely, at times 
when the light sweet crude oil futures contract of the designated 
maturity is trading on NYMEX, those trades will be used to update the 
IIV values.
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    \11\ The IIV calculated during the period following the daily 
opening of trading of the shares on the Exchange but prior to any 
trades taking place on the NYMEX in the relevant light sweet crude 
oil futures contract will be based on the final price of the futures 
contract on the prior trading day.
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    Availability of Other Information and Data. At the end of each 
price determination day, NYSE Alternext US will also calculate the 
premium or discount of the midpoint of the bid/offer for the Up 
MacroShares at the close on the Exchange relative to the underlying 
value of one of those Shares for that price determination day. NYSE 
Alternext US will also perform the same calculation with respect to the 
Down MacroShares. MacroMarkets LLC (``MacroMarkets'') will then post 
these premiums/discounts, together with the end-of-day price 
information for the Shares, on its Web site at http://
www.macromarkets.com and the Exchange will maintain a hyperlink on its 
Web site, http://www.nyse.com, to the MacroMarkets Web site. Further, 
MacroMarkets will post on its Web site the Applicable Reference Price 
of Crude Oil that was reported by NYMEX for any price determination 
day. The Exchange also will disseminate a variety of data with respect 
to the Shares on a daily basis by means of CTA and CQ High Speed Lines, 
including quotation and last sale data information.\12\
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    \12\ See e-mail from Michael Cavalier, Chief Counsel, NYSE 
Euronext, to Christopher W. Chow, Special Counsel, Commission, dated 
October 21, 2008.
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    On each price determination day, State Street Bank and Trust 
Company, the trustee for the Trusts, will calculate the underlying 
value of the Up Trust and the Down Trust and the per-Share underlying 
value of one Up MacroShare and one Down MacroShare, based on the 
Applicable Reference Price of Crude Oil established and reported by 
NYMEX. The trustee will then provide such values to MacroMarkets, which 
will post them on its Web site, and information posted on such Web site 
will be made available to all market participants at the same time. All 
investors and market participants will have access to MacroMarkets' Web 
site at no charge. Information regarding secondary market prices and 
volume of the Shares will be broadly available on a real-time basis 
throughout the trading day on brokers' computer screens and other 
electronic services. The previous day's closing price and trading 
volume information will be published daily in the financial section of 
newspapers.
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. Trading 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 underlying securities; or (2) 
whether other unusual conditions or circumstances detrimental to the 
maintenance of a fair and orderly market are present. Rule 8.400(d)(2) 
sets forth circumstances under which Shares may be halted.
    If the Exchange becomes aware that the underlying value per Share 
of each Up Share and Down Share is not disseminated to all market 
participants at the same time, it will halt trading in the Up 
MacroShares or the Down MacroShares, as the case may be, until such 
time as the underlying value per share is available to all market 
participants.
Trading Rules
    The Exchange deems the Shares to be equity securities, thus 
rendering trading in the Shares subject to the Exchange's existing 
rules governing the trading of equity securities. Shares will trade on 
the NYSE Arca Marketplace from 4 a.m. to 8 p.m. Eastern Time in 
accordance with NYSE Arca Equities Rule 7.34 (Opening, Core, and Late 
Trading Sessions). The Exchange has appropriate rules to facilitate 
transactions in the Shares during all trading sessions.
Surveillance
    The Exchange intends to utilize its existing surveillance 
procedures applicable to derivative securities products, including 
Paired Trust Shares, to monitor trading in the Shares. The Exchange 
represents that these procedures are adequate to properly monitor 
Exchange trading of the Shares in all trading sessions and to deter and 
detect violations of Exchange rules or applicable Federal securities 
laws.
    The Exchange's current trading surveillance focuses on detecting 
securities trading outside their normal patterns. When such situations 
are detected, surveillance analysis follows and investigations are 
opened, where appropriate, to review the behavior of all relevant 
parties for all relevant trading violations.

[[Page 65711]]

    The Exchange may obtain information via the Intermarket 
Surveillance Group (``ISG'') from other exchanges who are members of 
the ISG.\13\
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    \13\ For a list of the current members of the ISG, see http://
www.isgportal.org.
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    In addition, the Exchange also has a general policy prohibiting the 
distribution of material, non-public information by its employees.
Information Bulletin
    Prior to the commencement of trading, the Exchange will inform its 
ETP Holders in an Information Bulletin (``Bulletin'') of the special 
characteristics and risks associated with trading the Shares, including 
risks inherent with trading the Shares during the Opening and Late 
Trading Sessions when the updated IIV is not calculated and 
disseminated. Specifically, the Bulletin will discuss the following: 
(1) What the Shares are; (2) the procedures for purchases and 
redemptions of Shares in MacroShares Units (and that Shares are not 
individually redeemable); (3) 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; 
(4) the requirement that ETP Holders deliver a prospectus to investors 
purchasing newly issued Shares prior to or concurrently with the 
confirmation of a transaction; (5) how information regarding the IIV is 
disseminated; and (6) trading information.
    In addition, the Bulletin will reference that the Shares are 
subject to various fees and expenses described in the Registration 
Statements. The Bulletin will discuss any exemptive, no-action, and 
interpretive relief granted by the Commission from any rules under the 
Act.
2. Statutory Basis
    The basis under the Act for this proposed rule change is the 
requirement under Section 6(b)(5) \14\ that an exchange have rules that 
are designed to prevent fraudulent and manipulative acts and practices, 
to promote just and equitable principles of trade, to remove 
impediments to, and perfect the mechanism of a free and open market 
and, in general, to protect investors and the public interest. The 
Exchange believes that the proposed rule change will allow the listing 
of the Trusts on the Exchange, to the benefit of investors and the 
marketplace. In addition, the listing and trading criteria set forth in 
Rule 8.400 are intended to protect investors and the public interest.
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    \14\ 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

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

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-2008-110 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-2008-110. 
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, 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-2008-110 and should 
be submitted on or before November 25, 2008.

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

    After careful consideration, 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.\15\ In particular, the Commission believes that the proposal 
is consistent with Section 6(b)(5) of the Act,\16\ which requires, 
among other things, that the rules of a national securities exchange 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. The Commission notes that it recently approved the 
listing and trading of the Shares on Amex,\17\ now known as NYSE 
Alternext US, and the trading of the Shares pursuant to UTP on the 
Exchange.\18\
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    \15\ 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).
    \16\ 15 U.S.C. 78f(b)(5).
    \17\ See Amex Order, supra, note 6.
    \18\ See NYSE Arca Order, supra, note 6.
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    The Exchange proposes to list and trade the Shares pursuant to NYSE 
Arca Equities Rule 8.400. NYSE Arca represents that the Shares will 
conform to the existing initial and continued listing criteria under 
such rule.
    The Commission believes 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. The Exchange will 
disseminate a variety of data with respect to the Shares on a daily 
basis by means of CTA and CQ High Speed Lines, including quotation and 
last-sale

[[Page 65712]]

data information. Throughout each price determination day, NYSE 
Alternext U.S. will calculate and disseminate at least every 15 seconds 
during the Exchange's Core Trading Session, through the facilities of 
the CTA, an IIV for the underlying value per Share of both the Up 
MacroShares and the Down MacroShares.\20\
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    \19\ 15 U.S.C. 78k-1(a)(1)(C)(iii).
    \20\ See supra note 11 and accompanying text.
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    On each price determination day, the trustee will calculate the 
underlying values of the Up Trust and the Down Trust, along with the 
per-Share underlying value of one Up MacroShare and one Down 
MacroShare, based on the Applicable Reference Price of Crude Oil 
established and reported by NYMEX. The trustee then will provide such 
values to MacroMarkets, which will post them on its Web site, and the 
information posted on such Web site will be made available to all 
market participants at the same time. All investors and market 
participants will have access to MacroMarkets' Web site at no charge.
    In addition, at the end of each price determination day, NYSE 
Alternext U.S. will calculate the premium or discount of the midpoint 
of the bid/offer for the Up MacroShares at the close on the Exchange 
relative to the underlying value of one of those Shares for that price 
determination day. NYSE Alternext U.S. also will perform the same 
calculation with respect to the Down MacroShares. MacroMarkets will 
then post these premiums/discounts, together with the end-of-day price 
information for the Shares, on its Web site (http://
www.macromarkets.com) and the Exchange will maintain a hyperlink on its 
Web site. Additionally, MacroMarkets will post on its Web site the 
Applicable Reference Price of Crude Oil that was reported by NYMEX for 
any price determination day.
    Lastly, the Exchange states that information regarding secondary 
market prices and volume of the Shares will be broadly available on a 
real-time basis throughout the trading day on brokers' computer screens 
and other electronic services. The previous day's closing price and 
trading volume information will be published daily in the financial 
section of newspapers.
    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 NYSE Arca Equities Rule 
8.400(d)(1)(ii) requires that the Exchange obtain a representation on 
behalf of the Trusts, prior to listing, that the underlying value per 
Share of each Up Trust and the Down Trust will be calculated daily and 
will be made available to all market participants at the same time. 
Moreover, NYSE Arca Equities Rule 8.400(d)(2)(ii) requires that the 
Exchange remove the Shares from listing if the intraday value of the 
Reference Price \21\ is no longer calculated or available on at least a 
15-second delayed basis during the time the Shares trade on the 
Exchange. Additionally, NYSE Arca Equities Rule 8.400(d)(2)(iii) 
requires the Exchange to remove the Shares from listing if the IIV is 
no longer made available as required. With respect to trading halts, 
NYSE Arca Equities Rule 8.400(d)(2) provides that, if the intraday 
value of the Reference Price or the IIV is not being disseminated as 
required, the Exchange may halt trading during the day in which the 
interruption to the dissemination of the applicable value occurs; if 
such interruption persists past the trading day in which it occurred, 
the Exchange is required to halt trading no later than the beginning of 
the trading following the interruption. The Exchange further represents 
that, if the Exchange becomes aware that the underlying value per Share 
of each Up Trust and Down Trust is not disseminated to all market 
participants at the same time, it will halt trading in the Up 
MacroShares or the Down MacroShares, as the case may be, until such 
time as the underlying value per share is available to all market 
participants. Further, the Exchange may consider all relevant factors 
in exercising its discretion to halt or suspend trading in the Shares. 
Trading may be halted because of market conditions or for reasons that 
make trading in the Shares inadvisable, including: (1) the extent to 
which trading is not occurring in the underlying securities; or (2) 
whether other unusual conditions or circumstances detrimental to the 
maintenance of a fair and orderly market are present.
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    \21\ See NYSE Arca Equities Rule 8.400(c). In the case of the 
Shares, the Reference Price is the Applicable Reference Price of 
Crude Oil.
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    The Commission further believes that the trading rules and 
procedures to which the Shares will be subject pursuant to this 
proposal are consistent with the Act. The Exchange has represented that 
the Shares are equity securities subject to NYSE Arca's rules governing 
the trading of equity securities.
    In support of this proposal, the Exchange has made the following 
representations:
    (1) The Shares satisfy the requirements of NYSE Arca Equities Rule 
8.400, which includes the initial and continued listing criteria for 
Paired Trust Shares.
    (2) The Exchange's surveillance procedures are adequate to properly 
monitor trading of the Shares in all trading sessions and to deter and 
detect violations of Exchange rules or applicable federal securities 
laws.
    (3) The Exchange will distribute an Information Bulletin, the 
contents of which are more fully described above, to ETP Holders in 
connection with the trading of the Shares.
    This approval order is based on the Exchange's representations.
    The Commission finds good cause, pursuant to Section 19(b)(2) of 
the Act,\22\ for approving the proposed rule change prior to the 30th 
day after the date of publication of notice in the Federal Register. 
The Commission notes that it has previously approved the listing and 
trading of the Shares on Amex \23\ and believes that the Exchange's 
proposal to list and trade such Shares does not appear to present any 
novel or significant regulatory issues that should cause it to revisit 
that previous finding. As such, the Commission believes that 
accelerating approval of this proposal should benefit investors by 
creating, without undue delay, additional competition in the market for 
such products.
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    \22\ 15 U.S.C. 78s(b)(2).
    \23\ See Amex Order, supra, note 6. The Shares have also been 
approved for trading on the Exchange pursuant to UTP. See NYSE Arca 
Order, supra, note 6.
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V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\24\ that the proposed rule change (SR-NYSEArca-2008-110) be, and 
it hereby is, approved on an accelerated basis.
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    \24\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\25\
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    \25\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Acting Secretary.
 [FR Doc. E8-26211 Filed 11-3-08; 8:45 am]

BILLING CODE 8011-01-P
