
[Federal Register Volume 77, Number 117 (Monday, June 18, 2012)]
[Notices]
[Pages 36314-36321]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-14767]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-67183; File No. SR-NYSEArca-2012-55]


Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
of Proposed Rule Change Relating to the Listing and Trading of the 
STARTM Global Buy-Write ETF Under NYSE Arca Equities Rule 
8.600

June 12, 2012.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'' or ``Exchange Act'') \1\ and Rule 19b-4 thereunder,\2\ notice 
is hereby given that, on May 31, 2012, NYSE Arca, Inc. (``Exchange'' or 
``NYSE Arca'') 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 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

    The Exchange proposes to list and trade the following under NYSE 
Arca Equities Rule 8.600 (``Managed Fund Shares''): STARTM 
Global Buy-Write ETF. The text of the proposed rule change is available 
on the Exchange's Web site at www.nyse.com, at the principal office of 
the Exchange, and at the Commission's Public Reference Room.

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 those 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 Exchange proposes to list and trade shares (``Shares'') of the 
following under NYSE Arca Equities Rule 8.600, which governs the 
listing and trading of Managed Fund Shares: \3\ STARTM 
Global Buy-Write ETF (``Fund'').\4\ The Shares will be offered by 
AdvisorShares Trust (``Trust''), a statutory trust organized

[[Page 36315]]

under the laws of the State of Delaware and registered with the 
Commission as an open-end management investment company.\5\ The 
investment adviser to the Fund is AdvisorShares Investments, LLC 
(``Adviser''). Partnervest Advisory Services, LLC serves as investment 
sub-adviser to the Fund (``Partnervest'' or ``Sub-Adviser'') and 
provides day-to-day portfolio management of the Fund. Foreside Fund 
Services, LLC (``Distributor'') is the principal underwriter and 
distributor of the Fund's Shares. The Bank of New York Mellon 
(``Administrator'') serves as administrator, custodian, and transfer 
agent for the Fund.
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    \3\ 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-1) (``1940 Act'') organized as an 
open-end 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 
combination thereof.
    \4\ The Commission approved NYSE Arca Equities Rule 8.600 and 
the listing and trading of certain funds of the PowerShares Actively 
Managed Exchange-Traded Funds Trust on the Exchange pursuant to Rule 
8.600 in Securities Exchange Act Release No. 57619 (April 4, 2008), 
73 FR 19544 (April 10, 2008) (SR-NYSEArca-2008-25). The Commission 
also previously approved listing and trading on the Exchange of a 
number of actively managed funds under Rule 8.600. See, e.g., 
Securities Exchange Act Release Nos. 57801 (May 8, 2008), 73 FR 
27878 (May 14, 2008) (SR-NYSEArca-2008-31) (order approving Exchange 
listing and trading of twelve actively-managed funds of the 
WisdomTree Trust); 60981 (November 10, 2009), 74 FR 59594 (November 
18, 2009) (SR-NYSEArca-2009-79) (order approving listing and trading 
of five fixed income funds of the PIMCO ETF Trust); 63076 (October 
12, 2010), 75 FR 63874 (October 18, 2010) (SR-NYSEArca-2010-79) 
(order approving listing and trading of Cambria Global Tactical 
ETF); 63329 (November 17, 2010), 75 FR 71760 (November 24, 2010) 
(SR-NYSEArca-2010-86) (order approving listing and trading of 
Peritus High Yield ETF).
    \5\ The Trust is registered under the 1940 Act. On October 28, 
2011, the Trust filed an amendment to its registration statement on 
Form N-1A under the Securities Act of 1933 (15 U.S.C. 77a) (``1933 
Act'') and under the 1940 Act relating to the Fund (File Nos. 333-
157876 and 811-22110) (``Registration Statement''). The description 
of the operation of the Trust and the Fund herein is based, in part, 
on the Registration Statement. In addition, the Commission has 
issued an order granting certain exemptive relief to the Trust under 
the 1940 Act. See Investment Company Act Release No. 28822 (July 20, 
2009) (File No. 812-13488) (``Exemptive Order'').
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    Commentary .06 to Rule 8.600 provides that, if the investment 
adviser to the investment company issuing Managed Fund Shares is 
affiliated with a broker-dealer, such investment adviser shall erect a 
``fire wall'' between the investment adviser and the broker-dealer with 
respect to access to information concerning the composition and/or 
changes to such investment company portfolio. In addition, Commentary 
.06 further requires that personnel who make decisions on the open-end 
fund's portfolio composition must be subject to procedures designed to 
prevent the use and dissemination of material, nonpublic information 
regarding the open-end fund's portfolio.\6\ Commentary .06 to Rule 
8.600 is similar to Commentary .03(a)(i) and (iii) to NYSE Arca 
Equities Rule 5.2(j)(3); however, Commentary .06 in connection with the 
establishment of a ``fire wall'' between the investment adviser and the 
broker-dealer reflects the applicable open-end fund's portfolio, not an 
underlying benchmark index, as is the case with index-based funds. 
Neither the Adviser nor the Sub-Adviser is affiliated with a broker-
dealer. In the event (a) the Adviser or the Sub-Adviser becomes newly 
affiliated with a broker-dealer, or (b) any new adviser or sub-adviser 
becomes affiliated with a broker-dealer, it will implement a fire wall 
with respect to such broker-dealer regarding access to information 
concerning the composition and/or changes to the portfolio, and will be 
subject to procedures designed to prevent the use and dissemination of 
material, non-public information regarding such portfolio.
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    \6\ An investment adviser to an open-end fund is required to be 
registered under the Investment Advisers Act of 1940 (``Advisers 
Act''). As a result, the Adviser and Sub-Adviser and their related 
personnel are subject to the provisions of Rule 204A-1 under the 
Advisers Act relating to codes of ethics. This Rule requires 
investment advisers to adopt a code of ethics that reflects the 
fiduciary nature of the relationship to clients as well as 
compliance with other applicable securities laws. Accordingly, 
procedures designed to prevent the communication and misuse of non-
public information by an investment adviser must be consistent with 
Rule 204A-1 under the Advisers Act. 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 Commission rules adopted thereunder; (ii) implemented, at a 
minimum, an annual review regarding the adequacy of the policies and 
procedures established pursuant to subparagraph (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 subparagraph 
(i) above.
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    According to the Registration Statement, the Fund's investment 
objective is to seek consistent repeatable returns across all market 
cycles. The Fund is a ``fund-of-funds'' and, under normal market 
conditions,\7\ intends to invest at least 60% of its total assets in 
exchange-traded funds (``ETFs'') \8\ and exchange-traded notes 
(``ETNs'') \9\ that seek to track a diversified basket of global 
indices and investment sectors and in exchange-traded pooled investment 
vehicles that invest directly in commodities or currencies and that are 
registered pursuant to the 1933 Act (together with ETFs and ETNs, 
``Underlying ETPs'') \10\ that meet certain selection criteria 
established by the Sub-Adviser. The selection criteria include size, 
historical track record, diversification among indices, the correlation 
of an index to other indices, and an ability to write exchange-listed 
covered call options on the particular Underlying ETP.\11\ An 
Underlying ETP may be disposed of should it no longer meet the 
selection criteria.
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    \7\ The term ``under normal market conditions'' includes, but is 
not limited to, the absence of extreme volatility or trading halts 
in the equity markets or the financial markets generally; 
operational issues causing dissemination of inaccurate market 
information; or force majeure type events such as systems failure, 
natural or man-made disaster, act of God, armed conflict, act of 
terrorism, riot or labor disruption, or any similar intervening 
circumstance.
    \8\ For purposes of this proposed rule change, ETFs are 
securities registered under the 1940 Act such as those listed and 
traded on the Exchange under NYSE Arca Equities Rules 5.2(j)(3), 
8.100, and 8.600.
    \9\ For purposes of this proposed rule change, ETNs are 
securities that are registered pursuant to the 1933 Act such as 
those listed and traded on the Exchange pursuant to NYSE Arca 
Equities Rule 5.2(j)(6).
    \10\ Underlying ETPs include, in addition to ETFs and ETNs, the 
following securities: Trust Issued Receipts (as described in NYSE 
Arca Equities Rule 8.200); Commodity-Based Trust Shares (as 
described in NYSE Arca Equities Rule 8.201); Currency Trust Shares 
(as described in NYSE Arca Equities Rule 8.202); Commodity Index 
Trust Shares (as described in NYSE Arca Equities Rule 8.203); and 
closed-end funds. The Underlying ETPs all will be listed and traded 
in the U.S. on registered exchanges. The ETFs in which the Fund may 
invest will primarily be index-based ETFs that hold substantially 
all of their assets in securities representing a specific index.
    \11\ The options in which the Fund will invest will be U.S. 
exchange-listed.
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    The Fund currently intends to invest primarily in the securities of 
ETFs consistent with the requirements of Section 12(d)(1) of the 1940 
Act, or any rule, regulation, or order of the Commission or 
interpretation thereof.
    The Underlying ETPs in which the Fund will invest will primarily be 
Underlying ETPs that hold substantially all of their assets in 
securities representing a country (or region) specific index.
    The Sub-Adviser seeks to achieve the Fund's investment objective by 
using a proprietary overwrite strategy known as Volatility Enhanced 
Global Appreciation (``VEGA''). Through VEGA, the Fund will invest in 
Underlying ETPs in combination with call options on generally all such 
Underlying ETPs to seek cumulative price appreciation from the 
portfolio's global exposure while generating an additional return 
stream from the sale of covered call and/or cash-secured put 
options.\12\ While the Fund is permitted to invest up to 40% of its 
total assets in call options on Underlying ETPs, the Adviser expects 
that, under normal market conditions, the Fund will invest no more than 
15% in such call options on a daily basis. To the extent cash and cash 
equivalents in the Fund's portfolio serve as collateral for cash-
secured put options, such cash and cash equivalents may not be invested 
in Underlying ETPs, additional options or other

[[Page 36316]]

similar investments in pursuit of the Fund's investment objective. 
Rather, on a day-to-day basis, such collateral may be invested in U.S. 
Government securities, short-term, high quality fixed income 
securities, money market instruments, cash, and other cash equivalents 
with maturities of one year or less, or Underlying ETPs that hold such 
investments.\13\
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    \12\ According to the Registration Statement, a covered call 
option involves holding a long position in a particular asset, in 
this case shares of an Underlying ETP, and writing a call option on 
that same asset with the goal of realizing additional income from 
the option premium. A put option is a contract that gives the owner 
of the option the right to sell a specified amount of the asset 
underlying the option at a specified price (``strike price'') within 
a specified time. When a put option is exercised or assigned, the 
writer of the option is obligated to purchase the requisite amount 
of the asset underlying the option to complete the sale. A put 
option is considered cash-secured when the writer of the put option 
segregates an amount of cash or cash equivalents sufficient to cover 
the purchase price of the asset underlying the option.
    \13\ According to the Registration Statement, all options 
written on indices or securities must be covered. The Commission 
staff has indicated that a written call option on a security may be 
covered if a fund: (1) Owns the security underlying the call until 
the option is exercised or expires; (2) holds an American-style call 
on the same security as the call written with an exercise price (a) 
no greater than the exercise price of the call written or (b) 
greater than the exercise price of the call written if the 
difference is maintained by the fund in cash or other liquid assets 
designated on the fund's records or placed in a segregated account 
with the fund's custodian; (3) has an absolute and immediate right 
to acquire the security without additional cost (or if additional 
consideration is required, cash or other liquid assets in such 
amount have been segregated); or (4) segregates cash or other liquid 
assets on the fund's records or with the custodian in an amount 
equal to (when added to any margin on deposit) the current market 
value of the call option, but not less than the exercise price, 
marked to market daily. See, e.g., letter dated February 2, 1989, 
from L. Hope Lewis, Division of Investment Management, to Alan 
Rosenblat, Dechert, Price & Rhoads (regarding Hutton Options Trading 
L.P.; File No. 811-5391); letter dated March 30, 1987, from Gerald 
T. Lins, Division of Investment Management, to Thomas E. Heftler, 
Strook, Strook and Lavan (regarding Dreyfus Strategic Investing and 
Dreyfus Strategic Income; File Nos. 811-4688 and 811-4748). If the 
call option is exercised by the purchaser during the option period, 
the seller is required to deliver the underlying security against 
payment of the exercise price or pay the difference. The seller's 
obligation terminates upon expiration of the option period or when 
the seller executes a closing purchase transaction with respect to 
such option. All put options written by the Fund will be covered by: 
(1) Segregating cash, cash equivalents, such as U.S. Treasury 
securities or overnight repurchase agreements, or other liquid 
assets on the Fund's records or with the custodian having a value at 
least equal to the exercise price of the option (less cash received, 
if any); or (2) holding a put option on the same security as the 
option written where the exercise price of the written put option is 
(i) equal to or higher than the exercise price of the option written 
or (ii) less than the exercise price of the option written provided 
the Fund segregates cash or other liquid assets in the amount of the 
difference.
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    The Sub-Adviser will use VEGA, a proprietary quantitative and 
qualitative investment process, to determine the optimal Underlying 
ETPs and options for the strategy. The process focuses on the 
performance of a comprehensive portfolio of assets based on the 
combination of risk, return, and their correlation to each other. 
Consistent with VEGA, call options will be sold on generally all of the 
Underlying ETPs at a strike price equivalent to targets based on 
volatility and quantitative criteria. As calls are covered and/or 
expire, additional options on the Underlying ETPs will be sold. The 
average time until expiration for the option portfolio will be 
typically one quarter (91 days) or less, so that premiums may be 
received on options on Underlying ETPs approximately four times per 
year. The Sub-Adviser, however, will reserve the right to close out or 
enter into options on a more or less frequent basis in its discretion 
if it believes it is in the best interest of the Fund. The Sub-Adviser 
periodically will monitor the performance of the Fund's portfolio and 
systematically rebalance and initiate tactical shifts in the underlying 
investments when the strategy indicates it is both optimal and 
beneficial to do so.
    VEGA is designed to generate quarterly returns in the form of 
premiums received from the sale of covered call and/or cash-secured put 
options. The amount of the premium will typically be determined at the 
start of the quarter, and realized either at expiration or sooner if 
the strategy determines that conditions warrant covering the short 
option position beforehand.\14\
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    \14\ According to the Registration Statement, the risks of 
covered call writing include the potential for the market to rise 
sharply. In such instance, the buyer of the call option would likely 
acquire the Underlying ETP from the Fund and the return on that 
Underlying ETP would be limited to the premium received and the 
difference between the strike price and the purchase price until 
such time as the Underlying ETP is repurchased as applicable. The 
risks of cash-secured put writing include the potential for the 
price of the Underlying ETP to decline significantly causing the put 
writer, the Fund, to have an unrealized loss due to the high stock 
purchase price.
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    Except for premium amounts required for transactional and portfolio 
management purposes, the Sub-Adviser, in its discretion, may allocate 
the accumulated premium in ``principal protection'' and/or 
``reinvestment strategies,'' as described below.
    The ``principal protection'' feature is intended as a means to 
profit and/or hedge against potential price declines of 20% or greater 
of Underlying ETPs. The feature may be implemented when volatility 
declines and/or security prices rise and the Sub-Adviser determines the 
cost of principal protection to be beneficial. The cost of the 
protection is expected to be paid from accumulated option premiums but 
principal may be used. The use of principal protection entails the 
purchase of put options on Underlying ETPs representing some or all of 
the Fund's portfolio holdings. The risk of buying long puts is limited 
to the loss of the premium paid for the purchase of the put.
    Option premiums received by the Fund will remain in cash or cash 
equivalents or may be invested in Underlying ETPs that invest primarily 
in U.S. treasuries or other cash equivalent securities.
    The Sub-Adviser also will utilize a reinvestment strategy whereby 
accumulated option premiums may be reinvested back into additional 
shares of Underlying ETPs held by the Fund based on the Sub-Adviser's 
view of the market.
Principal Fund Investments
    The Fund, through its investment in Underlying ETPs, may invest in 
equity securities. Equity securities represent ownership interests in a 
company or partnership and consist of common stocks, preferred stocks, 
warrants to acquire common stock, securities convertible into common 
stock, and investments in master limited partnerships, rights, and 
depositary receipts, including American Depositary Receipts (``ADRs'') 
and Global Depositary Receipts (``GDRs'').\15\ The Fund, through its 
investment in Underlying ETPs, may purchase equity securities traded in 
the U.S. on registered exchanges or the over-the-counter market.
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    \15\ ADRs and GDRs are certificates evidencing ownership of 
shares of a foreign issuer. Depositary receipts may be sponsored or 
unsponsored. These certificates are issued by depositary banks and 
generally trade on an established market in the United States or 
elsewhere.
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    The Fund, through its investment in Underlying ETPs, may invest in 
the equity securities of foreign issuers, including the securities of 
foreign issuers in emerging countries. Emerging or developing markets 
exist in countries that are considered to be in the initial stages of 
industrialization.
    The Fund, through its investment in Underlying ETPs, may invest in 
closed-end funds, pooled investment vehicles that are registered under 
the 1940 Act and whose shares are listed and traded on U.S. national 
securities exchanges.
    The Fund, or the Underlying ETPs in which it invests, may invest in 
U.S. government securities. Securities issued or guaranteed by the U.S. 
government or its agencies or instrumentalities include U.S. Treasury 
securities, which are backed by the full faith and credit of the U.S. 
Treasury and which differ only in their interest rates, maturities, and 
times of issuance. According to the Registration Statement, certain 
U.S. government securities are issued or guaranteed by agencies or 
instrumentalities of the U.S. government including, but not limited to, 
obligations of U.S. government agencies or instrumentalities such as 
Fannie Mae, Freddie Mac, the Government National Mortgage Association, 
the Small

[[Page 36317]]

Business Administration, the Federal Farm Credit Administration, the 
Federal Home Loan Banks, Banks for Cooperatives (including the Central 
Bank for Cooperatives), the Federal Land Banks, the Federal 
Intermediate Credit Banks, the Tennessee Valley Authority, the Export-
Import Bank of the United States, the Commodity Credit Corporation, the 
Federal Financing Bank, the Student Loan Marketing Association, the 
National Credit Union Administration, and the Federal Agricultural 
Mortgage Corporation.
    The Fund, through its investments in Underlying ETPs from time to 
time, in the ordinary course of business, may purchase securities on a 
when-issued or delayed-delivery basis (i.e., delivery and payment can 
take place between a month and 120 days after the date of the 
transaction).
    The Fund, or the Underlying ETPs in which it invests, may invest in 
U.S. Treasury zero-coupon bonds. The Fund, through its investment in 
ETFs, may invest in shares of real estate investment trusts 
(``REITs'').
Other Investments
    To respond to adverse market, economic, political, or other 
conditions, the Fund may invest 100% of its total assets, without 
limitation, in high-quality debt securities and money market 
instruments either directly or through Underlying ETPs. The Fund may be 
invested in this manner for extended periods depending on the Sub-
Adviser's assessment of market conditions. Debt securities and money 
market instruments include shares of other mutual funds, commercial 
paper, certificates of deposit, bankers' acceptances, U.S. Government 
securities, repurchase agreements, and bonds that are BBB or higher. 
The Fund may also invest a substantial portion of its assets in such 
instruments at any time to maintain liquidity or pending selection of 
investments in accordance with its policies.
    The Fund may invest in derivatives, including, for example, 
options, futures, options on futures, and swaps. While the Fund 
currently does not intend to invest in swaps, it may invest up to 10% 
of its total assets in swaps. The Fund may invest in derivatives to 
gain market exposure, enhance returns, or hedge against market 
declines.
    Other than options on Underlying ETPs in which the Fund may invest, 
as described above, the Fund may trade U.S. exchange-listed put and 
call options on other securities, securities indices, and currencies, 
as the Sub-Adviser determines is appropriate in seeking the Fund's 
investment objective and except as restricted by the Fund's investment 
limitations.\16\ While the Fund may invest in put and call options on 
other securities, the Adviser expects that, under normal market 
conditions, the Fund will invest from 0% up to 10% in such put and call 
options on a daily basis.
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    \16\ See supra note 11.
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    The Fund may invest up to 10% of its total assets in futures 
contracts and related options on futures contracts for bona fide 
hedging; attempting to offset changes in the value of securities held 
or expected to be acquired or be disposed of; attempting to gain 
exposure to a particular market, index, or instrument; or other risk 
management purposes. To the extent the Fund uses futures and/or options 
on futures, it will do so in accordance with Rule 4.5 under the 
Commodity Exchange Act (``CEA'').\17\
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    \17\ According to the Registration Statement, the Trust, on 
behalf of all of its series, including the Fund, has filed a notice 
of eligibility for exclusion from the definition of the term 
``commodity pool operator'' in accordance with Rule 4.5 and, 
therefore, the Fund is not subject to registration or regulation as 
a commodity pool operator under the CEA.
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    The Fund may enter into repurchase agreements with financial 
institutions, which may be deemed to be loans. The Fund also may enter 
into reverse repurchase agreements without limit as part of the Fund's 
investment strategy.
    The Fund may not with respect to 75% of its total assets, purchase 
securities of any issuer (except securities issued or guaranteed by the 
U.S. Government, its agencies or instrumentalities, or shares of 
investment companies) if, as a result, (i) more than 5% of its total 
assets would be invested in the securities of such issuer, or (ii) more 
than 10% of the outstanding voting securities of any one issuer would 
be held by the Fund. For purposes of this policy, the issuer of the 
underlying security will be deemed to be the issuer of any respective 
depositary receipt.\18\
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    \18\ The diversification standard is set forth in Section 
5(b)(1) of the 1940 Act.
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    The Fund may not invest 25% or more of its total assets in the 
securities of one or more issuers conducting their principal business 
activities in the same industry or group of industries. This limitation 
does not apply to investments in securities issued or guaranteed by the 
U.S. Government, its agencies or instrumentalities, or shares of 
investment companies. The Fund will not invest 25% or more of its total 
assets in any investment company that so concentrates.\19\
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    \19\ See Form N-1A, Item 9. The Commission has taken the 
position that a fund is concentrated if it invests more than 25% of 
the value of its total assets in any one industry. See, e.g., 
Investment Company Act Release No. 9011 (October 30, 1975), 40 FR 
54241 (November 21, 1975).
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    The Fund may hold up to an aggregate amount of 15% of its net 
assets in illiquid securities (calculated at the time of investment), 
including Rule 144A securities and loan participation interests. The 
Fund will monitor its portfolio liquidity on an ongoing basis to 
determine whether, in light of current circumstances, an adequate level 
of liquidity is being maintained, and will consider taking appropriate 
steps in order to maintain adequate liquidity if, through a change in 
values, net assets, or other circumstances, more than 15% of the Fund's 
net assets are held in illiquid securities. Illiquid securities include 
securities subject to contractual or other restrictions on resale and 
other instruments that lack readily available markets as determined in 
accordance with Commission staff guidance.\20\
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    \20\ The Commission has stated that long-standing Commission 
guidelines have required open-end funds to hold no more than 15% of 
their net assets in illiquid securities and other illiquid assets. 
See Investment Company Act Release No. 28193 (March 11, 2008), 73 FR 
14618 (March 18, 2008), footnote 34. See also Investment Company Act 
Release No. 5847 (October 21, 1969), 35 FR 19989 (December 31, 1970) 
(Statement Regarding ``Restricted Securities''); Investment Company 
Act Release No. 18612 (March 12, 1992), 57 FR 9828 (March 20, 1992) 
(Revisions of Guidelines to Form N-1A). A fund's portfolio security 
is illiquid if it cannot be disposed of in the ordinary course of 
business within seven days at approximately the value ascribed to it 
by the fund. See Investment Company Act Release No. 14983 (March 12, 
1986), 51 FR 9773 (March 21, 1986) (adopting amendments to Rule 2a-7 
under the 1940 Act); Investment Company Act Release No. 17452 (April 
23, 1990), 55 FR 17933 (April 30, 1990) (adopting Rule 144A under 
the 1933 Act).
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    According to the Registration Statement, the Fund will seek to 
qualify for treatment as a Regulated Investment Company (``RIC'') under 
the Internal Revenue Code.\21\
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    \21\ 26 U.S.C. 851. One of several requirements for RIC 
qualification is that the Fund must receive at least 90% of the 
Fund's gross income each year from dividends, interest, payments 
with respect to securities loans, gains from the sale or other 
disposition of stock, securities or foreign currencies, or other 
income derived with respect to the Fund's investments in stock, 
securities, foreign currencies and net income from an interest in a 
qualified publicly traded partnership (``90% Test''). A second 
requirement for qualification as a RIC is that the Fund must 
diversify its holdings so that, at the end of each fiscal quarter of 
the Fund's taxable year: (a) at least 50% of the market value of the 
Fund's total assets is represented by cash and cash items, U.S. 
Government securities, securities of other RICs, and other 
securities, with these other securities limited, in respect to any 
one issuer, to an amount not greater than 5% of the value of the 
Fund's total assets or 10% of the outstanding voting securities of 
such issuer; and (b) not more than 25% of the value of its total 
assets are invested in the securities (other than U.S. Government 
securities or securities of other RICs) of any one issuer or two or 
more issuers which the Fund controls and which are engaged in the 
same, similar, or related trades or businesses, or the securities of 
one or more qualified publicly traded partnership (``Asset Test'').

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[[Page 36318]]

    Except for Underlying ETPs that may hold non-U.S. issues, the Fund 
will not otherwise invest in non-U.S.-registered issues.
    The Fund does not intend to invest in leveraged, inverse, or 
inverse leveraged Underlying ETPs. The Fund's investments will be 
consistent with the Fund's investment objective and will not be used to 
enhance leverage. That is, while the Fund will be permitted to borrow 
as permitted under the 1940 Act, the Fund's investments will not be 
used to seek performance that is the multiple or inverse multiple 
(i.e., 2Xs and 3Xs) of the Fund's broad-based securities market index 
(as defined in Form N-1A).\22\
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    \22\ The Fund's broad-based securities market index, which is to 
be determined, will be identified in an amendment to the 
Registration Statement.
---------------------------------------------------------------------------

Determination of Net Asset Value
    The Fund will calculate net asset value (``NAV'') by: (i) Taking 
the current market value of its total assets; (ii) subtracting any 
liabilities; and (iii) dividing that amount by the total number of 
Shares owned by shareholders.
    The Fund will calculate NAV once each business day as of the 
regularly scheduled close of trading on the New York Stock Exchange 
(``NYSE'') (normally, 4:00 p.m., Eastern Time).
    In calculating NAV, the Fund generally will value investment 
portfolios at market price. If market prices are unavailable or the 
Fund thinks that they are unreliable, or when the value of a security 
has been materially affected by events occurring after the relevant 
market closes, the Fund will price those securities at fair value as 
determined in good faith using methods approved by the Fund's Board of 
Trustees.\23\
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    \23\ The use of fair valuation in pricing a security involves 
the consideration of a number of subjective factors and therefore, 
is susceptible to the unavoidable risk that the valuation may be 
higher or lower than the price at which the security might actually 
trade if a reliable market price were readily available.
---------------------------------------------------------------------------

Creation and Redemption of Shares
    The Fund will offer and issue Shares on a continuous basis at NAV 
only in aggregated lots of 50,000 or more Shares (each a ``Creation 
Unit'' or ``Creation Unit Aggregation''), generally in exchange for: 
(i) A basket of equity securities (``Deposit Securities''); and (ii) an 
amount of cash (``Cash Component''). Shares are redeemable only in 
Creation Unit Aggregations, and, generally, in exchange for portfolio 
securities and a specified cash payment.
    A ``creator'' will enter into an authorized participant agreement 
(``Participant Agreement'') with the Distributor or use a Depository 
Trust Company (``DTC'') participant who has executed a Participant 
Agreement (``Authorized Participant''), and deposit into the Fund a 
portfolio of securities closely approximating the holdings of the Fund 
and a specified amount of cash, together totaling the NAV of the 
Creation Unit(s), in exchange for 50,000 Shares of the Fund (or 
multiples thereof).
    All orders to purchase Creation Units must be received by the 
Distributor no later than the close of the regular trading session on 
the NYSE (ordinarily 4:00 p.m., Eastern Time) on the date such order is 
placed in order for the purchase of Creation Units to be effected based 
on the NAV of Shares of the Fund as next determined on such date after 
receipt of the order in proper form.
    Shares may be redeemed only in Creation Units at their NAV next 
determined after receipt of a redemption request in proper form by the 
Fund through the Administrator and only on a business day. With respect 
to the Fund, the Administrator, through the National Securities 
Clearing Corporation (``NSCC''), will make available immediately prior 
to the opening of business on the Exchange (currently 9:30 a.m., 
Eastern Time) on each business day, the portfolio of securities (``Fund 
Securities'') that will be applicable to redemption requests received 
in proper form on that day. Fund Securities received on redemption may 
not be identical to Deposit Securities which are applicable to 
creations of Creation Units. Unless cash redemptions are available or 
specified for the Fund, the redemption proceeds for a Creation Unit 
generally will consist of Fund Securities plus cash in an amount equal 
to the difference between the NAV of the Shares being redeemed, as next 
determined after a receipt of a request in proper form, and the value 
of the Fund Securities less a redemption transaction fee, as described 
in the Registration Statement. In the event that the Fund Securities 
have a value greater than the NAV of the Shares, a compensating cash 
payment equal to the differential will be required to be made by or 
through an Authorized Participant by the redeeming shareholder.
    The Shares will conform to the initial and continued listing 
criteria under NYSE Arca Equities Rule 8.600. The Exchange represents 
that, for initial and/or continued listing, the Fund will be in 
compliance with Rule 10A-3 under the Exchange Act,\24\ as provided by 
NYSE Arca Equities Rule 5.3. A minimum of 100,000 Shares for the Fund 
will be outstanding at the commencement of trading on the Exchange. The 
Exchange will obtain a representation from the issuer of the Shares 
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.
---------------------------------------------------------------------------

    \24\ 17 CFR 240.10A-3.
---------------------------------------------------------------------------

Availability of Information
    The Fund's Web site (www.advisorshares.com), which will be publicly 
available prior to the public offering of Shares, will include a form 
of the prospectus for the Fund that may be downloaded. The Fund's Web 
site will include additional quantitative information updated on a 
daily basis, including, for the Fund, (1) daily trading volume, the 
prior business day's reported closing price, NAV and mid-point of the 
bid/ask spread at the time of calculation of such NAV (``Bid/Ask 
Price''),\25\ 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) that will form the basis for the 
Fund's calculation of NAV at the end of the business day.\26\
---------------------------------------------------------------------------

    \25\ The Bid/Ask Price of the Fund will be determined using the 
mid-point of 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.
    \26\ 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.
---------------------------------------------------------------------------

    On a daily basis, the Adviser will disclose for each portfolio 
security and other financial instrument of the Fund the following 
information on the Fund's Web site: Ticker symbol (if applicable), name 
of security and financial instrument, number of shares or dollar value 
of securities and financial instruments held in the portfolio, and 
percentage weighting of the security and financial instrument in the 
portfolio.

[[Page 36319]]

The Web site information will be publicly available at no charge.
    In addition, a basket composition file, which includes the security 
names and share quantities required to be delivered in exchange for the 
Fund's Shares, together with estimates and actual cash components, will 
be publicly disseminated daily prior to the opening of the NYSE via 
NSCC. The basket represents one Creation Unit of the Fund.
    Investors can also obtain the Trust's Statement of Additional 
Information (``SAI''), the Fund's Shareholder Reports, and the Trust's 
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 at www.sec.gov. 
Information regarding market price and trading volume of the Shares 
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 for the Shares 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 and, for the Underlying ETPs, will be 
available from the national securities exchanges on which they are 
listed. Quotation and last-sale information for the U.S. exchange-
listed options in which the Fund will invest will be available from the 
applicable U.S. options exchange via the Options Price Reporting 
Authority (``OPRA''). In addition, the Portfolio Indicative Value, as 
defined in NYSE Arca Equities Rule 8.600(c)(3), will be widely 
disseminated by one or more major market data vendors at least every 15 
seconds during the Core Trading Session.\27\ The dissemination of the 
Portfolio Indicative Value, together with the Disclosed Portfolio, will 
allow investors to determine the value of the underlying portfolio of 
the Fund on a daily basis and to provide a close estimate of that value 
throughout the trading day. The intra-day, closing, and settlement 
prices of the other portfolio securities and instruments are also 
readily available from the national securities exchanges trading such 
securities, automated quotation systems, published or other public 
sources, or on-line information services such as Bloomberg or Reuters.
---------------------------------------------------------------------------

    \27\ Currently, it is the Exchange's understanding that several 
major market data vendors widely disseminate Portfolio Indicative 
Values taken from CTA or other data feeds.
---------------------------------------------------------------------------

    Additional information regarding the Trust and the Shares, 
including investment strategies, risks, creation and redemption 
procedures, fees, portfolio holdings disclosure policies, 
distributions, and taxes is included in the Registration Statement. All 
terms relating to the Fund that are referred to, but not defined in, 
this proposed rule change are defined in the Registration Statement.
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.\28\ Trading in Shares of the Fund 
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 and/or the 
financial instruments comprising the Disclosed Portfolio 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.
---------------------------------------------------------------------------

    \28\ See NYSE Arca Equities Rule 7.12, Commentary .04.
---------------------------------------------------------------------------

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 4:00 a.m. to 8:00 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. As provided in 
NYSE Arca Equities Rule 7.6, Commentary .03, the minimum price 
variation (``MPV'') for quoting and entry of orders in equity 
securities traded on the NYSE Arca Marketplace is $0.01, with the 
exception of securities that are priced less than $1.00 for which the 
MPV for order entry is $0.0001.
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 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's current trading surveillance focuses on detecting 
securities trading outside their normal patterns. When such situations 
are detected, surveillance analysis follows and investigations are 
opened, where appropriate, to review the behavior of all relevant 
parties for all relevant trading violations.
    The Exchange may obtain information via the Intermarket 
Surveillance Group (``ISG'') from other exchanges that are members of 
ISG or with which the Exchange has in place a comprehensive 
surveillance sharing agreement.\29\ In addition, the Exchange could 
obtain information from the U.S. exchanges, all of which are ISG 
members, on which the Underlying ETPs and options are listed and 
traded.
---------------------------------------------------------------------------

    \29\ For a list of the current members of ISG, see 
www.isgportal.org. The Exchange notes that not all components of the 
Disclosed Portfolio for the Fund may trade on markets that are 
members of ISG or with which the Exchange has in place a 
comprehensive surveillance sharing agreement.
---------------------------------------------------------------------------

    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 
Equity Trading Permit (``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 Portfolio Indicative Value will not be 
calculated or publicly disseminated; (4) how information regarding the 
Portfolio Indicative Value is disseminated; (5) the requirement that 
ETP Holders deliver a prospectus to

[[Page 36320]]

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 Exchange Act. 
The Bulletin will also disclose that the NAV for the Shares will be 
calculated after 4:00 p.m., Eastern Time each trading day.
2. Statutory Basis
    The basis under the Exchange Act for this proposed rule change is 
the requirement under Section 6(b)(5) \30\ 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.
---------------------------------------------------------------------------

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

    The Exchange believes that the proposed rule change is designed to 
prevent fraudulent and manipulative acts and practices in that the 
Shares will be listed and traded on the Exchange pursuant to the 
initial and continued listing criteria in NYSE Arca Equities Rule 
8.600. Neither the Adviser nor the Sub-Adviser is affiliated with a 
broker-dealer. The Exchange has in place surveillance procedures that 
are adequate to properly monitor trading in the Shares in all trading 
sessions and to deter and detect violations of Exchange rules and 
applicable federal securities laws. The Exchange may obtain information 
via ISG from other exchanges that are members of ISG or with which the 
Exchange has entered into a comprehensive surveillance sharing 
agreement. The holdings of the Fund will be comprised primarily of U.S. 
exchange-listed Underlying ETPs. The listing and trading of such 
Underlying ETPs is subject to rules of the exchanges on which they are 
listed and traded, as approved by the Commission. The options contracts 
held by the Fund will be U.S. exchange-listed. Except for Underlying 
ETPs that may hold non-U.S. issues, the Fund will not otherwise invest 
in non-U.S.-registered issues. The Fund may invest up to 10% of its 
total assets in futures contracts and related options on futures 
contracts for bona fide hedging. While the Fund may invest in put and 
call options on securities other than Underlying ETPs, the Adviser 
expects that, under normal market conditions, the Fund will invest from 
0% up to 10% in such put and call options on a daily basis. While the 
Fund currently does not intend to invest in swaps, it may invest up to 
10% of its total assets in swaps. The Fund may hold up to an aggregate 
amount of 15% of its net assets in illiquid securities (calculated at 
the time of investment), including Rule 144A securities and loan 
participation interests. The Fund does not intend to invest in 
leveraged, inverse, or inverse leveraged Underlying ETPs. The Fund's 
investments will be consistent with the Fund's investment objective and 
will not be used to enhance leverage.
    The proposed rule change is designed to promote just and equitable 
principles of trade and to protect investors and the public interest in 
that the Exchange will obtain a representation from the issuer of the 
Shares 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. In addition, a large amount of 
information will be publicly available regarding the Fund and the 
Shares, thereby promoting market transparency. Moreover, the Portfolio 
Indicative Value will be widely disseminated at least every 15 seconds 
during the Core Trading Session by one or more major market data 
vendors. Quotation and last-sale information for the Shares will be 
available via CTA high-speed line and, for the Underlying ETPs, will be 
available from the national securities exchanges on which they are 
listed. Quotation and last-sale information for the U.S. exchange-
listed options in which the Fund will invest will be available via 
OPRA. 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 that will form the basis for the 
Fund's calculation of NAV at the end of the business day. Information 
regarding market price and trading volume of the Shares will be 
continually available on a real-time basis throughout the day on 
brokers' computer screens and other electronic services, and quotation 
and last-sale information will be available via the CTA high-speed 
line. The Web site for the Fund will include a form of the prospectus 
for the Fund and additional data relating to NAV and other applicable 
quantitative information. Moreover, prior to the commencement of 
trading, the Exchange will inform its ETP Holders in an Information 
Bulletin of the special characteristics and risks associated with 
trading the Shares. Trading in Shares of the Fund will be halted if the 
circuit breaker parameters in NYSE Arca Equities Rule 7.12 have been 
reached or because of market conditions or for reasons that, in the 
view of the Exchange, make trading in the Shares inadvisable, and 
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. In addition, as noted above, investors will 
have ready access to information regarding the Fund's holdings, the 
Portfolio Indicative Value, the Disclosed Portfolio, and quotation and 
last-sale information for the Shares.
    The proposed rule change is designed to perfect the mechanism of a 
free and open market and, in general, to protect investors and the 
public interest in that it will facilitate the listing and trading of 
additional types of actively-managed exchange-traded products that will 
enhance competition among market participants, to the benefit of 
investors and the marketplace. As noted above, the Exchange has in 
place surveillance procedures relating to trading in the Shares and may 
obtain information via ISG from other exchanges that are members of ISG 
or with which the Exchange has entered into a comprehensive 
surveillance sharing agreement. In addition, as noted above, investors 
will have ready access to information regarding the Fund's holdings, 
the Portfolio Indicative Value, the Disclosed Portfolio, and quotation 
and last-sale information for the Shares.

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

    Within 45 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

[[Page 36321]]

(ii) as to which the self-regulatory organization consents, the 
Commission will:
    (A) By order approve or disapprove the 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 email to rule-comments@sec.gov. Please include 
File Number SR-NYSEArca-2012-55 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NYSEArca-2012-55. This 
file number should be included on the subject line if email 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 Web site viewing and 
printing in the Commission's Public Reference Section, 100 F Street 
NE., Washington, DC 20549-1090, on official business days between 10:00 
a.m. and 3:00 p.m. Copies of the filing will also be available for 
inspection and copying at the NYSE's principal office and on its 
Internet Web site at www.nyse.com. 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-2012-55 and should be submitted on or before 
July 9, 2012.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\31\
---------------------------------------------------------------------------

    \31\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-14767 Filed 6-15-12; 8:45 am]
BILLING CODE 8011-01-P


