[Federal Register Volume 72, Number 247 (Thursday, December 27, 2007)]
[Notices]
[Pages 73394-73397]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-24988]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-56983; File No. SR-NYSEArca-2007-128]
Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
and Order Granting Accelerated Approval of a Proposed Rule Change, as
Modified by Amendment No. 1 Thereto, To List and Trade Shares of the
iShares MSCI Japan Small Cap Index Fund
December 18, 2007.
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 December 13, 2007, NYSE Arca, Inc. (``NYSE Arca'' or ``Exchange''),
through its wholly owned subsidiary, NYSE Arca Equities, Inc. (``NYSE
Arca Equities''), filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II below, which Items have been substantially prepared by the Exchange.
On December 18, 2007, the Exchange filed Amendment No. 1 to the
proposed rule change. This order provides notice of the proposed rule
change, as amended, and approves the proposed rule change, as modified
by Amendment No. 1 thereto, 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
The Exchange proposes to list and trade shares (``Shares'') of the
iShares MSCI Japan Small Cap Index Fund (``Fund'').\3\ The text of the
proposed rule change is available at the Exchange's principal office,
the Commission's Public Reference Room, and http://www.nyse.com.
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\3\ The Shares will be issued by iShares, Inc., an open-ended
management investment company registered under the Investment
Company Act of 1940 (15 U.S.C. 80a).
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II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, the Exchange included statements
concerning the purpose of, and basis for, the proposed rule change, and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item III below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant aspects 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 the Shares of the Fund
under NYSE Arca Equities Rule 5.2(j)(3), the Exchange's listing
standards for Investment Company Units (``ICUs'').\4\ The Fund seeks to
provide investment results that correspond generally to the price and
yield performance, before fees and expenses, of publicly traded
securities in the aggregate in the Japanese market, as represented by
the MSCI Japan Small Cap Index (the ``Index''). The Index, which is
designed to measure the small capitalization equity market performance
in the Japanese market, consists of small capitalization stocks traded
primarily on the Tokyo Stock Exchange.
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\4\ An Investment Company Unit is a security that represents an
interest in a registered investment company that holds securities
comprising, or otherwise based on or representing an interest in, an
index or portfolio of securities (or holds securities in another
registered investment company that holds securities comprising, or
otherwise based on or representing an interest in, an index or
portfolio of securities). See NYSE Arca Equities Rule 5.2(j)(3)(A).
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NYSE Arca represents that the Shares meet each of the ``generic''
listing requirements of Commentary .01(a)(B) to NYSE Arca Equities Rule
5.2(j)(3) applicable to the listing of ICUs based on equity securities
comprising international or global indexes, except for the requirement
set forth in Commentary .01(a)(B)(2) to NYSE Arca Equities Rule
5.2(j)(3), which states that component stocks that, in the aggregate,
account for at least 90% of the weight of the index each must have a
minimum worldwide monthly trading volume during each of the last six
months of at least 250,000 shares. The Exchange represents that, as of
December 10, 2007, the component stocks comprising 88% of the weight of
the Index traded at least 250,000 shares in each of the previous six
months. Because the component stocks of the Index fall below the
required minimum percentage in Commentary .01(a)(B)(2) to NYSE Arca
Equities Rule 5.2(j)(3), the Exchange has filed the proposed rule
change to obtain Commission approval to list and trade the Shares. The
Exchange represents that, except for Commentary .01(a)(B)(2) to NYSE
Arca Equities Rule 5.2(j)(3), the Shares currently satisfy all of the
generic listing standards under NYSE Arca Equities Rule 5.2(j)(3) and
further represents that the continued listing standards under NYSE Arca
Equities Rule 5.5(g)(2) applicable to Investment Company Units shall
apply to the Shares.
Detailed descriptions of the Fund, the Index (including the
methodology used to determine the composition of the Index), investment
objective of the Fund, management and structure of the Fund, procedures
and payment requirements for creating and redeeming Shares, transaction
fees and expenses, dividends, distributions, taxes, reports to be
distributed to beneficial owners of the Shares, availability of
information regarding the Shares, and calculation and dissemination of
key values can be found in the Registration Statement \5\ or on the Web
site for the Fund (http://www.ishares.com).
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\5\ See iShares, Inc.'s Registration Statement on Form N-1A, as
amended through July 19, 2007 (File Nos. 33-97598 and 811-09102)
(``Registration Statement'').
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Availability of Information. The Exchange states that quotations
and last-sale information regarding the Shares will be disseminated
through the facilities of the Consolidated Tape Association (``CTA'').
The Index value is calculated by Morgan Stanley Capital International,
Inc. (``MSCI''), the Index provider, for each trading day in the
applicable foreign exchange markets based on official closing prices in
such exchange markets and publicly disseminates the Index values for
the previous day's close.\6\ MSCI or third-party major market data
vendors will make available at least every 60 seconds
[[Page 73395]]
an updated Index value when foreign trading market hours overlap with
the Core Trading Session (9:30 a.m. to 4:15 p.m. Eastern Time or
``ET'').\7\ When the foreign markets are closed during Exchange trading
hours, the Fund will provide closing Index values on http://www.ishares.com. iShares, Inc. will cause to be made available daily
the names and required number of shares of each of the securities to be
deposited in connection with the issuance of the Fund's Shares, as well
as information relating to the required cash payment representing, in
part, the amount of accrued dividends for the Fund.
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\6\ The Exchange notes that, when a broker-dealer or a broker-
dealer's affiliate, such as MSCI, is involved in the development and
maintenance of a stock index upon which a product such as iShares is
based, the broker-dealer or its affiliate should have procedures
designed specifically to address the improper sharing of
information. See Securities Exchange Act Release No. 52178 (July 29,
2005), 70 FR 46244 n.18 (August 9, 2005) (SR-NYSE-2005-41)
(describing the procedures which must be in place to prevent the
improper sharing of information). The Exchange represents that MSCI
has implemented procedures to prevent the misuse of material, non-
public information regarding changes to component stocks in the
MSCI, in accordance with the requirements of Commentary .01(b)(1) to
NYSE Arca Equities Rule 5.2(j)(3).
\7\ See NYSE Arca Equities Rule 7.34.
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In addition, the Indicative Optimized Portfolio Value or ``IOPV''
on a per-Share basis will be calculated by an independent third party
and disseminated through the facilities of the CTA at least every 15
seconds during the Core Trading Session.\8\ The Exchange states that,
because the Fund utilizes a representative sampling strategy, the IOPV
likely will not reflect the value of all securities included in the
Index or necessarily reflect the precise composition of the current
portfolio of securities held by the Fund at a particular moment. The
Exchange notes that the IOPV disseminated during the Core Trading
Session should not be viewed as a real-time update of the NAV of the
Fund, which is calculated only once a day.
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\8\ The Exchange states that there is an overlap in trading
hours between the foreign and U.S. markets for the Fund and the
foreign market that trades securities in the underlying Index.
Therefore, the IOPV calculator will update the IOPV at least every
15 seconds to reflect price changes in the applicable foreign market
and convert such prices into U.S. dollars based on the currency
exchange rate. When the foreign market is closed and the U.S.
markets are open, the IOPV will be updated at least every 15 seconds
to reflect changes in currency exchange rates after the foreign
market closes.
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The Fund administrator, State Street Bank and Trust Company, will
calculate the net asset value or ``NAV'' for the Fund once a day on
each day that the New York Stock Exchange LLC is open for trading,
generally at 4 p.m. ET. The NAV will also be available to the public on
http://www.ishares.com, from the Fund distributor by means of a toll-
free phone number, and to participants of the National Securities
Clearing Corporation.
Information with respect to recent NAV, number of Shares
outstanding, estimated cash amount and total cash amount per Creation
Unit Aggregation,\9\ and other data with respect to the Fund will also
be disseminated prior to the opening of the Core Trading Session on a
daily basis by means of CTA and Consolidated Quote High Speed Lines. In
addition, the Web site for the Fund will contain the following
information, on a per-Share basis: (1) The prior business day's NAV,
the mid-point of the bid-ask price at the time of calculation of such
NAV (``Bid/Ask Price''),\10\ and a calculation of the premium or
discount of such price against such NAV; and (2) data in chart format
displaying the frequency distribution of discounts and premiums of the
Bid/Ask Price against the NAV, within appropriate ranges, for each of
the four previous calendar quarters. Finally, the Exchange states that
MSCI's Web site at http://www.mscibarra.com will make available the
components of the Index, and the holdings of the Fund will be available
at http://www.ishares.com. The Exchange represents that the information
on the Fund Web site will be available to all market participants at
the same time.
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\9\ See Registration Statement, supra note 5 (providing the
definition of Creation Unit Aggregation and the procedures for
purchasing and redeeming Shares).
\10\ The Bid-Ask Price of the Fund is determined using the
highest bid and lowest offer on the Exchange as of the time of
calculation of the Fund's NAV.
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Trading Rules and Halts. The Exchange deems the Shares to be equity
securities, thus rendering trading in the Shares subject to the
Exchange's existing rules governing the trading of equity securities.
The Shares will trade on the Exchange from 4 a.m. to 8 p.m. ET in
accordance with NYSE Arca Equities Rule 7.34. The Exchange represents
that it has appropriate rules to facilitate transactions in the Shares
during all trading sessions, including rules governing trading halts,
as provided in NYSE Arca Equities Rule 5.5(g)(2)(b).
Surveillance. The Exchange intends to utilize its existing
surveillance procedures applicable to ICUs to monitor trading in the
Shares. The Exchange represents that these procedures, which focus on
detecting when securities trade outside their normal patterns, are
adequate to properly monitor Exchange trading of the Shares in all
trading sessions and to deter and detect violations of Exchange rules.
The Exchange further represents that it may obtain information via the
Intermarket Surveillance Group (``ISG'') from other exchanges that are
members or affiliate members of ISG.\11\ The Exchange states that it
has a general policy prohibiting the distribution of material, non-
public information by its employees.
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\11\ The Exchange notes that the Tokyo Stock Exchange, which is
the exchange on which the stocks comprising the Index are primarily
traded, is an affiliate member of ISG. The Exchange further notes
that one or more of the securities comprising the Index may trade on
exchanges that are not members or affiliate members of ISG, and the
Exchange may not have in place comprehensive surveillance sharing
agreements with such exchanges.
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Information Bulletin. Prior to the commencement of trading, the
Exchange will inform its ETP Holders \12\ in an Information Bulletin
(``Bulletin'') of the special characteristics and risks associated with
trading the Shares. Specifically, the Bulletin will discuss: (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) how information regarding the
IOPV is disseminated; (4) the risks involved in trading the shares
during the Opening and Late Trading Sessions when an updated IOPV will
not be calculated or publicly available; (5) the requirement that ETP
Holders deliver a prospectus to investors purchasing newly issued
Shares prior to or concurrently with the confirmation of a transaction;
and (6) trading information. In addition, the Bulletin will reference
that the Fund is subject to various fees and expenses described in the
Registration Statement and will also discuss any exemptive, no-action,
or interpretive relief granted by the Commission from provisions of the
Act and the rules thereunder. The Bulletin will also disclose that the
NAV for the Shares will be calculated after 4 p.m. ET each trading day.
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\12\ See NYSE Arca Equities Rule 1.1 (defining ETP Holder as a
registered broker or dealer that is a sole proprietorship,
partnership, corporation, limited liability company, or other
organization in good standing that has been issued an Equity Trading
Permit or ``ETP'').
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2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with section 6(b) of the Act,\13\ in general, and furthers the
objectives of section 6(b)(5) of the Act,\14\ in particular, in that it
is designed to prevent fraudulent and manipulative acts and practices,
to promote just and equitable principles of trade, to foster
cooperation and coordination with persons engaged in facilitating
transactions in securities, and to remove impediments to and perfect
the mechanism of a free and open market and a national market system.
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\13\ 15 U.S.C. 78f(b).
\14\ 15 U.S.C. 78f(b)(5).
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[[Page 73396]]
B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
The Exchange states that written comments on the proposed rule
change were neither solicited nor recieved.
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 [email protected]. Please include
File Number SR-NYSEArca-2007-128 on the subject line.
Paper Comments
Send paper comments in triplicate to Nancy M. Morris,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSEArca-2007-128.
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 such 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-2007-128 and should
be submitted on or before January 17, 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 finds that the proposed
rule change is consistent with section 6(b)(5) of the Act,\16\ which
requires that the rules of a national securities exchange be designed,
among other things, to promote just and equitable principles of trade,
to remove impediments to and perfect the mechanism of a free and open
market and a national market system, and, in general, to protect
investors and the public interest.
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\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).
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Although NYSE Arca Equities Rule 5.2(j)(3) permits the Exchange to
list and trade ICUs, the Shares do not meet all of the generic listing
requirements \17\ under such rule because the components of the Index
do not meet the requirements of Commentary .01(a)(B)(2) to NYSE Arca
Equities Rule 5.2(j)(3). Commentary .01(a)(B)(2) to NYSE Arca Equities
Rule 5.2(j)(3) requires that, upon the initial listing of any series of
ICUs pursuant to Rule 19b-4(e) under the Act, component stocks that, in
the aggregate, account for at least 90% of the weight of the Index or
portfolio, must each have a minimum worldwide trading volume during
each of the last six months of at least 250,000 shares. According to
the Exchange, as of December 10, 2007, those component stocks
comprising the Index that individually exceed the minimum worldwide
monthly trading volume of 250,000 shares during each of the previous
six months, in the aggregate, accounted for only 88% of the weight of
the Index. Such percentage misses the minimum required threshold by 2%,
and therefore the Shares cannot be listed and traded pursuant to the
generic listing standards of NYSE Arca Equities Rule 5.2(j)(3).
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\17\ The generic listing requirements under NYSE Arca Equities
Rule 5.2(j)(3) permit the listing and trading of ICUs pursuant to
Rule 19b-4(e) under the Act (17 CFR 240.19b-4(e)). Rule 19b-4(e)
provides that the listing and trading of a new derivative securities
product by a self-regulatory organization (``SRO'') shall not be
deemed a proposed rule change, pursuant to Rule 19b-4(c)(1), if the
Commission has approved, pursuant to Section 19(b) of the Act, the
SRO's trading rules, procedures, and listing standards for the
product class that would include the new derivatives securities
product, and the SRO has a surveillance program for the product
class.
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The Commission believes, however, that the listing and trading of
the Shares is consistent with the Act. The Commission notes that, based
on the Exchange's representations, the Shares otherwise meet all of the
other applicable generic listing standards under NYSE Arca Equities
Rule 5.2(j)(3). The Commission further notes that it has previously
approved the listing and trading of derivative securities products
based on indices that were composed of stocks that did not meet certain
quantitative generic listing criteria by only a slight margin.\18\
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\18\ See, e.g., Securities Exchange Act Release Nos. 55953 (June
25, 2007), 72 FR 36084 (July 2, 2007) (SR-NYSE-2007-46) (approving
the listing and trading of shares of the HealthShares\TM\ Orthopedic
Repair exchange-traded fund where the component stocks comprising
the index that individually exceeded the minimum worldwide monthly
trading volume of 250,000 shares during each of the last six months
accounted, in the aggregate, for 86.2% of the weight of the index)
and 56695 (October 24, 2007), 72 FR 61413 (October 30, 2007) (SR-
NYSEArca-2007-111) (approving the listing and trading of shares
Shares of the HealthShares\TM\ Ophthalmology exchange-traded fund
where the component stocks comprising the index that individually
exceeded the minimum worldwide monthly trading volume of 250,000
shares during each of the last six months accounted, in the
aggregate, for only 88.2% of the weight of the index).
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The Commission also finds that the proposal 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. Quotations and last-sale information for the Shares will be
disseminated through the facilities of the CTA. MSCI or third-party
major market data vendors will make available at least every 60 seconds
an updated Index value during the Exchange's Core Trading Session. In
addition, an independent third-party calculator will calculate and
disseminate the IOPV through the facilities of the CTA at least every
15 seconds during the Exchange's Core
[[Page 73397]]
Trading Session. Further, the Fund's Web site will disseminate
information relating to the NAV and the Bid/Ask Price for the Shares,
as well as the specific holdings of the Fund.
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\19\ 15 U.S.C. 78k-1(a)(1)(C)(iii).
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The Commission believes that the proposed rule change is reasonably
designed to promote fair disclosure of information that may be
necessary to appropriately price the Shares. Under Rule 5.2(j)(3)(v),
the Exchange is required to obtain a representation from iShares, Inc.
that the NAV per Share will be calculated daily and made available to
all market participants at the same time. In addition, the Exchange
represents that the Web site disclosure of the information regarding
the Shares and the portfolio composition of the Fund will be made to
all market participants at the same time. The Exchange further
represents that MSCI has procedures in place that comply with the
requirements of Commentary .01(b)(1) to NYSE Arca Equities Rule
5.2(j)(3), which relates to restricted access of information concerning
changes and adjustments to the Index.
The Commission further believes that the trading rules and
procedures to which the Shares would be subject pursuant to this
proposal are consistent with the Act. The Shares would trade as equity
securities and be subject to NYSE Arca's rules governing the trading of
equity securities. The Commission also believes that the Exchange's
trading halt rules under NYSE Arca Equities Rule 5.5(g)(2)(b) are
reasonably designed to prevent trading in the Shares when transparency
is impaired.
In support of this proposal, the Exchange has made the following
representations:
1. The Exchange would utilize its existing surveillance procedures
applicable to ICUs to monitor trading of the Shares. The Exchange
represents that such surveillance procedures are adequate to properly
monitor the trading of the Shares. The Exchange may obtain trading
information via the ISG from other exchanges that are members or
affiliate members of ISG.\20\
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\20\ See supra note 11.
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2. Prior to the commencement of trading, the Exchange will inform
its ETP Holders in the Bulletin of the special characteristics and
risks (including the risks involved in trading the shares during the
Opening and Late Trading Sessions when an updated IOPV will not be
calculated or publicly available) associated with trading the Shares.
The Bulletin will discuss the procedures for purchases and redemptions
of Shares, the Exchange's suitability requirements, information
regarding the IOPV, and prospectus delivery requirements.
3. The Exchange represents that iShares, Inc. is required to comply
with Rule 10A-3 under the Act \21\ for the initial and continued
listing of the Shares.
\21\ 17 CFR 240.10A-3.
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 the Shares are substantially similar in
structure, operation, and function to the shares of other exchange-
traded funds, the shares of which are currently listed and trading in
the marketplace.\23\ As mentioned above, the Commission has previously
approved the listing and trading of other derivative securities
products based on indices that narrowly missed a quantitative generic
listing criterion but satisfied all the others.\24\ Given that the
Shares comply with all of NYSE Arca's initial generic listing standards
for ICUs (except for the one requirement of Commentary .01(a)(B)(2) to
NYSE Arca Equities Rule 5.2(j)(3)) and would be subject to NYSE Arca's
continued listing requirements for ICUs under NYSE Arca Equities Rule
5.5(g)(2), the listing and trading of the Shares does not appear to
present any novel or significant regulatory issues. Therefore, 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. Accordingly, the
Commission finds that there is good cause, consistent with section
6(b)(5) of the Act,\25\ to approve the proposed rule change, as
modified by Amendment No. 1 thereto, on an accelerated basis.
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\22\ 15 U.S.C. 78s(b)(2).
\23\ See, e.g., Securities Exchange Release Nos. 52178 (July 29,
2005), 70 FR 46244 (August 9, 2005) (SR-NYSE-2005-41) (approving the
listing and trading of shares of the iShares MSCI EAFE Growth Index
Fund and the iShares MSCI EAFE Value Index Fund, the underlying
indices of which are composed of non-U.S. component stocks) and
52761 (November 10, 2005), 70 FR 70010 (November 18, 2005) (SR-NYSE-
2005-76) (approving the listing and trading of shares of a number of
iShares foreign equity index funds).
\24\ See supra note 18.
\25\ 15 U.S.C. 78f(b)(5).
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V. Conclusion
IT IS THEREFORE ORDERED, pursuant to section 19(b)(2) under the
Act,\26\ that the proposed rule change (SR-NYSEArca-2007-128), as
modified by Amendment No. 1 thereto, be, and it hereby is, approved on
an accelerated basis.
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\26\ 15 U.S.C. 78s(b)(2).
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\27\
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\27\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E7-24988 Filed 12-26-07; 8:45 am]
BILLING CODE 8011-01-P