[Federal Register Volume 73, Number 130 (Monday, July 7, 2008)]
[Notices]
[Pages 38484-38487]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-15238]



[[Page 38484]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-58058; File No. SR-NYSEArca-2008-65]


Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
and Order Granting Accelerated Approval of Proposed Rule Change to 
Trade Shares of the MacroShares Oil Trusts Pursuant to Unlisted Trading 
Privileges

June 30, 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 June 19, 2008, NYSE Arca, Inc. (``NYSE Arca'' or the ``Exchange''), 
through its wholly owned subsidiary NYSE Arca Equities, Inc. (``NYSE 
Arca Equities'' or the ``Corporation''), 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. This order provides notice of the proposed 
rule change and approves the proposal 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 trade pursuant to unlisted trading 
privileges (``UTP'') 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'') 
(collectively, the ``Trusts''). 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.

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 trade pursuant to UTP shares of the Up 
Trust (``Up MacroShares'') and the Down Trust (``Down MacroShares'') 
(collectively, the ``Shares'') under NYSE Arca Equities Rule 8.400.\3\ 
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.\4\ Recently, the Commission approved a proposal by Amex to 
list and trade the Shares.\5\
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    \3\ The Commission approved trading a similar product on the 
Exchange pursuant to unlisted trading privileges (``UTP'') 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 those products for listing and 
trading on the American Stock Exchange LLC (``Amex''). See 
Securities Exchange Act Release No. 54839 (November 29, 2006), 71 FR 
70804 (December 6, 2006) (SR-Amex-2006-82).
    \4\ The Shares are being offered by the Trusts under the 
Securities Act of 1933. 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'').
    \5\ See Securities Exchange Act Release No. 58057 (June 30, 
2008). See also Securities Exchange Act Release No. 57925 (June 5, 
2008), 73 FR 33121 (SR-Amex-2008-36) (``Amex Notice'').
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(a) Description of the Fund and the Trust
    The Up Trust and the Down Trust intend to issue Up MacroShares and 
Down MacroShares, respectively, on a continuous basis at the direction 
of authorized participants, as described in the Amex Notice. The Up 
MacroShares and the Down MacroShares represent undivided beneficial 
interests in the Up Trust and the Down Trust, respectively. The assets 
of each Trust will include an income distribution agreement and 
settlement contracts entered into with the other Trust. Under the 
income distribution agreement, as of any distribution date, each Trust 
will either (a) be required to pay all or a portion of its available 
income to the other Trust or (b) be entitled to receive all or a 
portion of the other Trust's available income, based, in each case, on 
the level of the Applicable Reference Price of Crude Oil (as defined 
below) for each day during the preceding calculation period. Under each 
settlement contract, in connection with the final scheduled termination 
date, an early termination date or any redemption date, each Trust will 
either (a) be required to make a final payment out of its assets to the 
other Trust or (b) be entitled to receive a final payment from the 
other Trust out of the assets of the other Trust, based, in each case, 
on the change in the level of the Applicable Reference Price of Crude 
Oil from its starting level on the closing date to its ending level on 
the relevant price determination day preceding the final scheduled 
termination date, early termination date, or redemption date, as the 
case may be.
    Each Trust will also hold U.S. Treasuries and repurchase agreements 
on U.S. Treasuries to secure its obligations under the income 
distribution agreement and the settlement contracts. Each Trust will 
make quarterly distributions of income on the treasuries and a final 
distribution of all assets it holds on deposit on the final scheduled 
termination date, an early termination date, or a redemption date.\4\ 
Each quarterly and final distribution will be based on the value of the 
Applicable Reference Price of Crude Oil, which is defined as the 
settlement price of the NYMEX division light sweet crude oil futures 
contract of the designated maturity, as established and reported by 
NYMEX on a per-barrel basis in U.S. dollars at the end of each price 
determination day. For this purpose, a price determination day refers 
to each day on which trading of the light sweet crude oil futures 
contract of the designated maturity occurs by open outcry on the 
trading floor of NYMEX.\6\ The Applicable Reference Price of Crude Oil 
is the reference value on the basis of which quarterly and final 
distributions on the Up MacroShares and Down MacroShares are 
calculated.
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    \6\ If trading of the NYMEX division's light sweet crude oil 
futures contract ceases to occur by open outcry and is transferred 
by NYMEX to an electronic platform, a price determination day will 
be based upon trading on such electronic platform.
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    With respect to the Up Trust, if the level of the Applicable 
Reference Price of Crude Oil on any price determination day exceeds its 
starting level on the closing date (the date on which the Trusts 
entered into the income distribution agreement), the underlying value 
of the Up Trust will increase to include all of its assets plus a 
portion of the assets of the paired Down Trust. Conversely, if the 
level of the Applicable Reference Price of Crude Oil

[[Page 38485]]

on any price determination day falls below its starting level, the Up 
Trust's underlying value will decrease because a portion of its assets 
will be included in the underlying value of the paired Down Trust. The 
underlying value of the Up Trust on each price determination day 
represents the aggregate amount of the assets in the paired Trusts to 
which the Up Trust would be entitled if the settlement contracts were 
settled on that day.
    With respect to the Down Trust, if the level of the Applicable 
Reference Price of Crude Oil on any price determination day exceeds its 
starting level on the closing date, the underlying value of the Down 
Trust will decrease because a portion of its assets will be included in 
the underlying value of the paired Up Trust. Conversely, if the level 
of the Applicable Reference Price of Crude Oil on any price 
determination day falls below its starting level, the Down Trust's 
underlying value will increase to include all of its assets plus a 
portion of the assets of the paired Up Trust. The underlying value of 
the Down Trust on each price determination day represents the aggregate 
amount of the assets in the paired Trusts to which the Down Trust would 
be entitled if the settlement contracts were settled on that day.
    The Registration Statements for the Trusts will provide a detailed 
description of 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.
(b) Availability of Information
    Intraday Indicative Values. According to the Amex Notice, 
throughout each price determination day, Amex, acting as the 
calculation agent for each Trust, will calculate and disseminate, at 
least every 15 seconds during regular Amex trading hours, 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. To enable this calculation, Amex 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 Amex trading day, the IIV 
calculated values will become fixed and will not be updated at such 
times that the NYMEX contract is not trading.\7\ 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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    \7\ The IIV calculated during the period following the daily 
opening of trading of the Shares on Amex 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. According to the Amex 
Notice, at the end of each price determination day, Amex will also 
calculate the premium or discount of the midpoint of the bid/offer for 
the Up MacroShares at the Amex close relative to the underlying value 
of one of those Shares for that price determination day, after the 
latter is calculated and provided to Amex by the trustee. Amex will 
also perform the same calculation with respect to the Down MacroShares. 
Amex will then post these premiums/discounts, together with the end-of-
day price information for the Shares, on its Web site at http://
www.amex.com/amextrader. Further, Amex will post on its Web site any 
corrections made by NYMEX to the Applicable Reference Price of Crude 
Oil that was reported by NYMEX for any price determination day. Amex 
also intends to 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.
    On each price determination day, State Street Bank and Trust 
Company, the trustee for the Up Trust and the Down Trust, will 
calculate the underlying value of the Up Trust and the Down Trust and 
the per-Share underlying value of the Up MacroShares and the Down 
MacroShares, based on the Applicable Reference Price of Crude Oil 
established and reported by NYMEX. The trustee will then provide such 
values to the administrative agent, which will post them on its Web 
site at http://www.macromarkets.com. All investors and market 
participants will have access to the administrative agent's 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.
(c) Trading Halts
    The Exchange represents that it will cease trading the Shares if 
the listing market stops trading the Shares because of a regulatory 
halt similar to a halt based on NYSE Arca Equities Rule 7.12. Trading 
in the Shares will also be governed by the trading halt provisions of 
NYSE Arca Equities Rule 7.34, relating to temporary interruptions in 
the calculation or wide dissemination of the IIV or the value of the 
underlying index, as applicable.
    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. NYSE Arca 
Equities 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 the Up MacroShares or the Down MacroShares is not disseminated to 
all market participants at the same time, it will halt trading in the 
relevant Shares until such time as the underlying value per share is 
available to all market participants.
(d) 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.
(e) 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

[[Page 38486]]

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 who are members of 
the ISG.\8\
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    \8\ For a list of the current members of 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.
(f) 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 
provides that an ETP Holder, before recommending a transaction, must 
have reasonable grounds to believe that the recommendation is suitable 
for the customer based on any facts disclosed by the customer as to his 
other security holdings and as to his financial situation and needs; 
\9\ (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.
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    \9\ Further, the rule provides, with a limited exception, that 
prior to the execution of a transaction recommended to a non-
institutional customer, the ETP Holder shall make reasonable efforts 
to obtain information concerning the customer's financial status, 
tax status, investment objectives, and any other information that 
the ETP Holder believes would be useful to make a recommendation. 
See Securities Exchange Act Release No. 54026 (June 21, 2006), 71 FR 
36850 (June 28, 2006) (SR-PCX-2005-115).
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    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 proposed rule change is consistent with Section 6(b)(5) of the 
Act \10\ which requires that the rules of the exchange 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 facilitate unlisted trading of an 
additional type of exchange-traded product that will enhance 
competition among market participants, to the benefit of investors and 
the marketplace. In addition, the listing and trading criteria set 
forth in the Rule 8.400 are intended to protect investors and the 
public interest.
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    \10\ 15 U.S.C. 78f(b)(5).
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    In addition, the proposed rule change is consistent with Rule 12f-5 
under the Act \11\ because it deems the Shares to be equity securities, 
thus rendering the Shares subject to the Exchange's rules governing the 
trading of equity securities.
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    \11\ 17 CFR 240.12f-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

    The Exchange has neither solicited nor received written comments on 
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 [email protected]. Please include 
File Number NYSEArca-2008-65 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 NYSEArca-2008-65. 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 No. NYSEArca-2008-65 and should be 
submitted on or before July 28, 2008.

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

    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.\12\ In 
particular, the Commission finds that the proposed rule change is 
consistent with Section 6(b)(5) of the Act,\13\ 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, 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 believes that 
this proposal should benefit investors by increasing

[[Page 38487]]

competition among markets that trade the Shares.
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    \12\ 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).
    \13\ 15 U.S.C. 78f(b)(5).
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    In addition, the Commission finds that proposal is consistent with 
Section 12(f) of the Act,\14\ which permits an exchange to trade, 
pursuant to UTP, a security that is listed and registered on another 
exchange.\15\ The Commission notes that it approved the original 
listing and trading of the Shares on Amex.\16\ The Commission also 
finds that the proposal is consistent with Rule 12f-5 under the 
Act,\17\ which provides that an exchange shall not extend UTP to a 
security unless the exchange has in effect a rule or rules providing 
for transactions in the class or type of security to which the exchange 
extends UTP. The Exchange has represented that it meets this 
requirement because it 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.
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    \14\ 15 U.S.C. 78l(f).
    \15\ Section 12(a) of the Act, 15 U.S.C. 78l(a), generally 
prohibits a broker-dealer from trading a security on a national 
securities exchange unless the security is registered on that 
exchange pursuant to Section 12 of the Act. Section 12(f) of the Act 
excludes from this restriction trading in any security to which an 
exchange ``extends UTP.'' When an exchange extends UTP to a 
security, it allows its members to trade the security as if it were 
listed and registered on the exchange even though it is not so 
listed and registered.
    \16\ See supra note 5.
    \17\ 17 CFR 240.12f-5.
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    The Commission further believes that the proposal is consistent 
with Section 11A(a)(1)(C)(iii) of the Act,\18\ which sets forth 
Congress's 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 for and last-sale information regarding the 
Shares will be disseminated through the facilities of the CTA and 
Consolidated Quote High Speed Lines. Amex will disseminate through the 
facilities of the CTA an IIV on a per-share basis at least every 15 
seconds during regular trading hours. Amex will post the premium or 
discount of the midpoint of the bid/offer, together with the end-of-day 
price information, for the Shares on its Web site. In addition, the 
per-Share underlying value for the Shares on each price determination 
day will be publicly disseminated.
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    \18\ 15 U.S.C. 78k-1(a)(1)(C)(iii).
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    The Commission also believes that the proposal is reasonably 
designed to prevent trading in the Shares when transparency is 
impaired. The Exchange represents that it will halt trading in the 
Shares if the listing market institutes a regulatory halt in trading in 
the Shares. The Exchange also has represented that it would follow the 
procedures with respect to trading halts set forth in NYSE Arca 
Equities Rule 7.34, which provides, inter alia, for trading halts in 
certain circumstances when the IIV is not being disseminated as 
anticipated. In addition, if the Exchange becomes aware that the 
underlying value per-Share of the Up MacroShares or the Down 
MacroShares is not disseminated to all market participants at the same 
time, it would halt trading in the relevant Shares until such time as 
the underlying value per-Share is available to all market participants.
    The Commission notes that, if the Shares should be delisted by the 
listing exchange, NYSE Arca would no longer have authority to trade the 
Shares pursuant to this order.
    In support of the proposed rule change, the Exchange has made the 
following representations:
    1. 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.
    2. The Exchange will inform its ETP Holders in a 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.
    3. The Bulletin will reference the requirement that ETP Holders 
deliver a prospectus to investors purchasing newly issued Shares prior 
to or concurrently with the confirmation of a transaction.
    This approval order is based on these representations.
    The Commission finds good cause for approving this proposed rule 
change prior to the thirtieth day after the publication of notice 
thereof in the Federal Register. As noted above, the Commission 
previously found that the listing and trading of these Shares on Amex 
is consistent with the Act.\19\ The Commission presently is not aware 
of any issue that would cause it to revisit that finding or preclude 
the trading of the Shares on the Exchange pursuant to UTP. Therefore, 
accelerating approval of this proposed rule change should benefit 
investors by creating, without undue delay, additional competition in 
the market for the Shares.
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    \19\ See supra note 5.
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V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the Act, 
that the proposed rule change (SR-NYSEArca-2008-65), is hereby approved 
on an accelerated basis.\20\
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    \20\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\21\
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    \21\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Acting Secretary.
 [FR Doc. E8-15238 Filed 7-3-08; 8:45 am]
BILLING CODE 8010-01-P