[Federal Register Volume 77, Number 17 (Thursday, January 26, 2012)]
[Notices]
[Pages 4079-4082]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-1582]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-66201; File No. SR-NYSEArca-2011-86]


 Self-Regulatory Organizations; NYSE Arca, Inc.; Order Granting 
Approval of Proposed Rule Change To List and Trade the Accuvest Global 
Opportunities ETF Under NYSE Arca Equities Rule 8.600

January 20, 2012.

I. Introduction

    On November 16, 2011, NYSE Arca, Inc. (``Exchange'' or ``NYSE 
Arca'') filed with the Securities and Exchange Commission 
(``Commission''), pursuant to Section 19(b)(1) of the Securities 
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a 
proposed rule change to list and trade shares (``Shares'') of the 
Accuvest Global Opportunities ETF (``Fund'') under NYSE Arca Equities 
Rule 8.600. The proposed rule change was published for comment in the 
Federal Register on December 7, 2011.\3\ The Commission received no 
comments on the proposal. This order grants approval of the proposed 
rule change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 65862 (December 1, 
2011), 76 FR 76457 (``Notice'').
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II. Description of the Proposed Rule Change

    The Exchange proposes to list and trade the Shares of the Fund 
pursuant to NYSE Arca Equities Rule 8.600, which governs the listing 
and trading of Managed Fund Shares on the Exchange. The Shares will be 
offered by AdvisorShares Trust (``Trust''), a statutory trust organized 
under the laws of the State of Delaware and registered with the 
Commission as an open-end management investment company.\4\ The 
investment adviser to the Fund is AdvisorShares Investments, LLC 
(``Adviser''). Accuvest Global Advisers is the Fund's sub-adviser 
(``Sub-Adviser'') and provides day-to-day portfolio management of the 
Fund. Foreside Fund Services, LLC is the principal underwriter and 
distributor of the Fund's Shares. The Exchange states that neither the 
Adviser nor the Sub-Adviser is affiliated with a broker-dealer.\5\
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    \4\ The Trust is registered under the Investment Company Act of 
1940 (``1940 Act''). On May 9, 2011, the Trust filed with the 
Commission Post-Effective Amendment No. 25 to Form N-1A under the 
Securities Act of 1933 (15 U.S.C. 77a) and under the 1940 Act 
relating to the Fund (File Nos. 333-157876 and 811-22110) 
(``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. 29291 (May 28, 
2010) (File No. 812-13677) (``Exemptive Order'').
    \5\ See Commentary .06 to NYSE Arca Equities Rule 8.600. The 
Exchange represents that 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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Description of the Fund

    The Fund will seek long-term capital appreciation in excess of 
global equity benchmarks such as the MSCI All Country World Index. The 
Fund will be a ``fund-of-funds'' that seeks to achieve its investment 
objective by investing primarily in other U.S.-listed exchange-traded 
products (``Underlying ETPs'').\6\ The Sub-Adviser will seek to achieve 
the Fund's investment objective by investing in Underlying ETPs that 
provide diversified exposure to select economies around the world. The 
Sub-Adviser will rank countries on a monthly basis using its 
proprietary country ranking model in order to determine their relative 
attractiveness. The Sub-Adviser then will endeavor to invest in 
Underlying ETPs that individually or in combination correspond 
generally to the price and yield performance of the specific countries 
(or regions) identified as most attractive by the model. The Fund's 
portfolio will be invested only in countries with the highest ranking 
as

[[Page 4080]]

identified by the Sub-Adviser's proprietary country ranking process.
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    \6\ Underlying ETPs include Investment Company Units (as 
described in NYSE Arca Equities Rule 5.2(j)(3)); Portfolio 
Depositary Receipts (as described in NYSE Arca Equities Rule 8.100); 
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); Trust Units (as 
described in NYSE Arca Equities Rule 8.500); Managed Fund Shares (as 
described in NYSE Arca Equities Rule 8.600), and closed-end funds. 
The Underlying ETPs all will be listed and traded in the United 
States on registered exchanges. The Underlying ETPs in which the 
Fund may invest will primarily be index-based exchange-traded funds 
that hold substantially all of their assets in securities 
representing a specific index.
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    The Fund intends to invest primarily in the securities of 
Underlying ETPs 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 Fund will only make such investments in 
conformity with the requirements of Section 817 of the Internal Revenue 
Code of 1986, as amended (``Code'').\7\
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    \7\ 26 CFR 1.817-5.
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    The Fund, through its investment in Underlying ETPs, may invest in 
equity securities, which 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, 
investments in master limited partnerships and American Depositary 
Receipts (``ADRs''), as well as Global Depositary Receipts (``GDRs,'' 
and together with ADRs, collectively, ``Depositary Receipts'').\8\ 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, through its investment in Underlying 
ETPs, may invest in shares of real estate investment trusts, which are 
pooled investment vehicles that invest primarily in real estate or real 
estate related loans.
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    \8\ 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. The underlying shares are held in trust by a custodian 
bank or similar financial institution in the issuer's home country. 
The depositary bank may not have physical custody of the underlying 
securities at all times and may charge fees for various services.
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    The Underlying ETPs in which the Fund will invest will primarily 
hold substantially all of their assets in securities representing a 
country (or region) specific index. The Underlying ETPs may invest in 
complex securities such as equity options, index options, repurchase 
agreements, foreign currency contracts, swaps, and futures contracts.

Investment Process and Portfolio Construction

    The Sub-Adviser has developed its proprietary country ranking model 
around the premise that in the long run, country-specific effects are 
the most important drivers of global equity returns. Through its 
country ranking model, the Sub-Adviser ranks countries on a monthly 
basis in order to determine their relative merit.
    The Sub-Adviser will use a four step process to create its 
portfolio allocations:
    1. Qualify Countries: In order to determine which countries are to 
be included in the country ranking model, the Sub-Adviser will apply 
two consistent criteria. All qualified countries (a) must be part of 
the MSCI All Country World Index and (b) have a liquid Underlying ETP 
that tracks the performance of its equity market.
    2. Analyze Factor Data: The Sub-Adviser will collect and analyze 
monthly factor data on every qualified country in the model. Currently, 
the Sub-Adviser uses nearly 40 factors that are classified within 
fundamental (e.g., short-term earnings growth), momentum (e.g., 3 month 
local price momentum), risk (e.g., change in 30-day standard 
deviation), and valuation (e.g., earnings growth) factor groups.
    3. Rank Countries: Each month the Sub-Adviser will use the weighted 
individual factor scores for each country in the model to assign each 
country a relative attractiveness score. This monthly score will be 
used to rank countries from most attractive to least attractive.
    4. Create Portfolio: The Sub-Adviser will create the portfolio 
based on the underlying attractiveness score of each country in the 
model. The most attractive five to six countries will receive 
allocations in the portfolio, and the Sub-Adviser will purchase single 
country Underlying ETPs that represent investments in those countries' 
equity markets. No single country Underlying ETP may receive more than 
a 25% allocation at purchase price.

Other Investments

    To respond to adverse market, economic, political, or other 
conditions,\9\ the Fund may invest 100% of its total assets, without 
limitation, in high-quality, short-term debt securities and money 
market instruments. The Fund may be invested in these instruments for 
extended periods, depending on the Sub-Adviser's assessment of market 
conditions. These short-term 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,\10\ 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.
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    \9\ Adverse market conditions would include large downturns in 
the broad market value of two or more times current average 
volatility, where the Sub-Adviser views such downturns as likely to 
continue for an extended period of time. Adverse economic conditions 
would include significant negative results in factors deemed 
critical at the time by the Sub-Adviser, including significant 
negative results regarding unemployment, Gross Domestic Product, 
consumer spending, or housing numbers. Adverse political conditions 
would include events such as government overthrows or instability, 
where the Sub-Adviser expects that such events may potentially 
create a negative market or economic condition for an extended 
period of time.
    \10\ The Fund may enter into repurchase agreements with 
financial institutions, which may be deemed to be loans. The Fund 
follows certain procedures designed to minimize the risks inherent 
in such agreements. These procedures include effecting repurchase 
transactions only with large, well-capitalized, and well-established 
financial institutions whose condition will be continually monitored 
by the Sub-Adviser. In addition, the value of the collateral 
underlying the repurchase agreement will always be at least equal to 
the repurchase price, including any accrued interest earned on the 
repurchase agreement. In the event of a default or bankruptcy by a 
selling financial institution, the Fund will seek to liquidate such 
collateral. In addition, the Fund may enter into reverse repurchase 
agreements without limit as part of the Fund's investment strategy. 
Reverse repurchase agreements involve sales by the Fund of portfolio 
assets concurrently with an agreement by the Fund to repurchase the 
same assets at a later date at a fixed price.
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    While under normal market conditions the Fund will primarily invest 
in Underlying ETPs, the Fund may, to a limited extent, invest directly 
in other investments. The Fund, or the Underlying ETPs in which it 
invests, may invest in U.S. government securities. The Fund may invest 
in exchange-traded notes (``ETNs'').\11\ The Fund, or the Underlying 
ETPs in which it invests, may invest in U.S. Treasury zero-coupon 
bonds.\12\
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    \11\ ETNs are debt obligations of investment banks which are 
traded on exchanges and the returns of which are linked to the 
performance of market indexes.
    \12\ These securities are U.S. Treasury bonds which have been 
stripped of their unmatured interest coupons, the coupons 
themselves, and receipts or certificates representing interests in 
such stripped debt obligations and coupons. Interest is not paid in 
cash during the term of these securities, but is accrued and paid at 
maturity.
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    The Fund will seek to qualify for treatment as a regulated 
investment company under Subchapter M of the Code. The Fund may not (i) 
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, more than 5% of its total assets would be invested in 
the securities of such issuer, or (ii) acquire more than 10% of the 
outstanding voting securities of any one issuer. In addition, the Fund 
may not invest 25% or more of its total assets

[[Page 4081]]

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.
    The Fund will not purchase illiquid securities, including Rule 144A 
securities and loan participation interests. Further, in accordance 
with the Exemptive Order, the Fund will not invest in options 
contracts, futures contracts, or swap agreements. The Fund's 
investments will be consistent with the Fund's investment objective and 
will not be used to enhance leverage. Except for Underlying ETPs that 
may hold non-U.S. issues, the Fund will not otherwise invest in non-
U.S. issues.
    Additional information regarding the Trust, Fund, Shares, Fund's 
investment strategies, risks, creation and redemption procedures, fees, 
portfolio holdings and disclosure policies, distributions and taxes, 
availability of information, trading rules and halts, and surveillance 
procedures, among other things, can be found in the Notice and the 
Registration Statement, as applicable.\13\
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    \13\ See Notice and Registration Statement, supra notes 3 and 4, 
respectively.
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III. Discussion and Commission's Findings

    The Commission has carefully reviewed the proposed rule change and 
finds that it is consistent with the requirements of Section 6 of the 
Act and the rules and regulations thereunder applicable to a national 
securities exchange.\14\ In particular, the Commission finds that the 
proposal is consistent with Section 6(b)(5) of the Act,\15\ which 
requires, among other things, that the Exchange's rules be 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 notes that 
the Fund and the Shares must comply with the requirements of NYSE Arca 
Equities Rule 8.600 to be listed and traded on the Exchange.
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    \14\ In approving this proposed rule change, the Commission has 
considered the proposed rule's impact on efficiency, competition, 
and capital formation. See 15 U.S.C. 78c(f).
    \15\ 17 U.S.C. 78f(b)(5).
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    The Commission finds that the proposal to list and trade the Shares 
on the Exchange is consistent with Section 11A(a)(1)(C)(iii) of the 
Act,\16\ 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. 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. 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 Exchange's Core Trading Session.\17\ 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 the 
net asset value (``NAV'') at the end of the business day.\18\ The Fund 
will calculate NAV once each business day as of the regularly scheduled 
close of trading on the New York Stock Exchange (normally 4 p.m. 
Eastern Time). In addition, 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 the previous day's closing price and trading 
volume information for the Shares will be published daily in the 
financial section of newspapers. The Fund's Web site will also include 
a form of the prospectus for the Fund, information relating to NAV, and 
other quantitative and trading information. Moreover, a basket 
composition file, which includes the security names and share 
quantities required to be delivered in exchange for Fund Shares, 
together with estimates and actual cash components, will be publicly 
disseminated daily prior to the opening of the NYSE via the National 
Securities Clearing Corporation.
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    \16\ 15 U.S.C. 78k-1(a)(1)(C)(iii).
    \17\ According to the Exchange, several major market data 
vendors display and/or make widely available Portfolio Indicative 
Values published on the CTA or other data feeds.
    \18\ On a daily basis, the Adviser will disclose on the Fund's 
Web site for each portfolio security or other financial instrument 
of the Fund the following information: Ticker symbol (if 
applicable), name of security or financial instrument, number of 
shares or dollar value of financial instruments held in the 
portfolio, and percentage weighting of the security or financial 
instrument in the portfolio. The Web site information will be 
publicly available at no charge.
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    The Commission further believes that the proposal to list and trade 
the Shares is reasonably designed to promote fair disclosure of 
information that may be necessary to price the Shares appropriately and 
to prevent trading when a reasonable degree of transparency cannot be 
assured. The Commission notes that 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.\19\ 
In addition, the Exchange will halt trading in the Shares under the 
specific circumstances set forth in NYSE Arca Equities Rule 
8.600(d)(2)(D), and may halt trading in the Shares if trading is not 
occurring in the securities and/or the financial instruments comprising 
the Disclosed Portfolio of the Fund, or if other unusual conditions or 
circumstances detrimental to the maintenance of a fair and orderly 
market are present.\20\ The Exchange will consider the suspension of 
trading in or removal from listing of the Shares if the Portfolio 
Indicative Value is no longer calculated or available or the Disclosed 
Portfolio is not made available to all market participants at the same 
time.\21\ The Exchange represents that neither the Adviser nor the Sub-
Adviser is affiliated with a broker-dealer.\22\

[[Page 4082]]

Further, the Commission notes that the Reporting Authority that 
provides the Disclosed Portfolio must implement and maintain, or be 
subject to, procedures designed to prevent the use and dissemination of 
material non-public information regarding the actual components of the 
portfolio.\23\ The Exchange states that it has a general policy 
prohibiting the distribution of material, non-public information by its 
employees. The Commission also notes that the Exchange is able to 
obtain information with respect to the Underlying ETPs from the U.S. 
exchanges, which are members of the Intermarket Surveillance Group, 
listing and trading such Underlying ETPs.
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    \19\ See NYSE Arca Equities Rule 8.600(d)(1)(B).
    \20\ 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. 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.
    \21\ See NYSE Arca Equities Rule 8.600(d)(2)(C)(ii).
    \22\ See supra note 5 and accompanying text. The Commission 
notes that 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.
    \23\ See NYSE Arca Equities Rule 8.600(d)(2)(B)(ii).
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    The Exchange further represents that the Shares are deemed to be 
equity securities, thus rendering trading in the Shares subject to the 
Exchange's existing rules governing the trading of equity securities. 
In support of this proposal, the Exchange has made representations, 
including:

    (1) The Shares will conform to the initial and continued listing 
criteria under NYSE Arca Equities Rule 8.600.
    (2) The Exchange has appropriate rules to facilitate 
transactions in the Shares during all trading sessions.
    (3) The Exchange's surveillance procedures applicable to 
derivative products, which include Managed Fund Shares, 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. All Underlying ETPs will be 
listed on national securities exchanges, all of which are members of 
the Intermarket Surveillance Group.
    (4) Prior to the commencement of trading, the Exchange will 
inform its Equity Trading Permit (``ETP'') Holders in an Information 
Bulletin of the special characteristics and risks associated with 
trading the Shares. Specifically, the Information Bulletin will 
discuss the following: (a) The procedures for purchases and 
redemptions of Shares in Creation Unit aggregations (and that Shares 
are not individually redeemable); (b) 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; (c) 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; (d) how information regarding the Portfolio Indicative 
Value is disseminated; (e) 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 (f) trading 
information.
    (5) For initial and/or continued listing, the Fund will be in 
compliance with Rule 10A-3 under the Act,\24\ as provided by NYSE 
Arca Equities Rule 5.3.
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    \24\ See 17 CFR 240.10A-3.
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    (6) The Fund will not: (a) Purchase illiquid securities, 
including Rule 144A securities and loan participation agreements; 
(b) pursuant to the terms of the Exemptive Order, invest in options 
contracts, futures contracts, or swap agreements; and (c) except for 
Underlying ETPs that may hold non-U.S. issues, otherwise invest in 
non-U.S. issues.
    (7) The Fund's investments will be consistent with the Fund's 
investment objective and will not be used to enhance leverage.
    (8) A minimum of 100,000 Shares of the Fund will be outstanding 
at the commencement of trading on the Exchange.

    This approval order is based on the Exchange's representations.
    For the foregoing reasons, the Commission finds that the proposed 
rule change is consistent with Section 6(b)(5) of the Act \25\ and the 
rules and regulations thereunder applicable to a national securities 
exchange.
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    \25\ 15 U.S.C. 78f(b)(5).
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IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\26\ that the proposed rule change (SR-NYSEArca-2011-86) be, and it 
hereby is, approved.
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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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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-1582 Filed 1-25-12; 8:45 am]
BILLING CODE 8011-01-P