[Federal Register Volume 79, Number 216 (Friday, November 7, 2014)]
[Notices]
[Pages 66442-66445]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26461]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-73512; File No. SR-NYSEArca-2014-107]


Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
of Proposed Rule Change, as Modified by Amendment No. 1 Thereto, To 
Reflect Changes to the Means of Achieving the Investment Objective 
Applicable to the Guggenheim Enhanced Short Duration ETF

November 3, 2014.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby 
given that, on October 21, 2014, NYSE Arca, Inc. (the ``Exchange'' or 
``NYSE Arca'') filed with the Securities and Exchange Commission (the 
``Commission'') the proposed rule change as described in Items I and II 
below, which Items have been prepared by the self-regulatory 
organization. On October 29, 2014, the Exchange filed Amendment No. 1 
to the proposal.\4\ The Commission is publishing this notice to solicit 
comments on the proposed rule change, as modified by Amendment No. 1 
thereto, from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78s(b)(1).
    \3\ 17 CFR 240.19b-4.
    \4\ Amendment No. 1 clarified the last sentence in footnote 6 of 
the proposed rule change filing and footnote 7 of the Exchange's 
Exhibit 1 by replacing the sentence with the following: ``The asset-
back securities in which the Fund may invest include collateralized 
debt obligations, as described in the Prior Release.''
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I. Self-Regulatory Organization's Statement of the Terms of the 
Substance of the Proposed Rule Change

    The Exchange proposes to submit a rule change to reflect changes to 
the means of achieving the investment objective applicable to the 
Guggenheim Enhanced Short Duration ETF (the ``Fund''). The shares of 
the Fund are currently listed and traded on the Exchange under NYSE 
Arca Equities Rule 8.600. 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 Commission has approved listing and trading on the Exchange of 
shares (``Shares'') of the Guggenheim Enhanced Short Duration ETF, a 
series of Claymore Exchange-Traded Fund Trust (the ``Trust''),\5\ under 
NYSE Arca

[[Page 66443]]

Equities Rule 8.600, which governs the listing and trading of Managed 
Fund Shares. The Shares of the Fund are currently listed and traded on 
the Exchange under NYSE Arca Equities Rule 8.600.
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    \5\ See Securities Exchange Act Release No. 64550 (May 26, 
2011), 76 FR 32005 (June 2, 2011) (SR-NYSEArca-2011-11) (order 
approving listing and trading on the Exchange of the Guggenheim 
Enhanced Core Bond ETF and Guggenheim Enhanced Ultra-Short Bond ETF) 
(``Prior Order''). See also Securities Exchange Act Release No. 
64224 (April 7, 2011), 76 FR 20401 (April 12, 2011) (SR-NYSEArca-
2011-11) (``Prior Notice,'' and together with the Prior Order, the 
``Prior Release''). The name of the Guggenheim Enhanced Ultra-Short 
Bond ETF was changed to the Guggenheim Enhanced Short Duration Bond 
ETF in a supplement to the Registration Statement (as defined below) 
effective December 5, 2011, and was further changed to Guggenheim 
Enhanced Short Duration ETF in a supplement to the Registration 
Statement (as defined below) effective September 27, 2013 
(``September 27, 2013 Amendment''). The Fund and the Shares are 
currently in compliance with the listing standards and other rules 
of the Exchange and the requirements set forth in the Prior Release.
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    The Shares are offered by the 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.\6\ The 
investment advisor to the Fund is Guggenheim Funds Investment Advisors, 
LLC (the ``Adviser'').\7\
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    \6\ The Trust is registered under the Investment Company Act of 
1940 (15 U.S.C. 80a-1) (``1940 Act''). On September 27, 2013, the 
Trust filed with the Commission an amendment to its registration 
statement on Form N-1A under the Securities Act of 1933 (15 U.S.C. 
77a) (``Securities Act''), and under the 1940 Act relating to the 
Fund (File Nos. 333-134551 and 811-21906) (``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. 29271, May 18, 2010 (File No. 812-13534) 
(``Exemptive Order'').
    \7\ The Fund's investment advisor was previously named Claymore 
Advisors, LLC. On September 10, 2010, Claymore Advisors, LLC changed 
its name to Guggenheim Funds Investment Advisors, LLC.
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    In this proposed rule change, the Exchange proposes to reflect 
changes to the description of the measures the Adviser will utilize to 
implement the Fund's investment objective, as described below.
    First, the Prior Release stated that the Fund may invest up to 10% 
of its assets in mortgage-backed securities (``MBS'') or in other 
asset-backed securities (``ABS'')\8\; this limitation does not apply to 
securities issued or guaranteed by federal agencies and/or U.S. 
government sponsored instrumentalities, such as the Government National 
Mortgage Administration (``GNMA''), the Federal Housing Administration 
(``FHA''), the Federal National Mortgage Association (``FNMA''), and 
the Federal Home Loan Mortgage Corporation (``FHLMC''). Going forward, 
the Fund proposes to have this limit apply to such privately issued 
MBS; however, the Fund may invest up to 50% of its assets in ABS \9\ 
that are not mortgage-related. This 50% limitation would not apply to 
securities issued or guaranteed by federal agencies and/or U.S. 
government sponsored instrumentalities, such as the GNMA, FHA, FNMA, 
and FHLMC. In addition, such holdings would be subject to the 
respective limitations on the Fund's investments in illiquid assets and 
high yield securities, as described below.
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    \8\ As stated in the Prior Release, the Fund may invest in MBS 
or other asset-backed securities issued or guaranteed by private 
issuers. The MBS in which the Fund may invest may also include 
residential mortgage-backed securities, collateralized mortgage 
obligations and commercial mortgage-backed securities. The asset-
backed securities in which the Fund may invest include 
collateralized debt obligations, as described in the Prior Release.
    \9\ ABS are bonds backed by pools of loans or other receivables. 
ABS are securitized by a wide variety of assets and are generally 
broken into 3 categories: consumer, commercial, and corporate. The 
consumer category includes credit card, auto loan, student loan, and 
timeshare loan ABS. The commercial category includes trade 
receivables, equipment leases, oil receivables, film receivables, 
rental cars, aircraft securitizations, ship and container 
securitizations, whole business securitizations, and diversified 
payment right securitizations. Corporate ABS include cash flow 
collateralized loan obligations, collateralized by both middle 
market and broadly syndicated bank loans. ABS are issued through 
special purpose vehicles that are bankruptcy remote from the issuer 
of the collateral. The credit quality of an ABS tranche depends on 
the performance of the underlying assets and the structure. To 
protect ABS investors from the possibility that some borrowers could 
miss payments or even default on their loans, ABS include various 
forms of credit enhancement.
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    The Adviser represents that this change to the Fund's investment 
limitations would allow the Adviser to better achieve the Fund's 
investment objective to seek maximum current income, consistent with 
preservation of capital and daily liquidity. Moreover, the Fund's 
increased investment in ABS that are not mortgage-related will continue 
to adhere to the Fund's investment strategy of investing in short 
duration fixed income securities.\10\
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    \10\ The Fund will target floating rate, shorter maturity, 
shorter spread duration and other amortizing securities. These 
securities' maturity and spread duration are consistent with the 
Fund's investment objective.
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    Because the Fund may invest no more than 10% of its net assets in 
high yield securities (``junk bonds''), which are debt securities that 
are rated below investment grade by nationally recognized statistical 
rating organizations (``NRSROs''), or are unrated securities that the 
Adviser believes are of comparable quality, the preponderance of the 
Fund's investments in ABS will be in investment grade instruments. Due 
to the quality of ABS in which the Fund will invest, the Adviser does 
not expect that the Fund's additional investments in ABS that are not 
mortgage-related will expose the Fund to additional liquidity risk.
    Second, the Prior Release stated that the Fund may invest up to an 
aggregate amount of 15% of its net assets in: (1) Illiquid securities; 
and (2) Rule 144A securities. Going forward, the Fund proposes that the 
Fund may hold up to an aggregate amount of 15% of its net assets in 
illiquid assets (calculated at the time of investment),\11\ including 
Rule 144A securities deemed illiquid by the Adviser, consistent with 
Commission guidance.\12\ The Exchange notes that the Commission has 
approved proposals that have included similar representations relating 
to issues of Managed Fund Shares proposed to be listed and traded on 
the Exchange.\13\ The Adviser represents that the Adviser and the 
Trust's Board of Trustees will continue to evaluate each Rule 144A 
security based on the Fund's valuation procedures to oversee liquidity 
and valuation concerns. With respect to investment in illiquid assets, 
if changes in the values of the Fund's assets cause the Fund's holdings 
of illiquid assets to exceed the 15% limitation (as if liquid assets 
have become illiquid), the Fund will take such actions as it deems 
appropriate and practicable to attempt to reduce its holdings of 
illiquid assets.
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    \11\ In reaching liquidity decisions, the Adviser may consider 
the following factors: the frequency of trades and quotes for the 
security; the number of dealers wishing to purchase or sell the 
security and the number of other potential purchasers; dealer 
undertakings to make a market in the security; and the nature of the 
security and the nature of the marketplace trades (e.g., the time 
needed to dispose of the security, the method of soliciting offers, 
and the mechanics of transfer).
    \12\ 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 Securities Act).
    \13\ See, e.g., Securities Exchange Act Release No. 70282 
(August 29, 2013), 78 FR 54700 (September 5, 2013) (order approving 
listing and trading on the exchange of First Trust Inflation Managed 
Fund).
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    Third, the Prior Release stated that the Fund primarily will invest 
in U.S. dollar-denominated investment grade debt securities rated Baa 
or higher by Moody's Investors Service, Inc. (``Moody's''), or 
equivalently rated by Standard & Poor's Rating Group (``S&P'') or Fitch 
Investor Services (``Fitch''), or, if unrated, determined by the 
Adviser to be of comparable quality.
    Going forward, the Exchange proposes to change the representation 
that the Fund primarily will invest in U.S. dollar-denominated 
investment grade debt securities rated Baa or higher, as described 
above, to a representation that

[[Page 66444]]

the Fund primarily will invest in U.S. dollar-denominated investment 
grade debt securities rated Baa3 or higher by Moody's,\14\ or 
equivalently rated by S&P, Fitch, or by any other NRSRO, or, if 
unrated, determined by the Adviser to be of comparable quality. By 
being permitted to invest in U.S. dollar-denominated investment grade 
debt securities rated Baa3 or higher, as described above, the Fund will 
be able to invest in a broader range of investment grade debt 
securities, which will assist the Fund in meeting its investment 
objective. In addition, by being permitted to consider ratings issued 
by all NRSROs, which are registered with the Commission, the Fund will 
be able to assess a broader range of available information regarding 
the characteristics and quality of securities that it may consider for 
investment.
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    \14\ Baa3 is the lowest tier within the Baa rating.
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    Fourth, the Prior Release stated that the Fund will invest at least 
80% of its net assets in fixed income securities. Going forward, the 
Fund proposes that it will invest at least 80% of its net assets in 
fixed income securities, and in exchange-traded funds (``ETFs'') and 
closed-end funds that invest substantially all of their assets in fixed 
income securities.\15\ All such ETFs and closed-end funds would be 
listed on a U.S. national securities exchange. The Adviser represents 
that, by allowing the Fund to invest in ETFs and closed-end funds that 
invest substantially all of their assets in fixed-income securities and 
have such investments count towards the Fund's 80% threshold (thus 
allowing the Fund to invest in excess of 20% of its assets in such ETFs 
and closed-end funds), the Fund may be able to realize its investment 
objective in a more diversified and efficient manner than is currently 
available under the Fund's current 20% limitation on non-fixed income 
securities investments. Possible increased investments in such ETFs and 
closed-end funds would give the Fund access to a diverse set of fixed-
income securities in an efficient fashion, with the liquidity and 
transparency of a U.S. exchange-traded security.
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    \15\ For purposes of this filing, ETFs 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); and Managed Fund Shares (as described in NYSE Arca 
Equities Rule 8.600). The Fund will invest in the securities of ETFs 
registered under the 1940 Act 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.
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    The Exchange notes that the Prior Release stated that the Fund is 
considered non-diversified under the 1940 Act and can invest a greater 
portion of assets in securities of individual issuers than a 
diversified fund.\16\ In the September 27, 2013 Amendment, the Trust 
amended this representation to state that the Fund is considered a 
diversified fund. This change was made because, in view of the Fund's 
investments, the Fund has been operating in a manner consistent with a 
diversified fund for three years and, pursuant to Commission guidance, 
the Fund has amended its disclosure in that regard. The revised 
representation in the September 27, 2013 Amendment reflects this fact.
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    \16\ The diversification standard is set forth in Section 
5(b)(1) of the 1940 Act (15 U.S.C. 80a-5(b)(1)). The Fund intends to 
maintain the level of diversification necessary to qualify as a 
regulated investment company (``RIC'') under Subchapter M of the 
Internal Revenue Code of 1986, as amended (26 U.S.C. 851).
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    The Adviser represents that there is no change to the Fund's 
investment objective. The Fund will continue to comply with all initial 
and continued listing requirements under NYSE Arca Equities Rule 8.600.
    Except for the changes noted above, all other facts presented and 
representations made in the Prior Release remain unchanged.
    All terms referenced but not defined herein are defined in the 
Prior Release.
2. Statutory Basis
    The basis under the Act for this proposed rule change is the 
requirement under Section 6(b)(5) \17\ 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.
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    \17\ 15 U.S.C. 78f(b)(5).
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    The Exchange believes that the proposed rule change is designed to 
prevent fraudulent and manipulative acts and practices in that the 
Shares will continue to be listed and traded on the Exchange pursuant 
to the initial and continued listing criteria in NYSE Arca Equities 
Rule 8.600. The Adviser represents that increasing the Fund's 
flexibility to invest in ABS that are not mortgage-related would allow 
the Adviser to better achieve the Fund's investment objective to seek 
maximum current income, consistent with preservation of capital and 
daily liquidity. Moreover, the Fund's increased investment in ABS that 
are not mortgage-related will continue to adhere to the Fund's 
investment strategy of investing in short duration fixed income 
securities. In addition, such holdings would be subject to the 
limitation of the Fund's investments in illiquid assets, as described 
above. Because the Fund may invest no more than 10% of its net assets 
in junk bonds, which are debt securities that are rated below 
investment grade by nationally recognized statistical rating 
organizations, or are unrated securities that the Adviser believes are 
of comparable quality, the preponderance of the Fund's investments in 
ABS will be in investment grade instruments. With respect to the 15% 
limitation on investments in illiquid assets, including Rule 144A 
securities deemed illiquid by the Adviser, consistent with Commission 
guidance, the Exchange notes that the Commission has approved proposals 
that have included similar representations relating to issues of 
Managed Fund Shares proposed to be listed and traded on the 
Exchange.\18\ The Adviser represents that the Adviser and the Trust's 
Board of Trustees will continue to evaluate each Rule 144A security 
based on the Fund's valuation procedures to oversee liquidity and 
valuation concerns.
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    \18\ See note 12, supra [sic].
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    With respect to the representation above that the Fund primarily 
will invest in U.S. dollar-denominated investment grade debt securities 
rated Baa3 or higher (instead of Baa or higher) by Moody's, or 
equivalently rated by S&P, Fitch, or by any other NRSRO, or, if 
unrated, determined by the Adviser to be of comparable quality, by 
being permitted to invest in U.S. dollar-denominated investment grade 
debt securities rated Baa3 or higher, as described above, the Fund will 
be able to invest in a broader range of investment grade debt 
securities, which will assist the Fund in meeting its investment 
objective. In addition, with respect to the Fund utilizing ratings of 
any NRSRO, rather than only enumerated NRSROs, in connection with its 
fixed income investments, by being permitted to consider ratings issued 
by all NRSROs, which are registered with the Commission, the Fund will 
be able to assess a broader range of available information regarding 
the characteristics and quality of securities that it may consider for 
investment.
    With respect to the proposal for the Fund to invest at least 80% of 
its net assets in fixed income securities, and in ETFs and closed-end 
funds that invest substantially all of their assets in fixed income 
securities, the Exchange notes that all such ETFs and closed-end funds 
would be listed on a U.S. national

[[Page 66445]]

securities exchange. The Adviser represents that, by allowing the Fund 
to invest in ETFs and closed-end funds that invest substantially all of 
their assets in fixed-income securities and have such investments count 
towards the Fund's 80% threshold, the Fund may be able to realize its 
investment objective in a more diversified and efficient manner than is 
currently available under the Fund's current 20% limitation on non-
fixed income securities investments. Possible increased investments in 
such ETFs and closed-end funds would give the Fund access to a diverse 
set of fixed-income securities in an efficient fashion, with the 
liquidity and transparency of a U.S. exchange-traded security.
    With respect to the Fund's operation as a diversified Fund, this 
change was made because, in view of the Fund's investments, the Fund 
has been operating in a manner consistent with a diversified fund for 
three years and, pursuant to Commission guidance, the Fund has amended 
its disclosure in that regard. The revised representation in the 
September 27, 2013 Amendment reflects this fact.
    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 Adviser represents that there is no change to the Fund's 
investment objective. The Fund will continue to comply with all initial 
and continued listing requirements under NYSE Arca Equities Rule 8.600. 
The Adviser represents that the purpose of the proposed changes is to 
provide additional flexibility to the Adviser to meet the Fund's 
investment objective, as discussed above.
    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 the Fund will continue to comply with all 
initial and continued listing requirements under NYSE Arca Equities 
Rule 8.600. The Adviser represents that the purpose of the proposed 
changes is to provide additional flexibility to the Adviser to meet the 
Fund's investment objective, as discussed above. The Adviser represents 
that there is no change to the Fund's investment objective. Except for 
the changes noted above, all other facts presented and representations 
made in the Prior Release remain unchanged.

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. The proposed changes to the 
Fund's means of achieving the investment objective will permit the Fund 
to adjust its portfolio to allow the Fund to continue to meet its 
investment objectives in the most efficient manner possible and will 
enhance competition among issues of Managed Fund Shares that invest in 
fixed income securities.

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 up to 90 days (i) as the 
Commission may designate if it finds such longer period to be 
appropriate and publishes its reasons for so finding or (ii) as to 
which the self-regulatory organization consents, the Commission will: 
(a) By order approve or disapprove such 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 [email protected]. Please include 
File Number SR-NYSEArca-2014-107 on the subject line.

Paper Comments

     Send paper comments in triplicate to Brent J. Fields, 
Secretary, Securities and Exchange Commission, 100 F Street NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSEArca-2014-107. 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 Room, 100 F Street NE., 
Washington, DC 20549, on official business days between the hours of 
10:00 a.m. and 3:00 p.m. Copies of the filing also will be available 
for inspection and copying at the principal office of the Exchange. All 
comments received will be posted without change; the Commission does 
not edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly. All 
submissions should refer to File Number SR-NYSEArca-2014-107 and should 
be submitted on or before November 28, 2014.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\19\
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    \19\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2014-26461 Filed 11-6-14; 8:45 am]
BILLING CODE 8011-01-P