[Federal Register Volume 75, Number 205 (Monday, October 25, 2010)]
[Notices]
[Pages 65539-65541]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-26806]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-63129; File No. SR-NYSEArca-2010-91]
Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change Relating to
Amendment to NYSE Arca Equities Rule 8.500 To Accommodate Trading of
Trust Units
October 19, 2010.
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 12, 2010, 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. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 15 U.S.C. 78a.
\3\ 17 CFR 240.19b-4.
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[[Page 65540]]
I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange proposes to amend NYSE Arca Equities Rule 8.500
(``Trust Units'') to provide that the issuers of Trust Units listed or
traded pursuant to unlisted trading privileges (``UTP'') may invest
directly in investments comprising or otherwise based on any
combination of futures contracts, options on futures contracts, forward
contracts, swap contracts, commodities and/or securities rather than
solely in the assets of a trust, partnership, limited liability
company, corporation or other similar entity constituted as a commodity
pool that holds such investments. The text of the proposed rule change
is available at the Exchange, the Commission's Public Reference Room,
and at the Exchange's Web site at 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 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 the
Statutory Basis for, the Proposed Rule Change
1. Purpose
NYSE Arca Equities Rule 8.500 permits listing or trading pursuant
to UTP of Trust Units, which are defined as securities that are issued
by a trust or other similar entity that invests in the assets of a
trust, partnership, limited liability company, corporation or other
similar entity constituted as a commodity pool that holds investments
comprising or otherwise based on any combination of futures contracts,
options on futures contracts, forward contracts, swap contracts,
commodities and/or securities.\4\ NYSE Arca Equities Rule 8.500 was
adopted in contemplation of the trading pursuant to UTP of shares of
the Nuveen Commodities Income and Growth Fund (``Fund''), sponsored by
Nuveen Investments, Inc. (``Nuveen''). The Exchange proposes to amend
NYSE Arca Equities Rule 8.500(b)(2) to provide that the issuers of
Trust Units listed or traded pursuant to UTP may invest directly in
investments comprising or otherwise based on any combination of futures
contracts, options on futures contracts, forward contracts, swap
contracts, commodities and/or securities rather than solely in the
assets of a trust, partnership, limited liability company, corporation
or other similar entity constituted as a commodity pool that holds such
investments.
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\4\ See Securities Exchange Act Release No. 57059 (December 28,
2007), 73 FR 909 (January 4, 2008) (SR-NYSEArca-2006-76) (notice of
filing and order granting accelerated approval of proposed rule
change relating to trading shares of the Nuveen Commodities Income
and Growth Fund pursuant to UTP).
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The American Stock Exchange LLC (``Amex'') (now known as NYSE Amex
LLC (``NYSE Amex'')) initially had proposed to list the Fund and
adopted Amex Rules 1600 et seq. in contemplation of such listing.\5\
The Fund did not commence listing on Amex in the form described in the
Initial Amex Notice. Nuveen subsequently proposed to go forward with a
listing of shares (the ``Shares'') of the Fund on NYSE Amex under a new
name, the Nuveen Diversified Commodity Fund. The Fund proposed to
utilize a modified investment plan, which was described in detail in
the NYSE Amex proposed rule change filed in connection with listing the
Fund.\6\ As described in the NYSE Amex Notice, the Fund determined not
to utilize the master/feeder structure described in the Initial Amex
Notice due to a change in the interpretation of applicable tax law by
the Internal Revenue Service. Instead, the Fund would make its own
direct investments. Consequently, NYSE Amex proposed to amend the
definition of Trust Units in NYSE Amex Rule 1600 to remove the master/
feeder structure requirement and permit the listing of Trust Units
where the issuer is constituted as a commodity pool which invests
directly in commodities and commodity derivatives. The Commission
approved listing of the Fund on NYSE Amex, and trading of the Fund on
NYSE Amex commenced on September 28. 2010.\7\
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\5\ See Securities Exchange Act Release No. 56880 (December 3,
2007), 72 FR 69259 (December 7, 2007) (SR-Amex-2006-96) (order
approving proposed rule change relating to listing and trading of
Trust Units of the Nuveen Commodities Income and Growth Fund). The
investment plan of the Fund was described in detail in the Amex's
Form 19b-4 and in the notice published for SR-Amex-2006-96. See
Securities Exchange Act Release No. 56465 (September 19, 2007), 72
FR 54489 (September 25, 2007) (``Initial Amex Notice'').
\6\ See Securities Exchange Act Release No. 61571 (February 23,
2010) 75 FR 9265 (March 1, 2010) (SR-NYSE-Amex-2010-09) (notice of
filing of proposed rule change amending NYSE Amex Trust Unit Rules
and proposing the listing of the Nuveen Diversified Commodity Fund)
(``NYSE Amex Notice'').
\7\ The Commission approved the proposed rule change in
Securities Exchange Act Release No. 61807 (March 31, 2010), 75 FR
17818 (April 7, 2010) (SR-NYSE-Amex-2010-09) (order approving
proposed rule change amending NYSE Amex Trust Unit rules and
proposing the listing of the Nuveen Diversified Commodity Fund)
(``NYSE Amex Approval Order'').
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In order to accommodate trading of Shares of the Fund on the
Exchange pursuant to UTP, the Exchange proposes to amend NYSE Arca
Equities Rule 8.500(b)(2) to define the term ``Trust Units'' as a
security that is issued by a trust or similar entity constituted as a
commodity pool that holds investments comprising or otherwise based on
any combination of futures contracts, options on futures contracts,
forward contracts, swap contracts, commodities and/or securities. The
proposed rule change is substantially identical to that approved for
NYSE Amex in the NYSE Amex Approval Order, except that proposed NYSE
Arca Equities Rule 8.500(b)(2) continues to include the words ``and/or
securities'', which are not included in NYSE Amex Rule 1600. The
Exchange represents that all representations regarding the Fund listed
and traded on NYSE Amex, as described in the NYSE Amex Notice and NYSE
Amex Approval Order, continue to apply.
2. Statutory Basis
The proposed rule change is consistent with Section 6(b) \8\ of the
Act, in general, and furthers the objectives of Section 6(b)(5),\9\ 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 mechanisms of a free and open
market and a national market system. The Exchange believes that the
proposed rule change will facilitate the trading pursuant to UTP of an
additional type of exchange-traded product that will enhance
competition among market participants, to the benefit of investors and
the marketplace.
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\8\ 15 U.S.C. 78f(b).
\9\ 15 U.S.C. 78f(b)(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
[[Page 65541]]
necessary or appropriate in furtherance of the purposes of the Act.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
No written comments were solicited or received with respect to the
proposed rule change.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
The Exchange has filed the proposed rule change pursuant to Section
19(b)(3)(A)(iii) of the Act \10\ and Rule 19b-4(f)(6) thereunder.\11\
Because the proposed rule change does not: (i) Significantly affect the
protection of investors or the public interest; (ii) impose any
significant burden on competition; and (iii) become operative prior to
30 days from the date on which it was filed, or such shorter time as
the Commission may designate, if consistent with the protection of
investors and the public interest, the proposed rule change has become
effective pursuant to Section 19(b)(3)(A) of the Act \12\ and Rule 19b-
4(f)(6)(iii) thereunder.\13\
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\10\ 15 U.S.C. 78s(b)(3)(A)(iii).
\11\ 17 CFR 240.19b-4(f)(6).
\12\ 15 U.S.C. 78s(b)(3)(A).
\13\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires the Exchange to give the Commission written notice of the
Exchange's intent to file the proposed rule change along with a
brief description and text of the proposed rule change, at least
five business days prior to the date of filing of the proposed rule
change, or such shorter time as designated by the Commission. The
Exchange has satisfied this requirement.
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A proposed rule change filed under Rule 19b-4(f)(6) normally does
not become operative for 30 days after the date of filing. However,
Rule 19b-4(f)(6)(iii) permits the Commission to designate a shorter
time if such action is consistent with the protection of investors and
the public interest. The Exchange requests that the Commission waive
the 30-day operative delay so that the Exchange can trade, on a UTP
basis, shares of the Fund immediately. The Exchange believes that the
immediate trading of shares of the Fund will promote competition among
exchange markets trading such shares. The Commission believes that
waiving the 30-day operative delay to permit the Exchange to trade, on
a UTP basis, shares of the Fund without delay is consistent with the
protection of investors and the public interest.\14\ The Commission
notes that the proposed amendments to NYSE Arca Equities Rule 8.500 are
similar to amendments to NYSE Amex Rule 1600, previously approved by
the Commission \15\ and therefore do not raise any new regulatory
issues. For these reasons, the Commission designates the proposed rule
change as operative upon filing.\16\
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\14\ For purposes only of waiving the 30-day operative delay,
the Commission has also considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
\15\ See Securities Exchange Act Release No. 61807 (March 31,
2010), 75 FR 17818 (April 7, 2010) (SR-NYSE-Amex-2010-09).
\16\ The Commission notes that this proposed rule change only
permits trading of products under the proposed modifications to
Exchange Rule 8.500 on and after the effective date of this filing
and does not relate to any trading under such proposed rules prior
to such date.
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At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act.
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 e-mail to [email protected]. Please include
File No. SR-NYSEArca-2010-91 on the subject line.
Paper Comments
Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.
All submissions should refer to File No. SR-NYSEArca-2010-91. 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 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
a.m. and 3 p.m. Copies of such filing also will be available for
inspection and copying at the principal office of NYSE Arca.\17\ 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. SR-NYSEArca-2010-91 and should be
submitted on or before November 15, 2010.
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\17\ The text of the proposed rule change is available on the
Commission's Web site at www.sec.gov.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\18\
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\18\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-26806 Filed 10-22-10; 8:45 am]
BILLING CODE 8011-01-P