[Federal Register Volume 75, Number 46 (Wednesday, March 10, 2010)]
[Notices]
[Pages 11221-11223]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-5066]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-61639; File No. SR-NYSEArca-2010-09]
Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change Relating to Listing
of Wilshire 5000 Total Market ETF and the Wilshire 4500 Completion ETF
March 3, 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 February 25, 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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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange proposes to list and trade the shares of the Wilshire
5000 Total Market ETF and the Wilshire 4500 Completion ETF under NYSE
Arca Equities Rule 5.2(j)(3). The text of the proposed rule change is
available at the Exchange, 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 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
[[Page 11222]]
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
The Exchange proposes to list and trade the shares (``Shares'') of
the Wilshire 5000 Total Market ETF and the Wilshire 4500 Completion ETF
(each, a ``Fund'', and, collectively, ``Funds'') under NYSE Arca
Equities Rule 5.2(j)(3), the Exchange's listing standards for
Investment Company Units (``ICUs'') \4\. Each of the Funds is a series
of the Claymore Exchange-Traded Fund Trust.
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\4\ An Investment Company Unit is a security that represents an
interest in a registered investment company that holds securities
comprising, or otherwise based on or representing an interest in, an
index or portfolio of securities (or holds securities in another
registered investment company that holds securities comprising, or
otherwise based on or representing an interest in, an index or
portfolio of securities). See NYSE Arca Equities Rule 5.2(j)(3)(A).
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The Wilshire 5000 Total Market ETF seeks investment results that
correspond generally to the performance, before the Fund's fees and
expenses of the Wilshire 5000 Total Market Index (``Wilshire
5000'').\5\ The Wilshire 4500 Completion ETF seeks investment results
that correspond generally to the performance, before the Fund's fees
and expenses of the Wilshire 4500 Completion Index (``Wilshire 4500'',
and, together with the Wilshire 5000, the ``Underlying Indexes'').\6\
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\5\ The Wilshire 5000 Index is designed to represent the total
U.S. equity market. The Wilshire 5000 Index includes all U.S. equity
securities that have readily available prices.
\6\ The Wilshire 4500 Index is a subset of the Wilshire 5000
Total Market Index. Designed to represent the extended market, the
Wilshire 4500 Index is the Wilshire 5000 Index with the components
of the S&P 500 Index excluded.
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The Exchange is submitting this proposed rule change because the
Underlying Indexes for the Funds do not meet all of the ``generic''
listing requirements of Commentary .01(a)(A) to NYSE Arca Equities Rule
5.2(j)(3) applicable to listing of ICUs based on US indexes. The
Underlying Indexes meets all such requirements except for that set
forth in Commentary .01(a)(A)(5).\7\ Specifically, as of January 21,
2010, stocks comprising 99.952% of the weight of the Wilshire 5000 were
NMS stocks and stocks comprising 99.734% of the weight of the Wilshire
4500 were NMS stocks.\8\
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\7\ Commentary .01(a)(A)(5) to NYSE Arca Equities Rule 5.2(j)(3)
provides that all securities in the index or portfolio shall be U.S.
Component Stocks listed on a national securities exchange and shall
be NMS Stocks as defined in Rule 600 of Regulation NMS under the
Securities Exchange Act of 1934 (17 U.S.C. 78a) (``Act''). NYSE Arca
Equities Rule 5.2(j)(3) defines the term ``U.S. Component Stock'' as
an equity security that is registered under Sections 12(b) or 12(g)
of the Act or an American Depositary Receipt, the underlying equity
security of which is registered under Sections 12(b) or 12(g) of the
Act.
\8\ As of January 21, 2010, the Wilshire 5000 and Wilshire 4500
each included 197 non-NMS stocks. Such stocks are traded either on
the OTC Bulletin Board or the Pink OTC Markets.
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The Exchange represents that: (1) Except for Commentary
.01(a)(A)(5) to NYSE Arca Equities Rule 5.2(j)(3), the Shares of the
Fund currently satisfy all of the generic listing standards under NYSE
Arca Equities Rule 5.2(j)(3); (2) the continued listing standards under
NYSE Arca Equities Rules 5.2(j)(3) and 5.5(g)(2) applicable to ICUs
shall apply to the Shares; and (3) the Trust is required to comply with
Rule 10A-3 \9\ under the Act for the initial and continued listing of
the Shares. In addition, the Exchange represents that the Shares will
comply with all other requirements applicable to ICUs including, but
not limited to, requirements relating to the dissemination of key
information such as the value of the Underlying Indexes and Intraday
Indicative Value, rules governing the trading of equity securities,
trading hours, trading halts, surveillance, and Information Bulletin to
ETP Holders, as set forth in Exchange rules applicable to ICUs and
prior Commission orders approving the generic listing rules applicable
to the listing and trading of ICUs.\10\
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\9\ 17 CFR 240.10A-3.
\10\ See, e.g., Securities Exchange Act Release No. 44551 (July
12, 2001), 66 FR 37716 (July 19, 2001) (SR-PCX-2001-14) (order
approving generic listing standards for ICUs and Portfolio
Depositary Receipts); Securities Exchange Act Release No. 41983
(October 6, 1999), 64 FR 56008 (October 15, 1999) (SR-PCX-98-29)
(order approving rules for listing and trading of ICUs).
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Detailed descriptions of the Funds, the Underlying Indexes,
procedures for creating and redeeming Shares, transaction fees and
expenses, dividends, distributions, taxes, risks, and reports to be
distributed to beneficial owners of the Shares can be found in the
Registration Statement \11\ or on the Web site for the Funds (http://www.claymore.com), as applicable.
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\11\ See the Claymore Exchange-Traded Fund Trust Registration
Statement on Form N-1A, dated December 18, 2009 (File Nos. 333-
134551; 811-21906) (``Registration Statement'').
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2. Statutory Basis
The proposed rule change is consistent with section 6(b) \12\ of
the Act, in general, and furthers the objectives of section
6(b)(5),\13\ 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 listing and trading 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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\12\ 15 U.S.C. 78f(b).
\13\ 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 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 \14\ and Rule 19b-4(f)(6) thereunder.\15\
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 \16\ and Rule 19b-
4(f)(6)(iii) thereunder.\17\
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\14\ 15 U.S.C. 78s(b)(3)(A)(iii).
\15\ 17 CFR 240.19b-4(f)(6).
\16\ 15 U.S.C. 78s(b)(3)(A).
\17\ 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 the pre-filing requirement.
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[[Page 11223]]
A proposed rule change filed under Rule 19b-4(f)(6) \18\ normally
does not become operative prior to 30 days after the date of the
filing. However, pursuant to Rule 19b4(f)(6)(iii),\19\ the Commission
may designate a shorter time if such action is consistent with the
protection of investors and the public interest. The Exchange has
requested that the Commission waive the 30-day operative delay so that
the proposal may become operative immediately upon filing. The Exchange
states that the proposed rule change does not significantly affect the
protection of investors or the public interest and does not impose any
significant burden on competition. In addition, the Exchange believes
that it has developed adequate trading rules, procedures, surveillance
programs, and listing standards for the continued listing and trading
of the Shares.
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\18\ 17 CFR 240.19b-4(f)(6).
\19\ 17 CFR 240.19b-4(f)(6)(iii).
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The Commission believes that waiving the 30-day operative delay is
consistent with the protection of investors and the public interest.
The Commission notes that the Underlying Indexes for the Funds fail to
meet the requirements set forth in Commentary .01(a)(A)(5) to NYSE Arca
Equities Rule 5.2(j)(3) by only a small amount and that Exchange has
represented that the Shares of the Funds currently satisfy all of the
other generic listing standards under NYSE Arca Equities Rule 5.2(j)(3)
and all other requirements applicable to ICUs, as set forth in Exchange
rules and prior Commission orders approving the generic listing rules
applicable to the listing and trading of ICUs. Therefore, the
Commission believes that the listing and trading of the Shares do not
present any novel or significant issues or impose any significant
burden on competition, and that waiving the 30-day operative delay will
benefit the market and investors by providing market participants with
additional investing choices. For these reasons, the Commission
designates the proposed rule change as operative under upon filing.\20\
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\20\ For purposes only of waiving the 30-day operative delay,
the Commission has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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At any time within 60 days of the filing of the proposed rule
change, the Commission may summarily abrogate 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 Number SR-NYSEArca-2010-09 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 Number SR-NYSEArca-2010-09. 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 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-2010-09 and should be submitted on or before March 31, 2010.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\21\
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\21\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-5066 Filed 3-9-10; 8:45 am]
BILLING CODE 8011-01-P