[Federal Register: September 4, 2008 (Volume 73, Number 172)]
[Notices]
[Page 51684-51686]
[DOCID:fr04se08-75]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-58437; File No. SR-NYSEArca-2008-77]

Self-Regulatory Organizations; NYSE Arca, Inc.; Order Approving
Proposed Rule Change To List and Trade the Barclays Middle East
Equities (MSCI GCC) Non Exchange Traded Notes Due 2038

August 28, 2008.

I. Introduction

    On July 17, 2008, NYSE Arca, Inc. (``Exchange'' or ``NYSE Arca''),
through its wholly owned subsidiary, NYSE Arca Equities, Inc. (``NYSE
Arca Equities''), 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 the Barclays Middle East
Equities (MSCI GCC) Non Exchange Traded Notes Due 2038. The proposed
rule change was published for comment in the Federal Register on July
29, 2008.\3\ The Commission received no comment letters on the proposed
rule change. This order approves 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. 58208 (July 22,
2008), 73 FR 43968.
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II. Description of the Proposed Rule Change

    The Exchange proposed to list and trade shares of the Barclays
Middle East Equities (MSCI GCC) Non Exchange Traded Notes Due 2038
(``Notes''), which are linked to the MSCI Gulf Cooperation Council
(GCC) Countries ex-Saudi Arabia Net Total Return Index\SM\ (U.S.
dollar) (``Index''), under NYSE Arca Equities Rule 5.2(j)(6), which
includes the Exchange's listing standards for Equity Index-Linked
Securities.\4\ The Notes are senior unsecured debt obligations of
Barclays Bank PLC (``Barclays''). The Index is comprised of all of the
equity securities (each an ``Index Component'' and, collectively, the
``Index Components'') that are included in the following five
individual country indices (each a ``Country Index'' and, collectively,
the ``Country Indices''): (1) MSCI Bahrain Index\SM\; (2) MSCI Kuwait
Index\SM\; (3) MSCI Oman Index\SM\; (4) MSCI Qatar Index\SM\; and (5)
MSCI United Arab Emirates Index\SM\. Each Country Index is a free
float-adjusted market capitalization index that is designed to measure
the market performance, including price performance and income from
dividend payments, of equity securities in the country it represents.
The Index and the Country Indices are calculated and maintained by
MSCI, Inc.
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    \4\ Equity Index-Linked Securities are securities that provide
for the payment at maturity of a cash amount based on the
performance of an underlying index or indexes of equity securities
(``Equity Reference Asset'').
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    The Exchange submitted the proposed rule change because the Index
does not meet all of the ``generic'' listing requirements of NYSE Arca
Equities Rule 5.2(j)(6) applicable to the listing of Equity Index-
Linked Securities. Specifically, the Index meets all such requirements
except for those set forth in NYSE Arca Equities Rules
5.2(j)(6)(B)(I)(1)(b)(ii) \5\ and (v).\6\ The Exchange represented
that: (1) Except for NYSE Arca Equities Rules 5.2(j)(6)(B)(I)(1)(b)(ii)
and (v), the Notes currently satisfy all of the generic listing
standards under NYSE Arca Equities Rule 5.2(j)(6) applicable to Equity
Index-Linked Securities; (2) the continued listing standards under NYSE
Arca Equities Rule 5.2(j)(6) applicable to Equity Index-Linked
Securities shall apply to the Notes; and (3) Barclays is required to
comply with Rule 10A-3 under the Act \7\ for the initial and continued
listing of the Notes. In addition, the Exchange represented that the
Notes will comply with all other requirements applicable to Equity
Index-Linked Securities including, but not limited to, requirements
relating to the dissemination of key information such as the Equity
Reference Asset value and Intraday Indicative Value, rules and policies
governing the trading of equity securities, trading hours, trading
halts, surveillance, firewalls, and Information Bulletin to ETP
Holders, as set forth in prior Commission orders approving the generic
listing rules applicable to the listing and trading of Index-Linked

Securities, generally, and Equity Index-Linked Securities, in
particular.\8\
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    \5\ NYSE Arca Equities Rule 5.2(j)(6)(B)(I)(1)(b)(ii) provides
that each component security of the underlying index shall have
trading volume in each of the last six months of not less than
1,000,000 shares per month, except that for each of the lowest
dollar weighted component securities in the index that, in the
aggregate, account for no more than 10% of the dollar weight of the
index, the trading volume shall be at least 500,000 shares per month
in each of the last six months. The Exchange represented that as of
July 17, 2008, in each of the prior six months, 87.995% of the Index
had a trading volume of 1,000,000 shares, and 8.79% of the bottom
10% of the Index had a trading volume of 500,000 shares.
    \6\ NYSE Arca Equities Rule 5.2(j)(6)(B)(I)(1)(b)(v) provides
that all component securities of the underlying index shall be
either (A) securities (other than foreign country securities and
American Depositary Receipts (``ADRs'')) that are (x) issued by an
Act reporting company or by an investment company registered under
the Investment Company Act of 1940, which in each case is listed on
a national securities exchange, and (y) an ``NMS stock'' (as defined
in Rule 600 of Regulation NMS) or (B) foreign country securities or
ADRs, provided that foreign country securities or foreign country
securities underlying ADRs having their primary trading market
outside the United States on foreign trading markets that are not
members of the Intermarket Surveillance Group (``ISG'') or parties
to comprehensive surveillance sharing agreements with the Exchange
will not, in the aggregate, represent more than 20% of the dollar
weight of the index. See Securities Exchange Act Release No. 58376
(August 18, 2008), 73 FR 49726 (August 22, 2008) (SR-NYSEArca-2008-
70) (approving certain amendments to NYSE Arca Equities Rule
5.2(j)(6)(B)(I) and, as a result, the renumbering of NYSE Arca
Equities Rule 5.2(j)(6)(B)(I)(1)(b)(vi) to NYSE Arca Equities Rule
5.2(j)(6)(B)(I)(1)(b)(v), among other subsections).
    \7\ 17 CFR 240.10A-3.
    \8\ See, e.g., Securities Exchange Act Release Nos. 56637
(October 10, 2007), 72 FR 58704 (October 16, 2007) (SR-NYSEArca-
2007-92); 57132 (January 11, 2008), 73 FR 3300 (January 17, 2008)
(SR-NYSEArca-2007-125); 56838 (November 26, 2007), 72 FR 67774
(November 30, 2007) (SR-NYSEArca-2007-118); 56879 (December 3, 2007)
72 FR 69271 (December 7, 2007) (SR-NYSEArca-2007-110); and 52204
(August 3, 2005), 70 FR 46559 (August 10, 2005) (SR-PCX-2005-63).
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    The Exchange stated that it might be unable to obtain surveillance
information from the Middle East Exchanges regarding the component
stocks, but that it intended to use its existing surveillance
procedures applicable to derivative products to monitor trading in the
Notes. The Exchange represented that such procedures are adequate to
properly monitor Exchange trading of the Notes in all trading sessions
and to deter and detect violations of Exchange rules. The Exchange also
noted that its 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 appropriate, to review the behavior of all relevant
parties for all relevant trading violations. The Exchange added that it
may obtain information via ISG from other exchanges that are members of
ISG.\9\
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    \9\ For a list of the current members and affiliate members of
ISG, see http://www.isgportal.com.
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    Notwithstanding the Notes' inability to meet the requirements of
NYSE Arca Equities Rules 5.2(j)(6)(B)(I)(1)(b)(ii) and (v), the
Exchange stated that the Index is sufficiently broad-based in scope
and, as such, less susceptible to potential manipulation, insofar as
the Index contains 105 companies, listed in five countries, with no one
Middle East Exchange listing greater than 50% of the Index Components.
The Exchange further stated that no one Index Component dominates the
underlying Index.
    Detailed descriptions of the Notes, the Index (including the
methodology used to determine the composition of the Index), fees,
redemption procedures and payment at redemption, payment at maturity,
taxes, and risk factors relating to the Notes are available in the
Prospectus \10\ or on the Web site for the Notes (http://
www.barclays.com), as applicable.
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    \10\ See Barclay's Prospectus, as amended, filed pursuant to
Rule 424(b)(2) under the Act (File No. 333-145845).
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III. Discussion and Commission's Findings

    After careful review, the Commission finds that NYSE Arca's
proposal to list and trade the Notes is consistent with the Act and the
rules and regulations thereunder applicable to a national securities
exchange.\11\ In particular, the Commission finds that the proposed
rule change is consistent with Section 6(b)(5) of the Act,\12\ 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.
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    \11\ 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).
    \12\ 15 U.S.C. 78f(b)(5).
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    Although NYSE Arca Equities Rule 5.2(j)(6)(B)(I) permits the
Exchange to approve the listing and trading of Equity Index-Linked
Securities, the Notes do not meet all of the generic listing
requirements thereunder because the components of the Index do not meet
the requirements in NYSE Arca Equities Rules 5.2(j)(6)(B)(I)(1)(b)(ii)
and (v).\13\ NYSE Arca Equities Rule 5.2(j)(6)(B)(I)(1)(b)(ii) provides
that each component security of the underlying index shall have trading
volume in each of the last six months of not less than 1,000,000 shares
per month, except that for each of the lowest dollar weighted component
securities in the index that, in the aggregate, account for no more
than 10% of the dollar weight of the index, the trading volume shall be
at least 500,000 shares per month in each of the last six months.
According to the Exchange, as of July 17, 2008, in each of the prior
six months, 87.995% of the Index had a trading volume of 1,000,000
shares, and 8.79% of the bottom 10% of the Index had a trading volume
of 500,000 shares. Such percentages do not meet the minimum required
thresholds and, therefore, the Notes cannot be listed and traded
pursuant to the generic listing standards of NYSE Arca Equities Rule
5.2(j)(6)(B)(I) applicable to Equity Index-Linked Securities.
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    \13\ See supra notes 5 and 6, respectively, and accompanying
text.
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    In addition, NYSE Arca Equities Rule 5.2(j)(6)(B)(I)(1)(b)(v)
provides that all component securities of the underlying index shall be
either (A) securities (other than foreign country securities and ADRs)
that are (x) issued by an Act reporting company or by an investment
company registered under the Investment Company Act of 1940, which, in
each case, is listed on a national securities exchange, and (y) an
``NMS stock'' (as defined in Rule 600 of Regulation NMS) or (B) foreign
country securities or ADRs, provided that foreign country securities or
foreign country securities underlying ADRs having their primary trading
market outside the United States on foreign trading markets that are
not members of ISG or parties to comprehensive surveillance sharing
agreements with the Exchange will not, in the aggregate, represent more
than 20% of the dollar weight of the index. According to the Exchange,
in the case of the Notes, the components underlying the Index are
foreign country securities that trade on foreign trading markets with
which the Exchange has not entered into any comprehensive surveillance
sharing agreements. In addition, the Exchange stated that none of the
Middle East Exchanges are members of ISG.
    The Commission notes that the Exchange represents that it has
attempted, but to date has not been able, to enter into comprehensive
surveillance sharing agreements with the Middle East Exchanges. The
Commission further notes that, in certain limited circumstances, it has
previously approved the listing and trading of derivative securities
products based on indices that were composed of stocks for which a
national securities exchange has not entered into a comprehensive
surveillance sharing agreement with the relevant foreign exchange.\14\
The Exchange has represented that it intends to utilize its existing
surveillance procedures applicable to derivative products to monitor
trading in the Notes and that such procedures are adequate to properly
monitor Exchange trading of the Notes in all trading sessions and to
deter and detect violations of Exchange rules.
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    \14\ See, e.g., Securities Exchange Act Release No. 54944
(December 15, 2006), 71 FR 77432 (December 26, 2006) (SR-NYSE-2006-
69) (approving the listing and trading of exchange-traded notes
linked to the MSCI India Equities Index).
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    In addition, the Exchange has represented that the Notes will
comply with all other requirements applicable to Equity Index-Linked
Securities including, but not limited to, requirements relating to the
dissemination of key information such as the Equity Reference Asset
value and Intraday Indicative Value, rules and policies governing the
trading of equity securities, trading hours, trading halts,
surveillance, firewalls, and Information Bulletin to ETP Holders, as
set forth in prior Commission orders approving the generic listing
rules applicable to the listing and trading of Index-Linked

Securities, generally, and Equity Index-Linked Securities, in
particular.\15\
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    \15\ See supra note 8.
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    The Commission believes that the listing and trading of the Notes
is consistent with the Act. The Commission notes that, based on the
Exchange's representations, the Notes otherwise meet all of the other
applicable generic listing standards under NYSE Arca Equities Rule
5.2(j)(6). The Commission notes that the Index is composed of all of
the equity securities (103 stocks) that are included in five separate
Country Indices and has a total market capitalization of over $100
billion. The Commission further notes that it has previously approved
the listing and trading of derivative securities products based on
indices that were composed of stocks that did not meet certain
quantitative generic listing criteria.\16\
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    \16\ See Securities Exchange Act Release No. 57349 (February 19,
2008), 73 FR 10084 (February 25, 2008) (SR-NYSEArca-2008-22). See
also Securities Exchange Act Release Nos. 55953 (June 25, 2007), 72
FR 36084 (July 2, 2007) (SR-NYSE-2007-46); and 56695 (October 24,
2007), 72 FR 61413 (October 30, 2007) (SR-NYSEArca-2007-111).
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    For the foregoing reasons, the Commission believes that the
proposal to list and trade the Notes is consistent with the Act and
finds good cause for approving the proposed rule change. This order is
based on the Exchange's representations.
    It is therefore ordered, pursuant to Section 19(b)(2) of the Act,
that the proposed rule change (SR-NYSEArca-2008-77) be, and it hereby
is, approved.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\17\
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    \17\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-20470 Filed 9-3-08; 8:45 am]

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take final action on Connecticut's Regional Haze SIP, we will then take
final action on RCSA 22a-174-22d, at which point it will be federally
enforceable. Therefore, once today's action is finalized, all emission
limitations included as part of Connecticut's Regional Haze SIP will be
federally enforceable. EPA is proposing to find that Connecticut has
adequately addressed the enforceability of emission limitations and
control measures.
g. The Anticipated Net Effect on Visibility
    MANE-VU used the best and final emission inventory to model
progress expected toward the goal of natural visibility conditions for
the first regional haze planning period. All of the MANE-VU Class I
areas are expected to achieve greater progress toward the natural
visibility goal than the uniform rate of progress, or the progress
expected by extrapolating a trend line from current visibility
conditions to natural visibility conditions.\20\
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    \20\ Projected visibility improvements for each MANE-VU Class I
area can be found in the NESCAUM document dated May 13, 2008, ``2018
Visibility Projections'' (www.nescaum.org/documents/2018-visibility-projections-final-05-13-08.pdf/).
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    In summary, EPA is proposing to find that Connecticut has
adequately addressed the LTS regional haze requirements.

D. Consultation With States and Federal Land Managers

    On May 10, 2006, the MANE-VU State Air Directors adopted the Inter-
RPO State/Tribal and FLM Consultation Framework that documented the
consultation process within the context of regional phase planning, and
was intended to create greater certainty and understanding among RPOs.
MANE-VU States held ten consultation meetings and/or conference calls
from March 1, 2007 through March 21, 2008. In addition to MANE-VU
members attending these meetings and conference calls, participants
from the Visibility Improvement State and Tribal Association of the
Southeast (VISTAS) RPO, Midwest RPO, and the relevant Federal Land
Managers were also in attendance. In addition to the conference calls
and meeting, the FLMs were given the opportunity to review and comment
on each of the technical documents developed by MANE-VU.
    On February 4, 2009, Connecticut submitted a draft Regional Haze
SIP to the relevant FLMs for review and comment pursuant to 40 CFR
51.308(i)(2). The FLMs provided comments on the draft Regional Haze SIP
in accordance with 40 CFR 51.308(i)(3). The comments received from the
FLMs were addressed and incorporated in Connecticut's SIP revision.
Most of the comments were requests for additional detail as to various
aspects of the SIP. These comments and Connecticut's response to
comments can be found in the docket for this proposed rulemaking.
    On July 17, 2009, Connecticut proposed its Regional Haze SIP for
public hearing. Comments were received from U.S. EPA, the National Park
Service, the U.S. Department of Agriculture and a private citizen.\21\
To address the requirement for continuing consultation procedures with
the FLMs under 40 CFR 51.308(i)(4), Connecticut commits in its SIP to
ongoing consultation with the FLMs on emission strategies, major new
source permits, assessments or rulemaking concerning sources identified
as probable contributors to visibility impairment, any changes to the
monitoring strategy, work on the periodic revisions to the SIP, and
ongoing communications regarding visibility impairment.
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    \21\ The comments and CT DEEP's responses have been included in
the docket.
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    EPA is proposing to find that Connecticut has addressed the
requirements for consultation with the Federal Land Managers.

E. Periodic SIP Revisions and Five-Year Progress Reports

    Consistent with the requirements of 40 CFR 51.308(g), Connecticut
has committed to submitting a report on reasonable progress (in the
form of a SIP revision) to the EPA every five years following the
initial submittal of its regional haze SIP. The reasonable progress
report will evaluate the progress made towards the RPGs for the MANE-VU
Class I areas, located in Maine, New Hampshire, Vermont, and New
Jersey.
    Pursuant to 40 CFR 51.308(f), CT DEEP is required to submit
periodic revisions to its Regional Haze SIP by July 31, 2018, and every
ten years thereafter. CT DEEP acknowledges and agrees to comply with
this schedule.
    Pursuant to 40 CFR 51.308(d)(4)(v), CT DEEP will also make periodic
updates to the Connecticut emissions inventory. CT DEEP proposes to
complete these updates to coincide with the progress reports. Actual
emissions will be compared to projected modeled emissions in the
progress reports.
    Lastly, pursuant to 40 CFR 51.308(h), CT DEEP will submit a
determination of adequacy of its regional haze SIP revision whenever a
progress report is submitted. Connecticut's regional haze SIP states
that, depending on the findings of its five-year review, Connecticut
will take one or more of the following actions at that time, whichever
actions are appropriate or necessary:
     If Connecticut determines that the existing State
Implementation Plan requires no further substantive revision in order
to achieve established goals for visibility improvement and emissions
reductions, CT DEEP will provide to the EPA Administrator a negative
declaration that further revision of the existing plan is not needed.
     If CT DEEP determines that its implementation plan is or
may be inadequate to ensure reasonable progress as a result of
emissions from sources in one or more other State(s)

which participated in the regional planning process, Connecticut will
provide notification to the EPA Administrator and to those other
State(s). Connecticut will also collaborate with the other State(s)
through the regional planning process for the purpose of developing
additional strategies to address any such deficiencies in Connecticut's
plan.
     If Connecticut determines that its implementation plan is
or may be inadequate to ensure reasonable progress as a result of
emissions from sources in another country, Connecticut will provide
notification, along with available information, to the EPA
Administrator.
     If Connecticut determines that the implementation plan is
or may be inadequate to ensure reasonable progress as a result of
emissions from sources within the State, Connecticut will revise its
implementation plan to address the plan's deficiencies within one year
from this determination.

IV. What action is EPA proposing to take?

    EPA is proposing approval of Connecticut's November 18, 2009 SIP
revision as meeting the applicable requirements of the Regional Haze
Rule found in 40 CFR 51.308. In addition, EPA is proposing approval of
Connecticut's RCSA Section 22a-174-19a, ``Control of sulfur dioxide
emissions from power plants and other large stationary sources of air
pollution'' and revisions to RCSA Section 22a-174-22, ``Control of
Nitrogen Oxides Emissions,'' including subdivision 22a-174-22(e)(3),
and CGS 16a-21a, ``Sulfur content of home heating oil and off-road
diesel fuel. Suspension of requirements for emergency.'' Furthermore,
pursuant to CT DEEP's request under parallel processing, EPA is
proposing approval of Connecticut's proposed RCSA Section 22a-174-22d,
``Post-2011 Connecticut Ozone Season NOX Budget Program.''
Under this procedure, EPA prepared this action before the State's final
adoption of this regulation. Connecticut has already held a public
hearing on the proposed regulation and received public comment.
Connecticut may revise the regulation in response to comments. After
Connecticut submits its final adopted regulation, EPA will review this
regulation to determine whether it is significantly different from the
proposed regulation. EPA will determine whether it is appropriate to
approve the final rule with a description of any changes since the
proposal, re-propose action based on the final adopted regulations, or
take other actions as appropriate.
    RCSA 22a-174-22d is a replacement for RCSA 22a-174-22c, ``The Clean
Air Interstate Rule (CAIR) Nitrogen Oxides (NOX) Ozone
Season Trading Program,'' which is federally approved by EPA and
currently being implemented in Connecticut.

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve State
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this proposed action merely approves State law as meeting
Federal requirements and does not impose additional requirements beyond
those imposed by State law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the State, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: March 15, 2012.
Ira W. Leighton,
Acting Regional Administrator, EPA Region 1.
[FR Doc. 2012-7216 Filed 3-23-12; 8:45 am]
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