[Federal Register: January 8, 2009 (Volume 74, Number 5)]
[Notices]
[Page 840-842]
[DOCID:fr08ja09-60]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59175; File No. SR-FINRA-2008-066]

Self-Regulatory Organizations; Financial Industry Regulatory
Authority, Inc.; Notice of Filing and Immediate Effectiveness of
Proposed Rule Change To Reflect the Closing of the FINRA/NSX Trade
Reporting Facility on December 31, 2008

December 30, 2008.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on December 23, 2008, Financial Industry Regulatory Authority, Inc.
(``FINRA'') (f/k/a National Association of Securities Dealers, Inc.
(``NASD'')) filed with the Securities and Exchange Commission (``SEC''
or ``Commission'') the proposed rule change as described in Items I and
II below, which Items have been prepared by FINRA. FINRA submitted the
proposed rule change under Section 19(b)(3)(A) of the Act and Rule 19b-
4(f)(6) \3\ thereunder, which renders the proposal effective upon
filing with the Commission. 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\ 17 CFR 240.19b-4.
    \3\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    FINRA's proposed rule change reflects the closing of the FINRA/NSX
Trade Reporting Facility (the ``FINRA/NSX TRF'') as of the close of
business on December 31, 2008. The text of the proposed rule change is
attached as Exhibit 5.\4\
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    \4\ The Commission notes that while provided in Exhibit 5 to the
filing, the text of the proposed rule change is not attached to this
notice but is available at FINRA, the Commission's Public Reference
Room, and at http://www.finra.org.
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II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, FINRA 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 these statements may be examined at the places specified in
Item IV below. FINRA has prepared summaries, set forth in sections A,
B,

and C below, of the most significant aspects of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The FINRA/NSX TRF was approved by the SEC \5\ and commenced
operation in November 2006 to provide members a mechanism for reporting
locked-in trades in NMS stocks, as defined in Rule 600(b)(47) of SEC
Regulation NMS, effected otherwise than on an exchange. The National
Stock Exchange, Inc. (``NSX''), the ``Business Member'' under the
FINRA/NSX Trade Reporting Facility LLC Agreement (the ``LLC
Agreement''),\6\ has determined to close the FINRA/NSX TRF for business
reasons, and as of the close of business on December 31, 2008, the
FINRA/NSX TRF will cease accepting trade reports.\7\
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    \5\ See Securities Exchange Act Release No. 54715 (November 6,
2006), 71 FR 66354 (November 14, 2006) (order approving SR-NASD-
2006-108).
    \6\ FINRA notes that the LLC Agreement appears in its manual as
the NASD/NSX Trade Reporting Facility LLC Agreement.
    \7\ Although the FINRA/NSX TRF will cease operating on December
31, 2008, pursuant to the termination provisions in the LLC
Agreement, the FINRA/NSX Trade Reporting Facility LLC will continue
its corporate existence until no later than November 17, 2009.
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    FINRA members have been given notice of the anticipated closing and
were further notified that any members using the FINRA/NSX TRF to
report trades are required to find an alternative mechanism to satisfy
their trade reporting obligations. FINRA and NSX staff are working to
ensure that members reporting trades to the FINRA/NSX TRF are
transitioned to another FINRA facility. Notwithstanding the closing of
the FINRA/NSX TRF, FINRA is able to fulfill all of its regulatory
obligations with respect to over-the-counter trade reporting through
its other facilities, i.e., the Alternative Display Facility, the
FINRA/Nasdaq Trade Reporting Facility and the FINRA/NYSE Trade
Reporting Facility (the ``FINRA/NYSE TRF'').
    Accordingly, FINRA is proposing to delete the FINRA Rule 6300B and
7200B Series relating to trade reporting to the FINRA/NSX TRF and the
FINRA Rule 7600B Series relating to fees and credits for use of the
FINRA/NSX TRF from the Consolidated FINRA Rulebook.\8\ FINRA also is
proposing to delete the LLC Agreement from its manual. The proposed
rule change will ensure that FINRA rules accurately reflect only the
FINRA facilities that are available to members for trade reporting.
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    \8\ On September 25, 2008, the SEC approved proposed rule change
SR-FINRA-2008-021, which adopts the NASD Marketplace Rules (the NASD
Rule 4000 through 7000 Series) as the FINRA Rule 6000 through 7000
Series in the Consolidated FINRA Rulebook. See Securities Exchange
Act Release No. 58643 (September 25, 2008), 73 FR 57174 (October 1,
2008) (order approving SR-FINRA-2008-021; SR-FINRA-2008-022; SR-
FINRA-2008-026; SR-FINRA-2008-028; and SR-FINRA-2008-029) (the
``Consolidation Proposals''). The Consolidation Proposals were
implemented on December 15, 2008. See Regulatory Notice 08-57
(October 2008).
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    In addition, to eliminate gaps in the numbering of the Consolidated
FINRA Rulebook, FINRA is proposing to renumber the FINRA Rule 6200C,
7300C and 7600C Series relating to the FINRA/NYSE TRF as the Rule
6200B, 7300B and 7600B Series. FINRA is proposing no substantive
changes to those rules.\9\
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    \9\ On November 5, 2008, the SEC approved proposed rule change
SR-FINRA-2008-011, which amends the FINRA Rule 6300B and 7200B
Series (relating to the FINRA/NSX TRF) and the FINRA Rule 6300C and
7200C Series (relating to the FINRA/NYSE TRF). See Securities
Exchange Act Release No. 58903 (November 5, 2008), 73 FR 67905
(November 17, 2008) (order approving SR-FINRA-2008-011); and
Securities Exchange Act Release No. 58903A (November 13, 2008), 73
FR 69700 (November 19, 2008) (correction to order approving SR-
FINRA-2008-011). The implementation date of SR-FINRA-2008-011 will
be announced in a Regulatory Notice and will be between six and nine
months from the date of SEC approval.
    Additionally, FINRA filed proposed rule change SR-FINRA-2008-060
for immediate effectiveness on December 11, 2008 (available at
http://www.finra.org/Industry/Regulation/RuleFilings/2008/P117527).
SR-FINRA-2008-060 amends the FINRA Rule 6300B and 6300C Series and
will be operative 30 days after the date of filing.
    The changes to the FINRA/NSX TRF rules adopted pursuant to SR-
FINRA-2008-011 and SR-FINRA-2008-060 will not be implemented. FINRA
will file a separate proposed rule change to make conforming changes
to the FINRA/NYSE TRF rules, as renumbered pursuant to this filing,
in accordance with SR-FINRA-2008-011 and SR-FINRA-2008-060.
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    FINRA has filed the proposed rule change for immediate
effectiveness and requested a waiver of the 30-day operative delay so
that the proposed rule change will be operative on January 1, 2009.
2. Statutory Basis
    FINRA believes that the proposed rule change is consistent with the
provisions of Section 15A(b)(6) of the Act,\10\ which requires, among
other things, that FINRA rules be designed to prevent fraudulent and
manipulative acts and practices, to promote just and equitable
principles of trade, and, in general, to protect investors and the
public interest. FINRA believes that by deleting rules upon the closing
of the FINRA/NSX TRF, the proposed rule change will prevent potential
member confusion and trade reporting errors and violations.
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    \10\ 15 U.S.C. 78o-3(b)(6).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    FINRA does not believe that the proposed rule change will result in
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

    Written comments were neither solicited nor received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    FINRA has filed the proposed rule change pursuant to Section
19(b)(3)(A) of the Act \11\ and subparagraph (f)(6) of Rule 19b-4
thereunder.\12\ Because FINRA has designated the foregoing proposed
rule change as one that: (1) Does not significantly affect the
protection of investors or the public interest; (2) does not impose any
significant burden on competition; and (3) does not become operative
for 30 days from the date of filing, 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 and Rule 19b-4(f)(6)
thereunder.\13\
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    \11\ 15 U.S.C. 78s(b)(3)(A).
    \12\ 17 CFR 240.19b-4(f)(6).
    \13\ As required under Rule 19b-4(f)(6)(iii), the Exchange has
provided the Commission with written notice of its intent to file
the proposed rule change at least five business days prior to the
filing of the proposed rule change.
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    A proposed rule change filed under Rule 19b-4(f)(6) normally does
not become operative prior to 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. FINRA has asked the Commission to
waive the 30-day operative delay to expedite the deletion of rules that
apply to the FINRA/NSX TRF, a FINRA facility that will cease operations
on December 31, 2008. FINRA believes that the deletion of the rule will
prevent potential member confusion, and trade reporting errors and
violations.
    The Commission believes that waiving the 30-day operative delay is
consistent with the protection of investors and the public interest
because the proposal will delete rules that apply to the FINRA/NSX TRF,
a FINRA facility that will cease operations

on December 31, 2008.\14\ Accordingly, the Commission believes that the
proposal will ensure that FINRA's rules accurately reflect the FINRA
trade reporting facilities that will be in operation currently and
available to accept trade reports. For these reasons, the Commission
designates the proposal to be operative on filing with the Commission.
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    \14\ 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. 15 U.S.C. 78c(f).
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    At any time within 60 days of the filing of such 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_ADDRESS>Please include
File Number SR-FINRA-2008-066 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-FINRA-2008-066. 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 inspection
and copying 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 the filing will also be available for
inspection and copying at the principal office of the self-regulatory
organization. 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-
FINRA-2008-066 and should be submitted on or before January 29, 2009.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\15\
Florence E. Harmon,
Acting Secretary.
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    \15\ 17 CFR 200.30-3(a)(12).
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[FR Doc. E9-82 Filed 1-7-09; 8:45 am]

BILLING CODE 8011-01-P


[Federal Register: October 27, 2008 (Volume 73, Number 208)]
[Notices]
[Page 63756-63759]
[DOCID:fr27oc08-105]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-58825; File No. SR-NYSEArca-2008-89]

Self-Regulatory Organizations; NYSE Arca, Inc.; Order Approving
Proposed Rule Change Amending NYSE Arca Equities Rule 5.2(j)(3) in
Connection With Generic Listing Standards for Multiple Fund Shares and
Inverse Fund Shares

October 21, 2008.

I. Introduction

    On August 25, 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 amend NYSE Arca Equities Rule
5.2(j)(3) in connection with generic listing standards for Multiple
Fund Shares and Inverse Fund Shares. The proposed rule change was
published for comment in the Federal Register on September 16, 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. 58484 (September 8,
2008), 73 FR 53472.
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II. Description of the Proposed Rule Change

    The Exchange proposes to amend Commentaries .01, .02, and .03 and
to adopt new Commentary .04, to NYSE Arca Equities Rule 5.2(j)(3), the
Exchange's initial listing standards for Investment Company Units
(``ICUs''), to permit the listing and trading of ICUs issued by an
open-end management investment company that seek to provide investment
results, before fees and expenses, that either correspond to a
specified multiple of the percentage performance on a given day of a
particular benchmark domestic equity index, international equity index,
Fixed Income Securities \4\ index, or a combination thereof (``Multiple
Fund Shares'') or that correspond inversely up to minus or negative 300
percent (-300%) of the percentage performance on a given day of a
particular domestic equity index, international equity index, Fixed
Income Securities index, or a combination thereof (``Inverse Fund
Shares,'' and together with Multiple Fund Shares, collectively, ``Fund
Shares''), in each case, pursuant to Rule 19b-4(e) under the Act.\5\
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    \4\ Fixed Income Securities are debt securities that are notes,
bonds, debentures, or evidence of indebtedness that include, but are
not limited to, U.S. Department of Treasury securities, government-
sponsored entity securities, municipal securities, trust preferred
securities, supranational debt, and debt of a foreign country or a
subdivision thereof. See Commentary .02 to NYSE Arca Equities Rule
5.2(j)(3).
    \5\ Rule 19b-4(e) under the Act provides that the listing and
trading of a new derivative securities product by a self-regulatory
organization (``SRO'') shall not be deemed a proposed rule change,
pursuant to Rule 19b-4(c)(1) under the Act, if the Commission has
approved, pursuant to Section 19(b) of the Act, the SRO's trading
rules, procedures, and listing standards for the product class that
would include the new derivative securities product, and the SRO has
a surveillance program for the product class. See 17 CFR 240.19b-
4(e)(1). A new derivative securities product means any type of
option, warrant, hybrid securities product, or any other security,
other than a single equity option or a security futures product,
whose value is based, in whole or in part, upon the performance of,
or interest in, an underlying instrument. See 17 CFR 240.19b-4(e).
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    Specifically, the Exchange proposes to remove the current
limitation to listing Multiple Fund Shares and Inverse Fund Shares \6\
and to amend Commentaries .01, .02, and .03 to NYSE Arca Equities Rule
5.2(j)(3) to permit the Exchange to approve the listing and trading of
Multiple Fund Shares and Inverse Fund Shares pursuant to Rule 19b-4(e)
under the Act, provided that each of the applicable conditions and
requirements set forth in Commentaries .01, .02, or .03 to NYSE Arca
Equities Rule 5.2(j)(3), as proposed to be amended, and proposed
Commentary .04 to NYSE Arca Equities Rule 5.2(j)(3) are satisfied.
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    \6\ See Commentaries .02 and .03 to NYSE Arca Equities Rule
5.2(j)(3) (currently prohibiting the Exchange from approving for
listing and trading pursuant to Rule 19b-4(e) a series of ICUs that
are issued by an open-end management investment company that seeks
to provide investment results that either exceed the performance of
a specified index by a specified multiple or that correspond to the
inverse of the performance of a specified index by a specified
multiple).
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    Lastly, the Exchange proposes to make a minor, non-substantive
language change to Commentary .02(ii) to NYSE Arca Equities Rule
5.2(j)(3).

Limitation on Leverage

    In connection with the listing and trading of Multiple Fund Shares,
Commentaries .01, .02, and .03 to NYSE Arca Equities Rule 5.2(j)(3), as
amended, would not provide a limitation on leverage. Specifically, the
proposal would permit the Exchange to approve, pursuant to Rule 19b-
4(e) under the Act, the listing and trading of Multiple Fund Shares
that seek to provide investment results, before fees and expenses,
corresponding to any multiple, without limitation, of the percentage
performance on a given day of a particular domestic or international
equity index, Fixed Income Securities index, or a combination thereof.
    In connection with Inverse Fund Shares, Commentaries .01, .02, and
.03 to NYSE Arca Equities Rule 5.2(j)(3), as amended, would expressly
prohibit the Exchange from approving pursuant to Rule 19b-4(e) under
the Act the listing and trading of Inverse Fund Shares that seek to
provide investment results, before fees and expenses, in an amount that
exceeds -300% of the percentage performance of the underlying benchmark
index. Specifically, with respect to the listing and trading of Inverse
Fund Shares that seek to provide investment results, before fees and
expenses, in an amount that exceeds -300% of the percentage performance
of the underlying benchmark index, the Exchange's proposal would
continue to require specific Commission approval pursuant to section
19(b)(2) of the Act.\7\
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    \7\ 15 U.S.C. 78s(b)(2).
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Availability of Information About Fund Shares and Underlying Indexes

    The Exchange also proposes to adopt new Commentary .04 to NYSE Arca
Equities Rule 5.2(j)(3), which would only apply to a series of Multiple
Fund Shares and Inverse Fund Shares issued by an open-end management
investment company. Proposed Commentary .04 to NYSE Arca Equities Rule
5.2(j)(3) would require the composition of portfolio holdings of a fund
be disclosed daily on

its Internet Web site and to include, as applicable: (1) The identity
and number of shares held of each specific equity security; (2) the
identity and amount held of each specific Fixed Income Security; (3)
the specific types of financial instruments, which include, but are not
limited to, stock index futures contracts, options on futures
contracts, options on securities and indices, equity caps, collars, and
floors, swap agreements, forward contracts, and repurchase agreements
(collectively, ``Financial Instruments''), as well as the
characteristics of such Financial Instruments; and (4) the cash
equivalents and amount of cash held in such portfolio.
    The Exchange states that this public Web site disclosure of the
portfolio composition of a fund would coincide with the disclosure of
the ``IIV File'' \8\ and the ``PCF File.'' \9\ Therefore, the same
portfolio information (including accrued expenses and dividends) would
be provided on the public Web site, as well as in the IIV File and PCF
File provided to ``Authorized Participants.'' \10\ The Exchange further
states that the format of the public Web site disclosure and the IIV
File and PCF File could differ because the public Web site will list
all portfolio holdings, while the IIV File and PCF File would similarly
provide the portfolio holdings, but in a format appropriate for
Authorized Participants, i.e., the exact components of a Creation Unit.
Accordingly, investors would have access to the current portfolio
composition of a fund through the fund's Web site.
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    \8\ Because the National Securities Clearing Corporation's
(``NSCC'') system for the receipt and dissemination to its
participants of the portfolio composition file (``PCF File'') is not
currently capable of processing information with respect to
Financial Instruments, an ``IIV File'' has been developed, which is
used to disclose a fund's holdings of Financial Instruments. The IIV
File is posted to a password-protected Web site before the opening
of business on each business day, and all NSCC participants and the
Exchange have access to a password and the Web site containing the
IIV File.
    \9\ The PCF File for a fund includes the list of names and the
required number of shares of each deposit security, as well as any
cash information to be included in the next trading day's ``Creation
Unit'' (the minimum aggregation size of shares required to effect a
creation or redemption of shares). The information in the PCF File
will be available to all participating in the NSCC system.
    \10\ Authorized Participants are the only persons that may place
orders to create and redeem Creation Units. Authorized Participants
must be registered broker-dealers or other securities market
participants, such as banks and other financial institutions, that
are exempt from registration as broker-dealers to engage in
securities transactions, who are Depository Trust Company
participants.
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Trading Halts

    The Exchange states that existing trading halt requirements for
ICUs would apply to Multiple Fund Shares and Inverse Fund Shares. In
particular, NYSE Arca Equities Rule 5.5(g)(2)(b) provides that, if the
intraday indicative value (``IIV'') or the index value applicable to
that series of ICUs is not being disseminated as required, the Exchange
may halt trading during the day in which the interruption to the
dissemination of the IIV or the index value occurs. If the interruption
to the dissemination of the IIV or the index value persists past the
trading day in which it occurred, the Exchange would halt trading no
later than the beginning of the trading day following the
interruption.\11\
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    \11\ If a series of ICUs are traded on the Exchange pursuant to
unlisted trading privileges, the Exchange would halt trading if the
primary listing market halts trading in such series. See NYSE Arca
Equities Rule 7.34(a).
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    In addition, proposed Commentary .04(b) to NYSE Arca Equities Rule
5.2(j)(3) requires the Exchange to halt trading of Fund Shares if the
Exchange becomes aware that the net asset value (``NAV'') is not being
disseminated to all market participants at the same time or the daily
public Web site disclosure of its portfolio holdings does not occur.
Proposed Commentary .04(b) to NYSE Arca Equities Rule 5.2(j)(3) further
provides that the Exchange may resume trading in such Fund Shares only
when the NAV is disseminated to all market participants at the same
time or the daily public Web site disclosure of portfolio holdings
occurs, as appropriate.
    In addition to other factors that may be relevant, the Exchange
states that it may consider factors in exercising its discretion to
halt or suspend trading in Multiple Fund Shares and/or Inverse Fund
Shares. These factors would include, without limitation, (1) the extent
to which trading is not occurring in securities comprising an
underlying index and/or the Financial Instruments relating to the Fund
Shares, or (2) whether other unusual conditions or circumstances
detrimental to the maintenance of a fair and orderly market are
present.\12\ In the case of Financial Instruments, the Exchange
represents that a notification procedure would be implemented so that
timely notice from the investment adviser is received by the Exchange
when a particular Financial Instrument is in default or shortly to be
in default. Notification from the investment adviser would be made by
phone, facsimile, or e-mail. The Exchange would then determine on a
case-by-case basis whether a default of a particular Financial
Instrument justifies a trading halt of the Multiple Fund Shares and/or
Inverse Fund Shares, as applicable. Trading in Multiple Fund Shares
and/or Inverse Fund Shares would also be halted if the circuit breaker
parameters pursuant to NYSE Arca Equities 7.12 are reached.\13\
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    \12\ See NYSE Arca Equities Rule 5.5(g)(2)(b).
    \13\ See id.
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Continued Listing and Trading Criteria

    The Exchange states that the continued listing and trading
requirements for ICUs set forth in NYSE Arca Equities Rule 5.5(g)(2)
would apply to Multiple Fund Shares and Inverse Fund Shares.

Suitability

    Currently, NYSE Arca Equities Rule 9.2(a) (Diligence as to
Accounts) provides that an ETP Holder, before recommending a
transaction in ICUs, must have reasonable grounds to believe that the
recommendation is suitable for the customer based on any facts
disclosed by the customer as to its other security holdings and as to
its financial situation and needs. Further, the rule provides, with a
limited exception, that prior to the execution of a transaction
recommended to a non-institutional customer, the ETP Holder must make
reasonable efforts to obtain information concerning the customer's
financial status, tax status, investment objectives, and any other
information that such ETP Holder believes would be useful to make a
recommendation.
    Prior to the commencement of trading, the Exchange would inform its
ETP Holders of the suitability requirements of NYSE Arca Equities Rule
9.2(a) in an Information Bulletin. Specifically, ETP Holders would be
reminded in the Information Bulletin that, in recommending transactions
in these securities, they must have a reasonable basis to believe that
(1) the recommendation is suitable for a customer given reasonable
inquiry concerning the customer's investment objectives, financial
situation, needs, and any other information known by such member, and
(2) the customer can evaluate the special characteristics, and is able
to bear the financial risks, of an investment in Multiple Fund Shares
and Inverse Fund Shares. In connection with the suitability obligation,
the Information Circular would also provide that members must make
reasonable efforts to obtain the following information: (1) The
customer's financial status; (2) the customer's tax

status; (3) the customer's investment objectives; and (4) such other
information used or considered to be reasonable by such member or
registered representative in making recommendations to the customer.

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 \14\ and the rules and regulations thereunder applicable to a
national securities exchange.\15\ In particular, the Commission finds
that the proposed rule change is consistent with section 6(b)(5) of the
Act,\16\ which requires, among other things, that the Exchange's rules
be designed to promote just and equitable principles of trade, 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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    \14\ 15 U.S.C. 78f.
    \15\ 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).
    \16\ 15 U.S.C. 78f(b)(5).
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    The Commission believes that the proposal reasonably balances the
removal of impediments to a free and open market with the protection of
investors and the public interest, two principles set forth in section
6(b)(5) of the Act. The Commission notes that it has previously
approved the listing and trading of various leveraged exchange-traded
funds, including trading pursuant to unlisted trading privileges on the
Exchange, that seek daily investment results, before fees and expenses,
that correspond to twice the inverse or opposite of the daily
performance (-200%) of the underlying index.\17\ The Commission also
notes that the proposed rule change is similar to another exchange's
generic listing requirements for Multiple Fund Shares and Inverse Fund
Shares.\18\ With respect to the listing and trading of a series of
Inverse Fund Shares that seek to provide investment results that exceed
-300% of the percentage performance of an underlying benchmark index,
the Commission further notes that the Exchange would be required to
obtain prior Commission approval pursuant to section 19(b)(2) of the
Act.
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    \17\ See, e.g., Securities Exchange Act Release Nos. 56713
(October 29, 2007), 72 FR 61915 (November 1, 2007) (SR-Amex-2007-74)
(approving the listing and trading of Rydex Leveraged Funds, Inverse
Funds and Leveraged Inverse Funds); 52553 (October 3, 2005), 70 FR
59100 (October 11, 2005) (SR-Amex-2004-62) (approving the listing
and trading of the ProShares Ultra Funds and Short Funds); 54040
(June 23, 2006), 71 FR 37629 (June 30, 2006) (SR-Amex-2006-41)
(approving the listing and trading of the ProShares UltraShort
Funds); 55117 (January 17, 2007), 72 FR 3442 (January 25, 2007) (SR-
Amex-2006-101) (approving the listing and trading of Ultra, Short
and UltraShort Funds based on various indexes); 56592 (October 1,
2007), 72 FR 57364 (October 9, 2007) (SR-Amex-2007-60) (approving
the listing and trading of ProShares Ultra, Short and UltraShort
Funds based on various international indexes); and 56998 (December
19, 2007), 72 FR 73404 (December 27, 2007) (SR-Amex-2007-104)
(approving the listing and trading of ProShares Ultra, Short and
UltraShort Funds based on several fixed income indexes, among
others). See also, e.g., Securities Exchange Act Release Nos. 56763
(November 7, 2007), 72 FR 64103 (November 14, 2007) (SR-NYSEArca-
2007-81) (approving UTP trading of shares of funds of Rydex ETF
Trust); 56601 (October 2, 2007), 72 FR 57625 (October 10, 2007) (SR-
NYSEArca-2007-79) (approving UTP trading of shares of eight funds of
the ProShares Trust); 55125 (January 18, 2007), 72 FR 3462 (January
25, 2007) (SR-NYSEArca-2006-87) (approving UTP trading of shares of
81 funds of the ProShares Trust); and 54026 (June 21, 2006), 71 FR
36850 (June 28, 2006) (SR-PCX-2005-115) (approving UTP trading of
shares of funds of the ProShares Trust).
    \18\ See Securities Exchange Act Release No. 57660 (April 14,
2008), 73 FR 21391 (April 21, 2008) (SR-Amex-2007-131) (approving
generic listing standards for Multiple Fund Shares and generic
listing standards for Inverse Fund Shares that correspond inversely
up to -200% of the percentage performance of a particular underlying
benchmark index).
---------------------------------------------------------------------------

    The Commission also notes that Fund Shares must comply with all of
the applicable provisions under NYSE Arca Equities Rules 5.2(j)(3), as
proposed to be amended, and 5.5(g)(2), as well as all other
requirements applicable to ICUs including, without limitation,
requirements relating to the dissemination of intraday indicative
value, index value, disclosure of portfolio holdings, rules and
policies governing the trading of equity securities, trading hours,
trading halts, surveillance, firewalls, and Information Bulletins to
ETP Holders, as set forth in prior Commission orders approving the
generic listing rules applicable to the listing and trading of ICUs.
    The Commission further notes that the proposed rule change 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. Proposed
Commentary .04 to NYSE Arca Equities Rule 5.2(j)(3) requires daily
public Web site disclosure of the composition of a fund's portfolio
holdings, including the identities and amount of securities comprising
the underlying benchmark index, the specific types and characteristics
of Financial Instruments, and any cash and cash equivalents held in
such portfolio. With respect to such Financial Instruments, the
Commission notes that a notification procedure will be implemented by
the Exchange so that timely notice from the investment adviser is
submitted to the Exchange if a particular Financial Instrument is in
default or is shortly to be in default. The Exchange states that, after
receipt of such notice, it would determine on a case-by-case basis
whether such default justifies a trading halt of Multiple Fund Shares
or Inverse Fund Shares, as the case may be. The Commission also notes
that the Exchange would be required to halt trading in Multiple Fund
Shares and Inverse Fund Shares if certain values are not disseminated
as required or cease to be disseminated to all market participants at
the same time.\19\
---------------------------------------------------------------------------

    \19\ See proposed Commentary .04(b) to NYSE Arca Equities Rule
5.2(j)(3); NYSE Arca Equities Rule 5.5(g)(2).
---------------------------------------------------------------------------

    In addition, the Commission notes that NYSE Arca Equities Rule
9.2(a), which sets forth the Exchange's suitability requirements, would
apply to the trading of Multiple Fund Shares and Inverse Fund Shares.
Specifically, ETP Holders, before recommending a transaction to a non-
institutional customer in such securities, must have reasonable grounds
to believe that the recommendation is suitable for the customer, based
on facts disclosed by the customer after reasonable inquiry concerning
the customer's investment objectives, financial situation, needs, and
any other information that such ETP Holder believes would be useful to
make a recommendation. ETP Holders must also have a reasonable basis to
believe that the customer can evaluate the special characteristics, and
is able to bear the financial risks, of investments in Multiple Fund
Shares and Inverse Fund Shares. An Information Bulletin would inform
ETP Holders of the suitability requirements of NYSE Arca Equities Rule
9.2(a) prior to the commencement of trading in such securities.
    In sum, the Commission believes that the Exchange's proposed
amendments to Commentaries .01, .02, and .03, and adoption of new
Commentary .04, to NYSE Arca Equities Rule 5.2(j)(3) relating to the
listing and trading of Multiple Fund Shares and Inverse Fund Shares
should fulfill the intended objective of Rule 19b-4(e) under the Act by
allowing such derivative securities products to be listed and traded
without separate Commission approval. The Commission believes that the
proposed rule change should facilitate the listing and trading of
additional types of exchange-traded products and reduce the time frame
for bringing these

securities to market, thereby reducing the burdens on issuers and other
market participants and promoting competition.
    For the foregoing reasons, the Commission believes that the
proposed rule change is consistent with the Act and finds good cause
for approving the proposed rule change.

IV. Conclusion

    It is therefore ordered, pursuant to section 19(b)(2) of the
Act,\20\ that the proposed rule change (SR-NYSEArca-2008-89) be, and it
hereby is, approved.
---------------------------------------------------------------------------

    \20\ 15 U.S.C. 78s(b)(1).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\21\
Florence E. Harmon,
Acting Secretary.
---------------------------------------------------------------------------

    \21\ 17 CFR 200.30-3(a)(12).
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[FR Doc. E8-25505 Filed 10-24-08; 8:45 am]

BILLING CODE 8011-01-P


[Federal Register: March 6, 2006 (Volume 71, Number 43)]
[Notices]
[Page 11249]
[DOCID:fr06mr06-74]

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SECURITIES AND EXCHANGE COMMISSION

Sunshine Act Meeting

    Notice is hereby given, pursuant to the provisions of the
Government in the Sunshine Act, Pub. L. 94-409, that the Securities and
Exchange Commission will hold the following meeting during the week of
March 6, 2006:
    A Closed Meeting will be held on Thursday, March 9, 2006 at 2 p.m.
    Commissioners, Counsel to the Commissioners, the Secretary to the
Commission, and recording secretaries will attend the Closed Meeting.
Certain staff members who have an interest in the matters may also be
present.
    The General Counsel of the Commission, or his designee, has
certified that, in his opinion, one or more of the exemptions set forth
in 5 U.S.C. 552b(c)(3), (5), (7), (9)(B), and (10) and 17 CFR
200.402(a)(3), (5), (7), 9(ii) and (10) permit consideration of the
scheduled matters at the Closed Meeting.
    Commissioner Glassman, as duty officer, voted to consider the items
listed for the closed meeting in closed session.
     tThe subject matter of the Closed Meeting
scheduled for Thursday, March 9, 2006 will be:

    Institution and settlement of injunctive actions;
    Institution and settlement of administrative proceedings of an
enforcement nature;
    Consideration of amicus participation; and
    Report of an investigation.

    At times, changes in Commission priorities require alterations in
the scheduling of meeting items.
    For further information and to ascertain what, if any, matters have
been added, deleted or postponed, please contact:
    The Office of the Secretary at<PHONE_NUMBER>.

    Dated: March 1, 2006.
Nancy M. Morris,
Secretary.
[FR Doc. 06-2121 Filed 3-2-06; 11:16 am]

BILLING CODE 8010-01-P


[Federal Register Volume 81, Number 38 (Friday, February 26, 2016)]
[Notices]
[Page 9927]
[FR Doc No: 2016-04218]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

Notice of Opportunity for Public Comment on Disposal of Airport
Property at Berlin Regional Airport in Milan, NH

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Request for public comments.

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SUMMARY: Under the provisions of Title 49, U.S.C. Section 47153(d),
notice is being given that the FAA is considering a request from Berlin
Regional Airport in Milan, NH to dispose of a parcel of land
approximately 7.0 acres at Berlin Regional Airport on Milan, NH.
    The subject parcel is currently undeveloped and is not contiguous
to the airport proper. The land is physically separated from the main
airport property by State Route 16 and has no aviation development
potential. The airport has been approached by the abutting land owner
to purchase the property to expand his commercial property. The funds
from the sale of the property, which has been valued at Fair Market
Value, will be deposited into the Airport's dedicated fund and will be
used for continued operation and maintenance of the airport.

DATES: Comments must be received on or before March 28, 2016.

ADDRESSES: You may send comments using any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov, and follow the instructions on providing comments.
     Fax:<PHONE_NUMBER>.
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W 12-140, 1200 New
Jersey Avenue SE., Washington, DC 20590.
     Hand Delivery: Deliver to mail address above between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
    Interested persons may inspect the request and supporting documents
by contacting the FAA at the address listed under FOR FURTHER
INFORMATION CONTACT.

FOR FURTHER INFORMATION CONTACT: Mr. Jorge E. Panteli, Compliance and
Land Use Specialist, Federal Aviation Administration New England Region
Airports Division, 1200 District Avenue, Burlington, Massachusetts,
Telephone<PHONE_NUMBER>.

    Issued in Burlington, Massachusetts, on February 16, 2016.
Mary T. Walsh,
Manager, Airports Division.
[FR Doc. 2016-04218 Filed 2-25-16; 8:45 am]
 BILLING CODE P


[Federal Register: April 14, 2010 (Volume 75, Number 71)]
[Proposed Rules]
[Page 19310-19311]
[DOCID:fr14ap10-29]

=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 60, 61, and 63

[EPA-R06-OAR-2006-0851; FRL-9137-1]

Delegation of New Source Performance Standards and National
Emission Standards for Hazardous Air Pollutants for the State of
Louisiana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The EPA is proposing to approve the Louisiana Department of
Environmental Quality (LDEQ) updated regulations for receiving
delegation of EPA authority for implementation and enforcement of New
Source Performance Standards (NSPS) and National Emission Standards for
Hazardous Air Pollutants (NESHAPs) for all sources (both part 70 and
non-part 70 sources). These regulations apply to certain NSPS
promulgated by EPA at 40 CFR part 60, as amended through July 1, 2008;
and certain NESHAPs promulgated by EPA, as amended through July 1,
2008, for both 40 CFR part 61 and 63 standards. The rule also
incorporates by reference certain other revisions made after July 1,
2008. The delegation of authority under this action does not apply to
sources located in Indian Country. EPA is providing notice that it has
approved delegation of certain NSPS to LDEQ, and taking direct final
action to approve the delegation of certain NESHAPs to LDEQ.

DATES: Written comments must be received on or before May 14, 2010.

ADDRESSES: Comments may be mailed to Mr. Guy Donaldson, Chief, Air
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross
Avenue, Suite 1200, Dallas, Texas 75202-2733.

Comments may also be submitted electronically or through hand delivery/
courier by following the detailed instructions in the ADDRESSES section
of the direct final rule located in the rules section of this Federal
Register.

FOR FURTHER INFORMATION CONTACT: Mr. Kenneth Boyce, Air Planning
Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone<PHONE_NUMBER>,
fax<PHONE_NUMBER>, e-mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: In the final rules section of this Federal
Register, EPA is approving the State's request for delegation of
authority as a direct final rule without prior proposal because the
Agency views this as a noncontroversial submittal and anticipates no
adverse comments. A detailed rationale for the approval is set forth in
the direct final rule. If no relevant adverse comments are received in
response to this action, no further activity is contemplated. If EPA
receives adverse comments, the direct final rule will be withdrawn and
all public comments received will be addressed in a subsequent final
rule based on this proposed rule. The EPA will not institute a second
comment period. Any parties interested in commenting on this action
should do so at this time. Please note that if EPA receives adverse
comment on an amendment, paragraph, or section of this rule and if that
provision may be severed from the remainder of the rule, EPA may adopt
as final those provisions of the rule that are not the subject of an
adverse comment.
    For additional information, see the direct final rule, which is
located in the rules section of this Federal Register.

    Dated: February 8, 2010.
Al Armendariz,
Regional Administrator, Region 6.
[FR Doc. 2010-8524 Filed 4-13-10; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 77, Number 1 (Tuesday, January 3, 2012)]
[Notices]
[Pages 125-126]
[FR Doc No: 2011-33686]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2011-D-0916]

Draft Guidance for Industry and Food and Drug Administration
Staff; Medical Device Classification Product Codes; Availability

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: The Food and Drug Administration (FDA) is announcing the
availability of the draft guidance entitled ``Medical Device
Classification Product Codes.'' The purpose of the guidance document is
to educate regulated industry and FDA Staff on how, when, and why to
use classification product codes for medical devices regulated by the
Center for Devices and Radiological Health (CDRH) and the Center for
Biologics Evaluation and Research (CBER). This document describes how
classification product codes are used in a variety of FDA program areas
to regulate and track medical devices. This draft guidance is not final
nor is it in effect at this time.

DATES: Although you can comment on any guidance at any time (see 21 CFR
10.115(g)(5)), to ensure that the Agency considers your comment on this
draft guidance before it begins work on the final version of the
guidance, submit either electronic or written comments on the draft
guidance by May 2, 2012.

ADDRESSES: Submit written requests for single copies of the draft
guidance document entitled ``Medical Device Classification Product
Codes'' to the Division of Small Manufacturers, International, and
Consumer Assistance, Center for Devices and Radiological Health, Food
and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 4613,
Silver Spring, MD 20993-0002 or Office of Communication, Outreach and
Development (HFM-40), Center for Biologics Evaluation and Research
(CBER), Food and Drug Administration, 1401 Rockville Pike, suite 200N,
Rockville, MD 20852-1448. Send one self-addressed adhesive label to
assist the office in processing your requests. Send one self-addressed
adhesive label to assist that office in processing your request, or fax
your request to CDRH at<PHONE_NUMBER>. The draft guidance may also be
obtained by mail by calling CBER at<PHONE_NUMBER> or<PHONE_NUMBER>.
See the SUPPLEMENTARY INFORMATION section for information on electronic
access to the guidance.
    Submit electronic comments on the draft guidance to http://www.regulations.gov. Submit written comments to the Division of Dockets
Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane,
rm. 1061, Rockville, MD 20852. Identify comments with the docket number
found in brackets in the heading of this document.

FOR FURTHER INFORMATION CONTACT:
Diane Garcia, Center for Devices and Radiological Health, Food and Drug
Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 1644, Silver
Spring, MD 20993-0002,<PHONE_NUMBER>; and
Stephen Ripley, Center for Biologics Evaluation and Research (HFM-17),
Food and Drug Administration, 1401 Rockville Pike, Suite 200N,
Rockville, MD 20852,<PHONE_NUMBER>.

I. Background

    Since the May 28, 1976, Medical Device Amendments were passed, the
Classification Regulation Panels (parts 862 through 892 (21 CFR parts
862 through 892)) have been the basis for the CDRH's Classification
Product Code structure and organization. These 16 Panels have largely
been the driving force for CDRH's internal organizational structure as
well. Relying on the Classification Regulation Panels structure, CDRH
created classification product codes to assist in accurate
identification and tracking of current medical devices and to allow for
tracking and easy reference of predicate device types.
    Classification product codes are a method of classifying medical
devices. Medical device product codes consist of a three-letter
combination, which associates a device's type with a product
classification. Classification product codes and information associated
with these devices, such as names and attributes, are assigned by CDRH
to support their regulation.
    The purpose of the guidance document is to educate regulated
industry and FDA Staff on how, when, and why to use classification
product codes for medical devices in a variety of FDA program areas to
regulate and track medical devices. This document is limited to medical
devices as defined in section 201(h) of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 321(h)) and does not discuss classification
products codes used to regulate non-medical electronic radiation
emitting products.
    The scope of the guidance document includes devices described in
the existing classification under parts 862 through 892. It also
describes how classification product codes are used for CBER regulated
devices, which currently do not fall within this existing
classification. This guidance may also be applicable to future devices.
It also covers unclassified devices and devices not yet classified.

II. Significance of Guidance

    This draft guidance is being issued consistent with FDA's good
guidance practices regulation (21 CFR 10.115). The draft guidance, when
finalized, will represent the Agency's current thinking on medical
device classification product codes. It does not create or confer any
rights for or on any person and does not operate to bind FDA or the
public. An alternative approach may be used if such approach satisfies
the requirements of the applicable statute and regulations.

III. Electronic Access

    Persons interested in obtaining a copy of the draft guidance may do
so by using the Internet. A search capability for all CDRH guidance
documents is available at http://www.fda.gov/MedicalDevices/DeviceRegulationandGuidance/GuidanceDocuments/default.htm. Guidance
documents are also available at http://www.regulations.gov or from the
CBER Internet site at http://www.fda.gov/BiologicsBloodVaccines/GuidanceComplianceRegulatoryInformation/default.htm. To receive
``Medical Device Classification Product Codes,'' you may either send an
email request to<EMAIL_ADDRESS>to receive an electronic copy of
the document or send a fax request to<PHONE_NUMBER> to receive a hard
copy. Please use the document number 1774 to identify the guidance you
are requesting.

IV. Comments

    Interested persons may submit to the Division of Dockets Management
(see ADDRESSES) either electronic or written comments regarding this
document. It is only necessary to send one set of comments. Identify
comments with the docket number found in brackets in the heading of
this document. Received comments may be seen in the Division of Dockets
Management between 9 a.m. and 4 p.m., Monday through Friday.

    Dated: December 28, 2011.
Nancy K. Stade,
Deputy Director for Policy, Center for Devices and Radiological Health.
[FR Doc. 2011-33686 Filed 12-30-11; 8:45 am]
BILLING CODE 4160-01-P