[Federal Register Volume 79, Number 16 (Friday, January 24, 2014)]
[Notices]
[Pages 4225-4228]
[FR Doc No: 2014-01402]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-71349; File No. SR-NYSEArca-2014-05]

Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
and Immediate Effectiveness of a Proposed Rule Change To Reflect a
Change to the Means of Achieving the Investment Objective Applicable to
the STARTM Global Buy-Write ETF

January 17, 2014.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby
given that, on January 15, 2014, NYSE Arca, Inc. (the ``Exchange'' or
``NYSE Arca'') filed with the Securities and Exchange Commission (the
``Commission'') the proposed rule change as described in Items I and II
below, which Items have been prepared by the Exchange. 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 reflect a change to the means of achieving
the investment objective applicable to the STARTM Global
Buy-Write ETF. The shares of the Fund are currently listed and traded
on the Exchange under NYSE Arca Equities Rule 8.600 (``Managed Fund
Shares'').
    The text of the proposed rule change is available on the Exchange's
Web site at www.nyse.com, at the principal office of the Exchange, and
at the Commission's Public Reference Room.

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

    In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of, and basis for, the
proposed rule change and discussed any comments it received

on the proposed rule change. The text of those statements may be
examined at the places specified in Item IV below. The Exchange has
prepared summaries, set forth in sections A, B, and C below, of the
most significant parts of such statements.

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

1. Purpose
    The Commission has approved the listing and trading on the Exchange
of shares (``Shares'') of the Fund under NYSE Arca Equities Rule 8.600
\4\ (``Managed Fund Shares''.\5\ The Shares are offered by the
AdvisorShares Trust (``Trust''), which is established as a Delaware
statutory trust and is registered with the Commission as an open-end
investment company.\6\ AdvisorShares Investments, LLC is the investment
adviser (``Adviser'') to the Fund. Partnervest Advisory Services, LLC
serves as sub-adviser for the Fund (``Sub-Adviser''). The Shares of the
Fund are currently listed and traded on the Exchange.
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    \4\ The Commission originally approved the listing and trading
of the Shares on the Exchange in Securities Exchange Act Release No.
67552 (August 1, 2012), 77 FR 47131 (August 7, 2012) (SR-NYSEArca-
2012-55) (``Prior Order''). Notice of the proposed rule change was
published in Securities Exchange Act Release No. 67183 (June 12,
2012), 77 FR 36314 (June 18, 2012) (SR-NYSEArca-2012-55) (``Prior
Notice'' and, together with the Prior Order, the ``Prior Release'').
    \5\ A Managed Fund Share is a security that represents an
interest in an investment company registered under the Investment
Company Act of 1940 (15 U.S.C. 80a-1) (``1940 Act'') organized as an
open-end investment company or similar entity that invests in a
portfolio of securities selected by its investment advisor
consistent with its investment objectives and policies. In contrast,
an open-end investment company that issues Investment Company Units,
listed and traded on the Exchange under NYSE Arca Equities Rule
5.2(j)(3), seeks to provide investment results that correspond
generally to the price and yield performance of a specific foreign
or domestic stock index, fixed income securities index or
combination thereof.
    \6\ The Trust is registered under the 1940 Act. On October 28,
2011, the Trust filed an amendment to its registration statement on
Form N-1A under the Securities Act of 1933 (15 U.S.C. 77a) (``1933
Act'') and under the 1940 Act relating to the Fund (File Nos. 333-
157876 and 811-22110) (``Registration Statement''). The description
of the operation of the Trust and the Fund herein is based, in part,
on the Registration Statement. In addition, the Commission has
issued an order granting certain exemptive relief to the Trust under
the 1940 Act. See Investment Company Act Release No. 28822 (July 20,
2009) (File No. 812-13488) (``Exemptive Order'').
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    In this proposed rule change, the Exchange proposes to make the
following change, described below, to the investment strategy the Sub-
Adviser will use to obtain the Fund's investment objective (the
``Proposed Amendment'').\7\ As stated in the Prior Release, according
to the Registration Statement, the Fund is a ``fund-of-funds'' and,
under normal market conditions, intends to invest at least 60% of its
total assets in exchange-traded funds (``ETFs'') \8\ and exchange-
traded notes (``ETNs'') \9\ that seek to track a diversified basket of
global indices and investment sectors and in exchange-traded pooled
investment vehicles that invest directly in commodities or currencies
and that are registered pursuant to the 1933 Act (together with ETFs
and ETNs, ``Underlying ETPs'').\10\
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    \7\ The Proposed Amendment described herein will be effective
upon filing with the Commission of another amendment to the Trust's
Registration Statement or supplement thereto. See note 6, supra. The
Adviser represents that the Adviser and the Sub-Adviser have managed
and will continue to manage the Fund in the manner described in the
Prior Release, and the Fund will not implement the Proposed
Amendment described herein until the instant proposed rule change is
operative.
    \8\ For purposes of this proposed rule change, and as stated in
the Prior Release, ETFs are securities registered under the 1940 Act
such as those listed and traded on the Exchange under NYSE Arca
Equities Rules 5.2(j)(3), 8.100, and 8.600.
    \9\ For purposes of this proposed rule change, and, as stated in
the Prior Release, ETNs are securities that are registered pursuant
to the 1933 Act such as those listed and traded on the Exchange
pursuant to NYSE Arca Equities Rule 5.2(j)(6).
    \10\ Underlying ETPs include, in addition to ETFs and ETNs, the
following securities: Trust Issued Receipts (as described in NYSE
Arca Equities Rule 8.200); Commodity-Based Trust Shares (as
described in NYSE Arca Equities Rule 8.201); Currency Trust Shares
(as described in NYSE Arca Equities Rule 8.202); Commodity Index
Trust Shares (as described in NYSE Arca Equities Rule 8.203); and
closed-end funds. The Underlying ETPs are all listed and traded in
the U.S. on registered exchanges.
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    As stated in the Prior Release, the Fund, through its investment in
Underlying ETPs, may purchase equity securities traded in the U.S. on
registered exchanges or the over-the-counter market.\11\ Going forward,
while continuing to invest, under normal market conditions, at least
60% of its total assets in Underlying ETPs, as described above, the
Fund proposes to also invest directly in exchange-traded equity
securities other than Underlying ETPs. All such other exchange-traded
equity securities will be listed and traded in the U.S. on national
securities exchanges. As stated in the Prior Release, except for
Underlying ETPs that may hold non-U.S. issues, the Fund will not
otherwise invest in non-U.S.-registered issues.
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    \11\ The Prior Release also states that the Fund invests in call
options on Underlying ETPs. All such options are traded in the U.S.
on national securities exchanges.
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    The Exchange represents that trading in the Shares will be subject
to the existing trading surveillances, administered by the Financial
Industry Regulatory Authority (``FINRA'') on behalf of the Exchange,
which are designed to detect violations of Exchange rules and
applicable federal securities laws.\12\ The Exchange represents that
these procedures are adequate to properly monitor Exchange trading of
the Shares in all trading sessions and to deter and detect violations
of Exchange rules and applicable federal securities laws.
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    \12\ FINRA surveils trading on the Exchange pursuant to a
regulatory services agreement. The Exchange is responsible for
FINRA's performance under this regulatory services agreement.
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    FINRA, on behalf of the Exchange, will communicate as needed
regarding trading in equity securities (including Underlying ETPs and
other exchange-traded equity securities), and exchange-traded options
with other markets and other entities that are members of the
Intermarket Surveillance Group (``ISG''), and FINRA, on behalf of the
Exchange, may obtain trading information regarding trading in equity
securities (including Underlying ETPs and other exchange-traded equity
securities), and exchange-traded options from such markets and other
entities. In addition, the Exchange may obtain information regarding
trading in equity securities (including Underlying ETPs and other
exchange-traded equity securities), and exchange-traded options from
markets and other entities that are members of ISG or with which the
Exchange has in place a comprehensive surveillance sharing agreement.
    For purposes of calculating net asset value (``NAV'') of Shares of
the Fund, price information for valuation of equity securities held by
the Fund will be taken from the exchange where the security is
primarily traded. Quotation and last-sale information for the equity
securities held by the Fund will be available via the Consolidated Tape
Association (``CTA'') high-speed line and from major market data
vendors.
    The Adviser represents that there is no change to the Fund's
investment objective. The Adviser also represents that the Proposed
Amendment is consistent with the Exemptive Order under the 1940 Act and
the rules thereunder. Except for the changes noted regarding the
Proposed Amendment above, all other facts presented and representations
made in the Prior Release remain unchanged.
    The Fund will continue to comply with all initial and continued
listing requirements under NYSE Arca Equities Rule 8.600.
    Terms used herein but not otherwise defined shall have the meanings

ascribed to them in the Rule 19b-4 filing underlying the Prior
Release.\13\
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    \13\ See note 4, supra.
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    The Exchange notes that the Commission has previously approved for
listing other actively-managed exchange-traded funds that invest in
U.S. exchange-listed equity securities.\14\
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    \14\ See, e.g., Securities Exchange Act Release No. 71067
(December 12, 2013), 78 FR 76669 (December 18, 2013) (SR-NYSEArca-
2013-105) (order approving listing and trading on NYSE Arca of SPDR
MFS ETFs).
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2. Statutory Basis
    The basis under the Act for this proposed rule change is the
requirement under Section 6(b)(5) \15\ that an exchange have rules that
are designed to prevent fraudulent and manipulative acts and practices,
to promote just and equitable principles of trade, to remove
impediments to, and perfect the mechanism of a free and open market
and, in general, to protect investors and the public interest.
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    \15\ 15 U.S.C. 78f(b)(5).
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    The Exchange believes that the proposed rule change is designed to
prevent fraudulent and manipulative acts and practices in that the
Shares will be listed on the Exchange pursuant to the initial and
continued listing criteria in NYSE Arca Equities Rule 8.600. The
Exchange represents that trading in the Shares will be subject to the
existing trading surveillances, administered by FINRA on behalf of the
Exchange, which are designed to detect violations of Exchange rules and
applicable federal securities laws. The Exchange represents that these
procedures are adequate to properly monitor Exchange trading of the
Shares in all trading sessions and to deter and detect violations of
Exchange rules and applicable federal securities laws.
    FINRA, on behalf of the Exchange, will communicate as needed
regarding trading in equity securities (including Underlying ETPs and
other exchange-traded equity securities), and exchange-traded options
with other markets and other entities that are members of the ISG, and
FINRA, on behalf of the Exchange, may obtain trading information
regarding trading in equity securities (including Underlying ETPs and
other exchange-traded equity securities), and exchange-traded options
from such markets and other entities. In addition, the Exchange may
obtain information regarding trading in equity securities (including
Underlying ETPs and other exchange-traded equity securities), and
exchange-traded options from markets and other entities that are
members of ISG or with which the Exchange has in place a comprehensive
surveillance sharing agreement.
    The proposed rule change is designed to promote just and equitable
principles of trade and to protect investors and the public interest in
that the Adviser represents that there is no change to the Fund's
investment objective. The Fund will continue to comply with all initial
and continued listing requirements under NYSE Arca Equities Rule 8.600.
The Adviser represents that the purpose of the proposed rule change is
to provide additional flexibility to the Sub-Adviser to meet the Fund's
investment objective by investing directly in U.S. exchange-listed
equity securities.
    The proposed rule change is designed to perfect the mechanism of a
free and open market and, in general, to protect investors and the
public interest in that it will facilitate the continued listing and
trading of an actively-managed exchange-traded product that will
enhance competition among market participants, to the benefit of
investors and the marketplace. The Fund will continue to comply with
all initial and continued listing requirements under NYSE Arca Equities
Rule 8.600.

(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 purpose of the Act. The Exchange believes the
proposed rule change will permit the Adviser and Sub-Adviser additional
flexibility in achieving the Fund's investment objective, and will
permit the Fund to better compete with other issues of Managed Fund
Shares that hold equity securities traded in the U.S. on national
securities exchanges.

(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

    Because the foregoing 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 for 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) thereunder.\17\
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    \16\ 15 U.S.C. 78s(b)(3)(A).
    \17\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)
requires a self-regulatory organization to give the Commission
written notice of its intent to file the proposed rule change at
least five business days prior to the date of filing of the proposed
rule change, or such shorter time as designated by the Commission.
The Exchange has satisfied this requirement.
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    A proposed rule change filed under Rule 19b-4(f)(6) normally does
not become operative for 30 days after the date of filing. However,
Rule 19b-4(f)(6)(iii) permits the Commission to designate a shorter
time if such action is consistent with the protection of investors and
the public interest. The Exchange requests that the Commission waive
the 30-day operative delay to accommodate certain investments by the
Fund and Exchange trading of the Shares of the Fund without delay. The
Commission believes that waiving the 30-day operative delay is
consistent with the protection of investors and the public
interest.\18\ As stated in the proposal, the proposed changes do not
alter the Fund's investment objective. Under the proposal, the Fund
seeks to invest directly in exchange-traded equity securities other
than Underlying ETPs. The Exchange states that all exchange-traded
equity securities, in addition to Underlying ETPs, in which the Fund
will invest will be listed and traded in the U.S. on national
securities exchanges. In addition, the Exchange confirms that, except
for Underlying ETPs that may hold non-U.S. issues, the Fund will not
otherwise invest in non-U.S.-registered issues. The Exchange represents
that, except for the changes in the proposal, all other facts and
representations made in the Prior Release remain unchanged and that the
Fund will continue to comply with all initial and continued listing
requirements under NYSE Arca Equities Rule 8.600. Because the proposed
changes do not alter the Fund's investment objective and do not raise
any novel or unique regulatory issues, the Commission designates the
proposed rule change as operative upon filing.
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    \18\ For purposes only of waiving the 30-day operative delay,
the Commission has also considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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    At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of

investors, or otherwise in furtherance of the purposes of the Act.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether the proposal is
consistent with the Act. Comments may be submitted by any of the
following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml ); or
     Send an email to<EMAIL_ADDRESS>Please include
File No. SR-NYSEArca-2014-05 on the subject line.

Paper Comments

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

All submissions should refer to File No. SR-NYSEArca-2014-05. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml
). Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule changes between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for Web site viewing and printing in
the Commission's Public Reference Room, 100 F Street NE., Washington,
DC 20549, on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of such filing will also 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 No. SR-NYSEArca-2014-05 and should be
submitted on or before February 14, 2014.
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    \19\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\19\
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2014-01402 Filed 1-23-14; 8:45 am]
BILLING CODE 8011-01-P


                                  Memorandum

TO:  Portland Cement Project Team

FROM: Keith Barnett, US EPA

SUBJECT:  Revised Floors without Kilns that Would have been CISWI Kilns Had the Solid Waste Definition Applied

DATE:  April 25, 2011

Revision of Emission data base to remove possible CISWI kilns

The following table lists kilns that had been identified as potential CISWI kilns in the proposal of the CISWI rule.  This list was compiled based on responses to an EPA survey and was based on the proposed definition of non-hazardous solid waste.

      Table 1.  List of CISWI Cement Kilns at Proposal of the CISWI Rule
                               ALCemexDemopolis
                             ALLafargeRobertaPlant
                             ALLehighCementCoLeeds
                           CACAPortlandCementColton
                         CALehighSouthwestReddingPlant
                              CAMitsubishiCement
                             CANationalCementofCA
                              FLCemexBrooksville
                                 FLCemexMiami
                                 FLFloridaRock
                              FLRinkerBrooksville
                              GACemexClinchfield
                               IALafargeBuffalo
                            IALehighCementMasonCity
                                IDAshGroveInkom
                             ILBuzziUnicemOglesby
                              ILLafargeJoppaPlant
                           KSMonarchCementCoHumboldt
                            MDESSROCFrederickPlant
                              OKLafargeTulsaPlant
                                OKLoneStarPryor
                               ORAshGroveDurkee
                       PAEssrocItalcementiGroupBessemer
                            PALafargeWhitehallPlant
                           PALehighCementEvansville
                              PALehighCementYork
                             SCLafargeHarleyville
                               TNCemexKnoxville
                             TXAshGroveMidlothian
                             TXCemexBalconesPlant
                            TXHolcimMidlothianPlant
                              TXLoneStarMaryneal
                             UTAshGroveLeamington
                              UTHolcimDevilsSlide
                               WAAshGroveSeattle
                               WALafargeSeattle

Follow up questions were sent by EPA to these facilities to gain additional information on some of their fuels, specifically used oil, tires, wood waste and spent seed corn.   These responses were then reviewed based on the final solid waste definition rule signed on February 21, 2011.  The final solid waste rule states that tires that come from an established tire collection program, clean wood, clean biomass, and used oil that is on spec are not solid waste.  We eliminated the kilns that burned only these alternative fuels from the CISWI list.  The remaining CISWI kilns are shown below in Table 2.

                         Table 2.  CISWI Cement Kilns
                                  FacilityID
                                    UnitID
Lehigh Southwest, Redding CA
In-Line Kiln/Raw Mill (S260)
Cemex, Miami FL
Cement Kiln
Lafarge, Buffalo IA
Kiln 1
Lehigh Cement, Mason City IA
302.203
Lafarge, Whitehall PA
Kiln 2
Lafarge, Whitehall PA
Kiln 3
Lehigh Cement, Evansville PA
122
Lehigh Cement, Evansville PA
121
Lehigh Cement, York PA
200
Holcim, Midlothian TX
Kiln 2
Holcim, Midlothian TX
Kiln 1
Holcim, Devils Slide UT
Kiln 1
Ash Grove Cement, Midlothian TX
Kilns 1 through 3
California Portland Cement, Colton CA
Kilns 1 and 2

In addition to the kilns above, the recent ICR follow up on alternative fuels indicates the following kilns in Table 3 would also be CISWI kilns (though they were not in the CISWI data base).

Table 3.  Additional Kilns identified as CISWI Units (but are not in CISWI data base)
Location
Number of Kilns
Why is it CISWI?
Lehigh, Union Bridge MD
1
Burns dried biosolids as a fuel
Lafarge, Alpena MI
5
Burns Plastics

Note that it is EPA's position that combustion does not occur in the cold end of a cement kiln.  Materials that enter the cold end of the kiln are gradually heated until they reach the temperature where clinker formation takes place.  This is in contrast to combustion where fuel is introduced into the kiln at a location where the temperature is sufficient to immediately commence the process of combusting the fuel.    (Fuels are never burned in the cold end of a cement kiln, and our interpretation reflects that understanding.)  This means that cement kilns' practices of using non-hazardous secondary materials in the cold end of the cement kiln would not make the kilns "solid waste incineration unit[s]" within the meaning of section 129 (g)(1) of the CAA since kilns would not "combus[t]" those materials.  Consequently, we do not include any cement kiln in this analysis based on utilization of non-hazardous secondary materials in the cold end of the cement kiln.

For purposes of this analysis, all of the kilns shown in Tables 2 and 3 were taken out of the Portland cement emissions data base and the floors recalculated as shown below.  That is, we recalculated the floors as if the recently promulgated definition of non-hazardous secondary materials which are solid wastes had been in place at the time of the cement kiln NESHAP rulemaking.

Mercury Floor

The mercury floor was calculated based on a data base of 89 kilns where we had approximately 30 days of data on all mercury inputs.  Twenty-two of the 23 CISWI kilns shown above were part of the mercury data base.  Removing the 22 CISWI kilns leaves 67 kilns.  The best performing 12 percent would be 9 kilns.

Of the best performing 11 kilns that were used in the previous floor calculation, two would have been CIWSI, 1589, and 1248.  Removing these kilns from the MACT floor pool leaves the 9 best performing kilns.  The single best performing kiln now becomes kiln 1650.

The floors were recalculated (See attachment 1) based on the best performing 9 kilns and the new source floor was recalculated based on kiln 1650.  The results were as follows:

Existing Source floor:   58 lb/MM tons clinker (versus 55 in the current rule)
New Source Floor:  24 lb/M tons clinker (versus 21 in the current rule)

THC Floor

The THC Floor was re-estimated using the THC data set used in the final rule.  This data set (shown in Attachment 2) consisted of 15 kilns where we had continuous monitoring data.  Of these 15 kilns, four would have been CISWI kilns (including Union Bridge, the best performer on average).  This leaves 9 kilns (see attachment 3), and the best 12 percent would be two.  The best performing kilns on average become Suwannee, Branford and Holcim Trident. The resulting floor based on the 99th percentile of the data of the two floor kilns is 15 ppmvd and the new source floor would be 11 ppmvd (see attachment 4).   The corresponding organic HAP limits (under the alternative standard) would be 6 and 4 ppmvd respectively.

PM Floor

There were 45 kilns in the PM data set used in the final rule (see attachment 5).  Removing the CISWI kilns left 28 kilns (see attachment 6).  The best performing kilns would be the top 4.  New source MACT does not change; it is still the Mitsubishi kiln.

The existing source MACT floor using the four best performing kilns is 0.05 lb/ton clinker (See Attachment 7).

HCl Floor

There were HCl test data for 20 major source kilns used in the final rule (see attachment 8).   Four of the 20 were CSWI kilns, leaving 16 NESHAP kilns (see attachment 9).  The best performing 12 percent would be 2.  Recalculation of the floor based on the two best performing kilns results in a floor of 1 ppmvd (see attachment 10), which is still below the minimum quantification limit of 3 ppmvd.   This standard thus would remain at 3 ppmvd for new and existing sources.