[Federal Register Volume 75, Number 46 (Wednesday, March 10, 2010)]
[Notices]
[Pages 11221-11223]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-5066]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-61639; File No. SR-NYSEArca-2010-09]


Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change Relating to Listing 
of Wilshire 5000 Total Market ETF and the Wilshire 4500 Completion ETF

March 3, 2010.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby 
given that, on February 25, 2010, NYSE Arca, Inc. (the ``Exchange'' or 
``NYSE Arca'') filed with the Securities and Exchange Commission (the 
``Commission'') the proposed rule change as described in Items I and II 
below, which Items have been prepared by the self-regulatory 
organization. The Commission is publishing this notice to solicit 
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to list and trade the shares of the Wilshire 
5000 Total Market ETF and the Wilshire 4500 Completion ETF under NYSE 
Arca Equities Rule 5.2(j)(3). The text of the proposed rule change is 
available at the Exchange, the Commission's Public Reference Room, and 
http://www.nyse.com.

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

    In its filing with the Commission, the self-regulatory organization 
included statements concerning the purpose of, and basis for, the 
proposed rule change and discussed any comments it received on the 
proposed rule change. The text of those statements may be examined at

[[Page 11222]]

the places specified in Item IV below. The Exchange has prepared 
summaries, set forth in sections A, B, and C below, of the most 
significant parts of such statements.

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

1. Purpose
    The Exchange proposes to list and trade the shares (``Shares'') of 
the Wilshire 5000 Total Market ETF and the Wilshire 4500 Completion ETF 
(each, a ``Fund'', and, collectively, ``Funds'') under NYSE Arca 
Equities Rule 5.2(j)(3), the Exchange's listing standards for 
Investment Company Units (``ICUs'') \4\. Each of the Funds is a series 
of the Claymore Exchange-Traded Fund Trust.
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    \4\ An Investment Company Unit is a security that represents an 
interest in a registered investment company that holds securities 
comprising, or otherwise based on or representing an interest in, an 
index or portfolio of securities (or holds securities in another 
registered investment company that holds securities comprising, or 
otherwise based on or representing an interest in, an index or 
portfolio of securities). See NYSE Arca Equities Rule 5.2(j)(3)(A).
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    The Wilshire 5000 Total Market ETF seeks investment results that 
correspond generally to the performance, before the Fund's fees and 
expenses of the Wilshire 5000 Total Market Index (``Wilshire 
5000'').\5\ The Wilshire 4500 Completion ETF seeks investment results 
that correspond generally to the performance, before the Fund's fees 
and expenses of the Wilshire 4500 Completion Index (``Wilshire 4500'', 
and, together with the Wilshire 5000, the ``Underlying Indexes'').\6\
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    \5\ The Wilshire 5000 Index is designed to represent the total 
U.S. equity market. The Wilshire 5000 Index includes all U.S. equity 
securities that have readily available prices.
    \6\ The Wilshire 4500 Index is a subset of the Wilshire 5000 
Total Market Index. Designed to represent the extended market, the 
Wilshire 4500 Index is the Wilshire 5000 Index with the components 
of the S&P 500 Index excluded.
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    The Exchange is submitting this proposed rule change because the 
Underlying Indexes for the Funds do not meet all of the ``generic'' 
listing requirements of Commentary .01(a)(A) to NYSE Arca Equities Rule 
5.2(j)(3) applicable to listing of ICUs based on US indexes. The 
Underlying Indexes meets all such requirements except for that set 
forth in Commentary .01(a)(A)(5).\7\ Specifically, as of January 21, 
2010, stocks comprising 99.952% of the weight of the Wilshire 5000 were 
NMS stocks and stocks comprising 99.734% of the weight of the Wilshire 
4500 were NMS stocks.\8\
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    \7\ Commentary .01(a)(A)(5) to NYSE Arca Equities Rule 5.2(j)(3) 
provides that all securities in the index or portfolio shall be U.S. 
Component Stocks listed on a national securities exchange and shall 
be NMS Stocks as defined in Rule 600 of Regulation NMS under the 
Securities Exchange Act of 1934 (17 U.S.C. 78a) (``Act''). NYSE Arca 
Equities Rule 5.2(j)(3) defines the term ``U.S. Component Stock'' as 
an equity security that is registered under Sections 12(b) or 12(g) 
of the Act or an American Depositary Receipt, the underlying equity 
security of which is registered under Sections 12(b) or 12(g) of the 
Act.
    \8\ As of January 21, 2010, the Wilshire 5000 and Wilshire 4500 
each included 197 non-NMS stocks. Such stocks are traded either on 
the OTC Bulletin Board or the Pink OTC Markets.
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    The Exchange represents that: (1) Except for Commentary 
.01(a)(A)(5) to NYSE Arca Equities Rule 5.2(j)(3), the Shares of the 
Fund currently satisfy all of the generic listing standards under NYSE 
Arca Equities Rule 5.2(j)(3); (2) the continued listing standards under 
NYSE Arca Equities Rules 5.2(j)(3) and 5.5(g)(2) applicable to ICUs 
shall apply to the Shares; and (3) the Trust is required to comply with 
Rule 10A-3 \9\ under the Act for the initial and continued listing of 
the Shares. In addition, the Exchange represents that the Shares will 
comply with all other requirements applicable to ICUs including, but 
not limited to, requirements relating to the dissemination of key 
information such as the value of the Underlying Indexes and Intraday 
Indicative Value, rules governing the trading of equity securities, 
trading hours, trading halts, surveillance, and Information Bulletin to 
ETP Holders, as set forth in Exchange rules applicable to ICUs and 
prior Commission orders approving the generic listing rules applicable 
to the listing and trading of ICUs.\10\
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    \9\ 17 CFR 240.10A-3.
    \10\ See, e.g., Securities Exchange Act Release No. 44551 (July 
12, 2001), 66 FR 37716 (July 19, 2001) (SR-PCX-2001-14) (order 
approving generic listing standards for ICUs and Portfolio 
Depositary Receipts); Securities Exchange Act Release No. 41983 
(October 6, 1999), 64 FR 56008 (October 15, 1999) (SR-PCX-98-29) 
(order approving rules for listing and trading of ICUs).
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    Detailed descriptions of the Funds, the Underlying Indexes, 
procedures for creating and redeeming Shares, transaction fees and 
expenses, dividends, distributions, taxes, risks, and reports to be 
distributed to beneficial owners of the Shares can be found in the 
Registration Statement \11\ or on the Web site for the Funds (http://www.claymore.com), as applicable.
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    \11\ See the Claymore Exchange-Traded Fund Trust Registration 
Statement on Form N-1A, dated December 18, 2009 (File Nos. 333-
134551; 811-21906) (``Registration Statement'').
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2. Statutory Basis

    The proposed rule change is consistent with section 6(b) \12\ of 
the Act, in general, and furthers the objectives of section 
6(b)(5),\13\ in particular, in that it is designed to prevent 
fraudulent and manipulative acts and practices, to promote just and 
equitable principles of trade, to foster cooperation and coordination 
with persons engaged in facilitating transactions in securities, and to 
remove impediments to and perfect the mechanisms of a free and open 
market and a national market system. The Exchange believes that the 
proposed rule change will facilitate the listing and trading of an 
additional type of exchange-traded product that will enhance 
competition among market participants, to the benefit of investors and 
the marketplace.
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    \12\ 15 U.S.C. 78f(b).
    \13\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    No written comments were solicited or received with respect to the 
proposed rule change.

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

    The Exchange has filed the proposed rule change pursuant to Section 
19(b)(3)(A)(iii) of the Act \14\ and Rule 19b-4(f)(6) thereunder.\15\ 
Because the proposed rule change does not: (i) Significantly affect the 
protection of investors or the public interest; (ii) impose any 
significant burden on competition; and (iii) become operative prior to 
30 days from the date on which it was filed, or such shorter time as 
the Commission may designate, if consistent with the protection of 
investors and the public interest, the proposed rule change has become 
effective pursuant to Section 19(b)(3)(A) of the Act \16\ and Rule 19b-
4(f)(6)(iii) thereunder.\17\
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    \14\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \15\ 17 CFR 240.19b-4(f)(6).
    \16\ 15 U.S.C. 78s(b)(3)(A).
    \17\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii) 
requires the Exchange to give the Commission written notice of the 
Exchange's intent to file the proposed rule change along with a 
brief description and text of the proposed rule change, at least 
five business days prior to the date of filing of the proposed rule 
change, or such shorter time as designated by the Commission. The 
Exchange has satisfied the pre-filing requirement.

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[[Page 11223]]

    A proposed rule change filed under Rule 19b-4(f)(6) \18\ normally 
does not become operative prior to 30 days after the date of the 
filing. However, pursuant to Rule 19b4(f)(6)(iii),\19\ the Commission 
may designate a shorter time if such action is consistent with the 
protection of investors and the public interest. The Exchange has 
requested that the Commission waive the 30-day operative delay so that 
the proposal may become operative immediately upon filing. The Exchange 
states that the proposed rule change does not significantly affect the 
protection of investors or the public interest and does not impose any 
significant burden on competition. In addition, the Exchange believes 
that it has developed adequate trading rules, procedures, surveillance 
programs, and listing standards for the continued listing and trading 
of the Shares.
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    \18\ 17 CFR 240.19b-4(f)(6).
    \19\ 17 CFR 240.19b-4(f)(6)(iii).
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    The Commission believes that waiving the 30-day operative delay is 
consistent with the protection of investors and the public interest. 
The Commission notes that the Underlying Indexes for the Funds fail to 
meet the requirements set forth in Commentary .01(a)(A)(5) to NYSE Arca 
Equities Rule 5.2(j)(3) by only a small amount and that Exchange has 
represented that the Shares of the Funds currently satisfy all of the 
other generic listing standards under NYSE Arca Equities Rule 5.2(j)(3) 
and all other requirements applicable to ICUs, as set forth in Exchange 
rules and prior Commission orders approving the generic listing rules 
applicable to the listing and trading of ICUs. Therefore, the 
Commission believes that the listing and trading of the Shares do not 
present any novel or significant issues or impose any significant 
burden on competition, and that waiving the 30-day operative delay will 
benefit the market and investors by providing market participants with 
additional investing choices. For these reasons, the Commission 
designates the proposed rule change as operative under upon filing.\20\
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    \20\ For purposes only of waiving the 30-day operative delay, 
the Commission has considered the proposed rule's impact on 
efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
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    At any time within 60 days of the filing of the proposed rule 
change, the Commission may summarily abrogate such rule change if it 
appears to the Commission that such action is necessary or appropriate 
in the public interest, for the protection of investors, or otherwise 
in furtherance of the purposes of the Act.

IV. Solicitation of Comments

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

Electronic Comments

    <bullet> Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
    <bullet> Send an e-mail to <a href="/cdn-cgi/l/email-protection#87f5f2ebe2aae4e8eaeae2e9f3f4c7f4e2e4a9e0e8f1"><span class="__cf_email__" data-cfemail="552720393078363a3838303b2126152630367b323a23">[email protected]</span></a>. Please include 
File Number SR-NYSEArca-2010-09 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NYSEArca-2010-09. This 
file number should be included on the subject line if e-mail is used. 
To help the Commission process and review your comments more 
efficiently, please use only one method. The Commission will post all 
comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, 
all written statements with respect to the proposed rule change that 
are filed with the Commission, and all written communications relating 
to the proposed rule change between the Commission and any person, 
other than those that may be withheld from the public in accordance 
with the provisions of 5 U.S.C. 552, will be available for Web site 
viewing and printing in the Commission's Public Reference Room, 100 F 
Street, NE., Washington, DC 20549, on official business days between 
the hours of 10 a.m. and 3 p.m. Copies of such filing also will be 
available for inspection and copying at the principal office of the 
Exchange. All comments received will be posted without change; the 
Commission does not edit personal identifying information from 
submissions. You should submit only information that you wish to make 
available publicly. All submissions should refer to File Number SR-
NYSEArca-2010-09 and should be submitted on or before March 31, 2010.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\21\
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    \21\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-5066 Filed 3-9-10; 8:45 am]
BILLING CODE 8011-01-P


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