41468 Federal Register / Vol. 74, No. 157 / Monday, August 17, 2009 / Notices 

27 Id. 

28See NYSE Arca Order, supra note 11, at 74784. 

29 Id. at 74783. 

30 Id. 

31 Id. Information on transactions executed on 

Phlx is available through OPRA. 

32 In its filing, Phlx states that ‘‘ISE and CBOE are 

potential competitors because each exchange enjoys 

greater market share and thus the ability to offer a 

top-of-book product that would compete favorably 

with TOPO.’’ See Notice, supra, note 4, at 32677. 

Phlx also notes that although the TOPO data feed 

is separate from the core data feed made available 

by OPRA, all of the information made available in 

TOPO is included in the core data feed. Phlx states 

that the OPRA data is widely distributed and 

relatively inexpensive, thus constraining Phlx’s 

ability to price TOPO. See Notice, supra, note 4, at 

32677. 

33Conversely, External Distributors can 

reasonably be expected to distribute the TOPO data 

to a higher number of subscribers because they do 

not have the same limitation. Accordingly, the 

Exchange will charge a higher fee to External 

Distributors than to Internal Distributors. See id. 

34 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3See Securities Exchange Act Release No. 60195 

(June 30, 2009), 74 FR 32678 (‘‘Notice’’). 

4See NYSE Arca Equities Rule 8.600. 

5The Trust is registered under the Investment 

Company Act of 1940 (‘‘1940 Act’’). On June 9, 

2009, the Trust filed with the Commission a 

registration statement on Form N–1A (File Nos. 

333–157876 and 811–22110) (‘‘Registration 

Statement’’). 

6The Exchange represents that neither the 

Advisor nor the Sub-Advisor is affiliated with a 

broker-dealer. See Commentary .07 to NYSE Arca 

Equities Rule 8.600. 

7 17 CFR 240.10A–3. 

8Underlying ETPs include Investment Company 

Units (NYSE Arca Equities Rule 5.2(j)(3)); IndexLinked Securities (NYSE Arca Equities Rule 

5.2(j)(6)); Portfolio Depositary Receipts (NYSE Arca 

Equities Rule 8.100); Trust Issued Receipts (NYSE 

Arca Equities Rule 8.200); Commodity-Based Trust 

Shares (NYSE Arca Equities Rule 8.201); Currency 

Trust Shares (NYSE Arca Equities Rule 8.202); 

Commodity Index Trust Shares (NYSE Arca 

Equities Rule 8.203); Trust Units (NYSE Arca 

Equities Rule 8.500); and Managed Fund Shares 

(NYSE Arca Equities Rule 8.600). 

currently represent less than 0.04% of 

Phlx’s total contract volume.27 The 

Commission believes that, given the 

small percentage of Phlx’s total contract 

volume represented by these seven 

products, the inclusion of data on these 

products in Phlx’s TOPO product will 

not confer market power on Phlx to 

compel market participants to purchase 

the entire Phlx data feed. The 

Commission therefore believes that the 

inclusion of top-of-book data for these 

products in Phlx’s TOPO product does 

not undermine the finding that Phlx was 

subject to significant competitive forces 

in setting the terms of its proposal. 

In addition to the need to attract order 

flow, the availability of alternatives to 

TOPO product significantly affect the 

terms on which Phlx can distribute this 

market data.28 In setting the fees for its 

TOPO product, Phlx must consider the 

extent to which market participants 

would choose one or more alternatives 

instead of purchasing its data.29 The 

most basic source of information 

concerning the top-of-book generally 

available at an exchange is the complete 

record of an exchange’s transactions that 

is provided in the core data feeds.30 In 

this respect, the core data feeds that 

include an exchange’s own transaction 

information are a significant alternative 

to the exchange’s market data product.31

Further, other options exchanges can 

produce their own top-of-book products, 

and thus are sources of potential 

competition for Phlx.32

The Commission believes that there 

are a number of alternative sources of 

information that impose significant 

competitive pressures on Phlx in setting 

the terms for distributing its TOPO 

product. The Commission believes that 

the availability of those alternatives, as 

well as Phlx’s compelling need to attract 

order flow, imposed significant 

competitive pressure on Phlx to act 

equitably, fairly, and reasonably in 

setting the terms of its proposal. 

Because Phlx was subject to 

significant competitive forces in setting 

the terms of the proposal, the 

Commission will approve the proposal 

in the absence of a substantial 

countervailing basis to find that the 

terms of the proposal fail to meet the 

applicable requirements of the Act or 

the rules thereunder. The Commission 

did not receive any comments on the 

proposal. Further, an analysis of the 

proposal does not provide such a basis. 

The Commission notes that the 

proposed fees for TOPO are lower for 

Internal Distributors than for External 

Distributors. Because Internal 

Distributors are by definition more 

limited in the scope of their distribution 

of TOPO data than External Distributors, 

it is reasonable to expect that Internal 

Distributors will provide TOPO data to 

a smaller number of internal 

subscribers.33 The fees therefore do not 

unreasonably discriminate among types 

of subscribers, such as by favoring 

participants in the Phlx market or 

penalizing participants in other markets. 

IV. Conclusion 

It is therefore ordered, pursuant to 

Section 19(b)(2) of the Act, that the 

proposed rule change (SR–Phlx–2009– 

54), be and hereby is approved. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.34

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–19569 Filed 8–14–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–60460; File No. SR– 

NYSEArca–2009–55] 

Self-Regulatory Organizations; NYSE 

Arca, Inc.; Order Granting Approval of 

a Proposed Rule Change To List and 

Trade Shares of the Dent Tactical ETF 

August 7, 2009. 

On June 18, 2009, NYSE Arca, Inc. 

(‘‘NYSE Arca’’ or ‘‘Exchange’’), through 

its wholly owned subsidiary, NYSE 

Arca Equities, Inc. (‘‘NYSE Arca 

Equities’’), filed with the Securities and 

Exchange Commission (‘‘Commission’’), 

pursuant to Section 19(b)(1) of the 

Securities Exchange Act of 1934 

(‘‘Act’’) 1 and Rule 19b–4 thereunder,2 a 

proposed rule change to list and trade 

shares (‘‘Shares’’) of the Dent Tactical 

ETF (‘‘Fund’’) under NYSE Arca 

Equities Rule 8.600. The proposed rule 

change was published in the Federal 

Register on July 8, 2009.3 The 

Commission received no comments on 

the proposal. This order grants approval 

of the proposed rule change. 

I. Description of the Proposal 

The Exchange proposes to list and 

trade the Shares of the Fund under 

NYSE Arca Equities Rule 8.600, which 

governs the listing of Managed Fund 

Shares.4 The Shares will be offered by 

AdvisorShares Trust (‘‘Trust’’), a 

statutory trust organized under the laws 

of the State of Delaware and registered 

with the Commission as an open-end 

management investment company.5 The 

investment advisor to the Fund is 

AdvisorShares Investments, LLC 

(‘‘Advisor’’), and the day-to-day 

portfolio management of the Fund is 

provided by the sub-advisor to the 

Fund, HS Dent Investment Management, 

LLC (‘‘Sub-Advisor’’).6 The Exchange 

represents that the Shares will conform 

to the initial and continued listing 

criteria under NYSE Arca Equities Rule 

8.600 and that the Fund will be in 

compliance with Rule 10A–3 under the 

Act,7 as provided by NYSE Arca 

Equities Rule 5.3. 

The Fund is a ‘‘fund of funds,’’ which 

means that the Fund seeks to invest 

primarily in other exchange-traded 

funds that are registered under the 1940 

Act and certain other exchange-traded 

products that are not registered as 

investment companies under the 1940 

Act (collectively, ‘‘Underlying ETPs’’).8

The Fund seeks to achieve its 

investment objective of long-term 

growth of capital by identifying, through 

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Federal Register / Vol. 74, No. 157 / Monday, August 17, 2009 / Notices 41469 

9 15 U.S.C. 78f. 

10 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). 

11 17 U.S.C. 78f(b)(5). 

12The Advisor will disclose for each portfolio 

security or other financial instrument of the Fund 

the following information: Ticker symbol (if 

applicable), name of security or financial 

instrument, number of shares or dollar value of 

financial instruments held in the portfolio, and 

percentage weighting of the security or financial 

instrument in the portfolio. The NAV of the Fund 

will normally be determined as of the close of the 

regular trading session on the New York Stock 

Exchange (ordinarily 4 p.m. Eastern Time) on each 

business day. 13See Commentary .07 to NYSE Arca Equities 

Rule 8.600. The Commission notes that any 

additional sub-advisers to the Fund that are 

affiliated with a broker-dealer will be required to 

implement a fire-wall with respect to such brokerdealer regarding access to information concerning 

the composition of the portfolio. Commentary .07 

to NYSE Arca Equities Rule 8.600 also requires that 

any personnel who make decisions on the Fund’s 

portfolio composition must be subject to procedures 

designed to prevent the use and dissemination of 

material non-public information regarding the 

portfolio. 

14See NYSE Arca Equities Rule 8.600(d)(1)(B). 

15See NYSE Arca Equities Rule 8.600(d)(2)(D). 

Trading in the Shares may also be halted because 

of market conditions or for reasons that, in the view 

of the Exchange, make trading in the Shares 

inadvisable. These may include: (1) The extent to 

which trading is not occurring in the securities 

comprising the Disclosed Portfolio and/or the 

financial instruments of the Fund; or (2) whether 

other unusual conditions or circumstances 

detrimental to the maintenance of a fair and orderly 

market are present. 

16See NYSE Arca Equities Rule 8.600(d)(2)(B)(ii). 

proprietary economic and demographic 

analysis, the overall trend of the U.S. 

and global economies, and then 

implementing investment strategies in 

asset classes that the Sub-Advisor 

believes will benefit from these trends. 

The Sub-Advisor will follow its model 

to determine how offensive or defensive 

the Fund portfolio will be, and then will 

select the securities to buy or sell. 

Except for Underlying ETPs that may 

hold non-U.S. issues, the Fund will not 

otherwise invest in non-U.S. issues. 

Additional information regarding the 

Fund, the Shares, the Fund’s investment 

objective, strategies, methodology, and 

restrictions, the investment Advisor and 

Sub-Advisor, risks, fees and expenses, 

creations and redemptions of Shares, 

availability of information, trading rules 

and halts, and surveillance procedures, 

among other things, can be found in the 

Registration Statement and in the 

Notice, as applicable. 

II. 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 9

and the rules and regulations 

thereunder applicable to a national 

securities exchange.10 In particular, the 

Commission finds that the proposal is 

consistent with Section 6(b)(5) of the 

Act,11 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. 

The Commission finds that the 

proposal to list and trade the Shares on 

the Exchange is consistent with Section 

11A(a)(1)(C)(iii) of the Act, which sets 

forth Congress’ finding that it is in the 

public interest and appropriate for the 

protection of investors and the 

maintenance of fair and orderly markets 

to assure the availability to brokers, 

dealers and investors of information 

with respect to quotations for and 

transactions in securities. Quotation and 

last-sale information for the Shares will 

be available via the Consolidated Tape 

Association (‘‘CTA’’) high-speed line, 

and the Exchange will disseminate the 

Portfolio Indicative Value (‘‘PIV’’) at 

least every 15 seconds during the Core 

Trading Session through the facilities of 

the CTA. In addition, the Fund will 

make available on its Web site on each 

business day before commencement of 

the Core Trading Session the Disclosed 

Portfolio that will form the basis for the 

Fund’s calculation of the net asset value 

(‘‘NAV’’).12 A basket composition file, 

which includes the security names and 

share quantities required to be delivered 

in exchange for Fund shares, together 

with estimates and actual cash 

components, will be publicly 

disseminated daily prior to the opening 

of the New York Stock Exchange via the 

National Securities Clearing 

Corporation. The Fund’s Web site will 

also include additional quantitative 

information updated on a daily basis 

relating to trading volume, prices, and 

NAV. Information regarding the market 

price and volume of the Shares will be 

continually available on a real-time 

basis throughout the day via electronic 

services, and the previous day’s closing 

price and trading volume information 

for the Shares will be published daily in 

the financial sections of newspapers. 

The Commission further believes that 

the proposal to list and trade the Shares 

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. The 

Commission notes that the Advisor and 

Sub-Advisor to the Fund are not 

affiliated with a broker-dealer.13 The 

Commission also notes that the 

Exchange will obtain a representation 

from the Fund that the NAV per Share 

will be calculated daily and that the 

NAV and the Disclosed Portfolio will be 

made available to all market 

participants at the same time.14

Additionally, if it becomes aware that 

the NAV or the Disclosed Portfolio is 

not disseminated to all market 

participants at the same time, the 

Exchange will halt trading in the Shares 

until such information is available to all 

market participants. Further, if the PIV 

is not being disseminated as required, 

the Exchange may halt trading during 

the day in which the interruption 

occurs; if the interruption persists past 

the day in which it occurred, the 

Exchange will halt trading no later than 

the beginning of the trading day 

following the interruption.15 Finally, 

the Commission notes that the 

Reporting Authority that provides the 

Disclosed Portfolio must implement and 

maintain, or be subject to, procedures 

designed to prevent the use and 

dissemination of material non-public 

information regarding the actual 

components of the portfolio.16

The Exchange has represented that 

the Shares are equity securities subject 

to the Exchange’s rules governing the 

trading of equity securities. In support 

of this proposal, the Exchange has made 

representations, including: 

(1) The Shares will conform to the 

initial and continued listing criteria 

under NYSE Arca Equities Rule 8.600. 

(2) The Exchange’s surveillance 

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. 

(3) Prior to the commencement of 

trading, the Exchange will inform its 

ETP Holders in an Information Bulletin 

of the special characteristics and risks 

associated with trading the Shares. 

Specifically, the Information Bulletin 

will discuss the following: (a) The 

procedures for purchases and 

redemptions of Shares and that Shares 

are not individually redeemable; (b) 

NYSE Arca Equities Rule 9.2(a), which 

imposes a duty of due diligence on its 

ETP Holders to learn the essential facts 

relating to every customer prior to 

trading the Shares; (c) the risks involved 

in trading the Shares during the 

Opening and Late Trading Sessions 

when an updated PIV will not be 

calculated or publicly disseminated; (d) 

how information regarding the PIV is 

disseminated; (e) the requirement that 

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41470 Federal Register / Vol. 74, No. 157 / Monday, August 17, 2009 / Notices 

17See supra note 7. 

18 15 U.S.C. 78f(b)(5). 

19 15 U.S.C. 78s(b)(2). 

20 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3The uniform registration forms are Form BD 

(Uniform Application for Broker-Dealer 

Registration), Form BDW (Uniform Request for 

Broker-Dealer Withdrawal), Form U4 (Uniform 

Application for Securities Industry Registration or 

Transfer), Form U5 (Uniform Termination Notice 

for Securities Industry Registration), and Form U6 

(Uniform Disciplinary Action Reporting Form). 

4Because the information disclosed through 

BrokerCheck is derived from the CRD System, 

BrokerCheck will only disclose information 

regarding regulatory actions that have been reported 

to CRD via a uniform registration form. 

5A final regulatory action would not include any 

action limited to the revocation or suspension of an 

individual’s authorization to act as an attorney, 

accountant or federal contractor (current Form U4 

Question 14F). 

6FINRA staff also will review responses to all 

Regulatory Action Disclosure questions and 

Disclosure Review Pages on the Forms U4 and U5 

(including the predecessor questions in this area), 

as well as information filed on Form U6 to 

determine whether a former associated person is 

subject to a final regulatory action and should 

therefore be included in BrokerCheck pursuant to 

the proposed rule change. Under the proposed rule 

change, FINRA may disclose a final action that is 

reported by a regulator on a Form U6 even if that 

action has not been reported by an individual on 

a Form U4 because, for example, the individual was 

not registered at the time the final regulatory action 

was reported. 

ETP Holders deliver a prospectus to 

investors purchasing newly issued 

Shares prior to or concurrently with the 

confirmation of a transaction; and (f) 

trading information. 

(4) The Fund will be in compliance 

with Rule 10A–3 under the Act.17

(5) Except for Underlying ETPs that 

may hold non-U.S. issues, the Fund will 

not otherwise invest in non-U.S. issues. 

This approval order is based on the 

Exchange’s representations. 

For the foregoing reasons, the 

Commission finds that the proposed 

rule change is consistent with Section 

6(b)(5) of the Act 18 and the rules and 

regulations thereunder applicable to a 

national securities exchange. 

III. Conclusion 

It is therefore ordered, pursuant to 

Section 19(b)(2) of the Act,19 that the 

proposed rule change (SR–NYSEArca– 

2009–55) be, and it hereby is, approved. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.20

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–19570 Filed 8–14–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–60462; File No. SR–FINRA– 

2009–050] 

Self-Regulatory Organizations; 

Financial Industry Regulatory 

Authority, Inc.; Notice of Filing of 

Proposed Rule Change Relating to 

FINRA Rule 8312 (FINRA BrokerCheck 

Disclosure) 

August 7, 2009. 

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 July 24, 

2009, Financial Industry Regulatory 

Authority, Inc. (‘‘FINRA’’) filed with the 

Securities and Exchange Commission 

(‘‘SEC’’ or ‘‘Commission’’) the proposed 

rule change as described in Items I, II, 

and III below, which Items have been 

prepared by FINRA. The Commission is 

publishing this notice to solicit 

comments on the proposed rule change 

from interested persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

FINRA is proposing to amend FINRA 

Rule 8312 (FINRA BrokerCheck 

Disclosure) to retain and make publicly 

available in BrokerCheck certain 

information about former associated 

persons of a member who were the 

subject of a final regulatory action as 

defined in Form U4 that has been 

reported to the Central Registration 

Depository (‘‘CRD®’’ or ‘‘CRD System’’) 

via a uniform registration form.3

The text of the proposed rule change 

is available on FINRA’s Web site at 

http://www.finra.org, at the principal 

office of FINRA 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, 

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 

FINRA Rule 8312 governs the 

information FINRA releases to the 

public via BrokerCheck. FINRA 

established BrokerCheck (then known as 

the Public Disclosure Program) in 1988 

to provide the public with information 

on the professional background, 

business practices, and conduct of 

FINRA members and their associated 

persons. Via BrokerCheck, FINRA 

releases to the public certain 

information reported on uniform 

registration forms to the CRD System. 

The primary purpose of BrokerCheck is 

to help investors make informed choices 

about the individuals and firms with 

which they may wish to do business. 

Currently, as described in FINRA Rule 

8312, BrokerCheck provides information 

regarding current and former members, 

as well as current associated persons 

and persons who were associated with 

a member within the preceding two 

years. The proposed rule change would 

expand BrokerCheck with respect to 

former associated persons to provide 

public access to certain information 

about such persons, regardless of when 

they were associated with a member, if 

they were the subject of any final 

regulatory action as defined in Form U4 

that has been reported to CRD via a 

uniform registration form.4 For purposes 

of the proposed rule change, a final 

regulatory action as defined in Form U4 

may include any final action, including 

any action that is on appeal, by the SEC, 

Commodity Futures Trading 

Commission, a federal banking agency, 

the National Credit Union 

Administration, another federal 

regulatory agency, a state regulatory 

agency, a foreign financial regulatory 

authority, or a self-regulatory 

organization (as those terms are used in 

Form U4).5 To illustrate, actions that are 

delineated in current Form U4 

Questions 14C, 14D, or 14E would be 

considered ‘‘final regulatory actions.’’ 

Similarly, actions that are detailed in 

current Form U5 Question 7D, and have 

a status of ‘‘final’’ or ‘‘on appeal,’’ 

would be considered ‘‘final regulatory 

actions’’ as such actions are also 

addressed in Form U4.6

The proposed rule change would 

allow the public access to information 

about formerly registered persons who, 

although no longer in the securities 

industry in a registered capacity, may 

work in other investment-related 

industries or attain other positions of 

trust and about whom investors may 

wish to learn relevant disciplinary 

information. Specifically, FINRA would 

disclose through BrokerCheck 

mstockstill on DSKH9S0YB1PROD with NOTICES