53528 Federal Register / Vol. 74, No. 200 / Monday, October 19, 2009 / Notices 

10 15 U.S.C. 78s(b)(3)(A) [sic]. 

11 17 CFR 240.19b–4(f)(2). 

12 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3 15 U.S.C. 78s(b)(1). 

4See Registration Statement on Form S–3 for 

PowerShares DB Commodity Index Tracking Fund 

(No. 333–158733, dated April 23, 2009) (‘‘DBC 

Registration Statement’’) and the Post-Effective 

Amendment No. 1 to Form S–1 for PowerShares DB 

Agriculture Fund (No. 333–150501, dated April 15, 

2009) (‘‘DBA Registration Statement’’). In addition, 

the issuer has filed Current Reports on Forms 8–K 

with respect to DBC (No. 001–32726, filed Sept. 30, 

2009) (‘‘DBC Current Report’’) and DBA (No. 001– 

33238, filed Sept. 30, 2009) (‘‘DBA Current Report’’) 

regarding replacement of the indexes underlying 

the Funds. 

5See Securities Exchange Act Release No. 58993 

(November 21, 2008), 73 FR 72548 (November 28, 

2008) (SR–NYSEArca–2008–128) (order approving 

listing on the Exchange of the Funds) (‘‘NYSE Arca 

Order’’). The Funds were previously traded on the 

Exchange pursuant to unlisted trading privileges 

(‘‘UTP’’). See Securities Exchange Act Release Nos. 

53736 (April 27, 2006), 71 FR 26582 (May 5, 2006) 

(SR–PCX–2006–22) (order approving UTP trading of 

DB Commodity Index Tracking Fund); 55453 

(March 13, 2007), 72 FR 13333 (March 21, 2007) 

(SR–NYSEArca–2006–62) (order approving UTP 

trading of PowerShares DB Agriculture Fund and 

other PowerShares commodity-based funds). The 

Funds were originally approved for listing on the 

American Stock Exchange LLC (the ‘‘Amex’’, now 

known as NYSE Amex LLC). See Securities 

Exchange Act Release Nos. 53105 (January 11, 

2006), 71 FR 3129 (January 19, 2006) (SR–Amex– 

2005–59) (approving listing of DB Commodity 

Index Tracking Fund (now known as PowerShares 

DB Commodity Index Tracking Fund)) (‘‘Amex DBC 

Order’’); 55029 (December 29, 2006), 72 FR 806 

(January 8, 2007) (SR–Amex–2006–76) (approving 

listing of PowerShares DB Agriculture Fund and 

other PowerShares commodity-based funds) 

(‘‘Amex DBA Order’’). See also, Securities Exchange 

Act Release No. 53858 (May 24, 2006), 71 FR 31232 

(June 1, 2006) (SR–Amex–2006–53) (‘‘Supplemental 

Amex DBC Filing’’, in which the Amex clarified the 

manner in which the index underlying DBC is 

maintained by providing that the replacement of 

expiring futures contracts would be based on 

the Act 10 and Rule 19b–4(f)(2) 11

thereunder. 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 rulecomments@sec.gov. Please include File 

Number SR–ISE–2009–80 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 

Number SR–ISE–2009–80. 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, on official business days between 

the hours of 10 a.m. and 3 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–ISE–2009– 

80 and should be submitted on or before 

November 9, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.12

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–25003 Filed 10–16–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–60819; File No. SR– 

NYSEArca–2009–89] 

Self-Regulatory Organizations; NYSE 

Arca, Inc.; Notice of Filing and Order 

Granting Accelerated Approval of 

Proposed Rule Change Relating to 

Replacement Indexes for PowerShares 

DB Commodity Index Tracking Fund 

and PowerShares DB Agriculture Fund 

October 13, 2009. 

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

Securities Exchange Act of 1934 (the 

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

notice is hereby given that, on October 

8, 2009, NYSE Arca, Inc. (‘‘NYSE Arca’’ 

or the ‘‘Exchange’’) filed with the 

Securities and Exchange Commission 

(the ‘‘Commission’’) the proposed rule 

change as described in Items I, II, and 

III 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 and is 

approving the proposed rule change on 

an accelerated basis. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

Pursuant to the provisions of Section 

19(b)(1) of the Act,3 the Exchange, 

through its wholly owned subsidiary 

NYSE Arca Equities, Inc. (‘‘NYSE Arca 

Equities’’), proposes to describe a 

replacement to the indexes underlying 

the PowerShares DB Commodity Index 

Tracking Fund and the PowerShares DB 

Agriculture Fund, which are listed on 

the Exchange under Commentary .02 to 

NYSE Arca Equities Rule 8.200. 

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 PowerShares DB Commodity 

Index Tracking Fund (‘‘DBC’’) and the 

PowerShares DB Agriculture Fund 

(‘‘DBA’’ and together with DBC, the 

‘‘Funds’’) 4 are currently listed on the 

Exchange under Commentary .02 to 

NYSE Arca Equities Rule 8.200 (‘‘Trust 

Issued Receipts’’).5 Deutsche Bank AG 


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‘‘Optimum Yield’’ roll rules for such index, as 

described in SR–Amex–2006–53). 

6The Index Sponsor has in place procedures to 

prevent the improper sharing of information 

between different affiliates and departments. 

Specifically, an information barrier exists between 

the personnel within the Index Sponsor that 

calculate and reconstitute the replacement indexes 

(the Calculation Group) and other Deutsche Bank 

personnel, including but not limited to the 

Managing Owner, sales and trading, external or 

internal fund managers, and bank personnel who 

are involved in hedging the bank’s exposure to 

instruments linked to the replacement indexes, in 

order to prevent the improper sharing of 

information relating to the recomposition of such 

indexes. The replacement indexes are not 

calculated by a broker-dealer. 

7E-mail from Michael Cavalier, Chief Counsel, 

NYSE Euronext, to Daniel Gien, Staff Attorney, 

Division of Trading and Markets, Commission, 

dated Oct. 13, 2009. 

8The action by the Funds to replace the 

commodity indexes currently underlying the Funds 

is in response to an announcement by the 

Commodity Futures Trading Commission (‘‘CFTC’’) 

in Release 5695–09 (August 19, 2009) (‘‘CFTC 

Release’’), that the CFTC is withdrawing two noaction letters that provided relief from federal 

agricultural speculative positions limits set forth in 

CFTC regulations (17 CFR 150.2). The CFTC Release 

stated, in part, as follows: ‘‘In CFTC Letter 06–09 

(May 5, 2006), the agency’s Division of Market 

Oversight (DMO) granted no-action relief to DB 

Commodity Services LLC, a commodity pool 

operator (CPO) and commodity trading advisor 

(CTA), permitting the DB Commodity Index 

Tracking Master Fund to take positions in corn and 

wheat futures that exceed federal speculative 

position limits set forth in CFTC Regulation 150.2. 

Subsequently, in CFTC Letter 06–19 (September 6, 

2006), DMO granted similar no-action relief to a 

CPO/CTA employing a proprietary commodity 

investment strategy that includes positions in 

Chicago Board of Trade corn, soybeans and wheat 

futures contracts. Among other things, DMO’s noaction position in both cases stated that any change 

in circumstances or conditions could result in a 

different conclusion. DMO has previously stated 

that the trading strategies employed by these 

entities would not qualify for a bona fide hedge 

exemption under the Commission’s regulations.’’ 

9The DBLCI–OY Diversified ER includes all of 

the commodities in the previous DBLCI–OYER, 

and, in addition to such commodities, includes 

Brent Crude, RBOB Gasoline, Natural Gas, Silver, 

Zinc, Copper Grade A, Soybeans, and Sugar. 

10The referenced exchanges with respect to the 

commodities for DBC and DBA, as applicable, are 

as follows: NYMEX (New York Mercantile 

Exchange); ICE–UK (ICE Futures Europe); COMEX 

(Commodity Exchange Inc.); LME (The London 

Metal Exchange Limited); CBOT (Chicago Board of 

Trade); CME (Chicago Mercantile Exchange); ICE– 

US (ICE Futures U.S.), Inc.; KCB (Kansas City Board 

of Trade). 

London, the ‘‘Index Sponsor’’ for the 

Funds, has determined to replace the 

commodities indexes underlying these 

securities from those previously 

approved by the Commission in the 

NYSE Arca Order, Amex DBC Order, 

and Amex DBA Order (collectively, the 

‘‘DBC/DBA Orders’’). 

With the exception of the description 

of the replacement indexes underlying 

DBC and DBA, as described below, the 

descriptions of the Funds and the 

Shares provided in the DBC/DBA 

Orders and the Supplemental Amex 

DBC Filing, as applicable, remain 

unchanged. In addition, each of the 

representations that applied to the 

current indexes underlying DBC and 

DBA set forth in the DBC/DBA Orders, 

as applicable, will continue to apply to 

the proposed replacement indexes, 

including, without limitation, with 

respect to the calculation and 

dissemination of index and commodityrelated information.6 Further, other 

representations relating to the listing 

and trading of shares of DBC and DBA 

(‘‘DBC Shares’’ and ‘‘DBA Shares’’, 

respectively) on the Exchange, 

including, without limitation, 

dissemination of certain values, trading 

rules governing the trading of the DBC 

Shares and DBA Shares, and 

surveillance procedures for the DBC 

Shares and DBA Shares and the 

underlying commodities and 

commodity-related derivatives, will 

continue to apply. As a result of the 

proposed change, the Exchange 

represents that the Funds satisfy the 

requirements of Rule 8.200, 

Commentary .02, and therefore qualify 

for continued listing on the Exchange. 

In addition, the Funds will continue to 

satisfy Rule 10A–3 under the Act. 

PowerShares DB Commodity Index 

Tracking Fund 

The investment objective of DBC and 

the Master Fund is to seek to track 

changes, whether positive or negative, 

in the level of the Deutsche Bank Liquid 

Commodity Index Optimum Yield— 

Excess ReturnTM (‘‘DBLCI–OYER’’), less 

the expenses of the operations of DBC 

and the DBC Master Fund. A 

description of the DBLCI–OYER, 

commodity futures contracts and related 

options, operation of DBC, creation and 

redemption procedures, and the Shares 

is set forth in the NYSE Arca Order, the 

Amex DBC Order, and the 

Supplemental Amex DBC Filing.7

As described in the DBC Current 

Report (‘‘DBC Index Description’’), the 

Index Sponsor has made the 

determination that changes in regulatory 

circumstances (the ‘‘DBC Changes’’) 

affecting the DBLCI–OYER have arisen, 

and, in the view of the Index Sponsor, 

such DBC Changes necessitate the 

replacement of the DBLCI–OYER.8

Because of such DBC Changes, the 

Index Sponsor has determined that the 

replacement index should include 

additional commodities that are not 

currently part of the DBLCI–OYER in 

order to permit the replacement index to 

reflect, broadly and in proportion to 

historical levels, the world’s production 

and supplies of certain commodities. 

The DBC Index Description will reflect 

the replacement of the DBLCI–OYER 

with the Deutsche Bank Liquid 

Commodity Index–Optimum Yield 

Diversified Excess ReturnTM (‘‘DBLCI– 

OY Diversified ER’’). 

According to the DBC Index 

Description, the DBLCI–OY Diversified 

ER is intended to reflect, broadly and in 

proportion to historical levels, the 

world’s production and supplies of 

certain commodities. The commodities 

of the DBLCI–OY Diversified ER are (1) 

Light, Sweet Crude Oil (WTI), (2) 

Heating Oil, (3) RBOB Gasoline, (4) 

Natural Gas, (5) Brent Crude, (6) Gold, 

(7) Silver, (8) Aluminum, (9) Zinc, (10) 

Copper Grade A, (11) Corn, (12) Wheat, 

(13) Soybeans, and (14) Sugar.9 Each 

commodity is represented in the 

DBLCI–OY Diversified ERTM as an index 

with respect to that specific commodity 

(‘‘Single Commodity Index’’). Each 

Single Commodity Index is assigned a 

weight (the ‘‘DBC Index Base Weight’’) 

which is intended to reflect the world’s 

production and supplies of each such 

index commodity. 

According to the DBC Index 

Description, the DBLCI–OY Diversified 

ER has been calculated back to a base 

date (the ‘‘DBC Base Date’’) of 

September 3, 1997. On the DBC Base 

Date, the closing level of the DBLCI–OY 

Diversified ERTM was 100. 

Single Commodity Index 

DBC Index 

Base 

Weight 

(%) 

Exchange 10

Light, Sweet 

Crude Oil 

(WTI).

12.375 NYMEX 

Heating Oil ..... 12.375 NYMEX 

RBOB Gasoline.12.375 NYMEX 

Natural Gas .... 5.500 NYMEX 

Brent Crude .... 12.375 ICE–UK 

Gold ................ 8.000 COMEX 

Silver .............. 2.000 COMEX 

Aluminum ....... 4.167 LME 

Zinc ................. 4.167 LME 

Copper Grade 

A.

4.167 LME 

Corn ................ 5.625 CBOT 

Wheat ............. 5.625 CBOT 

Soybeans ....... 5.625 CBOT 

Sugar .............. 5.625 ICE–US 

According to the DBC Current Report, 

each Single Commodity Index of the 

DBLCI–OY Diversified ERTM employs a 

rules-based approach when it ‘‘rolls’’ 

from one futures contract to another for 

each commodity. Rather than select a 

new futures contract based on a 

predetermined schedule (e.g., monthly), 

each Single Commodity Index rolls to 

the futures contract which generates the 


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11See note 8, supra. 

12See note 4, supra. 

13The DBLCI Diversified Agriculture ER includes 

all of the commodities in the previous DBLCI–OY 

Agriculture ER, and, in addition to such 

commodities, includes Kansas Wheat, Cocoa, 

Coffee, Cotton, Live Cattle, Feeder Cattle, and Lean 

Hogs. 

14Futures contracts on Corn, Soybeans, Wheat, 

Kansas Wheat, and Sugar are rolled on an Optimum 

Yield basis. Futures contracts on Cocoa, Coffee, 

Cotton, Live Cattle, Feeder Cattle and Lean Hogs are 

rolled on a Non-Optimum Yield basis. 

15For a list of the current members of ISG, see 

www.isgportal.org. 

16 15 U.S.C. 78s(b). 

17 15 U.S.C. 78s(b)(5). 

18See note 8, supra. 

maximum ‘‘implied roll yield.’’ The 

futures contract having a delivery 

month within the next thirteen months 

which generates the highest implied roll 

yield will be included in each Single 

Commodity Index. 

DBLCI–OY Diversified ERTM is 

calculated in U.S. dollars on both an 

excess return (unfunded) and total 

return (funded) index levels. 

PowerShares DB Agriculture Fund 

DBA is designed to track the Deutsche 

Bank Liquid Commodity Index— 

Optimum Yield Agriculture Excess 

ReturnTM (‘‘DBLCI–OY Agriculture 

ER’’), which is intended to reflect the 

agricultural sector. A description of the 

DBLCI–OY Agriculture ER, commodity 

futures contracts and related options, 

operation of DBA, creation and 

redemption procedures, and the DBA 

Shares is set forth in the NYSE Arca 

Order and the Amex DBA Order. 

As is the case with respect to DBC, as 

discussed above, the Index Sponsor has 

made the determination that changes in 

regulatory circumstances (‘‘DBA 

Changes’’) affecting the DBLCI–OY 

Agriculture ER have arisen, and, in the 

view of the Index Sponsor, such DBA 

Changes necessitate replacement of the 

DBLCI–OY Agriculture ER.11

As described in the DBA Current 

Report (‘‘DBA Index Description’’),12

because of the DBA Changes, the Index 

Sponsor has determined that the 

replacement index should include 

additional commodities that are not 

currently part of the DBLCI–OY 

Agriculture ER in order to permit the 

replacement index to reflect the 

performance of the agricultural sector. 

The DBA Index Description will reflect 

the replacement of the DBLCI–OY 

Agriculture ER with the Deutsche Bank 

Liquid Commodity Index Diversified 

Agriculture Excess ReturnTM (‘‘DBLCI 

Diversified Agriculture ER’’). 

The DBLCI Diversified Agriculture ER 

is intended to reflect the performance of 

the agricultural commodities sector and 

is calculated on an excess return, or 

unfunded basis. The DBLCI Diversified 

Agriculture ER methodology provides 

that the replacement of expiring futures 

contracts in part would be based on 

‘‘Optimum Yield’’ roll rules for such 

index, as described in the DBA Current 

Report. In addition, the DBLCI 

Diversified Agriculture ER, in part, is 

rolled on a non-Optimum Yield basis. 

Each commodity in the DBLCI 

Diversified Agriculture ER is assigned a 

weight (the ‘‘DBA Index Base Weight’’) 

which is intended to reflect the 

proportion of such commodity relative 

to such index.13

The DBLCI Diversified Agriculture ER 

has been calculated back to a base date 

of January 18, 1989 (the ‘‘Base Date’’). 

On the Base Date, the closing level of 

the DBLCI Diversified Agriculture ERTM

was 100. 

Single Commodity 

Index 14

DBA Index 

Base 

Weight 

(%) 

Exchange 

Corn .................... 12.50 CBOT 

Soybeans ............ 12.50 CBOT 

Wheat ................. 6.25 CBOT 

Kansas Wheat .... 6.25 KCB 

Sugar .................. 12.50 ICE–US 

Cocoa ................. 11.11 ICE–US 

Coffee ................. 11.11 ICE–US 

Cotton ................. 2.78 ICE–US 

Live Cattle ........... 12.50 CME 

Feeder Cattle ...... 4.17 CME 

Lean Hogs .......... 8.33 CME 

DBLCI Diversified Agriculture ER is 

calculated in U.S. dollars on both an 

excess return (unfunded) and total 

return (funded) index levels. 

Dissemination of Information About the 

Underlying Futures Contracts 

The closing prices and daily 

settlement prices for the futures 

contracts held by the applicable Master 

Funds are publicly available on the Web 

sites of the futures exchanges trading 

the particular contracts. The particular 

futures exchange for each futures 

contract in the DBLCI–OY Diversified 

ER, with Web site information, is as 

follows: (i) Aluminum, zinc and 

copper—LME at www.lme.com; (ii) 

corn, wheat and soybeans—CBOT at 

www.cmegroup.com; (iii) Brent Crude— 

ICE–UK at www.theice.com; (iv) sugar— 

ICE–US at www.theice.com; and (v) 

light, sweet crude oil (WTI), heating oil, 

RBOB gasoline, natural gas, gold and 

silver—NYMEX at www.nymex.com. 

The particular futures exchange for 

each futures contract in the DBLCI 

Diversified Agriculture ER with Web 

site information is as follows: (i) Corn, 

soybeans and wheat—CBOT at 

www.cmegroup.com; (ii) Kansas 

wheat—KCB at www.kcbt.com; (iii) 

sugar, coffee, cocoa and cotton—ICE–US 

at www.theice.com; and (iv) live cattle, 

feeder cattle and lean hogs—CME at 

www.cmegroup.com. 

The Exchange will issue an 

Information Bulletin regarding the 

replacement indexes for DBC and DBA 

in connection with trading of DBC and 

DBA based on such indexes. 

All terms relating to the Funds that 

are referred to, but not defined, in this 

proposed rule change are defined in the 

DBC Registration Statement, the DBC 

Current Report, the DBA Registration 

Statement, and the DBA Current Report, 

as applicable. 

Surveillance 

The Exchange currently has in place 

an Information Sharing Agreement with 

the ICE Futures U.S., ICE Futures 

Europe, LME, and KCB, for the purpose 

of providing information in connection 

with trading in or related to futures 

contracts traded on their respective 

exchanges comprising the Indexes. The 

Exchange may obtain information via 

the Intermarket Surveillance Group 

(‘‘ISG’’) from other exchanges who are 

members of the ISG, including CME, 

CBOT and NYMEX.15

2. Statutory Basis 

The Exchange believes that the 

proposed rule change is consistent with 

Section 6(b) of the Act 16 in general and 

Section 6(b)(5) of the Act 17 in particular 

in that it is designed 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 and perfect the 

mechanisms of a free and open market 

and to protect investors and the public 

interest. The Exchange believes that the 

proposed rule change accommodates an 

expansion of the commodities included 

in the indexes underlying the Funds, 

which has been undertaken in response 

to action by the CFTC referred to 

above,18 to the benefit of investors and 

the marketplace. In addition, the listing 

and trading criteria set forth in Rule 

8.200 are intended to protect investors 

and the public interest. 

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. 


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19 In approving the proposed rule change, the 

Commission notes that it has considered the 

proposed rule’s impact on efficiency, competition, 

and capital formation. See 15 U.S.C. 78c(f). 20 15 U.S.C. 78f(b)(5). 21See supra notes 9 and 13. 22 15 U.S.C. 78s(b)(2). 

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 

Within 35 days of the date of 

publication of this notice in the Federal 

Register or within such longer period (i) 

as the Commission may designate up to 

90 days of such date if it finds such 

longer period to be appropriate and 

publishes its reasons for so finding or 

(ii) as to which the self-regulatory 

organization consents, the Commission 

will: 

(A) By order approve the proposed 

rule change, or 

(B) institute proceedings to determine 

whether the proposed rule change 

should be disapproved. 

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 rulecomments@sec.gov. Please include File 

Number SR–NYSEArca–2009–89 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 

Number SR–NYSEArca–2009–89. 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 

Section, 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 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 

Number SR–NYSEArca–2009–89 and 

should be submitted on or before 

November 9, 2009. 

V. Commission’s Findings and Order 

Granting Accelerated Approval of the 

Proposed Rule Change 

After careful consideration, the 

Commission finds that the proposed 

rule change is consistent with the 

requirements of the Act and the rules 

and regulations thereunder applicable to 

a national securities exchange.19 In 

particular, the Commission finds that 

the proposed rule change is consistent 

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

of the Act,20 which requires, among 

other things, that the Exchange’s rules 

be designed to promote just and 

equitable principles of trade, to foster 

cooperation and coordination with 

persons engaged in regulating, clearing, 

settling, processing information with 

respect to, and facilitating transactions 

in securities, to remove impediments to 

and perfect the mechanism of a free and 

open market and national market 

system, and in general, to protect 

investors and the public interest. The 

Commission notes that the new 

replacement indexes, DBLCI–OY 

Diversified ER and DBLCI Diversfied 

Agriculture ER, reflect more commodity 

components and are more diversified 

than the current indexes underlying 

DBC and DBA, respectively.21 In 

addition, with the exception of the 

description of the replacement indexes 

underlying DBC and DBA, the 

Commission notes that the descriptions 

of the Funds and the Shares provided in 

the DBC/DBA Orders and the 

Supplemental Amex DBC Filing, as 

applicable, remain unchanged. The 

Commission further notes that each of 

the representations that applied to the 

current indexes underlying DBC and 

DBA set forth in the DBC/DBA Orders, 

as applicable, will continue to apply to 

the proposed replacement indexes, 

including, without limitation, with 

respect to the calculation and 

dissemination of index and commodityrelated information. In addition, other 

representations relating to the listing 

and trading of the DBC Shares and DBA 

Shares on the Exchange, including, 

without limitation, dissemination of 

certain values, trading rules governing 

the trading of the DBC Shares and DBA 

Shares, and surveillance procedures for 

the DBC Shares and DBA Shares and the 

underlying commodities and 

commodity-related derivatives, will 

continue to apply. As a result of the 

proposed change, the Exchange 

represents that the Funds will continue 

to satisfy the requirements of 

Commentary .02 to NYSE Arca Equities 

Rule 8.200 and therefore qualify for 

listing on the Exchange. This approval 

order is based on the Exchange’s 

representations. 

The Commission finds good cause, 

pursuant to Section 19(b)(2) of the 

Act,22 for approving the proposed rule 

change prior to the 30th day after 

publication of notice in the Federal 

Register. The Commission notes that the 

DBC Shares and DBA Shares are 

currently listed and trading on the 

Exchange based on the DBLCI–OYER 

and the DBLCI–OY Agriculture ER, 

respectively. The Commission believes 

that the Exchange’s proposal to replace 

such current indexes with the DBLCI– 

OY Diversified ER and DBLCI 

Diversified Agriculture ER, which are 

more broad-based than the current 

indexes, does not appear to present any 

novel issues or significant regulatory 

concerns. The Commission notes that, 

with the exception of the description of 

the replacement indexes underlying 

DBC and DBA, the descriptions of the 

Funds and the Shares, as provided in 

the DBC/DBA Orders and the 

Supplemental Amex DBC Filing, as 

applicable, and the representations 

previously made by the Exchange 

relating to the indexes and the trading 

of the DBC Shares and DBA Shares on 

the Exchange will continue to apply. 

The Commission also notes that the 

Exchange’s proposal represents action 

in response to the CFTC Release. The 

Commission believes that accelerating 

approval of this proposal should benefit 

investors and the marketplace by 

providing, without undue delay, for 

certain commodity-based products 


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53532 Federal Register / Vol. 74, No. 200 / Monday, October 19, 2009 / Notices 

23 15 U.S.C. 78s(b)(2). 

24 17 CFR 200.30–3(a)(12). 

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

2 15 U.S.C. 78a. 

3 17 CFR 240.19b–4. 

4See Securities and Exchange Act Release No. 

597755 [sic] (April 13, 2009) 74 FR 18009 (April 20, 

2009)(SR–NYSE–2009–15). 

5The Exchange notes that parallel changes are 

proposed to be made to the rules of NYSE Amex 

LLC. See SR–NYSE–Amex–2009–70. 

6See NYSE Rule 123C(8)(a)(1). 

currently listed and trading on an 

exchange to be based on an expanded 

and more diversified set of commodity 

components. 

VI. Conclusion 

It is therefore ordered, pursuant to 

Section 19(b)(2) of the Act,23 that the 

proposed rule change (SR–NYSEArca– 

2009–89) be, and it hereby is, approved 

on an accelerated basis. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.24

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–25109 Filed 10–16–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–60809; File No. SR–NYSE– 

2009–104] 

Self-Regulatory Organizations; Notice 

of Filing and Immediate Effectiveness 

of Proposed Rule Change by New York 

Stock Exchange LLC Amending NYSE 

Rule 123C(8)(a)(1) To Extend the 

Operation of the Extreme Order 

Imbalances Pilot 

October 9, 2009. 

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 October 

5, 2009, New York Stock Exchange LLC 

(‘‘NYSE’’ or the ‘‘Exchange’’) 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. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange proposes to amend 

NYSE Rule 123C(8)(a)(1) to extend the 

operation of the pilot to temporarily 

suspend certain NYSE requirements 

relating to the closing of securities on 

the Exchange until the earlier of 

Securities and Exchange Commission 

approval to make such pilot permanent 

or December 31, 2009. 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 

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 

NYSE Rule 123C(8)(a)(1) allows the 

Exchange to temporarily suspend 

certain rule requirements at the close 

when extreme order imbalances may 

cause significant dislocation to the 

closing price. The rule has operated on 

a pilot basis since April 2009 (‘‘Extreme 

Order Imbalances Pilot’’ or Pilot).4

Through this filing, NYSE proposes to 

extend the Pilot until the earlier of 

Securities and Exchange Commission 

approval to make such Pilot permanent 

or December 31, 2009.5

Background 

Pursuant to NYSE Rule 123C(8)(a)(1), 

the Exchange may suspend NYSE Rule 

52 (Hours of Operation) to resolve an 

extreme order imbalance that may result 

in a closing price dislocation at the 

close as a result of an order entered into 

Exchange systems, or represented to a 

DMM orally at or near the close.6 The 

provisions of NYSE Rule 123C(8)(a)(1) 

operate as the Extreme Order Imbalance 

Pilot. 

As a condition of the approval to 

operate the Pilot, the Exchange 

committed to provide the Commission 

with information regarding: (i) How 

often a Rule 52 temporary suspension 

pursuant to the Pilot was invoked 

during the six months following its 

approval; and (ii) the Exchange’s 

determination as to how to proceed with 

technical modifications to reconfigure 

Exchange systems to accept orders 

electronically after 4:00 p.m. 

The Extreme Order Imbalance Pilot is 

scheduled to end operation on October 

13, 2009. The Exchange is currently 

preparing a rule filing seeking 

permission to make the provisions of 

the Pilot permanent with certain 

modifications but does not expect that 

filing to be completed and approved by 

the Commission before October 13, 

2009. 

Proposal To Extend the Operation of the 

Extreme Order Imbalance Pilot 

The Exchange established the Extreme 

Order Imbalance Pilot to create a 

mechanism for ensuring a fair and 

orderly close when interest is received 

at or near the close that could negatively 

affect the closing transaction. The 

Exchange believes that this tool has 

proved very useful to resolve an extreme 

order imbalance that may result in a 

closing price dislocation at the close as 

a result of an order entered into 

Exchange systems, or represented to a 

DMM orally at or near the close. 

As the Exchange has previously 

stated, invocation of the provisions of 

NYSE Rule 123C(8) to attract offsetting 

interest is intended to be used for 

extreme and likely rare circumstances 

where there exists such a large 

imbalance at the close that a DMM is 

unable to close the security without 

significantly dislocating the price of the 

security. This is evidenced by the fact 

that during the course of the Pilot, the 

Exchange invoked the provisions of 

NYSE Rule 123C(8), including the 

provisions of the Extreme Order 

Imbalance Pilot pursuant to NYSE Rule 

123C(8)(a)(1), in only one security on 

August 31, 2009. 

In addition, during the operation of 

the Pilot, the Exchange determined that 

it would not be as onerous as previously 

believed to modify Exchange systems to 

accept orders electronically after 4 p.m. 

The Exchange anticipates that such 

system modifications could be 

completed by December 31, 2009. 

Given the above, the Exchange 

believes that provisions governing the 

Extreme Order Imbalance Pilot should 

be made permanent. Through this filing 

the Exchange seeks to extend the 

current operation of the Pilot in order to 

allow the Exchange to formally submit 

a filing to the Commission to convert 

the provisions governing the Pilot to 

permanent rules and complete the 

technological modifications required to 

accept orders electronically after 4 p.m. 

The Exchange therefore request and [sic] 

extension from the current expiration 

date of October 13, 2009, until the 

earlier of Securities and Exchange 


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