15804 Federal Register / Vol. 74, No. 65 / Tuesday, April 7, 2009 / Notices 

10 15 U.S.C. 78f. 

11 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). 

12 15 U.S.C. 78f(b)(5). 

13See Approval Order, supra note 3. 

14See supra notes 5 and 8. 

15See e.g., Securities Exchange Act Release Nos. 

58825 (October 21, 2008), 73 FR 63756 (October 27, 

2008) (SR–NYSEArca–2008–89) (approving 

amendment to Rule 5.2(j)(3) to permit listing of 

Investment Company Units where the issuer seeks 

to provide investment results, before fees and 

expenses, up to ¥300% of the percentage 

performance on a given day of a particular equity 

index); 59332 (January 30, 2009), 74 FR 6338 

(February 2, 2009) (SR–NYSEArca–2008–136) 

(approving amendment to NYSE Arca Equities Rule 

5.2(j)(6) to permit a loss or negative payment at 

maturity with respect to an issue of Index-Linked 

Securities to be accelerated by a multiple up to 

three times the performance of an underlying 

Reference Asset, as defined in NYSE Arca Equities 

Rule 5.2(j)(6)). 

16 15 U.S.C. 78s(b)(2). 

17 Id. 

18 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 e-mail from Clare F. Saperstein, Managing 

Director, Office of General Counsel, NYSE 

Regulation, Inc., to David Liu, Assistant Director, 

Commission, dated March 31, 2009. 

5 15 U.S.C. 78s(b)(3)(A). 

6 17 CFR 240.19b–4(f)(6). 

7See SR–NYSE–2009–35 (formally submitted on 

March 23, 2009). 

requirements of Section 6 of the Act 10

and the rules and regulations 

thereunder applicable to a national 

securities exchange.11 In particular, the 

Commission finds that the proposal is 

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

Act,12 which requires, among other 

things, that the Exchange’s rules be 

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 

regulating, clearing, settling, processing 

information with respect to, and 

facilitating transaction in securities, 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 notes that it has 

previously approved the listing and 

trading of the Trusts under NYSE Arca 

Equities Rule 8.400.13 The Commission 

also notes that the Exchange has 

represented that, with the exception of 

the change to the leverage factor 

applicable to the Trusts, and a change 

to the distribution date, all prior 

representations made in the Initial 

Notice will continue to apply.14 This 

approval order is based on the 

Exchange’s representations. 

The Commission believes that the 

increase from 2 to 3 of the leverage 

factor applicable to the Up MacroShares 

and the Down MacroShares, 

respectively, is reasonable to facilitate 

the listing and trading of the Shares. 

Additionally, the Commission believes 

that the increase of the leverage factor 

should help to increase competition 

among market participants and benefit 

investors. The Commission also notes 

that it has previously approved the 

listing and trading of other exchangetraded products with up to 300% 

leverage.15

III. Accelerated Approval 

The Commission finds good cause, 

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

Act,16 for approving the proposal prior 

to the thirtieth day after the date of 

publication of the Notice in the Federal 

Register. The Commission has received 

no comments regarding the proposed 

rule change, and the Commission finds 

that the proposed rule change does not 

raise any novel regulatory issues. 

Additionally, the Commission believes 

that accelerating approval of this 

proposal should benefit the market by 

making available to investors, without 

undue delay, additional products in the 

market for Paired Trust Shares. 

IV. Conclusion 

It is therefore ordered, pursuant to 

Section 19(b)(2) of the Act,17 that the 

proposed rule change (SR–NYSEArca– 

2009–14) be, and it hereby is, approved 

on an accelerated basis. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.18

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–7775 Filed 4–6–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59665; File No. SR– 

NYSEAmex–2009–05] 

Self-Regulatory Organizations; Notice 

of Filing and Immediate Effectiveness 

of Proposed Rule Change by NYSE 

Amex LLC Amending Equities Rule 

48.10 To Extend the Temporary 

Provisions of the Rule Relating to the 

Ability of the Exchange To Declare an 

Extreme Market Volatility Condition 

and Suspend Certain Exchange 

Requirements Relating to the Closing 

of Securities at the Exchange 

March 31, 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 March 

23, 2009, NYSE Amex LLC4 (the 

‘‘Exchange’’ or ‘‘NYSE Amex’’) filed 

with the Securities and Exchange 

Commission (the ‘‘SEC’’ or 

‘‘Commission’’) the proposed rule 

change as described in Items I and II 

below, which Items have been prepared 

by the self-regulatory organization. The 

Exchange filed the proposed rule change 

pursuant to Section 19(b)(3)(A) of the 

Act 5 and Rule 19b–4(f)(6) thereunder,6

which renders it effective upon filing 

with the Commission. 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 

Equities Rule 48.10 to extend the 

temporary provisions of the rule relating 

to the ability of the Exchange to declare 

an extreme market volatility condition 

and suspend certain Exchange 

requirements relating to the closing of 

securities at the Exchange. 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 

The Exchange proposes to amend 

NYSE Amex Equities Rule 48.10 to 

temporarily extend the provisions of the 

rule relating to declaring an extreme 

market volatility condition at the close.7

On November 26, 2008, NYSE Amex 

filed a rule proposal to conform its rules 

to those of the New York Stock 

Federal Register / Vol. 74, No. 65 / Tuesday, April 7, 2009 / Notices 15805 

8See Securities Exchange Act Release No. 59022 

(Nov. 26, 2008), 73 FR 73683 (Dec. 3, 2008) (SR– 

NYSEALTR–2008–10). 9See SEC Release No. 58743 (Oct. 7, 2008), 73 FR 

60742 (Oct. 14, 2008) (SR–NYSE–2008–102). 10See SEC Release No. 59488 (Mar. 3, 2009), 74 

FR 10334 (Mar. 10, 2009) (SR–NYSEALTR–2009– 

15). The NYSE has filed a companion rule filing. 

See SEC Release No. 59489 (Mar. 3, 2009), 74 FR 

10330 (Mar. 10, 2009) (SR–NYSE–2009–18). 11 15 U.S.C. 78s(b)(2). 12See SEC Release No. 59169 (Dec. 29, 2008), 74 

FR 485 (Jan. 6, 2009) (SR–NYSEALTR–2008–18). 

The NYSE also filed a companion rule filing. See 

SEC Release No. 59168 (Dec. 29, 2008), 74 FR 483 

(Jan. 6, 2009) (SR–NYSE–2008–139). 

13 15 U.S.C. 78f(b)(5). 

14 15 U.S.C. 78s(b)(3)(A). 

15 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– 

4(f)(6)(iii) requires the self-regulatory organization 

to submit to the Commission written notice of its 

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 this requirement. 

16For purposes only of waiving the 30-day 

operative delay of this proposal, the Commission 

has considered the proposed rule’s impact on 

efficiency, competition, and capital formation. See 

15 U.S.C. 78c(f). 

Exchange LLC (‘‘NYSE’’).8 Among the 

rules amended in that filing was Rule 

48, which was previously amended by 

the NYSE. On October 2, 2008, the 

NYSE filed for immediate effectiveness 

to amend NYSE Rule 48 to provide the 

NYSE with the ability to suspend 

certain rules at the close when 

extremely high market volatility could 

negatively affect the ability to ensure a 

fair and orderly close.9 The NYSE 

amended Rule 48 on an immediate 

effectiveness basis in order to respond 

swiftly to market conditions at that 

time. Those amendments were adopted 

on a temporary basis with the 

understanding that if the NYSE would 

like to adopt the closing provisions on 

a permanent basis, such proposal must 

be filed for notice and comment. 

The Exchange has filed a rule 

proposal to amend NYSE Amex Equities 

Rules 48 and 123C to delete from Rule 

48 the provisions relating to declaring 

an extreme market volatility condition 

at the close and add them in modified 

form to Rule 123C (the ‘‘Rule 48/123C 

filing’’).10 That rule proposal has been 

filed under Section 19(b)(2) of the 

Securities Exchange Act of 1934 (the 

‘‘Act’’)11 and has been noticed for public 

comment. The comment period for that 

filing ends on March 31, 2009. In 

anticipation of the Rule 48/123C filing, 

the Exchange previously amended Rule 

48.10 to extend from December 31, 2009 

to March 27, 2009 the temporary time 

period that the Rule 48 at-the-close 

provisions would be in effect.12 The 

Exchange now proposes to temporarily 

extend the NYSE Amex Equities Rule 48 

at-the-close provisions pending the 

outcome of the Rule 48/123C filing. 

Accordingly, the Exchange proposes to 

amend Rule 48.10 to provide that the 

provisions of that rule relating to 

declaring an extreme market volatility 

condition at the close will end April 30, 

2009. 

2. Statutory Basis 

The basis under the Act for this 

proposed rule change is the requirement 

under Section 6(b)(5)13 that an Exchange 

have rules that are 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. In particular, this rule 

proposal will permit the temporary 

provisions of Rule 48 to continue 

without interruption pending the 

outcome of the Rule 48/123C filing. 

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 

Because the foregoing proposed rule 

change: 

(i) Does not significantly affect the 

protection of investors or the public 

interest; 

(ii) Does not impose any significant 

burden on competition; and 

(iii) By its terms, does not 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, it has 

become effective pursuant to Section 

19(b)(3)(A) of the Act 14 and Rule 19b– 

4(f)(6) thereunder.15

The Exchange has requested that the 

Commission waive the 30-day operative 

delay in order to permit the temporary 

provisions of NYSE Amex Equities Rule 

48 to continue without interruption 

pending the outcome of the Rule 48/ 

123C filing. The Commission believes 

such waiver is consistent with the 

protection of investors and the public 

interest.16 Accordingly, the Commission 

designates the proposed rule change 

operative upon filing with the 

Commission. 

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 

• 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–NYSEAmex–2009–05 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 

Number SR–NYSEAmex–2009–05. 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 also will be available for 

inspection and copying at the principal 

office of the Exchange. All comments 

received will be posted without change; 

15806 Federal Register / Vol. 74, No. 65 / Tuesday, April 7, 2009 / Notices 

17 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3FINRA describes the eligibility rule using the 

rule number from the Customer Code for simplicity. 

However, the proposal also applies to the identical 

eligibility rule of the Industry Code. See Rule 

13206. 

4See also Rule 13206(c) of the Industry Code. 

5 64 F. Supp. 2d 338 (S.D.N.Y. 1999). The case 

involved claims under Section 10(b) of the 

Securities Exchange Act of 1934. 

6Rule 10307(a) (Tolling of Time Limitation(s) for 

the Institution of Legal Proceedings and Extension 

of Time Limitation(s) for Submission to Arbitration) 

states in relevant part that: 

Where permitted by applicable law, the time 

limitations which would otherwise run or accrue 

for the institution of legal proceedings shall be 

tolled where a duly executed Submission 

Agreement is filed by the CLaimant(s). The tolling 

shall continue for such period as the Association 

shall retain jurisdiction upon the matter submitted. 

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– 

NYSEAmex–2009–05 and should be 

submitted on or before April 28, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.17

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–7732 Filed 4–6–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59672; File No. SR–FINRA– 

2009–013] 

Self-Regulatory Organizations; 

Financial Industry Regulatory 

Authority, Inc.; Notice of Filing of 

Proposed Rule Change To Amend the 

Tolling Provisions in Rules 12206 and 

13206 of the Codes of Arbitration 

Procedure for Customer and Industry 

Disputes 

April 1, 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 Financial 

Industry Regulatory Authority, Inc. 

(‘‘FINRA’’) (f/k/a National Association 

of Securities Dealers, Inc. (‘‘NASD’’)) 

filed with the Securities and Exchange 

Commission (‘‘SEC’’ or ‘‘Commission’’) 

on March 11, 2009, the proposed rule 

change as described in Items I, II, and 

III below, which Items have been 

substantially 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 Dispute Resolution is 

proposing to amend the tolling 

provisions in Rules 12206 and 13206 of 

the Code of Arbitration Procedure for 

Customer Disputes (‘‘Customer Code’’) 

and for Industry Disputes (‘‘Industry 

Code’’), respectively, to clarify that the 

rules toll the applicable statutes of 

limitation when a person files an 

arbitration claim with FINRA. 

Below is the text of the proposed rule 

change. Proposed deletions are in 

brackets. 

* * * * * 

12206. Time Limits 

(a)–(b) No change. 

(c) Effect of Rule on Time Limits for 

Filing Claim in Court 

The rule does not extend applicable 

statutes of limitations; nor shall the sixyear time limit on the submission of 

claims apply to any claim that is 

directed to arbitration by a court of 

competent jurisdiction upon request of 

a member or associated person. 

However, [where permitted by 

applicable law,] when a claimant files a 

statement of claim in arbitration, any 

time limits for the filing of the claim in 

court will be tolled while FINRA retains 

jurisdiction of the claim. 

(d) No change. 

* * * * * 

13206. Time Limits 

(a)–(b) No change. 

(c) Effect of Rule on Time Limits for 

Filing Claim in Court 

The rule does not extend applicable 

statutes of limitations; nor shall the sixyear time limit on the submission of 

claims apply to any claim that is 

directed to arbitration by a court of 

competent jurisdiction upon request of 

a member or associated person. 

However, [where permitted by 

applicable law,] when a claimant files a 

statement of claim in arbitration, any 

time limits for the filing of the claim in 

court will be tolled while FINRA retains 

jurisdiction of the claim. 

(d) No change. 

* * * * * 

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 

Currently, Rule 12206, the ‘‘eligibility 

rule,’’ provides that, ‘‘no claim shall be 

eligible for submission to arbitration 

under the Code where six years have 

elapsed from the occurrence or event 

giving rise to the claim.’’ 3 The 

eligibility rule does not extend 

applicable statutes of limitation, but 

Rule 12206(c) does provide that, ‘‘where 

permitted by applicable law, when a 

claimant files a statement of claim in 

arbitration, any time limits for the filing 

of the claim in court will be tolled while 

FINRA retains jurisdiction of the 

claim.’’ 4 This means that, where 

permitted by applicable law, state 

statutes of limitation will be tolled (i.e., 

temporarily suspended) when a person 

files an arbitration claim with FINRA. 

For many years, FINRA has 

interpreted the rule to mean that any 

applicable statutes of limitation would 

be tolled in all cases when a person files 

an arbitration claim with FINRA. In 

Friedman v. Wheat First Securities, Inc., 

however, the court found that the 

phrase ‘‘where permitted by applicable 

law,’’ means that State or Federal law, 

as applicable, must permit tolling 

expressly, or the period will not be 

tolled.5 In light of the court’s 

interpretation of the phrase and the 

negative effect it could have on 

investors’ arbitration claims, FINRA is 

proposing to remove the phrase, ‘‘where 

permitted by applicable law,’’ from 

Rules 12206(c) and 13206(c) to make 

tolling automatic as part of the 

arbitration agreement. 

The Friedman court granted the 

defendant’s request to dismiss the 

plaintiff’s complaint on statute of 

limitations grounds. In arguing against 

dismissal, the plaintiff sought to rely on 

old Rule 10307(a) 6 of the Code of