Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Notices 32675 

18The Exchange has represented that it will file 

a proposed rule change within thirty days of filing 

of this proposal seeking permanent approval of the 

NASDAQ Last Sale Data Feeds pilot program. See 

supra note 3. 

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. 

3See Securities Exchange Act Release No. 59995 

(May 28, 2009), 74 FR 26750 (June 3, 2009) (SR– 

Phlx–2009–32). 

4The Exchange notes that the proposed definition 

of ‘‘distributor’’ and references to internal and 

external distribution are identical to those set forth 

in NASDAQ Rule 7019(c). 

program that imposes a fee for the 

NASDAQ Last Sale Data Feeds for an 

additional three months will be 

beneficial to investors and in the public 

interest, in that it is intended to allow 

continued broad public dissemination 

of increased real-time pricing 

information. In addition, extending the 

pilot program for an additional three 

months will allow NASDAQ, consistent 

with its representation, to file within 30 

days, the public to comment on, and the 

Commission to analyze consistent with 

the Order and in light of Section 19(b) 

of the Act, a proposal to permanently 

approve the fee for NASDAQ Last Sale 

Data Feeds.18

The Commission finds good cause for 

approving the proposed rule change 

before the thirtieth day after the date of 

publication of notice of filing thereof in 

the Federal Register. Accelerating 

approval of this proposal is expected to 

benefit investors by continuing to 

facilitate their access to widespread, 

free, real-time pricing information 

contained in the NASDAQ Last Sale 

Data Feeds. Therefore, the Commission 

finds good cause, consistent with 

Section 19(b)(2) of the Act,19 to approve 

the proposed rule change on an 

accelerated basis to extend the operation 

of the pilot until September 30, 2009. 

V. Conclusion 

It is therefore ordered, pursuant to 

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

proposed rule change (SR–NASDAQ– 

2009–062) is hereby approved on an 

accelerated basis until September 30, 

2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.20

Elizabeth M. Murphy. 

Secretary. 

[FR Doc. E9–16002 Filed 7–7–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–60202; File No. SR–Phlx– 

2009–54)] 

Self-Regulatory Organizations; Notice 

of Filing of Proposed Rule Change by 

NASDAQ OMX PHLX, Inc. Relating to 

Fees for the Top of PHLX Options 

(‘‘TOPO’’) Data Feed 

June 30, 2009. 

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

Securities Exchange Act of 1934 

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

notice is hereby given that on June 30, 

2009, NASDAQ OMX PHLX, Inc. 

(‘‘Phlx’’ or ‘‘Exchange’’) 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 the Exchange. 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 its 

fee schedule by establishing subscriber 

fees for a direct data product related to 

the trading of standardized options on 

the Exchange’s enhanced electronic 

trading platform for options, Phlx XL 

II.3 Specifically, the Exchange is 

proposing to adopt fees for the Top of 

Phlx Options (‘‘TOPO’’), a direct data 

feed product that features the 

Exchange’s best bid and offer position, 

with aggregate size and last sale 

information on the Phlx XL II system. 

The text of the proposed rule change 

is available on the Exchange’s Web site 

at http:// 

nasdaqomxphlx.cchwallstreet.com/ 

NASDAQOMXPHLX/Filings/, at the 

principal office of the Exchange, and at 

the Commission’s Public Reference 

Room. 

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, the 

Exchange 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. The 

Exchange 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 

On June 5, 2009, the Exchange 

launched the Phlx XL II system, which 

is subject to a symbol-by-symbol rollout 

schedule expected to last up to 12 

weeks. In conjunction with the launch 

and rollout of the Phlx XL II system, the 

Exchange is developing TOPO. TOPO 

will provide to subscribers a direct data 

feed that includes the Exchange’s best 

bid and offer position, with aggregate 

size, based on displayable order and 

quoting interest on the Phlx XL II 

system. The data contained in the TOPO 

data feed is identical to the data sent to 

the processor for the Options Price 

Regulatory Authority (‘‘OPRA’’), and the 

TOPO and OPRA data leave the Phlx XL 

II System at the same time. 

Currently, the Exchange does not 

make market data products such as 

TOPO available. Accordingly, there are 

no current fees for distribution or use of 

these products on the Exchange’s fee 

schedule. In coordination with the 

projected completion of the rollout of 

the Phlx XL II system, the Exchange 

proposes to charge monthly fees to 

distributors, beginning August 1, 2009, 

for use of TOPO. The monthly 

‘‘Distributor Fee’’ charged will depend 

on whether the distributor is an 

‘‘Internal Distributor’’ or an ‘‘External 

Distributor,’’ as defined below. 

Under the proposal, the Exchange’s 

fee schedule will reflect that a 

‘‘distributor’’ of NASDAQ OMX PHLX 

data is any entity that receives a feed or 

data file of data directly from NASDAQ 

OMX PHLX or indirectly through 

another entity and then distributes it 

either internally (within that entity) or 

externally (outside that entity), and that 

all distributors would be required to 

execute a NASDAQ OMX PHLX 

distributor agreement.4

Internal Distributor 

An Internal Distributor is an 

organization that subscribes to the 

Exchange for the use of TOPO, and is 

permitted by agreement with the 

Exchange to provide TOPO data to 

internal users (i.e., users within their 

mstockstill on DSKH9S0YB1PROD with NOTICES

32676 Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Notices 

5 15 U.S.C. 78f. 

6 15 U.S.C. 78f(b)(4). 

7 15 U.S.C. 78f(b)(5). 

8 15 U.S.C. 78f(b)(8). 

9Securities Exchange Act Release No. 57917 [sic] 

(Dec. 2, 2008) (NetCoalition Order’’ resolving File 

No. SR–NYSEArca–2006–21). 

10 Id. at 48–49. 

11 Id. at 4. 

12 Id. at 51–65. The Commission then spent an 

additional 36 pages (65–101) analyzing and refuting 

comments challenging the Commission’s 

competition analysis. 

13See Securities Exchange Act Release No. 59949 

(May 20, 2009), 74 FR 25593 (May 28, 2009) (SR– 

ISE–2007–97) (Order Approving Proposed Rule 

Change, as Modified by Amendment No. 1, Relating 

to Market Data Fees). 

own organization). Internal Distributors 

would be charged a monthly fee of 

$2,000 per organization. 

External Distributor 

An External Distributor is an 

organization that subscribes to the 

Exchange for the use of TOPO, and is 

permitted by agreement with the 

Exchange to provide TOPO data to both 

internal users and to external users (i.e., 

users outside of their own organization). 

External Distributors will be charged a 

monthly fee of $2,500 per organization. 

2. Statutory Basis 

The Exchange believes that the 

proposed rule change is consistent with 

the provisions of Section 6 of the Act,5

in general and with Section 6(b)(4) of 

the Act,6 in particular, in that it 

provides for the equitable allocation of 

reasonable dues, fees and other charges 

among members and issuers and other 

persons using any facility or system 

which Phlx operates or controls. 

The Exchange believes that the 

proposed rule change is also consistent 

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

the Act,7 in that it is 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 a national market system, and, in 

general, to protect investors and the 

public interest; and is not designed to 

permit unfair discrimination between 

customers, issuers, brokers, or dealers, 

or to regulate by virtue of any authority 

conferred by the Act matters not related 

to the purposes of the Act or the 

administration of the Exchange. 

The Exchange believes that the 

proposed rule change is also consistent 

with Section 6(b)(8) of the Act 8 in that 

it does not impose any burden on 

competition not necessary or 

appropriate in furtherance of the 

purposes of the Act, as set forth in more 

detail below. 

In adopting Regulation NMS, the 

Commission granted self-regulatory 

organizations and broker-dealers 

increased authority and flexibility to 

offer new and unique market data to the 

public. It was believed that this 

authority would expand the amount of 

data available to consumers, and also 

spur innovation and competition for the 

provision of market data. 

The Commission has recently issued 

an order firmly establishing that in 

reviewing non-core data products such 

as TOPO, the Commission will utilize a 

market-based approach that relies 

primarily on competitive forces to 

determine the terms on which non-core 

data is made available to investors.9 The 

Commission adopted a two-part test: 

The first is to ask whether the exchange 

was subject to significant competitive forces 

in setting the terms of its proposal for noncore data, including the level of any fees. If 

an exchange was subject to significant 

competitive forces in setting the terms of a 

proposal, the Commission will approve the 

proposal unless it determines that there is a 

substantial countervailing basis to find that 

the terms nevertheless fail to meet an 

applicable requirement of the Exchange Act 

or the rules thereunder. If, however, the 

exchange was not subject to significant 

competitive forces in setting the terms of a 

proposal for non-core data, the Commission 

will require the exchange to provide a 

substantial basis, other than competitive 

forces, in its proposed rule change 

demonstrating that the terms of the proposal 

are equitable, fair, reasonable, and not 

unreasonably discriminatory.10

This standard begins from the premise 

that no Commission rule requires 

exchanges or market participants either 

to distribute non-core data to the public 

or to display non-core data to 

investors.11

In its NetCoalition Order the 

Commission concluded that ‘‘at least 

two broad types of significant 

competitive forces applied to NYSE 

Arca in setting the terms of its Proposal 

to distribute the ArcaBook data: (1) 

NYSE Arca’s compelling need to attract 

order flow from market participants; 

and (2) the availability to market 

participants of alternatives to 

purchasing the ArcaBook data. The 

Commission conducted an exhaustive 

14-page review of these two competitive 

forces before concluding that the 

availability of alternatives, as well as the 

compelling need to attract order flow, 

imposed significant competitive 

pressure on the exchange’s need to act 

equitably, fairly, and reasonably in 

setting the terms of the fees for its noncore data product.12

The market data provided in TOPO is 

non-core data that is governed by the 

same analysis the Commission set forth 

in the NetCoalition Order. As with the 

NYSE Arca depth-of-book product, no 

rule requires Phlx or any other exchange 

to offer top of book data; nor are vendors 

required to purchase or display that 

data. Additionally, Phlx is constrained 

by the same two competitive forces in 

the options market as the Commission 

found are present in the proposal of the 

International Securities Exchange, Inc. 

(‘‘ISE’’) to establish fees for a real-time 

depth of market data offering, the ISE 

Depth of Market Data Feed (‘‘Depth of 

Market’’).13

First, Phlx has a compelling need to 

attract order flow from market 

participants, just as ISE, in order to 

maintain its share of trading volume. 

This compelling need to attract order 

flow imposes significant pressure on 

Phlx to act reasonably in setting its fees 

for Phlx market data, particularly given 

that the market participants that will 

pay such fees often will be the same 

market participants from whom Phlx 

must attract order flow. These market 

participants include broker-dealers that 

control the handling of a large volume 

of customer and proprietary order flow. 

Given the portability of order flow from 

one exchange to another, any exchange 

that sought to charge unreasonably high 

data fees would risk alienating many of 

the same customers on whose orders it 

depends for competitive survival. 

As an illustration of the intensity of 

the competition for options order flow 

among the seven U.S. options 

exchanges, the ISE and Chicago Board 

Options Exchange, Inc. (‘‘CBOE’’) each 

enjoy close to thirty percent market 

share of volume, followed by Phlx at 

close to twenty percent market share, 

followed by four other exchanges with 

meaningful market share. 

Phlx currently trades options on 7 

proprietary index products that are not 

traded on any other exchange. These 7 

options currently represent less than 

0.04% of Phlx’s total contract volume. 

Given the small percentage of Phlx’s 

total contract volume represented by 

these 7 products, the Exchange believes 

that the inclusion of data on these 

products in the TOPO product should 

not confer market power on Phlx to 

compel market participants to purchase 

the entire Phlx data feed. The Exchange 

therefore believes that the inclusion of 

top-of-book data for these products in 

Phlx’s TOPO product does not 

undermine the fact that Phlx is subject 

mstockstill on DSKH9S0YB1PROD with NOTICES

Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Notices 32677 

14 Id. at 101–104. [sic] 

to significant competitive forces in 

setting the terms of its proposal. 

Second, Phlx is constrained in pricing 

TOPO by the availability to market 

participants of alternatives to 

purchasing TOPO. Phlx must consider 

the extent to which market participants 

would choose one or more alternatives 

instead of purchasing the exchange’s 

data. For example, although the TOPO 

data feed is separate from the core data 

feed made available by OPRA, all the 

information available in TOPO is 

included in the core data feed. The core 

OPRA data is widely distributed and 

relatively inexpensive, thus 

constraining Phlx’s ability to price 

TOPO. Additionally, both ISE and 

CBOE are potential competitors because 

each exchange enjoys greater market 

share and thus the ability to offer a topof-book product that would compete 

favorably with TOPO. 

If the Commission finds that Phlx is 

subject to significant competitive forces 

in setting the terms of TOPO pricing, 

then the Commission should approve 

the proposal in the absence of a 

substantial countervailing basis to find 

that its terms nevertheless fail to meet 

an applicable requirement of the Act or 

the rules thereunder. Phlx submits that 

no such countervailing basis exists. 

To the contrary, Phlx’s considerations 

in setting the fees for TOPO are virtually 

identical to those the Commission 

approved in the NetCoaltion Order. 

First, 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. Conversely, 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. 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. 

Second, Phlx projects that the total 

revenues generated by the TOPO fee 

initially will amount to less than the $8 

million per year that NYSE Arca 

projected would be generated by its 

ArcaBook data.14

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 not 

necessary or appropriate in furtherance 

of the purposes of the Act. To the 

contrary, the market for options orders 

and executions is already highly 

competitive and Phlx’s proposal is itself 

pro-competitive in several ways. First, 

the TOPO data feed offers a competitive, 

lower-priced alternative to the 

consolidated data OPRA feed for users 

and situations where consolidated data 

is unnecessary. Second, the Phlx 

believes that offering the TOPO data 

feed will help attract new users and new 

order flow to the Phlx market, thereby 

improving Phlx’s ability to compete in 

the market for options order flow and 

executions. 

C. Self-Regulatory Organization’s 

Statement on Comments on the 

Proposed Rule Change Received From 

Members, Participants or Others 

No written comments were either 

solicited or received. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

The Exchange requests accelerated 

approval in order to expedite the 

availability of TOPO, which should 

promote consistency and transparency 

in the Exchange’s markets. 

The Exchange believes that 

accelerated approval should provide 

customers, and broker-dealers that make 

routing decisions on behalf of 

customers, with greater transparency in 

the Phlx markets on an expedited basis. 

Once a full 21-day comment period has 

taken place, the Exchange believes (in 

the absence of any comments that 

would require a response) that it is 

appropriate for the Commission to 

accelerate the operative date for TOPO 

fees because the proposed rule change is 

in the public interest and supports the 

protection of investors by allowing data 

distributors to make additional market 

data available to investors that choose to 

purchase it. Widespread availability of 

Phlx options data benefits average 

investors by improving access to realtime market data that investors can use 

to make better-informed trading 

decisions. Additionally, to the extent 

users can substitute the lower-priced 

TOPO data for the higher-priced 

consolidated data feed, those users will 

have the opportunity to pass the savings 

on to investors in the form of lower 

overall trading costs. 

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 Exchange consents, 

the Commission shall: (a) by order 

approve such 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–Phlx–2009–54 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–Phlx–2009–54. 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 the 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 

mstockstill on DSKH9S0YB1PROD with NOTICES

32678 Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Notices 

15 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3E-mail from Michael Cavalier, Chief Counsel, 

NYSE Euronext, to Edward Cho, Special Counsel, 

Division of Trading and Markets, Commission, 

dated June 30, 2009 (‘‘June 30 E-mail’’). 

4A Managed Fund Share is a security that 

represents an interest in an investment company 

registered under the Investment Company Act of 

1940 (15 U.S.C. 80a) (‘‘1940 Act’’) organized as an 

open-end investment company or similar entity that 

invests in a portfolio of securities selected by its 

investment advisor consistent with its investment 

objectives and policies. In contrast, an open-end 

investment company that issues Investment 

Company Units, listed and traded on the Exchange 

under NYSE Arca Equities Rule 5.2(j)(3), seeks to 

provide investment results that correspond 

generally to the price and yield performance of a 

specific foreign or domestic stock index, fixed 

income securities index, or combination thereof. 

5The Commission previously approved listing 

and trading on the Exchange of the following 

actively managed funds under Rule 8.600. See 

Securities Exchange Act Release No. 57619 (April 

4, 2008), 73 FR 19544 (April 10, 2008) (SR– 

NYSEArca–2008–25) (order approving Rule 8.600 

and Exchange listing and trading of PowerShares 

Active AlphaQ Fund, PowerShares Active Alpha 

Multi-Cap Fund, PowerShares Active Mega-Cap 

Portfolio and PowerShares Active Low Duration 

Portfolio); Securities Exchange Act Release No. 

57801 (May 8, 2008), 73 FR 27878 (May 14, 2008) 

(SR–NYSEArca–2008–31) (order approving 

Exchange listing and trading of twelve activelymanaged funds of the WisdomTree Trust); 

Securities Exchange Act Release No. 59826 (April 

28, 2009), 74 FR 20512 (May 4, 2009) (SR– 

NYSEArca–2009–22) (order approving Exchange 

listing and trading of Grail American Beacon Large 

Cap Value ETF). 

6The Trust is registered under the 1940 Act. On 

June 9, 2009, the Trust filed with the Commission 

Form N–1A under the Securities Act of 1933 (15 

U.S.C. 77a), and under the 1940 Act relating to the 

Fund (File Nos. 333–157876 and 811–22110) 

(‘‘Registration Statement’’). The Trust has also filed 

a Third Amended Application for an Order under 

Sections 6(c) and 17(b) of the Investment Company 

Act of 1940 (‘‘1940 Act’’) for an exemption from 

certain provisions of the 1940 Act and rules 

thereunder (File No. 812–13488). The description of 

the operation of the Trust and the Fund herein is 

based on the Registration Statement. 

7Underlying ETPs include Investment Company 

Units (as described in NYSE Arca Equities Rule 

5.2(j)(3)); Index-Linked Securities (as described in 

NYSE Arca Equities Rule 5.2(j)(6)); Portfolio 

Depositary Receipts (as described in NYSE Arca 

Equities Rule 8.100); Trust Issued Receipts (as 

described in NYSE Arca Equities Rule 8.200); 

Commodity-Based Trust Shares (as described in 

NYSE Arca Equities Rule 8.201); Currency Trust 

Shares (as described in NYSE Arca Equities Rule 

8.202); Commodity Index Trust Shares (as described 

in NYSE Arca Equities Rule 8.203); Trust Units (as 

described in NYSE Arca Equities Rule 8.500); and 

Managed Fund Shares (as described in NYSE Arca 

Equities Rule 8.600). 

8The Exchange represents that the Advisor, as the 

investment advisor of the Fund, and its related 

personnel, are subject to Investment Advisers Act 

Rule 204A–1. This Rule specifically requires the 

adoption of a code of ethics by an investment 

advisor to include, at a minimum: (i) Standards of 

business conduct that reflect the firm’s/personnel 

fiduciary obligations; (ii) provisions requiring 

supervised persons to comply with applicable 

Federal securities laws; (iii) provisions that require 

all access persons to report, and the firm to review, 

their personal securities transactions and holdings 

periodically as specifically set forth in Rule 204A– 

1; (iv) provisions requiring supervised persons to 

report any violations of the code of ethics promptly 

to the chief compliance officer (‘‘CCO’’) or, 

provided the CCO also receives reports of all 

violations, to other persons designated in the code 

of ethics; and (v) provisions requiring the 

investment advisor to provide each of the 

supervised persons with a copy of the code of ethics 

with an acknowledgement by said supervised 

persons. In addition, Rule 206(4)–7 under the 

Advisers Act makes it unlawful for an investment 

advisor to provide investment advice to clients 

unless such investment advisor has (i) adopted and 

implemented written policies and procedures 

reasonably designed to prevent violation, by the 

available publicly. All submissions 

should refer to File Number SR–Phlx– 

2009–54 and should be submitted on or 

before July 29, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.15

Elizabeth M. Murphy, 

Secretary. 

[FR Doc. E9–15997 Filed 7–7–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–60195; File No. SR– 

NYSEArca–2009–55] 

Self-Regulatory Organizations; NYSE 

Arca, Inc.; Notice of Filing of Proposed 

Rule Change To List and Trade Shares 

of the Dent Tactical ETF 

June 30, 2009. 

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

Securities Exchange Act of 1934 (‘‘Act’’ 

or ‘‘Exchange Act’’)1 and Rule 19b–4 

thereunder,2 notice is hereby given that, 

on June 18, 2009, NYSE Arca, Inc. 

(‘‘NYSE Arca’’ or ‘‘Exchange’’) filed 

with the Securities and Exchange 

Commission (‘‘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. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange proposes to list and 

trade the following under NYSE Arca 

Equities Rule 8.600 (‘‘Managed Fund 

Shares’’): The Dent Tactical ETF. The 

text of the proposed rule change is 

available on the Exchange’s Web site at 

http://www.nyx.com, at the Exchange’s 

principal office, and at the 

Commission’s Public Reference Room.3

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 the 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

The Exchange proposes to list and 

trade the following Managed Fund 

Shares 4 (‘‘Shares’’) under NYSE Arca 

Equities Rule 8.600: The Dent Tactical 

ETF (‘‘Fund’’).5 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.6 According to the Registration 

Statement, the Fund is a ‘‘fund of 

funds,’’ which means that the Fund 

seeks to achieve its investment objective 

by investing primarily in other 

exchange-traded funds (‘‘ETFs’’) that are 

registered under 1940 Act and also 

shares of certain exchange-traded 

products that are not registered as 

investment companies under the 1940 

Act (collectively, the ‘‘Underlying 

ETPs’’).7 Unlike certain of the 

Underlying ETPs, which may be based 

on underlying indexes, the Fund will 

not track or replicate a specific index. 

The Fund charges its own expenses and 

also indirectly bears a proportionate 

share of the Underlying ETPs’ expenses. 

Underlying ETPs will be listed on a 

national securities exchange and such 

Underlying ETPs may hold non-U.S. 

issues. 

The investment advisor to the Fund is 

AdvisorShares Investments, LLC (the 

‘‘Advisor’’). The day-to-day portfolio 

management of the Fund is provided by 

HS Dent Investment Management, LLC, 

the sub-advisor to the Fund (‘‘SubAdvisor’’). The Sub-Advisor selects a 

group of Underlying ETPs for the Fund 

in which to invest pursuant to an 

‘‘active’’ management strategy for asset 

allocation, security selection and 

portfolio construction. The Fund will 

periodically change the composition of 

its portfolio to best meet its investment 

objective. Neither the Advisor nor the 

Sub-Advisor is affiliated with a brokerdealer.8

mstockstill on DSKH9S0YB1PROD with NOTICES