Investment Company Act of 1940 — Section 2(a)(32), 5(a)(1), 17(a), 22(d), 22(e) and Rule 22c-1
Market Vectors ETF Trust, et al.
March 26, 2012
RESPONSE OF THE OFFICE OF INVESTMENT COMPANY REGULATION
DIVISION OF INVESTMENT MANAGEMENT
Our Ref. No. 2012-1-ICR
Your letter of March 19, 2012, seeks our assurance that we would not recommend that the Commission take any enforcement action against the Market Vectors ETF Trust (the “Trust”) or certain of its series (each, a “Fund”)1 under Sections 2(a)(32), 5(a)(1), 17(a), 22(d) and 22(e) of the Investment Company Act of 1940, as amended (“1940 Act”), and Rule 22c-1 under the 1940 Act as a result of the exchange offers described in your letter that were made by the Funds for all of the outstanding HOLDRS issued by the corresponding HOLDRS Trust (collectively, the “Offer”).2 The Funds operate as exchange-traded funds pursuant to a number of exemptive orders (collectively, the “Order”).3 You state that except to the extent necessary to make the Offer and conduct the Rebalancing Transaction, all persons relying on the Order have been and are acting in compliance with the terms and conditions of the Order.
Based on the facts and representations made in your letter, we would not recommend that the Commission take any enforcement action against the Trust or the Funds under Sections 2(a)(32), 5(a)(1), 17(a), 22(d) and 22(e) of the 1940 Act, and Rule 22c-1 under the 1940 Act as a result of the Offer.4 This response expresses the Division’s position on enforcement action only, and does not express any legal conclusions on the questions presented. Because our position isbased upon the representations made to us in your letter, any different facts or representations may require a different conclusion.5
Office of Investment Company Regulation
1 The Funds are the Market Vectors Bank and Brokerage ETF; Market Vectors Biotech ETF; Market Vectors Oil Services ETF; Market Vectors Pharmaceutical ETF; Market Vectors Retail ETF; and Market Vectors Semiconductor ETF.
2 Unless otherwise noted, each defined term in this letter has the same meaning used in your letter.
3 Investment Company Act Rel. Nos. 27283 (Apr. 7, 2006) (notice) and 27311 (May 2, 2006) (order); Investment Company Act Rel. Nos. 27694 (Jan. 31, 2007) (notice) and 27742 (Feb. 27, 2007) (order); Investment Company Act Rel. Nos. 28007 (Sept. 28, 2007) (notice) and 28021 (Oct. 24, 2007) (order); Investment Company Act Rel. Nos. 28349 (Jul. 31, 2008) (notice) and 28365 (Aug. 25, 2008) (order); Investment Company Act Rel. Nos. 29455 (Oct. 1, 2010) (notice) and 29490 (Oct. 26, 2010) (order).
4 This letter confirms oral no-action relief provided by Elizabeth G. Osterman to Stuart M. Strauss and Allison H. Fumai of Dechert LLP on November 9, 2011. In addition, you have not requested, and we are not providing, any assurances other than those expressly requested in your letter.
5 The Division of Investment Management generally permits third parties to rely on no-action or interpretive letters to the extent that the third party’s facts and circumstances are substantially similar to those described in the underlying request for a no-action or interpretive letter. See Informal Guidance Program for Small Entities, Investment Company Act Rel. No. 22587 (Mar. 27, 1997), n.20. In light of the very fact-specific nature of your request, however, the position expressed in this letter applies only to the Trust and the Funds, and no other entity may rely on this position.
The Incoming Letter is in Acrobat format.