[Federal Register: December 31, 2008 (Volume 73, Number 251)]
[Notices]
[Page 80454-80457]
[DOCID:fr31de08-103]

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 28568; 812-13488]

AdvisorShares Investments, LLC and AdvisorShares Trust; Notice of
Application

December 23, 2008.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of an application for an order under section 6(c) of the
Investment Company Act of 1940 (``Act'') for an exemption from sections
2(a)(32), 5(a)(1) and 22(d) of the Act and rule 22c-1 under the Act,
and under sections 6(c) and 17(b) of the Act for an exemption from
sections 17(a)(1) and (a)(2) of the Act.

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    Applicants: AdvisorShares Investments, LLC (the ``Advisor'') and
AdvisorShares Trust (the ``Trust'').
    Summary of Application: Applicants request an order that permits:
(a) Series of certain open-end management investment companies to issue
shares (``Shares'') redeemable in large aggregations only (``Creation
Units''); (b) secondary market transactions in Shares to occur at
negotiated market prices; and (c) certain affiliated persons of the
series to deposit securities into, and receive securities from, the
series in connection with the purchase and redemption of Creation
Units.
    Filing Dates: The application was filed on January 31, 2008, and
amended on October 17, 2008. Applicants have agreed to file an
amendment during the notice period, the substance of which is reflected
in this notice.
    Hearing or Notification of Hearing: An order granting the requested
relief will be issued unless the Commission orders a hearing.
Interested persons may request a hearing by writing to the Commission's
Secretary and serving applicants with a copy of the request, personally
or by mail. Hearing requests should be received by the Commission by
5:30 p.m. on January 15, 2009, and should be accompanied by proof of
service on applicants, in the form of an affidavit or, for lawyers, a
certificate of service. Hearing requests should state the nature of the
writer's interest, the reason for the request, and the issues
contested. Persons who wish to be notified of a hearing may request
notification by writing to the Commission's Secretary.

ADDRESSES: Secretary, U.S. Securities and Exchange Commission, 100 F
Street, NE., Washington, DC 20549-1090. Applicants: Noah Hamman, c/o
Morgan, Lewis & Bockius LLP, 1111 Pennsylvania Avenue, NW., Washington,
DC 20004.

FOR FURTHER INFORMATION CONTACT: Courtney S. Thornton, Senior Counsel,
or Michael W. Mundt, Assistant Director, at<PHONE_NUMBER> (Division of
Investment Management, Office of Investment Company Regulation).

SUPPLEMENTARY INFORMATION: The following is a summary of the
application. The complete application may be obtained for a fee at the
Commission's Public Reference Desk, 100 F Street, NE., Washington, DC
20549-1520 (tel.<PHONE_NUMBER>).

Applicants' Representations

    1. The Trust, a statutory trust established under the laws of
Delaware, is registered with the Commission as an open-end management
investment company. The Trust is organized as a series investment
company with one initial series (the ``Initial Fund''). The investment
objective of the Initial Fund will be to provide long term growth of
capital. The Initial Fund and all future series of the Trust (``Future
Funds,'' collectively with the Initial Fund, ``Funds'') will attempt to
achieve their investment objectives by utilizing active management
strategies based on various formulas for asset allocation, security
selection, and portfolio construction. Each Fund will primarily hold
shares of underlying exchange traded funds (``ETFs''), as well as
shares of certain exchange traded products that are not registered as
investment companies under the Act.\1\ Applicants will only

invest in unaffiliated ETFs that have received certain exemptive relief
from the Commission to permit such investments in excess of the limits
of section 12(d)(1)(A) and (B) of the Act. Any Future Fund (a) will be
advised by the Advisor or an entity controlled by or under common
control with the Advisor, and (b) will comply with the terms and
conditions of the order.
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    \1\ The Funds may invest in exchange traded products that invest
primarily in commodities or currency, but otherwise operate in a
manner similar to exchange traded products registered under the Act.
In addition, the Funds may also invest in equity securities or fixed
income securities traded in a U.S. or non-U.S. markets, as well as
futures contracts, options on such futures contracts, swaps, forward
contracts or other derivatives, and shares of money market mutual
funds or other investment companies, all in accordance with their
investment objectives. The Funds may also invest in equity
securities or fixed income securities traded in international
markets or in a combination of equity, fixed income and U.S. money
market securities and/or non-U.S. money market securities.
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    2. The Advisor, a Delaware limited liability company, or a
subsidiary of such company, will serve as the investment adviser to
each Fund. The Advisor will be registered as an investment adviser of
the Investment Advisers Act of 1940 (``Advisers Act'') prior to a Fund
beginning operations. Applicants anticipate that Funds also may engage
subadvisors (``Subadvisors'').
    3. Applicants anticipate that shares (``Shares'') of the Funds will
be sold at a price of between $25 and $200 per Share in Creation Units
of 25,000 or more Shares. All orders to purchase Creation Units must be
placed with the principal underwriter and distributor of the Creation
Units (``Distributor'') by or through a party that has entered into a
participant agreement with the Distributor (``Authorized
Participant''). Authorized Participants will include broker-dealers,
banks, trust companies, and clearing companies that are participants in
the Depository Trust Company (``DTC,'' and such participants, ``DTC
Participants''). Purchases of Creation Units of the Funds will be made
generally by means of an in-kind tender of shares of specific ETFs (the
``Deposit Securities''), with any cash portion of the purchase price
(the ``Cash Amount'') to be kept to a minimum. The Cash Amount is an
amount equal to the difference between the NAV of a Creation Unit and
the market value of the Deposit Securities. The Trust reserves the
right to permit, under certain circumstances, a purchaser of Creation
Units to substitute cash in lieu of depositing some or all of the
requisite Deposit Securities. The Trust may in the future determine
that Shares of one or more Funds may be purchased in Creation Units on
a cash-only basis if the Trust and the Advisor believe such method
would substantially minimize the Trust's transactional costs or enhance
its operational efficiencies.
    4. Each Fund will charge a fee (``Transaction Fee'') in connection
with the sale or redemption of Creation Units to protect existing
shareholders from the dilutive costs associated with the purchase and
redemption of Creation Units. Each purchaser of a Creation Unit will
receive a prospectus (``Prospectus'') that contains complete disclosure
about the Transaction Fee. All orders to purchase Creation Units must
be placed with the Distributor no later than the closing time of the
regular trading session on the NYSE (ordinarily 4 p.m. ET) in order for
the purchaser to receive the NAV determined on that date. The
Distributor will transmit all purchase orders to the relevant Fund and
will also maintain a record of Creation Unit purchases, send out
confirmations of such purchases, and furnish a Prospectus to purchasers
of Creation Units.
    5. The Trust intends to list the Shares of each Fund on a national
securities exchange (``Listing Market'') such as the NYSE. It is
expected that one or more member firms will be designated to act as a
specialist and maintain a market for the Shares trading on the Listing
Market (``Exchange Specialist''). The price of Shares trading on the
Listing Market will be based on a current bid/offer market. No
secondary sales will be made to brokers or dealers at a concession by
the Distributor or by a Fund. Purchases and sales of Shares in the
secondary market, which will not involve a Fund, will be subject to
customary brokerage commissions and charges.
    6. Purchasers of Shares in Creation Units may hold such Shares or
may sell them into the secondary market. Applicants expect that
purchasers of Creation Units will include institutional investors and
arbitrageurs, who will purchase or redeem Creation Units of a Fund in
pursuit of arbitrage profit and thereby enhance the liquidity of the
secondary market and keep the market price of shares close to their
NAV. Applicants expect that secondary market purchasers of Shares will
include both institutional investors and retail investors for whom
Shares will provide a useful, retail-priced, exchange-traded mechanism
for investing in a professionally managed, diversified selection of
ETFs.\2\
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    \2\ Shares will be registered in book-entry form only. DTC or
its nominee will be the registered owner of all outstanding Shares.
DTC or DTC Participants will maintain records reflecting beneficial
owners of Shares.
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    7. Shares will not be individually redeemable, and owners of Shares
may acquire those Shares from a Fund, or tender such Shares for
redemption to the Fund, in Creation Units only. To redeem, an investor
will have to accumulate enough Shares to constitute a Creation Unit.
Redemption orders must be placed by or through an Authorized
Participant. A redeeming investor will receive a basket of securities
designated to be delivered for Creation Unit redemptions on the date
that the request for redemption is submitted (``Redemption
Securities''), which in most cases will be the same as the Deposit
Securities required to purchase Creation Units on that date, and will
either receive from or pay to the Fund a balancing amount in cash. A
Fund may make redemptions partly in cash in lieu of transferring one or
more Redemption Securities to a redeeming investor if the Fund
determines that such alternative is warranted, such as if the redeeming
investor is unable, by law or policy, to own a particular Redemption
Security. A redeeming investor also must pay a Transaction Fee to cover
custodial costs.
    8. The Trust will not be advertised or marketed or otherwise ``held
out'' as a traditional open-end investment company or a mutual fund.
The designation of the Trust and the Funds in all marketing materials
will be limited to the terms ``exchange-traded fund,'' ``investment
company,'' ``fund'' and ``trust'' without reference to an ``open-end
fund'' or a ``mutual fund,'' except to compare and contrast the Trust
and the Funds with traditional mutual funds. Each Fund's Prospectus
will also prominently disclose that the Fund is an actively managed
exchange traded fund. All marketing materials that describe the method
of obtaining, buying or selling Creation Units, or Shares traded on the
Listing Market, or refer to redeemability, will prominently disclose
that Shares are not individually redeemable and that the owners of
Shares may acquire or redeem Shares from a Fund in Creation Units only.
The same approach will be followed in the statement of additional
information (``SAI''), shareholder reports and investor educational
materials issued or circulated in connection with the Shares. The Trust
will provide copies of its annual and semi-annual shareholder reports
to DTC Participants for distribution to beneficial owners of Shares.
    9. The Trust (or the Listing Market) intends to maintain a Web site
that will be publicly available at no charge, which will include the
Prospectus and other information about the Funds that is updated on a
daily basis. On each Business Day, before the commencement of trading
in Shares on the Listing Market, each Fund will disclose the identities
and quantities of the securities (``Portfolio Securities'') and other
assets held in the Fund portfolio that will form the basis for the

Fund's calculation of NAV at the end of the Business Day.\3\
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    \3\ Applicants note that under accounting procedures followed by
the Fund, trades made on the prior Business Day (``T'') will be
booked and reflected in NAV on the current Business Day (``T + 1'').
Accordingly, the Fund will be able to disclose at the beginning of
the Business Day the portfolio that will form the basis for the NAV
calculation at the end of the Business Day.
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Applicants' Legal Analysis

    1. Applicants request an order under section 6(c) of the Act
granting an exemption from sections 2(a)(32), 5(a)(1) and 22(d) of the
Act and rule 22c-1 under the Act, and under sections 6(c) and 17(b) of
the Act granting an exemption from sections 17(a)(1) and (a)(2) of the
Act.
    2. Section 6(c) of the Act provides that the Commission may exempt
any person, security or transaction, or any class of persons,
securities or transactions, from any provision of the Act, if and to
the extent that such exemption is necessary or appropriate in the
public interest and consistent with the protection of investors and the
purposes fairly intended by the policy and provisions of the Act.
Section 17(b) of the Act authorizes the Commission to exempt a proposed
transaction from section 17(a) of the Act if evidence establishes that
the terms of the transaction, including the consideration to be paid or
received, are reasonable and fair and do not involve overreaching on
the part of any person concerned, and the proposed transaction is
consistent with the policies of the registered investment company and
the general provisions of the Act.
Sections 5(a)(1) and 2(a)(32) of the Act
    3. Section 5(a)(1) of the Act defines an ``open-end company'' as a
management investment company that is offering for sale or has
outstanding any redeemable security of which it is the issuer. Section
2(a)(32) of the Act defines a redeemable security as any security,
other than short-term paper, under the terms of which the holder, upon
its presentation to the issuer, is entitled to receive approximately
his proportionate share of the issuer's current net assets, or the cash
equivalent. Because Shares will not be individually redeemable,
applicants request an order that would permit each Fund, as a series of
an open-end management investment company, to issue Shares that are
redeemable in Creation Units only. Applicants state that Creation Units
will always be redeemable. Applicants further state that because
Creation Units may always be purchased and redeemed at NAV (less
certain transactional expenses), the price of Creation Units on the
secondary market and the price of the individual Shares of a Creation
Unit, taken together, should not vary substantially from the NAV of
Creation Units.
Section 22(d) of the Act and Rule 22c-1 under the Act
    4. Section 22(d) of the Act, among other things, prohibits a dealer
from selling a redeemable security, which is currently being offered to
the public by or through a principal underwriter, except at a current
public offering price described in the prospectus. Rule 22c-1 under the
Act generally requires that a dealer selling, redeeming, or
repurchasing a redeemable security do so only at a price based on its
NAV. Applicants state that trading in Shares will take place on and
away from the Listing Market at all times on the basis of current bid/
offer prices, not at a current offering price described in the
prospectus, and not at a price based on NAV. Thus, purchases and sales
of Shares in the secondary market will not comply with section 22(d) of
the Act and rule 22c-1 under the Act. Applicants request an exemption
under section 6(c) from these provisions.
    5. Applicants assert that the concerns sought to be addressed by
section 22(d) of the Act and rule 22c-1 under the Act with respect to
pricing are equally satisfied by the proposed method of pricing Shares.
Applicants maintain that while there is little legislative history
regarding section 22(d), its provisions, as well as those of rule 22c-
1, appear to have been designed to (a) prevent dilution caused by
certain riskless-trading schemes by principal underwriters and contract
dealers, (b) prevent unjust discrimination or preferential treatment
among buyers, and (c) assure an orderly distribution of investment
company shares by contract dealers by eliminating price competition
from non-contract dealers who could offer investors shares at less than
the published sales price and who could pay investors a little more
than the published redemption price.
    6. Applicants believe that none of these purposes will be relevant
issues for secondary trading by dealers in Shares of a Fund. Applicants
state that (a) secondary market trading in Shares will not cause
dilution for owners of such Shares because such transactions do not
directly involve Fund assets, and (b) to the extent different prices
exist during a given trading day, or from day to day, such variances
occur as a result of third-party market forces, such as supply and
demand, but do not occur as a result of unjust or discriminatory
manipulation. Finally, applicants contend that the proposed
distribution system will be orderly because arbitrage activity will
ensure that the difference between the market price of Shares and their
NAV remains narrow.
Sections 17(a)(1) and 17(a)(2) of the Act
    7. Section 17(a)(1) and (2) of the Act generally prohibit an
affiliated person of a registered investment company, or an affiliated
person of such a person (``second tier affiliate''), from selling any
security to or purchasing any security from the company. Section
2(a)(3) of the Act defines ``affiliated person'' to include any person
directly or indirectly owning, controlling, or holding with power to
vote 5 percent or more of the outstanding voting securities of the
other person and any person directly or indirectly controlling,
controlled by, or under common control with, the other person. Section
2(a)(9) of the Act provides that a control relationship will be
presumed where one person owns more than 25 percent of another person's
voting securities. The Funds may be deemed to be controlled by the
Advisor or an entity controlling, controlled by or under common control
with the Adviser and hence affiliated persons of each other. In
addition, the Funds may be deemed to be under common control with any
other registered investment company (or series thereof) advised by the
Advisor or an entity controlling, controlled by or under common control
with the Advisor (an ``Affiliated Fund''). Applicants state that an
investor could own 5 percent or more of a Fund or the Trust, or in
excess of 25 percent of the outstanding Shares of a Fund or the Trust,
making that investor an affiliated person of the Fund or the Trust
under section 2(a)(3)(A) or 2(a)(3)(C) of the Act. For so long as such
an investor was deemed to be an affiliated person, section 17(a)(1)
could be read to prohibit that investor from depositing the Deposit
Securities with a Fund in return for a Creation Unit. Similarly,
section 17(a)(2) could be read to prohibit such an investor from
entering into an in-kind redemption with a Fund.
    8. Applicants request an exemption from section 17(a) under
sections 6(c) and 17(b), to permit in-kind purchases and redemptions by
persons that are affiliated persons or second tier affiliates of the
Funds solely by virtue of one or more of the following: (1) Holding 5
percent or more, or more than 25 percent, of the outstanding Shares of
the Trust or one or more Funds; (2) an affiliation with a person with
an ownership interest described in (1); or

(3) holding 5 percent or more, or more than 25 percent, of the shares
of one or more Affiliated Funds.
    9. Applicants contend that no useful purpose would be served by
prohibiting the affiliated persons or second tier affiliates of a Fund
as described above from purchasing or redeeming Creation Units through
``in-kind'' transactions. The purchase and redemption of Creation Units
of each Fund is on the same terms for all investors, whether or not
such investor is an affiliate. In each case, Creation Units are sold
and redeemed by the Trust at their NAV. The Deposit Securities and
Redemption Securities will be valued in the same manner as the
securities in the Fund portfolio. Accordingly, applicants believe the
proposed transactions described above meet the section 17(b) standards
for relief because the terms of such proposed transactions are
reasonable and fair and do not involve overreaching on the part of any
person concerned, and the proposed transactions will be consistent with
the policies of each Fund and with the general purposes of the Act.

Applicants' Conditions

    The applicants agree that any order of the Commission granting the
requested relief will be subject to the following conditions:
    1. Neither the Trust nor any Fund will be advertised or marketed as
an open-end investment company or mutual fund. Each Fund's Prospectus
will prominently disclose that the Fund is an actively managed
exchange-traded fund. Each Prospectus will prominently disclose that
the Shares are not individually redeemable shares and will disclose
that the owners of the Shares may acquire those Shares from the Fund
and tender those Shares for redemption to the Fund in Creation Units
only. Any advertising material that describes the purchase or sale of
Creation Units or refers to redeemability will prominently disclose
that the Shares are not individually redeemable and that owners of the
Shares may acquire those Shares from the Fund and tender those Shares
for redemption to the Fund in Creation Units only.
    2. Each Fund's Prospectus will clearly disclose that, for purposes
of the Act, Shares are issued by a registered investment company and
that the acquisition of Shares by investment companies and companies
relying on sections 3(c)(1) or 3(c)(7) of the Act is subject to the
restrictions of section 12(d)(1) of the Act.
    3. The Web site for the Funds, which will be publicly accessible at
no charge, will contain the following information, on a per Share
basis, for each Fund: (a) The prior Business Day's NAV and the reported
closing price, and a calculation of the premium or discount of the
closing price against such NAV; and (b) data in chart format displaying
the frequency distribution of discounts and premiums of the daily
closing price against the NAV, within appropriate ranges, for each of
the four previous calendar quarters (or for the life of the Fund, if
shorter).
    4. The Prospectus and annual report for each Fund will also
include: (a) The information listed in condition 3(b), (i) in the case
of the Prospectus, for the most recently completed year (and the most
recently completed quarter or quarters, as applicable) and (ii) in the
case of the annual report, for the immediately preceding five years (or
for the life of the Fund, if shorter), and (b) the cumulative total
return and the average annual total return based on NAV and closing
price, calculated on a per Share basis for one-, five- and ten-year
periods (or life of the Fund, if shorter).
    5. As long as the Funds operate in reliance on the requested order,
the Shares of the Funds will be listed on a Listing Market.
    6. On each Business Day, before commencement of trading in Shares
on a Fund's Listing Market, the Fund will disclose on its Web site the
identities and weightings of the component securities and other assets
held by the Fund that will form the basis for the Fund's calculation of
NAV at the end of the Business Day.
    7. The Advisor or any Subadvisor, directly or indirectly, will not
cause any Authorized Participant (or any investor on whose behalf an
Authorized Participant may transact with the Fund) to acquire any
Deposit Security for the Fund through a transaction in which the Fund
could not engage directly.
    8. The requested order will expire on the effective date of any
Commission rule under the Act that provides relief permitting the
operation of actively managed exchange-traded funds.

    For the Commission, by the Division of Investment Management,
under delegated authority.
Florence E. Harmon,
Acting Secretary.
 [FR Doc. E8-31086 Filed 12-30-08; 8:45 am]

BILLING CODE 8011-01-P


[Federal Register: February 25, 2008 (Volume 73, Number 37)]
[Notices]
[Page 10081-10084]
[DOCID:fr25fe08-132]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-57348; File No. SR-NASDAQ-2008-010]

Self-Regulatory Organizations; The NASDAQ Stock Market LLC;
Notice of Filing and Order Granting Accelerated Approval of Proposed
Rule Change to Trade Units of the United States 12 Month Oil Fund, LP
and the United States 12 Month Natural Gas Fund, LP Pursuant to
Unlisted Trading Privileges

February 19, 2008.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on February 5, 2008, The NASDAQ Stock Market LLC (``Nasdaq'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II below, which Items have been substantially prepared by the Exchange.
This order provides notice of the proposed rule change and approves it
on an accelerated basis.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    Nasdaq proposes to trade, pursuant to unlisted trading privileges
(``UTP''), units (``Units'') of the United States 12 Month Oil Fund, LP
(``USOF'') and the United States 12 Month Natural Gas Fund, LP
(``USGF'') (each, a ``Partnership,'' and collectively
``Partnerships'').
    The text of the proposed rule change is available from the
Exchange's Web site (http://nasdaq.complinet.com), 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 III 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
    Nasdaq proposes to trade pursuant to UTP the Units, each of which
represents ownership of a fractional undivided beneficial interest in
the net assets of either USOF or USGF. Each Partnership is a commodity
pool that will issue Units that may be purchased and sold on the
Exchange. The Commission has approved the original listing and trading
of the Units on the American Stock Exchange LLC (``Amex'').\3\ The net
assets of each of USOF and USGF consist of investments in futures
contracts based on crude oil, heating oil, gasoline, natural gas, and
other petroleum-based fuels that are traded on the New York Mercantile
Exchange (``NYMEX''), Intercontinental Exchange (``ICE Futures''), or
other U.S. and foreign exchanges (collectively, ``Futures Contracts'').
In the case of USOF, the predominant investments are expected to be
based on, or related to, crude oil. For the USGF, the predominant
investments are expected to be based on, or related to, natural gas.
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    \3\ See Securities Exchange Act Release No. 56831 (November 21,
2007), 72 FR 67612 (November 29, 2007) (SR-Amex-2007-98) (``Amex
Order''). See also Securities Exchange Act Release No. 56719
(October 29, 2007), 72 FR 62277 (November 2, 2007) (SR-Amex-2007-98)
(``Amex Notice'').
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    USOF may also invest in other crude-oil-related investments such as
cash-settled options on Futures Contracts, forward contracts for
gasoline, and over-the-counter (``OTC'') contracts that are based on
the price of crude oil, heating oil, gasoline, natural gas, other
petroleum-based fuels, Futures Contracts, and indices based on the
foregoing (collectively, ``Other Crude Oil-Related Investments'').
Futures Contracts and Other Crude Oil-Related Investments collectively
are referred to as ``Crude Oil Interests.'' Similarly, the USGF may
also invest in other natural-gas-related investments such as cash-
settled options on Futures Contracts, forward contracts for natural
gas, and OTC contracts based on the price of natural gas, crude oil,
and other petroleum-based fuels, Futures Contracts, and indices based
on the foregoing (collectively, ``Other Natural Gas-Related
Investments''). Futures Contracts and Other Natural Gas-Related
Investments collectively are referred to as ``Natural Gas Interests.''
    Each of USOF and USGF will invest in Crude Oil Interests and
Natural Gas Interests, respectively, to the fullest extent possible
without being leveraged or unable to satisfy its current or potential
margin or collateral obligations. In pursuing this objective, the
primary focus of USOF's and USGF's investment manager, Victoria Bay
Asset Management, LLC (``Victoria Bay'' or ``General Partner''), is the
investment in Futures Contracts and the management of its investments
in short-term obligations of the United States of two years or less
(``Treasuries'') and cash and cash equivalents (collectively, ``Cash'')
for margining purposes and as collateral.
    The investment objective of USOF is for changes in percentage terms
of a Unit's net asset value (``NAV'') to reflect the changes in
percentage terms of the price of light, sweet crude oil delivered to
Cushing, Oklahoma, as measured by the changes in the average of the
prices of 12 crude oil futures contracts traded on NYMEX (the ``Oil
Benchmark Futures Contracts''), less the USOF's expenses.\4\
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    \4\ The Oil Benchmark Futures Contracts consist of the near-
month contract to expire and the contracts for the following 11
months, for a total of 12 consecutive months' contracts, except when
the near-month contract is within two weeks of expiration, in which
case it will be measured by the futures contracts that are the next-
month contract to expire and the contracts for the 11 consecutive
months following that contract. The average price is determined by
summing up the 12 individual monthly prices and dividing them by 12,
and then comparing that result to the prior day's average price
determined in the same fashion. The composition of the Oil Benchmark
Futures Contracts will be changed or ``rolled'' over a one-day
period by selling the near-month contract and buying the contract,
which at that time is the 13-month contract.
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    The investment objective of USGF is for changes in percentage terms
of a Unit's NAV to reflect the changes in percentage terms of the price
of natural gas delivered at Henry Hub, Louisiana, as measured by the
changes in the average of the prices of 12 futures contracts on natural
gas traded on NYMEX (the ``Natural Gas Benchmark Futures Contracts''),
less the 12-Month Natural Gas Fund's expenses.\5\ With respect to both
funds, when calculating the daily movement of the average price of the
relevant 12 futures contracts, each

contract month will be equally weighted.
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    \5\ The Natural Gas Benchmark Futures Contracts consist of the
near-month contract to expire and the contracts for the following 11
months, for a total of 12 consecutive months' contracts, except when
the near-month contract is within two weeks of expiration, in which
case it will be measured by the futures contracts that are the next-
month contract to expire and the contracts for the 11 consecutive
months following that contract. The average price is determined by
summing up the 12 individual monthly prices and dividing them by 12,
and then comparing that result to the prior day's average price
determined in the same fashion. The composition of the Natural Gas
Benchmark Futures Contract will be changed or ``rolled'' over a one-
day period by selling the near-month contract and buying the
contract which at that time is the 13-month contract on the same
day.
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    Information regarding the Partnerships and the General Partner, as
well as detailed descriptions of the manner in which the Units will be
offered and sold, and the investment strategy of USOF and USGF, are
included in their respective registration statements regarding the
offering of the Units filed with the Commission under the Securities
Act of 1933.\6\
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    \6\ See USOF's Form S-1 filed with the Commission on July 5,
2007, as amended (File No. 333-144348) and USGF's S-1 filed with the
Commission on July 6, 2007 (File No. 333-144409).
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    As set forth in the Amex Proposal, the daily settlement prices for
the NYMEX-traded Futures Contracts are publicly available on the NYMEX
Web site at http://www.nymex.com. In addition, various market data
vendors and news publications publish futures prices and related data.
Quote and last-sale information for the Futures Contracts are widely
disseminated through a variety of market data vendors worldwide,
including Bloomberg and Reuters. In addition, real-time futures data is
available by subscription from Reuters and Bloomberg. The NYMEX also
provides delayed futures information on current and past trading
sessions and market news free of charge on its Web site. The specific
contract specifications for the Futures Contracts are also available on
the NYMEX Web site and the ICE Futures Web site at http://
www.icefutures.com.
    The Web site for Amex at http://www.amex.com, which is publicly
accessible at no charge, will contain the following information: (1)
The prior business day's NAV and the reported closing price; (2) the
midpoint of the bid-ask price in relation to the NAV as of the time the
NAV is calculated (``Bid-Ask price''); \7\ (3) the premium or discount
of such price against such NAV; (4) data in chart form displaying the
frequency distribution of discounts and premiums of the Bid-Ask Price
against the NAV, within appropriate ranges for each of the four
previous calendar quarters; (5) the prospectus and the most recent
periodic reports filed with the SEC or required by the CFTC; and (6)
other applicable quantitative information.
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    \7\ The Bid-Ask Price of Units is determined using the highest
bid and lowest offer as of the time of calculation of the NAV.
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    The total portfolio composition of each Partnership will be
disclosed, each business day that the Amex is open for trading, on
their respective Web sites at http://www.unitedstates12monthoi1fund.com
and http://www.unitedstates12monthnaturalgasfund.com. USOF's Web site
disclosure of portfolio holdings will be made daily and will include,
as applicable, the name and value of each Crude Oil Interest, the
specific types of Crude Oil Interests and characteristics of such Crude
Oil Interests, Treasuries, and amount of cash and cash equivalents held
in the portfolio of the USOF. The USGF's Web site disclosure of
portfolio holdings will be made daily and will include, as applicable,
the name and value of each Natural Gas Interest, the specific types of
Natural Gas Interests and characteristics of such Natural Gas
Interests, Treasuries, and amount of cash and cash equivalents held in
the portfolio of USGF.
    The public Web site disclosure of the portfolio composition of each
of USOF and USGF will coincide with the disclosure by Brown Brothers
Harriman & Co. (``Administrator'') on each business day of the NAV for
the Units and the Basket Amount (for orders placed during the day) for
each Partnership. Therefore, the same portfolio information will be
provided on the public Web site for each Partnership as well as in the
facsimile or e-mail to Authorized Purchasers containing the NAV and
Basket Amount (``Daily Dissemination''). The format of the public Web
site disclosure and the Daily Dissemination will differ because the
public Web site will list all portfolio holdings while the Daily
Dissemination will provide the portfolio holdings in a format
appropriate for Authorized Purchasers, i.e., the exact components of a
Creation Unit.
    Each Partnership's NAV will be calculated and disseminated
daily.\8\ According to the Amex Proposal, the Amex also intends to
disseminate for each Partnership on a daily basis by means of CTA/CQ
High Speed Lines information with respect to the Indicative Partnership
Value (as discussed below), the recent NAV, the number of Units
outstanding, the Basket Amount, and the Deposit Amount. The Amex will
also make available on its Web site daily trading volume, closing
prices, and the NAV. The closing price and settlement prices of the
Futures Contracts held by each Partnership are also readily available
from the NYMEX, automated quotation systems, published or other public
sources, or on-line information services such as Bloomberg or Reuters.
---------------------------------------------------------------------------

    \8\ According to the Amex Proposal, the Amex will obtain a
representation from each Partnership that its NAV per Unit will be
calculated daily and made available to all market participants at
the same time.
---------------------------------------------------------------------------

    To provide updated information relating to each Partnership for use
by investors, professionals, and persons wishing to create or redeem
the Units, the Amex will disseminate through the facilities of the
Consolidated Tape Association an updated Indicative Partnership Value
(``Indicative Partnership Value''), according to the Amex Proposal. The
Indicative Partnership Value for each Partnership will be disseminated
on a per-Unit basis at least every 15 seconds from 9:30 a.m. to 4:15
p.m. ET. The Indicative Partnership Value will be calculated based on
the Treasuries and cash required for creations and redemptions (i.e.,
NAV per Unit x 100,000) adjusted to reflect the price changes of the
relevant Benchmark Futures Contract.
    The Indicative Partnership Value is based on open-outcry trading of
the relevant Benchmark Futures Contracts on NYMEX. Open-outcry trading
on the NYMEX closes daily at 2:30 p.m. ET while NYMEX's energy futures
contracts are traded on the Chicago Mercantile Exchange's CME Globex
electronic trading platform on a 24 hour basis.\9\ After the close of
open outcry on NYMEX at 2:30 p.m. ET, the Indicative Partnership Value
will reflect changes to the relevant Benchmark Futures Contracts as
provided for through Globex. The value of the relevant Benchmark
Futures Contracts will be available on a 15-second delayed basis from
9:30 a.m. to 4:15 p.m. ET.
---------------------------------------------------------------------------

    \9\ CME Globex[reg] (``Globex'') is an open-access marketplace
that operates virtually 24 hours each trading day. Electronic
trading on Globex is conducted from 6 p.m. ET Sunday through 5:15
p.m. ET Friday each week. There is a 45-minute break each day
between 5:15 p.m. ET and 6 p.m. ET.
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Trading Halts

    Nasdaq will halt trading in the Units under the conditions
specified in Nasdaq Rules 4120 and 4121. The conditions for a halt
include a regulatory halt by the listing market. UTP trading in the
Units will also be governed by provisions of Nasdaq Rule 4120(b)
relating to temporary interruptions in the calculation or wide
dissemination of the Indicative Partnership Value. Additionally, Nasdaq
may cease trading the Units if other unusual conditions or
circumstances exist which, in the opinion of Nasdaq, make further
dealings on Nasdaq detrimental to the maintenance of a fair and orderly
market. Nasdaq will also follow any procedures with respect to trading
halts as set forth in Nasdaq Rule 4120(c). Finally, Nasdaq will stop
trading the Units if the listing market delists them.

Trading Rules

    Nasdaq deems the Units to be equity securities, thus rendering
trading in the Units subject to Nasdaq's existing rules governing the
trading of equity securities. Nasdaq will allow trading in the Units 7
a.m. until 8 p.m. ET.
Surveillance
    Nasdaq believes that its surveillance procedures are adequate to
address any concerns about the trading of the Units on Nasdaq. Trading
of the Units through Nasdaq will be subject to FINRA's surveillance
procedures for equity securities in general and ETFs in particular.\10\
The Exchange may obtain information via the Intermarket Surveillance
Group (``ISG'') from other exchanges that are members or affiliates of
the ISG.\11\
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    \10\ FINRA surveils trading on Nasdaq pursuant to a regulatory
services agreement. Nasdaq is responsible for FINRA's performance
under this regulatory services agreement.
    \11\ For a list of the current members and affiliate members of
ISG, see http://www.isgportal.com.
---------------------------------------------------------------------------

Information Circular
    Prior to the commencement of trading, the Exchange will inform its
members in an Information Circular of the special characteristics and
risks associated with trading the Units. Specifically, the Information
Circular will discuss the following: (1) The procedures for purchases
and redemptions of Units in Baskets (and that Units are not
individually redeemable); (2) Nasdaq Rule 2310, which imposes
suitability obligations on Nasdaq members with respect to recommending
transactions in the Units to customers; (3) how information regarding
the Indicative Partnership Value is disseminated; (4) the requirement
that members deliver a prospectus to investors purchasing newly issued
Units prior to or concurrently with the confirmation of a transaction;
and (5) trading information. The Information Circular will also discuss
any exemptive, no-action, or interpretive relief granted by the
Commission from any rules under the Act.
    In addition, the Information Circular will reference that each
Partnership is subject to various fees and expenses described in the
relevant registration statement.
    The Information Circular will also reference the fact that there is
no regulated source of last-sale information regarding physical
commodities; that the Commission has no jurisdiction over the trading
of crude oil, natural gas, heating oil, gasoline, or other petroleum-
based fuels; and that the CFTC has regulatory jurisdiction over the
trading of crude-oil-based and natural-gas-based futures contracts and
related options.
    The Information Circular will also disclose the trading hours of
the Units of each Partnership and that the NAV for the Units will be
calculated after 4 p.m. ET each trading day.
2. Statutory Basis
    Nasdaq believes that the proposed rule change is consistent with
the Act and the rules and regulations thereunder applicable to a
national securities exchange. Specifically, Nasdaq believes that the
proposed rule change is consistent with the Section 6(b)(5) \12\
requirements that an exchange have rules 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 addition,
Nasdaq believes that the proposal is consistent with Rule 12f-5 under
the Act \13\ because it deems the Units to be equity securities, thus
rendering trading in the Units subject to the Exchange's existing rules
governing the trading of equity securities.
---------------------------------------------------------------------------

    \12\ 15 U.S.C. 78f(b)(5).
    \13\ 17 CFR 240.12f-5.
---------------------------------------------------------------------------

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

    The Exchange neither solicited nor received comments on the
proposal.

III. 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<EMAIL_ADDRESS>Please include
File Number SR-NASDAQ-2008-010 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.

All submissions should refer to File Number SR-NASDAQ-2008-010. 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, 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 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 available publicly. All
submissions should refer to File Number SR-NASDAQ-2008-010 and should
be submitted on or before March 17, 2008.

IV. Commission's Findings and Order Granting Accelerated Approval of
the Proposed Rule Change

    After careful review, 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.\14\ In particular, the Commission finds that the proposed
rule change is consistent with Section 6(b)(5) of the Act,\15\ which
requires that an exchange have rules designed, among other things, to
promote just and equitable principles of trade, to remove impediments
to and perfect the mechanism of a free and open market

and a national market system, and in general to protect investors and
the public interest. The Commission believes that this proposal should
benefit investors by increasing competition among markets that trade
the Units.
---------------------------------------------------------------------------

    \14\ In approving this rule change, the Commission notes that it
has considered the proposal's impact on efficiency, competition, and
capital formation. See 15 U.S.C. 78c(f).
    \15\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    In addition, the Commission finds that the proposal is consistent
with Section 12(f) of the Act,\16\ which permits an exchange to trade,
pursuant to UTP, a security that is listed and registered on another
exchange.\17\ The Commission notes that it previously approved the
listing and trading of the Units on Amex.\18\ The Commission also finds
that the proposal is consistent with Rule 12f-5 under the Act,\19\
which provides that an exchange shall not extend UTP to a security
unless the exchange has in effect a rule or rules providing for
transactions in the class or type of security to which the exchange
extends UTP. The Exchange has represented that it meets this
requirement because it deems the Units to be equity securities, thus
rendering trading in the Units subject to the Exchange's existing rules
governing the trading of equity securities.
---------------------------------------------------------------------------

    \16\ 15 U.S.C. 78l(f).
    \17\ Section 12(a) of the Act, 15 U.S.C. 78l(a), generally
prohibits a broker-dealer from trading a security on a national
securities exchange unless the security is registered on that
exchange pursuant to Section 12 of the Act. Section 12(f) of the Act
excludes from this restriction trading in any security to which an
exchange ``extends UTP.'' When an exchange extends UTP to a
security, it allows its members to trade the security as if it were
listed and registered on the exchange even though it is not so
listed and registered.
    \18\ See supra note 4.
    \19\ 17 CFR 240.12f-5.
---------------------------------------------------------------------------

    The Commission further believes that the proposal is consistent
with Section 11A(a)(1)(C)(iii) of the Act,\20\ which sets forth
Congress' finding that it is in the public interest and appropriate for
the protection of investors and the maintenance of fair and orderly
markets to assure the availability to brokers, dealers, and investors
of information with respect to quotations for and transactions in
securities. Quotations for and last-sale information regarding the
Units are disseminated through the facilities of the CTA and the
Consolidated Quotation System. In addition, Amex will calculate and
disseminate the Indicative Partnership Value per Unit for each
Partnership through the facilities of the Consolidated Tape Association
at least every 15 seconds throughout the Amex trading hours for the
Units. Amex will also make available on its Web site daily trading
volume, the closing prices, and the NAV. Web site disclosure of
portfolio holdings for both Funds will be made daily. Finally,
quotations and last-sale information regarding the Futures Contracts
are widely disseminated through a variety of market data vendors
worldwide, including Bloomberg and Reuters.
---------------------------------------------------------------------------

    \20\ 15 U.S.C. 78k-1(a)(1)(C)(iii).
---------------------------------------------------------------------------

    The Commission also believes that the proposal appears reasonably
designed to preclude trading of the Units if transparency is impaired
or there is unfair dissemination of the NAV. Trading in the Units will
be subject to Nasdaq Rule 4120(b), which provides that, if the listing
market halts trading when the IIV or value of the underlying index is
not being calculated or disseminated, the Exchange also would halt
trading. Nasdaq will halt trading in the Units of a Partnership if it
learns that the listing market halts trading because the NAV is not
being disseminated to all market participants at the same time.
    In support of this proposal, the Exchange has made the following
additional representations:
    1. The Exchange's surveillance procedures are adequate to properly
monitor Exchange trading of the Units in all trading sessions and to
deter and detect violations of Exchange rules.
    2. Prior to the commencement of trading, the Exchange would inform
its members in an Information Bulletin of the special characteristics
and risks associated with trading the Units.
    3. The Information Bulletin also would discuss the requirement that
members deliver a prospectus to investors purchasing newly issued Units
prior to or concurrently with the confirmation of a transaction.
    This approval order is based on the Exchange's representations.
    The Commission notes that, if the Units should be delisted by the
listing exchange, the Exchange would no longer have authority to trade
the Units pursuant to this order.
    The Commission finds good cause for approving this proposal before
the thirtieth day after the publication of notice thereof in the
Federal Register. As noted above, the Commission previously found that
the listing and trading of the Shares on Amex is consistent with the
Act. The Commission presently is not aware of any regulatory issue that
should cause it to revisit this finding or would preclude the trading
of the Units on the Exchange pursuant to UTP. Therefore, accelerating
approval of this proposal should benefit investors by creating, without
undue delay, additional competition in the market for the Units.
    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\21\ that the proposed rule change (SR-NASDAQ-2008-010) be, and it
hereby is, approved on an accelerated basis.
---------------------------------------------------------------------------

    \21\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\22\
---------------------------------------------------------------------------

    \22\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Deputy Secretary.
[FR Doc. E8-3431 Filed 2-22-08; 8:45 am]

BILLING CODE 8011-01-P


[Federal Register: February 19, 2008 (Volume 73, Number 33)]
[Notices]
[Page 9117-9118]
[DOCID:fr19fe08-50]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. CP08-65-000]

Tennessee Gas Pipeline Company; Notice of Application

February 11, 2008.
    Take notice that on January 30, 2008, Tennessee Gas Pipeline
Company (Tennessee), 1001 Louisiana, Houston, Texas 77002, filed in
Docket No. CP08-65-000, an application, pursuant to section 7 of the
Natural Gas Act (NGA), for an order authorizing Tennessee to construct
and operate the Concord Lateral Expansion Project (Project). Tennessee
plans to construct a 6,130 horsepower compressor station on its Line
200 system in Pelham, New Hampshire, and modify station piping at its
existing Laconia Meter Station in Concord, New Hampshire, in order to
provide 30,000 Dth/d of incremental transportation capacity to Energy
North Natural Gas, Inc., d/b/a/ KeySpan Energy Delivery New England
(Energy North), a New Hampshire corporation, all as more fully set
forth in the application which is on file with the Commission and open
to public inspection. This filing is accessible on-line at http://www.ferc.gov
, using the ``eLibrary'' link and is available for review

in the Commission's Public Reference Room in Washington, DC. There is
an ``eSubscription'' link on the Web site that enables subscribers to
receive e-mail notification when a document is added to a subscribed
docket(s). For assistance with any FERC Online service, please e-mail
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For

TTY, call<PHONE_NUMBER>.
    Any questions regarding this application should be directed to Jay
V. Allen, Senior Counsel, El Paso Corporation, 1001 Louisiana, Houston
Texas 77002, at<PHONE_NUMBER>.
    Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9,
within 90 days of this Notice the Commission staff will either:
Complete its environmental assessment (EA) and place it into the
Commission's public record (eLibrary) for this proceeding; or issue a
Notice of Schedule for Environmental Review. If a Notice of Schedule
for Environmental Review is issued, it will indicate, among other
milestones, the anticipated date for the Commission staff's issuance of
the final environmental impact statement (FEIS) or EA for this
proposal. The filing of the EA in the Commission's public record for
this proceeding or the issuance of a Notice of Schedule for
Environmental Review will serve to notify federal and state agencies of
the timing for the completion of all necessary reviews, and the
subsequent need to complete all federal authorizations within 90 days
of the date of issuance of the Commission staff's FEIS or EA.
    There are two ways to become involved in the Commission's review of
this project. First, any person wishing to obtain legal status by
becoming a party to the proceedings for this project should, on or
before the comment date stated below, file with the Federal Energy
Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a
motion to intervene in accordance with the requirements of the
Commission's Rules of Practice and Procedure (18 CFR 385.214 or
385.211) and the Regulations under the NGA (18 CFR 157.10). A person
obtaining party status will be placed on the service list maintained by
the Secretary of the Commission and will receive copies of all
documents filed by the applicant and by all other parties. A party must
submit 14 copies of filings made with the Commission and must mail a
copy to the applicant and to every other party in the proceeding. Only
parties to the proceeding can ask for court review of Commission orders
in the proceeding.
    However, a person does not have to intervene in order to have
comments considered. The second way to participate is by filing with
the Secretary of the Commission, as soon as possible, an original and
two copies of comments in support of or in opposition to this project.
The Commission will consider these comments in determining the
appropriate action to be taken, but the filing of a comment alone will
not serve to make the filer a party to the proceeding. The Commission's
rules require that persons filing comments in opposition to the project
provide copies of their protests only to the party or parties directly
involved in the protest.
    The Commission strongly encourages electronic filings of comments,
protests and interventions in lieu of paper using the ``eFiling'' link
at http://www.ferc.gov. Persons unable to file electronically should

submit an original and 14 copies of the protest or intervention to the
Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington, DC 20426.
    This filing is accessible on-line at http://www.ferc.gov, using the

``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive e-mail
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please e-mail
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For

TTY, call<PHONE_NUMBER>.

    Comment Date: March 3, 2008.

Kimberly D. Bose,
Secretary.
 [FR Doc. E8-2993 Filed 2-15-08; 8:45 am]

BILLING CODE 6717-01-P