[Federal Register Volume 77, Number 99 (Tuesday, May 22, 2012)]
[Notices]
[Pages 30345-30349]
[FR Doc No: 2012-12355]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-67003; File No. SR-NYSEArca-2012-24]

Self-Regulatory Organizations; NYSE Arca, Inc.; Order Granting
Approval of Proposed Rule Change Relating to Listing and Trading of
AdvisorShares Global Echo ETF Under NYSE Arca Equities Rule 8.600

May 16, 2012.

I. Introduction

    On March 16, 2012, NYSE Arca, Inc. (``Exchange'' or ``NYSE Arca'')
filed with the Securities and Exchange Commission (``Commission''),
pursuant to Section 19(b)(1) of the Securities

Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change to list and trade shares (``Shares'') of the
AdvisorShares Global Echo ETF (``Fund'') under NYSE Arca Equities Rule
8.600. The proposed rule change was published for comment in the
Federal Register on April 5, 2012.\3\ The Commission received no
comments on the proposal. This order grants approval of the proposed
rule change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 66696 (March 30,
2012), 77 FR 20660 (``Notice'').
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II. Description of the Proposed Rule Change

    The Exchange proposes to list and trade the Shares of the Fund
pursuant to NYSE Arca Equities Rule 8.600, which governs the listing
and trading of Managed Fund Shares on the Exchange. 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.\4\ The
investment adviser to the Fund is AdvisorShares Investments, LLC
(``Adviser''). The Fund's sub-advisers (``Sub-Advisers'' and each a
``Sub-Adviser''), which provide day-to-day portfolio management of the
Fund, are First Affirmative Financial Network LLC; Reynders, McVeigh
Capital Management, LLC; Baldwin Brothers Inc.; and Community Capital
Management Inc.
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    \4\ The Trust is registered under the Investment Company Act of
1940 (``1940 Act''). On July 15, 2011, the Trust filed with the
Commission Post-Effective Amendment No. 32 to Form N-1A under the
Securities Act of 1933 and under the 1940 Act relating to the Fund
(File Nos. 333-157876 and 811-22110) (``Registration Statement'').
In addition, the Commission has issued an order granting certain
exemptive relief to the Trust under the 1940 Act. See Investment
Company Act Release No. 29291 (May 28, 2010) (File No. 812-13677)
(``Exemptive Order'').
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    Foreside Fund Services, LLC is the principal underwriter and
distributor of the Fund's Shares. The Bank of New York Mellon
Corporation serves as the administrator (``Administrator''), custodian,
transfer agent, and fund accounting agent for the Fund.
    The Exchange represents that neither the Adviser nor the Sub-
Advisers are affiliated with a broker-dealer.\5\
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    \5\ See Commentary .06 to NYSE Arca Equities Rule 8.600. The
Exchange represents that, in the event (a) the Adviser or the Sub-
Advisers become newly affiliated with a broker-dealer, or (b) any
new adviser or sub-adviser becomes affiliated with a broker-dealer,
it will implement a fire wall with respect to such broker-dealer
regarding access to information concerning the composition and/or
changes to the portfolio, and will be subject to procedures designed
to prevent the use and dissemination of material non-public
information regarding such portfolio.
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Description of the Fund

    The Fund will seek to achieve long-term capital appreciation with
an emphasis on absolute (positive) returns and low sensitivity to
traditional financial market indices, such as the S&P 500 Index, over a
full market cycle. The Fund will seek to achieve its investment
objective by investing under normal market circumstances \6\ at least
80% of its total assets in the following securities: U.S. exchange-
listed equity securities; \7\ American Depository Receipts (``ADRs'');
\8\ fixed income securities (including municipal bonds); and exchange-
traded products (``Underlying ETPs'') \9\ that provide diversified
exposure to various asset classes and market segments.
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    \6\ The term ``under normal market circumstances'' includes, but
is not limited to, the absence of extreme volatility or trading
halts in the equities or fixed income markets or the financial
markets generally; operational issues causing dissemination of
inaccurate market information; or force majeure type events such as
systems failure, natural or man-made disaster, act of God, armed
conflict, act of terrorism, riot or labor disruption or any similar
intervening circumstance.
    \7\ The Fund may invest in equity securities of domestic and
foreign companies, including common stocks, preferred stocks,
warrants to acquire common stock, securities convertible into common
stock, and investments in master limited partnerships.
    \8\ The Fund generally will invest in sponsored ADRs, but it may
invest up to 10% of total assets in unsponsored ADRs.
    \9\ Underlying 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); Managed Fund Shares (as
described in NYSE Arca Equities Rule 8.600); and closed-end funds.
The Underlying ETPs all will be listed and traded in the U.S. on
registered exchanges. The Fund may invest in the securities of
Underlying ETPs registered under the 1940 Act consistent with the
requirements of Section 12(d)(1) of the 1940 Act, or any rule,
regulation, or order of the Commission or interpretation thereof.
The Fund will only make such investments in conformity with the
requirements of Section 817 of the Internal Revenue Code of 1986.
The Underlying ETPs in which the Fund may invest will primarily be
index-based exchange-traded funds that hold substantially all of
their assets in securities representing a specific index.
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    The Fund will be a multi-manager, multi-strategy, broadly
diversified, actively managed exchange-traded fund with a focus on
``Sustainable Investing.'' Sustainable Investing generally refers to an
investment methodology that takes into consideration economic,
environmental, technology, and a variety of social factors when making
investment decisions. Accordingly, the Fund is designed as a core
allocation that proactively seeks Sustainable Investment-themed
investment opportunities that may socially and environmentally benefit
the earth, with a focus on water, clean energy, community development,
innovation, and other sustainable themes across asset classes.
Sustainable Investment themes that the Fund may pursue include, but are
not limited to, the following: economic themes (corporate governance,
risk and crisis management, community investment, energy efficiency,
food, green building); environmental themes (air, water, earth);
technology themes (mobility, renewable energy, technology, and access);
and social themes (human health, such as occupational health and
safety).
    The Fund will seek to achieve its investment objective by
allocating a portion of the Fund's assets to each of the Fund's Sub-
Advisers who will employ their respective investment strategies to
generate absolute returns over a full market cycle. Generally, a full
market cycle consists of a bull market followed by a bear market and a
return to a bull market, or vice versa. Initially, an equal proportion
of the Fund's assets will be allocated to each Sub-Adviser to obtain
the desired exposure to the strategies described below. The allocation
among Sub-Advisers will vary over time in response to a variety of
factors including prevailing market conditions. The Adviser has
designated First Affirmative Financial Network, LLC to allocate and
monitor the allocation of the Fund's assets to each Sub-Adviser to
ensure that the Fund's portfolio maintains the proper investment
exposure to seek to achieve its investment objective. Each Sub-Adviser
will seek to identify and invest either directly or indirectly through
other Underlying ETPs in securities of companies that are making a
positive impact in the world and reflect Sustainable Investment themes,
including corporate sustainability. The Fund's investments in companies
that practice corporate sustainability will provide an additional layer
of diversification because such investments are designed to increase
long-term shareholder value. Companies focused on corporate
sustainability also can provide more attractive risk return profiles
for investors, and can leverage various other Sustainable Investment
themes.
    The Fund may take both long and short positions in any of these
investments. The Fund may invest up to

65% (and intends to always invest at least 15%) of its net assets in
domestic and foreign fixed income securities. The Fund may invest in
securities of any capitalization range and may employ one or more
investment styles (from growth to value) at any time as necessary to
seek to achieve the Fund's investment objective.
    Each Sub-Adviser will determine whether to buy or sell an
investment for the Fund's portfolio by applying one or more of the
following strategies:

Core Strategies

    Fixed Income Strategies. Fixed income strategies consist of
investment strategies that invest primarily in debt securities of
domestic and foreign governments, agencies, instrumentalities,
municipalities and companies of all maturities and qualities (including
``junk bonds'' and up to 15% of total assets in defaulted debt
securities), TIPS (Treasury Inflation Protected Securities), and
Underlying ETPs that provide exposure to fixed income securities or
strategies. 85% or more of the Fund's investments in fixed income
strategies will be in investment grade debt securities. Debt securities
of foreign governments are sometimes referred to as sovereign debt
obligations and may be issued or guaranteed by foreign governments or
their agencies. The Fund may invest up to 10% of total assets in
mortgage-backed securities or other asset-backed securities.\10\ Fixed
income strategies also may involve hedging through the use of
investments in other Underlying ETPs to enhance risk-adjusted return.
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    \10\ This limitation does not apply to securities issued or
guaranteed by federal agencies and/or U.S. government sponsored
instrumentalities, such as the Government National Mortgage
Administration (``GNMA''), the Federal Housing Administration
(``FHA''), the Federal National Mortgage Association (``FNMA''), and
the Federal Home Loan Mortgage Corporation (``FHLMC'').
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    Equity Strategies. Equity strategies will consist of both domestic
and international/emerging markets strategies. The domestic equity
strategies will seek to invest in securities of companies that the Sub-
Advisers believe will outperform other equity securities over the long
term. The international/emerging markets equity strategies will seek to
invest in securities of undervalued international companies through
ADRs that provide the Fund with exposure to businesses outside of the
U.S. and that are attractively priced relative to their economic
fundamentals. Both U.S. and international investments will be selected
using fundamental analysis of factors such as earnings, cash flows, and
valuations based upon them, and will be diversified among the economic
and industry sectors in the S&P 500[supreg] Index, the Morgan Stanley
Capital International (``MSCI'') All Country World Index, MSCI Europe,
Australasia and Far East Index, and MSCI Emerging Markets Index.

Alternative Strategies

    Long/Short and Hedging Strategies. Alternative strategies will
consist of strategies that combine short sales of equities (including
shares of Underlying ETPs) or purchase of shares of inverse Underlying
ETPs. As such, long/short strategies may utilize securities that seek
to track indexes on markets, sectors, strategies, and/or industries to
hedge against potential adverse movements in security prices. The Fund
may implement multiple variations of long/short and hedging strategies.
The basic long/short equity strategies generally will seek to increase
net long exposure in a bull market and decrease net long exposure, by
holding high concentrations in cash or investing 100% short in a bear
market.

Other Investments

    The Fund may enter into repurchase agreements with financial
institutions, which may be deemed to be loans. The Fund will follow
certain procedures designed to minimize the risks inherent in such
agreements. These procedures will include effecting repurchase
transactions only with large, well-capitalized, and well-established
financial institutions whose condition will be continually monitored by
the Sub-Advisers. In addition, the value of the collateral underlying
the repurchase agreement will always be at least equal to the
repurchase price, including any accrued interest earned on the
repurchase agreement. The Fund may enter into reverse repurchase
agreements without limit as part of the Fund's investment strategy.
Reverse repurchase agreements involve sales by the Fund of portfolio
assets concurrently with an agreement by the Fund to repurchase the
same assets at a later date at a fixed price.
    The Fund, or Underlying ETPs in which it invests, may invest in
U.S. government securities and U.S. Treasury zero-coupon bonds. The
Fund, or Underlying ETPs in which it invests, may invest in shares of
real estate investment trusts (``REITs'').
    Diversification. The Fund may not (i) with respect to 75% of its
total assets, purchase securities of any issuer (except securities
issued or guaranteed by the U.S. Government, its agencies or
instrumentalities or shares of investment companies) if, as a result,
more than 5% of its total assets would be invested in the securities of
such issuer; or (ii) acquire more than 10% of the outstanding voting
securities of any one issuer.
    Concentration. The Fund may not invest 25% or more of its total
assets in the securities of one or more issuers conducting their
principal business activities in the same industry or group of
industries. This limitation does not apply to investments in securities
issued or guaranteed by the U.S. Government, its agencies or
instrumentalities, or shares of investment companies. The Fund will not
invest 25% or more of its total assets in any investment company that
so concentrates.
    The Fund's investments will be consistent with the Fund's
investment objective and will not be used to enhance leverage. The Fund
will not purchase illiquid securities, and except for Underlying ETPs
that may hold non-U.S. issues, the Fund will not otherwise invest in
non-U.S. issues. Further, in accordance with the Exemptive Order, the
Fund will not invest in options, futures, or swaps.
    To respond to adverse market, economic, political, or other
conditions, the Fund may invest 100% of its total assets, without
limitation, in high-quality debt securities and money market
instruments either directly or through Underlying ETPs. The Fund may be
invested in these instruments for extended periods, depending on the
Sub-Advisers' assessment of market conditions. These debt securities
and money market instruments include shares of other mutual funds,
commercial paper, certificates of deposit, bankers' acceptances, U.S.
Government securities, repurchase agreements, and bonds that are BBB or
higher. While the Fund is in a defensive position, the opportunity to
achieve its investment objective will be limited.
    Additional information regarding the Trust, Fund, and the Shares,
including but not limited to investment strategies, risks, creation and
redemption procedures, fees, portfolio holdings disclosure policies,
distributions, taxes, Net Asset Value (``NAV''), and availability of
information can be found in the Registration Statement and Notice, as
applicable.\11\
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    \11\ See supra notes 4 and 3, respectively.
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III. Discussion and Commission's Findings

    The Commission has carefully reviewed the proposed rule change and
finds that it is consistent with the

requirements of Section 6 of the Act \12\ and the rules and regulations
thereunder applicable to a national securities exchange.\13\ In
particular, the Commission finds that the proposal is consistent with
Section 6(b)(5) of the Act,\14\ which requires, among other things,
that the Exchange's rules be designed to prevent fraudulent and
manipulative acts and practices, to promote just and equitable
principles of trade, to foster cooperation and coordination with
persons engaged in 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. The Commission notes that the Fund and the Shares must
comply with the requirements of NYSE Arca Equities Rule 8.600 to be
listed and traded on the Exchange.
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    \12\ 15 U.S.C. 78f.
    \13\ In approving this proposed rule change, the Commission has
considered the proposed rule's impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
    \14\ 15 U.S.C. 78f(b)(5).
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    The Commission finds that the proposal to list and trade the Shares
on the Exchange is consistent with Section 11A(a)(1)(C)(iii) of the
Act,\15\ 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. Quotation and last-
sale information for the Shares will be available via the Consolidated
Tape Association (``CTA'') high-speed line. In addition, the Portfolio
Indicative Value (``PIV''), as defined in NYSE Arca Equities Rule
8.600(c)(3), will be widely disseminated by one or more major market
data vendors at least every 15 seconds during the Exchange's Core
Trading Session.\16\ On each business day, before commencement of
trading in Shares in the Core Trading Session on the Exchange, the Fund
will disclose on its Web site the Disclosed Portfolio, as defined in
NYSE Arca Equities Rule 8.600(c)(2), that will form the basis for the
Fund's calculation of the NAV at the end of the business day.\17\ The
NAV per Share for the Fund will be calculated by the Administrator and
determined as of the close of the regular trading session on the New
York Stock Exchange (``NYSE'') (ordinarily 4:00 p.m., E.T.) on each day
that the NYSE is open. In addition, information regarding market price
and trading volume of the Shares will be continually available on a
real-time basis throughout the day on brokers' computer screens and
other electronic services, and the previous day's closing price and
trading volume information for the Shares will be published daily in
the financial section of newspapers. The Web site for the Fund will
include a form of the prospectus for the Fund that may be downloaded,
additional data relating to NAV, and other applicable quantitative
information, updated on a daily basis. Moreover, a basket composition
file, which includes the security names and share quantities required
to be delivered in exchange for the Shares, together with estimates and
actual cash components, will be publicly disseminated daily prior to
the opening of the NYSE via the National Securities Clearing
Corporation. Price information for the ADRs, debt and equity securities
held by the Fund, including foreign equity securities, and Underlying
ETPs will be available through major market data vendors or securities
exchanges listing and trading such securities.
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    \15\ 15 U.S.C. 78k-1(a)(1)(C)(iii).
    \16\ According to the Exchange, several major market data
vendors display and/or make widely available PIVs published on the
CTA or other data feeds.
    \17\ On a daily basis, the Adviser will disclose for each
portfolio security or other financial instrument of the Fund the
following information: ticker symbol (if applicable), name of
security or financial instrument, number of shares or dollar value
of financial instruments held in the portfolio, and percentage
weighting of the security or financial instrument in the portfolio.
The Web site information will be publicly available at no charge.
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    The Commission further believes that the proposal to list and trade
the Shares is reasonably designed to promote fair disclosure of
information that may be necessary to price the Shares appropriately and
to prevent trading when a reasonable degree of transparency cannot be
assured. The Commission notes that the Exchange will obtain a
representation from the issuer of the Shares that the NAV per Share
will be calculated daily and that the NAV and the Disclosed Portfolio
will be made available to all market participants at the same time.\18\
In addition, the Exchange will halt trading in the Shares under the
specific circumstances set forth in NYSE Arca Equities Rule
8.600(d)(2)(D), and may halt trading in the Shares if trading is not
occurring in the securities and/or the financial instruments comprising
the Disclosed Portfolio of the Fund, or if other unusual conditions or
circumstances detrimental to the maintenance of a fair and orderly
market are present.\19\ The Exchange will consider the suspension of
trading in or removal from listing of the Shares if the PIV is no
longer calculated or available or the Disclosed Portfolio is not made
available to all market participants at the same time.\20\ Neither the
Adviser nor the Sub-Advisers are affiliated with a broker-dealer.\21\
Further, the Commission notes that the Reporting Authority that
provides the Disclosed Portfolio must implement and maintain, or be
subject to, procedures designed to prevent the use and dissemination of
material non-public information regarding the actual components of the
portfolio.\22\ The Exchange states that it has a general policy
prohibiting the distribution of material, non-public information by its
employees. The Commission also notes that the Exchange may obtain
information via the Intermarket Surveillance Group (``ISG'') from other
exchanges that are members of ISG or with which the Exchange has in
place a comprehensive surveillance sharing agreement. All of the equity
securities, Underlying ETPs, and sponsored ADRs held by the Fund will
be listed on securities exchanges, all of which are members of ISG.
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    \18\ See NYSE Arca Equities Rule 8.600(d)(1)(B).
    \19\ With respect to trading halts, the Exchange may consider
all relevant factors in exercising its discretion to halt or suspend
trading in the Shares of the Fund. Trading in Shares of the Fund
will be halted if the circuit breaker parameters in NYSE Arca
Equities Rule 7.12 have been reached. Trading also may be halted
because of market conditions or for reasons that, in the view of the
Exchange, make trading in the Shares inadvisable.
    \20\ See NYSE Arca Equities Rule 8.600(d)(2)(C)(ii).
    \21\ See supra note 5 and accompanying text. The Commission
notes that an investment adviser to an open-end fund is required to
be registered under the Investment Advisers Act of 1940 (``Advisers
Act''). As a result, the Adviser and Sub-Advisers and their related
personnel are subject to the provisions of Rule 204A-1 under the
Advisers Act relating to codes of ethics. This Rule requires
investment advisers to adopt a code of ethics that reflects the
fiduciary nature of the relationship to clients as well as
compliance with other applicable securities laws. Accordingly,
procedures designed to prevent the communication and misuse of non-
public information by an investment adviser must be consistent with
Rule 204A-1 under the Advisers Act. In addition, Rule 206(4)-7 under
the Advisers Act makes it unlawful for an investment adviser to
provide investment advice to clients unless such investment adviser
has (i) adopted and implemented written policies and procedures
reasonably designed to prevent violation, by the investment adviser
and its supervised persons, of the Advisers Act and the Commission
rules adopted thereunder; (ii) implemented, at a minimum, an annual
review regarding the adequacy of the policies and procedures
established pursuant to subparagraph (i) above and the effectiveness
of their implementation; and (iii) designated an individual (who is
a supervised person) responsible for administering the policies and
procedures adopted under subparagraph (i) above.
    \22\ See NYSE Arca Equities Rule 8.600(d)(2)(B)(ii).
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    The Exchange further represents that the Shares are deemed to be
equity securities, thus rendering trading in the

Shares subject to the Exchange's existing rules governing the trading
of equity securities. In support of this proposal, the Exchange has
made representations, including:
    (1) The Shares will conform to the initial and continued listing
criteria under NYSE Arca Equities Rule 8.600.
    (2) The Exchange has appropriate rules to facilitate transactions
in the Shares during all trading sessions.
    (3) The Exchange's surveillance procedures applicable to derivative
products, which include Managed Fund Shares, are adequate to properly
monitor Exchange trading of the Shares in all trading sessions and to
deter and detect violations of Exchange rules and applicable federal
securities laws.
    (4) Prior to the commencement of trading, the Exchange will inform
its Equity Trading Permit Holders in an Information Bulletin of the
special characteristics and risks associated with trading the Shares.
Specifically, the Information Bulletin will discuss the following: (a)
The procedures for purchases and redemptions of Shares in Creation Unit
aggregations (and that Shares are not individually redeemable); (b)
NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence
on its Equity Trading Permit Holders to learn the essential facts
relating to every customer prior to trading the Shares; (c) the risks
involved in trading the Shares during the Opening and Late Trading
Sessions when an updated PIV will not be calculated or publicly
disseminated; (d) how information regarding the PIV is disseminated;
(e) the requirement that Equity Trading Permit Holders deliver a
prospectus to investors purchasing newly issued Shares prior to or
concurrently with the confirmation of a transaction; and (f) trading
information.
    (5) For initial and/or continued listing, the Fund will be in
compliance with Rule 10A-3 under the Act,\23\ as provided by NYSE Arca
Equities Rule 5.3.
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    \23\ See 17 CFR 240.10A-3.
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    (6) The Fund will not: (a) Purchase illiquid securities; (b) in
accordance with the Exemptive Order, invest in options, futures, or
swaps; or (c) except for Underlying ETPs that may hold non-U.S. issues,
otherwise invest in non-U.S. issues.
    (7) The Fund's investments will be consistent with the Fund's
investment objective and will not be used to enhance leverage.
    (8) A minimum of 100,000 Shares of the Fund will be outstanding at
the commencement of trading on the Exchange.
    This approval order is based on all of the Exchange's
representations.
    For the foregoing reasons, the Commission finds that the proposed
rule change is consistent with Section 6(b)(5) of the Act \24\ and the
rules and regulations thereunder applicable to a national securities
exchange.
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    \24\ 15 U.S.C. 78f(b)(5).
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IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\25\ that the proposed rule change (SR-NYSEArca-2012-24) be, and it
hereby is, approved.
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    \25\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\26\
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    \26\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-12355 Filed 5-21-12; 8:45 am]
BILLING CODE 8011-01-P