[Federal Register Volume 82, Number 53 (Tuesday, March 21, 2017)]
[Notices]
[Pages 14560-14563]
[FR Doc No: 2017-05506]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-80240; File No. 4-709]

Program for Allocation of Regulatory Responsibilities Pursuant to
Rule 17d-2; Notice of Filing of Proposed Amended Plan for the
Allocation of Regulatory Responsibilities Between the Financial
Industry Regulatory Authority, Inc. and BOX Options Exchange LLC

March 14, 2017.
    Pursuant to Section 17(d) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 17d-2 thereunder,\2\ notice is hereby given that
on January 12, 2017, BOX Options Exchange LLC (``BOX'') and the
Financial Industry Regulatory Authority, Inc. (``FINRA'') (together,
the ``Parties'') filed with the Securities and Exchange Commission
(``Commission'' or ``SEC'') a plan for the allocation of regulatory
responsibilities, dated March 2, 2017 (``17d-2 Plan'' or the ``Plan'').
The Commission is publishing this notice to solicit comments on the
17d-2 Plan from interested persons.
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    \1\ 15 U.S.C. 78q(d).
    \2\ 17 CFR 240.17d-2.
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I. Introduction

    Section 19(g)(1) of the Act,\3\ among other things, requires every
self-regulatory organization (``SRO'') registered as either a national
securities exchange or national securities association to examine for,
and enforce compliance by, its members and persons associated with its
members with the Act, the rules and regulations thereunder, and the
SRO's own rules, unless the SRO is relieved of this responsibility
pursuant to Section 17(d) or Section 19(g)(2) of the Act.\4\ Without
this relief, the statutory obligation of each individual SRO could
result in a pattern of multiple examinations of broker-dealers that
maintain memberships in more than one SRO (``common members''). Such
regulatory duplication would add unnecessary expenses for common
members and their SROs.
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    \3\ 15 U.S.C. 78s(g)(1).
    \4\ 15 U.S.C. 78q(d) and 15 U.S.C. 78s(g)(2), respectively.
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    Section 17(d)(1) of the Act \5\ was intended, in part, to eliminate
unnecessary multiple examinations and regulatory duplication.\6\ With
respect to a common member, Section 17(d)(1) authorizes the Commission,
by rule or order, to relieve an SRO of the responsibility to receive
regulatory reports, to examine for and enforce compliance with
applicable statutes, rules, and regulations, or to perform other
specified regulatory functions.
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    \5\ 15 U.S.C. 78q(d)(1).
    \6\ See Securities Act Amendments of 1975, Report of the Senate
Committee on Banking, Housing, and Urban Affairs to Accompany S.
249, S. Rep. No. 94-75, 94th Cong., 1st Session 32 (1975).
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    To implement Section 17(d)(1), the Commission adopted two rules:
Rule 17d-1 and Rule 17d-2 under the Act.\7\ Rule 17d-1 authorizes the
Commission to name a single SRO as the designated examining authority
(``DEA'') to examine common members for compliance with the financial
responsibility requirements imposed by the Act, or by Commission or SRO
rules.\8\ When an SRO has been named as a common member's DEA, all
other SROs to which the common member belongs are relieved of the
responsibility to examine the firm for compliance with the applicable
financial responsibility rules. On its face, Rule 17d-1 deals only with
an SRO's obligations to enforce member compliance with financial
responsibility requirements. Rule 17d-1 does not relieve an SRO from
its obligation to examine a common member for compliance with its own
rules and provisions of the federal securities laws governing matters
other than financial responsibility, including sales practices and
trading activities and practices.
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    \7\ 17 CFR 240.17d-1 and 17 CFR 240.17d-2, respectively.
    \8\ See Securities Exchange Act Release No. 12352 (April 20,
1976), 41 FR 18808 (May 7, 1976).
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    To address regulatory duplication in these and other areas, the
Commission adopted Rule 17d-2 under the Act.\9\ Rule 17d-2 permits SROs
to propose joint plans for the allocation of regulatory
responsibilities with respect to their common members. Under paragraph
(c) of Rule 17d-2, the Commission may declare such a plan effective if,
after providing for appropriate notice and comment, it determines that
the plan is necessary or appropriate in the public interest and for the
protection of investors; to foster cooperation and coordination among
the SROs; to remove impediments to, and foster the development of, a
national market system and a national clearance and settlement system;
and is in conformity with the factors set forth in Section 17(d) of the
Act. Commission approval of a plan filed pursuant to Rule 17d-2
relieves an SRO of those regulatory responsibilities allocated by the
plan to another SRO.
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    \9\ See Securities Exchange Act Release No. 12935 (October 28,
1976), 41 FR 49091 (November 8, 1976).
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II. The Plan

    The proposed 17d-2 Plan is intended to reduce regulatory
duplication for firms that are common members of both BOX and
FINRA.\10\ Pursuant to the proposed 17d-2 Plan, FINRA would assume
certain examination and enforcement responsibilities for common members
with respect to certain applicable laws, rules, and regulations.
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    \10\ The proposed 17d-2 Plan refers to these common members as
``Dual Members.'' See Paragraph 1(c) of the proposed 17d-2 Plan.
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    The text of the Plan delineates the proposed regulatory
responsibilities with respect to the Parties. Included in the proposed
Plan is an exhibit (the ``BOX Options Exchange LLC Rules Certification
for 17d-2 Agreement with FINRA,'' referred to herein as the
``Certification'') that lists every BOX rule for which FINRA would bear
responsibility under the Plan for overseeing and enforcing with respect
to BOX members that are also members of FINRA and the associated
persons therewith (``Dual Members'').
    Specifically, under the 17d-2 Plan, FINRA would assume examination
and enforcement responsibility relating to compliance by Dual Members
with the rules of BOX that are substantially similar to the applicable
rules of FINRA \11\ delineated in the Certification (``Common Rules'').
In the event that a Dual Member is the subject of an investigation
relating to a transaction on BOX, the plan acknowledges that BOX may,
in its discretion, exercise concurrent jurisdiction and responsibility
for such matter.\12\
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    \11\ See paragraph 1(b) of the proposed 17d-2 Plan (defining
Common Rules). See also paragraph 1(f) of the proposed 17d-2 Plan
(defining Regulatory Responsibilities). Paragraph 2 of the Plan
provides that annually, or more frequently as required by changes in
either BOX rules or FINRA rules, the parties shall review and
update, if necessary, the list of Common Rules. Further, paragraph 3
of the Plan provides that BOX shall furnish FINRA with a list of
Dual Members, and shall update the list no less frequently than once
each calendar quarter.
    \12\ See paragraph 6 of the proposed 17d-2 Plan.
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    Under the Plan, BOX would retain full responsibility for
surveillance, examination, investigation, and enforcement with respect
to trading activities or practices involving BOX's own marketplace,
including, without limitation, registration pursuant to its applicable
rules of associated persons (i.e., registration rules that are not
Common Rules); its duties as a DEA pursuant to Rule 17d-1 under the
Act; and any BOX rules that are not Common Rules.\13\
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    \13\ See paragraph 2 of the proposed 17d-2 Plan.
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    The text of the proposed 17d-2 Plan is as follows:

AGREEMENT BETWEEN FINANCIAL INDUSTRY REGULATORY AUTHORITY, INC. AND BOX
OPTIONS EXCHANGE LLC PURSUANT TO RULE 17d-2 UNDER THE SECURITIES
EXCHANGE ACT OF 1934

    This Agreement, by and between the Financial Industry Regulatory
Authority, Inc. (``FINRA'') and BOX Options Exchange LLC (``BOX''),
is made this 2nd day of March, 2017 (the ``Agreement''), pursuant to
Section 17(d) of the Securities Exchange Act of 1934 (the ``Exchange
Act'') and Rule 17d-2 thereunder, which permits agreements between
self-regulatory organizations to allocate regulatory responsibility
to eliminate regulatory duplication. FINRA and BOX may be referred
to individually as a ``party'' and together as the ``parties.''
    Whereas, FINRA and BOX desire to reduce duplication in the
examination of their Dual Members (as defined herein) and in the
filing and processing of certain registration and membership
records; and
    Whereas, FINRA and BOX desire to execute an agreement covering
such subjects pursuant to the provisions of Rule 17d-2 under the
Exchange Act and to file such agreement with the Securities and
Exchange Commission (the ``SEC'' or ``Commission'') for its
approval.
    Now, Therefore, in consideration of the mutual covenants
contained hereinafter, FINRA and BOX hereby agree as follows:
    1. Definitions. Unless otherwise defined in this Agreement or
the context otherwise requires, the terms used in this Agreement
shall have the same meaning as they have under the Exchange Act and
the rules and regulations thereunder. As used in this Agreement, the
following terms shall have the following meanings:
    (a) ``BOX Rules'' or ``FINRA Rules'' shall mean: (i) the rules
of BOX, or (ii) the rules of FINRA, respectively, as the rules of an
exchange or association are defined in Exchange Act Section
3(a)(27).
    (b) ``Common Rules'' shall mean BOX Rules that are substantially
similar to the applicable FINRA Rules and certain provisions of the
Exchange Act and SEC rules set forth on Exhibit 1 in that
examination for compliance with such provisions and rules would not
require FINRA to develop one or more new examination standards,
modules, procedures, or criteria in order to analyze the application
of the provision or rule, or a Dual Member's activity, conduct, or
output in relation to such provision or rule. Common Rules shall not
include any provisions regarding (i) notice, reporting or any other
filings made directly to or from BOX, (ii) compliance with other
referenced BOX Rules that are not Common Rules, (iii) exercise of
discretion including, but not limited to exercise of exemptive
authority, by BOX, (iv) prior written approval of BOX and (v)
payment of fees or fines to BOX.
    (c) ``Dual Members'' shall mean those BOX members that are also
members of FINRA and the associated persons therewith.
    (d) ``Effective Date'' shall be the date this Agreement is
approved by the Commission.
    (e) ``Enforcement Responsibilities'' shall mean the conduct of
appropriate proceedings, in accordance with FINRA's Code of
Procedure (the Rule 9000 Series) and other applicable FINRA
procedural rules, to determine whether violations of Common Rules
have occurred, and if such violations are deemed to have occurred,
the imposition of appropriate sanctions as specified under FINRA's
Code of Procedure and sanctions guidelines.
    (f) ``Regulatory Responsibilities'' shall mean the examination
responsibilities and Enforcement Responsibilities relating to
compliance by the Dual Members with the Common Rules and the
provisions of the Exchange Act and the rules and regulations
thereunder, and other applicable laws, rules and regulations, each
as set forth on Exhibit 1 attached hereto.
    2. Regulatory and Enforcement Responsibilities. FINRA shall
assume Regulatory Responsibilities and Enforcement Responsibilities
for Dual Members. Attached as Exhibit 1 to this Agreement and made
part hereof, BOX furnished FINRA with a current list of Common Rules
and certified to FINRA that such rules that are BOX Rules are
substantially similar to the corresponding FINRA Rules (the
``Certification''). FINRA hereby agrees that the rules listed in the
Certification are Common Rules as defined in this Agreement. Each
year following the Effective Date of this Agreement, or more
frequently if required by changes in either the rules of BOX or
FINRA, BOX shall submit an updated list of Common Rules to FINRA for
review which shall add BOX Rules not included in the current list of
Common Rules that qualify as Common Rules as defined in this
Agreement; delete BOX Rules included in the current list of Common
Rules that no longer qualify as Common Rules as defined in this
Agreement; and confirm that the remaining rules on the current list
of Common Rules continue to be BOX Rules that qualify as Common
Rules as defined in this Agreement. Within 30 days of receipt of
such updated list, FINRA shall confirm in writing whether the rules
listed in any updated list are Common Rules as defined in this
Agreement. Notwithstanding anything herein to the contrary, it is
explicitly understood that the term ``Regulatory Responsibilities''
does not include, and BOX shall retain full responsibility for
(unless otherwise addressed by separate agreement or rule)
(collectively, the ``Retained Responsibilities'') the following:
    (a) surveillance, examination, investigation and enforcement
with respect to trading activities or practices involving BOX's own
marketplace;
    (b) registration pursuant to its applicable rules of associated
persons (i.e., registration rules that are not Common Rules);
    (c) discharge of its duties and obligations as a Designated
Examining Authority pursuant to Rule 17d-1 under the Exchange Act;
and
    (d) any BOX Rules that are not Common Rules as provided in
paragraph 6.
    3. Dual Members. Prior to the Effective Date, BOX shall furnish
FINRA with a current list of Dual Members, which shall be updated no
less frequently than once each quarter.
    4. No Charge. There shall be no charge to BOX by FINRA for
performing the Regulatory Responsibilities and Enforcement
Responsibilities under this Agreement except as hereinafter
provided. FINRA shall provide BOX with ninety (90) days advance
written notice in the event FINRA decides to impose any charges to
BOX for performing the Regulatory Responsibilities under this
Agreement. If FINRA determines to impose a charge, BOX shall have
the right at the time of the imposition of such charge to terminate
this Agreement; provided, however, that FINRA's Regulatory
Responsibilities under this Agreement shall continue until the
Commission approves the termination of this Agreement.
    5. Applicability of Certain Laws, Rules, Regulations or Orders.
Notwithstanding any provision hereof, this Agreement shall be
subject to any statute, or any rule or order of the SEC. To the
extent such statute, rule or order is inconsistent with one or more
provisions of this Agreement, the statute, rule or order shall
supersede the provision(s) hereof to the extent necessary to be
properly effectuated and the provision(s) hereof in that respect
shall be null and void.
    6. Notification of Violations. In the event that FINRA becomes
aware of apparent violations of any BOX Rules, which are not listed
as Common Rules, discovered pursuant to the performance of the
Regulatory Responsibilities assumed hereunder, FINRA shall notify
BOX of those apparent violations for such response as BOX deems
appropriate. In the event that BOX becomes aware of apparent
violations of any Common Rules, discovered pursuant to the
performance of the Retained Responsibilities, BOX shall notify FINRA
of those apparent violations and such matters shall be handled by
FINRA as provided in this Agreement. Apparent violations of Common
Rules shall be processed by, and enforcement proceedings in respect
thereto shall be conducted by FINRA as provided hereinbefore;
provided, however, that in the event a Dual Member is the subject of
an investigation relating to a transaction on BOX, BOX may in its
discretion assume concurrent jurisdiction and responsibility. Each
party agrees to make available promptly all files, records and
witnesses necessary to assist the other in its investigation or
proceedings.
    7. Continued Assistance.
    (a) FINRA shall make available to BOX all information obtained
by FINRA in the performance by it of the Regulatory Responsibilities
hereunder with respect to the Dual Members subject to this
Agreement. In particular, and not in limitation of the foregoing,
FINRA shall furnish BOX any information it obtains about Dual
Members which reflects adversely on their financial condition. BOX
shall make available to FINRA any information coming to its
attention that reflects adversely on the financial condition of Dual
Members or indicates possible violations of applicable laws, rules
or regulations by such firms.
    (b) The parties agree that documents or information shared shall
be held in confidence, and used only for the purposes of carrying
out their respective regulatory obligations. Neither party shall
assert regulatory or other privileges as against the other with
respect to documents or information that is required to be shared
pursuant to this Agreement.

    (c) The sharing of documents or information between the parties
pursuant to this Agreement shall not be deemed a waiver as against
third parties of regulatory or other privileges relating to the
discovery of documents or information.
    8. Statutory Disqualifications. When FINRA becomes aware of a
statutory disqualification as defined in the Exchange Act with
respect to a Dual Member, FINRA shall determine pursuant to Sections
15A(g) and/or Section 6(c) of the Exchange Act the acceptability or
continued applicability of the person to whom such disqualification
applies and keep BOX advised of its actions in this regard for such
subsequent proceedings as BOX may initiate.
    9. Customer Complaints. BOX shall forward to FINRA copies of all
customer complaints involving Dual Members received by BOX relating
to FINRA's Regulatory Responsibilities under this Agreement. It
shall be FINRA's responsibility to review and take appropriate
action in respect to such complaints.
    10. Advertising. FINRA shall assume Regulatory Responsibility,
to the extent applicable, to review the advertising of Dual Members
subject to the Agreement, provided that such material is filed with
FINRA in accordance with FINRA's filing procedures and is
accompanied with any applicable filing fees set forth in FINRA
Rules.
    11. No Restrictions on Regulatory Action. Nothing contained in
this Agreement shall restrict or in any way encumber the right of
either party to conduct its own independent or concurrent
investigation, examination or enforcement proceeding of or against
Dual Members, as either party, in its sole discretion, shall deem
appropriate or necessary.
    12. Termination. This Agreement may be terminated by BOX or
FINRA at any time upon the approval of the Commission after one (1)
year's written notice to the other party (or such shorter time as
agreed by the parties), except as provided in paragraph 4.
    13. Arbitration. In the event of a dispute between the parties
as to the operation of this Agreement, BOX and FINRA hereby agree
that any such dispute shall be settled by arbitration in Washington,
DC in accordance with the rules of the American Arbitration
Association then in effect, or such other procedures as the parties
may mutually agree upon. Judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction. Each
party acknowledges that the timely and complete performance of its
obligations pursuant to this Agreement is critical to the business
and operations of the other party. In the event of a dispute between
the parties, the parties shall continue to perform their respective
obligations under this Agreement in good faith during the resolution
of such dispute unless and until this Agreement is terminated in
accordance with its provisions. Nothing in this Section 13 shall
interfere with a party's right to terminate this Agreement as set
forth herein.
    14. Separate Agreement. This Agreement is wholly separate from
the following agreement: (1) The multiparty Agreement made pursuant
to Rule 17d-2 of the Exchange Act among BATS Exchange, Inc., BOX
Options Exchange, LLC, Chicago Board Options Exchange, Incorporated,
C2 Options Exchange, Incorporated, the International Securities
Exchange, LLC, FINRA, Miami International Securities Exchange, LLC,
NYSE MKT LLC, the NYSE Arca, Inc., The NASDAQ Stock Market LLC,
NASDAQ OMX BX, Inc., NASDAQ OMX PHLX LLC, ISE Gemini, LLC, EDGX
Exchange, Inc., ISE Mercury, LLC and MIAX PEARL, LLC involving the
allocation of regulatory responsibilities with respect to common
members for compliance with common rules relating to the conduct by
broker-dealers of accounts for listed options or index warrants
entered as approved by the SEC on February 2, 2017, and as may be
amended from time to time; and (2) the multiparty Agreement made
pursuant to Rule 17d-2 of the Exchange Act among NYSE MKT LLC, BATS
Exchange, Inc., EDGX Exchange, Inc., BOX Options Exchange LLC,
NASDAQ OMX BX, Inc., C2 Options Exchange, Incorporated, Chicago
Board Options Exchange, Incorporated, International Securities
Exchange LLC, ISE Gemini, LLC, ISE Mercury, LLC, FINRA, NYSE Arca,
Inc., The NASDAQ Stock Market LLC, NASDAQ OMX PHLX, Inc., Miami
International Securities Exchange, LLC and MIAX PEARL, LLC involving
the allocation of regulatory responsibilities with respect to SRO
market surveillance of common members activities with regard to
certain common rules relating to listed options approved by the SEC
on February 2, 2017, and as may be amended from time to time.
    15. Notification of Members. BOX and FINRA shall notify Dual
Members of this Agreement after the Effective Date by means of a
uniform joint notice.
    16. Amendment. This Agreement may be amended in writing provided
that the changes are approved by both parties. All such amendments
must be filed with and approved by the Commission before they become
effective.
    17. Limitation of Liability. Neither FINRA nor BOX nor any of
their respective directors, governors, officers or employees shall
be liable to the other party to this Agreement for any liability,
loss or damage resulting from or claimed to have resulted from any
delays, inaccuracies, errors or omissions with respect to the
provision of Regulatory Responsibilities as provided hereby or for
the failure to provide any such responsibility, except with respect
to such liability, loss or damages as shall have been suffered by
one or the other of FINRA or BOX and caused by the willful
misconduct of the other party or their respective directors,
governors, officers or employees. No warranties, express or implied,
are made by FINRA or BOX with respect to any of the responsibilities
to be performed by each of them hereunder.
    18. Relief from Responsibility. Pursuant to Sections 17(d)(1)(A)
and 19(g) of the Exchange Act and Rule 17d-2 thereunder, FINRA and
BOX join in requesting the Commission, upon its approval of this
Agreement or any part thereof, to relieve BOX of any and all
responsibilities with respect to matters allocated to FINRA pursuant
to this Agreement; provided, however, that this Agreement shall not
be effective until the Effective Date.
    19. Severability. Any term or provision of this Agreement that
is invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the
remaining terms and provisions of this Agreement or affecting the
validity or enforceability of any of the terms or provisions of this
Agreement in any other jurisdiction.
    20. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and such
counterparts together shall constitute one and the same instrument.
    In Witness Whereof, each party has executed or caused this
Agreement to be executed on its behalf by a duly authorized officer
as of the date first written above.

BOX OPTIONS EXCHANGE LLC.

By---------------------------------------------------------------------
Name
Title

FINANCIAL INDUSTRY REGULATORY AUTHORITY, INC.

By---------------------------------------------------------------------
Name
Title

EXHIBIT 1

BOX Options Exchange LLC Rules Certification for 17d-2 Agreement With
FINRA

    BOX Options Exchange LLC (``BOX'') hereby certifies that the
requirements contained in the rules listed below are identical to,
or substantially similar to, the comparable FINRA (NASD) Rule,
Exchange Act provision or SEC rule identified (``Common Rules'').

------------------------------------------------------------------------
                                           FINRA (NASD) RULES, EXCHANGE
               BOX RULES                    ACT PROVISION OR SEC RULE
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BOX Rule 3210 (a) and (b)..............  FINRA Rule 2251 Processing and
                                          Forwarding of Proxy and Other
                                          Issuer-Related Materials.

BOX Rule 10070 Anti-Money Laundering     FINRA Rule 3310 Anti-Money
 Compliance Program .                    Laundering Compliance Program.
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* FINRA shall not have Regulatory Responsibilities for these rules as
  they pertain to violations of insider trading activities, which is
  covered by a separate 17d-2 Agreement by and among BATS BZX Exchange,
  Inc., BATS BYX Y-Exchange, Inc., Chicago Stock Exchange, Inc., BATS
  EDGA Exchange, Inc., BATS EDGX Exchange, Inc., Financial Industry
  Regulatory Authority, Inc., NASDAQ BX, Inc., NASDAQ PHLX LLC, the
  NASDAQ Stock Market LLC, National Stock Exchange, Inc., New York Stock
  Exchange LLC, NYSE MKT LLC, and NYSE Arca Inc., effective August 3,
  2016, as may be amended from time to time.
# FINRA shall not have any Regulatory Responsibilities regarding (i)
  notice, reporting or any other filings made directly to or from BOX,
  (ii) compliance with other referenced BOX Rules that are not Common
  Rules, (iii) exercise of discretion including, but not limited to
  exercise of exemptive authority, by BOX, (iv) prior written approval
  of BOX and (v) payment of fees or fines to BOX.

IV. Solicitation of Comments

    In order to assist the Commission in determining whether to approve
the proposed 17d-2 Plan and to relieve BOX of the responsibilities
which would be assigned to FINRA, interested persons are invited to
submit written data, views, and arguments concerning the foregoing.
Comments may be submitted by any of the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/other.shtml); or
     Send an e-mail to<EMAIL_ADDRESS>Please include
File Number 4-709 on the subject line.

Paper Comments

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

All submissions should refer to File Number 4-709. 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/other.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 Web site viewing and printing in
the Commission's Public Reference Room, 100 F Street NE., Washington,
DC 20549, on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the plan also will be available for inspection and
copying at the principal offices of BOX and FINRA. 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 4-709 and should be submitted
on or before April 5, 2017.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\14\
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    \14\ 17 CFR 200.30-3(a)(34).
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Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017-05506 Filed 3-20-17; 8:45 am]
 BILLING CODE 8011-01-P


[Federal Register Volume 77, Number 204 (Monday, October 22, 2012)]
[Rules and Regulations]
[Pages 64425-64427]
[FR Doc No: 2012-25808]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2011-0883; FRL-9701-5]

Approval and Promulgation of Implementation Plans; Alaska:
Infrastructure Requirements for the 1997 8-Hour Ozone National Ambient
Air Quality Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving the State Implementation Plan (SIP)
submittals from the State of Alaska to demonstrate that the SIP meets
the requirements of section 110(a)(1) and (2) of the Clean Air Act
(CAA) for the National Ambient Air Quality Standards (NAAQS)
promulgated for ozone on July 18, 1997. EPA finds that the Alaska SIP
meets the following 110(a)(2) infrastructure elements for the 1997 8-
hour ozone NAAQS: (A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K),
(L), and (M). EPA is concurrently approving a number of revisions to
the Alaska SIP as a necessary condition to approving the 110(a)(2)
infrastructure elements for ozone. Specifically, EPA is approving
revisions submitted by Alaska to update the SIP to include the ozone
standard at an 8-hour averaging period, the associated federal method
for measuring and monitoring ozone in ambient air, a general definition
of ozone, federal Prevention of Significant Deterioration (PSD) program
changes to regulate NOx as a precursor to ozone, and provisions to
satisfy CAA section 128 conflict of interest disclosure requirements.

DATES: This action is effective on November 21, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R10-OAR-2011-0883. All documents in the docket are listed on
the www.regulations.gov Web site. Although listed in the index, some
information may not be publicly available, i.e., Confidential Business
Information or other information whose disclosure is restricted by
statute. Certain other material, such as copyrighted material, is not
placed on the Internet and will be publicly available only in hard copy
form. Publicly available docket materials are available either
electronically through www.regulations.gov or in hard copy at EPA
Region 10, Office of Air, Waste and Toxics (AWT-107), 1200 Sixth
Avenue, Suite 900, Seattle, WA 98101. EPA requests that you contact the
person listed in the FOR FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional Office's official hours of
business are Monday through Friday, 8:30 to 4:30, excluding Federal
holidays.

FOR FURTHER INFORMATION CONTACT: Kristin Hall at telephone number:
(206) 553-6357, email address<EMAIL_ADDRESS>or the above EPA,
Region 10 address.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we'',
``us'' or ``our'' is used, we mean EPA. Information is organized as
follows:

Table of Contents

I. Background
II. Scope of Action
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background

    On July 18, 1997, EPA promulgated a new NAAQS for ozone. EPA
revised the ozone NAAQS to provide an 8-hour averaging period which
replaced the previous 1-hour averaging period, and the level of the
NAAQS was changed from 0.12 parts per million (ppm) to 0.08 ppm (62 FR
38856). The CAA requires SIPs meeting the requirements of sections
110(a)(1) and (2) be submitted by states within 3 years after
promulgation of a new or revised standard. Sections 110(a)(1) and (2)
require states to address basic SIP requirements, including emissions
inventories, monitoring, and modeling to assure attainment and
maintenance of the standards, so-called ``infrastructure''
requirements. To help states meet this statutory requirement for the
1997 8-hour ozone NAAQS, EPA issued guidance to address infrastructure
SIP elements under section 110(a)(1) and (2).\1\ In the case of the
1997 8-hour ozone NAAQS, states typically have met the basic program
elements required in section 110(a)(2) through earlier SIP submissions
in connection with previous ozone standards. The State of Alaska
submitted a SIP to EPA on March 2, 2012, which, among other things,
certified that Alaska's SIP meets the infrastructure obligations for
the 1997 8-hour ozone NAAQS. The certification included an analysis of
Alaska's SIP as it relates to each section of the infrastructure
requirements with regard to the 1997 8-hour ozone NAAQS. The State also
submitted as part of the March 2, 2012, SIP submittal, existing state
regulatory provisions to be approved into the Alaska SIP for purposes
of meeting CAA section 128 conflict of interest disclosure
requirements. The state requested parallel processing of the March 2,
2012, submittal. Under this procedure, the state submits the SIP
revision to EPA before final adoption by the state. EPA reviews this
proposed state action and prepares a notice of proposed rulemaking. EPA
publishes its notice of proposed rulemaking in the Federal Register and
solicits public comment in approximately the same time frame during
which the state is completing its rulemaking action.
---------------------------------------------------------------------------

    \1\ William T. Harnett, Director, Air Quality Policy Division,
Office of Air Quality Planning and Standards. ``Guidance on SIP
Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-
hour Ozone and PM2.5 National Ambient Air Quality
Standards.'' Memorandum to EPA Air Division Directors, Regions I-X,
October 2, 2007.
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    On March 22, 2012, EPA published a notice of proposed rulemaking
(NPR) for the State of Alaska to act on the State's infrastructure SIP
for the 1997 8-hour ozone NAAQS (77 FR 16785). Specifically in the NPR,
EPA proposed to approve Alaska's SIP as meeting the requirements for
the following 110(a)(2) infrastructure elements for the 1997 8-hour
ozone NAAQS: (A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L),
and (M). EPA also proposed to concurrently approve a number of
revisions to the Alaska SIP as a necessary condition to approving the
110(a)(2) infrastructure elements for ozone. Specifically, EPA proposed
to approve revisions submitted by Alaska on April 9, 2010, and November
19, 2010, to update the SIP to include the ozone standard at an 8-hour
averaging period, the associated federal method for measuring and
monitoring ozone in ambient air, a general definition of ozone, and
federal Prevention of Significant Deterioration (PSD) program changes
to regulate NOX as a precursor to ozone. EPA also proposed
to concurrently approve the

state regulatory provisions submitted by Alaska as part of the March 2,
2012, SIP submittal to satisfy CAA section 128 conflict of interest
disclosure requirements.
    EPA provided a 30-day review and comment period on the NPR
published March 22, 2012 (77 FR 16785). The public comment period for
EPA's NPR closed on April 23, 2012. EPA received no comments on the
proposed action. While EPA was conducting its public notice and comment
process, Alaska completed public review of the March 2, 2012, SIP
submittal at the state level, as provided for through the parallel
processing procedures described above. Alaska subsequently completed
its state adoption process and submitted a final SIP package to EPA on
July 9, 2012. EPA has reviewed the July 9, 2012, final SIP submittal
and we have concluded that the content of the final submittal is
substantively identical to the provisions that were anticipated in
EPA's NPR published on March 22, 2012 (77 FR 16785). Therefore, we are
taking final action on our NPR.

II. Scope of Action

    The SIP approval does not extend to sources or activities located
in Indian Country, as defined in 18 U.S.C. 1151. EPA will continue to
implement the CAA in Indian Country in Alaska because ADEC has not
adequately demonstrated authority over sources and activities located
within the exterior boundaries of the Annette Island Reserve and other
areas of Indian Country in Alaska.

III. Final Action

    EPA is taking final action to approve the July 9, 2012, SIP
provisions identified in our March 22, 2012, proposal as adequate to
demonstrate that the SIP meets the requirements of section 110(a)(1)
and (2) of the CAA for the NAAQS promulgated for ozone on July 18,
1997. EPA is approving the following section 110(a)(2) infrastructure
elements for Alaska for the 1997 ozone NAAQS: (A), (B), (C), (D)(ii),
(E), (F), (G), (H), (J), (K), (L), (M). EPA is concurrently approving a
number of revisions to the Alaska SIP as a necessary condition to
approving the 110(a)(2) infrastructure elements for ozone.
Specifically, EPA is approving revisions submitted by Alaska on April
9, 2010, and November 19, 2010, to update the Alaska SIP to include the
ozone standard at an 8-hour averaging period, the associated federal
method for measuring and monitoring ozone in ambient air, a general
definition of ozone, and federal PSD program changes to regulate
NOX as a precursor to ozone. EPA is also approving the
Alaska state regulatory provisions submitted as part of the July 9,
2012, SIP submittal to satisfy CAA section 128 conflict of interest
disclosure requirements.

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L.104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by December 21, 2012. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, and Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: July 23, 2012.
Dennis J. McLerran,
Regional Administrator, Region 10.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for Part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart C--Alaska

0
2. Section 52.70 is amended by adding paragraphs (c)(39) and (c)(40) to
read as follows:

Sec.  52.70  Identification of plan.

* * * * *
    (c) * * *
    (39) On April 9, 2010, the Alaska Department of Environmental
Conservation (ADEC) submitted a revision to the Alaska State
Implementation Plan (SIP) to update the SIP to include the 2008 ozone
standard at an 8-hour averaging period, the associated federal method
for measuring and monitoring ozone in ambient air, and a general
definition of ozone.
    (i) Incorporation by reference. (A) The following revised sections
of Alaska Administrative Code Title 18: Chapter 50, effective April 1,
2010:
    (1) Article 1, Ambient Air Quality Management: Rule 010 Ambient Air
Quality Standards, the undesignated introductory text, and (4); Rule
035 Documents, procedures, and methods adopted by reference, (b) the
undesignated introductory text, and (b)(1), but only with respect to
the incorporation by reference of 40 CFR part 50, Appendix P;
    (2) Article 2, Program Administration: Rule 215 Ambient Air Quality
Analysis Methods, (a) introductory text, and (a)(2);
    (3) Article 9, General Provisions, Rule 990 Definitions, (129).
    (40) On November 19, 2010, and July 9, 2012, the Alaska Department
of Environmental Conservation (ADEC) submitted revisions to the Alaska
State Implementation Plan (SIP) to update the SIP to include federal
Prevention of Significant Deterioration (PSD) program changes to
regulate NOX as a precursor to ozone, and provisions to
satisfy CAA section 128 conflict of interest disclosure requirements.
    (i) Incorporation by reference. (A) The following revised sections
of Alaska Administrative Code Title 18, Chapter 50, effective December
9, 2010:
    (1) Article 1, Ambient Air Quality Management: Rule 040 Federal
standards adopted by reference, (h) the undesignated introductory text,
only with respect to 40 CFR Part 52 and (h)(4), only with respect to
the incorporation by reference date for ``significant'' at 40 CFR
52.21(b)(23)(i);
    (2) Article 9, General Provisions, Rule 990 Definitions, (52)(A),
``major stationary source,'' (53)(A), ``major modification,'' and (92),
``regulated NSR pollutant.''
    (ii) Additional material. (A) The following sections of Alaska
Administrative Code Title 2 and Title 9, effective February 20, 2005:
    (1) Title 2, Administration: Chapter 50, Alaska Public Offices
Commission: Conflict of Interest, Campaign Disclosure, Legislative
Financial Disclosure, and Regulations of Lobbying; Article 1, Public
Official Financial Disclosure (2 AAC 50.010-2 AAC 50.200);
    (2) Title 9, Law: Chapter 52, Executive Branch Code of Ethics (9
AAC 52.010-9 AAC 52.990).

0
3. Section 52.96 is amended by revising paragraph (a) to read as
follows:

Sec.  52.96  Significant deterioration of air quality.

    (a) The State of Alaska Department of Environmental Conservation
Air Quality Control Regulations as in effect on December 3, 2005
(specifically 18 AAC 50.010 except (7) and (8); 50.015; 50.020;
50.030(6) and (7); 50.035(a)(4) and (5); 50.040(h) except (17), (18),
and (19); 50.215 except (a)(3); 50.250; 50.306 except (b)(2) and
(b)(3); 50.345 except (b), (c)(3) and (l); and 50.990 except (21) and
(77)) are approved as meeting the requirements of part C for preventing
significant deterioration of air quality. The following regulations as
in effect on April 1, 2010, are also approved as meeting the
requirements of part C for preventing significant deterioration of air
quality: 18 AAC 50.010 (introductory paragraph); 18 AAC 50.010(4); 18
AAC 50.035(b) (introductory paragraph); 18 AAC 50.035(b)(1), only with
respect to the incorporation by reference of 40 CFR part 50, Appendix
P; 18 AAC 50.215(a) (introductory paragraph and (a)(2); and 18 AAC
50.990(129). The following regulations as in effect on December 9,
2010, are also approved as meeting the requirements of part C for
preventing significant deterioration of air quality: 18 AAC 50.040(h)
(introductory paragraph) with respect to 40 CFR 52.21, and (h)(4), only
with respect to the incorporation by reference date for ``significant''
at 40 CFR 52.21(b)(23)(i) and ``subject to regulation'' at 52.21(b)(49)
for the purpose of greenhouse gases only; and 18 AAC 50.990 (52)(A),
(53)(A), and (92).
* * * * *

0
4. Section 52.98 is added to read as follows:

Sec.  52.98  Section 110(a)(2) infrastructure requirements.

    On July 9, 2012, the Alaska Department of Environmental Quality
submitted a certification to address the requirements of CAA Section
110(a)(1) and (2) for the 1997 8-hour ozone NAAQS. EPA approves the
submittal as meeting the following 110(a)(2) infrastructure elements
for the 1997 8-hour ozone NAAQS: (A), (B), (C), (D)(ii), (E), (F), (G),
(H), (J), (K), (L), and (M).

[FR Doc. 2012-25808 Filed 10-19-12; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 86, Number 26 (Wednesday, February 10, 2021)]
[Notices]
[Pages 8972-8977]
[FR Doc No: 2021-02711]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-91062; File No. SR-NASDAQ-2021-005]

Self-Regulatory Organizations; The Nasdaq Stock Market LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change
Relating to the ALPS Active REIT ETF of ALPS ETF Trust To List and
Trade Shares of the Fund Under Nasdaq Rule 5750

February 4, 2021.
    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 January 25, 2021, The Nasdaq Stock Market LLC (``Nasdaq'' or
``Exchange'') filed with the Securities and Exchange Commission
(``SEC'' or ``Commission'') the proposed rule change as described in
Items I and II below, which Items have been prepared by the Exchange.
The Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
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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

    The Exchange proposes a rule change relating to the ALPS Active
REIT ETF (the ``Fund'') of ALPS ETF Trust (the ``Trust''), to list and
trade shares of the Fund under Nasdaq Rule 5750 (``Proxy Portfolio
Shares''). The shares of the Fund are collectively referred to herein
as the ``Shares.''
    (b) Not applicable. [sic]
    The text of the proposed rule change is available on the Exchange's
website at https://listingcenter.nasdaq.com/rulebook/nasdaq/rules, at
the principal office of the Exchange, and at the Commission's Public
Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant aspects of such
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Commission has approved the listing and trading of Proxy
Portfolio Shares under Nasdaq Rule 5750, which governs the listing and
trading of Proxy Portfolio Shares on the Exchange.\3\
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    \3\ The Commission approved Nasdaq Rule 5750 in Securities
Exchange Act Release No. 89110 (June 22, 2020), 85 FR 38461 (June
26, 2020) (SR-NASDAQ-2020-032).
---------------------------------------------------------------------------

    The Fund is an actively-managed exchange-traded fund (``ETF''). The
Shares are offered by the Trust, which was established as a Delaware
statutory trust on September 13, 2007.\4\ The Trust, which is
registered with the Commission as an investment company under the
Investment Company Act of 1940 (the ``1940 Act''), has filed a
registration statement on Form N-1A (``Registration Statement'')
relating to the Fund with the Commission.\5\ The Fund is a series of
the Trust. ALPS Advisors, Inc. (``Adviser'') is the investment adviser
to the Fund. ALPS Portfolio Solutions Distributor, Inc. is the
principal underwriter and distributor of the Fund's Shares. ALPS Fund
Services, Inc. acts as the administrator and provides fund

accounting services to the Fund. State Street Bank and Trust Company
acts as the custodian and transfer agent to the Fund.
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    \4\ The Commission has issued an order, upon which the Trust may
rely, granting certain exemptive relief under the 1940 Act. See
Investment Company Act Release No. 34181 (Jan. 21, 2021)
(``Exemptive Order'').
    \5\ The Registration Statement is available on the Commission's
website at https://www.sec.gov/Archives/edgar/data/1414040/000139834420019856/fp0058104_485apos.htm.
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    Nasdaq Rule 5750(b)(5) provides that if the investment adviser to
the investment company issuing Proxy Portfolio Shares \6\ is registered
as a broker-dealer or is affiliated with a broker-dealer, such
investment adviser will erect and maintain a ``fire wall'' between the
investment adviser and personnel of the broker-dealer or broker-dealer
affiliate, as applicable, with respect to access to information
concerning the composition and/or changes to the Fund Portfolio \7\
and/or the Proxy Basket.\8\ In addition, Nasdaq Rule 5750(b)(5) further
requires that any person related to the investment adviser or
Investment Company who makes decisions pertaining to the Investment
Company's Fund Portfolio and/or the Proxy Basket or has access to
nonpublic information regarding the Fund Portfolio and/or Proxy Basket
or changes thereto must be subject to procedures designed to prevent
the use and dissemination of material non-public information regarding
the Fund Portfolio or the Proxy Basket or changes thereto.\9\
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    \6\ The term ``Proxy Portfolio Share'' means a security that:
(A) Represents an interest in an investment company registered under
the Investment Company Act of 1940 (``Investment Company'')
organized as an open-end management investment company, that invests
in a portfolio of securities selected by the Investment Company's
investment adviser consistent with the Investment Company's
investment objectives and policies; (B) is issued in a specified
aggregate minimum number in return for a deposit of a specified
Proxy Basket and/or a cash amount with a value equal to the next
determined net asset value; (C) when aggregated in the same
specified minimum number, may be redeemed at a holder's request,
which holder will be paid specified Proxy Basket and/or a cash
amount with a value equal to the next determined net asset value;
and (D) the portfolio holdings for which are disclosed within at
least 60 days following the end of every fiscal quarter.
    \7\ The term ``Fund Portfolio'' means the identities and
quantities of the securities and other assets held by the Investment
Company that will form the basis for the Investment Company's
calculation of net asset value at the end of the business day.
    \8\ The term ``Proxy Basket'' means the identities and
quantities of the securities and other assets included in a basket
that is designed to closely track the daily performance of the Fund
Portfolio, as provided in the exemptive relief under the 1940 Act
applicable to a series of Proxy Portfolio Shares. The website for
each series of Proxy Portfolio Shares shall disclose the following
information regarding the Proxy Basket as required under Rule 5750,
to the extent applicable:
    (A) Ticker symbol;
    (B) CUSIP or other identifier;
    (C) Description of holding;
    (D) Quantity of each security or other asset held; and
    (E) Percentage weight of the holding in the portfolio.
    \9\ An investment adviser to an open-end fund is required to be
registered under the Investment Advisers Act of 1940 (the ``Advisers
Act''). As a result, the Adviser and its 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.
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    In addition, any person or entity, including a custodian, Reporting
Authority,\10\ distributor, or administrator, who has access to
nonpublic information regarding the Fund Portfolio or the Proxy Basket
or changes thereto, must be subject to procedures designed to prevent
the use and dissemination of material nonpublic information regarding
the applicable Fund Portfolio or the Proxy Basket or changes thereto.
Moreover, if any such person or entity is registered as a broker-dealer
or affiliated with a broker-dealer, such person or entity will erect
and maintain a ``fire wall'' between the person or entity and the
broker-dealer with respect to access to information concerning the
composition and/or changes to such Fund Portfolio or Proxy Basket.
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    \10\ The term ``Reporting Authority'' in respect of a particular
series of Proxy Portfolio Shares means the Exchange, an institution,
or a reporting service designated by the Exchange or by the exchange
that lists a particular series of Proxy Portfolio Shares (if the
Exchange is trading such series pursuant to unlisted trading
privileges) as the official source for calculating and reporting
information relating to such series, including, but not limited to,
the Proxy Basket; the Fund Portfolio; the amount of any cash
distribution to holders of Proxy Portfolio Shares, net asset value,
or other information relating to the issuance, redemption or trading
of Proxy Portfolio Shares. A series of Proxy Portfolio Shares may
have more than one Reporting Authority, each having different
functions.
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    In the event (a) the Adviser or any sub-adviser registers as a
broker-dealer, or becomes newly affiliated with a broker-dealer, or (b)
any new adviser or sub-adviser is a registered broker-dealer or becomes
affiliated with another broker-dealer, it will implement and will
maintain a fire wall with respect to its relevant personnel and/or such
broker-dealer affiliate, as applicable, regarding access to information
concerning the composition and/or changes to the Fund's Portfolio and/
or the Proxy Basket and will be subject to procedures designed to
prevent the use and dissemination of material non-public information
regarding the Fund's Portfolio and/or the Proxy Basket.
    The Fund intends to qualify each year as a regulated investment
company under Subchapter M of the Internal Revenue Code of 1986, as
amended.
The Fund's Principal Investment Strategies
    The investment objective of the Fund will be to seek total return
through dividends and capital appreciation. Under normal market
conditions,\11\ the Fund will seek to achieve its investment objective
by investing at least 80% of its net assets in exchange-traded equity
securities of real estate investment trusts.
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    \11\ The term ``normal market conditions'' as used herein, is
defined in Nasdaq Rule 5750(c)(4). On a temporary basis, including
for defensive purposes, during the initial invest-up period and
during periods of high cash inflows or outflows, the Fund may depart
from its principal investment strategies; for example, it may hold a
higher than normal proportion of its assets in cash. During such
periods, the Fund may not be able to achieve its investment
objective. The Fund may adopt a defensive strategy when the Adviser
or any sub-adviser believes securities in which such Fund normally
invests have elevated risks due to political or economic factors and
in other extraordinary circumstances.
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    Under the terms of the Exemptive Order,\12\ the Fund's investments
are limited to the following: ETFs, exchange-traded notes, exchange
listed common stocks (excluding ``penny stocks'' as defined in Rule
3a51-1 under the Act), exchange-traded preferred stocks, exchange-
traded American Depositary Receipts (ADRs), exchange-traded real estate
investment trusts, exchange-traded commodity pools, exchange-traded
metals trusts, and exchange-traded currency trusts, in each case that
are traded on a U.S. securities exchange contemporaneously with the
Fund Shares; exchange-traded futures that trade contemporaneously with
the Fund Shares that are U.S. listed futures contracts where the future
contract's reference asset is an asset that the Fund could invest in
directly, or in the case of an index future, is based on an index of a
type of asset that the Fund could invest in directly; common stocks
listed on a foreign exchange that trade on such exchange
contemporaneously with the Fund Shares; and cash and cash equivalents
(which are short-term U.S. Treasury securities, government money market
funds, and repurchase agreements). The Fund's holdings will conform to
the permissible investments

as set forth in the Exemptive Order and the holdings will be consistent
with all requirements in the Exemptive Order. Any foreign common stocks
held by the Fund will be traded on an exchange that is a member of the
Intermarket Surveillance Group (``ISG'') or with which the Exchange has
in place a comprehensive surveillance sharing agreement.
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    \12\ See supra note 4.
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Surveillance
    The Exchange believes that its surveillance procedures are adequate
to properly monitor the trading of Proxy Portfolio Shares on the
Exchange during all trading sessions and to deter and detect violations
of Exchange rules and the applicable federal securities laws. Trading
of Proxy Portfolio Shares on the Exchange will be subject to the
Exchange's surveillance procedures for derivative products. The
Exchange will require the issuer of each series of Proxy Portfolio
Shares listed on the Exchange to represent to the Exchange that it will
advise the Exchange of any failure by the Fund to comply with the
continued listing requirements, and, pursuant to its obligations under
Section 19(g)(1) of the Exchange Act, the Exchange will surveil for
compliance with the continued listing requirements. If the Fund is not
in compliance with the applicable listing requirements, the Exchange
will commence delisting procedures under the Nasdaq 5800 Series. In
addition, the Exchange also has a general policy prohibiting the
distribution of material, non-public information by its employees.
    The Adviser will upon request make available to the Exchange and/or
Financial Industry Regulatory Authority (``FINRA''), on behalf of the
Exchange, the daily Fund Portfolio of each series of Proxy Portfolio
Shares. The Exchange believes that this is appropriate because it will
provide the Exchange or FINRA, on behalf of the Exchange, with access
to the daily Fund Portfolio of any series of Proxy Portfolio Shares
upon request on an as needed basis. The Exchange believes that the
ability to access the information on an as needed basis will provide it
with sufficient information to perform the necessary regulatory
functions associated with listing and trading series of Proxy Portfolio
Shares on the Exchange, including the ability to monitor compliance
with the initial and continued listing requirements as well as the
ability to surveil for manipulation of the Shares.
Trading Halts
    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. Nasdaq will halt trading in the
Shares under the conditions specified in Nasdaq Rules 4120 and 4121,
including the trading pauses under Nasdaq Rules 4120(a)(11) and (12).
    Trading may be halted because of market conditions or for reasons
that, in the view of the Exchange, make trading in the Proxy Portfolio
Shares inadvisable. These may include: (1) The extent to which trading
is not occurring in the securities and/or the financial instruments
composing the Proxy Basket or Fund Portfolio; or (2) whether other
unusual conditions or circumstances detrimental to the maintenance of a
fair and orderly market are present. Trading in the Proxy Portfolio
Shares also will be subject to Rule 5750(d)(2)(D), which sets forth
circumstances under which a series of Proxy Portfolio Shares may be
halted.
Trading Rules
    Nasdaq deems the Shares to be equity securities, thus rendering
trading in the Shares subject to Nasdaq's existing rules governing the
trading of equity securities. Nasdaq will allow trading in the Shares
from 4:00 a.m. until 8:00 p.m., Eastern Time. The Exchange has
appropriate rules to facilitate transactions in the Shares during all
trading sessions. As provided in Nasdaq Rule 5750(b)(3), the minimum
price variation for quoting and entry of orders in Proxy Portfolio
Shares traded on the Exchange is $0.01.
Availability of Information
    Form N-PORT requires reporting of a fund's complete portfolio
holdings on a position-by-position basis on a quarterly basis within 60
days after fiscal quarter end. Investors can obtain a fund's Statement
of Additional Information, its Shareholder Reports, its Form N-CSR,
filed twice a year, and its Form N-CEN, filed annually. A fund's SAI
and Shareholder Reports are available for free upon request from the
Investment Company, and those documents and the Form N-PORT, Form N-
CSR, and Form N-CEN may be viewed on-screen or downloaded from the
Commission's website at www.sec.gov. The Exchange also notes that the
Exemptive Order provides that an issuer will comply with Regulation
Fair Disclosure, which prohibits selective disclosure of any material
non-public information, which otherwise does not apply to issuers of
Proxy Portfolio Shares. 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. Information regarding the previous day's closing price and
trading volume information for the Shares will be published daily in
the financial section of newspapers.
Proxy Basket for the Proposed Fund
    For the Fund, the Proxy Basket will consist of all of the Fund's
portfolio holdings but will be weighted differently, subject to a
minimum weightings overlap of 90% with the Fund's Portfolio at the
beginning of each business day. Intraday pricing information for all
constituents of the Proxy Basket that are exchange-traded, which
includes all eligible instruments except cash and cash equivalents,
will be available on the exchanges on which they are traded and through
subscription services. Intraday pricing information for cash
equivalents will be available through subscription services and/or
pricing services. The Exchange notes that the Fund's net asset value
(``NAV'') will form the basis for creations and redemptions for the
Fund and creations and redemptions will work in a manner substantively
identical to that of series of Managed Fund Shares.\13\ The Adviser
expects that the Shares of the Fund will generally be created and
redeemed in-kind, with limited exceptions. The names and quantities of
the instruments that constitute the basket of securities for creations
and redemptions will be the same as the Fund's Proxy Basket, except to
the extent purchases and redemptions are made entirely or in part on a
cash basis. In the event that the value of the Proxy Basket is not the
same as the Fund's NAV, the creation and redemption baskets will
consist of the securities included in the Proxy Basket plus or minus an
amount of cash equal to the difference between the NAV and the value of
the Proxy Basket, as further described below.
---------------------------------------------------------------------------

    \13\ See Nasdaq Rule 5735.
---------------------------------------------------------------------------

    The Proxy Basket will be constructed utilizing a proprietary
algorithmic process that will be applied to the Fund Portfolio on a
daily basis. The Proxy Basket will be publicly available on the Fund
website before the commencement of trading in Fund Shares on each
business day. The Proxy Basket will contain all of the names of the
securities in the Fund Portfolio, and only the securities that are in
the Fund Portfolio (and also could contain cash to represent the Fund
Portfolio's holdings of cash). The Proxy Basket will have a minimum
overlap of 90% with the Fund Portfolio at the beginning of each
business day, with the precise

percentage of aggregate overlap in weightings from 90% to 100% to be
randomly generated each day.
    In addition to the disclosure of the Proxy Basket, the Fund will
also publish the ``Guardrail Amount'' on its website on each business
day before the commencement of trading in Shares on the Exchange. The
Guardrail Amount is the maximum deviation between the weightings of the
specific securities and cash positions in the Proxy Basket from the
weightings of those specific securities and cash positions in the Fund
Portfolio. The Guardrail Amount is intended to ensure that no
individual security in the Proxy Basket will be overweighted or
underweighted by more than the publicly disclosed percentage when
compared to the actual weighting of each security within the Fund
Portfolio as of the beginning of each business day. The Adviser expects
the performance of the Proxy Basket and the Fund Portfolio to be
closely aligned in light of the construction of the Proxy Basket, and
does not expect the ``Tracking Error'' to exceed 1%. ``Tracking Error''
is defined to mean the standard deviation over the past three months of
the daily difference, in percentage terms, between the Proxy Basket per
Share NAV and that of the Fund at the end of the business day.
    The Fund will also disclose the entirety of its portfolio holdings,
including the name, identifier, market value and weight of each
security and instrument in the portfolio, at a minimum within at least
60 days following the end of every fiscal quarter. As described above,
the Exchange notes that the concept of the Proxy Basket employed under
this structure is designed to provide investors with the traditional
benefits of ETFs while protecting the Fund from the potential for front
running or free riding of portfolio transactions, which could adversely
impact the performance of the Fund.
Additional Information
    The Exchange represents that the Shares of the Fund will continue
to comply with all other proposed requirements applicable to Proxy
Portfolio Shares, including the dissemination of key information such
as the Proxy Basket, the Fund Portfolio, and NAV, suspension of trading
or removal, trading halts, surveillance, minimum price variation for
quoting and order entry, an information circular informing members of
the special characteristics and risks associated with trading in the
series of Proxy Portfolio Shares, and firewalls as set forth in the
proposed Exchange rules applicable to Proxy Portfolio Shares.
    Price information for the exchange-listed instruments held by the
Fund, including both U.S. and non-U.S. listed equity securities and
U.S. exchange-listed futures will be available through major market
data vendors or securities exchanges listing and trading such
securities. Moreover, U.S.-listed equity securities held by the Fund
will trade on markets that are a member of ISG or with which the
Exchange has in place a comprehensive surveillance sharing
agreement.\14\ Any foreign common stocks held by the Fund will be
traded on an exchange that is a member of ISG or with which the
Exchange has in place a comprehensive surveillance sharing agreement.
All futures contracts that the Fund may invest in will be traded on a
U.S. futures exchange. The Exchange or FINRA, on behalf of the
Exchange, or both, will communicate as needed regarding trading in the
Shares, underlying U.S. exchange-listed equity securities, and U.S.
exchange-listed futures with other markets and other entities that are
members of ISG, and the Exchange or FINRA, on behalf of the Exchange,
or both, may obtain trading information regarding trading such
instruments from such markets and other entities. In addition, the
Exchange may obtain information regarding trading in the Shares,
underlying equity securities, and U.S. exchange-listed futures from
markets and other entities that are members of ISG or with which the
Exchange has in place a comprehensive surveillance sharing agreement.
---------------------------------------------------------------------------

    \14\ For a list of the current members of ISG, see
www.isgportal.com. The Exchange notes that not all components of the
Fund may trade on markets that are members of ISG or with which the
Exchange has in place a comprehensive surveillance sharing
agreement.
---------------------------------------------------------------------------

    All statements and representations made in this filing regarding
the description of the portfolio or reference assets, limitations on
portfolio holdings or reference assets, dissemination and availability
of reference assets (as applicable) such as the Fund Portfolio and
Proxy Basket, or the applicability of Exchange listing rules specified
in this filing shall constitute continued listing requirements for the
Shares. A minimum of 100,000 Shares of the Fund will be outstanding at
the commencement of trading on the Exchange. The Exchange will obtain a
representation from the issuer of the Shares of the Fund that the NAV
per share of the Fund will be calculated daily and will be made
available to all market participants at the same time.
    The issuer has represented to the Exchange that it will advise the
Exchange of any failure by the Fund or Shares to comply with the
continued listing requirements, and, pursuant to its obligations under
Section 19(g)(1) of the Act, the Exchange will surveil for compliance
with the continued listing requirements. FINRA conducts certain cross-
market surveillances on behalf of the Exchange pursuant to a regulatory
services agreement. The Exchange is responsible for FINRA's performance
under this regulatory services agreement. If a Fund is not in
compliance with the applicable listing requirements, the Exchange will
commence delisting procedures under the Nasdaq 5800 Series.
2. Statutory Basis
    Nasdaq believes that the proposal is consistent with Section 6(b)
of the Act in general and Section 6(b)(5) of the Act, in particular, in
that it is 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, and to remove impediments to and perfect
the mechanism of a free and open market and, in general, to protect
investors and the public interest.
    The Exchange believes that the particular instruments that may be
included in the Fund Portfolio and Proxy Basket do not raise any
concerns related to the Proxy Basket being able to closely track the
NAV of the Fund because such instruments include only instruments that
trade on an exchange contemporaneously with the Shares. In addition,
the Fund's Proxy Basket is designed to reliably and consistently
correlate to the performance of the Fund.
    The Adviser anticipates that the returns between the Fund and its
respective Proxy Basket will have a consistent relationship and that
the deviation in the returns between the Fund and its Proxy Basket will
be sufficiently small such that the Proxy Basket will provide
authorized participants, arbitrageurs and other market participants
(collectively, ``Market Makers'') with a reliable hedging vehicle that
they can use to effectuate low-risk arbitrage trades in Fund Shares.
The Exchange believes that the disclosures provided by the Fund will
allow Market Makers to understand the relationship between the
performance of the Fund and its Proxy Basket. Market Makers will be
able to estimate the value of and hedge positions in the Fund's Shares,
which

the Exchange believes will facilitate the arbitrage process and help
ensure that the Fund's Shares normally will trade at market prices
close to their NAV. The Exchange also believes that competitive market
making, where traders are looking to take advantage of differences in
bid-ask spread, will aid in keeping spreads tight.
    The Exchange notes that a significant amount of information about
the Fund and its Fund Portfolio is publicly available at all times.
Each series will disclose the Proxy Basket, which is designed to
closely track the daily performance of the Fund Portfolio, on a daily
basis. Intraday pricing information for all constituents of the Proxy
Basket that are exchange-traded, which includes all eligible
instruments except cash and cash equivalents, will be available on the
exchanges on which they are traded and through subscription services.
Intraday pricing information for cash equivalents will be available
through subscription services and/or pricing services. Each series of
Proxy Portfolio Shares will at a minimum publicly disclose the entirety
of its portfolio holdings, including the name, identifier, market value
and weight of each security and instrument in the portfolio within at
least 60 days following the end of every fiscal quarter in a manner
consistent with normal disclosure requirements otherwise applicable to
open-end investment companies registered under the 1940 Act.
    The website will include additional quantitative information
updated on a daily basis, including, on a per Share basis for the Fund,
the prior business day's NAV and the closing price or bid/ask price at
the time of calculation of such NAV, and a calculation of the premium
or discount of the closing price or bid/ask price against such NAV. The
website will also disclose any other information regarding premiums and
discounts and the bid/ask spread for the Fund as may be required for
other ETFs under Rule 6c-11 under the 1940 Act, as amended. On each
business day, before the commencement of trading of Shares, the Fund
will publish on its website the Proxy Basket and the Guardrail Amount
for that day.
    The Exchange represents that the Shares of the Fund will continue
to comply with all other proposed requirements applicable to Proxy
Portfolio Shares, including the dissemination of key information such
as the Proxy Basket, disclosure of the Fund Portfolio quarterly, and
NAV, suspension of trading or removal, trading halts, surveillance,
minimum price variation for quoting and order entry, an information
circular informing members of the special characteristics and risks
associated with trading in the series of Proxy Portfolio Shares, and
firewalls as set forth in the proposed Exchange rules applicable to
Proxy Portfolio Shares and the orders approving such rules. Moreover,
U.S.-listed equity securities held by the Fund will trade on markets
that are a member of ISG or with which the Exchange has in place a
comprehensive surveillance sharing agreement.\15\
---------------------------------------------------------------------------

    \15\ Id.
---------------------------------------------------------------------------

    All statements and representations made in this filing regarding
the description of the portfolio or reference assets, limitations on
portfolio holdings or reference assets, dissemination and availability
of reference asset (as applicable), or the applicability of Exchange
listing rules specified in this filing shall constitute continued
listing requirements for the Shares. The issuer has represented to the
Exchange that it will advise the Exchange of any failure by the Fund or
Shares to comply with the continued listing requirements, and, pursuant
to its obligations under Section 19(g)(1) of the Act, the Exchange will
surveil for compliance with the continued listing requirements. A
minimum of 100,000 Shares of the Fund will be outstanding at the
commencement of trading on the Exchange. The Exchange will obtain a
representation from the issuer of the Shares of the Fund that the NAV
per share of the Fund will be calculated daily and will be made
available to all market participants at the same time.
    FINRA conducts certain cross-market surveillances on behalf of the
Exchange pursuant to a regulatory services agreement. The Exchange is
responsible for FINRA's performance under this regulatory services
agreement. If a Fund is not in compliance with the applicable listing
requirements, the Exchange will commence delisting procedures under the
Nasdaq 5800 Series.
    For the above reasons, the Exchange believes that the proposed rule
change is consistent with the requirements of Section 6(b)(5) of the
Act.

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. Rather, the Exchange notes
that the proposed rule change will facilitate the listing of a new type
of actively-managed exchange-traded product, thus enhancing competition
among both market participants and listing venues, to the benefit of
investors and the marketplace.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    No written comments were either solicited or received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    Because the foregoing proposed rule change does not: (i)
Significantly affect the protection of investors or the public
interest; (ii) impose any significant burden on competition; and (iii)
become operative for 30 days from the date on which it was filed, or
such shorter time as the Commission may designate, it has become
effective pursuant to Section 19(b)(3)(A) of the Act \16\ and Rule 19b-
4(f)(6) thereunder.\17\
---------------------------------------------------------------------------

    \16\ 15 U.S.C. 78s(b)(3)(A).
    \17\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires a self-regulatory organization to give the Commission
written notice of its intent to file the proposed rule change, along
with a brief description and text of the proposed rule change, at
least five business days prior to the date of filing of the proposed
rule change, or such shorter time as designated by the Commission.
The Exchange has satisfied this requirement.
---------------------------------------------------------------------------

    A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the
Act \18\ normally does not become operative for 30 days after the date
of its filing. However, Rule 19b-4(f)(6)(iii) \19\ permits the
Commission to designate a shorter time if such action is consistent
with the protection of investors and the public interest. The Exchange
has asked the Commission to waive the 30-day operative delay. The
proposed rule change is substantially similar to previous proposals on
which the Commission has granted waiver of the operative delay,\20\
does not raise any novel regulatory issues, and the Commission believes
that waiver of the 30-day operative delay is consistent with the
protection of investors and the public interest. Therefore, the
Commission hereby waives the operative delay and designates the
proposal as operative upon filing.\21\
---------------------------------------------------------------------------

    \18\ 17 CFR 240.19b-4(f)(6).
    \19\ 17 CFR 240.19b-4(f)(6)(iii).
    \20\ See Securities Exchange Act Releases No. 90684 (Dec. 16,
2020), 85 FR 83637 (Dec. 22, 2020) (File No. SR-CboeBZX-2020-091)
and 90686 (Dec. 16, 2020), 85 FR 83657 (Dec. 22, 2020) (File No. SR-
CboeBZX-2020-090).
    \21\ For purposes only of waiving the 30-day operative delay,
the Commission also has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may

temporarily suspend such rule change if it appears to the Commission
that such action is necessary or appropriate in the public interest,
for the protection of investors, or otherwise in furtherance of the
purposes of the Act. If the Commission takes such action, the
Commission shall institute proceedings to determine whether the
proposed rule change should be approved or disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-NASDAQ-2021-005 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NASDAQ-2021-005. This
file number should be included on the subject line if email 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 website (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 website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549 on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-NASDAQ-2021-005, and should be submitted
on or before March 3, 2021.

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

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

J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-02711 Filed 2-9-21; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 79, Number 180 (Wednesday, September 17, 2014)]
[Notices]
[Pages 55842-55843]
[FR Doc No: 2014-22119]

=======================================================================
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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 31249; 812-14291]

SSgA MasterTrust and SSgA Funds Management, Inc.; Notice of
Application

September 11, 2014.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of an application under section 6(c) of the Investment
Company Act of 1940 (``Act'') for an exemption from rule 12d1-2(a)
under the Act.

-----------------------------------------------------------------------

SUMMARY: Summary of Application: Applicants request an order to permit
open-end management investment companies relying on rule 12d1-2 under
the Act to invest in certain financial instruments.
    Applicants: SSgA Master Trust (``SSMT'') and SSgA Funds Management,
Inc. (``SSFMI'').

DATES: Filing Dates: The application was filed on March 14, 2014, and
amended on June 13, 2014 and August 18, 2014.
    Hearing or Notification of Hearing: An order granting the
application 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 October 6, 2014, 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, Securities and Exchange Commission, 100 F Street
NE., Washington, DC 20549-1090; Applicants: State Street Global
Advisors, One Lincoln Street, Boston, Massachusetts, 02111.

FOR FURTHER INFORMATION CONTACT: Laura J. Riegel, Senior Counsel, at
(202) 551-6873, or Mary Kay Frech, Branch Chief, at<PHONE_NUMBER>
(Division of Investment Management, Chief Counsel's Office).

SUPPLEMENTARY INFORMATION: The following is a summary of the
application. The complete application may be obtained via the
Commission's Web site by searching for the file number, or for an
applicant using the Company name box, at http://www.sec.gov/search/search.htm or by calling<PHONE_NUMBER>.

Applicants' Representations

    1. SSMT is organized as Massachusetts business trust and is
registered under the Act as an open-end management investment company.
SSMT is a series trust which currently consists of eight series, each
of which operates as a master fund in a master-feeder structure. SSFMI
is a Massachusetts corporation and is registered as an investment
adviser under the Investment Advisers Act of 1940 (the ``Advisers
Act''). SSFMI currently serves as the investment adviser to each series
of SSMT.
    2. Applicants request an exemption to the extent necessary to
permit any existing or future series of SSMT and any other registered
open-end management investment company or series thereof that: (a) Is
advised by SSFMI or any investment adviser controlling, controlled by,
or under common control with SSFMI (any such adviser or SSFMI, the
``Adviser''); \1\ (b) is in the same group of investment companies as
defined in section 12(d)(1)(G) of the Act as SSMT; (c) invests in other
registered open-end management investment companies (``Underlying
Funds'') in reliance on section 12(d)(1)(G) of the Act; and (d) also is
eligible to invest in securities (as defined in section 2(a)(36) of the
Act) in reliance on rule 12d1-2 under the Act (each a ``Fund of
Funds''), also to invest, to the extent consistent with its investment
objectives, policies, strategies and limitations, in financial
instruments that may not be securities within the meaning of section
2(a)(36) of the Act (``Other Investments'').\2\
---------------------------------------------------------------------------

    \1\ Each Adviser will be registered as an investment adviser
under the Advisers Act.
    \2\ Every existing entity that currently intends to rely on the
requested order is named as an applicant. Any entity that relies on
the order in the future will do so only in accordance with the terms
and condition in the application.
---------------------------------------------------------------------------

    3. Consistent with its fiduciary obligations under the Act, each
Fund of Funds' board of trustees will review the advisory fees charged
by the Fund of

Funds' Adviser to ensure that they are based on services provided that
are in addition to, rather than duplicative of, services provided
pursuant to the advisory agreement of any investment company in which
the Fund of Funds may invest.

Applicants' Legal Analysis

    1. Section 12(d)(1)(A) of the Act provides that no registered
investment company (``acquiring company'') may acquire securities of
another investment company (``acquired company'') if such securities
represent more than 3% of the acquired company's outstanding voting
stock or more than 5% of the acquiring company's total assets, or if
such securities, together with the securities of other investment
companies, represent more than 10% of the acquiring company's total
assets. Section 12(d)(1)(B) of the Act provides that no registered
open-end investment company may sell its securities to another
investment company if the sale will cause the acquiring company to own
more than 3% of the acquired company's voting stock, or cause more than
10% of the acquired company's voting stock to be owned by investment
companies and companies controlled by them.
    2. Section 12(d)(1)(G) of the Act provides, in part, that section
12(d)(1) will not apply to securities of an acquired company purchased
by an acquiring company if: (i) The acquired company and acquiring
company are part of the same group of investment companies; (ii) the
acquiring company holds only securities of acquired companies that are
part of the same group of investment companies, Government securities,
and short-term paper; (iii) the aggregate sales loads and distribution-
related fees of the acquiring company and the acquired company are not
excessive under rules adopted pursuant to section 22(b) or section
22(c) of the Act by a securities association registered under section
15A of the Securities Exchange Act of 1934 or by the Commission; and
(iv) the acquired company has a policy that prohibits it from acquiring
securities of registered open-end investment companies or registered
unit investment trusts in reliance on section 12(d)(1)(F) or (G) of the
Act.
    3. Rule 12d1-2 under the Act permits a registered open-end
investment company or a registered unit investment trust that relies on
section 12(d)(1)(G) of the Act to acquire, in addition to securities
issued by another registered investment company in the same group of
investment companies, Government securities, and short-term paper: (i)
Securities issued by an investment company that is not in the same
group of investment companies, when the acquisition is in reliance on
section 12(d)(1)(A) or 12(d)(1)(F) of the Act; (ii) securities (other
than securities issued by an investment company); and (iii) securities
issued by a money market fund, when the investment is in reliance on
rule 12d1-1 under the Act. For the purposes of rule 12d1-2,
``securities'' means any security as defined in section 2(a)(36) of the
Act.
    4. Section 6(c) of the Act provides that the Commission may exempt
any person, security, or transaction from any provision of the Act, or
from any rule under the Act, if such exemption is necessary or
appropriate in the public interest and consistent with the protection
of investors and the purposes fairly intended by the policies and
provisions of the Act. Applicants submit that their request for relief
meets this standard.
    5. Applicants request an order under section 6(c) of the Act for an
exemption from rule 12d1-2(a) to allow the Funds of Funds to invest in
Other Investments while investing in Underlying Funds. Applicants state
that the Funds of Funds will comply with rule 12d1-2 under the Act, but
for the fact that the Funds of Funds may invest a portion of their
assets in Other Investments. Applicants assert that permitting the
Funds of Funds to invest in Other Investments as described in the
application would not raise any of the concerns that the requirements
of section 12(d)(1) were designed to address.

Applicants' Condition

    Applicants agree that any order granting the requested relief will
be subject to the following condition:
    Applicants will comply with all provisions of rule 12d1-2 under the
Act, except for paragraph (a)(2) to the extent that it restricts any
Fund of Funds from investing in Other Investments as described in the
application.

    For the Commission, by the Division of Investment Management,
under delegated authority.
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2014-22119 Filed 9-16-14; 8:45 am]
BILLING CODE 8011-01-P