[Federal Register Volume 80, Number 184 (Wednesday, September 23, 2015)]
[Notices]
[Pages 57414-57418]
[FR Doc No: 2015-24060]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-75936; File No. SR-NASDAQ-2015-085])

Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Order
Granting Approval of Proposed Rule Change Relating to the Listing and
Trading of the Shares of the PowerShares High Income Downside Hedged
Portfolio, a Series of the PowerShares Actively Managed Exchange-Traded
Fund Trust

September 17, 2015.

I. Introduction

    On July 28, 2015, The NASDAQ Stock Market LLC (``Nasdaq'' or the
``Exchange'') filed with the Securities and Exchange Commission
(``Commission''), pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change to list and trade common shares of beneficial
interest (``Shares'') of the PowerShares High Income Downside Hedged
Portfolio (``Fund''), under Nasdaq Rule 5735. The proposed rule change
was published for comment in the Federal Register on August 5, 2015.\3\
The Commission received no comments on the proposal. This order grants
approval of the proposed rule change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 75555 (Jul. 30,
2015), 80 FR 46631 (``Notice'').
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II. Description of the Proposal

    The Exchange proposes to list and trade the Shares of the Fund
under Rule 5735, which governs the listing and trading of Managed Fund
Shares on the Exchange. The Shares will be offered by the Fund, which
will be an actively managed exchange-traded fund (``ETF'') and a series
of the PowerShares Actively Managed Exchange-Traded Fund Trust
(``Trust''). The Trust was established as a Delaware statutory trust on
November 6, 2007.\4\ Invesco PowerShares Capital Management LLC will
serve as the investment adviser to the Fund (``Adviser'').\5\ Invesco
Distributors, Inc. will serve as the principal underwriter and
distributor of the Fund's Shares (``Distributor''). The Bank of New
York Mellon will act as the administrator, accounting agent, custodian,
and transfer agent for the Fund. The Exchange has made the following
representations and statements in describing the Fund and its
investment strategy, including the Fund's portfolio holdings and
investment restrictions.\6\
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    \4\ The Trust is registered with the Commission as an open-end
management investment company and has filed a post-effective
amendment to its registration statement on Form N-1A (``Registration
Statement'') with the Commission to register the Fund and its Shares
under the Investment Company Act of 1940 (``1940 Act'') and the
Securities Act of 1933. See Registration Statement for the Trust,
filed on April 13, 2015 (File Nos. 333-147622 and 811-22148). In
addition, the Commission has issued an order granting certain
exemptive relief to the Trust under the 1940 Act. See Investment
Company Act Release No. 28171 (Feb. 27, 2008) (File No. 812-13386).
    \5\ The Exchange represents that the Adviser is itself not a
broker-dealer, but it is affiliated with the Distributor, which is a
broker-dealer. The Adviser has therefore implemented a fire wall
between itself and the Distributor with respect to access to
information concerning the composition of or changes to the Fund's
portfolio. The Exchange further represents that in the event (a) the
Adviser becomes newly affiliated with a different broker-dealer (or
becomes a registered broker-dealer), or (b) any new adviser or sub-
adviser to the Fund is a registered broker-dealer or becomes
affiliated with a broker-dealer, the Advisor will implement a fire
wall with respect to its relevant personnel or broker-dealer
affiliate, as applicable, regarding access to information concerning
the composition of or changes to the Fund's portfolio and will be
subject to procedures designed to prevent the use and dissemination
of material, non-public information regarding the portfolio. The
Exchange states that the Fund does not currently intend to use a
sub-adviser.
    \6\ The Commission notes that additional information regarding
the Fund, the Trust, and the Shares, including investment
strategies, risks, creation and redemption procedures, fees,
portfolio holdings disclosure policies, calculation of net asset
value (``NAV''), distributions, and taxes, among other things, can
be found in the Notice and the Registration Statement, as
applicable. See Notice and Registration Statement, supra notes 3 and
4, respectively.
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A. The Exchange's Description of the Fund's Investment Objective

    According to the Exchange, the Fund will be an actively managed ETF
that will seek to achieve high income and positive total returns. The
Fund will seek to achieve its investment objective by using a
quantitative, rules-based investment methodology designed to provide
returns that exceed the performance of the S&P High Income VEQTOR Index
(``Benchmark''). The Fund will seek to gain exposure to the securities
contained in the equity component of the Benchmark and CBOE Volatility
Index (``VIX Index'') related instruments (``VIX Index Related
Instruments'').\7\
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    \7\ The Exchange defines ``VIX Index Related Instruments'' as
ETFs and exchange-traded notes (``ETNs'') that provide exposure to
the VIX Index, as well as VIX Index futures contracts and options on
those futures contracts.
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    The Exchange represents that the Benchmark is composed of two types
of components: An equity component, represented by the constituents of
the S&P High Income Equity Composite Index (``Equity Component
Index''), and a volatility component, represented by the S&P 500 VIX
Short Term Futures Index (``VIX Futures Index''). The Benchmark
allocates its constituents between the two components in any given
amount from time to time based on the level of volatility in the
market.
    The Exchange represents that the Equity Component Index is composed
of 150 high-yield securities that meet certain size, liquidity, and
listing exchange criteria as determined by S&P. This component
comprises the following four sub-components: (i) Preferred stocks; (ii)
units of master limited partnerships (``MLPs''); (iii) real estate
investment trusts (``REITs''); and (iv) a portfolio of global
securities engaged in the real estate industry (``global property
securities'') and global securities that pay high dividends (``global
dividend securities,'' and together with global property securities,
collectively ``Global Equities'').
    The Exchange states that the VIX Index is a theoretical calculation
and cannot be traded. The VIX Index is a benchmark index designed to
measure the market price of volatility in large cap U.S. stocks over 30
days in the future, and is calculated based on the prices of certain
put and call options on the S&P 500[supreg] Index. The VIX Index
measures the premium paid by investors for certain options linked to
the S&P 500[supreg] Index. During periods of market instability, the
implied level of volatility of the S&P 500[supreg] Index typically
increases, and, consequently, the prices of options linked to the S&P
500[supreg] Index typically increase (assuming all other relevant
factors remain constant or have negligible changes). This, in turn,
causes the level of the VIX Index to increase. The VIX Index
historically has had negative correlations to the S&P 500[supreg]
Index.
    The VIX Futures Index utilizes the prices of the first- and second-
month futures contracts based on the VIX

Index, replicating a position that rolls the nearest-month VIX futures
contracts to the next-month VIX futures contracts on a daily basis in
equal fractional amounts. The Benchmark's allocation to its volatility
component serves as an implied volatility hedge, as volatility
historically tends to correlate negatively to the performance of the
equity markets (i.e., rapid declines in the performance of the equity
markets generally are associated with particularly high volatility in
those markets).
    On any day the New York Stock Exchange (``NYSE'') is open for
business (``Business Day''), the Benchmark allocates its equity and
volatility components based on a combination of realized volatility and
implied volatility trend decision variables. The allocation to the VIX
Futures Index generally increases when realized volatility and implied
volatility are higher, and decreases when realized volatility and
implied volatility are lower. While allocations are reviewed daily,
they may change on a less frequent basis.

B. The Exchange's Description of the Fund's Principal Investments

    According to the Exchange, the Fund's investment strategy is
similar to the rules-based allocation methodology of its Benchmark.
Therefore, the allocation among the Fund's investments generally will
tend to approximate the allocation between the equity and volatility
components of the Benchmark. However, the Fund seeks returns that
exceed the returns of the Benchmark; accordingly, the Fund can have a
higher or lower exposure to either component (or any respective sub-
component) of the Benchmark at any time.\8\
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    \8\ The Fund will be ``non-diversified'' under the 1940 Act and
therefore may invest more of its assets in fewer issuers than
``diversified'' funds. The diversification standard is set forth in
Section 5(b)(1) of the 1940 Act.
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    The Exchange represents that, in pursuing its investment objective,
under normal market conditions,\9\ the Fund will invest substantially
all of its assets in (i) an equity sleeve that generally corresponds to
the Equity Component Index, represented by a combination of 150 high-
yield securities that includes preferred stocks, MLPs, REITs, and
Global Equities, each of which will be listed either on a U.S.
securities exchange or a member exchange of the Intermarket
Surveillance Group (``ISG''); \10\ and (ii) a volatility sleeve,
represented by the VIX Index Related Instruments. During periods of low
volatility, a greater portion of the Fund's assets will be invested in
equity securities, and during periods of increased volatility, a
greater portion of the Fund's assets will be invested in VIX Index
Related Instruments. Any U.S. security invested by the Fund must be
listed on a national securities exchange, and any non-U.S. security
must be listed on a member exchange of the ISG.
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    \9\ The term ``under normal market conditions'' as used herein
includes, but is not limited to, the absence of adverse market,
economic, political or other conditions, including extreme
volatility or trading halts in the securities markets or the
financial markets generally; operational issues causing
dissemination of inaccurate market information; or force majeure
type events such as systems failure, natural or man-made disaster,
act of God, armed conflict, act of terrorism, riot or labor
disruption, or any similar intervening circumstance. In periods of
extreme market disturbance, the Fund may take temporary defensive
positions, by overweighting its portfolio in cash or cash-like
instruments; however, to the extent possible, the Adviser would
continue to seek to achieve the Fund's investment objective.
    \10\ For a list of the current members of ISG, see http://www.isgportal.org. The Exchange notes that not all components of the
Disclosed Portfolio (as defined herein) for the Fund may trade on
markets that are members of ISG or with which the Exchange has in
place a comprehensive surveillance sharing agreement.
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    Further, in addition to the ETFs and ETNs that provide exposure to
the VIX Index, the Fund may invest in ETFs and ETNs that are listed on
U.S. securities exchanges that provide exposure to the components of
the Equity Component Index.

B. The Exchange's Description of the Fund's Other Investments

    According to the Exchange, the Fund may invest its remaining assets
in U.S. government securities, high-quality money market instruments,
cash, and cash equivalents to provide liquidity and to collateralize
its investments in derivative instruments. These instruments in which
the Fund may invest include: (i) Short-term obligations issued by the
U.S. Government; \11\ (ii) short-term negotiable obligations of
commercial banks, fixed time deposits, and bankers' acceptances of U.S.
and foreign banks and similar institutions; \12\ (iii) commercial paper
rated at the date of purchase ``Prime-1'' by Moody's Investors Service,
Inc. or ``A-1+'' or ``A-1'' by S&P or, if unrated, of comparable
quality, as the Adviser of the Fund determines; and (iv) money market
mutual funds, including affiliated money market funds.
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    \11\ The Fund may invest in U.S. government obligations.
Obligations issued or guaranteed by the U.S. Government or its
agencies or instrumentalities include bills, notes, and bonds issued
by the U.S. Treasury, as well as ``stripped'' or ``zero coupon''
U.S. Treasury obligations representing future interest or principal
payments on U.S. Treasury notes or bonds.
    \12\ Time deposits are non-negotiable deposits maintained in
banking institutions for specified periods of time at stated
interest rates. Banker's acceptances are time drafts drawn on
commercial banks by borrowers, usually in connection with
international transactions.
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    The Fund also may enter into repurchase agreements. These
agreements may be made with respect to any of the portfolio securities
in which the Fund is authorized to invest. Repurchase agreements may be
characterized as loans secured by the underlying securities. The Fund
may enter into repurchase agreements with (i) member banks of the
Federal Reserve System having total assets in excess of $500 million,
and (ii) securities dealers (``Qualified Institutions''). The Adviser
will monitor the continued creditworthiness of Qualified Institutions.
    In addition, the Fund may enter into reverse repurchase agreements,
which involve the sale of securities with an agreement to repurchase
the securities at an agreed-upon price, date, and interest payment and
have the characteristics of borrowing. The securities purchased with
the funds obtained from the agreement and securities collateralizing
the agreement will have maturity dates no later than the repayment
date.
    The Fund may purchase exchange-listed warrants. The Fund does not
expect to enter into swap agreements, including credit default swaps,
but may do so if such investments are in the best interests of the
Fund's shareholders.

C. The Exchange's Description of the Fund's Investment Restrictions

    According to the Exchange, the Fund may not concentrate its
investments (i.e., invest more than 25% of the value of its net assets)
in securities of issuers in any one industry or group of industries.
This restriction will not apply to obligations issued or guaranteed by
the U.S. government or its agencies or instrumentalities. The Fund's
investment in securities of other investment companies (including money
market funds) may exceed the limits permitted under the 1940 Act, in
accordance with certain terms and conditions set forth in a Commission
exemptive order issued to the Trust pursuant to Section 12(d)(1)(J) of
the 1940 Act.
    The Fund may hold up to an aggregate amount of 15% of its net
assets in illiquid securities or other illiquid assets (calculated at
the time of investment), including Rule 144A securities. The Fund will
monitor its portfolio liquidity on an ongoing basis to determine
whether, in light of current circumstances, an adequate level of
liquidity is being maintained, and will consider taking appropriate
steps in

order to maintain adequate liquidity if, through a change in values,
net assets, or other circumstances, more than 15% of the Fund's net
assets are held in illiquid securities or other illiquid assets.
Illiquid securities and other illiquid assets include those subject to
contractual or other restrictions on resale and other instruments or
assets that lack readily available markets as determined in accordance
with Commission staff guidance.
    The Fund intends to qualify for and to elect to be treated as a
regulated investment company under Subchapter M of the Internal Revenue
Code.
    As a result of the instruments that the Fund will hold, the Fund
will be subject to regulation by the Commodity Futures Trading
Commission and the National Futures Association (``NFA'') as a
commodity pool, and thus must comply with additional disclosure,
reporting, and recordkeeping rules imposed upon commodity pools.\13\
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    \13\ The Exchange represents that the Adviser has previously
registered as a commodity pool operator and commodity trading
advisor and also is a member of the NFA.
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    The Exchange represents that the Fund's investments will be
consistent with the Fund's investment objective. Additionally, the Fund
may engage in frequent and active trading of portfolio securities to
achieve its investment objective. The Fund may utilize instruments or
investment techniques that have a leveraging effect on the Fund. This
effective leverage occurs when the Fund's market exposure exceeds the
amounts actually invested. Any instance of effective leverage will be
covered in accordance with guidance promulgated by the Commission and
its staff. The Exchange represents that the Fund does not currently
intend to engage in any form of borrowing for investment purposes, and
will not be operated as a ``leveraged ETF,'' i.e., it will not be
operated in a manner designed to seek a multiple of the performance of
an underlying reference index.
    The Exchange represents that the Fund will not use futures for
speculative purposes, nor will the Fund invest in OTC equities or enter
into futures contracts that are not traded on a U.S. exchange.

III. Discussion and Commission Findings

    After careful review, the Commission finds that the Exchange's
proposal to list and trade the Shares is consistent with the Exchange
Act and the rules and regulations thereunder applicable to a national
securities exchange.\14\ In particular, the Commission finds that the
proposed rule change is consistent with Section 6(b)(5) of the Exchange
Act,\15\ which requires, among other things, that the Exchange's rules
be designed to promote just and equitable principles of trade, to
remove impediments to and perfect the mechanism of a free and open
market and a national market system, and, in general, to protect
investors and the public interest.
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    \14\ In approving this proposed rule change, the Commission has
considered the proposed rule's impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
    \15\ 15 U.S.C. 78f(b)(5).
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    The Commission also finds that the proposal to list and trade the
Shares on the Exchange is consistent with Section 11A(a)(1)(C)(iii) of
the Exchange Act,\16\ which sets forth the finding of Congress that it
is in the public interest and appropriate for the protection of
investors and the maintenance of fair and orderly markets to assure the
availability to brokers, dealers, and investors of information with
respect to quotations for and transactions in securities. Quotation and
last-sale information for the Shares will be available via Nasdaq
proprietary quote and trade services, as well as in accordance with the
Unlisted Trading Privileges and the Consolidated Tape Association plans
for the Shares. In addition, the Intraday Indicative Value, available
on the NASDAQ OMX Information LLC proprietary index data service, will
be widely disseminated by one or more major market data vendors at
least every 15 seconds during the Exchange's Regular Market Session. On
each Business Day, before commencement of trading in Shares in the
Regular Market Session on the Exchange, the Fund will disclose on its
Web site the ``Disclosed Portfolio'' of the Fund that will form the
basis for the Fund's calculation of NAV at the end of the Business
Day.\17\ In addition, to the extent the Fund permits full or partial
creations in-kind, a basket composition file, which will include the
security names and share quantities to deliver (along with requisite
cash in lieu) in exchange for Shares, together with estimates and
actual Cash Components, will be publicly disseminated daily prior to
the opening of the Exchange via the NSCC and at www.pstrader.net. The
basket will represent the equity component of the Shares of the Fund.
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    \16\ 15 U.S.C. 78k-1(a)(1)(C)(iii).
    \17\ In addition to disclosing the identities and quantities of
the portfolio of securities and other assets in the Disclosed
Portfolio, the Fund also will disclose on a daily basis on its Web
site the following information, as applicable to the type of
holding: Ticker symbol, CUSIP number, or other identifier, if any; a
description of the holding (including the type of holding) and the
identity of the security or other asset or instrument underlying the
holding, if any; for options, the option strike price; quantity held
(as measured by, for example, par value, notional value, or number
of shares, contracts or units); maturity date, if any; coupon rate,
if any; effective date, if any; market value of the holding; and
percentage weighting of the holding in the Fund's portfolio. The Web
site information will be publicly available at no charge.
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    The Fund's administrator will calculate the Fund's NAV per Share as
of the close of regular trading (normally 4:00 p.m., Eastern time
(``E.T.'')) on each Business Day.\18\ 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 for the Shares will be published daily
in the financial section of newspapers. The Exchange represents that
quotation and last-sale information for any U.S. exchange-traded
instruments will be available via the quote and trade service of their
respective primary exchanges, as well as in accordance with the
Unlisted Trading Privileges and the Consolidated Tape Association
plans. Quotation and last-sale information for any non-U.S. exchange-
listed securities will be available from the foreign exchanges on which
those securities trade as well as from major market data vendors.
Pricing information for any futures contracts or options will be
available via the quote

and trade service of their respective primary exchanges. Pricing
information related to U.S. government securities, money market mutual
funds, commercial paper, repurchase and reverse repurchase agreements,
and other short-term investments held by the Fund will be available
through publicly available quotation services, such as Bloomberg,
Markit, and Thomson Reuters.
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    \18\ The NAV per Share will be calculated for the Fund by
deducting all of the Fund's liabilities from the total value of its
assets and dividing the result by the number of Shares outstanding,
rounding to the nearest cent. According to the Exchange, securities
and other assets for which market quotations are readily available
will be valued at market value. Securities listed or traded on an
exchange (including high yield Global Equities, preferred stocks,
MLPs, REITs and warrants) will be valued at the last sale price or
official closing price that day as of the close of the exchange on
which those securities primarily trade. Shares of open-end
registered investment companies (i.e., mutual funds) will be valued
at net asset value; shares of exchange-traded investment companies
(i.e., ETFs) and ETNs will be valued at the last sale price or
official closing price on the exchange on which they primarily
trade. Futures contracts are valued as of the final settlement price
on the exchange on which they trade. Options will be valued at the
closing price (and, if no closing price is available, at the mean of
the last bid/ask quotations) from the exchange where those
instruments principally trade. U.S. government securities will be
valued at the mean price provided by a third party vendor. Illiquid
securities, as well as cash and cash equivalents, money market
funds, repurchase agreements (including reverse repurchase
agreements), and other short-term obligations (including corporate
commercial paper, negotiable short-term obligations of commercial
banks, fixed time deposits, bankers acceptances, and similar
securities) will each be valued in accordance with the Trust's
valuation policies and procedures, which have been approved by the
Trust's Board.
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    The Commission further believes that the proposal to list and trade
the Shares is reasonably designed to promote fair disclosure of
information that may be necessary to price the Shares appropriately and
to prevent trading when a reasonable degree of transparency cannot be
assured. The Exchange will obtain a representation from the issuer of
the Shares that the NAV per Share will be calculated daily and that the
NAV and the Disclosed Portfolio will be made available to all market
participants at the same time.
    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 also may be halted
because of market conditions or for reasons that, in the view of the
Exchange, make trading in the Shares inadvisable.\19\ These may
include: (1) The extent to which trading is not occurring in the
securities or the financial instruments constituting the Disclosed
Portfolio of the Fund; or (2) whether other unusual conditions or
circumstances detrimental to the maintenance of a fair and orderly
market are present. Trading in the Shares also will be subject to Rule
5735(d)(2)(D), which sets forth circumstances under which Shares of the
Fund may be halted.
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    \19\ These may include: (1) The extent to which trading is not
occurring in the securities and/or the financial instruments
constituting the Disclosed Portfolio of the Fund; or (2) whether
other unusual conditions or circumstances detrimental to the
maintenance of a fair and orderly market are present.
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    The Exchange represents that it also has a general policy
prohibiting the distribution of material, non-public information by its
employees.
    The Exchange represents that the Adviser is not a registered
broker-dealer but is affiliated with the Distributor, a broker-dealer.
The Adviser has implemented a ``fire wall'' between itself and the
Distributor with respect to the access of information concerning the
composition of or changes to the Fund's portfolio.\20\ Prior to the
commencement of trading, the Exchange will inform its members in an
Information Circular of the special characteristics and risks
associated with trading the Shares. The Exchange represents that
trading in the Shares will be subject to the existing trading
surveillances, administered by both Nasdaq and FINRA, on behalf of the
Exchange, which are designed to deter and detect violations of Exchange
rules and applicable federal securities laws and are adequate to
properly monitor trading in the Shares in all trading sessions.\21\
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    \20\ See supra note 5. The Exchange represents that an
investment adviser to an open-end fund is required to be registered
under the Investment Advisers Act of 1940 (``Advisers Act''). As a
result, the Adviser and 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 the Advisers Act and Rule 204A-1 thereunder. 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.
    \21\ The Exchange states that FINRA surveils trading on the
Exchange pursuant to a regulatory services agreement. The Exchange
is responsible for FINRA's performance under this regulatory
services agreement.
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    The Exchange represents that it deems the Shares to be equity
securities, thus rendering trading in the Shares subject to the
Exchange's existing rules governing the trading of equity securities.
    In support of this proposal, the Exchange has also made the
following representations:
    (1) The Shares will conform to the initial and continued listing
criteria applicable to Managed Fund Shares, as set forth under Rule
5735.
    (2) The Exchange has appropriate rules to facilitate transactions
in the Shares during all trading sessions. Trading in the Shares will
be subject to the existing trading surveillances, which are
administered by both Nasdaq and FINRA, on behalf of the Exchange, and
which are designed to detect violations of Exchange rules and
applicable federal securities laws, and these procedures are adequate
to properly monitor Exchange trading of the Shares in all trading
sessions and to deter and detect violations of Exchange rules and
applicable federal securities laws.
    (3) FINRA, on behalf of the Exchange, will communicate as needed
regarding trading in the Shares and other exchange-traded securities
(including the equity component securities, ETFs, ETNs, and warrants)
and instruments (including futures contracts and options) held by the
Fund with other markets and other entities that are members of the
ISG,\22\ and FINRA may obtain trading information regarding trading in
the Shares and other exchange-traded securities (including the equity
component securities, ETFs, ETNs, and warrants) and instruments
(including futures contracts and options) held by the Fund from those
markets and entities. In addition, the Exchange may obtain information
regarding trading in the Shares and other exchange-traded securities
(including the equity component securities, ETFs, ETNs, and warrants)
and instruments (including futures contracts and options) held by the
Fund from markets and other entities that are members of ISG, which
includes securities and futures exchanges, or with which the Exchange
has in place a comprehensive surveillance sharing agreement.
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    \22\ See supra note 10.
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    (4) Each component of the Fund's equity sleeve, which generally
corresponds to the Equity Component Index and is represented by a
combination of 150 high-yield securities that includes preferred
stocks, MLPs, REITs, and Global Equities, will be listed either on a
U.S. securities exchange or a member exchange of ISG. Further, with
regard to the Fund's investments in futures contracts and options,
those instruments shall have their principal trading market be a member
of ISG or a market with which the Exchange has a comprehensive
surveillance sharing agreement.
    (5) Prior to the commencement of trading, the Exchange will inform
its members in an Information Circular of the special characteristics
and risks associated with trading the Shares. Specifically, the
Information Circular will discuss the following: (i) The procedures for
purchases and redemptions of Shares in Creation Units (and that Shares
are not individually redeemable); (ii) Nasdaq Rule 2111A, which imposes
suitability obligations on Nasdaq members with respect to recommending
transactions in the Shares to customers; (iii) how information
regarding the Intraday Indicative Value and the Disclosed Portfolio is
disseminated; (iv) the risks involved in trading the Shares during the
Pre-Market and Post- Market

Sessions when an updated Intraday Indicative Value will not be
calculated or publicly disseminated; (v) the requirement that members
purchasing Shares from the Fund for resale to investors deliver a
prospectus to investors purchasing newly issued Shares prior to or
concurrently with the confirmation of a transaction; and (vi) trading
information. In addition, the Information Circular will advise members,
prior to the commencement of trading, of the prospectus delivery
requirements applicable to the Fund. Members purchasing Shares from the
Fund for resale to investors will deliver a prospectus to those
investors. The Information Circular will also discuss any exemptive,
no-action, or interpretive relief granted by the Commission from any
rules under the Exchange Act; will reference that the Fund is subject
to various fees and expenses; and will disclose the trading hours of
the Shares of the Fund and the applicable NAV calculation time for the
Shares.
    (6) For initial and continued listing, the Fund will be in
compliance with Rule 10A-3 \23\ under the Exchange Act.
---------------------------------------------------------------------------

    \23\ See 17 CFR 240.10A-3.
---------------------------------------------------------------------------

    (7) The Fund may not concentrate its investments (i.e., invest more
than 25% of the value of its net assets) in securities of issuers in
any one industry or group of industries. This restriction will not
apply to obligations issued or guaranteed by the U.S. government or its
agencies or instrumentalities.
    (8) The Fund may hold up to an aggregate amount of 15% of its net
assets in illiquid securities or other illiquid assets (calculated at
the time of investment), including Rule 144A securities. The Fund will
not use futures for speculative purposes, nor will the Fund invest in
OTC equities or enter into futures contracts that are not traded on a
U.S. exchange.
    (9) The Fund's investments will be consistent with the Fund's
investment objective.
    (10) The Fund may utilize instruments or investment techniques that
have a leveraging effect on the Fund. Any instance of effective
leverage will be covered in accordance with guidance promulgated by the
Commission and its staff.
    (11) The Fund does not presently intend to engage in any form of
borrowing for investment purposes, and it will not be operated as a
``leveraged ETF''--i.e., it will not be operated in a manner designed
to seek a multiple of the performance of an underlying reference index.
    (12) A minimum of 100,000 Shares will be outstanding at the
commencement of trading on the Exchange.

This approval order is based on all of the Exchange's representations,
including those set forth above and in the Notice, and the Exchange's
description of the Fund.
    For the foregoing reasons, the Commission finds that the proposed
rule change is consistent with Section 6(b)(5) of the Act \24\ and the
rules and regulations thereunder applicable to a national securities
exchange.
---------------------------------------------------------------------------

    \24\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Exchange Act,\25\ that the proposed rule change (SR-NASDAQ-2015-085),
be, and it hereby is, approved.
---------------------------------------------------------------------------

    \25\ 15 U.S.C. 78s(b)(2).
    \26\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\26\
Brent J. Fields,
Secretary.
[FR Doc. 2015-24060 Filed 9-22-15; 8:45 am]
 BILLING CODE 8011-01-P


The Honorable Mary L. Landrieu United States Senate Washington, DC 205 10 1 804 Dear Senator Landrieu: THE . ADMINISTRATOR Thank you for your letter of August 10,200 1, in which you describe concerns raised by many of your constituents about the . impact of the New Source Review ( NSR) program on energy production and use at industrial facilities. You dcscribe particular concerns about the potential for delays and uncertainty associated with NSR to discourage efficiency and reliability improvements and needed maintenance. I have heard similar concerns, and I believe that we must examine them in an effort to streamline NSR and promote greater flexibility and certainty while preserving the environmental benefits that the NSR program achieves.

As you note, the Environmental Protection Agency ( EPA) has been engaged in just such an examination, consistent with the National Energy Policy Report, which recobended that I, in consultation with the Secretary of Energy and other relevant agencies, review NSR regulations, including administrative interpretation and implementation and report to the President on the impact of NSR on investment in new utility and refinery generation capacity, energy efficiency, and environmental protection. During this review, the EPA has received over 130,000 mitten comments, met with over 100 stakeholder groups, and heard from over 250 witnesses at four hearings around the country, including one in Baton Rouge. We are now in the process of reviewing those comments and determining what improvements to NSR are needed to address concerns l i e those raised by your constituents. I expect to issue my fmd report on NSR shortly after I propose a comprehensive strategy that will significantly reduce air pollution at power plants.

Again, thank you for writing. I appreciate your interest in this issue and look forward to sharing our recommendations with you when our review is completed. If you have further questions, please do not hesitate to contact me or your staff may contact Diann Frantz of our Congressional and Intergovernmental Relations office at ( 202) 564 3668.

Sincerely yours,

L T M  Christine Todd Whitman internet Address ( URL) http:// w. epa. gov Rw; ycled/ Recyclable  Printed with Vegetable Oil Eased inks on Recycled Paper { Minimum 50% Postconsumer content)


[Federal Register: May 8, 2008 (Volume 73, Number 90)]
[Rules and Regulations]
[Page 26030-26032]
[DOCID:fr08my08-23]

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

DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

44 CFR Part 67

Final Flood Elevation Determinations

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Final rule.

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

SUMMARY: Base (1% annual chance) Flood Elevations (BFEs) and modified
BFEs are made final for the communities listed below. The BFEs and
modified BFEs are the basis for the floodplain management measures that
each community is required either to adopt or to show evidence of being
already in effect in order to qualify or remain qualified for
participation in the National Flood Insurance Program (NFIP).

DATES: The date of issuance of the Flood Insurance Rate Map (FIRM)
showing BFEs and modified BFEs for each community. This date may be
obtained by contacting the office where the maps are available for
inspection as indicated on the table below.

ADDRESSES: The final BFEs for each community are available for
inspection at the office of the Chief Executive Officer of each
community. The respective addresses are listed in the table below.

FOR FURTHER INFORMATION CONTACT: William R. Blanton, Jr., Engineering
Management Branch, Mitigation Directorate, Federal Emergency Management
Agency, 500 C Street, SW., Washington, DC 20472,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
(FEMA) makes the final determinations listed below for the modified
BFEs for each community listed. These modified elevations have been
published in newspapers of local circulation and ninety (90) days have
elapsed since that publication. The Assistant Administrator of the
Mitigation Directorate has resolved any appeals resulting from this
notification.
    This final rule is issued in accordance with section 110 of the
Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part
67. FEMA has developed criteria for floodplain management in floodprone
areas in accordance with 44 CFR part 60.
    Interested lessees and owners of real property are encouraged to
review the proof Flood Insurance Study and FIRM available at the
address cited below for each community.
    The BFEs and modified BFEs are made final in the communities listed
below. Elevations at selected locations in each community are shown.
    National Environmental Policy Act. This final rule is categorically
excluded from the requirements of 44 CFR part 10, Environmental
Consideration. An environmental impact assessment has not been
prepared.
    Regulatory Flexibility Act. As flood elevation determinations are
not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-
612, a regulatory flexibility analysis is not required.
    Regulatory Classification. This final rule is not a significant
regulatory action under the criteria of section 3(f) of Executive Order
12866 of September 30, 1993, Regulatory Planning and Review, 58 FR
51735.
    Executive Order 13132, Federalism. This final rule involves no
policies that have federalism implications under Executive Order 13132.
    Executive Order 12988, Civil Justice Reform. This final rule meets
the applicable standards of Executive Order 12988.

List of Subjects in 44 CFR Part 67

    Administrative practice and procedure, Flood insurance, Reporting
and recordkeeping requirements.

0
Accordingly, 44 CFR part 67 is amended as follows:

PART 67--[AMENDED]

0
1. The authority citation for part 67 continues to read as follows:

    Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR,
1979 Comp., p. 376.

Sec.  67.11  [Amended]

0
2. The tables published under the authority of Sec.  67.11 are amended
as follows:

----------------------------------------------------------------------------------------------------------------
                                                                      * Elevation in
                                                                        feet (NGVD)
                                                                      + Elevation in
                                            Location of referenced      feet (NAVD)
           Flooding source(s)                      elevation                    Communities affected
                                                                       Depth in feet
                                                                       above ground
                                                                         Modified
----------------------------------------------------------------------------------------------------------------
                                 Clarke County, Alabama, and Incorporated Areas
                                             Docket No.: FEMA-D-7826
----------------------------------------------------------------------------------------------------------------
Alabama River...........................  459 feet upstream of the               +35  Unincorporated Areas of
                                           intersection of Reedy                       Clarke County.
                                           Creek and Cross Section A.
                                          2,439 feet downstream of               +61
                                           intersection of Alabama
                                           River and Silver Creek
                                           Lake Road.
East Basset Creek.......................  The point where East                   +34  Unincorporated Areas of
                                           Basset Creek and County                     Clarke County.
                                           Highway 15 intersect.
                                          10,906 feet upstream of                +45
                                           the intersection of East
                                           Bassett Creek and County
                                           Highway 15.
Tombigbee River.........................  1,332 feet downstream of               +35  Unincorporated Areas of
                                           the intersection of                         Clarke County.
                                           Tombigbee River and
                                           Southern Railway.
                                          3,783 feet downstream of               +36
                                           the intersection of
                                           Tombigbee River and U.S.
                                           Highway 43.
----------------------------------------------------------------------------------------------------------------
* National Geodetic Vertical Datum.
+ North American Vertical Datum.
 Depth in feet above ground.

                                                    ADDRESSES
Unincorporated Areas of Clarke County
Maps are available for inspection at 114 Court Street, Grove Hill, AL 36451.
----------------------------------------------------------------------------------------------------------------
                                  Lee County, Kentucky, and Incorporated Areas
                                             Docket No.: FEMA-B-7748
----------------------------------------------------------------------------------------------------------------
Kentucky River-North Fork Kentucky River  Approximately 150 feet                +668  Unincorporated Areas of
                                           downstream of confluence                    Lee County.
                                           with Mirey Creek.
                                          Approximately 1550 feet               +671
                                           downstream of confluence
                                           with Blaines Branch.
----------------------------------------------------------------------------------------------------------------
* National Geodetic Vertical Datum.
+ North American Vertical Datum.
= North American Vertical Datum.
 Depth in feet above ground.
                                                    ADDRESSES
Unincorporated Areas of Lee County
Maps are available for inspection at Lee County Courthouse, 256 Main Street, Beattyville, KY 41311.
----------------------------------------------------------------------------------------------------------------
                               Tunica County, Mississippi, and Incorporated Areas
                                             Docket No.: FEMA-B-7724
----------------------------------------------------------------------------------------------------------------
Buck Island Bayou.......................  At Fields Road............            +189  Tunica County
                                                                                (Unincorporated Areas).
                                          At Highway 3..............            +189
Jack Lake Bayou.........................  At Jack Lake Crossing.....            +189  Tunica County
                                                                                (Unincorporated Areas).
                                          At Verner Road............            +191
Minton Bayou............................  At confluence with Jack               +189  Tunica County
                                           Lake Bayou.                                 (Unincorporated Areas).
                                          At Fields Road............            +190
White Oak Bayou.........................  At Highway 4..............            +181  Tunica County
                                                                                (Unincorporated Areas).
                                          At Highway 61.............            +186  ..........................
White Oak Bayou Tributary...............  At Academy Road...........            +190  Town of Tunica, Tunica
                                                                                County (Unincorporated
                                                                                Areas).
                                          At Fox Island Road........            +192
----------------------------------------------------------------------------------------------------------------
* National Geodetic Vertical Datum.
+ North American Vertical Datum.
 Depth in feet above ground.
                                                    ADDRESSES
Town of Tunica
Maps are available for inspection at Town Hall, 909 River Road, Tybuca, MS 38676.

Tunica County (Unincorporated Areas)
Maps are available for inspection at Office of Planning and Development, 1061 South Court Street, Tunica, MS
 38676.
----------------------------------------------------------------------------------------------------------------
                                 Dyer County, Tennessee, and Incorporated Areas
                                             Docket No.: FEMA-D-7822
----------------------------------------------------------------------------------------------------------------
Mississippi River.......................  Approximately 720 feet                +268  Unincorporated Areas of
                                           downstream from the                         Dyer County.
                                           confluence of Obion River.
                                          County boundary...........            +281
----------------------------------------------------------------------------------------------------------------
* National Geodetic Vertical Datum.
+ North American Vertical Datum.
 Depth in feet above ground.
                                                    ADDRESSES
Unincorporated Areas of Dyer County
Maps are available for inspection at Building Inspector's Office, 1 Veterans Square, Dyersburg, TN
 38025.
----------------------------------------------------------------------------------------------------------------

(Catalog of Federal Domestic Assistance No. 97.022, ``Flood
Insurance.'')

    Dated: April 21, 2008.
David I. Maurstad,
Federal Insurance Administrator of the National Flood Insurance
Program, Department of Homeland Security, Federal Emergency Management
Agency.
[FR Doc. E8-10336 Filed 5-7-08; 8:45 am]

BILLING CODE 9110-12-P


                             Acetamiprid (099050)
                     Screening Level Usage Analysis (SLUA)
                            Date: November 8, 2011

What is a Screening Level Usage Analysis (SLUA)?
      * Available estimates of pesticide usage data for a particular active ingredient that is used on agricultural crops in the United States.
      * Pesticide usage data obtained from various sources.  The data are then merged, averaged, and rounded so that the presented information is not proprietary, business confidential, or trade secret.
What does it contain?
      * Pesticide usage data for a single active ingredient only.
      * Agricultural use sites (crops) that the pesticide is reported to be used on.
      * Available pesticide usage information from U.S. states that produce 80% or more of a crop, in most cases, or less than 80%, in rare cases, depending on the scope of the survey and available resources.
      * Annual percent of crop treated (average & maximum) for each agricultural crop.
      * Average annual pounds of the pesticide applied for each agricultural crop (i.e., for the states surveyed, not for the entire United States).
What assumptions can I make about the reported data?
      * Average pounds of active ingredient applied - Values are calculated by merging pesticide usage data sources together; averaging across all observations, then rounding.  Note:  If the estimated value is less than 500, then that value is labeled <500.  Estimated values between 500 & <1,000,000 are rounded to 1 significant digit.  Estimated values of 1,000,000 or greater are rounded to 2 significant digits.)
      * Average percent of crop treated - Values are calculated by merging data sources together; averaging by year, averaging across all years, & rounding to the nearest multiple of 5.  Note:  If the estimated value is less than 2.5, then the value is labeled <2.5.  If the estimated value is less than 1, then the value is labeled <1.
      * Maximum percent of crop treated - Value is the single maximum value reported across all data sources, across all years, & rounded up to the nearest multiple of 5.  Note:  If the estimated value is less than 2.5, then the value is labeled <2.5.
What are the data sources used?
      * USDA-NASS (United States Department of Agriculture's National Agricultural Statistics Service)  -  pesticide usage data from 2001 to 2008.
      * Private pesticide market research  -  pesticide usage data from 2001 to 2010.
      * California Department of Pesticide Regulation (DPR) Pesticide Use Reporting (PUR) data for 2000 to 2009.
What are the limitations to the data?
      * Additional registered uses may exist but are not included because the available surveys do not report usage (e.g., small acreage crops).
      * Lack of reported usage data for the pesticide on a crop does not imply zero usage.
      * Usage data on a particular site may be noted in data sources, but not quantified.  In these instances, the site would not be reported in the SLUA.
      * Non-agricultural use sites (e.g., turf, post-harvest, mosquito control, etc.) are not reported in the SLUA.  A separate request must be made to receive these estimates.
      * Some sites show some use, even though they are not on the label.  This usage could be due to various factors, including, but not limited to Section 18 requests, existing stocks of the chemical, data collection errors, and experimental use permits (EUPs).

                               November 8, 2011

    Screening Level Estimates of Agricultural Uses of Acetamiprid (099050)
                             Sorted Alphabetically

                                                              Percent Crop Ttd.

			Crop
                                                                      Lbs. A.I.
                                                                           Avg.
                                                                           Max.
                                                                              1
Alfalfa
                                                                        <500
                                                                          <1
                                                                        <2.5
                                                                              2
Almonds *
                                                                        <500
                                                                          <1
                                                                        <2.5
                                                                              3
Apples
                                                                         20,000
                                                                             25
                                                                             40
                                                                              4
Artichokes *
                                                                        <500
                                                                            N/C
                                                                            N/C
                                                                              5
Beans, Green
                                                                        <500
                                                                          <1
                                                                        <2.5
                                                                              6
Broccoli
                                                                          1,000
                                                                             10
                                                                             15
                                                                              7
Brussels Sprouts*
                                                                        <500
                                                                            N/C
                                                                            N/C
                                                                              8
Cabbage
                                                                          1,000
                                                                             10
                                                                             15
                                                                              9
Caneberries
                                                                        <500
                                                                        <2.5
                                                                              5
                                                                             10
Cantaloupes
                                                                        <500
                                                                              5
                                                                             15
                                                                             11
Cauliflower
                                                                        <500
                                                                             10
                                                                             20
                                                                             12
Celery
                                                                          1,000
                                                                             35
                                                                             45
                                                                             13
Cherries
                                                                          1,000
                                                                              5
                                                                             15
                                                                             14
Chicory * +
                                                                        <500
                                                                            N/C
                                                                            N/C
                                                                             15
Cotton
                                                                         20,000
                                                                              5
                                                                              5
                                                                             16
Cucumbers
                                                                        <500
                                                                        <2.5
                                                                        <2.5
                                                                             17
Grapefruit
                                                                        <500
                                                                        <2.5
                                                                              5
                                                                             18
Grapes (all)
                                                                          2,000
                                                                             20
                                                                             30
                                                                             19
Lemons
                                                                        <500
                                                                        <2.5
                                                                              5
                                                                             20
Lettuce
                                                                          3,000
                                                                             15
                                                                             30
                                                                             21
Lima Beans
                                                                        <500
                                                                          <1
                                                                        <2.5
                                                                             22
Nectarines *
                                                                        <500
                                                                            N/C
                                                                            N/C
                                                                             23
Olives * +
                                                                        <500
                                                                            N/C
                                                                            N/C
                                                                             24
Onions
                                                                        <500
                                                                              5
                                                                              5
                                                                             25
Oranges
                                                                          4,000
                                                                        <2.5
                                                                             10
                                                                             26
Peaches
                                                                          1,000
                                                                              5
                                                                             10
                                                                             27
Pears
                                                                          5,000
                                                                             35
                                                                             60
                                                                             28
Pecans
                                                                        <500
                                                                          <1
                                                                        <2.5
                                                                             29
Peppers
                                                                        <500
                                                                              5
                                                                             15
                                                                             30
Pistachios
                                                                        <500
                                                                          <1
                                                                        <2.5
                                                                             31
Potatoes
                                                                          1,000
                                                                        <2.5
                                                                        <2.5
                                                                             32
Prunes
                                                                        <500
                                                                              5
                                                                              5
                                                                             33
Pumpkins
                                                                        <500
                                                                              5
                                                                              5
                                                                             34
Spinach
                                                                        <500
                                                                             10
                                                                             20
                                                                             35
Squash
                                                                          1,000
                                                                        <2.5
                                                                        <2.5
                                                                             36
Strawberries
                                                                          3,000
                                                                             30
                                                                             50
                                                                             37
Tobacco
                                                                        <500
                                                                          <1
                                                                        <2.5
                                                                             38
Tomatoes
                                                                          1,000
                                                                              5
                                                                             10
                                                                             39
Walnuts
                                                                          1,000
                                                                              5
                                                                             10
                                                                             40
Watermelons
                                                                        <500
                                                                          <1
                                                                        <2.5

All numbers rounded.
                                                                        <500
Less than 500 pounds of active ingredient
                                                                        <2.5
Less than 2.5 percent of crop treated
                                                                          <1
Less than 1 percent of crop treated
                                                                            N/C
Only Lbs. A.I. available
                                                                              *
Based on CA DPR data only (valid because 95% or more of U.S. acres grown are in California)
                                                                              +
Crops not known to be listed on active end use product registrations or as Section 18 emergency
exemptions when this report was run

SLUA data sources include:
  USDA-NASS (United States Department of Agriculture's National Agricultural Statistics Service)
Private Pesticide Market Research
  California DPR (Department of Pesticide Regulation)

These results reflect amalgamated data developed by the Agency and are releasable to the public.


[Federal Register Volume 79, Number 5 (Wednesday, January 8, 2014)]
[Notices]
[Pages 1399-1401]
[FR Doc No: 2014-00072]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-71228; File No. SR-Phlx-2013-128]

Self-Regulatory Organizations; The NASDAQ OMX PHLX LLC; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change To Further
Describe the Application of Fees Assessed for Connectivity to the
Carteret Test Environment under Chapter VIII of the Exchange's Pricing
Schedule

January 2, 2014.
    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 December 23, 2013, NASDAQ OMX PHLX LLC (``Phlx'' or the
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') a 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.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of the
Substance of the Proposed Rule Change

    The Exchange proposes a rule change to further describe the
application of fees assessed pursuant to subparagraph (d) of ``Testing
Facilities'' under Chapter VIII of the Exchange's Pricing Schedule. The
Exchange is also eliminating outdated text relating to the
applicability of the fees assessed for use and connectivity to the
Testing Facilities.
    The text of the proposed rule change is below. Proposed new
language is italicized. Proposed deletions are in brackets.
* * * * *

NASDAQ OMX PHLX LLC \1\ PRICING SCHEDULE

    ALL BILLING DISPUTES MUST BE SUBMITTED TO THE EXCHANGE IN WRITING
AND MUST BE ACCOMPANIED BY SUPPORTING DOCUMENTATION. ALL DISPUTES MUST
BE SUBMITTED NO LATER THAN SIXTY (60) DAYS AFTER RECEIPT OF A BILLING
INVOICE, EXCEPT FOR DISPUTES CONCERNING NASDAQ OMX PSX FEES,
PROPRIETARY DATA FEED FEES AND CO-LOCATION SERVICES FEES. AS OF JANUARY
3, 2011, THE EXCHANGE

WILL CALCULATE FEES ON A TRADE DATE BASIS.
------------------
\1\ PHLX[supreg] is a registered trademark of The NASDAQ OMX Group,
Inc.
* * * * *
VIII. NASDAQ OMX PSX FEES
* * * * *

Testing Facilities[[dagger]]

    The Exchange operates two test environments. One is located in
Ashburn, Virginia and the other in Carteret, New Jersey. Unless
otherwise noted, reference to the ``Testing Facility'' applies to both
environments.
    (a)-(c) No change.
    (d) Subscribers to the Testing Facility located in Carteret, New
Jersey shall pay a fee of $1,000 per hand-off, per month for connection
to the Testing Facility. The hand-off fee includes either a 1Gb or 10Gb
switch port and a cross connect to the Testing Facility. Subscribers
shall also pay a one-time installation fee of $1,000 per hand-off,
which is waived for all installations ordered prior to March 31, 2014.
The connectivity provided under this rule also provides connectivity to
the other test environments of NASDAQ OMX BX, Inc. and The NASDAQ Stock
Market LLC.
[[dagger] Testing Facility fees will be waived for the period ending on
the sixth full calendar month following the launch of NASDAQ OMX PSX.]
* * * * *

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 those statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant parts of such
statements.

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

1. Purpose
    The Exchange is proposing to amend the Phlx Pricing Schedule to
more fully describe the application of the newly-adopted fee \3\
assessed for direct connectivity to the Testing Facility \4\ test
environment located in Carteret, New Jersey (``Carteret''). The Testing
Facility provides subscribers with a virtual Exchange System test
environment that closely approximates the production environment and on
which they may test their automated systems that integrate with the
Exchange. The Exchange recently developed a test environment located in
Carteret that provides NASDAQ OMX PSX (``PSX'') \5\ equity trade
testing functionality. The new test environment was developed together
with equity test environments of the Phlx's sister exchanges, NASDAQ
OMX BX, Inc. and The NASDAQ Stock Market LLC, also located at Carteret,
New Jersey (collectively with PSX, the ``Equity Markets'').
---------------------------------------------------------------------------

    \3\ See Securities Exchange Act Release No. 71036 (December 11,
2013), 78 FR 76350 (December 17, 2013) (SR-Phlx-2013-116).
    \4\ See http://www.nasdaqtrader.com/Trader.aspx?id=TestingFacility for a description of the Testing
Facility.
    \5\ PSX is the Phlx equity market.
---------------------------------------------------------------------------

    The Exchange is proposing to add language to subparagraph (d) of
``Testing Facilities'' under Chapter VIII of the Exchange's Pricing
Schedule that was erroneously omitted when the fee was originally
adopted.\6\ The new rule text explains that a firm that is a member of
more than one of the Equity Markets may access the test environments of
each of the Equity Markets of which it is a member through a single
connectivity subscription under the rule. The Exchange notes that each
of the Equity Markets has identical installation and hand-off fees for
Carteret connectivity and these fees relate to the physical connection
to the hardware infrastructure that houses all three test environments
of the Equity Markets. Members of the Equity Markets must separately
pay port fees to connect to the individual test environments of the
Equity Markets of which it is a member within the hardware
infrastructure housing them.\7\ Therefore, a firm that is a member of
multiple Equity Markets is not charged the Carteret connectivity fees
for a hand-off under each of the identical rules of such markets, but
rather is assessed a single market's Carteret connectivity fees.
Consequently, a member organization of PSX using the Carteret test
environment may be assessed the connectivity fee under another Equity
Markets' rules of which it is a member, yet pay the PSX port fee to
connect to the PSX test environment. Similarly, a member organization
may subscribe to Carteret connectivity under the Phlx Pricing Schedule
and not have an obligation to pay the same fee under the rules of the
other Equity Markets of which it is a member, but have an obligation to
pay those markets' port fees. The Exchange notes that, in adopting the
identical fee for Carteret connectivity, NASDAQ OMX BX, Inc. included
rule text consistent with the rule text proposed herein.\8\
Accordingly, the Exchange is adding rule text to Carteret connectivity
fee rule to reflect that the connectivity provided by the rule also
provides access to the test environments of NASDAQ OMX BX, Inc. and The
NASDAQ Stock Market LLC.
---------------------------------------------------------------------------

    \6\ Supra note 3.
    \7\ Phlx Pricing Schedule, Chapter VIII Testing Facilities
subparagraph (a), NASDAQ Rule 7030(d)(1)(B), and BX Rule 7030(d)(1).
    \8\ See Securities Exchange Act Release No. 71035 (December 11,
2013), 78 FR 76344 (December 17, 2013) (SR-BX-2013-058).
---------------------------------------------------------------------------

    The Exchange is also eliminating text from the Testing Facilities
rule that relates to a general waiver of fees under the rule, which was
effective with the launch of PSX and ended six months thereafter. PSX
launched in October 2010,\9\ and consequently the fee waiver period has
expired. Accordingly, the Exchange is removing the text relating to
this fee waiver period.
---------------------------------------------------------------------------

    \9\ See http://www.nasdaqtrader.com/Tradernews.aspx?id=eta2010-56.
---------------------------------------------------------------------------

2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section
6(b) of the Act \10\ in general, and with Section 6(b)(5) of the
Act,\11\ in particular. The Exchange believes the proposal furthers the
objectives of Section 6(b)(5) of the Act \12\ in that it is designed to
promote just and equitable principles of trade, to remove impediments
to and perfect the mechanism of a free and open market and a national
market system, and, in general to protect investors and the public
interest and is not designed to permit unfair discrimination between
customer, issuers, brokers and dealers. The Exchange is proposing to
add clarifying language to the rule, which was erroneously omitted when
the rule was adopted and further describes the application of the rule.
Moreover, the proposed new rule text is consistent with the identical
rule of NASDAQ OMX BX, Inc. and how fees are assessed under that rule.
Last, the Exchange is proposing to eliminate outdated rule text from
the rule, which serves no purpose. Accordingly, the Exchange believes
that it is consistent with the protection of investors and the public

interest to avoid potential market participant confusion that may be
caused by the omission of the proposed rule text and the inclusion of
outdated rule text.
---------------------------------------------------------------------------

    \10\ 15 U.S.C. 78f(b).
    \11\ 15 U.S.C. 78f(b)(5).
    \12\ Id.
---------------------------------------------------------------------------

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
result in any burden on competition that is not necessary or
appropriate in furtherance of the purposes of the Act, as amended. The
proposed rule change clarifies how fees will be assessed to a firm that
is a member of more than one of the Equity Markets and makes clear that
a member organization may gain access to the test environments of the
other Equity Markets through a subscription under the rule. Members of
multiple Equity Markets are assessed the same fee for Carteret
connectivity and must pay the port fees of each of the Equity Markets
to gain access to such markets' test environments. In addition, the
proposed change eliminates rule text that relates to a fee waiver that
has since expired. As a consequence, the Exchange does not believe that
the proposed rule change is impactful to competition in any respect.

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

    Written comments were neither solicited nor received.

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

    The Exchange has filed the proposed rule change pursuant to Section
19(b)(3)(A) of the Act \13\ and Rule 19b-4(f)(6) \14\ thereunder.
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 \15\ and subparagraph (f)(6) of Rule
19b-4 thereunder.\16\
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    \13\ 15 U.S.C. 78s(b)(3)(A).
    \14\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires the Exchange to give the Commission written notice of the
Exchange's 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.
    \15\ 15 U.S.C. 78s(b)(3)(A).
    \16\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

    A proposed rule change filed under Rule 19b-4(f)(6) \17\ normally
does not become operative prior to 30 days after the date of the
filing. However, pursuant to Rule 19b-4(f)(6)(iii),\18\ the Commission
may designate a shorter time if such action is consistent with the
protection of investors and the public interest.
---------------------------------------------------------------------------

    \17\ Id.
    \18\ 17 CFR 240.19b-4(f)(6)(iii).
---------------------------------------------------------------------------

    The Exchange has asked the Commission to waive the 30-day operative
delay. The Exchange notes that such waiver will allow the Exchange to
immediately add language to its rule text that was incorrectly omitted
from a previous rule change, thereby clarifying its rules and avoiding
potential market participant confusion.\19\ The Commission believes
that waiving the 30-day operative delay is consistent with the
protection of investors and the public interest as the proposal is
designed to avoid potential investor confusion regarding the Exchange's
rules and provide clarification to the public. For these reasons, the
Commission hereby waives the 30-day operative delay and designates the
proposal operative upon filing.\20\
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    \19\ See SR-Phlx-2013-128, Item 7.
    \20\ For purposes only of waiving the 30-day operative delay,
the Commission 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-Phlx-2013-128 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-Phlx-2013-128. 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 Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for 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 such filing also will be available
for inspection and copying at the principal offices of the Exchange.
All comments received will be posted without change; the Commission
does not edit personal identifying information from submissions. You
should submit only information that you wish to make available
publicly. All submissions should refer to File Number SR-Phlx-2013-128,
and should be submitted on or before January 29, 2014.
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    \21\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\21\
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2014-00072 Filed 1-7-14; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register: August 18, 2009 (Volume 74, Number 158)]
[Notices]
[Page 41765-41766]
[DOCID:fr18au09-84]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-60465; File No. SR-BX-2009-041]

Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of
Filing of Proposed Rule Change To Eliminate Chapter V, Section 13
(Unusual Market Conditions) of the BOX Trading Rules and To Modify
Related Rules

August 10, 2009.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (``Act''),\2\ and Rule 19b-4 thereunder,\3\ notice is hereby given
that on August 3, 2009, NASDAQ OMX BX, Inc. (the ``Exchange'') filed
with the Securities and Exchange Commission (``Commission'') the
proposed rule change as described in Items I, II and III below, which
Items have been prepared by the Exchange. The Commission is publishing
this notice to solicit comments on the proposed rule change from
interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The purpose of the proposed rule change is to eliminate Chapter V,
Section 13 (Unusual Market Conditions) of the Trading Rules of the
Boston Options Exchange Group, LLC (``BOX'') and to modify related
rules. The text of the proposed rule change is available from the
principal office of the Exchange, at the Commission's Public Reference
Room and also on the Exchange's Internet Web site at http://
nasdaqomxbx.cchwallstreet.com/NASDAQOMXBX/Filings/.

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 purpose of the proposed rule is to eliminate Chapter V, Section
13, as well as certain ancillary rules, which deal with so-called
``fast markets.'' The Exchange believes that ``fast market'' conditions
do not occur on the electronic and automated BOX market. In cases in
which a system malfunction or other occurrence caused a delay in
disseminating accurate quotes, rather than relying on the current rules
in Chapter V, Section 13, the Exchange would halt trading until the
issue could be resolved.
    The Exchange proposes to eliminate Chapter V, Section 13, as well
as certain ancillary rules relating to fast markets. The Exchange has
never declared a fast market. Generally, a fast market is characterized
by heavy trading and high price volatility in which orders may be
submitted to market makers at such a rapid pace that a backlog of
orders builds, causing delays in execution. If such a fast market
occurred, delays could in turn cause significant price differentials
between the quoted price and executed price. Generally, Chapter V,
Section 13 provides that if the Exchange declared a fast market, it may
inform traders that quotes are not firm and to take other actions as
necessary in furtherance of a fair and orderly market.
    Chapter V, Section 13 provides for an Options Official to determine
that the level of trading activity or the existence of unusual market
conditions is such that BOX is incapable of collecting, processing, and
making available to quotation vendors the data for the option in a
manner that accurately reflects the current state of the market on BOX.
Pursuant to current rules, if an Options Official determined the market
in the option to be ``fast,'' the Official could take various steps
including suspending minimum size requirements for quotations, turning
off the Price Improvement Period (``PIP'') process, or taking other
actions in order to promote a fair and orderly market.
    In an electronic market such as BOX, during trading hours, orders
are

matched automatically with quotes on the other side of the market
according to time priority, and executed immediately.\4\ Because there
is no trading floor and all orders are received and managed
electronically, all orders on BOX are executed with matching contra
orders within a fraction of a second after the matching quote is
received.\5\ Any backlog in processing orders would be a result of a
systems malfunction rather than from fast market conditions. Should any
such backlog occur, the Exchange would halt trading on BOX until the
issue could be resolved.\6\ Accordingly, the Exchange believes Chapter
V, Section 13 is unnecessary in the BOX Rules and should be removed.
---------------------------------------------------------------------------

    \4\ See BOX Trading Rules, Chapter V, Section 16.
    \5\ Subject to certain exceptions written into the BOX Trading
Rules, such as Directed Orders (Chapter VI, Section 5(b)-(c)), and
other exposure periods (See generally Chapter V, Section 16
(Execution and Price/Time Priority).
    \6\ See BOX Trading Rules, Chapter V, Section 10(a).
---------------------------------------------------------------------------

    In addition to removing Chapter V, Section 13, the proposed rule
change would also remove certain rules related to fast markets. The
Exchange proposes to modify Chapter VI, Section 6(a) to remove a fast
market rule exception to the general rule that all Market Maker bids or
offers must be of a size of at least ten (10) contracts. The Exchange
also proposes to amend Section 6(c). First, Section 6(c)(ii)(2) will be
removed to reflect the previously described removal of Chapter V,
Section 13. Second, references to Rule 11Ac1-1 will be replaced with
Rule 602 of Regulation NMS under the Exchange Act (``Rule 602''). With
the implementation of Regulation NMS, Rule 11Ac1-1, in pertinent part,
has been incorporated into Rule 602. The proposed rule change would
also modify Chapter XIV (Index Rules), Section 9(b) (Trading Sessions)
by eliminating the declaration of a fast market as a factor in
determining whether to delay the opening of the index options market.
2. Statutory Basis
    The Exchange believes that the proposal is consistent with the
requirements of Section 6(b) of the Act,\7\ in general, and Section
6(b)(5) of the Act,\8\ 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, to
remove impediments to and perfect the mechanism of a free and open
market and a national market system, and, in general, to protect
investors and the public interest. Specifically, the proposal will
align the BOX Rules to more accurately reflect the circumstances
surrounding trading on an electronic exchange and promote transparency.
---------------------------------------------------------------------------

    \7\ 15 U.S.C. 78f(b).
    \8\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
result in any burden on competition that is not necessary or
appropriate in furtherance of the purposes of the Act.

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

    The Exchange has neither solicited nor received comments on the
proposed rule change.

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

    Within 35 days of the date of publication of this notice in the
Federal Register or within such longer period (i) as the Commission may
designate up to 90 days of such date if it finds such longer period to
be appropriate and publishes its reasons for so finding or (ii) as to
which the self-regulatory organization consents, the Commission will:
    (A) By order approve the proposed rule change, or
    (B) institute proceedings to determine whether the proposed rule
change should be disapproved.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://
www.sec.gov/rules/sro.shtml); or
     Send an e-mail to<EMAIL_ADDRESS>Please include
File Number SR-BX-2009-041 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-BX-2009-041. This file
number should be included on the subject line if e-mail is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/
sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for inspection and
copying in the Commission's Public Reference Room, 100 F Street, NE.,
Washington, DC 20549, on official business days between the hours of 10
a.m. and 3 p.m. Copies of the filing also will be available for
inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-BX-2009-041 and should be
submitted on or before September 8, 2009.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\9\
---------------------------------------------------------------------------

    \9\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-19732 Filed 8-17-09; 8:45 am]

BILLING CODE 8010-01-P