[Federal Register Volume 74, Number 9 (Wednesday, January 14, 2009)]
[Notices]
[Pages 2149-2150]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-611]



[[Page 2149]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59214; File No. SR-NASDAQ-2008-096]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Order 
Granting Accelerated Approval to a Proposed Rule Change Relating to the 
Generic Listing Standards for Index Multiple Exchange Traded Fund 
Shares and Index Inverse Exchange Traded Fund Shares

January 7, 2009.

I. Introduction

    On December 9, 2008, The NASDAQ Stock Market LLC (``Nasdaq'') 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 permit 
Nasdaq to list and trade, or trade pursuant to unlisted trading 
privileges (``UTP''), shares of a series of Index Multiple Exchange 
Traded Fund Shares (``Multiple Fund Shares'') and Index Inverse 
Exchange Traded Fund Shares (``Inverse Fund Shares'') (collectively, 
the ``Fund Shares''). The proposed rule change was published in the 
Federal Register on December 22, 2008 for a 15-day comment period.\3\ 
The Commission received no comments on the proposal. This order 
approves the proposed rule change on an accelerated basis.
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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. 59098 (December 12, 
2008), 73 FR 78415 (``Notice'').
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II. Description of the Proposal

    Nasdaq Rule 4420(j) provides standards for listing Index Fund 
Shares (``IFSs'') on the Exchange. Nasdaq proposes to revise Nasdaq 
Rule 4420(j)(1)(B)(iii) to allow the listing and trading of Multiple 
Fund Shares and Inverse Fund Shares that sought to provide investment 
results, before fees and expenses, in an amount not exceeding -300%, 
rather than -200%, of the underlying benchmark index pursuant to Rule 
19b-4(e) under the Act,\4\ where the other applicable generic listing 
standards for IFSs are satisfied. In connection with Inverse Funds that 
seek to provide investment results, before fees and expenses, in an 
amount that exceeds -300% of the underlying benchmark index, the 
Exchange's proposal would continue to require specific Commission 
approval pursuant to Section 19(b)(2) of the Act.\5\ In particular, 
Nasdaq Rule 4420(j)(1)(B)(iii) would expressly prohibit Inverse Funds 
that seek to provide investment results, before fees and expenses, in 
an amount that exceeds -300% of the underlying benchmark index, from 
being approved by the Exchange for listing and trading pursuant to Rule 
19b-4(e) under the Act.\6\
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    \4\ 17 CFR 240.19b-4(e).
    \5\ 15 U.S.C. 78s(b)(2).
    \6\ 17 CFR 240.19b-4(e).
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    Additional information about the proposed rule change and IFSs, 
including applicable generic listing standards, limitation on leverage, 
availability of information about Fund Shares and underlying indexes, 
trading halts, suitability, and surveillance, among other things, is 
contained in the Notice.\7\
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    \7\ See supra note 3.
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III. Discussion and Accelerated Approval

    After careful review, the Commission finds that the proposed rule 
change is consistent with the requirements of the Act and the rules and 
regulations thereunder applicable to a national securities exchange 
and, in particular, with Section 6(b) of the Act \8\ and the rules and 
regulations thereunder. Specifically, the Commission finds that the 
proposed rule change is consistent with Section 6(b)(5) of the Act \9\ 
which requires, among other things, that the rules of a national 
securities exchange be designed to prevent fraudulent and manipulative 
acts and practices, 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.\10\
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    \8\ 15 U.S.C. 78f(b).
    \9\ 15 U.S.C. 78f(b)(5).
    \10\ 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).
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    The Commission believes that the Exchange's proposal reasonably 
balances the removal of impediments to a free and open market with the 
protection of investors and the public interest, two principles set 
forth in Section 6(b)(5) of the Act. The Commission notes that it has 
previously approved the listing and trading of various leveraged 
exchange-traded funds, including trading pursuant to unlisted trading 
privileges on the Exchange, that seek daily investment results, before 
fees and expenses, that correspond to twice the inverse or opposite of 
the daily performance (-200%) of the underlying index.\11\ The 
Commission also notes that the proposed rule change is substantially 
similar to another exchange's generic listing requirements for Multiple 
Fund Shares and Inverse Fund Shares.\12\ With respect to the listing 
and trading of a series of Inverse Fund Shares that seek to provide 
investment results that exceed -300% of the percentage performance of 
an underlying benchmark index, the Commission further notes that the 
Exchange would be required to obtain prior Commission approval pursuant 
to Section 19(b)(2) of the Act.
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    \11\ See, e.g., Securities Exchange Act Release Nos. 56713 
(October 29, 2007), 72 FR 61915 (November 1, 2007) (SR-Amex-2007-74) 
(approving the listing and trading of Rydex Leveraged Funds, Inverse 
Funds and Leveraged Inverse Funds); 52553 (October 3, 2005), 70 FR 
59100 (October 11, 2005) (SR-Amex-2004-62) (approving the listing 
and trading of the ProShares Ultra Funds and Short Funds); 54040 
(June 23, 2006), 71 FR 37629 (June 30, 2006) (SR-Amex-2006-41) 
(approving the listing and trading of the ProShares UltraShort 
Funds); 55117 (January 17, 2007), 72 FR 3442 (January 25, 2007) (SR-
Amex-2006-101) (approving the listing and trading of Ultra, Short 
and UltraShort Funds based on various indexes); 56592 (October 1, 
2007), 72 FR 57364 (October 9, 2007) (SR-Amex-2007-60) (approving 
the listing and trading of ProShares Ultra, Short and UltraShort 
Funds based on various international indexes); and 56998 (December 
19, 2007), 72 FR 73404 (December 27, 2007) (SR-Amex-2007-104) 
(approving the listing and trading of ProShares Ultra, Short and 
UltraShort Funds based on several fixed income indexes, among 
others). See also, e.g., Securities Exchange Act Release Nos. 56763 
(November 7, 2007), 72 FR 64103 (November 14, 2007) (SR-NYSEArca-
2007-81) (approving UTP trading of shares of funds of Rydex ETF 
Trust); 56601 (October 2, 2007), 72 FR 57625 (October 10, 2007) (SR-
NYSEArca-2007-79) (approving UTP trading of shares of eight funds of 
the ProShares Trust); 55125 (January 18, 2007), 72 FR 3462 (January 
25, 2007) (SR-NYSEArca-2006-87) (approving UTP trading of shares of 
81 funds of the ProShares Trust); and 54026 (June 21, 2006), 71 FR 
36850 (June 28, 2006) (SR-PCX-2005-115) (approving UTP trading of 
shares of funds of the ProShares Trust).
    \12\ See Securities Exchange Act Release No. 58825 (October 21, 
2008), 73 FR 63756 (October 27, 2008) (SR-NYSEArca-2008-89).
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    The Commission also notes that Fund Shares must comply with all of 
the applicable provisions under Nasdaq Rule 4420(j), as proposed to be 
amended as well as all other requirements applicable to IFSs including, 
without limitation, requirements relating to the dissemination of 
intraday indicative value, index value, disclosure of portfolio 
holdings, rules and policies governing the trading of equity 
securities, trading hours, trading halts, surveillance, firewalls, and 
Information Circulars to member and member organizations, as set forth 
in prior Commission orders approving the generic listing rules 
applicable to the listing and trading of IFSs.
    The Commission further notes that the proposed rule change is 
reasonably designed to promote fair disclosure of

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information that may be necessary to price the Shares appropriately and 
to prevent trading when a reasonable degree of transparency cannot be 
assured. Nasdaq Rule 4420(j)(1)(B)(iv) requires daily public Web site 
disclosure of its portfolio holdings including, as applicable, the 
identity and number of shares held of each specific equity security, 
the identity and amount held of each fixed income security, the 
specific types of Financial Instruments and characteristics of such 
instruments, and cash equivalents and the amount of cash held in the 
portfolio of a fund. With respect to such Financial Instruments, the 
Commission notes that a notification procedure will be implemented by 
the Exchange so that timely notice from the investment adviser of such 
Multiple or Inverse Fund is received by the Exchange when a particular 
Financial Instrument is in default or shortly to be in default. The 
Commission also notes that the Exchange would be required to halt 
trading if Nasdaq becomes aware that the NAV or the identities and 
quantities of the portfolio of securities and other assets with respect 
to a Fund Share is not disseminated to all market participants at the 
same time.
    In addition, the Commission notes that the Exchange's suitability 
requirements would apply to the trading of Multiple Fund Shares and 
Inverse Fund Shares. Specifically, prior to commencement of trading, 
the Exchange will issue an Information Circular to its members and 
member organizations providing guidance with regard to member firm 
compliance responsibilities (including suitability obligations) when 
effecting transactions in the Fund Shares and highlighting the special 
risks and characteristics of Funds Shares as well as applicable 
Exchange rules.
    In sum, the Commission believes that the Exchange's proposed 
amendments to Nasdaq Rule 4420(j) relating to the listing and trading 
of Multiple Fund Shares and Inverse Fund Shares should fulfill the 
intended objective of Rule 19b-4(e) under the Act by allowing such 
derivative securities products to be listed and traded without separate 
Commission approval. The Commission believes that the proposed rule 
change should facilitate the listing and trading of additional types of 
exchange-traded products and reduce the time frame for bringing these 
securities to market, thereby reducing the burdens on issuers and other 
market participants and promoting competition.
    The Commission finds good cause, pursuant to Section 19(b)(2) of 
the Act,\13\ for approving the proposed rule change prior to the 30th 
day after the date of publication of notice in the Federal Register. 
The Commission notes that it has previously approved a substantially 
similar proposed rule change of another self-regulatory 
organization.\14\ No comments were received on the proposed rule change 
during the 15-day comment period, and the Commission believes that the 
Exchange's proposal does not present any novel regulatory issues.
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    \13\ 17 CFR 240.10A-3.
    \14\ See supra note 12.
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    As such, the Commission believes that accelerating approval of this 
proposal should benefit investors by creating, without undue delay, 
additional competition in the market for such products.

IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\15\ that the proposed rule change (SR-NASDAQ-2008-096) be, and 
hereby is, approved on an accelerated basis.
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    \15\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\16\
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    \16\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-611 Filed 1-13-09; 8:45 am]
BILLING CODE 8011-01-P