[Federal Register Volume 87, Number 116 (Thursday, June 16, 2022)]
[Notices]
[Pages 36347-36351]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-12943]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-95082; File No. SR-NASDAQ-2022-035]


Self-Regulatory Organizations; The Nasdaq Stock Market LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change 
Relating to the ALPS Active REIT ETF of ALPS ETF Trust To Provide for 
the Use of ``Custom Baskets'' Applicable to a Series of Proxy Portfolio 
Shares Listed Pursuant to Nasdaq Rule 5750

June 10, 2022.
    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 May 27, 2022, The Nasdaq Stock Market LLC (``Nasdaq'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission'') the proposed rule change as described in Items I and 
II below, which Items have been prepared by the self-regulatory 
organization. The Commission is publishing this notice to

[[Page 36348]]

solicit comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to provide for the use of ``Custom Baskets'' 
consistent with the exemptive relief issued pursuant to the Investment 
Company Act of 1940 applicable to a series of Proxy Portfolio Shares.
    The text of the proposed rule change is available on the Exchange's 
website at https://listingcenter.nasdaq.com/rulebook/nasdaq/rules, at 
the principal office of the Exchange, and at the Commission's Public 
Reference Room.

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

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

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

1. Purpose
    In June 2020 Nasdaq submitted a proposed rule change for immediate 
effectiveness with the Commission for the listing and trading, or 
trading pursuant to unlisted trading privileges, of Proxy Portfolio 
Shares under Nasdaq Rule 5750 (``Proxy Portfolio Shares''), the rule 
governing the listing and trading of Proxy Portfolio Shares on the 
Exchange.\3\ In February 2021 Nasdaq filed a proposed rule change for 
immediate effectiveness to list and trade shares of the Fund under 
Nasdaq Rule 5750 (``ALPS Fund Filing'').\4\ Subsequently, the 
Commission approved a filing to amend Nasdaq Rule 5750 (``Custom 
Baskets Filing'') to provide for the use of ``Custom Baskets'' 
consistent with the exemptive relief issued pursuant to the Investment 
Company Act of 1940 (the ``1940 Act'') applicable to a series of Proxy 
Portfolio Shares.\5\ The Exchange filed this proposed rule change to 
permit the Fund to use Custom Baskets.
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    \3\ Nasdaq submitted for immediate effectiveness a proposed rule 
change for Nasdaq Rule 5750 in Securities Exchange Act Release No. 
89110 (June 22, 2020), 85 FR 38461 (June 26, 2020) (SR-NASDAQ-2020-
032).
    \4\ See Securities Exchange Act Release No. 91062 (Feb. 4, 
2021), 86 FR 8972 (Feb. 10, 2021) (SR-NASDAQ-2021-005).
    \5\ See Securities Exchange Act Release No. 93277 (Oct. 8, 
2021), 86 FR 57227 (Oct. 14, 2021) (SR-NASDAQ-2021-065); see also 
Securities Exchange Act Release No. 92790 (Aug. 27, 2021), 86 FR 
49357 (Sept. 2, 2021) (SR-NASDAQ-2021-065); see also Investment 
Company Act Release No. 34194 (Feb. 10, 2021) (notice); see also 
Investment Company Act Release No. 34221 (March 9, 2021) (order).
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    As set forth in the ALPS Fund Filing, the Fund is an actively-
managed exchange-traded fund. The Shares are offered by the Trust, 
which was established as a Delaware statutory trust on September 13, 
2007. The Commission issued an order, upon which the Trust may rely, 
granting certain exemptive relief under the 1940 Act.\6\ The Trust, 
which is registered with the Commission as an investment company under 
the 1940 Act, has filed a registration statement on Form N-1A 
(``Registration Statement'') relating to the Fund with the 
Commission.\7\ The Fund is a series of the Trust.
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    \6\ See ALPS ETF Trust, et al., Investment Company Act Release 
No. 34149 (Dec. 22, 2020) (notice); see also Investment Company Act 
Release No. 34181 (Jan. 21, 2021) (order); see also Investment 
Company Act Release No. 34194 (Feb. 10, 2021) (notice); see also 
Investment Company Act Release No. 34221 (March 9, 2021) (order).
    \7\ The Registration Statement, as amended to date, is available 
on the Commission's website: https://www.sec.gov/ix?doc=/Archives/edgar/data/0001414040/000139834422006698/fp0074021_485bpos-ixbrl.htm.
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    The Shares are currently listed and traded on the Exchange and the 
proposed rule change updates certain representations made in the ALPS 
Fund Filing to incorporate the necessary additional representations in 
the Custom Baskets Filing to permit the Fund to avail itself of the use 
of Custom Baskets.
    The ALPS Fund Filing currently says that the names and quantities 
of the instruments that constitute the basket of securities for 
creations and redemptions will be the same as the Fund's Proxy Basket, 
except to the extent purchases and redemptions are made entirely or in 
part on a cash basis. The representation adds that in the event that 
the value of the Proxy Basket is not the same as the Fund's net asset 
value (``NAV''), the creation and redemption baskets will consist of 
the securities included in the Proxy Basket plus or minus an amount of 
cash equal to the difference between the NAV and the value of the Proxy 
Basket, as described in more detail in the ALPS Fund Filing (the 
representations referred to in this paragraph are collectively referred 
to hereafter as the ``Names and Quantities Rep'').
    This Names and Quantities Rep will be updated to take into account 
that the Custom Baskets Filing adopted subparagraph (c)(6) under Nasdaq 
Rule 5750 (Definitions), which defines ``Custom Basket,'' for the 
purposes of Nasdaq Rule 5750. The issuer represents that for the 
purposes of this rule, the term ``Custom Basket'' means a portfolio of 
securities that is different from the Proxy Basket and is otherwise 
consistent with the exemptive relief issued pursuant to the Investment 
Company Act of 1940 applicable to a series of Proxy Portfolio Shares.
    The ALPS Fund Filing also says the Exchange will obtain a 
representation from the issuer of the shares of the Fund that the NAV 
per share of the Fund will be calculated daily and will be made 
available to all market participants at the same time. This 
representation will be updated to comply with the Custom Baskets 
Filing's initial listing requirement and as reflected in Nasdaq Rule 
5750(d)(1)(B). The issuer represents that (i) the NAV per share for the 
Fund will be calculated daily, (ii) each of the following will be made 
available to all market participants at the same time when disclosed: 
the NAV, the Proxy Basket, and the Fund Portfolio, and (iii) the issuer 
and any person acting on behalf of the series of Proxy Portfolio Shares 
will comply with Regulation Fair Disclosure under the Securities 
Exchange Act of 1934,\8\ including with respect to any Custom Basket.
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    \8\ 17 CFR 243.100-243.103. Regulation Fair Disclosure provides 
that whenever an issuer, or any person acting on its behalf, 
discloses material nonpublic information regarding that issuer or 
its securities to certain individuals or entities--generally, 
securities market professionals, such as stock analysts, or holders 
of the issuer's securities who may well trade on the basis of the 
information--the issuer must make public disclosure of that 
information.
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    The issuer represents that it will update the representation in the 
ALPS Fund Filing to reflect Nasdaq Rule 5750(b)(5), as amended by the 
Custom Basket filing, to take into account Custom Baskets. 
Specifically, the issuer represents that if the investment adviser to 
the Investment Company issuing Proxy Portfolio Shares is registered as 
a broker-dealer or is affiliated with a broker-dealer, such investment 
adviser will erect and maintain a ``fire wall'' between the investment 
adviser and personnel of the broker-dealer or broker-dealer affiliate, 
as applicable, with respect to access to information concerning the 
composition of and/or changes to the Fund Portfolio, the Proxy Basket, 
and/or Custom Basket, as applicable. Any person related to the 
investment adviser or Investment

[[Page 36349]]

Company who makes decisions pertaining to the Investment Company's Fund 
Portfolio, the Proxy Basket, and/or Custom Basket, as applicable, or 
has access to nonpublic information regarding the Fund Portfolio, the 
Proxy Basket, and/or Custom Basket, as applicable, or changes thereto 
must be subject to procedures designed to prevent the use and 
dissemination of material nonpublic information regarding the Fund 
Portfolio and/or the Proxy Basket, and/or Custom Basket, as applicable, 
or changes thereto.
    Under the ALPS Fund Filing, the issuer represents that it will 
continue to comply with all aspects of the listing rule and 
additionally will comply with the revised listing rule, Nasdaq Rule 
5750(d)(2)(A), as amended by the Custom Baskets Filing, to provide that 
with respect to each Custom Basket utilized by a series of Proxy 
Portfolio Shares, each business day, before the opening of trading in 
the regular market session, the investment company shall make publicly 
available on its website the composition of any Custom Basket 
transacted on the previous business day, except a Custom Basket that 
differs from the applicable Proxy Basket only with respect to cash.
    The Custom Baskets Filing added ``Custom Basket'' to the non-
exclusive list of information relating to Proxy Portfolio Shares that a 
Reporting Authority calculates and reports, i.e., including, but not 
limited to, the Proxy Basket; the Fund Portfolio; the amount of any 
cash distribution to holders of Proxy Portfolio Shares, net asset 
value, or other information relating to the issuance, redemption or 
trading of Proxy Portfolio Shares. The issuer represents that it will 
comply with this and the Custom Baskets Filing's additional requirement 
in Nasdaq Rule 5750(b)(6). Thus, the issuer represents that any person 
or entity, including a custodian, Reporting Authority, distributor, or 
administrator, who has access to nonpublic information regarding the 
Fund Portfolio, the Proxy Basket, or the Custom Basket, as applicable, 
or changes thereto, must be subject to procedures designed to prevent 
the use and dissemination of material nonpublic information regarding 
the applicable Fund Portfolio, the Proxy Basket, or the Custom Basket, 
as applicable, or changes thereto. Moreover, if any such person or 
entity is registered as a broker-dealer or affiliated with a broker-
dealer, such person or entity will erect and maintain a ``fire wall'' 
between the person or entity and the broker-dealer with respect to 
access to information concerning the composition and/or changes to such 
Fund Portfolio, Proxy Basket, or the Custom Basket, as applicable.
    The adviser/sub-adviser firewall representation in the ALPS Fund 
Filing is being updated to reflect Custom Baskets and will now state 
that in the event (a) the Adviser or any sub adviser registers as a 
broker dealer, or becomes newly affiliated with a broker dealer, or (b) 
any new adviser or sub adviser is a registered broker dealer or becomes 
affiliated with another broker dealer, it will implement and will 
maintain a fire wall with respect to its relevant personnel and/or such 
broker dealer affiliate, as applicable, regarding access to information 
concerning the composition and/or changes to the Fund's Portfolio, the 
Proxy Basket, and/or the Custom Basket, as applicable, and will be 
subject to procedures designed to prevent the use and dissemination of 
material nonpublic information regarding the Fund's Portfolio, the 
Proxy Basket, and/or the Custom Basket, as applicable.
    The Fund will comply with the above-described conditions and with 
the Proxy Portfolio Shares listing rule Nasdaq Rule 5750, as amended, 
to provide for the use of Custom Baskets consistent with the exemptive 
relief issued pursuant to the Investment Company Act of 1940 \9\ 
applicable to a series of Proxy Portfolio Shares. Otherwise, the 
listing and trading rules, including all representations made in the 
ALPS Fund Filing, will remain unchanged and will continue to comply 
with Nasdaq Rule 5750.
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    \9\ 15 U.S.C. 80a et seq.
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2. Statutory Basis
    Nasdaq believes that the proposal is consistent with Section 6(b) 
of the Act in general and Section 6(b)(5) of the Act, in particular, in 
that it is designed to prevent fraudulent and manipulative acts and 
practices, to promote just and equitable principles of trade, to foster 
cooperation and coordination with persons engaged in facilitating 
transactions in securities, and to remove impediments to and perfect 
the mechanism of a free and open market and, in general, to protect 
investors and the public interest.
    The Exchange believes that proposed rule change to update certain 
representations made in the ALPS Fund Filing to incorporate the 
necessary additional representations in the Custom Baskets Filing to 
permit the Fund to use Custom Baskets will perfect the mechanism of a 
free and open market and, in general, to protect investors and the 
public interest in that it will permit use of Custom Baskets by the 
Fund, and is consistent with the applicable exemptive relief, in a 
manner that will benefit investors by increasing efficiencies in the 
creation and redemption process. More specifically, Custom Baskets will 
provide flexibility in portfolio construction that may assist in 
reducing taxable capital gains distributions for investors and may 
generally improve tax efficiencies. Further, the use of Custom Baskets, 
to the extent permitted by the Fund's exemptive relief, may also result 
in narrower bid/ask spreads and smaller premiums and discounts to the 
NAV for Proxy Portfolio Shares to the extent that the Fund utilizes 
Custom Baskets with fewer securities which may, in turn, allow 
authorized participants to more efficiently hedge and participate 
generally in the Proxy Portfolio Shares. In addition to this, the 
flexibility provided in the creation of Custom Baskets may serve to 
increase competition between the issuer of the Shares and other 
issuers. The Exchange believes the proposed rule change will enhance 
competition among market participants overall, to the benefit of 
investors and the marketplace.
    The Exchange also believes that updating the Names and Quantities 
Rep in the ALPS Fund Filing to take into account that the Custom 
Baskets Filing adopted subparagraph (c)(6) under Nasdaq Rule 5750 
(Definitions), which defines ``Custom Basket,'' for the purposes of 
Nasdaq Rule 5750, to mean a portfolio of securities that is different 
from the Proxy Basket and is otherwise consistent with the exemptive 
relief issued pursuant to the 1940 Act applicable to a series of Proxy 
Portfolio Shares, will remove impediments to and perfects the mechanism 
of a free and open market and, in general, protects investors and the 
public interest.
    Additionally, the Exchange believes that updating the current 
representation in the ALPS Fund Filing that says the Exchange will 
obtain a representation from the issuer of the Shares of the Fund that 
the NAV per share of the Fund will be calculated daily and will be made 
available to all market participants at the same time, to provide that 
the Exchange will also obtain a representation from the issuer of each 
series of Proxy Portfolio Shares that the issuer and any person acting 
on behalf of the series of Proxy Portfolio Shares will comply with 
Regulation Fair Disclosure under the Securities Exchange Act of 1934, 
including with respect to any Custom Basket,\10\ will be

[[Page 36350]]

to the benefit of the investing public and market participants.
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    \10\ See Nasdaq Rule 5750(d)(1)(B).
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    Nasdaq believes that having the issuer update its representation in 
the ALPS Fund Filing to reflect Nasdaq Rule 5750(b)(5), as amended by 
the Custom Basket filing, to take into account Custom Baskets is 
designed to prevent fraudulent and manipulative acts and practices by 
acting as a safeguard against any misuse and improper dissemination of 
nonpublic information related to the Fund's Custom Basket or changes 
thereto.
    The Exchange also believes that updating the current representation 
under the ALPS Fund Filing will continue to comply with all aspects of 
the listing rule and additionally will comply with the revised listing 
rule, Nasdaq Rule 5750(d)(2)(A), as amended by the Custom Baskets 
Filing, to provide that with respect to each Custom Basket utilized by 
a series of Proxy Portfolio Shares, each business day, before the 
opening of trading in the regular market session, the investment 
company shall make publicly available on its website the composition of 
any Custom Basket transacted on the previous business day, except a 
Custom Basket that differs from the applicable Proxy Basket only with 
respect to cash, will remove impediments to and perfect the mechanism 
of a free and open market and, in general, protect investors and the 
public interest.
    Additionally, the Exchange believes that in accordance with the 
Custom Baskets Filing that added ``Custom Basket'' to the non-exclusive 
list of information relating to Proxy Portfolio Shares that a Reporting 
Authority calculates and reports, that updating the representation to 
include the issuer representing the Custom Baskets Filing's additional 
requirement set forth in Nasdaq Rule 5750(b)(6) that says any person or 
entity, including a custodian, Reporting Authority, distributor, or 
administrator, who has access to nonpublic information regarding the 
Fund Portfolio, the Proxy Basket, or the Custom Basket, as applicable, 
or changes thereto, must be subject to procedures designed to prevent 
the use and dissemination of material nonpublic information regarding 
the applicable Fund Portfolio, the Proxy Basket, or the Custom Basket, 
as applicable, or changes thereto, will remove impediments to and 
perfect the mechanism of a free and open market and, in general, to 
protect investors and the public interest. Nasdaq also believes that 
the issuer updating its representation to include that if any such 
person or entity is registered as a broker-dealer or affiliated with a 
broker-dealer, such person or entity will erect and maintain a ``fire 
wall'' between the person or entity and the broker-dealer with respect 
to access to information concerning the composition and/or changes to 
such Fund Portfolio, Proxy Basket, or Custom Basket, as applicable, 
will remove impediments to and perfect the mechanism of a free and open 
market and, in general, protect investors and the public interest.
    The Exchange also believes that updating the current adviser/sub-
adviser firewall representation under the ALPS Fund Filing to reflect 
Custom Baskets and to now state that in the event (a) the Adviser or 
any sub adviser registers as a broker dealer, or becomes newly 
affiliated with a broker dealer, or (b) any new adviser or sub adviser 
is a registered broker dealer or becomes affiliated with another broker 
dealer, it will implement and will maintain a fire wall with respect to 
its relevant personnel and/or such broker dealer affiliate, as 
applicable, regarding access to information concerning the composition 
and/or changes to the Fund's Portfolio, the Proxy Basket, and/or the 
Custom Basket, as applicable, and will be subject to procedures 
designed to prevent the use and dissemination of material nonpublic 
information regarding the Fund's Portfolio, the Proxy Basket, and/or 
the Custom Basket, as applicable, will remove impediments to and 
perfect the mechanism of a free and open market and, in general, 
protect investors and the public interest.
    For the above reasons, the Exchange believes that the proposed rule 
change is consistent with the requirements of Section 6(b)(5) of the 
Act.

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

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act. The Exchange believes the 
proposed rule change, by permitting the use of Custom Baskets by the 
Fund, is consistent with the Fund's exemptive relief and would be to 
the benefit of investors and the marketplace.

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

    No written comments were either solicited or received.

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

    Because the foregoing proposed rule change does not: (i) 
significantly affect the protection of investors or the public 
interest; (ii) impose any significant burden on competition; and (iii) 
become operative for 30 days from the date on which it was filed, or 
such shorter time as the Commission may designate, it has become 
effective pursuant to Section 19(b)(3)(A)(iii) of the Act \11\ and 
subparagraph (f)(6) of Rule 19b-4 thereunder.\12\
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    \11\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \12\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6) 
requires the Exchange to give the Commission written notice of its 
intent to file the proposed rule change, along with a brief 
description and text of the proposed rule change, at least five 
business days prior to the date of filing of the proposed rule 
change, or such shorter time as designated by the Commission. The 
Exchange has satisfied this requirement.
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    A proposed rule change filed under Rule 19b-4(f)(6) \13\ normally 
does not become operative prior to 30 days after the date of the 
filing. However, pursuant to Rule 19b-4(f)(6)(iii),\14\ the Commission 
may designate a shorter time if such action is consistent with the 
protection of investors and the public interest. The Exchange has asked 
the Commission to waive the 30-day operative delay so that the proposed 
rule change may take effect upon filing. The Commission notes that the 
Exchange represents that the Fund will comply with all representations 
stated herein, in particular, regarding its use of Custom Baskets, 
consistent with Nasdaq Rule 5750, as amended by the Custom Baskets 
Filing.\15\ In addition, the Exchange represents that all other 
representations made in the ALPS Fund Filing remain unchanged, and the 
Fund will continue to comply with Nasdaq Rule 5750, as amended. The 
Commission believes that waiver of the 30-day operative delay is 
consistent with the protection of investors and the public interest 
because the proposed rule change does not raise any new or novel 
issues.\16\ Accordingly, the Commission waives the 30-day operative 
delay and designates the proposal operative upon filing.\17\
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    \13\ 17 CFR 240.19b-4(f)(6).
    \14\ 17 CFR 240.19b-4(f)(6)(iii).
    \15\ See supra note 5.
    \16\ See id. See also Securities Exchange Act No. 93546 
(November 9, 2021) 86 FR 63429 (November 16, 2021) (SR-CboeBZX-2021-
075) (Notice of Filing and Immediate Effectiveness of a Proposed 
Rule Change to Reflect a Modification to the Permitted Components of 
the Tracking Baskets of the Invesco Real Assets ESG ETF and Invesco 
US Large Cap Core ESG ETF).
    \17\ 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).

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[[Page 36351]]

    At any time within 60 days of the filing of such 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.

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

    <bullet> Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
    <bullet> Send an email to <a href="/cdn-cgi/l/email-protection#1b696e777e36787476767e756f685b687e78357c746d"><span class="__cf_email__" data-cfemail="285a5d444d054b4745454d465c5b685b4d4b064f475e">[email protected]</span></a>. Please include 
File Number SR-NASDAQ-2022-035 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NASDAQ-2022-035. This 
file number should be included on the subject line if email is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's internet website (http://www.sec.gov/rules/sro.shtml). 
Copies of the submission, all subsequent amendments, all written 
statements with respect to the proposed rule change that are filed with 
the Commission, and all written communications relating to the proposed 
rule change between the Commission and any person, other than those 
that may be withheld from the public in accordance with the provisions 
of 5 U.S.C. 552, will be available for website viewing and printing in 
the Commission's Public Reference Room, 100 F Street NE, Washington, DC 
20549 on official business days between the hours of 10:00 a.m. and 
3:00 p.m. Copies of the filing also will be available for inspection 
and copying at the principal office of the Exchange. All comments 
received will be posted without change. Persons submitting comments are 
cautioned that we do not redact or edit personal identifying 
information from comment submissions. You should submit only 
information that you wish to make available publicly. All submissions 
should refer to File Number SR-NASDAQ-2022-035 and should be submitted 
on or before July 7, 2022.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\18\
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    \18\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2022-12943 Filed 6-15-22; 8:45 am]
BILLING CODE 8011-01-P


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