[Federal Register Volume 73, Number 91 (Friday, May 9, 2008)]
[Notices]
[Pages 26459-26463]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-10341]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-57771; File No. SR-NASDAQ-2008-038]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing and Order Granting Accelerated Approval of Proposed 
Rule Change to Trade Shares of Certain PowerShares Actively Managed 
Exchange-Traded Funds Pursuant to Unlisted Trading Privileges

May 2, 2008.
    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 April 25, 2008, 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 substantially prepared by Nasdaq. This 
order provides notice of filing of the proposed rule change and 
approves it on an accelerated basis.
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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

    Nasdaq proposes to trade the shares (``Shares'') of four funds of 
the PowerShares Actively Managed Exchange-Traded Fund Trust (``Trust'') 
pursuant to unlisted trading privileges (``UTP''). The text of the 
proposed rule change is available at Nasdaq's principal office, the 
Commission's Public Reference Room, and http://www.nasdaq.complinet.com.

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

    In its filing with the Commission, Nasdaq included statements 
concerning the purpose of, and basis for, the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item III below. Nasdaq 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
    Nasdaq proposes to trade the Shares of the following funds pursuant 
to UTP: (1) The PowerShares Active AlphaQ Fund; (2) the PowerShares 
Active Alpha Multi-Cap Fund; (3) the PowerShares Active Mega-Cap 
Portfolio; and (4) the PowerShares Active Low Duration Portfolio 
(collectively, the ``Funds''). The Commission has recently approved the 
listing and trading of the Shares of the Funds on NYSE Arca Equities, 
Inc.\3\ The Shares are offered by the Trust, a business trust organized 
under the laws of the State of Delaware and registered with the 
Commission as an open-end management investment company.\4\ The Trust 
currently consists of the Funds,

[[Page 26460]]

each of which is an actively managed exchange-traded fund. The Exchange 
represents that the Funds will not purchase or sell securities in 
markets outside the United States.
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    \3\ See Securities Exchange Act Release No. 57619 (April 4, 
2008), 73 FR 19544 (April 10, 2008) (SR-NYSEArca-2008-25) (``NYSE 
Arca Proposal'').
    \4\ The Trust is registered under the Investment Company Act of 
1940 (``1940 Act''). On November 26, 2007, the Trust filed with the 
Commission a Registration Statement for the Funds on Form N-1A under 
the Securities Act of 1933 and under the 1940 Act (File Nos. 333-
147622 and 811-22148) (``Registration Statement''). On November 16, 
2007, the Trust filed with the Commission an Amended and Restated 
Application (``Application'') for an Amended Order under Sections 
6(c) and 17(b) of the 1940 Act. See Investment Company Act Release 
No. 28140 (February 1, 2008), 73 FR 7328 (February 7, 2008) (File 
No. 812-3386).
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Description of the Funds and the Trust
    PowerShares Capital Management LLC (``Advisor'') is the investment 
advisor to the Funds. AER Advisors, Inc. (``AER'') is the subadvisor to 
the PowerShares Active AlphaQ Fund and the PowerShares Active Alpha 
Multi-Cap Fund (the ``Initial AER Funds''), and Invesco Institutional 
(N.A.) Inc. (``Invesco'') is the subadvisor to the PowerShares Active 
Mega-Cap Portfolio and the PowerShares Active Low Duration 
Portfolio.\5\ The Advisor, AER, and Invesco are each registered as an 
investment adviser under the Investment Advisers Act of 1940.
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    \5\ The Exchange states that the information provided herein is 
based on information included in the Application.
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    AER will employ its unique stock screening methodology in the 
management of the Initial AER Funds. In employing its methodology, AER 
tracks and rates all U.S. stocks of companies with over $400 million 
market capitalization and which are listed on a national securities 
exchange. It is anticipated by AER that less than 3% of all securities 
in the Master Stock List \6\ will be American Depositary Receipts 
(``ADRs'') and that ADRs will not represent more than 3% of any one 
Fund. Each Initial AER Fund's investment objective will be to provide 
long-term capital appreciation by investing, under normal conditions, 
at least 95% of its total assets in stocks represented in its 
appropriate universe as determined by AER. The balance of the Initial 
AER Fund's assets may be invested in cash and money market instruments. 
Each Initial AER Fund's benchmark index will be a broad-based index 
relevant to its investment objective, strategy, and market 
capitalization. AER anticipates that the benchmark indexes for the 
Initial AER Funds will be as follows: (1) NASDAQ 100 Index for the 
PowerShares Active AlphaQ Fund; and (2) S&P 500 Index for the 
PowerShares Active Alpha Multi-Cap Fund.
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    \6\ ``Master Stock List'' is defined in the Registration 
Statement. See E-mail from Jonathan Cayne, Associate General 
Counsel, Nasdaq, to Edward Cho, Special Counsel, and Steve Varholik, 
Staff Attorney, Division of Trading and Markets, Commission, dated 
April 30, 2008 (referring to the Registration Statement for the 
definition of Master Stock List).
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    The PowerShares Active Mega-Cap Portfolio's investment objective is 
long-term growth of capital. The PowerShares Active Mega-Cap Portfolio 
seeks to meet its objective by normally investing at least 80% of its 
assets in a diversified portfolio of equity securities of mega-
capitalization companies. The principal type of equity securities 
purchased by the Fund is common stock. The PowerShares Active Mega-Cap 
Portfolio may also invest in derivative instruments such as futures 
contracts and equity-linked derivatives. The PowerShares Active Low 
Duration Portfolio's investment objective is to provide total return. 
The PowerShares Active Low Duration Portfolio seeks to meet its 
investment objective by exceeding the total return of the Lehman 
Brothers 1-3 Year U.S. Treasury Index. The PowerShares Active Low 
Duration Portfolio seeks to meet its objective by normally investing at 
least 80% of its assets in a diversified portfolio of U.S. government 
and corporate debt securities. The PowerShares Active Low Duration 
Portfolio may invest in structured securitized debt securities, such as 
asset-backed securities and both residential and commercial mortgage-
backed securities, and the Fund's investments may include investments 
in derivative instruments. Derivative instruments in which the Fund may 
invest include, but are not limited to, swaps including interest rate, 
total return, and credit default swaps; put options; call options; and 
futures contracts and options on futures contracts. The Fund may also 
utilize other strategies such as dollar rolls and reverse repurchase 
agreements. The Fund may invest up to 25% of its total assets in non-
investment-grade securities (junk bonds).
    The Exchange states that additional information regarding the 
Funds, the Shares, the Trust, creations and redemptions, Disclosed 
Portfolio (defined below), and Intraday Indicative Value can be found 
in the NYSE Arca Proposal \7\ and the Registration Statement,\8\ as 
applicable.
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    \7\ See supra note 3.
    \8\ See supra note 4.
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Availability of Information
    The Funds' Web site (http://www.powershares.com) will include a 
form of the prospectus for each Fund. The Web site will also include 
additional quantitative information for each Fund updated on a daily 
basis, including: (1) Daily trading volume, the prior business day's 
reported closing price, the net asset value (``NAV'') and the mid-point 
of the bid/ask spread at the time of calculation of such NAV (the 
``Bid/Ask Price''),\9\ and a calculation of the premium and discount of 
the Bid/Ask Price against the NAV; and (2) data in chart format 
displaying the frequency distribution of discounts and premiums of the 
daily Bid/Ask Price against the NAV, within appropriate ranges, for 
each of the four previous calendar quarters. On each business day 
before commencement of the Regular Market Session on the Exchange,\10\ 
the Funds will disclose on their Web site the identities and quantities 
of the securities and other assets that will form the basis for the 
calculation of NAV for each Fund at the end of the business day 
(``Disclosed Portfolio'').\11\
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    \9\ The Bid/Ask Price of a Fund is determined using the highest 
bid and the lowest offer on the Exchange as of the time of 
calculation of such Fund's NAV. The records relating to Bid/Ask 
Prices will be retained by the Funds and their service providers.
    \10\ See Nasdaq Rule 4120(b)(4) (describing the three trading 
sessions on the Exchange: (1) Pre-Market Session from 7 a.m. to 9:30 
a.m; (2) Regular Market Session from 9:30 a.m. to 4 p.m. or 4:15 
p.m.; and (3) Post-Market Session from 4 p.m. or 4:15 p.m. to 8 
p.m.).
    \11\ Under accounting procedures followed by the Funds, trades 
made on the prior business day (``T'') will be booked and reflected 
in NAV on the current business day (``T+1''). Accordingly, the Funds 
will be able to disclose at the beginning of the business day the 
portfolio that will form the basis for the NAV calculation at the 
end of the business day.
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    Investors interested in a particular Fund can also obtain the 
Trust's Statement of Additional Information (``SAI''), each Fund's 
Shareholder Reports, and its Form N-CSR and Form N-SAR, filed twice a 
year. The Trust's SAI and Shareholder Reports are available free upon 
request from the Trust, and those documents and the Form N-CSR and Form 
N-SAR may be viewed on-screen or downloaded from the Commission's Web 
site (http://www.sec.gov).
    Information regarding market price and volume is and will be 
continually available on a real-time basis throughout the day on 
brokers' computer screens and other electronic services. The NAV of 
each Fund will normally be determined as of the close of the Regular 
Market Session on Nasdaq (ordinarily 4 p.m. Eastern Time or ``ET'') on 
each business day. The previous day's closing price and trading volume 
information will be published daily in the financial section of 
newspapers. Quotations and last-sale information for the Shares will be 
available through the facilities of the Consolidated Tape Association 
(``CTA''). In addition, the Intraday Indicative Value \12\ will be 
disseminated at least every 15 seconds during the Regular Market 
Session through the facilities of the CTA.
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    \12\ The Exchange states that the Intraday Indicative Value is 
also sometimes referred to as the ``Portfolio Indicative Value'' 
with respect to these securities.

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[[Page 26461]]

Trading Halts
    Nasdaq will halt trading in the Funds under the conditions 
specified in Nasdaq Rules 4120 and 4121, including the provisions of 
Nasdaq Rule 4120(b) relating to temporary interruptions in the 
calculation or wide dissemination of the Intraday Indicative Value, 
among other values. In addition, if Nasdaq becomes aware that the NAV 
or the Disclosed Portfolio with respect to a Fund is not disseminated 
to all market participants at the same time, it will halt trading in 
such series until such time as the NAV and/or the Disclosed Portfolio, 
as the case may be, is available to all market participants. Nasdaq may 
also cease trading the Shares of the Funds if other unusual conditions 
or circumstances exist which, in the opinion of Nasdaq, make further 
dealings on Nasdaq detrimental to the maintenance of a fair and orderly 
market. Nasdaq will follow any procedures with respect to trading halts 
as set forth in Nasdaq Rule 4120(c). Finally, the Exchange states that 
the conditions for a halt include a regulatory halt by the listing 
market and will stop trading the Shares if the listing market delists 
them.
Trading Rules
    Nasdaq deems the Shares to be equity securities, thus rendering 
trading in the Shares subject to Nasdaq's existing rules governing the 
trading of equity securities. Nasdaq will allow trading in the Shares 7 
a.m. until 8 p.m.
Surveillance
    The Exchange states that it intends to utilize its existing 
surveillance procedures applicable to derivative products (including 
exchange-traded funds) to monitor trading in the Shares. The Exchange 
represents that such procedures are adequate to address any concerns 
about the trading of the Shares on Nasdaq.
    Trading of the Shares through Nasdaq will be subject to the 
surveillance procedures of the Financial Industry Regulatory Authority 
(``FINRA'') applicable to equity securities, in general, and exchange-
traded funds, in particular.\13\ The Exchange further states that it 
may obtain information via the Intermarket Surveillance Group (``ISG'') 
from other exchanges that are members or affiliate members of ISG.
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    \13\ The Exchange states that FINRA surveils trading on Nasdaq 
pursuant to a regulatory services agreement. Nasdaq is responsible 
for FINRA's performance under this regulatory services agreement.
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Information Circular
    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: (1) The procedures for purchases 
and redemptions of Shares (and that Shares are not individually 
redeemable); (2) Nasdaq Rule 2310, which imposes suitability 
obligations on Nasdaq members with respect to recommending transactions 
in the Shares to customers; (3) how information regarding the Intraday 
Indicative Value is disseminated; (4) the requirement that members 
deliver a prospectus to investors purchasing newly issued Shares prior 
to or concurrently with the confirmation of a transaction;\14\ (5) the 
risks involved in trading the Shares during the Pre-Market and Post-
Market Sessions \15\ when an updated Intraday Indicative Value will not 
be calculated or publicly disseminated; (6) trading information; (7) 
any exemptive, no-action, or interpretive relief granted by the 
Commission from any rules under the Act; (8) that the Funds are subject 
to various fees and expenses described in the Registration Statement; 
(9) that the Commodities Futures Trading Commission has regulatory 
jurisdiction over the trading of futures contracts; (10) the trading 
hours of the Shares of the Funds; (11) that the NAV for the Shares will 
be calculated after 4 p.m. ET each trading day; and (12) that 
information about the Shares of each Fund will be publicly available on 
the Funds' Web site.
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    \14\ The Exchange notes that investors purchasing Shares 
directly from a Fund will receive a prospectus. Members purchasing 
Shares from a Fund for resale to investors will deliver a prospectus 
to such investors.
    \15\ See supra note 10.
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2. Statutory Basis
    Nasdaq believes that the proposal is consistent with Section 6(b) 
of the Act,\16\ in general, and Section 6(b)(5) of the Act,\17\ 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 a national market system. Nasdaq's rules and procedures 
governing the trading of the Shares pursuant to UTP are also consistent 
with the goals of Section 6(b)(5) of the Act and the protection of 
investors. Specifically, the trading of the Shares is consistent with 
Section 6(b)(5) of the Act because it creates competition in the 
marketplace, for the benefit of investors and other market 
participants. In addition, Nasdaq believes that the proposal is 
consistent with Rule 12f-5 under the Act\18\ because it deems the 
Shares of the Funds to be equity securities, thus rendering trading in 
such Fund Shares subject to the Exchange's existing rules governing the 
trading of equity securities.
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    \16\ 15 U.S.C. 78f.
    \17\ 15 U.S.C. 78f(b)(5).
    \18\ 17 CFR 240.12f-5.
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B. Self-Regulatory Organization's Statement on Burden on Competition

    Nasdaq 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

    Nasdaq states that written comments on the proposed rule change 
were neither solicited nor received.

III. 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 e-mail to [email protected]. Please include 
File Number SR-NASDAQ-2008-038 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NASDAQ-2008-038. 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

[[Page 26462]]

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-NASDAQ-2008-038 and should be submitted on or before May 
30, 2008.

IV. Commission's Findings and Order Granting Accelerated Approval of 
the Proposed Rule Change

    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.\19\ In particular, the Commission believes that the proposal 
is consistent with Section 6(b)(5) of the Act,\20\ which requires 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 national market system, and in 
general to protect investors and the public interest.
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    \19\ In approving this rule change, the Commission notes that it 
has considered the proposal's impact on efficiency, competition, and 
capital formation. See 15 U.S.C. 78c(f).
    \20\ 15 U.S.C. 78f(b)(5).
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    In addition, the Commission finds that the proposal is consistent 
with Section 12(f) of the Act,\21\ which permits an exchange to trade, 
pursuant to UTP, a security that is listed and registered on another 
exchange.\22\ The Commission notes that it has approved the listing and 
trading of the Shares on NYSE Arca Equities, Inc.\23\ The Commission 
also finds that the proposal is consistent with Rule 12f-5 under the 
Act,\24\ which provides that an exchange shall not extend UTP to a 
security unless the exchange has in effect a rule or rules providing 
for transactions in the class or type of security to which the exchange 
extends UTP. The Exchange has represented that it meets this 
requirement because 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.
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    \21\ 15 U.S.C. 78l(f).
    \22\ Section 12(a) of the Act, 15 U.S.C. 78l(a), generally 
prohibits a broker-dealer from trading a security on a national 
securities exchange unless the security is registered on that 
exchange pursuant to Section 12 of the Act. Section 12(f) of the Act 
excludes from this restriction trading in any security to which an 
exchange ``extends UTP.'' When an exchange extends UTP to a 
security, it allows its members to trade the security as if it were 
listed and registered on the exchange even though it is not so 
listed and registered.
    \23\ See supra note 3.
    \24\ 17 CFR 240.12f-5.
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    The Commission further believes that the proposal is consistent 
with Section 11A(a)(C)(iii) of the Act,\25\ which sets forth Congress' 
finding that it is in the public interest and appropriate for the 
protection of investors and the maintenance of fair and orderly markets 
to assure the availability to brokers, dealers, and investors of 
information with respect to quotations for and transactions in 
securities. Quotations for and last-sale information regarding the 
Shares are disseminated through the facilities of the CTA. In addition, 
the Intraday Indicative Value is calculated and disseminated through 
the facilities of the CTA at least every 15 seconds throughout Nasdaq's 
Regular Market Session, and, on each business day prior to the 
commencement of the Regular Market Session, the Funds disclose on their 
Web site the Disclosed Portfolio. The Funds' Web site also makes 
available the prospectus for each Fund and additional quantitative 
information for each Fund, including daily trading volume, previous 
closing prices, NAV, and other information relating to NAV and the Bid/
Ask Price.
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    \25\ 15 U.S.C. 78k-1(a)(1)(C)(iii).
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    The Commission also believes that the proposal appears reasonably 
designed to preclude trading of the Shares if transparency is impaired 
or there is unfair dissemination of the NAV or Portfolio Disclosure. 
Trading in the Shares will be subject to Nasdaq Rule 4120(b), which 
provides that, if the listing market halts trading when the Intraday 
Indicative Value, among other values, is not being calculated or 
disseminated, the Exchange would also halt trading. Nasdaq also would 
halt trading of Shares with respect to a Fund if it becomes aware that 
the NAV or the Disclosed Portfolio of that Fund is not disseminated to 
all market participants at the same time. Nasdaq would resume trading 
the Shares only when the NAV and/or Disclosed Portfolio, as the case 
may be, is available to all market participants.
    The Commission notes that, if the Shares should be delisted by the 
listing exchange, the Exchange would no longer have the authority to 
trade Shares pursuant to this order.
    In support of this proposal, the Exchange has made the following 
additional representations:

    1. The Exchange's surveillance procedures are adequate to 
properly monitor Exchange trading of the Shares and to address any 
concerns about the trading of the Shares on Exchange.
    2. Prior to the commencement of trading, the Exchange would 
inform its members in an Information Circular of the special 
characteristics and risks associated with trading the Shares.
    3. The Information Circular would discuss, among other things, 
the requirement that members deliver a prospectus to investors 
purchasing newly issued Shares prior to or concurrently with the 
confirmation of the transaction and the risks involved in trading 
Shares during the Pre-Market and Post-Market Sessions when an 
updated Intraday Indicative Value will not be calculated or publicly 
disseminated.

This approval order is based on the Exchange's representations.

    The Commission finds good cause for approving this proposed rule 
change before the thirtieth day after publication of notice thereof in 
the Federal Register. As noted above, the Commission previously found 
that the listing and trading of Shares on NYSE Arca Equities, Inc. is 
consistent with the Act. The Commission presently is not aware of any 
regulatory issue that should cause it to revisit that earlier finding 
or precludes the trading of such Shares on Nasdaq pursuant to UTP. For 
these reasons, accelerating approval of Nasdaq's proposal should 
benefit investors by creating, without undue delay, additional 
competition in the market for these Shares.

V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\26\ that the proposed rule change (SR-NASDAQ-2008-038) be, and it 
hereby is, approved on an accelerated basis.
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    \26\ 15 U.S.C. 78s(b)(2).

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[[Page 26463]]

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\27\
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    \27\ 17 CFR 200.30-3(a)(12).

Florence E. Harmon,
Deputy Secretary.
[FR Doc. E8-10341 Filed 5-8-08; 8:45 am]
BILLING CODE 8010-01-P