[Federal Register Volume 79, Number 121 (Tuesday, June 24, 2014)]
[Notices]
[Pages 35825-35828]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-14694]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-72426; File No. SR-NASDAQ-2014-035]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing of Amendment No. 1 and Order Granting Accelerated 
Approval of a Proposed Rule Change, as Modified by Amendment No. 1, To 
List and Trade Shares of the AdvisorShares Sunrise Global Multi-
Strategy ETF of AdvisorShares Trust

June 18, 2014.

I. Introduction

    On April 22, 2014, 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'' or ``Exchange Act'') \1\ and Rule 19b-4 
thereunder,\2\ a proposed rule change to list and trade the shares 
(``Shares'') of the AdvisorShares Sunrise Global Multi-Strategy ETF 
(``Fund'') under Nasdaq Rule 5735. The proposed rule change was 
published for comment in the Federal Register on May 7, 2014.\3\ The 
Commission received no comments on the proposal. On June 5, 2014, 
Nasdaq filed Amendment No. 1 to the proposal.\4\ The Commission is 
publishing this notice to solicit comments on Amendment No. 1 from 
interested persons and is approving the proposed rule change, as 
modified by Amendment No. 1, 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. 72077 (May 1, 2014), 
79 FR 26283 (May 7, 2014) (``Notice'').
    \4\ In Amendment No. 1, Nasdaq amended the proposed rule change 
to: (1) Provide that over-the-counter options and structured notes 
could be among the Fund's other investments, rather than among its 
primary investments; (2) correct statements regarding the 
availability of quotation and last-sale information for underlying 
exchange traded equities, options, and futures; and (3) supplement 
the information disclosed about the Fund's portfolio holdings, 
stating: On a daily basis, the Fund will disclose on its Web site 
the following information regarding each portfolio holding, 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); 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 the percentage weighting of the holding in 
the Fund's portfolio.
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II. Description of the Proposed Rule Change

    The Exchange proposes to list and trade the Shares under Nasdaq 
Rule 5735, which governs the listing and trading of Managed Fund Shares 
on the Exchange. The Shares will be offered by AdvisorShares Trust 
(``Trust''). The Trust is registered with the Commission as an 
investment company.\5\ The Fund is a series of the Trust.
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    \5\ The Trust has filed a registration statement on Form N-1A 
(``Registration Statement'') with the Commission. See Registration 
Statement on Form N-1A for the Trust filed on October 9, 2013 (File 
Nos. 333-157876 and 811-22110). 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. 28822 (July 20, 
2009) (File No. 812-13677).
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    AdvisorShares Investments, LLC will be the investment adviser 
(``Adviser'') to the Fund. Sunrise Capital Partners LLC will be the 
investment sub-adviser (``Sub-Adviser'') to the Fund. Foreside Fund 
Services, LLC will be the principal underwriter and distributor of the 
Fund's Shares. The Bank of New York Mellon will act as the 
administrator, accounting agent, custodian, and transfer agent to the 
Fund.
    The Exchange represents that neither the Adviser nor the Sub-
Adviser is a broker-dealer or affiliated with a broker-dealer.\6\ The 
Exchange also represents that the Shares will be subject to Nasdaq Rule 
5735, which sets forth the initial and continued listing criteria 
applicable to Managed Fund Shares \7\ and that for initial and 
continued listing, the Fund must be in compliance with Rule 10A-3 under 
the Act.\8\ The Exchange has made the following representations and 
statements describing the Fund and its investment strategy, including 
portfolio holdings and investment restrictions.\9\
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    \6\ See Notice supra note 3, 79 FR at 26284. The Exchange states 
that in the event (a) the Adviser or the Sub-Adviser becomes newly 
affiliated with a broker-dealer or registers as a broker-dealer, or 
(b) any new adviser or sub-adviser is a registered broker-dealer or 
becomes affiliated with a broker-dealer, it will implement a fire 
wall with respect to its relevant personnel and/or such broker-
dealer affiliate, if applicable, regarding access to information 
concerning the composition and/or changes to the portfolio and will 
be subject to procedures designed to prevent the use and 
dissemination of material non-public information regarding such 
portfolio. See id.
    \7\ See id. at 26287.
    \8\ See 17 CFR 240.10A-3. See also Notice, supra note 3 at 
26287.
    \9\ Additional information regarding the Trust, the Fund, and 
the Shares, investment strategies, investment restrictions, risks, 
net asset value (``NAV'') calculation, creation and redemption 
procedures, fees, portfolio holdings, disclosure policies, 
distributions, and taxes, among other information, is included in 
the Notice and the Registration Statement, as applicable. See Notice 
and Registration Statement, supra notes 3 and 5, respectively.

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[[Page 35826]]

Principal Investments

    The Fund's investment objective will be to provide long-term total 
returns by investing long and short in a variety of asset classes and 
investment strategies. The Fund will seek to achieve its investment 
objective by utilizing a diversified multi-asset strategy that invests 
both long and short, in numerous global markets to gain diversified 
exposure to equity securities and sectors. To obtain such exposure, the 
Sub-Adviser will invest in exchange traded funds (``ETFs'') \10\ and 
other exchange traded products (together with ETFs, ``ETPs''), as well 
as U.S. treasuries, stock index futures, single stock futures, fixed 
income futures, currencies and currency futures. To the extent that the 
Fund invests in ETPs to gain exposure to a particular domestic or 
global market, the Fund is considered, in part, a ``fund of funds.''
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    \10\ While the Fund may invest in inverse ETFs, the Fund will 
not invest in leveraged or inverse leveraged (e.g., 2X or -3X) ETFs. 
See Notice, supra note 3, 79 FR at 26284, n.8.
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    In seeking to achieve the Fund's investment objective, the Sub-
Adviser will employ a proprietary multi-technique strategy that 
includes trend-following and momentum-utilizing trading methods, 
pattern recognition methods, and mean reversion methods, among others. 
The Fund's portfolio will vary greatly over time depending upon the 
investment opportunities presented by trading models.
    The Fund may trade put and call options on securities, securities 
indices and currencies. The Fund may purchase put and call options on 
securities to protect against a decline in the market value of the 
securities in its portfolio or to anticipate an increase in the market 
value of securities that the Fund may seek to purchase in the future. 
The Fund may write covered call options on securities as a means of 
increasing the yield on its assets and as a means of providing limited 
protection against decreases in its market value. The Fund may purchase 
and write exchange-listed options.\11\
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    \11\ See Amendment No. 1, supra note 4.
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    The Fund may buy and sell futures contracts. The Fund will only 
enter into futures contracts that are traded on a national futures 
exchange regulated by the Commodities Futures Trading Commission.\12\ 
The Fund may use futures contracts and related options for bona fide 
hedging; attempting to offset changes in the value of securities held 
or expected to be acquired or be disposed of; attempting to gain 
exposure to a particular market, index or instrument; or other risk 
management purposes. The Fund may buy and sell index futures contracts 
with respect to any index that is traded on a recognized exchange.
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    \12\ See Notice, supra note 3, 79 FR at 26284.
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    On a day-to-day basis, the Fund may hold U.S. government issued 
securities, money market instruments,\13\ cash, other cash equivalents, 
and ETPs that invest in these and other highly liquid instruments to 
collateralize its derivative positions.
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    \13\ The Fund also may invest in shares of money market mutual 
funds to the extent permitted by the 1940 Act.
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Other Investments

    The following investments will make up less than 20% of the Fund 
assets under normal circumstances.
    The Fund may invest in certificates of deposit issued against funds 
deposited in a bank or savings and loan association. In addition, the 
Fund may invest in bankers' acceptances, which are short-term credit 
instruments used to finance commercial transactions. The Fund may 
purchase and write over-the-counter options.\14\
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    \14\ See Amendment No. 1, supra note 4.
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    The Fund also may invest in fixed time deposits, which are bank 
obligations payable at a stated maturity date and bearing interest at a 
fixed rate. Additionally, the Fund may invest in commercial paper rated 
A-1 or A-2 by Standard and Poor's Rating Services or Prime-1 or Prime-2 
by Moody's Investors Service, Inc. or, if unrated, judged by the 
Adviser to be of comparable quality.
    The Fund may invest in exchange-traded equity securities, which 
represent ownership interests in a company or partnership and consist 
of common stocks, preferred stocks, warrants to acquire common stock, 
securities convertible into common stock, and investments in master 
limited partnerships.
    The Fund may invest in swap agreements, including, but not limited 
to, total return swaps, index swaps, and interest rate swaps. If used, 
swaps could be based on published and readily available reference 
prices of global equity, currency, fixed income and commodity indices. 
The Fund may utilize swap agreements in an attempt to gain exposure to 
the securities in a market without actually purchasing those 
securities, or to hedge a position. In seeking to establish a position 
in such instruments, the Fund may use swaps based on published indices, 
including international indices.
    The Fund may invest in structured notes, which are debt obligations 
that also contain an embedded derivative component with characteristics 
that adjust the obligation's risk/return profile.\15\ Generally, the 
performance of a structured note will track that of the underlying debt 
obligation and the derivative embedded within it. The Fund has the 
right to receive periodic interest payments from the issuer of the 
structured notes at an agreed-upon interest rate and a return of the 
principal at the maturity date.
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    \15\ See id.
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Investment Restrictions

    The Fund will not purchase securities of open-end or closed-end 
investment companies except in compliance with the 1940 Act.
    The Fund may invest up to an aggregate amount of 15% of its net 
assets in illiquid assets (calculated at the time of investment). 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 invested in illiquid assets. Illiquid assets include 
securities subject to contractual or other restrictions on resale and 
other instruments that lack readily available markets as determined in 
accordance with Commission staff guidance.

III. Discussion and Commission Findings

    After careful review, the Commission finds that the proposed rule 
change, as modified by Amendment No. 1, is consistent with the 
requirements of Section 6 of the Act \16\ and the rules and regulations 
thereunder applicable to a national securities exchange.\17\ In 
particular, the Commission finds that the proposed rule change, as 
modified by Amendment No. 1, is consistent with the requirements of 
Section 6(b)(5) of the Act,\18\ which requires, among other things, 
that the Exchange's rules be 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

[[Page 35827]]

and a national market system, and, in general, to protect investors and 
the public interest. The Commission notes that the Fund and the Shares 
must comply with the requirements of Nasdaq Rule 5735 to be listed and 
traded on the Exchange.
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    \16\ 15 U.S.C. 78(f).
    \17\ In approving this proposed rule change, the Commission 
notes that it has considered the proposed rule's impact on 
efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
    \18\ 15 U.S.C. 78f(b)(5).
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    The Commission finds that the proposal to list and trade the Shares 
on the Exchange is consistent with Section 11A(a)(1)(C)(iii) of the 
Act,\19\ 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. 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.\20\ Quotation and last sale information for any 
underlying exchange-traded equity will also 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.\21\ Quotation and last sale information for any 
underlying exchange-traded options will also be available via the quote 
and trade service of their respective primary exchanges and through the 
Options Price Reporting Authority.\22\ Quotation and last sale 
information for any underlying exchange-traded futures contracts will 
be available via the quote and trade service of their respective 
primary exchanges.\23\ In addition, the Intraday Indicative Value (as 
defined in Nasdaq Rule 5735(c)(3)) will be based upon the current value 
of the components of the Disclosed Portfolio (as defined in Nasdaq Rule 
5735(c)(2)), will be available on the NASDAQ OMX Information LLC 
proprietary index data service,\24\ and will be updated and widely 
disseminated and broadly displayed at least every 15 seconds during the 
Regular Market Session.\25\ 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, which will 
form the basis for the Fund's calculation of NAV at the end of the 
business day.\26\ The NAV of the Fund will be determined once each 
business day, normally as of the close of trading on the New York Stock 
Exchange (normally 4:00 p.m. Eastern time).\27\ Information regarding 
market price and volume of the Shares will be continually available on 
a real-time basis throughout the day on brokers' computer screens and 
other electronic services.\28\ Information regarding the previous day's 
closing price and trading volume information for the Shares will be 
published daily in the financial section of newspapers.\29\ Intra-day, 
executable price quotations for the securities and other assets held by 
the Fund will be available from major broker-dealer firms or on the 
exchange on which they are traded, as applicable.\30\ Intra-day price 
information will also be available through subscription services, such 
as Bloomberg, Markit, and Thomson Reuters, which can be accessed by 
authorized participants and other investors.\31\ The Fund's Web site 
will include a form of the prospectus for the Fund and additional data 
relating to NAV and other applicable quantitative information.\32\
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    \19\ 15 U.S.C. 78k-1(a)(1)(C)(iii).
    \20\ See Notice, supra note 3, 79 FR at 26287.
    \21\ See Amendment No. 1, supra note 4
    \22\ See id.
    \23\ See id.
    \24\ The Exchange states that the NASDAQ OMX Global Index Data 
Service is the NASDAQ OMX global index data feed service, and it 
offers real-time updates, daily summary messages, and access to 
widely followed indexes and Intraday Indicative Values for exchange-
traded funds. See Notice, supra note 3, 79 FR at 26287.
    \25\ See id.
    \26\ The Web site information will be publicly available at no 
charge. See id.
    \27\ See id. at 26285.
    \28\ See id. at 26287.
    \29\ See id.
    \30\ See id.
    \31\ See id.
    \32\ See id. at 26289.
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    Further, the Commission 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 Commission notes that the Exchange will obtain a 
representation from the issuer of the Shares that the NAV will be 
calculated daily and that the NAV and the Disclosed Portfolio will be 
made available to all market participants at the same time.\33\ 
Further, trading in the Shares will be subject to Nasdaq 5735(d)(2)(D), 
which sets forth circumstances under which trading in the Shares may be 
halted.\34\ The Exchange may halt trading in the Shares if trading is 
not occurring in the securities or the financial instruments 
constituting the Disclosed Portfolio or if other unusual conditions or 
circumstances detrimental to the maintenance of a fair and orderly 
market are present.\35\ Further, the Commission notes that the 
Reporting Authority that provides the Disclosed Portfolio must 
implement and maintain, or be subject to, procedures designed to 
prevent the use and dissemination of material, non-public information 
regarding the actual components of the portfolio.\36\ The Exchange 
states that it has a general policy prohibiting the distribution of 
material, non-public information by its employees.\37\ The Exchange 
states that neither the Adviser nor the Sub-Adviser is a broker-dealer 
or affiliated with a broker-dealer. The Exchange also states that in 
the event (a) the Adviser or the Sub-Adviser becomes newly affiliated 
with a broker-dealer or registers as a broker-dealer, or (b) any new 
adviser or sub-adviser is a registered broker-dealer or becomes 
affiliated with a broker-dealer, it will implement a fire wall with 
respect to its relevant personnel and/or such broker-dealer affiliate 
regarding access to information concerning the composition of or 
changes to the portfolio and will be subject to procedures designed to 
prevent the use and dissemination of material, non-public information 
regarding the portfolio.\38\
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    \33\ See id. at 26287.
    \34\ See id.
    \35\ See id. See also Nasdaq Rule 5735(d)(2)(C) (providing 
additional considerations for the suspension of trading in or 
removal from listing of Managed Fund Shares on the Exchange). With 
respect to trading halts, the Exchange may consider all relevant 
factors in exercising its discretion to halt or suspend trading in 
the Shares of the Fund. Nasdaq will halt or pause 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. See Notice, supra note 3, 79 FR at 20267.
    \36\ See Nasdaq Rule 5735(d)(2)(B)(ii).
    \37\ See Notice, supra note 3, 79 FR at 26284.
    \38\ See supra note 6 and accompanying text.
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    In support of this proposal, the Exchange has made representations, 
including:
    (1) The Exchange 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.
    (2) The Shares will be subject to Nasdaq Rule 5735, which sets 
forth the initial and continued listing criteria applicable to Managed 
Fund Shares.
    (3) The Exchange has appropriate rules to facilitate transactions 
in the Shares during all trading sessions.
    (4) 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.

[[Page 35828]]

Specifically, the Information Circular will discuss the following: (a) 
The procedures for purchases and redemptions of Shares in Creation 
Units (and that Shares are not individually redeemable); (b) Nasdaq 
Rule 2111A, which imposes suitability obligations on Nasdaq members 
with respect to recommending transactions in the Shares to customers; 
(c) how information regarding the Intraday Indicative Value is 
disseminated; (d) 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; (e) the 
requirement that members deliver a prospectus to investors purchasing 
newly issued Shares prior to or concurrently with the confirmation of a 
transaction; and (f) trading information.
    (5) Trading in the Shares will be subject to the existing trading 
surveillances, administered by both Nasdaq and the Financial Industry 
Regulatory Authority (``FINRA'') on behalf of the Exchange, 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.
    (6) FINRA, on behalf of the Exchange, will communicate as needed 
regarding trading in the Shares and other exchange-traded securities 
and instruments held by the Fund with other markets and other entities 
that are members of the Intermarket Surveillance Group (``ISG'') \39\ 
and FINRA may obtain trading information regarding trading in the 
Shares and exchange-traded securities and instruments held by the Fund 
from such markets and other entities. In addition, the Exchange may 
obtain information regarding trading in the Shares and exchange-traded 
securities and instruments held by the Fund from markets and other 
entities that are members of ISG, which includes all U.S. and some 
foreign securities and futures exchanges, or with which the Exchange 
has in place a comprehensive surveillance sharing agreement.
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    \39\ For a list of the current members of ISG, see 
www.isgportal.org.
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    (7) For initial and continued listing, the Fund must be in 
compliance with Rule 10A-3 under the Exchange Act.\40\
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    \40\ 17 CFR 240.10A-3.
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    (8) A minimum of 100,000 Shares will be outstanding at the 
commencement of trading on the Exchange.
    (9) The Fund may invest up to an aggregate amount of 15% of its net 
assets in illiquid assets (calculated at the time of investment); 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 invested in illiquid assets.

This approval order is based on all of the Exchange's representations 
and description of the Fund, including those set forth above and in the 
Notice.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning whether Amendment No. 1 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 protected]. Please include 
File Number SR-NASDAQ-2014-035 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NASDAQ-2014-035. 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 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 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-2014-035, and should 
be submitted on or before July 15, 2014.

V. Accelerated Approval of Proposed Rule Change, as Modified by 
Amendment No. 1

    The Commission finds good cause to approve the proposed rule 
change, as modified by Amendment No. 1, prior to the thirtieth day 
after the date of publication of notice in the Federal Register. The 
amendment makes certain corrections regarding the availability of price 
information for certain exchange-listed portfolio components, lowers 
the maximum portfolio weighting for OTC options and structured notes, 
and provides for more robust disclosure regarding the portfolio 
components. The Commission believes that these changes will improve the 
ability of market participants to value the Shares. Accordingly, the 
Commission finds good cause, pursuant to Section 19(b)(2) of the 
Act,\41\ to approve the proposed rule change, as modified by Amendment 
No. 1, on an accelerated basis.
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    \41\ 15 U.S.C. 78s(b)(2).
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VI. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\42\ that the proposed rule change (SR-NASDAQ-2014-035), as 
modified by Amendment No. 1, be, and it hereby is, approved on an 
accelerated basis.
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    \42\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\43\
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    \43\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2014-14694 Filed 6-23-14; 8:45 am]
BILLING CODE 8011-01-P