

[Federal Register: January 29, 2008 (Volume 73, Number 19)]
[Notices]               
[Page 5251-5254]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29ja08-108]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-57189; File No. SR-NASDAQ-2007-079]

 
Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing and Order Granting Accelerated Approval of Proposed 
Rule Change to Trade Units of the United States Heating Oil Fund, LP 
and the United States Gasoline Fund, LP Pursuant to Unlisted Trading 
Privileges

January 23, 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 September 13, 2007, 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 the Exchange. 
This order provides notice of the proposed rule change and 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.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    Nasdaq proposes to trade units (``Units'') of the United States 
Heating Oil Fund, LP (``USHO'') and the United States Gasoline Fund, LP 
(``USG'') (collectively, the ``Partnerships'') 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.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. 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
    Nasdaq proposes to trade the Units of USHO and USG under Nasdaq 
Rule 4630 (Trading in Commodity-Related Securities) \3\ pursuant to 
UTP. The respective Units represent an ownership of a fractional 
undivided beneficial interest in the net assets of each of USHO and 
USG.\4\ The net assets of each of USHO and USG will consist of 
investments in futures contracts based on heating oil, gasoline, crude 
oil, and other petroleum-based fuels and natural gas that are traded on 
the New York Mercantile Exchange (``NYMEX''), Intercontinental Exchange 
(``ICE Futures''), or other U.S. and foreign exchanges (collectively, 
``Futures Contracts''). The Commission has approved the listing and 
trading of the Units on the American Stock Exchange LLC (``Amex'').\5\
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    \3\ NASDAQ Rule 4630(c)(1) defines a Commodity-Related Security 
as a security that is issued by a trust, partnership, commodity 
pool, or similar entity that invests, directly or through another 
entity, in any combination of commodities, futures contracts, 
options on futures contracts, forward contracts, commodity swaps, or 
other related derivatives, or the value of which is determined by 
the value of commodities, futures contracts, options on futures 
contracts, forward contracts, commodity swaps, or other related 
derivatives.
    \4\ Each Partnership is a commodity pool that will issue Units 
that may be purchased and sold on the Exchange.
    \5\See Securities Exchange Act Release No. 57188 (January 23, 
2008) (SR-Amex-2007-70) (approving Amex's proposal to list and trade 
the Units of the Partnerships). See also Securities Exchange Act 
Release No. 5 7042 (December 26, 2007), 73 FR 514 (January 3, 2008) 
(SR-Amex-2007-70) (providing notice of Amex's proposal to list and 
trade the Units of the Partnerships) (``Amex Proposal'').
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    Detailed information regarding the Partnerships; the investment 
strategies, objectives, and policies of the Partnerships; the 
petroleum-based fuels market, the structure, management, and regulation 
of the Partnerships; accountability levels and position limits; the 
Indicative Partnership Value (as defined herein); the manner in which 
the Units will be offered and sold; calculation methodologies; and 
arbitrage can be found in the Amex Proposal and in the respective 
Registration Statements regarding the offering of the Units filed with 
the Commission under the Securities Act of 1933.\6\
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    \6\ See USHO's Registration Statement on Form S-1 filed on April 
19, 2007 (File No. 333-142211) and USG's Registration Statement on 
Form S-1 filed on April 18, 2007 (File No. 333-142206).
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    The daily settlement prices for the NYMEX-traded Futures Contracts 
are publicly available on the NYMEX Web site at http://www.nymex.com. 

In addition, various market data vendors and news publications publish 
futures prices and related data, including quotation and last-sale 
information for the Futures Contracts. NYMEX also provides delayed 
futures information on current and past trading sessions and market 
news free of charge on its Web site. The specific contract 
specifications for the Futures Contracts are available on the NYMEX Web 
site and the ICE Futures Web site at http://www.icefutures.com.

    Amex will disseminate through the facilities of the Consolidated 
Tape Association (``CTA'') an updated Indicative Partnership Value 
(``Indicative Partnership Value''). The Indicative Partnership Value 
for each Partnership will be disseminated on a per-Unit basis at least 
every 15 seconds during regular Amex trading hours of 9:30 a.m. to 4:15 
p.m. Eastern Time (``ET''). In addition, shortly after 4 p.m. ET on 
each business day, the Administrator (as defined herein), Amex, and the 
General Partner, Victoria Bay Asset Management, LLC, will disseminate 
the Basket Amount\7\ for orders placed during that day, together

[[Page 5252]]

with the net asset value (``NAV'') for the Units.\8\
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    \7\ See infra note 14.
    \8\ E-mail from Sean Bennett, Assistant General Counsel, Nasdaq, 
to Rebekah Goshorn, Staff Attorney, Division of Trading and Markets, 
Commission, dated January 8, 2008 (``NASDAQ Confirmation''). Amex 
will obtain a representation from each Partnership that the 
respective NAV per Unit will be calculated daily and made available 
to all market participants at the same time. See Amex Proposal, 
supra note 5, 73 FR at 519.
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    Quotations and last-sale information regarding the Units will be 
disseminated through the facilities of the CTA and the Consolidated 
Quote High Speed Lines.\9\ Amex intends to disseminate for each 
Partnership on a daily basis information with respect to the Indicative 
Partnership Value, recent NAV, Units outstanding, and the Basket 
Amount. Amex will also make available on its Web site daily trading 
volume and closing prices of the Units and the following information: 
(1) The prior business day's NAV and the reported closing price; (2) 
the mid-point of the bid-ask price in relation to the NAV as of the 
time the NAV is calculated (``Bid-Ask price'');\10\ (3) calculation of 
the premium or discount of such price against such NAV; (4) data in 
chart form displaying the frequency distribution of discounts and 
premiums of the Bid-Ask Price against the NAV, within appropriate 
ranges for each of the four previous calendar quarters; (5) the 
prospectus and the most recent periodic reports filed with the SEC or 
required by the CFTC for each of the Partnerships; and (6) other 
applicable quantitative information.
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    \9\ See Nasdaq Confirmation, supra note 8.
    \10\The Bid-Ask Price of Units is determined using the highest 
bid and lowest offer as of the time of calculation of the NAV.
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    USHO's and USG's total portfolio composition will be disclosed, 
each business day that Amex is open for trading, on their Web sites at 
http://www.unitedstatesheatingoilfund.com and http://www.unitedstatesgasolinefund.com
, respectively. USHO's Web site 
e 
include, as applicable, the name and value of each Heating Oil 
Interest,\11\ the specific types and characteristics of such Heating 
Oil Interests, Treasuries,\12\ and the amount of cash and cash 
equivalents held in the portfolio of USHO. USG's Web site disclosure of 
portfolio holdings will be made available daily and will include, as 
applicable, the name and value of each Gasoline Interest,\13\ the 
specific types and characteristics of such Gasoline Interests, 
Treasuries, and the amount of cash and cash equivalents held in the 
portfolio of USG. The public Web site disclosure of the portfolio 
composition of each of USHO and USG will coincide with the disclosure 
by Brown Brothers Harriman & Co. (the ``Administrator'') of the NAV for 
the Units and the Basket Amount\14\ (for orders placed during the day) 
for each Partnership on each business day.
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    \11\ Heating Oil Interests are defined as investments in Futures 
Contracts and other heating oil-related investments, such as cash-
settled options on Futures Contracts, forward contracts for heating 
oil, and over-the-counter (``OTC'') contracts that are based on the 
price of heating oil, oil, and other petroleum-based fuels, Futures 
Contracts, and indices based on the foregoing. See Amex Proposal, 
supra note 4, 73 FR at 514.
    \12\ Treasuries are defined as short-term obligations of the 
United States of two years or less. See id.
    \13\ Gasoline Interests are defined as investments in Futures 
Contracts and other gasoline-related investments, such as cash-
settled options on Futures Contracts, forward contracts for 
gasoline, and OTC transactions that are based on the price of 
gasoline, oil, and other petroleum-based fuels, Futures Contracts, 
and indices based on the foregoing. See id.
    \14\ See id., 73 FR at 519 (defining Basket Amount as the amount 
of Treasuries and/or cash equal to the NAV per Unit times 100,000 
Units required for the purchase of a basket of Units).
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    The Exchange will halt trading in the Units under the conditions 
specified in Nasdaq Rules 4120 and 4121. In addition, the Exchange 
represents that it will halt trading in the Units if the listing market 
halts trading in, or delists the Units and that the conditions for a 
halt include a regulatory halt by the listing market.
    Nasdaq deems the Units to be equity securities, thus rendering 
trading in the Units subject to its existing rules governing the 
trading of equity securities. Nasdaq represents that the Units will 
trade on the Exchange during all three of its trading sessions.\15\
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    \15\ See Nasdaq Confirmation, supra note 8. Nasdaq defines the 
Pre-Market Session as the trading session that begins at 7 a.m. and 
continues until 9:30 a.m. The Post-Market Session means the trading 
session that begins at 4 p.m. or 4:15 p.m. and continues until 8 
p.m. The Regular Market Session means the trading session from 9:30 
a.m. until 4 p.m. or 4:15 p.m. See Nasdaq Rule 4120(b)(4). See also 
Nasdaq Rule 4630(a) (providing that a Commodity-Related Security 
approved for trading under this rule is eligible for trading during 
all market sessions if members comply with Nasdaq Rule 4631 when 
accepting Commodity-Related Security orders for execution in the 
Pre-Market Session or Post-Market Session. See infra note 17 and 
accompanying text.
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    The Exchange believes that its surveillance procedures are adequate 
to address any concerns regarding the trading of the Units. Trading in 
the Units through Nasdaq facilities would be subject to the 
surveillance procedures of the Financial Industry Regulatory Authority, 
(``FINRA'') for equity securities, in general, and exchange-traded 
funds, in particular.\16\ In addition, Nasdaq is able to obtain 
information regarding trading in the Units and the underlying Futures 
Contracts through its members in connection with the proprietary or 
customer trades that such members effect on any relevant market. The 
Exchange may obtain trading information via the Intermarket 
Surveillance Group (``ISG'') from other exchanges that are members or 
affiliate members of ISG. Nasdaq also states is party to information 
sharing agreements with NYMEX and ICE Futures for the purpose of 
providing information in connection with the trading in Futures 
Contracts traded on the those markets. Nasdaq states to the extent that 
a Partnership invests in Heating Oil Interests or Gasoline Interests 
that are traded on other exchanges, it will enter into information 
sharing agreements with those other exchanges.
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    \16\ FINRA surveils trading pursuant to a regulatory services 
agreement. Nasdaq states that it is responsible for FINRA's 
performance under this regulatory services agreement.
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    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 Units. Specifically, the Information 
Circular will discuss the following: (1) The risks inherent with 
trading the Units during the Pre- and Post-Market Sessions when the 
updated Indicative Partnership Value is not calculated and 
disseminated;\17\ (2) the procedures for purchases and redemptions of 
Units (and that Units are not individually redeemable); (3) Nasdaq Rule 
2310, which imposes suitability obligations on Nasdaq members with 
respect to recommending transactions in the Units to customers; (4) how 
information regarding the Indicative Partnership Value is disseminated; 
(5) the requirement that members deliver a prospectus to investors 
purchasing newly issued Units prior to or concurrently with the 
confirmation of a transaction; and (6) trading information. The 
Information Circular will also discuss any exemptive, no-action, or 
interpretive relief granted by the Commission from the Act or any rules 
thereunder. In addition, the Information Circular will reference that 
each Partnership is subject to various fees and expenses; there is no 
regulated source of last-sale information regarding physical 
commodities; the Commission has no jurisdiction over the trading of 
heating oil, gasoline, crude oil, natural gas, or other petroleum-based 
fuels; and

[[Page 5253]]

the CFTC has regulatory jurisdiction over the trading of heating oil-
based and gasoline-based futures contracts and related options. The 
Information Circular will also disclose the trading hours of the Units 
of each Partnership and that the NAV for the Units will be calculated 
after 4 p.m. ET each trading day.
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    \17\ See Nasdaq Confirmation, supra note 8. See also Nasdaq Rule 
4631 (requiring Exchange members to provide certain customer 
disclosures, including the risks inherent with trading the Units 
during the Pre- and Post-Market Sessions when the updated Indicative 
Partnership Value is not calculated and disseminated).
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2. Statutory Basis

    Nasdaq believes that the proposed rule change is consistent with 
section 6(b) of the Act,\18\ in general, and section 6(b)(5) of the 
Act,\19\ in particular, in that it is designed to prevent fraudulent 
and manipulative acts and practices, to promote just and equitable 
principles of trade, to remove impediments to a free and open market 
and a national market system, and, in general, to protect investors and 
the public interest. In addition, Nasdaq believes that the proposal is 
consistent with Rule 12f-5 under the Act\20\ because it deems the Units 
to be equity securities, thus rendering trading in the Units subject to 
Nasdaq's existing rules governing the trading of equity securities.
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    \18\ 15 U.S.C. 78f(b).
    \19\ 15 U.S.C. 78f(b)(5).
    \20\ 17 CFR 240.12f-5.
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B. Self-Regulatory Organization's Statement on Burden on Competition

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

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

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

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 rule-comments@sec.gov. Please include 

File Number SR-NASDAQ-2007-079 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-2007-079. This 
file number should be included on the subject line if e-mail is used. 
To help the Commission process and review your comments more 
efficiently, please use only one method. The Commission will post all 
comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml
). Copies of the submission, all subsequent amendments, 

all written statements with respect to the proposed rule change that 
are filed with the Commission, and all written communications relating 
to the proposed rule change between the Commission and any person, 
other than those that may be withheld from the public in accordance 
with the provisions of 5 U.S.C. 552, will be available for inspection 
and copying in the Commission's Public Reference Room, 100 F Street, 
NE., Washington, DC 20549, on official business days between the hours 
of 10 a.m. and 3 p.m. Copies of such filing also will be available for 
inspection and copying at the principal offices of the Exchange. All 
comments received will be posted without change; the Commission does 
not edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly. All 
submissions should refer to File Number SR-NASDAQ-2007-079 and should 
be submitted on or before February 19, 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.\21\ In particular, the Commission finds that the proposed 
rule change is consistent with section 6(b)(5) of the Act,\22\ which 
requires that an exchange have rules designed, among other things, 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. The Commission believes that this proposal should benefit 
investors by increasing competition among markets that trade the Units.
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    \21\ In approving this 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).
    \22\ 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,\23\ which permits an exchange to trade, 
pursuant to UTP, a security that is listed and registered on another 
exchange.\24\ The Commission notes that it approved the original 
listing and trading of the Units on Amex.\25\ The Commission finds that 
the proposal is consistent with Rule 12f-5 under the Act,\26\ 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 Units to be equity securities, thus rendering trading in the 
Units subject to the Exchange's existing rules governing the trading of 
equity securities.
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    \23\ 15 U.S.C. 78l(f).
    \24\ 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.
    \25\ See supra note 5.
    \26\ 17 CFR 240.12f-5.
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    The Commission further believes that the proposal is consistent 
with section 11A(a)(1)(C)(iii) of the Act,\27\ 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 and last-sale information regarding the Units 
will be disseminated through the facilities of the CTA and Consolidated 
Quote High Speed Lines. The daily settlement prices for the Futures 
Contracts are publicly available on various Web sites, and market data 
vendors and news publications that publish futures prices and related 
data, including quotation and last-sale information for the Futures 
Contracts. Amex will disseminate through the facilities of the CTA an 
updated Indicative Partnership Value on a per-

[[Page 5254]]

Unit basis at least every 15 seconds during regular Amex trading hours. 
Amex intends to disseminate for each Partnership on a daily basis, 
information with respect to the Indicative Partnership Value, 
information related to the NAV, number of Units outstanding, the Basket 
Amount, and daily trading volumes and closing prices of the Units. 
Finally, USHO's and USG's total portfolio composition will be 
disclosed, each business day that the Amex is open for trading, on 
their respective Web sites.
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    \27\ 15 U.S.C. 78k-1(a)(1)(C)(iii).
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    The Commission also believes that the Exchange's trading halt rules 
are reasonably designed to prevent trading in the Shares when 
transparency is impaired. The Exchange will halt trading in the Units 
under the conditions prescribed in Nasdaq Rules 4120 and 4121. In 
addition, the Exchange represents that it will halt trading in the 
Units if the listing market halts trading in the Units.
    The Commission notes that, if the Units should be delisted by the 
listing exchange, the Exchange would no longer have authority to trade 
the Units pursuant to this order.
    In support of this proposal, the Exchange has made the following 
representations:
    (1) The Exchange's surveillance procedures are adequate to address 
any concerns associated with the trading of the Units on a UTP basis.
    (2) The Exchange would inform its members in an Information 
Circular of the special characteristics and risks associated with 
trading the Units, including risks inherent with trading the Units 
during the Pre- and Post-Market Sessions when the updated Indicative 
Partnership Value is not calculated and disseminated, and suitability 
recommendation requirements.
    (3) The Exchange would require its members to deliver a prospectus 
or product description to investors purchasing Units prior to or 
concurrently with a transaction in such Units and will note this 
prospectus delivery requirement in the Information Circular.

This approval order is based on the Exchange's representations.
    The Commission finds good cause for approving this proposal before 
the thirtieth day after the publication of notice thereof in the 
Federal Register. As noted above, the Commission previously approved 
the original listing and trading of the Units on Amex.\28\ The 
Commission presently is not aware of any regulatory issue that should 
cause it to revisit this finding or would preclude the trading of the 
Units on the Exchange pursuant to UTP. Accelerating approval of this 
proposal should benefit investors by creating, without undue delay, 
additional competition in the market for such Units.
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    \28\ See supra note 5.
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V. Conclusion

    It is therefore ordered, pursuant to section 19(b)(2) of the 
Act,\29\ that the proposed rule change (SR-NASDAQ-2007-079) be, and it 
hereby is, approved on an accelerated basis.
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    \29\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\30\
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    \30\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E8-1483 Filed 1-28-08; 8:45 am]

BILLING CODE 8011-01-P
