
[Federal Register Volume 79, Number 204 (Wednesday, October 22, 2014)]
[Notices]
[Pages 63198-63201]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-25081]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-73376; File No. SR-BATS-2014-026]


Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of 
Filing of Amendment No. 3, and Order Granting Accelerated Approval of a 
Proposed Rule Change To List and Trade Shares of Certain Funds of the 
Alpha Architect ETF Trust

October 16, 2014.
    On July 3, 2014, BATS Exchange, Inc. (``Exchange'' or ``BATS'') 
filed with the Securities and Exchange Commission (``Commission''), 
pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ a proposed rule change to 
list and trade shares (``Shares'') of each of the following funds: (1) 
ValueShares U.S. Quantitative Value ETF; (2) ValueShares International 
Quantitative Value ETF; (3) MomentumShares U.S. Quantitative Momentum 
ETF; and (4) MomentumShares International Quantitative Momentum ETF 
(each referred to as the ``Fund'' and collectively the ``Funds''). The 
proposed rule change was published for comment in the Federal Register 
on July 23, 2014.\3\ On August 15, 2014, the Exchange filed Amendment 
No. 1 to the proposed rule change, which amended and replaced the 
proposal in its entirety. On August 26, 2014, the Exchange filed 
Amendment No. 2 to the proposed rule change, which also amended and 
replaced the proposal in its entirety. The Commission designated a 
longer period for Commission action on September 5, 2014.\4\ On 
September 12, 2014, the Exchange filed Amendment No. 3 to the proposed 
rule change, which again amended and replaced the proposal in its 
entirety.\5\ No comments on the proposal have been received. This order 
approves the proposed rule change, as modified by Amendment No. 3, 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. 72636 (July 17, 
2014), 79 FR 42852.
    \4\ See Securities Exchange Act Release No. 73003, 79 FR 54307 
(September 11, 2014).
    \5\ Amendment No. 3 modified the proposed rule change by 
clarifying the holdings of the Funds, clarifying the valuation of 
various assets for purposes of calculating the net asset value 
(``NAV'') of each Fund, providing more information regarding the 
Share creation and redemption process, and adding information 
regarding its surveillance capability. With respect to the Funds' 
holdings, the Exchange specified: (1) That the common stock, 
preferred stock, international stocks, and depositary receipts that 
may be held by the Funds (as applicable) will all be exchange-listed 
(except that up to 10% the portfolios of the international Funds may 
be composed of unsponsored depositary receipts); (2) the types of 
fixed income securities that may be held by each of the Funds; (3) 
that the debt securities held by the ValueShares U.S. Quantitative 
Value ETF and the MomentumShares U.S. Quantitative Momentum ETF 
would be investment grade; (4) that the Funds would not invest in 
private investment funds, vehicles or structures; (5) that the 15% 
limit on illiquid assets applicable to each Fund is an overarching 
investment restriction; and (6) the depositary receipts in which the 
ValueShares International Quantitative Value ETF and MomentumShares 
International Quantitative Momentum ETF (collectively, 
``International Funds'') may invest. With respect to NAV 
calculation, the Exchange: (1) Clarified the method for valuation of 
exchange-listed securities; (2) stated that non-exchange-listed 
equity securities would be valued at their last reported sale prices 
or, if no last reported sale price is available, at the most recent 
bid price; and (3) clarified that fixed income securities (with the 
exception of repurchase agreements) would be valued by pricing 
services. With respect to Share creations and redemptions, the 
Exchange provided additional information regarding the circumstances 
in which a Fund may accept a custom fund deposit in connection with 
Share creations as well as the daily dissemination of the redemption 
basket. Lastly, the Exchange stated that it is able to access, as 
needed, trade information for certain fixed income instruments 
reported to the Trade Reporting and Compliance Engine (``TRACE'') of 
the Financial Industry Regulatory Authority (``FINRA'').
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I. Description of the Proposed Rule Change

    The Exchange proposes to list and trade the Shares under BATS Rule 
14.11(i), which governs the listing and trading of Managed Fund Shares 
on the Exchange. The Shares will be offered by the Alpha Architect ETF 
Trust (``Trust''), which was established as a Delaware statutory trust 
and is registered with the Commission as an open-end investment 
company.\6\
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    \6\ The Trust and has filed a registration statement on behalf 
of the Funds on Form N-1A (``Registration Statement'') with the 
Commission. See Registration Statement on Form N-1A for the Trust, 
dated April 25, 2014 (File Nos. 333-195493 and 811-22961). The 
Commission has issued an order granting certain exemptive relief to 
the Trust under the Investment Company Act of 1940 (15 U.S.C. 80a-1) 
(``1940 Act''). See Investment Company Act Release No. 31018 (April 
16, 2014) (File No. 812-14245).
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    Empowered Funds, LLC is the investment adviser (``Adviser'') to the 
Funds.\7\ The Adviser is not a registered broker-dealer and is not 
affiliated with any broker-dealers.\8\ U.S. Bancorp Fund Services, LLC 
is the administrator and transfer agent for the Trust. U.S. Bank 
National Association is the custodian for the Trust. Quasar 
Distributors, LLC serves as the distributor for the Trust.\9\
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    \7\ The Adviser is an indirect subsidiary of Empirical Finance, 
LLC d/b/a Empiritrage, LLC.
    \8\ BATS Rule 14.11(i)(7) provides that, if the investment 
adviser to the investment company issuing Managed Fund Shares is 
affiliated with a broker-dealer, the investment adviser shall erect 
a firewall between the investment adviser and the broker-dealer with 
respect to access to information concerning the composition of or 
changes to the investment company portfolio. In addition, Rule 
14.11(i)(7) further requires that personnel who make decisions on 
the investment company's portfolio composition must be subject to 
procedures designed to prevent the misuse and dissemination of 
material nonpublic information regarding the applicable investment 
company portfolio. The Exchange states that, in the event that (a) 
the Adviser becomes registered as a broker-dealer or newly 
affiliated with 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 firewall with respect to its 
relevant personnel or such broker-dealer affiliate, as applicable, 
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.
    \9\ Additional information regarding the Trust, the Funds, the 
Shares, investment strategies, investment restrictions, risks, NAV 
calculation, creation and redemption procedures, fees, portfolio 
holdings, disclosure policies, distributions, and taxes, among other 
information, is included in Amendment No. 3 and the Registration 
Statement, as applicable. See Amendment No. 3 and Registration 
Statement, supra note 5 and 6, respectively.
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A. ValueShares U.S. Quantitative Value ETF

    The investment objective of the Fund is to provide long-term 
capital appreciation. Under normal circumstances,\10\ the Fund will 
invest at

[[Page 63199]]

least 80% of its net assets, plus any borrowings for investment 
purposes, in exchange-listed common stock of U.S. companies.
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    \10\ The term ``under normal circumstances'' includes, but is 
not limited to, the absence of adverse market, economic, political, 
or other conditions, including extreme volatility or trading halts 
in the financial markets generally; operational issues causing 
dissemination of inaccurate market information; or force majeure 
type events such as systems failure, natural or man-made disaster, 
act of God, armed conflict, act of terrorism, riot, or labor 
disruption, or any similar intervening circumstance.
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    Other Portfolio Holdings. The Fund may invest in exchange-listed 
preferred stocks. The Fund may enter into repurchase agreements with 
banks and broker-dealers. The Fund may invest in debt securities by 
purchasing the following: Obligations of the U.S. government, its 
agencies and instrumentalities; corporate debt securities; master-
demand notes; bank certificates of deposit; time deposits; bankers' 
acceptances; commercial paper and other notes; and inflation-indexed 
securities. All debt securities held by the Fund will be investment 
grade. The Fund may also invest in the securities of other investment 
companies (including money market funds and ETFs) to the extent 
permitted under the 1940 Act, Commission rules thereunder and 
exemptions thereto.

B. ValueShares International Quantitative Value ETF

    The investment objective of the Fund is to provide long-term 
capital appreciation. To achieve its objective, under normal 
circumstances, the Fund will invest at least 65%--but generally greater 
than 80%--of its net assets, plus any borrowings for investment 
purposes, in equity securities of international companies.\11\ 
Specifically, the Fund may invest in exchange-listed common stock of 
international companies, American Depositary Receipts, Global 
Depositary Receipts, and European Depositary Receipts (collectively, 
``Depositary Receipts''). Among the international stocks and Depositary 
Receipts held by the Fund, at least 90% of that part of the portfolio 
will consist of securities that trade in markets that are members of 
the Intermarket Surveillance Group (``ISG'') or are parties to a 
comprehensive surveillance sharing agreement with the Exchange.\12\
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    \11\ The Fund may invest in securities of companies in any 
industry and of any market capitalization.
    \12\ For a list of the current members and affiliate members of 
ISG, see www.isgportal.com.
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    Other Portfolio Holdings. The Fund may invest in exchange-listed 
preferred stocks. The Fund may enter into repurchase agreements with 
banks and broker-dealers. The Fund may invest in the following types of 
debt securities: Obligations of the U.S. government, its agencies and 
instrumentalities; corporate debt securities; master-demand notes; bank 
certificates of deposit; time deposits; bankers' acceptances; 
commercial paper and other notes; and inflation-indexed securities. All 
debt securities held by the Fund will be investment grade. The Fund may 
also invest in the securities of other investment companies (including 
money market funds and ETFs) to the extent permitted under the 1940 
Act, Commission rules thereunder and exemptions thereto.

C. MomentumShares U.S. Quantitative Momentum ETF

    The investment objective of the Fund is to provide long-term 
capital appreciation. Under normal circumstances, the Fund will invest 
at least 80% of its net assets, plus any borrowings for investment 
purposes, in exchange-listed common stock of U.S. companies. The Fund 
may invest in securities of companies in any industry and of any market 
capitalization.
    Other Portfolio Holdings. The Fund may invest in exchange-listed 
preferred stocks. The Fund may enter into repurchase agreements with 
banks and broker-dealers. The Fund may invest in the following types of 
debt securities: Obligations of the U.S. government, its agencies and 
instrumentalities; corporate debt securities; master-demand notes; bank 
certificates of deposit; time deposits; bankers' acceptances; 
commercial paper and other notes; and inflation-indexed securities. All 
debt securities held by the Fund will be investment grade. The Fund may 
also invest in the securities of other investment companies (including 
money market funds and ETFs) to the extent permitted under the 1940 
Act, Commission rules thereunder and exemptions thereto.

D. MomentumShares International Quantitative Momentum ETF

    The investment objective of the Fund is to provide long-term 
capital appreciation. To achieve its objective, under normal 
circumstances, the Fund will invest at least 65%--but generally greater 
than 80%--of its net assets, plus any borrowings for investment 
purposes, in exchange-listed common stock of international companies 
and Depositary Receipts. The Fund may invest in securities of companies 
in any industry and of any market capitalization. Among the 
international stocks and Depositary Receipts held by the Fund, at least 
90% of that part of the portfolio will consist of securities that trade 
in markets that are members of the ISG or are parties to a 
comprehensive surveillance sharing agreement with the Exchange.
    Other Portfolio Holdings. The Fund may invest in exchange-listed 
preferred stocks. The Fund may enter into repurchase agreements with 
banks and broker-dealers. The Fund may invest in the following types of 
debt securities: Obligations of the U.S. government, its agencies and 
instrumentalities; corporate debt securities; master-demand notes; bank 
certificates of deposit; time deposits; bankers' acceptances; 
commercial paper and other notes; and inflation-indexed securities. All 
debt securities held by the Fund will be investment grade. The Fund may 
also invest in the securities of other investment companies (including 
money market funds and ETFs) to the extent permitted under the 1940 
Act, Commission rules thereunder and exemptions thereto.

II. Discussion

    After careful review, the Commission finds that the proposed rule 
change is consistent with the requirements of Section 6 of the Act and 
the rules and regulations thereunder applicable to a national 
securities exchange.\13\ In particular, the Commission finds that the 
proposed rule change is consistent with Section 6(b)(5) of the Act, 
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 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 also 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, which sets forth Congress's 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.
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    \13\ In approving this proposed rule change, the Commission has 
considered the proposed rule's impact on efficiency, competition, 
and capital formation. See 15 U.S.C. 78c(f).
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    According to the Exchange, quotation and last-sale information for 
the Shares will be available on the facilities of the Consolidated Tape 
Association, and the previous day's closing price and trading volume 
information for the Shares will be published daily in the financial

[[Page 63200]]

section of newspapers. Additionally, information regarding market price 
and trading of the Shares will be continually available on a real-time 
basis throughout the day on brokers' computer screens and other 
electronic services. The Exchange states that intraday, executable 
price quotations on U.S. and non-U.S. securities as well as other 
assets are available from major broker-dealer firms, and, for exchange-
traded assets, such intraday information is available directly from the 
applicable listing exchange. Further, the Exchange states that intraday 
price information is available through subscription services. Pricing 
information for securities not listed on an exchange or national 
securities market and repurchase agreements will be available from 
major broker-dealer firms and from subscription services, such as 
Bloomberg, Thomson Reuters and International Data Corporation.
    In addition, the Intraday Indicative Value, as defined in defined 
in BATS Rule 14.11(i)(3)(C), will be widely disseminated at least every 
15 seconds during the Exchange's Regular Trading Hours.\14\ On each 
business day, before commencement of trading in Shares during Regular 
Trading Hours on the Exchange, the Funds will disclose the identities 
and quantities of the portfolio of securities and other assets held by 
each Fund that will form the basis for the Fund's calculation of NAV at 
the end of the business day (``Disclosed Portfolio'').\15\ The NAV of 
each Fund will be calculated each business day as of the close of 
regular trading on the New York Stock Exchange (normally 4:00 p.m. 
Eastern Time) on each day the New York Stock Exchange is open for 
trading. Portfolio composition files will be sent via the National 
Securities Clearing Corporation and made available on each business 
day, prior to the opening of business on the Exchange (currently 9:30 
a.m., Eastern time), and will include a list of the names and the 
required number of shares of each security in the in-kind creation 
basket (based on information about the Fund's portfolio at the end of 
the previous business day) and a list of the names and the number of 
shares of each security in the in-kind redemption basket. The Web site 
for the Funds will include a form of the prospectus for the Funds and 
additional data relating to NAV and other applicable quantitative 
information.
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    \14\ Currently, it is the Exchange's understanding that several 
major market data vendors display or make widely available Intraday 
Indicative Values published via the CTA or other data feeds.
    \15\ The Disclosed Portfolio will include, as applicable, the 
names, quantity, percentage weighting and market value of securities 
and other assets held by the Fund and the characteristics of such 
assets. The Funds will disseminate the Disclosed Portfolios through 
their Web site at no charge.
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    The Commission further 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 per Share of 
each Fund will be calculated daily and that the NAV and the Disclosed 
Portfolio will be made available to all market participants at the same 
time. In addition, trading in the Shares would be subject to BATS Rules 
11.18 and 14.11(i)(4)(B)(iv), which set forth circumstances under which 
trading in the Shares may be halted. Trading may be halted because of 
market conditions or for reasons that, in the view of the Exchange, 
make trading in the Shares inadvisable. These may include: (1) The 
extent to which trading is not occurring in the securities or the 
financial instruments composing the Disclosed Portfolio of a Fund; or 
(2) whether other unusual conditions or circumstances detrimental to 
the maintenance of a fair and orderly market are present. Further, the 
Commission notes that the Reporting Authority that provides the 
Disclosed Portfolio of each Fund 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.\16\ In addition, the Exchange may obtain information 
regarding trading in the Shares and the underlying shares of exchange-
listed equity securities via the ISG, from other exchanges that are 
members or affiliates of the ISG, or with which the Exchange has 
entered into a comprehensive surveillance sharing agreement. The 
Commission also notes that the Exchange is able to access, as needed, 
trade information for certain fixed income securities held by the Funds 
reported to TRACE. The Exchange represents that it prohibits the 
distribution of material non-public information by its employees. The 
Exchange represents that the Adviser is not a registered broker-dealer 
and is not affiliated with any broker-dealers. The Exchange represents 
that, in the event that (a) the Adviser becomes registered as a broker-
dealer or newly affiliated with 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 or such broker-dealer affiliate, as applicable, 
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 such portfolio.
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    \16\ See BATS Rule 14.11(i)(4)(B)(ii)(b).
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    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. The Commission notes 
that the Funds and the Shares must comply with the requirements of BATS 
Rule 14.11(i) for the Shares to be listed and traded on the Exchange.
    Additionally, in support of its proposal, the Exchange has made the 
following representations:
    (1) The Shares will be subject to BATS Rule 14.11(i), which sets 
forth the initial and continued listing criteria applicable to Managed 
Fund Shares.
    (2) The Exchange has appropriate rules to facilitate transactions 
in the Shares during all trading sessions.
    (3) Trading of the Shares through the Exchange will be subject to 
the Exchange's surveillance procedures for derivative products, 
including Managed Fund Shares, which are adequate to properly monitor 
the trading of the Shares on the Exchange during all trading sessions 
and to deter and detect violations of Exchange rules and the applicable 
federal securities laws.
    (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. 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) BATS Rule 3.7, which imposes 
suitability obligations on Exchange 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-Opening 
\17\ and After Hours Trading Sessions \18\ when an updated Intraday 
Indicative Value will not be calculated or publicly disseminated; (e) 
the requirement that

[[Page 63201]]

members deliver a prospectus to investors purchasing newly issued 
Shares prior to or concurrently with the confirmation of a transaction; 
and (f) trading information.
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    \17\ The Pre-Opening Session is from 8:00 a.m. to 9:30 a.m. 
Eastern Time.
    \18\ The After Hours Trading Session is from 4:00 p.m. to 5:00 
p.m. Eastern Time.
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    (5) For initial and continued listing, the Funds will be in 
compliance with Rule 10A-3 under the Exchange Act.
    (6) A Fund may hold up to an aggregate amount of 15% of its net 
assets (calculated at the time of investment) in assets deemed illiquid 
by the Adviser, consistent with Commission guidance.
    (7) A minimum of 100,000 Shares of each Fund will be outstanding at 
the commencement of trading on the Exchange.
    (8) With respect to their investments in exchange-listed common 
stocks and Depositary Receipts, the International Funds will invest at 
least 90% of their assets invested in such securities in exchange-
listed common stocks and Depositary Receipts that trade in markets that 
are members of the ISG or are parties to a comprehensive surveillance 
sharing agreement with the Exchange.
    (9) All of the debt securities held by the Funds will be rated 
investment grade.

This approval order is based on all of the Exchange's representations 
and description of the Funds, including those set forth above and in 
Amendment No. 3.
    For the foregoing reasons, the Commission finds that the proposed 
rule change, as modified by Amendment No. 3, is consistent with Section 
6(b)(5) of the Act and the rules and regulations thereunder applicable 
to a national securities exchange.

III. Solicitation of Comments on Amendment No. 3

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether Amendment No. 3 
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 rule-comments@sec.gov. Please include 
File Number SR-BATS-2014-026 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-BATS-2014-026. 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 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-BATS-2014-026 and should be 
submitted on or before November 12, 2014.

IV. Accelerated Approval of Proposed Rule Change, as Modified by 
Amendment No. 3

    The Commission finds good cause to approve the proposed rule 
change, as modified by Amendment No. 3, prior to the thirtieth day 
after the date of publication of notice of Amendment No. 3 in the 
Federal Register. Amendment No. 3 supplements the proposed rule change 
by, among other things: (1) Clarifying the holdings of the Funds; (2) 
providing additional information regarding the NAV valuation of certain 
of the Funds' holdings; (3) and supplemented the description of the 
Exchange's surveillance capabilities.\19\
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    \19\ See note 5, supra.
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    This additional information has aided the Commission's analysis of 
the intra-day trading of the Shares and has clarified the Exchange's 
ability to obtain trading information regarding the underlying assets 
and thereby monitor trading in the Shares. Accordingly, the Commission 
finds good cause, pursuant to Section 19(b)(2) of the Act, to approve 
the proposed rule change, as modified by Amendment No. 3, on an 
accelerated basis.\20\
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    \20\ This approval order is based on all of the Exchange's 
representations and description of the Funds set forth above and in 
Amendment No. 3.
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V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the Act, 
that the proposed rule change (SR-BATS-2014-026), as modified by 
Amendment No. 3, be, and it hereby is, approved on an accelerated 
basis.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\21\
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    \21\ 17 CFR 200.30-3(a)(57).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2014-25081 Filed 10-21-14; 8:45 am]
BILLING CODE 8011-01-P


