Self-Regulatory Organizations; NYSE Arca, Inc.; Order Instituting Proceedings To Determine Whether to Approve or Disapprove a Proposed Rule Change, as Modified by Amendment No. 1 Thereto, Relating To Listing and Trading of Shares of the Cumberland Municipal Bond ETF Under NYSE Arca Equities Rule 8.600, 14163-14166 [2016-05855]
Download as PDF
Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Notices
market.37 Therefore, it appears possible
that eliminating the minimum value
sizes for RFQs for opening transactions
in new series of FLEX Options could
further incent trading interest in
customized options to move from the
OTC market to the Exchange. To the
extent investors choose to trade FLEX
Options on the Exchange in lieu of the
OTC market as a result of the permanent
removal of the minimum value size
requirements, such action should
benefit investors. As the Commission
has previously noted, there are certain
benefits to trading on an exchange, such
as enhanced efficiency in initiating and
closing out positions, increased market
transparency, and heightened contraparty creditworthiness due to the role of
the Options Clearing Corporation as
issuer and guarantor of FLEX Options.38
IV. Solicitation of Comments on
Amendment No. 1
Interested persons are invited to
submit written data, views, and
arguments concerning the foregoing,
including whether Amendment No. 1 to
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 (https://www.sec.gov/
rules/sro.shtml); or
• Send an email to rule-comments@
sec.gov. Please include File Number SR–
Phlx–2015–94 on the subject line.
mstockstill on DSK4VPTVN1PROD with NOTICES
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–Phlx–2015–94. 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 (https://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–Phlx–
2015–94 and should be submitted on or
before April 6, 2016.
V. Accelerated Approval of Proposal, as
Modified by Amendment No. 1
In Amendment No. 1, the Exchange
submitted additional Pilot Program data
to supplement Exhibit 3 to the
Exchange’s rule filing, which initially
contained a report of Pilot Program data
for the period December 2014 through
July 2015. Amendment No. 1 contains
an updated pilot report that provides
data regarding FLEX Option
transactions under the Pilot Program for
the period August 2015 through
December 2015, as well as additional
information regarding transactions
covered by the Pilot Program and FLEX
Option trading on the Exchange.39 The
Commission believes that the
supplemental Pilot Program data set
forth in Amendment No. 1 further
supports approval of the Pilot Program
because, collectively with the Pilot
Program data initially submitted as
Exhibit 3 to the rule filing, the data
reflects that there is minimal usage of
FLEX Options by retail customers on the
Exchange, and that market participants
appear to be utilizing FLEX Options for
their intended purpose—i.e.,
customization of certain terms not
available in the standardized options
market—and not as a surrogate for
standardized option trading.
Accordingly, the Commission finds
good cause, pursuant to Section 19(b)(2)
of the Act,40 for approving 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.
37 Id.
38 See Securities Exchange Act Release No. 57429
(March 4, 2008), 73 FR 13058 (March 11, 2008)
(order approving SR–CBOE–2006–36).
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39 See Exhibit 3 to the Exchange’s rule filing, as
amended by Amendment No. 1, supra note 5.
40 15 U.S.C. 78s(b)(2).
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14163
VI. Conclusion
In summary, the Commission
believes, for the reasons noted above,
that the proposed rule change to
permanently approve the Pilot Program,
thereby permanently implementing a
one-contract minimum size requirement
in place of the pre-existing minimum
size requirements for RFQs for opening
transactions in new series of FLEX
Options on the Exchange, is consistent
with the Act and Section 6(b)(5)
thereunder in particular, and should be
approved, as amended. The Exchange
has committed, and the Commission
expects the Exchange, to continue to
monitor the usage of FLEX Options,
whether changes need to be made to its
rules or the ODD to address any changes
in retail FLEX Option participation, and
for any other issues that may occur as
a result of the elimination of the
minimum value sizes on a permanent
basis, including whether FLEX Option
trades are being used as a surrogate for
trading options in the standardized
market.41
It is therefore ordered, pursuant to
Section 19(b)(2) of the Act,42 that the
proposed rule change (SR–Phlx–2015–
94) be, and it hereby is, approved, on an
accelerated basis, as amended.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.43
Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016–05856 Filed 3–15–16; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–77340; File No. SR–
NYSEArca–2015–93]
Self-Regulatory Organizations; NYSE
Arca, Inc.; Order Instituting
Proceedings To Determine Whether to
Approve or Disapprove a Proposed
Rule Change, as Modified by
Amendment No. 1 Thereto, Relating To
Listing and Trading of Shares of the
Cumberland Municipal Bond ETF
Under NYSE Arca Equities Rule 8.600
March 10, 2016.
I. Introduction
On November 24, 2015, NYSE Arca,
Inc. (‘‘Exchange’’) filed with the
Securities and Exchange Commission
41 See Notice (Exchange representing that it will
continue to monitor the usage of FLEX Options and
whether any changes to its rules or the ODD are
necessary).
42 15 U.S.C. 78s(b)(2).
43 17 CFR 200.30–3(a)(12).
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Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Notices
(‘‘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 shares
(‘‘Shares’’) of the Cumberland
Municipal Bond ETF (‘‘Fund’’), a series
of the ETFis Series Trust I (‘‘Trust’’).
The proposed rule change was
published for comment in the Federal
Register on December 14, 2015.3 On
December 29, 2015, the Exchange
submitted Amendment No. 1 to the
proposed rule change.4 On January 21,
2016, pursuant to Section 19(b)(2) of the
Act,5 the Commission designated a
longer period within which to approve
the proposed rule change, disapprove
the proposed rule change, or institute
proceedings to determine whether to
disapprove the proposed rule change.6
The Commission received no comments
on the proposed rule change. This order
institutes proceedings under Section
19(b)(2)(B) of the Act 7 to determine
whether to approve or disapprove the
proposed rule change, as modified by
Amendment No. 1 thereto.
II. Description of the Proposed Rule
Change
The Exchange proposes to list and
trade Shares of the Fund, an actively
managed exchange-traded fund (‘‘ETF’’),
under NYSE Arca Equities Rule 8.600,
which governs the listing and trading of
Managed Fund Shares on the Exchange.
1 15
U.S.C. 78s(b)(1).
CFR 240.19b–4.
3 See Securities Exchange Act Release No. 76590
(Dec. 8, 2015), 80 FR 77384 (‘‘Notice’’).
4 In Amendment No. 1, the Exchange clarified
that each Municipal Bond (as defined herein) held
by the Fund must be a constituent of a deal where
the deal’s original offering amount was at least $100
million, clarified whether certain securities would
be exchange-traded or over-the-counter (‘‘OTC’’),
deleted a statement relating to redemption of
Shares, clarified pricing information for certain
assets, and corrected a typographical error. Because
Amendment No. 1 to the proposed rule change is
technical in nature and does not materially alter the
substance of the proposed rule change or raise any
novel regulatory issues, it is not subject to notice
and comment. Amendment No. 1, which amended
and replaced the original proposal in its entirety,
is available on the Commission’s Web site at: https://
www.sec.gov/comments/sr-nysearca-2015-93/
nysearca201593-1.pdf.
5 15 U.S.C. 78s(b)(2).
6 See Securities Exchange Act Release No. 76955,
81 FR 4724 (Jan. 27, 2016). The Commission
designated March 11, 2016 as the date by which the
Commission shall either approve or disapprove, or
institute proceedings to determine whether to
disapprove, the proposed rule change. See
Securities Exchange Act Release No. 76955A (Mar.
2, 2016), 81 FR 12174 (Mar. 8, 2016) (correcting the
date to ‘‘March 11, 2016’’ as the date by which the
Commission shall either approve or disapprove, or
institute proceedings to determine whether to
disapprove, the proposed rule change).
7 15 U.S.C. 78s(b)(2)(B).
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2 17
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The Fund is a series of the Trust.8 The
investment adviser to the Fund will be
Virtus ETF Advisers LLC (‘‘Adviser’’),
and the Fund’s sub-adviser will be
Cumberland Advisors Inc. (‘‘SubAdviser’’).9 Virtus ETF Solutions LLC
will serve as the Fund’s operational
administrator. ETF Distributors LLC will
serve as the distributor of the Shares on
an agency basis. The Bank of New York
Mellon (‘‘Administrator’’) will serve as
the administrator, custodian, transfer
agent and fund accounting agent for the
Fund. The Exchange has made the
following representations and
statements in describing the Fund and
its investment strategy, including the
Fund’s portfolio holdings and
investment restrictions.10
A. Exchange’s Description of the Fund’s
Principal Investments
The Fund will seek to provide a
competitive level of current income
exempt from federal income tax, while
preserving capital. The Fund, under
normal market conditions,11 will invest
8 The Exchange represents that the Trust is
registered under the Investment Company Act of
1940 (‘‘1940 Act’’). On May 20, 2015, the Trust filed
with the Commission an amendment to its
registration statement on Form N–1A under the
Securities Act of 1933 and under the 1940 Act
relating to the Fund (File Nos. 333–187668 and
811–22819) (‘‘Registration Statement’’). The
Exchange further states that the Trust has obtained
certain exemptive relief under the 1940 Act. See
Investment Company Act Release No. 30607 (Jul.
23, 2013) (File No. 812–14080).
9 According to the Exchange, the Adviser and
Sub-Adviser are not registered as broker-dealers.
The Adviser (but not the Sub-Adviser) is affiliated
with one or more broker-dealers, and the Adviser
has implemented and will maintain a fire wall with
respect to each broker-dealer affiliate regarding
access to information concerning the composition
and changes to the portfolio. In the event (a) the
Adviser or Sub-Adviser become registered brokerdealers 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 brokerdealer, it will implement a fire wall with respect to
its relevant personnel or its broker-dealer affiliate
regarding access to information concerning the
composition and 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.
10 The Commission notes that additional
information regarding the Fund, the Trust, and the
Shares, including investment strategies, risks,
creation and redemption procedures, fees, portfolio
holdings disclosure policies, calculation of net asset
value (‘‘NAV’’), distributions, and taxes, among
other things, can be found in the Notice,
Amendment No. 1 to the proposed rule change, and
the Registration Statement, as applicable. See supra
notes 3, 4, and 8, respectively.
11 The term ‘‘under normal market conditions’’
includes, but is not limited to, the absence of
extreme volatility or trading halts in the fixed
income markets or the financial markets generally;
operational issues causing dissemination of
inaccurate market information; or force majeure
type events such as systems failure, natural or manmade disaster, act of God, armed conflict, act of
terrorism, riot or labor disruption, or any similar
intervening circumstance.
PO 00000
Frm 00086
Fmt 4703
Sfmt 4703
at least 80% of its net assets in debt
securities whose interest is, in the
opinion of bond counsel for the issuer
at the time of issuance, exempt from
U.S. federal income tax (‘‘Municipal
Bonds’’). The Sub-Adviser will invest
the Fund’s assets using a barbell
strategy, which means that the SubAdviser will overweight the Fund’s
investments in Municipal Bonds with
maturities on the short and long ends of
the fixed income yield curve, while
underweighting exposure to Municipal
Bonds with intermediate maturities.
Municipal Bonds in which the Fund
may invest include one or more of the
following: General obligation bonds,
which are typically backed by the full
faith, credit, and taxing power of the
issuer; revenue bonds, which are
typically secured by revenues generated
by the issuer; discount bonds, which
may be originally issued at a discount
to par value or sold at market price
below par value; premium bonds, which
are sold at a premium to par value; zero
coupon bonds, which are issued at an
original issue discount, with the full
value, including accrued interest, paid
at maturity; and private activity bonds,
which are typically issued by or on
behalf of local or state government for
the purpose of financing the project of
a private user.
The Fund will have no target duration
for its investment portfolio, and the
Sub-Adviser may target a shorter or
longer average portfolio duration based
on the Sub-Adviser’s forecast of interest
rates and view of fixed-income markets
generally.12 The Sub-Adviser will
generally apply a heavier weight toward
Municipal Bonds with shorter
maturities during periods of high
interest rates and longer maturities
during periods of lower interest rates.13
With respect to credit quality, under
normal market conditions, at least 90%
of the Fund’s assets invested in
Municipal Bonds will be in Municipal
Bonds rated ‘‘A’’ or better by at least one
major credit rating agency or, if unrated,
deemed to be of comparable quality by
the Sub-Adviser. From time to time, the
12 Duration measures the interest rate sensitivity
of a debt security by assessing and weighting the
present value of the security’s payment pattern.
Generally, the longer the maturity, the greater the
duration and, therefore, the greater effect interest
rate changes have on the price of the security.
13 According to the Exchange, under normal
market conditions, each Municipal Bond held by
the Fund must be a constituent of a deal where the
deal’s original offering amount was at least $100
million. In addition, no Municipal Bond held by the
Fund will exceed 30% of the Fund’s net assets, and
the five most heavily weighted Municipal Bonds
held by the Fund will not in the aggregate account
for more than 50% of the Fund’s assets. Further, the
Fund will hold Municipal Bonds of a minimum of
13 non-affiliated issuers.
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Fund may concentrate (i.e., invest more
than 25% of its total assets) in particular
sectors. The Fund may sell investments
for a variety of reasons, such as to adjust
the portfolio’s average maturity,
duration, or overall credit quality, or to
shift assets into and out of higheryielding or lower-yielding securities or
certain sectors.
According to the Exchange, under
normal market conditions, at least 80%
of the Fund’s income will be exempt
from federal income taxes. However, a
significant portion of the Fund’s income
could be derived from securities subject
to the alternative minimum tax.
mstockstill on DSK4VPTVN1PROD with NOTICES
B. Exchange’s Description of the Fund’s
Other Investments
While the Fund, under normal market
conditions, will invest at least 80% of
its assets in Municipal Bonds, as
described above, the Fund may invest
its remaining assets in other assets and
financial instruments, as described
below.
The Fund may invest in equity
securities, both directly and indirectly
through investment in shares of ETFs,14
other investment companies, and other
types of securities and instruments
described below. The equity portion of
the Fund’s portfolio may include
common stocks traded on securities
exchanges or in the OTC market. In
addition to common stocks, the equity
portion of the Fund’s portfolio may also
include exchange-traded and OTC
preferred stocks, and exchange-traded
and OTC warrants.15
The Fund may purchase taxable
municipal bonds when the Sub-Adviser
believes they offer opportunities for the
Fund, or variable rate demand notes
(‘‘VRDNs’’) that pay interest monthly or
quarterly based on a floating rate that is
reset daily or weekly based on an index
of short-term municipal rates. The Fund
also may invest in exchange-traded and
14 The ETFs in which the Fund may invest will
be registered under the 1940 Act and include
Investment Company Units (as described in NYSE
Arca Equities Rule 5.2(j)(3)); Portfolio Depositary
Receipts (as described in NYSE Arca Equities Rule
8.100); and Managed Fund Shares (as described in
NYSE Arca Equities Rule 8.600). Such ETFs all will
be listed and traded in the U.S. on registered
exchanges.
15 With respect to its exchange-traded equity
securities investments, the Fund will normally
invest in equity securities that are listed and traded
on a U.S. exchange or in markets that are members
of the Intermarket Surveillance Group (‘‘ISG’’) or
parties to a comprehensive surveillance sharing
agreement with the Exchange. In any case, not more
than 10% of the net assets of the Fund in the
aggregate invested in equity securities (except for
non-exchange-traded investment company
securities) will consist of equity securities whose
principal market is not a member of ISG or a market
with which the Exchange does not have a
comprehensive surveillance sharing agreement.
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18:11 Mar 15, 2016
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OTC securities convertible into common
stock. These securities will be
convertible bonds and convertible
preferred stocks.16
The Fund may invest directly and
indirectly in cash equivalents, namely,
money market instruments that are the
following: U.S. Government obligations
or corporate debt obligations (including
those subject to repurchase agreements),
banker’s acceptances 17 and certificates
of deposit 18 of domestic branches of
banks, commercial paper,19 and master
notes.20
In order to maintain sufficient
liquidity, to implement investment
strategies, or for temporary defensive
purposes, the Fund may invest a
significant portion of its assets in shares
of one or more money market funds.
The Fund may also invest in the
securities of other non-exchange-traded
investment company securities in
compliance with the 1940 Act and the
rules thereunder.
The Fund may write U.S. exchangetraded call and put options on
securities, ETFs, or security indexes to
seek income, or may purchase or write
U.S. exchange-traded put or call options
for hedging purposes.
The Fund may purchase securities on
a when-issued basis or for settlement at
a future date (forward commitment), if
the Fund holds sufficient liquid assets
to meet the purchase price.
C. Exchange’s Description of the Fund’s
Investment Restrictions
The Fund may, from time to time,
take temporary defensive positions that
are inconsistent with its principal
16 The criteria above also will apply to exchangetraded convertible preferred stocks and exchangetraded stocks into which convertible bonds may be
converted. See supra note 15.
17 Banker’s acceptances are time drafts drawn on
and ‘‘accepted’’ by a bank. When a bank ‘‘accepts’’
such a time draft, it assumes liability for its
payment. When the Fund acquires a banker’s
acceptance, the bank that ‘‘accepted’’ the time draft
is liable for payment of interest and principal when
due. The banker’s acceptance carries the full faith
and credit of such bank.
18 A certificate of deposit is an unsecured, interest
bearing debt obligation of a bank.
19 Commercial paper is an unsecured, short-term
debt obligation of a bank, corporation, or other
borrower. Commercial paper maturity generally
ranges from two to 270 days and is usually sold on
a discounted basis rather than as an interest-bearing
instrument. The Fund will invest directly in
commercial paper only if it is rated in one of the
top two rating categories by Moody’s, S&P or Fitch
or, if not rated, is of equivalent quality in the
Adviser’s opinion. Commercial paper may include
master notes of the same quality. Master notes are
unsecured obligations which are redeemable upon
demand of the holder and which permit the
investment of fluctuating amounts at varying rates
of interest.
20 Master notes may be acquired by the Fund
through the master note program of the Fund’s
custodian bank.
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14165
investment strategies in an attempt to
respond to adverse market, economic,
political, or other conditions. In such
circumstances, the Fund may hold up to
100% of its portfolio in cash and cash
equivalent positions.
The Fund may hold up to an aggregate
amount of 15% of its net assets in
illiquid assets (calculated at the time of
investment), consistent with
Commission guidance. 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 held 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.
The Fund’s investments will be
consistent with its investment objective
and will not be used to provide multiple
returns of a benchmark or to produce
leveraged returns.
II. Proceedings to Determine Whether to
Approve or Disapprove SR–NYSEArca–
2015–93 and Grounds for Disapproval
Under Consideration
The Commission is instituting
proceedings pursuant to Section
19(b)(2)(B) of the Act 21 to determine
whether the proposed rule change, as
modified by Amendment No. 1 thereto,
should be approved or disapproved.
Institution of such proceedings is
appropriate at this time in view of the
legal and policy issues raised by the
proposed rule change. Institution of
proceedings does not indicate that the
Commission has reached any
conclusions with respect to any of the
issues involved. Rather, as described
below, the Commission seeks and
encourages interested persons to
provide comments on the proposed rule
change.
Pursuant to Section 19(b)(2)(B) of the
Act,22 the Commission is providing
notice of the grounds for disapproval
under consideration. The Commission is
instituting proceedings to allow for
additional analysis of the proposed rule
change’s consistency with Section
6(b)(5) of the Act, which requires,
among other things, that the rules of a
national securities exchange be
‘‘designed to prevent fraudulent and
21 15
U.S.C. 78s(b)(2)(B).
22 Id.
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Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Notices
manipulative acts and practices, to
promote just and equitable principles of
trade,’’ and ‘‘to protect investors and the
public interest.’’ 23
III. Procedure: Request for Written
Comments
The Commission requests that
interested persons provide written
submissions of their views, data, and
arguments with respect to the issues
identified above, as well as any other
concerns they may have with the
proposal. In particular, the Commission
invites the written views of interested
persons concerning whether the
proposal is consistent with Section
6(b)(5) or any other provision of the Act,
or the rules and regulations thereunder.
Although there do not appear to be any
issues relevant to approval or
disapproval that would be facilitated by
an oral presentation of views, data, and
arguments, the Commission will
consider, pursuant to Rule 19b–4, any
request for an opportunity to make an
oral presentation.24
Interested persons are invited to
submit written data, views, and
arguments regarding whether the
proposal should be approved or
disapproved by April 6, 2016. Any
person who wishes to file a rebuttal to
any other person’s submission must file
that rebuttal by April 20, 2016. The
Commission asks that commenters
address the sufficiency of the
Exchange’s statements in support of the
proposal, which are set forth in the
Notice 25 and in Amendment No. 1 to
the proposed rule change,26 in addition
to any other comments they may wish
to submit about the proposed rule
change.
The Exchange provides that the Fund
may invest in one or more of the
following broad categories of Municipal
Bonds: (a) General obligation bonds; (b)
revenue bonds; (c) discount bonds; (d)
premium bonds; (e) zero coupon bonds;
and (f) private activity bonds. Moreover,
the Exchange represents that: (i) Each
Municipal Bond held by the Fund must
be a constituent of a deal where the
deal’s original offering amount was at
least $100 million; (ii) no Municipal
mstockstill on DSK4VPTVN1PROD with NOTICES
23 15
U.S.C. 78f(b)(5).
24 Section 19(b)(2) of the Act, as amended by the
Securities Act Amendments of 1975, Public Law
94–29 (June 4, 1975), grants the Commission
flexibility to determine what type of proceeding—
either oral or notice and opportunity for written
comments—is appropriate for consideration of a
particular proposal by a self-regulatory
organization. See Securities Act Amendments of
1975, Senate Comm. on Banking, Housing & Urban
Affairs, S. Rep. No. 75, 94th Cong., 1st Sess. 30
(1975).
25 See supra note 3.
26 See supra note 4.
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Bond held by the Fund will exceed 30%
of the Fund’s net assets, and the five
most heavily weighted Municipal Bonds
held by the Fund will not in the
aggregate account for more than 50% of
the Fund’s assets; and (iii) the Fund will
hold Municipal Bonds of a minimum of
13 non-affiliated issuers. Apart from
these broad representations, the
Exchange provides no other information
about the kinds of municipal bonds in
which the Fund may invest.
Accordingly, the Commission seeks
comment on whether the Exchange’s
representations relating to the
Municipal Bonds to be held by the Fund
are sufficiently clear in their application
to municipal bonds, specifically, and
are consistent with the requirements of
Section 6(b)(5) of the Act, which, among
other things, requires that the rules of an
exchange be designed to prevent
fraudulent and manipulative acts and
practices.
Comments may be submitted by any
of the following methods:
Electronic Comments
• Use the Commission’s Internet
comment form (https://www.sec.gov/
rules/sro.shtml); or
• Send an email to rule-comments@
sec.gov. Please include File Number SR–
NYSEArca–2015–93 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
Numbers SR–NYSEArca–2015–93. 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 (https://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 these
filings also will be available for
inspection and copying at the principal
PO 00000
Frm 00088
Fmt 4703
Sfmt 4703
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–
NYSEArca–2015–93 and should be
submitted on or before April 6, 2016.
Rebuttal comments should be submitted
by April 20,2016.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.27
Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016–05855 Filed 3–15–16; 8:45 am]
BILLING CODE 8011–01–P
SOCIAL SECURITY ADMINISTRATION
[Docket No. SSA–2015–0055]
Social Security Ruling 16–3p; Titles II
and XVI: Evaluation of Symptoms in
Disability Claims
Social Security Administration.
Notice of Social Security Ruling
AGENCY:
ACTION:
(SSR).
We are providing notice of
SSR 16–3p. This Ruling supersedes SSR
96–7p. This Ruling provides guidance
about how we evaluate statements
regarding the intensity, persistence, and
limiting effects of symptoms in
disability claims under Titles II and XVI
of the Social Security Act (Act) and
blindness claims under Title XVI of the
Act.
DATES: Effective Date: March 16, 2016.
FOR FURTHER INFORMATION CONTACT:
Elaine Tocco, Office of Disability Policy,
Social Security Administration, 6401
Security Boulevard, Baltimore, MD
21235–6401, (410) 966–6356. For
information on eligibility or filing for
benefits, call our national toll-free
number, 1–800–772–1213 or TTY 1–
800–325–0778, or visit our internet site,
Social Security Online, at https://
www.socialsecurity.gov.
SUMMARY:
Although
5 U.S.C. 552(a)(1) and (a)(2) do not
require us to publish this SSR, we are
doing so in accordance with 20 CFR
402.35(b)(1).
Through SSRs, we convey to the
public SSA precedential decisions
relating to the Federal old age,
survivors, disability, supplemental
security income, and special veterans
benefits programs. We may base SSRs
SUPPLEMENTARY INFORMATION:
27 17
E:\FR\FM\16MRN1.SGM
CFR 200.30–3(a)(57).
16MRN1
Agencies
[Federal Register Volume 81, Number 51 (Wednesday, March 16, 2016)]
[Notices]
[Pages 14163-14166]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-05855]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-77340; File No. SR-NYSEArca-2015-93]
Self-Regulatory Organizations; NYSE Arca, Inc.; Order Instituting
Proceedings To Determine Whether to Approve or Disapprove a Proposed
Rule Change, as Modified by Amendment No. 1 Thereto, Relating To
Listing and Trading of Shares of the Cumberland Municipal Bond ETF
Under NYSE Arca Equities Rule 8.600
March 10, 2016.
I. Introduction
On November 24, 2015, NYSE Arca, Inc. (``Exchange'') filed with the
Securities and Exchange Commission
[[Page 14164]]
(``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 shares
(``Shares'') of the Cumberland Municipal Bond ETF (``Fund''), a series
of the ETFis Series Trust I (``Trust''). The proposed rule change was
published for comment in the Federal Register on December 14, 2015.\3\
On December 29, 2015, the Exchange submitted Amendment No. 1 to the
proposed rule change.\4\ On January 21, 2016, pursuant to Section
19(b)(2) of the Act,\5\ the Commission designated a longer period
within which to approve the proposed rule change, disapprove the
proposed rule change, or institute proceedings to determine whether to
disapprove the proposed rule change.\6\ The Commission received no
comments on the proposed rule change. This order institutes proceedings
under Section 19(b)(2)(B) of the Act \7\ to determine whether to
approve or disapprove the proposed rule change, as modified by
Amendment No. 1 thereto.
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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. 76590 (Dec. 8,
2015), 80 FR 77384 (``Notice'').
\4\ In Amendment No. 1, the Exchange clarified that each
Municipal Bond (as defined herein) held by the Fund must be a
constituent of a deal where the deal's original offering amount was
at least $100 million, clarified whether certain securities would be
exchange-traded or over-the-counter (``OTC''), deleted a statement
relating to redemption of Shares, clarified pricing information for
certain assets, and corrected a typographical error. Because
Amendment No. 1 to the proposed rule change is technical in nature
and does not materially alter the substance of the proposed rule
change or raise any novel regulatory issues, it is not subject to
notice and comment. Amendment No. 1, which amended and replaced the
original proposal in its entirety, is available on the Commission's
Web site at: https://www.sec.gov/comments/sr-nysearca-2015-93/nysearca201593-1.pdf.
\5\ 15 U.S.C. 78s(b)(2).
\6\ See Securities Exchange Act Release No. 76955, 81 FR 4724
(Jan. 27, 2016). The Commission designated March 11, 2016 as the
date by which the Commission shall either approve or disapprove, or
institute proceedings to determine whether to disapprove, the
proposed rule change. See Securities Exchange Act Release No. 76955A
(Mar. 2, 2016), 81 FR 12174 (Mar. 8, 2016) (correcting the date to
``March 11, 2016'' as the date by which the Commission shall either
approve or disapprove, or institute proceedings to determine whether
to disapprove, the proposed rule change).
\7\ 15 U.S.C. 78s(b)(2)(B).
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II. Description of the Proposed Rule Change
The Exchange proposes to list and trade Shares of the Fund, an
actively managed exchange-traded fund (``ETF''), under NYSE Arca
Equities Rule 8.600, which governs the listing and trading of Managed
Fund Shares on the Exchange. The Fund is a series of the Trust.\8\ The
investment adviser to the Fund will be Virtus ETF Advisers LLC
(``Adviser''), and the Fund's sub-adviser will be Cumberland Advisors
Inc. (``Sub-Adviser'').\9\ Virtus ETF Solutions LLC will serve as the
Fund's operational administrator. ETF Distributors LLC will serve as
the distributor of the Shares on an agency basis. The Bank of New York
Mellon (``Administrator'') will serve as the administrator, custodian,
transfer agent and fund accounting agent for the Fund. The Exchange has
made the following representations and statements in describing the
Fund and its investment strategy, including the Fund's portfolio
holdings and investment restrictions.\10\
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\8\ The Exchange represents that the Trust is registered under
the Investment Company Act of 1940 (``1940 Act''). On May 20, 2015,
the Trust filed with the Commission an amendment to its registration
statement on Form N-1A under the Securities Act of 1933 and under
the 1940 Act relating to the Fund (File Nos. 333-187668 and 811-
22819) (``Registration Statement''). The Exchange further states
that the Trust has obtained certain exemptive relief under the 1940
Act. See Investment Company Act Release No. 30607 (Jul. 23, 2013)
(File No. 812-14080).
\9\ According to the Exchange, the Adviser and Sub-Adviser are
not registered as broker-dealers. The Adviser (but not the Sub-
Adviser) is affiliated with one or more broker-dealers, and the
Adviser has implemented and will maintain a fire wall with respect
to each broker-dealer affiliate regarding access to information
concerning the composition and changes to the portfolio. In the
event (a) the Adviser or Sub-Adviser become registered broker-
dealers 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 its broker-dealer affiliate
regarding access to information concerning the composition and
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.
\10\ The Commission notes that additional information regarding
the Fund, the Trust, and the Shares, including investment
strategies, risks, creation and redemption procedures, fees,
portfolio holdings disclosure policies, calculation of net asset
value (``NAV''), distributions, and taxes, among other things, can
be found in the Notice, Amendment No. 1 to the proposed rule change,
and the Registration Statement, as applicable. See supra notes 3, 4,
and 8, respectively.
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A. Exchange's Description of the Fund's Principal Investments
The Fund will seek to provide a competitive level of current income
exempt from federal income tax, while preserving capital. The Fund,
under normal market conditions,\11\ will invest at least 80% of its net
assets in debt securities whose interest is, in the opinion of bond
counsel for the issuer at the time of issuance, exempt from U.S.
federal income tax (``Municipal Bonds''). The Sub-Adviser will invest
the Fund's assets using a barbell strategy, which means that the Sub-
Adviser will overweight the Fund's investments in Municipal Bonds with
maturities on the short and long ends of the fixed income yield curve,
while underweighting exposure to Municipal Bonds with intermediate
maturities.
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\11\ The term ``under normal market conditions'' includes, but
is not limited to, the absence of extreme volatility or trading
halts in the fixed income markets or 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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Municipal Bonds in which the Fund may invest include one or more of
the following: General obligation bonds, which are typically backed by
the full faith, credit, and taxing power of the issuer; revenue bonds,
which are typically secured by revenues generated by the issuer;
discount bonds, which may be originally issued at a discount to par
value or sold at market price below par value; premium bonds, which are
sold at a premium to par value; zero coupon bonds, which are issued at
an original issue discount, with the full value, including accrued
interest, paid at maturity; and private activity bonds, which are
typically issued by or on behalf of local or state government for the
purpose of financing the project of a private user.
The Fund will have no target duration for its investment portfolio,
and the Sub-Adviser may target a shorter or longer average portfolio
duration based on the Sub-Adviser's forecast of interest rates and view
of fixed-income markets generally.\12\ The Sub-Adviser will generally
apply a heavier weight toward Municipal Bonds with shorter maturities
during periods of high interest rates and longer maturities during
periods of lower interest rates.\13\
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\12\ Duration measures the interest rate sensitivity of a debt
security by assessing and weighting the present value of the
security's payment pattern. Generally, the longer the maturity, the
greater the duration and, therefore, the greater effect interest
rate changes have on the price of the security.
\13\ According to the Exchange, under normal market conditions,
each Municipal Bond held by the Fund must be a constituent of a deal
where the deal's original offering amount was at least $100 million.
In addition, no Municipal Bond held by the Fund will exceed 30% of
the Fund's net assets, and the five most heavily weighted Municipal
Bonds held by the Fund will not in the aggregate account for more
than 50% of the Fund's assets. Further, the Fund will hold Municipal
Bonds of a minimum of 13 non-affiliated issuers.
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With respect to credit quality, under normal market conditions, at
least 90% of the Fund's assets invested in Municipal Bonds will be in
Municipal Bonds rated ``A'' or better by at least one major credit
rating agency or, if unrated, deemed to be of comparable quality by the
Sub-Adviser. From time to time, the
[[Page 14165]]
Fund may concentrate (i.e., invest more than 25% of its total assets)
in particular sectors. The Fund may sell investments for a variety of
reasons, such as to adjust the portfolio's average maturity, duration,
or overall credit quality, or to shift assets into and out of higher-
yielding or lower-yielding securities or certain sectors.
According to the Exchange, under normal market conditions, at least
80% of the Fund's income will be exempt from federal income taxes.
However, a significant portion of the Fund's income could be derived
from securities subject to the alternative minimum tax.
B. Exchange's Description of the Fund's Other Investments
While the Fund, under normal market conditions, will invest at
least 80% of its assets in Municipal Bonds, as described above, the
Fund may invest its remaining assets in other assets and financial
instruments, as described below.
The Fund may invest in equity securities, both directly and
indirectly through investment in shares of ETFs,\14\ other investment
companies, and other types of securities and instruments described
below. The equity portion of the Fund's portfolio may include common
stocks traded on securities exchanges or in the OTC market. In addition
to common stocks, the equity portion of the Fund's portfolio may also
include exchange-traded and OTC preferred stocks, and exchange-traded
and OTC warrants.\15\
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\14\ The ETFs in which the Fund may invest will be registered
under the 1940 Act and include Investment Company Units (as
described in NYSE Arca Equities Rule 5.2(j)(3)); Portfolio
Depositary Receipts (as described in NYSE Arca Equities Rule 8.100);
and Managed Fund Shares (as described in NYSE Arca Equities Rule
8.600). Such ETFs all will be listed and traded in the U.S. on
registered exchanges.
\15\ With respect to its exchange-traded equity securities
investments, the Fund will normally invest in equity securities that
are listed and traded on a U.S. exchange or in markets that are
members of the Intermarket Surveillance Group (``ISG'') or parties
to a comprehensive surveillance sharing agreement with the Exchange.
In any case, not more than 10% of the net assets of the Fund in the
aggregate invested in equity securities (except for non-exchange-
traded investment company securities) will consist of equity
securities whose principal market is not a member of ISG or a market
with which the Exchange does not have a comprehensive surveillance
sharing agreement.
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The Fund may purchase taxable municipal bonds when the Sub-Adviser
believes they offer opportunities for the Fund, or variable rate demand
notes (``VRDNs'') that pay interest monthly or quarterly based on a
floating rate that is reset daily or weekly based on an index of short-
term municipal rates. The Fund also may invest in exchange-traded and
OTC securities convertible into common stock. These securities will be
convertible bonds and convertible preferred stocks.\16\
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\16\ The criteria above also will apply to exchange-traded
convertible preferred stocks and exchange-traded stocks into which
convertible bonds may be converted. See supra note 15.
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The Fund may invest directly and indirectly in cash equivalents,
namely, money market instruments that are the following: U.S.
Government obligations or corporate debt obligations (including those
subject to repurchase agreements), banker's acceptances \17\ and
certificates of deposit \18\ of domestic branches of banks, commercial
paper,\19\ and master notes.\20\
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\17\ Banker's acceptances are time drafts drawn on and
``accepted'' by a bank. When a bank ``accepts'' such a time draft,
it assumes liability for its payment. When the Fund acquires a
banker's acceptance, the bank that ``accepted'' the time draft is
liable for payment of interest and principal when due. The banker's
acceptance carries the full faith and credit of such bank.
\18\ A certificate of deposit is an unsecured, interest bearing
debt obligation of a bank.
\19\ Commercial paper is an unsecured, short-term debt
obligation of a bank, corporation, or other borrower. Commercial
paper maturity generally ranges from two to 270 days and is usually
sold on a discounted basis rather than as an interest-bearing
instrument. The Fund will invest directly in commercial paper only
if it is rated in one of the top two rating categories by Moody's,
S&P or Fitch or, if not rated, is of equivalent quality in the
Adviser's opinion. Commercial paper may include master notes of the
same quality. Master notes are unsecured obligations which are
redeemable upon demand of the holder and which permit the investment
of fluctuating amounts at varying rates of interest.
\20\ Master notes may be acquired by the Fund through the master
note program of the Fund's custodian bank.
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In order to maintain sufficient liquidity, to implement investment
strategies, or for temporary defensive purposes, the Fund may invest a
significant portion of its assets in shares of one or more money market
funds. The Fund may also invest in the securities of other non-
exchange-traded investment company securities in compliance with the
1940 Act and the rules thereunder.
The Fund may write U.S. exchange-traded call and put options on
securities, ETFs, or security indexes to seek income, or may purchase
or write U.S. exchange-traded put or call options for hedging purposes.
The Fund may purchase securities on a when-issued basis or for
settlement at a future date (forward commitment), if the Fund holds
sufficient liquid assets to meet the purchase price.
C. Exchange's Description of the Fund's Investment Restrictions
The Fund may, from time to time, take temporary defensive positions
that are inconsistent with its principal investment strategies in an
attempt to respond to adverse market, economic, political, or other
conditions. In such circumstances, the Fund may hold up to 100% of its
portfolio in cash and cash equivalent positions.
The Fund may hold up to an aggregate amount of 15% of its net
assets in illiquid assets (calculated at the time of investment),
consistent with Commission guidance. 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 held
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.
The Fund's investments will be consistent with its investment
objective and will not be used to provide multiple returns of a
benchmark or to produce leveraged returns.
II. Proceedings to Determine Whether to Approve or Disapprove SR-
NYSEArca-2015-93 and Grounds for Disapproval Under Consideration
The Commission is instituting proceedings pursuant to Section
19(b)(2)(B) of the Act \21\ to determine whether the proposed rule
change, as modified by Amendment No. 1 thereto, should be approved or
disapproved. Institution of such proceedings is appropriate at this
time in view of the legal and policy issues raised by the proposed rule
change. Institution of proceedings does not indicate that the
Commission has reached any conclusions with respect to any of the
issues involved. Rather, as described below, the Commission seeks and
encourages interested persons to provide comments on the proposed rule
change.
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\21\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------
Pursuant to Section 19(b)(2)(B) of the Act,\22\ the Commission is
providing notice of the grounds for disapproval under consideration.
The Commission is instituting proceedings to allow for additional
analysis of the proposed rule change's consistency with Section 6(b)(5)
of the Act, which requires, among other things, that the rules of a
national securities exchange be ``designed to prevent fraudulent and
[[Page 14166]]
manipulative acts and practices, to promote just and equitable
principles of trade,'' and ``to protect investors and the public
interest.'' \23\
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\22\ Id.
\23\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------
III. Procedure: Request for Written Comments
The Commission requests that interested persons provide written
submissions of their views, data, and arguments with respect to the
issues identified above, as well as any other concerns they may have
with the proposal. In particular, the Commission invites the written
views of interested persons concerning whether the proposal is
consistent with Section 6(b)(5) or any other provision of the Act, or
the rules and regulations thereunder. Although there do not appear to
be any issues relevant to approval or disapproval that would be
facilitated by an oral presentation of views, data, and arguments, the
Commission will consider, pursuant to Rule 19b-4, any request for an
opportunity to make an oral presentation.\24\
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\24\ Section 19(b)(2) of the Act, as amended by the Securities
Act Amendments of 1975, Public Law 94-29 (June 4, 1975), grants the
Commission flexibility to determine what type of proceeding--either
oral or notice and opportunity for written comments--is appropriate
for consideration of a particular proposal by a self-regulatory
organization. See Securities Act Amendments of 1975, Senate Comm. on
Banking, Housing & Urban Affairs, S. Rep. No. 75, 94th Cong., 1st
Sess. 30 (1975).
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Interested persons are invited to submit written data, views, and
arguments regarding whether the proposal should be approved or
disapproved by April 6, 2016. Any person who wishes to file a rebuttal
to any other person's submission must file that rebuttal by April 20,
2016. The Commission asks that commenters address the sufficiency of
the Exchange's statements in support of the proposal, which are set
forth in the Notice \25\ and in Amendment No. 1 to the proposed rule
change,\26\ in addition to any other comments they may wish to submit
about the proposed rule change.
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\25\ See supra note 3.
\26\ See supra note 4.
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The Exchange provides that the Fund may invest in one or more of
the following broad categories of Municipal Bonds: (a) General
obligation bonds; (b) revenue bonds; (c) discount bonds; (d) premium
bonds; (e) zero coupon bonds; and (f) private activity bonds. Moreover,
the Exchange represents that: (i) Each Municipal Bond held by the Fund
must be a constituent of a deal where the deal's original offering
amount was at least $100 million; (ii) no Municipal Bond held by the
Fund will exceed 30% of the Fund's net assets, and the five most
heavily weighted Municipal Bonds held by the Fund will not in the
aggregate account for more than 50% of the Fund's assets; and (iii) the
Fund will hold Municipal Bonds of a minimum of 13 non-affiliated
issuers. Apart from these broad representations, the Exchange provides
no other information about the kinds of municipal bonds in which the
Fund may invest. Accordingly, the Commission seeks comment on whether
the Exchange's representations relating to the Municipal Bonds to be
held by the Fund are sufficiently clear in their application to
municipal bonds, specifically, and are consistent with the requirements
of Section 6(b)(5) of the Act, which, among other things, requires that
the rules of an exchange be designed to prevent fraudulent and
manipulative acts and practices.
Comments may be submitted by any of the following methods:
Electronic Comments
Use the Commission's Internet comment form (https://www.sec.gov/rules/sro.shtml); or
Send an email to rule-comments@sec.gov. Please include
File Number SR-NYSEArca-2015-93 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 Numbers SR-NYSEArca-2015-93. 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 (https://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 these filings 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-NYSEArca-2015-93 and should
be submitted on or before April 6, 2016. Rebuttal comments should be
submitted by April 20, 2016.
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\27\ 17 CFR 200.30-3(a)(57).
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\27\
Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016-05855 Filed 3-15-16; 8:45 am]
BILLING CODE 8011-01-P