Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Amendment No. 3 and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Amendment No. 3, To Amend NYSE Arca Rule 5.2-E(j)(3) To Adopt Generic Listing Standards for Investment Company Units Based on an Index or Portfolio of Municipal Securities, 57789-57793 [2019-23427]

Download as PDF Federal Register / Vol. 84, No. 208 / Monday, October 28, 2019 / Notices III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Because the proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act 10 and subparagraph (f)(6) of Rule 19b–4 thereunder.11 A proposed rule change filed pursuant to Rule 19b–4(f)(6) under the Act 12 normally does not become operative for 30 days after the date of its filing. However, Rule 19b–4(f)(6)(iii) 13 permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange has asked the Commission to waive the 30-day operative delay so that investors may continue to trade nonstandard expiration options listed by the Exchange as part of the pilot program on an uninterrupted basis. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest as it will allow the pilot program to continue uninterrupted, thereby avoiding investor confusion that could result from a temporary interruption in the pilot program. Accordingly, the Commission hereby waives the operative delay and designates the proposed rule change operative upon filing.14 At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings 10 15 U.S.C. 78s(b)(3)(A). CFR 240.19b–4(f)(6). In addition, Rule19b– 4(f)(6)(iii) requires a self-regulatory organization to give the Commission written notice of its intent to file the proposed rule change, along with a brief description and text of the proposed rule change, at least five business days prior to the date of filing of the proposed rule change, or such shorter time as designated by the Commission. The Exchange has satisfied this requirement. 12 17 CFR 240.19b–4(f)(6). 13 17 CFR 240.19b–4(f)(6)(iii). 14 For purposes only of waiving the 30-day operative delay, the Commission also has considered the proposed rule’s impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). khammond on DSKJM1Z7X2PROD with NOTICES 11 17 VerDate Sep<11>2014 16:58 Oct 25, 2019 Jkt 250001 to determine whether the proposed rule change should be approved or disapproved. IV. 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 (https://www.sec.gov/ rules/sro.shtml); or • Send an email to rule-comments@ sec.gov. Please include File Number SR– Phlx–2019–43 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–Phlx–2019–43. 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 website (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 website 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. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR–Phlx–2019–43 and should be submitted on or before November 18, 2019. 15 17 PO 00000 CFR 200.30–3(a)(12). Frm 00102 Fmt 4703 Sfmt 4703 57789 For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.15 Jill M. Peterson, Assistant Secretary. [FR Doc. 2019–23426 Filed 10–25–19; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–87382; File No. SR– NYSEArca–2019–04] Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Amendment No. 3 and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Amendment No. 3, To Amend NYSE Arca Rule 5.2–E(j)(3) To Adopt Generic Listing Standards for Investment Company Units Based on an Index or Portfolio of Municipal Securities October 22, 2019. I. Introduction On February 8, 2019, NYSE Arca, Inc. (‘‘Exchange’’ or ‘‘NYSE Arca’’) filed with the Securities and Exchange Commission (‘‘Commission’’), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the ‘‘Act’’ or the ‘‘Exchange Act’’) 1 and Rule 19b–4 thereunder,2 a proposed rule change to adopt generic listing standards for Investment Company Units (‘‘Units’’) based on an index or portfolio of municipal securities. The proposed rule change was published for comment in the Federal Register on February 27, 2019.3 On April 9, 2019, pursuant to Section 19(b)(2) of the Exchange Act,4 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.5 On May 28, 2019, the Commission instituted proceedings under Section 19(b)(2)(B) of the Exchange Act 6 to determine whether to approve or disapprove the proposed rule change.7 1 15 U.S.C. 78s(b)(1). CFR 240.19b–4. 3 See Securities Exchange Act Release No. 85170 (Feb. 21, 2019), 84 FR 6451. 4 15 U.S.C. 78s(b)(2). 5 See Securities Exchange Act Release No. 85573, 84 FR 15239 (Apr. 15, 2019). The Commission designated May 28, 2019, as the date by which it should approve, disapprove, or institute proceedings to determine whether to disapprove the proposed rule change. 6 15 U.S.C. 78s(b)(2)(B). 7 See Securities Exchange Act Release No. 85946, 84 FR 25599 (June 3, 2019). 2 17 E:\FR\FM\28OCN1.SGM 28OCN1 57790 Federal Register / Vol. 84, No. 208 / Monday, October 28, 2019 / Notices On August 13, 2019, the Commission further extended the period for consideration of the proposed rule change to October 25, 2019.8 On September 27, 2019, NYSE Arca filed Amendment No. 1 to the proposed rule change, which replaced and superseded the proposed rule change as originally filed.9 On October 2, 2019, NYSE Arca filed Amendment No. 2 to the proposed rule change, which replaced and superseded the proposed rule change as modified by Amendment No. 1.10 On October 10, 2019, the Exchange filed Amendment No. 3 to the proposed rule change, which replaced and superseded the proposed rule change as modified by Amendment No. 2.11 The Commission has received no comments on the proposal. The Commission is publishing this notice and order to solicit comments from interested persons on the proposed rule change, as modified by Amendment No. 3, and is approving the proposed rule change, as modified by Amendment No. 3, on an accelerated basis. II. Description of the Proposed Rule Change, as Modified by Amendment No. 3 12 khammond on DSKJM1Z7X2PROD with NOTICES NYSE Arca Rule 5.2–E(j)(3) permits the Exchange to list a series of Units based on an index or portfolio of underlying securities. Currently, NYSE Arca Rule 5.2–E(j)(3) includes generic listing standards for Units based on an index or portfolio of equity or fixed income securities or a combination thereof. Municipal Securities 13 are a type of fixed income security, and therefore 8 See Securities Exchange Act Release No. 86643, 84 FR 42963 (Aug. 19, 2019). 9 Amendment No. 1 is available at: https:// www.sec.gov/comments/sr-nysearca-2019-04/ srnysearca201904-6224879-192613.pdf. 10 Amendment No. 2 is available at: https:// www.sec.gov/comments/sr-nysearca-2019-04/ srnysearca201904-6245350-192767.pdf. 11 In Amendment No. 3, the Exchange: (1) Clarified that its proposed requirement that an underlying index or portfolio must include a minimum of 13 ‘‘non-affiliated’’ issuers means a minimum of 13 ‘‘unique’’ issuers; (2) corrected the numbering of one provision of the proposed rule text; (3) made a conforming change within Commentary .03 to NYSE Arca Rule 5.2–E(j)(3); (4) prohibited its listing of Units issued by an open-end management investment company that seeks to provide investment results, before fees and expenses, in an amount that exceeds ¥300% of the percentage performance on a given day of an index of Municipal Securities (as defined below); and (5) conformed its description of the scope of Commentary .03 to NYSE Arca Rule 5.2–E(j)(3) to the rule text. Amendment No. 3 is available at: https://www.sec.gov/comments/sr-nysearca-201904/srnysearca201904-6283314-193347.pdf. 12 For a full description of the proposed rule change, see Amendment No. 3, supra note 11. 13 The proposed rule defines the term ‘‘Municipal Securities’’ by incorporating the definition in VerDate Sep<11>2014 16:58 Oct 25, 2019 Jkt 250001 currently the Exchange may generically list and trade Units overlying an index or portfolio of Municipal Securities that satisfies the criteria of Commentary .02 to NYSE Arca Rule 5.2–E(j)(3). According to the Exchange, however, indexes and portfolios of Municipal Securities typically do not satisfy one of those requirements—namely, that components comprising at least 75% of the Fixed Income Securities 14 portion of the weight of the index or portfolio each shall have a minimum original principal amount outstanding of $100 million or more.15 The Exchange states that Municipal Securities are generally issued with individual maturities of relatively small size, although they generally are constituents of a much larger municipal bond offering.16 A. Proposed Commentary .02A to NYSE Arca Rule 5.2–E(j)(3) 1. Applicability Proposed Commentary .02A to NYSE Arca Rule 5.2–E(j)(3) provides generic listing standards for Units based on an index or portfolio comprised solely of Municipal Securities or Municipal Securities and cash. Because the current Commentary .02 to NYSE Arca Rule 5.2–E(j)(3) also applies to Units based on an index or portfolio of Municipal Securities, the Exchange represents that it would apply existing Commentary .02 and proposed Commentary .02A in a ‘‘waterfall’’ manner.17 Initially, the Exchange would evaluate the eligibility of a series of Units based on an index or portfolio of Municipal Securities (or Municipal Securities and cash) for listing pursuant to the generic listing standards of Commentary .02; if the underlying index or portfolio satisfies those criteria, the Exchange would list and trade the Units pursuant to that rule.18 If, however, Units whose underlying index or portfolio of Municipal Securities does not satisfy all of the requirements of Commentary .02, the Exchange would apply proposed Commentary .02A.19 2. Proposed Generic Listing Standards The Exchange states that Commentary .02A to NYSE Arca Rule 5.2–E(j)(3) includes many requirements that are more stringent than those applicable to an index or portfolio of fixed-income Section 3(a)(29) of the Act. See Amendment No. 3, supra note 11, at 4 n.4. 14 ‘‘Fixed Income Securities’’ are defined in Commentary .02 to NYSE Arca Rule 5.2–E(j)(3). 15 See Amendment No. 3, supra note 11, at 4 n.5. 16 See Amendment No. 3, supra note 11, at 4 n.5. 17 See id. at 5. 18 See id. at 5–6. 19 See proposed Commentary .02A to NYSE Arca Rule 5.2–E(j)(3). PO 00000 Frm 00103 Fmt 4703 Sfmt 4703 securities and cash. These heightened requirements, according to the Exchange, would deter potential manipulation of such Municipal Securities indices, even though the index or portfolio may include securities that have smaller original principal amounts outstanding than required under the existing Commentary .02 to NYSE Arca Rule 5.2–E(j)(3). The proposed quantitative requirements described below would apply on both an initial and continued basis to a Municipal Securities index or portfolio underlying a series of Units. a. Original Principal Amount Outstanding As mentioned above, according to the Exchange, Municipal Securities are typically issued with individual maturities of relatively small size, although they generally are constituents of a much larger municipal bond offering.20 In recognition of these smaller offering sizes, the Exchange proposes to reduce the minimum original principal amount outstanding requirement for component securities from at least $100 million to at least $5 million.21 The Exchange also proposes that qualifying securities must be issued as part of a transaction of at least $20 million.22 Lastly, the Exchange proposes to increase the percentage weight of an index or portfolio that must satisfy the original principal amount outstanding requirement from 75% to 90%.23 The Exchange asserts that reducing the minimum original principal amount outstanding requirement for component securities will not make an index or portfolio more susceptible to manipulation.24 The Exchange believes that its proposal to require that 90% of the weight of a Municipal Securities index or portfolio meet the original principal amount outstanding requirement (as opposed to 75% for fixed-income indices) will deter potential manipulation by ensuring that a greater portion of the index or portfolio meet this minimum size requirement.25 The Exchange also notes that the Commission previously approved the listing and trading of Units where components comprising at least 90% of the weight of the underlying index have a minimum original principal amount outstanding of at least $5 million and are issued as 20 See supra note 16 and accompanying text. Amendment No. 3, supra note 11, at 6. 22 See id. 23 See id. 24 See id. at 7. 25 See id. at 7–8. 21 See E:\FR\FM\28OCN1.SGM 28OCN1 Federal Register / Vol. 84, No. 208 / Monday, October 28, 2019 / Notices part of a transaction of at least $20 million.26 b. Component Concentration The Exchange proposes to reduce the maximum weight that any individual Municipal Security, and a group of five Municipal Securities, may comprise in a Municipal Securities index or portfolio.27 The current generic listing standards for Units based on a fixedincome index or portfolio permit individual component securities to account for up to 30% of the weight of such index or portfolio and the top-five weighted component securities to account for up to 65% of the weight of such index or portfolio.28 The Exchange proposes to reduce these thresholds to 10% for individual Municipal Securities and 30% for the five most heavilyweighted Municipal Securities in an index or portfolio.29 The Exchange believes that this requirement will reduce the susceptibility to manipulation of a Municipal Securities index or portfolio underlying a series of Units.30 c. Issuer Diversification khammond on DSKJM1Z7X2PROD with NOTICES The current generic listing standards for Units based on an index or portfolio of Fixed Income Securities do not include an issuer diversification requirement for indices comprised solely of Municipal Securities.31 The Exchange proposes a generic listing criterion that would require an index or portfolio of Municipal Securities or Municipal Securities and cash to include securities from at least 13 unique issuers.32 The Exchange states that requiring such diversification will reduce the likelihood that an index or portfolio may be manipulated by ensuring that securities from a variety of issuers are represented in an index or portfolio of Municipal Securities.33 26 See, e.g., Securities Exchange Act Release No. 84049 (Sep. 6, 2018), 83 FR 46228 (Sep. 12, 2018) (SR–NYSEArca–2018–38) (order approving, among other things, revisions to the continued listing criteria applicable to the iShares New York AMTFree Muni Bond ETF). 27 See Amendment No. 3, supra note 11, at 8. 28 See id. 29 See id. 30 See id. 31 Commentary .02(a)(5) to NYSE Arca Rule 5.2– E(j)(3) provides that an index or portfolio—other than one consisting entirely of exempted securities—must include securities from at least 13 non-affiliated issuers. Municipal Securities are included in the definition of exempted securities. Accordingly, the requirement related to 13 nonaffiliated issuers does not apply to Municipal Securities. See Section 3(a)(12) of the Act. 32 See Amendment No. 3, supra note 11, at 9. 33 See id. VerDate Sep<11>2014 16:58 Oct 25, 2019 Jkt 250001 d. Minimum Number of Components The current generic listing standards applicable to an index or portfolio of Fixed Income Securities do not require a minimum number of components.34 In the proposed Commentary .02A to NYSE Arca Rule 5.2–E(j)(3), the Exchange proposes to require that an index or portfolio of Municipal Securities contain at least 500 component securities.35 The Exchange asserts that this proposed requirement will ensure that a Municipal Securities index or portfolio would be sufficiently broad-based and diversified to make it less susceptible to manipulation.36 e. Listing of Units With Inverse Leveraged Exposure to an Index of Municipal Securities Consistent with the requirement for an index or portfolio of Fixed Income Securities under the current Commentary .02 to NYSE Arca Rule 5.2–E(j)(3), the Exchange would not list Units issued by an open-end management investment company that seeks to provide investment results, before fees and expenses, in an amount that exceeds ¥300% of the percentage performance on a given day of an index of Municipal Securities.37 f. Additional Requirements In addition to the quantitative requirements described above, the Exchange proposes to adopt additional rules related to: (1) Index methodology and calculation; (2) dissemination of information; (3) initial shares outstanding; (4) hours of trading; (5) surveillance procedures; and (6) disclosures. The Exchange proposes Commentary .02A(b) to NYSE Arca Rule 5.2–E(j)(3), which requires that: (i) If a Municipal Securities index is maintained by a broker-dealer or fund advisor, the broker-dealer or fund advisor shall erect and maintain a ‘‘firewall’’ around the personnel who have access to information concerning changes and adjustments to the index; (ii) the current index value for Units listed pursuant to proposed Commentary .02A(a) to NYSE Arca Rule 5.2–E(j)(3) will be widely disseminated by one or more major market data vendors at least once per day and, if the index value does not change during some or all of the period when trading is occurring on the NYSE Arca Marketplace, the last official calculated index value must remain 34 See id. id. 36 See id. at 10. 37 See proposed Commentary .02A to NYSE Arca Rule 5.2–E(j)(3). 35 See PO 00000 Frm 00104 Fmt 4703 Sfmt 4703 57791 available throughout NYSE Arca Marketplace trading hours; and (iii) any advisory committee, supervisory board, or similar entity that advises a Reporting Authority 38 or that makes decisions on the index composition, methodology and related matters, must implement and maintain, or be subject to, procedures designed to prevent the use and dissemination of material nonpublic information regarding the applicable Municipal Securities index.39 The Exchange proposes Commentary .02A(c) to NYSE Arca Rule 5.2–E(j)(3), which requires that one or more major market data vendors shall disseminate for each series of Units based on an index or portfolio of Municipal Securities an estimate, updated at least every 15 seconds during the Core Trading Session, of the value of a share of each series (the ‘‘Intraday Indicative Value’’ or ‘‘IIV’’).40 The Intraday Indicative Value may be based, for example, upon current information regarding the required deposit of securities and cash amount to permit creation of new shares of the series or upon the index value.41 The Intraday Indicative Value may be calculated by the Exchange or by an independent third party throughout the day using prices obtained from independent market data providers or other independent pricing sources such as a broker-dealer or price evaluation services.42 If the Intraday Indicative Value does not change during some or all of the period when trading is occurring on the Exchange, then the last official calculated Intraday Indicative Value must remain available throughout Exchange trading hours.43 The Exchange proposes Commentary .02A(d) to NYSE Arca Rule 5.2–E(j)(3), which requires that a minimum of 100,000 shares of a series of Units will be required to be outstanding at commencement of trading.44 The Exchange proposes Commentary .02A(e) to NYSE Arca Rule 5.2–E(j)(3), which specifies that the hours of trading for the Units will be as governed by NYSE Arca Rule 7.34–E(a).45 The Exchange proposes Commentary .02A(f) to NYSE Arca Rule 5.2–E(j)(3), which specifies that Units that are listed 38 ‘‘Reporting Authority’’ is defined in NYSE Arca Rule 5.1–E(b)(16). See Amendment No. 3, supra note 11, at 11 n.14. 39 See Amendment No. 3, supra note 11, at 10– 11. 40 See id. at 11. 41 See id. 42 See id. 43 See id. 44 See id. 45 See id. E:\FR\FM\28OCN1.SGM 28OCN1 57792 Federal Register / Vol. 84, No. 208 / Monday, October 28, 2019 / Notices or traded pursuant to unlisted trading privileges will be subject to the Exchange’s written surveillance procedures.46 Lastly, proposed Commentary .02A(g) to NYSE Arca Rule 5.2–E(j)(3) incorporates the information circular requirement of Commentary .01(g) NYSE Arca Rule 5.2–E(j)(3).47 B. Proposed Amendments to Commentary .03 to NYSE Arca Rule 5.2–E(j)(3) The Exchange also proposes to amend Commentary .03 to NYSE Arca Rule 5.2–E(j)(3) to allow the generic listing and trading of Units based on a combination of two or more types of indexes, including a combination index that includes Municipal Securities.48 Currently, the scope of the rule allows the Exchange to generically list Units overlying a combination of indexes or an index or portfolio of component securities representing: (1) The U.S. or domestic equity market; (2) the international equity market; and (3) the fixed income market. To the extent that an index or portfolio of Municipal Securities is included in a combination, the proposed rule specifies that the Municipal Securities index or portfolio must satisfy all requirements of Commentary .02A to NYSE Arca Rule 5.2–E(j)(3).49 Further, the Exchange’s proposed rule would provide that it would not list Units issued by an openend management investment company that seeks to provide investment results, before fees and expenses, in an amount that exceeds ¥300% of the percentage performance on a combination of indices that include a Municipal Securities Index.50 The Exchange also proposes other conforming changes to Commentary .03 to specify that the current requirements related to index value dissemination and related continued listing standards will apply to indexes of Municipal Securities.51 khammond on DSKJM1Z7X2PROD with NOTICES III. Discussion and Commission’s Findings After careful review, the Commission finds that the proposed rule change, as modified by Amendment No. 3, is consistent with the Act and the rules and regulations thereunder applicable to a national securities exchange.52 In 46 See id. id. at 42. 48 See id. at 10. 49 See id. 50 See id. 51 See id. 52 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). 47 See VerDate Sep<11>2014 16:58 Oct 25, 2019 Jkt 250001 particular, the Commission finds that the proposal is consistent with Section 6(b)(5) of the Act,53 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. With respect to the quantitative requirements of Commentary .02A to NYSE Arca Rule 5.2–E(j)(3), the proposed original principal amount outstanding requirement is lower than what is currently applicable to Units based on an index or portfolio of Fixed Income Securities. The Commission notes, however, that the other proposed quantitative requirements (i.e., component concentration, issuer diversification, and minimum number of components) are stricter than the existing generic listing requirements. Accordingly, the Commission believes that, taken together, the proposed Commentary .02A is sufficiently designed to prevent fraudulent and manipulative acts and practices. Specifically, the Commission believes that the generic listing requirements for an index or portfolio of Municipal Securities should help to ensure that an index underlying a series of Units will be sufficiently large, not concentrated, and diversified to prevent manipulation of that benchmark. The Commission further notes that it has previously approved proposed listing and trading of exchange traded funds with similar quantitative standards and those funds have not raised concerns regarding manipulation.54 The Commission also finds that the other proposed provisions of Commentary .02A to NYSE Arca Rule 5.2–E(j)(3) and the proposed amendments to Commentary .03 to NYSE Arca Rule 5.2–E(j)(3) are consistent with the Act. The provisions in the proposed Commentary .02A governing index methodology and calculation, dissemination of information, minimum number of shares outstanding at the commencement of trading, hours of trading, surveillance procedures, and information circulars are consistent with the existing requirements 53 15 U.S.C. 78f(b)(5). 54 The Commission has previously approved the listing and trading of Units overlying municipal securities indices that satisfy the proposed initial and continued generic listing criteria. See, e.g., Securities Exchange Act Releases No. 82295 (Dec. 12, 2017), 82 FR 60056 (Dec. 18, 2017) (SR– NYSEArca–2017–56) and 84049, supra note 25. PO 00000 Frm 00105 Fmt 4703 Sfmt 4703 applicable to Units based on an index of U.S. fixed-income securities. Further, the proposed amendments to Commentary .03 are designed to extend the requirements related to the generic listing and trading of Units based on a combination of two or more types of indexes to an index of Municipal Securities. In support of its proposal, the Exchange represents the following: (1) Units listed pursuant to proposed Commentary .02A to NYSE Arca Rule 5.2– E(j)(3) will be subject to the existing trading surveillances, administered by the Financial Industry Regulatory Authority (‘‘FINRA’’) on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws.55 The Exchange represents that these procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws.56 FINRA, on behalf of the Exchange, will communicate as needed regarding trading in the Shares with other markets that are members of the Intermarket Surveillance Group (‘‘ISG’’) or with which the Exchange has in place a comprehensive surveillance sharing agreement.57 FINRA also can access data obtained from the MSRB relating to municipal bond trading activity for surveillance purposes in connection with trading in the Shares.58 FINRA, on behalf of the Exchange, is able to access, as needed, trade information for certain fixed income securities held by a Fund reported to FINRA’s Trade Reporting and Compliance Engine.59 (2) Units listed pursuant to the proposed generic listing rule will comply with all other requirements applicable to Units including, but not limited to, the applicable rules governing the trading of equity securities, trading hours, trading halts, surveillance, information barriers and the Information Bulletin to ETP Holders, as set forth in Exchange rules applicable to Units.60 (3) The Exchange has in place surveillance procedures relating to trading in the Units and may obtain information via ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement.61 In addition, investors will have ready access to information regarding the IIV and quotation and last-sale information for the Units. Trade price and other information relating to municipal bonds is available through EMMA.62 This approval order is based on all of the Exchange’s representations, including those set forth above. For the foregoing reasons, the Commission finds 55 See Amendment No. 3, supra note 11, at 12. id. 57 See id. 58 See id. 59 See id. 60 See id. at 13. 61 See id. at 14. 62 See id. 56 See E:\FR\FM\28OCN1.SGM 28OCN1 Federal Register / Vol. 84, No. 208 / Monday, October 28, 2019 / Notices submissions should refer to File Number SR–NYSEArca–2019–04 and should be submitted on or before November 18, 2019. that the proposed rule change, as modified by Amendment No. 3, is consistent with Section 6(b)(5) of the Act 63 and the rules and regulations thereunder applicable to a national securities exchange. IV. Solicitation of Comments on Amendment No. 3 to the Proposed Rule Change Interested persons are invited to submit written views, data, and arguments concerning whether Amendment No. 3 is consistent with the Act. Comments may be submitted by any of the following methods: khammond on DSKJM1Z7X2PROD with NOTICES 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–2019–04 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–NYSEArca–2019–04. 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 website (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 website 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. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly. All 63 15 U.S.C. 78f(b)(5). VerDate Sep<11>2014 16:58 Oct 25, 2019 Jkt 250001 V. Accelerated Approval of the 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 the filing of Amendment No. 3 in the Federal Register. The Commission notes that Amendment No. 3 narrowed the scope of the proposal by prohibiting the of listing Units issued by an open-end management investment company that seeks to provide investment results, before fees and expenses, in an amount that exceeds ¥300% of the percentage performance on a given day of an index of Municipal Securities. Amendment No. 3 also provided useful clarifications and corrections. The changes and additional information in Amendment No. 3 assisted the Commission in evaluating the Exchange’s proposal and in determining that the proposed amendments to NYSE Arca Rule 5.2– E(j)(3) are consistent with the Act. Accordingly, the Commission finds good cause, pursuant to Section 19(b)(2) of the Act,64 to approve the proposed rule change, as modified by Amendment No. 3, on an accelerated basis. VI. Conclusion It is therefore ordered, pursuant to Section 19(b)(2) of the Act,65 that the proposed rule change (SR–NYSEArca– 2019–04), 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.66 Jill M. Peterson, Assistant Secretary. [FR Doc. 2019–23427 Filed 10–25–19; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–87379; File No. SR–ISE– 2019–27) Self-Regulatory Organizations; Nasdaq ISE, LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Extend the Pilot Period To Permit the Listing and Trading of Options Based on 1⁄5 the Value of the Nasdaq-100 Index October 22, 2019. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the ‘‘Act’’),1 and Rule 19b–4 thereunder,2 notice is hereby given that on October 11, 2019, Nasdaq ISE, LLC (‘‘ISE’’ or the ‘‘Exchange’’) filed with the Securities and Exchange Commission (the ‘‘Commission’’) the proposed rule change as described in Items I and II below, which Items have been prepared by the Exchange. The Exchange filed the proposal as a ‘‘non-controversial’’ proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act 3 and Rule 19b–4(f)(6) thereunder.4 The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to extend the pilot to permit the listing and trading of options based on 1⁄5 the value of the Nasdaq-100 Index (‘‘Nasdaq-100’’) currently set to expire on November 4, 2019. II. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements. 1 15 64 15 U.S.C. 78s(b)(2). 65 15 U.S.C. 78s(b)(2). 66 17 CFR 200.30–3(a)(12). PO 00000 Frm 00106 Fmt 4703 Sfmt 4703 57793 U.S.C. 78s(b)(1). CFR 240.19b–4. 3 15 U.S.C. 78s(b)(3)(A)(iii). 4 17 CFR 240.19b–4(f)(6). 2 17 E:\FR\FM\28OCN1.SGM 28OCN1

Agencies

[Federal Register Volume 84, Number 208 (Monday, October 28, 2019)]
[Notices]
[Pages 57789-57793]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-23427]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-87382; File No. SR-NYSEArca-2019-04]


Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
of Amendment No. 3 and Order Granting Accelerated Approval of a 
Proposed Rule Change, as Modified by Amendment No. 3, To Amend NYSE 
Arca Rule 5.2-E(j)(3) To Adopt Generic Listing Standards for Investment 
Company Units Based on an Index or Portfolio of Municipal Securities

October 22, 2019.

I. Introduction

    On February 8, 2019, NYSE Arca, Inc. (``Exchange'' or ``NYSE 
Arca'') filed with the Securities and Exchange Commission 
(``Commission''), pursuant to Section 19(b)(1) of the Securities 
Exchange Act of 1934 (the ``Act'' or the ``Exchange Act'') \1\ and Rule 
19b-4 thereunder,\2\ a proposed rule change to adopt generic listing 
standards for Investment Company Units (``Units'') based on an index or 
portfolio of municipal securities. The proposed rule change was 
published for comment in the Federal Register on February 27, 2019.\3\ 
On April 9, 2019, pursuant to Section 19(b)(2) of the Exchange Act,\4\ 
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.\5\ On May 28, 2019, the Commission instituted proceedings under 
Section 19(b)(2)(B) of the Exchange Act \6\ to determine whether to 
approve or disapprove the proposed rule change.\7\

[[Page 57790]]

On August 13, 2019, the Commission further extended the period for 
consideration of the proposed rule change to October 25, 2019.\8\ On 
September 27, 2019, NYSE Arca filed Amendment No. 1 to the proposed 
rule change, which replaced and superseded the proposed rule change as 
originally filed.\9\ On October 2, 2019, NYSE Arca filed Amendment No. 
2 to the proposed rule change, which replaced and superseded the 
proposed rule change as modified by Amendment No. 1.\10\ On October 10, 
2019, the Exchange filed Amendment No. 3 to the proposed rule change, 
which replaced and superseded the proposed rule change as modified by 
Amendment No. 2.\11\ The Commission has received no comments on the 
proposal.
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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. 85170 (Feb. 21, 
2019), 84 FR 6451.
    \4\ 15 U.S.C. 78s(b)(2).
    \5\ See Securities Exchange Act Release No. 85573, 84 FR 15239 
(Apr. 15, 2019). The Commission designated May 28, 2019, as the date 
by which it should approve, disapprove, or institute proceedings to 
determine whether to disapprove the proposed rule change.
    \6\ 15 U.S.C. 78s(b)(2)(B).
    \7\ See Securities Exchange Act Release No. 85946, 84 FR 25599 
(June 3, 2019).
    \8\ See Securities Exchange Act Release No. 86643, 84 FR 42963 
(Aug. 19, 2019).
    \9\ Amendment No. 1 is available at: https://www.sec.gov/comments/sr-nysearca-2019-04/srnysearca201904-6224879-192613.pdf.
    \10\ Amendment No. 2 is available at: https://www.sec.gov/comments/sr-nysearca-2019-04/srnysearca201904-6245350-192767.pdf.
    \11\ In Amendment No. 3, the Exchange: (1) Clarified that its 
proposed requirement that an underlying index or portfolio must 
include a minimum of 13 ``non-affiliated'' issuers means a minimum 
of 13 ``unique'' issuers; (2) corrected the numbering of one 
provision of the proposed rule text; (3) made a conforming change 
within Commentary .03 to NYSE Arca Rule 5.2-E(j)(3); (4) prohibited 
its listing of Units issued by an open-end management investment 
company that seeks to provide investment results, before fees and 
expenses, in an amount that exceeds -300% of the percentage 
performance on a given day of an index of Municipal Securities (as 
defined below); and (5) conformed its description of the scope of 
Commentary .03 to NYSE Arca Rule 5.2-E(j)(3) to the rule text. 
Amendment No. 3 is available at: https://www.sec.gov/comments/sr-nysearca-2019-04/srnysearca201904-6283314-193347.pdf.
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    The Commission is publishing this notice and order to solicit 
comments from interested persons on the proposed rule change, as 
modified by Amendment No. 3, and is approving the proposed rule change, 
as modified by Amendment No. 3, on an accelerated basis.

II. Description of the Proposed Rule Change, as Modified by Amendment 
No. 3 12
---------------------------------------------------------------------------

    \12\ For a full description of the proposed rule change, see 
Amendment No. 3, supra note 11.
---------------------------------------------------------------------------

    NYSE Arca Rule 5.2-E(j)(3) permits the Exchange to list a series of 
Units based on an index or portfolio of underlying securities. 
Currently, NYSE Arca Rule 5.2-E(j)(3) includes generic listing 
standards for Units based on an index or portfolio of equity or fixed 
income securities or a combination thereof.
    Municipal Securities \13\ are a type of fixed income security, and 
therefore currently the Exchange may generically list and trade Units 
overlying an index or portfolio of Municipal Securities that satisfies 
the criteria of Commentary .02 to NYSE Arca Rule 5.2-E(j)(3). According 
to the Exchange, however, indexes and portfolios of Municipal 
Securities typically do not satisfy one of those requirements--namely, 
that components comprising at least 75% of the Fixed Income Securities 
\14\ portion of the weight of the index or portfolio each shall have a 
minimum original principal amount outstanding of $100 million or 
more.\15\ The Exchange states that Municipal Securities are generally 
issued with individual maturities of relatively small size, although 
they generally are constituents of a much larger municipal bond 
offering.\16\
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    \13\ The proposed rule defines the term ``Municipal Securities'' 
by incorporating the definition in Section 3(a)(29) of the Act. See 
Amendment No. 3, supra note 11, at 4 n.4.
    \14\ ``Fixed Income Securities'' are defined in Commentary .02 
to NYSE Arca Rule 5.2-E(j)(3).
    \15\ See Amendment No. 3, supra note 11, at 4 n.5.
    \16\ See Amendment No. 3, supra note 11, at 4 n.5.
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A. Proposed Commentary .02A to NYSE Arca Rule 5.2-E(j)(3)

1. Applicability
    Proposed Commentary .02A to NYSE Arca Rule 5.2-E(j)(3) provides 
generic listing standards for Units based on an index or portfolio 
comprised solely of Municipal Securities or Municipal Securities and 
cash. Because the current Commentary .02 to NYSE Arca Rule 5.2-E(j)(3) 
also applies to Units based on an index or portfolio of Municipal 
Securities, the Exchange represents that it would apply existing 
Commentary .02 and proposed Commentary .02A in a ``waterfall'' 
manner.\17\ Initially, the Exchange would evaluate the eligibility of a 
series of Units based on an index or portfolio of Municipal Securities 
(or Municipal Securities and cash) for listing pursuant to the generic 
listing standards of Commentary .02; if the underlying index or 
portfolio satisfies those criteria, the Exchange would list and trade 
the Units pursuant to that rule.\18\ If, however, Units whose 
underlying index or portfolio of Municipal Securities does not satisfy 
all of the requirements of Commentary .02, the Exchange would apply 
proposed Commentary .02A.\19\
---------------------------------------------------------------------------

    \17\ See id. at 5.
    \18\ See id. at 5-6.
    \19\ See proposed Commentary .02A to NYSE Arca Rule 5.2-E(j)(3).
---------------------------------------------------------------------------

2. Proposed Generic Listing Standards
    The Exchange states that Commentary .02A to NYSE Arca Rule 5.2-
E(j)(3) includes many requirements that are more stringent than those 
applicable to an index or portfolio of fixed-income securities and 
cash. These heightened requirements, according to the Exchange, would 
deter potential manipulation of such Municipal Securities indices, even 
though the index or portfolio may include securities that have smaller 
original principal amounts outstanding than required under the existing 
Commentary .02 to NYSE Arca Rule 5.2-E(j)(3). The proposed quantitative 
requirements described below would apply on both an initial and 
continued basis to a Municipal Securities index or portfolio underlying 
a series of Units.
a. Original Principal Amount Outstanding
    As mentioned above, according to the Exchange, Municipal Securities 
are typically issued with individual maturities of relatively small 
size, although they generally are constituents of a much larger 
municipal bond offering.\20\ In recognition of these smaller offering 
sizes, the Exchange proposes to reduce the minimum original principal 
amount outstanding requirement for component securities from at least 
$100 million to at least $5 million.\21\ The Exchange also proposes 
that qualifying securities must be issued as part of a transaction of 
at least $20 million.\22\ Lastly, the Exchange proposes to increase the 
percentage weight of an index or portfolio that must satisfy the 
original principal amount outstanding requirement from 75% to 90%.\23\
---------------------------------------------------------------------------

    \20\ See supra note 16 and accompanying text.
    \21\ See Amendment No. 3, supra note 11, at 6.
    \22\ See id.
    \23\ See id.
---------------------------------------------------------------------------

    The Exchange asserts that reducing the minimum original principal 
amount outstanding requirement for component securities will not make 
an index or portfolio more susceptible to manipulation.\24\ The 
Exchange believes that its proposal to require that 90% of the weight 
of a Municipal Securities index or portfolio meet the original 
principal amount outstanding requirement (as opposed to 75% for fixed-
income indices) will deter potential manipulation by ensuring that a 
greater portion of the index or portfolio meet this minimum size 
requirement.\25\ The Exchange also notes that the Commission previously 
approved the listing and trading of Units where components comprising 
at least 90% of the weight of the underlying index have a minimum 
original principal amount outstanding of at least $5 million and are 
issued as

[[Page 57791]]

part of a transaction of at least $20 million.\26\
---------------------------------------------------------------------------

    \24\ See id. at 7.
    \25\ See id. at 7-8.
    \26\ See, e.g., Securities Exchange Act Release No. 84049 (Sep. 
6, 2018), 83 FR 46228 (Sep. 12, 2018) (SR-NYSEArca-2018-38) (order 
approving, among other things, revisions to the continued listing 
criteria applicable to the iShares New York AMT-Free Muni Bond ETF).
---------------------------------------------------------------------------

b. Component Concentration
    The Exchange proposes to reduce the maximum weight that any 
individual Municipal Security, and a group of five Municipal 
Securities, may comprise in a Municipal Securities index or 
portfolio.\27\ The current generic listing standards for Units based on 
a fixed-income index or portfolio permit individual component 
securities to account for up to 30% of the weight of such index or 
portfolio and the top-five weighted component securities to account for 
up to 65% of the weight of such index or portfolio.\28\ The Exchange 
proposes to reduce these thresholds to 10% for individual Municipal 
Securities and 30% for the five most heavily-weighted Municipal 
Securities in an index or portfolio.\29\ The Exchange believes that 
this requirement will reduce the susceptibility to manipulation of a 
Municipal Securities index or portfolio underlying a series of 
Units.\30\
---------------------------------------------------------------------------

    \27\ See Amendment No. 3, supra note 11, at 8.
    \28\ See id.
    \29\ See id.
    \30\ See id.
---------------------------------------------------------------------------

c. Issuer Diversification
    The current generic listing standards for Units based on an index 
or portfolio of Fixed Income Securities do not include an issuer 
diversification requirement for indices comprised solely of Municipal 
Securities.\31\
---------------------------------------------------------------------------

    \31\ Commentary .02(a)(5) to NYSE Arca Rule 5.2-E(j)(3) provides 
that an index or portfolio--other than one consisting entirely of 
exempted securities--must include securities from at least 13 non-
affiliated issuers. Municipal Securities are included in the 
definition of exempted securities. Accordingly, the requirement 
related to 13 non-affiliated issuers does not apply to Municipal 
Securities. See Section 3(a)(12) of the Act.
---------------------------------------------------------------------------

    The Exchange proposes a generic listing criterion that would 
require an index or portfolio of Municipal Securities or Municipal 
Securities and cash to include securities from at least 13 unique 
issuers.\32\ The Exchange states that requiring such diversification 
will reduce the likelihood that an index or portfolio may be 
manipulated by ensuring that securities from a variety of issuers are 
represented in an index or portfolio of Municipal Securities.\33\
---------------------------------------------------------------------------

    \32\ See Amendment No. 3, supra note 11, at 9.
    \33\ See id.
---------------------------------------------------------------------------

d. Minimum Number of Components
    The current generic listing standards applicable to an index or 
portfolio of Fixed Income Securities do not require a minimum number of 
components.\34\ In the proposed Commentary .02A to NYSE Arca Rule 5.2-
E(j)(3), the Exchange proposes to require that an index or portfolio of 
Municipal Securities contain at least 500 component securities.\35\ The 
Exchange asserts that this proposed requirement will ensure that a 
Municipal Securities index or portfolio would be sufficiently broad-
based and diversified to make it less susceptible to manipulation.\36\
---------------------------------------------------------------------------

    \34\ See id.
    \35\ See id.
    \36\ See id. at 10.
---------------------------------------------------------------------------

e. Listing of Units With Inverse Leveraged Exposure to an Index of 
Municipal Securities
    Consistent with the requirement for an index or portfolio of Fixed 
Income Securities under the current Commentary .02 to NYSE Arca Rule 
5.2-E(j)(3), the Exchange would not list Units issued by an open-end 
management investment company that seeks to provide investment results, 
before fees and expenses, in an amount that exceeds -300% of the 
percentage performance on a given day of an index of Municipal 
Securities.\37\
---------------------------------------------------------------------------

    \37\ See proposed Commentary .02A to NYSE Arca Rule 5.2-E(j)(3).
---------------------------------------------------------------------------

f. Additional Requirements
    In addition to the quantitative requirements described above, the 
Exchange proposes to adopt additional rules related to: (1) Index 
methodology and calculation; (2) dissemination of information; (3) 
initial shares outstanding; (4) hours of trading; (5) surveillance 
procedures; and (6) disclosures.
    The Exchange proposes Commentary .02A(b) to NYSE Arca Rule 5.2-
E(j)(3), which requires that: (i) If a Municipal Securities index is 
maintained by a broker-dealer or fund advisor, the broker-dealer or 
fund advisor shall erect and maintain a ``firewall'' around the 
personnel who have access to information concerning changes and 
adjustments to the index; (ii) the current index value for Units listed 
pursuant to proposed Commentary .02A(a) to NYSE Arca Rule 5.2-E(j)(3) 
will be widely disseminated by one or more major market data vendors at 
least once per day and, if the index value does not change during some 
or all of the period when trading is occurring on the NYSE Arca 
Marketplace, the last official calculated index value must remain 
available throughout NYSE Arca Marketplace trading hours; and (iii) any 
advisory committee, supervisory board, or similar entity that advises a 
Reporting Authority \38\ or that makes decisions on the index 
composition, methodology and related matters, must implement and 
maintain, or be subject to, procedures designed to prevent the use and 
dissemination of material non-public information regarding the 
applicable Municipal Securities index.\39\
---------------------------------------------------------------------------

    \38\ ``Reporting Authority'' is defined in NYSE Arca Rule 5.1-
E(b)(16). See Amendment No. 3, supra note 11, at 11 n.14.
    \39\ See Amendment No. 3, supra note 11, at 10-11.
---------------------------------------------------------------------------

    The Exchange proposes Commentary .02A(c) to NYSE Arca Rule 5.2-
E(j)(3), which requires that one or more major market data vendors 
shall disseminate for each series of Units based on an index or 
portfolio of Municipal Securities an estimate, updated at least every 
15 seconds during the Core Trading Session, of the value of a share of 
each series (the ``Intraday Indicative Value'' or ``IIV'').\40\ The 
Intraday Indicative Value may be based, for example, upon current 
information regarding the required deposit of securities and cash 
amount to permit creation of new shares of the series or upon the index 
value.\41\ The Intraday Indicative Value may be calculated by the 
Exchange or by an independent third party throughout the day using 
prices obtained from independent market data providers or other 
independent pricing sources such as a broker-dealer or price evaluation 
services.\42\ If the Intraday Indicative Value does not change during 
some or all of the period when trading is occurring on the Exchange, 
then the last official calculated Intraday Indicative Value must remain 
available throughout Exchange trading hours.\43\
---------------------------------------------------------------------------

    \40\ See id. at 11.
    \41\ See id.
    \42\ See id.
    \43\ See id.
---------------------------------------------------------------------------

    The Exchange proposes Commentary .02A(d) to NYSE Arca Rule 5.2-
E(j)(3), which requires that a minimum of 100,000 shares of a series of 
Units will be required to be outstanding at commencement of 
trading.\44\
---------------------------------------------------------------------------

    \44\ See id.
---------------------------------------------------------------------------

    The Exchange proposes Commentary .02A(e) to NYSE Arca Rule 5.2-
E(j)(3), which specifies that the hours of trading for the Units will 
be as governed by NYSE Arca Rule 7.34-E(a).\45\
---------------------------------------------------------------------------

    \45\ See id.
---------------------------------------------------------------------------

    The Exchange proposes Commentary .02A(f) to NYSE Arca Rule 5.2-
E(j)(3), which specifies that Units that are listed

[[Page 57792]]

or traded pursuant to unlisted trading privileges will be subject to 
the Exchange's written surveillance procedures.\46\
---------------------------------------------------------------------------

    \46\ See id.
---------------------------------------------------------------------------

    Lastly, proposed Commentary .02A(g) to NYSE Arca Rule 5.2-E(j)(3) 
incorporates the information circular requirement of Commentary .01(g) 
NYSE Arca Rule 5.2-E(j)(3).\47\
---------------------------------------------------------------------------

    \47\ See id. at 42.
---------------------------------------------------------------------------

B. Proposed Amendments to Commentary .03 to NYSE Arca Rule 5.2-E(j)(3)

    The Exchange also proposes to amend Commentary .03 to NYSE Arca 
Rule 5.2-E(j)(3) to allow the generic listing and trading of Units 
based on a combination of two or more types of indexes, including a 
combination index that includes Municipal Securities.\48\ Currently, 
the scope of the rule allows the Exchange to generically list Units 
overlying a combination of indexes or an index or portfolio of 
component securities representing: (1) The U.S. or domestic equity 
market; (2) the international equity market; and (3) the fixed income 
market. To the extent that an index or portfolio of Municipal 
Securities is included in a combination, the proposed rule specifies 
that the Municipal Securities index or portfolio must satisfy all 
requirements of Commentary .02A to NYSE Arca Rule 5.2-E(j)(3).\49\ 
Further, the Exchange's proposed rule would provide that it would not 
list Units issued by an open-end management investment company that 
seeks to provide investment results, before fees and expenses, in an 
amount that exceeds -300% of the percentage performance on a 
combination of indices that include a Municipal Securities Index.\50\ 
The Exchange also proposes other conforming changes to Commentary .03 
to specify that the current requirements related to index value 
dissemination and related continued listing standards will apply to 
indexes of Municipal Securities.\51\
---------------------------------------------------------------------------

    \48\ See id. at 10.
    \49\ See id.
    \50\ See id.
    \51\ See id.
---------------------------------------------------------------------------

III. Discussion and Commission's Findings

    After careful review, the Commission finds that the proposed rule 
change, as modified by Amendment No. 3, is consistent with the Act and 
the rules and regulations thereunder applicable to a national 
securities exchange.\52\ In particular, the Commission finds that the 
proposal is consistent with Section 6(b)(5) of the Act,\53\ 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.
---------------------------------------------------------------------------

    \52\ 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).
    \53\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    With respect to the quantitative requirements of Commentary .02A to 
NYSE Arca Rule 5.2-E(j)(3), the proposed original principal amount 
outstanding requirement is lower than what is currently applicable to 
Units based on an index or portfolio of Fixed Income Securities. The 
Commission notes, however, that the other proposed quantitative 
requirements (i.e., component concentration, issuer diversification, 
and minimum number of components) are stricter than the existing 
generic listing requirements. Accordingly, the Commission believes 
that, taken together, the proposed Commentary .02A is sufficiently 
designed to prevent fraudulent and manipulative acts and practices. 
Specifically, the Commission believes that the generic listing 
requirements for an index or portfolio of Municipal Securities should 
help to ensure that an index underlying a series of Units will be 
sufficiently large, not concentrated, and diversified to prevent 
manipulation of that benchmark. The Commission further notes that it 
has previously approved proposed listing and trading of exchange traded 
funds with similar quantitative standards and those funds have not 
raised concerns regarding manipulation.\54\
---------------------------------------------------------------------------

    \54\ The Commission has previously approved the listing and 
trading of Units overlying municipal securities indices that satisfy 
the proposed initial and continued generic listing criteria. See, 
e.g., Securities Exchange Act Releases No. 82295 (Dec. 12, 2017), 82 
FR 60056 (Dec. 18, 2017) (SR-NYSEArca-2017-56) and 84049, supra note 
25.
---------------------------------------------------------------------------

    The Commission also finds that the other proposed provisions of 
Commentary .02A to NYSE Arca Rule 5.2-E(j)(3) and the proposed 
amendments to Commentary .03 to NYSE Arca Rule 5.2-E(j)(3) are 
consistent with the Act. The provisions in the proposed Commentary .02A 
governing index methodology and calculation, dissemination of 
information, minimum number of shares outstanding at the commencement 
of trading, hours of trading, surveillance procedures, and information 
circulars are consistent with the existing requirements applicable to 
Units based on an index of U.S. fixed-income securities. Further, the 
proposed amendments to Commentary .03 are designed to extend the 
requirements related to the generic listing and trading of Units based 
on a combination of two or more types of indexes to an index of 
Municipal Securities.
    In support of its proposal, the Exchange represents the following:

    (1) Units listed pursuant to proposed Commentary .02A to NYSE 
Arca Rule 5.2-E(j)(3) will be subject to the existing trading 
surveillances, administered by the Financial Industry Regulatory 
Authority (``FINRA'') on behalf of the Exchange, which are designed 
to detect violations of Exchange rules and applicable federal 
securities laws.\55\ The Exchange represents that these procedures 
are adequate to properly monitor Exchange trading of the Shares in 
all trading sessions and to deter and detect violations of Exchange 
rules and applicable federal securities laws.\56\ FINRA, on behalf 
of the Exchange, will communicate as needed regarding trading in the 
Shares with other markets that are members of the Intermarket 
Surveillance Group (``ISG'') or with which the Exchange has in place 
a comprehensive surveillance sharing agreement.\57\ FINRA also can 
access data obtained from the MSRB relating to municipal bond 
trading activity for surveillance purposes in connection with 
trading in the Shares.\58\ FINRA, on behalf of the Exchange, is able 
to access, as needed, trade information for certain fixed income 
securities held by a Fund reported to FINRA's Trade Reporting and 
Compliance Engine.\59\
---------------------------------------------------------------------------

    \55\ See Amendment No. 3, supra note 11, at 12.
    \56\ See id.
    \57\ See id.
    \58\ See id.
    \59\ See id.
---------------------------------------------------------------------------

    (2) Units listed pursuant to the proposed generic listing rule 
will comply with all other requirements applicable to Units 
including, but not limited to, the applicable rules governing the 
trading of equity securities, trading hours, trading halts, 
surveillance, information barriers and the Information Bulletin to 
ETP Holders, as set forth in Exchange rules applicable to Units.\60\
---------------------------------------------------------------------------

    \60\ See id. at 13.
---------------------------------------------------------------------------

    (3) The Exchange has in place surveillance procedures relating 
to trading in the Units and may obtain information via ISG from 
other exchanges that are members of ISG or with which the Exchange 
has entered into a comprehensive surveillance sharing agreement.\61\ 
In addition, investors will have ready access to information 
regarding the IIV and quotation and last-sale information for the 
Units. Trade price and other information relating to municipal bonds 
is available through EMMA.\62\
---------------------------------------------------------------------------

    \61\ See id. at 14.
    \62\ See id.

    This approval order is based on all of the Exchange's 
representations, including those set forth above. For the foregoing 
reasons, the Commission finds

[[Page 57793]]

that the proposed rule change, as modified by Amendment No. 3, is 
consistent with Section 6(b)(5) of the Act \63\ and the rules and 
regulations thereunder applicable to a national securities exchange.
---------------------------------------------------------------------------

    \63\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

IV. Solicitation of Comments on Amendment No. 3 to the Proposed Rule 
Change

    Interested persons are invited to submit written views, data, and 
arguments concerning 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 (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-NYSEArca-2019-04 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-NYSEArca-2019-04. 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 website (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 website 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. Persons submitting comments are 
cautioned that we do not redact or edit personal identifying 
information from comment submissions. You should submit only 
information that you wish to make available publicly. All submissions 
should refer to File Number SR-NYSEArca-2019-04 and should be submitted 
on or before November 18, 2019.

V. Accelerated Approval of the 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 the filing of Amendment No. 
3 in the Federal Register. The Commission notes that Amendment No. 3 
narrowed the scope of the proposal by prohibiting the of listing Units 
issued by an open-end management investment company that seeks to 
provide investment results, before fees and expenses, in an amount that 
exceeds -300% of the percentage performance on a given day of an index 
of Municipal Securities. Amendment No. 3 also provided useful 
clarifications and corrections. The changes and additional information 
in Amendment No. 3 assisted the Commission in evaluating the Exchange's 
proposal and in determining that the proposed amendments to NYSE Arca 
Rule 5.2-E(j)(3) are consistent with the Act. Accordingly, the 
Commission finds good cause, pursuant to Section 19(b)(2) of the 
Act,\64\ to approve the proposed rule change, as modified by Amendment 
No. 3, on an accelerated basis.
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    \64\ 15 U.S.C. 78s(b)(2).
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VI. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\65\ that the proposed rule change (SR-NYSEArca-2019-04), as 
modified by Amendment No. 3, be, and it hereby is, approved on an 
accelerated basis.
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    \65\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\66\
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    \66\ 17 CFR 200.30-3(a)(12).
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Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2019-23427 Filed 10-25-19; 8:45 am]
 BILLING CODE 8011-01-P
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