81_FR_66295 81 FR 66109 - Order Granting Limited Exemptions From Exchange Act Rule 10b-17 and Rules 101 and 102 of Regulation M to Amplify YieldShares Prime 5 Dividend ETF Pursuant to Exchange Act Rule 10b-17(b)(2) and Rules 101(d) and 102(e) of Regulation M

81 FR 66109 - Order Granting Limited Exemptions From Exchange Act Rule 10b-17 and Rules 101 and 102 of Regulation M to Amplify YieldShares Prime 5 Dividend ETF Pursuant to Exchange Act Rule 10b-17(b)(2) and Rules 101(d) and 102(e) of Regulation M

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 81, Issue 186 (September 26, 2016)

Page Range66109-66111
FR Document2016-23043

Federal Register, Volume 81 Issue 186 (Monday, September 26, 2016)
[Federal Register Volume 81, Number 186 (Monday, September 26, 2016)]
[Notices]
[Pages 66109-66111]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-23043]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-78882; File No. TP 16-13]


Order Granting Limited Exemptions From Exchange Act Rule 10b-17 
and Rules 101 and 102 of Regulation M to Amplify YieldShares Prime 5 
Dividend ETF Pursuant to Exchange Act Rule 10b-17(b)(2) and Rules 
101(d) and 102(e) of Regulation M

September 20, 2016.
    By letter dated September 20, 2016 (the ``Letter''), as 
supplemented by conversations with the staff of the Division of Trading 
and Markets, counsel for Amplify ETF Trust (the ``Trust'') on behalf of 
the Trust, Amplify YieldShares Prime 5 Dividend ETF (the ``Fund''), any 
national securities exchange on or through which shares of the Fund 
(``Shares'') are listed and may subsequently trade, and persons or 
entities engaging in transactions in Shares (collectively, the 
``Requestors''), requested exemptions, or interpretive or no-action 
relief, from Rule 10b-17 of the Securities Exchange Act of 1934, as 
amended (``Exchange Act''), and Rules 101 and 102 of Regulation M, in 
connection with secondary market transactions in Shares and the 
creation or redemption of aggregations of Shares of 50,000 shares 
(``Creation Units'').
    The Trust is registered with the Securities and Exchange Commission 
(``Commission'') under the Investment Company Act of 1940, as amended 
(``1940 Act''), as an open-end management investment company. The Fund 
seeks to track the performance of an underlying index, the Prime 5 US 
Dividend ETF Index (``Underlying Index''). The Underlying Index seeks 
to provide exposure to the five highest-ranked dividend ETFs based on 
the index provider's scoring and selection criteria.
    The Fund will seek to track the performance of its Underlying Index 
by normally investing at least 80% of its total assets in the 
underlying exchange-traded funds that comprise the Underlying Index.\1\ 
In light of the composition of the Underlying Index, the Fund intends 
to operate as an ``ETF of ETFs.'' Except for the fact that the Fund 
will operate as an ETF of ETFs, the Fund will operate in a manner 
identical to the underlying ETFs.
---------------------------------------------------------------------------

    \1\ The remaining 20% may be invested in securities with 
maturities of less than one year or cash equivalents, or the Fund 
may hold cash.
---------------------------------------------------------------------------

    The Requestors represent, among other things, the following:
     Shares of the Fund will be issued by the Trust, an open-
end management investment company that is registered with the 
Commission;
     Creation Units will be continuously redeemable at the net 
asset value (``NAV'') next determined after receipt of a request for 
redemption by the Fund, and the secondary market price of the Shares 
should not vary substantially from the NAV of such Shares;
     Shares of the Fund will be listed and traded on BATS 
Exchange Inc. or another exchange in accordance with exchange listing 
standards that are, or will become, effective pursuant to Section 19(b) 
of the Exchange Act (the ``Listing Exchange''); \2\
---------------------------------------------------------------------------

    \2\ Further, the Letter states that should the Shares also trade 
on a market pursuant to unlisted trading privileges, such trading 
will be conducted pursuant to self-regulatory organization rules 
that are or will become effective pursuant to Section 19(b) of the 
Exchange Act.
---------------------------------------------------------------------------

     The Fund seeks to track the performance of the Underlying 
Index, all the components of which have publicly available last sale 
trade information;
     The Listing Exchange will disseminate continuously every 
15 seconds throughout the trading day, through the facilities of the 
Consolidated Tape Association, the market value of a Share;
     The Listing Exchange, market data vendors or other 
information providers will disseminate, every 15 seconds throughout the 
trading day, a calculation of the intraday indicative value of a Share;
     On each business day before the opening of business on the 
Listing Exchange, the Fund will cause to be published through the 
National Securities Clearing Corporation the list of the names and the 
quantities of securities of the Fund's portfolio that will be 
applicable that day to creation and redemption requests;
     The arbitrage mechanism will be facilitated by the 
transparency of the Fund's portfolio and the availability of the 
intraday indicative value, the liquidity of securities held by the 
Fund, the ability to acquire such securities, as well as arbitrageurs' 
ability to create workable hedges;
     The Fund will invest solely in liquid securities;
     The Fund will invest in securities that will facilitate an 
effective and efficient arbitrage mechanism and the ability to create 
workable hedges;
     All ETFs in which the Fund invests will either meet all 
conditions set forth in one or more class relief letters, will have 
received individual relief from the Commission, will be able to rely on 
individual relief even though they are not named parties, or will be 
able to rely

[[Page 66110]]

on applicable class relief for actively-managed ETFs;
     The Trust believes that arbitrageurs are expected to take 
advantage of price variations between the Fund's market price and its 
NAV; and
     A close alignment between the market price of Shares and 
the Fund's NAV is expected.

Regulation M

    While redeemable securities issued by an open-end management 
investment company are excepted from the provisions of Rules 101 and 
102 of Regulation M, the Requestors may not rely upon those exceptions 
for the Shares.\3\ However, we find that it is appropriate in the 
public interest and is consistent with the protection of investors to 
grant a conditional exemption from Rules 101 and 102 to persons who may 
be deemed to be participating in a distribution of Shares of the Fund 
as described in more detail below.
---------------------------------------------------------------------------

    \3\ While ETFs operate under exemptions from the definitions of 
``open-end company'' under Section 5(a)(1) of the 1940 Act and 
``redeemable security'' under Section 2(a)(32) of the 1940 Act, the 
Fund and its securities do not meet those definitions.
---------------------------------------------------------------------------

Rule 101 of Regulation M

    Generally, Rule 101 of Regulation M is an anti-manipulation rule 
that, subject to certain exceptions, prohibits any ``distribution 
participant'' and its ``affiliated purchasers'' from bidding for, 
purchasing, or attempting to induce any person to bid for or purchase 
any security that is the subject of a distribution until after the 
applicable restricted period, except as specifically permitted in the 
Rule. Rule 100 of Regulation M defines ``distribution'' to mean any 
offering of securities that is distinguished from ordinary trading 
transactions by the magnitude of the offering and the presence of 
special selling efforts and selling methods. The provisions of Rule 101 
of Regulation M apply to underwriters, prospective underwriters, 
brokers, dealers, or other persons who have agreed to participate or 
are participating in a distribution of securities. The Shares are in a 
continuous distribution and, as such, the restricted period in which 
distribution participants and their affiliated purchasers are 
prohibited from bidding for, purchasing, or attempting to induce others 
to bid for or purchase extends indefinitely.
    Based on the representations and facts presented in the Letter, 
particularly that the Trust is a registered open-end management 
investment company, that Creation Unit size aggregations of the Shares 
of the Fund will be continuously redeemable at the NAV next determined 
after receipt of a request for redemption by the Fund, and that a close 
alignment between the market price of Shares and the Fund's NAV is 
expected, the Commission finds that it is appropriate in the public 
interest and consistent with the protection of investors to grant the 
Trust an exemption under paragraph (d) of Rule 101 of Regulation M with 
respect to the Fund, thus permitting persons participating in a 
distribution of Shares of the Fund to bid for or purchase such Shares 
during their participation in such distribution.\4\
---------------------------------------------------------------------------

    \4\ Additionally, we confirm the interpretation that a 
redemption of Creation Unit size aggregations of Shares of the Fund 
and the receipt of securities in exchange by a participant in a 
distribution of Shares of the Fund would not constitute an ``attempt 
to induce any person to bid for or purchase, a covered security 
during the applicable restricted period'' within the meaning of Rule 
101 of Regulation M and therefore would not violate that rule.
---------------------------------------------------------------------------

Rule 102 of Regulation M

    Rule 102 of Regulation M prohibits issuers, selling security 
holders, and any affiliated purchaser of such person from bidding for, 
purchasing, or attempting to induce any person to bid for or purchase a 
covered security during the applicable restricted period in connection 
with a distribution of securities effected by or on behalf of an issuer 
or selling security holder.
    Based on the representations and facts presented in the Letter, 
particularly that the Trust is a registered open-end management 
investment company, that Creation Unit size aggregations of the Shares 
of the Fund will be continuously redeemable at the NAV next determined 
after receipt of a request for redemption by the Fund, and that a close 
alignment between the market price of Shares and the Fund's NAV is 
expected, the Commission finds that it is appropriate in the public 
interest and consistent with the protection of investors to grant the 
Trust an exemption under paragraph (e) of Rule 102 of Regulation M with 
respect to the Fund, thus permitting the Fund to redeem Shares of the 
Fund during the continuous offering of such Shares.

Rule 10b-17

    Rule 10b-17, with certain exceptions, requires an issuer of a class 
of publicly traded securities to give notice of certain specified 
actions (for example, a dividend distribution) relating to such class 
of securities in accordance with Rule 10b-17(b). Based on the 
representations and facts in the Letter, and subject to the conditions 
below, the Commission finds that it is appropriate in the public 
interest, and consistent with the protection of investors to grant the 
Trust a conditional exemption from Rule 10b-17 because market 
participants will receive timely notification of the existence and 
timing of a pending distribution, and thus the concerns that the 
Commission raised in adopting Rule 10b-17 will not be implicated.\5\
---------------------------------------------------------------------------

    \5\ We also note that timely compliance with Rule 10b-
17(b)(1)(v)(a) and (b) would be impractical in light of the nature 
of the Fund. This is because it is not possible for the Fund to 
accurately project ten days in advance what dividend, if any, would 
be paid on a particular record date. Further, the Commission finds, 
based upon the representations of the Requestors in the Letter, that 
the provision of the notices as described in the Letter and subject 
to the conditions of this Order would not constitute a manipulative 
or deceptive device or contrivance comprehended within the purpose 
of Rule 10b-17.
---------------------------------------------------------------------------

Conclusion

    It is hereby ordered, pursuant to Rule 101(d) of Regulation M, that 
the Trust, based on the representations and facts presented in the 
Letter, is exempt from the requirements of Rule 101 with respect to the 
Fund, thus permitting persons who may be deemed to be participating in 
a distribution of Shares of the Fund to bid for or purchase such Shares 
during their participation in such distribution.
    It is further ordered, pursuant to Rule 102(e) of Regulation M, 
that the Trust, based on the representations and the facts presented in 
the Letter, is exempt from the requirements of Rule 102 with respect to 
the Fund, thus permitting the Fund to redeem Shares of the Fund during 
the continuous offering of such Shares.
    It is further ordered, pursuant to Rule 10b-17(b)(2), that the 
Trust, based on the representations and the facts presented in the 
Letter and subject to the conditions below, is exempt from the 
requirements of Rule 10b-17 with respect to transactions in the shares 
of the Fund.
    This exemptive relief is subject to the following conditions:
     The Trust will comply with Rule 10b-17 except for Rule 
10b-17(b)(1)(v)(a) and (b); and
     The Trust will provide the information required by Rule 
10b-17(b)(1)(v)(a) and (b) to the Listing Exchange as soon as 
practicable before trading begins on the ex-dividend date, but in no 
event later than the time when the Listing Exchange last accepts 
information relating to distributions on the day before the ex-dividend 
date.
    This exemptive relief is subject to modification or revocation at 
any time the Commission determines that such action is necessary or 
appropriate in furtherance of the purposes of the Exchange Act. This 
exemption is based

[[Page 66111]]

on the facts presented and the representations made in the Letter. Any 
different facts or representations may require a different response. 
Persons relying upon this exemptive relief shall discontinue 
transactions involving the Shares of the Fund, pending presentation of 
the facts for the Commission's consideration, in the event that any 
material change occurs with respect to any of the facts or 
representations made by the Requestors and, as is the case with all 
preceding letters, particularly with respect to the close alignment 
between the market price of Shares and the Fund's NAV. In addition, 
persons relying on this exemption are directed to the anti-fraud and 
anti-manipulation provisions of the Exchange Act, particularly Sections 
9(a), 10(b), and Rule10b-5 thereunder. Responsibility for compliance 
with these and any other applicable provisions of the federal 
securities laws must rest with the persons relying on this exemption. 
This Order should not be considered a view with respect to any other 
question that the proposed transactions may raise, including, but not 
limited to the adequacy of the disclosure concerning, and the 
applicability of other federal or state laws to, the proposed 
transactions.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\6\
---------------------------------------------------------------------------

    \6\ 17 CFR 200.30-3(a)(6) and (9).
---------------------------------------------------------------------------

Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016-23043 Filed 9-23-16; 8:45 am]
 BILLING CODE 8011-01-P



                                                                              Federal Register / Vol. 81, No. 186 / Monday, September 26, 2016 / Notices                                                      66109

                                                    • Send an email to rule-comments@                       SECURITIES AND EXCHANGE                               investment company that is registered
                                                  sec.gov. Please include File Number SR–                   COMMISSION                                            with the Commission;
                                                  CBOE–2016–064 on the subject line.                                                                                 • Creation Units will be continuously
                                                                                                            [Release No. 34–78882; File No. TP 16–13]             redeemable at the net asset value
                                                  Paper Comments                                                                                                  (‘‘NAV’’) next determined after receipt
                                                                                                            Order Granting Limited Exemptions
                                                                                                                                                                  of a request for redemption by the Fund,
                                                    • Send paper comments in triplicate                     From Exchange Act Rule 10b–17 and
                                                                                                            Rules 101 and 102 of Regulation M to                  and the secondary market price of the
                                                  to Secretary, Securities and Exchange
                                                                                                            Amplify YieldShares Prime 5 Dividend                  Shares should not vary substantially
                                                  Commission, 100 F Street NE.,
                                                                                                            ETF Pursuant to Exchange Act Rule                     from the NAV of such Shares;
                                                  Washington, DC 20549–1090.                                                                                         • Shares of the Fund will be listed
                                                                                                            10b–17(b)(2) and Rules 101(d) and
                                                  All submissions should refer to File                                                                            and traded on BATS Exchange Inc. or
                                                                                                            102(e) of Regulation M
                                                  Number SR–CBOE–2016–064. This file                                                                              another exchange in accordance with
                                                  number should be included on the                          September 20, 2016.                                   exchange listing standards that are, or
                                                  subject line if email is used. To help the                   By letter dated September 20, 2016                 will become, effective pursuant to
                                                  Commission process and review your                        (the ‘‘Letter’’), as supplemented by                  Section 19(b) of the Exchange Act (the
                                                  comments more efficiently, please use                     conversations with the staff of the                   ‘‘Listing Exchange’’); 2
                                                                                                            Division of Trading and Markets,                         • The Fund seeks to track the
                                                  only one method. The Commission will
                                                                                                            counsel for Amplify ETF Trust (the                    performance of the Underlying Index,
                                                  post all comments on the Commission’s
                                                                                                            ‘‘Trust’’) on behalf of the Trust, Amplify            all the components of which have
                                                  Internet Web site (http://www.sec.gov/                                                                          publicly available last sale trade
                                                  rules/sro.shtml). Copies of the                           YieldShares Prime 5 Dividend ETF (the
                                                                                                            ‘‘Fund’’), any national securities                    information;
                                                  submission, all subsequent                                                                                         • The Listing Exchange will
                                                                                                            exchange on or through which shares of
                                                  amendments, all written statements                                                                              disseminate continuously every 15
                                                                                                            the Fund (‘‘Shares’’) are listed and may
                                                  with respect to the proposed rule                                                                               seconds throughout the trading day,
                                                                                                            subsequently trade, and persons or
                                                  change that are filed with the                            entities engaging in transactions in                  through the facilities of the
                                                  Commission, and all written                               Shares (collectively, the ‘‘Requestors’’),            Consolidated Tape Association, the
                                                  communications relating to the                            requested exemptions, or interpretive or              market value of a Share;
                                                  proposed rule change between the                          no-action relief, from Rule 10b–17 of the                • The Listing Exchange, market data
                                                  Commission and any person, other than                     Securities Exchange Act of 1934, as                   vendors or other information providers
                                                  those that may be withheld from the                       amended (‘‘Exchange Act’’), and Rules                 will disseminate, every 15 seconds
                                                  public in accordance with the                             101 and 102 of Regulation M, in                       throughout the trading day, a
                                                  provisions of 5 U.S.C. 552, will be                       connection with secondary market                      calculation of the intraday indicative
                                                  available for Web site viewing and                        transactions in Shares and the creation               value of a Share;
                                                  printing in the Commission’s Public                       or redemption of aggregations of Shares                  • On each business day before the
                                                  Reference Room, 100 F Street NE.,                         of 50,000 shares (‘‘Creation Units’’).                opening of business on the Listing
                                                                                                               The Trust is registered with the                   Exchange, the Fund will cause to be
                                                  Washington, DC 20549 on official
                                                                                                            Securities and Exchange Commission                    published through the National
                                                  business days between the hours of
                                                                                                            (‘‘Commission’’) under the Investment                 Securities Clearing Corporation the list
                                                  10:00 a.m. and 3:00 p.m. Copies of the
                                                                                                            Company Act of 1940, as amended                       of the names and the quantities of
                                                  filing also will be available for                                                                               securities of the Fund’s portfolio that
                                                  inspection and copying at the principal                   (‘‘1940 Act’’), as an open-end
                                                                                                            management investment company. The                    will be applicable that day to creation
                                                  office of the Exchange. All comments                                                                            and redemption requests;
                                                                                                            Fund seeks to track the performance of
                                                  received will be posted without change;
                                                                                                            an underlying index, the Prime 5 US                      • The arbitrage mechanism will be
                                                  the Commission does not edit personal                                                                           facilitated by the transparency of the
                                                  identifying information from                              Dividend ETF Index (‘‘Underlying
                                                                                                            Index’’). The Underlying Index seeks to               Fund’s portfolio and the availability of
                                                  submissions. You should submit only                                                                             the intraday indicative value, the
                                                                                                            provide exposure to the five highest-
                                                  information that you wish to make                                                                               liquidity of securities held by the Fund,
                                                                                                            ranked dividend ETFs based on the
                                                  available publicly. All submissions                       index provider’s scoring and selection                the ability to acquire such securities, as
                                                  should refer to File Number SR–CBOE–                      criteria.                                             well as arbitrageurs’ ability to create
                                                  2016–064 and should be submitted on                          The Fund will seek to track the                    workable hedges;
                                                  or before October 17, 2016.                               performance of its Underlying Index by                   • The Fund will invest solely in
                                                                                                            normally investing at least 80% of its                liquid securities;
                                                    For the Commission, by the Division of                                                                           • The Fund will invest in securities
                                                  Trading and Markets, pursuant to delegated                total assets in the underlying exchange-
                                                                                                                                                                  that will facilitate an effective and
                                                  authority.23                                              traded funds that comprise the
                                                                                                                                                                  efficient arbitrage mechanism and the
                                                  Robert W. Errett,                                         Underlying Index.1 In light of the
                                                                                                                                                                  ability to create workable hedges;
                                                  Deputy Secretary.
                                                                                                            composition of the Underlying Index,                     • All ETFs in which the Fund invests
                                                                                                            the Fund intends to operate as an ‘‘ETF               will either meet all conditions set forth
                                                  [FR Doc. 2016–23044 Filed 9–23–16; 8:45 am]
                                                                                                            of ETFs.’’ Except for the fact that the               in one or more class relief letters, will
                                                  BILLING CODE 8011–01–P                                    Fund will operate as an ETF of ETFs,                  have received individual relief from the
                                                                                                            the Fund will operate in a manner                     Commission, will be able to rely on
                                                                                                            identical to the underlying ETFs.                     individual relief even though they are
mstockstill on DSK3G9T082PROD with NOTICES




                                                                                                               The Requestors represent, among
                                                                                                                                                                  not named parties, or will be able to rely
                                                                                                            other things, the following:
                                                                                                               • Shares of the Fund will be issued                  2 Further, the Letter states that should the Shares
                                                                                                            by the Trust, an open-end management                  also trade on a market pursuant to unlisted trading
                                                                                                                                                                  privileges, such trading will be conducted pursuant
                                                                                                              1 The remaining 20% may be invested in              to self-regulatory organization rules that are or will
                                                                                                            securities with maturities of less than one year or   become effective pursuant to Section 19(b) of the
                                                    23 17   CFR 200.30–3(a)(12).                            cash equivalents, or the Fund may hold cash.          Exchange Act.



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                                                  66110                     Federal Register / Vol. 81, No. 186 / Monday, September 26, 2016 / Notices

                                                  on applicable class relief for actively-                redeemable at the NAV next determined                   the Trust a conditional exemption from
                                                  managed ETFs;                                           after receipt of a request for redemption               Rule 10b–17 because market
                                                    • The Trust believes that arbitrageurs                by the Fund, and that a close alignment                 participants will receive timely
                                                  are expected to take advantage of price                 between the market price of Shares and                  notification of the existence and timing
                                                  variations between the Fund’s market                    the Fund’s NAV is expected, the                         of a pending distribution, and thus the
                                                  price and its NAV; and                                  Commission finds that it is appropriate                 concerns that the Commission raised in
                                                    • A close alignment between the                       in the public interest and consistent                   adopting Rule 10b–17 will not be
                                                  market price of Shares and the Fund’s                   with the protection of investors to grant               implicated.5
                                                  NAV is expected.                                        the Trust an exemption under paragraph
                                                                                                          (d) of Rule 101 of Regulation M with                    Conclusion
                                                  Regulation M
                                                                                                          respect to the Fund, thus permitting                       It is hereby ordered, pursuant to Rule
                                                    While redeemable securities issued by                 persons participating in a distribution of              101(d) of Regulation M, that the Trust,
                                                  an open-end management investment                       Shares of the Fund to bid for or                        based on the representations and facts
                                                  company are excepted from the                           purchase such Shares during their                       presented in the Letter, is exempt from
                                                  provisions of Rules 101 and 102 of                      participation in such distribution.4                    the requirements of Rule 101 with
                                                  Regulation M, the Requestors may not                                                                            respect to the Fund, thus permitting
                                                  rely upon those exceptions for the                      Rule 102 of Regulation M
                                                                                                                                                                  persons who may be deemed to be
                                                  Shares.3 However, we find that it is                       Rule 102 of Regulation M prohibits                   participating in a distribution of Shares
                                                  appropriate in the public interest and is               issuers, selling security holders, and any              of the Fund to bid for or purchase such
                                                  consistent with the protection of                       affiliated purchaser of such person from                Shares during their participation in
                                                  investors to grant a conditional                        bidding for, purchasing, or attempting to               such distribution.
                                                  exemption from Rules 101 and 102 to                     induce any person to bid for or purchase                   It is further ordered, pursuant to Rule
                                                  persons who may be deemed to be                         a covered security during the applicable                102(e) of Regulation M, that the Trust,
                                                  participating in a distribution of Shares               restricted period in connection with a                  based on the representations and the
                                                  of the Fund as described in more detail                 distribution of securities effected by or               facts presented in the Letter, is exempt
                                                  below.                                                  on behalf of an issuer or selling security              from the requirements of Rule 102 with
                                                  Rule 101 of Regulation M                                holder.                                                 respect to the Fund, thus permitting the
                                                                                                             Based on the representations and facts               Fund to redeem Shares of the Fund
                                                     Generally, Rule 101 of Regulation M                  presented in the Letter, particularly that              during the continuous offering of such
                                                  is an anti-manipulation rule that,                      the Trust is a registered open-end                      Shares.
                                                  subject to certain exceptions, prohibits                management investment company, that                        It is further ordered, pursuant to Rule
                                                  any ‘‘distribution participant’’ and its                Creation Unit size aggregations of the                  10b–17(b)(2), that the Trust, based on
                                                  ‘‘affiliated purchasers’’ from bidding for,             Shares of the Fund will be continuously                 the representations and the facts
                                                  purchasing, or attempting to induce any                 redeemable at the NAV next determined                   presented in the Letter and subject to
                                                  person to bid for or purchase any                       after receipt of a request for redemption               the conditions below, is exempt from
                                                  security that is the subject of a                       by the Fund, and that a close alignment                 the requirements of Rule 10b–17 with
                                                  distribution until after the applicable                 between the market price of Shares and                  respect to transactions in the shares of
                                                  restricted period, except as specifically               the Fund’s NAV is expected, the                         the Fund.
                                                  permitted in the Rule. Rule 100 of                      Commission finds that it is appropriate                    This exemptive relief is subject to the
                                                  Regulation M defines ‘‘distribution’’ to                in the public interest and consistent                   following conditions:
                                                  mean any offering of securities that is                 with the protection of investors to grant                  • The Trust will comply with Rule
                                                  distinguished from ordinary trading                     the Trust an exemption under paragraph                  10b–17 except for Rule 10b–
                                                  transactions by the magnitude of the                    (e) of Rule 102 of Regulation M with                    17(b)(1)(v)(a) and (b); and
                                                  offering and the presence of special                    respect to the Fund, thus permitting the                   • The Trust will provide the
                                                  selling efforts and selling methods. The                Fund to redeem Shares of the Fund                       information required by Rule 10b–
                                                  provisions of Rule 101 of Regulation M                  during the continuous offering of such                  17(b)(1)(v)(a) and (b) to the Listing
                                                  apply to underwriters, prospective                      Shares.                                                 Exchange as soon as practicable before
                                                  underwriters, brokers, dealers, or other                                                                        trading begins on the ex-dividend date,
                                                  persons who have agreed to participate                  Rule 10b–17
                                                                                                                                                                  but in no event later than the time when
                                                  or are participating in a distribution of                  Rule 10b–17, with certain exceptions,                the Listing Exchange last accepts
                                                  securities. The Shares are in a                         requires an issuer of a class of publicly               information relating to distributions on
                                                  continuous distribution and, as such,                   traded securities to give notice of certain             the day before the ex-dividend date.
                                                  the restricted period in which                          specified actions (for example, a                          This exemptive relief is subject to
                                                  distribution participants and their                     dividend distribution) relating to such                 modification or revocation at any time
                                                  affiliated purchasers are prohibited from               class of securities in accordance with                  the Commission determines that such
                                                  bidding for, purchasing, or attempting to               Rule 10b–17(b). Based on the                            action is necessary or appropriate in
                                                  induce others to bid for or purchase                    representations and facts in the Letter,                furtherance of the purposes of the
                                                  extends indefinitely.                                   and subject to the conditions below, the                Exchange Act. This exemption is based
                                                     Based on the representations and facts               Commission finds that it is appropriate
                                                  presented in the Letter, particularly that              in the public interest, and consistent                     5 We also note that timely compliance with Rule
                                                  the Trust is a registered open-end                      with the protection of investors to grant               10b–17(b)(1)(v)(a) and (b) would be impractical in
                                                  management investment company, that                                                                             light of the nature of the Fund. This is because it
mstockstill on DSK3G9T082PROD with NOTICES




                                                  Creation Unit size aggregations of the                     4 Additionally, we confirm the interpretation that   is not possible for the Fund to accurately project ten
                                                                                                          a redemption of Creation Unit size aggregations of      days in advance what dividend, if any, would be
                                                  Shares of the Fund will be continuously                 Shares of the Fund and the receipt of securities in     paid on a particular record date. Further, the
                                                                                                          exchange by a participant in a distribution of Shares   Commission finds, based upon the representations
                                                    3 While ETFs operate under exemptions from the                                                                of the Requestors in the Letter, that the provision
                                                                                                          of the Fund would not constitute an ‘‘attempt to
                                                  definitions of ‘‘open-end company’’ under Section       induce any person to bid for or purchase, a covered     of the notices as described in the Letter and subject
                                                  5(a)(1) of the 1940 Act and ‘‘redeemable security’’     security during the applicable restricted period’’      to the conditions of this Order would not constitute
                                                  under Section 2(a)(32) of the 1940 Act, the Fund        within the meaning of Rule 101 of Regulation M          a manipulative or deceptive device or contrivance
                                                  and its securities do not meet those definitions.       and therefore would not violate that rule.              comprehended within the purpose of Rule 10b–17.



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                                                                               Federal Register / Vol. 81, No. 186 / Monday, September 26, 2016 / Notices                                                    66111

                                                  on the facts presented and the                            certain definitions in Rule 17Ad–22                    changes were published for comment in
                                                  representations made in the Letter. Any                   related to clearing agencies pursuant to               the in the Federal Register on August
                                                  different facts or representations may                    Section 17A of the Securities Exchange                 17, 2016.5 The Commission received no
                                                  require a different response. Persons                     Act of 1934 and Title VIII of the Dodd-                comments regarding the proposals. This
                                                  relying upon this exemptive relief shall                  Frank Wall Street Reform and Consumer                  order approves the proposed rule
                                                  discontinue transactions involving the                    Protection Act.                                        changes.
                                                  Shares of the Fund, pending                                  • The Commission will consider
                                                                                                            whether to propose amendments to Rule                  II. Description of the Proposals
                                                  presentation of the facts for the
                                                  Commission’s consideration, in the                        15c6–1 under the Securities Exchange                      NYSE Arca and NYSE MKT each
                                                  event that any material change occurs                     Act of 1934 to shorten the standard                    require market makers to use risk
                                                  with respect to any of the facts or                       settlement cycle for most broker-dealer                limitation mechanisms that
                                                  representations made by the Requestors                    transactions from three business days                  automatically remove a market maker’s
                                                  and, as is the case with all preceding                    after the trade date to two business days              quotes in all series of an options class
                                                  letters, particularly with respect to the                 after the trade date.                                  when the market maker’s risk settings
                                                  close alignment between the market                           At times, changes in Commission                     are triggered.6 The Exchanges state that
                                                  price of Shares and the Fund’s NAV. In                    priorities require alterations in the                  the risk settings are designed to mitigate
                                                  addition, persons relying on this                         scheduling of meeting items.                           the risk of multiple executions against a
                                                  exemption are directed to the anti-fraud                     For further information and to                      market maker’s quotes occurring
                                                  and anti-manipulation provisions of the                   ascertain what, if any, matters have been              simultaneously across multiple series
                                                  Exchange Act, particularly Sections 9(a),                 added, deleted, or postponed, please                   and multiple options classes.7
                                                  10(b), and Rule10b–5 thereunder.                          contact Brent J. Fields in the Office of               According to the Exchanges, the risk
                                                  Responsibility for compliance with                        the Secretary at (202) 551–5400.                       settings allow market makers to provide
                                                  these and any other applicable                              Dated: September 21, 2016.                           liquidity across potentially thousands of
                                                  provisions of the federal securities laws                 Brent J. Fields,                                       options series without being at risk of
                                                  must rest with the persons relying on                     Secretary.                                             executing the full cumulative size of all
                                                  this exemption. This Order should not                                                                            of their quotes before being given
                                                                                                            [FR Doc. 2016–23325 Filed 9–22–16; 4:15 pm]
                                                  be considered a view with respect to                                                                             adequate opportunity to adjust their
                                                                                                            BILLING CODE 8011–01–P
                                                  any other question that the proposed                                                                             quotes.8
                                                  transactions may raise, including, but                                                                              An Electronic Complex Order may
                                                  not limited to the adequacy of the                                                                               execute against quotes or individual
                                                                                                            SECURITIES AND EXCHANGE
                                                  disclosure concerning, and the                                                                                   orders comprising the Complex Order
                                                                                                            COMMISSION
                                                  applicability of other federal or state                                                                          (the ‘‘leg markets’’), or against Electronic
                                                                                                            [Release No. 34–78888; File Nos. SR–                   Complex Orders resting in the
                                                  laws to, the proposed transactions.                       NYSEARCA–2016–109; SR–NYSEMKT–                         Consolidated Book.9 An incoming
                                                    For the Commission, by the Division of                  2016–73]                                               Electronic Complex Order will execute
                                                  Trading and Markets, pursuant to delegated                                                                       against customer interest in the leg
                                                  authority.6                                               Self-Regulatory Organizations; NYSE
                                                                                                            Arca, Inc.; NYSE MKT LLC; Order                        markets before executing against resting
                                                  Robert W. Errett,
                                                                                                            Approving Proposed Rule Changes To                     Electronic Complex Orders at the same
                                                  Deputy Secretary.                                                                                                price (i.e., at the same total net debit or
                                                  [FR Doc. 2016–23043 Filed 9–23–16; 8:45 am]               Provide for the Rejection of Certain
                                                                                                            Electronic Complex Orders                              credit), provided that the leg market
                                                  BILLING CODE 8011–01–P                                                                                           interest can execute the Electronic
                                                                                                            September 20, 2016.                                    Complex Order in full or in a
                                                                                                                                                                   permissible ratio.10 When an Electronic
                                                  SECURITIES AND EXCHANGE                                   I. Introduction
                                                  COMMISSION                                                   On August 3, 2016, NYSE Arca, Inc.                     5 See Securities Exchange Act Release Nos. 78546

                                                                                                            (‘‘NYSE Arca’’) and NYSE MKT LLC                       (August 11, 2016), 81 FR 54867 (‘‘NYSE Arca
                                                  Sunshine Act Meeting                                      (‘‘NYSE MKT’’) (each an ‘‘Exchange’’                   Notice’’); and 78544 (August 11, 2016), 81 FR 54893
                                                                                                                                                                   (‘‘NYSE MKT Notice’’).
                                                    Notice is hereby given that, pursuant                   and, together, the ‘‘Exchanges’’) filed                   6 See NYSE Arca Notice, 81 FR at 54868; and
                                                  to the provisions of the Government in                    with the Securities and Exchange                       NYSE MKT Notice, 81 FR at 54893. Pursuant to
                                                  the Sunshine Act, Public Law 99–409,                      Commission (the ‘‘Commission’’),                       NYSE Arca Rule 6.40(b)(3), (c)(3), and (d)(3), and
                                                  the Securities and Exchange                               pursuant to Section 19(b)(1) 1 of the                  NYSE MKT Rule 928(b)(3), (c)(3), and (d)(3), the
                                                                                                            Securities Exchange Act of 1934 (the                   Exchanges establish a time period during which
                                                  Commission will hold an Open Meeting                                                                             their respective Systems calculate: (1) The number
                                                  on Wednesday, September 28, 2016, at                      ‘‘Act’’),2 and Rule 19b–4 thereunder,3                 of trades executed by a market maker in a specified
                                                  10:00 a.m., in the Auditorium, Room                       proposed rule changes to amend NYSE                    options class; (2) the volume of contracts executed
                                                  L–002.                                                    Arca Rule 6.91(b) and NYSE MKT Rule                    by a market maker in a specified options class; or
                                                                                                            980(d), respectively, to allow the                     (3) the percentage of a market maker’s quoted size
                                                    The subject matter of the Open                                                                                 in specified options class (the ‘‘risk settings’’).
                                                  Meeting will be:                                          Exchanges to reject certain Electronic                 When a market maker has breached its risk settings
                                                    • The Commission will consider                          Complex Orders.4 The proposed rule                     (i.e., has traded more than the contract or volume
                                                  whether to adopt rules to establish                                                                              limit or cumulative percentage limit of a class
                                                  enhanced standards for the operation                        1 15  U.S.C. 78s(b)(1).                              during the specified measurement interval), each
                                                                                                              2 15  U.S.C. 78a.                                    Exchange’s System cancels all of the market maker’s
                                                  and governance of certain clearing                           3 17 CFR 240.19b–4.                                 quotes in that class until the market maker notifies
mstockstill on DSK3G9T082PROD with NOTICES




                                                  agencies pursuant to Section 17A of the                      4 NYSE Arca Rule 6.91 defines ‘‘Electronic          the Exchange that it will resume submitting quotes.
                                                  Securities Exchange Act of 1934 and                       Complex Order’’ to mean, for purposes of that rule,
                                                                                                                                                                   See id. See also NYSE Arca Rule 6.40, Commentary
                                                  Title VIII of the Dodd-Frank Wall Street                                                                         .02; and NYSE MKT Rule 980NY, Commentary .02.
                                                                                                            ‘‘any Complex Order as defined in Rule 6.62(e) or         7 See NYSE Arca Notice, 81 FR at 54868; and
                                                  Reform and Consumer Protection Act.                       any Stock/Option Order or Stock/Complex Order as
                                                                                                                                                                   NYSE MKT Notice, 81 FR at 54894.
                                                    • The Commission will consider                          defined in Rule 6.62(h) that is entered into the
                                                                                                                                                                      8 See id.
                                                                                                            NYSE Arca System.’’ NYSE MKT Rule 980 defines
                                                  whether to propose amendments to                          ‘‘Electronic Complex Order’’ to mean, for purposes        9 See id. See also NYSE Arca Rule 6.91(a)(2)(ii);

                                                                                                            of that rule, ‘‘any Complex Order as defined in Rule   and NYSE MKT Rule 980NY(c)(ii).
                                                    6 17   CFR 200.30–3(a)(6) and (9).                      900.3NY(e) that is entered into the System.’’             10 See id.




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Document Created: 2018-02-09 13:23:07
Document Modified: 2018-02-09 13:23:07
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
FR Citation81 FR 66109 

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