81 FR 86360 - Self-Regulatory Organizations; NYSE Arca, Inc.; Order Granting Approval of Proposed Rule Proposed Rule Change, as Modified by Amendment Nos. 1 and 2 Thereto, Regarding Use of Rule 144A Securities by the Fidelity Corporate Bond ETF, Fidelity Investment Grade Bond ETF, Fidelity Limited Term Bond ETF, and Fidelity Total Bond ETF
SECURITIES AND EXCHANGE COMMISSION Federal Register Volume 81, Issue 230 (November 30, 2016)
Federal Register Volume 81, Issue 230 (November 30, 2016)
| Page Range | 86360-86365 | |
| FR Document | 2016-28774 |
[Federal Register Volume 81, Number 230 (Wednesday, November 30, 2016)] [Notices] [Pages 86360-86365] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-28774] ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION [Release No. 34-79384; File No. SR-NYSEArca-2016-70] Self-Regulatory Organizations; NYSE Arca, Inc.; Order Granting Approval of Proposed Rule Proposed Rule Change, as Modified by Amendment Nos. 1 and 2 Thereto, Regarding Use of Rule 144A Securities by the Fidelity Corporate Bond ETF, Fidelity Investment Grade Bond ETF, Fidelity Limited Term Bond ETF, and Fidelity Total Bond ETF November 23, 2016. I. Introduction On May 11, 2016, NYSE Arca, Inc. (``Exchange'') filed with the Securities and Exchange Commission (``Commission''), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (``Act'' or ``Exchange Act'') \1\ and Rule 19b-4 thereunder,\2\ a proposed rule change to permit the Fidelity Corporate Bond ETF, Fidelity Investment Grade Bond ETF, Fidelity Limited Term Bond ETF, and Fidelity Total Bond ETF (individually, ``Fund,'' and collectively, ``Funds'') to consider securities issued pursuant to Rule 144A under the Securities Act of 1933 (``Securities Act'') as debt securities eligible for principal investment. The proposed rule change was published for comment in the Federal Register on May 31, 2016.\3\ On June 30, 2016, pursuant to Section 19(b)(2) of the 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 July 26, 2016, the Exchange filed Amendment No. 1 to the proposed rule change.\6\ On August 29, 2016, the Commission instituted proceedings under Section 19(b)(2)(B) of the Act \7\ to determine whether to approve or disapprove the proposed rule change, as modified by Amendment No. 1 thereto.\8\ In the Order Instituting Proceedings, the Commission solicited comments to specified matters related to the proposal.\9\ On November 22, 2016, the Exchange filed Amendment No. 2 to the proposed rule change.\10\ The Commission has received no comments on the proposed rule change. This order grants approval of the proposed rule change, as modified by Amendment Nos. 1 and 2 thereto. --------------------------------------------------------------------------- \1\ 15 U.S.C. 78s(b)(1). \2\ 17 CFR 240.19b-4. \3\ See Securities Exchange Act Release No. 77891 (May 24, 2016), 81 FR 34388 (``Notice''). \4\ 15 U.S.C. 78s(b)(2). \5\ See Securities Exchange Act Release No. 78207, 81 FR 44338 (Jul. 7, 2016). The Commission designated August 29, 2016 as the date by which the Commission shall either approve or disapprove, or institute proceedings to determine whether to disapprove, the proposed rule change. \6\ In Amendment No. 1, which amended and replaced the proposed rule change in its entirety, the Exchange: (a) corrected certain aspects of the the investment descriptions for each Fund in accordance with the Prior Corporate Bond Releases and Prior Total Bond Releases (as defined herein); (b) confirmed that all of the Rule 144A securities in which a Fund invests will be corporate debt securities for which transactions are reported to TRACE (as defined herein); and (c) confirmed that FINRA (as defined herein), on behalf of the Exchange, is able to access, as needed, trade information for the Rule 144A securities as well as certain other fixed income securities held by the Funds reported to TRACE. Amendment No. 1 is available at: https://www.sec.gov/comments/sr-nysearca-2016-70/nysearca201670-1.pdf. Because Amendment No. 1 to the proposed rule change does not materially alter the substance of the proposed rule change or raise unique or novel regulatory issues, Amendment No. 1 is not subject to notice and comment. \7\ 15 U.S.C. 78s(b)(2)(B). \8\ See Securities Exchange Act Release No. 78712, 81 FR 60759 (Sept. 2, 2016) (``Order Instituting Proceedings''). Specifically, the Commission instituted proceedings to allow for additional analysis of the proposed rule change's consistency with Section 6(b)(5) of the Act, which requires, among other things, that the rules of a national securities exchange be ``designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade,'' and ``to protect investors and the public interest.'' See id., 81 FR at 60764. \9\ See id. \10\ In Amendment No. 2, which amended and replaced the proposed rule change in its entirety, the Exchange clarified that no more than 35% of a Fund's assets may be invested in Rule 144A securities. Amendment No. 2 is available at: https://www.sec.gov/comments/sr-nysearca-2016-70/nysearca201670-2.pdf. Because Amendment No. 2 to the proposed rule change does not materially alter the substance of the proposed rule change or raise unique or novel regulatory issues, Amendment No. 2 is not subject to notice and comment. --------------------------------------------------------------------------- II. Exchange's Description of the Proposal The Commission approved the listing and trading of shares (``Shares'') of the Funds under NYSE Arca Equities Rule 8.600,\11\ which governs the listing and [[Page 86361]] trading of Managed Fund Shares. The Exchange proposes to amend the representation in the Prior Corporate Bond Notice and Prior Total Bond Notice to provide that each Fund may include Rule 144A securities within a Fund's principal investments in debt securities (i.e., debt securities in which at least 80% of a Fund's assets are invested), provided that no more than 35% of a Fund's assets may be invested in Rule 144A securities. --------------------------------------------------------------------------- \11\ See Securities Exchange Act Release Nos. 72068 (May 1, 2014), 79 FR 25923 (May 6, 2014) (SR-NYSEArca-2014-47) (notice of filing of proposed rule change relating to listing and trading of Shares of Fidelity Corporate Bond ETF Managed Shares under NYSE Arca Equities Rule 8.600) (``Prior Corporate Bond Notice''); 72439 (Jun. 20, 2014), 79 FR 36361 (Jun. 26, 2014) (SR-NYSEArca-2014-47) (order approving proposed rule change relating to listing and trading of Shares of Fidelity Corporate Bond ETF Managed Shares under NYSE Arca Equities Rule 8.600) (``Prior Corporate Bond Order'' and, together with the Prior Corporate Bond Notice, ``Prior Corporate Bond Releases''); 72064 (May 1, 2014), 79 FR 25908 (May 6, 2014) (SR- NYSEArca-2014-46) (notice of filing of proposed rule change relating to listing and trading of Shares of Fidelity Investment Grade Bond ETF; Fidelity Limited Term Bond ETF; and Fidelity Total Bond ETF under NYSE Arca Equities Rule 8.600) (``Prior Total Bond Notice''); 72748 (Aug. 4, 2014), 79 FR 46484 (Aug. 8, 2014) (SR-NYSEArca-2014- 46) (order approving proposed rule change relating to listing and trading of Shares of the Fidelity Investment Grade Bond ETF, Fidelity Limited Term Bond ETF, and Fidelity Total Bond ETF under NYSE Arca Equities Rule 8.600) (``Prior Total Bond ETF Order'' and, together with the Prior Total Bond Notice, ``Prior Total Bond Releases''). --------------------------------------------------------------------------- A. Exchange's Description of the Funds Fidelity Investments Money Management, Inc. (``FIMM''), an affiliate of Fidelity Management & Research Company (``FMR''), is the manager (``Manager'') of each Fund. FMR Co., Inc. (``FMRC'') serves as a sub-adviser for the Fidelity Total Bond ETF. FMRC has day-to-day responsibility for choosing certain types of investments of foreign and domestic issuers for Fidelity Total Bond ETF. Other investment advisers, which also are affiliates of FMR, serve as sub-advisers to the Funds and assist FIMM with foreign investments, including Fidelity Management & Research (U.K.) Inc., Fidelity Management & Research (Hong Kong) Limited, and Fidelity Management & Research (Japan) Inc. (individually, ``Sub-Adviser,'' and together with FMRC, collectively ``Sub-Advisers''). Fidelity Distributors Corporation is the distributor for the Funds' Shares. The Funds are funds of Fidelity Merrimack Street Trust (``Trust''), a Massachusetts business trust.\12\ The Exchange represents that the Shares of the Fidelity Corporate Bond ETF, Fidelity Limited Term Bond ETF, and Fidelity Total Bond ETF are currently trading on the Exchange. --------------------------------------------------------------------------- \12\ The Trust is registered under the Investment Company Act of 1940 (``1940 Act''). According to the Exchange, on December 29, 2015, the Trust filed with the Commission an amendment to its registration statement on Form N-1A under the Securities Act and the 1940 Act relating to the Funds (File Nos. 333-186372 and 811-22796) (``Registration Statement''). In addition, the Exchange states that the Trust has obtained certain exemptive relief under the 1940 Act. See Investment Company Act Release No. 30513 (May 10, 2013) (File No. 812-14104). --------------------------------------------------------------------------- 1. Fidelity Corporate Bond ETF As described in the Prior Corporate Bond Notice, the Fidelity Corporate Bond ETF seeks a high level of current income. The Manager normally invests at least 80% of Fidelity Corporate Bond ETF assets in investment-grade corporate bonds and other corporate debt securities.\13\ Corporate debt securities are bonds and other debt securities issued by corporations and other business structures, as described in the Prior Corporate Bond Notice. --------------------------------------------------------------------------- \13\ According to the Exchange, investment-grade debt securities include all types of debt instruments, including corporate debt securities that are of medium and high-quality. An investment-grade rating means the security or issuer is rated investment-grade by a credit rating agency registered as a nationally recognized statistical rating organization with the Commission (for example, Moody's Investors Service, Inc.), or is unrated but considered to be of equivalent quality by the Fidelity Corporate Bond ETF's Manager or Sub-Advisers. --------------------------------------------------------------------------- The Fidelity Corporate Bond ETF may hold uninvested cash or may invest it in cash equivalents such as money market securities, or shares of short-term bond exchanged-traded funds registered under the 1940 Act (``ETFs''), or mutual funds or money market funds, including Fidelity central funds (special types of investment vehicles created by Fidelity for use by the Fidelity funds and other advisory clients). The Manager uses the Barclays U.S. Credit Bond Index as a guide in structuring the Fund and selecting its investments. FIMM manages the Fund to have similar overall interest rate risk to the Barclays U.S. Credit Bond Index. As stated in the Prior Corporate Bond Releases, in buying and selling securities for the Fund, the Manager analyzes the credit quality of the issuer, security-specific features, current valuation relative to alternatives in the market, short-term trading opportunities resulting from market inefficiencies, and potential future valuation. In managing the Fund's exposure to various risks, including interest rate risk, the Manager considers, among other things, the market's overall risk characteristics, the market's current pricing of those risks, information on the Fund's competitive universe and internal views of potential future market conditions. While the Manager normally invests at least 80% of assets of the Fund in investment grade corporate bonds and other corporate debt securities, as described above, the Manager may invest up to 20% of the Fund's assets in other securities and financial instruments, as summarized below. In addition to corporate debt securities, the debt securities in which the Fund may invest are U.S. Government securities; repurchase agreements and reverse repurchase agreements; mortgage- and other asset-backed securities; loans; loan participations, loan assignments, and other evidences of indebtedness, including letters of credit, revolving credit facilities, and other standby financing commitments; structured securities; stripped securities; municipal securities; sovereign debt obligations; obligations of international agencies or supranational entities; and other securities believed to have debt-like characteristics, including hybrid securities, which may offer characteristics similar to those of a bond security such as stated maturity and preference over equity in bankruptcy. The Fund may invest in restricted securities, which are subject to legal restrictions on their sale. Restricted securities generally can be sold in privately negotiated transactions, pursuant to an exemption from registration under the Securities Act, or in a registered public offering. 2. Fidelity Investment Grade Bond ETF As described in the Prior Total Bond Notice, the Fidelity Investment Grade Bond ETF (which has not yet commenced operation) will seek a high level of current income. The Manager normally will invest at least 80% of the Fund's assets in investment-grade debt securities (those of medium and high quality). The debt securities in which the Fund may invest are corporate debt securities; U.S. Government securities; repurchase agreements and reverse repurchase agreements; money market securities; mortgage- and other asset-backed securities; senior loans; loan participations and loan assignments and other evidences of indebtedness, including letters of credit, revolving credit facilities and other standby financing commitments; stripped securities; municipal securities; sovereign debt obligations; and obligations of international agencies or supranational entities (collectively, ``Debt Securities''). As described in the Prior Total Bond Notice, the Fidelity Investment Grade Bond ETF may hold uninvested cash or may invest it in cash equivalents such as repurchase agreements, shares of short term bond ETFs, mutual funds, or money market funds, including Fidelity central funds (special types of investment vehicles created by Fidelity for use by the Fidelity funds and other advisory clients). The Manager will use the Barclays U.S. Aggregate Bond Index (``Aggregate Index'') as a guide in structuring the Fund and selecting its investments, and will manage the Fund to have similar overall interest rate risk to the Aggregate Index. As described in the Prior Total Bond Notice, the Manager will consider other factors when selecting the Fidelity [[Page 86362]] Investment Grade Bond ETF's investments, including the credit quality of the issuer, security-specific features, current valuation relative to alternatives in the market, short-term trading opportunities resulting from market inefficiencies, and potential future valuation. In managing the Fidelity Investment Grade Bond ETF's exposure to various risks, including interest rate risk, the Manager will consider, among other things, the market's overall risk characteristics, the market's current pricing of those risks, information on the Fidelity Investment Grade Bond ETF's competitive universe, and internal views of potential future market conditions. 3. Fidelity Limited Term Bond ETF As described in the Prior Total Bond Notice, the Fidelity Limited Term Bond ETF seeks to provide a high rate of income. The Manager normally invests at least 80% of the Fidelity Limited Term Bond ETF's assets in investment-grade Debt Securities (those of medium and high quality). The Fidelity Limited Term Bond ETF may hold uninvested cash or may invest it in cash equivalents such as repurchase agreements, shares of short term bond ETFs, mutual funds, or money market funds, including Fidelity central funds (special types of investment vehicles created by Fidelity for use by the Fidelity funds and other advisory clients). The Manager uses the Fidelity Limited Term Composite Index (``Composite Index'') as a guide in structuring the Fund and selecting its investments. The Manager manages the Fidelity Limited Term Bond ETF to have similar overall interest rate risk to the Composite Index. The Manager considers other factors when selecting the Fidelity Limited Term Bond ETF's investments, including the credit quality of the issuer, security-specific features, current valuation relative to alternatives in the market, short-term trading opportunities resulting from market inefficiencies, and potential future valuation. In managing the Fidelity Limited Term Bond ETF's exposure to various risks, including interest rate risk, the Manager considers, among other things, the market's overall risk characteristics, the market's current pricing of those risks, information on the Fund's competitive universe, and internal views of potential future market conditions. 4. Fidelity Total Bond ETF As described in the Prior Total Bond Notice, the Fidelity Total Bond ETF seeks a high level of current income. The Manager normally invests at least 80% of the Fidelity Total Bond ETF's assets in Debt Securities. The Manager allocates the Fidelity Total Bond ETF's assets across investment-grade, high yield, and emerging market Debt Securities. The Manager may invest up to 20% of the Fund's assets in lower-quality Debt Securities. The Fidelity Total Bond ETF may hold uninvested cash or may invest it in cash equivalents such as repurchase agreements, shares of short term bond ETFs, mutual funds, or money market funds, including Fidelity central funds (special types of investment vehicles created by Fidelity for use by the Fidelity funds and other advisory clients). The Manager uses the Barclays U.S. Universal Bond Index (``Universal Index'') as a guide in structuring and selecting the investments of the Fidelity Total Bond ETF and selecting its investments, and in allocating the Fidelity Total Bond ETF's assets across the investment-grade, high yield, and emerging market asset classes. The Manager manages the Fidelity Total Bond ETF to have similar overall interest rate risk to the Universal Index. The Manager considers other factors when selecting the Fund's investments, including the credit quality of the issuer, security-specific features, current valuation relative to alternatives in the market, short-term trading opportunities resulting from market inefficiencies, and potential future valuation. In managing the Fund's exposure to various risks, including interest rate risk, the Manager considers, among other things, the market's overall risk characteristics, the market's current pricing of those risks, information on the Fund's competitive universe, and internal views of potential future market conditions. As described in the Prior Total Bond Notice, the Manager may invest the Fidelity Total Bond ETF's assets in Debt Securities of foreign issuers in addition to securities of domestic issuers. 5. Other Investments of the Funds While, as described above, the Manager normally invests at least 80% of assets of Fidelity Limited Term Bond ETF in investment-grade Debt Securities (and will normally invest at least 80% of assets of the Fidelity Investment Grade Bond ETF in investment-grade Debt Securities), and the Manager normally invests at least 80% of assets of the Fidelity Total Bond ETF in Debt Securities, the Manager may invest up to 20% of a Fund's assets in other securities and financial instruments (``Other Investments,'' as described in the Prior Total Bond Notice). As described in the Prior Corporate Bond Notice and Prior Total Bond Notice, as part of a Fund's Other Investments, (i.e., up to 20% of a Fund's assets), each Fund may invest in restricted securities, which are subject to legal restrictions on their sale.\14\ --------------------------------------------------------------------------- \14\ Restricted securities are subject to legal restrictions on their sale. Restricted securities generally can be sold in privately negotiated transactions, pursuant to an exemption from registration under the Securities Act, or in a registered public offering. Rule 144A securities are securities which, while privately placed, are eligible for purchase and resale pursuant to Rule 144A. Rule 144A permits certain qualified institutional buyers, such as a Fund, to trade in privately placed securities even though such securities are not registered under the Securities Act. --------------------------------------------------------------------------- B. Exchange's Description of the Proposed Change to the Principal Investments of the Funds The Exchange proposes that each Fund may include Rule 144A securities within a Fund's principal investments in debt securities (i.e., debt securities in which at least 80% of a Fund's assets are invested), provided that no more than 35% of a Fund's assets may be invested in Rule 144A securities. As discussed below, the Exchange believes it is appropriate for Rule 144A securities to be included as principal investments of a Fund, subject to the 35% limitation referenced above, in view of (1) the high level of liquidity in the market for such securities compared to other debt securities asset classes, and (2) the high level of transparency in the market for Rule 144A securities, particularly in light of reporting of transaction data in such securities through the Trade Reporting and Compliance Engine (``TRACE'') operated by the Financial Industry Regulatory Authority (``FINRA''). All of the Rule 144A securities in which a Fund invests will be corporate debt securities for which transactions are reported in TRACE. FMR has represented to the Exchange that Rule 144A securities account for approximately 20% of daily trading volume in U.S. corporate bonds. Dealers trade and report transactions in Rule 144A securities in the same manner as registered corporate bonds. While the average number of daily trades and U.S. dollar volume in registered corporate bonds is much higher than in Rule 144A securities, the average lot size is higher for Rule 144A securities.\15\ Specifically, the average lot size for 144A securities for the period January 1, 2015 through [[Page 86363]] August 31, 2015 was approximately $2.2 million, compared to an average lot size for the same period of approximately $500,000 for registered corporate bonds. --------------------------------------------------------------------------- \15\ Source: MarketAxess Trace Data. For example, for the period January 1, 2015 through August 31, 2015, for registered bonds and Rule 144A securities with $1 billion to $1.999 billion the average daily dollar volume outstanding was approximately $6.8 billion and $1.7 billion, respectively, and the average lot size was $666,647 and $2,398,292, respectively. --------------------------------------------------------------------------- The Exchange notes that, in 2013, the Commission approved FINRA rules relating to dissemination of information regarding transactions in Rule 144A securities in TRACE.\16\ Transactions executed by FINRA members became subject to dissemination through FINRA's TRACE on June 30, 2014, thus providing a level of transparency to the Rule 144A market comparable to that of registered bonds.\17\ --------------------------------------------------------------------------- \16\ See Securities Exchange Act Release Nos. 70009 (Jul. 19, 2013), 78 FR 44997 (Jul. 25, 2103) (SR-FINRA-2013-029) (notice of filing of a proposed rule change relating to the dissemination of transactions in TRACE-Eligible securities effected pursuant to Rule 144A); 70345 (Sept. 6, 2013), 78 FR 56251 (Sept. 12, 2013) (SR- FINRA-2013-029) (order approving proposed rule change relating to the dissemination of transactions in TRACE-Eligible securities effected pursuant to Rule 144A). In the proposed rule change, FINRA proposed to amend FINRA Rule 6750 to provide for the dissemination of Rule 144A transactions, provided the asset type (e.g., corporate bonds) currently is subject to dissemination under FINRA Rule 6750; to amend the dissemination protocols to extend the dissemination caps currently applicable to the non-Rule 144A transactions in such asset type (e.g., non-Rule 144A corporate bond transactions) to Rule 144A transactions in such securities; to amend FINRA Rule 7730 to establish a data set for real-time Rule 144A transaction data and a second data set for historic Rule 144A transaction data; to amend the definition of ``Historic TRACE Data'' to reference the three data sets currently included therein and the proposed fourth data set; and to make other clarifying and technical amendments. FINRA Rule 6730(a) requires any transaction in a TRACE-Eligible security to be reported to TRACE as soon as practicable, but no later than within 15 minutes of the transaction, subject to specified exceptions. FINRA Rule 6730(c) requires the trade report to contain information on size, price, time of execution, amount of commission, the date of settlement, and other information. \17\ The Exchange notes that in a June 30, 2014 press release ``FINRA Brings 144A Corporate Debt Transactions Into the Light,'' FINRA stated: ``144A transactions--resales of restricted corporate debt securities to large institutions called qualified institutional buyers (QIBs)--account for a significant portion of the volume in corporate debt securities. In the first quarter of 2014, 144A transactions comprised nearly 13 percent of the average daily volume in investment-grade corporate debt, and nearly 30 percent of the average daily volume in high-yield corporate debt. 144A transactions comprised nearly 20 percent of the average daily volume in the corporate debt market as a whole. Through the Trade Reporting and Compliance Engine (TRACE), FINRA will disseminate 144A transactions subject to the same dissemination caps that are currently in effect for non-144A transactions. The same dissemination cap for investment-grade corporate bonds ($5 million) applies to both 144A and non-144A corporate bond transactions, and the $1 million dissemination cap for high-yield corporate bonds similarly applies to both 144A and non-144A transactions. 144A transactions are also subject to the same 15-minute reporting requirement as non-144A corporate debt transactions.'' See also FINRA Regulatory Notice 13- 35 October 2013. --------------------------------------------------------------------------- The Exchange further notes that, while the proposed rule change would categorize Rule 144A securities within a Fund's principal investments in debt securities (subject to a limitation of investments in Rule 144A securities to 35% of a Fund's assets), any investments in Rule 144A securities, of course, would be required to comply with restrictions under the 1940 Act and rules thereunder relating to investment in illiquid assets. As stated in the Prior Corporate Bond Notice and Prior Total Bond Notice, each Fund may hold up to an aggregate amount of 15% of its net assets in illiquid assets (calculated at the time of investment), including Rule 144A securities deemed illiquid by the Manager or Sub-Advisers. Each Fund monitors its portfolio liquidity on an ongoing basis to determine whether, in light of current circumstances, an adequate level of liquidity is being maintained, and will consider taking appropriate steps in order to maintain adequate liquidity if, through a change in values, net assets, or other circumstances, more than 15% of a Fund's net assets are held in illiquid assets. Illiquid assets include assets subject to contractual or other restrictions on resale and other instruments that lack readily available markets as determined in accordance with Commission staff guidance.\18\ --------------------------------------------------------------------------- \18\ The Exchange notes that in a recent rulemaking proposal relating to open-end fund liquidity risk management programs, the Commission stated that ``[s]ecurities offered pursuant to rule 144A under the Securities Act may be considered liquid depending on certain factors.'' The Commission, citing to the ``Statement Regarding `Restricted Securities' '' noted: ``The Commission stated [in the ``Statement Regarding `Restricted Securities' ''] that `determination of the liquidity of Rule 144A securities in the portfolio of an investment company issuing redeemable securities is a question of fact for the board of directors to determine, based upon the trading markets for the specific security' and noted that the board should consider the unregistered nature of a rule 144A security as one of the factors it evaluates in determining its liquidity.'' See Release Nos. 33-9922; IC-31835; File Nos. S7-16-15; S7-08-15 (Sept. 22, 2015). --------------------------------------------------------------------------- Moreover, as stated in the Prior Corporate Bond Notice and Prior Total Bond Notice, each Fund does not currently intend to purchase any asset if, as a result, more than 10% of its net assets would be invested in assets that are deemed to be illiquid because they are subject to legal or contractual restrictions on resale or because they cannot be sold or disposed of in the ordinary course of business at approximately the prices at which they are valued. For purposes of a Fund's illiquid assets limitation discussed above, if through a change in values, net assets, or other circumstances, a Fund were in a position where more than 10% of its net assets were invested in illiquid assets, it would consider appropriate steps to protect liquidity. The Prior Corporate Bond Notice and Prior Total Bond Notice stated that various factors may be considered in determining the liquidity of a Fund's investments, including: (1) The frequency of trades and quotes for the asset; (2) the number of dealers wishing to purchase or sell the asset and the number of other potential purchasers; (3) dealer undertakings to make a market in the asset; and (4) the nature of the asset and the nature of the marketplace in which it trades (including any demand, put or tender features, the mechanics and other requirements for transfer, any letters of credit or other credit enhancement features, any ratings, the number of holders, the method of soliciting offers, the time required to dispose of the security, and the ability to assign or offset the rights and obligations of the asset). The Exchange believes that the size of the Rule 144A market (approximately 20% of daily trading volume in U.S. corporate bonds), the active participation of multiple dealers utilizing trading protocols that are similar to those in the corporate bond market, and the transparency of the 144A market resulting from reporting of Rule 144A transactions in TRACE will deter manipulation in trading the Shares. The Exchange notes that all of the Rule 144A securities in which a Fund invests will be corporate debt securities for which transactions are reported in TRACE. The Exchange represents that, except for the change described above, all other representations made in the Prior Corporate Bond Releases and the Prior Total Bond Releases remain unchanged. The Funds will continue to comply with all initial and continued listing requirements under NYSE Arca Equities Rule 8.600. The Exchange further represents that the trading in the Shares will be subject to the existing trading surveillances administered by the Exchange, as well as cross-market surveillances administered by FINRA, on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws.\19\ 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 [[Page 86364]] federal securities laws applicable to trading on the Exchange. The Exchange or FINRA, on behalf of the Exchange, or both, will communicate as needed regarding trading in the Shares and underlying exchange- traded options, futures, exchange-traded equity securities (including ADRs, EDRs, and GDRs), and other exchange-traded instruments with other markets and other entities that are members of the ISG, and the Exchange or FINRA, on behalf of the Exchange, or both, may obtain trading information regarding trading in the Shares and underlying exchange-traded options, futures, exchange-traded equity securities (including ADRs, EDRs, and GDRs), and other exchange-traded instruments from such markets and other entities. The Exchange may obtain information regarding trading in the Shares and underlying exchange- traded options, futures, exchange-traded equity securities (including ADRs, EDRs, and GDRs), and other exchange-traded instruments from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement.\20\ FINRA, on behalf of the Exchange, is able to access, as needed, trade information for the Rule 144A securities as well as certain other fixed income securities held by the Funds reported to TRACE. In addition, as stated in the Prior Corporate Bond Releases and the Prior Total Bond Releases, investors have ready access to information regarding the Funds' holdings, the Portfolio Indicative Value, the Disclosed Portfolio, and quotation and last-sale information for the Shares. --------------------------------------------------------------------------- \19\ FINRA conducts cross-market surveillances on behalf of the Exchange pursuant to a regulatory services agreement. The Exchange is responsible for FINRA's performance under this regulatory services agreement. \20\ For a list of the current members of ISG, see www.isgportal.org. The Exchange notes that not all of the components of the portfolio for a Fund may trade on exchanges that are members of the ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement. --------------------------------------------------------------------------- The Exchange also represents that all statements and representations made in this filing and the Prior Corporate Bond Releases and Prior Total Bond Releases regarding (a) the description of the Funds' respective portfolios, (b) limitations on portfolio holdings or reference assets, or (c) the applicability of Exchange rules and surveillance procedures shall constitute continued listing requirements for listing the Shares of the Funds on the Exchange. The Adviser has represented to the Exchange that it will advise the Exchange of any failure by a Fund to comply with the continued listing requirements, and, pursuant to its obligations under Section 19(g)(1) of the Act, the Exchange will monitor for compliance with the continued listing requirements. If a Fund is not in compliance with the applicable listing requirements, the Exchange will commence delisting procedures under NYSE Arca Equities Rule 5.5(m). III. Discussion and Commission Findings After careful review, the Commission finds that the Exchange's proposal, as modified by Amendment Nos. 1 and 2 thereto, is consistent with the Exchange Act and the rules and regulations thereunder applicable to a national securities exchange.\21\ In particular, the Commission finds that the proposed rule change, as modified by Amendment Nos. 1 and 2 thereto, is consistent with Section 6(b)(5) of the Exchange Act,\22\ which requires, among other things, that the Exchange's rules be designed 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. --------------------------------------------------------------------------- \21\ 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). \22\ 15 U.S.C. 78f(b)(5). --------------------------------------------------------------------------- The Commission notes that transaction information relating to Rule 144A securities is available via TRACE. According to the Exchange, all of the Rule 144A securities in which a Fund invests will be corporate debt securities for which transactions are reported in TRACE. The Commission believes that limiting Rule 144A securities in which a Fund invests as principal investments to corporate debt securities for which transactions are reported to TRACE would help to promote market transparency and provide an appropriate limit on the use of 144A securities as debt securities eligible for principal investment, provided that no more than 35% of a Fund's assets may be invested in Rule 144A securities. The Commission notes that, while the proposal would allow a Fund to consider Rule 144A securities as debt securities eligible for principal investment, subject to the 35% limitation referenced above, any investments in such securities would be required to comply with the restrictions under the 1940 Act and rules thereunder relating to investments in illiquid assets. As stated in the Prior Corporate Bond Notice and Prior Total Bond Notice, each Fund may hold up to an aggregate amount of 15% of its net assets in illiquid assets (calculated at the time of investment), including Rule 144A securities deemed illiquid by the Manager or Sub-Advisers. The Manager or Sub- Advisers, who are responsible for the day-to-day decisions regarding the liquidity of securities, may consider various factors in determining the liquidity of a Fund's investments, including: (1) The frequency of trades and quotes for the asset; (2) the number of dealers wishing to purchase or sell the asset and the number of other potential purchasers; (3) dealer undertakings to make a market in the asset; and (4) the nature of the asset and the nature of the marketplace in which it trades (including any demand, put or tender features, the mechanics and other requirements for transfer, any letters of credit or other credit enhancement features, any ratings, the number of holders, the method of soliciting offers, the time required to dispose of the security, and the ability to assign or offset the rights and obligations of the asset). Ultimately, however, a Fund's Board of Directors has responsibility for determining the liquidity of securities (including Rule 144A securities) held by a Fund. The Commission further notes that pursuant to the 1940 Act and rules thereunder, Funds are required to monitor their respective portfolio's liquidity on an ongoing basis to determine whether, in light of current circumstances, an adequate level of liquidity is being maintained, and to consider taking appropriate steps in order to maintain adequate liquidity if, through a change in values, net assets, or other circumstances, more than 15% of a Fund's net assets are held in illiquid assets. Moreover, the Exchange represents that each Fund does not currently intend to purchase any asset if, as a result, more than 10% of its net assets would be invested in assets that are deemed to be illiquid because they are subject to legal or contractual restrictions on resale or because they cannot be sold or disposed of in the ordinary course of business at approximately the prices at which they are valued. Importantly, the Commission notes that the Funds will continue to be listed and traded on the Exchange pursuant to the initial and continued listing criteria in NYSE Arca Equities Rule 8.600. The Exchange represents that, except for the change described above, all other representations made in the Prior Corporate Bond Releases and the Prior Total Bond Releases remain unchanged. The Commission finds that providing the Manager or Sub-Advisers of each Fund additional flexibility to consider Rule 144A securities as debt securities eligible for principal investment, given the protections discussed above, is consistent with the Act. [[Page 86365]] In support of this proposal, the Exchange represented that: (1) The Funds will continue to comply with all initial and continued listing requirements under NYSE Arca Equities Rule 8.600. (2) Each Fund may include Rule 144A securities within a Fund's principal investments in debt securities (i.e., debt securities in which at least 80% of a Fund's assets are invested), provided that no more than 35% of a Fund's assets may be invested in Rule 144A securities. (3) All of the Rule 144A securities in which a Fund invests will be corporate debt securities for which transactions are reported in TRACE. (4) Trading in the Shares will be subject to the existing trading surveillances administered by the Exchange, as well as cross-market surveillances administered by FINRA, on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws. 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 federal securities laws applicable to trading on the Exchange. (5) The Exchange or FINRA, on behalf of the Exchange, or both, will communicate as needed regarding trading in the Shares and underlying exchange-traded options, futures, exchange-traded equity securities (including ADRs, EDRs, and GDRs), and other exchange- traded instruments with other markets and other entities that are members of the ISG, and the Exchange or FINRA, on behalf of the Exchange, or both, may obtain trading information regarding trading in the Shares and underlying exchange-traded options, futures, exchange-traded equity securities (including ADRs, EDRs, and GDRs), and other exchange-traded instruments from such markets and other entities. The Exchange may obtain information regarding trading in the Shares and underlying exchange-traded options, futures, exchange-traded equity securities (including ADRs, EDRs, and GDRs), and other exchange-traded instruments from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement. (6) FINRA, on behalf of the Exchange, is able to access, as needed, trade information for the Rule 144A securities as well as certain other fixed income securities held by the Funds reported to TRACE. In addition, as stated in the Prior Corporate Bond Releases and the Prior Total Bond Releases, investors have ready access to information regarding the Funds' holdings, the Portfolio Indicative Value, the Disclosed Portfolio, and quotation and last-sale information for the Shares. (7) Trading in Shares of a Fund will be halted if the circuit breaker parameters in NYSE Arca Equities Rule 7.12 have been reached or because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable, and trading in the Shares will be subject to NYSE Arca Equities Rule 8.600(d)(2)(D), which sets forth circumstances under which Shares of a Fund may be halted. (8) The Exchange represents that the Manager and the Sub- Advisers are not broker-dealers but are affiliated with one or more broker-dealers and have each implemented a fire wall with respect to such broker-dealers regarding access to information concerning the composition and/or changes to the portfolios, and will be subject to procedures designed to prevent the use and dissemination of material non-public information regarding the portfolios. (9) The Exchange will obtain a representation from the issuer of the Shares that the net asset value (``NAV'') per Share will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time. (10) The Portfolio Indicative Value with respect to Shares of each Fund will be widely disseminated by one or more major market data vendors at least every 15 seconds during the Exchange's Core Trading Session. (11) On each business day, before commencement of trading in Shares in the Core Trading Session on the Exchange, each Fund will disclose on the Trust's Web site the Disclosed Portfolio that will form the basis for a Fund's calculation of NAV at the end of the business day. (12) The Trust's Web site will include a form of the prospectus for the Funds and additional data relating to NAV and other applicable quantitative information. The Exchange also represents that all statements and representations made in this filing and the Prior Corporate Bond Releases and Prior Total Bond Releases regarding (a) the description of the Funds' respective portfolios, (b) limitations on portfolio holdings or reference assets, or (c) the applicability of Exchange rules and surveillance procedures shall constitute continued listing requirements for listing the Shares of the Funds on the Exchange. In addition, the Adviser has represented to the Exchange that it will advise the Exchange of any failure by a Fund to comply with the continued listing requirements, and, pursuant to its obligations under Section 19(g)(1) of the Act, the Exchange will monitor for compliance with the continued listing requirements.\23\ If a Fund is not in compliance with the applicable listing requirements, the Exchange will commence delisting procedures under NYSE Arca Equities Rule 5.5(m). --------------------------------------------------------------------------- \23\ The Commission notes that certain other proposals for the listing and trading of Managed Fund Shares include a representation that the exchange will ``surveil'' for compliance with the continued listing requirements. See, e.g., Securities Exchange Act Release No. 77499 (Apr. 1, 2016), 81 FR 20428 (Apr. 7, 2016) (Notice of Filing of Amendment No. 2, and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Amendment No. 2, to List and Trade Shares of the SPDR DoubleLine Short Duration Total Return Tactical ETF of the SSgA Active Trust), available at: http://www.sec.gov/rules/sro/bats/2016/34-77499.pdf. In the context of this representation, it is the Commission's view that ``monitor'' and ``surveil'' both mean ongoing oversight of the Fund's compliance with the continued listing requirements. Therefore, the Commission does not view ``monitor'' as a more or less stringent obligation than ``surveil'' with respect to the continued listing requirements. --------------------------------------------------------------------------- This approval order is based on all of the Exchange's representations, including those set forth above and in the Notice, as modified by Amendment Nos. 1 and 2 to the proposed rule change. The Commission notes that the Funds must comply with the requirements of NYSE Arca Equities Rule 8.600 to be listed and traded on the Exchange on an initial and continuing basis. For the foregoing reasons, the Commission finds that the proposed rule change, as modified by Amendment Nos.1 and 2 thereto, is consistent with Section 6(b)(5) of the Act \24\ and the rules and regulations thereunder applicable to a national securities exchange. --------------------------------------------------------------------------- \24\ 15 U.S.C. 78f(b)(5). --------------------------------------------------------------------------- IV. Conclusion It is therefore ordered, pursuant to Section 19(b)(2) of the Exchange Act,\25\ that the proposed rule change (SR-NYSEArca-2016-70), as modified by Amendment Nos. 1 and 2 thereto, be, and it hereby is, approved. --------------------------------------------------------------------------- \25\ 15 U.S.C. 78s(b)(2). For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.\26\ --------------------------------------------------------------------------- \26\ 17 CFR 200.30-3(a)(12). --------------------------------------------------------------------------- Robert W. Errett, Deputy Secretary. [FR Doc. 2016-28774 Filed 11-29-16; 8:45 am] BILLING CODE 8011-01-P
![86360 Federal Register / Vol. 81, No. 230 / Wednesday, November 30, 2016 / Notices
Electronic Comments SECURITIES AND EXCHANGE 2016, the Commission instituted
COMMISSION proceedings under Section 19(b)(2)(B) of
• Use the Commission’s Internet the Act 7 to determine whether to
comment form (http://www.sec.gov/ [Release No. 34–79384; File No. SR–
approve or disapprove the proposed
rules/sro.shtml); or NYSEArca–2016–70]
rule change, as modified by Amendment
• Send an email to rule-comments@ Self-Regulatory Organizations; NYSE No. 1 thereto.8 In the Order Instituting
sec.gov. Please include File No. SR– Arca, Inc.; Order Granting Approval of Proceedings, the Commission solicited
BatsBZX–2016–77 on the subject line. Proposed Rule Proposed Rule Change, comments to specified matters related to
as Modified by Amendment Nos. 1 and the proposal.9 On November 22, 2016,
Paper Comments 2 Thereto, Regarding Use of Rule 144A the Exchange filed Amendment No. 2 to
Securities by the Fidelity Corporate the proposed rule change.10 The
• Send paper comments in triplicate Commission has received no comments
to Secretary, Securities and Exchange Bond ETF, Fidelity Investment Grade
Bond ETF, Fidelity Limited Term Bond on the proposed rule change. This order
Commission, 100 F Street NE., grants approval of the proposed rule
Washington, DC 20549–1090. ETF, and Fidelity Total Bond ETF
change, as modified by Amendment
All submissions should refer to File No. November 23, 2016. Nos. 1 and 2 thereto.
SR–BatsBZX–2016–77. This file number I. Introduction II. Exchange’s Description of the
should be included on the subject line On May 11, 2016, NYSE Arca, Inc. Proposal
if email is used. To help the (‘‘Exchange’’) filed with the Securities The Commission approved the listing
Commission process and review your and Exchange Commission and trading of shares (‘‘Shares’’) of the
comments more efficiently, please use (‘‘Commission’’), pursuant to Section Funds under NYSE Arca Equities Rule
only one method. The Commission will 19(b)(1) of the Securities Exchange Act 8.600,11 which governs the listing and
post all comments on the Commission’s of 1934 (‘‘Act’’ or ‘‘Exchange Act’’) 1 and
Internet Web site (http://www.sec.gov/ Rule 19b–4 thereunder,2 a proposed rule Funds reported to TRACE. Amendment No. 1 is
rules/sro.shtml). Copies of the change to permit the Fidelity Corporate available at: https://www.sec.gov/comments/sr-
nysearca-2016-70/nysearca201670-1.pdf. Because
submission, all subsequent Bond ETF, Fidelity Investment Grade Amendment No. 1 to the proposed rule change does
amendments, all written statements Bond ETF, Fidelity Limited Term Bond not materially alter the substance of the proposed
with respect to the proposed rule ETF, and Fidelity Total Bond ETF rule change or raise unique or novel regulatory
(individually, ‘‘Fund,’’ and collectively, issues, Amendment No. 1 is not subject to notice
change that are filed with the and comment.
Commission, and all written ‘‘Funds’’) to consider securities issued 7 15 U.S.C. 78s(b)(2)(B).
communications relating to the pursuant to Rule 144A under the 8 See Securities Exchange Act Release No. 78712,
proposed rule change between the Securities Act of 1933 (‘‘Securities Act’’) 81 FR 60759 (Sept. 2, 2016) (‘‘Order Instituting
Commission and any person, other than as debt securities eligible for principal Proceedings’’). Specifically, the Commission
investment. The proposed rule change instituted proceedings to allow for additional
those that may be withheld from the analysis of the proposed rule change’s consistency
public in accordance with the was published for comment in the with Section 6(b)(5) of the Act, which requires,
provisions of 5 U.S.C. 552, will be Federal Register on May 31, 2016.3 On among other things, that the rules of a national
available for Web site viewing and June 30, 2016, pursuant to Section securities exchange be ‘‘designed to prevent
19(b)(2) of the Act,4 the Commission fraudulent and manipulative acts and practices, to
printing in the Commission’s Public promote just and equitable principles of trade,’’ and
designated a longer period within which ‘‘to protect investors and the public interest.’’ See
Reference Room, 100 F Street NE.,
to approve the proposed rule change, id., 81 FR at 60764.
Washington, DC 20549, on official
disapprove the proposed rule change, or 9 See id.
business days between the hours of institute proceedings to determine 10 In Amendment No. 2, which amended and
10:00 a.m. and 3:00 p.m. Copies of such whether to disapprove the proposed replaced the proposed rule change in its entirety,
filing will also be available for rule change.5 On July 26, 2016, the
the Exchange clarified that no more than 35% of a
Fund’s assets may be invested in Rule 144A
inspection and copying at the principal Exchange filed Amendment No. 1 to the securities. Amendment No. 2 is available at: https://
office of the Exchange. All comments proposed rule change.6 On August 29, www.sec.gov/comments/sr-nysearca-2016-70/
received will be posted without change; nysearca201670-2.pdf. Because Amendment No. 2
the Commission does not edit personal 1 15 to the proposed rule change does not materially
U.S.C. 78s(b)(1).
alter the substance of the proposed rule change or
identifying information from 2 17 CFR 240.19b–4. raise unique or novel regulatory issues, Amendment
3 See Securities Exchange Act Release No. 77891
submissions. You should submit only No. 2 is not subject to notice and comment.
(May 24, 2016), 81 FR 34388 (‘‘Notice’’).
information that you wish to make 4 15 U.S.C. 78s(b)(2).
11 See Securities Exchange Act Release Nos.
72068 (May 1, 2014), 79 FR 25923 (May 6, 2014)
available publicly. All submissions 5 See Securities Exchange Act Release No. 78207,
(SR–NYSEArca–2014–47) (notice of filing of
should refer to File No. SR–BatsBZX– 81 FR 44338 (Jul. 7, 2016). The Commission proposed rule change relating to listing and trading
2016–77 and should be submitted on or designated August 29, 2016 as the date by which of Shares of Fidelity Corporate Bond ETF Managed
the Commission shall either approve or disapprove, Shares under NYSE Arca Equities Rule 8.600)
before December 21, 2016. or institute proceedings to determine whether to (‘‘Prior Corporate Bond Notice’’); 72439 (Jun. 20,
For the Commission, by the Division of disapprove, the proposed rule change. 2014), 79 FR 36361 (Jun. 26, 2014) (SR–NYSEArca–
6 In Amendment No. 1, which amended and 2014–47) (order approving proposed rule change
Trading and Markets, pursuant to delegated
replaced the proposed rule change in its entirety, relating to listing and trading of Shares of Fidelity
authority.11 the Exchange: (a) corrected certain aspects of the Corporate Bond ETF Managed Shares under NYSE
Robert W. Errett, the investment descriptions for each Fund in Arca Equities Rule 8.600) (‘‘Prior Corporate Bond
accordance with the Prior Corporate Bond Releases Order’’ and, together with the Prior Corporate Bond
sradovich on DSK3GMQ082PROD with NOTICES
Deputy Secretary.
and Prior Total Bond Releases (as defined herein); Notice, ‘‘Prior Corporate Bond Releases’’); 72064
[FR Doc. 2016–28775 Filed 11–29–16; 8:45 am] (b) confirmed that all of the Rule 144A securities (May 1, 2014), 79 FR 25908 (May 6, 2014) (SR–
BILLING CODE 8011–01–P in which a Fund invests will be corporate debt NYSEArca–2014–46) (notice of filing of proposed
securities for which transactions are reported to rule change relating to listing and trading of Shares
TRACE (as defined herein); and (c) confirmed that of Fidelity Investment Grade Bond ETF; Fidelity
FINRA (as defined herein), on behalf of the Limited Term Bond ETF; and Fidelity Total Bond
Exchange, is able to access, as needed, trade ETF under NYSE Arca Equities Rule 8.600) (‘‘Prior
information for the Rule 144A securities as well as Total Bond Notice’’); 72748 (Aug. 4, 2014), 79 FR
11 17 CFR 200.30–3(a)(12). certain other fixed income securities held by the 46484 (Aug. 8, 2014) (SR–NYSEArca–2014–46)
VerDate Sep<11>2014 16:51 Nov 29, 2016 Jkt 241001 PO 00000 Frm 00042 Fmt 4703 Sfmt 4703 E:\FR\FM\30NON1.SGM 30NON1](https://thefederalregister.org/doc/81_FR_86590/page/1.svg)
![Federal Register / Vol. 81, No. 230 / Wednesday, November 30, 2016 / Notices 86363
August 31, 2015 was approximately $2.2 categorize Rule 144A securities within a illiquid assets, it would consider
million, compared to an average lot size Fund’s principal investments in debt appropriate steps to protect liquidity.
for the same period of approximately securities (subject to a limitation of The Prior Corporate Bond Notice and
$500,000 for registered corporate bonds. investments in Rule 144A securities to Prior Total Bond Notice stated that
The Exchange notes that, in 2013, the 35% of a Fund’s assets), any various factors may be considered in
Commission approved FINRA rules investments in Rule 144A securities, of determining the liquidity of a Fund’s
relating to dissemination of information course, would be required to comply investments, including: (1) The
regarding transactions in Rule 144A with restrictions under the 1940 Act and frequency of trades and quotes for the
securities in TRACE.16 Transactions rules thereunder relating to investment asset; (2) the number of dealers wishing
executed by FINRA members became in illiquid assets. As stated in the Prior to purchase or sell the asset and the
subject to dissemination through Corporate Bond Notice and Prior Total number of other potential purchasers;
FINRA’s TRACE on June 30, 2014, thus Bond Notice, each Fund may hold up to (3) dealer undertakings to make a
providing a level of transparency to the an aggregate amount of 15% of its net market in the asset; and (4) the nature
Rule 144A market comparable to that of assets in illiquid assets (calculated at of the asset and the nature of the
registered bonds.17 the time of investment), including Rule marketplace in which it trades
The Exchange further notes that, 144A securities deemed illiquid by the (including any demand, put or tender
while the proposed rule change would Manager or Sub-Advisers. Each Fund features, the mechanics and other
monitors its portfolio liquidity on an requirements for transfer, any letters of
16 See Securities Exchange Act Release Nos.
ongoing basis to determine whether, in credit or other credit enhancement
70009 (Jul. 19, 2013), 78 FR 44997 (Jul. 25, 2103) features, any ratings, the number of
(SR–FINRA–2013–029) (notice of filing of a light of current circumstances, an
proposed rule change relating to the dissemination adequate level of liquidity is being holders, the method of soliciting offers,
of transactions in TRACE-Eligible securities effected maintained, and will consider taking the time required to dispose of the
pursuant to Rule 144A); 70345 (Sept. 6, 2013), 78
appropriate steps in order to maintain security, and the ability to assign or
FR 56251 (Sept. 12, 2013) (SR–FINRA–2013–029) offset the rights and obligations of the
(order approving proposed rule change relating to adequate liquidity if, through a change
the dissemination of transactions in TRACE-Eligible in values, net assets, or other asset).
securities effected pursuant to Rule 144A). In the circumstances, more than 15% of a The Exchange believes that the size of
proposed rule change, FINRA proposed to amend
Fund’s net assets are held in illiquid the Rule 144A market (approximately
FINRA Rule 6750 to provide for the dissemination 20% of daily trading volume in U.S.
of Rule 144A transactions, provided the asset type assets. Illiquid assets include assets
(e.g., corporate bonds) currently is subject to subject to contractual or other corporate bonds), the active
dissemination under FINRA Rule 6750; to amend restrictions on resale and other participation of multiple dealers
the dissemination protocols to extend the
instruments that lack readily available utilizing trading protocols that are
dissemination caps currently applicable to the non- similar to those in the corporate bond
Rule 144A transactions in such asset type (e.g., non- markets as determined in accordance
market, and the transparency of the
Rule 144A corporate bond transactions) to Rule with Commission staff guidance.18
144A transactions in such securities; to amend 144A market resulting from reporting of
Moreover, as stated in the Prior
FINRA Rule 7730 to establish a data set for real- Rule 144A transactions in TRACE will
time Rule 144A transaction data and a second data Corporate Bond Notice and Prior Total
deter manipulation in trading the
set for historic Rule 144A transaction data; to Bond Notice, each Fund does not
Shares. The Exchange notes that all of
amend the definition of ‘‘Historic TRACE Data’’ to currently intend to purchase any asset
reference the three data sets currently included the Rule 144A securities in which a
if, as a result, more than 10% of its net
therein and the proposed fourth data set; and to Fund invests will be corporate debt
make other clarifying and technical amendments. assets would be invested in assets that
securities for which transactions are
FINRA Rule 6730(a) requires any transaction in a are deemed to be illiquid because they
reported in TRACE.
TRACE-Eligible security to be reported to TRACE as are subject to legal or contractual The Exchange represents that, except
soon as practicable, but no later than within 15 restrictions on resale or because they
minutes of the transaction, subject to specified for the change described above, all other
exceptions. FINRA Rule 6730(c) requires the trade cannot be sold or disposed of in the representations made in the Prior
report to contain information on size, price, time of ordinary course of business at Corporate Bond Releases and the Prior
execution, amount of commission, the date of approximately the prices at which they Total Bond Releases remain unchanged.
settlement, and other information. are valued. For purposes of a Fund’s
17 The Exchange notes that in a June 30, 2014 The Funds will continue to comply with
press release ‘‘FINRA Brings 144A Corporate Debt
illiquid assets limitation discussed all initial and continued listing
Transactions Into the Light,’’ FINRA stated: ‘‘144A above, if through a change in values, net requirements under NYSE Arca Equities
transactions—resales of restricted corporate debt assets, or other circumstances, a Fund Rule 8.600.
securities to large institutions called qualified were in a position where more than
institutional buyers (QIBs)—account for a
The Exchange further represents that
significant portion of the volume in corporate debt
10% of its net assets were invested in the trading in the Shares will be subject
securities. In the first quarter of 2014, 144A to the existing trading surveillances
transactions comprised nearly 13 percent of the 18 The Exchange notes that in a recent rulemaking
administered by the Exchange, as well
average daily volume in investment-grade corporate proposal relating to open-end fund liquidity risk
debt, and nearly 30 percent of the average daily management programs, the Commission stated that
as cross-market surveillances
volume in high-yield corporate debt. 144A ‘‘[s]ecurities offered pursuant to rule 144A under administered by FINRA, on behalf of the
transactions comprised nearly 20 percent of the the Securities Act may be considered liquid Exchange, which are designed to detect
average daily volume in the corporate debt market depending on certain factors.’’ The Commission, violations of Exchange rules and
as a whole. Through the Trade Reporting and citing to the ‘‘Statement Regarding ‘Restricted applicable federal securities laws.19 The
Compliance Engine (TRACE), FINRA will Securities’ ’’ noted: ‘‘The Commission stated [in the
disseminate 144A transactions subject to the same ‘‘Statement Regarding ‘Restricted Securities’ ’’] that Exchange represents that these
dissemination caps that are currently in effect for ‘determination of the liquidity of Rule 144A procedures are adequate to properly
non-144A transactions. The same dissemination cap securities in the portfolio of an investment monitor Exchange trading of the Shares
sradovich on DSK3GMQ082PROD with NOTICES
for investment-grade corporate bonds ($5 million) company issuing redeemable securities is a in all trading sessions and to deter and
applies to both 144A and non-144A corporate bond question of fact for the board of directors to
transactions, and the $1 million dissemination cap determine, based upon the trading markets for the detect violations of Exchange rules and
for high-yield corporate bonds similarly applies to specific security’ and noted that the board should
both 144A and non-144A transactions. 144A consider the unregistered nature of a rule 144A 19 FINRA conducts cross-market surveillances on
transactions are also subject to the same 15-minute security as one of the factors it evaluates in behalf of the Exchange pursuant to a regulatory
reporting requirement as non-144A corporate debt determining its liquidity.’’ See Release Nos. 33– services agreement. The Exchange is responsible for
transactions.’’ See also FINRA Regulatory Notice 9922; IC–31835; File Nos. S7–16–15; S7–08–15 FINRA’s performance under this regulatory services
13–35 October 2013. (Sept. 22, 2015). agreement.
VerDate Sep<11>2014 16:51 Nov 29, 2016 Jkt 241001 PO 00000 Frm 00045 Fmt 4703 Sfmt 4703 E:\FR\FM\30NON1.SGM 30NON1](https://thefederalregister.org/doc/81_FR_86590/page/4.svg)
![Federal Register / Vol. 81, No. 230 / Wednesday, November 30, 2016 / Notices 86365
In support of this proposal, the (8) The Exchange represents that the compliance with the applicable listing
Exchange represented that: Manager and the Sub-Advisers are not requirements, the Exchange will
broker-dealers but are affiliated with one or commence delisting procedures under
(1) The Funds will continue to comply more broker-dealers and have each
with all initial and continued listing NYSE Arca Equities Rule 5.5(m).
implemented a fire wall with respect to such
requirements under NYSE Arca Equities Rule broker-dealers regarding access to This approval order is based on all of
8.600. information concerning the composition and/ the Exchange’s representations,
(2) Each Fund may include Rule 144A or changes to the portfolios, and will be including those set forth above and in
securities within a Fund’s principal subject to procedures designed to prevent the the Notice, as modified by Amendment
investments in debt securities (i.e., debt use and dissemination of material non-public Nos. 1 and 2 to the proposed rule
securities in which at least 80% of a Fund’s information regarding the portfolios.
assets are invested), provided that no more change. The Commission notes that the
(9) The Exchange will obtain a Funds must comply with the
than 35% of a Fund’s assets may be invested
representation from the issuer of the Shares requirements of NYSE Arca Equities
in Rule 144A securities.
that the net asset value (‘‘NAV’’) per Share
(3) All of the Rule 144A securities in which Rule 8.600 to be listed and traded on the
will be calculated daily and that the NAV
a Fund invests will be corporate debt Exchange on an initial and continuing
and the Disclosed Portfolio will be made
securities for which transactions are reported basis.
available to all market participants at the
in TRACE. For the foregoing reasons, the
same time.
(4) Trading in the Shares will be subject to
(10) The Portfolio Indicative Value with Commission finds that the proposed
the existing trading surveillances
administered by the Exchange, as well as
respect to Shares of each Fund will be widely rule change, as modified by Amendment
cross-market surveillances administered by disseminated by one or more major market Nos.1 and 2 thereto, is consistent with
FINRA, on behalf of the Exchange, which are data vendors at least every 15 seconds during Section 6(b)(5) of the Act 24 and the
designed to detect violations of Exchange the Exchange’s Core Trading Session. rules and regulations thereunder
(11) On each business day, before
rules and applicable federal securities laws. applicable to a national securities
These procedures are adequate to properly commencement of trading in Shares in the
Core Trading Session on the Exchange, each exchange.
monitor Exchange trading of the Shares in all
trading sessions and to deter and detect Fund will disclose on the Trust’s Web site IV. Conclusion
violations of Exchange rules and federal the Disclosed Portfolio that will form the
basis for a Fund’s calculation of NAV at the It is therefore ordered, pursuant to
securities laws applicable to trading on the
Exchange. end of the business day. Section 19(b)(2) of the Exchange Act,25
(5) The Exchange or FINRA, on behalf of (12) The Trust’s Web site will include a that the proposed rule change (SR–
the Exchange, or both, will communicate as form of the prospectus for the Funds and NYSEArca–2016–70), as modified by
needed regarding trading in the Shares and additional data relating to NAV and other Amendment Nos. 1 and 2 thereto, be,
underlying exchange-traded options, futures, applicable quantitative information. and it hereby is, approved.
exchange-traded equity securities (including The Exchange also represents that all For the Commission, by the Division of
ADRs, EDRs, and GDRs), and other exchange- statements and representations made in
traded instruments with other markets and Trading and Markets, pursuant to delegated
this filing and the Prior Corporate Bond authority.26
other entities that are members of the ISG,
and the Exchange or FINRA, on behalf of the Releases and Prior Total Bond Releases Robert W. Errett,
Exchange, or both, may obtain trading regarding (a) the description of the Deputy Secretary.
information regarding trading in the Shares Funds’ respective portfolios, (b) [FR Doc. 2016–28774 Filed 11–29–16; 8:45 am]
and underlying exchange-traded options, limitations on portfolio holdings or
BILLING CODE 8011–01–P
futures, exchange-traded equity securities reference assets, or (c) the applicability
(including ADRs, EDRs, and GDRs), and of Exchange rules and surveillance
other exchange-traded instruments from such procedures shall constitute continued
markets and other entities. The Exchange SECURITIES AND EXCHANGE
listing requirements for listing the COMMISSION
may obtain information regarding trading in
the Shares and underlying exchange-traded Shares of the Funds on the Exchange. In
addition, the Adviser has represented to [Release No. 34–79389; File No. SR–
options, futures, exchange-traded equity NYSEMKT–2016–107)]
securities (including ADRs, EDRs, and the Exchange that it will advise the
GDRs), and other exchange-traded Exchange of any failure by a Fund to
Self-Regulatory Organizations; NYSE
instruments from markets and other entities comply with the continued listing
that are members of ISG or with which the MKT LLC; Notice of Filing and
requirements, and, pursuant to its
Exchange has in place a comprehensive Immediate Effectiveness of Proposed
obligations under Section 19(g)(1) of the
surveillance sharing agreement. Rule Change Amending Rule 15—
Act, the Exchange will monitor for
(6) FINRA, on behalf of the Exchange, is Equities Relating to Pre-Opening
able to access, as needed, trade information compliance with the continued listing
Indications
for the Rule 144A securities as well as certain requirements.23 If a Fund is not in
other fixed income securities held by the November 23, 2016.
23 The Commission notes that certain other
Funds reported to TRACE. In addition, as Pursuant to Section 19(b)(1) 1 of the
stated in the Prior Corporate Bond Releases proposals for the listing and trading of Managed
Fund Shares include a representation that the Securities Exchange Act of 1934 (the
and the Prior Total Bond Releases, investors ‘‘Act’’) 2 and Rule 19b–4 thereunder,3
exchange will ‘‘surveil’’ for compliance with the
have ready access to information regarding
the Funds’ holdings, the Portfolio Indicative
continued listing requirements. See, e.g., Securities notice is hereby given that on November
Exchange Act Release No. 77499 (Apr. 1, 2016), 81 17, 2016, NYSE MKT LLC (the
Value, the Disclosed Portfolio, and quotation FR 20428 (Apr. 7, 2016) (Notice of Filing of
and last-sale information for the Shares. Amendment No. 2, and Order Granting Accelerated ‘‘Exchange’’ or ‘‘NYSE MKT’’) filed with
(7) Trading in Shares of a Fund will be Approval of a Proposed Rule Change, as Modified the Securities and Exchange
halted if the circuit breaker parameters in by Amendment No. 2, to List and Trade Shares of
sradovich on DSK3GMQ082PROD with NOTICES
NYSE Arca Equities Rule 7.12 have been the SPDR DoubleLine Short Duration Total Return obligation than ‘‘surveil’’ with respect to the
reached or because of market conditions or Tactical ETF of the SSgA Active Trust), available continued listing requirements.
for reasons that, in the view of the Exchange, at: http://www.sec.gov/rules/sro/bats/2016/34- 24 15 U.S.C. 78f(b)(5).
77499.pdf. In the context of this representation, it
make trading in the Shares inadvisable, and is the Commission’s view that ‘‘monitor’’ and
25 15 U.S.C. 78s(b)(2).
trading in the Shares will be subject to NYSE ‘‘surveil’’ both mean ongoing oversight of the
26 17 CFR 200.30–3(a)(12).
Arca Equities Rule 8.600(d)(2)(D), which sets Fund’s compliance with the continued listing
1 15 U.S.C. 78s(b)(1).
forth circumstances under which Shares of a requirements. Therefore, the Commission does not 2 15 U.S.C. 78a.
Fund may be halted. view ‘‘monitor’’ as a more or less stringent 3 17 CFR 240.19b–4.
VerDate Sep<11>2014 16:51 Nov 29, 2016 Jkt 241001 PO 00000 Frm 00047 Fmt 4703 Sfmt 4703 E:\FR\FM\30NON1.SGM 30NON1](https://thefederalregister.org/doc/81_FR_86590/page/6.svg)
Document Created: 2016-11-30 02:18:02
Document Modified: 2016-11-30 02:18:02
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| FR Citation | 81 FR 86360 |
2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR