81 FR 9889 - Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Filing of Amendments No. 1, No. 3, and No. 4 to, and Order Instituting Proceedings to Determine Whether To Approve or Disapprove, a Proposed Rule Change, as Modified by Amendments No. 1, No. 3, and No. 4, To Amend BATS Rule 14.11(i) To Adopt Generic Listing Standards for Managed Fund Shares
SECURITIES AND EXCHANGE COMMISSION Federal Register Volume 81, Issue 38 (February 26, 2016)
Federal Register Volume 81, Issue 38 (February 26, 2016)
| Page Range | 9889-9897 | |
| FR Document | 2016-04110 |
[Federal Register Volume 81, Number 38 (Friday, February 26, 2016)] [Notices] [Pages 9889-9897] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-04110] ======================================================================= ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION [Release No. 34-77202; File No. SR-BATS-2015-100)] Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Filing of Amendments No. 1, No. 3, and No. 4 to, and Order Instituting Proceedings to Determine Whether To Approve or Disapprove, a Proposed Rule Change, as Modified by Amendments No. 1, No. 3, and No. 4, To Amend BATS Rule 14.11(i) To Adopt Generic Listing Standards for Managed Fund Shares February 22, 2016. I. Introduction On November 18, 2015, BATS Exchange, Inc. (``Exchange'') filed with the Securities and Exchange Commission (``Commission''), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a proposed rule change to amend BATS Rule 14.11(i) by, among other things, adopting generic listing standards for Managed Fund Shares (defined below). The proposed rule change was published for comment in the Federal Register on November 25, 2015.\3\ On January 4, 2016, 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.\4\ On February 9, 2016, the Exchange filed Amendment No. 1 to the proposed rule change,\5\ which replaced the originally filed proposed rule change in its entirety.\6\ On February 11, 2016, the Exchange both filed and withdrew Amendment No. 2 to the proposed rule change. On February 11, 2016, the Exchange filed Amendment No. 3 to the proposed rule change.\7\ On February 17, 2016, the Exchange filed Amendment No. 4 to the proposed rule change.\8\ The Commission has not received any comments on the proposal. --------------------------------------------------------------------------- \1\ 15 U.S.C. 78s(b)(1). \2\ 17 CFR 240.19b-4. \3\ See Securities Exchange Act Release No. 76478 (Nov. 19, 2015), 80 FR 73841 (``Notice''). \4\ See Securities Exchange Act Release No. 76820, 81 FR 989 (Jan. 8, 2016). The Commission designated February 23, 2016 as the date by which the Commission shall either approve or disapprove, or institute proceedings to determine whether to disapprove, the proposed rule change. See id. \5\ Amendment No. 1: (1) Clarifies the proposed treatment of convertible securities under the proposed generic listing criteria; (2) modifies the proposed criterion regarding American Depositary Receipts (``ADRs'') to provide that no more than 10% of the equity weight of the portfolio shall consist of non-exchange traded (rather than unsponsored) ADRs; (3) modifies the proposed portfolio limit on listed derivatives to require that at least 90% of the weight of such holdings invested in futures, exchange-traded options, and listed swaps shall, on both an initial and continuing basis, consist of futures, options, and swaps for which the Exchange may obtain information via the Intermarket Surveillance Group (``ISG'') from other members or affiliates of the ISG or for which the principal market is a market with which the Exchange has a comprehensive surveillance sharing agreement (``CSSA''); (4) provides that a portfolio's investments in listed and over-the-counter (``OTC'') derivatives will be calculated for purposes the proposed limits on such holdings as the total absolute notional value of the derivatives; (5) makes certain other conforming and clarifying changes. The amendments to the proposed rule change are available at: http://www.sec.gov/comments/sr-bats-2015-100/bats2015100.shtml. \6\ See Amendment No. 1, supra note 5, at 4. \7\ Amendment No. 3 deletes from the proposal the following two sentences: (1) ``Such limitation will not apply to listed swaps because swaps are listed on swap execution facilities (``SEFs''), the majority of which are not members of ISG.'' and (2) ``Such limitation would not apply to listed swaps because swaps are listed on SEFs, the majority of which are not members of ISG.'' Amendment No. 3 also corrects an erroneous statement in Item 11 to indicate that an Exhibit 4 was included in Amendment No. 1. \8\ Amendment No. 4 deletes from the proposal the following sentence: ``Thus, if the limitation applied to swaps, there would effectively be a cap of 10% of the portfolio invested in listed swaps.'' Amendment No. 3 also amends two representations as follows (added language in brackets): The Exchange or FINRA, on behalf of the Exchange, will communicate as needed regarding trading in Managed Fund Shares [and their underlying components] with other markets that are members of the ISG, including all U.S. securities exchanges and futures exchanges on which the components are traded[, or with which the Exchange has in place a CSSA.] In addition, the Exchange or FINRA[,] on behalf of the Exchange[,] may obtain information regarding trading in Managed Fund Shares [and their underlying components] from other markets that are members of the ISG, including all U.S. securities exchanges and futures exchanges on which the components are traded, or with which the Exchange has in place a CSSA.'' --------------------------------------------------------------------------- Pursuant to Section 19(b)(1) of the Act \9\ and Rule 19b-4 thereunder,\10\ notice is hereby given that the Exchange filed with the Commission Amendments No. 1, No. 3., and No. 4 to the proposed rule change on February 9, 2016, February 11, 2016, and February 17, 2016, respectively. The proposed rule change, as modified by those amendments, is described in Sections I and II below, which Sections have been prepared by the Exchange. The Commission is publishing this notice to solicit comments on Amendments No. 1, No. 3, and No. 4 from interested persons. --------------------------------------------------------------------------- \9\ 15 U.S.C.78s(b)(1). \10\ 17 CFR 240.19b-4. --------------------------------------------------------------------------- Additionally, as discussed in Section III below, the Commission is instituting proceedings under Section 19(b)(2)(B) of the Act \11\ to determine whether to approve or disapprove the proposed rule change, as modified by Amendments No. 1, No. 3, and No. 4 thereto. --------------------------------------------------------------------------- \11\ 15 U.S.C. 78s(b)(2)(B). --------------------------------------------------------------------------- [[Page 9890]] I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange is proposing a rule change to adopt generic listing standards for shares listed under BATS Rule 14.11(i) (``Managed Fund Shares''). The text of the proposed rule change is available at the Exchange's Web site at www.batstrading.com, at the principal office of the Exchange, and at the Commission's Public Reference Room. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose This Amendment No. 1 to SR-BATS-2015-100 amends and replaces in its entirety the proposal as originally submitted on November 15, 2015. The Exchange submits this Amendment No. 1 in order to clarify certain points about the proposal as well as to describe more accurately how investments in derivative securities will be treated. The Exchange proposes to amend Rule 14.11(i) to adopt generic listing standards for Managed Fund Shares. Under the Exchange's current rules, a proposed rule change must be filed with the Securities and Exchange Commission (``SEC'' or ``Commission'') for the listing and trading of each new series of Managed Fund Shares. The Exchange believes that it is appropriate to codify certain rules within Rule 14.11(i) that would generally eliminate the need for such proposed rule changes, which would create greater efficiency and promote uniform standards in the listing process. Background Rule 14.11(i) sets forth certain rules related to the listing and trading of Managed Fund Shares.\12\ Under Rule 14.11(i)(3)(A), the term ``Managed Fund Share'' means a security that: --------------------------------------------------------------------------- \12\ See Securities Exchange Act Release No. 65225 (August 30, 2011), 76 FR 55148 (September 6, 2011) (SR-BATS-2011-018) (Order Approving Proposed Rule Change to Adopt Rules for the Qualification, Listing and Delisting of Companies on the Exchange) (the ``Approval Order''). The Approval Order approved the rules permitting the listing of both Tier I and Tier II securities on the Exchange and the requirements associated therewith, which includes the listing and trading of Index Fund Shares and Managed Fund Shares, trading hours and halts, and listing fees originally applicable to Managed Fund Shares. --------------------------------------------------------------------------- (a) Represents an interest in a registered investment company (``Investment Company'') organized as an open-end management investment company or similar entity, that invests in a portfolio of securities selected by the Investment Company's investment adviser (hereafter ``Adviser'') consistent with the Investment Company's investment objectives and policies; (b) is issued in a specified aggregate minimum number in return for a deposit of a specified portfolio of securities and/or a cash amount with a value equal to the next determined net asset value; and (c) when aggregated in the same specified minimum number, may be redeemed at a holder's request, which holder will be paid a specified portfolio of securities and/or cash with a value equal to the next determined net asset value. Effectively, Managed Fund Shares are securities issued by an actively-managed open-end Investment Company (i.e., an exchange-traded fund (``ETF'') that is actively managed). Because Managed Fund Shares are actively-managed, they do not seek to replicate the performance of a specified passive index of securities. Instead, they generally use an active investment strategy to seek to meet their investment objectives. In contrast, an open-end Investment Company that issues Index Fund Shares, listed and traded on the Exchange pursuant to Rule 14.11(c), seeks to provide investment results that generally correspond to the price and yield performance of a specific foreign or domestic stock index, fixed income securities index, or combination thereof. All Managed Fund Shares listed pursuant to Rule 14.11(i) are included within the definition of ``security'' or ``securities'' as such terms are used in the Rules of the Exchange and, as such, are subject to the full panoply of Exchange rules and procedures that currently govern the trading of securities on the Exchange.\13\ --------------------------------------------------------------------------- \13\ See Rule 14.11(i)(2). --------------------------------------------------------------------------- In addition, Rule 14.11(i) currently provides for the criteria that Managed Fund Shares must satisfy for initial and continued listing on the Exchange, including, for example, that a minimum number of Managed Fund Shares are required to be outstanding at the time of commencement of trading on the Exchange. However, the current process for listing and trading new series of Managed Fund Shares on the Exchange requires that the Exchange submit a proposed rule change with the Commission. In this regard, Rule 14.11(i)(2)(A) specifies that the Exchange will file separate proposals under Section 19(b) of the Act (hereafter, a ``proposed rule change'') before the listing of Managed Fund Shares, which, in conjunction with the proposal to create generic listing standards for Managed Fund Shares, the Exchange is proposing to delete. Proposed Changes to Rule 14.11(i) The Exchange is proposing to amend Rule 14.11(i) to specify that the Exchange may approve Managed Fund Shares for listing pursuant to SEC Rule 19b-4(e) under the Act, which pertains to derivative securities products (``SEC Rule 19b-4(e)'').\14\ SEC Rule 19b-4(e)(1) provides that the listing and trading of a new derivative securities product by a self-regulatory organization (``SRO'') is not deemed a proposed rule change, pursuant to paragraph (c)(1) of Rule 19b-4,\15\ if the Commission has approved, pursuant to section 19(b) of the Act, the SRO's trading rules, procedures and listing standards for the product class that would include the new derivative securities product and the SRO has a surveillance program for the product class. This is the current method pursuant to which ``passive'' ETFs are listed under Rule 14.11. --------------------------------------------------------------------------- \14\ 17 CFR 240.19b-4(e). As provided under SEC Rule 19b-4(e), the term ``new derivative securities product'' means any type of option, warrant, hybrid securities product or any other security, other than a single equity option or a security futures product, whose value is based, in whole or in part, upon the performance of, or interest in, an underlying instrument. \15\ 17 CFR 240.19b-4(c)(1). As provided under SEC Rule 19b- 4(c)(1), a stated policy, practice, or interpretation of the SRO shall be deemed to be a proposed rule change unless it is reasonably and fairly implied by an existing rule of the SRO. --------------------------------------------------------------------------- The Exchange would also specify within Rule 14.11(i)(4)(C) that components of Managed Fund Shares listed pursuant to SEC Rule 19b-4(e) must satisfy the requirements of Rule 14.11(i) on an initial and continued basis, which includes certain specific criteria that the Exchange is proposing to include within Rule 14.11(i)(4)(C), as described in greater detail below. As proposed, the Exchange would continue to file separate proposed rule changes before the listing and trading of Managed Fund Shares with components [[Page 9891]] that do not satisfy the additional criteria described below or components other than those specified below. For example, if the components of a Managed Fund Share exceeded one of the applicable thresholds, the Exchange would file a separate proposed rule change before listing and trading such Managed Fund Share. Similarly, if the components of a Managed Fund Share included a security or asset that is not specified below, the Exchange would file a separate proposed rule change. The Exchange would also amend the definition of the term ``Disclosed Portfolio'' under Rule 14.11(i)(3)(B) in order to require that the Web site for each series of Managed Fund Shares listed on the Exchange disclose the following information regarding the Disclosed Portfolio, to the extent applicable: ticker symbol, CUSIP or other identifier, a description of the holding, identity of the asset upon which the derivative is based, the strike price for any options, the quantity of each security or other asset held as measured by select metrics, maturity date, coupon rate, effective date, market value and percentage weight of the holding in the portfolio.\16\ --------------------------------------------------------------------------- \16\ Proposed rule changes for previously-listed series of Managed Fund Shares have similarly included disclosure requirements with respect to each portfolio holding, as applicable to the type of holding. See, e.g., Securities Exchange Act Release No. 72666 (July 3, 2014), 79 FR 44224 (July 30, 2014) (SR-NYSEArca-2013-122) (the ``PIMCO Total Return Use of Derivatives Approval''). --------------------------------------------------------------------------- The Exchange would also add to Rule 14.11(i)(4)(A) by specifying that all Managed Fund Shares must have a stated investment objective, which must be adhered to under normal market conditions.\17\ --------------------------------------------------------------------------- \17\ The Exchange would also add a new defined term under Rule 14.11(i)(3)(E) to specify that the term ``normal market conditions'' includes, but is not limited to, the absence of trading halts in the applicable financial markets generally; operational issues causing dissemination of inaccurate market information; or force majeure type events such as systems failure, natural or man-made disaster, act of God, armed conflict, act of terrorism, riot or labor disruption, or any similar intervening circumstance. --------------------------------------------------------------------------- Finally, the Exchange would also amend the continued listing requirement in Rule 14.11(i)(4)(B) by changing the requirement that an Intraday Indicative Value for Managed Fund Shares be widely disseminated by one or more major market data vendors at least every 15 seconds during the time when the Managed Fund Shares trade on the Exchange to a requirement that an Intraday Indicative Value be widely disseminated by one or more major market data vendors at least every 15 seconds during Regular Trading Hours, as defined in Exchange Rule 1.5(w). Proposed Managed Fund Share Portfolio Standards The Exchange is proposing standards that would pertain to Managed Fund Shares to qualify for listing and trading pursuant to SEC Rule 19b-4(e). These standards would be grouped according to security or asset type. The Exchange notes that the standards proposed for a Managed Fund Share portfolio that holds equity securities, Derivative Securities Products, and Linked Securities are based in large part on the existing equity security standards applicable to Index Fund Shares in Exchange Rule 14.11(c)(3). The standards proposed for a Managed Fund Share portfolio that holds fixed income securities are based in large part on the existing fixed income security standards applicable to Index Fund Shares in Rule 14.11(c)(4). Many of the standards proposed for other types of holdings in a Managed Fund Share portfolio are based on previous proposed rule changes for specific series of Managed Fund Shares.\18\ --------------------------------------------------------------------------- \18\ Securities Exchange Act Release Nos. 74193 (February 3, 2015), 80 FR 7066 (February 9, 2015) (SR-BATS-2014-054) (the ``iShares Short Maturity Municipal Bond Approval''); 74297 (February 18, 2015), 80 FR 9788 (February 24, 2015) (SR-BATS-2014-056) (the ``iShares U.S. Fixed Income Balanced Risk Approval''); 66321 (February 3, 2012), 77 FR 6850 (February 9, 2012) (SR-NYSEArca-2011- 95) (the ``PIMCO Total Return Approval''); the PIMCO Total Return Use of Derivatives Approval; 69244 (March 27, 2013), 78 FR 19766 (April 2, 2013) (SR-NYSEArca-2013-08) (the ``SPDR Blackstone/GSO Senior Loan Approval''); 68870 (February 8, 2013), 78 FR 11245 (February 15, 2013) (SR-NYSEArca-2012-139) (the ``First Trust Preferred Securities and Income Approval''); 69591 (May 16, 2013), 78 FR 30372 (May 22, 2013) (SR-NYSEArca-2013-33) (the ``International Bear Approval''); 61697 (March 12, 2010), 75 FR 13616 (March 22, 2010) (SR-NYSEArca--2010-04) (the ``WisdomTree Real Return Approval''); and 67054 (May 24, 2012), 77 FR 32161 (May 31, 2012) (SR-NYSEArca-2012-25) (the ``WisdomTree Brazil Bond Approval''). Certain standards proposed herein for Managed Fund Shares are also based on previously proposed rule changes for specific index-based series of Index Fund Shares that did not satisfy the standards for those products on their respective listing exchange and for which Commission approval was required prior to listing and trading. See Securities Exchange Act Release Nos. 67985 (October 4, 2012), 77 FR 61804 (October 11, 2012) (SR-NYSEArca-2012- 92); 63881(February 9, 2011), 76 FR 9065 (February 16, 2011) (SR- NYSEArca-2010-120); 63176 (October 25, 2010), 75 FR 66815 (October 29, 2010) (SR-NYSEArca-2010-94); and 69373 (April 15, 2013), 78 FR 23601 (April 19, 2013) (SR-NYSEArca-2012-108) (the ``NYSE Arca U.S. Equity Synthetic Reverse Convertible Index Fund Approval''). --------------------------------------------------------------------------- Proposed Rule 14.11(i)(4)(C)(i) would describe the standards for a Managed Fund Share portfolio that holds equity securities, which are defined to be U.S. Component Stocks,\19\ Non-U.S. Component Stocks,\20\ Derivative Securities Products,\21\ and Linked Securities \22\ listed on a national securities exchange. For Derivative Securities Products and Linked Securities, no more than 25% of the equity weight of the portfolio could include leveraged and/or inverse leveraged Derivative Securities Products or Linked Securities. To the extent that a portfolio includes convertible securities, the equity security into which such security is converted shall meet the criteria of this Rule 14.11(i)(4)(C)(i) after converting. --------------------------------------------------------------------------- \19\ For the purposes of Rule 14.11(i) and this proposal, the term ``U.S. Component Stocks'' will have the same meaning as defined in Rule 14.11(c)(1)(D). \20\ For the purposes of Rule 14.11(i) and this proposal, the term ``Non-U.S. Component Stocks'' will have the same meaning as defined in Rule 14.11(c)(1)(E). \21\ For the purposes of Rule 14.11(i) and this proposal, the term ``Derivative Securities Products will have the same meaning as defined in Rule 14.11(c)(3)(A)(i)(a). \22\ Linked Securities are the securities eligible for listing on the Exchange under Rule 14.11(d). --------------------------------------------------------------------------- As proposed in Rule 14.11(i)(4)(C)(i)(a), the component stocks of the equity portion of a portfolio that are U.S. Component Stocks shall meet the following criteria initially and on a continuing basis: (1) Component stocks (excluding Derivative Securities Products and Linked Securities) that in the aggregate account for at least 90% of the equity weight of the portfolio (excluding such Derivative Securities Products and Linked Securities) each must have a minimum market value of at least $75 million; \23\ --------------------------------------------------------------------------- \23\ The proposed text is identical to the corresponding text of Rule 14.11(c)(3)(A)(i)(a), except for the omission of the reference to ``index,'' which is not applicable, and the addition of the reference to Linked Securities. --------------------------------------------------------------------------- (2) Component stocks (excluding Derivative Securities Products and Linked Securities) that in the aggregate account for at least 70% of the equity weight of the portfolio (excluding such Derivative Securities Products and Linked Securities) each must have a minimum monthly trading volume of 250,000 shares, or minimum notional volume traded per month of $25,000,000, averaged over the last six months; \24\ --------------------------------------------------------------------------- \24\ This proposed text is identical to the corresponding text of Rule 14.11(c)(3)(A)(i)(b), except for the omission of the reference to ``index,'' which is not applicable, and the addition of the reference to Linked Securities. --------------------------------------------------------------------------- (3) The most heavily weighted component stock (excluding Derivative Securities Products and Linked Securities) must not exceed 30% of the equity weight of the portfolio, and, to the extent applicable, the five most heavily weighted component stocks (excluding Derivative Securities Products and Linked Securities) must [[Page 9892]] not exceed 65% of the equity weight of the portfolio; \25\ --------------------------------------------------------------------------- \25\ This proposed text is identical to the corresponding text of Rule 14.11(c)(3)(A)(i)(c), except for the omission of the reference to ``index,'' which is not applicable, and the addition of the reference to Linked Securities. --------------------------------------------------------------------------- (4) Where the equity portion of the portfolio does not include Non- U.S. Component Stocks, the equity portion of the portfolio shall include a minimum of 13 component stocks; provided, however, that there would be no minimum number of component stocks if (a) one or more series of Derivative Securities Products or Linked Securities constitute, at least in part, components underlying a series of Managed Fund Shares, or (b) one or more series of Derivative Securities Products or Linked Securities account for 100% of the equity weight of the portfolio of a series of Managed Fund Shares; \26\ --------------------------------------------------------------------------- \26\ This proposed text is identical to the corresponding text of Rule 14.11(c)(3)(A)(i)(d), except for the omission of the reference to ``index,'' which is not applicable, the addition of the reference to Linked Securities, the reference to the equity portion of the portfolio not including Non-U.S. Component Stocks, and the reference to the 100% limitation applying to the ``equity weight'' of the portfolio--this last difference is included because the proposed standards in Rule 14.11(i)(4)(C) permit the inclusion of non-equity securities, whereas Rule 14.11(c)(3) applies only to equity securities. --------------------------------------------------------------------------- (5) Except as provided in proposed Rule 14.11(i)(4)(C)(i)(a), equity securities in the portfolio must be U.S. Component Stocks listed on a national securities exchange and must be NMS Stocks as defined in Rule 600 of Regulation NMS; \27\ and --------------------------------------------------------------------------- \27\ 17 CFR 240.600. This proposed text is identical to the corresponding text of Rule 14.11(c)(3)(A)(i)(e), except for the addition of ``equity'' to make clear that the standard applies to ``equity securities'' and the omission of the reference to ``index,'' which is not applicable. --------------------------------------------------------------------------- (6) American Depositary Receipts (``ADRs'') may be exchange traded or non-exchange traded. However no more than 10% of the equity weight of the portfolio shall consist of non-exchange traded ADRs. As proposed in Rule 14.11(i)(4)(C)(i)(b), the component stocks of the equity portion of a portfolio that are Non-U.S. Component Stocks shall meet the following criteria initially and on a continuing basis: (1) Non-U.S. Component Stocks each shall have a minimum market value of at least $100 million; \28\ --------------------------------------------------------------------------- \28\ The proposed text is identical to the corresponding representation from the Non-U.S. Components Release, as defined in footnote 24, below. The proposed text is also identical to the corresponding text of Rule 14.11(c)(3)(A)(ii)(a), except for the omission of the reference to ``index,'' which is not applicable, and that each Non-U.S. Component Stock must have a minimum market value of at least $100 million instead of the 70% required under Rule 14.11(c)(3)(A)(ii)(a). --------------------------------------------------------------------------- (2) Non-U.S. Component Stocks each shall have a minimum global monthly trading volume of 250,000 shares, or minimum global notional volume traded per month of $25,000,000, averaged over the last six months; \29\ --------------------------------------------------------------------------- \29\ The proposed text is identical to the corresponding representation from the Non-U.S. Components Release, as defined in footnote 24, below. This proposed text is identical to the corresponding text of Rule 14.11(c)(3)(A)(ii)(b), except for the omission of the reference to ``index,'' which is not applicable, and the addition of the reference to Linked Securities. --------------------------------------------------------------------------- (3) The most heavily weighted Non-U.S. Component Stock shall not exceed 25% of the equity weight of the portfolio, and, to the extent applicable, the five most heavily weighted Non-U.S. Component Stocks shall not exceed 60% of the equity weight of the portfolio; \30\ --------------------------------------------------------------------------- \30\ This proposed text is identical to the corresponding text of Rule 14.11(c)(3)(A)(ii)(c), except for the omission of the reference to ``index,'' which is not applicable, and the addition of the reference to Linked Securities. --------------------------------------------------------------------------- (4) Where the equity portion of the portfolio includes Non-U.S. Component Stocks, the equity portion of the portfolio shall include a minimum of 20 component stocks; provided, however, that there shall be no minimum number of component stocks if (a) one or more series of Derivative Securities Products or Linked Securities constitute, at least in part, components underlying a series of Managed Fund Shares, or (b) one or more series of Derivative Securities Products or Linked Securities account for 100% of the equity weight of the portfolio of a series of Managed Fund Shares; \31\ and --------------------------------------------------------------------------- \31\ This proposed text is identical to the corresponding text of Rule 14.11(c)(3)(A)(ii)(d), except for the omission of the reference to ``index,'' which is not applicable, the addition of the reference to Linked Securities, the reference to the equity portion of the portfolio including Non-U.S. Component Stocks, and the reference to the 100% limitation applying to the ``equity weight'' of the portfolio--this last difference is included because the proposed standards in Rule 14.11(i)(4)(C) permit the inclusion of non-equity securities, whereas Rule 14.11(c)(3) applies only to equity securities. --------------------------------------------------------------------------- (5) Each Non-U.S. Component Stock shall be listed and traded on an exchange that has last-sale reporting.\32\ --------------------------------------------------------------------------- \32\ 17 CFR 240.600. This proposed text is identical to the corresponding text of Rule 14.11(c)(3)(A)(ii)(e), except for the addition of ``equity'' to make clear that the standard applies to ``equity securities'' and the omission of the reference to ``index,'' which is not applicable. --------------------------------------------------------------------------- The Exchange notes that, as approved by the Commission for certain Managed Fund Shares \33\ and also not required under corresponding Rule 14.11(c)(3)(A)(ii) related to Index Fund Shares,\34\ it is not proposing to require that any of the equity portion of the equity portfolio composed of Non-U.S. Component Stocks be listed on markets that are either a member of the Intermarket Surveillance Group (``ISG'') or a market with which the Exchange has a comprehensive surveillance sharing agreement (``CSSA'').\35\ However, as further detailed below, the Exchange or the Financial Industry Regulatory Authority, Inc. (``FINRA''), on behalf of the Exchange, will communicate as needed regarding trading in Managed Fund Shares with other markets that are members of the ISG, including all U.S. securities exchanges and futures exchanges on which the components are traded. --------------------------------------------------------------------------- \33\ See Securities Exchange Act Release No. 75023 (May 21, 2015), 80 FR 30519 (May 28, 2015) (SR-NYSEArca-2014-100) (the ``Non- U.S. Components Release''). \34\ Under Rule 14.11(c)(3)(A)(ii), index fund shares with components that include Non-U.S. Component Stocks can hold a portfolio that is entirely composed of Non-U.S. Component Stocks that are listed on markets that are neither members of ISG, nor with which the Exchange has in place a CSSA. \35\ ISG is comprised of an international group of exchanges, market centers, and market regulators that perform front-line market surveillance in their respective jurisdictions. See https://www.isgportal.org/home.html. --------------------------------------------------------------------------- Proposed Rule 14.11(i)(4)(C)(ii) would describe the standards for a Managed Fund Share portfolio that holds fixed income securities, which are debt securities \36\ that are notes, bonds, debentures or evidence of indebtedness that include, but are not limited to, U.S. Department of Treasury securities (``Treasury Securities''), government-sponsored entity securities (``GSE Securities''), municipal securities, trust preferred securities, supranational debt and debt of a foreign country or a subdivision thereof, investment grade and high yield corporate debt, bank loans, mortgage and asset backed securities, and commercial paper. To the extent that a portfolio includes convertible securities, the fixed income security into which such security is converted shall meet the criteria of proposed Rule 14.11(i)(4)(C)(ii) after converting. The components of the fixed income portion of a portfolio shall meet the following criteria initially and on a continuing basis: --------------------------------------------------------------------------- \36\ Debt securities include a variety of fixed income obligations, including, but not limited to, corporate debt securities, government securities, municipal securities, convertible securities, and mortgage-backed securities. Debt securities include investment-grade securities, non-investment-grade securities, and unrated securities. Debt securities also include variable and floating rate securities. --------------------------------------------------------------------------- (1) Components that in the aggregate account for at least 75% of the fixed income weight of the portfolio shall each have a minimum original principal [[Page 9893]] amount outstanding of $100 million or more; \37\ --------------------------------------------------------------------------- \37\ This proposed text of 14.11(i)(4)(C)(ii)(a)(1) is based on the corresponding text of 14.11(c)(4)(B)(i)(b). --------------------------------------------------------------------------- (2) No component fixed-income security (excluding Treasury Securities and GSE Securities) could represent more than 30% of the fixed income weight of the portfolio, and the five most heavily weighted fixed income securities in the portfolio shall not in the aggregate account for more than 65% of the fixed income weight of the portfolio; \38\ --------------------------------------------------------------------------- \38\ This proposed rule text is identical to the corresponding text of Rule 14.11(c)(4)(B)(i)(d), except for the omission of the reference to ``index,'' which is not applicable, and the exclusion of ``GSE Securities,'' which is consistent with the corresponding text of NYSE Arca, Inc. (``Arca'') Commentary .02(a)(4) to Rule 5.2(j)(3). --------------------------------------------------------------------------- (3) An underlying portfolio (excluding exempted securities) that includes fixed income securities shall include a minimum of 13 non- affiliated issuers, provided, however, that there shall be no minimum number of non-affiliated issuers required for fixed income securities if at least 70% of the weight of the portfolio consists of equity securities as described in Rule 14.11(i)(4)(C)(i); \39\ --------------------------------------------------------------------------- \39\ This proposed text is similar to the corresponding text of Rule 14.11(c)(4)(B)(i)(e), except for the omission of the reference to ``index,'' which is not applicable and the provision that there shall be no minimum number of non-affiliated issuers required for fixed income securities if at least 70% of the weight of the portfolio consists of equity securities as described in proposed Rule 14.11(i)(4)(C)(i). --------------------------------------------------------------------------- (4) Component securities that in aggregate account for at least 90% of the fixed income weight of the portfolio must be either: (a) From issuers that are required to file reports pursuant to Sections 13 and 15(d) of the Act; (b) from issuers that have a worldwide market value of its outstanding common equity held by non-affiliates of $700 million or more; (c) from issuers that have outstanding securities that are notes, bonds, debentures, or evidence of indebtedness having a total remaining principal amount of at least $1 billion; (d) exempted securities as defined in Section 3(a)(12) of the Act; or (e) from issuers that are a government of a foreign country or a political subdivision of a foreign country; and (5) Non-agency, non-GSE and privately-issued mortgage-related and other asset-backed securities components of a portfolio shall not account, in the aggregate, for more than 20% of the weight of the fixed income portion of the portfolio. Proposed Rule 14.11(i)(4)(C)(iii) describes the standards for a Managed Fund Share portfolio that holds cash and cash equivalents.\40\ Specifically, the portfolio may hold short-term instruments with maturities of less than 3 months. There would be no limitation to the percentage of the portfolio invested in such holdings. Short-term instruments would include the following: \41\ (1) U.S. Government securities, including bills, notes and bonds differing as to maturity and rates of interest, which are either issued or guaranteed by the U.S. Treasury or by U.S. Government agencies or instrumentalities; (2) certificates of deposit issued against funds deposited in a bank or savings and loan association; (3) bankers' acceptances, which are short-term credit instruments used to finance commercial transactions; (4) repurchase agreements and reverse repurchase agreements; (5) bank time deposits, which are monies kept on deposit with banks or savings and loan associations for a stated period of time at a fixed rate of interest; (6) commercial paper, which are short-term unsecured promissory notes; and (7) money market funds. --------------------------------------------------------------------------- \40\ Proposed rule changes for previously-listed series of Managed Fund Shares have similarly included the ability for such Managed Fund Share holdings to include cash and cash equivalents. See, e.g., iShares U.S. Fixed Income Balanced Risk Approval at 9789, SPDR Blackstone/GSO Senior Loan Approval at 19768-69, and First Trust Preferred Securities and Income Approval at 76150. \41\ Proposed rule changes for previously-listed series of Managed Fund Shares have similarly specified short-term instruments with respect to their inclusion in Managed Fund Share holdings. See, e.g., First Trust Preferred Securities and Income Approval at 76150- 51. --------------------------------------------------------------------------- Proposed Rule 14.11(i)(4)(C)(iv) describes the standards for a Managed Fund Share portfolio that holds listed derivatives, including futures, options and swaps on commodities, currencies and financial instruments (e.g., stocks, fixed income, interest rates, and volatility) or a basket or index of any of the foregoing.\42\ There would be no limitation to the percentage of the portfolio invested in such holdings; provided, however, that, in the aggregate, at least 90% of the weight of such holdings invested in futures, exchange-traded options, and listed swaps shall, on both an initial and continuing basis, consist of futures, options, and swaps for which the Exchange may obtain information via the ISG from other members or affiliates or for which the principal market is a market with which the Exchange has a comprehensive surveillance sharing agreement CSSA.\43\ The Exchange notes that, for purposes of calculating this limitation, a portfolio's investment in listed derivatives will be calculated as the total absolute notional value of the listed derivatives. --------------------------------------------------------------------------- \42\ Proposed rule changes for previously-listed series of Managed Fund Shares have similarly included the ability for such Managed Fund Share holdings to include listed derivatives. See, e.g., Securities Exchange Act Release Nos. 75 FR 13616 (March 22, 2010) (SR-NYSEArca-2010-04) at 13617; and 67054 (May 24, 2012), 77 FR 32161 (May 31, 2012) (SR-NYSEArca-2012-25) at 32163. \43\ See supra note 35. The Commission notes that, pursuant to Amendment No. 3, supra note 7, a sentence that followed the reference to this footnote in the text above has been deleted from the text of the proposal as amended by Amendment No. 1. --------------------------------------------------------------------------- Proposed Rule 14.11(i)(4)(C)(v) describes the standards for a Managed Fund Share portfolio that holds over the counter (``OTC'') derivatives, including forwards, options and swaps on commodities, currencies and financial instruments (e.g., stocks, fixed income, interest rates, and volatility) or a basket or index of any of the foregoing.\44\ Proposed Rule 14.11(i)(4)(C)(v) also provides that no more than 20% of the assets in the portfolio may be invested in OTC derivatives. --------------------------------------------------------------------------- \44\ Proposed rule changes for previously-listed series of Managed Fund Shares have similarly included the ability for such Managed Fund Shares to include OTC derivatives, specifically OTC down-and-in put options, which are not NMS Stocks as defined in Rule 600 of Regulation NMS and therefore would not satisfy the requirements of Rule 14.11(c)(3)(A)(i) or the analogous rule on another listing exchange. See, e.g., Securities Exchange Act Release No. 69373 (April 15, 2013), 78 FR 23601 (April 19, 2013) (SR- NYSEArca-2012-108) at 23602. --------------------------------------------------------------------------- Proposed Rule 14.11(i)(4)(C)(vi) provides that, to the extent that listed or OTC derivatives are used to gain exposure to individual equities and/or fixed income securities, or to indexes of equities and/ or fixed income securities, such equities and/or fixed income securities, as applicable, shall meet the criteria set forth in Rule 14.11(i)(4)(C)(i) and 14.11(i)(4)(C)(ii), respectively. The Exchange notes that, for purposes of this proposal, a portfolio's investment in OTC derivatives will be calculated as the total absolute notional value of the OTC derivatives. The Exchange believes that the proposed standards would continue to ensure transparency surrounding the listing process for Managed Fund Shares. Additionally, the Exchange believes that the proposed portfolio standards for listing and trading Managed Fund Shares, many of which track existing Exchange rules relating to Index Fund Shares, are reasonably designed to promote a fair and orderly market for such Managed Fund Shares. These proposed standards would also work in conjunction with the existing initial and continued listing criteria related to surveillance procedures and trading guidelines. In support of this proposal, the Exchange represents that: (1) [[Page 9894]] Generically listed Managed Fund Shares will conform to the initial and continued listing criteria under Rule 14.11(i)(4)(A) and (B); (2) the Exchange's surveillance procedures are adequate to continue to properly monitor the trading of the Managed Fund Shares in all trading sessions and to deter and detect violations of Exchange rules. Specifically, the Exchange intends to utilize its existing surveillance procedures applicable to derivative products, which will include Managed Fund Shares, to monitor trading in the Managed Fund Shares; (3) prior to the commencement of trading of a particular series of Managed Fund Shares, the Exchange will inform its Members in an information circular of the special characteristics and risks associated with trading the Managed Fund Shares, including procedures for purchases and redemptions of Managed Fund Shares, suitability requirements under Rule 3.7, the risks involved in trading the Managed Fund Shares during the Pre-Opening and After Hours Trading Sessions when an updated Intraday Indicative Value will not be calculated or publicly disseminated, how information regarding the Intraday Indicative Value and Disclosed Portfolio is disseminated, prospectus delivery requirements, and other trading information. In addition, the information circular will disclose that the Managed Fund Shares are subject to various fees and expenses, as described in the registration statement, and will discuss any exemptive, no-action, and interpretive relief granted by the Commission from any rules under the Act. Finally, the Bulletin will disclose that the net asset value for the Managed Fund Shares will be calculated after 4 p.m. ET each trading day; and (4) the issuer of a series of Managed Fund Shares will be required to comply with Rule 10A-3 under the Act for the initial and continued listing of Managed Fund Shares, as provided under Rule 14.10(c)(3). The Exchange notes that the proposed change is not otherwise intended to address any other issues and that the Exchange is not aware of any problems that Members or issuers would have in complying with the proposed change. 2. Statutory Basis The Exchange believes that the proposal is consistent with Section 6(b) of the Act \45\ in general and Section 6(b)(5) of the Act \46\ in particular in that it is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system and, in general, to protect investors and the public interest. --------------------------------------------------------------------------- \45\ 15 U.S.C. 78f. \46\ 15 U.S.C. 78f(b)(5). --------------------------------------------------------------------------- The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest because it would facilitate the listing and trading of additional Managed Fund Shares, which would enhance competition among market participants, to the benefit of investors and the marketplace. Specifically, after more than six years under the current process, whereby an exchange is required to file a proposed rule change with the Commission for the listing and trading of each new series of Managed Fund Shares, the Exchange believes that it is appropriate to codify certain rules within Rule 14.11(i) that would generally eliminate the need for separate proposed rule changes. The Exchange believes that this would facilitate the listing and trading of additional types of Managed Fund Shares that have investment portfolios that are similar to investment portfolios for Index Fund Shares, which have been approved for listing and trading, thereby creating greater efficiencies in the listing process for the Exchange and the Commission. In this regard, the Exchange notes that the standards proposed for Managed Fund Share portfolios that include equity securities, Derivative Securities Products, and Linked Securities are based in large part on the existing equity security standards applicable to Index Fund Shares based on either a U.S. index or portfolio or an international or global index or portfolio found in Rule 14.11(c)(3)(A)(i) \47\ and (ii),\48\ respectively, and that the standards proposed for Managed Fund Share portfolios that include fixed income securities are based in large part on the existing fixed income standards applicable to Index Fund Shares in 14.11(c)(4). Additionally, many of the standards proposed for other types of holdings of series of Managed Fund Shares are based on previous proposed rule changes for specific series of Managed Fund Shares.\49\ --------------------------------------------------------------------------- \47\ See supra notes 23 through 27. \48\ See supra notes 28 through 35. \49\ See supra note 18. --------------------------------------------------------------------------- With respect to the proposed addition to the criteria of Rule 14.11(i)(3)(B) to provide that the Web site for each series of Managed Fund Shares shall disclose certain information regarding the Disclosed Portfolio, to the extent applicable, the Exchange notes that proposed rule changes approved by the Commission for previously-listed series of Managed Fund Shares have similarly included disclosure requirements with respect to each portfolio holding, as applicable to the type of holding.\50\ With respect to the proposed exclusion of Derivative Securities Products and Linked Securities from the requirements of proposed Rule 14.11(i)(4)(C)(i)(a) and (b), the Exchange believes it is appropriate to exclude Linked Securities as well as Derivative Securities Products from certain component stock eligibility criteria for Managed Fund Shares in so far as Derivative Securities Products and Linked Securities are themselves subject to specific quantitative listing and continued listing requirements of a national securities exchange on which such securities are listed. Derivative Securities Products and Linked Securities that are components of a fund's portfolio would have been listed and traded on a national securities exchange pursuant to a proposed rule change approved by the Commission pursuant to Section 19(b)(2) of the Act \51\ or submitted by a national securities exchange pursuant to Section 19(b)(3)(A) of the Act \52\ or would have been listed by a national securities exchange pursuant to the requirements of Rule 19b-4(e) under the Act.\53\ The Exchange also notes that Derivative Securities Products and Linked Securities are derivatively priced, and, therefore, the Exchange believes that it would not be necessary to apply the proposed generic quantitative criteria (e.g., market capitalization, trading volume, or portfolio component weighting) applicable to equity securities other than Derivative Securities Products or Linked Securities (e.g., common stocks) to such products. --------------------------------------------------------------------------- \50\ See supra note 16. \51\ 15 U.S.C. 78s(b)(2). \52\ 15 U.S.C. 78s(b)(3)(A). \53\ 17 CFR 240.19b-4(e). --------------------------------------------------------------------------- With respect to the proposed amendment to the continued listing requirement in Rule 14.11(i)(4)(B)(i) to require dissemination of an Intraday Indicative Value at least every 15 seconds during Regular Trading Hours, such requirement conforms to the requirement applicable to the dissemination of the Intraday Indicative Value for Index Fund Shares in Rule 14.11(c)(3)(C) and 14.11(c)(6)(A). In addition, such dissemination is consistent with representations made in proposed rule changes for issues of Managed Fund Shares previously approved by the Commission.\54\ --------------------------------------------------------------------------- \54\ See supra note 18. --------------------------------------------------------------------------- [[Page 9895]] As proposed, pursuant to Rule 14.11(i)(4)(C)(ii)(c) an underlying portfolio (excluding exempted securities) that includes fixed income securities must include a minimum of 13 non-affiliated issuers, provided, however, that there would be no minimum number of non- affiliated issuers required for fixed income securities if at least 70% of the weight of the portfolio consists of equity securities. The Exchange notes that when evaluated in conjunction with proposed Rule 14.11(i)(4)(C)(ii)(b), the proposed rule is consistent with current Rules 14.11(c)(4)(B)(i)(d) and (e) in that it provides for a maximum weighting of a fixed income security in the fixed income portion of the portfolio of a fund that is comparable to the existing rules applicable to Index Fund Shares based on fixed income indexes. With respect to the proposed amendment to Rule 14.11(i)(4)(C)(iii) relating to cash and cash equivalents, while there is no limitation on the amount of cash and cash equivalents can make up of the portfolio, such instruments are short-term, highly liquid, and of high credit quality, making them less susceptible than other asset classes both to price manipulation and volatility. Further, the requirement is consistent with representations made in proposed rule changes for issues of Managed Fund Shares previously approved by the Commission.\55\ --------------------------------------------------------------------------- \55\ See supra note 40. --------------------------------------------------------------------------- With respect to proposed Rule 14.11(i)(4)(C)(iv) relating to listed derivatives, the Exchange believes that it is appropriate that there be no limit to the percentage of a portfolio invested in such holdings, provided that, in the aggregate, at least 90% of the weight of such holdings invested in futures, exchange-traded options, and listed swaps would consist of futures, options, and swaps for which the Exchange may obtain information via ISG from other members or affiliates or for which the principal market is a market with which the Exchange has a CSSA. Such a requirement would facilitate information sharing among market participants trading shares of a series of Managed Fund Shares as well as futures and options that such series may hold.\56\ In addition, listed swaps would be centrally cleared, reducing counterparty risk and thereby furthering investor protection.\57\ --------------------------------------------------------------------------- \56\ The Commission notes that, pursuant to Amendments No. 3, supra note 7, and No. 4, supra note 8, two sentences that followed the reference to this footnote in the text above has been deleted from the text of the proposal as amended by Amendment No. 1. \57\ The Commission has noted that ``[c]entral clearing mitigates counterparty risk among dealers and other institutions by shifting that risk from individual counterparties to [central counterparties (``CCPs'')], thereby protecting CCPs from each other's potential failures.'' See Securities Exchange Act Release No. 67286 (June 28, 2012) (File No. S7-44-10) (Process for Submissions for Review of Security-Based Swaps for Mandatory Clearing and Notice Filing Requirements for Clearing Agencies). --------------------------------------------------------------------------- With respect to proposed Rule 14.11(i)(4)(C)(v) relating to OTC derivatives, the Exchange believes that the limitation to 20% of a fund's assets would assure that, to the extent that a fund holds derivatives, the preponderance of fund investments would not be in derivatives that are not listed and centrally cleared. The Exchange believes that such a limitation is sufficient to mitigate the risks associated with price manipulation because a 20% cap on OTC derivatives will ensure that any series of Managed Fund Shares will be sufficiently broad-based in scope to minimize potential manipulation associated with OTC derivatives because the remaining 80% of the portfolio will consist of instruments subject to numerous restrictions designed to prevent manipulation, including equity securities (which, as proposed, would be subject to market cap, trading volume, and diversity requirements, among others), fixed income securities (which, as proposed, would be subject to principal amount outstanding, diversity, and issuer requirements, among others), cash and cash equivalents (which, as proposed, would be limited to short-term, highly liquid, and high credit quality instruments), and/or listed derivatives (which, as proposed, 90% of the weight of futures and options will be futures and options whose principal market is a member of ISG). With respect to proposed Rule 14.11(i)(4)(C)(vi) related to a fund's use of listed or OTC derivatives to gain exposure to individual equities and/or fixed income securities, or to indexes of equities and/or indexes of fixed income securities, the Exchange notes that such exposure would be required to meet the numerical and other criteria set forth in proposed Rule 14.11(i)(4)(C)(i) and 14.11(i)(4)(C)(ii), respectively. Quotation and other market information relating to listed futures and options is available from the exchanges listing such instruments as well as from market data vendors. With respect to centrally-cleared swaps \58\ and non-centrally-cleared swaps regulated by the Commodity Futures Trading Commission (the ``CFTC''),\59\ the Dodd-Frank Act mandates that swap information be reported to swap data repositories (``SDRs'').\60\ SDRs provide a central facility for swap data reporting and recordkeeping and are required to comply with data standards set by the CFTC, including real-time public reporting of swap transaction data to a derivatives clearing organization or SEF.\61\ SDRs require real- time reporting of all OTC and centrally cleared derivatives, including public reporting of the swap price and size. The parties responsible for reporting swaps information are CFTC-registered swap dealers (``RSDs''), major swap participants, and SEFs. If swap counterparties do not fall into the above categories, then one of the parties to the swap must report the trade to the SDR. Cleared swaps regulated by the CFTC must be executed on a Designated Contract Market (``DCM'') or SEF. Such cleared swaps have the same reporting requirements as futures, including end-of-day price, volume, and open interest. CFTC swaps reporting requirements require public dissemination of, among other items, product ID (if available); asset class; underlying reference asset, reference issuer, or reference index; termination date; date and time of execution; price, including currency; notional amounts, including currency; whether direct or indirect counterparties include an RSD; whether cleared or un-cleared; and platform ID of where the contract was executed (if applicable). --------------------------------------------------------------------------- \58\ There are currently five categories of swaps eligible for central clearing: Interest rate swaps; credit default swaps; foreign exchange swaps; equity swaps; and commodity swaps. The following entities provide central clearing for OTC derivatives: ICE Clear Credit (U.S.); ICE Clear (E.U.); CME Group; LCH.Clearnet; and Eurex. \59\ Pursuant to the Dodd-Frank Act, OTC and centrally-cleared swaps are regulated by the CFTC with the exception of security-based swaps, which are regulated by the Commission. \60\ The following entities are provisionally registered with the CFTC as SDRs: BSDR LLC. Chicago Mercantile Exchange, Inc., DTCC Data Repository, and ICE Trade Vault. \61\ Approximately 21 entities are currently temporarily registered with the CFTC as SEFs. --------------------------------------------------------------------------- With respect to security-based swaps regulated by the Commission, the Commission has adopted Regulation SBSR under the Act implementing requirements for regulatory reporting and public dissemination of security-based swap transactions set forth in Title VII of the Dodd- Frank Act. Regulation SBSR provides for the reporting of security-based swap information to registered security-based swap data repositories (``Registered SDRs'') or the Commission, and the public dissemination of security-based [[Page 9896]] swap transaction, volume, and pricing information by Registered SDRs.\62\ --------------------------------------------------------------------------- \62\ See Securities Exchange Act Release No. 74244 (February 11, 2015), 80 FR 14564 (March 19, 2015) (Regulation SBSR--Reporting and Dissemination of Security-Based Swap Information). --------------------------------------------------------------------------- Price information relating to forwards and OTC options will be available from major market data vendors. The Exchange notes that a fund's investments in derivative instruments would be subject to limits on leverage imposed by the 1940 Act. Section 18(f) of the 1940 Act and related Commission guidance limit the amount of leverage an investment company can obtain. A fund's investments would be consistent with its investment objective and would not be used to enhance leverage. To limit the potential risk associated with a fund's use of derivatives, a fund will segregate or ``earmark'' assets determined to be liquid by a fund in accordance with the 1940 Act (or, as permitted by applicable regulation, enter into certain offsetting positions) to cover its obligations under derivative instruments. A fund's investments will not be used to seek performance that is the multiple or inverse multiple (i.e., 2xs or 3xs) of a fund's broad-based securities market index (as defined in Form N-1A).\63\ --------------------------------------------------------------------------- \63\ See, e.g., Securities Exchange Act Release No. 7482 [sic] (April 29, 2015), 86 [sic] FR 25723 (May 5, 2015) (SR-NYSEArca-2014- 89) (order approving listing and trading of shares of eight PIMCO exchange-traded funds). --------------------------------------------------------------------------- The proposed rule change is also designed to protect investors and the public interest because Managed Fund Shares listed and traded pursuant to Rule 14.11(i), including pursuant to the proposed new portfolio standards, would continue to be subject to the full panoply of Exchange rules and procedures that currently govern the trading of equity securities on the Exchange, as further described in the Approval Order. The proposed rule change is also designed to protect investors and the public interest as well as to promote just and equitable principles of trade in that any Non-U.S. Component Stocks will each meet the following criteria initially and on a continuing basis: (1) Have a minimum market value of at least $100 million; (2) have a minimum global monthly trading volume of 250,000 shares, or minimum global notional volume traded per month of $25,000,000, averaged over the last six months; (3) most heavily weighted Non-U.S. Component Stock shall not exceed 25% of the equity weight of the portfolio, and, to the extent applicable, the five most heavily weighted Non-U.S. Component Stocks shall not exceed 60% of the equity weight of the portfolio; and (4) each Non-U.S. Component Stock shall be listed and traded on an exchange that has last-sale reporting. The Exchange believes that such quantitative criteria are sufficient to mitigate any concerns that may arise on the basis of a series of Managed Fund Shares potentially holding 100% of its assets in Non-U.S. Component Stocks that are neither listed on members of ISG nor exchanges with which the Exchange has in place a CSSA because, as stated above, such criteria are either the same or more stringent than the portfolio requirements for Index Fund Shares that hold Non-U.S. Component Stocks and there are no such requirements related to such securities being listed on an exchange that is a member of ISG or with which the Exchange has in place a CSSA. Further, the Exchange has not encountered and is not aware of any instances of manipulation or other negative impact in any series of Index Fund Shares that has occurred by virtue of the Index Fund Shares holding such Non-U.S. Component Stocks. As such, the Exchange believes that there should be no difference in the portfolio requirements for Managed Fund Shares and Index Fund Shares as it relates to holding Non- U.S. Component Stocks that are not listed on an exchange that is a member of ISG or with which the Exchange has in place a CSSA. The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices because the Managed Fund Shares will be listed and traded on the Exchange pursuant to the initial and continued listing criteria in Rule 14.11(i). The Exchange has in place surveillance procedures that are adequate to properly monitor trading in the Managed Fund Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws. The Exchange or FINRA, on behalf of the Exchange, will communicate as needed regarding trading in Managed Fund Shares and their underlying components with other markets that are members of the ISG, including all U.S. securities exchanges and futures exchanges on which the components are traded, or with which the Exchange has in place a CSSA.\64\ In addition, the Exchange or FINRA, on behalf of the Exchange, may obtain information regarding trading in Managed Fund Shares and their underlying components from other markets that are members of the ISG, including all U.S. securities exchanges and futures exchanges on which the components are traded, or with which the Exchange has in place a CSSA.\65\ --------------------------------------------------------------------------- \64\ See Amendment No. 4, supra note 8. \65\ See id. --------------------------------------------------------------------------- The Exchange also believes that the proposed rule change would fulfill the intended objective of Rule 19b-4(e) under the Act by allowing Managed Fund Shares that satisfy the proposed listing standards to be listed and traded without separate Commission approval. However, as proposed, the Exchange would continue to file separate proposed rule changes before the listing and trading of Managed Fund Shares that do not satisfy the additional criteria described above. For the above reasons, the Exchange believes that the proposed rule change is consistent with the requirements of Section 6(b)(5) of the Act. B. Self-Regulatory Organization's Statement on Burden on Competition The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purpose of the Act. Instead, the Exchange believes that the proposed rule change would facilitate the listing and trading of additional types of Managed Fund Shares and result in a significantly more efficient process surrounding the listing and trading of Managed Fund Shares, which will enhance competition among market participants, to the benefit of investors and the marketplace. The Exchange believes that this would reduce the time frame for bringing Managed Fund Shares to market, thereby reducing the burdens on issuers and other market participants and promoting competition. In turn, the Exchange believes that the proposed change would make the process for listing Managed Fund Shares more competitive by applying uniform listing standards with respect to Managed Fund Shares. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others The Exchange has neither solicited nor received written comments on the proposed rule change. III. Proceedings To Determine Whether To Approve or Disapprove SR-BATS- 2015-100 and Grounds for Disapproval Under Consideration The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Act \66\ to determine [[Page 9897]] whether the proposed rule change, as modified by Amendments No. 1, No. 3, and No. 4 thereto, should be approved or disapproved. Institution of proceedings is appropriate at this time in view of the legal and policy issues raised by the proposed rule change, as discussed below. Institution of proceedings does not indicate that the Commission has reached any conclusions with respect to any of the issues involved. Rather, as described below, the Commission seeks and encourages interested persons to provide comments on the proposed rule change. --------------------------------------------------------------------------- \66\ 15 U.S.C. 78s(b)(2)(B). --------------------------------------------------------------------------- Pursuant to Section 19(b)(2)(B) of the Act,\67\ the Commission is providing notice of the grounds for disapproval under consideration. The Commission is instituting proceedings to allow for additional analysis of the proposed rule change's consistency with Section 6(b)(5) of the Act, which requires, among other things, that the rules of a national securities exchange be ``designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade,'' and ``to protect investors and the public interest.'' \68\ --------------------------------------------------------------------------- \67\ Id. \68\ 15 U.S.C. 78f(b)(5). --------------------------------------------------------------------------- IV. Procedure: Request for Written Comments The Commission requests that interested persons provide written submissions of their views, data, and arguments with respect to the issues identified above, as well as any other concerns they may have with the proposal, as modified by Amendments No. 1, No. 3, and No. 4 thereto. In particular, the Commission invites the written views of interested persons concerning whether the proposal, as modified by Amendments No. 1, No. 3, and No. 4 thereto, is consistent with Section 6(b)(5) or any other provision of the Act, or the rules and regulations thereunder. Although there do not appear to be any issues relevant to approval or disapproval which would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b-4, any request for an opportunity to make an oral presentation.\69\ --------------------------------------------------------------------------- \69\ Section 19(b)(2) of the Act, as amended by the Securities Act Amendments of 1975, Public Law 94-29 (June 4, 1975), grants the Commission flexibility to determine what type of proceeding--either oral or notice and opportunity for written comments--is appropriate for consideration of a particular proposal by a self-regulatory organization. See Securities Act Amendments of 1975, Senate Comm. on Banking, Housing & Urban Affairs, S. Rep. No. 75, 94th Cong., 1st Sess. 30 (1975). --------------------------------------------------------------------------- In addition, interested persons are invited to submit written data, views, and arguments regarding whether the proposal, as modified by Amendments No. 1, No. 3, and No. 4 thereto, should be approved or disapproved by March 18, 2016. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by April 1, 2016. The Commission asks that commenters address the sufficiency of the Exchange's statements in support of the proposal, in addition to any other comments they may wish to submit about the proposed rule change. Specifically, the Commission seeks comment on the statements of the Exchange contained in the Notice,\70\ as modified by Amendments No. 1, No. 3, and No. 4 thereto,\71\ and any other issues raised by the proposed amendments to BATS Rule 14.11(i) related to the listing and trading of Managed Fund Shares on the Exchange. In particular, the Commission seeks comment on the following: --------------------------------------------------------------------------- \70\ Supra note 3. \71\ See supra notes 5, 7, and 8, respectively. --------------------------------------------------------------------------- 1. As described above, the Exchange has proposed listing standards with respect to certain asset classes held by actively managed exchange-traded funds that are substantively the same as the standards applied to those asset classes when held by an index-based fund. Do commenters believe that these standards are appropriate for both types of funds? 2. Do commenters believe that the limitations and standards proposed for specific assets classes are appropriate? 3. In general, do commenters believe that the proposed listing requirements are adequate to deter manipulation with respect to generically listed Managed Fund Shares? 4. With respect to the proposed generic listing standards, which set forth requirements for the listing and trading of Managed Fund Shares on an initial and continuing basis, do commenters have views on how or whether the Exchange would be able to monitor compliance with respect to these continuing listing standards? Do commenters have views on what actions, if any, should be taken by the Exchange if a series of Managed Fund Shares listed and trading on the Exchange falls out of compliance with any of the proposed generic criteria? Comments may be submitted by any of the following methods: Electronic CommentsUse the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or Send an email to [email protected]. Please include File Number SR-BATS-2015-100 on the subject line. Paper Comments Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090. All submissions should refer to File Numbers SR-BATS-2015-100. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of these filings also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-BATS-2015-100 and should be submitted on or before March 18, 2016. Rebuttal comments should be submitted by April 1, 2016. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.\72\ --------------------------------------------------------------------------- \72\ 17 CFR 200.30-3(a)(31). --------------------------------------------------------------------------- Robert W. Errett, Deputy Secretary. [FR Doc. 2016-04110 Filed 2-25-16; 8:45 am] BILLING CODE 8011-01-P
![Federal Register / Vol. 81, No. 38 / Friday, February 26, 2016 / Notices 9889
ESTIMATE OF ANNUAL RESPONDENT BURDEN
Annual Time Burden
Form No. responses (minutes) (hours)
AA–1 (without assistance) ........................................................................................................... 100 62 103
AA–1cert (with assistance) .......................................................................................................... 4,620 30 2,310
AA–1sum (with assistance) ......................................................................................................... 8,000 29 3,867
AA–1d (with assistance) .............................................................................................................. 2,600 60 2,600
AA–1d (without assistance) ......................................................................................................... 5 85 7
G–204 .......................................................................................................................................... 20 15 5
Total ...................................................................................................................................... 15,345 ........................ 8,892
Additional Information or Comments: rule change was published for comment Exchange filed Amendment No. 4 to the
To request more information or to in the Federal Register on November 25, proposed rule change.8 The Commission
obtain a copy of the information 2015.3 On January 4, 2016, the has not received any comments on the
collection justification, forms, and/or Commission designated a longer period proposal.
supporting material, contact Dana within which to approve the proposed
Pursuant to Section 19(b)(1) of the
Hickman at (312) 751–4981 or rule change, disapprove the proposed
Act 9 and Rule 19b–4 thereunder,10
Dana.Hickman@RRB.GOV. Comments rule change, or institute proceedings to
determine whether to disapprove the notice is hereby given that the Exchange
regarding the information collection
should be addressed to Charles proposed rule change.4 On February 9, filed with the Commission Amendments
Mierzwa, Railroad Retirement Board, 2016, the Exchange filed Amendment No. 1, No. 3., and No. 4 to the proposed
844 North Rush Street, Chicago, Illinois No. 1 to the proposed rule change,5 rule change on February 9, 2016,
60611–2092 or emailed to which replaced the originally filed February 11, 2016, and February 17,
Charles.Mierzwa@RRB.GOV. Written proposed rule change in its entirety.6 2016, respectively. The proposed rule
comments should be received within 60 On February 11, 2016, the Exchange change, as modified by those
days of this notice. both filed and withdrew Amendment amendments, is described in Sections I
No. 2 to the proposed rule change. On and II below, which Sections have been
Charles Mierzwa, February 11, 2016, the Exchange filed prepared by the Exchange. The
Chief of Information Resources Management. Amendment No. 3 to the proposed rule Commission is publishing this notice to
[FR Doc. 2016–04287 Filed 2–25–16; 8:45 am] change.7 On February 17, 2016, the solicit comments on Amendments No.
BILLING CODE 7905–01–P 1, No. 3, and No. 4 from interested
3 See Securities Exchange Act Release No. 76478
persons.
(Nov. 19, 2015), 80 FR 73841 (‘‘Notice’’).
SECURITIES AND EXCHANGE
4 See Securities Exchange Act Release No. 76820, Additionally, as discussed in Section
81 FR 989 (Jan. 8, 2016). The Commission III below, the Commission is instituting
COMMISSION designated February 23, 2016 as the date by which
the Commission shall either approve or disapprove, proceedings under Section 19(b)(2)(B) of
[Release No. 34–77202; File No. SR–BATS– or institute proceedings to determine whether to the Act 11 to determine whether to
2015–100)] disapprove, the proposed rule change. See id. approve or disapprove the proposed
5 Amendment No. 1: (1) Clarifies the proposed
Self-Regulatory Organizations; BATS treatment of convertible securities under the
rule change, as modified by
Exchange, Inc.; Notice of Filing of proposed generic listing criteria; (2) modifies the Amendments No. 1, No. 3, and No. 4
Amendments No. 1, No. 3, and No. 4 to, proposed criterion regarding American Depositary thereto.
Receipts (‘‘ADRs’’) to provide that no more than
and Order Instituting Proceedings to 10% of the equity weight of the portfolio shall
Determine Whether To Approve or consist of non-exchange traded (rather than not members of ISG.’’ Amendment No. 3 also
unsponsored) ADRs; (3) modifies the proposed corrects an erroneous statement in Item 11 to
Disapprove, a Proposed Rule Change,
portfolio limit on listed derivatives to require that indicate that an Exhibit 4 was included in
as Modified by Amendments No. 1, No. at least 90% of the weight of such holdings invested Amendment No. 1.
3, and No. 4, To Amend BATS Rule in futures, exchange-traded options, and listed 8 Amendment No. 4 deletes from the proposal the
14.11(i) To Adopt Generic Listing swaps shall, on both an initial and continuing basis, following sentence: ‘‘Thus, if the limitation applied
consist of futures, options, and swaps for which the to swaps, there would effectively be a cap of 10%
Standards for Managed Fund Shares Exchange may obtain information via the of the portfolio invested in listed swaps.’’
Intermarket Surveillance Group (‘‘ISG’’) from other Amendment No. 3 also amends two representations
February 22, 2016.
members or affiliates of the ISG or for which the as follows (added language in brackets): The
I. Introduction principal market is a market with which the Exchange or FINRA, on behalf of the Exchange, will
Exchange has a comprehensive surveillance sharing communicate as needed regarding trading in
On November 18, 2015, BATS agreement (‘‘CSSA’’); (4) provides that a portfolio’s
Managed Fund Shares [and their underlying
Exchange, Inc. (‘‘Exchange’’) filed with investments in listed and over-the-counter (‘‘OTC’’)
components] with other markets that are members
derivatives will be calculated for purposes the
the Securities and Exchange proposed limits on such holdings as the total
of the ISG, including all U.S. securities exchanges
Commission (‘‘Commission’’), pursuant absolute notional value of the derivatives; (5) makes and futures exchanges on which the components
are traded[, or with which the Exchange has in
to Section 19(b)(1) of the Securities certain other conforming and clarifying changes.
place a CSSA.] In addition, the Exchange or
Exchange Act of 1934 (‘‘Act’’) 1 and Rule The amendments to the proposed rule change are
available at: http://www.sec.gov/comments/sr-bats- FINRA[,] on behalf of the Exchange[,] may obtain
mstockstill on DSK4VPTVN1PROD with NOTICES
19b–4 thereunder,2 a proposed rule 2015-100/bats2015100.shtml. information regarding trading in Managed Fund
change to amend BATS Rule 14.11(i) by, 6 See Amendment No. 1, supra note 5, at 4. Shares [and their underlying components] from
among other things, adopting generic 7 Amendment No. 3 deletes from the proposal the
other markets that are members of the ISG,
including all U.S. securities exchanges and futures
listing standards for Managed Fund following two sentences: (1) ‘‘Such limitation will
exchanges on which the components are traded, or
Shares (defined below). The proposed not apply to listed swaps because swaps are listed
with which the Exchange has in place a CSSA.’’
on swap execution facilities (‘‘SEFs’’), the majority
9 15 U.S.C.78s(b)(1).
of which are not members of ISG.’’ and (2) ‘‘Such
1 15 U.S.C. 78s(b)(1). 10 17 CFR 240.19b–4.
limitation would not apply to listed swaps because
2 17 CFR 240.19b–4. swaps are listed on SEFs, the majority of which are 11 15 U.S.C. 78s(b)(2)(B).
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As proposed, pursuant to Rule risk and thereby furthering investor non-centrally-cleared swaps regulated
14.11(i)(4)(C)(ii)(c) an underlying protection.57 by the Commodity Futures Trading
portfolio (excluding exempted With respect to proposed Rule Commission (the ‘‘CFTC’’),59 the Dodd-
securities) that includes fixed income 14.11(i)(4)(C)(v) relating to OTC Frank Act mandates that swap
securities must include a minimum of derivatives, the Exchange believes that information be reported to swap data
13 non-affiliated issuers, provided, the limitation to 20% of a fund’s assets repositories (‘‘SDRs’’).60 SDRs provide a
however, that there would be no would assure that, to the extent that a central facility for swap data reporting
minimum number of non-affiliated fund holds derivatives, the and recordkeeping and are required to
issuers required for fixed income preponderance of fund investments comply with data standards set by the
securities if at least 70% of the weight would not be in derivatives that are not CFTC, including real-time public
of the portfolio consists of equity listed and centrally cleared. The reporting of swap transaction data to a
securities. The Exchange notes that Exchange believes that such a limitation derivatives clearing organization or
is sufficient to mitigate the risks SEF.61 SDRs require real-time reporting
when evaluated in conjunction with
associated with price manipulation of all OTC and centrally cleared
proposed Rule 14.11(i)(4)(C)(ii)(b), the
because a 20% cap on OTC derivatives derivatives, including public reporting
proposed rule is consistent with current
will ensure that any series of Managed of the swap price and size. The parties
Rules 14.11(c)(4)(B)(i)(d) and (e) in that Fund Shares will be sufficiently broad- responsible for reporting swaps
it provides for a maximum weighting of based in scope to minimize potential information are CFTC-registered swap
a fixed income security in the fixed manipulation associated with OTC dealers (‘‘RSDs’’), major swap
income portion of the portfolio of a fund derivatives because the remaining 80% participants, and SEFs. If swap
that is comparable to the existing rules of the portfolio will consist of counterparties do not fall into the above
applicable to Index Fund Shares based instruments subject to numerous categories, then one of the parties to the
on fixed income indexes. restrictions designed to prevent swap must report the trade to the SDR.
With respect to the proposed manipulation, including equity Cleared swaps regulated by the CFTC
amendment to Rule 14.11(i)(4)(C)(iii) securities (which, as proposed, would must be executed on a Designated
relating to cash and cash equivalents, be subject to market cap, trading Contract Market (‘‘DCM’’) or SEF. Such
while there is no limitation on the volume, and diversity requirements, cleared swaps have the same reporting
amount of cash and cash equivalents among others), fixed income securities requirements as futures, including end-
can make up of the portfolio, such (which, as proposed, would be subject of-day price, volume, and open interest.
instruments are short-term, highly to principal amount outstanding, CFTC swaps reporting requirements
liquid, and of high credit quality, diversity, and issuer requirements, require public dissemination of, among
making them less susceptible than other among others), cash and cash other items, product ID (if available);
asset classes both to price manipulation equivalents (which, as proposed, would asset class; underlying reference asset,
and volatility. Further, the requirement be limited to short-term, highly liquid, reference issuer, or reference index;
is consistent with representations made and high credit quality instruments), termination date; date and time of
in proposed rule changes for issues of and/or listed derivatives (which, as execution; price, including currency;
Managed Fund Shares previously proposed, 90% of the weight of futures notional amounts, including currency;
and options will be futures and options whether direct or indirect
approved by the Commission.55
whose principal market is a member of counterparties include an RSD; whether
With respect to proposed Rule ISG). With respect to proposed Rule cleared or un-cleared; and platform ID
14.11(i)(4)(C)(iv) relating to listed 14.11(i)(4)(C)(vi) related to a fund’s use of where the contract was executed (if
derivatives, the Exchange believes that of listed or OTC derivatives to gain applicable).
it is appropriate that there be no limit exposure to individual equities and/or With respect to security-based swaps
to the percentage of a portfolio invested fixed income securities, or to indexes of regulated by the Commission, the
in such holdings, provided that, in the equities and/or indexes of fixed income Commission has adopted Regulation
aggregate, at least 90% of the weight of securities, the Exchange notes that such SBSR under the Act implementing
such holdings invested in futures, exposure would be required to meet the requirements for regulatory reporting
exchange-traded options, and listed numerical and other criteria set forth in and public dissemination of security-
swaps would consist of futures, options, proposed Rule 14.11(i)(4)(C)(i) and based swap transactions set forth in
and swaps for which the Exchange may 14.11(i)(4)(C)(ii), respectively. Title VII of the Dodd-Frank Act.
obtain information via ISG from other Quotation and other market Regulation SBSR provides for the
members or affiliates or for which the information relating to listed futures reporting of security-based swap
principal market is a market with which and options is available from the information to registered security-based
the Exchange has a CSSA. Such a exchanges listing such instruments as swap data repositories (‘‘Registered
requirement would facilitate well as from market data vendors. With SDRs’’) or the Commission, and the
information sharing among market respect to centrally-cleared swaps 58 and public dissemination of security-based
participants trading shares of a series of 57 The Commission has noted that ‘‘[c]entral
Managed Fund Shares as well as futures clearing mitigates counterparty risk among dealers entities provide central clearing for OTC
and options that such series may hold.56 and other institutions by shifting that risk from derivatives: ICE Clear Credit (U.S.); ICE Clear (E.U.);
In addition, listed swaps would be individual counterparties to [central counterparties CME Group; LCH.Clearnet; and Eurex.
59 Pursuant to the Dodd-Frank Act, OTC and
(‘‘CCPs’’)], thereby protecting CCPs from each
mstockstill on DSK4VPTVN1PROD with NOTICES
centrally cleared, reducing counterparty centrally-cleared swaps are regulated by the CFTC
other’s potential failures.’’ See Securities Exchange
Act Release No. 67286 (June 28, 2012) (File No. S7– with the exception of security-based swaps, which
55 See supra note 40. 44–10) (Process for Submissions for Review of are regulated by the Commission.
56 The Commission notes that, pursuant to Security-Based Swaps for Mandatory Clearing and 60 The following entities are provisionally
Amendments No. 3, supra note 7, and No. 4, supra Notice Filing Requirements for Clearing Agencies). registered with the CFTC as SDRs: BSDR LLC.
note 8, two sentences that followed the reference to 58 There are currently five categories of swaps Chicago Mercantile Exchange, Inc., DTCC Data
this footnote in the text above has been deleted eligible for central clearing: Interest rate swaps; Repository, and ICE Trade Vault.
from the text of the proposal as amended by credit default swaps; foreign exchange swaps; 61 Approximately 21 entities are currently
Amendment No. 1. equity swaps; and commodity swaps. The following temporarily registered with the CFTC as SEFs.
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![9896 Federal Register / Vol. 81, No. 38 / Friday, February 26, 2016 / Notices
swap transaction, volume, and pricing 60% of the equity weight of the securities exchanges and futures
information by Registered SDRs.62 portfolio; and (4) each Non-U.S. exchanges on which the components are
Price information relating to forwards Component Stock shall be listed and traded, or with which the Exchange has
and OTC options will be available from traded on an exchange that has last-sale in place a CSSA.65
major market data vendors. reporting. The Exchange believes that The Exchange also believes that the
The Exchange notes that a fund’s such quantitative criteria are sufficient proposed rule change would fulfill the
investments in derivative instruments to mitigate any concerns that may arise intended objective of Rule 19b–4(e)
would be subject to limits on leverage on the basis of a series of Managed Fund under the Act by allowing Managed
imposed by the 1940 Act. Section 18(f) Shares potentially holding 100% of its Fund Shares that satisfy the proposed
of the 1940 Act and related Commission assets in Non-U.S. Component Stocks listing standards to be listed and traded
guidance limit the amount of leverage that are neither listed on members of without separate Commission approval.
an investment company can obtain. A ISG nor exchanges with which the However, as proposed, the Exchange
fund’s investments would be consistent Exchange has in place a CSSA because, would continue to file separate
with its investment objective and would as stated above, such criteria are either proposed rule changes before the listing
not be used to enhance leverage. To the same or more stringent than the and trading of Managed Fund Shares
limit the potential risk associated with portfolio requirements for Index Fund that do not satisfy the additional criteria
a fund’s use of derivatives, a fund will Shares that hold Non-U.S. Component described above.
segregate or ‘‘earmark’’ assets Stocks and there are no such For the above reasons, the Exchange
determined to be liquid by a fund in requirements related to such securities believes that the proposed rule change
accordance with the 1940 Act (or, as being listed on an exchange that is a is consistent with the requirements of
permitted by applicable regulation, member of ISG or with which the Section 6(b)(5) of the Act.
enter into certain offsetting positions) to Exchange has in place a CSSA. Further,
the Exchange has not encountered and B. Self-Regulatory Organization’s
cover its obligations under derivative
is not aware of any instances of Statement on Burden on Competition
instruments. A fund’s investments will
not be used to seek performance that is manipulation or other negative impact The Exchange does not believe that
the multiple or inverse multiple (i.e., in any series of Index Fund Shares that the proposed rule change will impose
2xs or 3xs) of a fund’s broad-based has occurred by virtue of the Index any burden on competition that is not
securities market index (as defined in Fund Shares holding such Non-U.S. necessary or appropriate in furtherance
Form N–1A).63 Component Stocks. As such, the of the purpose of the Act. Instead, the
The proposed rule change is also Exchange believes that there should be Exchange believes that the proposed
designed to protect investors and the no difference in the portfolio rule change would facilitate the listing
public interest because Managed Fund requirements for Managed Fund Shares and trading of additional types of
Shares listed and traded pursuant to and Index Fund Shares as it relates to Managed Fund Shares and result in a
Rule 14.11(i), including pursuant to the holding Non-U.S. Component Stocks significantly more efficient process
proposed new portfolio standards, that are not listed on an exchange that surrounding the listing and trading of
would continue to be subject to the full is a member of ISG or with which the Managed Fund Shares, which will
panoply of Exchange rules and Exchange has in place a CSSA. enhance competition among market
procedures that currently govern the The Exchange believes that the participants, to the benefit of investors
trading of equity securities on the proposed rule change is designed to and the marketplace. The Exchange
Exchange, as further described in the prevent fraudulent and manipulative believes that this would reduce the time
Approval Order. acts and practices because the Managed frame for bringing Managed Fund
The proposed rule change is also Fund Shares will be listed and traded Shares to market, thereby reducing the
designed to protect investors and the on the Exchange pursuant to the initial burdens on issuers and other market
public interest as well as to promote just and continued listing criteria in Rule participants and promoting competition.
and equitable principles of trade in that 14.11(i). The Exchange has in place In turn, the Exchange believes that the
any Non-U.S. Component Stocks will surveillance procedures that are proposed change would make the
each meet the following criteria initially adequate to properly monitor trading in process for listing Managed Fund Shares
and on a continuing basis: (1) Have a the Managed Fund Shares in all trading more competitive by applying uniform
minimum market value of at least $100 sessions and to deter and detect listing standards with respect to
million; (2) have a minimum global violations of Exchange rules and Managed Fund Shares.
monthly trading volume of 250,000 applicable federal securities laws. The
Exchange or FINRA, on behalf of the C. Self-Regulatory Organization’s
shares, or minimum global notional Statement on Comments on the
volume traded per month of Exchange, will communicate as needed
regarding trading in Managed Fund Proposed Rule Change Received From
$25,000,000, averaged over the last six Members, Participants or Others
months; (3) most heavily weighted Non- Shares and their underlying
U.S. Component Stock shall not exceed components with other markets that are The Exchange has neither solicited
25% of the equity weight of the members of the ISG, including all U.S. nor received written comments on the
portfolio, and, to the extent applicable, securities exchanges and futures proposed rule change.
the five most heavily weighted Non-U.S. exchanges on which the components are
traded, or with which the Exchange has III. Proceedings To Determine Whether
Component Stocks shall not exceed To Approve or Disapprove SR–BATS–
in place a CSSA.64 In addition, the
2015–100 and Grounds for Disapproval
mstockstill on DSK4VPTVN1PROD with NOTICES
62 See Securities Exchange Act Release No. 74244 Exchange or FINRA, on behalf of the
Exchange, may obtain information Under Consideration
(February 11, 2015), 80 FR 14564 (March 19, 2015)
(Regulation SBSR—Reporting and Dissemination of regarding trading in Managed Fund The Commission is instituting
Security-Based Swap Information). Shares and their underlying proceedings pursuant to Section
63 See, e.g., Securities Exchange Act Release No.
components from other markets that are 19(b)(2)(B) of the Act 66 to determine
7482 [sic] (April 29, 2015), 86 [sic] FR 25723 (May
5, 2015) (SR–NYSEArca–2014–89) (order approving members of the ISG, including all U.S.
65 See id.
listing and trading of shares of eight PIMCO
exchange-traded funds). 64 See Amendment No. 4, supra note 8. 66 15 U.S.C. 78s(b)(2)(B).
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![Federal Register / Vol. 81, No. 38 / Friday, February 26, 2016 / Notices 9897
whether the proposed rule change, as In addition, interested persons are Electronic Comments
modified by Amendments No. 1, No. 3, invited to submit written data, views,
and No. 4 thereto, should be approved and arguments regarding whether the • Use the Commission’s Internet
or disapproved. Institution of proposal, as modified by Amendments comment form (http://www.sec.gov/
proceedings is appropriate at this time No. 1, No. 3, and No. 4 thereto, should rules/sro.shtml); or
in view of the legal and policy issues be approved or disapproved by March • Send an email to rule-comments@
raised by the proposed rule change, as 18, 2016. Any person who wishes to file sec.gov. Please include File Number SR–
discussed below. Institution of a rebuttal to any other person’s BATS–2015–100 on the subject line.
proceedings does not indicate that the submission must file that rebuttal by
Commission has reached any April 1, 2016. Paper Comments
conclusions with respect to any of the The Commission asks that • Send paper comments in triplicate
issues involved. Rather, as described commenters address the sufficiency of to Brent J. Fields, Secretary, Securities
below, the Commission seeks and the Exchange’s statements in support of
encourages interested persons to and Exchange Commission, 100 F Street
the proposal, in addition to any other NE., Washington, DC 20549–1090.
provide comments on the proposed rule comments they may wish to submit
change. about the proposed rule change. All submissions should refer to File
Pursuant to Section 19(b)(2)(B) of the Specifically, the Commission seeks Numbers SR–BATS–2015–100. This file
Act,67 the Commission is providing comment on the statements of the number should be included on the
notice of the grounds for disapproval Exchange contained in the Notice,70 as subject line if email is used. To help the
under consideration. The Commission is modified by Amendments No. 1, No. 3, Commission process and review your
instituting proceedings to allow for and No. 4 thereto,71 and any other comments more efficiently, please use
additional analysis of the proposed rule issues raised by the proposed only one method. The Commission will
change’s consistency with Section amendments to BATS Rule 14.11(i) post all comments on the Commission’s
6(b)(5) of the Act, which requires, related to the listing and trading of Internet Web site (http://www.sec.gov/
among other things, that the rules of a Managed Fund Shares on the Exchange. rules/sro.shtml). Copies of the
national securities exchange be In particular, the Commission seeks submission, all subsequent
‘‘designed to prevent fraudulent and comment on the following: amendments, all written statements
manipulative acts and practices, to
1. As described above, the Exchange with respect to the proposed rule
promote just and equitable principles of
has proposed listing standards with change that are filed with the
trade,’’ and ‘‘to protect investors and the
respect to certain asset classes held by Commission, and all written
public interest.’’ 68
actively managed exchange-traded communications relating to the
IV. Procedure: Request for Written funds that are substantively the same as proposed rule change between the
Comments the standards applied to those asset Commission and any person, other than
classes when held by an index-based those that may be withheld from the
The Commission requests that
fund. Do commenters believe that these public in accordance with the
interested persons provide written
standards are appropriate for both types provisions of 5 U.S.C. 552, will be
submissions of their views, data, and
of funds? available for Web site viewing and
arguments with respect to the issues
identified above, as well as any other 2. Do commenters believe that the printing in the Commission’s Public
concerns they may have with the limitations and standards proposed for Reference Room, 100 F Street NE.,
proposal, as modified by Amendments specific assets classes are appropriate? Washington, DC 20549, on official
No. 1, No. 3, and No. 4 thereto. In 3. In general, do commenters believe business days between the hours of
particular, the Commission invites the that the proposed listing requirements 10:00 a.m. and 3:00 p.m. Copies of these
written views of interested persons are adequate to deter manipulation with filings also will be available for
concerning whether the proposal, as respect to generically listed Managed inspection and copying at the principal
modified by Amendments No. 1, No. 3, Fund Shares? office of the Exchange. All comments
and No. 4 thereto, is consistent with 4. With respect to the proposed received will be posted without change;
Section 6(b)(5) or any other provision of generic listing standards, which set the Commission does not edit personal
the Act, or the rules and regulations forth requirements for the listing and identifying information from
thereunder. Although there do not trading of Managed Fund Shares on an submissions. You should submit only
appear to be any issues relevant to initial and continuing basis, do information that you wish to make
approval or disapproval which would commenters have views on how or available publicly. All submissions
be facilitated by an oral presentation of whether the Exchange would be able to should refer to File Number SR–BATS–
views, data, and arguments, the monitor compliance with respect to 2015–100 and should be submitted on
Commission will consider, pursuant to these continuing listing standards? Do
Rule 19b–4, any request for an or before March 18, 2016. Rebuttal
commenters have views on what comments should be submitted by April
opportunity to make an oral actions, if any, should be taken by the
presentation.69 1, 2016.
Exchange if a series of Managed Fund
Shares listed and trading on the For the Commission, by the Division of
67 Id.
Exchange falls out of compliance with Trading and Markets, pursuant to delegated
68 15 U.S.C. 78f(b)(5).
mstockstill on DSK4VPTVN1PROD with NOTICES
authority.72
69 Section 19(b)(2) of the Act, as amended by the any of the proposed generic criteria?
Securities Act Amendments of 1975, Public Law Comments may be submitted by any of Robert W. Errett,
94–29 (June 4, 1975), grants the Commission the following methods: Deputy Secretary.
flexibility to determine what type of proceeding— [FR Doc. 2016–04110 Filed 2–25–16; 8:45 am]
either oral or notice and opportunity for written
comments—is appropriate for consideration of a Affairs, S. Rep. No. 75, 94th Cong., 1st Sess. 30 BILLING CODE 8011–01–P
particular proposal by a self-regulatory (1975).
70 Supra note 3.
organization. See Securities Act Amendments of
1975, Senate Comm. on Banking, Housing & Urban 71 See supra notes 5, 7, and 8, respectively. 72 17 CFR 200.30–3(a)(31).
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Document Created: 2018-02-02 14:37:22
Document Modified: 2018-02-02 14:37:22
| 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 9889 |
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