82_FR_21368 82 FR 21282 - ClearShares, LLC et al.

82 FR 21282 - ClearShares, LLC et al.

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 82, Issue 86 (May 5, 2017)

Page Range21282-21284
FR Document2017-09065

Federal Register, Volume 82 Issue 86 (Friday, May 5, 2017)
[Federal Register Volume 82, Number 86 (Friday, May 5, 2017)]
[Notices]
[Pages 21282-21284]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-09065]


-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 32620; 812-14739]


ClearShares, LLC et al.

May 1, 2017.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice.

-----------------------------------------------------------------------

    Notice of an application for an order under section 6(c) of the 
Investment Company Act of 1940 (the ``Act'') for an exemption from 
sections 2(a)(32), 5(a)(1), 22(d), and 22(e) of the Act and rule 22c-1 
under the Act, under sections 6(c) and 17(b) of the Act for an 
exemption from sections 17(a)(1) and 17(a)(2) of the Act, and under 
section 12(d)(1)(J) of the Act for an exemption from sections 
12(d)(1)(A) and 12(d)(1)(B) of the Act. The requested order would 
permit (a) actively-managed series of certain open-end management 
investment companies (``Funds'') to issue shares redeemable in large 
aggregations only (``Creation Units''); (b) secondary market 
transactions in Fund shares to occur at negotiated market prices rather 
than at net asset value (``NAV''); (c) certain Funds to pay redemption 
proceeds, under certain circumstances, more than seven days after the 
tender of shares for redemption; (d) certain affiliated persons of a 
Fund to deposit securities into, and receive securities from, the Fund 
in connection with the purchase and redemption of Creation Units; (e) 
certain registered management investment companies and unit investment 
trusts outside of the same group of investment companies as the Funds 
(``Funds of Funds'') to acquire shares of the Funds; and (f) certain 
Funds (``Feeder Funds'') to create and redeem Creation Units in-kind in 
a master-feeder structure.

Applicants: ETF Series Solutions (``Trust''), a Delaware statutory 
trust registered under the Act as an open-end management investment 
company with multiple series, ClearShares LLC (``ClearShares''), a 
Delaware limited liability company that is registered as an investment 
adviser under the Investment Advisers Act of 1940, and Quasar 
Distributors, LLC (``Distributor''), a Delaware limited liability 
company and broker-dealer registered under the Securities Exchange Act 
of 1934 (``Exchange Act'').

Filing Dates: The application was filed on January 24, 2017.

Hearing or Notification of Hearing: An order granting the requested 
relief will be issued unless the Commission orders a hearing. 
Interested persons may request a hearing by writing to the Commission's 
Secretary and serving applicants with a copy of the request, personally 
or by mail. Hearing requests should be received by the Commission by 
5:30 p.m. on May 26, 2017, and should be accompanied by proof of 
service on applicants, in the form of an affidavit, or for lawyers, a 
certificate of service. Pursuant to rule 0-5 under the Act, hearing 
requests should state the nature of the writer's interest, any facts 
bearing upon the desirability of a hearing on the matter, the reason 
for the request, and the issues contested. Persons who wish to be 
notified of a hearing may request notification by writing to the 
Commission's Secretary.

ADDRESSES: Secretary, Securities and Exchange Commission, 100 F Street 
NE., Washington, DC 20549-1090; Applicants: W. John McGuire, Esq., 
Morgan, Lewis & Bockius, LLP, 1111 Pennsylvania Avenue NW., Washington, 
DC 20004-2541 and Michael D. Barolsky, Esq., U.S. Bancorp Fund 
Services, LLC, 615 E. Michigan Street, Milwaukee, WI 53202.

FOR FURTHER INFORMATION CONTACT: Rochelle Kauffman Plesset, Senior 
Counsel, at (202) 551-6840 or Daniele

[[Page 21283]]

Marchesani, Assistant Chief Counsel, at (202) 551-6747 (Division of 
Investment Management, Chief Counsel's Office).

SUPPLEMENTARY INFORMATION: The following is a summary of the 
application. The complete application may be obtained via the 
Commission's Web site by searching for the file number, or for an 
applicant using the Company name box, at http://www.sec.gov/search/search.htm or by calling (202) 551-8090.

Summary of the Application

    1. Applicants request an order that would allow Funds to operate as 
actively-managed exchange traded funds (``ETFs'').\1\ Fund shares will 
be purchased and redeemed at their NAV in Creation Units only. All 
orders to purchase Creation Units and all redemption requests will be 
placed by or through an ``Authorized Participant'', which will have 
signed a participant agreement with the Distributor. Shares will be 
listed and traded individually on a national securities exchange, where 
share prices will be based on the current bid/offer market. Certain 
Funds may operate as Feeder Funds in a master-feeder structure. Any 
order granting the requested relief would be subject to the terms and 
conditions stated in the application.
---------------------------------------------------------------------------

    \1\ Applicants request that the order apply to the new series of 
the Trust as well as to additional series of the Trust and any other 
open-end management investment company or series thereof that 
currently exist or that may be created in the future (each, included 
in the term ``Fund''), each of which will operate as an actively-
managed ETF. Any Fund will (a) be advised by ClearShares or an 
entity controlling, controlled by, or under common control with 
ClearShares (each, an ``Adviser'') and (b) comply with the terms and 
conditions of the application.
---------------------------------------------------------------------------

    2. Each Fund will consist of a portfolio of securities and other 
assets and investment positions (``Portfolio Instruments''). Each Fund 
will disclose on its Web site the identities and quantities of the 
Portfolio Instruments that will form the basis for the Fund's 
calculation of NAV at the end of the day.
    3. Shares will be purchased and redeemed in Creation Units and 
generally on an in-kind basis. Except where the purchase or redemption 
will include cash under the limited circumstances specified in the 
application, purchasers will be required to purchase Creation Units by 
depositing specified instruments (``Deposit Instruments''), and 
shareholders redeeming their shares will receive specified instruments 
(``Redemption Instruments''). The Deposit Instruments and the 
Redemption Instruments will each correspond pro rata to the positions 
in the Fund's portfolio (including cash positions) except as specified 
in the application.
    4. Because shares will not be individually redeemable, applicants 
request an exemption from section 5(a)(1) and section 2(a)(32) of the 
Act that would permit the Funds to register as open-end management 
investment companies and issue shares that are redeemable in Creation 
Units only.
    5. Applicants also request an exemption from section 22(d) of the 
Act and rule 22c-1 under the Act as secondary market trading in shares 
will take place at negotiated prices, not at a current offering price 
described in a Fund's prospectus, and not at a price based on NAV. 
Applicants state that (a) secondary market trading in shares does not 
involve a Fund as a party and will not result in dilution of an 
investment in shares, and (b) to the extent different prices exist 
during a given trading day, or from day to day, such variances occur as 
a result of third-party market forces, such as supply and demand. 
Therefore, applicants assert that secondary market transactions in 
shares will not lead to discrimination or preferential treatment among 
purchasers. Finally, applicants represent that share market prices will 
be disciplined by arbitrage opportunities, which should prevent shares 
from trading at a material discount or premium from NAV.
    6. With respect to Funds that hold non-U.S. Portfolio Instruments 
and that effect creations and redemptions of Creation Units in kind, 
applicants request relief from the requirement imposed by section 22(e) 
in order to allow such Funds to pay redemption proceeds within fifteen 
calendar days following the tender of Creation Units for redemption. 
Applicants assert that the requested relief would not be inconsistent 
with the spirit and intent of section 22(e) to prevent unreasonable, 
undisclosed or unforeseen delays in the actual payment of redemption 
proceeds.
    7. Applicants request an exemption to permit Funds of Funds to 
acquire Fund shares beyond the limits of section 12(d)(1)(A) of the 
Act; and the Funds, and any principal underwriter for the Funds, and/or 
any broker or dealer registered under the Exchange Act, to sell shares 
to Funds of Funds beyond the limits of section 12(d)(1)(B) of the Act. 
The application's terms and conditions are designed to, among other 
things, help prevent any potential (i) undue influence over a Fund 
through control or voting power, or in connection with certain 
services, transactions, and underwritings, (ii) excessive layering of 
fees, and (iii) overly complex fund structures, which are the concerns 
underlying the limits in sections 12(d)(1)(A) and (B) of the Act.
    8. Applicants request an exemption from sections 17(a)(1) and 
17(a)(2) of the Act to permit persons that are Affiliated Persons, or 
Second Tier Affiliates, of the Funds, solely by virtue of certain 
ownership interests, to effectuate purchases and redemptions in-kind. 
The deposit procedures for in-kind purchases of Creation Units and the 
redemption procedures for in-kind redemptions of Creation Units will be 
the same for all purchases and redemptions and Deposit Instruments and 
Redemption Instruments will be valued in the same manner as those 
Portfolio Instruments currently held by the Funds. Applicants also seek 
relief from the prohibitions on affiliated transactions in section 
17(a) to permit a Fund to sell its shares to and redeem its shares from 
a Fund of Funds, and to engage in the accompanying in-kind transactions 
with the Fund of Funds.\2\ The purchase of Creation Units by a Fund of 
Funds directly from a Fund will be accomplished in accordance with the 
policies of the Fund of Funds and will be based on the NAVs of the 
Funds.
---------------------------------------------------------------------------

    \2\ The requested relief would apply to direct sales of shares 
in Creation Units by a Fund to a Fund of Funds and redemptions of 
those shares. Applicants, moreover, are not seeking relief from 
section 17(a) for, and the requested relief will not apply to, 
transactions where a Fund could be deemed an Affiliated Person, or a 
Second-Tier Affiliate, of a Fund of Funds because an Adviser or an 
entity controlling, controlled by or under common control with an 
Adviser provides investment advisory services to that Fund of Funds.
---------------------------------------------------------------------------

    9. Applicants also request relief to permit a Feeder Fund to 
acquire shares of another registered investment company managed by the 
Adviser having substantially the same investment objectives as the 
Feeder Fund (``Master Fund'') beyond the limitations in section 
12(d)(1)(A) and permit the Master Fund, and any principal underwriter 
for the Master Fund, to sell shares of the Master Fund to the Feeder 
Fund beyond the limitations in section 12(d)(1)(B).
    10. Section 6(c) of the Act permits the Commission to exempt any 
persons or transactions from any provision of the Act if such exemption 
is necessary or appropriate in the public interest and consistent with 
the protection of investors and the purposes fairly intended by the 
policy and provisions of the Act. Section 12(d)(1)(J) of the Act 
provides that the Commission may exempt any person, security, or 
transaction, or any class or classes of persons, securities, or 
transactions, from any provision of section 12(d)(1) if the

[[Page 21284]]

exemption is consistent with the public interest and the protection of 
investors. Section 17(b) of the Act authorizes the Commission to grant 
an order permitting a transaction otherwise prohibited by section 17(a) 
if it finds that (a) the terms of the proposed transaction are fair and 
reasonable and do not involve overreaching on the part of any person 
concerned; (b) the proposed transaction is consistent with the policies 
of each registered investment company involved; and (c) the proposed 
transaction is consistent with the general purposes of the Act.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017-09065 Filed 5-4-17; 8:45 am]
 BILLING CODE 8011-01-P



                                                21282                              Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Notices

                                                adopting Rule 10b–17 will not be                         event that any material change occurs                  Funds to pay redemption proceeds,
                                                implicated.7                                             with respect to any of the facts or                    under certain circumstances, more than
                                                                                                         representations made by the Requestors,                seven days after the tender of shares for
                                                Conclusion
                                                                                                         and, as is the case with all preceding                 redemption; (d) certain affiliated
                                                   It is hereby ordered, pursuant to Rule                relief for ETFs, particularly with respect             persons of a Fund to deposit securities
                                                101(d) of Regulation M, that the Trust,                  to the close alignment between the                     into, and receive securities from, the
                                                based on the representations and facts                   market price of Shares and the Fund’s                  Fund in connection with the purchase
                                                presented in the Letter, is exempt from                  NAV. In addition, persons relying on                   and redemption of Creation Units; (e)
                                                the requirements of Rule 101 with                        these exemptions are directed to the                   certain registered management
                                                respect to Shares of the Fund, thus                      anti-fraud and anti-manipulation                       investment companies and unit
                                                permitting persons who may be deemed                     provisions of the Exchange Act,                        investment trusts outside of the same
                                                to be participating in a distribution of                 particularly Sections 9(a), 10(b), and                 group of investment companies as the
                                                Shares of the Fund to bid for or                         Rule 10b–5 thereunder. Responsibility                  Funds (‘‘Funds of Funds’’) to acquire
                                                purchase such Shares during their                        for compliance with these and any other                shares of the Funds; and (f) certain
                                                participation in such distribution.                      applicable provisions of the federal                   Funds (‘‘Feeder Funds’’) to create and
                                                   It is further ordered, pursuant to Rule               securities laws must rest with the                     redeem Creation Units in-kind in a
                                                102(e) of Regulation M, that the Trust,                  persons relying on these exemptions.                   master-feeder structure.
                                                based on the representations and the                       This Order should not be considered                  APPLICANTS: ETF Series Solutions
                                                facts presented in the Letter, is exempt                 a view with respect to any other                       (‘‘Trust’’), a Delaware statutory trust
                                                from the requirements of Rule 102 with                   question that the proposed transactions                registered under the Act as an open-end
                                                respect to the Fund, thus permitting the                 may raise, including, but not limited to,              management investment company with
                                                Fund to redeem Shares of the Fund                        the adequacy of the disclosure                         multiple series, ClearShares LLC
                                                during the continuous offering of such                   concerning, and the applicability of                   (‘‘ClearShares’’), a Delaware limited
                                                Shares.                                                  other federal or state laws to, the                    liability company that is registered as an
                                                   It is further ordered, pursuant to Rule               proposed transactions.                                 investment adviser under the
                                                10b–17(b)(2), that the Trust, based on                     For the Commission, by the Division of               Investment Advisers Act of 1940, and
                                                the representations and the facts                        Trading and Markets, pursuant to delegated             Quasar Distributors, LLC
                                                presented in the Letter and subject to                   authority.8                                            (‘‘Distributor’’), a Delaware limited
                                                the conditions below, is exempt from                     Eduardo A. Aleman,                                     liability company and broker-dealer
                                                the requirements of Rule 10b–17 with                     Assistant Secretary.                                   registered under the Securities
                                                respect to the transactions in the Shares                [FR Doc. 2017–09080 Filed 5–4–17; 8:45 am]             Exchange Act of 1934 (‘‘Exchange Act’’).
                                                of the Fund.                                                                                                    FILING DATES: The application was filed
                                                                                                         BILLING CODE 8011–01–P
                                                   The exemption from Rule 10b–17 is
                                                                                                                                                                on January 24, 2017.
                                                subject to the following conditions:
                                                   • The Trust will comply with Rule                                                                            HEARING OR NOTIFICATION OF HEARING: An
                                                                                                         SECURITIES AND EXCHANGE                                order granting the requested relief will
                                                10b–17, except for Rule 10b–
                                                                                                         COMMISSION                                             be issued unless the Commission orders
                                                17(b)(1)(v)(a) and (b); and
                                                   • The Trust will provide the                          [Investment Company Act Release No.                    a hearing. Interested persons may
                                                information required by Rule 10b–                        32620; 812–14739]                                      request a hearing by writing to the
                                                17(b)(1)(v)(a) and (b) to the Exchange as                                                                       Commission’s Secretary and serving
                                                soon as practicable before trading begins                ClearShares, LLC et al.                                applicants with a copy of the request,
                                                on the ex-dividend date, but in no event                                                                        personally or by mail. Hearing requests
                                                                                                         May 1, 2017.
                                                later than the time when the Exchange                                                                           should be received by the Commission
                                                                                                         AGENCY: Securities and Exchange                        by 5:30 p.m. on May 26, 2017, and
                                                last accepts information relating to                     Commission (‘‘Commission’’).
                                                distributions on the day before the ex-                                                                         should be accompanied by proof of
                                                                                                         ACTION: Notice.                                        service on applicants, in the form of an
                                                dividend date.
                                                   This exemptive relief is subject to                      Notice of an application for an order               affidavit, or for lawyers, a certificate of
                                                modification or revocation at any time                   under section 6(c) of the Investment                   service. Pursuant to rule 0–5 under the
                                                the Commission determines that such                      Company Act of 1940 (the ‘‘Act’’) for an               Act, hearing requests should state the
                                                action is necessary or appropriate in                    exemption from sections 2(a)(32),                      nature of the writer’s interest, any facts
                                                furtherance of the purposes of the                       5(a)(1), 22(d), and 22(e) of the Act and               bearing upon the desirability of a
                                                Exchange Act. These exemptions are                       rule 22c–1 under the Act, under                        hearing on the matter, the reason for the
                                                based on the facts presented and the                     sections 6(c) and 17(b) of the Act for an              request, and the issues contested.
                                                representations made in the Letter. Any                  exemption from sections 17(a)(1) and                   Persons who wish to be notified of a
                                                different facts or representations may                   17(a)(2) of the Act, and under section                 hearing may request notification by
                                                require a different response. Persons                    12(d)(1)(J) of the Act for an exemption                writing to the Commission’s Secretary.
                                                relying upon this exemptive relief shall                 from sections 12(d)(1)(A) and                          ADDRESSES: Secretary, Securities and
                                                promptly present the facts for the                       12(d)(1)(B) of the Act. The requested                  Exchange Commission, 100 F Street NE.,
                                                Commission’s consideration in the                        order would permit (a) actively-                       Washington, DC 20549–1090;
                                                                                                         managed series of certain open-end                     Applicants: W. John McGuire, Esq.,
                                                   7 We also note that timely compliance with Rule
                                                                                                         management investment companies                        Morgan, Lewis & Bockius, LLP, 1111
SRADOVICH on DSK3GMQ082PROD with NOTICES




                                                10b–17(b)(1)(v)(a) and (b) would be impractical in       (‘‘Funds’’) to issue shares redeemable in              Pennsylvania Avenue NW., Washington,
                                                light of the Fund’s nature because it is not possible                                                           DC 20004–2541 and Michael D.
                                                for the Fund to accurately project ten days in           large aggregations only (‘‘Creation
                                                advance what dividend, if any, would be paid on          Units’’); (b) secondary market                         Barolsky, Esq., U.S. Bancorp Fund
                                                a particular record date. Further, the Commission        transactions in Fund shares to occur at                Services, LLC, 615 E. Michigan Street,
                                                finds, based on the Requestors representations in        negotiated market prices rather than at                Milwaukee, WI 53202.
                                                the Letter, that the provision of notices as described
                                                                                                         net asset value (‘‘NAV’’); (c) certain                 FOR FURTHER INFORMATION CONTACT:
                                                in the Letter would not constitute a manipulative
                                                or deceptive device or contrivance comprehended                                                                 Rochelle Kauffman Plesset, Senior
                                                within the purpose of Rule 10b–17.                         8 17   CFR 200.30–3(a)(6) and (9).                   Counsel, at (202) 551–6840 or Daniele


                                           VerDate Sep<11>2014   17:43 May 04, 2017   Jkt 241001   PO 00000   Frm 00097     Fmt 4703   Sfmt 4703   E:\FR\FM\05MYN1.SGM   05MYN1


                                                                                   Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Notices                                                    21283

                                                Marchesani, Assistant Chief Counsel, at                 correspond pro rata to the positions in               overly complex fund structures, which
                                                (202) 551–6747 (Division of Investment                  the Fund’s portfolio (including cash                  are the concerns underlying the limits
                                                Management, Chief Counsel’s Office).                    positions) except as specified in the                 in sections 12(d)(1)(A) and (B) of the
                                                SUPPLEMENTARY INFORMATION: The                          application.                                          Act.
                                                following is a summary of the                              4. Because shares will not be                         8. Applicants request an exemption
                                                application. The complete application                   individually redeemable, applicants                   from sections 17(a)(1) and 17(a)(2) of the
                                                may be obtained via the Commission’s                    request an exemption from section                     Act to permit persons that are Affiliated
                                                Web site by searching for the file                      5(a)(1) and section 2(a)(32) of the Act               Persons, or Second Tier Affiliates, of the
                                                number, or for an applicant using the                   that would permit the Funds to register               Funds, solely by virtue of certain
                                                Company name box, at http://                            as open-end management investment                     ownership interests, to effectuate
                                                www.sec.gov/search/search.htm or by                     companies and issue shares that are                   purchases and redemptions in-kind. The
                                                calling (202) 551–8090.                                 redeemable in Creation Units only.                    deposit procedures for in-kind
                                                                                                           5. Applicants also request an                      purchases of Creation Units and the
                                                Summary of the Application                              exemption from section 22(d) of the Act               redemption procedures for in-kind
                                                   1. Applicants request an order that                  and rule 22c–1 under the Act as                       redemptions of Creation Units will be
                                                would allow Funds to operate as                         secondary market trading in shares will               the same for all purchases and
                                                actively-managed exchange traded                        take place at negotiated prices, not at a             redemptions and Deposit Instruments
                                                funds (‘‘ETFs’’).1 Fund shares will be                  current offering price described in a                 and Redemption Instruments will be
                                                purchased and redeemed at their NAV                     Fund’s prospectus, and not at a price                 valued in the same manner as those
                                                in Creation Units only. All orders to                   based on NAV. Applicants state that (a)               Portfolio Instruments currently held by
                                                purchase Creation Units and all                         secondary market trading in shares does               the Funds. Applicants also seek relief
                                                redemption requests will be placed by                   not involve a Fund as a party and will                from the prohibitions on affiliated
                                                or through an ‘‘Authorized Participant’’,               not result in dilution of an investment               transactions in section 17(a) to permit a
                                                which will have signed a participant                    in shares, and (b) to the extent different            Fund to sell its shares to and redeem its
                                                agreement with the Distributor. Shares                  prices exist during a given trading day,              shares from a Fund of Funds, and to
                                                will be listed and traded individually on               or from day to day, such variances occur              engage in the accompanying in-kind
                                                a national securities exchange, where                   as a result of third-party market forces,             transactions with the Fund of Funds.2
                                                share prices will be based on the current               such as supply and demand. Therefore,                 The purchase of Creation Units by a
                                                bid/offer market. Certain Funds may                     applicants assert that secondary market               Fund of Funds directly from a Fund will
                                                operate as Feeder Funds in a master-                    transactions in shares will not lead to               be accomplished in accordance with the
                                                feeder structure. Any order granting the                discrimination or preferential treatment              policies of the Fund of Funds and will
                                                requested relief would be subject to the                among purchasers. Finally, applicants                 be based on the NAVs of the Funds.
                                                terms and conditions stated in the                      represent that share market prices will                  9. Applicants also request relief to
                                                application.                                            be disciplined by arbitrage                           permit a Feeder Fund to acquire shares
                                                   2. Each Fund will consist of a                       opportunities, which should prevent                   of another registered investment
                                                portfolio of securities and other assets                shares from trading at a material                     company managed by the Adviser
                                                and investment positions (‘‘Portfolio                   discount or premium from NAV.                         having substantially the same
                                                Instruments’’). Each Fund will disclose                    6. With respect to Funds that hold                 investment objectives as the Feeder
                                                on its Web site the identities and                      non-U.S. Portfolio Instruments and that               Fund (‘‘Master Fund’’) beyond the
                                                quantities of the Portfolio Instruments                 effect creations and redemptions of                   limitations in section 12(d)(1)(A) and
                                                that will form the basis for the Fund’s                 Creation Units in kind, applicants                    permit the Master Fund, and any
                                                calculation of NAV at the end of the                    request relief from the requirement                   principal underwriter for the Master
                                                day.                                                    imposed by section 22(e) in order to                  Fund, to sell shares of the Master Fund
                                                   3. Shares will be purchased and                      allow such Funds to pay redemption                    to the Feeder Fund beyond the
                                                redeemed in Creation Units and                          proceeds within fifteen calendar days                 limitations in section 12(d)(1)(B).
                                                generally on an in-kind basis. Except                   following the tender of Creation Units                   10. Section 6(c) of the Act permits the
                                                where the purchase or redemption will                   for redemption. Applicants assert that                Commission to exempt any persons or
                                                include cash under the limited                          the requested relief would not be                     transactions from any provision of the
                                                circumstances specified in the                          inconsistent with the spirit and intent of            Act if such exemption is necessary or
                                                application, purchasers will be required                section 22(e) to prevent unreasonable,                appropriate in the public interest and
                                                to purchase Creation Units by                           undisclosed or unforeseen delays in the               consistent with the protection of
                                                depositing specified instruments                        actual payment of redemption proceeds.                investors and the purposes fairly
                                                (‘‘Deposit Instruments’’), and                             7. Applicants request an exemption to              intended by the policy and provisions of
                                                shareholders redeeming their shares                     permit Funds of Funds to acquire Fund                 the Act. Section 12(d)(1)(J) of the Act
                                                will receive specified instruments                      shares beyond the limits of section                   provides that the Commission may
                                                (‘‘Redemption Instruments’’). The                       12(d)(1)(A) of the Act; and the Funds,                exempt any person, security, or
                                                Deposit Instruments and the                             and any principal underwriter for the                 transaction, or any class or classes of
                                                Redemption Instruments will each                        Funds, and/or any broker or dealer                    persons, securities, or transactions, from
                                                                                                        registered under the Exchange Act, to                 any provision of section 12(d)(1) if the
                                                  1 Applicants request that the order apply to the      sell shares to Funds of Funds beyond
                                                new series of the Trust as well as to additional        the limits of section 12(d)(1)(B) of the                 2 The requested relief would apply to direct sales
SRADOVICH on DSK3GMQ082PROD with NOTICES




                                                series of the Trust and any other open-end              Act. The application’s terms and                      of shares in Creation Units by a Fund to a Fund of
                                                management investment company or series thereof                                                               Funds and redemptions of those shares. Applicants,
                                                that currently exist or that may be created in the
                                                                                                        conditions are designed to, among other               moreover, are not seeking relief from section 17(a)
                                                future (each, included in the term ‘‘Fund’’), each of   things, help prevent any potential (i)                for, and the requested relief will not apply to,
                                                which will operate as an actively-managed ETF.          undue influence over a Fund through                   transactions where a Fund could be deemed an
                                                Any Fund will (a) be advised by ClearShares or an       control or voting power, or in                        Affiliated Person, or a Second-Tier Affiliate, of a
                                                entity controlling, controlled by, or under common                                                            Fund of Funds because an Adviser or an entity
                                                control with ClearShares (each, an ‘‘Adviser’’) and
                                                                                                        connection with certain services,                     controlling, controlled by or under common control
                                                (b) comply with the terms and conditions of the         transactions, and underwritings, (ii)                 with an Adviser provides investment advisory
                                                application.                                            excessive layering of fees, and (iii)                 services to that Fund of Funds.



                                           VerDate Sep<11>2014   17:43 May 04, 2017   Jkt 241001   PO 00000   Frm 00098   Fmt 4703   Sfmt 4703   E:\FR\FM\05MYN1.SGM   05MYN1


                                                21284                              Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Notices

                                                exemption is consistent with the public                 including a response letter from FICC.                  a qualified institutional buyer (‘‘QIB’’),
                                                interest and the protection of investors.               For the reasons discussed below, the                    as defined in Rule 144A 10 under the
                                                Section 17(b) of the Act authorizes the                 Commission is approving the Proposed                    Securities Act of 1933.11
                                                Commission to grant an order                            Rule Change.                                               The Proposed Rule Change would
                                                permitting a transaction otherwise                                                                              eliminate the RIC requirement.
                                                                                                        II. Description of the Proposed Rule
                                                prohibited by section 17(a) if it finds                                                                         However, in order to ensure that
                                                                                                        Change
                                                that (a) the terms of the proposed                                                                              Sponsored Members are financially
                                                transaction are fair and reasonable and                    The Proposed Rule Change consists of                 sophisticated, FICC would retain the
                                                do not involve overreaching on the part                 changes to the Government Securities                    QIB requirement to the extent that the
                                                of any person concerned; (b) the                        Division (‘‘GSD’’) Rulebook (‘‘Rules’’) 5               Sponsored Member’s legal entity type
                                                proposed transaction is consistent with                 in order to (i) expand the types of                     falls under one of the enumerated
                                                the policies of each registered                         entities that are eligible to participate in            categories of Rule 144A’s QIB
                                                investment company involved; and (c)                    FICC’s Sponsored Membership program                     definition.12 For institutional firms
                                                the proposed transaction is consistent                  as Sponsored Members, and (ii) make                     whose entity types do not clearly fall
                                                with the general purposes of the Act.                   amendments and clarifications to the                    into one of the enumerated categories in
                                                                                                        Rules relating to the Sponsored                         Rule 144A’s QIB definition, FICC
                                                  For the Commission, by the Division of
                                                Investment Management, under delegated                  Membership service in general.                          proposes to require that such Sponsored
                                                authority.                                              A. The Proposed Expansion of                            Members satisfy the financial
                                                Eduardo A. Aleman,                                      Sponsored Member Eligibility                            requirements that an entity specifically
                                                Assistant Secretary.                                                                                            listed in paragraph (a)(1)(i) of Rule 144A
                                                                                                           Currently, GSD Bank Netting                          must satisfy in order to be a QIB.13
                                                [FR Doc. 2017–09065 Filed 5–4–17; 8:45 am]              Members that are well-capitalized with
                                                                                                                                                                   Because the proposal would newly
                                                BILLING CODE 8011–01–P                                  at least $5 billion in equity capital are
                                                                                                                                                                permit non-U.S. entities to become
                                                                                                        permitted to serve as Sponsoring
                                                                                                                                                                Sponsored Members, FICC proposes to
                                                                                                        Members and sponsor certain
                                                SECURITIES AND EXCHANGE                                                                                         amend the GSD Rules to provide that
                                                                                                        institutional firms into GSD
                                                COMMISSION                                                                                                      such entities would be considered FFI
                                                                                                        membership as Sponsored Members.6 A
                                                                                                                                                                Members 14 subject to FATCA
                                                [Release No. 34–80563; File No. SR–FICC–                Sponsoring Member is permitted to
                                                                                                                                                                compliance obligations.15
                                                2017–003]                                               submit to FICC for comparison,
                                                                                                        novation, and netting certain types of                     The proposal would also clarify that
                                                Self-Regulatory Organizations; Fixed                    eligible transactions between itself and                the existing requirement on all
                                                Income Clearing Corporation; Order                      its Sponsored Members (‘‘Sponsored                      Sponsored Members and their
                                                Approving a Proposed Rule Change,                       Member Trades’’).7 For operational and                  Sponsoring Members to comply with all
                                                as Modified by Amendment No. 1, To                      administrative purposes, FICC interacts                 applicable laws includes the
                                                Expand the Types of Entities That Are                   solely with the Sponsoring Member as                    requirement to comply with global
                                                Eligible To Participate in Fixed Income                 agent for purposes of the day-to-day                    sanctions laws.
                                                Clearing Corporation as Sponsored                       satisfaction of its Sponsored Members’
                                                Members and Make Other Changes                          obligations to FICC, including the
                                                                                                                                                                  10 17  CFR 230.144A.
                                                                                                                                                                  11 15  U.S.C. 77a et. seq.
                                                May 1, 2017.                                            Sponsored Members’ securities and                          12 17 CFR 230.144A(a)(1)(i) defines a qualified
                                                                                                        funds-only settlement obligations.8                     institutional buyer as an entity ‘‘. . . acting for its
                                                I. Introduction                                            Currently, eligibility to become a                   own account or the accounts of other qualified
                                                   On March 1, 2017, Fixed Income                       Sponsored Member is limited to                          institutional buyers, that in the aggregate owns and
                                                                                                        investment companies that are                           invests on a discretionary basis at least $100 million
                                                Clearing Corporation (‘‘FICC’’) filed                                                                           in securities of issuers that are not affiliated with
                                                with the Securities and Exchange                        registered under the Investment                         the entity. . . .’’
                                                Commission (‘‘Commission’’) proposed                    Company Act of 1940 9 (each, a                             13 See Notice, 82 FR at 14266. Because

                                                rule change SR–FICC–2017–003,                           ‘‘Registered Investment Company’’ or                    conceptions of financial sophistication may change
                                                                                                        ‘‘RIC’’) and that meet the definition of                over time, FICC’s proposal ties this requirement to
                                                pursuant to Section 19(b)(1) of the                                                                             the QIB definition in Rule 144A, as such definition
                                                Securities Exchange Act of 1934                                                                                 may be amended from time to time.
                                                (‘‘Act’’) 1 and Rule 19b–4 thereunder.2                 Letter’’); letter from Robert E. Pooler Jr., Chief         14 See Notice, 82 FR at 14267. Pursuant to Rule
                                                                                                        Financial Officer, Ronin Capital, LLC (‘‘Ronin’’),
                                                On March 13, 2017, FICC filed                           dated April 7, 2017, to Robert W. Errett, Deputy
                                                                                                                                                                1, the term ‘‘FFI Member’’ means ‘‘any Person that
                                                Amendment No. 1 to the proposed rule                                                                            is treated as a non-U.S. entity for U.S. federal
                                                                                                        Secretary, Commission (‘‘Ronin Letter I’’); letter
                                                                                                                                                                income tax purposes.’’ Rules, supra note 5. For the
                                                change, which amended and replaced                      from Murray Pozmanter, Managing Director, FICC,
                                                                                                                                                                avoidance of doubt, the term FFI Member also
                                                the original filing in its entirety                     dated April 17, 2017, to Robert W. Errett, Deputy
                                                                                                                                                                includes ‘‘any Member that is a U.S. branch of an
                                                                                                        Secretary, Commission (‘‘FICC Letter’’); letter from
                                                (hereinafter, ‘‘Proposed Rule Change’’).                Robert E. Pooler Jr., Chief Financial Officer, Ronin,
                                                                                                                                                                entity that is treated as a non-U.S. entity for U.S.
                                                The Proposed Rule Change was                                                                                    federal income tax purposes.’’ Id.
                                                                                                        dated April 20, 2017, to Robert W. Errett, Deputy          15 FATCA is the Foreign Account Tax
                                                published for comment in the Federal                    Secretary, Commission (‘‘Ronin Letter II’’) available
                                                                                                                                                                Compliance Act, 26 U.S.C. 1471 et seq. The Rules
                                                Register on March 17, 2017.3 The                        at https://www.sec.gov/comments/sr-ficc-2017-003/
                                                                                                        ficc2017003.htm.                                        define FATCA Compliant to mean that an ‘‘. . . FFI
                                                Commission received four comment                           5 Capitalized terms not defined herein are defined   Member has qualified under such procedures
                                                letters 4 to the Proposed Rule Change,                                                                          promulgated by the Internal Revenue Service . . .
                                                                                                        in the Rules, available at http://www.dtcc.com/
                                                                                                                                                                to establish exemption from withholding under
                                                                                                        legal/rules-and-procedures.
                                                                                                                                                                FATCA such that [FICC] would not be required to
SRADOVICH on DSK3GMQ082PROD with NOTICES




                                                  1 15  U.S.C. 78s(b)(1).                                  6 Rule 3A, Section 2, supra note 5.
                                                                                                                                                                withhold [anything] under FATCA . . . .’’ Rules,
                                                  2 17  CFR 240.19b–4.                                     7 The Sponsoring Member is required to establish
                                                                                                                                                                supra note 5. Although GSD has Members,
                                                   3 Securities Exchange Act Release No. 80236          an omnibus account at FICC for all of its Sponsored     including certain Bank Netting Members, which are
                                                (March 14, 2017), 82 FR 14265 (March 17, 2017)          Members’ FICC-cleared activity (‘‘Sponsoring            non-U.S. entities, currently there are no Sponsoring
                                                (SR–FICC–2017–003) (‘‘Notice’’).                        Member Omnibus Account’’), which is separate            Members that are non-U.S. entities. See Notice, 82
                                                   4 See letter from Stefan M. Gavell, Executive Vice   from the Sponsoring Member’s regular netting            FR at 14267. Any future Sponsoring Member or
                                                President and Head of Regulatory, Industry and          account. Rule 1; Rule 3A, Section 10, supra note 5.     Sponsored Member that is an FFI Member will be
                                                                                                           8 See Rule 3A, Sections 5, 6, 7, 8 and 9, supra
                                                Government Affairs, State Street Corporation                                                                    subject to the same FATCA Compliance screening
                                                (‘‘State Street’’), dated April 7, 2017, to Brent J.    note 5.                                                 as any other Member that is a non-U.S. entity.
                                                Fields, Secretary, Commission (‘‘State Street              9 15 U.S.C. 80a–1 et. seq.                           Proposed Rule 3A, Section 3.



                                           VerDate Sep<11>2014   17:43 May 04, 2017   Jkt 241001   PO 00000   Frm 00099   Fmt 4703   Sfmt 4703   E:\FR\FM\05MYN1.SGM      05MYN1



Document Created: 2018-11-08 08:39:06
Document Modified: 2018-11-08 08:39:06
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionNotice.
DatesThe application was filed on January 24, 2017.
ContactRochelle Kauffman Plesset, Senior Counsel, at (202) 551-6840 or Daniele Marchesani, Assistant Chief Counsel, at (202) 551-6747 (Division of Investment Management, Chief Counsel's Office).
FR Citation82 FR 21282 

2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR