[Federal Register Volume 79, Number 148 (Friday, August 1, 2014)]
[Notices]
[Pages 44901-44905]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-18121]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-72686; File No. SR-NYSEArca-2013-127]


Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
of Amendments No. 2 and No. 3, and Order Granting Accelerated Approval 
of a Proposed Rule Change, as Modified by Amendment No. 1, No. 2, and 
No. 3, To List and Trade Shares of Nine Series of the IndexIQ Active 
ETF Trust Under NYSE Arca Equities Rule 8.600

July 28, 2014.

I. Introduction

    On November 18, 2013, NYSE Arca, Inc. (``Exchange'' or ``NYSE 
Arca'') filed with the Securities and Exchange Commission 
(``Commission''), pursuant to Section 19(b)(1) of the Securities 
Exchange Act of 1934 (``Act'' or ``Exchange Act'') \1\ and Rule 19b-4 
thereunder,\2\ a proposed rule change to list and trade shares 
(``Shares'') of the IQ Long/Short Alpha ETF, IQ Bear U.S. Large Cap 
ETF, IQ Bear U.S. Small Cap ETF, IQ Bear International ETF, IQ Bear 
Emerging Markets ETF, IQ Bull U.S. Large Cap ETF, IQ Bull U.S. Small 
Cap ETF, IQ Bull International ETF and IQ Bull Emerging Markets ETF 
(each a ``Fund'' and, collectively, the ``Funds'') under NYSE Arca 
Equities Rule 8.600. On November 26, 2013, the Exchange filed Amendment 
No. 1 to the proposed rule change.\3\ The proposed rule change was 
published for comment in the Federal Register on December 4, 2013.\4\ 
On January 15, 2014, the Commission extended the time period for 
Commission action to March 4, 2014.\5\ On March 4, 2014, the Commission 
published for comment an order instituting proceedings under Section 
19(b)(2)(B) of the Act (``Order Instituting Proceedings'') to determine 
whether to approve or disapprove the proposed rule change, as modified 
by Amendment No. 1.\6\ On April 11, 2014, the Exchange submitted 
Amendment No. 2 to the proposed rule change.\7\ On May 28, 2014, the 
Commission extended the time period for Commission action to August 1, 
2014.\8\ The Commission received no comments on the proposed rule 
change. On July 25, 2014, the Exchange filed Amendment No. 3.\9\ This 
order approves the proposed rule change, as modified by Amendment Nos. 
1, 2, and 3, on an accelerated basis.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ In Amendment No. 1, the Exchange clarified: (1) How certain 
holdings will be valued for purposes of calculating a fund's net 
asset value, and (2) where investors will be able to obtain pricing 
information for certain underlying holdings.
    \4\ See Securities Exchange Act Release No. 70954 (November 27, 
2013), 78 FR 72955 (``Notice'').
    \5\ See Securities Exchange Act Release No. 71309 (January 15, 
2014), 79 FR 03657 (January 22, 2014).
    \6\ See Securities Exchange Act Release No. 71645 (March 4, 
2014), 79 FR 13349 (March 10, 2014) (``Order Instituting 
Proceedings'').
    \7\ In Amendment No. 2, the Exchange supplemented the 
information that would be provided daily regarding the contents of 
each Fund's portfolio. Specifically, the Exchange states: ``On a 
daily basis, the Funds will disclose on www.indexiq.com the 
following information regarding each portfolio holding, as 
applicable to the type of holding: Ticker symbol, CUSIP number or 
other identifier, if any; a description of the holding (including 
the type of holding, such as the type of swap); the identity of the 
security, commodity, index or other asset or instrument underlying 
the holding, if any; for options, the option strike price; quantity 
held (as measured by, for example, par value, notional value or 
number of shares, contracts or units); maturity date, if any; coupon 
rate, if any; effective date, if any; market value of the holding; 
and the percentage weighting of the holding in the applicable Fund's 
portfolio.''
    \8\ See Securities Exchange Act Release No. 72265 (May 28, 
2014), 79 FR 32008 (June 3, 2014).
    \9\ In Amendment No. 3, the Exchange addressed the impact of the 
derivatives held by the Funds on the Funds' arbitrage mechanisms, 
stating: ``The Adviser believes that there will be minimal, if any, 
impact to the arbitrage mechanism as a result of the use of 
derivatives. Market makers and participants should be able to value 
derivatives as long as the positions are disclosed with relevant 
information. The Adviser believes that the price at which Shares 
trade will continue to be disciplined by arbitrage opportunities 
created by the ability to purchase or redeem creation Shares at 
their NAV, which should ensure that Shares will not trade at a 
material discount or premium in relation to their NAV.
    The Adviser does not believe there will be any significant 
impacts to the settlement or operational aspects of each Fund's 
arbitrage mechanism due to the use of derivatives. Because 
derivatives generally are not eligible for in-kind transfer, they 
will typically be substituted with a ``cash in lieu'' amount when 
each Fund processes purchases or redemptions of creation units in-
kind.''
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II. Description of the Proposal \10\
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    \10\ Additional information regarding the Funds; Shares; 
investment objective; strategies, methodology and restrictions; 
risks; fees and expenses; creations and redemptions of Shares; 
availability of information; trading rules and halts; and 
surveillance procedures, among other things, can be found in the 
Registration Statement and in the Notice. See Notice, supra note 4, 
and Registration Statement, infra note 12, respectively.
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    The Exchange proposes to list and trade the Shares under NYSE Arca 
Equities Rule 8.600 (``Managed Fund Shares''), which governs the 
listing and trading of Managed Fund Shares.\11\ Each Fund is a series 
of the IndexIQ Active ETF Trust (``Trust'').\12\ IndexIQ Advisors LLC 
(``Adviser'') is the investment adviser for the Funds, and the Exchange 
states that the Adviser is not a broker-dealer and is not affiliated 
with a broker-dealer.\13\ The Bank of New York Mellon 
(``Administrator'') is the administrator, custodian, transfer agent, 
and securities lending agent for the Funds. ALPS Distributors Inc. 
(``Distributor'') is the distributor for the Funds.
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    \11\ A Managed Fund Share is a security that represents an 
interest in an investment company registered under the Investment 
Company Act of 1940 (15 U.S.C. 80a-1), as amended (``1940 Act''), 
organized as an open-end investment company or similar entity that 
invests in a portfolio of securities selected by its investment 
adviser consistent with its investment objectives and policies. In 
contrast, an open-end investment company that issues Investment 
Company Units, listed and traded on the Exchange under NYSE Arca 
Equities Rule 5.2(j)(3), seeks to provide investment results that 
correspond generally to the price and yield performance of a 
specific foreign or domestic stock index, fixed income securities 
index, or combination thereof.
    \12\ The Trust is registered under the 1940 Act. On September 
12, 2013, the Trust filed with the Commission an amendment to its 
registration statement on Form N-1A relating to the Funds (File Nos. 
333-183489 and 811-22739) (the ``Registration Statement''). The 
description of the operation of the Trust and the Funds herein is 
based, in part, on the Registration Statement. In addition, the 
Commission has issued an order granting certain exemptive relief to 
the Trusts under the 1940 Act. See Investment Company Act Release 
No. 30198 (September 10, 2012) (File No. 812-13956) (the ``Exemptive 
Order'').
    \13\ See Notice, supra note 4, 78 FR at 72956. The Exchange also 
states that, in the event that the Adviser becomes newly affiliated 
with a broker-dealer or any new adviser or subadviser is a 
registered broker-dealer or becomes affiliated with a broker-dealer, 
a firewall will be erected with respect to relevant personnel or its 
broker-dealer affiliate regarding access to information concerning 
the composition of or changes to a portfolio, and will be subject to 
procedures designed to prevent the use and dissemination of material 
non-public information regarding the portfolio. See id.
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A. Principal Investments of the Funds Under Normal Circumstances \14\
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    \14\ The Exchange states that the term ``under normal 
circumstances'' includes, but is not limited to, the absence of 
adverse market, economic, political, or other conditions, including 
extreme volatility or trading halts in the fixed income markets or 
the 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.
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1. IQ Long/Short Alpha ETF
    According to the Exchange, the investment objective of the IQ Long/
Short Alpha ETF is to seek capital appreciation. The Exchange states 
that

[[Page 44902]]

at least 80% of the Fund's assets will be exposed to equity securities 
of U.S. large capitalization companies \15\ by investing in exchange-
traded funds (``ETFs'') \16\ or swap agreements, options contracts, and 
futures contracts with economic characteristics similar to those of the 
ETFs for which they are substituted (such swap agreements, options 
contracts, and futures contracts, collectively, ``Financial 
Instruments'').\17\ The Exchange also states that the Fund will take 
long and short positions in U.S.-listed ETFs registered pursuant to the 
Investment Company Act of 1940 (``1940 Act'') holding primarily U.S. 
large capitalization equity securities. Cash balances arising from the 
use of short selling and derivatives typically will be held in money 
market instruments, according to the Exchange.\18\
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    \15\ According to the Registration Statement, the Adviser 
considers ``large capitalization companies'' to be those having 
market capitalizations of at least $5 billion.
    \16\ For purposes of this filing, ETFs include Investment 
Company Units (as described in NYSE Arca Equities Rule 5.2(j)(3)); 
Portfolio Depositary Receipts (as described in NYSE Arca Equities 
Rule 8.100); and Managed Fund Shares (as described in NYSE Arca 
Equities Rule 8.600). The ETFs will all be listed and traded in the 
U.S. on registered exchanges. The ETFs in which the Funds may invest 
will primarily be index-based exchange-traded funds that hold 
substantially all of their assets in securities representing a 
specific index. While the Funds may invest in inverse ETFs, the 
Funds will not invest in leveraged (e.g., 2X, -2X, 3X or -3X) ETFs.
    \17\ The Exchange represents that all options contracts and 
futures contracts will be listed on a U.S. national securities 
exchange or a non-U.S. securities exchange that is a member of the 
Intermarket Surveillance Group (``ISG'') or a party to a 
comprehensive surveillance sharing agreement with the Exchange.
    \18\ According to the Registration Statement, money market 
instruments are generally short-term cash instruments that have a 
remaining maturity of 397 days or less and exhibit high quality 
credit profiles. These include U.S. Treasury Bills and repurchase 
agreements.
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2. IQ Bear U.S. Large Cap ETF
    According to the Exchange, the investment objective of the IQ Bear 
U.S. Large Cap ETF is to seek capital appreciation. The Exchange states 
that at least 80% of the Fund's assets will be exposed to equity 
securities of U.S. large capitalization issuers, by taking short 
positions in ETFs or Financial Instruments. The Exchange also states 
that the Fund will take primarily short positions in U.S.-listed ETFs 
registered pursuant to the 1940 Act holding primarily U.S. large 
capitalization equity securities. Cash balances arising from the use of 
short selling and derivatives typically will be held in money market 
instruments, according to the Exchange.
3. IQ Bear U.S. Small Cap ETF
    According to the Exchange, the investment objective of the IQ Bear 
U.S. Small Cap ETF is to seek capital appreciation. The Exchange states 
that at least 80% of the Fund's assets will be exposed to equity 
securities of U.S. small capitalization companies \19\ by taking short 
positions in ETFs or Financial Instruments. Additionally, the Exchange 
states that the Fund will take primarily short positions in U.S.-listed 
ETFs registered pursuant to the 1940 Act holding primarily U.S. small 
capitalization equity securities. Cash balances arising from the use of 
short selling and derivatives typically will be held in money market 
instruments, according to the Exchange.
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    \19\ According to the Registration Statement, the Adviser will 
consider ``small capitalization companies'' to be those that having 
market capitalizations of between $300 million and $2 billion.
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4. IQ Bear International ETF
    According to the Exchange, the investment objective of the IQ Bear 
International ETF is to seek capital appreciation. The Exchange states 
that at least 80% of the Fund's assets will be exposed to equity 
securities of issuers domiciled in developed market countries \20\ by 
taking short positions in ETFs or Financial Instruments. Additionally, 
the Exchange states that the Fund will take primarily short positions 
in U.S.-listed ETFs registered pursuant to the 1940 Act holding 
primarily developed market equity securities. Cash balances arising 
from the use of short selling and derivatives typically will be held in 
money market instruments, according to the Exchange.
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    \20\ According to the Registration Statement, developed market 
countries will generally include Australia, Austria, Belgium, 
Denmark, Finland, France, Germany, Greece, Hong Kong, Ireland, 
Israel, Italy, Japan, the Netherlands, New Zealand, Norway, 
Portugal, Singapore, Spain, Sweden, Switzerland, and the United 
Kingdom. To the extent that the Adviser believes that countries 
should be added or subtracted to the developed markets category, the 
Adviser may adjust the list of countries accordingly.
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5. IQ Bear Emerging Markets ETF
    According to the Exchange, the investment objective of the IQ Bear 
Emerging Markets ETF is to seek capital appreciation. The Exchange 
states that at least 80% of the Fund's assets will be exposed to equity 
securities of issuers domiciled in emerging market countries,\21\ by 
taking short positions in ETFs or Financial Instruments. Cash balances 
arising from the use of short selling and derivatives typically will be 
held in money market instruments, according to the Exchange.
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    \21\ According to the Registration Statement, emerging market 
countries will generally include Brazil, Chile, China, Colombia, the 
Czech Republic, Egypt, Hungary, India, Indonesia, Malaysia, Mexico, 
Morocco, Peru, the Philippines, Poland, Russia, South Africa, South 
Korea, Taiwan, Thailand, and Turkey. To the extent that the Adviser 
believes that countries should be added or subtracted to the 
emerging markets category, it may adjust the list of countries 
accordingly.
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6. IQ Bull U.S. Large Cap ETF
    According to the Exchange, the investment objective of the IQ Bull 
U.S. Large Cap ETF is to seek capital appreciation. The Exchange states 
that at least 80% of the Fund's assets will be exposed to equity 
securities of U.S. large capitalization issuers \22\ by investing in 
ETFs or Financial Instruments. Cash balances arising from the use of 
short selling and derivatives typically will be held in money market 
instruments, according to the Exchange.
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    \22\ See note 15, supra.
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7. IQ Bull U.S. Small Cap ETF
    According to the Exchange, the investment objective of the IQ Bull 
U.S. Small Cap ETF is to seek capital appreciation. The Exchange states 
that at least 80% of the Fund's assets will be exposed to equity 
securities of U.S. small capitalization issuers \23\ by investing in 
ETFs or Financial Instruments. Cash balances arising from the use of 
short selling and derivatives typically will be held in money market 
instruments, according to the Exchange.
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    \23\ See note 19, supra.
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8. IQ Bull International ETF
    According to the Exchange, the investment objective of the IQ Bull 
International ETF is to seek capital appreciation. The Exchange states 
that at least 80% of the Fund's assets will be exposed to equity 
securities of issuers domiciled in developed market countries \24\ by 
investing in ETFs or Financial Instruments. Cash balances arising from 
the use of short selling and derivatives typically will be held in 
money market instruments, according to the Exchange.
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    \24\ See note 20, supra.
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9. IQ Bull Emerging Markets ETF
    According to the Exchange, the investment objective of the IQ Bull 
Emerging Markets ETF is to seek capital appreciation. The Exchange 
states that at least 80% of the Fund's assets will be exposed to equity 
securities of issuers domiciled in emerging market countries \25\ by 
investing in ETFs or Financial Instruments. Cash balances arising from 
the use of short selling and derivatives typically will be held in

[[Page 44903]]

money market instruments, according to the Exchange.
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    \25\ See note 21, supra.
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B. Other Investments of the Funds (Under Normal Circumstances)

    The Exchange states that each Fund may invest a portion of its 
assets in high-quality money market instruments on an ongoing basis. 
The instruments in which each Fund may invest include: (1) Short-term 
obligations issued by the U.S. government; (2) negotiable certificates 
of deposit (``CDs''), fixed time deposits, and bankers' acceptances of 
U.S. and foreign banks and similar institutions; (3) commercial paper 
rated at the date of purchase ``Prime-1'' by Moody's Investors Service, 
Inc. or ``A-1+'' or ``A-1'' by Standard & Poor's Ratings Group, Inc., 
or, if unrated, of comparable quality as determined by the Adviser; (4) 
repurchase agreements (only from or to a commercial bank or a broker-
dealer, and only if the repurchase is scheduled to occur within seven 
days or less); and (5) money market mutual funds. CDs are short-term 
negotiable obligations of commercial banks.
    The Exchange states that each Fund may invest directly in non-ETF 
equity securities, including U.S.-listed and non-U.S. listed equity 
securities, provided, however, that all equity securities in which the 
Funds may invest will be listed on a U.S. national securities exchange 
or a non-U.S. securities exchange that is a member of the Intermarket 
Surveillance Group (``ISG'') or a party to a comprehensive surveillance 
sharing agreement with the Exchange.
    In addition to ETFs, the Funds may invest in U.S.-listed exchange-
traded notes \26\ and other U.S.-listed exchange-traded products,\27\ 
according to the Exchange.
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    \26\ Exchange-traded notes are securities such as those listed 
and traded on the Exchange under NYSE Arca Equities Rule 5.2(j)(6).
    \27\ For purposes of this filing, other U.S.-listed exchange-
traded products include Trust Issued Receipts (as described in NYSE 
Arca Equities Rule 8.200), Commodity-Based Trust Shares (as 
described in NYSE Arca Equities Rule 8.201), Currency Trust Shares 
(as described in NYSE Arca Equities Rule 8.202), Commodity Index 
Trust Shares (as described in NYSE Arca Equities Rule 8.203), and 
Trust Units (as described in NYSE Arca Equities Rule 8.500).
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    The Exchange states that certain Funds may use American depositary 
receipts, European depositary receipts, and Global depositary receipts 
when, in the discretion of the Adviser, the use of such securities is 
warranted for liquidity, pricing, timing, or other reasons. The 
Exchange represents that no Fund will invest more than 10% of its net 
assets in unsponsored depositary receipts.\28\
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    \28\ See Notice, supra note 4, 78 FR at 72960.
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C. Fund Investment Restrictions

    Each Fund will seek to qualify for treatment as a regulated 
investment company under Subchapter M of the Internal Revenue Code of 
1986, as amended.\29\
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    \29\ 26 U.S.C. 151.
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    A Fund may hold up to an aggregate amount of 15% of its net assets 
in illiquid assets (calculated at the time of investment), including 
Rule 144A Securities.\30\ The Funds will monitor their portfolio 
liquidity on an ongoing basis to determine whether, in the light of 
current circumstances, an adequate level of liquidity is being 
maintained, and the Funds will consider taking appropriate steps in 
order to maintain adequate liquidity if, through a change in values, 
net assets, or other circumstances, more than 15% of a Fund's net 
assets are held in illiquid securities and other illiquid assets.
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    \30\ The Commission has stated that long-standing Commission 
guidelines have required open-end funds to hold no more than 15% of 
their net assets in illiquid securities and other illiquid assets. 
See Investment Company Act Release No. 8901 (March 11, 2008), 73 FR 
14618 (March 18, 2008), footnote 34. See also Investment Company Act 
Release No. 5847 (October 21, 1969), 35 FR 19989 (December 31, 1970) 
(Statement Regarding ``Restricted Securities''); Investment Company 
Act Release No. 18612 (March 12, 1992), 57 FR 9828 (March 20, 1992) 
(Revisions of Guidelines to Form N-1A). A fund's portfolio security 
is illiquid if it cannot be disposed of in the ordinary course of 
business within seven days at approximately the value ascribed to it 
by the ETF. See Investment Company Act Release No. 14983 (March 12, 
1986), 51 FR 9773 (March 21, 1986) (adopting amendments to Rule 2a-7 
under the 1940 Act); Investment Company Act Release No. 17452 (April 
23, 1990), 55 FR 17933 (April 30, 1990) (adopting Rule 144A under 
the Securities Act of 1933).
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    A Fund will not invest more than 25% of its total assets, directly 
or indirectly (i.e., through underlying ETFs), in an individual 
industry, as defined by the Standard Industrial Classification Codes 
utilized by the Division of Corporate Finance of the Commission.\31\ 
This limitation does not apply to investments in securities issued or 
guaranteed by the U.S. Government or its agencies or instrumentalities 
or investments in shares of investment companies.
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    \31\ See Form N-1A, Item 9. The Commission has taken the 
position that a fund is concentrated if it invests more than 25% of 
the value of its total assets in any one industry. See, e.g., 
Investment Company Act Release No. 9011 (October 30, 1975), 40 FR 
54241 (November 21, 1975).
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    According to the Registration Statement, a Fund may not purchase or 
sell commodities or commodity contracts unless those assets have been 
acquired as a result of the ownership of securities or other 
instruments issued by persons that purchase or sell commodities or 
commodities contracts, but this shall not prevent the Fund from 
purchasing, selling, or entering into financial futures contracts 
(including futures contracts on indices of securities, interest rates, 
or currencies), options on financial futures contracts (including 
futures contracts on indices of securities, interest rates, or 
currencies), warrants, swaps, forward contracts, foreign currency spot 
and forward contracts, or other derivative instruments that are not 
related to physical commodities.

III. Discussion and Commission Findings

    After careful review, the Commission finds that the Exchange's 
proposal to list and trade the Shares is consistent with the Exchange 
Act and the rules and regulations thereunder applicable to a national 
securities exchange.\32\ In particular, the Commission finds that the 
proposed rule change is consistent with Section 6(b)(5) of the Exchange 
Act,\33\ which requires, among other things, that the Exchange's rules 
be designed to promote just and equitable principles of trade, to 
remove impediments to and perfect the mechanism of a free and open 
market and a national market system, and, in general, to protect 
investors and the public interest. The Commission notes that the Funds 
and the Shares must comply with the requirements of NYSE Arca Equities 
Rule 8.600 to be listed and traded on the Exchange.
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    \32\ In approving this proposed rule change, the Commission has 
considered the proposed rule's impact on efficiency, competition, 
and capital formation. See 15 U.S.C. 78c(f).
    \33\ 15 U.S.C. 78f(b)(5).
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    The Commission finds that the proposal to list and trade the Shares 
on the Exchange is consistent with Section 11A(a)(1)(C)(iii) of the 
Exchange Act,\34\ which sets forth Congress' finding that it is in the 
public interest and appropriate for the protection of investors and the 
maintenance of fair and orderly markets to assure the availability to 
brokers, dealers, and investors of information with respect to 
quotations for and transactions in securities. Quotation and last sale 
information for the Shares and the ETF shares underlying the Shares 
will be available via the Consolidated Tape Association (``CTA'') high-
speed line. Quotation and last-sale information for options contracts 
will be available via the Options Price Reporting Authority. 
Information regarding market price and trading volume of the Shares 
will be

[[Page 44904]]

continually available on a real-time basis throughout the day on 
brokers' computer screens and other electronic services. Information 
regarding the previous day's closing price and trading volume 
information for the Shares will be published daily in the financial 
section of newspapers. The Commission also believes that the proposal 
to list and trade the Shares is reasonably designed to promote fair 
disclosure of information that may be necessary to price the Shares 
appropriately and to prevent trading when a reasonable degree of 
transparency cannot be assured. On each business day, before 
commencement of trading in Shares in the Core Trading Session (9:30 
a.m. Eastern Time to 4:00 p.m. Eastern Time) on the Exchange, the Funds 
will disclose on their Web site the Disclosed Portfolio that will form 
the basis for the Funds' calculation of NAV at the end of the business 
day.\35\ The Web site information will be publicly available at no 
charge. The NAV of each Fund will be calculated by the Administrator 
and determined each business day as of the close of regular trading on 
the Exchange (ordinarily 4:00 p.m. Eastern Time). The Exchange will 
obtain a representation from the issuer of the Shares that the NAV per 
share will be calculated daily and that the NAV and the Disclosed 
Portfolio as defined in NYSE Arca Equities Rule 8.600(c)(2) will be 
made available to all market participants at the same time.\36\ 
According to the Exchange, information regarding the equity securities 
and other portfolio securities held by each Fund, as well as the 
securities that underlie the derivatives held by each Fund, will be 
available from the national securities exchange trading such 
securities, automated quotation systems, published or other public 
sources, or on-line information services.\37\ The Portfolio Indicative 
Value of the Funds, as defined in NYSE Arca Equities Rule 8.600(c)(3), 
will be widely disseminated by one or more major market data vendors at 
least every 15 seconds during the Core Trading Session.\38\ The Web 
site for the Funds will include a form of the prospectus for the Funds 
and additional data relating to NAV and other applicable quantitative 
information.\39\
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    \34\ 15 U.S.C. 78k-1(a)(1)(C)(iii).
    \35\ Under accounting procedures followed by the Funds, trades 
made on the prior business day (``T'') will be booked and reflected 
in NAV on the current business day (``T+1''). Accordingly, the Funds 
will be able to disclose at the beginning of the business day the 
portfolio that will form the basis for the NAV calculation at the 
end of the business day.
    \36\ See Notice, supra note 4, 78 FR 72963.
    \37\ See id. at 72962.
    \38\ The Exchange states that it understands that several major 
market data vendors display or make widely available PIVs taken from 
the CTA or other data feeds. See id. at 72962, n.29.
    \39\ See id. at 62964.
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    The Exchange represents that trading in Shares will be halted if 
the circuit breaker parameters in NYSE Arca Equities Rule 7.12 have 
been reached.\40\ Trading also may be halted because of market 
conditions or for reasons that, in the view of the Exchange, make 
trading in the Shares inadvisable,\41\ and trading in the Shares will 
be subject to NYSE Arca Equities Rule 8.600(d)(2)(D), which sets forth 
circumstances under which trading in the Shares may be halted. The 
Exchange states that it has a general policy prohibiting the 
distribution of material, non-public information by its employees. 
Consistent with NYSE Arca Equities Rule 8.600(d)(2)(B)(ii), the 
Adviser, as the Reporting Authority, must implement and maintain, or be 
subject to, procedures designed to prevent the use and dissemination of 
material, non-public information regarding the actual components of 
each Fund's portfolio.\42\ The Exchange states that the Adviser is not 
a broker-dealer and is not affiliated with a broker-dealer.\43\ Prior 
to the commencement of trading, the Exchange will inform its Equity 
Trading Permit Holders in an Information Bulletin of the special 
characteristics and risks associated with trading the Shares. The 
Financial Industry Regulatory Authority (``FINRA''), on behalf of the 
Exchange, will communicate as needed regarding trading in the Shares 
with other markets and other entities that are members of the ISG, and 
FINRA, on behalf of the Exchange, may obtain trading information 
regarding trading in the Shares from such markets and other entities. 
In addition, the Exchange may obtain information regarding trading in 
the Shares from markets and other entities that are members of ISG or 
with which the Exchange has in place a comprehensive surveillance 
sharing agreement.\44\
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    \40\ See id. at 72962.
    \41\ These may include: (1) The extent to which trading is not 
occurring in the securities or the financial instruments comprising 
the Disclosed Portfolio of a Fund; and (2) whether other unusual 
conditions or circumstances detrimental to the maintenance of a fair 
and orderly market are present. See id. at 72963.
    \42\ See NYSE Arca Equities Rule 8.600(d)(2)(D).
    \43\ See note 13, supra.
    \44\ For a list of the current members of ISG, see 
www.isgportal.org.
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    As discussed above, at least 80% of each Fund's assets will be 
exposed to equity securities of issuers domiciled in the U.S. or in 
developed or in emerging market countries, by investing in or taking 
short positions in ETFs or Financial Instruments. According to the 
Exchange, Financial Instruments are swap agreements, exchange-listed 
options contracts, and exchange-listed futures contracts with economic 
characteristics similar to those of the ETFs for which they are 
substituted. In the Order Instituting Proceedings, the Commission asked 
for public comment on (1) whether the Disclosed Portfolio of each Fund 
would include enough information to price the Financial Instruments, 
which may constitute a high percentage of each Fund's portfolio; and 
(2) what impact, if any, holding such a high percentage of Financial 
Instruments would have on the Funds' arbitrage mechanism.\45\
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    \45\ See Order Instituting Proceedings, supra note 6, 78 FR at 
13352.
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    After the Order Instituting Proceedings was published, the Exchange 
filed Amendment No. 2, which supplemented the information to be made 
public about the Funds' portfolios, providing that the Disclosed 
Portfolio for each Fund would include: Ticker symbol, CUSIP number or 
other identifier, if any; a description of the holding (including the 
type of holding, such as the type of swap); the identity of the 
security, commodity, index, or other asset or instrument underlying the 
holding, if any; for options, the option strike price; quantity held 
(as measured by, for example, par value, notional value, or number of 
shares, contracts, or units); maturity date, if any; coupon rate, if 
any; effective date, if any; market value of the holding; and the 
percentage weighting of the holding in the applicable Fund's portfolio. 
The Exchange states that there will be minimal, if any, impact to the 
traditional arbitrage mechanism as a result of the use of derivatives 
and that market makers and participants should be able to value the 
derivatives held by the Funds as long as the positions are disclosed 
with relevant information.\46\ The Exchange asserts that the price at 
which Shares trade will be disciplined by arbitrage opportunities 
created by the ability to purchase or redeem creation Shares at their 
NAV, which should ensure that Shares will not trade at a material 
discount or premium in relation to their NAV.\47\ In addition, the 
Exchange asserts that the use of derivatives will not significant 
affect the settlement or operational aspects of the Fund's arbitrage 
mechanism.\48\
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    \46\ See Amendment No. 3, supra note 9.
    \47\ See id.
    \48\ See id.
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    The Exchange deems the Shares to be equity securities, thus 
rendering trading in the Shares subject to the Exchange's existing 
rules governing the trading of

[[Page 44905]]

equity securities. In support of this proposal, the Exchange 
represented that:
    (1) The Shares will conform to the initial and continuing listing 
criteria under NYSE Arca Equities Rule 8.600.
    (2) Trading in the Shares will be subject to the existing trading 
surveillances, administered by FINRA on behalf of the Exchange, which 
are designed to detect violations of Exchange rules and applicable 
federal securities laws, and these procedures are adequate to properly 
monitor Exchange trading of the Shares in all trading sessions and to 
detect and help deter violations of Exchange rules and applicable 
federal securities laws.
    (3) Except for the unsponsored depository receipts referenced 
above,\49\ all equity securities in which the Funds may invest will be 
listed on a U.S. national securities exchange or a non-U.S. securities 
exchange that is a member of the ISG or a party to a comprehensive 
surveillance sharing agreement with the Exchange.
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    \49\ See text accompanying note 28, supra.
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    (4) The Exchange has appropriate rules to facilitate transactions 
in the Shares during all trading sessions.
    (5) Prior to the commencement of trading, the Exchange will inform 
its Equity Trading Permit Holders in an Information Bulletin of the 
special characteristics and risks associated with trading the Shares. 
Specifically, the Information Bulletin will discuss the following: (a) 
The procedures for purchases and redemptions of Shares in creation unit 
aggregations (and that Shares are not individually redeemable); (b) 
NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence 
on its Equity Trading Permit Holders to learn the essential facts 
relating to every customer prior to trading the Shares; (c) the risks 
involved in trading the Shares during the Opening and Late Trading 
Sessions when an updated Portfolio Indicative Value will not be 
calculated or publicly disseminated; (d) how information regarding the 
Portfolio Indicative Value is disseminated; (e) the requirement that 
Equity Trading Permit Holders deliver a prospectus to investors 
purchasing newly issued Shares prior to or concurrently with the 
confirmation of a transaction; and (f) trading information.
    (6) For initial and continued listing, the Funds will be in 
compliance with Rule 10A-3 under the Exchange Act,\50\ as provided by 
NYSE Arca Equities Rule 5.3.
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    \50\ 17 CFR 240.10A-3.
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    (7) Each Fund's investments will be consistent with its respective 
investment objective.
    (8) A Fund may hold up to an aggregate amount of 15% of its net 
assets in illiquid securities (calculated at the time of investment), 
including Rule 144A Securities.
    (9) A minimum of 100,000 Shares will be outstanding at the 
commencement of trading on the Exchange.
    This approval order is based on all of the Exchange's 
representations, including those set forth above and in the Notice, and 
the Exchange's description of the Funds. For the foregoing reasons, the 
Commission finds that the proposed rule change is consistent with 
Section 6(b)(5) of the Act \51\ and the rules and regulations 
thereunder applicable to a national securities exchange.
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    \51\ 15 U.S.C. 78f(b)(5).
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IV. Solicitation of Comments on Amendments No. 2 and No. 3

    Interested persons are invited to submit written data, views, and 
arguments concerning whether Amendments No. 2 and No. 3 to the proposed 
rule change are consistent with the Act. Comments may be submitted by 
any of the following methods:

Electronic Comments

     Use 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-NYSEArca-2013-127 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities 
and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSEArca-2013-127. 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 
a.m. and 3 p.m. Copies of the filing also will be available for 
inspection and copying at the principal office of the Exchange. All 
comments received will be posted without change; 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-NYSEArca-2013-127 and should 
be submitted on or before August 22, 2014.

V. Accelerated Approval of Proposed Rule Change as Modified by 
Amendments No. 2 and No. 3

    As discussed above, the Exchange submitted Amendment No. 2 to 
supplement the information to be provided in the Disclosed Portfolios 
of the Funds. Additionally, the Exchange submitted Amendment No. 3 to 
address the impact of the Funds' derivatives on the Funds' arbitrage 
mechanisms. The Commission believes that the Funds' additional 
disclosures regarding derivative positions in the Disclosed Portfolio 
will include information that market participants can use to value 
these positions intraday and engage in effective arbitrage as argued by 
the Exchange in Amendment No. 3, thus removing impediments to a free 
and open market and protecting investors and the public interest. 
Accordingly, the Commission finds good cause, pursuant to Section 
19(b)(2) of the Act,\52\ to approve the proposed rule change, as 
modified by Amendments No. 1, No. 2, and No. 3, prior to the 30th day 
after the date of publication in the Federal Register of notice of 
Amendments No. 2 and No. 3 of the filing.
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    \52\ 15 U.S.C. 78s(b)(2).
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VI. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Exchange Act,\53\ that the proposed rule change (SR-NYSEArca-2013-127), 
as modified by Amendments No. 1, No. 2, and No. 3, is hereby approved 
on an accelerated basis.
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    \53\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\54\
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    \54\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2014-18121 Filed 7-31-14; 8:45 am]
BILLING CODE 8011-01-P