[Federal Register Volume 80, Number 150 (Wednesday, August 5, 2015)]
[Notices]
[Pages 46612-46615]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-19132]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-75566; File No. SR-NYSEArca-2015-42]


Self-Regulatory Organizations; NYSE Arca, Inc.; Order Approving a 
Proposed Rule Change, as Modified by Amendments No. 1 and No. 2, To 
List and Trade of Shares of Newfleet Multi-Sector Unconstrained Bond 
ETF Under NYSE Arca Equities Rule 8.600

July 30, 2015.

I. Introduction

    On June 5, 2015, NYSE Arca, Inc. (``Exchange'') filed with the 
Securities and Exchange Commission (``Commission''), pursuant to 
section 19(b)(1) of the Securities Exchange Act of 1934 (``Exchange 
Act'') \1\ and Rule 19b-4 thereunder,\2\ a proposed rule change to list 
and trade shares (``Shares'') of the Newfleet Multi-Sector 
Unconstrained Bond ETF (``Fund''), a series of the ETFis Series Trust I 
(``Trust'') under NYSE Arca Equities Rule 8.600, which governs the 
listing and trading of Managed Fund Shares. On June 15, 2015, the 
Exchange filed Amendment No. 1 to the proposed rule change.\3\ The 
Commission published notice of the proposed rule change, as modified by 
Amendment No. 1 thereto, in the Federal Register on June 24, 2015.\4\ 
On July 23, 2015, the Exchange filed Amendment No. 2 to the proposed 
rule change.\5\ The Commission received no comments on the proposal. 
This

[[Page 46613]]

order approves the proposed rule change, as modified by Amendments No. 
1 and No. 2.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ Amendment No. 1 to the proposed rule change replaced and 
superseded the original filing in its entirety.
    \4\ See Securities Exchange Act Release No. 75247 (June 18, 
2015), 80 FR 36372 (``Notice'').
    \5\ Amendment No. 2 clarified that the Adviser expects that, 
under normal market conditions, the Fund will seek to invest at 
least 75% of its corporate bond assets in issuances that have at 
least $100,000,000 par amount outstanding in developed countries or 
at least $200,000,000 par amount outstanding in emerging market 
countries. Because it only makes this clarification and does not 
materially affect the substance of the proposed rule change or raise 
unique or novel regulatory issues, Amendment No. 2 to the proposed 
rule change does not require notice and comment. The text of 
Amendment No. 2 is available at: http://www.sec.gov/comments/sr-nysearca-2015-42/nysearca201542-2.pdf.
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II. The Exchange's Description of the Proposal \6\
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    \6\ The Commission notes that additional information regarding 
the Fund, the Trust, and the Shares, including investment 
strategies, risks, creation and redemption procedures, fees, 
portfolio holdings, disclosure policies, calculation of net asset 
value (``NAV''), distributions, and taxes, among other things, can 
be found in the Notice and the Registration Statement, as 
applicable. See Notice, supra note 3, and Registration Statement, 
infra note 7.
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    NYSE Arca proposes to list and trade Shares under NYSE Arca 
Equities Rule 8.600, which governs the listing and trading of Managed 
Fund Shares on the Exchange. The Shares will be offered by the Trust, 
which is registered with the Commission as an investment company.\7\ 
The investment adviser to the Fund will be Etfis Capital LLC 
(``Adviser''), and the sub-adviser to the Fund will be Newfleet Asset 
Management LLC (``Sub-Adviser'').\8\ ETF Issuer Solutions Inc. will 
serve as the Fund's operational administrator. ETF Distributors LLC 
will serve as the distributor, and the Bank of New York Mellon will 
serve as the administrator, custodian, transfer agent and fund 
accounting agent for the Fund.
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    \7\ The Trust is registered under the Investment Company Act of 
1940 (``1940 Act''). The Exchange states that on January 26, 2015, 
the Trust filed with the Commission an amendment to its registration 
statement on Form N-1A under the Securities Act of 1933 (15 U.S.C. 
77a) (``Securities Act'') and under the 1940 Act relating to the 
Fund (File Nos. 333-187668 and 811-22819) (``Registration 
Statement'').
    \8\ The Adviser and Sub-Adviser are not registered as broker-
dealers, but each is affiliated with one or more broker-dealers and 
has implemented and will maintain a fire wall with respect to each 
such broker-dealer affiliate regarding access to information 
concerning the composition of or changes to the portfolio. In the 
event (a) the Adviser or Sub-Adviser become registered broker-
dealers or newly affiliated with a broker-dealer, or (b) any new 
adviser or sub-adviser is a registered broker-dealer or becomes 
affiliated with a broker-dealer, it will implement a fire wall with 
respect to its relevant personnel or its broker-dealer affiliate 
regarding access to information concerning the composition of or 
changes to the portfolio, and it will be subject to procedures 
designed to prevent the use and dissemination of material non-public 
information regarding such portfolio.
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    The Fund's investment objective is to provide a high level of 
current income and, secondarily, capital appreciation. Under normal 
market conditions,\9\ the Sub-Adviser will seek to select securities 
using a sector rotation approach and seek to adjust the proportion of 
Fund investments in various sectors and sub-sectors in an effort to 
obtain higher relative returns.
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    \9\ The term ``under normal market conditions'' includes, but is 
not limited to, the absence of 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. In the absence of normal market conditions, the Fund 
may invest 100% of its total assets, without limitation, in cash or 
cash equivalents. The Fund may be invested in this manner for 
extended periods depending on the Sub-Adviser's assessment of market 
conditions.
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A. The Fund's Principal Investments

    Under normal market conditions, at least 80% of the Fund's net 
assets will be invested in the fixed income securities identified below 
and in U.S. Treasury futures. The Fund may invest across the credit-
rating spectrum, which includes securities rated below investment grade 
by a nationally recognized statistical rating organization (``NRSRO''), 
and in unrated securities. The Fund has no target duration for its 
investment portfolio.
    The Fund may invest in the following fixed income securities:
     Securities issued or guaranteed as to principal and 
interest by the U.S. Government, or by its agencies, authorities or 
instrumentalities, including, without limitation, collateralized 
mortgage obligations (``CMOs''), real estate mortgage investment 
conduits, and other pass-through securities;
     non-agency \10\ commercial mortgage-backed securities 
(``CMBS''), agency and non-agency residential mortgage-backed 
securities (``RMBS''), and other asset-backed securities (``ABS''), 
including equipment trust certificates; \11\
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    \10\ ``Non-agency'' securities are financial instruments that 
have been issued by an entity that is not a government-sponsored 
agency such as the Federal National Mortgage Association, Federal 
Home Loan Mortgage Corporation, Federal Home Loan Banks, or the 
Government National Mortgage Association.
    \11\ The Fund may invest up to 20% of its net assets in the 
aggregate in non-agency CMBS, RMBS, and ABS.
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     Yankee bonds; \12\
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    \12\ Yankee bonds are denominated in U.S. dollars, registered in 
accordance with the Securities Act and publicly issued in the U.S. 
by foreign banks and corporations.
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     loan assignments, including senior and junior bank loans 
(generally with floating rates); \13\
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    \13\ The Fund may invest in loan assignments, including senior 
and junior bank loans, rated C or higher by an NRSRO or unrated but 
considered to be of comparable quality by the Adviser or Sub-
Adviser. The Fund will not invest in loan assignments that are in 
default at time of purchase. The Fund will only invest in U.S. 
dollar-denominated loan assignments. In addition, for investment 
purposes, a bank loan must have a par amount outstanding of U.S. 
$150 million or greater at the time it is originally issued. The 
Fund may invest up to 20% of its net assets in junior bank loans. 
The Adviser generally will invest in loan assignments, including 
bank loans, that it deems highly liquid, with readily available 
prices.
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     corporate bonds; \14\ and
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    \14\ The Adviser expects that under normal market conditions, 
the Fund will seek to invest at least 75% of its corporate bond 
assets in issuances that have at least $100,000,000 par amount 
outstanding in developed countries or at least $200,000,000 par 
amount outstanding in emerging market countries. See Amendment No. 
2, supra note 5.
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     taxable municipal bonds and tax-exempt municipal bonds.
    Generally, the portfolio will include a minimum of 13 non-
affiliated issuers of debt securities, and the Fund will only purchase 
performing securities, not distressed debt.\15\
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    \15\ Distressed debt is debt that is currently in default and is 
not expected to pay the current coupon.
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    The Fund may invest in U.S. Treasury futures contracts traded on 
U.S. futures exchanges to attempt to protect the Fund's current or 
intended investments from broad fluctuations in securities prices.

B. The Fund's Non-Principal Investments

    While the Fund, under normal market conditions, will invest at 
least 80% of its assets in the fixed income securities and financial 
instruments identified above, the Fund may invest its remaining assets 
in other assets and financial instruments, as described below.
    The Fund may hold the following exchange-traded equity securities: 
Common stocks, preferred stocks, warrants, convertible securities, unit 
investment trusts, master limited partnerships, real estate investment 
trusts (``REITs''), exchange-traded funds (``ETFs''),\16\ and exchange-
traded notes (``ETNs'').\17\ These equity securities will be traded in 
the U.S. on registered exchanges.
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    \16\ The Fund may invest in inverse ETFs, leveraged ETFs and 
inverse leveraged ETFs (e.g., 2X or 3X).
    \17\ The Fund will not invest in leveraged ETNs and inverse 
leveraged ETNs (e.g., 2X or 3X).
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    To gain exposure to the performance of foreign issuers, the Fund 
may also invest in the following types of equity securities: American 
Depositary Receipts (``ADRs''); ``ordinary shares'' and ``New York 
shares'' (each of which is issued and traded in the U.S.); and Global 
Depositary Receipts, European Depositary Receipts, and International 
Depositary Receipts, which are traded on foreign exchanges.\18\
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    \18\ The Fund may invest in sponsored or unsponsored ADRs; 
however, non-exchange listed ADRs will not exceed 10% of the Fund's 
net assets.
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    With respect to its exchange-traded equity securities, the Fund 
will normally invest in equity securities that are listed and traded on 
a U.S. exchange or in markets that are members of the Intermarket 
Surveillance Group (``ISG'')

[[Page 46614]]

or parties to a comprehensive surveillance sharing agreement with the 
Exchange. In any case, not more than 10% of the net assets of the Fund 
in the aggregate invested in exchange-traded equity securities will 
consist of equity securities whose principal market is not a member of 
ISG or a market with which the Exchange does not have a comprehensive 
surveillance sharing agreement.
    The Fund may invest in, to the extent permitted by Section 12(d)(1) 
of the 1940 Act and the rules thereunder,\19\ other affiliated and 
unaffiliated funds, such as open-end or closed-end management 
investment companies (``closed-end funds''), including other ETFs. The 
Fund may also invest in the securities of other investment companies in 
compliance with Section 12(d)(1)(E), (F) and (G) of the 1940 Act and 
the rules thereunder.\20\
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    \19\ 15 U.S.C. 80a-12(d)(1).
    \20\ 15 U.S.C. 80a-12(d)(1)(E),(F) and (G).
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    The Fund may invest in exchange-traded securities of pooled 
vehicles that are not investment companies and, thus, not required to 
comply with the provisions of the 1940 Act, although such pooled 
vehicles would be required to comply with the provisions of other 
federal securities laws, such as the Securities Act. These pooled 
vehicles typically hold commodities, such as gold or oil; currency; or 
other property that is itself not a security.\21\
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    \21\ Exchange-traded pooled investment vehicles 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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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.\22\ In particular, the Commission finds that the 
proposed rule change, as modified by Amendments No. 1 and No. 2, is 
consistent with Section 6(b)(5) of the Exchange Act,\23\ 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 also 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,\24\ which sets forth the finding of Congress 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.
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    \22\ 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).
    \23\ 15 U.S.C. 78f(b)(5).
    \24\ 15 U.S.C. 78k-1(a)(1)(C)(iii).
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    Quotation and last-sale information for the Shares and the 
underlying U.S. exchange-traded equity securities will be available via 
the Consolidated Tape Association (``CTA'') high-speed line, and from 
the national securities exchange on which they are listed. In addition, 
the intraday indicative value or ``IIV'' (which is the Portfolio 
Indicative Value, as defined in NYSE Arca Equities Rule 8.600(c)(3)) 
will be widely disseminated at least every 15 seconds during the Core 
Trading Session by one or more major market data vendors.\25\ On each 
business day, before commencement of trading in Shares in the Core 
Trading Session on the Exchange, the Fund's Web site will publish the 
Disclosed Portfolio \26\ that will form the basis for the Fund's 
calculation of NAV at the end of the business day.\27\
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    \25\ Currently, it is the Exchange's understanding that several 
major market data vendors display or make widely available IIVs 
taken from CTA or other data feeds.
    \26\ The term ``Disclosed Portfolio'' is defined in NYSE Arca 
Equities Rule 8.600(c)(2).
    \27\ Under accounting procedures followed by the Fund, trades 
made on the prior business day (``T'') will be booked and reflected 
in NAV on the current business day (``T+1''). Accordingly, the Fund 
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.
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    The NAV for the Shares will be calculated after 4:00 p.m. Eastern 
Time each trading day. Information regarding market price and trading 
volume of the Shares will be 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. Pricing information regarding each 
asset class in which the Fund will invest will generally be available 
through nationally recognized data service providers through 
subscription agreements. Foreign exchange prices are available from 
major market data vendors. Intra-day and closing price information for 
Rule 144A fixed income securities and loan assignments will be 
available from major market data vendors. Price information for 
investment company securities (other than ETFs and exchange-traded 
closed end funds) will be available from the investment company's Web 
site and from market data vendors. Quotation information from brokers 
and dealers or pricing services will be available for unsponsored ADRs; 
fixed income securities; bank loans; U.S. Treasury securities; other 
obligations issued or guaranteed by U.S. government agencies or 
instrumentalities; bank obligations; short-term securities; money 
market instruments; ABS; MBS; CMBS; RMBS; CMOs; shares of mutual funds; 
corporate debt securities; and convertible securities.
    The Commission further 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. 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 will be made available to all market 
participants at the same time. Trading in Shares of the Fund will be 
halted if the circuit-breaker parameters in NYSE Arca Equities Rule 
7.12 have been reached. 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.\28\ Trading in the Shares also will 
be subject to NYSE Arca Equities Rule 8.600(d)(2)(D), which sets forth 
circumstances under which Shares of the Fund may be halted. The 
Exchange represents that it has a general policy prohibiting the 
distribution of material, non-public information by its employees. The 
Adviser and Sub-Adviser are not registered as broker-dealers but are 
affiliated with two broker-dealers and have implemented and will 
maintain a fire wall with respect to each such broker-dealer 
affiliate.\29\
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    \28\ These may include: (1) The extent to which trading is not 
occurring in the securities or the financial instruments 
constituting the Disclosed Portfolio of the Fund; or (2) whether 
other unusual conditions or circumstances detrimental to the 
maintenance of a fair and orderly market are present.
    \29\ See supra note 7. The Exchange represents that an 
investment adviser to an open-end fund is required to be registered 
under the Investment Advisers Act of 1940.

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[[Page 46615]]

    Prior to the commencement of trading, the Exchange will inform its 
Equity Trading Permit Holders (``ETP Holders'') in an Information 
Bulletin (``Bulletin'') of the special characteristics and risks 
associated with trading the Shares. The Exchange represents that 
trading in the Shares will be subject to the existing trading 
surveillances, administered by the Financial Industry Regulatory 
Authority (``FINRA'') on behalf of the Exchange, which are designed to 
detect violations of Exchange rules and applicable federal securities 
laws.\30\
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    \30\ The Exchange states that FINRA surveils trading on the 
Exchange pursuant to a regulatory services agreement. The Exchange 
is responsible for FINRA's performance under this regulatory 
services agreement.
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    The Exchange represents that it deems the Shares to be equity 
securities, thus rendering trading in the Shares subject to the 
Exchange's existing rules governing the trading of equity securities. 
In support of this proposal, the Exchange has also made the following 
representations:
    (1) The Shares will conform to the initial and continued listing 
criteria under NYSE Arca Equities Rule 8.600.
    (2) The Exchange has appropriate rules to facilitate transactions 
in the Shares during all trading sessions.
    (3) 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 
deter and detect violations of Exchange rules and federal securities 
laws applicable to trading on the Exchange.
    (4) FINRA, on behalf of the Exchange, will communicate as needed 
regarding trading in the Shares, exchange-traded equity securities and 
futures contracts 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, exchange-traded 
equity securities and futures contracts from such markets and other 
entities. In addition, the Exchange may obtain information regarding 
trading in the Shares, exchange-traded equity securities and futures 
contracts from markets and other entities that are members of ISG or 
with which the Exchange has in place a comprehensive surveillance 
sharing agreement.\31\ FINRA, on behalf of the Exchange, is able to 
access, as needed, trade information for certain fixed income 
securities held by the Fund reported to FINRA's Trade Reporting and 
Compliance Engine.
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    \31\ For a list of the current members of ISG, see 
www.isgportal.org. The Exchange notes that not all components of the 
Disclosed Portfolio for the Fund may trade on markets that are 
members of ISG or with which the Exchange has in place a 
comprehensive surveillance sharing agreement.
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    (5) Prior to the commencement of trading of the Shares, the 
Exchange will inform its ETP Holders in a Bulletin of the special 
characteristics and risks associated with trading the Shares. The 
Bulletin will discuss the following: (i) The procedures for purchases 
and redemptions of Shares in Creation Unit aggregations (and that 
Shares are not individually redeemable); (ii) NYSE Arca Equities Rule 
9.2(a), which imposes a duty of due diligence on its ETP Holders to 
learn the essential facts relating to every customer prior to trading 
the Shares; (iii) the risks involved in trading the Shares during the 
Opening and Late Trading Sessions (as defined in NYSE Arca Equities 
7.34) when an updated IIV or Index value will not be calculated or 
publicly disseminated; (iv) how information regarding the IIV, the 
Disclosed Portfolio, and the Index value will be disseminated; (v) the 
requirement that ETP Holders deliver a prospectus to investors 
purchasing newly issued Shares prior to or concurrently with the 
confirmation of a transaction; and (vi) trading information.
    (6) For initial and continued listing, the Fund will be in 
compliance with Rule 10A-3 under the Exchange Act,\32\ as provided by 
NYSE Arca Equities Rule 5.3.
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    \32\ 17 CFR 240.10A-3.
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    (7) Not more than 20% of the Fund's net assets in the aggregate 
will be invested in non-agency CMBS, RMBS, and ABS.
    (8) Not more than 20% of the Fund's net assets will be invested in 
junior bank loans.
    (9) The Fund will invest only in U.S. dollar-denominated loan 
assignments, and for investment purposes, a bank loan must have a par 
amount outstanding of U.S. $150 million or greater at the time it is 
originally issued. Furthermore, the Adviser will invest generally in 
loan assignments, including bank loans, which it deems to be highly 
liquid, with readily available prices.
    (10) The 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 fixed income securities and bank loans that are 
deemed illiquid by the Adviser, consistent with Commission guidance.
    (11) A minimum of 100,000 Shares for the Fund 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. The 
Commission notes that the Fund and the Shares must comply with the 
requirements of NYSE Arca Equities Rule 8.600 to be initially and 
continuously listed and traded on the Exchange.
    For the foregoing reasons, the Commission finds that the proposed 
rule change, as modified by Amendments No. 1 and No. 2, is consistent 
with Section 6(b)(5) of the Exchange Act \33\ and Section 
11A(a)(1)(C)(iii) of the Exchange Act \34\ and the rules and 
regulations thereunder applicable to a national securities exchange.
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    \33\ 15 U.S.C. 78f(b)(5).
    \34\ 15 U.S.C. 78k-1(a)(1)(C)(iii).
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IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Exchange Act,\35\ that the proposed rule change (SR-NYSEArca-2015-42), 
as modified by Amendments No. 1 and No. 2 thereto, be, and it hereby 
is, approved.
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    \35\ 15 U.S.C. 78s(b)(2).
    \36\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\36\
Robert W. Errett,
Deputy Secretary.
[FR Doc. 2015-19132 Filed 8-4-15; 8:45 am]
 BILLING CODE 8011-01-P