[Federal Register Volume 81, Number 51 (Wednesday, March 16, 2016)]
[Notices]
[Pages 14163-14166]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-05855]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-77340; File No. SR-NYSEArca-2015-93]


Self-Regulatory Organizations; NYSE Arca, Inc.; Order Instituting 
Proceedings To Determine Whether to Approve or Disapprove a Proposed 
Rule Change, as Modified by Amendment No. 1 Thereto, Relating To 
Listing and Trading of Shares of the Cumberland Municipal Bond ETF 
Under NYSE Arca Equities Rule 8.600

March 10, 2016.

I. Introduction

    On November 24, 2015, NYSE Arca, Inc. (``Exchange'') filed with the 
Securities and Exchange Commission

[[Page 14164]]

(``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 Cumberland Municipal Bond ETF (``Fund''), a series 
of the ETFis Series Trust I (``Trust''). The proposed rule change was 
published for comment in the Federal Register on December 14, 2015.\3\ 
On December 29, 2015, the Exchange submitted Amendment No. 1 to the 
proposed rule change.\4\ On January 21, 2016, pursuant to Section 
19(b)(2) of the Act,\5\ the Commission designated a longer period 
within which to approve the proposed rule change, disapprove the 
proposed rule change, or institute proceedings to determine whether to 
disapprove the proposed rule change.\6\ The Commission received no 
comments on the proposed rule change. This order institutes proceedings 
under Section 19(b)(2)(B) of the Act \7\ to determine whether to 
approve or disapprove the proposed rule change, as modified by 
Amendment No. 1 thereto.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 76590 (Dec. 8, 
2015), 80 FR 77384 (``Notice'').
    \4\ In Amendment No. 1, the Exchange clarified that each 
Municipal Bond (as defined herein) held by the Fund must be a 
constituent of a deal where the deal's original offering amount was 
at least $100 million, clarified whether certain securities would be 
exchange-traded or over-the-counter (``OTC''), deleted a statement 
relating to redemption of Shares, clarified pricing information for 
certain assets, and corrected a typographical error. Because 
Amendment No. 1 to the proposed rule change is technical in nature 
and does not materially alter the substance of the proposed rule 
change or raise any novel regulatory issues, it is not subject to 
notice and comment. Amendment No. 1, which amended and replaced the 
original proposal in its entirety, is available on the Commission's 
Web site at: http://www.sec.gov/comments/sr-nysearca-2015-93/nysearca201593-1.pdf.
    \5\ 15 U.S.C. 78s(b)(2).
    \6\ See Securities Exchange Act Release No. 76955, 81 FR 4724 
(Jan. 27, 2016). The Commission designated March 11, 2016 as the 
date by which the Commission shall either approve or disapprove, or 
institute proceedings to determine whether to disapprove, the 
proposed rule change. See Securities Exchange Act Release No. 76955A 
(Mar. 2, 2016), 81 FR 12174 (Mar. 8, 2016) (correcting the date to 
``March 11, 2016'' as the date by which the Commission shall either 
approve or disapprove, or institute proceedings to determine whether 
to disapprove, the proposed rule change).
    \7\ 15 U.S.C. 78s(b)(2)(B).
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II. Description of the Proposed Rule Change

    The Exchange proposes to list and trade Shares of the Fund, an 
actively managed exchange-traded fund (``ETF''), under NYSE Arca 
Equities Rule 8.600, which governs the listing and trading of Managed 
Fund Shares on the Exchange. The Fund is a series of the Trust.\8\ The 
investment adviser to the Fund will be Virtus ETF Advisers LLC 
(``Adviser''), and the Fund's sub-adviser will be Cumberland Advisors 
Inc. (``Sub-Adviser'').\9\ Virtus ETF Solutions LLC will serve as the 
Fund's operational administrator. ETF Distributors LLC will serve as 
the distributor of the Shares on an agency basis. The Bank of New York 
Mellon (``Administrator'') will serve as the administrator, custodian, 
transfer agent and fund accounting agent for the Fund. The Exchange has 
made the following representations and statements in describing the 
Fund and its investment strategy, including the Fund's portfolio 
holdings and investment restrictions.\10\
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    \8\ The Exchange represents that the Trust is registered under 
the Investment Company Act of 1940 (``1940 Act''). On May 20, 2015, 
the Trust filed with the Commission an amendment to its registration 
statement on Form N-1A under the Securities Act of 1933 and under 
the 1940 Act relating to the Fund (File Nos. 333-187668 and 811-
22819) (``Registration Statement''). The Exchange further states 
that the Trust has obtained certain exemptive relief under the 1940 
Act. See Investment Company Act Release No. 30607 (Jul. 23, 2013) 
(File No. 812-14080).
    \9\ According to the Exchange, the Adviser and Sub-Adviser are 
not registered as broker-dealers. The Adviser (but not the Sub-
Adviser) is affiliated with one or more broker-dealers, and the 
Adviser has implemented and will maintain a fire wall with respect 
to each broker-dealer affiliate regarding access to information 
concerning the composition and 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 and 
changes to the portfolio, and will be subject to procedures designed 
to prevent the use and dissemination of material, non-public 
information regarding such portfolio.
    \10\ 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, Amendment No. 1 to the proposed rule change, 
and the Registration Statement, as applicable. See supra notes 3, 4, 
and 8, respectively.
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A. Exchange's Description of the Fund's Principal Investments

    The Fund will seek to provide a competitive level of current income 
exempt from federal income tax, while preserving capital. The Fund, 
under normal market conditions,\11\ will invest at least 80% of its net 
assets in debt securities whose interest is, in the opinion of bond 
counsel for the issuer at the time of issuance, exempt from U.S. 
federal income tax (``Municipal Bonds''). The Sub-Adviser will invest 
the Fund's assets using a barbell strategy, which means that the Sub-
Adviser will overweight the Fund's investments in Municipal Bonds with 
maturities on the short and long ends of the fixed income yield curve, 
while underweighting exposure to Municipal Bonds with intermediate 
maturities.
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    \11\ 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.
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    Municipal Bonds in which the Fund may invest include one or more of 
the following: General obligation bonds, which are typically backed by 
the full faith, credit, and taxing power of the issuer; revenue bonds, 
which are typically secured by revenues generated by the issuer; 
discount bonds, which may be originally issued at a discount to par 
value or sold at market price below par value; premium bonds, which are 
sold at a premium to par value; zero coupon bonds, which are issued at 
an original issue discount, with the full value, including accrued 
interest, paid at maturity; and private activity bonds, which are 
typically issued by or on behalf of local or state government for the 
purpose of financing the project of a private user.
    The Fund will have no target duration for its investment portfolio, 
and the Sub-Adviser may target a shorter or longer average portfolio 
duration based on the Sub-Adviser's forecast of interest rates and view 
of fixed-income markets generally.\12\ The Sub-Adviser will generally 
apply a heavier weight toward Municipal Bonds with shorter maturities 
during periods of high interest rates and longer maturities during 
periods of lower interest rates.\13\
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    \12\ Duration measures the interest rate sensitivity of a debt 
security by assessing and weighting the present value of the 
security's payment pattern. Generally, the longer the maturity, the 
greater the duration and, therefore, the greater effect interest 
rate changes have on the price of the security.
    \13\ According to the Exchange, under normal market conditions, 
each Municipal Bond held by the Fund must be a constituent of a deal 
where the deal's original offering amount was at least $100 million. 
In addition, no Municipal Bond held by the Fund will exceed 30% of 
the Fund's net assets, and the five most heavily weighted Municipal 
Bonds held by the Fund will not in the aggregate account for more 
than 50% of the Fund's assets. Further, the Fund will hold Municipal 
Bonds of a minimum of 13 non-affiliated issuers.
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    With respect to credit quality, under normal market conditions, at 
least 90% of the Fund's assets invested in Municipal Bonds will be in 
Municipal Bonds rated ``A'' or better by at least one major credit 
rating agency or, if unrated, deemed to be of comparable quality by the 
Sub-Adviser. From time to time, the

[[Page 14165]]

Fund may concentrate (i.e., invest more than 25% of its total assets) 
in particular sectors. The Fund may sell investments for a variety of 
reasons, such as to adjust the portfolio's average maturity, duration, 
or overall credit quality, or to shift assets into and out of higher-
yielding or lower-yielding securities or certain sectors.
    According to the Exchange, under normal market conditions, at least 
80% of the Fund's income will be exempt from federal income taxes. 
However, a significant portion of the Fund's income could be derived 
from securities subject to the alternative minimum tax.

B. Exchange's Description of the Fund's Other Investments

    While the Fund, under normal market conditions, will invest at 
least 80% of its assets in Municipal Bonds, as described above, the 
Fund may invest its remaining assets in other assets and financial 
instruments, as described below.
    The Fund may invest in equity securities, both directly and 
indirectly through investment in shares of ETFs,\14\ other investment 
companies, and other types of securities and instruments described 
below. The equity portion of the Fund's portfolio may include common 
stocks traded on securities exchanges or in the OTC market. In addition 
to common stocks, the equity portion of the Fund's portfolio may also 
include exchange-traded and OTC preferred stocks, and exchange-traded 
and OTC warrants.\15\
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    \14\ The ETFs in which the Fund may invest will be registered 
under the 1940 Act and 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). Such ETFs all will be listed and traded in the U.S. on 
registered exchanges.
    \15\ With respect to its exchange-traded equity securities 
investments, 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'') 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 equity securities (except for non-exchange-
traded investment company 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.
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    The Fund may purchase taxable municipal bonds when the Sub-Adviser 
believes they offer opportunities for the Fund, or variable rate demand 
notes (``VRDNs'') that pay interest monthly or quarterly based on a 
floating rate that is reset daily or weekly based on an index of short-
term municipal rates. The Fund also may invest in exchange-traded and 
OTC securities convertible into common stock. These securities will be 
convertible bonds and convertible preferred stocks.\16\
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    \16\ The criteria above also will apply to exchange-traded 
convertible preferred stocks and exchange-traded stocks into which 
convertible bonds may be converted. See supra note 15.
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    The Fund may invest directly and indirectly in cash equivalents, 
namely, money market instruments that are the following: U.S. 
Government obligations or corporate debt obligations (including those 
subject to repurchase agreements), banker's acceptances \17\ and 
certificates of deposit \18\ of domestic branches of banks, commercial 
paper,\19\ and master notes.\20\
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    \17\ Banker's acceptances are time drafts drawn on and 
``accepted'' by a bank. When a bank ``accepts'' such a time draft, 
it assumes liability for its payment. When the Fund acquires a 
banker's acceptance, the bank that ``accepted'' the time draft is 
liable for payment of interest and principal when due. The banker's 
acceptance carries the full faith and credit of such bank.
    \18\ A certificate of deposit is an unsecured, interest bearing 
debt obligation of a bank.
    \19\ Commercial paper is an unsecured, short-term debt 
obligation of a bank, corporation, or other borrower. Commercial 
paper maturity generally ranges from two to 270 days and is usually 
sold on a discounted basis rather than as an interest-bearing 
instrument. The Fund will invest directly in commercial paper only 
if it is rated in one of the top two rating categories by Moody's, 
S&P or Fitch or, if not rated, is of equivalent quality in the 
Adviser's opinion. Commercial paper may include master notes of the 
same quality. Master notes are unsecured obligations which are 
redeemable upon demand of the holder and which permit the investment 
of fluctuating amounts at varying rates of interest.
    \20\ Master notes may be acquired by the Fund through the master 
note program of the Fund's custodian bank.
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    In order to maintain sufficient liquidity, to implement investment 
strategies, or for temporary defensive purposes, the Fund may invest a 
significant portion of its assets in shares of one or more money market 
funds. The Fund may also invest in the securities of other non-
exchange-traded investment company securities in compliance with the 
1940 Act and the rules thereunder.
    The Fund may write U.S. exchange-traded call and put options on 
securities, ETFs, or security indexes to seek income, or may purchase 
or write U.S. exchange-traded put or call options for hedging purposes.
    The Fund may purchase securities on a when-issued basis or for 
settlement at a future date (forward commitment), if the Fund holds 
sufficient liquid assets to meet the purchase price.

C. Exchange's Description of the Fund's Investment Restrictions

    The Fund may, from time to time, take temporary defensive positions 
that are inconsistent with its principal investment strategies in an 
attempt to respond to adverse market, economic, political, or other 
conditions. In such circumstances, the Fund may hold up to 100% of its 
portfolio in cash and cash equivalent positions.
    The Fund may hold up to an aggregate amount of 15% of its net 
assets in illiquid assets (calculated at the time of investment), 
consistent with Commission guidance. The Fund will monitor its 
portfolio liquidity on an ongoing basis to determine whether, in light 
of current circumstances, an adequate level of liquidity is being 
maintained, and will consider taking appropriate steps in order to 
maintain adequate liquidity if, through a change in values, net assets, 
or other circumstances, more than 15% of the Fund's net assets are held 
in illiquid assets. Illiquid assets include securities subject to 
contractual or other restrictions on resale and other instruments that 
lack readily available markets as determined in accordance with 
Commission staff guidance.
    The Fund's investments will be consistent with its investment 
objective and will not be used to provide multiple returns of a 
benchmark or to produce leveraged returns.

II. Proceedings to Determine Whether to Approve or Disapprove SR-
NYSEArca-2015-93 and Grounds for Disapproval Under Consideration

    The Commission is instituting proceedings pursuant to Section 
19(b)(2)(B) of the Act \21\ to determine whether the proposed rule 
change, as modified by Amendment No. 1 thereto, should be approved or 
disapproved. Institution of such proceedings is appropriate at this 
time in view of the legal and policy issues raised by the proposed rule 
change. Institution of proceedings does not indicate that the 
Commission has reached any conclusions with respect to any of the 
issues involved. Rather, as described below, the Commission seeks and 
encourages interested persons to provide comments on the proposed rule 
change.
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    \21\ 15 U.S.C. 78s(b)(2)(B).
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    Pursuant to Section 19(b)(2)(B) of the Act,\22\ the Commission is 
providing notice of the grounds for disapproval under consideration. 
The Commission is instituting proceedings to allow for additional 
analysis of the proposed rule change's consistency with Section 6(b)(5) 
of the Act, which requires, among other things, that the rules of a 
national securities exchange be ``designed to prevent fraudulent and

[[Page 14166]]

manipulative acts and practices, to promote just and equitable 
principles of trade,'' and ``to protect investors and the public 
interest.'' \23\
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    \22\ Id.
    \23\ 15 U.S.C. 78f(b)(5).
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III. Procedure: Request for Written Comments

    The Commission requests that interested persons provide written 
submissions of their views, data, and arguments with respect to the 
issues identified above, as well as any other concerns they may have 
with the proposal. In particular, the Commission invites the written 
views of interested persons concerning whether the proposal is 
consistent with Section 6(b)(5) or any other provision of the Act, or 
the rules and regulations thereunder. Although there do not appear to 
be any issues relevant to approval or disapproval that would be 
facilitated by an oral presentation of views, data, and arguments, the 
Commission will consider, pursuant to Rule 19b-4, any request for an 
opportunity to make an oral presentation.\24\
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    \24\ Section 19(b)(2) of the Act, as amended by the Securities 
Act Amendments of 1975, Public Law 94-29 (June 4, 1975), grants the 
Commission flexibility to determine what type of proceeding--either 
oral or notice and opportunity for written comments--is appropriate 
for consideration of a particular proposal by a self-regulatory 
organization. See Securities Act Amendments of 1975, Senate Comm. on 
Banking, Housing & Urban Affairs, S. Rep. No. 75, 94th Cong., 1st 
Sess. 30 (1975).
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    Interested persons are invited to submit written data, views, and 
arguments regarding whether the proposal should be approved or 
disapproved by April 6, 2016. Any person who wishes to file a rebuttal 
to any other person's submission must file that rebuttal by April 20, 
2016. The Commission asks that commenters address the sufficiency of 
the Exchange's statements in support of the proposal, which are set 
forth in the Notice \25\ and in Amendment No. 1 to the proposed rule 
change,\26\ in addition to any other comments they may wish to submit 
about the proposed rule change.
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    \25\ See supra note 3.
    \26\ See supra note 4.
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    The Exchange provides that the Fund may invest in one or more of 
the following broad categories of Municipal Bonds: (a) General 
obligation bonds; (b) revenue bonds; (c) discount bonds; (d) premium 
bonds; (e) zero coupon bonds; and (f) private activity bonds. Moreover, 
the Exchange represents that: (i) Each Municipal Bond held by the Fund 
must be a constituent of a deal where the deal's original offering 
amount was at least $100 million; (ii) no Municipal Bond held by the 
Fund will exceed 30% of the Fund's net assets, and the five most 
heavily weighted Municipal Bonds held by the Fund will not in the 
aggregate account for more than 50% of the Fund's assets; and (iii) the 
Fund will hold Municipal Bonds of a minimum of 13 non-affiliated 
issuers. Apart from these broad representations, the Exchange provides 
no other information about the kinds of municipal bonds in which the 
Fund may invest. Accordingly, the Commission seeks comment on whether 
the Exchange's representations relating to the Municipal Bonds to be 
held by the Fund are sufficiently clear in their application to 
municipal bonds, specifically, and are consistent with the requirements 
of Section 6(b)(5) of the Act, which, among other things, requires that 
the rules of an exchange be designed to prevent fraudulent and 
manipulative acts and practices.
    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-2015-93 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 Numbers SR-NYSEArca-2015-93. This 
file number should be included on the subject line if email is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for Web site viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE., 
Washington, DC 20549, on official business days between the hours of 
10:00 a.m. and 3:00 p.m. Copies of these filings also will be available 
for inspection and copying at the principal office of the Exchange. All 
comments received will be posted without change; the Commission does 
not edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly. All 
submissions should refer to File Number SR-NYSEArca-2015-93 and should 
be submitted on or before April 6, 2016. Rebuttal comments should be 
submitted by April 20, 2016.
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    \27\ 17 CFR 200.30-3(a)(57).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\27\
Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016-05855 Filed 3-15-16; 8:45 am]
 BILLING CODE 8011-01-P