[Federal Register Volume 81, Number 111 (Thursday, June 9, 2016)]
[Notices]
[Pages 37222-37229]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-13615]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-77992; File No. SR-NYSEArca-2016-79]


Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
of Proposed Rule Change Relating to the Listing and Trading of Shares 
of the Virtus Japan Alpha ETF Under NYSE Arca Equities Rule 8.600

June 3, 2016.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby 
given that, on May 24, 2016, NYSE Arca, Inc. (the ``Exchange'' or 
``NYSE Arca'') filed with the Securities and Exchange Commission (the 
``Commission'') the proposed rule change as described in Items I and II 
below, which Items have been prepared by the self-regulatory 
organization. The Commission is publishing this notice to solicit 
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of the 
Substance of the Proposed Rule Change

    The Exchange proposes to list and trade shares of the Virtus Japan 
Alpha ETF under NYSE Arca Equities Rule 8.600 (``Managed Fund 
Shares''). The proposed rule change is available on the Exchange's Web 
site at www.nyse.com, at the principal office of the Exchange, and at 
the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the self-regulatory organization 
included statements concerning the purpose of, and basis for, the 
proposed rule change and discussed any comments it received on the 
proposed rule change. The text of those statements may be examined at 
the places specified in Item IV below. The Exchange has prepared 
summaries, set forth in sections A, B, and C below, of the most 
significant parts of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to list and trade shares (``Shares'') of the 
following under NYSE Arca Equities Rule 8.600, which governs the 
listing and trading of Managed Fund Shares: \4\ Virtus Japan Alpha ETF 
(``Fund'').\5\
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    \4\ 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) (``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.
    \5\ The Commission has previously approved listing and trading 
on the Exchange of a number of actively managed funds under Rule 
8.600. See, e.g., Securities Exchange Act Release Nos. 57801 (May 8, 
2008), 73 FR 27878 (May 14, 2008) (SR-NYSEArca-2008-31) (order 
approving Exchange listing and trading of twelve actively-managed 
funds of the WisdomTree Trust); 62502 (July 15, 2010), 75 FR 42471 
(July 21, 2010) (SR-NYSEArca-2010-57) (order approving listing and 
trading of AdviserShares WCM/BNY Mellon Focused Growth ADR ETF); 
63076 (October 12, 2010), 75 FR 63874 (October 18, 2010) (SR-
NYSEArca-2010-79) (order approving listing and trading of Cambria 
Global Tactical ETF); 71540 (February 12, 2014), 79 FR 9515 
(February 19, 2014) (SR-NYSEArca-2013-138) (order approving listing 
and trading of shares of the iShares Enhanced International Large-
Cap ETF and iShares Enhanced International Small-Cap ETF).
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    The Shares will be offered by Virtus ETF Trust II (``Trust''), 
which is registered with the Commission as an open-end management 
investment company.\6\ Virtus ETF Advisers LLC

[[Page 37223]]

will serve as the investment adviser to the Fund (``Adviser''). Euclid 
Advisors LLC will serve as the Fund's sub-adviser (``Sub-Adviser''). 
ETF Distributors LLC (``Distributor'') will be the principal 
underwriter and distributor of the Fund's Shares. Virtus ETF Solutions 
LLC will serve as the administrator for the Fund. The Bank of New York 
Mellon (``Transfer Agent'') will serve as accounting services 
administrator, custodian and transfer agent for the Fund.
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    \6\ The Trust is registered under the 1940 Act. On February 26, 
2016, 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), and under the 1940 Act relating to the Fund (File 
Nos. 333-206600 and 811-23078) (``Registration Statement''). The 
description of the operation of the Trust and the Fund herein is 
based, in part, on the Registration Statement. In addition, the 
Commission has issued an order granting certain exemptive relief to 
the Trust under the 1940 Act. See Investment Company Act Release No. 
30825 (December 11, 2013) (File No. 812-14212).
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    Commentary .06 to Rule 8.600 provides that, if the investment 
adviser to the investment company issuing Managed Fund Shares is 
affiliated with a broker-dealer, such investment adviser shall erect a 
``fire wall'' between the investment adviser and the broker-dealer with 
respect to access to information concerning the composition and/or 
changes to such investment company portfolio. In addition, Commentary 
.06 further requires that personnel who make decisions on the open-end 
fund's portfolio composition must be subject to procedures designed to 
prevent the use and dissemination of material nonpublic information 
regarding the open-end fund's portfolio.\7\ Commentary .06 to Rule 
8.600 is similar to Commentary .03(a)(i) and (iii) to NYSE Arca 
Equities Rule 5.2(j)(3); however, Commentary .06 in connection with the 
establishment of a ``fire wall'' between the investment adviser and the 
broker-dealer reflects the applicable open-end fund's portfolio, not an 
underlying benchmark index, as is the case with index-based funds. The 
Adviser and Sub-Adviser are not registered broker-dealers but are 
affiliated with a broker-dealer and each has implemented a ``fire 
wall'' with respect to such broker-dealer regarding access to 
information concerning the composition and/or changes to the Fund's 
portfolio. In the event (a) the Adviser or Sub-Adviser becomes 
registered as a broker-dealer 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 broker-dealer affiliate 
regarding access to information concerning the composition and/or 
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.
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    \7\ An investment adviser to an open-end fund is required to be 
registered under the Investment Advisers Act of 1940 (``Advisers 
Act''). As a result, the Adviser and its related personnel are 
subject to the provisions of Rule 204A-1 under the Advisers Act 
relating to codes of ethics. This Rule requires investment advisers 
to adopt a code of ethics that reflects the fiduciary nature of the 
relationship to clients as well as compliance with other applicable 
securities laws. Accordingly, procedures designed to prevent the 
communication and misuse of non-public information by an investment 
adviser must be consistent with Rule 204A-1 under the Advisers Act. 
In addition, Rule 206(4)-7 under the Advisers Act makes it unlawful 
for an investment adviser to provide investment advice to clients 
unless such investment adviser has (i) adopted and implemented 
written policies and procedures reasonably designed to prevent 
violation, by the investment adviser and its supervised persons, of 
the Advisers Act and the Commission rules adopted thereunder; (ii) 
implemented, at a minimum, an annual review regarding the adequacy 
of the policies and procedures established pursuant to subparagraph 
(i) above and the effectiveness of their implementation; and (iii) 
designated an individual (who is a supervised person) responsible 
for administering the policies and procedures adopted under 
subparagraph (i) above.
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Principal Investments
    According to the Registration Statement, under normal 
circumstances,\8\ the Fund will invest not less than 80% of its assets 
in the common stocks of certain Japanese companies listed in the JPX-
Nikkei 400 Total Return Index (``Index''), a free-float adjusted market 
capitalization-weighted equity index composed of 400 Tokyo Stock 
Exchange-listed securities, and the financial instruments listed below.
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    \8\ The term ``under normal circumstances'' includes, but is not 
limited to, the absence of extreme volatility or trading halts in 
the securities markets or the financial markets generally; 
circumstances under which the Fund's investments are made for 
temporary defensive purposes; 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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    According to the Registration Statement, the Fund will be actively-
managed through the selection, at any given time, of approximately 80-
100 common stocks from the Index based on quantitative and qualitative 
factors, including an assessment of the following characteristics: Cash 
flow return on invested capital; earnings quality and momentum; 
operational quality; corporate governance policies; and capital 
stewardship. The Fund may invest in such Index components by directly 
purchasing shares of common stock or investing in American Depositary 
Receipts (``ADRs'') \9\ on the common stock of such Index components. 
Securities held by the Fund may be underweighted or overweighted 
relative to their positions in the Index.
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    \9\ ADRs are bought and sold in the United States and are 
typically issued by a U.S. bank or trust company which evidence 
ownership of underlying securities by a foreign corporation. No more 
than 10% of the net assets of the Fund will be invested in ADRs that 
are not exchange-listed.
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    Although the Fund will focus on investment in securities in the 
Index as described above, the Fund may also invest in common stocks of 
other Japanese companies with characteristics similar to those listed 
on the Index, as determined by the Sub-Adviser. With respect to such 
common stocks, the Fund will only invest in securities that are listed 
on the Tokyo Stock Exchange \10\ and that have a market capitalization 
of $250,000,000 U.S. dollars or greater. The Fund may also invest in 
ADRs on such common stocks.
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    \10\ Japan Exchange Regulation (``JPX-R'') is a member of the 
Intermarket Surveillance Group and information relating to 
transactions in Tokyo Stock Exchange listed securities is available 
through JPX-R.
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    Positions may be reduced or removed when the Sub-Adviser determines 
that a security has become overweighted within the Fund's portfolio, 
that the security's prospects have adversely changed, that the Fund 
should raise funds for new or other investments or that there are more 
attractive opportunities.
Other Investments
    While the Fund, under normal circumstances, will invest at least 
80% of its assets in common stock of Japanese companies listed in the 
Index, common stock of certain other Japanese companies and ADRs, as 
described above, the Fund will invest its remaining assets in the 
securities and financial instruments described below.
    The Fund may invest in securities index futures contracts and 
foreign currency futures contracts.\11\ According to the Registration 
Statement, in general, the Fund will not purchase or sell futures 
contracts unless either (i) the futures contracts are purchased for 
``bona fida hedging'' purposes (as defined under applicable Commodity 
Futures Trading Commission regulations) or (ii) if purchased for other 
purposes, the sum of the amounts of initial margin deposits and 
premiums required to establish such positions on

[[Page 37224]]

the Fund's existing futures would not exceed 5% of the liquidation 
value of the Fund's total assets.
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    \11\ In instances involving the purchase of futures contracts, 
the Fund will deposit in a segregated account with its custodian an 
amount of cash, cash equivalents and/or appropriate securities equal 
to the cost of such futures contracts, to the extent that such 
deposits are required under the 1940 Act.
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    The Fund may also invest in forward contracts and non-deliverable 
forward (``NDF'') contracts on the foreign currency spot market.
    The Fund may invest in when-issued and forward commitment 
securities, which means delivery and payment take place a number of 
days after the date of the commitment to purchase, if the Fund holds 
sufficient liquid assets to meet the purchase price.
    The Fund may invest in the following equity securities (other than 
non-exchange traded investment company securities): Common stocks 
traded on U.S. or Japanese securities exchanges (other than the Tokyo 
Stock Exchange); common stocks traded on the over-the-counter market; 
U.S. and foreign exchange-traded preferred stocks; U.S. and foreign 
exchange-traded convertible preferred stocks; U.S. and foreign 
exchange-traded convertible bonds; U.S. and foreign exchange-traded 
warrants; and U.S. and foreign exchange-traded rights. The Fund will 
not invest in ADRs on any of these equity securities.
    In addition, the Fund may invest in, to the extent permitted by 
Section 12(d)(1) of the 1940 Act and the rules thereunder,\12\ other 
open-end investment companies, including other exchange-traded funds 
(``ETFs'').\13\
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    \12\ 15 U.S.C. 80a-12(d)(1).
    \13\ For purposes of this filing, ETFs consist of 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). All ETFs will be listed and traded in the U.S. 
on a national securities exchange. The Fund will not invest in 
inverse ETFs or in leveraged (e.g., 2X, -2X, 3X or -3X) ETFs.
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    The Fund may invest in Currency Trust Shares.\14\
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    \14\ Currency Trust Shares are securities such as those 
described in NYSE Arca Equities Rule 8.202.
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    The Fund may invest in real estate investment trusts (``REITs'') 
traded on U.S. exchanges and Japanese exchanges.
    The Fund may enter into short sales of securities. The Fund may 
also enter into short sales ``against the box,'' i.e., when the Fund 
sells a security short while owning a securities equivalent in kind and 
amount to the securities sold short (or securities convertible or 
exchangeable into such securities) and will hold such securities while 
the short sale is outstanding.
    The Fund may invest in the following money market instruments: U.S. 
Government obligations; corporate debt obligations \15\ (including, 
without limitation, those subject to repurchase agreements); banker's 
acceptances (credit instruments evidencing the obligation of a bank to 
pay a draft drawn on it by a customer); certificates of deposit of 
domestic branches of banks (certificates representing the obligation of 
a bank to repay funds deposited with it for a specified period of 
time); commercial paper \16\ (unsecured, short-term debt obligation of 
a bank, corporation or other borrower); and master notes (unsecured 
obligations which are redeemable upon demand of the holder and which 
permit the investment of fluctuating amounts at varying rates of 
interest).
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    \15\ 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.
    \16\ According to the Registration Statement, the Fund will 
directly invest in commercial paper only if such commercial paper is 
rated in one of the two highest rating categories as rated by a 
major credit agency or, if unrated, will be of comparable quality as 
determined by the Sub-Adviser.
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    The Fund may invest assets in shares of money market funds.
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 also hold up to 100% of 
its portfolio in cash and cash equivalent positions.\17\
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    \17\ Cash equivalents are short-term instruments with maturities 
of less than 3 months. Short-term instruments shall include the 
following: (i) U.S. Government securities, including bills, notes 
and bonds differing as to maturity and rates of interest, which are 
either issued or guaranteed by the U.S. Treasury or by U.S. 
Government agencies or instrumentalities; (ii) certificates of 
deposit issued against funds deposited in a bank or savings and loan 
association; (iii) bankers' acceptances; (iv) repurchase agreements 
and reverse repurchase agreements; (v) bank time deposits; (vi) 
commercial paper; and (vii)money market funds.
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    The Fund intends to maintain the required level of diversification 
and otherwise conduct its operations so as to qualify as a ``regulated 
investment company'' for purposes of the Internal Revenue Code of 
1986.\18\
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    \18\ 26 U.S.C. 851.
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    The Fund may hold up to an aggregate amount of 15% of its net 
assets in illiquid assets, which are investments that cannot be sold or 
disposed of in the ordinary course of business within seven days at 
approximately the prices at which they are valued. Under the 
supervision of the Board of Trustees of the Trust (``Board''), the Fund 
will determine the liquidity of the Fund's investments, which will be 
monitored by the Board pursuant to reports. If through a change in 
values, net assets or other circumstances, the Fund were in a position 
where more than 15% of its net assets were invested in illiquid assets, 
it would seek to take appropriate steps to protect liquidity.
    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.\19\
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    \19\ 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. 28193 (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 fund. 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 1933 Act).
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    The Fund's investments will be consistent with the Fund's 
investment objective and will not be used to enhance leverage. That is, 
while the Fund will be permitted to borrow as permitted under the 1940 
Act, the Fund's investments will not be used to seek performance that 
is the multiple or inverse multiple (i.e., 2Xs and 3Xs) of the Index.
Net Asset Value
    According to the Registration Statement, a Share's net asset value 
(``NAV'') will be determined as of the close of the regular trading 
session on the New York Stock Exchange (``NYSE'') (normally at 4:00 
p.m., Eastern Time (``E.T.'')) on each day that the NYSE is open for 
trading. Any assets or liabilities denominated in currencies other than 
the U.S. dollar will be converted into U.S. dollars at the current 
market rates on the date of valuation as quoted by one or more sources.
    The NAV of the Shares for the Fund is equal to the Fund's total 
assets minus the Fund's total liabilities divided by the total number 
of Shares outstanding. Interest and investment income on the Fund's 
assets accrue daily and are included in the Fund's total assets. 
Expenses and fees (including investment advisory, management, 
administration and distribution fees, if any) accrue daily and are 
included in the Fund's total liabilities. The NAV that is published is 
rounded to the nearest cent; however, for purposes of

[[Page 37225]]

determining the price of Creation Units, the NAV is calculated to five 
decimal places.
    The pricing and valuation of portfolio securities is determined in 
good faith in accordance with procedures approved by, and under the 
direction of, the Board. In determining the value of the Fund's assets, 
equity securities (other than non-exchange traded investment company 
securities), including shares of preferred stocks, convertible 
preferred stocks, warrants, rights, ETFs, REITs, Currency Trust Shares 
and sponsored and unsponsored ADRs, generally will be valued at market 
value using quotations from the primary market on which they are 
traded. The Fund normally will use third party pricing services to 
obtain market quotations.
    Money market instruments and cash equivalents will be valued on the 
basis of broker quotes or valuations provided by a third party pricing 
service, which in determining value utilizes information regarding 
recent sales, market transactions in comparable securities, quotations 
from dealers and various relationships between securities.
    Futures contracts will generally be valued at the settlement price 
of the relevant exchange.
    Investments in other open end investment companies (other than 
ETFs) that are registered under the 1940 Act, including money market 
funds, will be valued based upon the NAVs reported by such registered 
open end investment companies. The prospectuses for these companies 
explain the circumstances under which they will use fair value pricing 
and the effects of using fair value pricing.
    NDFs and foreign forward currency contracts will be valued intraday 
using market quotes, or another proxy as determined to be appropriate 
by a third party market data provider.
    Securities and assets for which market quotations are not readily 
available or which cannot be accurately valued using the Fund's normal 
pricing procedures will be valued by the Trust's Fair Value Pricing 
Committee at fair value as determined in good faith under policies 
approved by the Board. Fair value pricing may be used, for example, in 
situations where (i) portfolio securities, such as securities with 
small capitalizations, are so thinly traded that there have been no 
transactions for that security over an extended period of time; (ii) an 
event occurs after the close of the exchange on which a portfolio 
security is principally traded that is likely to change the value of 
the portfolio security prior to the Fund's NAV calculation; (iii) the 
exchange on which the portfolio security is principally traded closes 
early; or (iv) trading of the particular portfolio security is halted 
during the day and does not resume prior to the Fund's NAV calculation. 
In addition, the Trust may fair value foreign equity portfolio 
securities each day the Trust calculates the Fund's NAV. Pursuant to 
policies adopted by the Board, the Adviser will consult with Bank of 
New York Mellon and the Sub-Adviser on a regular basis regarding the 
need for fair value pricing. The Fund's policies regarding fair value 
pricing are intended to result in a calculation of the Fund's NAV that 
fairly reflects portfolio security values as of the time of pricing. A 
portfolio security's ``fair value'' price may differ from the price 
next available for that portfolio security using the Fund's normal 
pricing procedures, and the fair value price may differ substantially 
from the price at which the security may ultimately be traded or sold. 
The Board will monitor and evaluate the Fund's use of fair value 
pricing, and will periodically review the results of any fair valuation 
under the Trust's policies.
Creation and Redemption of Shares
    According to the Registration Statement, Shares of the Fund will be 
``created'' at NAV by certain large institutions only in block-size 
``Creation Units'' of 50,000 Shares or multiples thereof. The size of a 
Creation Unit is subject to change. Only an ``Authorized Participant'' 
may create or redeem Creation Units directly with the Fund. Each 
Authorized Participant will enter into an authorized participant 
agreement with the Trust, Distributor and Transfer Agent (``Participant 
Agreement''). An Authorized Participant must either be (i) a broker-
dealer or other participant (``Participating Party'') in the clearing 
process through the Continuous Net Settlement System (``Clearing 
Process'') of the National Securities Clearing Corporation (``NSCC'') 
or a clearing agency that is registered with the Commission or (ii) a 
participant of the Depository Trust Company (``DTC Participant'').
    A creation transaction generally takes place when an Authorized 
Participant deposits into the Fund a basket of equity securities 
included in the Fund's portfolio (``Deposit Securities'') and a 
specified cash payment (``Cash Component'').
    Similarly, Shares can be redeemed only in Creation Units, generally 
in exchange for Deposit Securities and a Cash Component.
    The prices at which creations and redemptions occur are based on 
the next calculation of NAV after a creation or redemption order is 
received in an acceptable form under the Participant Agreement.
    The consideration for purchase of Creation Units generally will 
consist of an in-kind deposit of Deposit Securities for each Creation 
Unit constituting a substantial replication, or a representation, of 
the securities included in the Fund's portfolio and a Cash Component 
(calculated as described in this section below). Together, the Deposit 
Securities and the Cash Component constitute the ``Fund Deposit,'' 
which represents the minimum initial and subsequent investment amount 
for a Creation Unit of the Fund.
    According to the Registration Statement, the function of the Cash 
Component will be to compensate for any differences between the NAV per 
Creation Unit and the market value of the Deposit Securities. The Cash 
Component would be an amount equal to the difference between the NAV of 
the Shares (per Creation Unit) and the market value of the Deposit 
Securities. If the Cash Component is a positive number (i.e., the NAV 
per Creation Unit exceeds the market value of the Deposit Securities), 
the Cash Component will be such positive amount and the Authorized 
Participant will deliver the Cash Component. If the Cash Component is a 
negative number (i.e., the NAV per Creation Unit is less than the 
market value of the Deposit Securities), the Cash Component will be 
such negative amount, and the Authorized Participant will be entitled 
to receive cash from the Fund in an amount equal to the Cash Component.
    The Fund, through NSCC, will make available on each day on which 
the NYSE is open for business (``Business Day''), immediately prior to 
the opening of business on the NYSE (currently 9:30 a.m., E.T.), the 
list of the names and the required number of shares of each Deposit 
Security to be included in the current Fund Deposit (based on 
information at the end of the previous Business Day) for the Fund. The 
Fund, through NSCC, will also make available on each Business Day the 
estimated Cash Component, effective through and including the previous 
Business Day, per outstanding Creation Unit of the Fund.
    According to the Registration Statement, the identity and number of 
shares of the Deposit Securities required for the Fund Deposit for the 
Fund may change as rebalancing adjustments and corporate action events 
are reflected from time to time by the Sub-Adviser with a view to the 
investment objective of the Fund. In addition, the Trust

[[Page 37226]]

reserves the right to permit or require the substitution of an amount 
of cash, i.e., a ``cash in lieu'' amount, to be added to the Cash 
Component to replace any Deposit Security that may not be available in 
sufficient quantity for delivery, that may not be eligible for transfer 
through the Clearing Process or that may not be eligible for trading by 
an Authorized Participant or the investor for which it is acting.
    All orders to create Creation Units, whether through the Clearing 
Process (through a Participating Party) or outside the Clearing Process 
(through a DTC Participant), must be received by the Distributor no 
later than 3:00 p.m., E.T., on the date such order is placed in order 
for the creation of Creation Units to be effected based on the NAV of 
Shares of the Fund as next determined on such date after receipt of the 
order in proper form.
    Shares may be redeemed only in Creation Units at their NAV next 
determined after receipt of a redemption request in proper form on a 
Business Day and only through a Participating Party or DTC Participant 
who has executed a Participant Agreement.
    With respect to the Fund, the Trust, through NSCC, will make 
available immediately prior to the opening of business on the NYSE 
(currently 9:30 a.m., E.T.) on each Business Day, the Deposit 
Securities that will be applicable (subject to possible amendment or 
correction) to redemption requests received in proper form on that day. 
Deposit Securities received on redemption may not be identical to 
Deposit Securities that are applicable to creations of Creation Units.
    The redemption proceeds for a Creation Unit will generally consist 
of Deposit Securities, as announced by the Trust on the Business Day of 
the request for a redemption received in proper form, plus cash in an 
amount equal to the difference between the NAV of the Shares being 
redeemed, as next determined after receipt of the request, and the 
value of the Deposit Securities, less a redemption transaction fee. In 
the event that the Deposit Securities have a value greater than the NAV 
of the Shares, a compensating cash payment equal to the differential 
will be required to be made by or through an Authorized Participant by 
the redeeming shareholder.
    If it is not possible to effect deliveries of the Deposit 
Securities, the Trust may in its sole discretion exercise its option to 
redeem such Shares in cash. In addition, an investor may request a 
redemption in cash which the Fund may, in its sole discretion, 
permit.\20\ The Fund may also, in its sole discretion, upon request of 
the shareholder, provide such redeemer a portfolio of securities which 
differs from the exact composition of the Deposit Securities but does 
not differ in NAV.
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    \20\ The Adviser represents that, to the extent the Trust 
effects the creation or redemption of Shares in cash, such 
transactions will be effected in the same manner for all Authorized 
Participants.
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    The right of redemption may be suspended or the date of payment 
postponed with respect to the Fund: (i) For any period during which the 
NYSE is closed (other than customary weekend and holiday closings); 
(ii) for any period during which trading on the NYSE is suspended or 
restricted; (iii) for any period during which an emergency exists as a 
result of which disposal of the Shares of the Fund or determination of 
the Shares' NAV is not reasonably practicable; or (iv) in such other 
circumstances as permitted by the Commission.
Availability of Information
    The Fund's Web site (www.virtus.com), which will be publicly 
available prior to the public offering of Shares, will include 
quantitative information on a per-Share basis updated on a daily basis, 
including, for the Fund (i) the prior Business Day's NAV and mid-point 
of the bid-ask spread at the time of calculation of such NAV (``Bid-Ask 
Price''),\21\ and a calculation of the premium and discount of the Bid-
Ask Price against the NAV, and (ii) data in chart format displaying the 
frequency distribution of discounts and premiums of the daily Bid-Ask 
Price against the NAV, within appropriate ranges, for each of the four 
previous calendar quarters (or for the life of the Fund, if shorter).
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    \21\ The Bid-Ask Price of Shares of the Fund will be determined 
using the mid-point of the highest bid and the lowest offer on the 
Exchange as of the time of calculation of the Fund's NAV. The 
records relating to Bid-Ask Prices will be retained by the Fund and 
its service providers.
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    On each Business Day, before commencement of trading in Shares in 
the Core Trading Session on the Exchange, the Adviser will disclose on 
the Fund's Web site the Disclosed Portfolio for the Fund (as defined in 
NYSE Arca Equities Rule 8.600(c)(2)) that will form the basis of the 
Fund's calculation of the NAV on that Business Day.
    On a daily basis, the Adviser, on behalf of the Fund, will disclose 
on the Fund's Web site 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); the identity of the security, index, 
or other asset or instrument underlying the holding, if any; 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 Fund's portfolio. The Web 
site information will be publicly available at no charge.
    In addition, a basket composition file, which includes the security 
names and share quantities (as applicable) required to be delivered in 
exchange for Fund Shares, together with estimates and actual cash 
components, will be publicly disseminated daily prior to the opening of 
the NYSE via the NSCC. The basket will represent one Creation Unit of 
the Fund.
    In order to provide additional information regarding the indicative 
value of Shares of the Fund, one or more market data vendors will 
disseminate every 15 seconds an updated Indicative Intra-Day Value 
(``IIV'') for the Fund as calculated by an information provider or 
market data vendor.
    The Fund's IIV will be calculated based on the current market value 
of the Fund's portfolio holdings that will form the basis of the Fund's 
calculation of NAV at the end of the Business Day as disclosed on the 
Fund's Web site prior to the Business Day's commencement of trading.
    Investors can also obtain the Trust's Statement of Additional 
Information (``SAI''), the Fund's Shareholder Reports, and the Trust's 
Form N-CSR and Form N-Q, filed twice a year. The Trust's SAI and 
Shareholder Reports will be available free upon request from the Trust, 
and those documents and the Form N-CSR and Form N-Q may be viewed on-
screen or downloaded from the Commission's Web site at www.sec.gov. 
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. Quotation and last sale information for the 
Shares will be available via the Consolidated Tape Association 
(``CTA'') high-speed line. With respect to U.S. exchange-listed equity 
securities, the intra-day, closing and settlement prices of common 
stocks and exchange-traded equity securities (including shares of

[[Page 37227]]

preferred stocks, convertible preferred stocks, warrants, rights, ETFs, 
REITs, Currency Trust Shares and ADRs) will be readily available from 
the national securities exchanges trading such securities, automated 
quotation systems, published or other public sources, or on-line 
information services such as Bloomberg or Reuters. With respect to non-
U.S. exchange-listed equity securities, intra-day, closing and 
settlement prices of common stocks and other equity securities 
(including REITs traded on Japanese exchanges, preferred stocks, 
convertible preferred stocks, warrants and rights), will be available 
from the foreign exchanges on which such securities trade as well as 
from major market data vendors. Intra-day and closing price information 
relating to securities regularly traded in an over-the-counter market 
will be available from major market data vendors. Price information 
from brokers and dealers or pricing services will be available for 
money market instruments, money market funds, cash equivalents, 
forwards and NDFs held by the Fund. Quotation and last sale information 
for futures will be available from the exchange on which they are 
listed. Price information regarding investment company securities 
(other than exchange-traded investment company securities) will be 
available from the applicable fund.
    In addition, the IIV,\22\ 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 Exchange's Core 
Trading Session by one or more major market data vendors.\23\ The 
dissemination of the IIV, together with the Disclosed Portfolio, will 
allow investors to determine the value of the underlying portfolio of 
the Fund on a daily basis and will provide a close estimate of that 
value throughout the trading day. The IIV should not be viewed as a 
``real-time'' update of the NAV per Share of the Fund, which will be 
calculated once per day.
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    \22\ The IIV calculation will be an estimate of the value of the 
Fund's NAV per Share using market data converted into U.S. dollars 
at the current currency rates. The IIV price will be based on quotes 
and closing prices from the securities' local market and may not 
reflect events that occur subsequent to the local market's close. 
Premiums and discounts between the IIV and the market price of the 
Shares may occur. This should not be viewed as a ``real-time'' 
update of the NAV per Share of the Fund, which will be calculated 
only once a day.
    \23\ Currently, it is the Exchange's understanding that several 
major market data vendors display and/or make widely available IIVs 
taken from CTA or other data feeds.
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Trading Halts
    With respect to trading halts, the Exchange may consider all 
relevant factors in exercising its discretion to halt or suspend 
trading in the Shares of the Fund.\24\ 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. These may include: (i) The 
extent to which trading is not occurring in the securities and/or the 
financial instruments comprising the Disclosed Portfolio of the Fund; 
or (ii) whether other unusual conditions or circumstances detrimental 
to the maintenance of a fair and orderly market are present. Trading in 
the Shares 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.
---------------------------------------------------------------------------

    \24\ See NYSE Arca Equities Rule 7.12.
---------------------------------------------------------------------------

Trading Rules
    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 equity securities. Shares will trade on 
the Exchange from 4:00 a.m. to 8:00 p.m., E.T., in accordance with NYSE 
Arca Equities Rule 7.34 (Opening, Core and Late Trading Sessions). The 
Exchange has appropriate rules to facilitate transactions in the Shares 
during all trading sessions. As provided in NYSE Arca Equities Rule 
7.6, Commentary .03, the minimum price variation (``MPV'') for quoting 
and entry of orders in equity securities traded on the Exchange is 
$0.01, with the exception of securities that are priced less than $1.00 
for which the MPV for order entry is $0.0001.
    The Shares will conform to the initial and continued listing 
criteria under NYSE Arca Equities Rule 8.600. The Exchange represents 
that, for initial and/or continued listing, the Fund will be in 
compliance with Rule 10A-3 \25\ under the Act, as provided by NYSE Arca 
Equities Rule 5.3. A minimum of 100,000 Shares for the Fund will be 
outstanding at the commencement of trading on the Exchange. 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.
---------------------------------------------------------------------------

    \25\ 17 CFR 240.10A-3.
---------------------------------------------------------------------------

Surveillance
    The Exchange represents that trading in the Shares will be subject 
to the existing trading surveillances administered by the Exchange, as 
well as cross-market 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.\26\ The Exchange represents that 
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.
---------------------------------------------------------------------------

    \26\ FINRA conducts cross-market surveillances on behalf of the 
Exchange pursuant to a regulatory services agreement. The Exchange 
is responsible for FINRA's performance under this regulatory 
services agreement.
---------------------------------------------------------------------------

    The surveillances referred to above generally focus on detecting 
securities trading outside their normal patterns, which could be 
indicative of manipulative or other violative activity. When such 
situations are detected, surveillance analysis follows and 
investigations are opened, where appropriate, to review the behavior of 
all relevant parties for all relevant trading violations.
    The Exchange or FINRA, on behalf of the Exchange, or both, will 
communicate as needed regarding trading in the Shares, ETFs and certain 
exchange-traded securities underlying the Shares with other markets and 
other entities that are members of the Intermarket Surveillance Group 
(``ISG''), and the Exchange or FINRA, on behalf of the Exchange, or 
both, may obtain trading information regarding trading in the Shares, 
ETFs and certain exchange-traded securities underlying the Shares from 
such markets and other entities. In addition, the Exchange may obtain 
information regarding trading in the Shares, ETFs and certain exchange-
traded securities underlying 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 (``CSSA'').\27\ 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 (``TRACE'').
---------------------------------------------------------------------------

    \27\ 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 CSSA.

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

[[Page 37228]]

    In addition, the Exchange also has a general policy prohibiting the 
distribution of material, non-public information by its employees.
    Not more than 10% of the net assets of the Fund in the aggregate 
invested in equity securities (other than non-exchange-traded 
investment company securities) shall consist of equity securities whose 
principal market is not a member of the ISG or is a market with which 
the Exchange does not have a CSSA. Furthermore, not more than 10% of 
the net assets of the Fund in the aggregate invested in futures 
contracts shall consist of futures contracts whose principal market is 
not a member of ISG or is a market with which the Exchange does not 
have a CSSA.
    All statements and representations made in this filing regarding 
(i) the description of the portfolio, (ii) limitations on portfolio 
holdings or reference assets or (iii) the applicability of Exchange 
rules and surveillance procedures shall constitute continued listing 
requirements for listing the Shares on the Exchange.
    The issuer has represented to the Exchange that it will advise the 
Exchange of any failure by the Fund to comply with the continued 
listing requirements, and, pursuant to its obligations under Section 
19(g)(1) of the Act, the Exchange will monitor for compliance with the 
continued listing requirements. If the Funds [sic] are not in 
compliance with the applicable listing requirements, the Exchange will 
commence delisting procedures under NYSE Arca Equities Rule 5.5(m).
Information Bulletin
    Prior to the commencement of trading, the Exchange will inform its 
Equity Trading Permit Holders in an Information Bulletin (``Bulletin'') 
of the special characteristics and risks associated with trading the 
Shares. Specifically, 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 Equity Trading Permit 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 when an updated IIV will not be calculated or publicly 
disseminated; (iv) how information regarding the IIV and the Disclosed 
Portfolio is disseminated; (v) 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 (vi) trading information.
    In addition, the Bulletin will reference that the Fund is subject 
to various fees and expenses described in the Registration Statement. 
The Bulletin will discuss any exemptive, no-action and interpretive 
relief granted by the Commission from any rules under the Act. The 
Bulletin will also disclose that the NAV for the Shares will be 
calculated after 4:00 p.m., E.T., each trading day.
2. Statutory Basis
    The basis under the Act for this proposed rule change is the 
requirement under Section 6(b)(5) \28\ that an exchange have rules that 
are designed to prevent fraudulent and manipulative acts and practices, 
to promote just and equitable principles of trade, to remove 
impediments to, and perfect the mechanism of a free and open market 
and, in general, to protect investors and the public interest.
---------------------------------------------------------------------------

    \28\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Exchange believes that the proposed rule change is designed to 
prevent fraudulent and manipulative acts and practices in that the 
Shares will be listed and traded on the Exchange pursuant to the 
initial and continued listing criteria in NYSE Arca Equities Rule 
8.600. The Exchange represents that trading in the Shares will be 
subject to the existing trading surveillances administered by the 
Exchange, as well as cross-market surveillances administered by FINRA 
on behalf of the Exchange, which are designed to detect violations of 
Exchange rules and applicable federal securities laws. The Adviser has 
implemented a ``fire wall'' with respect to its affiliated broker-
dealer regarding access to information concerning the composition and/
or changes to the Fund's portfolio. The Exchange or FINRA, on behalf of 
the Exchange, or both, will communicate as needed regarding trading in 
the Shares, ETFs and certain exchange-traded securities underlying the 
Shares with other markets and other entities that are members of the 
ISG, and the Exchange or FINRA, on behalf of the Exchange, or both, may 
obtain trading information regarding trading in the Shares, ETFs and 
certain exchange-traded securities underlying the Shares from such 
markets and other entities. In addition, the Exchange may obtain 
information regarding trading in the Shares, ETFs and certain exchange-
traded securities underlying the Shares from markets and other entities 
that are members of ISG or with which the Exchange has in place a CSSA. 
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 TRACE. The Fund may hold up to an aggregate amount 
of 15% of its net assets in illiquid assets (calculated at the time of 
investment). The ETFs held by the Fund will be traded on U.S. national 
securities exchanges and will be subject to the rules of such 
exchanges, as approved by the Commission. The Fund's investments will 
be consistent with its investment objective and will not be used to 
enhance leverage.
    The proposed rule change is designed to promote just and equitable 
principles of trade and to protect investors and the public interest in 
that 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. In addition, a large amount of 
information is publicly available regarding the Fund and the Shares, 
thereby promoting market transparency. The Fund's portfolio holdings 
will be disclosed on its Web site daily after the close of trading on 
the Exchange and prior to the opening of trading on the Exchange the 
following day. Moreover, the IIV will be widely disseminated by one or 
more major market data vendors at least every 15 seconds during the 
Exchange's Core Trading Session. These criteria are similar to certain 
``generic'' listing criteria in NYSE Arca Equities Rule 5.2(j)(3), 
Commentary .01(a)(B), which relate to criteria applicable to an index 
or portfolio of U.S. and non-U.S. stocks underlying a series of 
Investment Company Units to be listed and traded on the Exchange 
pursuant to Rule 19b-4(e) under the Act. On each Business Day, before 
commencement of trading in Shares in the Core Trading Session on the 
Exchange, the Fund will disclose on its Web site the Disclosed 
Portfolio that will form the basis for the Fund's calculation of NAV at 
the end of the Business 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, and quotation and last sale information will be 
available via the CTA high-speed line. The Web site for the Fund will 
include additional data relating to NAV and other applicable 
quantitative information. Moreover, prior to the commencement of 
trading, the Exchange will inform its Equity Trading Permit Holders in 
an

[[Page 37229]]

[sic] Bulletin of the special characteristics and risks associated with 
trading the Shares. Trading in Shares of the Fund will be halted if the 
circuit breaker parameters in NYSE Arca Equities Rule 7.12 have been 
reached or because of market conditions or for reasons that, in the 
view of the Exchange, make trading in the Shares inadvisable, and 
trading in the Shares 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 intra-day, closing and settlement prices of 
the portfolio securities are also readily available from the national 
securities exchanges trading such securities, automated quotation 
systems, published or other public sources, or on-line information 
services such as Bloomberg or Reuters. In addition, as noted above, 
investors will have ready access to information regarding the Fund's 
holdings, the IIV, the Disclosed Portfolio, and quotation and last sale 
information for the Shares.
    The proposed rule change is designed to perfect the mechanism of a 
free and open market and, in general, to protect investors and the 
public interest in that it will facilitate the listing and trading of 
an additional type of actively-managed exchange-traded product that 
will enhance competition among market participants, to the benefit of 
investors and the marketplace. As noted above, the Exchange has in 
place surveillance procedures relating to trading in the Shares and may 
obtain information via ISG from other exchanges that are members of ISG 
or with which the Exchange has entered into a CSSA. In addition, as 
noted above, investors will have ready access to information regarding 
the Fund's holdings, the IIV, the Disclosed Portfolio, and quotation 
and last sale information for the Shares.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purpose of the Act. The Exchange notes that the 
proposed rule change will facilitate the listing and trading of an 
actively-managed exchange-traded product that will principally hold 
non-U.S. equity securities and that will enhance competition among 
market participants, to the benefit of investors and the marketplace.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    No written comments were solicited or received with respect to the 
proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Within 45 days of the date of publication of this notice in the 
Federal Register or within such longer period up to 90 days (i) as the 
Commission may designate if it finds such longer period to be 
appropriate and publishes its reasons for so finding or (ii) as to 
which the self-regulatory organization consents, the Commission will:
    (A) By order approve or disapprove the proposed rule change, or
    (B) institute proceedings to determine whether the proposed rule 
change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is 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-2016-79 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-2016-79. 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 such filing also will be available 
for inspection and copying at the principal offices 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-2016-
79, and should be submitted on or before June 30, 2016.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\29\
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    \29\ 17 CFR 200.30-3(a)(12).
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Brent J. Fields,
Secretary.
[FR Doc. 2016-13615 Filed 6-8-16; 8:45 am]
 BILLING CODE 8011-01-P