
[Federal Register Volume 81, Number 222 (Thursday, November 17, 2016)]
[Notices]
[Pages 81189-81199]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-27603]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-79293; File No. SR-NYSEArca-2016-107]


Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
of Amendment No. 2 to, and Order Granting Accelerated Approval of, a 
Proposed Rule Change, as Modified by Amendment No. 2 Thereto, Relating 
To Listing and Trading of Shares of Cumberland Municipal Bond ETF under 
NYSE Arca Equities Rule 8.600


DATE: November 10, 2016.

I. Introduction

    On July 26, 2016, NYSE Arca, Inc. filed with the Securities and 
Exchange Commission (``Commission''), pursuant to Section 19(b)(1) of 
the Securities Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 
thereunder,\2\ a proposed rule change to list and trade shares of the 
Cumberland Municipal Bond ETF (``Fund'') under NYSE Arca Equities Rule 
8.600. The proposed rule change was published for comment in the 
Federal Register on August 15, 2016.\3\ On September 15, 2016, the 
Exchange filed Amendment No. 1 to the proposed rule change.\4\ On 
September 27, 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\ On November 8, 2016, the Exchange filed Amendment No. 2 to 
the proposed rule change.\7\
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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. 78523 (Aug. 9, 
2016), 81 FR 54155 (``Notice'').
    \4\ In Amendment No. 1, which amended and replaced the proposed 
rule change in its entirety, the Exchange: (1) Described additional 
diversification requirements that would apply to the Fund's holdings 
in municipal bonds; (2) clarified the Fund's holdings in non-
exchange-traded investment company securities; and (3) corrected 
certain references to the regular trading session of the Exchange. 
Amendment No. 1 to the proposed rule change is available at: https://www.sec.gov/comments/sr-nysearca-2016-107/nysearca2016107-1.pdf.
    \5\ 15 U.S.C. 78s(b)(2).
    \6\ See Securities Exchange Act Release No. 78949, 81 FR 68078 
(Oct. 3, 2016). The Commission designated November 13, 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\ In Amendment No. 2, which amended and replaced the proposed 
rule change, as modified by Amendment No. 1 thereto, in its 
entirety, the Exchange: (1) Described additional diversification 
criteria that would apply to the Fund's holdings in municipal bonds; 
and (2) clarified the Fund's holdings in non-exchange-traded or 
other investment company securities. Amendment No. 2 to the proposed 
rule change is available at: https://www.sec.gov/comments/sr-nysearca-2016-107/nysearca2016107.shtml.
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    The Commission has not received any comments on the proposed rule 
change. The Commission is publishing this notice to solicit comments on 
Amendment No. 2 from interested persons and is approving the proposed 
rule change, as modified by Amendment No. 2 thereto, on an accelerated 
basis.

II. The Exchange's Description of the Proposed Rule Change

    In its filing with the Commission, the Exchange 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 
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: \8\ Cumberland Municipal 
Bond ETF (the ``Fund''),\9\ a

[[Page 81190]]

series of the ETFis Series Trust I (``Trust'').\10\
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    \8\ 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.
    \9\ The Securities and Exchange Commission (``Commission'') has 
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. 69591 (May 16, 2013), 78 FR 30372 (May 22, 2013) (SR-
NYSEArca-2013-33) (order approving Exchange listing and trading of 
International Bear ETF); 69061 (March 7, 2013), 78 FR 15990 (March 
13, 2013) (SR-NYSEArca-2013-01) (order approving Exchange listing 
and trading of Newfleet Multi-Sector Income ETF). The Commission has 
approved for Exchange listing and trading shares of two actively 
managed funds of the PIMCO ETF Trust that principally hold municipal 
bonds. See Securities Exchange Act Release No. 60981 (November 10, 
2009), 74 FR 59594 (November 18, 2009) (SR-NYSEArca-2009-79) (order 
approving listing and trading of shares of the PIMCO Short-Term 
Municipal Bond Strategy Fund and PIMCO Intermediate Municipal Bond 
Strategy Fund). The Commission also has approved listing and trading 
on the Exchange of shares of the SPDR Nuveen S&P High Yield 
Municipal Bond Fund under Commentary .02 of NYSE Arca Equities Rule 
5.2(j)(3). See Securities Exchange Act Release No.63881 (February 9, 
2011), 76 FR 9065 (February 16, 2011) (SR-NYSEArca-2010-120).
    \10\ The Trust is registered under the 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 
(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''). 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. 30607 (July 23, 2013) (File No. 
812-14080) (``Exemptive Order''). This Amendment No. 2 to SR-
NYSEArca-2016-107 replaces SR-NYSEArca-2016-107 as originally filed 
and Amendment No. 1 thereto and supersedes such filings in their 
entirety.
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    The investment adviser to the Fund will be Virtus ETF Advisers LLC 
(the ``Adviser''). The Fund's sub-adviser will be Cumberland Advisors 
Inc. (``Sub-Adviser''). Virtus ETF Solutions LLC will serve as the 
Fund's operational administrator. ETF Distributors LLC will serve as 
the distributor (the ``Distributor'') of Fund Shares on an agency 
basis. The Bank of New York Mellon (the ``Administrator'') will serve 
as the administrator, custodian, transfer agent and fund accounting 
agent for the Fund.
    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.\11\ 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. 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 such broker-dealer affiliate regarding access to information 
concerning the composition and/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 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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    \11\ An investment adviser to an open-end fund is required to be 
registered under the Investment Advisers Act of 1940 (the ``Advisers 
Act''). As a result, the Adviser and Sub-Adviser and their 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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Description of the Fund
Principal Investments
    According to the Registration Statement, 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,\12\ will invest at least eighty percent (80%) of the Fund's 
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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    \12\ The term ``normal market conditions'' is defined in NYSE 
Arca Equities Rule 8.600(c)(5).
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    According to the Registration Statement, 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.\13\ 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. At least 80% of the weight of the 
Fund's assets will be in Municipal Bonds with a modified duration of 15 
years or less.
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    \13\ 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.
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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 in the 
Adviser's opinion. From time to time, the Fund may concentrate in 
particular sectors; however, the Fund's investments will be diversified 
among a minimum of ten distinct Municipal Bond sectors.\14\ In 
addition, the Fund will limit its investments in Municipal Bonds in any 
single sector to 25% of the Fund's assets. 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.
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    \14\ The Fund's investments in Municipal Bonds will include 
investments in state and local (e.g., county, city, town) Municipal 
Bonds relating to such sectors as the following: Dedicated tax; 
public power; tax increment; toll road; port revenue; airport 
revenue; water revenue; sewer revenue; higher education (colleges 
and universities); wastewater revenue; school districts; sales tax 
revenue; and pre-refunded bonds.
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    Under normal market conditions, each Municipal Bond held by the 
Fund

[[Page 81191]]

must be a constituent of a deal where the deal's original offering 
amount was at least $100 million. The Fund will hold a minimum of 75 
different Municipal Bonds. No Municipal Bond held by the Fund will 
exceed 4% of the weight of the Fund's portfolio and no single Municipal 
Bond issuer will account for more than 10% of the weight of the Fund's 
portfolio. The Fund will hold Municipal Bonds of a minimum of 40 non-
affiliated issuers diversified among issuers in at least 20 different 
states, with no more than 30% of the Fund's assets comprised of 
Municipal Bonds that provide exposure to any single state.\15\
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    \15\ For purposes of this restriction, each state and each 
separate political subdivision, agency, authority, or 
instrumentality of such state, each multi-state agency or authority, 
and each guarantor, if any, will be treated as separate issuers of 
Municipal Bonds.
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    According to the Registration Statement, 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.
Other Investments
    While the Fund, under normal market conditions, will invest at 
least eighty percent (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 exchange-traded funds 
(``ETFs''),\16\ money market funds, 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 
over-the-counter (``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.\17\
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    \16\ 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.
    \17\ 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 money market 
funds) 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. See note 34, 
infra.
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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 may invest in exchange-traded and OTC securities 
convertible into common stock. Such securities are the following: 
Convertible bonds and convertible preferred stocks.\18\
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    \18\ The criteria in note 16 above also will apply to exchange-
traded convertible preferred stocks and exchange-traded stocks into 
which convertible bonds may be converted.
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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 \19\ and 
certificates of deposit \20\ of domestic branches of banks, commercial 
paper,\21\ and master notes.\22\
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    \19\ 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.
    \20\ A certificate of deposit is an unsecured, interest bearing 
debt obligation of a bank.
    \21\ 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.
    \22\ 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. Generally, money market mutual funds are registered investment 
companies that seek to earn income consistent with the preservation of 
capital and maintenance of liquidity by investing primarily in high 
quality money market instruments.
    The Fund may invest in compliance with Section 12(d)(1)(E), (F) and 
(G) of the 1940 Act and the rules thereunder.\23\
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    \23\ 15 U.S.C. 80a-12(d)(1)(E), (F) and (G).
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    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.
    Additionally, the Trust, on behalf of the Fund, has claimed an 
exclusion from the definition of the term ``commodity pool operator'' 
pursuant to Rule 4.5 under the Commodity Exchange Act, as amended (the 
``CEA''). Therefore, the Fund is not subject to regulation or 
registration as a commodity pool operator under the CEA.
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.
    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.\24\
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    \24\ 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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[[Page 81192]]

    The Fund will seek to qualify for treatment as a regulated 
investment company under the Internal Revenue Code of 1986.\25\
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    \25\ 26 U.S.C. 851.
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    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.
Creation and Redemption of Shares
    According to the Registration Statement, the Trust will issue and 
sell Shares of the Fund only in ``Creation Units'' on a continuous 
basis through the Distributor, at their net asset value (``NAV'') next 
determined after receipt, on any business day, for an order received in 
proper form. All orders to create Creation Units must be placed for one 
or more Creation Unit size aggregations of Shares (50,000 Shares per 
Creation Unit). The Creation Unit size is subject to change. Cash 
creations will be the default mechanism for creation of Shares.
    However, the Fund will retain the ability to utilize an in-kind 
mechanism for creation of Shares, upon approval of the Distributor. In 
such case, the consideration for purchase of a Creation Unit of the 
Fund 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'' computed as described 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. The Cash Component 
is 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. 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 creator will be entitled to receive cash from the Fund 
in an amount equal to the Cash Component. The Cash Component serves the 
function of compensating for any differences between the NAV per 
Creation Unit and the market value of the Deposit Securities.
    The Administrator, through the National Securities Clearing 
Corporation (``NSCC''), will make available on each business day, 
immediately prior to the opening of business on the Exchange (currently 
9:30 a.m., Eastern Time), 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. Such Fund Deposit will be applicable, subject to any 
adjustments as described below, in order to effect creations of 
Creation Units of the Fund until such time as the next-announced 
composition of the Deposit Securities is made available.
    The identity and number of Shares of the Deposit Securities 
required for the Fund Deposit for the Fund will change as rebalancing 
adjustments and corporate action events occur from time to time. In 
addition, the Trust 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 or that may not be eligible for trading by an 
``Authorized Participant'' (as described below) or the investor for 
which it is acting.
    In addition to the list of names and numbers of securities 
constituting the current Deposit Securities of the Fund Deposit, the 
Administrator, through NSCC, also will 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.
Procedures for Creation of Creation Units
    To be eligible to place orders to create a Creation Unit of the 
Fund, an entity must be (i) a ``Participating Party'', i.e., a broker-
dealer or other participant in the clearing process through the 
Continuous Net Settlement System of NSCC (the ``Clearing Process'') or 
a clearing agency that is registered with the Commission, or (ii) a 
Depositary Trust Company (``DTC'') Participant and, in each case, must 
have executed an agreement with the Trust, the Distributor and the 
Administrator with respect to creations and redemptions of Creation 
Units (``Participant Agreement''). A Participating Party and DTC 
Participant are collectively referred to as an ``Authorized 
Participant''.
    All orders to create Creation Units must be received by the 
Distributor no later than the close of the Core Trading Session on the 
Exchange (ordinarily 4:00 p.m., Eastern Time), in each case 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.
Redemption of Creation Units
    Shares may be redeemed only in Creation Units at their NAV next 
determined after receipt of a redemption request in proper form by the 
Distributor and the Fund through the Administrator and only on a 
business day. Cash redemptions will be the default mechanism for 
redemptions of Shares.
    However, the Fund will retain the ability to utilize an in-kind 
mechanism for redemption of Shares, upon approval of the Distributor. 
In such case, the redemption proceeds for a Creation Unit generally 
consist of Deposit Securities, as announced by the Administrator on the 
business day of the request for 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 a receipt of a request 
in proper form, and the value of the Deposit Securities (the ``Cash 
Redemption Amount''), 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 is 
required to be made by or through an Authorized Participant by the 
redeeming shareholder.
    With respect to the Fund, the Administrator, through NSCC, will 
make available immediately prior to the opening of business on the 
Exchange (currently 9:30 a.m., Eastern Time) 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 which are applicable to creations of 
Creation Units.
    If it is not possible to effect deliveries of the Deposit 
Securities, the Trust may in its discretion exercise its option to 
redeem such shares in cash, and the redeeming beneficial owner will be 
required to receive its redemption proceeds in cash. In addition, an 
investor may request a redemption in

[[Page 81193]]

cash which the Fund may, in its sole discretion, permit.\26\ In either 
case, the investor will receive a cash payment equal to the NAV of its 
Shares based on the NAV of Shares of the Fund next determined after the 
redemption request is received in proper form (minus a redemption 
transaction fee and additional charge for requested cash redemptions, 
to offset the Trust's brokerage and other transaction costs associated 
with the disposition of Deposit Securities).
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    \26\ 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 (1) for any period during which the 
Exchange is closed (other than customary weekend and holiday closings); 
(2) for any period during which trading on the Exchange is suspended or 
restricted; (3) 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 (4) in such other 
circumstance as is permitted by the Commission.
Net Asset Value
    The NAV per Share for the Fund will be computed by dividing the 
value of the net assets of the Fund (i.e., the value of its total 
assets less total liabilities) by the total number of Shares 
outstanding, rounded to the nearest cent. Expenses and fees, including 
the management fee, will be accrued daily and taken into account for 
purposes of determining NAV. The NAV of the Fund will be determined as 
of the close of the Core Trading Session on the Exchange (ordinarily 
4:00 p.m., Eastern Time) on each day that the Exchange is open. 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 pricing and valuation of portfolio securities will be 
determined in good faith in accordance with procedures approved by, and 
under the direction of, the Trust's Board of Trustees (``Board''). In 
determining the value of the Fund's assets, equity securities will be 
generally valued at market using quotations from the primary market in 
which they are traded. Debt securities (other than short-term 
investments) will be valued on the basis of broker quotes or valuations 
provided by a pricing service, which in determining value will utilize 
information regarding recent sales, market transactions in comparable 
securities, quotations from dealers, and various relationships between 
securities. Other assets, such as accrued interest, accrued dividends 
and cash also will be included in determining the NAV. The Fund 
normally will use third party pricing services to obtain portfolio 
security prices.
    Municipal Bonds, money market instruments, convertible bonds, 
taxable municipal bonds, and VRDNs will generally be valued at bid 
prices received from independent pricing services as of the announced 
closing time for trading in fixed-income instruments in the respective 
market.
    Exchange-traded equity securities, including common stocks, ETFs, 
preferred stocks, convertible preferred stocks and warrants, will be 
valued at market value, which will generally be determined using the 
last reported official closing or last trading price on the exchange or 
market on which the security is primarily traded at the time of 
valuation or, if no sale has occurred, at the last quoted bid price on 
the primary market or exchange on which they are traded. If market 
prices are unavailable or the Fund believes that they are unreliable, 
or when the value of a security has been materially affected by events 
occurring after the relevant market closes, the Fund will price those 
securities at fair value as determined in good faith using methods 
approved by the Trust's Board.
    Equity securities traded in the OTC market, including common 
stocks, preferred stocks, and warrants, will be valued at the last 
reported sale price on the valuation date. OTC traded convertible 
preferred stocks will be valued based on price quotations obtained from 
a broker-dealer who makes markets in such securities or other 
equivalent indications of value provided by a third-party pricing 
service. Securities of money market funds will be valued at NAV.
    Option contracts will be valued at their most recent sale price on 
the applicable exchange. If no such sales are reported, these contracts 
will be valued at their most recent bid price.
    To the extent the assets of the Fund are invested in other open-end 
investment companies that are registered under the 1940 Act, the Fund's 
NAV will be calculated based upon the NAVs reported by such registered 
open-end investment companies.
    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. 
The Board will monitor and evaluate the Fund's use of fair value 
pricing, and periodically reviews the results of any fair valuation 
under the Trust's policies.
Availability of Information
    The Fund's Web site (www.cumberetfs.com), which will be publicly 
available prior to the public offering of Shares, will include a form 
of the prospectus for the Fund that may be downloaded. The Fund's Web 
site will include additional quantitative information updated on a 
daily basis, including, for the Fund, (1) daily trading volume, the 
prior business day's reported closing price, NAV and mid-point of the 
bid/ask spread at the time of calculation of such NAV (the ``Bid/Ask 
Price''),\27\ and a calculation of the premium and discount of the Bid/
Ask Price against the NAV, and (2) 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. On each business day, before commencement 
of trading in Shares in the Core Trading Session on the Exchange 
(ordinarily 9:30 a.m., Eastern Time), the Fund's Web site will disclose 
the Disclosed Portfolio that will form the basis for the Fund's 
calculation of NAV at the end of the business day.\28\
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    \27\ The Bid/Ask Price of the Fund's Shares 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.
    \28\ 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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[[Page 81194]]

    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; for options, the option strike price; quantity 
held (as measured by, for example, par value, notional value or number 
of shares, contracts or units); maturity date, if any; coupon rate, if 
any; effective date, if any; market value of the holding; and the 
percentage weighting of the holding in the 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, if applicable, required to be delivered in 
exchange for the Fund's Shares, together with estimates and actual cash 
components, will be publicly disseminated daily prior to the opening of 
the Exchange via the NSCC. The basket represents one Creation Unit of 
the Fund. The NAV of Shares of the Fund will normally be determined as 
of the close of the Core Trading Session on the Exchange (ordinarily 
4:00 p.m., Eastern Time) on each business day. Authorized Participants 
may refer to the basket composition file for information regarding 
securities and financial instruments that may comprise the Fund's 
basket on a given day.
    The approximate value of the Fund's investments on a per-Share 
basis, the Indicative Intra-Day Value (``IIV''), will be disseminated 
every 15 seconds during the Exchange Core Trading Session (ordinarily 
9:30 a.m. to 4:00 p.m., Eastern Time). The IIV should not be viewed as 
a ``real-time'' update of NAV because the IIV will be calculated by an 
independent third party and may not be calculated in the exact same 
manner as NAV, which will be computed daily.
    The IIV for the Fund will be calculated by dividing the ``Estimated 
Fund Value'' as of the time of the calculation by the total number of 
outstanding Shares. ``Estimated Fund Value'' is the sum of the 
estimated amount of cash held in the Fund's portfolio, the estimated 
amount of accrued interest owing to the Fund and the estimated value of 
the securities held in the Fund's portfolio, minus the estimated amount 
of the Fund's liabilities. The IIV will be calculated based on the same 
portfolio holdings disclosed on the Fund's Web site. In determining the 
estimated value for each of the component securities, the IIV will use 
last sale, market prices or other methods that would be considered 
appropriate for pricing securities held by registered investment 
companies.
    Investors can also obtain the Trust's Statement of Additional 
Information (``SAI''), the Fund's shareholder reports, and its Form N-
CSR and Form N-SAR, 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-SAR 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 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. Price 
information regarding non-U.S. exchange-traded equity securities held 
by the Fund will be available from the exchanges trading such assets.
    Quotation information from brokers and dealers or pricing services 
will be available for Municipal Bonds, taxable municipal bonds, 
convertible bonds, OTC traded convertible preferred stocks, corporate 
debt obligations, VRDNs, and cash equivalents. Price information for 
money market funds will be available from the applicable investment 
company's Web site and from market data vendors. Intra-day and closing 
price information for OTC equity securities will be available from 
major market data vendors. 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. Quotation and last sale information for exchange-traded 
options will be available via the Options Price Reporting Authority and 
from the applicable U.S. options exchange. In addition, the 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.\29\ 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.
---------------------------------------------------------------------------

    \29\ 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.
---------------------------------------------------------------------------

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.\30\ 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: (1) The 
extent to which trading is not occurring in the securities and/or the 
financial instruments comprising 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. 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.
---------------------------------------------------------------------------

    \30\ See NYSE Arca Equities Rule 7.12, Commentary .04.
---------------------------------------------------------------------------

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 NYSE Arca Marketplace from 4 a.m. to 8 p.m., Eastern Time 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 NYSE Arca Marketplace 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. Consistent with NYSE Arca 
Equities Rule 8.600(d)(2)(B)(ii), the Adviser will implement and 
maintain, or be subject to, procedures designed to prevent the

[[Page 81195]]

use and dissemination of material non-public information regarding the 
actual components of the Fund's portfolio. The Exchange represents 
that, for initial and/or continued listing, the Fund will be in 
compliance with Rule 10A-3 \31\ under the Act, as provided by NYSE Arca 
Equities Rule 5.3. A minimum of 100,000 Shares 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 
\32\ as defined in NYSE Arca Equities Rule 8.600(c)(2) will be made 
available to all market participants at the same time. The Fund's 
investments will be consistent with the Fund's investment objective and 
will not be used to enhance leverage.
---------------------------------------------------------------------------

    \31\ 17 CFR 240.10A-3.
    \32\ The term ``Disclosed Portfolio'' is defined in NYSE Arca 
Equities Rule 8.600(c)(2).
---------------------------------------------------------------------------

Surveillance
    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, or 
by regulatory staff of the Exchange, which are designed to detect 
violations of Exchange rules and applicable federal securities laws. 
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.\33\
---------------------------------------------------------------------------

    \33\ 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.
---------------------------------------------------------------------------

    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.\34\
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    \34\ For a list of the current members of ISG, see 
www.isgportal.org. The Exchange notes that not all components of the 
Disclosed Portfolio 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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    FINRA, on behalf of the Exchange, or regulatory staff of the 
Exchange, will communicate as needed regarding trading in the Shares, 
options and certain exchange-traded equity securities with other 
markets and other entities that are members of the ISG, and FINRA, on 
behalf of the Exchange, or regulatory staff of the Exchange, may obtain 
trading information regarding trading in the Shares, options and 
certain exchange-traded equity securities from such markets and other 
entities. In addition, the Exchange may obtain information regarding 
trading in the Shares, options and certain exchange-traded equity 
securities from markets and other entities that are members of ISG or 
with which the Exchange has in place a comprehensive surveillance 
sharing agreement. In addition, 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''). FINRA also can access data obtained from 
the Municipal Securities Rulemaking Board (``MSRB'') relating to 
municipal bond trading activity for surveillance purposes in connection 
with trading in the Shares.
    In addition, the Exchange also has a general policy prohibiting the 
distribution of material, non-public information by its employees.
    All statements and representations made in this filing regarding 
(a) the description of the portfolio, (b) limitations on portfolio 
holdings or reference assets, or (c) the applicability of Exchange 
rules and surveillance procedures shall constitute continued listing 
requirements for listing the Shares of the Fund 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 Fund is 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: (1) The 
procedures for purchases and redemptions of Shares in Creation Unit 
aggregations (and that Shares are not individually redeemable); (2) 
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; (3) 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; (4) how information regarding the IIV and the Disclosed 
Portfolio is disseminated; (5) 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 (6) 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., Eastern Time each trading day.
2. Statutory Basis
    The basis under the Act for this proposed rule change is the 
requirement under Section 6(b)(5) \35\ 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.
---------------------------------------------------------------------------

    \35\ 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 has in place surveillance procedures that are 
adequate to properly monitor trading in the Shares in all trading 
sessions and to deter and detect violations of Exchange rules and 
applicable federal securities laws. FINRA, on behalf of the Exchange, 
or regulatory staff of the Exchange, will communicate as needed 
regarding trading in the Shares, options and certain exchange-traded 
equity securities with other markets and other entities that are 
members of the ISG, and FINRA, on behalf of the Exchange, or regulatory 
staff of the Exchange, may obtain trading information regarding trading 
in the Shares, options and certain exchange-traded equity securities 
from such markets and other entities. In addition, the Exchange may 
obtain information regarding trading in

[[Page 81196]]

the Shares, options and certain exchange-traded equity securities from 
markets and other entities that are members of ISG or with which the 
Exchange has in place a comprehensive surveillance sharing agreement. 
In addition, 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 TRACE. FINRA also can access data obtained from 
the MSRB relating to municipal bond trading activity for surveillance 
purposes in connection with trading in the Shares. The Fund may not 
purchase or hold illiquid assets if, in the aggregate, more than 15% of 
its net assets would be invested in illiquid assets. The Adviser and 
Sub-Adviser are not registered as broker-dealers but the Adviser 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 and/or 
changes to the portfolio. The Fund's investments in Municipal Bonds 
will be well-diversified in that, under normal market conditions, the 
Fund will hold a minimum of 75 different Municipal Bonds; no Municipal 
Bond held by the Fund will exceed 4% of the weight of the Fund's 
portfolio; no single Municipal Bond issuer will account for more than 
10% of the weight of the Fund's portfolio; and the Fund will hold 
Municipal Bonds of a minimum of 40 non-affiliated issuers, diversified 
among issuers in at least 20 different states, with no more than 30% of 
the Fund's assets comprised of Municipal Bonds that provide exposure to 
any single state. In addition, 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. The Fund's investments will be 
diversified among a minimum of ten distinct Municipal Bond sectors and 
the Fund will limit its investments in Municipal Bonds in any single 
sector to 25% of the Fund's assets.
    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. Quotation and last sale 
information for the Shares and the underlying U.S. exchange-traded 
equity securities will be available via the CTA high-speed line, and 
from the national securities exchange on which they are listed. 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; for options, the option strike price; quantity held (as measured 
by, for example, par value, notional value or number of shares, 
contracts or units); maturity date, if any; coupon rate, if any; 
effective date, if any; market value of the holding; and the percentage 
weighting of the holding in the Fund's portfolio. Moreover, prior to 
the commencement of trading, the Exchange will inform its Equity 
Trading Permit Holders in an Information Bulletin of the special 
characteristics and risks associated with trading the Shares. 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. 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. 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 
principally holds municipal bonds and 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 comprehensive surveillance sharing 
agreement. 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 
additional type of actively-managed exchange-traded product that 
principally holds municipal bonds 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. 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 Act and 
the rules and regulations thereunder applicable to a national 
securities exchange.\36\ In particular, the Commission finds that the 
proposed rule change is consistent with Section 6(b)(5) of the Act,\37\ 
which requires, among other things, that the Exchange's rules be 
designed to prevent fraudulent and manipulative acts and practices, 
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.
---------------------------------------------------------------------------

    \36\ 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).
    \37\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    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 Act,\38\ which sets forth Congress' finding that it is in the 
public interest and appropriate for the protection of investors and the 
maintenance of fair and orderly markets to assure the availability to 
brokers, dealers, and investors of information with respect to 
quotations for and transactions in securities. Quotation and last-sale 
information for the Shares and the underlying U.S. exchange-traded 
equity securities will be available via the CTA high-speed line, and 
from the

[[Page 81197]]

national securities exchange on which they are listed.
---------------------------------------------------------------------------

    \38\ 15 U.S.C. 78k-1(a)(1)(C)(iii).
---------------------------------------------------------------------------

    The approximate value of the Fund's investments on a per-Share 
basis, the IIV (which is the Portfolio Indicative Value, as defined in 
NYSE Arca Equities Rule 8.600(c)(3)), will be disseminated every 15 
seconds during the Exchange Core Trading Session (ordinarily 9:30 a.m. 
to 4:00 p.m., Eastern Time) by one or more major market data 
vendors.\39\ On each business day, before commencement of trading in 
Shares in the Core Trading Session on the Exchange (ordinarily 9:30 
a.m., Eastern Time), the Fund's Web site will disclose the Disclosed 
Portfolio that will form the basis for the Fund's calculation of NAV at 
the end of the business day.\40\ In addition, a basket composition 
file, which includes the security names and share quantities, if 
applicable, required to be delivered in exchange for the Fund's Shares, 
together with estimates and actual cash components, will be publicly 
disseminated daily prior to the opening of the Exchange via the NSCC. 
The basket represents one Creation Unit of the Fund. The NAV of Shares 
of the Fund will normally be determined as of the close of the Core 
Trading Session on the Exchange (ordinarily 4:00 p.m., Eastern Time) on 
each business day. Authorized Participants may refer to the basket 
composition file for information regarding securities and financial 
instruments that may comprise the Fund's basket on a given day.
---------------------------------------------------------------------------

    \39\ The Exchange represents that several major market data 
vendors display and/or make widely available IIVs taken from CTA or 
other data feeds. According to the Exchange, the IIV for the Fund 
will be calculated by dividing the ``Estimated Fund Value'' as of 
the time of the calculation by the total number of outstanding 
Shares. ``Estimated Fund Value'' is the sum of the estimated amount 
of cash held in the Fund's portfolio, the estimated amount of 
accrued interest owing to the Fund, and the estimated value of the 
securities held in the Fund's portfolio, minus the estimated amount 
of the Fund's liabilities. The IIV will be calculated based on the 
same portfolio holdings disclosed on the Fund's Web site. In 
determining the estimated value for each of the component 
securities, the IIV will use last sale, market prices, or other 
methods that would be considered appropriate for pricing securities 
held by registered investment companies.
    \40\ 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; for options, the option strike 
price; quantity held (as measured by, for example, par value, 
notional value or number of shares, contracts or units); maturity 
date, if any; coupon rate, if any; effective date, if any; market 
value of the holding; and the percentage weighting of the holding in 
the Fund's portfolio. The Web site information will be publicly 
available at no charge.
---------------------------------------------------------------------------

    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. In addition, price information regarding non-
U.S. exchange-traded equity securities held by the Fund will be 
available from the exchanges trading such assets. Quotation information 
from brokers and dealers or pricing services will be available for 
Municipal Bonds, taxable municipal bonds, convertible bonds, OTC traded 
convertible preferred stocks, corporate debt obligations, VRDNs, and 
cash equivalents. Price information for money market funds will be 
available from the applicable investment company's Web site and from 
market data vendors. Intra-day and closing price information for OTC 
equity securities will be available from major market data vendors. 
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. Quotation and last-
sale information for exchange-traded options will be available via the 
Options Price Reporting Authority and from the applicable U.S. options 
exchange. The Fund's Web site will include a form of the prospectus for 
the Fund and additional data relating to NAV and other applicable 
quantitative information.
    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 or because of market conditions or for reasons 
that, in the view of the Exchange, make trading in the Shares 
inadvisable,\41\ and trading in the Shares will be subject to NYSE Arca 
Equities Rule 8.600(d)(2)(D), which sets forth additional circumstances 
under which Shares of the Fund may be halted.
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    \41\ These reasons may include: (1) The extent to which trading 
is not occurring in the securities or financial instruments 
comprising 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. 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.
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    The Exchange represents that it has a general policy prohibiting 
the distribution of material, non-public information by its employees. 
In addition, Commentary .06 to NYSE Arca Equities Rule 8.600 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, non-public information regarding 
the open-end fund's portfolio. The Exchange represents that the Adviser 
and Sub-Adviser are not registered as broker-dealers; however, 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 such broker-dealer affiliate regarding 
access to information concerning the composition of, or changes to, the 
portfolio.\42\
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    \42\ See supra note 11.
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    Prior to the commencement of trading, the Exchange will inform its 
Equity Trading Permit Holders in a 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 FINRA on behalf of 
the Exchange, or by regulatory staff of the Exchange, which are 
designed to detect violations of Exchange rules and applicable federal 
securities laws.\43\ The Commission believes that the Exchange's 
initial and continued listing requirements, combined with the Fund's 
investment criteria that would apply to Municipal Bonds in the 
portfolio, are designed to mitigate the potential for price 
manipulation of the Shares.
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    \43\ The Exchange states that FINRA surveils trading on the 
Exchange pursuant to a regulatory services agreement and that the 
Exchange is responsible for FINRA's performance under this 
regulatory services agreement. See supra note 33.
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    The Exchange represents that it deems the Shares to be equity 
securities, thus rendering the trading of the Shares subject to the 
Exchange's existing rules governing the trading of equity securities.
    In support of this proposal, the Exchange has made the following 
additional representations:

[[Page 81198]]

    (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, or by 
regulatory staff of the Exchange, which are designed to detect 
violations of Exchange rules and applicable federal securities laws. 
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. These surveillances 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.
    (4) FINRA, on behalf of the Exchange, or regulatory staff of the 
Exchange, will communicate as needed regarding trading in the Shares, 
options, and certain exchange-traded equity securities with other 
markets and other entities that are members of the ISG, and FINRA, on 
behalf of the Exchange, or regulatory staff of the Exchange, may obtain 
trading information regarding trading in the Shares, options, and 
certain exchange-traded equity securities from such markets and other 
entities. In addition, the Exchange may obtain information regarding 
trading in the Shares, options, and certain exchange-traded equity 
securities from markets and other entities that are members of ISG or 
with which the Exchange has in place a comprehensive surveillance 
sharing agreement. In addition, 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. FINRA also can access data obtained from the 
Municipal Securities Rulemaking Board relating to municipal bond 
trading activity for surveillance purposes in connection with trading 
in the Shares.
    (5) Prior to the commencement of trading, the Exchange will inform 
its Equity Trading Permit Holders in a Bulletin of the special 
characteristics and risks associated with trading the Shares. 
Specifically, the Bulletin will discuss the following: (a) The 
procedures for purchases and redemptions of Shares in Creation Unit 
aggregations (and that Shares are not individually redeemable); (b) 
NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence 
on its Equity Trading Permit Holders to learn the essential facts 
relating to every customer prior to trading the Shares; (c) the risks 
involved in trading the Shares during the Opening and Late Trading 
Sessions when an updated IIV will not be calculated or publicly 
disseminated; (d) how information regarding the IIV and the Disclosed 
Portfolio is disseminated; (e) the requirement that Equity Trading 
Permit Holders deliver a prospectus to investors purchasing newly 
issued Shares prior to or concurrently with the confirmation of a 
transaction; and (f) trading information. The Bulletin will also 
discuss any exemptive, no-action, and interpretive relief granted by 
the Commission from any rules under the Act.
    (6) For initial and continued listing, the Fund must be in 
compliance with Rule 10A-3 under the Act.\44\
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    \44\ See 17 CFR 240.10A-3.
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    (7) At least 80% of the weight of the Fund's assets will be in 
Municipal Bonds with a modified duration of 15 years or less. 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 in the Adviser's 
opinion.
    (8) The Fund's Municipal Bond investments will be diversified among 
a minimum of ten distinct Municipal Bond sectors.\45\ In addition, the 
Fund will limit its investments in Municipal Bonds in any single sector 
to 25% of the Fund's assets.
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    \45\ The Fund's investments in Municipal Bonds will include 
investments in state and local (e.g., county, city, town) Municipal 
Bonds relating to such sectors as the following: Dedicated tax; 
public power; tax increment; toll road; port revenue; airport 
revenue; water revenue; sewer revenue; higher education (colleges 
and universities); wastewater revenue; school districts; sales tax 
revenue; and pre-refunded bonds.
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    (9) 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. The Fund will hold a minimum of 75 
different Municipal Bonds. No Municipal Bond held by the Fund will 
exceed 4% of the weight of the Fund's portfolio and no single Municipal 
Bond issuer will account for more than 10% of the weight of the Fund's 
portfolio. The Fund will hold Municipal Bonds of a minimum of 40 non-
affiliated issuers diversified among issuers in at least 20 different 
states, with no more than 30% of the Fund's assets comprised of 
Municipal Bonds that provide exposure to any single state.\46\
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    \46\ For purposes of this restriction, each state and each 
separate political subdivision, agency, authority, or 
instrumentality of such state, each multi-state agency or authority, 
and each guarantor, if any, will be treated as separate issuers of 
Municipal Bonds.
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    (10) The ETFs in which the Fund may invest will be registered under 
the 1940 Act and will be listed and traded in the U.S. on registered 
exchanges. With respect to its exchange-traded equity securities 
investments (including exchange-traded convertible preferred stocks and 
exchange-traded stocks into which convertible bonds may be converted), 
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 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 money market 
funds) 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.
    (11) 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.
    (12) 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.
    The Exchange also represents that all statements and 
representations made in this filing regarding (a) the description of 
the portfolio, (b) limitations on portfolio holdings or reference 
assets, or (c) the applicability of Exchange rules

[[Page 81199]]

and surveillance procedures shall constitute continued listing 
requirements for listing the Shares of the Fund 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.\47\ If the Fund is not in compliance 
with the applicable listing requirements, the Exchange will commence 
delisting procedures under NYSE Arca Equities Rule 5.5(m).
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    \47\ The Commission notes that certain other proposals for the 
listing and trading of Managed Fund Shares include a representation 
that the exchange will ``surveil'' for compliance with the continued 
listing requirements. See, e.g., Securities Exchange Act Release No. 
78005 (Jun. 7, 2016), 81 FR 38247 (Jun. 13, 2016) (SR-BATS-2015-
100). In the context of this representation, it is the Commission's 
view that ``monitor'' and ``surveil'' both mean ongoing oversight of 
a fund's compliance with the continued listing requirements. 
Therefore, the Commission does not view ``monitor'' as a more or 
less stringent obligation than ``surveil'' with respect to the 
continued listing requirements.
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    This approval order is based on all of the Exchange's 
representations, including those set forth above and in the Notice, and 
the Exchange's description of the Fund. The Commission notes that the 
Fund and the Shares must comply with the requirements of NYSE Arca 
Equities Rule 8.600 to be listed and traded on the Exchange.
    For the foregoing reasons, the Commission finds that the proposed 
rule change is consistent with Section 6(b)(5) of the Act \48\ and the 
rules and regulations thereunder applicable to a national securities 
exchange.
---------------------------------------------------------------------------

    \48\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

IV. Solicitation of Comments on Amendment No. 2 to the Proposed Rule 
Change

    Interested persons are invited to submit written data, views, and 
arguments concerning whether Amendment No. 2 to 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 rule-comments@sec.gov. Please include 
File Number SR-NYSEArca-2016-107 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-2016-107. 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 the filing also will be available 
for inspection and copying at the principal office of the Exchange. All 
comments received will be posted without change; the Commission does 
not edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly. All 
submissions should refer to File Number SR-NYSEArca-2016-107 and should 
be submitted on or before December 8, 2016.

V. Accelerated Approval of Proposed Rule Change as Modified by 
Amendment No. 2 Thereto

    The Commission finds good cause to approve the proposed rule 
change, as modified by Amendment No. 2 thereto, prior to the thirtieth 
day after the date of publication of notice of the filing of Amendment 
No. 2 in the Federal Register. Amendment No. 2 supplements the proposed 
rule change by, among other things, incorporating additional 
diversification criteria to the Fund's investments in Municipal Bonds. 
Specifically, the Exchange represents that the Fund would adhere to 
certain investment restrictions, including but not limited to, the 
following:
    (1) The Fund's Municipal Bond investments will be diversified among 
a minimum of ten distinct Municipal Bond sectors.
    (2) The Fund will limit its investments in Municipal Bonds in any 
single sector to 25% of the Fund's assets.
    (3) 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.
    (4) The Fund will hold a minimum of 75 different Municipal Bonds.
    (5) No Municipal Bond held by the Fund will exceed 4% of the weight 
of the Fund's portfolio, and no single Municipal Bond issuer will 
account for more than 10% of the weight of the Fund's portfolio.
    (6) The Fund will hold Municipal Bonds of a minimum of 40 non-
affiliated issuers diversified among issuers in at least 20 different 
states, with no more than 30% of the Fund's assets comprised of 
Municipal Bonds that provide exposure to any single state.
    The Commission believes that the addition of these investment 
restrictions helps to ensure that the proposed listing and trading of 
the Shares is consistent with the portion of Section 6(b)(5) of the 
Act,\49\ which requires that the rules of a national securities 
exchange must be designed to, among other things, prevent fraudulent 
and manipulative acts and practices and, in general, to protect 
investors and the public interest. Accordingly, the Commission finds 
good cause, pursuant to Section 19(b)(2) of the Act,\50\ to approve the 
proposed rule change, as modified by Amendment No. 2 thereto, on an 
accelerated basis.
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    \49\ 15 U.S.C. 78f(b)(5).
    \50\ 15 U.S.C. 78s(b)(2).
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VI. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\51\ that the proposed rule change (SR-NYSEArca-2016-107), as 
modified by Amendment No. 2 thereto, be, and it hereby is, approved on 
an accelerated basis.
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    \51\ Id.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\52\
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    \52\ 17 CFR 200.30-3(a)(12).
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Brent J. Fields,
Secretary.
[FR Doc. 2016-27603 Filed 11-16-16; 8:45 am]
 BILLING CODE 8011-01-P


