[Federal Register: December 5, 2005 (Volume 70, Number 232)]
[Notices]
[Page 72477-72480]
[DOCID:fr05de05-96]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-52844; File No. SR-Amex-2005-064]

Self-Regulatory Organizations; American Stock Exchange LLC;
Notice of Filing of Proposed Rule Change and Amendment Nos. 1 and 2
Thereto Relating to Telemarketing

November 28, 2005.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of
1934,\1\ (``Exchange Act'') and Rule 19b-4 thereunder,\2\ notice is
hereby given that on June 14, 2005, the American Stock Exchange LLC
(``Amex'' or ``Exchange'') filed with the Securities and Exchange
Commission (``Commission'' or ``SEC'') the proposed rule change as
described in Items I, II, and III below, which Items have been prepared
by the Exchange. On September 23, 2005, the Amex filed Amendment No. 1
to the proposed rule change.\3\ On November 15, 2005, the Amex filed
Amendment No. 2 to the proposed rule change.\4\ The Commission is
publishing this notice to solicit comments on the proposed rule change,
as amended, from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ In Amendment No. 1, the Amex partially amended the text of
proposed amended Amex Rule 429 and made conforming and technical
changes to the original filing.
    \4\ In Amendment No. 2, the Amex made additional changes to the
text of proposed amended Amex Rule 429 and to the original filing.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange is proposing to amend Amex Rule 429
(``Telemarketing'') to require Amex members and member organizations to
participate in the National Do-Not-Call Registry maintained by the
Federal Trade Commission (``FTC'') and to follow applicable regulations
of the Federal Communications Commission (``FCC'').
    The current text of Amex Rule 429 would be deleted. The text of the
proposed rule change is set forth below. Italics indicate new text.

Telemarketing

Rule 429.

(a) General Telemarketing Requirements

    No member or member organization, or person associated with a
member or member organization shall initiate any telephone
solicitation, as defined in paragraph (g)(2) of this rule, to:

(1) Time of Day Restriction

    Any residence of a person before the hour of 8 a.m. or after 9 p.m.
(local time at the called party's location), unless
    (A) the member has an established business relationship with the
person pursuant to paragraph (g)(1)(A),
    (B) the member has received that person's prior express invitation
or permission, or
    (C) the person called is a broker or dealer;

(2) Firm Specific Do-Not-Call List

    Any person that previously has stated that he or she does not wish
to receive an outbound telephone call made by or on behalf of the
member; or

(3) National Do-Not-Call List

    Any person who has registered his or her telephone number on the
Federal Trade Commission's national do-not-call registry.

(b) National Do-Not-Call List Exceptions

    A member making telephone solicitations will not be liable for
violating paragraph (a)(3) if:

(1) Established Business Relationship Exception

    The member has an established business relationship with the
recipient of the call. A person's request to be placed on the firm-
specific do-not-call list terminates the established business
relationship exception to that national do-not-call list provision for
that member even if the person continues to do business with that
member;

(2) Prior Express Written Consent Exception

    The member has obtained the person's prior express invitation or
permission. Such permission must be evidenced by a signed, written
agreement between the person and the member which states that the
person agrees to be contacted by the member and includes the telephone
number to which the calls may be placed; or

(3) Personal Relationship Exception

    The associated person making the call has a personal relationship
with the recipient of the call.

(c) Safe Harbor Provision

    A member or person associated with a member making telephone
solicitations will not be liable for violating paragraph (a)(3) if the
member or person associated with the member demonstrates that the
violation is the result of an error and that as part of the member's
routine business practice, it meets the following standards:
    (1) Written procedures. The member has established and implemented
written procedures to comply with the national do-not-call rules;
    (2) Training of personnel. The member has trained its personnel and
any entity assisting in its compliance, in procedures established
pursuant to the national do-not-call rules;
    (3) Recording. The member has maintained and recorded a list of
telephone numbers that it may not contact; and
    (4) Accessing the national do-not-call database. The member uses a
process to prevent telephone solicitations to any telephone number on
any list established pursuant to the do-not-call rules, employing a
version of the national do-not-call registry obtained from the
administrator of the registry no more than thirty-one (31) days prior
to the date any call is made, and maintains records documenting this
process.

(d) Procedures

    Prior to engaging in telemarketing, a member must institute
procedures to comply with paragraph (a). Such procedures must meet the
following minimum standards:
    (1) Written policy. Members must have a written policy for
maintaining a do-not-call list.
    (2) Training of personnel engaged in telemarketing. Personnel
engaged in any aspect of telemarketing must be informed and trained in
the existence and use of the do-not-call list.
    (3) Recording, honoring of do-not-call requests. If a member
receives a request from a person not to receive calls from that member,
the member must record the request and place the person's name, if
provided, and telephone number on the firm's do-not-call list at the
time the request is made. Members must honor a person's do-not-call
request within a reasonable time from the date such request is made.
This period may not exceed thirty days from the date of such request.
If such requests

are being recorded or maintained by a party other than the member on
whose behalf the telemarketing call is made, the member on whose behalf
the telemarketing call is made will be liable for any failure to honor
the do not call request.
    (4) Identification of sellers and telemarketers. A member or person
associated with a member making a call for telemarketing purposes must
provide the called party with the name of the individual caller, the
name of the member, an address or telephone number at which the member
may be contacted, and that the purpose of the call is to solicit the
purchase of securities or related service. The telephone number
provided may not be a 900 number or any other number for which charges
exceed local or long distance transmission charges.
    (5) Affiliated persons or entities. In the absence of a specific
request by the person to the contrary, a person's do-not-call request
shall apply to the member making the call, and will not apply to
affiliated entities unless the consumer reasonably would expect them to
be included given the identification of the caller and the product
being advertised.
    (6) Maintenance of do-not-call lists. A member making calls for
telemarketing purposes must maintain a record of the caller's request
not to receive further telemarketing calls. A firm specific do-not-call
request must be honored for five (5) years from the time the request is
made.

(e) Wireless Communications

    The provisions set forth in this rule are applicable to members
telemarketing or making telephone solicitations calls to wireless
telephone numbers.

(f) Outsourcing Telemarketing

    If a member uses another entity to perform telemarketing services
on its behalf, the member remains responsible for ensuring compliance
with all provisions contained in this rule.

(g) Definitions

    (1) Established business relationship
    (A) An ``established business relationship'' exists between a
member and a person if:
    (i) The person has made a financial transaction or has a security
position, a money balance, or account activity with the member within
the previous eighteen months immediately preceding the date of the
telemarketing call;
    (ii) The member is the broker/dealer of record for an account of
the person within the previous 18 months immediately preceding the date
of the telemarketing call; or
    (iii) The person has contacted the member to inquire about a
product or service offered by the member within the previous three
months immediately preceding the date of the telemarketing call.
    (B) A person's established business relationship with a member does
not extend to the member's affiliated entities unless the person would
reasonably expect them to be included. Similarly, a person's
established business relationship with a member's affiliate does not
extend to the member unless the person would reasonably expect the
member to be included.
    (2) The terms ``telemarketing'' and ``telephone solicitation'' mean
the initiation of a telephone call or message for the purpose of
encouraging the purchase or rental of, or investment in, property,
goods, or services, which is transmitted to any person.
    (3) The term ``personal relationship'' means any family member,
friend, or acquaintance of the telemarketer making the call.
    (4) The term ``account activity'' shall include, but not be limited
to, purchases, sales, interest credits or debits, charges or credits,
dividend payments, transfer activity, securities receipts or
deliveries, and/or journal entries relating to securities or funds in
the possession or control of the member.
    (5) The term ``broker/dealer of record'' refers to the broker/
dealer identified on a customer's account application for accounts held
directly at a mutual fund or variable insurance product issuer.

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 Amex 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 these 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 aspects of
such statements.

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

1. Purpose
    Amex Rule 429 currently limits members, member organizations, and
associated persons from making outbound calls to the residence of any
person for the purposes of soliciting the purchase of securities or
related services between the hours of 8 a.m. and 9 p.m. It also
requires disclosure to the called person of the caller's identity, firm
telephone number and address, and the purpose of the call. Rule 429
currently creates exceptions from its time of day and disclosure
requirements for telephone calls to certain categories of ``existing
customers.''
    The Exchange is proposing to amend Amex Rule 429 to incorporate
applicable telemarketing regulations issued by the FCC and to require
members and member organizations to participate in the national do-not-
call registry maintained by the FTC.
Background
    In 1992 and 1995, the FCC and the FTC established regulations
requiring firms to maintain do-not-call lists and to limit the hours of
telephone solicitations. The Telemarketing and Consumer Fraud Abuse
Prevention Act of 1994 (the ``Telemarketing Act'') amended the
Telephone Consumer Protection Act of 1991 (``TCPA'') and required the
SEC to promulgate telemarketing rules substantially similar to those of
the FTC, or direct self-regulatory organizations to do so, unless the
SEC determined that such rules were not in the interest of investor
protection.\5\
---------------------------------------------------------------------------

    \5\ See 15 U.S.C. 6102(d)(1).
---------------------------------------------------------------------------

    In 1996 and 1997 the Amex adopted Rule 428(a) and Rule 429 to
require members and member organizations to maintain a centralized do-
not-call list of persons who do not wish to receive telephone
solicitations from members or their associated persons, and to follow
time-of-day restrictions on telemarketing.\6\
---------------------------------------------------------------------------

    \6\ See Securities Exchange Act Release No. 36748 (January 19,
1996), 61 FR 2556 (January 26, 1996); Securities Exchange Act
Release No. 38724 (June 6, 1997) 62 FR 32390 (June 13, 1997).
---------------------------------------------------------------------------

    In 2003, the FCC and the FTC established rules requiring sellers
and telemarketers to participate in a national do-not-call registry.
These rules include a ``safe harbor'' for telemarketers that have made
a good faith effort to comply with the national do-not-call rules. In
March 2004, the FTC and FCC further amended their telemarketing rules
to require the use of a national do-not-call registry that is no more
than thirty-one (31) days old.
    In correspondence dated February 3, 2005, Commission staff
recommended that the Amex amend its telemarketing rules to require its
members and member organizations to participate in

the national do-not-call registry.\7\ Commission staff noted that NASD
also had recently filed an amendment to their rules regarding the
frequency of updates from the national do-not-call registry.\8\ In this
regard, proposed Rule 429 is substantially similar to the NASD rule
that was approved by the Commission in January 2004 and amended in
January 2005.\9\
---------------------------------------------------------------------------

    \7\ See Correspondence dated February 3, 2005 from Martha Mahan
Haines, Assistant Director, Division of Market Regulation, SEC.
    \8\ See Securities Exchange Act Release No. 34-49055 (January
12, 2004); 69 FR 2801 (January 20, 2004). See also Securities
Exchange Act Release No. 34-51023 (January 11, 2005); 70 FR 2083
(January 19, 2005).
    \9\ Id.
---------------------------------------------------------------------------

Proposed Amex Rule 429
    Paragraph (a)(1) of proposed Amex Rule 429 provides that members,
member organizations, or persons associated with a member or member
organization may engage in telephone solicitations only between the
hours of 8 a.m. and 9 p.m. unless (1) they have an established business
relationship with the called person; (2) the member has received that
person's prior express invitation or permission; or (3) the person
called is a broker-dealer. These provisions are essentially identical
to those already in place, except the ``existing customer'' exception
is being replaced with an ``established business relationship''
exception, mirroring the FCC's Rules. As defined in paragraph
(g)(1)(A), an established business relationship exists if the person
called has made a financial transaction, or has a security position, a
money balance, or account activity with the member within the previous
eighteen (18) months immediately preceding the date of the
telemarketing call, if the member is the broker-dealer of record for an
account of the person within the previous 18 months immediately
preceding the date of the telemarketing call, or when the person has
contacted the member to inquire about a product or service offered by
the member within the previous three (3) months immediately preceding
the date of the telemarketing call.
    Paragraph (a)(2) of proposed Amex Rule 429 prohibits members and
member organizations, and persons associated with a member or member
organization from initiating a telephone solicitation to any person
listed on a firm specific do-not-call list. The firm specific do-not-
call list is maintained pursuant to existing Amex Rule 428.
    Paragraph (a)(3) of proposed Amex Rule 429 requires firms to
participate in a national do-not-call list. Paragraph (b) of proposed
Amex Rule 429 lists several exceptions to the national do-not-call list
compliance requirement, where a member making telephone solicitations
will not be liable for violating paragraph (a)(3). First, a member will
not be found liable if they are able to demonstrate that there is an
established business relationship with the recipient of the call. A
person's request to be placed on the firm-specific do-not-call list
terminates the established business relationship exception set forth in
proposed Amex Rule 429(b), even if the person continues to do business
with that member. The second exception applies if the member has
obtained the person's prior express invitation or permission. Such
permission must be confirmed by a signed written agreement between the
person and the member, which states that the person agrees to be
contacted by the member and includes the telephone number to which the
calls may be placed. Finally, the member or associated person making
the call will not be found liable if the associated person making the
call has a personal relationship with the recipient of the call.
    Paragraph 429(c) creates a safe harbor from the national do-not-
call list requirements of paragraph (a)(3). To be eligible for this
safe harbor, a member or person associated with a member making
telephone solicitations must demonstrate that the member's routine
business practice meets the following standards:
     The member must demonstrate that it has established and
implemented written procedures to comply with the national do-not-call
rules;
     The member must demonstrate that it has trained its
personnel and any entity assisting in its compliance, in procedures
established pursuant to the national do-not-call rules;
     The member must demonstrate that it has maintained and
recorded a list of telephone numbers that it may not contact; and
     The member must demonstrate that it uses a process to
prevent telephone solicitations to any telephone number on any list
established pursuant to the do-not-call rules, and is employing a
version of the national do-not-call registry obtained from the
administrator of the registry no more than thirty-one (31) days prior
to the date any call is made, and maintains records documenting this
process.\10\
---------------------------------------------------------------------------

    \10\ As noted above, the thirty-one (31) day requirement is
consistent with recent amendments to the FCC and FTC rules that
became effective January 1, 2005.
---------------------------------------------------------------------------

    Paragraph 429(d) sets forth the procedures necessary for members to
comply with Proposed Amex Rule 429(a). Under paragraphs 429(d)(1)-
(d)(4), a firm's procedures must meet the following minimum standards:
     The member must have a written policy for maintaining a
do-not-call list;
     The member must demonstrate that its personnel engaged in
telemarketing are informed and trained in the existence and use of the
do-not-call list;
     The member must record do-not-call requests when they are
made and honor them within a reasonable time not to exceed 31 days;
     Members must provide the called party with the name of the
individual caller, the name of the member, an address or telephone
number at which the member may be contacted, and that the purpose of
the call is to solicit the purchase of securities or a related service.
Such telephone number may not be a 900 number or any other number for
which charges exceed local or long-distance transmission charges.
    Paragraph 429(d)(3) provides that a member will be liable for any
failure to honor a do-not-call request by an entity recording or
maintaining such requests on its behalf.
    Paragraph 429(d)(5) provides that a person's do-not-call request
applies to the member making the call, and not to affiliated entities,
unless the consumer reasonably would expect them to be included given
the identification of the caller and the product being advertised, or
unless the consumer specifically requests that it apply to affiliated
entities. Finally, paragraph (d)(6) of proposed amended Amex Rule 429
requires that a member maintain a record of the caller's request not to
receive further telemarketing calls. A firm specific do-not-call
request must be honored for five (5) years from the time the request is
made.
    Paragraph 429(e) provides that the provisions of the proposed rule
also apply to members telemarketing or making telephone solicitation
calls to wireless telephone numbers. Paragraph 429(f) states that a
member is responsible for complying with the foregoing provisions even
if it uses another entity to perform telemarketing services on its
behalf.
    Paragraph 429(g) defines terms used in proposed amended Rule 429.
As noted above, paragraph 429(g)(1)(A) codifies the definition of an
established business relationship. Paragraph 429(g)(1)(B) further
states that a person's established business relationship with a member
does not extend to the member's affiliated entities unless the person
would reasonably expect them to be included. Similarly, an established
business relationship with an affiliate

does not extend to the member unless the person would reasonably expect
the member to be included.
    Paragraph 429(g)(2) defines the terms ``telemarketing'' and
``telephone solicitation'' to mean the initiation of a telephone call
or message for the purpose of encouraging the purchase or rental of, or
investment in, property, goods, or services, which is transmitted to
any person.
    The term ``personal relationship'' is defined in paragraph
429(g)(3) as any family member, friend, or acquaintance of the
telemarketer making the call. The term ``account activity'' as defined
in paragraph 429(g)(4) shall include, but not be limited to, purchases,
sales interest credits or debits, charges or credits, dividend
payments, transfer activity, securities receipts or deliveries, and/or
journal entries relating to securities or funds in the possession or
control of the member. Finally, the term ``broker/dealer of record'' as
defined in paragraph 429(g)(5) refers to the broker/dealer identified
on a customer's account application for accounts held directly at a
mutual fund or variable insurance product issuer.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with Section 6 of the Exchange Act \11\ in general and furthers the
objectives of Section 6(b)(5) \12\ in particular in that it is designed
to prevent fraudulent and manipulative acts and practices, to promote
just and equitable principles of trade, to foster cooperation and
coordination with persons engaged in facilitating transactions in
securities, and to remove impediments to and perfect the mechanism of a
free and open market and a national market system. The Exchange
believes the proposed rule change will enhance investor protection by
enabling persons who do not want to receive telephone solicitations
from members or member organizations to receive the protections of the
national do-not-call registry.
---------------------------------------------------------------------------

    \11\ 15 U.S.C. 78f(b).
    \12\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

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 not necessary or appropriate in
furtherance of the purposes of the Exchange Act.

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 by the Exchange on
this proposal.

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

    Within 35 days of the date of publication of this notice in the
Federal Register or within such longer period (i) as the Commission may
designate up to 90 days of such date 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 such 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, as amended, is consistent with the Exchange 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 e-mail to<EMAIL_ADDRESS>Please include

File Number SR-Amex-2005-064 on the subject line.

Paper Comments

     Send paper comments in triplicate to Jonathan G. Katz,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-9303.
    All submissions should refer to File Number SR-Amex-2005-064. This
file number should be included on the subject line if e-mail 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 inspection
and copying in the Commission's Public Reference Section, 100 F Street,
NE., Washington, DC 20549. Copies of such filing also will be available
for inspection and copying at the principal office of the Amex. 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-Amex-2005-064 and should be
submitted on or before December 27, 2005.
---------------------------------------------------------------------------

    \13\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\13\
Jonathan G. Katz,
Secretary.
[FR Doc. E5-6828 Filed 12-2-05; 8:45 am]

BILLING CODE 8010-01-P


[Federal Register Volume 80, Number 76 (Tuesday, April 21, 2015)]
[Notices]
[Page 22171]
[FR Doc No: 2015-09046]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. RM98-1-000]

Records Governing Off-the-Record Communications; Public Notice

    This constitutes notice, in accordance with 18 CFR 385.2201(b), of
the receipt of prohibited and exempt off-the-record communications.
    Order No. 607 (64 FR 51222, September 22, 1999) requires Commission
decisional employees, who make or receive a prohibited or exempt off-
the-record communication relevant to the merits of a contested
proceeding, to deliver to the Secretary of the Commission, a copy of
the communication, if written, or a summary of the substance of any
oral communication.
    Prohibited communications are included in a public, non-decisional
file associated with, but not a part of, the decisional record of the
proceeding. Unless the Commission determines that the prohibited
communication and any responses thereto should become a part of the
decisional record, the prohibited off-the-record communication will not
be considered by the Commission in reaching its decision. Parties to a
proceeding may seek the opportunity to respond to any facts or
contentions made in a prohibited off-the-record communication, and may
request that the Commission place the prohibited communication and
responses thereto in the decisional record. The Commission will grant
such a request only when it determines that fairness so requires. Any
person identified below as having made a prohibited off-the-record
communication shall serve the document on all parties listed on the
official service list for the applicable proceeding in accordance with
Rule 2010, 18 CFR 385.2010.
    Exempt off-the-record communications are included in the decisional
record of the proceeding, unless the communication was with a
cooperating agency as described by 40 CFR 1501.6, made under 18 CFR
385.2201(e)(1)(v).
    The following is a list of off-the-record communications recently
received by the Secretary of the Commission. The communications listed
are grouped by docket numbers in ascending order. These filings are
available for electronic review at the Commission in the Public
Reference Room or may be viewed on the Commission's Web site at http://www.ferc.gov using the eLibrary link. Enter the docket number,
excluding the last three digits, in the docket number field to access
the document. For assistance, please contact FERC Online Support at
<EMAIL_ADDRESS>or toll free at<PHONE_NUMBER>, or for TTY,
contact<PHONE_NUMBER>.

----------------------------------------------------------------------------------------------------------------
                Docket No.                                File date                    Presenter or requester
----------------------------------------------------------------------------------------------------------------
Prohibited:
    1. ER15-623-000......................  4-1-15.................................  FERC Staff.\1\
    ER15-945-000.........................
    2. CP13-499-000......................  4-6-15.................................  Pace Environmental
                                                                                Litigation Clinic, Inc.
Exempt:
    1. CP14-347-000......................  2-24-15................................  Calcasieu Parish Police
                                                                                Jury.
    2. CP14-347-000......................  2-26-15................................  Lake Charles Harbor &
                                                                                Terminal District.
    3. CP14-347-000......................  3-9-15.................................  Hon. David Vitter.
    4. CP12-507-000......................  3-31-15................................  Cities of Portland and
                                                                                Corpus Christi, Texas.
    5. CP12-507-000......................  3-31-15................................  Hon. J.M. Lozano.
    6. CP13-483-000......................  3-31-15................................  U.S. Congress.\2\
    7. CP12-507-000......................  4-6-15.................................  Hon. Todd Hunter.
    8. CP14-96-000.......................  4-6-15.................................  U.S. Congress.\3\
    9. CP12-507-000......................  4-7-15.................................  Hon. Judith Zaffirini.
----------------------------------------------------------------------------------------------------------------
\1\ Email record.
\2\ Hons. Pat Roberts, Jerry Moran, and Kevin Yoder.
\3\ Hons. Charles E. Schumer, Kirsten Gillibrand, and Nita M. Lowey.

    Dated: April 14, 2015.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2015-09046 Filed 4-20-15; 8:45 am]
 BILLING CODE 6717-01-P


[Federal Register Volume 81, Number 111 (Thursday, June 9, 2016)]
[Notices]
[Pages 37222-37229]
[FR Doc No: 2016-13615]

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

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.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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

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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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

the Fund's existing futures would not exceed 5% of the liquidation
value of the Fund's total assets.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    The Fund may invest in Currency Trust Shares.\14\
---------------------------------------------------------------------------

    \14\ Currency Trust Shares are securities such as those
described in NYSE Arca Equities Rule 8.202.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \18\ 26 U.S.C. 851.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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

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

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.

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

    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

[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_ADDRESS>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\
---------------------------------------------------------------------------

    \29\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Brent J. Fields,
Secretary.
[FR Doc. 2016-13615 Filed 6-8-16; 8:45 am]
 BILLING CODE 8011-01-P


[Federal Register Volume 83, Number 189 (Friday, September 28, 2018)]
[Notices]
[Pages 49143-49144]
[FR Doc No: 2018-21108]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-84276; File No. SR-NYSE-2018-34]

Self-Regulatory Organizations; New York Stock Exchange LLC;
Notice of Designation of a Longer Period for Commission Action on a
Proposed Rule Change To Amend NYSE Rule 104 Governing Transactions by
Designated Market Makers

September 24, 2018.
    On July 31, 2018, New York Stock Exchange LLC (``NYSE'') 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 amend NYSE Rule
104 governing transactions by designated market makers. The proposed
rule change was published for comment in the Federal Register on August
16, 2018.\3\ The

Commission has received no comments on the proposed rule change.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 83821 (Aug. 10,
2018), 83 FR 40808 (Aug. 16, 2018).
---------------------------------------------------------------------------

    Section 19(b)(2) of the Act \4\ provides that within 45 days of the
publication of notice of the filing of a proposed rule change, or
within such longer period up to 90 days as the Commission may designate
if it finds such longer period to be appropriate and publishes its
reasons for so finding or as to which the self-regulatory organization
consents, the Commission shall either approve the proposed rule change,
disapprove the proposed rule change, or institute proceedings to
determine whether the proposed rule change should be disapproved. The
45th day after publication of the notice for this proposed rule change
is September 30, 2018. The Commission is extending this 45-day time
period.
---------------------------------------------------------------------------

    \4\ 15 U.S.C. 78s(b)(2).
---------------------------------------------------------------------------

    The Commission finds that it is appropriate to designate a longer
period within which to take action on the proposed rule change so that
it has sufficient time to consider the proposed rule change.
Accordingly, the Commission, pursuant to Section 19(b)(2) of the
Act,\5\ designates November 14, 2018, as the date by which the
Commission shall either approve or disapprove, or institute proceedings
to determine whether to disapprove, the proposed rule change (File No.
SR-NYSE-2018-34).
---------------------------------------------------------------------------

    \5\ Id.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\6\
---------------------------------------------------------------------------

    \6\ 17 CFR 200.30-3(a)(31).
---------------------------------------------------------------------------

Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018-21108 Filed 9-27-18; 8:45 am]
 BILLING CODE 8011-01-P


[Federal Register: February 17, 2009 (Volume 74, Number 30)]
[Notices]
[Page 7427]
[DOCID:fr17fe09-63]

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

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. EF09-5181-000]

Western Area Power Administration; Notice of Filing

February 6, 2009.
    Take notice that on January 13, 2009, the Deputy Secretary of the
Department of Energy submitted Rate Order No. WAPA-142, confirmed and
approved on an interim basis, effective on February 1, 2009 Rate
Schedule L-F8, for firm electric service from the Loveland Area
Projects. The ratesetting Power Repayment Studies for the Pick-Sloan
Missouri Basin Program and the Fryingpan-Arkansas Project contain the
data upon which Rate Order No. WAPA-142 is based and under the
authority vested in the Federal Energy Regulatory Commission by
Delegation Order No. 00-037.00, Rate Schedule L-F8 is submitted for
confirmation and approved on a final basis effective February 1, 2009,
and ending December 31, 2013.
    Any person desiring to intervene or to protest this filing must
file in accordance with Rules 211 and 214 of the Commission's Rules of
Practice and Procedure (18 CFR 385.211, 385.214). Protests will be
considered by the Commission in determining the appropriate action to
be taken, but will not serve to make protestants parties to the
proceeding. Any person wishing to become a party must file a notice of
intervention or motion to intervene, as appropriate. Such notices,
motions, or protests must be filed on or before the comment date. On or
before the comment date, it is not necessary to serve motions to
intervene or protests on persons other than the Applicant.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper using the ``eFiling'' link at http://
www.ferc.gov. Persons unable to file electronically should submit an
original and 14 copies of the protest or intervention to the Federal
Energy Regulatory Commission, 888 First Street, NE., Washington, DC
20426.
    This filing is accessible on-line at http://www.ferc.gov, using the
``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive e-mail
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please e-mail
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For
TTY, call<PHONE_NUMBER>.
    Comment Date: 5 pm Eastern Time on March 2, 2009.

Kimberly D. Bose,
 Secretary.
 [FR Doc. E9-3224 Filed 2-13-09; 8:45 am]

BILLING CODE 6717-01-P