Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of Filing of a Proposed Rule Change To Amend Rule 14.11, Other Securities, 27254-27258 [2020-09712]

Download as PDF 27254 Federal Register / Vol. 85, No. 89 / Thursday, May 7, 2020 / Notices approximately 0.5 hours creating a record of its determination whether it must register as an investment adviser with each of the 15 states required to rely on the exemption, and approximately 0.5 hours to maintain these records. Accordingly, we estimate that rule 203A–2(d) results in an annual aggregate burden of collection for SECregistered investment advisers of a total of 848 hours. Estimates of average burden hours are made solely for the purposes of the Paperwork Reduction Act, and are not derived from a comprehensive or even a representative survey or study of the costs of Commission rules and forms. Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency’s estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication. Please direct your written comments to David Bottom, Director/Chief Information Officer, Securities and Exchange Commission, C/O Cynthia Roscoe, 100 F Street NE, Washington, DC 20549; or send an email to: PRA_ Mailbox@sec.gov. Dated: May 4, 2020. J. Matthew DeLesDernier, Assistant Secretary. [FR Doc. 2020–09796 Filed 5–6–20; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION khammond on DSKJM1Z7X2PROD with NOTICES Proposed Collection; Comment Request Upon Written Request, Copies Available From: Securities and Exchange Commission, Office of FOIA Services, 100 F Street NE, Washington, DC 20549–2736 Extension: Rule 0–2, Form ADV–NR, SEC File No. 270–214, OMB Control No. 3235–0240 Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the Securities and Exchange Commission VerDate Sep<11>2014 16:45 May 06, 2020 Jkt 250001 (‘‘Commission’’) is soliciting comments on the collection of information summarized below. The Commission plans to submit this existing collection of information to the Office of Management and Budget for extension and approval. The title for the collection of information is ‘‘Rule 0–2 and Form ADV–NR under the Investment Advisers Act of 1940.’’ Rule 0–2 and Form ADV– NR facilitate service of process on a non-resident investment adviser, or on a non-resident general partner or nonresident managing agent of an investment adviser. Form ADV–NR designates the Secretary of the Commission, among others, as the nonresident general partner’s or nonresident managing agent’s agent for service of process. The collection of information is necessary for us to obtain appropriate consent to permit the Commission and other parties to bring actions against non-resident partners and agents for violations of the federal securities laws and to enable the commencement of legal and/or regulatory actions against investment advisers that are doing business in the United States, but are not residents. The respondents to this information collection would be each non-resident general partner or non-resident managing agent of an SEC-registered investment adviser and each nonresident general partner or non-resident managing agent of an exempt reporting adviser. The Commission has estimated that compliance with the requirement to complete Form ADV–NR imposes a total burden of approximately 1.0 hours for an adviser. Based on our experience with these filings, we estimate that we will receive 53 Form ADV–NR filings annually. Based on the 1.0 hours per respondent estimate, the Commission staff estimates a total annual burden of 53 hours for this collection of information. Rule 0–2 and Form ADV–NR do not require recordkeeping or records retention. The collection of information requirements under the rule and form is mandatory. The information collected pursuant to Rule 0–2 and Form ADV– NR is a filing with the Commission. This filing is not kept confidential and must be preserved until at least three years after termination of the enterprise. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number. Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the PO 00000 Frm 00051 Fmt 4703 Sfmt 4703 agency, including whether the information will have practical utility; (b) the accuracy of the agency’s estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication. An agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number. Please direct your written comments to David Bottom, Director/Chief Information Officer, Securities and Exchange Commission, C/O Cynthia Roscoe, 100 F Street NE, Washington, DC 20549; or send an email to: PRA_ Mailbox@sec.gov. Dated: May 4, 2020. J. Matthew DeLesDernier, Assistant Secretary. [FR Doc. 2020–09797 Filed 5–6–20; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–88795; File No. SR– CboeBZX–2020–036] Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of Filing of a Proposed Rule Change To Amend Rule 14.11, Other Securities May 1, 2020. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the ‘‘Act’’) 1 and Rule 19b–4 thereunder,2 notice is hereby given that on April 29, 2020, Cboe BZX Exchange, Inc. (the ‘‘Exchange’’ or ‘‘BZX’’) filed with the Securities and Exchange Commission (the ‘‘Commission’’) the proposed rule change as described in Items I, II, and III below, which Items have been prepared by the Exchange. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. 1 15 2 17 U.S.C. 78s(b)(1). CFR 240.19b–4. E:\FR\FM\07MYN1.SGM 07MYN1 Federal Register / Vol. 85, No. 89 / Thursday, May 7, 2020 / Notices I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes rule changes in several places in Exchange Rule 14.11, Other Securities, to amend the initial period after commencement of trading of an ETP, as defined below, on the Exchange as it specifically relates to holders of record and/or beneficial holders. The text of the proposed rule change is provided in Exhibit 5. The text of the proposed rule change is also available on the Exchange’s website (https://markets.cboe.com/us/ equities/regulation/rule_filings/bzx/), at the Exchange’s Office of the Secretary, 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 Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The 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 Statutory Basis for, the Proposed Rule Change khammond on DSKJM1Z7X2PROD with NOTICES 1. Purpose The Exchange proposes to make several changes to Rule 14.11 in order to amend the continued listing standards applicable to ETPs 3 listed on the Exchange. Specifically, the Exchange is proposing to amend its rules such that they would provide additional time for an ETP to meet the applicable Beneficial Holders 4 standards in the Exchange’s listing rules (the ‘‘Beneficial Holders Rules’’).5 3 For the purpose of this filing, the term ETP means securities listed pursuant to Rule 14.11(c) (Index Fund Shares), Rule 14.11(i) (Managed Fund Shares), and Rule 14.11(l) (Exchange-Traded Fund Shares (‘‘ETF Shares’’)). 4 As it relates to this filing, ‘‘Beneficial Holders’’ shall mean beneficial holders and, where applicable in a particular continued listing standard, record holders. 5 The Exchange notes that its Rules related to the listing and trading of other product types (that is, products that are not ETPs as defined above) have similar requirements related to Beneficial Holders which the Exchange is not proposing to eliminate at this time. Specifically, the Exchange is only proposing to amend the Beneficial Holders Rules as it pertains to Index Fund Shares, Managed Fund VerDate Sep<11>2014 16:45 May 06, 2020 Jkt 250001 Currently, the Exchange’s continued listing standards for ETPs generally require that, following the initial 12 month period after commencement of trading on the Exchange, the Exchange shall consider the suspension of trading in and will commence delisting proceedings under Rule 14.12 for an ETP for which there are fewer than 50 Beneficial Holders for 30 or more consecutive trading days. The Exchange is proposing to change the date at which an ETP would need to have at least 50 Beneficial Holders or be subject to delisting proceedings under Rule 14.12 from 12 months after commencement of trading on the Exchange to 36 months after commencement of trading on the Exchange. As further described below, the Exchange believes it is appropriate to increase the period of time for an ETP to comply with the applicable Beneficial Holders Rule from 12 months to 36 months because: (i) It would bring the rule more in line with the life cycle of an ETP; (ii) the economic and competitive structures in place in the ETP ecosystem naturally incentivize issuers to de-list products rather than continuing to list products that do not garner investor interest; and (iii) extending the period from 12 to 36 months will not meaningfully impact the manipulation concerns that the Beneficial Holders Rules are intended to address. First, the ETP space is more competitive than it has ever been—with more than 2,000 ETPs listed on U.S. national securities exchanges competing for investor assets, the natural cycle for an average ETP to gain traction in the market is growing longer and longer. As more and more ETPs have come to market, many distribution platforms have become more restrictive about the ETPs that they allow on their systems, often requiring a minimum existing track record (e.g., at least 12 months) and meeting certain thresholds for assets under management (e.g., at least $100 million) for an ETP to be added. Similarly, many larger entities are unwilling to invest in ETPs that do not have at least one calendar year track record. All of these factors have contributed to the natural slowing of the average ETP’s growth cycle and, unsurprisingly, the Exchange has seen a significant number of deficiencies based on a failure to meet the applicable Shares, and ETF Shares because such product types represent the vast majority of products listed on the Exchange. The Exchange may consider proposing to amend the Beneficial Holders Rules for other product types in a future proposal. PO 00000 Frm 00052 Fmt 4703 Sfmt 4703 27255 Beneficial Holders Rule over the last several years.6 Changing the timeline for meeting the Beneficial Holders Rules from 12 months to 36 months would provide ETPs with a more reasonable runway to establish a track record and grow assets under management, both of which generally precede the accumulation of Beneficial Holders. Further, the Exchange believes that extending that runway will encourage smaller issuers to make the necessary capital expenditures to launch additional ETPs, as well as help both large and small issuers by allowing them to continue to list and promote products that they believe can succeed and that they are willing to continue paying for, all of which will help to foster competition and innovation in the ETP marketplace.7 Second, the economic and competitive structures in place in the ETP ecosystem naturally incentivize issuers to de-list products rather than continuing to list products that do not garner investor interest, meaning that the rule does not provide any meaningful ‘‘pruning’’ function for the industry. Rather, the Exchange has found that, as currently constructed, the 12 month Beneficial Holders Rules have instead resulted in the forced termination of ETPs that issuers believed were still economically viable. While some observers might argue that forced delisting of an ETP based on a failure to meet the Beneficial Holders Rule is a good way to reduce the number of ETPs in the marketplace that have not drawn meaningful market interest, the Exchange vehemently disagrees with this sentiment. First, there are significant costs associated with both the initial launch and continued operation of an ETP and the Exchange has found that the ecosystem 6 The Exchange has issued deficiency notifications to 34 ETPs for non-compliance with Beneficial Holders Rules in the last five years. In addition, 22 ETPs have voluntarily delisted within their first year listed on the Exchange. While this isn’t specifically attributable to non-compliance with the Beneficial Holder Rules, the most likely reasons for voluntarily delisting an ETP in its first year would be either: (i) Failure or anticipated failure to meet the Beneficial Holders Rules; or (ii) the issuer believing that the ETP was not economically viable. 7 The Exchange notes that of the 34 ETPs that received deficiency notifications for noncompliance with Beneficial Holders Rules, 27 reached compliance while going through the delisting process under Rule 14.12 and continued to list on the Exchange. As such, the 12 month threshold for the Beneficial Holders Rules had no meaningful impact on whether such ETPs could list on the Exchange and only served as regulatory and administrative burdens for issuers to manage, which the Exchange believes makes it more difficult for smaller issuers to compete. E:\FR\FM\07MYN1.SGM 07MYN1 khammond on DSKJM1Z7X2PROD with NOTICES 27256 Federal Register / Vol. 85, No. 89 / Thursday, May 7, 2020 / Notices tends to prune itself of ETPs without meaningful investor interest. In fact, the Exchange has had 69 products that have voluntarily delisted in the last two years,8 creating meaningful turnover in products which issuers believe are not economically viable. Second, the Exchange contests the underlying assumption that the number of Beneficial Holders is even a meaningful measure of market interest in an ETP. While a very high Beneficial Holder count would most certainly indicate an ETP’s success, the absence of Beneficial Holders is not necessarily a good measure of market interest or the amount of assets held by the ETP. Further to this point, the Beneficial Holders Rules are not rules that an ETP issuer is incentivized to cut close or exceed by the smallest amount possible. Unlike most other quantitative or disclosure based listing requirements, an ETP issuer is incentivized to have as many Beneficial Holders as possible and would almost certainly prefer that they were able to meet and exceed the applicable Beneficial Holders Rule as soon as possible after beginning trading on the Exchange. As such, extending the time period from 12 months to 36 months will not provide issuers with a longer window to intentionally keep the number of Beneficial Holders lower, but, rather, will only extend the period during which an ETP could have fewer than 50 Beneficial Holders in specific instances where an issuer is unable to meet the 50 Beneficial Holders threshold but still believes that the ETP is viable and worth the cost of continued operation. Again, it takes money and resources to launch and operate an ETP and where an issuer does not believe that an ETP is economically viable, both common sense and prior experience point to issuers delisting these products. Finally, the Exchange believes that making this change does not create any significant change in the risk of manipulation for ETPs listed on the Exchange for several reasons. First, the Exchange does not believe that there is anything particularly important about the 50th Beneficial Holder that reduces the manipulation risk associated with an ETP as compared to the 49th, nor is there any manipulation concern that arises on the 366th day after an ETP began trading on the Exchange that didn’t otherwise exist on the 1st, 2nd, or 365th day. Rather, the Exchange believes that the rule is generally 8 There are currently 357 ETPs listed on the Exchange, meaning that there’s been a nearly 20% voluntary turnover of ETPs listed on the Exchange over the last two years. VerDate Sep<11>2014 16:45 May 06, 2020 Jkt 250001 intended to ensure that products that do not have broad ownership and could be susceptible to manipulation by a few parties are not able to list on the Exchange after they’ve had sufficient time to diversify their ownership base. Leaving aside the issue of whether an open-ended ETP with creation and redemption processes would really be subject to manipulation by virtue of narrow ownership, the Exchange believes that, for all of the reasons explained above, 36 months is a more appropriate amount of time to consider sufficient time to diversify an ETP’s ownership base. Further to this point, the Exchange has in place a robust surveillance program for ETPs that allows it to monitor trading of ETPs during all trading sessions on the Exchange and it believes are sufficient to deter and detect violations of Exchange rules and the applicable federal securities laws. These surveillances generally focus on detecting securities trading outside of 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. Further, the Exchange or the Financial Industry Regulatory Authority (‘‘FINRA’’),9 on behalf of the Exchange, or both, communicate as needed regarding trading in ETPs 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 in ETPs from such markets and other entities. The Exchange believes that these robust surveillance procedures will further act to mitigate any manipulation concerns that arise from extending the compliance period for the Beneficial Holders Rules from 12 months to 36 months. The Exchange also believes that the other continued listing standards in the Exchange’s rules or representations that constitute continued listing standards in Exchange rule filings (either the disclosure obligations applicable under Rule 6c–11 of the Investment Company Act of 1940 for series of ETF Shares or the diversity, liquidity, and size of an ETP’s holdings or reference assets applicable to Index Fund Shares and Managed Fund Shares) are generally 9 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. PO 00000 Frm 00053 Fmt 4703 Sfmt 4703 sufficient to mitigate manipulation concerns associated with the applicable ETP. During the first 12 months of trading on the Exchange when the Beneficial Holders Rules do not apply, these disclosure and quantitative obligations, in conjunction with the Exchange’s surveillance program (as discussed above), are generally deemed sufficient to prevent any manipulation concerns in Exchange-listed ETPs. As such, the Exchange believes that extending the period from 12 months to 36 months does not significantly increase any risk of manipulation that wasn’t already generally deemed acceptable for the first 12 months that an ETP was listed. Again, the Exchange is not proposing to eliminate the Beneficial Holders Rules, but merely to extend the period for an ETP to meet the 50 Beneficial Holder requirement. 2. Statutory Basis The Exchange believes that the proposal is consistent with Section 6(b) of the Act 10 in general and Section 6(b)(5) of the Act 11 in particular in that it is designed to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system and, in general, to protect investors and the public interest. The proposed rule changes are designed 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 because it would prevent the premature delisting of ETPs that have not had sufficient time to build up to 50 Beneficial Holders without significantly impacting the manipulation concerns that the Beneficial Holders Rules are intended to address. The Exchange believes it is appropriate to increase the period of time for an ETP to comply with the applicable Beneficial Holders Rule from 12 months to 36 months because: (i) It would bring the rule more in line with the life cycle of an ETP; (ii) the economic and competitive structures in place in the ETP ecosystem naturally incentivize issuers to de-list products rather than continuing to list products that do not garner investor interest; and (iii) extending the period from 12 to 36 months will not meaningfully impact the manipulation concerns that the Beneficial Holders Rules are intended to address. 10 15 11 15 E:\FR\FM\07MYN1.SGM U.S.C. 78f. U.S.C. 78f(b)(5). 07MYN1 Federal Register / Vol. 85, No. 89 / Thursday, May 7, 2020 / Notices khammond on DSKJM1Z7X2PROD with NOTICES First, the ETP space is more competitive than it has ever been—with more than 2,000 ETPs listed on U.S. national securities exchanges competing for investor assets, the natural cycle for an average ETP to gain traction in the market is growing longer and longer. As more and more ETPs have come to market, many distribution platforms have become more restrictive about the ETPs that they allow on their systems, often requiring a minimum existing track record (e.g., at least 12 months) and meeting certain thresholds for assets under management (e.g., at least $100 million) for an ETP to be added. Similarly, many larger entities are unwilling to invest in ETPs that do not have at least one calendar year track record. All of these factors have contributed to the natural slowing of the average ETP’s growth cycle and, unsurprisingly, the Exchange has seen a significant number of deficiencies based on a failure to meet the applicable Beneficial Holders Rule over the last several years.12 Changing the timeline for meeting the Beneficial Holders Rules from 12 months to 36 months would provide ETPs with a more reasonable runway to establish a track record and grow assets under management, both of which generally precede the accumulation of Beneficial Holders. Further, the Exchange believes that extending that runway will encourage smaller issuers to make the necessary capital expenditures to launch additional ETPs, as well as help both large and small issuers by allowing them to continue to list and promote products that they believe can succeed and that they are willing to continue paying for, all of which will help to foster competition and innovation in the ETP marketplace.13 12 The Exchange has issued deficiency notifications to 34 ETPs for non-compliance with Beneficial Holders Rules in the last five years. In addition, 22 ETPs have voluntarily delisted within their first year listed on the Exchange. While this isn’t specifically attributable to non-compliance with the Beneficial Holder Rules, the most likely reasons for voluntarily delisting an ETP in its first year would be either: (i) Failure or anticipated failure to meet the Beneficial Holders Rules; or (ii) the issuer believing that the ETP was not economically viable. 13 The Exchange notes that of the 34 ETPs that received deficiency notifications for noncompliance with Beneficial Holders Rules, 27 reached compliance while going through the delisting process under Rule 14.12 and continued to list on the Exchange. As such, the 12 month threshold for the Beneficial Holders Rules had no meaningful impact on whether such ETPs could list on the Exchange and only served as regulatory and administrative burdens for issuers to manage, which the Exchange believes makes it more difficult for smaller issuers to compete. VerDate Sep<11>2014 16:45 May 06, 2020 Jkt 250001 Second, the economic and competitive structures in place in the ETP ecosystem naturally incentivize issuers to de-list products rather than continuing to list products that do not garner investor interest, meaning that the rule does not provide any meaningful ‘‘pruning’’ function for the industry. Rather, the Exchange has found that, as currently constructed, the 12 month Beneficial Holders Rules have instead resulted in the forced termination of ETPs that issuers believed were still economically viable. While some observers might argue that forced delisting of an ETP based on a failure to meet the Beneficial Holders Rule is a good way to reduce the number of ETPs in the marketplace that have not drawn meaningful market interest, the Exchange vehemently disagrees with this sentiment. First, there are significant costs associated with both the initial launch and continued operation of an ETP and the Exchange has found that the ecosystem tends to prune itself of ETPs without meaningful investor interest. In fact, the Exchange has had 69 products that have voluntarily delisted in the last two years,14 creating meaningful turnover in products which issuers believe are not economically viable. Second, the Exchange contests the underlying assumption that the number of Beneficial Holders is even a meaningful measure of market interest in an ETP. While a very high Beneficial Holder count would most certainly indicate an ETP’s success, the absence of Beneficial Holders is not necessarily a good measure of market interest or the amount of assets held by the ETP. Further to this point, the Beneficial Holders Rules are not rules that an ETP issuer is incentivized to cut close or exceed by the smallest amount possible. Unlike most other quantitative or disclosure based listing requirements, an ETP issuer is incentivized to have as many Beneficial Holders as possible and would almost certainly prefer that they were able to meet and exceed the applicable Beneficial Holders Rule as soon as possible after beginning trading on the Exchange. As such, extending the time period from 12 months to 36 months will not provide issuers with a longer window to intentionally keep the number of Beneficial Holders lower, but, rather, will only extend the period during which an ETP could have fewer than 50 Beneficial Holders in specific instances where an issuer is unable to 14 There are currently 357 ETPs listed on the Exchange, meaning that there’s been a nearly 20% voluntary turnover of ETPs listed on the Exchange over the last two years. PO 00000 Frm 00054 Fmt 4703 Sfmt 4703 27257 meet the 50 Beneficial Holders threshold but still believes that the ETP is viable and worth the cost of continued operation. Again, it takes money and resources to launch and operate an ETP and where an issuer does not believe that an ETP is economically viable, both common sense and prior experience point to issuers delisting these products. Finally, the Exchange believes that making this change does not create any significant change in the risk of manipulation for ETPs listed on the Exchange for several reasons. First, the Exchange does not believe that there is anything particularly important about the 50th Beneficial Holder that reduces the manipulation risk associated with an ETP as compared to the 49th, nor is there any manipulation concern that arises on the 366th day after an ETP began trading on the Exchange that didn’t otherwise exist on the 1st, 2nd, or 365th day. Rather, the Exchange believes that the rule is generally intended to ensure that products that do not have broad ownership and could be susceptible to manipulation by a few parties are not able to list on the Exchange after they’ve had sufficient time to diversify their ownership base. Leaving aside the issue of whether an open-ended ETP with creation and redemption processes would really be subject to manipulation by virtue of narrow ownership, the Exchange believes that, for all of the reasons explained above, 36 months is a more appropriate amount of time to consider sufficient time to diversify an ETP’s ownership base. Further to this point, the Exchange has in place a robust surveillance program for ETPs that allows it to monitor trading of ETPs during all trading sessions on the Exchange and it believes are sufficient to deter and detect violations of Exchange rules and the applicable federal securities laws. These surveillances generally focus on detecting securities trading outside of 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. Further, the Exchange or the FINRA,15 on behalf of the Exchange, or both, communicate as needed regarding trading in ETPs with other markets and other entities that are 15 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. E:\FR\FM\07MYN1.SGM 07MYN1 27258 Federal Register / Vol. 85, No. 89 / Thursday, May 7, 2020 / Notices khammond on DSKJM1Z7X2PROD with NOTICES members of the ISG, and the Exchange or FINRA, on behalf of the Exchange, or both, may obtain trading information in ETPs from such markets and other entities. The Exchange believes that these robust surveillance procedures will further act to mitigate any manipulation concerns that arise from extending the compliance period for the Beneficial Holders Rules from 12 months to 36 months. The Exchange also believes that the other continued listing standards in the Exchange’s rules or representations that constitute continued listing standards in Exchange rule filings (either the disclosure obligations applicable under Rule 6c–11 of the Investment Company Act of 1940 for series of ETF Shares or the diversity, liquidity, and size of an ETP’s holdings or reference assets applicable to Index Fund Shares and Managed Fund Shares) are generally sufficient to mitigate manipulation concerns associated with the applicable ETP. During the first 12 months of trading on the Exchange when the Beneficial Holders Rules do not apply, these disclosure and quantitative obligations, in conjunction with the Exchange’s surveillance program (as discussed above), are generally deemed sufficient to prevent any manipulation concerns in Exchange-listed ETPs. As such, the Exchange believes that extending the period from 12 months to 36 months will not significantly increase any risk of manipulation that wasn’t already generally deemed acceptable for the first 12 months that an ETP was listed. Again, the Exchange is not proposing to eliminate the Beneficial Holders Rules, but merely to extend the period for an ETP to meet the 50 Beneficial Holder requirement. The proposed rule change is also designed to protect investors and the public interest because the Exchange is only proposing to amend the continued listing requirement related to Beneficial Holders and all ETPs listed on the Exchange would continue to be subject to the full panoply of Exchange rules and procedures that currently govern the trading of equity securities on the Exchange. For the above reasons, the Exchange believes that the proposed rule change is consistent with the requirements of Section 6(b)(5) of the Act. 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. Instead, the Exchange believes that the proposed VerDate Sep<11>2014 16:45 May 06, 2020 Jkt 250001 rule change would help to encourage smaller issuers to make the necessary capital expenditures to launch additional ETPs, as well as help both large and small issuers by allowing them to continue to list and promote products that they believe can succeed and that they are willing to continue paying for, which 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 The Exchange neither solicited nor received comments on 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 Exchange consents, the Commission will: A. By order approve or disapprove 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 is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission’s internet comment form (https://www.sec.gov/ rules/sro.shtml); or • Send an email to rule-comments@ sec.gov. Please include File Number SR– CboeBZX–2020–036 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–CboeBZX–2020–036. 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 PO 00000 Frm 00055 Fmt 4703 Sfmt 4703 internet website (https://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 website viewing and printing in the Commission’s Public Reference Room, 100 F Street NE, Washington, DC 20549 on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR–CboeBZX–2020–036, and should be submitted on or before May 28, 2020. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.16 J. Matthew DeLesDernier, Assistant Secretary. [FR Doc. 2020–09712 Filed 5–6–20; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. IA–5493] Notice of Intention To Cancel Registration Pursuant to Section 203(H) of the Investment Advisers Act of 1940 May 1, 2020. Notice is given that the Securities and Exchange Commission (the ‘‘Commission’’) intends to issue an order, pursuant to Section 203(h) of the Investment Advisers Act of 1940 (the ‘‘Act’’), cancelling the registration of Cheswold Lane Asset Management, LLC [File No. 801–6664], hereinafter referred to as the ‘‘registrant.’’ Section 203(h) provides, in pertinent part, that if the Commission finds that any person registered under Section 203, or who has pending an application for registration filed under that section, 16 17 E:\FR\FM\07MYN1.SGM CFR 200.30–3(a)(12). 07MYN1

Agencies

[Federal Register Volume 85, Number 89 (Thursday, May 7, 2020)]
[Notices]
[Pages 27254-27258]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09712]


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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-88795; File No. SR-CboeBZX-2020-036]


Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of 
Filing of a Proposed Rule Change To Amend Rule 14.11, Other Securities

May 1, 2020.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(the ``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given 
that on April 29, 2020, Cboe BZX Exchange, Inc. (the ``Exchange'' or 
``BZX'') filed with the Securities and Exchange Commission (the 
``Commission'') the proposed rule change as described in Items I, II, 
and III below, which Items have been prepared by the Exchange. 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\ 17 CFR 240.19b-4.

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

[[Page 27255]]

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

    The Exchange proposes rule changes in several places in Exchange 
Rule 14.11, Other Securities, to amend the initial period after 
commencement of trading of an ETP, as defined below, on the Exchange as 
it specifically relates to holders of record and/or beneficial holders. 
The text of the proposed rule change is provided in Exhibit 5.
    The text of the proposed rule change is also available on the 
Exchange's website (https://markets.cboe.com/us/equities/regulation/rule_filings/bzx/), at the Exchange's Office of the Secretary, 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 Exchange included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
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 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to make several changes to Rule 14.11 in 
order to amend the continued listing standards applicable to ETPs \3\ 
listed on the Exchange. Specifically, the Exchange is proposing to 
amend its rules such that they would provide additional time for an ETP 
to meet the applicable Beneficial Holders \4\ standards in the 
Exchange's listing rules (the ``Beneficial Holders Rules'').\5\
---------------------------------------------------------------------------

    \3\ For the purpose of this filing, the term ETP means 
securities listed pursuant to Rule 14.11(c) (Index Fund Shares), 
Rule 14.11(i) (Managed Fund Shares), and Rule 14.11(l) (Exchange-
Traded Fund Shares (``ETF Shares'')).
    \4\ As it relates to this filing, ``Beneficial Holders'' shall 
mean beneficial holders and, where applicable in a particular 
continued listing standard, record holders.
    \5\ The Exchange notes that its Rules related to the listing and 
trading of other product types (that is, products that are not ETPs 
as defined above) have similar requirements related to Beneficial 
Holders which the Exchange is not proposing to eliminate at this 
time. Specifically, the Exchange is only proposing to amend the 
Beneficial Holders Rules as it pertains to Index Fund Shares, 
Managed Fund Shares, and ETF Shares because such product types 
represent the vast majority of products listed on the Exchange. The 
Exchange may consider proposing to amend the Beneficial Holders 
Rules for other product types in a future proposal.
---------------------------------------------------------------------------

    Currently, the Exchange's continued listing standards for ETPs 
generally require that, following the initial 12 month period after 
commencement of trading on the Exchange, the Exchange shall consider 
the suspension of trading in and will commence delisting proceedings 
under Rule 14.12 for an ETP for which there are fewer than 50 
Beneficial Holders for 30 or more consecutive trading days. The 
Exchange is proposing to change the date at which an ETP would need to 
have at least 50 Beneficial Holders or be subject to delisting 
proceedings under Rule 14.12 from 12 months after commencement of 
trading on the Exchange to 36 months after commencement of trading on 
the Exchange.
    As further described below, the Exchange believes it is appropriate 
to increase the period of time for an ETP to comply with the applicable 
Beneficial Holders Rule from 12 months to 36 months because: (i) It 
would bring the rule more in line with the life cycle of an ETP; (ii) 
the economic and competitive structures in place in the ETP ecosystem 
naturally incentivize issuers to de-list products rather than 
continuing to list products that do not garner investor interest; and 
(iii) extending the period from 12 to 36 months will not meaningfully 
impact the manipulation concerns that the Beneficial Holders Rules are 
intended to address.
    First, the ETP space is more competitive than it has ever been--
with more than 2,000 ETPs listed on U.S. national securities exchanges 
competing for investor assets, the natural cycle for an average ETP to 
gain traction in the market is growing longer and longer. As more and 
more ETPs have come to market, many distribution platforms have become 
more restrictive about the ETPs that they allow on their systems, often 
requiring a minimum existing track record (e.g., at least 12 months) 
and meeting certain thresholds for assets under management (e.g., at 
least $100 million) for an ETP to be added. Similarly, many larger 
entities are unwilling to invest in ETPs that do not have at least one 
calendar year track record. All of these factors have contributed to 
the natural slowing of the average ETP's growth cycle and, 
unsurprisingly, the Exchange has seen a significant number of 
deficiencies based on a failure to meet the applicable Beneficial 
Holders Rule over the last several years.\6\
---------------------------------------------------------------------------

    \6\ The Exchange has issued deficiency notifications to 34 ETPs 
for non-compliance with Beneficial Holders Rules in the last five 
years. In addition, 22 ETPs have voluntarily delisted within their 
first year listed on the Exchange. While this isn't specifically 
attributable to non-compliance with the Beneficial Holder Rules, the 
most likely reasons for voluntarily delisting an ETP in its first 
year would be either: (i) Failure or anticipated failure to meet the 
Beneficial Holders Rules; or (ii) the issuer believing that the ETP 
was not economically viable.
---------------------------------------------------------------------------

    Changing the timeline for meeting the Beneficial Holders Rules from 
12 months to 36 months would provide ETPs with a more reasonable runway 
to establish a track record and grow assets under management, both of 
which generally precede the accumulation of Beneficial Holders. 
Further, the Exchange believes that extending that runway will 
encourage smaller issuers to make the necessary capital expenditures to 
launch additional ETPs, as well as help both large and small issuers by 
allowing them to continue to list and promote products that they 
believe can succeed and that they are willing to continue paying for, 
all of which will help to foster competition and innovation in the ETP 
marketplace.\7\
---------------------------------------------------------------------------

    \7\ The Exchange notes that of the 34 ETPs that received 
deficiency notifications for non-compliance with Beneficial Holders 
Rules, 27 reached compliance while going through the delisting 
process under Rule 14.12 and continued to list on the Exchange. As 
such, the 12 month threshold for the Beneficial Holders Rules had no 
meaningful impact on whether such ETPs could list on the Exchange 
and only served as regulatory and administrative burdens for issuers 
to manage, which the Exchange believes makes it more difficult for 
smaller issuers to compete.
---------------------------------------------------------------------------

    Second, the economic and competitive structures in place in the ETP 
ecosystem naturally incentivize issuers to de-list products rather than 
continuing to list products that do not garner investor interest, 
meaning that the rule does not provide any meaningful ``pruning'' 
function for the industry. Rather, the Exchange has found that, as 
currently constructed, the 12 month Beneficial Holders Rules have 
instead resulted in the forced termination of ETPs that issuers 
believed were still economically viable. While some observers might 
argue that forced delisting of an ETP based on a failure to meet the 
Beneficial Holders Rule is a good way to reduce the number of ETPs in 
the marketplace that have not drawn meaningful market interest, the 
Exchange vehemently disagrees with this sentiment. First, there are 
significant costs associated with both the initial launch and continued 
operation of an ETP and the Exchange has found that the ecosystem

[[Page 27256]]

tends to prune itself of ETPs without meaningful investor interest. In 
fact, the Exchange has had 69 products that have voluntarily delisted 
in the last two years,\8\ creating meaningful turnover in products 
which issuers believe are not economically viable. Second, the Exchange 
contests the underlying assumption that the number of Beneficial 
Holders is even a meaningful measure of market interest in an ETP. 
While a very high Beneficial Holder count would most certainly indicate 
an ETP's success, the absence of Beneficial Holders is not necessarily 
a good measure of market interest or the amount of assets held by the 
ETP.
---------------------------------------------------------------------------

    \8\ There are currently 357 ETPs listed on the Exchange, meaning 
that there's been a nearly 20% voluntary turnover of ETPs listed on 
the Exchange over the last two years.
---------------------------------------------------------------------------

    Further to this point, the Beneficial Holders Rules are not rules 
that an ETP issuer is incentivized to cut close or exceed by the 
smallest amount possible. Unlike most other quantitative or disclosure 
based listing requirements, an ETP issuer is incentivized to have as 
many Beneficial Holders as possible and would almost certainly prefer 
that they were able to meet and exceed the applicable Beneficial 
Holders Rule as soon as possible after beginning trading on the 
Exchange. As such, extending the time period from 12 months to 36 
months will not provide issuers with a longer window to intentionally 
keep the number of Beneficial Holders lower, but, rather, will only 
extend the period during which an ETP could have fewer than 50 
Beneficial Holders in specific instances where an issuer is unable to 
meet the 50 Beneficial Holders threshold but still believes that the 
ETP is viable and worth the cost of continued operation. Again, it 
takes money and resources to launch and operate an ETP and where an 
issuer does not believe that an ETP is economically viable, both common 
sense and prior experience point to issuers delisting these products.
    Finally, the Exchange believes that making this change does not 
create any significant change in the risk of manipulation for ETPs 
listed on the Exchange for several reasons. First, the Exchange does 
not believe that there is anything particularly important about the 
50th Beneficial Holder that reduces the manipulation risk associated 
with an ETP as compared to the 49th, nor is there any manipulation 
concern that arises on the 366th day after an ETP began trading on the 
Exchange that didn't otherwise exist on the 1st, 2nd, or 365th day. 
Rather, the Exchange believes that the rule is generally intended to 
ensure that products that do not have broad ownership and could be 
susceptible to manipulation by a few parties are not able to list on 
the Exchange after they've had sufficient time to diversify their 
ownership base. Leaving aside the issue of whether an open-ended ETP 
with creation and redemption processes would really be subject to 
manipulation by virtue of narrow ownership, the Exchange believes that, 
for all of the reasons explained above, 36 months is a more appropriate 
amount of time to consider sufficient time to diversify an ETP's 
ownership base.
    Further to this point, the Exchange has in place a robust 
surveillance program for ETPs that allows it to monitor trading of ETPs 
during all trading sessions on the Exchange and it believes are 
sufficient to deter and detect violations of Exchange rules and the 
applicable federal securities laws. These surveillances generally focus 
on detecting securities trading outside of 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. Further, the 
Exchange or the Financial Industry Regulatory Authority (``FINRA''),\9\ 
on behalf of the Exchange, or both, communicate as needed regarding 
trading in ETPs 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 in ETPs from such markets and other entities. The Exchange 
believes that these robust surveillance procedures will further act to 
mitigate any manipulation concerns that arise from extending the 
compliance period for the Beneficial Holders Rules from 12 months to 36 
months.
---------------------------------------------------------------------------

    \9\ 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 Exchange also believes that the other continued listing 
standards in the Exchange's rules or representations that constitute 
continued listing standards in Exchange rule filings (either the 
disclosure obligations applicable under Rule 6c-11 of the Investment 
Company Act of 1940 for series of ETF Shares or the diversity, 
liquidity, and size of an ETP's holdings or reference assets applicable 
to Index Fund Shares and Managed Fund Shares) are generally sufficient 
to mitigate manipulation concerns associated with the applicable ETP. 
During the first 12 months of trading on the Exchange when the 
Beneficial Holders Rules do not apply, these disclosure and 
quantitative obligations, in conjunction with the Exchange's 
surveillance program (as discussed above), are generally deemed 
sufficient to prevent any manipulation concerns in Exchange-listed 
ETPs. As such, the Exchange believes that extending the period from 12 
months to 36 months does not significantly increase any risk of 
manipulation that wasn't already generally deemed acceptable for the 
first 12 months that an ETP was listed. Again, the Exchange is not 
proposing to eliminate the Beneficial Holders Rules, but merely to 
extend the period for an ETP to meet the 50 Beneficial Holder 
requirement.
2. Statutory Basis
    The Exchange believes that the proposal is consistent with Section 
6(b) of the Act \10\ in general and Section 6(b)(5) of the Act \11\ in 
particular in that it is designed to promote just and equitable 
principles of trade, to remove impediments to and perfect the mechanism 
of a free and open market and a national market system and, in general, 
to protect investors and the public interest.
---------------------------------------------------------------------------

    \10\ 15 U.S.C. 78f.
    \11\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The proposed rule changes are designed 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 because it would prevent the 
premature delisting of ETPs that have not had sufficient time to build 
up to 50 Beneficial Holders without significantly impacting the 
manipulation concerns that the Beneficial Holders Rules are intended to 
address.
    The Exchange believes it is appropriate to increase the period of 
time for an ETP to comply with the applicable Beneficial Holders Rule 
from 12 months to 36 months because: (i) It would bring the rule more 
in line with the life cycle of an ETP; (ii) the economic and 
competitive structures in place in the ETP ecosystem naturally 
incentivize issuers to de-list products rather than continuing to list 
products that do not garner investor interest; and (iii) extending the 
period from 12 to 36 months will not meaningfully impact the 
manipulation concerns that the Beneficial Holders Rules are intended to 
address.

[[Page 27257]]

    First, the ETP space is more competitive than it has ever been--
with more than 2,000 ETPs listed on U.S. national securities exchanges 
competing for investor assets, the natural cycle for an average ETP to 
gain traction in the market is growing longer and longer. As more and 
more ETPs have come to market, many distribution platforms have become 
more restrictive about the ETPs that they allow on their systems, often 
requiring a minimum existing track record (e.g., at least 12 months) 
and meeting certain thresholds for assets under management (e.g., at 
least $100 million) for an ETP to be added. Similarly, many larger 
entities are unwilling to invest in ETPs that do not have at least one 
calendar year track record. All of these factors have contributed to 
the natural slowing of the average ETP's growth cycle and, 
unsurprisingly, the Exchange has seen a significant number of 
deficiencies based on a failure to meet the applicable Beneficial 
Holders Rule over the last several years.\12\
---------------------------------------------------------------------------

    \12\ The Exchange has issued deficiency notifications to 34 ETPs 
for non-compliance with Beneficial Holders Rules in the last five 
years. In addition, 22 ETPs have voluntarily delisted within their 
first year listed on the Exchange. While this isn't specifically 
attributable to non-compliance with the Beneficial Holder Rules, the 
most likely reasons for voluntarily delisting an ETP in its first 
year would be either: (i) Failure or anticipated failure to meet the 
Beneficial Holders Rules; or (ii) the issuer believing that the ETP 
was not economically viable.
---------------------------------------------------------------------------

    Changing the timeline for meeting the Beneficial Holders Rules from 
12 months to 36 months would provide ETPs with a more reasonable runway 
to establish a track record and grow assets under management, both of 
which generally precede the accumulation of Beneficial Holders. 
Further, the Exchange believes that extending that runway will 
encourage smaller issuers to make the necessary capital expenditures to 
launch additional ETPs, as well as help both large and small issuers by 
allowing them to continue to list and promote products that they 
believe can succeed and that they are willing to continue paying for, 
all of which will help to foster competition and innovation in the ETP 
marketplace.\13\
---------------------------------------------------------------------------

    \13\ The Exchange notes that of the 34 ETPs that received 
deficiency notifications for non-compliance with Beneficial Holders 
Rules, 27 reached compliance while going through the delisting 
process under Rule 14.12 and continued to list on the Exchange. As 
such, the 12 month threshold for the Beneficial Holders Rules had no 
meaningful impact on whether such ETPs could list on the Exchange 
and only served as regulatory and administrative burdens for issuers 
to manage, which the Exchange believes makes it more difficult for 
smaller issuers to compete.
---------------------------------------------------------------------------

    Second, the economic and competitive structures in place in the ETP 
ecosystem naturally incentivize issuers to de-list products rather than 
continuing to list products that do not garner investor interest, 
meaning that the rule does not provide any meaningful ``pruning'' 
function for the industry. Rather, the Exchange has found that, as 
currently constructed, the 12 month Beneficial Holders Rules have 
instead resulted in the forced termination of ETPs that issuers 
believed were still economically viable. While some observers might 
argue that forced delisting of an ETP based on a failure to meet the 
Beneficial Holders Rule is a good way to reduce the number of ETPs in 
the marketplace that have not drawn meaningful market interest, the 
Exchange vehemently disagrees with this sentiment. First, there are 
significant costs associated with both the initial launch and continued 
operation of an ETP and the Exchange has found that the ecosystem tends 
to prune itself of ETPs without meaningful investor interest. In fact, 
the Exchange has had 69 products that have voluntarily delisted in the 
last two years,\14\ creating meaningful turnover in products which 
issuers believe are not economically viable. Second, the Exchange 
contests the underlying assumption that the number of Beneficial 
Holders is even a meaningful measure of market interest in an ETP. 
While a very high Beneficial Holder count would most certainly indicate 
an ETP's success, the absence of Beneficial Holders is not necessarily 
a good measure of market interest or the amount of assets held by the 
ETP.
---------------------------------------------------------------------------

    \14\ There are currently 357 ETPs listed on the Exchange, 
meaning that there's been a nearly 20% voluntary turnover of ETPs 
listed on the Exchange over the last two years.
---------------------------------------------------------------------------

    Further to this point, the Beneficial Holders Rules are not rules 
that an ETP issuer is incentivized to cut close or exceed by the 
smallest amount possible. Unlike most other quantitative or disclosure 
based listing requirements, an ETP issuer is incentivized to have as 
many Beneficial Holders as possible and would almost certainly prefer 
that they were able to meet and exceed the applicable Beneficial 
Holders Rule as soon as possible after beginning trading on the 
Exchange. As such, extending the time period from 12 months to 36 
months will not provide issuers with a longer window to intentionally 
keep the number of Beneficial Holders lower, but, rather, will only 
extend the period during which an ETP could have fewer than 50 
Beneficial Holders in specific instances where an issuer is unable to 
meet the 50 Beneficial Holders threshold but still believes that the 
ETP is viable and worth the cost of continued operation. Again, it 
takes money and resources to launch and operate an ETP and where an 
issuer does not believe that an ETP is economically viable, both common 
sense and prior experience point to issuers delisting these products.
    Finally, the Exchange believes that making this change does not 
create any significant change in the risk of manipulation for ETPs 
listed on the Exchange for several reasons. First, the Exchange does 
not believe that there is anything particularly important about the 
50th Beneficial Holder that reduces the manipulation risk associated 
with an ETP as compared to the 49th, nor is there any manipulation 
concern that arises on the 366th day after an ETP began trading on the 
Exchange that didn't otherwise exist on the 1st, 2nd, or 365th day. 
Rather, the Exchange believes that the rule is generally intended to 
ensure that products that do not have broad ownership and could be 
susceptible to manipulation by a few parties are not able to list on 
the Exchange after they've had sufficient time to diversify their 
ownership base. Leaving aside the issue of whether an open-ended ETP 
with creation and redemption processes would really be subject to 
manipulation by virtue of narrow ownership, the Exchange believes that, 
for all of the reasons explained above, 36 months is a more appropriate 
amount of time to consider sufficient time to diversify an ETP's 
ownership base.
    Further to this point, the Exchange has in place a robust 
surveillance program for ETPs that allows it to monitor trading of ETPs 
during all trading sessions on the Exchange and it believes are 
sufficient to deter and detect violations of Exchange rules and the 
applicable federal securities laws. These surveillances generally focus 
on detecting securities trading outside of 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. Further, the 
Exchange or the FINRA,\15\ on behalf of the Exchange, or both, 
communicate as needed regarding trading in ETPs with other markets and 
other entities that are

[[Page 27258]]

members of the ISG, and the Exchange or FINRA, on behalf of the 
Exchange, or both, may obtain trading information in ETPs from such 
markets and other entities. The Exchange believes that these robust 
surveillance procedures will further act to mitigate any manipulation 
concerns that arise from extending the compliance period for the 
Beneficial Holders Rules from 12 months to 36 months.
---------------------------------------------------------------------------

    \15\ 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 Exchange also believes that the other continued listing 
standards in the Exchange's rules or representations that constitute 
continued listing standards in Exchange rule filings (either the 
disclosure obligations applicable under Rule 6c-11 of the Investment 
Company Act of 1940 for series of ETF Shares or the diversity, 
liquidity, and size of an ETP's holdings or reference assets applicable 
to Index Fund Shares and Managed Fund Shares) are generally sufficient 
to mitigate manipulation concerns associated with the applicable ETP. 
During the first 12 months of trading on the Exchange when the 
Beneficial Holders Rules do not apply, these disclosure and 
quantitative obligations, in conjunction with the Exchange's 
surveillance program (as discussed above), are generally deemed 
sufficient to prevent any manipulation concerns in Exchange-listed 
ETPs. As such, the Exchange believes that extending the period from 12 
months to 36 months will not significantly increase any risk of 
manipulation that wasn't already generally deemed acceptable for the 
first 12 months that an ETP was listed. Again, the Exchange is not 
proposing to eliminate the Beneficial Holders Rules, but merely to 
extend the period for an ETP to meet the 50 Beneficial Holder 
requirement.
    The proposed rule change is also designed to protect investors and 
the public interest because the Exchange is only proposing to amend the 
continued listing requirement related to Beneficial Holders and all 
ETPs listed on the Exchange would continue to be subject to the full 
panoply of Exchange rules and procedures that currently govern the 
trading of equity securities on the Exchange.
    For the above reasons, the Exchange believes that the proposed rule 
change is consistent with the requirements of Section 6(b)(5) of the 
Act.

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. Instead, the Exchange 
believes that the proposed rule change would help to encourage smaller 
issuers to make the necessary capital expenditures to launch additional 
ETPs, as well as help both large and small issuers by allowing them to 
continue to list and promote products that they believe can succeed and 
that they are willing to continue paying for, which 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

    The Exchange neither solicited nor received comments on 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 Exchange consents, the Commission will:
    A. By order approve or disapprove 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 is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-CboeBZX-2020-036 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-CboeBZX-2020-036. 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 website (https://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 website viewing and printing in 
the Commission's Public Reference Room, 100 F Street NE, Washington, DC 
20549 on official business days between the hours of 10:00 a.m. and 
3:00 p.m. Copies of the filing also will be available for inspection 
and copying at the principal office of the Exchange. All comments 
received will be posted without change. Persons submitting comments are 
cautioned that we do not redact or edit personal identifying 
information from comment submissions. You should submit only 
information that you wish to make available publicly. All submissions 
should refer to File Number SR-CboeBZX-2020-036, and should be 
submitted on or before May 28, 2020.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\16\
---------------------------------------------------------------------------

    \16\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-09712 Filed 5-6-20; 8:45 am]
 BILLING CODE 8011-01-P
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.