Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change To List and Trade Shares of Gabelli ETFs Under Rule 8.900-E, Managed Portfolio Shares, 34262-34270 [2020-11919]

Download as PDF 34262 Federal Register / Vol. 85, No. 107 / Wednesday, June 3, 2020 / Notices lotter on DSK9F5VC42PROD with NOTICES promote robust risk management practices at OCC, consistent with Section 805(b) of the Clearing Supervision Act.46 The Commission also believes that the changes proposed in the Advance Notice are consistent with promoting safety and soundness. As described above, the New Facility would maintain OCC’s access to a significant liquidity resource in the event of a Clearing Member default. The Evergreen Provisions would preserve access to this resource by ensuring that any annual renewals implemented without filing an advance notice would be substantially similar to the currently proposed credit facility, the Commission believes that any such annual renewals can be expected to promote safety and soundness for the same reasons. Further, by ensuring the continuity and consistency of any subsequent renewals, the Advance Notice would support OCC’s continued access to a readily available liquidity resource that could enable OCC to continue to meet its obligations to Clearing Members in a timely fashion in the event of a Clearing Member default, thereby helping to contain losses and liquidity pressures from that default. As such, the Commission believes it is consistent with promoting safety and soundness as contemplated in Section 805(b) of the Clearing Supervision Act.47 In addition, the Commission believes that the changes proposed in the Advance Notice are consistent with reducing systemic risks and promoting the stability of the broader financial system. As mentioned above, allowing OCC to enter into the New Facility would enable OCC, which has been designated a systemically important FMU,48 to maintain an additional liquidity resource that OCC may access to help manage a Clearing Member default. In addition, as noted above, because the Evergreen Provisions would ensure that any annual renewals entered into without filing an advance notice would be on substantially similar terms to the currently proposed credit facility, such future renewals also would enable OCC to maintain an additional liquidity resource that OCC may access to help manage a Clearing Member default. Moreover, allowing the annual renewal of the credit facility under the proposed Evergreen Provisions without filing an 46 12 U.S.C. 5464(b). 47 Id. 48 The Financial Stability Oversight Council designated OCC a systemically important financial market utility on July 18, 2012. See Financial Stability Oversight Council 2012 Annual Report, Appendix A, https://www.treasury.gov/initiatives/ fsoc/Documents/2012%20Annual%20Report.pdf. VerDate Sep<11>2014 18:35 Jun 02, 2020 Jkt 250001 additional advance notice would facilitate the continued availability of this liquidity resource. These provisions would provide heightened certainty and stability for OCC and market participants that OCC would be able to maintain access to liquidity resources to help manage a Clearing Member default and would have flexibility to increase the size of its liquidity resources in response to market developments. Accordingly, the Commission believes that the proposal would help to reduce the systemic risk of OCC, which in turn would help to support the stability of the broader financial system, consistent with Section 805(b) of the Clearing Supervision Act.49 Accordingly, and for the reasons stated above, the Commission believes the changes proposed in the Advance Notice are consistent with Section 805(b) of the Clearing Supervision Act.50 B. Consistency With Rule 17Ad–22(e)(7) Under the Exchange Act Rule 17Ad–22(e)(7)(ii) requires, in part, OCC to establish, implement, maintain and enforce written policies and procedures reasonably designed to effectively measure, monitor, and manage liquidity risk that arises in or is borne by OCC, including measuring, monitoring, and managing its settlement and funding flows on an ongoing and timely basis, and its use of intraday liquidity by, at a minimum, holding qualifying liquid resources sufficient to meet the minimum liquidity resource requirement under Rule 17Ad– 22(e)(7)(i) 51 in each relevant currency for which the covered clearing agency has payment obligations owed to Clearing Members.52 Rule 17Ad– 22(a)(14) of the Exchange Act defines ‘‘qualifying liquid resources’’ to include, among other things, lines of credit without material adverse change 49 Id. 50 12 U.S.C. 5464(b). 17Ad–22(e)(7)(i) requires OCC to establish, implement, maintain and enforce written policies and procedures reasonably designed to effectively measure, monitor, and manage liquidity risk that arises in or is borne by OCC, including measuring, monitoring, and managing its settlement and funding flows on an ongoing and timely basis, and its use of intraday liquidity by, at a minimum, maintaining sufficient liquid resources at the minimum in all relevant currencies to effect sameday settlement of payment obligations with a high degree of confidence under a wide range of foreseeable stress scenarios that includes, but is not limited to, the default of the participant family that would generate the largest aggregate payment of obligation for the covered clearing agency in extreme but plausible conditions. 17 CFR 240.17Ad–22(e)(7)(i). 52 17 CFR 240.17Ad–22(e)(7)(ii). 51 Rule PO 00000 Frm 00103 Fmt 4703 Sfmt 4703 provisions that are readily available and convertible into cash.53 As described above, the implementation of the New Facility would provide OCC with continued access to a $2 billion revolving credit facility on substantially similar terms to the Existing Facility. As the Commission noted previously, the Existing Facility provides OCC with access to a single credit facility designed to help ensure that OCC has sufficient, readily available qualifying liquid resources to meet the cash settlement obligations of its largest family of affiliated members.54 Implementation of the New Facility on substantially similar terms to the Existing Facility would ensure that OCC maintains continued access to such a credit facility. Because the Evergreen Provisions would ensure that any annual renewals also would be substantially similar to both the Existing Facility and the New Facility, the provisions would help ensure that OCC has sufficient, readily-available qualifying liquid resources to meet the cash settlement obligations of its largest family of affiliated members. Therefore, the Commission believes that the proposal is consistent with Rule 17Ad– 22(e)(7)(ii). VI. Conclusion It is therefore noticed, pursuant to Section 806(e)(1)(I) of the Clearing Supervision Act, that the Commission does not object to the Advance Notice SR–OCC–2020–804 and OCC can and hereby is authorized to implement the change as of the date of this notice. By the Commission. J. Matthew DeLesDernier, Assistant Secretary. [FR Doc. 2020–11917 Filed 6–2–20; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–88970; File No. SR– NYSEArca–2020–48] Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change To List and Trade Shares of Gabelli ETFs Under Rule 8.900–E, Managed Portfolio Shares May 28, 2020. Pursuant to Section 19(b)(1) 1 of the Securities Exchange Act of 1934 53 17 CFR 240.17Ad–22(a)(14). Exchange Act Release No. 83529 (Jun. 27, 2018), 83 FR 31237, 31241 (Jul. 3, 2018) (SR–OCC–2018–802). 1 15 U.S.C. 78s(b)(1). 54 Securities E:\FR\FM\03JNN1.SGM 03JNN1 Federal Register / Vol. 85, No. 107 / Wednesday, June 3, 2020 / Notices (‘‘Act’’) 2 and Rule 19b–4 thereunder,3 notice is hereby given that, on May 15, 2020, NYSE Arca, Inc. (‘‘NYSE Arca’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘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. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to list and trade shares of the following under Rule 8.900–E (Managed Portfolio Shares): Gabelli Growth Innovators ETF, Gabelli Financial Services ETF, Gabelli Small Cap Growth ETF, Gabelli Small & Mid Cap ETF, Gabelli Micro Cap ETF, Gabelli ESG ETF, Gabelli Asset ETF, Gabelli Equity Income ETF, and Gabelli Green Energy ETF. The proposed change is available on the Exchange’s website 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 the Statutory Basis for, the Proposed Rule Change lotter on DSK9F5VC42PROD with NOTICES 1. Purpose The Exchange has added new Rule 8.900–E for the purpose of permitting the listing and trading, or trading pursuant to unlisted trading privileges (‘‘UTP’’), of Managed Portfolio Shares, which are securities issued by an actively managed open-end investment management company.4 Rule 8.900– 2 15 U.S.C. 78a. CFR 240.19b–4. 4 See Securities Exchange Act Release No. 88648 (April 15, 2020), 85 FR 22200 (April 21, 2020). Rule 8.900–E(c)(1) provides that the term ‘‘Managed Portfolio Share’’ means a security that (a) represents 3 17 VerDate Sep<11>2014 18:35 Jun 02, 2020 Jkt 250001 E(b)(1) requires the Exchange to file separate proposals under Section 19(b) of the Act before listing and trading any series of Managed Portfolio Shares on the Exchange. Therefore, the Exchange is submitting this proposal in order to list and trade Managed Portfolio Shares of the Gabelli Growth Innovators ETF, Gabelli Financial Services ETF, Gabelli Small Cap Growth ETF, Gabelli Small & Mid Cap ETF, Gabelli Micro Cap ETF, Gabelli ESG ETF, Gabelli Asset ETF, Gabelli Equity Income ETF, and Gabelli Green Energy ETF (each a ‘‘Fund’’ and, collectively, the ‘‘Funds’’) under Rule 8.900–E. Description of the Funds and the Trust The shares of each Fund (the ‘‘Shares’’) will be issued by the Gabelli ETFs Trust (the ‘‘Trust’’), a statutory trust organized under the laws of the State of Delaware and registered with the Commission as an open-end management investment company.5 The investment adviser to each Fund will be Gabelli Funds, LLC (the ‘‘Adviser’’). G.distributors, LLC (the ‘‘Distributor’’) will serve as the distributor of each of the Funds’ Shares. All statements and representations made in this filing regarding (a) the description of the portfolio or reference assets, (b) limitations on portfolio holdings or reference assets, or (c) the applicability of Exchange rules shall constitute continued listing requirements for an interest in an investment company registered under the Investment Company Act of 1940 (‘‘Investment Company’’) organized as an open-end management investment company that invests in a portfolio of securities selected by the Investment Company’s investment adviser consistent with the Investment Company’s investment objectives and policies; (b) is issued in a Creation Unit, or multiples thereof, in return for a designated portfolio of instruments (and/or an amount of cash) with a value equal to the next determined net asset value and delivered to the Authorized Participant (as defined in the Investment Company’s Form N– 1A filed with the Commission) through a Confidential Account; (c) when aggregated into a Redemption Unit, or multiples thereof, may be redeemed for a designated portfolio of instruments (and/or an amount of cash) with a value equal to the next determined net asset value delivered to the Confidential Account for the benefit of the Authorized Participant; and (d) the portfolio holdings for which are disclosed within at least 60 days following the end of every fiscal quarter. 5 The Trust is registered under the 1940 Act. On May 8, 2020, the Trust filed a registration statement on Form N–1A under the Securities Act of 1933 and the 1940 Act for the Funds (File No. 812–15036) (‘‘Registration Statement’’). The Commission issued an order granting exemptive relief to the Trust (‘‘Exemptive Order’’) under the 1940 Act on December 3, 2019 (Investment Company Act Release No. 33708). The Exemptive Order was granted in response to the Trust’s application for exemptive relief (the ‘‘Exemptive Application’’) (File No. 812–15036). The description of the operation of the Trust and the Funds herein is based, in part, on the Registration Statement. PO 00000 Frm 00104 Fmt 4703 Sfmt 4703 34263 listing the Shares on the Exchange, as provided under Rule 8.900–E(b)(1). Rule 8.900–E(b)(4) provides that, if the investment adviser to the Investment Company issuing Managed Portfolio Shares is registered as a broker-dealer or is affiliated with a broker-dealer, such investment adviser will erect and maintain a ‘‘fire wall’’ between the investment adviser and personnel of the broker-dealer or brokerdealer affiliate, as applicable, with respect to access to information concerning the composition and/or changes to such Investment Company portfolio and/or the Creation Basket.6 Any person related to the investment adviser or Investment Company who makes decisions pertaining to the Investment Company’s portfolio composition or has access to information regarding the Investment Company’s portfolio composition or changes thereto or the Creation Basket must be subject to procedures designed to prevent the use and dissemination of material non-public information regarding the applicable Investment Company portfolio or changes thereto or the Creation Basket. Rule 8.900–E(5) is similar to Commentary .03(a)(i) and (iii) to Rule 5.2–E(j)(3); however, Commentary .03(a) 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.7 Rule 8.900–E(5) is also similar 6 Rule 8.900–E(c)(5) provides that the term ‘‘Creation Basket’’ means, on any given business day, the names and quantities of the specified instruments (and/or an amount of cash) that are required for an AP Representative to deposit inkind on behalf of an Authorized Participant in exchange for a Creation Unit and the names and quantities of the specified instruments (and/or an amount of cash) that will be transferred in-kind to an AP Representative on behalf of an Authorized Participant in exchange for a Redemption Unit, which will be identical and will be transmitted to each AP Representative before the commencement of trading. 7 An investment adviser to an open-end fund is required to be registered under the Investment Advisers Act of 1940 (the ‘‘Advisers Act’’). As a result, the Adviser and its related personnel will be 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 E:\FR\FM\03JNN1.SGM Continued 03JNN1 34264 Federal Register / Vol. 85, No. 107 / Wednesday, June 3, 2020 / Notices lotter on DSK9F5VC42PROD with NOTICES to Commentary .06 to Rule 8.600–E related to Managed Fund Shares, except that Rule 8.900–E(5) relates to establishment and maintenance of a ‘‘fire wall’’ between the investment adviser and the broker-dealer applicable to an Investment Company’s portfolio and Creation Basket, and not just to the underlying portfolio, as is the case with Managed Fund Shares. The Adviser is not registered as a broker-dealer but is affiliated with a broker-dealer. The Adviser has implemented and will maintain a ‘‘fire wall’’ with respect to such broker-dealer affiliate regarding access to information concerning the composition of and/or changes to a Fund’s portfolio and/or Creation Basket. In the event (a) the Adviser or any sub-adviser becomes registered as a broker-dealer or becomes 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 and maintain a fire wall with respect to its relevant personnel or its broker-dealer affiliate regarding access to information concerning the composition and/or changes to the portfolio and/or Creation Basket. Any person related to the Adviser or the Trust who makes decisions pertaining to a Fund’s portfolio composition or that has access to information regarding a Fund’s portfolio composition or that has access to information regarding a Fund’s portfolio or changes thereto or the Creation Basket will be subject to procedures designed to prevent the use and dissemination of material nonpublic information regarding such portfolio or changes thereto and the Creation Basket. Further, Rule 8.900–E(b)(5) requires that any person or entity, including an AP Representative, custodian, Reporting Authority, distributor, or administrator, who has access to information regarding the Investment Company’s portfolio composition or changes thereto or the Creation Basket, must be subject to procedures reasonably designed to prevent the use and dissemination of material non-public information regarding the applicable Investment Company portfolio or changes thereto or violations, 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. The Funds will also be required to comply with Exchange rules relating to disclosure, including Rule 5.3–E(i). VerDate Sep<11>2014 18:35 Jun 02, 2020 Jkt 250001 the Creation Basket. Moreover, if any such person or entity is registered as a broker-dealer or affiliated with a brokerdealer, such person or entity will erect and maintain a ‘‘fire wall’’ between the person or entity and the broker-dealer with respect to access to information concerning the composition and/or changes to such Investment Company portfolio or Creation Basket. Description of the Funds Gabelli Growth Innovators ETF The Fund’s holdings will conform to the permissible investments as set forth in the Exemptive Application and Exemptive Order and the holdings will be consistent with all requirements in the Exemptive Application and Exemptive Order.8 The Fund’s primary objective is to seek to provide capital appreciation, and current income is a secondary objective. The Fund will primarily invest in common stocks of companies that the Adviser believes are relevant to the Fund’s investment theme of innovation, with assets invested primarily in a broad range of readily marketable equity securities consisting of common stock and preferred stock. Gabelli Financial Services ETF The Fund’s holdings will conform to the permissible investments as set forth in the Exemptive Application and Exemptive Order and the holdings will be consistent with all requirements in the Exemptive Application and Exemptive Order.9 The Fund seeks to provide capital appreciation. The Fund intends to invest in the securities, including common stock and preferred stock, of companies principally engaged in the group of industries comprising the financial services sector. Gabelli Small Cap Growth ETF The Fund’s holdings will conform to the permissible investments as set forth in the Exemptive Application and Exemptive Order and the holdings will be consistent with all requirements in the Exemptive Application and Exemptive Order.10 8 Pursuant to the Exemptive Order, the only permissible investments for a Fund are the following: Exchange-traded funds (‘‘ETFs’’), exchange-traded notes, exchange-listed common stocks, exchange-traded American Depositary Receipts, exchange-traded real estate investment trusts, exchange-traded commodity pools, exchange-traded metals trusts, exchange-traded currency trusts and exchange-traded futures that trade contemporaneously with Fund Shares, as well as cash and cash equivalents (short-term U.S. Treasury securities, government money market funds, and repurchase agreements). 9 See id. 10 See id. PO 00000 Frm 00105 Fmt 4703 Sfmt 4703 The Fund seeks to provide a high level of capital appreciation. The Fund intends to invest primarily in the common stocks of companies which the Adviser believes are likely to have rapid growth in revenues and above average rates of earnings growth. Gabelli Small & Mid Cap ETF The Fund’s holdings will conform to the permissible investments as set forth in the Exemptive Application and Exemptive Order and the holdings will be consistent with all requirements in the Exemptive Application and Exemptive Order.11 The Fund seeks long term capital growth. The Fund intends to invest primarily in equity securities (such as common stock and preferred stock) of companies with small or medium sized market capitalizations. Gabelli Micro Cap ETF The Fund’s holdings will conform to the permissible investments as set forth in the Exemptive Application and Exemptive Order and the holdings will be consistent with all requirements in the Exemptive Application and Exemptive Order.12 The Fund primarily seeks to provide investors with long term capital appreciation. The Fund intends to invest primarily in equity securities of micro-cap companies (as defined by the Fund). The Fund seeks to invest in equity securities including common stocks (including indirect holdings of common stock through depositary receipts) and preferred stocks. Gabelli ESG ETF The Fund’s holdings will conform to the permissible investments as set forth in the Exemptive Application and Exemptive Order and the holdings will be consistent with all requirements in the Exemptive Application and Exemptive Order.13 The Fund’s investment objective is capital appreciation. The Fund seeks to invest primarily in companies that the Adviser believes meet the Fund’s guidelines for social responsibility. The Fund intends to invest in common and preferred stocks that are listed on a national securities exchange or similar market. Gabelli Asset ETF The Fund’s holdings will conform to the permissible investments as set forth in the Exemptive Application and Exemptive Order and the holdings will 11 See id. id. 13 See id. 12 See E:\FR\FM\03JNN1.SGM 03JNN1 Federal Register / Vol. 85, No. 107 / Wednesday, June 3, 2020 / Notices be consistent with all requirements in the Exemptive Application and Exemptive Order.14 The Fund primarily seeks to provide growth of capital, with a secondary goal of providing current income. The Fund intends to invest primarily in common stocks and preferred stocks and may also invest in foreign securities by investing in depositary receipts. Gabelli Equity Income ETF The Fund’s holdings will conform to the permissible investments as set forth in the Exemptive Application and Exemptive Order and the holdings will be consistent with all requirements in the Exemptive Application and Exemptive Order.15 The Fund seeks a high level of total return on its assets with an emphasis on income. The Fund intends to invest in income producing equity securities including common stock and preferred stock. Gabelli Green Energy ETF The Fund’s holdings will conform to the permissible investments as set forth in the Exemptive Application and Exemptive Order and the holdings will be consistent with all requirements in the Exemptive Application and Exemptive Order.16 The Fund seeks total return through current income and capital appreciation. The Fund intends to invest primarily in U.S. equity securities and depositary receipts issued by clean energy companies. Investment Restrictions Each Fund’s holdings will be consistent with all requirements described in the Exemptive Application and Exemptive Order.17 Each Fund’s investments, including derivatives, will be consistent with its investment objective and will not be used to enhance leverage (although certain derivatives and other investments may result in leverage). That is, the Fund’s investments will not be used to seek performance that is the multiple or inverse multiple (e.g., 2X or -3X) of the Fund’s primary broad-based securities benchmark index (as defined in Form N–1A).18 lotter on DSK9F5VC42PROD with NOTICES Creations and Redemptions of Shares Creations and redemptions of Shares will take place as described in Rule 14 See id. id. 16 See id. 17 See id. 18 A Fund’s broad-based securities benchmark index will be identified in a future amendment to the Registration Statement following a Fund’s first full calendar year of performance. 15 See VerDate Sep<11>2014 18:35 Jun 02, 2020 Jkt 250001 8.900–E. Specifically, in connection with the creation and redemption of Creation Units 19 and Redemption Units,20 the delivery or receipt of any portfolio securities in-kind will be required to be effected through a separate confidential brokerage account (a ‘‘Confidential Account’’).21 Authorized Participants (‘‘AP’’), as defined in the applicable Form N–1A filed with the Commission, will sign an agreement with an AP Representative 22 establishing the Confidential Account for the benefit of the AP. AP Representatives will be broker-dealers. An AP must be a Depository Trust Company (‘‘DTC’’) Participant that has executed an authorized participant agreement with the Distributor with respect to the creation and redemption of Creation Units and Redemption Units and formed a Confidential Account for its benefit in accordance with the terms of the Participant Agreement. For purposes of creations or redemptions, all transactions will be effected through the respective AP’s Confidential Account, for the benefit of the AP, without disclosing the identity of such securities to the AP. Each AP Representative will be given, before the commencement of trading each Business Day (as defined below), the Creation Basket (as described below) for that day. This information will permit an AP that has established a Confidential Account with an AP Representative to instruct the AP 19 Rule 8.900–E(c)(6) provides that the term ‘‘Creation Unit’’ means a specified number of Managed Portfolio Shares issued by an Investment Company at the request of an Authorized Participant in return for a designated portfolio of instruments and/or cash. 20 Rule 8.900–E(c)(7) provides that the term ‘‘Redemption Unit’’ means a specified minimum number of Managed Portfolio Shares that may be redeemed to an Investment Company at the request of an Authorized Participant in return for a portfolio of instruments and/or cash. 21 Rule 8.900–E(c)(4) provides that the term ‘‘Confidential Account’’ means an account owned by an Authorized Participant and held with an AP Representative on behalf of the Authorized Participant. The account will be established and governed by contractual agreement between the AP Representative and the Authorized Participant solely for the purposes of creation and redemption, while keeping confidential the Creation Basket constituents of each series of Managed Portfolio Shares, including from the Authorized Participant. The books and records of the Confidential Account will be maintained by the AP Representative on behalf of the Authorized Participant. 22 Rule 8.900–E(c)(3) provides that the term ‘‘AP Representative’’ means an unaffiliated brokerdealer, with which an Authorized Participant has signed an agreement to establish a Confidential Account for the benefit of such Authorized Participant, that will deliver or receive, on behalf of the Authorized Participant, all consideration to or from the Investment Company in a creation or redemption. An AP Representative will not be permitted to disclose the Creation Basket to any person, including the Authorized Participants. PO 00000 Frm 00106 Fmt 4703 Sfmt 4703 34265 Representative to buy and sell positions in the portfolio securities to permit creation and redemption of Creation Units and Redemption Units. Shares of each Fund will initially be issued and redeemed in Creation Units and Redemption Units of 5,000 or more Shares, subject to change at the Adviser’s discretion. The Funds will offer and redeem Creation Units and Redemption Units on a continuous basis at the net asset value (‘‘NAV’’) per Share next determined after receipt of an order in proper form. The NAV per Share of each Fund will be determined as of the close of regular trading on the Exchange on each day that the Exchange is open (a ‘‘Business Day’’). The Funds will sell and redeem Creation Units and Redemption Units only on Business Days. In order to keep costs low and permit each Fund to be as fully invested as possible, Shares will be purchased and redeemed in Creation Units and Redemption Units and generally on an in-kind basis. Accordingly, except where the purchase or redemption will include cash under the circumstances described in the Exemptive Application, APs will be required to purchase Creation Units by making an in-kind deposit of specified instruments (‘‘Deposit Instruments’’), and APs redeeming their Shares will receive an in-kind transfer of specified instruments (‘‘Redemption Instruments’’) through the AP Representative in their Confidential Account.23 On any given Business Day, the names and quantities of the instruments that constitute the Deposit Instruments and the names and quantities of the instruments that constitute the Redemption Instruments will be identical, and these instruments may be referred to, in the case of either a purchase or a redemption, as the ‘‘Creation Basket.’’ Placement of Purchase Orders Each Fund will issue Shares through the Distributor on a continuous basis at NAV. The Exchange represents that the issuance of Shares will operate in a manner substantially similar to that of other ETFs. Each Fund will issue Shares only at the NAV per Share next determined after an order in proper form is received. The Distributor will furnish acknowledgements to those placing 23 According to the Registration Statement, the Funds must comply with the federal securities laws in accepting Deposit Instruments and satisfying redemptions with Redemption Instruments, including that the Deposit Instruments and Redemption Instruments are sold in transactions that would be exempt from registration under the 1933 Act. E:\FR\FM\03JNN1.SGM 03JNN1 34266 Federal Register / Vol. 85, No. 107 / Wednesday, June 3, 2020 / Notices lotter on DSK9F5VC42PROD with NOTICES such orders that the orders have been accepted, but the Distributor may reject any order which is not submitted in proper form, as described in a Fund’s prospectus or SAI. The NAV of each Fund is expected to be determined once each Business Day at a time determined by the Trust’s Board of Trustees, currently anticipated to be as of the close of the regular trading session on the NYSE (ordinarily 4:00 p.m. E.T.) (the ‘‘Valuation Time’’). Each Fund will establish a cut-off time (‘‘Order Cut-Off Time’’) for purchase orders in proper form. To initiate a purchase of Shares, an AP must submit to the Distributor an irrevocable order to purchase such Shares after the most recent prior Valuation Time. Purchases of Shares will be settled inkind and/or cash for an amount equal to the applicable NAV per Share purchased plus applicable transaction fees. Generally, all orders to purchase Creation Units must be received by the Distributor no later than the end of the Core Trading Session on the date such order is placed (‘‘Transmittal Date’’) in order for the purchaser to receive the NAV per Share determined on the Transmittal Date. Authorized Participant Redemption The Shares may be redeemed to a Fund in Redemption Unit size or multiples thereof as described below. Redemption orders of Redemption Units must be placed by or through an AP (‘‘AP Redemption Order’’). Each Fund will establish an Order Cut-Off Time for redemption orders of Redemption Units in proper form. Redemption Units of a Fund will be redeemable at their NAV per Share next determined after receipt of a request for redemption by the Trust in the manner specified below before the Order Cut-Off Time. To initiate an AP Redemption Order, an AP must submit to the Distributor an irrevocable order to redeem such Redemption Unit after the most recent prior Valuation Time, but not later than the Order CutOff Time. In the case of a redemption, the AP would enter into an irrevocable redemption order, and then instruct the AP Representative to sell the underlying basket of securities that it will receive in the redemption. As with the purchase of securities, the AP Representative will use methods, such as breaking the transaction into multiple transactions and transacting in multiple marketplaces, to avoid revealing the composition of the Creation Basket. Redemptions will occur primarily inkind, although redemption payments may also be made partly or wholly in VerDate Sep<11>2014 18:35 Jun 02, 2020 Jkt 250001 cash. The Participant Agreement signed by each AP will require establishment of a Confidential Account to receive distributions of securities in-kind upon redemption. Each AP will be required to open a Confidential Account with an AP Representative in order to facilitate orderly processing of redemptions. Net Asset Value The NAV will be calculated separately for the Shares of each Fund on each Business Day. Each Fund’s NAV is determined as of the close of regular trading on the NYSE, normally 4:00 p.m., Eastern Time. The NAV of each Fund is computed by dividing the value of the applicable Fund’s net assets, i.e., the value of its securities and other assets less its liabilities, including expenses payable or accrued by the total number of Shares outstanding at the time the determination is made. Equity securities listed or traded on a national securities exchange are valued at the last quoted sale or a market’s official closing price at the close of the exchange’s or other market’s regular trading hours, as of or prior to the time and day as of which such value is being determined. Portfolio securities traded on more than one national securities exchange or market are valued according to the broadest and most representative market as determined by the Adviser. Information regarding a Fund’s NAV and how often Shares of a Fund traded on the Exchange at a price above (i.e., at a premium) or below (i.e., at a discount) the NAV of a Fund will be posted to a Fund’s website when it becomes available. Availability of Information The Funds’ website, which will be publicly available prior to the listing and trading of Shares, will include a form of the prospectus for each Fund that may be downloaded. The Funds’ website will include additional quantitative information updated on a daily basis, including, for each Fund, the prior Business Day’s NAV, market closing price or mid-point of the bid/ask spread at the time of calculation of such NAV (the ‘‘Bid/Ask Price’’),24 and a calculation of the premium and discount of the market closing price or Bid/Ask Price against the NAV. The website and information will be publicly available at no charge. 24 The Bid/Ask Price of a Fund’s Shares is determined using the mid-point between the current national best bid and offer at the time of calculation of such Fund’s NAV. The records relating to Bid/Ask Prices will be retained by the Funds or their service providers. PO 00000 Frm 00107 Fmt 4703 Sfmt 4703 Form N–PORT requires reporting of a fund’s complete portfolio holdings on a position-by-position basis on a quarterly basis within 60 days after fiscal quarter end. Investors can obtain a fund’s SAI, its shareholder reports, its Form N–CSR, filed twice a year, and its Form N–CEN, filed annually. Each Fund’s SAI and shareholder reports are available free upon request from the Investment Company, and those documents and the Form N–PORT, Form N–CSR, and Form N–CEN may be viewed onscreen or downloaded from the Commission’s website 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. In addition, the Verified Intraday Indicative Value (‘‘VIIV’’), as defined in Rule 8.900–E(c)(2),25 will be widely disseminated by the Reporting Authority and/or one or more major market data vendors in one second intervals during the Exchange’s Core Trading Session. Dissemination of the VIIV With respect to trading of the Shares, the ability of market participants to buy and sell Shares at prices near the VIIV is dependent upon their assessment that the VIIV is a reliable, indicative realtime value for a Fund’s underlying holdings. Market participants are expected to accept the VIIV as a reliable, indicative real-time value because (1) the VIIV will be calculated and disseminated based on a Fund’s actual portfolio holdings, (2) the securities in which a Fund plans to invest are generally highly liquid and actively traded and trade at the same time as the Funds and therefore generally have accurate real time pricing available, and (3) market participants will have a daily opportunity to evaluate whether the VIIV at or near the close of trading is indeed predictive of the actual NAV. 25 Rule 8.900–E(c)(2) provides that the term ‘‘Verified Intraday Indicative Value’’ is the indicative value of a Managed Portfolio Share based on all of the holdings of a series of Managed Portfolio Shares as of the close of business on the prior business day and, for corporate actions, based on the applicable holdings as of the opening of business on the current business day, priced and disseminated in one second intervals during the Core Trading Session by the Reporting Authority. E:\FR\FM\03JNN1.SGM 03JNN1 Federal Register / Vol. 85, No. 107 / Wednesday, June 3, 2020 / Notices Information regarding the VIIV is disseminated every second throughout each trading day by the Exchange or by market data vendors or other information providers. The VIIV is based on the current market value of the securities in a Fund’s portfolio that day. The methodology for calculating the VIIV is available on the Funds’ website. The VIIV is intended to provide investors and other market participants with a highly correlated per Share value of the underlying portfolio that can be compared to the current market price. Therefore, under normal circumstances the VIIV is effectively a ‘‘real-time’’ update of a Fund’s NAV, which is computed only once a day. 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 a Fund.26 Trading in Shares of a Fund will be halted if the circuit breaker parameters in Rule 7.12–E 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. Trading in the Shares will be subject to Rule 8.900–E(d)(2)(C), which sets forth circumstances under which Shares of a Fund will be halted. Specifically, Rule 8.900–E(d)(2)(C)(i) provides that the Exchange may consider all relevant factors in exercising its discretion to halt trading in a series of Managed Portfolio Shares. Trading may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the series of Managed Portfolio Shares inadvisable. These may include: (a) The extent to which trading is not occurring in the securities and/or the financial instruments composing the portfolio; or (b) whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present.27 lotter on DSK9F5VC42PROD with NOTICES 26 See Rule 7.12–E. 27 The Exemptive Application provides that the Investment Company or their agent will request that the Exchange halt trading in the applicable series of Managed Portfolio Shares where: (i) The intraday indicative values calculated by the calculation engines differ by more than 25 basis points for 60 seconds in connection with pricing of the Verified Intraday Indicative Value; or (ii) holdings representing 10% or more of a series of Managed Portfolio Shares’ portfolio have become subject to a trading halt or otherwise do not have readily available market quotations. Any such requests will be one of many factors considered in order to determine whether to halt trading in a series of Managed Portfolio Shares and the Exchange retains sole discretion in determining whether trading should be halted. VerDate Sep<11>2014 18:35 Jun 02, 2020 Jkt 250001 Rule 8.900–E(d)(2)(C)(ii) provides that, if the Exchange becomes aware that: (i) The Verified Intraday Indicative Value of a series of Managed Portfolio Shares is not being calculated or disseminated in one second intervals, as required; (ii) the net asset value with respect to a series of Managed Portfolio Shares is not disseminated to all market participants at the same time; (iii) the holdings of a series of Managed Portfolio Shares are not made available on at least a quarterly basis as required under the 1940 Act; or (iv) such holdings are not made available to all market participants at the same time (except as otherwise permitted under the currently applicable exemptive order or no-action relief granted by the Commission or Commission staff to the Investment Company with respect to the series of Managed Portfolio Shares), it will halt trading in such series until such time as the Verified Intraday Indicative Value, the net asset value, or the holdings are available, as required. 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 in all trading sessions in accordance with Rule 7.34–E(a). As provided in Rule 7.6–E, the minimum price variation (‘‘MPV’’) for quoting and entry of orders in equity securities traded on the NYSE Arca Marketplace is $0.01, with the exception of securities that are priced less than $1.00, for which the MPV for order entry is $0.0001. The Shares will conform to the initial and continued listing criteria under Rule 8.900–E, as well as all terms in the Exemptive Order. The Exchange will obtain a representation from the issuer of the Shares of each Fund that the NAV per Share of each Fund will be calculated daily and will be made available to all market participants at the same time. Surveillance The Exchange believes that its surveillance procedures are adequate to properly monitor the trading of Shares on the Exchange during all trading sessions and to deter and detect violations of Exchange rules and the applicable federal securities laws. Trading of Shares through the Exchange will be subject to the Exchange’s surveillance procedures for derivative products. As part of these surveillance procedures and consistent with Rule 8.900–E(b)(3), the Adviser will upon request make available to the Exchange PO 00000 Frm 00108 Fmt 4703 Sfmt 4703 34267 and/or FINRA, on behalf of the Exchange, the daily portfolio holdings of a Fund. The issuer of the Shares of each Fund will be required to represent to the Exchange that it will advise the Exchange of any failure by a Fund to comply with the continued listing requirements, and, pursuant to its obligations under Section 19(g)(1) of the Exchange Act, the Exchange will surveil for compliance with the continued listing requirements. If a Fund is not in compliance with the applicable listing requirements, the Exchange will commence delisting procedures under Exchange Rule 5.5–E(m). FINRA, on behalf of the Exchange, or the regulatory staff of the Exchange, or both, will communicate as needed regarding trading in the Shares and certain exchange-traded instruments with other markets and other entities that are members of the Intermarket Surveillance Group (‘‘ISG’’), and FINRA, on behalf of the Exchange, or the regulatory staff of the Exchange, or both, may obtain trading information regarding trading such securities from such markets and other entities. In addition, the Exchange may obtain information regarding trading in the Shares and certain exchange-traded instruments from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement. In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees. Information Bulletin Prior to the commencement of trading, the Exchange will inform its Equity Trading Permit (‘‘ETP’’) Holders in an Information Bulletin (‘‘Bulletin’’) of the special characteristics and risks associated with trading the Shares. Specifically, the Bulletin will discuss the following: (1) The procedures for purchases and redemptions of Shares; (2) Rule 9.2–E(a), which imposes a duty of due diligence on its ETP Holders to learn the essential facts relating to every customer prior to trading the Shares; (3) how information regarding the VIIV is disseminated; (4) the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; (5) trading information; and (6) that the portfolio holdings of the Shares are not disclosed on a daily basis. In addition, the Bulletin will reference that the Funds are subject to various fees and expenses described in the Registration Statement. The Bulletin E:\FR\FM\03JNN1.SGM 03JNN1 34268 Federal Register / Vol. 85, No. 107 / Wednesday, June 3, 2020 / Notices lotter on DSK9F5VC42PROD with NOTICES 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 Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,28 in general, and furthers the objectives of Section 6(b)(5) of the Act,29 in particular, in that it is 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 a national market system, and, in general, to protect investors and the public interest. The Exchange believes that this proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Funds would meet each of the rules relating to listing and trading of Managed Portfolio Shares. To the extent that a Fund is not in compliance with such rules, the Exchange would either prevent the Fund from listing and trading on the Exchange or commence delisting procedures under Rule 8.900–E(d)(2)(B). Specifically, the Exchange would consider the suspension of trading, and commence delisting proceedings under Rule 8.900–E(d)(2)(B), of a Fund under any of the following circumstances: (a) If, following the initial twelve-month period after commencement of trading on the Exchange, there are fewer than 50 beneficial holders of the Fund; (b) if the Exchange has halted trading in a Fund because the VIIV is interrupted pursuant to Rule 8.900–E(d)(2)(C)(ii) and such interruption persists past the trading day in which it occurred or is no longer available; (c) if the Exchange has halted trading in a Fund because the net asset value with respect to such Fund is not disseminated to all market participants at the same time, the holdings of such Fund are not made available on at least a quarterly basis as required under the 1940 Act, or such holdings are not made available to all market participants at the same time pursuant to Rule 8.900– E(d)(2)(C)(ii) and such issue persists past the trading day in which it occurred; (d) if the Exchange has halted trading in Shares of a Fund pursuant to Rule 8.900–E(d)(2)(C)(i) and such issue persists past the trading day in which it occurred; (e) if a Fund has failed to file any filings required by the Commission 28 15 29 15 U.S.C. 78f(b). U.S.C. 78f(b)(5). VerDate Sep<11>2014 18:35 Jun 02, 2020 Jkt 250001 or if the Exchange is aware that a Fund is not in compliance with the conditions of any currently applicable exemptive order or no-action relief granted by the Commission or Commission staff with respect to the Fund; (f) if any of the continued listing requirements set forth in Rule 8.900–E are not continuously maintained; (g) if any of the statements of representations regarding (a) the description of the portfolio, (b) limitations on portfolio holdings, or (c) the applicability of Exchange listing rules as specified herein to permit the listing and trading of a Fund, are not continuously maintained; or (h) if such other event shall occur or condition exists which, in the opinion of the Exchange, makes further dealings on the Exchange inadvisable. As discussed above, the Adviser is not registered as a broker-dealer but is affiliated with a broker-dealer and has implemented and will maintain a ‘‘fire wall’’ with respect to such affiliate broker-dealer regarding access to information concerning the composition and/or changes to a Fund’s portfolio and Creation Basket. In the event that (a) the Adviser becomes registered as a brokerdealer or becomes newly affiliated with a broker-dealer, or (b) any new adviser or sub-adviser is a registered brokerdealer or becomes affiliated with a broker-dealer, the Adviser will implement and maintain a fire wall with respect to its relevant personnel or its broker-dealer affiliate regarding access to information concerning the composition and/or changes to the portfolio and/or Creation Basket. Any person related to the Adviser or the Trust who makes decisions pertaining to a Fund’s portfolio composition or that has access to information regarding a Fund’s portfolio or changes thereto or the Creation Basket will be subject to procedures designed to prevent the use and dissemination of material nonpublic information regarding such portfolio or changes thereto and the Creation Basket. In addition, Rule 8.900–E(b)(5) requires that any person or entity, including an AP Representative, custodian, Reporting Authority, distributor, or administrator, who has access to non-public information regarding the Investment Company’s portfolio composition or changes thereto or the Creation Basket, must be subject to procedures designed to prevent the use and dissemination of material nonpublic information regarding the applicable Investment Company portfolio or changes thereto or the Creation Basket. Moreover, if any such person or entity is registered as a brokerdealer or affiliated with a broker-dealer, PO 00000 Frm 00109 Fmt 4703 Sfmt 4703 such person or entity will erect and maintain a ‘‘fire wall’’ between the person or entity and the broker-dealer with respect to access to information concerning the composition and/or changes to such Investment Company portfolio or Creation Basket. Any person or entity who has access to information regarding a Fund’s portfolio composition or changes thereto or the Creation Basket will be subject to procedures designed to prevent the use and dissemination of material nonpublic information regarding the portfolio or changes thereto or the Creation Basket. The Exchange further believes that Rule 8.900–E is designed to prevent fraudulent and manipulative acts and practices related to the listing and trading of Shares of the Funds because it provides meaningful requirements about both the data that will be made publicly available about the Shares, as well as the information that will only be available to certain parties and the controls on such information. Specifically, the Exchange believes that the requirements related to information protection set forth in Rule 8.900– E(b)(5) will act as a safeguard against misuse and improper dissemination of information related to a Fund’s portfolio composition, the Creation Basket, or changes thereto. The requirement that any person or entity implement procedures to prevent the use and dissemination of material non-public information regarding the portfolio or Creation Basket will act to prevent any individual or entity from sharing such information externally and the internal ‘‘fire wall’’ requirements applicable where an entity is a registered brokerdealer or affiliated with a broker-dealer will act to make sure that no entity will be able to misuse the data for their own purposes. Accordingly, the Exchange believes that this proposal is designed to prevent fraudulent and manipulative acts and practices. The Exchange further believes that the proposal is designed to prevent fraudulent and manipulative acts and practices related to the listing and trading of Shares of the Funds and to promote just and equitable principles of trade and to protect investors and the public interest because the Exchange would halt trading under certain circumstances under which trading in the Shares of a Fund may be inadvisable. Specifically, trading in the Shares will be subject to Rule 8.900– E(d)(2)(C)(i), which provides that the Exchange may consider all relevant factors in exercising its discretion to halt trading in a Fund. Trading may be halted because of market conditions or E:\FR\FM\03JNN1.SGM 03JNN1 lotter on DSK9F5VC42PROD with NOTICES Federal Register / Vol. 85, No. 107 / Wednesday, June 3, 2020 / Notices for reasons that, in the view of the Exchange, make trading in the series of Managed Portfolio Shares inadvisable. These may include: (a) The extent to which trading is not occurring in the securities and/or the financial instruments composing the portfolio; or (b) whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present.30 Additionally, trading in the Shares will be subject to Rule 8.900–E(d)(2)(C)(ii), which provides that the Exchange would halt trading where the Exchange becomes aware that: (a) The VIIV of a series of Managed Portfolio Shares is not being calculated or disseminated in one second intervals, as required; (b) the net asset value with respect to a series of Managed Portfolio Shares is not disseminated to all market participants at the same time; (c) the holdings of a series of Managed Portfolio Shares are not made available on at least a quarterly basis as required under the 1940 Act; or (d) such holdings are not made available to all market participants at the same time (except as otherwise permitted under the currently applicable exemptive order or no-action relief granted by the Commission or Commission staff to the Investment Company with respect to the series of Managed Portfolio Shares). The Exchange would halt trading in such Shares until such time as the VIIV, the NAV, or the holdings are available, as required. With respect to the proposed listing and trading of Shares of the Funds, 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 Rule 8.900–E.31 Each Fund’s holdings will conform to the permissible investments as set forth in the Exemptive Application and Exemptive Order.32 As noted above, FINRA, on behalf of the Exchange, or the regulatory staff of the Exchange, or both, will communicate as needed regarding trading in the Shares and the underlying exchange-traded instruments with other markets and other entities that are members of the ISG, and FINRA, on behalf of the Exchange, or the regulatory staff of the Exchange, or both, may obtain trading information 30 See supra note 27. Exchange represents that, for initial and/ or continued listing, each Fund will be in compliance with Rule 10A–3 under the Act. See 17 CFR 240.10A–3. 32 See supra note 8. 31 The VerDate Sep<11>2014 18:35 Jun 02, 2020 Jkt 250001 regarding trading such instruments from such markets and other entities. In addition, the Exchange may obtain information regarding trading in the Shares and the underlying exchangetraded instruments from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement. With respect to trading of Shares of the Funds, the ability of market participants to buy and sell Shares at prices near the VIIV is dependent upon their assessment that the VIIV is a reliable, indicative real-time value for a Fund’s underlying holdings. Market participants are expected to accept the VIIV as a reliable, indicative real-time value because (1) the VIIV will be calculated and disseminated based on a Fund’s actual portfolio holdings, (2) the securities in which the Funds plan to invest are generally highly liquid and actively traded and trade at the same time as the Funds and therefore generally have accurate real time pricing available, and (3) market participants will have a daily opportunity to evaluate whether the VIIV at or near the close of trading is indeed predictive of the actual NAV. 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 that the NAV per Share of the Funds will be calculated daily and that the NAV will be made available to all market participants at the same time. Investors can also obtain a Fund’s SAI, its shareholder reports, its Form N–CSR (filed twice a year), and its Form N–CEN (filed annually). A Fund’s SAI and shareholder reports will be available free upon request from the applicable Fund, and those documents and the Form N–PORT, Form N–CSR, and Form N–CEN may be viewed onscreen or downloaded from the Commission’s website at www.sec.gov. In addition, a large amount of information will be publicly available regarding the Funds and the Shares, thereby promoting market transparency. Quotation and last sale information for the Shares will be available via the CTA high-speed line. Information regarding the VIIV will be widely disseminated in one second intervals throughout the Core Trading Session by the Reporting Authority and/or one or more major market data vendors. The website for the Funds will include a prospectus for the Funds that may be downloaded, and additional data relating to NAV and other applicable quantitative information, updated on a daily basis. Moreover, prior to the commencement PO 00000 Frm 00110 Fmt 4703 Sfmt 4703 34269 of trading, the Exchange will inform its members in an Information Bulletin of the special characteristics and risks associated with trading the Shares. In addition, as noted above, investors will have ready access to the VIIV, and quotation and last sale information for the Shares. The Shares will conform to the initial and continued listing criteria under Rule 8.900–E. Each Fund’s investments, including derivatives, will be consistent with its investment objective and will not be used to enhance leverage (although certain derivatives and other investments may result in leverage). That is, the Fund’s investments will not be used to seek performance that is the multiple or inverse multiple (e.g., 2X or ¥3X) of the Fund’s primary broad-based securities benchmark index (as defined in Form N–1A). The Exchange also believes that 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 actively-managed exchange-traded products that will enhance competition among market participants, to the benefit of investors and the marketplace. As noted above, the Exchange has in place surveillance procedures relating to trading in the Shares and may obtain information via ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement. In addition, as noted above, investors will have ready access to information regarding the VIIV and quotation and last sale information for the Shares. 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 purposes of the Act. The Exchange believes the proposed rule change would permit the listing and trading of additional actively-managed exchange-traded products, thereby promoting competition among exchange-traded products to the benefit of investors and the marketplace. E:\FR\FM\03JNN1.SGM 03JNN1 34270 Federal Register / Vol. 85, No. 107 / Wednesday, June 3, 2020 / Notices 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 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– NYSEArca–2020–48 on the subject line. lotter on DSK9F5VC42PROD with NOTICES 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–2020–48. 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 18:35 Jun 02, 2020 Jkt 250001 For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.33 J. Matthew DeLesDernier, Assistant Secretary. [FR Doc. 2020–11919 Filed 6–2–20; 8:45 am] 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: VerDate Sep<11>2014 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–NYSEArca–2020–48 and should be submitted on or before June 24, 2020. BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–88968; File No. SR– CboeBZX–2020–042] Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of Filing of a Proposed Rule Change To Accommodate Exchange Listing and Trading of Options-Linked Securities May 28, 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 May 15, 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. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change Cboe BZX Exchange, Inc. (the ‘‘Exchange’’ or ‘‘BZX’’) proposes to amend Exchange Rule 14.11(d) (‘‘Securities Linked to the Performance of Indexes and Commodities (Including 33 17 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 1 15 PO 00000 Frm 00111 Fmt 4703 Sfmt 4703 Currencies)’’) to accommodate Exchange listing and trading of Options-Linked Securities. 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 Exchange Rule 14.11(d) provides for Exchange listing and trading of Securities Linked to the Performance of Indexes and Commodities (Including Currencies) (‘‘Linked Securities’’).3 The Exchange proposes to amend Rule 14.11(d) to add Options-Linked Securities to the type of Linked Securities permitted to list and trade on the Exchange. The proposed amendment would include Options-Linked Securities in the list of Linked-Securities set forth in paragraph (d) of Rule 14.11. Additionally, the proposal would provide that the payment at maturity with respect to Options-Linked Securities is based on the performance of U.S. exchange-traded options on any one or combination of the following: (a) Index Fund Shares; (b) Managed Fund Shares, (c) Exchange-Traded Fund Shares; (d) Linked Securities; (e) securities defined in Rule 14.11; (f) the S&P 100 Index, the S&P 500 Index, the Nasdaq 100 Index, the Dow Jones Industrial Average, the MSCI EAFE Index, the MSCI Emerging Markets 3 Rule 14.11(d) currently accommodates Exchange listing and trading of Equity Index-Linked Securities, Commodity-Linked Securities, Fixed Income Index-Linked Securities, Futures-Linked Securities, and Multifactor Index-Linked Securities (collectively referred to as ‘‘Linked Securities’’). E:\FR\FM\03JNN1.SGM 03JNN1

Agencies

[Federal Register Volume 85, Number 107 (Wednesday, June 3, 2020)]
[Notices]
[Pages 34262-34270]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-11919]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-88970; File No. SR-NYSEArca-2020-48]


Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
of Proposed Rule Change To List and Trade Shares of Gabelli ETFs Under 
Rule 8.900-E, Managed Portfolio Shares

May 28, 2020.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 
1934

[[Page 34263]]

(``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby given 
that, on May 15, 2020, NYSE Arca, Inc. (``NYSE Arca'' or ``Exchange'') 
filed with the Securities and Exchange Commission (``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 Substance 
of the Proposed Rule Change

    The Exchange proposes to list and trade shares of the following 
under Rule 8.900-E (Managed Portfolio Shares): Gabelli Growth 
Innovators ETF, Gabelli Financial Services ETF, Gabelli Small Cap 
Growth ETF, Gabelli Small & Mid Cap ETF, Gabelli Micro Cap ETF, Gabelli 
ESG ETF, Gabelli Asset ETF, Gabelli Equity Income ETF, and Gabelli 
Green Energy ETF. The proposed change is available on the Exchange's 
website 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 the 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange has added new Rule 8.900-E for the purpose of 
permitting the listing and trading, or trading pursuant to unlisted 
trading privileges (``UTP''), of Managed Portfolio Shares, which are 
securities issued by an actively managed open-end investment management 
company.\4\ Rule 8.900-E(b)(1) requires the Exchange to file separate 
proposals under Section 19(b) of the Act before listing and trading any 
series of Managed Portfolio Shares on the Exchange. Therefore, the 
Exchange is submitting this proposal in order to list and trade Managed 
Portfolio Shares of the Gabelli Growth Innovators ETF, Gabelli 
Financial Services ETF, Gabelli Small Cap Growth ETF, Gabelli Small & 
Mid Cap ETF, Gabelli Micro Cap ETF, Gabelli ESG ETF, Gabelli Asset ETF, 
Gabelli Equity Income ETF, and Gabelli Green Energy ETF (each a 
``Fund'' and, collectively, the ``Funds'') under Rule 8.900-E.
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    \4\ See Securities Exchange Act Release No. 88648 (April 15, 
2020), 85 FR 22200 (April 21, 2020). Rule 8.900-E(c)(1) provides 
that the term ``Managed Portfolio Share'' means a security that (a) 
represents an interest in an investment company registered under the 
Investment Company Act of 1940 (``Investment Company'') organized as 
an open-end management investment company that invests in a 
portfolio of securities selected by the Investment Company's 
investment adviser consistent with the Investment Company's 
investment objectives and policies; (b) is issued in a Creation 
Unit, or multiples thereof, in return for a designated portfolio of 
instruments (and/or an amount of cash) with a value equal to the 
next determined net asset value and delivered to the Authorized 
Participant (as defined in the Investment Company's Form N-1A filed 
with the Commission) through a Confidential Account; (c) when 
aggregated into a Redemption Unit, or multiples thereof, may be 
redeemed for a designated portfolio of instruments (and/or an amount 
of cash) with a value equal to the next determined net asset value 
delivered to the Confidential Account for the benefit of the 
Authorized Participant; and (d) the portfolio holdings for which are 
disclosed within at least 60 days following the end of every fiscal 
quarter.
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Description of the Funds and the Trust
    The shares of each Fund (the ``Shares'') will be issued by the 
Gabelli ETFs Trust (the ``Trust''), a statutory trust organized under 
the laws of the State of Delaware and registered with the Commission as 
an open-end management investment company.\5\ The investment adviser to 
each Fund will be Gabelli Funds, LLC (the ``Adviser''). G.distributors, 
LLC (the ``Distributor'') will serve as the distributor of each of the 
Funds' Shares. All statements and representations made in this filing 
regarding (a) the description of the portfolio or reference assets, (b) 
limitations on portfolio holdings or reference assets, or (c) the 
applicability of Exchange rules shall constitute continued listing 
requirements for listing the Shares on the Exchange, as provided under 
Rule 8.900-E(b)(1).
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    \5\ The Trust is registered under the 1940 Act. On May 8, 2020, 
the Trust filed a registration statement on Form N-1A under the 
Securities Act of 1933 and the 1940 Act for the Funds (File No. 812-
15036) (``Registration Statement''). The Commission issued an order 
granting exemptive relief to the Trust (``Exemptive Order'') under 
the 1940 Act on December 3, 2019 (Investment Company Act Release No. 
33708). The Exemptive Order was granted in response to the Trust's 
application for exemptive relief (the ``Exemptive Application'') 
(File No. 812-15036). The description of the operation of the Trust 
and the Funds herein is based, in part, on the Registration 
Statement.
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    Rule 8.900-E(b)(4) provides that, if the investment adviser to the 
Investment Company issuing Managed Portfolio Shares is registered as a 
broker-dealer or is affiliated with a broker-dealer, such investment 
adviser will erect and maintain a ``fire wall'' between the investment 
adviser and personnel of the broker-dealer or broker-dealer affiliate, 
as applicable, with respect to access to information concerning the 
composition and/or changes to such Investment Company portfolio and/or 
the Creation Basket.\6\ Any person related to the investment adviser or 
Investment Company who makes decisions pertaining to the Investment 
Company's portfolio composition or has access to information regarding 
the Investment Company's portfolio composition or changes thereto or 
the Creation Basket must be subject to procedures designed to prevent 
the use and dissemination of material non-public information regarding 
the applicable Investment Company portfolio or changes thereto or the 
Creation Basket.
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    \6\ Rule 8.900-E(c)(5) provides that the term ``Creation 
Basket'' means, on any given business day, the names and quantities 
of the specified instruments (and/or an amount of cash) that are 
required for an AP Representative to deposit in-kind on behalf of an 
Authorized Participant in exchange for a Creation Unit and the names 
and quantities of the specified instruments (and/or an amount of 
cash) that will be transferred in-kind to an AP Representative on 
behalf of an Authorized Participant in exchange for a Redemption 
Unit, which will be identical and will be transmitted to each AP 
Representative before the commencement of trading.
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    Rule 8.900-E(5) is similar to Commentary .03(a)(i) and (iii) to 
Rule 5.2-E(j)(3); however, Commentary .03(a) 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.\7\ 
Rule 8.900-E(5) is also similar

[[Page 34264]]

to Commentary .06 to Rule 8.600-E related to Managed Fund Shares, 
except that Rule 8.900-E(5) relates to establishment and maintenance of 
a ``fire wall'' between the investment adviser and the broker-dealer 
applicable to an Investment Company's portfolio and Creation Basket, 
and not just to the underlying portfolio, as is the case with Managed 
Fund Shares. The Adviser is not registered as a broker-dealer but is 
affiliated with a broker-dealer. The Adviser has implemented and will 
maintain a ``fire wall'' with respect to such broker-dealer affiliate 
regarding access to information concerning the composition of and/or 
changes to a Fund's portfolio and/or Creation Basket.
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    \7\ An investment adviser to an open-end fund is required to be 
registered under the Investment Advisers Act of 1940 (the ``Advisers 
Act''). As a result, the Adviser and its related personnel will be 
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 
violations, 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. The Funds will also be required to comply 
with Exchange rules relating to disclosure, including Rule 5.3-E(i).
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    In the event (a) the Adviser or any sub-adviser becomes registered 
as a broker-dealer or becomes 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 and maintain 
a fire wall with respect to its relevant personnel or its broker-dealer 
affiliate regarding access to information concerning the composition 
and/or changes to the portfolio and/or Creation Basket. Any person 
related to the Adviser or the Trust who makes decisions pertaining to a 
Fund's portfolio composition or that has access to information 
regarding a Fund's portfolio composition or that has access to 
information regarding a Fund's portfolio or changes thereto or the 
Creation Basket will be subject to procedures designed to prevent the 
use and dissemination of material non-public information regarding such 
portfolio or changes thereto and the Creation Basket.
    Further, Rule 8.900-E(b)(5) requires that any person or entity, 
including an AP Representative, custodian, Reporting Authority, 
distributor, or administrator, who has access to information regarding 
the Investment Company's portfolio composition or changes thereto or 
the Creation Basket, must be subject to procedures reasonably designed 
to prevent the use and dissemination of material non-public information 
regarding the applicable Investment Company portfolio or changes 
thereto or the Creation Basket. Moreover, if any such person or entity 
is registered as a broker-dealer or affiliated with a broker-dealer, 
such person or entity will erect and maintain a ``fire wall'' between 
the person or entity and the broker-dealer with respect to access to 
information concerning the composition and/or changes to such 
Investment Company portfolio or Creation Basket.
Description of the Funds
Gabelli Growth Innovators ETF
    The Fund's holdings will conform to the permissible investments as 
set forth in the Exemptive Application and Exemptive Order and the 
holdings will be consistent with all requirements in the Exemptive 
Application and Exemptive Order.\8\
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    \8\ Pursuant to the Exemptive Order, the only permissible 
investments for a Fund are the following: Exchange-traded funds 
(``ETFs''), exchange-traded notes, exchange-listed common stocks, 
exchange-traded American Depositary Receipts, exchange-traded real 
estate investment trusts, exchange-traded commodity pools, exchange-
traded metals trusts, exchange-traded currency trusts and exchange-
traded futures that trade contemporaneously with Fund Shares, as 
well as cash and cash equivalents (short-term U.S. Treasury 
securities, government money market funds, and repurchase 
agreements).
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    The Fund's primary objective is to seek to provide capital 
appreciation, and current income is a secondary objective. The Fund 
will primarily invest in common stocks of companies that the Adviser 
believes are relevant to the Fund's investment theme of innovation, 
with assets invested primarily in a broad range of readily marketable 
equity securities consisting of common stock and preferred stock.
Gabelli Financial Services ETF
    The Fund's holdings will conform to the permissible investments as 
set forth in the Exemptive Application and Exemptive Order and the 
holdings will be consistent with all requirements in the Exemptive 
Application and Exemptive Order.\9\
---------------------------------------------------------------------------

    \9\ See id.
---------------------------------------------------------------------------

    The Fund seeks to provide capital appreciation. The Fund intends to 
invest in the securities, including common stock and preferred stock, 
of companies principally engaged in the group of industries comprising 
the financial services sector.
Gabelli Small Cap Growth ETF
    The Fund's holdings will conform to the permissible investments as 
set forth in the Exemptive Application and Exemptive Order and the 
holdings will be consistent with all requirements in the Exemptive 
Application and Exemptive Order.\10\
---------------------------------------------------------------------------

    \10\ See id.
---------------------------------------------------------------------------

    The Fund seeks to provide a high level of capital appreciation. The 
Fund intends to invest primarily in the common stocks of companies 
which the Adviser believes are likely to have rapid growth in revenues 
and above average rates of earnings growth.
Gabelli Small & Mid Cap ETF
    The Fund's holdings will conform to the permissible investments as 
set forth in the Exemptive Application and Exemptive Order and the 
holdings will be consistent with all requirements in the Exemptive 
Application and Exemptive Order.\11\
---------------------------------------------------------------------------

    \11\ See id.
---------------------------------------------------------------------------

    The Fund seeks long term capital growth. The Fund intends to invest 
primarily in equity securities (such as common stock and preferred 
stock) of companies with small or medium sized market capitalizations.
Gabelli Micro Cap ETF
    The Fund's holdings will conform to the permissible investments as 
set forth in the Exemptive Application and Exemptive Order and the 
holdings will be consistent with all requirements in the Exemptive 
Application and Exemptive Order.\12\
---------------------------------------------------------------------------

    \12\ See id.
---------------------------------------------------------------------------

    The Fund primarily seeks to provide investors with long term 
capital appreciation. The Fund intends to invest primarily in equity 
securities of micro-cap companies (as defined by the Fund). The Fund 
seeks to invest in equity securities including common stocks (including 
indirect holdings of common stock through depositary receipts) and 
preferred stocks.
Gabelli ESG ETF
    The Fund's holdings will conform to the permissible investments as 
set forth in the Exemptive Application and Exemptive Order and the 
holdings will be consistent with all requirements in the Exemptive 
Application and Exemptive Order.\13\
---------------------------------------------------------------------------

    \13\ See id.
---------------------------------------------------------------------------

    The Fund's investment objective is capital appreciation. The Fund 
seeks to invest primarily in companies that the Adviser believes meet 
the Fund's guidelines for social responsibility. The Fund intends to 
invest in common and preferred stocks that are listed on a national 
securities exchange or similar market.
Gabelli Asset ETF
    The Fund's holdings will conform to the permissible investments as 
set forth in the Exemptive Application and Exemptive Order and the 
holdings will

[[Page 34265]]

be consistent with all requirements in the Exemptive Application and 
Exemptive Order.\14\
---------------------------------------------------------------------------

    \14\ See id.
---------------------------------------------------------------------------

    The Fund primarily seeks to provide growth of capital, with a 
secondary goal of providing current income. The Fund intends to invest 
primarily in common stocks and preferred stocks and may also invest in 
foreign securities by investing in depositary receipts.
Gabelli Equity Income ETF
    The Fund's holdings will conform to the permissible investments as 
set forth in the Exemptive Application and Exemptive Order and the 
holdings will be consistent with all requirements in the Exemptive 
Application and Exemptive Order.\15\
---------------------------------------------------------------------------

    \15\ See id.
---------------------------------------------------------------------------

    The Fund seeks a high level of total return on its assets with an 
emphasis on income. The Fund intends to invest in income producing 
equity securities including common stock and preferred stock.
Gabelli Green Energy ETF
    The Fund's holdings will conform to the permissible investments as 
set forth in the Exemptive Application and Exemptive Order and the 
holdings will be consistent with all requirements in the Exemptive 
Application and Exemptive Order.\16\
---------------------------------------------------------------------------

    \16\ See id.
---------------------------------------------------------------------------

    The Fund seeks total return through current income and capital 
appreciation. The Fund intends to invest primarily in U.S. equity 
securities and depositary receipts issued by clean energy companies.
Investment Restrictions
    Each Fund's holdings will be consistent with all requirements 
described in the Exemptive Application and Exemptive Order.\17\
---------------------------------------------------------------------------

    \17\ See id.
---------------------------------------------------------------------------

    Each Fund's investments, including derivatives, will be consistent 
with its investment objective and will not be used to enhance leverage 
(although certain derivatives and other investments may result in 
leverage). That is, the Fund's investments will not be used to seek 
performance that is the multiple or inverse multiple (e.g., 2X or -3X) 
of the Fund's primary broad-based securities benchmark index (as 
defined in Form N-1A).\18\
---------------------------------------------------------------------------

    \18\ A Fund's broad-based securities benchmark index will be 
identified in a future amendment to the Registration Statement 
following a Fund's first full calendar year of performance.
---------------------------------------------------------------------------

Creations and Redemptions of Shares
    Creations and redemptions of Shares will take place as described in 
Rule 8.900-E. Specifically, in connection with the creation and 
redemption of Creation Units \19\ and Redemption Units,\20\ the 
delivery or receipt of any portfolio securities in-kind will be 
required to be effected through a separate confidential brokerage 
account (a ``Confidential Account'').\21\ Authorized Participants 
(``AP''), as defined in the applicable Form N-1A filed with the 
Commission, will sign an agreement with an AP Representative \22\ 
establishing the Confidential Account for the benefit of the AP. AP 
Representatives will be broker-dealers. An AP must be a Depository 
Trust Company (``DTC'') Participant that has executed an authorized 
participant agreement with the Distributor with respect to the creation 
and redemption of Creation Units and Redemption Units and formed a 
Confidential Account for its benefit in accordance with the terms of 
the Participant Agreement. For purposes of creations or redemptions, 
all transactions will be effected through the respective AP's 
Confidential Account, for the benefit of the AP, without disclosing the 
identity of such securities to the AP.
---------------------------------------------------------------------------

    \19\ Rule 8.900-E(c)(6) provides that the term ``Creation Unit'' 
means a specified number of Managed Portfolio Shares issued by an 
Investment Company at the request of an Authorized Participant in 
return for a designated portfolio of instruments and/or cash.
    \20\ Rule 8.900-E(c)(7) provides that the term ``Redemption 
Unit'' means a specified minimum number of Managed Portfolio Shares 
that may be redeemed to an Investment Company at the request of an 
Authorized Participant in return for a portfolio of instruments and/
or cash.
    \21\ Rule 8.900-E(c)(4) provides that the term ``Confidential 
Account'' means an account owned by an Authorized Participant and 
held with an AP Representative on behalf of the Authorized 
Participant. The account will be established and governed by 
contractual agreement between the AP Representative and the 
Authorized Participant solely for the purposes of creation and 
redemption, while keeping confidential the Creation Basket 
constituents of each series of Managed Portfolio Shares, including 
from the Authorized Participant. The books and records of the 
Confidential Account will be maintained by the AP Representative on 
behalf of the Authorized Participant.
    \22\ Rule 8.900-E(c)(3) provides that the term ``AP 
Representative'' means an unaffiliated broker-dealer, with which an 
Authorized Participant has signed an agreement to establish a 
Confidential Account for the benefit of such Authorized Participant, 
that will deliver or receive, on behalf of the Authorized 
Participant, all consideration to or from the Investment Company in 
a creation or redemption. An AP Representative will not be permitted 
to disclose the Creation Basket to any person, including the 
Authorized Participants.
---------------------------------------------------------------------------

    Each AP Representative will be given, before the commencement of 
trading each Business Day (as defined below), the Creation Basket (as 
described below) for that day. This information will permit an AP that 
has established a Confidential Account with an AP Representative to 
instruct the AP Representative to buy and sell positions in the 
portfolio securities to permit creation and redemption of Creation 
Units and Redemption Units. Shares of each Fund will initially be 
issued and redeemed in Creation Units and Redemption Units of 5,000 or 
more Shares, subject to change at the Adviser's discretion. The Funds 
will offer and redeem Creation Units and Redemption Units on a 
continuous basis at the net asset value (``NAV'') per Share next 
determined after receipt of an order in proper form. The NAV per Share 
of each Fund will be determined as of the close of regular trading on 
the Exchange on each day that the Exchange is open (a ``Business 
Day''). The Funds will sell and redeem Creation Units and Redemption 
Units only on Business Days.
    In order to keep costs low and permit each Fund to be as fully 
invested as possible, Shares will be purchased and redeemed in Creation 
Units and Redemption Units and generally on an in-kind basis. 
Accordingly, except where the purchase or redemption will include cash 
under the circumstances described in the Exemptive Application, APs 
will be required to purchase Creation Units by making an in-kind 
deposit of specified instruments (``Deposit Instruments''), and APs 
redeeming their Shares will receive an in-kind transfer of specified 
instruments (``Redemption Instruments'') through the AP Representative 
in their Confidential Account.\23\ On any given Business Day, the names 
and quantities of the instruments that constitute the Deposit 
Instruments and the names and quantities of the instruments that 
constitute the Redemption Instruments will be identical, and these 
instruments may be referred to, in the case of either a purchase or a 
redemption, as the ``Creation Basket.''
---------------------------------------------------------------------------

    \23\ According to the Registration Statement, the Funds must 
comply with the federal securities laws in accepting Deposit 
Instruments and satisfying redemptions with Redemption Instruments, 
including that the Deposit Instruments and Redemption Instruments 
are sold in transactions that would be exempt from registration 
under the 1933 Act.
---------------------------------------------------------------------------

Placement of Purchase Orders
    Each Fund will issue Shares through the Distributor on a continuous 
basis at NAV. The Exchange represents that the issuance of Shares will 
operate in a manner substantially similar to that of other ETFs. Each 
Fund will issue Shares only at the NAV per Share next determined after 
an order in proper form is received.
    The Distributor will furnish acknowledgements to those placing

[[Page 34266]]

such orders that the orders have been accepted, but the Distributor may 
reject any order which is not submitted in proper form, as described in 
a Fund's prospectus or SAI. The NAV of each Fund is expected to be 
determined once each Business Day at a time determined by the Trust's 
Board of Trustees, currently anticipated to be as of the close of the 
regular trading session on the NYSE (ordinarily 4:00 p.m. E.T.) (the 
``Valuation Time''). Each Fund will establish a cut-off time (``Order 
Cut-Off Time'') for purchase orders in proper form. To initiate a 
purchase of Shares, an AP must submit to the Distributor an irrevocable 
order to purchase such Shares after the most recent prior Valuation 
Time.
    Purchases of Shares will be settled in-kind and/or cash for an 
amount equal to the applicable NAV per Share purchased plus applicable 
transaction fees.
    Generally, all orders to purchase Creation Units must be received 
by the Distributor no later than the end of the Core Trading Session on 
the date such order is placed (``Transmittal Date'') in order for the 
purchaser to receive the NAV per Share determined on the Transmittal 
Date.
Authorized Participant Redemption
    The Shares may be redeemed to a Fund in Redemption Unit size or 
multiples thereof as described below. Redemption orders of Redemption 
Units must be placed by or through an AP (``AP Redemption Order''). 
Each Fund will establish an Order Cut-Off Time for redemption orders of 
Redemption Units in proper form. Redemption Units of a Fund will be 
redeemable at their NAV per Share next determined after receipt of a 
request for redemption by the Trust in the manner specified below 
before the Order Cut-Off Time. To initiate an AP Redemption Order, an 
AP must submit to the Distributor an irrevocable order to redeem such 
Redemption Unit after the most recent prior Valuation Time, but not 
later than the Order Cut-Off Time.
    In the case of a redemption, the AP would enter into an irrevocable 
redemption order, and then instruct the AP Representative to sell the 
underlying basket of securities that it will receive in the redemption. 
As with the purchase of securities, the AP Representative will use 
methods, such as breaking the transaction into multiple transactions 
and transacting in multiple marketplaces, to avoid revealing the 
composition of the Creation Basket.
    Redemptions will occur primarily in-kind, although redemption 
payments may also be made partly or wholly in cash. The Participant 
Agreement signed by each AP will require establishment of a 
Confidential Account to receive distributions of securities in-kind 
upon redemption. Each AP will be required to open a Confidential 
Account with an AP Representative in order to facilitate orderly 
processing of redemptions.
Net Asset Value
    The NAV will be calculated separately for the Shares of each Fund 
on each Business Day. Each Fund's NAV is determined as of the close of 
regular trading on the NYSE, normally 4:00 p.m., Eastern Time. The NAV 
of each Fund is computed by dividing the value of the applicable Fund's 
net assets, i.e., the value of its securities and other assets less its 
liabilities, including expenses payable or accrued by the total number 
of Shares outstanding at the time the determination is made.
    Equity securities listed or traded on a national securities 
exchange are valued at the last quoted sale or a market's official 
closing price at the close of the exchange's or other market's regular 
trading hours, as of or prior to the time and day as of which such 
value is being determined. Portfolio securities traded on more than one 
national securities exchange or market are valued according to the 
broadest and most representative market as determined by the Adviser.
    Information regarding a Fund's NAV and how often Shares of a Fund 
traded on the Exchange at a price above (i.e., at a premium) or below 
(i.e., at a discount) the NAV of a Fund will be posted to a Fund's 
website when it becomes available.
Availability of Information
    The Funds' website, which will be publicly available prior to the 
listing and trading of Shares, will include a form of the prospectus 
for each Fund that may be downloaded. The Funds' website will include 
additional quantitative information updated on a daily basis, 
including, for each Fund, the prior Business Day's NAV, market closing 
price or mid-point of the bid/ask spread at the time of calculation of 
such NAV (the ``Bid/Ask Price''),\24\ and a calculation of the premium 
and discount of the market closing price or Bid/Ask Price against the 
NAV. The website and information will be publicly available at no 
charge.
---------------------------------------------------------------------------

    \24\ The Bid/Ask Price of a Fund's Shares is determined using 
the mid-point between the current national best bid and offer at the 
time of calculation of such Fund's NAV. The records relating to Bid/
Ask Prices will be retained by the Funds or their service providers.
---------------------------------------------------------------------------

    Form N-PORT requires reporting of a fund's complete portfolio 
holdings on a position-by-position basis on a quarterly basis within 60 
days after fiscal quarter end. Investors can obtain a fund's SAI, its 
shareholder reports, its Form N-CSR, filed twice a year, and its Form 
N-CEN, filed annually. Each Fund's SAI and shareholder reports are 
available free upon request from the Investment Company, and those 
documents and the Form N-PORT, Form N-CSR, and Form N-CEN may be viewed 
onscreen or downloaded from the Commission's website 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. In addition, the Verified Intraday 
Indicative Value (``VIIV''), as defined in Rule 8.900-E(c)(2),\25\ will 
be widely disseminated by the Reporting Authority and/or one or more 
major market data vendors in one second intervals during the Exchange's 
Core Trading Session.
---------------------------------------------------------------------------

    \25\ Rule 8.900-E(c)(2) provides that the term ``Verified 
Intraday Indicative Value'' is the indicative value of a Managed 
Portfolio Share based on all of the holdings of a series of Managed 
Portfolio Shares as of the close of business on the prior business 
day and, for corporate actions, based on the applicable holdings as 
of the opening of business on the current business day, priced and 
disseminated in one second intervals during the Core Trading Session 
by the Reporting Authority.
---------------------------------------------------------------------------

Dissemination of the VIIV
    With respect to trading of the Shares, the ability of market 
participants to buy and sell Shares at prices near the VIIV is 
dependent upon their assessment that the VIIV is a reliable, indicative 
real-time value for a Fund's underlying holdings. Market participants 
are expected to accept the VIIV as a reliable, indicative real-time 
value because (1) the VIIV will be calculated and disseminated based on 
a Fund's actual portfolio holdings, (2) the securities in which a Fund 
plans to invest are generally highly liquid and actively traded and 
trade at the same time as the Funds and therefore generally have 
accurate real time pricing available, and (3) market participants will 
have a daily opportunity to evaluate whether the VIIV at or near the 
close of trading is indeed predictive of the actual NAV.

[[Page 34267]]

    Information regarding the VIIV is disseminated every second 
throughout each trading day by the Exchange or by market data vendors 
or other information providers. The VIIV is based on the current market 
value of the securities in a Fund's portfolio that day. The methodology 
for calculating the VIIV is available on the Funds' website. The VIIV 
is intended to provide investors and other market participants with a 
highly correlated per Share value of the underlying portfolio that can 
be compared to the current market price. Therefore, under normal 
circumstances the VIIV is effectively a ``real-time'' update of a 
Fund's NAV, which is computed only once a day.
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 a Fund.\26\ Trading in Shares of a Fund will 
be halted if the circuit breaker parameters in Rule 7.12-E 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. Trading in the Shares will be subject to Rule 8.900-
E(d)(2)(C), which sets forth circumstances under which Shares of a Fund 
will be halted.
---------------------------------------------------------------------------

    \26\ See Rule 7.12-E.
---------------------------------------------------------------------------

    Specifically, Rule 8.900-E(d)(2)(C)(i) provides that the Exchange 
may consider all relevant factors in exercising its discretion to halt 
trading in a series of Managed Portfolio Shares. Trading may be halted 
because of market conditions or for reasons that, in the view of the 
Exchange, make trading in the series of Managed Portfolio Shares 
inadvisable. These may include: (a) The extent to which trading is not 
occurring in the securities and/or the financial instruments composing 
the portfolio; or (b) whether other unusual conditions or circumstances 
detrimental to the maintenance of a fair and orderly market are 
present.\27\
---------------------------------------------------------------------------

    \27\ The Exemptive Application provides that the Investment 
Company or their agent will request that the Exchange halt trading 
in the applicable series of Managed Portfolio Shares where: (i) The 
intraday indicative values calculated by the calculation engines 
differ by more than 25 basis points for 60 seconds in connection 
with pricing of the Verified Intraday Indicative Value; or (ii) 
holdings representing 10% or more of a series of Managed Portfolio 
Shares' portfolio have become subject to a trading halt or otherwise 
do not have readily available market quotations. Any such requests 
will be one of many factors considered in order to determine whether 
to halt trading in a series of Managed Portfolio Shares and the 
Exchange retains sole discretion in determining whether trading 
should be halted.
---------------------------------------------------------------------------

    Rule 8.900-E(d)(2)(C)(ii) provides that, if the Exchange becomes 
aware that: (i) The Verified Intraday Indicative Value of a series of 
Managed Portfolio Shares is not being calculated or disseminated in one 
second intervals, as required; (ii) the net asset value with respect to 
a series of Managed Portfolio Shares is not disseminated to all market 
participants at the same time; (iii) the holdings of a series of 
Managed Portfolio Shares are not made available on at least a quarterly 
basis as required under the 1940 Act; or (iv) such holdings are not 
made available to all market participants at the same time (except as 
otherwise permitted under the currently applicable exemptive order or 
no-action relief granted by the Commission or Commission staff to the 
Investment Company with respect to the series of Managed Portfolio 
Shares), it will halt trading in such series until such time as the 
Verified Intraday Indicative Value, the net asset value, or the 
holdings are available, as required.
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 in all trading sessions in accordance with Rule 7.34-E(a). 
As provided in Rule 7.6-E, the minimum price variation (``MPV'') for 
quoting and entry of orders in equity securities traded on the NYSE 
Arca Marketplace is $0.01, with the exception of securities that are 
priced less than $1.00, for which the MPV for order entry is $0.0001.
    The Shares will conform to the initial and continued listing 
criteria under Rule 8.900-E, as well as all terms in the Exemptive 
Order. The Exchange will obtain a representation from the issuer of the 
Shares of each Fund that the NAV per Share of each Fund will be 
calculated daily and will be made available to all market participants 
at the same time.
Surveillance
    The Exchange believes that its surveillance procedures are adequate 
to properly monitor the trading of Shares on the Exchange during all 
trading sessions and to deter and detect violations of Exchange rules 
and the applicable federal securities laws. Trading of Shares through 
the Exchange will be subject to the Exchange's surveillance procedures 
for derivative products. As part of these surveillance procedures and 
consistent with Rule 8.900-E(b)(3), the Adviser will upon request make 
available to the Exchange and/or FINRA, on behalf of the Exchange, the 
daily portfolio holdings of a Fund. The issuer of the Shares of each 
Fund will be required to represent to the Exchange that it will advise 
the Exchange of any failure by a Fund to comply with the continued 
listing requirements, and, pursuant to its obligations under Section 
19(g)(1) of the Exchange Act, the Exchange will surveil for compliance 
with the continued listing requirements. If a Fund is not in compliance 
with the applicable listing requirements, the Exchange will commence 
delisting procedures under Exchange Rule 5.5-E(m).
    FINRA, on behalf of the Exchange, or the regulatory staff of the 
Exchange, or both, will communicate as needed regarding trading in the 
Shares and certain exchange-traded instruments with other markets and 
other entities that are members of the Intermarket Surveillance Group 
(``ISG''), and FINRA, on behalf of the Exchange, or the regulatory 
staff of the Exchange, or both, may obtain trading information 
regarding trading such securities from such markets and other entities. 
In addition, the Exchange may obtain information regarding trading in 
the Shares and certain exchange-traded instruments from markets and 
other entities that are members of ISG or with which the Exchange has 
in place a comprehensive surveillance sharing agreement.
    In addition, the Exchange also has a general policy prohibiting the 
distribution of material, non-public information by its employees.
Information Bulletin
    Prior to the commencement of trading, the Exchange will inform its 
Equity Trading Permit (``ETP'') Holders in an Information Bulletin 
(``Bulletin'') of the special characteristics and risks associated with 
trading the Shares. Specifically, the Bulletin will discuss the 
following: (1) The procedures for purchases and redemptions of Shares; 
(2) Rule 9.2-E(a), which imposes a duty of due diligence on its ETP 
Holders to learn the essential facts relating to every customer prior 
to trading the Shares; (3) how information regarding the VIIV is 
disseminated; (4) the requirement that ETP Holders deliver a prospectus 
to investors purchasing newly issued Shares prior to or concurrently 
with the confirmation of a transaction; (5) trading information; and 
(6) that the portfolio holdings of the Shares are not disclosed on a 
daily basis.
    In addition, the Bulletin will reference that the Funds are subject 
to various fees and expenses described in the Registration Statement. 
The Bulletin

[[Page 34268]]

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 Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Act,\28\ in general, and furthers the 
objectives of Section 6(b)(5) of the Act,\29\ in particular, in that it 
is 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 
a national market system, and, in general, to protect investors and the 
public interest.
---------------------------------------------------------------------------

    \28\ 15 U.S.C. 78f(b).
    \29\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Exchange believes that this proposed rule change is designed to 
prevent fraudulent and manipulative acts and practices in that the 
Funds would meet each of the rules relating to listing and trading of 
Managed Portfolio Shares. To the extent that a Fund is not in 
compliance with such rules, the Exchange would either prevent the Fund 
from listing and trading on the Exchange or commence delisting 
procedures under Rule 8.900-E(d)(2)(B). Specifically, the Exchange 
would consider the suspension of trading, and commence delisting 
proceedings under Rule 8.900-E(d)(2)(B), of a Fund under any of the 
following circumstances: (a) If, following the initial twelve-month 
period after commencement of trading on the Exchange, there are fewer 
than 50 beneficial holders of the Fund; (b) if the Exchange has halted 
trading in a Fund because the VIIV is interrupted pursuant to Rule 
8.900-E(d)(2)(C)(ii) and such interruption persists past the trading 
day in which it occurred or is no longer available; (c) if the Exchange 
has halted trading in a Fund because the net asset value with respect 
to such Fund is not disseminated to all market participants at the same 
time, the holdings of such Fund are not made available on at least a 
quarterly basis as required under the 1940 Act, or such holdings are 
not made available to all market participants at the same time pursuant 
to Rule 8.900-E(d)(2)(C)(ii) and such issue persists past the trading 
day in which it occurred; (d) if the Exchange has halted trading in 
Shares of a Fund pursuant to Rule 8.900-E(d)(2)(C)(i) and such issue 
persists past the trading day in which it occurred; (e) if a Fund has 
failed to file any filings required by the Commission or if the 
Exchange is aware that a Fund is not in compliance with the conditions 
of any currently applicable exemptive order or no-action relief granted 
by the Commission or Commission staff with respect to the Fund; (f) if 
any of the continued listing requirements set forth in Rule 8.900-E are 
not continuously maintained; (g) if any of the statements of 
representations regarding (a) the description of the portfolio, (b) 
limitations on portfolio holdings, or (c) the applicability of Exchange 
listing rules as specified herein to permit the listing and trading of 
a Fund, are not continuously maintained; or (h) if such other event 
shall occur or condition exists which, in the opinion of the Exchange, 
makes further dealings on the Exchange inadvisable.
    As discussed above, the Adviser is not registered as a broker-
dealer but is affiliated with a broker-dealer and has implemented and 
will maintain a ``fire wall'' with respect to such affiliate broker-
dealer regarding access to information concerning the composition and/
or changes to a Fund's portfolio and Creation Basket. In the event that 
(a) the Adviser becomes registered as a broker-dealer or becomes 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, the Adviser will implement and maintain a fire wall with 
respect to its relevant personnel or its broker-dealer affiliate 
regarding access to information concerning the composition and/or 
changes to the portfolio and/or Creation Basket. Any person related to 
the Adviser or the Trust who makes decisions pertaining to a Fund's 
portfolio composition or that has access to information regarding a 
Fund's portfolio or changes thereto or the Creation Basket will be 
subject to procedures designed to prevent the use and dissemination of 
material non-public information regarding such portfolio or changes 
thereto and the Creation Basket.
    In addition, Rule 8.900-E(b)(5) requires that any person or entity, 
including an AP Representative, custodian, Reporting Authority, 
distributor, or administrator, who has access to non-public information 
regarding the Investment Company's portfolio composition or changes 
thereto or the Creation Basket, must be subject to procedures designed 
to prevent the use and dissemination of material non-public information 
regarding the applicable Investment Company portfolio or changes 
thereto or the Creation Basket. Moreover, if any such person or entity 
is registered as a broker-dealer or affiliated with a broker-dealer, 
such person or entity will erect and maintain a ``fire wall'' between 
the person or entity and the broker-dealer with respect to access to 
information concerning the composition and/or changes to such 
Investment Company portfolio or Creation Basket. Any person or entity 
who has access to information regarding a Fund's portfolio composition 
or changes thereto or the Creation Basket will be subject to procedures 
designed to prevent the use and dissemination of material nonpublic 
information regarding the portfolio or changes thereto or the Creation 
Basket.
    The Exchange further believes that Rule 8.900-E is designed to 
prevent fraudulent and manipulative acts and practices related to the 
listing and trading of Shares of the Funds because it provides 
meaningful requirements about both the data that will be made publicly 
available about the Shares, as well as the information that will only 
be available to certain parties and the controls on such information. 
Specifically, the Exchange believes that the requirements related to 
information protection set forth in Rule 8.900-E(b)(5) will act as a 
safeguard against misuse and improper dissemination of information 
related to a Fund's portfolio composition, the Creation Basket, or 
changes thereto. The requirement that any person or entity implement 
procedures to prevent the use and dissemination of material non-public 
information regarding the portfolio or Creation Basket will act to 
prevent any individual or entity from sharing such information 
externally and the internal ``fire wall'' requirements applicable where 
an entity is a registered broker-dealer or affiliated with a broker-
dealer will act to make sure that no entity will be able to misuse the 
data for their own purposes. Accordingly, the Exchange believes that 
this proposal is designed to prevent fraudulent and manipulative acts 
and practices.
    The Exchange further believes that the proposal is designed to 
prevent fraudulent and manipulative acts and practices related to the 
listing and trading of Shares of the Funds and to promote just and 
equitable principles of trade and to protect investors and the public 
interest because the Exchange would halt trading under certain 
circumstances under which trading in the Shares of a Fund may be 
inadvisable. Specifically, trading in the Shares will be subject to 
Rule 8.900-E(d)(2)(C)(i), which provides that the Exchange may consider 
all relevant factors in exercising its discretion to halt trading in a 
Fund. Trading may be halted because of market conditions or

[[Page 34269]]

for reasons that, in the view of the Exchange, make trading in the 
series of Managed Portfolio Shares inadvisable. These may include: (a) 
The extent to which trading is not occurring in the securities and/or 
the financial instruments composing the portfolio; or (b) whether other 
unusual conditions or circumstances detrimental to the maintenance of a 
fair and orderly market are present.\30\ Additionally, trading in the 
Shares will be subject to Rule 8.900-E(d)(2)(C)(ii), which provides 
that the Exchange would halt trading where the Exchange becomes aware 
that: (a) The VIIV of a series of Managed Portfolio Shares is not being 
calculated or disseminated in one second intervals, as required; (b) 
the net asset value with respect to a series of Managed Portfolio 
Shares is not disseminated to all market participants at the same time; 
(c) the holdings of a series of Managed Portfolio Shares are not made 
available on at least a quarterly basis as required under the 1940 Act; 
or (d) such holdings are not made available to all market participants 
at the same time (except as otherwise permitted under the currently 
applicable exemptive order or no-action relief granted by the 
Commission or Commission staff to the Investment Company with respect 
to the series of Managed Portfolio Shares). The Exchange would halt 
trading in such Shares until such time as the VIIV, the NAV, or the 
holdings are available, as required.
---------------------------------------------------------------------------

    \30\ See supra note 27.
---------------------------------------------------------------------------

    With respect to the proposed listing and trading of Shares of the 
Funds, 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 Rule 8.900-E.\31\ Each Fund's 
holdings will conform to the permissible investments as set forth in 
the Exemptive Application and Exemptive Order.\32\ As noted above, 
FINRA, on behalf of the Exchange, or the regulatory staff of the 
Exchange, or both, will communicate as needed regarding trading in the 
Shares and the underlying exchange-traded instruments with other 
markets and other entities that are members of the ISG, and FINRA, on 
behalf of the Exchange, or the regulatory staff of the Exchange, or 
both, may obtain trading information regarding trading such instruments 
from such markets and other entities. In addition, the Exchange may 
obtain information regarding trading in the Shares and the underlying 
exchange-traded instruments from markets and other entities that are 
members of ISG or with which the Exchange has in place a comprehensive 
surveillance sharing agreement.
---------------------------------------------------------------------------

    \31\ The Exchange represents that, for initial and/or continued 
listing, each Fund will be in compliance with Rule 10A-3 under the 
Act. See 17 CFR 240.10A-3.
    \32\ See supra note 8.
---------------------------------------------------------------------------

    With respect to trading of Shares of the Funds, the ability of 
market participants to buy and sell Shares at prices near the VIIV is 
dependent upon their assessment that the VIIV is a reliable, indicative 
real-time value for a Fund's underlying holdings. Market participants 
are expected to accept the VIIV as a reliable, indicative real-time 
value because (1) the VIIV will be calculated and disseminated based on 
a Fund's actual portfolio holdings, (2) the securities in which the 
Funds plan to invest are generally highly liquid and actively traded 
and trade at the same time as the Funds and therefore generally have 
accurate real time pricing available, and (3) market participants will 
have a daily opportunity to evaluate whether the VIIV at or near the 
close of trading is indeed predictive of the actual NAV.
    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 that the NAV per Share 
of the Funds will be calculated daily and that the NAV will be made 
available to all market participants at the same time. Investors can 
also obtain a Fund's SAI, its shareholder reports, its Form N-CSR 
(filed twice a year), and its Form N-CEN (filed annually). A Fund's SAI 
and shareholder reports will be available free upon request from the 
applicable Fund, and those documents and the Form N-PORT, Form N-CSR, 
and Form N-CEN may be viewed on-screen or downloaded from the 
Commission's website at www.sec.gov. In addition, a large amount of 
information will be publicly available regarding the Funds and the 
Shares, thereby promoting market transparency. Quotation and last sale 
information for the Shares will be available via the CTA high-speed 
line. Information regarding the VIIV will be widely disseminated in one 
second intervals throughout the Core Trading Session by the Reporting 
Authority and/or one or more major market data vendors. The website for 
the Funds will include a prospectus for the Funds that may be 
downloaded, and additional data relating to NAV and other applicable 
quantitative information, updated on a daily basis. Moreover, prior to 
the commencement of trading, the Exchange will inform its members in an 
Information Bulletin of the special characteristics and risks 
associated with trading the Shares.
    In addition, as noted above, investors will have ready access to 
the VIIV, and quotation and last sale information for the Shares. The 
Shares will conform to the initial and continued listing criteria under 
Rule 8.900-E. Each Fund's investments, including derivatives, will be 
consistent with its investment objective and will not be used to 
enhance leverage (although certain derivatives and other investments 
may result in leverage). That is, the Fund's investments will not be 
used to seek performance that is the multiple or inverse multiple 
(e.g., 2X or -3X) of the Fund's primary broad-based securities 
benchmark index (as defined in Form N-1A).
    The Exchange also believes that 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 actively-managed exchange-traded 
products that will enhance competition among market participants, to 
the benefit of investors and the marketplace. As noted above, the 
Exchange has in place surveillance procedures relating to trading in 
the Shares and may obtain information via ISG from other exchanges that 
are members of ISG or with which the Exchange has entered into a 
comprehensive surveillance sharing agreement. In addition, as noted 
above, investors will have ready access to information regarding the 
VIIV and quotation and last sale information for the Shares.
    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 purposes of the Act. The Exchange believes the 
proposed rule change would permit the listing and trading of additional 
actively-managed exchange-traded products, thereby promoting 
competition among exchange-traded products to the benefit of investors 
and the marketplace.

[[Page 34270]]

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 (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-NYSEArca-2020-48 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-2020-48. 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-NYSEArca-2020-48 and should be submitted 
on or before June 24, 2020.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\33\
---------------------------------------------------------------------------

    \33\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-11919 Filed 6-2-20; 8:45 am]
 BILLING CODE 8011-01-P
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