Self-Regulatory Organizations; NYSE Arca, Inc.; Order Granting Approval of a Proposed Rule Change, as Modified by Amendment No. 2, To List and Trade Shares of Natixis Vaughan Nelson Select ETF and Natixis Vaughan Nelson MidCap ETF Under NYSE Arca Rule 8.601-E, 47821-47824 [2020-17131]

Download as PDF Federal Register / Vol. 85, No. 152 / Thursday, August 6, 2020 / Notices IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission’s internet comment form (https://www.sec.gov/ rules/sro.shtml); or • Send an email to rule-comments@ sec.gov. Please include File Number SR– BOX–2020–30 on the subject line. Paper Comments jbell on DSKJLSW7X2PROD with NOTICES • 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–BOX–2020–30. 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 such 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–BOX–2020–30, and should be submitted on or before August 27, 2020. VerDate Sep<11>2014 17:13 Aug 05, 2020 Jkt 250001 For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.11 J. Matthew DeLesDernier, Assistant Secretary. [FR Doc. 2020–17130 Filed 8–5–20; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–89438; File No. SR– NYSEArca–2020–51] Self-Regulatory Organizations; NYSE Arca, Inc.; Order Granting Approval of a Proposed Rule Change, as Modified by Amendment No. 2, To List and Trade Shares of Natixis Vaughan Nelson Select ETF and Natixis Vaughan Nelson MidCap ETF Under NYSE Arca Rule 8.601–E July 31, 2020. I. Introduction On June 12, 2020, NYSE Arca, Inc. (‘‘NYSE Arca’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘Commission’’), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 a proposed rule change to list and trade shares (‘‘Shares’’) of the following under NYSE Arca Rule 8.601–E (Active Proxy Portfolio Shares): Natixis Vaughan Nelson Select ETF and Natixis Vaughan Nelson MidCap ETF (each a ‘‘Fund’’ and, collectively, the ‘‘Funds’’). On June 17, 2020, the Exchange filed Amendment No. 1 to the proposed rule change, which superseded and replaced the proposed rule change in its entirety. On June 19, 2020, the Exchange filed Amendment No. 2 to the proposed rule change, which superseded and replaced the proposed rule change, as modified by Amendment No. 1, in its entirety. The proposed rule change, as modified by Amendment No. 2, was published for comment in the Federal Register on June 29, 2020.3 The Commission has received no comments on the proposed rule change. This order approves the proposed rule change, as modified by Amendment No. 2. 11 17 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 3 See Securities Exchange Act Release No. 89127 (June 23, 2020), 85 FR 39000 (‘‘Notice’’). 1 15 PO 00000 Frm 00093 Fmt 4703 Sfmt 4703 47821 II. Description of the Proposed Rule Change, as Modified by Amendment No. 2 4 The Exchange is proposing to list and trade Shares of the Funds under NYSE Arca Rule 8.601–E (Active Proxy Portfolio Shares).5 Each Fund will be a series of Natixis ETF Trust II (‘‘Trust’’), which will be registered with the Commission as an open-end management investment company.6 Natixis Advisors, L.P. (‘‘Adviser’’) will be the investment adviser to the Funds and Vaughan Nelson Investment Management, L.P. will be the subadviser (‘‘Sub-Adviser’’) for the Funds. ALPS Distributors, Inc. will act as the distributor and principal underwriter (‘‘Distributor’’) for the Funds. The Exchange represents that the Adviser is not registered as a brokerdealer but is affiliated with a brokerdealer and has implemented and will maintain a ‘‘fire wall’’ with respect to 4 Additional information regarding the Shares and the Funds can be found in the Notice, supra note 3, and the Registration Statement, infra note 6. 5 The term ‘‘Active Proxy Portfolio Share’’ means a security that (a) is issued by 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 specified minimum number of shares, or multiples thereof, in return for a deposit by the purchaser of the Proxy Portfolio and/or cash with a value equal to the next determined net asset value (‘‘NAV’’); (c) when aggregated in the same specified number of Active Proxy Portfolio Shares, or multiples thereof, may be redeemed at a holder’s request in return for the Proxy Portfolio and/or cash to the holder by the issuer with a value equal to the next determined NAV; and (d) the portfolio holdings for which are disclosed within at least 60 days following the end of every fiscal quarter. See NYSE Arca Rule 8.601–E(c)(1). See also note 7 infra regarding the definition of ‘‘Proxy Portfolio.’’ The Commission recently approved the Exchange’s proposed rule change to adopt NYSE Arca Rule 8.601–E to permit the listing and trading of Active Proxy Portfolio Shares. See Securities Exchange Act Release No. 89185 (June 29, 2020), 85 FR 40328 (July 6, 2020) (SR–NYSEArca–2019–095) (‘‘Active Proxy Portfolio Shares Order’’). 6 The Exchange states that the Trust is registered under the Investment Company Act of 1940 (‘‘1940 Act’’). On April 24, 2020, the Trust filed a registration statement on Form N–1A under the Securities Act of 1933 (‘‘1933 Act’’) (15 U.S.C. 77a), and under the 1940 Act relating to the Funds (File Nos. 333–235466 and 811–23500) (‘‘Registration Statement’’). The Trust and NYSE Group, Inc. filed a Seventh Amended and Restated Application for an Order under Section 6(c) of the 1940 Act for exemptions from various provisions of the 1940 Act and rules thereunder (File No. 812–14870), dated October 21, 2019 (‘‘Application’’). On November 14, 2019, the Commission issued a notice regarding the Application. Investment Company Release No. 33684 (File No. 812–14870). On December 10, 2019, the Commission issued an order (‘‘Exemptive Order’’) under the 1940 Act granting the exemptions requested in the Application (Investment Company Act Release No. 33711 (December 10, 2019)). E:\FR\FM\06AUN1.SGM 06AUN1 47822 Federal Register / Vol. 85, No. 152 / Thursday, August 6, 2020 / Notices jbell on DSKJLSW7X2PROD with NOTICES such broker-dealer affiliate regarding access to information concerning the composition of and/or changes to a Fund’s Actual Portfolio and/or Proxy Portfolio.7 The Exchange represents that the Sub-Adviser is not registered as a broker-dealer but is affiliated with a broker-dealer and the Sub-Adviser has implemented and will maintain a ‘‘fire wall’’ with respect to its broker-dealer affiliate regarding access to information concerning the composition of and/or changes to the applicable Fund’s Actual Portfolio and/or Proxy Portfolio. In the event (a) the Adviser or Sub-Adviser becomes registered as a broker-dealer or becomes newly affiliated with a brokerdealer, or (b) any new adviser or subadviser 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 a Fund’s Actual Portfolio and/or Proxy Portfolio, and will be subject to procedures designed to prevent the use and dissemination of material non-public information regarding a Fund’s Actual Portfolio and/ or Proxy Portfolio or changes thereto. In addition, the Exchange represents that any person related to the Adviser, SubAdviser or a Fund who makes decisions pertaining to a Fund’s Actual Portfolio or the Proxy Portfolio or has access to non-public information regarding a Fund’s Actual Portfolio and/or the Proxy Portfolio or changes thereto are subject to procedures reasonably designed to prevent the use and dissemination of material non-public information regarding a Fund’s Actual Portfolio and/or the Proxy Portfolio or changes thereto. The Exchange further represents that any person or entity, including any service provider for a Fund, who has access to non-public information regarding a Fund’s Actual Portfolio or the Proxy Portfolio or changes thereto, will be subject to procedures reasonably designed to prevent the use and dissemination of material non-public information regarding a Fund’s Actual Portfolio and/or the Proxy Portfolio or 7 The term ‘‘Actual Portfolio’’ means the identities and quantities of the securities and other assets held by the Investment Company that shall form the basis for the Investment Company’s calculation of NAV at the end of the business day. See NYSE Arca Rule 8.601–E(c)(2). The term ‘‘Proxy Portfolio’’ means a specified portfolio of securities, other financial instruments and/or cash designed to track closely the daily performance of the Actual Portfolio of a series of Active Proxy Portfolio Shares as provided in the exemptive relief pursuant to the 1940 Act applicable to such series. See NYSE Arca Rule 8.601–E(c)(3). VerDate Sep<11>2014 17:13 Aug 05, 2020 Jkt 250001 changes thereto. Moreover, if any such person or entity is registered as a brokerdealer or affiliated with a broker-dealer, such person or entity has erected and will 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 a Fund’s Actual Portfolio and/or Proxy Portfolio. A. Description of the Funds According to the Exchange, the Adviser believes a Fund would allow for efficient trading of Shares through an effective Fund portfolio transparency substitute and publication of related information metrics, while still shielding the identity of the full Fund portfolio contents to protect a Fund’s performance-seeking strategies. Even though a Fund would not publish its full portfolio contents daily, the Adviser believes that the NYSE Proxy Portfolio Methodology would allow market participants to assess the intraday value and associated risk of a Fund’s Actual Portfolio. As a result, the Adviser believes that investors would be able to purchase and sell Shares in the secondary market at prices that are close to their NAV. The Exchange states that the Funds will utilize a proxy portfolio methodology—the ‘‘NYSE Proxy Portfolio Methodology’’—that would allow market participants to assess the intraday value and associated risk of a Fund’s Actual Portfolio and thereby facilitate the purchase and sale of Shares by investors in the secondary market at prices that do not vary materially from their NAV.8 The NYSE Proxy Portfolio Methodology would utilize creation of a Proxy Portfolio for hedging and arbitrage purposes.9 Each of the Fund’s holdings will conform to the permissible investments as set forth in the Application and Exemptive Order and the holdings will be consistent with all requirements in the Application and Exemptive Order.10 8 The NYSE Proxy Portfolio Methodology is owned by the NYSE Group, Inc. and licensed for use by the Funds. NYSE Group, Inc. is not affiliated with the Funds, Adviser or Distributor. Not all series of Active Proxy Portfolio Shares utilize the NYSE Proxy Portfolio Methodology. 9 With respect to the Funds, the Funds will have in place policies and procedures regarding the construction and composition of their respective Proxy Portfolio. Such policies and procedures will be covered by a Fund’s compliance program and other requirements under Rule 38a–1 under the 1940 Act. 10 Pursuant to the Application and Exemptive Order, the permissible investments for each Fund include only the following instruments: Exchangetraded funds (‘‘ETFs’’) traded on a U.S. exchange; exchange-traded notes (‘‘ETNs’’) traded on a U.S. exchange; U.S. exchange-traded common stocks; PO 00000 Frm 00094 Fmt 4703 Sfmt 4703 Any foreign common stocks held by a Fund will be traded on an exchange that is a member of the Intermarket Surveillance Group (‘‘ISG’’) or with which the Exchange has in place a comprehensive surveillance sharing agreement. 1. Natixis Vaughan Nelson Select ETF According to the Exchange, the Fund’s investment objective is to seek long-term capital appreciation. The Fund, under normal market conditions,11 will invest primarily in equity securities, including exchangetraded common stocks, exchange-traded preferred stocks and exchange-traded real estate investment trusts (‘‘REITs’’). 2. Natixis Vaughan Nelson MidCap ETF According to the Exchange, the Fund’s investment objective is to seek long-term capital appreciation. The Fund, under normal market conditions, will invest primarily in companies that, at the time of purchase, have market capitalizations either within the capitalization range of the Russell Midcap® Value Index, an unmanaged index that measures the performance of companies with lower price-to-book ratios and lower forecasted growth values within the broader Russell Midcap Index, or of $15 billion or less. Equity securities that the Fund may invest in may take the form of exchangetraded stock in corporations and exchange-traded REITs or other exchange-traded trusts and similar securities representing direct or indirect ownership interests in business organizations. 3. Investment Restrictions The Shares of the Funds will conform to the initial and continued listing criteria under NYSE Arca Rule 8.601–E. Each Fund’s holdings will be limited to and consistent with permissible holdings as described in the Application common stocks listed on a foreign exchange that trade on such exchange contemporaneously with the Shares (‘‘foreign common stocks’’) in the Exchange’s Core Trading Session (normally 9:30 a.m. and 4:00 p.m. Eastern time (‘‘E.T.’’)); U.S. exchange-traded preferred stocks; U.S. exchangetraded American Depositary Receipts (‘‘ADRs’’); U.S. exchange-traded real estate investment trusts; U.S. exchange-traded commodity pools; U.S. exchange-traded metals trusts; U.S. exchange-traded currency trusts; and U.S. exchange-traded futures that trade contemporaneously with a Fund’s Shares. In addition, a Fund may hold cash and cash equivalents (short-term U.S. Treasury securities, government money market funds, and repurchase agreements). A Fund will not hold short positions or invest in derivatives other than U.S. exchangetraded futures, will not borrow for investment purposes, and will not purchase any securities that are illiquid investments at the time of purchase. 11 The term ‘‘normal market conditions’’ is defined in NYSE Arca Rule 8.601–E(c)(5). E:\FR\FM\06AUN1.SGM 06AUN1 Federal Register / Vol. 85, No. 152 / Thursday, August 6, 2020 / Notices and all requirements in the Application and Exemptive Order.12 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, a Fund’s investments will not be used to seek performance that is the multiple or inverse multiple (e.g., 2X or –3X) of a Fund’s primary broad-based securities benchmark index (as defined in Form N–1A).13 III. Discussion and Commission Findings After careful review, the Commission finds that the proposed rule change, as modified by Amendment No. 2, is consistent with the Act and rules and regulations thereunder applicable to a national securities exchange.14 In particular, the Commission finds that the proposed rule change, as modified by Amendment No. 2 is consistent with Section 6(b)(5) of the Act,15 which requires, among other things, that the Exchange’s rules be 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 Commission believes that the proposal is reasonably designed to promote fair disclosure of information that may be necessary to price the Shares appropriately and to prevent trading in the Shares when a reasonable degree of certain pricing transparency cannot be assured. As such, the Commission believes the proposal is reasonably designed to maintain a fair and orderly market for trading the Shares. The Commission also finds that the proposal is consistent with Section 11A(a)(1)(C)(iii) of the Act, which sets forth Congress’s finding that it is in the public interest and appropriate for the protection of investors and the maintenance of fair and orderly markets to assure the availability to brokers, dealers, and investors of information with respect to quotations for, and transactions in, securities. jbell on DSKJLSW7X2PROD with NOTICES 12 See note 10, supra. 13 A Fund’s broad-based securities benchmark index will be identified in a future amendment to its Registration Statement following a Fund’s first full calendar year of performance. 14 In approving this proposed rule change, the Commission notes that it has considered the proposed rule’s impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). 15 15 U.S.C. 78f(b)(5). VerDate Sep<11>2014 17:13 Aug 05, 2020 Jkt 250001 Specifically, prior to commencement of trading in the Shares, the Exchange will obtain a representation from the Adviser that the NAV per Share of each Fund will be calculated daily and that the NAV, Proxy Portfolio, and Actual Portfolio for each Fund will be made available to all market participants at the same time.16 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. Quotation and lastsale information for the Shares, ETFs, ETNs, U.S. exchange-traded common stocks, preferred stocks, and ADRs will be available via the Consolidated Tape Association high-speed line or from the exchange on which such securities trade. Price information for futures, foreign stocks, and cash equivalents is available through major market data vendors. The Funds’ website will include additional information updated on a daily basis, including, on a per Share basis for each Fund, the prior business day’s NAV, the closing price or bid/ask price at the time of calculation of such NAV, and a calculation of the premium or discount of the closing price or bid/ask price against such NAV. The website will also disclose the percentage weight overlap between the holdings of the Proxy Portfolio compared to the Actual Portfolio holdings for the prior business day, and any other information regarding premiums and discounts and the bid/ ask spread for a Fund as may be required for other ETFs under Rule 6c– 11 under the 1940 Act. The Proxy Portfolio holdings for each Fund (including the identity and quantity of investments in the Proxy Portfolio) will be publicly available on the Funds’ website before the commencement of trading in Shares on each business day and the Funds’ website will disclose the information required under NYSE Arca Rule 8.601–E(c)(3).17 The website and information will be publicly available at no charge. In addition, intraday pricing information for all constituents of the Proxy Portfolio for each Fund that are exchange-traded, which includes all eligible instruments except cash and 16 See NYSE Arca Rule 8.601–E(d)(1)(B). NYSE Arca Rule 8.601–E(c)(3), which requires that the website for each series of Active Proxy Portfolio Shares shall disclose the information regarding the Proxy Portfolio as provided in the exemptive relief pursuant to the 1940 Act applicable to such series, including the following, to the extent applicable: (i) Ticker symbol; (ii) CUSIP or other identifier; (iii) description of holding; (iv) quantity of each security or other asset held; and (v) percentage weighting of the holding in the portfolio. 17 See PO 00000 Frm 00095 Fmt 4703 Sfmt 4703 47823 cash equivalents, will be available on the exchanges on which they are traded and through subscription services, and that intraday pricing information for cash equivalents will be available through subscription services and/or pricing services. The Commission also believes that the Exchange’s rules regarding trading halts help to ensure the maintenance of fair and orderly markets for the Shares. Specifically, pursuant to its rules, the Exchange may consider all relevant factors in exercising its discretion to halt trading in the Shares and will halt trading in the Shares under the conditions specified in NYSE Arca Rule 7.12–E. Trading may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable, including (1) the extent to which trading is not occurring in the securities and/or the financial instruments composing the Proxy Portfolio and/or Actual Portfolio; or (2) whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present.18 Trading in the Shares also will be subject to NYSE Arca Rule 8.601–E(d)(2)(D), which sets forth additional circumstances under which trading in the Shares will be halted. The Commission also believes that the proposal is reasonably designed to help prevent fraudulent and manipulative acts and practices. Specifically: • 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 broker-dealer affiliate regarding access to information concerning the composition of and/or changes to a Fund’s Actual Portfolio and/or Proxy Portfolio; • The Sub-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 its broker-dealer affiliate regarding access to information concerning the composition of and/or changes to a Fund’s Actual Portfolio and/or Proxy Portfolio. • Any person related to the Adviser, Sub-Adviser or a Fund who makes decisions pertaining to a Fund’s Actual Portfolio or the Proxy Portfolio or who has access to non-public information regarding a Fund’s Actual Portfolio and/ or the Proxy Portfolio or changes thereto are subject to procedures reasonably designed to prevent the use and dissemination of material non-public information regarding a Fund’s Actual 18 See E:\FR\FM\06AUN1.SGM NYSE Arca Rule 8.601–E(d)(2)(D)(i). 06AUN1 47824 Federal Register / Vol. 85, No. 152 / Thursday, August 6, 2020 / Notices jbell on DSKJLSW7X2PROD with NOTICES Portfolio and/or the Proxy Portfolio or changes thereto; • In the event (a) the Adviser or SubAdviser 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, 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 of and/or changes to a Fund’s Actual Portfolio and/or Proxy Portfolio, and will be subject to procedures designed to prevent the use and dissemination of material non-public information regarding a Fund’s Actual Portfolio and/ or Proxy Portfolio or changes thereto; and • Any person or entity, including any service provider for a Fund, who has access to non-public information regarding a Fund’s Actual Portfolio or the Proxy Portfolio or changes thereto will be subject to procedures reasonably designed to prevent the use and dissemination of material non-public information regarding a Fund’s Actual Portfolio and/or the Proxy Portfolio or changes thereto, and if any such person or entity is registered as a broker-dealer or affiliated with a broker-dealer, such person or entity has erected and will maintain a ‘‘fire wall’’ between the person or entity and the broker-dealer with respect to access to information concerning the composition of and/or changes to a Fund’s Actual Portfolio and/or Proxy Portfolio. Finally, trading in the Shares will be subject to the existing trading surveillances, administered by the Exchange, as well as cross-market surveillances administered by the Financial Industry Regulatory Authority (‘‘FINRA’’) on behalf of the Exchange,19 and the Exchange states that these surveillance procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and federal securities laws applicable to trading on the Exchange. 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. 19 See NYSE Arca Rule 8.601–E, Commentary .03, which requires, as part of the surveillance procedures for Active Proxy Portfolio Shares, a Fund’s investment adviser to, upon request by the Exchange or FINRA, on behalf of the Exchange, make available to the Exchange or FINRA the daily Actual Portfolio holdings of the Fund. VerDate Sep<11>2014 17:13 Aug 05, 2020 Jkt 250001 The Commission finds that the following support the listing and trading of the Shares: (1) The Shares will conform to the initial and continued listing criteria under NYSE Arca Rule 8.601–E. (2) A minimum of 100,000 Shares for each Fund will be outstanding at the commencement of trading on the Exchange. (3) The Exchange or FINRA, on behalf of the Exchange, or both, will communicate as needed, and may obtain information, regarding trading in the Shares and underlying exchangetraded instruments with other markets and other entities that are members of the ISG. In addition, the Exchange may obtain information regarding trading in the Shares and underlying exchangetraded instruments from markets and other entities with which the Exchange has in place a comprehensive surveillance sharing agreement. Any foreign common stocks held by a Fund will be traded on an exchange that is a member of the ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement. (4) The Exchange has appropriate rules to facilitate trading in the Shares during all trading sessions. (5) For initial and continued listing, the Funds will be in compliance with Rule 10A–3 under the Act.20 (6) Each Fund’s holdings will conform to the permissible investments as set forth in the Application and Exemptive Order and the holdings will be consistent with all requirements set forth in the Application and Exemptive Order. 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). (7) With respect to Active Proxy Portfolio Shares, all of the Exchange member obligations relating to product description and prospectus delivery requirements will continue to apply in accordance with Exchange rules and federal securities laws, and the Exchange and FINRA will continue to monitor Exchange members for compliance with such requirements. Pursuant to Commentary .01 to NYSE Arca Rule 8.601–E, all statements and representations made in the filing regarding: (1) The description of the portfolio; (2) limitations on portfolio holdings; or (3) the applicability of Exchange listing rules specified in the filing constitute continued listing requirements for listing the Shares on the Exchange. In addition, the issuer 20 See PO 00000 17 CFR 240.10A–3. Frm 00096 Fmt 4703 Sfmt 4703 must notify 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 Act, the Exchange will monitor 21 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 NYSE Arca Rule 5.5–E(m). IV. Conclusion It is therefore ordered, pursuant to Section 19(b)(2) of the Act 22 that the proposed rule change (SR–NYSEArca– 2020–51), as modified by Amendment No. 2, be, and it hereby is, approved. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.23 J. Matthew DeLesDernier, Assistant Secretary. [FR Doc. 2020–17131 Filed 8–5–20; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–89441; File No. SR–FINRA– 2020–023] Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the FINRA Rule 6800 Series (Consolidated Audit Trail Compliance Rule) July 31, 2020. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’),1 and Rule 19b–4 thereunder,2 notice is hereby given that on July 30, 2020, Financial Industry Regulatory Authority, Inc. (‘‘FINRA’’) filed with the Securities and Exchange Commission (‘‘SEC’’ or ‘‘Commission’’) the proposed rule change as described in Items I and II below, which Items have been prepared by FINRA. The Commission is publishing this notice to solicit 21 The Commission notes that certain proposals for the listing and trading of exchange-traded products include a representation that the exchange will ‘‘surveil’’ for compliance with the continued listing requirements. See, e.g., Securities Exchange Act Release No. 77499 (April 1, 2016), 81 FR 20428, 20432 (April 7, 2016) (SR–BATS–2016–04). In the context of this representation, it is the Commission’s view that ‘‘monitor’’ and ‘‘surveil’’ both mean ongoing oversight of compliance with the continued listing requirements. Therefore, the Commission does not view ‘‘monitor’’ as a more or less stringent obligation than ‘‘surveil’’ with respect to the continued listing requirements. 22 15 U.S.C. 78s(b)(2). 23 17 CFR 200.30–3(a)(12). 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. E:\FR\FM\06AUN1.SGM 06AUN1

Agencies

SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 85, Number 152 (Thursday, August 6, 2020)]
[Notices]
[Pages 47821-47824]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17131]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-89438; File No. SR-NYSEArca-2020-51]


Self-Regulatory Organizations; NYSE Arca, Inc.; Order Granting 
Approval of a Proposed Rule Change, as Modified by Amendment No. 2, To 
List and Trade Shares of Natixis Vaughan Nelson Select ETF and Natixis 
Vaughan Nelson MidCap ETF Under NYSE Arca Rule 8.601-E

July 31, 2020.

I. Introduction

    On June 12, 2020, NYSE Arca, Inc. (``NYSE Arca'' or ``Exchange'') 
filed with the Securities and Exchange Commission (``Commission''), 
pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ a proposed rule change to 
list and trade shares (``Shares'') of the following under NYSE Arca 
Rule 8.601-E (Active Proxy Portfolio Shares): Natixis Vaughan Nelson 
Select ETF and Natixis Vaughan Nelson MidCap ETF (each a ``Fund'' and, 
collectively, the ``Funds''). On June 17, 2020, the Exchange filed 
Amendment No. 1 to the proposed rule change, which superseded and 
replaced the proposed rule change in its entirety. On June 19, 2020, 
the Exchange filed Amendment No. 2 to the proposed rule change, which 
superseded and replaced the proposed rule change, as modified by 
Amendment No. 1, in its entirety. The proposed rule change, as modified 
by Amendment No. 2, was published for comment in the Federal Register 
on June 29, 2020.\3\ The Commission has received no comments on the 
proposed rule change. This order approves the proposed rule change, as 
modified by Amendment No. 2.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 89127 (June 23, 
2020), 85 FR 39000 (``Notice'').
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II. Description of the Proposed Rule Change, as Modified by Amendment 
No. 2 \4\
---------------------------------------------------------------------------

    \4\ Additional information regarding the Shares and the Funds 
can be found in the Notice, supra note 3, and the Registration 
Statement, infra note 6.
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    The Exchange is proposing to list and trade Shares of the Funds 
under NYSE Arca Rule 8.601-E (Active Proxy Portfolio Shares).\5\ Each 
Fund will be a series of Natixis ETF Trust II (``Trust''), which will 
be registered with the Commission as an open-end management investment 
company.\6\ Natixis Advisors, L.P. (``Adviser'') will be the investment 
adviser to the Funds and Vaughan Nelson Investment Management, L.P. 
will be the subadviser (``Sub-Adviser'') for the Funds. ALPS 
Distributors, Inc. will act as the distributor and principal 
underwriter (``Distributor'') for the Funds.
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    \5\ The term ``Active Proxy Portfolio Share'' means a security 
that (a) is issued by 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 specified 
minimum number of shares, or multiples thereof, in return for a 
deposit by the purchaser of the Proxy Portfolio and/or cash with a 
value equal to the next determined net asset value (``NAV''); (c) 
when aggregated in the same specified number of Active Proxy 
Portfolio Shares, or multiples thereof, may be redeemed at a 
holder's request in return for the Proxy Portfolio and/or cash to 
the holder by the issuer with a value equal to the next determined 
NAV; and (d) the portfolio holdings for which are disclosed within 
at least 60 days following the end of every fiscal quarter. See NYSE 
Arca Rule 8.601-E(c)(1). See also note 7 infra regarding the 
definition of ``Proxy Portfolio.'' The Commission recently approved 
the Exchange's proposed rule change to adopt NYSE Arca Rule 8.601-E 
to permit the listing and trading of Active Proxy Portfolio Shares. 
See Securities Exchange Act Release No. 89185 (June 29, 2020), 85 FR 
40328 (July 6, 2020) (SR-NYSEArca-2019-095) (``Active Proxy 
Portfolio Shares Order'').
    \6\ The Exchange states that the Trust is registered under the 
Investment Company Act of 1940 (``1940 Act''). On April 24, 2020, 
the Trust filed a registration statement on Form N-1A under the 
Securities Act of 1933 (``1933 Act'') (15 U.S.C. 77a), and under the 
1940 Act relating to the Funds (File Nos. 333-235466 and 811-23500) 
(``Registration Statement''). The Trust and NYSE Group, Inc. filed a 
Seventh Amended and Restated Application for an Order under Section 
6(c) of the 1940 Act for exemptions from various provisions of the 
1940 Act and rules thereunder (File No. 812-14870), dated October 
21, 2019 (``Application''). On November 14, 2019, the Commission 
issued a notice regarding the Application. Investment Company 
Release No. 33684 (File No. 812-14870). On December 10, 2019, the 
Commission issued an order (``Exemptive Order'') under the 1940 Act 
granting the exemptions requested in the Application (Investment 
Company Act Release No. 33711 (December 10, 2019)).
---------------------------------------------------------------------------

    The Exchange represents that 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

[[Page 47822]]

such broker-dealer affiliate regarding access to information concerning 
the composition of and/or changes to a Fund's Actual Portfolio and/or 
Proxy Portfolio.\7\ The Exchange represents that the Sub-Adviser is not 
registered as a broker-dealer but is affiliated with a broker-dealer 
and the Sub-Adviser has implemented and will maintain a ``fire wall'' 
with respect to its broker-dealer affiliate regarding access to 
information concerning the composition of and/or changes to the 
applicable Fund's Actual Portfolio and/or Proxy Portfolio. In the event 
(a) the Adviser or 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 a Fund's Actual Portfolio and/or Proxy Portfolio, and will 
be subject to procedures designed to prevent the use and dissemination 
of material non-public information regarding a Fund's Actual Portfolio 
and/or Proxy Portfolio or changes thereto. In addition, the Exchange 
represents that any person related to the Adviser, Sub-Adviser or a 
Fund who makes decisions pertaining to a Fund's Actual Portfolio or the 
Proxy Portfolio or has access to non-public information regarding a 
Fund's Actual Portfolio and/or the Proxy Portfolio or changes thereto 
are subject to procedures reasonably designed to prevent the use and 
dissemination of material non-public information regarding a Fund's 
Actual Portfolio and/or the Proxy Portfolio or changes thereto.
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    \7\ The term ``Actual Portfolio'' means the identities and 
quantities of the securities and other assets held by the Investment 
Company that shall form the basis for the Investment Company's 
calculation of NAV at the end of the business day. See NYSE Arca 
Rule 8.601-E(c)(2). The term ``Proxy Portfolio'' means a specified 
portfolio of securities, other financial instruments and/or cash 
designed to track closely the daily performance of the Actual 
Portfolio of a series of Active Proxy Portfolio Shares as provided 
in the exemptive relief pursuant to the 1940 Act applicable to such 
series. See NYSE Arca Rule 8.601-E(c)(3).
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    The Exchange further represents that any person or entity, 
including any service provider for a Fund, who has access to non-public 
information regarding a Fund's Actual Portfolio or the Proxy Portfolio 
or changes thereto, will be subject to procedures reasonably designed 
to prevent the use and dissemination of material non-public information 
regarding a Fund's Actual Portfolio and/or the Proxy Portfolio or 
changes thereto. Moreover, if any such person or entity is registered 
as a broker-dealer or affiliated with a broker-dealer, such person or 
entity has erected and will 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 a Fund's Actual Portfolio 
and/or Proxy Portfolio.

A. Description of the Funds

    According to the Exchange, the Adviser believes a Fund would allow 
for efficient trading of Shares through an effective Fund portfolio 
transparency substitute and publication of related information metrics, 
while still shielding the identity of the full Fund portfolio contents 
to protect a Fund's performance-seeking strategies. Even though a Fund 
would not publish its full portfolio contents daily, the Adviser 
believes that the NYSE Proxy Portfolio Methodology would allow market 
participants to assess the intraday value and associated risk of a 
Fund's Actual Portfolio. As a result, the Adviser believes that 
investors would be able to purchase and sell Shares in the secondary 
market at prices that are close to their NAV.
    The Exchange states that the Funds will utilize a proxy portfolio 
methodology--the ``NYSE Proxy Portfolio Methodology''--that would allow 
market participants to assess the intraday value and associated risk of 
a Fund's Actual Portfolio and thereby facilitate the purchase and sale 
of Shares by investors in the secondary market at prices that do not 
vary materially from their NAV.\8\ The NYSE Proxy Portfolio Methodology 
would utilize creation of a Proxy Portfolio for hedging and arbitrage 
purposes.\9\
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    \8\ The NYSE Proxy Portfolio Methodology is owned by the NYSE 
Group, Inc. and licensed for use by the Funds. NYSE Group, Inc. is 
not affiliated with the Funds, Adviser or Distributor. Not all 
series of Active Proxy Portfolio Shares utilize the NYSE Proxy 
Portfolio Methodology.
    \9\ With respect to the Funds, the Funds will have in place 
policies and procedures regarding the construction and composition 
of their respective Proxy Portfolio. Such policies and procedures 
will be covered by a Fund's compliance program and other 
requirements under Rule 38a-1 under the 1940 Act.
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    Each of the Fund's holdings will conform to the permissible 
investments as set forth in the Application and Exemptive Order and the 
holdings will be consistent with all requirements in the Application 
and Exemptive Order.\10\ Any foreign common stocks held by a Fund will 
be traded on an exchange that is a member of the Intermarket 
Surveillance Group (``ISG'') or with which the Exchange has in place a 
comprehensive surveillance sharing agreement.
---------------------------------------------------------------------------

    \10\ Pursuant to the Application and Exemptive Order, the 
permissible investments for each Fund include only the following 
instruments: Exchange-traded funds (``ETFs'') traded on a U.S. 
exchange; exchange-traded notes (``ETNs'') traded on a U.S. 
exchange; U.S. exchange-traded common stocks; common stocks listed 
on a foreign exchange that trade on such exchange contemporaneously 
with the Shares (``foreign common stocks'') in the Exchange's Core 
Trading Session (normally 9:30 a.m. and 4:00 p.m. Eastern time 
(``E.T.'')); U.S. exchange-traded preferred stocks; U.S. exchange-
traded American Depositary Receipts (``ADRs''); U.S. exchange-traded 
real estate investment trusts; U.S. exchange-traded commodity pools; 
U.S. exchange-traded metals trusts; U.S. exchange-traded currency 
trusts; and U.S. exchange-traded futures that trade 
contemporaneously with a Fund's Shares. In addition, a Fund may hold 
cash and cash equivalents (short-term U.S. Treasury securities, 
government money market funds, and repurchase agreements). A Fund 
will not hold short positions or invest in derivatives other than 
U.S. exchange-traded futures, will not borrow for investment 
purposes, and will not purchase any securities that are illiquid 
investments at the time of purchase.
---------------------------------------------------------------------------

1. Natixis Vaughan Nelson Select ETF
    According to the Exchange, the Fund's investment objective is to 
seek long-term capital appreciation. The Fund, under normal market 
conditions,\11\ will invest primarily in equity securities, including 
exchange-traded common stocks, exchange-traded preferred stocks and 
exchange-traded real estate investment trusts (``REITs'').
---------------------------------------------------------------------------

    \11\ The term ``normal market conditions'' is defined in NYSE 
Arca Rule 8.601-E(c)(5).
---------------------------------------------------------------------------

2. Natixis Vaughan Nelson MidCap ETF
    According to the Exchange, the Fund's investment objective is to 
seek long-term capital appreciation. The Fund, under normal market 
conditions, will invest primarily in companies that, at the time of 
purchase, have market capitalizations either within the capitalization 
range of the Russell Midcap[supreg] Value Index, an unmanaged index 
that measures the performance of companies with lower price-to-book 
ratios and lower forecasted growth values within the broader Russell 
Midcap Index, or of $15 billion or less. Equity securities that the 
Fund may invest in may take the form of exchange-traded stock in 
corporations and exchange-traded REITs or other exchange-traded trusts 
and similar securities representing direct or indirect ownership 
interests in business organizations.
3. Investment Restrictions
    The Shares of the Funds will conform to the initial and continued 
listing criteria under NYSE Arca Rule 8.601-E. Each Fund's holdings 
will be limited to and consistent with permissible holdings as 
described in the Application

[[Page 47823]]

and all requirements in the Application and Exemptive Order.\12\ 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, a Fund's investments will not be used to seek performance that is 
the multiple or inverse multiple (e.g., 2X or -3X) of a Fund's primary 
broad-based securities benchmark index (as defined in Form N-1A).\13\
---------------------------------------------------------------------------

    \12\ See note 10, supra.
    \13\ A Fund's broad-based securities benchmark index will be 
identified in a future amendment to its Registration Statement 
following a Fund's first full calendar year of performance.
---------------------------------------------------------------------------

III. Discussion and Commission Findings

    After careful review, the Commission finds that the proposed rule 
change, as modified by Amendment No. 2, is consistent with the Act and 
rules and regulations thereunder applicable to a national securities 
exchange.\14\ In particular, the Commission finds that the proposed 
rule change, as modified by Amendment No. 2 is consistent with Section 
6(b)(5) of the Act,\15\ which requires, among other things, that the 
Exchange's rules be 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.
---------------------------------------------------------------------------

    \14\ In approving this proposed rule change, the Commission 
notes that it has considered the proposed rule's impact on 
efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
    \15\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Commission believes that the proposal is reasonably designed to 
promote fair disclosure of information that may be necessary to price 
the Shares appropriately and to prevent trading in the Shares when a 
reasonable degree of certain pricing transparency cannot be assured. As 
such, the Commission believes the proposal is reasonably designed to 
maintain a fair and orderly market for trading the Shares. The 
Commission also finds that the proposal is consistent with Section 
11A(a)(1)(C)(iii) of the Act, which sets forth Congress's finding that 
it is in the public interest and appropriate for the protection of 
investors and the maintenance of fair and orderly markets to assure the 
availability to brokers, dealers, and investors of information with 
respect to quotations for, and transactions in, securities.
    Specifically, prior to commencement of trading in the Shares, the 
Exchange will obtain a representation from the Adviser that the NAV per 
Share of each Fund will be calculated daily and that the NAV, Proxy 
Portfolio, and Actual Portfolio for each Fund will be made available to 
all market participants at the same time.\16\ 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. Quotation and last-sale 
information for the Shares, ETFs, ETNs, U.S. exchange-traded common 
stocks, preferred stocks, and ADRs will be available via the 
Consolidated Tape Association high-speed line or from the exchange on 
which such securities trade. Price information for futures, foreign 
stocks, and cash equivalents is available through major market data 
vendors. The Funds' website will include additional information updated 
on a daily basis, including, on a per Share basis for each Fund, the 
prior business day's NAV, the closing price or bid/ask price at the 
time of calculation of such NAV, and a calculation of the premium or 
discount of the closing price or bid/ask price against such NAV. The 
website will also disclose the percentage weight overlap between the 
holdings of the Proxy Portfolio compared to the Actual Portfolio 
holdings for the prior business day, and any other information 
regarding premiums and discounts and the bid/ask spread for a Fund as 
may be required for other ETFs under Rule 6c-11 under the 1940 Act. The 
Proxy Portfolio holdings for each Fund (including the identity and 
quantity of investments in the Proxy Portfolio) will be publicly 
available on the Funds' website before the commencement of trading in 
Shares on each business day and the Funds' website will disclose the 
information required under NYSE Arca Rule 8.601-E(c)(3).\17\ The 
website and information will be publicly available at no charge.
---------------------------------------------------------------------------

    \16\ See NYSE Arca Rule 8.601-E(d)(1)(B).
    \17\ See NYSE Arca Rule 8.601-E(c)(3), which requires that the 
website for each series of Active Proxy Portfolio Shares shall 
disclose the information regarding the Proxy Portfolio as provided 
in the exemptive relief pursuant to the 1940 Act applicable to such 
series, including the following, to the extent applicable: (i) 
Ticker symbol; (ii) CUSIP or other identifier; (iii) description of 
holding; (iv) quantity of each security or other asset held; and (v) 
percentage weighting of the holding in the portfolio.
---------------------------------------------------------------------------

    In addition, intraday pricing information for all constituents of 
the Proxy Portfolio for each Fund that are exchange-traded, which 
includes all eligible instruments except cash and cash equivalents, 
will be available on the exchanges on which they are traded and through 
subscription services, and that intraday pricing information for cash 
equivalents will be available through subscription services and/or 
pricing services.
    The Commission also believes that the Exchange's rules regarding 
trading halts help to ensure the maintenance of fair and orderly 
markets for the Shares. Specifically, pursuant to its rules, the 
Exchange may consider all relevant factors in exercising its discretion 
to halt trading in the Shares and will halt trading in the Shares under 
the conditions specified in NYSE Arca Rule 7.12-E. Trading may be 
halted because of market conditions or for reasons that, in the view of 
the Exchange, make trading in the Shares inadvisable, including (1) the 
extent to which trading is not occurring in the securities and/or the 
financial instruments composing the Proxy Portfolio and/or Actual 
Portfolio; or (2) whether other unusual conditions or circumstances 
detrimental to the maintenance of a fair and orderly market are 
present.\18\ Trading in the Shares also will be subject to NYSE Arca 
Rule 8.601-E(d)(2)(D), which sets forth additional circumstances under 
which trading in the Shares will be halted.
---------------------------------------------------------------------------

    \18\ See NYSE Arca Rule 8.601-E(d)(2)(D)(i).
---------------------------------------------------------------------------

    The Commission also believes that the proposal is reasonably 
designed to help prevent fraudulent and manipulative acts and 
practices. Specifically:
     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 broker-dealer affiliate regarding 
access to information concerning the composition of and/or changes to a 
Fund's Actual Portfolio and/or Proxy Portfolio;
     The Sub-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 its broker-dealer affiliate 
regarding access to information concerning the composition of and/or 
changes to a Fund's Actual Portfolio and/or Proxy Portfolio.
     Any person related to the Adviser, Sub-Adviser or a Fund 
who makes decisions pertaining to a Fund's Actual Portfolio or the 
Proxy Portfolio or who has access to non-public information regarding a 
Fund's Actual Portfolio and/or the Proxy Portfolio or changes thereto 
are subject to procedures reasonably designed to prevent the use and 
dissemination of material non-public information regarding a Fund's 
Actual

[[Page 47824]]

Portfolio and/or the Proxy Portfolio or changes thereto;
     In the event (a) the Adviser or 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 of and/or changes to a Fund's 
Actual Portfolio and/or Proxy Portfolio, and will be subject to 
procedures designed to prevent the use and dissemination of material 
non-public information regarding a Fund's Actual Portfolio and/or Proxy 
Portfolio or changes thereto; and
     Any person or entity, including any service provider for a 
Fund, who has access to non-public information regarding a Fund's 
Actual Portfolio or the Proxy Portfolio or changes thereto will be 
subject to procedures reasonably designed to prevent the use and 
dissemination of material non-public information regarding a Fund's 
Actual Portfolio and/or the Proxy Portfolio or changes thereto, and if 
any such person or entity is registered as a broker-dealer or 
affiliated with a broker-dealer, such person or entity has erected and 
will maintain a ``fire wall'' between the person or entity and the 
broker-dealer with respect to access to information concerning the 
composition of and/or changes to a Fund's Actual Portfolio and/or Proxy 
Portfolio.
    Finally, trading in the Shares will be subject to the existing 
trading surveillances, administered by the Exchange, as well as cross-
market surveillances administered by the Financial Industry Regulatory 
Authority (``FINRA'') on behalf of the Exchange,\19\ and the Exchange 
states that these surveillance procedures are adequate to properly 
monitor Exchange trading of the Shares in all trading sessions and to 
deter and detect violations of Exchange rules and federal securities 
laws applicable to trading on the Exchange.
---------------------------------------------------------------------------

    \19\ See NYSE Arca Rule 8.601-E, Commentary .03, which requires, 
as part of the surveillance procedures for Active Proxy Portfolio 
Shares, a Fund's investment adviser to, upon request by the Exchange 
or FINRA, on behalf of the Exchange, make available to the Exchange 
or FINRA the daily Actual Portfolio holdings of the Fund.
---------------------------------------------------------------------------

    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.
    The Commission finds that the following support the listing and 
trading of the Shares:
    (1) The Shares will conform to the initial and continued listing 
criteria under NYSE Arca Rule 8.601-E.
    (2) A minimum of 100,000 Shares for each Fund will be outstanding 
at the commencement of trading on the Exchange.
    (3) The Exchange or FINRA, on behalf of the Exchange, or both, will 
communicate as needed, and may obtain information, regarding trading in 
the Shares and underlying exchange-traded instruments with other 
markets and other entities that are members of the ISG. In addition, 
the Exchange may obtain information regarding trading in the Shares and 
underlying exchange-traded instruments from markets and other entities 
with which the Exchange has in place a comprehensive surveillance 
sharing agreement. Any foreign common stocks held by a Fund will be 
traded on an exchange that is a member of the ISG or with which the 
Exchange has in place a comprehensive surveillance sharing agreement.
    (4) The Exchange has appropriate rules to facilitate trading in the 
Shares during all trading sessions.
    (5) For initial and continued listing, the Funds will be in 
compliance with Rule 10A-3 under the Act.\20\
---------------------------------------------------------------------------

    \20\ See 17 CFR 240.10A-3.
---------------------------------------------------------------------------

    (6) Each Fund's holdings will conform to the permissible 
investments as set forth in the Application and Exemptive Order and the 
holdings will be consistent with all requirements set forth in the 
Application and Exemptive Order. 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).
    (7) With respect to Active Proxy Portfolio Shares, all of the 
Exchange member obligations relating to product description and 
prospectus delivery requirements will continue to apply in accordance 
with Exchange rules and federal securities laws, and the Exchange and 
FINRA will continue to monitor Exchange members for compliance with 
such requirements.
    Pursuant to Commentary .01 to NYSE Arca Rule 8.601-E, all 
statements and representations made in the filing regarding: (1) The 
description of the portfolio; (2) limitations on portfolio holdings; or 
(3) the applicability of Exchange listing rules specified in the filing 
constitute continued listing requirements for listing the Shares on the 
Exchange. In addition, the issuer must notify 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 Act, the 
Exchange will monitor \21\ 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 NYSE Arca Rule 5.5-E(m).
---------------------------------------------------------------------------

    \21\ The Commission notes that certain proposals for the listing 
and trading of exchange-traded products include a representation 
that the exchange will ``surveil'' for compliance with the continued 
listing requirements. See, e.g., Securities Exchange Act Release No. 
77499 (April 1, 2016), 81 FR 20428, 20432 (April 7, 2016) (SR-BATS-
2016-04). In the context of this representation, it is the 
Commission's view that ``monitor'' and ``surveil'' both mean ongoing 
oversight of compliance with the continued listing requirements. 
Therefore, the Commission does not view ``monitor'' as a more or 
less stringent obligation than ``surveil'' with respect to the 
continued listing requirements.
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IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the Act 
\22\ that the proposed rule change (SR-NYSEArca-2020-51), as modified 
by Amendment No. 2, be, and it hereby is, approved.
---------------------------------------------------------------------------

    \22\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\23\
---------------------------------------------------------------------------

    \23\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-17131 Filed 8-5-20; 8:45 am]
BILLING CODE 8011-01-P

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