[Federal Register Volume 85, Number 217 (Monday, November 9, 2020)]
[Notices]
[Pages 71366-71373]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-24786]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-90323; File No. SR-NYSEArca-2020-94]


Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
of Proposed Rule Change To List and Trade Shares of the AdvisorShares Q 
Portfolio Blended Allocation ETF and AdvisorShares Q Dynamic Growth ETF 
Under Rule 8.900-E

November 3, 2020.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby 
given that, on October 20, 2020, NYSE Arca, Inc. (``NYSE Arca'' or the 
``Exchange'') 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 self-regulatory 
organization. The Commission is publishing this notice to solicit 
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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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): AdvisorShares Q 
Portfolio Blended Allocation ETF and AdvisorShares Q Dynamic Growth 
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
    NYSE Arca Rule 8.900-E permits 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 AdvisorShares Q 
Portfolio Blended Allocation ETF and AdvisorShares Q Dynamic Growth ETF 
(each a ``Fund'' and, collectively, the ``Funds'') under Rule 8.900-E.
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    \4\ 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 
AdvisorShares 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 AdvisorShares Investments, LLC (the ``Adviser''). The 
investment sub-advisor to each Fund will be ThinkBetter, LLC. Foreside 
Fund Services, 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 September 11, 
2020, the Trust filed a registration statement on Form N-1A under 
the Securities Act of 1933 (the ``1933 Act'') and the 1940 Act for 
the Funds (File Nos. 333-157876 and 811-22110) (``Registration 
Statement''). The description of the operation of the Trust and the 
Funds herein is based, in part, on the Registration Statement. The 
Trust has filed an application for an order under Section 6(c) of 
the 1940 Act for exemptions from various provisions of the 1940 Act 
and rules thereunder (the ``Exemptive Application'') (File No. 812-
15146). The Exchange will not commence trading in Shares of the 
Funds until the Commission has issued an order granting the 
exemptions requested in the Exemptive Application.
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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 of 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

[[Page 71367]]

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(b)(4) 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(b)(4) is also similar to Commentary .06 to Rule 8.600-E 
related to Managed Fund Shares, except that Rule 8.900-E(b)(4) relates 
to establishment and maintenance of a ``fire wall'' between the 
investment adviser and personnel of the broker-dealer or broker-dealer 
affiliate, as applicable, with respect 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 personnel of the broker-dealer or 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 non-public 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.
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    \8\ 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.
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Description of the Funds \8\
    Each Fund's holdings will conform to the permissible investments as 
set forth in the Exemptive Application and the holdings will be 
consistent with all requirements in the Exemptive Application.\9\
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    \9\ Pursuant to the Exemptive Application, the only permissible 
investments for a Fund are the following that trade on a U.S. 
exchange contemporaneously with the Funds' Shares: 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, as well as cash and cash 
equivalents (short-term U.S. Treasury securities, government money 
market funds, and repurchase agreements).
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AdvisorShares Q Portfolio Blended Allocation ETF
    The Fund is an actively managed ETF that is primarily a ``fund of 
funds.'' The Fund's investment objective is to seek to maximize total 
return over the long-term. The Fund will invest in ETFs representing 
all asset classes, including, but not limited to, treasury bonds, 
municipal bonds, investment grade corporate bonds, high-yield U.S. 
corporate bonds, U.S. and foreign equities, and commodities.
AdvisorShares Q Dynamic Growth ETF
    The Fund is an actively managed ETF that is primarily a ``fund of 
funds.'' The Fund seeks to achieve long-term growth. The Fund will 
invest in ETFs representing all asset classes, including, but not 
limited to, treasury bonds, municipal bonds, investment grade corporate 
bonds, high-yield U.S. corporate bonds, U.S. and foreign equities, 
commodities, and volatility products.
Investment Restrictions
    Each Fund's holdings will be consistent with all requirements 
described in the Exemptive Application.\10\
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    \10\ See id.
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    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, for each Fund, 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 investment objective.
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 \11\ and Redemption Units,\12\ 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'').\13\

[[Page 71368]]

Authorized Participants (``AP''), as defined in the applicable Form N-
1A filed with the Commission, will sign an agreement with an AP 
Representative \14\ establishing the Confidential Account for the 
benefit of the AP. AP Representatives will be broker-dealers. An AP 
must be a Depository Trust Company Participant that has executed an 
authorized participant agreement (``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.
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    \11\ Rule 8.900-E(c)(6) provides that the term ``Creation Unit'' 
means a specified minimum 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.
    \12\ 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.
    \13\ 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.
    \14\ 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.
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    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 be issued and 
redeemed in Creation Units and Redemption Units, the size of which will 
be specified in the Registration Statement. The size of Creation Units 
and Redemption Units is subject to change. 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 a designated portfolio of securities (``Deposit 
Securities''), and APs redeeming their Shares will receive an in-kind 
transfer of a designated portfolio of securities (``Redemption 
Securities'') through the AP Representative in their Confidential 
Account.\15\ On any given Business Day, the names and quantities of the 
instruments that constitute the Deposit Securities and the names and 
quantities of the instruments that constitute the Redemption Securities 
will be identical, and these instruments may be referred to, in the 
case of either a purchase or a redemption, as the ``Creation Basket.''
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    \15\ According to the Registration Statement, the Funds must 
comply with the federal securities laws in accepting Deposit 
Securities and satisfying redemptions with Redemption Securities, 
including that the Deposit Securities and Redemption Securities are 
sold in transactions that would be exempt from registration under 
the 1933 Act.
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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 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 
each Fund's prospectus or Statement of Additional Information 
(``SAI''). The NAV of each Fund is expected to be determined once each 
Business Day as of the close of the regular trading session on the NYSE 
(ordinarily 4:00 p.m. E.T.) (the ``Valuation Time''). 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. In purchasing the necessary 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.
    Generally, all orders to purchase Creation Units must be received 
by the Distributor no later than 3:00 p.m. E.T. (``Order Cut-Off 
Time'') 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. As with all existing ETFs, if there is a difference 
between the NAV attributable to a Creation Unit and the aggregate 
market value of the Creation Basket exchanged for the Creation Unit, 
the party conveying instruments with the lower value will also pay to 
the other an amount in cash equal to that difference (the ``Balancing 
Amount'').
    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.\16\ Other than the Balancing Amount, the Fund will 
substitute cash only under exceptional circumstances and as set forth 
under the Fund's policies and procedures governing the composition of 
Creation Baskets.
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    \16\ To the extent that a Fund allows creations or redemptions 
to be conducted in cash, such transactions will be effected in the 
same manner for all APs transacting in cash.
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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'') 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 no 
later than the Order Cut-Off Time on the Transmittal Date. A 
transaction fee may be imposed to offset costs associated with 
redemption orders.
    In the case of a redemption, the AP would enter into an irrevocable 
redemption order, and then the applicable Fund would instruct its 
custodian to deliver the Redemption Securities to the appropriate 
Confidential Account. The Authorized Participant would direct the AP 
Representative on when that day to liquidate those securities. As with 
the purchase of securities, the AP Representative will use methods, 
such as breaking the transaction into multiple transactions and 
transacting in multiple

[[Page 71369]]

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 (i) taking the current market value of its 
total assets, (ii) subtracting any liabilities, and (iii) dividing that 
amount by the total number of shares owned by shareholders.
    Each Fund generally values its portfolio investments at market 
prices. If market prices are unavailable or a Fund thinks that they are 
unreliable, or when the value of a security has been materially 
affected by events occurring after the relevant market closes, the Fund 
will price those securities at fair value as determined in good faith 
using methods approved by the Fund's Board.
    More information about the valuation of each Fund's holdings can be 
found in the SAI.
    Information showing the number of days that the market price of 
each Fund's Shares was greater than the Fund's NAV (i.e., at a premium) 
or less than the Fund's NAV (i.e., at a discount) for various time 
periods is available on the Funds' website at www.advisorshares.com.
Availability of Information
    The Funds' website, www.advisorshares.com, 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 
price, the bid/ask spreads at the time of calculation of such NAV (the 
``Bid/Ask Price''),\17\ and a calculation of the premium and discount 
of the market price or Bid/Ask Price against the NAV. The website and 
information will be publicly available at no charge.
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    \17\ 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.
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    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),\18\ will 
be widely disseminated by the Reporting Authority \19\ and/or one or 
more major market data vendors in one second intervals during the 
Exchange's Core Trading Session.
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    \18\ 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.
    \19\ Rule 8.900-E(c)(8) provides that the term ``Reporting 
Authority'' in respect of a particular series of Managed Portfolio 
Shares means the Exchange, an institution, or a reporting service 
designated by the Exchange or by the exchange that lists a 
particular series of Managed Portfolio Shares (if the Exchange is 
trading such series pursuant to unlisted trading privileges), as the 
official source for calculating and reporting information relating 
to such series, including, but not limited to, the NAV, the VIIV, or 
other information relating to the issuance, redemption, or trading 
of Managed Portfolio Shares. A series of Managed Portfolio Shares 
may have more than one Reporting Authority, each having different 
functions.
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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 Fund 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 VIIV will be widely disseminated by the Reporting Authority 
and/or by one or more major market data vendors in one second intervals 
during the Core Trading Session. 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 will be 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 would be effectively a near real 
time approximation of each Fund's NAV, available free of charge from 
one or more market data vendors, 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.\20\ 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.
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    \20\ See Rule 7.12-E.
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    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

[[Page 71370]]

to the maintenance of a fair and orderly market are present.\21\
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    \21\ 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 VIIV; 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. As 
provided in the Exemptive Application, each series of Managed 
Portfolio Shares would employ a pricing verification agent to 
continuously compare two intraday indicative values during regular 
trading hours in order to ensure the accuracy of the VIIV.
---------------------------------------------------------------------------

    Rule 8.900-E(d)(2)(C)(ii) provides that, if the Exchange becomes 
aware that: (i) The VIIV of a series of Managed Portfolio Shares is not 
being calculated or disseminated in one second intervals, as required; 
(ii) the NAV 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 VIIV, 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 
Application. 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) and 8.900-E(d)(2)(B), 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 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,\22\ in general, and furthers the 
objectives of Section 6(b)(5) of the Act,\23\ 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.
---------------------------------------------------------------------------

    \22\ 15 U.S.C. 78f(b).
    \23\ 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

[[Page 71371]]

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 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, the Adviser will implement and maintain a fire wall 
with respect to personnel of the broker-dealer or 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 non-public 
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 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.\24\ 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.
---------------------------------------------------------------------------

    \24\ See supra note 21.
---------------------------------------------------------------------------

    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

[[Page 71372]]

listed and traded on the Exchange pursuant to the initial and continued 
listing criteria in Rule 8.900-E.\25\ Each Fund's holdings will conform 
to the permissible investments as set forth in the Exemptive 
Application.\26\ 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.
---------------------------------------------------------------------------

    \25\ 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.
    \26\ See supra note 9.
---------------------------------------------------------------------------

    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 investment objective.
    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.

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 up to 90 days (i) as the Commission may designate 
if it finds such longer period to be appropriate and publishes its 
reasons for so finding or (ii) as to which the self-regulatory 
organization consents, the Commission will:
    (A) By order approve or disapprove the proposed rule change, or
    (B) institute proceedings to determine whether the proposed rule 
change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to rule-comments@sec.gov. Please include 
File Number SR-NYSEArca-2020-94 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-2020-94. 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

[[Page 71373]]

only one method. The Commission will post all comments on the 
Commission's internet website (http://www.sec.gov/rules/sro.shtml). 
Copies of the submission, all subsequent amendments, all written 
statements with respect to the proposed rule change that are filed with 
the Commission, and all written communications relating to the proposed 
rule change between the Commission and any person, other than those 
that may be withheld from the public in accordance with the provisions 
of 5 U.S.C. 552, will be available for 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-2020-94, and should be 
submitted on or before November 30, 2020.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\27\
---------------------------------------------------------------------------

    \27\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-24786 Filed 11-6-20; 8:45 am]
BILLING CODE 8011-01-P


