[Federal Register Volume 85, Number 130 (Tuesday, July 7, 2020)]
[Notices]
[Pages 40699-40709]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14490]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-89192; File No. SR-NYSEArca-2019-96]


Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
of Amendment No. 5 and Order Granting Accelerated Approval of a 
Proposed Rule Change, as Modified by Amendment No. 5, To List and Trade 
Two Series of Active Proxy Portfolio Shares Issued by the American 
Century ETF Trust Under NYSE Arca Rule 8.601-E

June 30, 2020.

I. Introduction

    On December 23, 2019, 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): 
American Century Mid Cap Growth Impact ETF and American Century 
Sustainable Equity ETF (``Funds'').\3\ The proposed rule change was 
published for comment in the Federal Register on January 3, 2020.\4\
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    \1\ 15 U.S.C.78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ The Exchange originally proposed to adopt NYSE Arca Rule 
8.602-E to permit the Exchange to list and trade Actively Managed 
Solution Shares, and to list and trade Shares of the Funds under 
proposed Exchange Rule 8.602-E. In Amendment No. 2, the Exchange 
removed the proposal to adopt proposed NYSE Arca Rule 8.602-E and 
revised the proposal to seek to list and trade Shares of the Funds 
under proposed NYSE Arca Rule 8.601-E (Active Proxy Portfolio 
Shares). See Amendment No. 2, infra note 7. See also Amendment No. 6 
to SR-NYSEArca-2019-95 (proposing to adopt NYSE Arca Rule 8.601-E to 
list and trade Active Proxy Portfolio Shares, available on the 
Commission's website at https://www.sec.gov/comments/sr-nysearca-2019-95/srnysearca201995-7329866-218548.pdf. 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) (SR-NYSEArca-2019-95) (``Active Proxy Portfolio Shares 
Order'').
    \4\ See Securities Exchange Act Release No. 87867 (Dec. 30, 
2019), 85 FR 394.
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    On February 13, 2020, pursuant to Section 19(b)(2) of the Act,\5\ 
the Commission designated a longer period within which to approve the 
proposed rule change, disapprove the proposed rule change, or institute 
proceedings to determine whether to disapprove the proposed rule 
change.\6\ On March 31, 2020, the Exchange filed Amendment No. 2 to the 
proposed rule change, which replaced and superseded the proposed rule 
change as originally filed.\7\ On April 1, 2020, the Commission 
published Amendment No. 2 for notice and comment and instituted 
proceedings under Section 19(b)(2)(B) of the Act \8\ to determine 
whether to approve or disapprove the proposed rule change.\9\ On May 
20, 2020, the Exchange filed Amendment No. 3 to the proposed rule 
change, which replaced and superseded the proposed rule change, as 
amended by Amendment No. 2.\10\ On June 15, 2020, the Exchange filed 
Amendment No. 4 to the proposed rule change, which replaced and 
superseded the proposed rule change, as amended by Amendment No. 3.\11\ 
On June 19, 2020, the Exchange filed Amendment No. 5 to the proposed 
rule change, which replaced and superseded the proposed rule change, as 
amended by Amendment No. 4.\12\ The Commission has received no comments 
on the proposed rule change. The Commission is publishing this notice 
to solicit comments on the proposed rule change, as modified by 
Amendment No. 5, from interested persons and is approving the proposed 
rule change, as modified by Amendment No. 5, on an accelerated basis.
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    \5\ 15 U.S.C. 78s(b)(2).
    \6\ See Securities Exchange Act Release No. 88198, 85 FR 9833 
(Feb. 20, 2020). The Commission designated April 2, 2020, as the 
date by which the Commission shall approve or disapprove, or 
institute proceedings to determine whether to disapprove, the 
proposed rule change.
    \7\ Amendment No. 1 to the proposed rule change was filed on 
March 30, 2020 and subsequently withdrawn on March 31, 2020. 
Amendment No. 2 is available on the Commission's website at https://www.sec.gov/comments/sr-nysearca-2019-96/srnysearca201996-7015541-214976.pdf.
    \8\ 15 U.S.C. 78s(b)(2)(B).
    \9\ See Securities Exchange Act Release No. 88534, 85 FR 19519 
(April 7, 2020).
    \10\ Amendment No. 3 is available on the Commission's website at 
https://www.sec.gov/comments/sr-nysearca-2019-96/srnysearca201996-7220746-216947.pdf.
    \11\ Amendment No. 4 is available on the Commission's website at 
https://www.sec.gov/comments/sr-nysearca-2019-96/srnysearca201996-7316464-218309.pdf.
    \12\ Amendment No. 5 is available on the Commission's website at 
https://www.sec.gov/comments/sr-nysearca-2019-96/srnysearca201996-7329865-218547.pdf.
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II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change, as Modified by Amendment 
No. 5

    In its filing with the Commission, the self-regulatory organization 
included statements concerning the purpose of, and basis for, the 
proposed rule change and discussed any comments it received on the 
proposed rule change. The text of those statements may be examined at 
the places specified in Item IV below. The Exchange has prepared 
summaries, set forth in sections A, B, and C below, of the most 
significant parts of such statements.

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

1. Purpose
    The Exchange has proposed to add new NYSE Arca Rule 8.601-E for the 
purpose of permitting the listing and trading, or trading pursuant to 
unlisted trading privileges (``UTP''), of Active Proxy Portfolio 
Shares, which are securities issued by an actively managed open-end 
investment management company.\13\ Proposed Commentary .01

[[Page 40700]]

to Rule 8.601-E would require the Exchange to file separate proposals 
under Section 19(b) of the Act before listing and trading any series of 
Active Proxy Portfolio Shares on the Exchange. Therefore, the Exchange 
is submitting this proposal in order to list and trade shares 
(``Shares'') of Active Proxy Portfolio Shares of the American Century 
Mid Cap Growth Impact ETF and American Century Sustainable Equity ETF 
(each a ``Fund'' and, collectively, the ``Funds'') under proposed Rule 
8.601-E.
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    \13\ See Amendment 6 to SR-NYSEArca-2019-95, filed on June 19, 
2020. See also, Securities Exchange Act Release No. 87866 (December 
30, 2019), 85 FR 357 (January 3, 2020) (SR-NYSEArca-2019-95). 
Proposed Rule 8.601-E(c)(1) provides that ``[t]he term ``Active 
Proxy Portfolio Share'' means a security that (a) is issued by a 
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 
minimum 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.'' Proposed Rule 8.601-E(c)(2) provides that 
``[t]he 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.'' Proposed Rule 
8.601-E(c)(3) provides that ``[t{time} he 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 
Investment Company Act of 1940 applicable to such series.''
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Key Features of Active Proxy Portfolio Shares
    While funds issuing Active Proxy Portfolio Shares will be actively-
managed and, to that extent, will be similar to Managed Fund Shares, 
Active Proxy Portfolio Shares differ from Managed Fund Shares in the 
following important respects. First, in contrast to Managed Fund 
Shares, which are actively-managed funds listed and traded under NYSE 
Arca Rule 8.600-E \14\ and for which a ``Disclosed Portfolio'' is 
required to be disseminated at least once daily,\15\ the portfolio for 
an issue of Active Proxy Portfolio Shares will be publicly disclosed 
within at least 60 days following the end of every fiscal quarter in 
accordance with normal disclosure requirements otherwise applicable to 
open-end management investment companies registered under the 1940 
Act.\16\ The composition of the portfolio of an issue of Active Proxy 
Portfolio Shares would not be available at commencement of Exchange 
listing and trading. Second, in connection with the creation and 
redemption of Active Proxy Portfolio Shares, such creation or 
redemption may be exchanged for a Proxy Portfolio with a value equal to 
the next-determined NAV.
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    \14\ The Commission has previously approved listing and trading 
on the Exchange of a number of issues of Managed Fund Shares under 
NYSE Arca Rule 8.600-E. See, e.g., Securities Exchange Act Release 
Nos. 57801 (May 8, 2008), 73 FR 27878 (May 14, 2008) (SR-NYSEArca-
2008-31) (order approving Exchange listing and trading of twelve 
actively-managed funds of the WisdomTree Trust); 60460 (August 7, 
2009), 74 FR 41468 (August 17, 2009) (SR-NYSEArca-2009-55) (order 
approving listing of Dent Tactical ETF); 63076 (October 12, 2010), 
75 FR 63874 (October 18, 2010) (SR-NYSEArca-2010-79) (order 
approving Exchange listing and trading of Cambria Global Tactical 
ETF); 63802 (January 31, 2011), 76 FR 6503 (February 4, 2011) (SR-
NYSEArca-2010-118) (order approving Exchange listing and trading of 
the SiM Dynamic Allocation Diversified Income ETF and SiM Dynamic 
Allocation Growth Income ETF). The Commission also has approved a 
proposed rule change relating to generic listing standards for 
Managed Fund Shares. See Securities Exchange Act Release No. 78397 
(July 22, 2016), 81 FR 49320 (July 27, 2016 (SR-NYSEArca-2015-110) 
(amending NYSE Arca Equities Rule 8.600 to adopt generic listing 
standards for Managed Fund Shares).
    \15\ NYSE Arca Rule 8.600-E(c)(2) defines the term ``Disclosed 
Portfolio'' as the identities and quantities of the securities and 
other assets held by the Investment Company that will form the basis 
for the Investment Company's calculation of net asset value at the 
end of the business day. NYSE Arca Rule 8.600-E(d)(2)(B)(i) requires 
that the Disclosed Portfolio will be disseminated at least once 
daily and will be made available to all market participants at the 
same time.
    \16\ A mutual fund is required to file with the Commission its 
complete portfolio schedules for the second and fourth fiscal 
quarters on Form N-CSR under the 1940 Act. Information reported on 
Form N-PORT for the third month of a fund's fiscal quarter will be 
made publicly available 60 days after the end of a fund's fiscal 
quarter. 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 series of Active Proxy Portfolio Shares' Statement of Additional 
Information (``SAI''), its Shareholder Reports, its Form N-CSR, 
filed twice a year, and its Form N-CEN, filed annually. A series of 
Active Proxy Portfolio Shares' SAI and Shareholder Reports will be 
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 on-screen or downloaded from the Commission's website at 
www.sec.gov.
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    A series of Active Proxy Portfolio Shares will disclose the Proxy 
Portfolio on a daily basis, which, as described above, is designed to 
track closely the daily performance of the Actual Portfolio of a series 
of Active Proxy Portfolio Shares, instead of the actual holdings of the 
Investment Company, as provided by a series of Managed Fund Shares.
    In this regard, with respect to the Funds, 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.\17\ The NYSE Proxy 
Portfolio Methodology would utilize creation of a Proxy Portfolio for 
hedging and arbitrage purposes.
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    \17\ 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 will utilize the NYSE Proxy 
Portfolio Methodology.
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    The Exchange, after consulting with various Lead Market Makers 
(``LMMs'') that trade exchange-traded funds (``ETFs'') on the 
Exchange,\18\ believes that market makers will be able to make 
efficient and liquid markets priced near the ETF's intraday value, and 
market makers employ market making techniques such as ``statistical 
arbitrage,'' including correlation hedging, beta hedging, and 
dispersion trading, which is currently used throughout the financial 
services industry, to make efficient markets in exchange-traded 
products.\19\ For Active Proxy Portfolio Shares, market makers may use 
the knowledge of a fund's means of achieving its investment objective, 
as described in the applicable fund registration statement, as well as 
a fund's disclosed Proxy Portfolio, to construct a hedging proxy for a 
fund to manage a market maker's quoting risk in connection with trading 
fund shares. Market makers can then conduct statistical arbitrage 
between their hedging proxy and shares of a fund, buying and selling 
one against the other over the course of the trading day. This ability 
should permit market makers to make efficient markets in an issue of 
Active Proxy Portfolio Shares without precise knowledge of a fund's 
underlying portfolio. This is similar to certain other existing 
exchange-traded products (for example, ETFs that invest

[[Page 40701]]

in foreign securities that do not trade during U.S. trading hours), in 
which spreads may be generally wider in the early days of trading and 
then narrow as market makers gain more confidence in their real-time 
hedges.
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    \18\ The term ``Lead Market Maker'' is defined in Rule 1.1(w) to 
mean a registered Market Maker that is the exclusive Designated 
Market Maker in listings for which the Exchange is the primary 
market.
    \19\ Statistical arbitrage enables a trader to construct an 
accurate proxy for another instrument, allowing it to hedge the 
other instrument or buy or sell the instrument when it is cheap or 
expensive in relation to the proxy. Statistical analysis permits 
traders to discover correlations based purely on trading data 
without regard to other fundamental drivers. These correlations are 
a function of differentials, over time, between one instrument or 
group of instruments and one or more other instruments. Once the 
nature of these price deviations have been quantified, a universe of 
securities is searched in an effort to, in the case of a hedging 
strategy, minimize the differential. Once a suitable hedging proxy 
has been identified, a trader can minimize portfolio risk by 
executing the hedging basket. The trader then can monitor the 
performance of this hedge throughout the trade period making 
corrections where warranted. In the case of correlation hedging, the 
analysis seeks to find a proxy that matches the pricing behavior of 
a fund. In the case of beta hedging, the analysis seeks to determine 
the relationship between the price movement over time of a fund and 
that of another stock. Dispersion trading is a hedged strategy 
designed to take advantage of relative value differences in implied 
volatilities between an index and the component stocks of that 
index. Such trading strategies will allow market participants to 
engage in arbitrage between series of Active Proxy Portfolio Shares 
and other instruments, both through the creation and redemption 
process and strictly through arbitrage without such processes.
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Description of the Funds and the Trust
    The Funds will be series of the American Century ETF Trust 
(``Trust''), which will be registered with the Commission as an open-
end management investment company.\20\
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    \20\ The Trust is registered under the 1940 Act. On April 6, 
2020, the Trust filed a registration statement on Form N-1A under 
the Securities Act of 1933 and the 1940 Act for the Funds (File Nos. 
333-221045 and 811-23305) (``Registration Statement''). The Trust 
also 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 (File No. 812-15082), dated December 11, 2019 
(``American Century Application'' or ``Application''). On May 12, 
2020, the Commission issued an order granting the exemptions 
requested in the Application (Investment Company Act Release No. 
33862 (May 12, 2020) (``American Century Exemptive Order'' or 
``Exemptive Order''). The American Century Application states that 
the exemptive relief requested by the Trust will apply to funds of 
the Trust that comply with the terms and conditions of the American 
Century Exemptive Order and the order issued to Natixis ETF Trust 
II. With respect to the Natixis ETF Trust II, see 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) (October 21, 2019 (``Natixis 
Application''); the Commission notice regarding the Natixis 
Application (Investment Company Release No. 33684 (File No. 812-
14870) November 14, 2019); and the Commission order under the 1940 
Act granting the exemptions requested in the Natixis Application 
(Investment Company Act Release No. 33711 (December 10, 2019)) 
(``Natixis Exemptive Order''). The American Century Application 
incorporates the Natixis Exemptive Order by reference. Investments 
made by the Funds will comply with the conditions set forth in the 
American Century Application, American Century Exemptive Order and 
Natixis Exemptive Order. The description of the operation of the 
Trust and the Funds herein is based, in part, on the Registration 
Statement and the American Century Application.
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    American Century Investment Management, Inc. (``Adviser'') will be 
the investment adviser to the Funds. Foreside Fund Services, LLC will 
act as the distributor and principal underwriter (``Distributor'') for 
the Funds. State Street Bank and Trust Company will serve as transfer 
agent (``Transfer Agent'') for the Funds.
    Proposed Commentary.04 provides that, if the investment adviser to 
the Investment Company issuing Active Proxy Portfolio Shares is 
registered as a broker-dealer or is affiliated with a broker-dealer, 
such investment adviser will erect and maintain a ``fire wall'' between 
the investment adviser and personnel of the broker-dealer or broker-
dealer affiliate, as applicable, with respect to access to information 
concerning the composition and/or changes to such Investment Company's 
Actual Portfolio and/or Proxy Portfolio.\21\ Any person related to the 
investment adviser or Investment Company who makes decisions pertaining 
to the Investment Company's Actual Portfolio and/or Proxy Portfolio or 
has access to non-public information regarding the Investment Company's 
Actual Portfolio and/or Proxy Portfolio or changes thereto must be 
subject to procedures reasonably designed to prevent the use and 
dissemination of material non-public information regarding the Actual 
Portfolio and/or Proxy Portfolio or changes thereto. Proposed 
Commentary .04 is similar to Commentary .03(a)(i) and (iii) to NYSE 
Arca Rule 5.2-E(j)(3); however, proposed Commentary .04, 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.\22\ Proposed Commentary .04 is also similar to 
Commentary .06 to Rule 8.600-E related to Managed Fund Shares, except 
that proposed Commentary .04 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, applicable to 
an Investment Company's Actual Portfolio and/or Proxy Portfolio or 
changes thereto, and not just to the underlying portfolio, as is the 
case with Managed Fund Shares.
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    \21\ The text of proposed Commentary .04 to NYSE Arca Rule 
8.601-E is included in Amendment 6 to SR-NYSEArca-2019-95. See note 
13, supra.
    \22\ 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.
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    In addition, proposed Commentary.05 provides that any person or 
entity, including a custodian, Reporting Authority, distributor, or 
administrator, who has access to non-public information regarding the 
Investment Company's Actual Portfolio or the Proxy Portfolio or changes 
thereto, must be subject to procedures reasonably designed to prevent 
the use and dissemination of material non-public information regarding 
the applicable Investment Company Actual Portfolio 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 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 Actual Portfolio or Proxy Portfolio.
    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 Actual Portfolio or Proxy Portfolio.
    In the event (a) the Adviser becomes registered as a broker-dealer 
or becomes newly affiliated with a broker-dealer, or (b) any new 
adviser or sub-adviser is a registered broker-dealer, or becomes 
affiliated with a broker-dealer, 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. Any person 
related to the Adviser or a Fund who makes decisions pertaining to the 
Fund's Actual Portfolio and/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.
    In addition, any person or entity, including any service provider 
for a Fund, who has access to non-public

[[Page 40702]]

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.
The Funds
    According to the Application, 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.
    In this regard, 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 of a Fund by investors in the secondary market at prices that 
do not vary materially from their NAV.\23\ The NYSE Proxy Portfolio 
Methodology would utilize creation of a Proxy Portfolio for hedging and 
arbitrage purposes.
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    \23\ 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 will utilize the NYSE Proxy 
Portfolio Methodology.
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    Each Fund's holdings will conform to the permissible investments as 
set forth in the American Century Application and American Century 
Exemptive Order and the holdings will be consistent with all 
requirements in the American Century Application and American Century 
Exemptive Order.\24\ 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.
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    \24\ Pursuant to the American Century Application and American 
Century Exemptive Order, the permissible investments for a Fund are 
only the following: 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). Pursuant to the Application and Exemptive Order, the 
Funds 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.
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American Century Mid Cap Growth Impact ETF
    According to the Registration Statement, the Fund will seek long-
term capital growth. The Fund, under normal market conditions,\25\ will 
invest principally in exchange-traded common stocks and will invest at 
least 80% of its assets in securities of medium capitalization 
companies.
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    \25\ The term ``normal market conditions'' is defined in 
proposed Rule 8.601-E(c)(6), which states as follows: The term 
``normal market conditions'' includes, but is not limited to, the 
absence of trading halts in the applicable financial markets 
generally; operational issues (e.g., systems failure) causing 
dissemination of inaccurate market information; or force majeure 
type events such as natural or manmade disaster, act of God, armed 
conflict, act of terrorism, riot or labor disruption or any similar 
intervening circumstance.
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American Century Sustainable Equity ETF
    According to the Registration Statement, the Fund will seek long-
term capital growth. The Fund, under normal market conditions, will 
invest at least 80% of its assets in equity securities. The Fund will 
invest principally in exchange-traded common stocks.
Creations and Redemptions of Shares
    According to the Registration Statement, the Trust will offer, 
issue and sell Shares of the Funds to investors only in specified 
minimum size ``Creation Units'' through the Distributor on a continuous 
basis at the NAV per Share next determined after an order in proper 
form is received. The NAV of a Fund is expected to be determined as of 
4:00 p.m. E.T. on each ``Business Day.'' \26\ The ``Creation Basket'' 
(as defined below) for a Fund will be based on the Proxy Portfolio, 
which is designed to approximate the value and performance of the 
Actual Portfolio. All Creation Basket instruments will be valued in the 
same manner as they are valued for purposes of calculating a Fund's 
NAV, and such valuation will be made in the same manner regardless of 
the identity of the purchaser or redeemer. Further, the total 
consideration paid for the purchase or redemption of a Creation Unit of 
Shares will be based on the NAV of such Fund, as calculated in 
accordance with the policies and procedures set forth in its 
Registration Statement.
---------------------------------------------------------------------------

    \26\ A Business Day is any day on which the Exchange is open for 
business.
---------------------------------------------------------------------------

    The Trust will sell and redeem Creation Units of each Fund only on 
a Business Day. Creation Units of the Funds may be purchased and/or 
redeemed entirely for cash, as permissible under the procedures 
described below.
    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 generally on an in-kind basis. Accordingly, except where the 
purchase or redemption will include cash under the circumstances 
specified below, purchasers will be required to purchase Creation Units 
by making an in-kind deposit of specified instruments (``Deposit 
Instruments''), and shareholders redeeming their Shares will receive an 
in-kind transfer of specified instruments (``Redemption Instruments''). 
The names and quantities of the instruments that constitute the Deposit 
Instruments and the Redemption Instruments for a Fund (collectively, 
the ``Creation Basket'') will be the same as a Fund's Proxy Portfolio, 
except to the extent purchases and redemptions are made entirely or in 
part on a cash basis.\27\
---------------------------------------------------------------------------

    \27\ The Adviser represents that, to the extent that a Fund 
allows creations and redemptions to be conducted in cash, such 
transactions will be effected in the same manner for all Authorized 
Participants transacting in cash.
---------------------------------------------------------------------------

    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 ``Cash Amount'').

[[Page 40703]]

    Each Fund will adopt and implement policies and procedures 
regarding the composition of its Creation Baskets. The policies and 
procedures will set forth detailed parameters for the construction and 
acceptance of baskets in compliance with the terms and conditions of 
the American Century Exemptive Order and that are in the best interests 
of a Fund and its shareholders, including the process for any revisions 
to or deviations from those parameters.
    A Fund that normally issues and redeems Creation Units in kind may 
require purchases and redemptions to be made entirely or in part on a 
cash basis. In such an instance, a Fund will announce, before the open 
of trading in the Core Trading Session (normally, 9:30 a.m. to 4:00 
p.m., E.T.) on a given Business Day, that all purchases, all 
redemptions, or all purchases and redemptions on that day will be made 
wholly or partly in cash. A Fund may also determine, upon receiving a 
purchase or redemption order from an Authorized Participant, to have 
the purchase or redemption, as applicable, be made entirely or in part 
in cash. Each Business Day, before the open of trading on the Exchange, 
a Fund will cause to be published through the National Securities 
Clearing Corporation (``NSCC'') the names and quantities of the 
instruments comprising the Creation Basket, as well as the estimated 
Cash Amount (if any), for that day. The published Creation Basket will 
apply until a new Creation Basket is announced on the following 
Business Day, and there will be no intra-day changes to the Creation 
Basket except to correct errors in the published Creation Basket.
    All orders to purchase Creation Units must be placed with the 
Distributor by or through an Authorized Participant, which is either: 
(1) A ``participating party'' (i.e., a broker or other participant), in 
the Continuous Net Settlement (``CNS'') System of the NSCC, a clearing 
agency registered with the Commission and affiliated with the 
Depository Trust Company (``DTC''), or (2) a DTC Participant, which in 
any case has executed a participant agreement with the Distributor and 
the Transfer Agent.
Timing and Transmission of Purchase Orders
    All orders to purchase (or redeem) Creation Units, whether using 
the NSCC Process or the DTC Process, must be received by the 
Distributor no later than the NAV calculation time (``NAV Calculation 
Time''), generally 4:00 p.m. E.T. on the date the order is placed 
(``Transmittal Date'') in order for the purchaser (or redeemer) to 
receive the NAV determined on the Transmittal Date.
Daily Disclosures
    With respect to the Funds, the following information will comprise 
the ``Proxy Portfolio Disclosures'' and, pursuant to the American 
Century Application and Exemptive Order, will be publicly available on 
the Funds' website (www.americancenturyetfs.com) before the 
commencement of trading in Shares on each Business Day:
     The Proxy Portfolio holdings (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.
     The historical ``Tracking Error'' between a Fund's last 
published NAV per share and the value, on a per Share basis, of a 
Fund's Proxy Portfolio calculated as of the close of trading on the 
prior Business Day will be publicly available on the Funds' website 
before the commencement of trading in Shares each Business Day.
     The ``Proxy Overlap'' will be publicly available on the 
Funds' website before the commencement of trading in Shares on each 
Business Day. The Proxy Overlap is the percentage weight overlap 
between the Proxy Portfolio's holdings compared to the Actual 
Portfolio's holdings that formed the basis for a Fund's calculation of 
NAV at the end of the prior Business Day. The Proxy Overlap will be 
calculated by taking the lesser weight of each asset held in common 
between the Actual Portfolio and the Proxy Portfolio and adding the 
totals.
Availability of Information
    The Funds' website (www.americancenturyetfs.com), which will be 
publicly available prior to the public offering of Shares, will include 
a form of the prospectus for each Fund that may be downloaded. The 
Funds' website will include on a daily basis, per Share for each Fund, 
the prior Business Day's NAV and the ``Closing Price'' or ``Bid/Ask 
Price,'' \28\ and a calculation of the premium/discount of the Closing 
Price or Bid/Ask Price against such NAV. The Adviser has represented 
that the Funds' website will also provide: (1) Any other information 
regarding premiums/discounts as may be required for other ETFs under 
Rule 6c-11 under the 1940 Act, as amended, and (2) any information 
regarding the bid/ask spread for a Fund as may be required for other 
ETFs under Rule 6c-11 under the 1940 Act, as amended. The website and 
information will be publicly available at no charge. Each Fund's 
website also will disclose the information required under proposed Rule 
8.601-E(c)(3).\29\ 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.
---------------------------------------------------------------------------

    \28\ The records relating to Bid/Ask Prices will be retained by 
the Funds or their service providers. The ``Bid/Ask Price'' is the 
midpoint of the highest bid and lowest offer based upon the National 
Best Bid and Offer as of the time of calculation of a Fund's NAV. 
The ``National Best Bid and Offer'' is the current national best bid 
and national best offer as disseminated by the Consolidated 
Quotation System or UTP Plan Securities Information Processor. The 
``Closing Price'' of Shares is the official closing price of the 
Shares on the Exchange.
    \29\ See note 13, supra. Proposed Rule 8.601-E (c)(3) provides 
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 Investment Company 
Act of 1940 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.
---------------------------------------------------------------------------

    Typical mutual fund-style annual, semi-annual and quarterly 
disclosures contained in the Funds' Commission filings will be provided 
on the Funds' website on a current basis.\30\ Thus, each Fund will 
publish the portfolio contents of its Actual Portfolio on a periodic 
basis within at least 60 days following the end of every fiscal 
quarter.
---------------------------------------------------------------------------

    \30\ See note 16, supra.
---------------------------------------------------------------------------

    Investors can also obtain a Fund's prospectus, SAI, Shareholder 
Reports, Form N-CSR, N-PORT and Form N-CEN filed with the Commission. 
The prospectus, SAI and Shareholder Reports are available free upon 
request from the Trust, and those documents and the Form N-CSR, N-PORT, 
and Form N-CEN may be viewed on-screen or downloaded from the 
Commission's website. The Exchange also notes that pursuant to its 
Exemptive Order, the issuer must comply with Regulation Fair 
Disclosure, which prohibits selective disclosure of any material non-
public information.
    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.
    Updated price information for U.S. exchange-listed equity 
securities is available through major market data

[[Page 40704]]

vendors or securities exchanges trading such securities. 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 (``CTA'') 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. Intraday pricing information for all constituents of the 
Proxy Portfolio 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. 
Intraday pricing information for cash equivalents will be available 
through subscription services and/or pricing services.
Investment Restrictions
    The Shares of each Fund will conform to the initial and continued 
listing criteria under proposed Rule 8.601-E. A Fund's holdings will be 
limited to and consistent with permissible holdings as described in the 
Application and all requirements in the Application and Exemptive 
Order.\31\
---------------------------------------------------------------------------

    \31\ See note 24, supra.
---------------------------------------------------------------------------

    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).\32\
---------------------------------------------------------------------------

    \32\ A Fund's broad-based securities benchmark index will be 
identified in a future amendment to the Registration Statement 
following a Fund's first full calendar year of performance.
---------------------------------------------------------------------------

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.\33\ Trading in Shares of a Fund will 
be halted if the circuit breaker parameters in NYSE Arca 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 NYSE Arca Rule 8.601-E(d)(2)(D), which sets forth 
circumstances under which Shares of a Fund will be halted.
---------------------------------------------------------------------------

    \33\ See NYSE Arca Rule 7.12-E.
---------------------------------------------------------------------------

    Specifically, proposed Rule 8.601-E(d)(2)(D) provides that the 
Exchange may consider all relevant factors in exercising its discretion 
to halt trading in a series of Active Proxy 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 Active Proxy 
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 Proxy Portfolio and/or Actual Portfolio; or 
(b) whether other unusual conditions or circumstances detrimental to 
the maintenance of a fair and orderly market are present. If the 
Exchange becomes aware that the NAV, Proxy Portfolio or Actual 
Portfolio with respect to a series of Active Proxy Portfolio Shares is 
not disseminated to all market participants at the same time, the 
Exchange shall halt trading in such series until such time as the NAV, 
Proxy Portfolio or Actual Portfolio is available to all market 
participants at the same time.
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 NYSE Arca Marketplace in all trading sessions in accordance with 
NYSE Arca Rule 7.34-E(a). As provided in NYSE Arca 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 proposed NYSE Arca Rule 8.601-E. The Exchange has 
appropriate rules to facilitate trading in the Shares during all 
trading sessions.
    A minimum of 100,000 Shares for each Fund will be outstanding at 
the commencement of trading on the Exchange. In addition, pursuant to 
proposed Rule 8.601-E(d)(1)(B), the Exchange, prior to commencement of 
trading in the Shares, will obtain a representation from the issuer of 
the Shares of each Fund that the NAV per Share will be calculated daily 
and that the NAV, Proxy Portfolio and the Actual Portfolio for each 
Fund will be made available to all market participants at the same 
time.
    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 the 
Financial Industry Regulatory Authority, Inc. (``FINRA'') will continue 
to monitor Exchange members for compliance with such requirements.
Surveillance
    The Exchange represents that trading in the Shares will be subject 
to the existing trading surveillances, administered by the Exchange, as 
well as cross-market surveillances administered by FINRA on behalf of 
the Exchange, which are designed to detect violations of Exchange rules 
and applicable federal securities laws.\34\ The Exchange represents 
that these procedures are adequate to properly monitor Exchange trading 
of the Shares in all trading sessions and to deter and detect 
violations of Exchange rules and federal securities laws applicable to 
trading on the Exchange.
---------------------------------------------------------------------------

    \34\ FINRA conducts cross-market surveillances on behalf of the 
Exchange pursuant to a regulatory services agreement. The Exchange 
is responsible for FINRA's performance under this regulatory 
services agreement.
---------------------------------------------------------------------------

    The surveillances referred to above generally focus on detecting 
securities trading outside their normal patterns, which could be 
indicative of manipulative or other violative activity. When such 
situations are detected, surveillance analysis follows and 
investigations are opened, where appropriate, to review the behavior of 
all relevant parties for all relevant trading violations.
    The Exchange or FINRA, on behalf of the Exchange, or both, will 
communicate as needed regarding trading in the Shares and underlying 
exchange-traded instruments with other markets and other entities that 
are members of the ISG, and the Exchange or FINRA, on behalf of the 
Exchange, or both, may obtain trading information regarding trading the 
Shares and exchange-traded instruments from such markets and other 
entities. In addition, the Exchange may obtain information regarding 
trading in the Shares and 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.\35\
---------------------------------------------------------------------------

    \35\ For a list of the current members of ISG, see 
www.isgportal.org.
---------------------------------------------------------------------------

    The Adviser will make available daily to FINRA and the Exchange the 
Actual Portfolio of the Funds, upon request, in order to facilitate the 
performance of the surveillances referred to above.

[[Page 40705]]

    In addition, the Exchange also has a general policy prohibiting the 
distribution of material, non-public information by its employees.
    Proposed Commentary .03 to NYSE Arca Rule 8.601-E provides that the 
Exchange will implement and maintain written surveillance procedures 
for Active Proxy Portfolio Shares. As part of these surveillance 
procedures, the Investment Company's investment adviser will 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 each series of Active Proxy Portfolio Shares. The Exchange believes 
that the ability to access the information on an as needed basis will 
provide it with sufficient information to perform the necessary 
regulatory functions associated with listing and trading series of 
Active Proxy Portfolio Shares on the Exchange, including the ability to 
monitor compliance with the initial and continued listing requirements 
as well as the ability to surveil for manipulation of Active Proxy 
Portfolio Shares.
    The Exchange will utilize its existing procedures to monitor issuer 
compliance with the requirements of proposed Rule 8.601-E. For example, 
the Exchange will continue to use intraday alerts that will notify 
Exchange personnel of trading activity throughout the day that may 
indicate that unusual conditions or circumstances are present that 
could be detrimental to the maintenance of a fair and orderly market. 
The Exchange will require from the issuer of a series of Active Proxy 
Portfolio Shares, upon initial listing and periodically thereafter, a 
representation that it is in compliance with proposed Rule 8.601-E. The 
Exchange notes that proposed Commentary .01 to Rule 8.601-E would 
require an issuer of Active Proxy Portfolio Shares to notify the 
Exchange of any failure to comply with the continued listing 
requirements of proposed Rule 8.601-E. In addition, the Exchange will 
require funds to represent that they will notify the Exchange of any 
failure to comply with the terms of applicable exemptive and no-action 
relief. As part of its surveillance procedures, the Exchange will rely 
on the foregoing procedures to become aware of any non-compliance with 
the requirements of proposed Rule 8.601-E.
    With respect to the Funds, all statements and representations made 
in this filing regarding (a) the description of the portfolio or 
reference asset, (b) limitations on portfolio holdings or reference 
assets, or (c) the applicability of Exchange listing rules specified in 
this rule filing shall constitute continued listing requirements for 
listing the Shares on the Exchange. The Exchange will obtain a 
representation from the Adviser, prior to commencement of trading in 
the Shares, 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 Act, the Exchange will 
monitor 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).
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Act,\36\ in general, and furthers the 
objectives of Section 6(b)(5) of the Act,\37\ 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.
---------------------------------------------------------------------------

    \36\ 15 U.S.C. 78f(b).
    \37\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    With respect to the proposed listing and trading of Shares of the 
Funds, the Exchange believes that the proposed rule change is designed 
to prevent fraudulent and manipulative acts and practices in that the 
Shares will be listed and traded on the Exchange pursuant to the 
initial and continued listing criteria in proposed NYSE Arca Rule 
8.601-E.\38\
---------------------------------------------------------------------------

    \38\ The Exchange represents that, for initial and continued 
listing, the Funds will be in compliance with Rule 10A-3 under the 
Act, as provided by NYSE Arca Rule 5.3-E.
---------------------------------------------------------------------------

    Each Fund's holdings will conform to the permissible investments as 
set forth in the American Century Application and the Exemptive Order 
and the holdings will be consistent with all requirements in the 
American Century Application and American Century Exemptive Order.\39\ 
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.
---------------------------------------------------------------------------

    \39\ See note 24, supra.
---------------------------------------------------------------------------

    Each Fund's investments will be consistent with its investment 
objective. 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).
    The Exchange or FINRA, on behalf of the Exchange, or both, will 
communicate as needed regarding trading in the Shares and underlying 
exchange-traded instruments with other markets and other entities that 
are members of the ISG, and the Exchange or FINRA, on behalf of the 
Exchange, or both, may obtain trading information regarding trading in 
the Shares and exchange-traded instruments from such markets and other 
entities. In addition, the Exchange may obtain information regarding 
trading in the Shares and 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.
    The Exchange, after consulting with various LMMs that trade ETFs on 
the Exchange, believes that market makers will be able to make 
efficient and liquid markets priced near the ETF's intraday value, and 
market makers employ market making techniques such as ``statistical 
arbitrage,'' including correlation hedging, beta hedging, and 
dispersion trading, which is currently used throughout the financial 
services industry, to make efficient markets in exchange-traded 
products.\40\ For Active Proxy Portfolio Shares, market makers may use 
the knowledge of a fund's means of achieving its investment objective, 
as described in the applicable fund registration statement, as well as 
a fund's disclosed Proxy Portfolio, to construct a hedging proxy for a 
fund to manage a market maker's quoting risk in connection with trading 
fund shares. Market makers can then conduct statistical arbitrage 
between their hedging proxy and shares of a fund, buying and selling 
one against the other over the course of the trading day. This ability 
should permit market makers to make efficient markets in an issue of 
Active Proxy Portfolio Shares without precise knowledge of a fund's 
underlying portfolio. This is similar to certain other existing 
exchange-traded products (for example, ETFs that invest in foreign 
securities that do not trade during U.S. trading hours), in which 
spreads may be generally wider in the early days of trading and then 
narrow as

[[Page 40706]]

market makers gain more confidence in their real-time hedges.
---------------------------------------------------------------------------

    \40\ See note 19, supra.
---------------------------------------------------------------------------

    The Funds will utilize 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.
    The daily dissemination of the identity and quantity of Proxy 
Portfolio component investments, together with the right of Authorized 
Participants to create and redeem each day at the NAV, will be 
sufficient for market participants to value and trade Shares in a 
manner that will not lead to significant deviations between the Shares' 
Bid/Ask Price and NAV.
    With respect to Active Proxy Portfolio Shares generally, the 
pricing efficiency with respect to trading a series of Active Proxy 
Portfolio Shares will generally rest on the ability of market 
participants to arbitrage between the shares and a fund's portfolio, in 
addition to the ability of market participants to assess a fund's 
underlying value accurately enough throughout the trading day in order 
to hedge positions in shares effectively. Professional traders can buy 
shares that they perceive to be trading at a price less than that which 
will be available at a subsequent time and sell shares they perceive to 
be trading at a price higher than that which will be available at a 
subsequent time. It is expected that, as part of their normal day-to-
day trading activity, market makers assigned to shares by the Exchange, 
off-exchange market makers, firms that specialize in electronic 
trading, hedge funds and other professionals specializing in short-
term, non-fundamental trading strategies will assume the risk of being 
``long'' or ``short'' shares through such trading and will hedge such 
risk wholly or partly by simultaneously taking positions in correlated 
assets \41\ or by netting the exposure against other, offsetting 
trading positions--much as such firms do with existing ETFs and other 
equities. Disclosure of a fund's investment objective and principal 
investment strategies in its prospectus and SAI should permit 
professional investors to engage easily in this type of hedging 
activity.
---------------------------------------------------------------------------

    \41\ Price correlation trading is used throughout the financial 
industry. It is used to discover both trading opportunities to be 
exploited, such as currency pairs and statistical arbitrage, as well 
as for risk mitigation such as dispersion trading and beta hedging. 
These correlations are a function of differentials, over time, 
between one or multiple securities pricing. Once the nature of these 
price deviations have been quantified, a universe of securities is 
searched in an effort to, in the case of a hedging strategy, 
minimize the differential. Once a suitable hedging basket has been 
identified, a trader can minimize portfolio risk by executing the 
hedging basket. The trader then can monitor the performance of this 
hedge throughout the trade period, making corrections where 
warranted.
---------------------------------------------------------------------------

    The proposed rule change is designed to promote just and equitable 
principles of trade and to protect investors and the public interest in 
that the Exchange will obtain a representation from the Funds that the 
NAV per Share of a 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. Investors can 
obtain a Fund's SAI, shareholder reports, and its Form N-CSR, Form N-
PORT and Form N-CEN. A Fund's SAI and shareholder reports will be 
available free upon request from a Fund, and those documents and the 
Form N-CSR, Form N-PORT and Form N-CEN may be viewed on-screen or 
downloaded from the Commission's website. In addition, with respect to 
each Fund, 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, ETFs, 
ETNs, U.S. exchange-traded common stocks, preferred stocks and ADRs 
will be available via the CTA 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 website for the Funds will include a form of the 
prospectus for each Fund that may be downloaded, and additional data 
relating to NAV and other applicable quantitative information, updated 
on a daily basis. Trading in Shares of the Funds will be halted if the 
circuit breaker parameters in NYSE Arca Rule 7.12-E have been reached 
or because of market conditions or for reasons that, in the view of the 
Exchange, make trading in the Shares inadvisable. In addition, as noted 
above, investors will have ready access to the Proxy Portfolio and 
quotation and last sale information for the Shares. 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. The Shares will conform to the initial and continued 
listing criteria under proposed Rule 8.601-E.\42\
---------------------------------------------------------------------------

    \42\ See Amendment 6 to SR-NYSEArca-2019-95, referenced in note 
13, supra.
---------------------------------------------------------------------------

    The Shares of the Funds will be subject to proposed Rule 8.601-
E(d)(2)(D), which provides that the Exchange may consider all relevant 
factors in exercising its discretion to halt trading in a series of 
Active Proxy 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 Active Proxy 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 Proxy 
Portfolio and/or Actual Portfolio; or (b) whether other unusual 
conditions or circumstances detrimental to the maintenance of a fair 
and orderly market are present. If the Exchange becomes aware that the 
NAV, Proxy Portfolio or Actual Portfolio with respect to a series of 
Active Proxy Portfolio Shares is not disseminated to all market 
participants at the same time, the Exchange shall halt trading in such 
series until such time as the NAV, Proxy Portfolio or Actual Portfolio 
is available to all market participants at the same time.
    The proposed rule change is designed to perfect the mechanism of a 
free and open market and, in general, to protect investors and the 
public interest in that it will facilitate the listing and trading of 
an additional type of actively-managed exchange-traded product that 
will enhance competition among market participants, to the benefit of 
investors and the marketplace. The Exchange will obtain a 
representation from the Adviser, prior to commencement of trading in 
the Shares of a Fund, 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 Act, the 
Exchange will monitor 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).
    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 quotation and last sale information for the 
Shares.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not

[[Page 40707]]

necessary or appropriate in furtherance of the purposes of the Act. The 
Exchange believes the proposed rule change would permit listing and 
trading of another type of actively-managed ETF that has 
characteristics different from existing actively-managed and index ETFs 
and would introduce additional competition among various ETF products 
to the benefit of investors.

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. Discussion and Commission Findings

    After careful review, the Commission finds that the proposed rule 
change, as modified by Amendment No. 5, is consistent with the Act and 
rules and regulations thereunder applicable to a national securities 
exchange.\43\ In particular, the Commission finds that the proposed 
rule change, as modified by Amendment No. 5 is consistent with Section 
6(b)(5) of the Act,\44\ 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 notes that in a 
separate order, it 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.\45\
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    \43\ 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).
    \44\ 15 U.S.C. 78f(b)(5).
    \45\ See note 3 supra.
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    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, the Commission notes that the Exchange, prior to 
commencement of trading in the Shares, will obtain a representation 
from the issuer of the Shares of each Fund that the NAV per Share 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.\46\ 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 each Fund's website will disclose the information 
required under Rule 8.601-E(c)(3).\47\ The website and information will 
be publicly available at no charge.
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    \46\ See NYSE Arca Rule 8.601-E(d)(1)(B).
    \47\ See 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 Investment Company Act of 1940 
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.
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    In addition, the Exchange states that intraday pricing information 
for all constituents of the Proxy Portfolio 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 notes 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.\48\ 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.
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    \48\ See NYSE Arca Rule 8.601-E(d)(2)(D)(i).
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    The Commission also believes that the proposal is reasonably 
designed to help prevent fraudulent and manipulative acts and 
practices. Specifically, the Exchange provides 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 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;
     Any person related to the Adviser or a Fund who makes 
decisions pertaining to the Fund's Actual Portfolio and/or 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 40708]]

Portfolio and/or the Proxy Portfolio or changes thereto;
     In the event (a) the Adviser becomes registered as a 
broker-dealer or becomes newly affiliated with a broker-dealer or (b) 
any new adviser or sub-adviser is a registered broker-dealer, or 
becomes affiliated with a broker-dealer, 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, the Exchange represents that trading in the Shares will be 
subject to the existing trading surveillances, administered by the 
Exchange, as well as cross-market surveillances administered by FINRA 
on behalf of the Exchange,\49\ and 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.
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    \49\ 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.
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    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.
    In support of this proposal, the Exchange represents that:
    (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 
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 transactions 
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.\50\
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    \50\ See 17 CFR 240.10A-3.
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    (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.
    The Exchange also represents that all statements and 
representations made in the filing regarding: (1) The description of 
the portfolios or reference assets; (2) limitations on portfolio 
holdings or reference assets; 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 
Exchange represents that the Exchange will obtain a representation from 
the Adviser, prior to commencement of trading in the Shares, that the 
Adviser 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 Act, the Exchange will 
monitor \51\ 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).
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    \51\ 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. Solicitation of Comments on Amendment No. 5 to the Proposed Rule 
Change

    Interested persons are invited to submit written data, views, and 
arguments concerning whether the proposed rule change, as modified by 
Amendment No. 5, is consistent with the Exchange Act. Comments may be 
submitted by any of the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-NYSEArca-2019-96 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-2019-96. 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 (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

[[Page 40709]]

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-2019-96, and should 
be submitted on or before July 28, 2020.

V. Accelerated Approval of Proposed Rule Change, as Modified by 
Amendment No. 5

    The Commission finds good cause to approve the proposed rule 
change, as modified by Amendment No. 5, prior to the thirtieth day 
after the date of publication of notice of the filing of Amendment No. 
5 in the Federal Register. In Amendment No. 5, the Exchange modified 
the description of each Fund and conformed the description of NYSE Arca 
Rule 8.601-E to the final rule approved in the Active Proxy Portfolio 
Shares Order.\52\ Amendment No. 5 also provides other clarifications 
and additional information related to the Funds.\53\ The changes and 
additional information in Amendment No. 5 assist the Commission in 
finding that the proposal is consistent with the Exchange Act. 
Accordingly, the Commission finds good cause, pursuant to Section 
19(b)(2) of the Exchange Act,\54\ to approve the proposed rule change, 
as modified by Amendment No. 5, on an accelerated basis.
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    \52\ See supra note 3.
    \53\ See Amendment No. 5, supra note 12.
    \54\ 15 U.S.C. 78s(b)(2).
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VI. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the Act 
\55\ that the proposed rule change (SR-NYSEArc-2019-96), as modified by 
Amendment No. 5, be, and it hereby is, approved on an accelerated 
basis.
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    \55\ Id.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\56\
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    \56\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-14490 Filed 7-6-20; 8:45 am]
BILLING CODE 8011-01-P