[Federal Register Volume 88, Number 71 (Thursday, April 13, 2023)]
[Notices]
[Pages 22493-22495]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-07735]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-97267; File No. SR-NYSEARCA-2023-30]


Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
and Immediate Effectiveness of a Proposed Rule Change Amending the Rule 
Governing the Listing and Trading of Shares of the Gabelli Equity 
Income ETF

April 7, 2023.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on April 5, 2023, NYSE Arca, Inc. (``NYSE Arca'' or ``Exchange'') filed 
with the Securities and Exchange Commission (``Commission'') the 
proposed rule change as described in Items I and II below, which Items 
have been prepared by the Exchange. 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\ 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 reflect a change in the name of the 
Gabelli Equity Income ETF (the ``Fund'') and an updated description of 
the investment strategy for the Fund, shares of which are currently 
listed and traded on the Exchange pursuant to NYSE Arca Rule 8.900-E. 
The proposed rule change is available on the Exchange's website at 
www.nyse.com, at the principal office of the Exchange, and at the 
Commission's Public Reference Room.

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

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

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

1. Purpose
    The purpose of this rule filing is to reflect a change to the name 
of the Fund and an updated description of the Fund's investment 
strategy. The Commission previously approved the listing and trading of 
Shares of the Fund on the Exchange pursuant to NYSE Arca Rule 8.900-
E.\3\ NYSE Arca Rule 8.900-E governs the listing and trading of Managed 
Portfolio Shares, which are securities issued by an actively managed 
open-end investment management company.\4\ The Shares of the Fund are 
issued by the Gabelli ETFs Trust (the ``Trust''), a statutory trust 
organized under the laws of the State of Delaware and registered with 
the Commission as an open-end management investment company.\5\
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    \3\ See Securities Exchange Act Release No. 89663 (August 25, 
2020), 85 FR 53868 (August 31, 2020) (SR-NYSEArca-2020-48) (Order 
Approving a Proposed Rule Change, as Modified by Amendment No. 1, To 
List and Trade Shares of Gabelli ETFs Under Rule 8.900-E, Managed 
Portfolio Shares) (the ``Approval Order'').
    \4\ See Securities Exchange Act Release No. 88648 (April 15, 
2020), 85 FR 22200 (April 21, 2020). Rule 8.900-E(c)(1) provides 
that the term ``Managed Portfolio Share'' means a security that (a) 
represents an interest in an investment company (``Investment 
Company'') registered under the Investment Company Act of 1940 (the 
``1940 Act'') organized as an open-end management investment company 
that invests in a portfolio of securities selected by the Investment 
Company's investment adviser consistent with the Investment 
Company's investment objectives and policies; (b) is issued in a 
Creation Unit, or multiples thereof, in return for a designated 
portfolio of instruments (and/or an amount of cash) with a value 
equal to the next determined net asset value and delivered to the 
Authorized Participant (as defined in the Investment Company's Form 
N-1A filed with the Commission) through a Confidential Account; (c) 
when aggregated into a Redemption Unit, or multiples thereof, may be 
redeemed for a designated portfolio of instruments (and/or an amount 
of cash) with a value equal to the next determined net asset value 
delivered to the Confidential Account for the benefit of the 
Authorized Participant; and (d) the portfolio holdings for which are 
disclosed within at least 60 days following the end of every fiscal 
quarter.
    \5\ The Trust is registered under the 1940 Act. The Commission 
issued an order granting exemptive relief to the Trust (``Exemptive 
Order'') under the 1940 Act on December 3, 2019 (Investment Company 
Act Release No. 33708). The Exemptive Order was granted in response 
to the Trust's application for exemptive relief (the ``Exemptive 
Application'') (File No. 812-15036). The Trust has filed a 
registration statement on Form N-1A under the Securities Act of 1933 
(the ``1933 Act'') and the 1940 Act for the Fund (File No. 812-
15036) (``Registration Statement''). The Trust subsequently filed 
Post-Effective Amendment No. 6 to the Registration Statement 
reflecting the new name of the Fund and the updated description of 
the Fund's investment strategy. See Post-Effective Amendment No. 6 
to Registration Statement on Form N-1A for the Trust, dated March 
11, 2023 (File Nos. 333-238109 and 811-23568). Investments made by 
the Fund will comply with the conditions set forth in the Exemptive 
Application and the Exemptive Order. See Approval Order, 85 FR at 
53869 & n. 9. The description of the Fund and the changes to the 
Fund proposed herein are based, in part, on information in the 
Registration Statement, as amended. Shares of the Fund have been 
listed and traded on the Exchange since January 4, 2023. The Adviser 
(as defined in the Approval Order) represents that it will not 
implement the changes described herein until the instant proposed 
rule change is operative.
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    The Approval Order stated that the Fund's name would be the Gabelli 
Equity Income ETF. The Exchange now proposes to update the name of the 
Fund to the Gabelli Commercial Aerospace and Defense ETF, which name is 
reflected in the Registration Statement and is consistent with the 
updated description of the Fund discussed below.
    The Approval Order stated that the Fund seeks a high level of total 
return on its assets with an emphasis on income and intends to invest 
in income producing equity securities including U.S. exchange-listed 
common stock and preferred stock. The Exchange proposes to update the 
description of the Fund to provide that, as set forth in the 
Registration Statement, the Fund will seek to achieve its investment 
objective

[[Page 22494]]

by investing, under normal market conditions, at least 80% of its net 
assets (including any assets purchased using borrowings for investment 
purposes) in securities in the aerospace and defense sectors. According 
to the Registration Statement, the Fund defines an ``aerospace and 
defense'' company as a company that derives at least 50% of its 
revenues from, or devotes 50% of its assets to, aerospace and/or 
defense related activities. Aerospace companies include manufacturers, 
assemblers and distributors of aircraft and aircraft parts; defense 
companies include producers of components and equipment for the defense 
industry, such as military aircraft, radar equipment and weapons.
    Except for the changes noted above, all other representations made 
in the Exchange's previous rule filing to list and trade Shares of the 
Fund remain unchanged and will continue to constitute continuing 
listing requirements for the Fund. As set forth in the Approval Order, 
the Fund's holdings will continue to conform to the permissible 
investments as set forth in the Exemptive Application and Exemptive 
Order, and the holdings will be consistent with the Registration 
Statement and all requirements in the Exemptive Application and 
Exemptive Order.\6\ The Fund will also continue to comply with the 
requirements of Rule 8.900-E.
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    \6\ See note 3, supra.
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Act,\7\ in general, and furthers the 
objectives of Section 6(b)(5) of the Act,\8\ 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.
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    \7\ 15 U.S.C. 78f(b).
    \8\ 15 U.S.C. 78f(b)(5).
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    The Exchange believes the proposed rule change is designed to 
remove impediments to and perfect the mechanism of a free and open 
market and, in general, to protect investors and the public interest 
because it would reflect the change in the Fund's name and description, 
as set forth in the Registration Statement. Specifically, the proposed 
rule change would reflect a change in the Fund's name from the Gabelli 
Equity Income ETF to the Gabelli Commercial Aerospace and Defense ETF 
and reflect the Fund's updated strategy, through which the Fund will 
seek to achieve its investment objectives by investing, under normal 
market conditions, at least 80% of its net assets (including any assets 
purchased using borrowings for investment purposes) in securities in 
the aerospace and defense sectors. The proposed change is also designed 
to remove impediments to and perfect the mechanism of a free and open 
market, promote just and equitable principles of trade, and protect 
investors and the public interest because the Fund's investments will 
be consistent with the Registration Statement and continue to comply 
with all conditions set forth in the Exemptive Application and 
Exemptive Order. Except for the changes noted above, all other 
representations made in the Exchange's original rule filing remain 
unchanged and will continue to constitute continuing listing 
requirements for the Fund.

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

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purpose of the Act. As noted above, the proposed 
rule change would reflect only a change in the name and description of 
the Fund and would thus facilitate the continued listing and trading of 
Shares of the Fund on the Exchange, thereby promoting competition among 
various ETF 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

    Because the foregoing proposed rule change does not: (i) 
significantly affect the protection of investors or the public 
interest; (ii) impose any significant burden on competition; and (iii) 
become operative for 30 days from the date on which it was filed, or 
such shorter time as the Commission may designate, it has become 
effective pursuant to Section 19(b)(3)(A)(iii) of the Act \9\ and 
subparagraph (f)(6) of Rule 19b-4 thereunder.\10\
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    \9\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \10\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6) 
requires the Exchange to give the Commission written notice of its 
intent to file the proposed rule change, along with a brief 
description and text of the proposed rule change, at least five 
business days prior to the date of filing of the proposed rule 
change, or such shorter time as designated by the Commission. The 
Exchange has satisfied this requirement.
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    A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the 
Act normally does not become operative for 30 days after the date of 
its filing. However, Rule 19b-4(f)(6)(iii) \11\ permits the Commission 
to designate a shorter time if such action is consistent with the 
protection of investors and the public interest. The Exchange has 
requested that the Commission waive the 30-day operative delay so that 
the proposal may become operative immediately upon filing. The Exchange 
asserts that waiver of the operative delay would be consistent with the 
protection of investors and the public interest because it would 
promptly reflect the updated name and description of the Fund and 
facilitate the continued listing and trading of the shares of the Fund. 
In addition, the Commission notes that all types and quantities of 
proposed permitted investments are presently permitted. For these 
reasons, and because the proposal raises no novel legal or regulatory 
issues, the Commission believes that waiver of the 30-day operative 
delay is consistent with the protection of investors and the public 
interest. Accordingly, the Commission hereby waives the 30-day 
operative delay and designates the proposed rule change operative upon 
filing.\12\
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    \11\ 17 CFR 240.19b-4(f)(6)(iii).
    \12\ For purposes only of waiving the 30-day operative delay, 
the Commission has also considered the proposed rule's impact on 
efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
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    At any time within 60 days of the filing of such proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is necessary or 
appropriate in the public interest, for the protection of investors, or 
otherwise in furtherance of the purposes of the Act.

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:

[[Page 22495]]

Electronic Comments

     Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-NYSEARCA-2023-30 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-2023-30. This 
file number should be included on the subject line if email is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's internet website (https://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for website viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE, 
Washington, DC 20549 on official business days between the hours of 
10:00 a.m. and 3:00 p.m. Copies of 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-2023-30 and should 
be submitted on or before May 4, 2023.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\13\
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    \13\ 17 CFR 200.30-3(a)(12), (59).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-07735 Filed 4-12-23; 8:45 am]
BILLING CODE 8011-01-P