[Federal Register Volume 88, Number 202 (Friday, October 20, 2023)]
[Notices]
[Pages 72545-72553]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-23265]


-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-98765; File No. SR-NYSEARCA-2023-71]


Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To List and Trade 
Shares of the John Hancock Fundamental All Cap Core ETF Under Rule 
8.601-E, Active Proxy Portfolio Shares

October 17, 2023.
    Pursuant to section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby given 
that on October 13, 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 self-regulatory 
organization. The Commission is publishing this notice to

[[Page 72546]]

solicit comments on the proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to list and trade shares of the following 
under NYSE Arca Rule 8.601-E: John Hancock Fundamental All Cap Core 
ETF. 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 Exchange has adopted 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.\4\ Commentary .01 to Rule 8.601-E requires 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 the John Hancock 
Fundamental All Cap Core ETF (the ``Fund'') under Rule 8.601-E.
---------------------------------------------------------------------------

    \4\ See Securities Exchange Act Release No. 89185 (June 29, 
2020), 85 FR 40328 (July 6, 2020) (SR-NYSEArca-2019-95). 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 or Custom 
Basket, as applicable, 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 or Custom Basket, as applicable, 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.'' 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.'' Rule 8.601-E(c)(3) provides that ``[t]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.'' 
Rule 8.601-E(c)(4) provides that the term ``Custom Basket'' means a 
portfolio of securities that is different from the Proxy Portfolio 
and is otherwise consistent with the exemptive relief issued 
pursuant to the Investment Company Act of 1940 applicable to a 
series of Active Proxy Portfolio Shares.
---------------------------------------------------------------------------

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 \5\ and for which a ``Disclosed Portfolio'' is 
required to be disseminated at least once daily,\6\ 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 
Investment Company Act of 1940, as amended (the ``1940 Act'').\7\ 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 or Custom Basket, as applicable, and/or 
cash with a value equal to the next-determined NAV. 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. As set forth 
in NYSE Arca Rule 8.601-E(d)(2)(B)(ii), for Active Proxy Portfolio 
Shares using a Custom Basket, each Business Day,\8\ before the opening 
of trading in the Core Trading Session (as defined in NYSE Arca Rule 
7.34-E (a)), the Investment Company shall make publicly available on 
its website the composition of any Custom Basket transacted on the 
previous Business Day, except a Custom Basket that differs from the 
applicable Proxy Portfolio only with respect to cash.
---------------------------------------------------------------------------

    \5\ 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).
    \6\ 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.
    \7\ 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.
    \8\ ``Business Day'' is defined to mean any day that the 
Exchange is open, including any day when the Fund satisfies 
redemption requests as required by section 22(e) of the 1940 Act.
---------------------------------------------------------------------------

    The Commission has previously approved \9\ and noticed for 
immediate

[[Page 72547]]

effectiveness \10\ the listing and trading on the Exchange of series of 
Active Proxy Portfolio Shares under NYSE Arca Rule 8.601-E.
---------------------------------------------------------------------------

    \9\ See, e.g., Securities Exchange Act Release Nos. 89185 (June 
29, 2020), 85 FR 40328 (July 6, 2020) (SR-NYSEArca-2019-95) (Notice 
of Filing of Amendment No. 6 and Order Granting Accelerated Approval 
of a Proposed Rule Change, as Modified by Amendment No. 6, to Adopt 
NYSE Arca Rule 8.601-E to Permit the Listing and Trading of Active 
Proxy Portfolio Shares and To List and Trade Shares of the Natixis 
U.S. Equity Opportunities ETF Under Proposed NYSE Arca Rule 8.601-
E); 89192 (June 30, 2020), 85 FR 40699 (July 7, 2020) (SR-NYSEArca-
2019-96) (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); 89191 (June 30, 2020), 85 FR 40358 (July 6, 
2020) (SR-NYSEArca-2019-92) (Notice of Filing of Amendment No. 3 and 
Order Granting Accelerated Approval of a Proposed Rule Change, as 
Modified by Amendment No. 3, to List and Trade Four Series of Active 
Proxy Portfolio Shares Issued by T. Rowe Price Exchange-Traded 
Funds, Inc. under NYSE Arca Rule 8.601-E); 89438 (July 31, 2020), 85 
FR 47821 (August 6, 2020) (SR-NYSEArca-2020-51) (Order Granting 
Approval of a Proposed Rule Change, as Modified by Amendment No. 2, 
to List and Trade Shares of Natixis Vaughan Nelson Select ETF and 
Natixis Vaughan Nelson MidCap ETF under NYSE Arca Rule 8.601-E); 
91266 (March 5, 2021), 86 FR 13930 (March 11, 2021) (SR-NYSEArca-
2020-104) (Order Approving a Proposed Rule Change, as Modified by 
Amendment No. 2, To List and Trade Shares of the Stance Equity ESG 
Large Cap Core ETF Under NYSE Arca Rule 8.601-E).
    \10\ See, e.g., Securities Exchange Act Release Nos. 92104 (June 
3, 2021), 86 FR 30635 (June 9, 2021) (NYSEArca-2021-46) (Notice of 
Filing and Immediate Effectiveness of Proposed Rule Change to List 
and Trade Shares of the Nuveen Santa Barbara Dividend Growth ETF, 
Nuveen Small Cap Select ETF, and Nuveen Winslow Large-Cap Growth ESG 
ETF Under NYSE Arca Rule 8.601-E (Active Proxy Portfolio Shares); 
92958 (September 13, 2021), 86 FR 51933 (September 17, 2021) 
(NYSEArca-2021-77) (Notice of Filing and Immediate Effectiveness of 
Proposed Rule Change To List and Trade Shares of the Nuveen Growth 
Opportunities ETF Under NYSE Arca Rule 8.601-E (Active Proxy 
Portfolio Shares); 93264 (October 6, 2021), 86 FR 56989 (October 13, 
2021) (SR-NYSEArca-2021-84) (Notice of Filing and Immediate 
Effectiveness of Proposed Rule Change To List and Trade Shares of 
the Schwab Ariel ESG ETF Under NYSE Arca Rule 8.601-E (Active Proxy 
Portfolio Shares); 94486 (March 22, 2022), 87 FR 17351 (March 28, 
2022) (SR-NYSEArca-2022-14) (Notice of Filing and Immediate 
Effectiveness of Proposed Rule Change to List and Trade Shares of 
the Columbia Seligman Semiconductor and Technology ETF Under NYSE 
Arca Rule 8.601 (Active Proxy Portfolio Shares); 94908 (May 13, 
2022), 87 FR 30524 (May 19, 2022) (SR-NYSEArca-2022-28) (Notice of 
Filing and Immediate Effectiveness of Proposed Rule Change to List 
and Trade Shares of the Principal Real Estate Active Opportunities 
ETF Under NYSE Arca Rule 8.601 (Active Proxy Portfolio Shares)); 
94902 (May 12, 2022), 87 FR 30286 (May 18, 2022) (SR-NYSEArca-2022-
29) (Notice of Filing and Immediate Effectiveness of Proposed Rule 
Change to List and Trade Shares of the IQ Winslow Large Cap Growth 
ETF and IQ Winslow Focused Large Cap Growth ETF Under NYSE Arca Rule 
8.601-E (Active Proxy Portfolio Shares)).
---------------------------------------------------------------------------

    The Shares will be issued by the Fund, a series of the John Hancock 
Exchange-Traded Fund Trust (the ``Trust''), which is organized as a 
business trust under the laws of the Commonwealth of Massachusetts and 
registered with the Commission as an open-end management investment 
company.\11\ John Hancock Investment Management LLC (the ``Adviser'') 
will be the investment adviser to the Fund. Manulife Investment 
Management (US) LLC will be the sub-adviser (the ``Sub-Adviser'') for 
the Fund. State Street Bank and Trust Company will serve as the Fund's 
custodian and transfer agent (the ``Custodian''). Foreside Fund 
Services, LLC will act as the distributor (the ``Distributor'') for the 
Fund.
---------------------------------------------------------------------------

    \11\ The Trust is registered under the 1940 Act. On August 2, 
2023, the Trust filed a registration statement on Form N-1A under 
the 1940 Act relating to the Fund (File Nos. 333-183173 and 811-
22733) (the ``Registration Statement''). The Trust filed a second 
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 on December 20, 2021 (File No. 812-15235) (the 
``Application''). On January 10, 2022, the Commission issued a 
notice relating to the Application (Investment Company Act Release 
No. 34468, January 10, 2022), and on February 7, 2022, the 
Commission issued an order under the 1940 Act granting the relief 
sought in the Application (Investment Company Act Release No. 34496, 
February 7, 2022) (the ``Exemptive Order''). Investments made by the 
Fund will comply with the conditions set forth in the Application 
and the Exemptive Order. The description of the operation of the 
Fund herein is based, in part, on the Registration Statement, 
Application, and Exemptive Order. The Exchange will not commence 
trading in Shares of the Fund until the Registration Statement is 
effective.
---------------------------------------------------------------------------

    Commentary .04 to NYSE Arca Rule 8.601-E 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, Proxy Portfolio, and/or 
Custom Basket, as applicable. Any person related to the investment 
adviser or Investment Company who makes decisions pertaining to the 
Investment Company's Actual Portfolio, Proxy Portfolio, and/or Custom 
Basket, as applicable, or has access to non-public information 
regarding the Investment Company's Actual Portfolio, Proxy Portfolio, 
and/or Custom Basket, as applicable, 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, 
Proxy Portfolio, and/or Custom Basket, as applicable, or changes 
thereto. Commentary .04 is similar to Commentary .03(a)(i) and (iii) to 
NYSE Arca Rule 5.2-E(j)(3); however, 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.\12\ Commentary .04 is also similar to Commentary .06 to Rule 
8.600-E related to Managed Fund Shares, except that Commentary .04 
relates to establishment and maintenance of a ``fire wall'' between the 
investment adviser and personnel of the broker-dealer or broker-dealer 
affiliates, as applicable, applicable to an Investment Company's Actual 
Portfolio, Proxy Portfolio, and/or Custom Basket, as applicable, or 
changes thereto, and not just to the underlying portfolio, as is the 
case with Managed Fund Shares.
---------------------------------------------------------------------------

    \12\ 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 Sub-Adviser and their 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.
---------------------------------------------------------------------------

    In addition, Commentary .05 to Rule 8.601-E 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, Proxy Portfolio, 
or Custom Basket, as applicable, 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, Proxy Portfolio, or Custom Basket, as 
applicable, 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

[[Page 72548]]

entity and the broker-dealer with respect to access to information 
concerning the composition and/or changes to such Investment Company 
Actual Portfolio, Proxy Portfolio, or Custom Basket, as applicable.
    Neither the Adviser nor the Sub-Adviser is registered as a broker-
dealer, but each is affiliated with a broker-dealer. The Adviser and 
Sub-Adviser have 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 the Fund's Actual 
Portfolio, Proxy Portfolio, and/or Custom Basket, as applicable.
    In the event (a) the Adviser or Sub-Adviser becomes registered as a 
broker-dealer or becomes newly affiliated with a broker-dealer, or (b) 
any new adviser or sub-adviser is a registered broker-dealer, or 
becomes affiliated with a broker-dealer, it will implement and maintain 
a ``fire wall'' with respect to its relevant personnel or its broker-
dealer affiliate regarding access to information concerning the 
composition and/or changes to the Fund's Actual Portfolio, Proxy 
Portfolio, and/or Custom Basket, as applicable, and will be subject to 
procedures designed to prevent the use and dissemination of material 
non-public information regarding the Fund's Actual Portfolio, Proxy 
Portfolio, and/or Custom Basket, as applicable, or changes thereto. Any 
person related to the Adviser, Sub-Adviser, or the Fund who makes 
decisions pertaining to the Fund's Actual Portfolio, Proxy Portfolio, 
or Custom Basket, as applicable, or has access to non-public 
information regarding the Fund's Actual Portfolio, Proxy Portfolio, 
and/or Custom Basket, as applicable, or changes thereto are subject to 
procedures reasonably designed to prevent the use and dissemination of 
material non-public information regarding the Fund's Actual Portfolio, 
Proxy Portfolio, and/or Custom Basket, as applicable, or changes 
thereto.
    In addition, any person or entity, including any service provider 
for the Fund, who has access to non-public information regarding the 
Fund's Actual Portfolio, Proxy Portfolio, and/or Custom Basket, as 
applicable, or changes thereto, will be subject to procedures 
reasonably designed to prevent the use and dissemination of material 
non-public information regarding the Fund's Actual Portfolio, Proxy 
Portfolio, and/or Custom Basket, as applicable, 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 the Fund's Actual Portfolio, Proxy 
Portfolio, and/or Custom Basket, as applicable.
Description of the Fund
    According to the Registration Statement, the Fund will publish a 
``Tracking Basket'' \13\ on its website on each Business Day.\14\ The 
Tracking Basket is designed to closely track the daily performance of 
the Fund but is not the Fund's Actual Portfolio. The Tracking Basket is 
comprised of (1) select recently disclosed portfolio holdings and/or 
select securities from the universe from which the Fund's investments 
are selected (``Strategy Components''); (2) liquid U.S. exchange-traded 
ETFs that convey information about the types of instruments (that are 
not otherwise fully represented by the Strategy Components) in which 
the Fund invests (``Representative ETFs''); and (3) cash and cash 
equivalents. Representative ETFs will be selected for inclusion in the 
Tracking Basket such that, when aggregated with the other Tracking 
Basket components, the Tracking Basket corresponds to the Fund's 
overall holdings exposure. The Fund will publish the Tracking Basket 
for the Fund on its website before the commencement of trading of the 
Fund's Shares on each Business Day, and the Adviser will not make 
intra-day changes to the Tracking Basket except to correct errors in 
the published Tracking Basket.
---------------------------------------------------------------------------

    \13\ The ``Tracking Basket'' is the Proxy Portfolio for purposes 
of Rule 8.601-E(c)(3).
    \14\ ``Business Day'' is defined to mean any day that the 
Exchange is open, including any day when the Fund satisfies 
redemption requests as required by section 22(e) of the 1940 Act.
---------------------------------------------------------------------------

    In addition, on each Business Day, before commencement of trading 
of Shares, the Fund will publish on its website the ``Tracking Basket 
Weight Overlap,'' which is the percentage weight overlap between the 
holdings of the prior Business Day's Tracking Basket compared to the 
holdings of the Fund that formed the basis for the Fund's calculation 
of NAV at the end of the prior Business Day. The Tracking Basket Weight 
Overlap is calculated by taking the lesser weight of each asset held in 
common between the Fund's Actual Portfolio and the Tracking Basket and 
adding the totals. The Tracking Basket Weight Overlap is designed to 
provide investors with an understanding of the degree to which the 
Tracking Basket and the Fund's Actual Portfolio overlap and help 
investors evaluate the risk that the performance of the Tracking Basket 
may deviate from the performance of the Fund's Actual Portfolio.
    The Fund's holdings will conform to the permissible investments as 
set forth in the Application and Exemptive Order, and the holdings will 
be consistent with all requirements in the Application and Exemptive 
Order.\15\ Any foreign common stocks held by the 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.
---------------------------------------------------------------------------

    \15\ Pursuant to the Application and Exemptive Order, the 
permissible investments for the Fund include only the following 
instruments: exchange-traded funds, exchange-traded notes, exchange-
traded common stocks, common stocks listed on a foreign exchange 
that trade on such exchange contemporaneously with the Shares 
(``foreign common stocks''), exchange-traded preferred stocks, 
exchange-traded American Depositary Receipts (``ADRs''), exchange-
traded real estate investment trusts, exchange-traded commodity 
pools, exchange-traded metals trusts, exchange-traded currency 
trusts, and exchange-traded futures that trade contemporaneously 
with the Shares. In addition, the 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 Fund will not hold short 
positions or invest in derivatives other than U.S. exchange-traded 
futures, will not borrow for investment purposes, and will not 
purchase any securities that are illiquid investments at the time of 
purchase.
---------------------------------------------------------------------------

    According to the Registration Statement, the Fund will under normal 
market conditions invest at least 80% of its net assets in equity 
securities (including exchange-traded common and preferred securities 
and exchange-traded futures providing such exposure). Market 
capitalizations of the companies in whose securities the Fund may 
invest will span the capitalization spectrum. The Fund may invest up to 
20% of its net assets in equity securities of foreign issuers, 
including ADRs, and may invest only in common stocks listed on a 
foreign exchange that trade contemporaneously with the Fund's Shares.
Investment Restrictions
    The Shares of the Fund will conform to the initial and continued 
listing criteria under Rule 8.601-E. The Fund's holdings will be 
limited to and consistent with permissible holdings as described in the 
Application and Exemptive Order and all requirements in the Application 
and Exemptive Order.\16\
---------------------------------------------------------------------------

    \16\ Id.
---------------------------------------------------------------------------

    The Fund's investments, including derivatives, will be consistent 
with its investment objectives and will not be used to enhance leverage 
(although

[[Page 72549]]

certain derivatives and other investments may result in leverage). That 
is, the Fund's investments will not be used to seek performance that is 
the multiple or inverse multiple (e.g., 2X or -3X) of the Fund's 
primary broad-based securities benchmark index (as defined in Form N-
1A).\17\
---------------------------------------------------------------------------

    \17\ The Fund's broad-based securities benchmark index will be 
identified in a future amendment to its Registration Statement 
following the Fund's first full calendar year of performance.
---------------------------------------------------------------------------

Creations and Redemptions of Shares
    According to the Registration Statement, the Trust will issue and 
sell Shares of the Fund only in specified minimum size ``Creation 
Units'' on a continuous basis through the Distributor at the NAV next 
determined after receipt of an order, on any Business Day, in proper 
form. The NAV of the Fund's Shares will be calculated each Business Day 
as of the close of regular trading on the Exchange, ordinarily 4:00 
p.m. Eastern Time (``E.T.''). A Creation Unit will generally consist of 
at least 5,000 Shares.
    According to the Registration Statement, Shares of the Fund will be 
purchased and redeemed in Creation Units and generally on an in-kind 
basis in exchange for a basket of securities and/or instruments (the 
``Deposit Securities'') together with a deposit of a specified cash 
payment (the ``Cash Component'') or, alternatively, a specified all 
cash payment (the ``Cash Deposit''). Together, the Deposit Securities 
and Cash Component or, alternatively, the Cash Deposit constitute the 
``Fund Deposit,'' which represents the minimum initial and subsequent 
investment amount for a Creation Unit of the Fund. In the event the 
Fund requires Deposit Securities and a Cash Component in exchange for 
the purchase of a Creation Unit, the function of the Cash Component is 
to compensate for any differences between the NAV per Creation Unit and 
the ``Deposit Amount,'' which is an amount equal to the market value of 
the Deposit Securities. Deposit Securities may include securities that 
are not included, or that are included with different weightings, in a 
fund's Tracking Basket.
    Creation Units of the Fund may be purchased and/or redeemed 
partially or entirely for cash. When full or partial cash purchases or 
redemptions of Creation Units are available or specified for the Fund, 
they will be effected in essentially the same manner as in-kind 
purchases or redemptions thereof.
    In the event the Fund requires Deposit Securities and a Cash 
Component in consideration for purchasing a Creation Unit, the Fund may 
determine, upon receiving a purchase order from an Authorized 
Participant (as defined below), to accept a basket of securities or 
cash that differs from Deposit Securities or to permit the substitution 
of an amount of cash (i.e., a ``cash in lieu'' amount) to be added to 
the Cash Component to replace any Deposit Security. The Fund will 
generally require the substitution of an amount of cash (i.e., a cash-
in-lieu amount) to replace Deposit Securities that are Representative 
ETFs. Similarly, the Fund will generally substitute a cash-in-lieu 
amount to replace any Fund Securities that are Representative ETFs in 
connection with the redemption of Creation Units and may determine to 
permit a ``cash-in-lieu'' amount for any reason, and the amount of cash 
paid out in such cases will be equivalent to the value of the 
instrument listed as a Fund Security (as defined below).
    The identity and number of Deposit Securities comprising a Creation 
Unit may change from time to time. The Custodian, through the National 
Securities Clearing Corporation (``NSCC''), will make available on each 
Business Day, immediately prior to the opening of business on the 
Exchange (9:30 a.m. E.T.), a list of the names and the required number 
of each Deposit Security and the amount of the Cash Component that Fund 
would accept as a Fund Deposit for that day, as well as the identity of 
a basket of securities (``Fund Securities'') and/or an amount of cash 
applicable to redemption requests received on that day. The published 
Fund Deposit and Fund Securities will apply until a new Fund Deposit 
and Fund Securities are announced on the following Business Day, and 
there will be no intra-day changes to the Fund Deposit or Fund 
Securities except to correct errors in the published Fund Deposit or 
Fund Securities and except to the extent permitted under the Exemptive 
Order. The Fund Deposit and Fund Securities will be published each 
Business Day regardless of whether the Fund decides to issue or redeem 
Creation Units entirely or in part on a cash basis.
    All orders to purchase or redeem Creation Units must be placed with 
the Distributor by or through an Authorized Participant.\18\ Conforming 
orders to purchase or redeem Creation Units will generally be accepted 
until the closing time of regular trading hours on the Exchange 
(ordinarily 4:00 p.m. E.T.) (the ``Closing Time''). The date on which 
an order to purchase or redeem Creation Units is received and accepted 
is referred to as the ``Transmittal Date.'' All conforming Creation 
Unit orders must be received by the Distributor no later than the 
Closing Time in order to receive the NAV determined on the Transmittal 
Date. When the Exchange closes earlier than normal, the Fund may 
require orders for Creation Units to be placed earlier in the Business 
Day.
---------------------------------------------------------------------------

    \18\ An Authorized Participant is a member or participant of a 
clearing agency registered with the Commission, which has a written 
agreement with the Fund or one of its service providers that allows 
the Authorized Participant to place orders for the purchase and 
redemption of creation units.
---------------------------------------------------------------------------

Availability of Information
    The Fund's website (jhinvestments.com/etf), which will be publicly 
available prior to the public offering of Shares, will include a form 
of the prospectus for the Fund that may be downloaded. The Fund's 
website will include on a daily basis, per Share for the Fund: (1) the 
prior Business Day's NAV; (2) the prior Business Day's ``Closing 
Price'' or ``Mid-Point of the Bid/Ask Price;'' \19\ and (3) a 
calculation of the premium/discount of such Closing Price or Mid-Point 
of the Bid/Ask Price against such NAV.\20\ The Adviser has represented 
that the Fund's 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 the Fund as may be required for other 
ETFs under Rule 6c-11 under the 1940 Act, as amended. The Fund's 
website also will disclose the information required under Rule 8.601-
E(c)(3).\21\ The website and information will be publicly available at 
no charge.
---------------------------------------------------------------------------

    \19\ The records relating to Bid/Ask Prices will be retained by 
the Fund or its 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 the 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.
    \20\ The ``premium/discount'' refers to the premium or discount 
to the NAV at the end of a trading day and will be calculated based 
on the last Bid/Ask Price on a given trading day.
    \21\ See note 4, supra. 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 1940 Act applicable to such 
series, including the following, to the extent applicable: (i) 
ticker symbol; (ii) CUSIP or other identifier; (iii) description of 
holding; (iv) quantity of each security or other asset held; and (v) 
percentage weighting of the holding in the portfolio.
---------------------------------------------------------------------------

    The identity and quantity of investments in the Tracking Basket 
will be publicly available on the Fund's website before the 
commencement of

[[Page 72550]]

trading in Shares on each Business Day. The website will also include 
information relating to the Tracking Basket Weight Overlap, as 
discussed above. With respect to each Custom Basket utilized by the 
Fund, each Business Day, before the opening of trading in the Core 
Trading Session (as defined in NYSE Arca Rule 7.34-E(a)), the Fund's 
website will also include the composition of any Custom Basket 
transacted on the previous Business Day, except a Custom Basket that 
differs from the Tracking Basket only with respect to cash.
    Typical mutual fund-style annual, semi-annual and quarterly 
disclosures contained in the Fund's Commission filings will be provided 
on the Fund's website on a current basis.\22\ Thus, the Fund will 
publish the portfolio contents of its Actual Portfolio on a periodic 
basis, no less than 60 days after the end of every fiscal quarter, and 
will make such information publicly available to all market 
participants at the same time.
---------------------------------------------------------------------------

    \22\ See note 7, supra.
---------------------------------------------------------------------------

    Investors can also obtain the Fund's prospectus, SAI, Shareholder 
Reports, Form N-CSR, Form N-PORT, and Form N-CEN. The prospectus, SAI, 
and Shareholder Reports are available free upon request, 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. The Exchange 
also notes that pursuant to the Application, the Fund must comply with 
Regulation Fair Disclosure, which prohibits selective disclosure of any 
material non-public information.
    Information regarding the market price of Shares and trading volume 
in Shares, will be continually available on a real-time basis 
throughout the day on brokers' computer screens and other electronic 
services. The previous day's closing price and trading volume 
information for the Shares will be published daily in the financial 
section of newspapers or news websites.
    Quotation and last sale information for the Shares and U.S. 
exchange-traded instruments (excluding futures contracts) will be 
available via the Consolidated Tape Association (``CTA'') high-speed 
line, from the exchanges on which such securities trade, or through 
major market data vendors or subscription services. Quotation and last 
sale information for futures contracts will be available from the 
exchanges on which they trade. Intraday price information for all 
exchange-traded instruments, which include all eligible instruments 
except cash and cash equivalents, will be available from the exchanges 
on which they trade, or through major market data vendors or 
subscription services. Intraday price information for cash equivalents 
is available through major market data vendors, subscription services 
and/or pricing services.
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 the Fund.\23\ Trading in Shares of the 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 the Fund will be halted.
---------------------------------------------------------------------------

    \23\ See NYSE Arca Rule 7.12-E.
---------------------------------------------------------------------------

    Specifically, 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 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 the Fund will be outstanding at the 
commencement of trading on the Exchange. In addition, pursuant to Rule 
8.601-E(d)(1)(B), the Exchange, prior to commencement of trading in the 
Shares, will obtain a representation from the Company that (i) the NAV 
per Share of the Fund will be calculated daily, (ii) the NAV, Tracking 
Basket, and the Actual Portfolio for the Fund will be made publicly 
available to all market participants at the same time, and (iii) the 
Company and any person acting on behalf of the Company will comply with 
Regulation Fair Disclosure under the Act, including with respect to any 
Custom Basket.
    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.\24\ 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.
---------------------------------------------------------------------------

    \24\ 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

[[Page 72551]]

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 
such securities and underlying exchange-traded instruments from such 
markets and other entities. In addition, the Exchange may obtain 
information regarding trading in such securities and underlying 
exchange-traded instruments from markets and other entities that are 
members of ISG or with which the Exchange has in place a comprehensive 
surveillance sharing agreement.\25\
---------------------------------------------------------------------------

    \25\ 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 Fund, upon request, as necessary to assist with 
the performance of the surveillances and investigations referred to 
above.
    In addition, the Exchange also has a general policy prohibiting the 
distribution of material, non-public information by its employees.
    Commentary .03 to NYSE Arca Rule 8.601-E provides that the Exchange 
will implement and maintain written surveillance procedures applicable 
to 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 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 Rule 8.601-E. The Exchange 
notes that Commentary .01 to Rule 8.601-E requires an issuer of Active 
Proxy Portfolio Shares to notify the Exchange of any failure to comply 
with the continued listing requirements of Rule 8.601-E. In addition, 
the Exchange will require issuers 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 Rule 8.601-E.
    With respect to the Fund, all statements and representations made 
in this filing regarding (a) the description of the portfolio, (b) 
limitations on portfolio holdings, 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 Trust, prior to 
commencement of trading in the Shares of the Fund, that it will advise 
the Exchange of any failure by the 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 the 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,\26\ in general, and furthers the 
objectives of section 6(b)(5) of the Act,\27\ in particular, in that it 
is designed to prevent fraudulent and manipulative acts and practices, 
to promote just and equitable principles of trade, to remove 
impediments to and perfect the mechanism of a free and open market and 
a national market system, and, in general, to protect investors and the 
public interest.\28\
---------------------------------------------------------------------------

    \26\ 15 U.S.C. 78f(b).
    \27\ 15 U.S.C. 78f(b)(5).
    \28\ The Exchange represents that, for initial and continued 
listing, the Fund will be in compliance with Rule 10A-3 under the 
Act, as provided by NYSE Arca Rule 5.3-E.
---------------------------------------------------------------------------

    With respect to the proposed listing and trading of Shares of the 
Fund, 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 NYSE Arca Rule 8.601-E.
    The Fund's holdings will conform to the permissible investments as 
set forth in the Application and Exemptive Order, and the holdings will 
be consistent with all requirements in the Application and Exemptive 
Order.\29\
---------------------------------------------------------------------------

    \29\ See note 15, supra.
---------------------------------------------------------------------------

    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 underlying exchange-traded instruments from such markets 
and other entities. In addition, the Exchange may obtain information 
regarding trading in the Shares and underlying exchange-traded 
instruments from markets and other entities that are members of ISG or 
with which the Exchange has in place a comprehensive surveillance 
sharing agreement. Any foreign common stocks held by the 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.
    The daily dissemination of the identity and quantity of Tracking 
Basket 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.
    The Fund's investments, including derivatives, will be consistent 
with its investment objective and will not be used to enhance leverage 
(although certain derivatives and other investments may result in 
leverage). That is, the Fund's investments will not be used to seek 
performance that is the multiple or inverse multiple (e.g., 2X or -3X) 
of the Fund's primary broad-based securities benchmark index (as 
defined in Form N-1A).
    The proposed rule change is designed to promote just and equitable 
principles

[[Page 72552]]

of trade and to protect investors and the public interest in that the 
Exchange will obtain a representation from the Trust that the NAV per 
Share of the Fund will be calculated daily and that the NAV, Tracking 
Basket, Actual Portfolio, and/or Custom Basket, as applicable, for the 
Fund will be made available to all market participants at the same 
time. Investors can obtain the Fund's SAI, shareholder reports, and its 
Form N-CSR, Form N-PORT, and Form N-CEN. The Fund's SAI and shareholder 
reports will be available free upon request from the 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.
    Commentary .03 to NYSE Arca Rule 8.601-E provides that the Exchange 
will implement and maintain written surveillance procedures applicable 
to 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 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. With respect to the Fund, the Adviser will make available daily 
to FINRA and the Exchange the portfolio holdings of the Fund upon 
request as necessary to facilitate the performance of the surveillances 
and investigations referred to above.
    The Exchange will utilize its existing procedures to monitor 
compliance with the requirements of 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 Trust, upon initial listing and 
periodically thereafter, a representation that it is in compliance with 
Rule 8.601-E. The Exchange notes that Commentary .01 to Rule 8.601-E 
requires the issuer of Shares to notify the Exchange of any failure to 
comply with the continued listing requirements of Rule 8.601-E. In 
addition, the Exchange will require the issuer to represent that it 
will notify the Exchange of any failure to comply with the terms of 
applicable exemptive and no-action relief. The Exchange will rely on 
the foregoing procedures to become aware of any non-compliance with the 
requirements of Rule 8.601-E.
    In addition, with respect to the Fund, a large amount of 
information will be publicly available regarding the Fund and the 
Shares, thereby promoting market transparency.
    Quotation and last sale information for the Shares and U.S. 
exchange-traded instruments (excluding futures contracts) will be 
available via the CTA high-speed line, from the exchanges on which such 
securities trade, or through major market data vendors or subscription 
services. Quotation and last sale information for futures contracts 
will be available from the exchanges on which they trade. Intraday 
price information for all exchange-traded instruments, which include 
all eligible instruments except cash and cash equivalents, will be 
available from the exchanges on which they trade, or through major 
market data vendors or subscription services. Intraday price 
information for cash equivalents is available through major market data 
vendors, subscription services and/or pricing services.
    The website for the Fund will include a form of the prospectus 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 Fund 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. 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 the Fund will be halted. In 
addition, as noted above, investors will have ready access to the 
Fund's Tracking Basket and quotation and last sale information for the 
Shares. The identity and quantity of investments in the Fund's Tracking 
Basket will be publicly available on the Fund's website before the 
commencement of trading in Shares on each Business Day. The Shares will 
conform to the initial and continued listing criteria under Rule 8.601-
E.\30\
---------------------------------------------------------------------------

    \30\ See note 4, supra.
---------------------------------------------------------------------------

    The Fund's holdings will conform to the permissible investments as 
set forth in the Application and Exemptive Order, and the holdings will 
be consistent with all requirements in the Application and Exemptive 
Order.\31\ Any foreign common stocks held by the 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.
---------------------------------------------------------------------------

    \31\ See note 15, supra.
---------------------------------------------------------------------------

    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 the Fund, that it will advise the Exchange of any failure 
by the 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 the 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 necessary or appropriate 
in furtherance of the purposes of the Act. The Exchange believes the 
proposed rule change would permit listing and trading of an additional 
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.

[[Page 72553]]

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) of the Act \32\ and Rule 19b-
4(f)(6) thereunder.\33\
---------------------------------------------------------------------------

    \32\ 15 U.S.C. 78s(b)(3)(A).
    \33\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii) 
requires a self-regulatory organization 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.
---------------------------------------------------------------------------

    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) \34\ 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 
notes that the Commission has approved and noticed for immediate 
effectiveness proposed rule changes to permit listing and trading on 
the Exchange of Active Proxy Portfolio Shares similar to the Fund.\35\ 
The proposed listing rule for the Fund raises no novel legal or 
regulatory issues. Thus, 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.\36\
---------------------------------------------------------------------------

    \34\ 17 CFR 240.19b-4(f)(6)(iii).
    \35\ See supra notes 9 and 10.
    \36\ 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).
---------------------------------------------------------------------------

    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:

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-2023-71 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-2023-71. 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 
a.m. and 3 p.m. Copies of the filing also will be available for 
inspection and copying at the principal office of the Exchange. Do not 
include personal identifiable information in submissions; you should 
submit only information that you wish to make available publicly. We 
may redact in part or withhold entirely from publication submitted 
material that is obscene or subject to copyright protection. All 
submissions should refer to file number SR-NYSEARCA-2023-71 and should 
be submitted on or before November 13, 2023.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\37\
---------------------------------------------------------------------------

    \37\ 17 CFR 200.30-3(a)(12), (59).
---------------------------------------------------------------------------

Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-23265 Filed 10-19-23; 8:45 am]
BILLING CODE 8011-01-P