[Federal Register Volume 90, Number 110 (Tuesday, June 10, 2025)]
[Notices]
[Pages 24457-24463]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-10443]
[[Page 24457]]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-103188; File No. SR-CboeBZX-2025-076]
Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of
Filing of a Proposed Rule Change To Adopt Rule 14.11(n) To Permit the
Generic Listing and Trading of Multi-Class Exchange-Traded Fund
(``ETF'')
June 4, 2025.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on June 2, 2025, Cboe BZX Exchange, Inc. (the ``Exchange'' or
``BZX'') filed with the Securities and Exchange Commission (the
``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been prepared by the 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
Cboe BZX Exchange, Inc. (``BZX'' or the ``Exchange'') is filing
with the Securities and Exchange Commission (``Commission'' or ``SEC'')
a proposed rule change to adopt Rule 14.11(n) to permit the generic
listing and trading of Multi-Class Exchange-Traded Fund (``ETF'')
Shares that comply with the requirements of Rule 6c-11 under the
Investment Company Act of 1940 (the ``Investment Company Act'') and are
eligible to operate in reliance on exemptive relief from certain
requirements of the Investment Company Act of 1940 and the rules and
regulations thereunder that permit the trust issuing the Multi-Class
ETF Shares to offer an exchange-traded fund class in addition to
classes of shares that are not exchange-traded. The Exchange is also
proposing to make conforming changes to the Exchange's definitions,
corporate governance requirements under Rule 14.10(e), and other
provisions of Rule 14.11 in order to accommodate the proposed listing
of Multi-Class ETF Shares. The text of the proposed rule change is
provided in Exhibit 5.
The text of the proposed rule change is also available on the
Exchange's website (http://markets.cboe.com/us/equities/regulation/rule_filings/bzx/), at the Exchange's Office of the Secretary, 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 Exchange 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 these 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 aspects 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 proposes to adopt new Rule 14.11(n) for the purpose of
permitting the generic listing and trading, or trading pursuant to
unlisted trading privileges, of Multi-Class Exchange-Traded Fund
(``ETF'') Shares that comply with the requirements of Rule 6c-11 under
the Investment Company Act of 1940 (the ``Investment Company Act''),
and are eligible to operate in reliance on exemptive relief from
certain requirements of the Investment Company Act and the rules and
regulations thereunder that permit the trust issuing the Multi-Class
ETF Shares to offer an exchange-traded fund class in addition to
classes of shares that are not exchange-traded of an open-end fund.\3\
The Exchange is also proposing to make conforming changes to the
Exchange's definitions, corporate governance requirements under Rule
14.10(e), and other provisions of Rule 14.11 in order to accommodate
the proposed listing of Multi-Class ETF Shares.
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\3\ The Exchange notes that it had previously submitted a
version of this filing on April 15, 2024. See Securities Exchange
Act Release No. 34-100034 (May 1, 2024) 89 FR 35255 (SR-CboeBZX-
2024-026). On November 8, 2024, that filing was withdrawn and the
Exchange submitted another filing. See Securities Exchange Act
Release No. 101655 (November 25, 2024) 89 FR 92989 (SR-CboeBZX-2024-
112). On June 2, 2025, the Exchange withdrew that filing and
submitted this proposal.
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Consistent with ETF Shares listed under the generic listing
standards in Rule 14.11(l), series of Multi-Class ETF Shares that
comply with the requirements of Rule 6c-11 under the Investment Company
Act, and are eligible to operate in reliance on exemptive relief from
certain requirements of the Investment Company Act and the rules and
regulations thereunder that permit the trust issuing the Multi-Class
ETF Shares to offer an exchange-traded fund class in addition to
classes of shares that are not exchange-traded of an open-end fund
would be permitted to be listed and traded on the Exchange without
prior Commission approval order or notice of effectiveness pursuant to
Section 19(b) of the Act.\4\
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\4\ Rule 19b-4(e)(1) provides that the listing and trading of a
new derivative securities product by a self-regulatory organization
(``SRO'') is not deemed a proposed rule change, pursuant to
paragraph (c)(1) of Rule 19b-4, if the Commission has approved,
pursuant to Section 19(b) of the Act, the SRO's trading rules,
procedures and listing standards for the product class that would
include the new derivative securities product and the SRO has a
surveillance program for the product class. As contemplated by this
Rule 14.11(n), the Exchange proposes new Rule 14.11(n) to establish
generic listing standards for Multi-Class ETFs that are permitted to
operate in reliance on exemptive relief to Rule 6c-11 under the
Investment Company Act that permits the trust issuing the Multi-
Class ETF Shares to offer an exchange-traded fund class in addition
to classes of shares that are not exchange-traded of an open-end
fund. A Multi-Class ETF listed under proposed Rule 14.11(n) would
therefore not need a separate proposed rule change pursuant to Rule
19b-4 before it can be listed and traded on the Exchange.
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Background
There are numerous applications for exemptive relief for Multi-
Class ETF Shares currently before the Commission \5\ that request
exemptive relief similar to that previously granted to other funds that
are not listed on the Exchange.\6\ This proposal would provide for the
``generic'' listing and/or trading of Multi-Class ETF Shares under
proposed Rule 14.11(n) on the Exchange immediately upon the
Commission's applicable order granting exemptive relief to the
outstanding applications. The Exchange submits this proposal only to
prevent any unnecessary delay in listing additional Multi-Class ETF
Shares generically under Rule 14.11(n) when and if such requests are
granted by the Commission.
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\5\ See Perpetual US Services, LLC (filed February 7, 2023); DFA
Investment Dimensions Group Inc. and Dimensional Investment Group
Inc. (filed July 12, 2023); F/m Investments LLC (August 22, 2023);
Fidelity Hastings Street Trust and Fidelity Management & Research
Company (filed October 24, 2023); Morgan Stanley Institutional Fund
Trust and Morgan Stanley Investment Management Inc. (filed January
29, 2024); First Trust Series Fund and First Trust Variable
Insurance Trust (filed January 24, 2024); Guinness Atkinson Funds
(filed February 27, 2024); and Metropolitan West Funds, TCW ETF
Trust, and TCW Funds, Inc. (filed March 20, 2024).
\6\ Infra note 6 [sic].
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Starting in 2000, the Commission began granting limited relief for
The Vanguard Group, Inc. (``Vanguard'') to offer certain index-based
open-end management investment companies
[[Page 24458]]
with Multi-Class ETF Shares.\7\ After this relief was granted, there
was limited public discourse about Multi-Class ETF Shares until 2019,
when the prospect of providing blanket exemptive relief to Multi-Class
ETF Shares was addressed in the Commission's adoption of Rule 6c-11
under the Investment Company Act (the ``ETF Rule'').\8\ The ETF Rule
permits ETFs that satisfy certain conditions to operate without the
expense or delay of obtaining an exemptive order. However, the ETF Rule
did not provide blanket exemptive relief to allow for Multi-Class ETF
Shares as part of the final rule. Instead, the Commission concluded
that Multi-Class ETF Shares should request relief through the exemptive
application process so that the Commission may assess all relevant
policy considerations in the context of the facts and circumstances of
particular applicants. The Exchange adopted Rule 14.11(l) \9\ shortly
after the implementation of the ETF Rule and, because there were no
exemptive applications before the Commission and because none of the
Multi-Class ETF Shares that were previously granted exemptive relief
listed on the Exchange, did not propose to include any language
comparable to what is being proposed herein.
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\7\ See Vanguard Index Funds, Investment Company Act Release
Nos. 24680 (Oct. 6, 2000) (notice) and 24789 (Dec. 12, 2000)
(order). The Commission itself, as opposed to the Commission staff
acting under delegated authority, considered the original Vanguard
application and determined that the relief was appropriate in the
public interest and consistent with the protection of investors and
the purposes fairly intended by the policy and provisions of the
Act. In the process of granting the order, the Commission also
considered and denied a hearing request on the original application,
as reflected in the final Commission order. See also the Vanguard
Group, Inc., Investment Company Act Release Nos. 26282 (Dec. 2,
2003) (notice) and 26317 (Dec. 30, 2003) (order); Vanguard
International Equity Index Funds, Investment Company Act Release
Nos. 26246 (Nov. 3, 2003) (notice) and 26281 (Dec. 1, 2003) (order);
Vanguard Bond Index Funds, Investment Company Act Release Nos. 27750
(Mar. 9, 2007) (notice) and 27773 (April 2, 2007) (order)
(collectively referred to as the ``Vanguard Orders'').
\8\ See Securities Exchange Act Release No. 33-10695 (October
24, 2019) 84 FR 57162 (the ``ETF Rule Adopting Release'').
\9\ See Securities Exchange Act No. 88566 (April 6, 2020) 85 FR
20312 (April 10, 2020) (SR-CboeBZX-2019-097) (Notice of Filing of
Amendment No. 2 and Order Granting Accelerated Approval of a
Proposed Rule Change, as Modified by Amendment No. 2, To Adopt BZX
Rule 14.11(l) Governing the Listing and Trading of Exchange-Traded
Fund Shares).
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As noted above, a number of applications for exemptive relief to
permit the applicable fund to offer Multi-Class ETF Shares (the
``Applications'') have been submitted to the Commission starting in
early 2023 by various applicants (the ``Applicants''). In general, the
Applications state that the ability of a fund to offer Multi-Class ETF
Shares, i.e., both a class of mutual fund shares (each such class, a
``Mutual Fund class'' and such shares ``Mutual Fund Shares'') and ETF
Shares, could be beneficial to the fund and to shareholders of each
type of class for various reasons, including more efficient portfolio
management, better secondary market trading opportunities, and cost
efficiencies, among others.\10\
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\10\ Specifically, the Applicants believe that a Mutual Fund
class would benefit ETF class shareholders because investor cash
flows through a Mutual Fund class can be used for efficient
portfolio rebalancing. To the extent that cash flows come into a
fund through a Mutual Fund class, a portfolio manager may be able to
deploy that cash strategically to rebalance the portfolio. Second,
cash flows through a Mutual Fund class may allow for greater
creation basket flexibility for creations and redemptions through
the ETF class, which could promote arbitrage efficiency and smaller
spreads on the trading of ETF Shares in the secondary market. With
respect to existing funds, ETF classes would permit investors that
prefer the ETF structure to gain access to established funds'
investment strategies. Additionally, the establishment of an ETF
class as part of an existing fund could lead to cost efficiencies.
Specifically, in terms of fund expenses, an ETF class could have
initial and ongoing advantages for its shareholders, where
shareholders of an ETF class of a fund that already has substantial
assets could immediately benefit from economies of scale. Finally,
the tax-free conversion of shares from the Mutual Fund class to the
ETF class may accelerate the development of an ETF shareholder base.
Subsequent secondary market transactions by the ETF class
shareholders could generate greater trading volume, resulting in
lower trading spreads and/or premiums or discounts in the market
prices of the ETF Shares to the benefit of ETF shareholders. The
Applicants also believe that an ETF class would benefit Mutual Fund
class shareholders because in-kind transactions through the ETF
class may contribute to lower portfolio transaction costs and
greater tax efficiency. Additionally, the conversion feature could
allow Mutual Fund shareholders to convert Mutual Fund Shares for ETF
Shares without adverse consequences to the Fund by allowing Mutual
Fund shareholders to convert their shares into the ETF class of the
same fund rather than redeeming their Mutual Fund Shares and buying
shares of another ETF. In doing so, the converting shareholder could
save on transaction costs and potential tax consequences that may
otherwise be incurred in redeeming their existing shares and buying
separate ETF Shares. The ETF class would also represent an
additional distribution channel for a fund that could lead to
additional asset grown and economies of scale; greater assets under
management may lead to additional cost efficiencies and an improved
tax profile for the fund may also assist the competitive position of
the Fund for attracting prospective shareholders. Last, the class of
ETF Shares could allow certain investors to engage in more frequent
trading without disrupting the fund's portfolio.
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The Exchange acknowledges that approval of this proposed rule
change would not necessarily result in the listing and trading of the
additional Multi-Class ETF Shares under the proposed Rule until and
unless the necessary relief was granted by the Division of Investment
Management, but approving this proposal would address any potential
concerns the Commission's division of Trading and Markets might have as
it specifically relates to the listing and trading of Multi-Class ETF
Shares under proposed Rule 14.11(n) and would allow for a smooth launch
process if and when such relief is granted.\11\
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\11\ The Commission has in some instances historically approved
Exchange listing rules even when no products would necessarily be
permitted to list under those rules. Most recently, the Commission
approved Exchange proposals to list and trade shares of ether-based
exchange-traded products (``ETPs'') prior to any such products
having an effective registration statement. As those ether-based
ETPs could not trade on the Exchange without an effective
registration statement, which were separately considered by the
Commission's division of corporate finance, the Exchange could not
list and trade those products even with proper Exchange Rules in
place. The Exchange believes this example illustrates the
reasonability of the Exchange pursuing the adoption a proposed Rule
that would not immediately result in the listing and trading of the
applicable products thereunder. See Securities Exchange Act No.
100224 (May 23, 2024) 89 FR 46937 (May 30, 2024) (Order Granting
Accelerated Approval of Proposed Rule Changes, as Modified by
Amendments Thereto, To List and Trade Shares of Ether-Based
Exchange-Traded Products).
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Proposal
Proposed Rule 14.11(n)(1) provides that the Exchange will consider
for trading, whether by listing or pursuant to unlisted trading
privileges, the shares of Multi-Class ETF Shares that meet the criteria
of this Rule 14.11(n).\12\
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\12\ To the extent that a series of Multi-Class ETF Shares does
not satisfy one or more of the criteria in proposed Rule 14.11(n),
the Exchange may file a separate proposal under Section 19(b) of the
Act in order to list such series on the Exchange. Consistent with
Rule 14.11(a), any of the statements or representations in that
proposal regarding the index composition, the description of the
portfolio or reference assets, limitations on portfolio holdings or
reference assets, dissemination and availability of index, reference
asset, and intraday indicative values (as applicable), or the
applicability of Exchange listing rules specified in any filing to
list such series of Multi-Class ETF Shares shall constitute
continued listing requirements for the series of Multi-Class ETF
Shares. Further, in the event that a series of Multi-Class ETF
Shares becomes listed under proposed Rule 14.11(n) and subsequently
can no longer rely on the applicable exemptive relief to Rule 6c-11,
such series of Multi-Class ETF Shares may be listed as a series of
Index Fund Shares under Rule 14.11(c) or Managed Fund Shares under
Rule 14.11(i), as applicable, as long as the series of Multi-Class
ETF Shares meets all listing requirements applicable under the
applicable rule.
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Proposed Rule 14.11(n)(2) provides that the proposed rule would be
applicable only to Multi-Class ETF Shares, and specifically, only to
the class of Multi-Class ETF Shares that are exchange traded. Except to
the extent inconsistent with this Rule 14.11(n), or unless the context
otherwise requires, the rules and procedures of the Board of Directors
shall be applicable to the trading on the Exchange of such
[[Page 24459]]
securities. Multi-Class ETF Shares are included within the definition
of ``security'' or ``securities'' as such terms are used in the Rules
of the Exchange.
Proposed Rule 14.11(n)(2) further provides that: (A) transactions
in Multi-Class ETF Shares will occur throughout the Exchange's trading
hours; and (B) the Exchange will implement and maintain written
surveillance procedures for Multi-Class ETF Shares.
Proposed Rule 14.11(n)(3)(A) provides that the term ``Multi-Class
ETF Shares'' shall mean the class of exchange-traded shares issued by a
Multi-Class ETF.
Proposed Rule 14.11(n)(3)(B) provides that the term ``Multi-Class
ETF'' means a fund that is subject to the same relief and constraints
as exchange-traded funds under Rule 6c-11 under the Investment Company
except that the security is issued by a trust that issues Multi-Class
ETF Shares in addition to classes of shares of an open-end fund that
are not exchange-traded.
Proposed Rule 14.11(n)(3)(C) provides that the term ``Reporting
Authority'' in respect of a particular series of Multi-Class ETF Shares
means the Exchange, an institution, or a reporting service designated
by the Exchange or by the exchange that lists a particular series of
Multi-Class ETF Shares (if the Exchange is trading such series pursuant
to unlisted trading privileges) as the official source for calculating
and reporting information relating to such series, including, but not
limited to, the amount of any dividend equivalent payment or cash
distribution to holders of Multi-Class ETF Shares, net asset value,
index or portfolio value, the current value of the portfolio of
securities required in connection with issuance of Multi-Class ETF
Shares, or other information relating to the issuance, redemption or
trading of Multi-Class ETF Shares. A series of Multi-Class ETF Shares
may have more than one Reporting Authority, each having different
functions.
Proposed Rule 14.11(n)(4) provides that the Exchange may approve a
series of Multi-Class ETF Shares for listing and/or trading (including
pursuant to unlisted trading privileges) on the Exchange pursuant to
Rule 19b-4(e) under the Act, provided such series of Multi-Class ETF
Shares complies with the requirements of Rule 6c-11 under the
Investment Company Act, and is eligible to operate in reliance on
exemptive relief from certain requirements of the Investment Company
Act and the rules and regulations thereunder that permits the fund to
offer Multi-Class ETF Shares, and must satisfy the requirements of this
Rule 14.11(n) on an initial and continued listing basis.
Proposed Rule 14.11(n)(4)(A) provides that the requirements of
paragraph (4) of this Rule must be satisfied by a series of Multi-Class
ETF Shares on an initial and continued listing basis. Such securities
must also satisfy the following criteria on an initial and, except for
paragraph (i) below, continued, listing basis. Further, proposed Rule
14.11(n)(4)(A) provides that: (i) for each series, the Exchange will
establish a minimum number of Multi-Class ETF Shares required to be
outstanding at the time of commencement of trading on the Exchange;
(ii) if an index underlying a series of Multi-Class ETF Shares is
maintained by a broker-dealer or fund adviser, the broker-dealer or
fund adviser shall erect and maintain a ``fire wall'' around the
personnel who have access to information concerning changes and
adjustments to the index and the index shall be calculated by a third
party who is not a broker-dealer or fund adviser. If the investment
adviser to the investment company issuing an actively managed series of
Multi-Class ETF Shares is affiliated with a broker-dealer, such
investment adviser shall erect and maintain a ``fire wall'' between the
investment adviser and the broker-dealer with respect to access to
information concerning the composition and/or changes to such Multi-
Class ETF's portfolio; and (iii) any advisory committee, supervisory
board, or similar entity that advises a Reporting Authority or that
makes decisions on the composition, methodology, and related matters of
an index underlying a series of Multi-Class ETF Shares, must implement
and maintain, or be subject to, procedures designed to prevent the use
and dissemination of material non-public information regarding the
applicable index. For actively managed Multi-Class ETFs, personnel who
make decisions on the portfolio composition must be subject to
procedures designed to prevent the use and dissemination of material
nonpublic information regarding the applicable portfolio.
Proposed Rule 14.11(n)(4)(B) provides that each series of Multi-
Class ETF Shares will be listed and traded on the Exchange subject to
application of Proposed Rule 14.11(n)(4)(B)(i) and (ii). Proposed Rule
14.11(n)(4)(B)(i) provides that the Exchange will consider the
suspension of trading in, and will commence delisting proceedings under
Rule 14.12 for, a series of Multi-Class ETF Shares under any of the
following circumstances: (a) if the Exchange becomes aware that the
issuer of the Multi-Class ETF Shares is no longer in compliance with
the requirements of Rule 6c-11 under the Investment Company Act or of
the applicable exemptive relief applicable to Muti-Class ETF Shares;
(b) if any of the other listing requirements set forth in this Rule
14.11(n) are not continuously maintained; (c) if, following the initial
twelve month period after commencement of trading on the Exchange of a
series of Multi-Class ETF Shares, there are fewer than 50 beneficial
holders of the series of Multi-Class ETF Shares for 30 or more
consecutive trading days; or (d) if such other event shall occur or
condition exists which, in the opinion of the Exchange, makes further
dealings on the Exchange inadvisable. Proposed Rule 14.11(n)(4)(B)(ii)
provides that upon termination of an investment company, the Exchange
requires that Multi-Class ETF Shares issued in connection with such
entity be removed from Exchange listing.
Proposed Rule 14.11(n)(5) provides that neither the Exchange, the
Reporting Authority, nor any agent of the Exchange shall have any
liability for damages, claims, losses or expenses caused by any errors,
omissions, or delays in calculating or disseminating any current index
or portfolio value; the current value of the portfolio of securities
required to be deposited in connection with issuance of Multi-Class ETF
Shares; the amount of any dividend equivalent payment or cash
distribution to holders of Multi-Class ETF Shares; net asset value; or
other information relating to the purchase, redemption, or trading of
Multi-Class ETF Shares, resulting from any negligent act or omission by
the Exchange, the Reporting Authority, or any agent of the Exchange, or
any act, condition, or cause beyond the reasonable control of the
Exchange, its agent, or the Reporting Authority, including, but not
limited to, an act of God; fire; flood; extraordinary weather
conditions; war; insurrection; riot; strike; accident; action of
government; communications or power failure; equipment or software
malfunction; or any error, omission, or delay in the reports of
transactions in one or more underlying securities.
The Exchange is also proposing to make corresponding amendments to
include Multi-Class ETF Shares in other Exchange rules. First, the
Exchange is proposing to add Multi-Class ETF Shares to the definition
of UTP Security in Rule 1.5(ee) and to amend Rule 14.11(c)(3)(A)(i)(a)
in order to include Multi-Class ETF Shares in the definition of
Derivative Securities Products.
Second, the Exchange proposes to amend Rule 14.10(e)(1)(E)(ii) to
exempt Multi-Class ETF Shares from the
[[Page 24460]]
requirements of Rule 14.10(i)(1) in connection with the acquisition of
the stock or assets of an affiliated registered investment company in a
transaction that complies with Rule 17a-8 under the Investment Company
Act and does not otherwise require shareholder approval under the
Investment Company Act and the rules thereunder or any other Exchange
rule.\13\
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\13\ The Exchange notes that these proposed changes would
subject Multi-Class ETF Shares to the same corporate governance
requirements as other open-end management investment companies
listed on the Exchange.
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Third, the Exchange proposes to amend Rule 14.10(e)(1)(F)(ii) to
include Multi-Class ETF Shares in the definition of ``Derivative
Securities'' for purposes of Rule 14.10. Inclusion in such definition
would exempt Multi-Class ETF Shares from the requirements relating to
Independent Directors (as set forth in Rule 14.10(c)(2)), Compensation
Committees (as set forth in Rule 14.10(c)(4)), Director Nominations (as
set forth in Rule 14.10(c)(5)), Code of Conduct (as set forth in Rule
14.10(d)), and Meetings of Shareholders (as set forth in Rule
14.10(f)). In addition, these issuers are exempt from the requirements
relating to Audit Committees (as set forth in Rule 14.10(c)(3)), except
for the applicable requirements of SEC Rule 10A-3.\14\
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\14\ Id.
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Discussion
Proposed Rule 14.11(n) is based on Rule 14.11(l) related to the
listing and trading of ETF Shares on the Exchange, which are issued
under the 1940 Act and qualify as ETF Shares under Rule 6c-11. ETF
Shares are identical to Multi-Class ETF Shares except that Multi-Class
ETF Shares have received exemptive relief to operate an exchange-traded
fund class in addition to classes of shares that are not exchange-
traded. The proposed Multi-Class ETF Shares generic listing rules would
apply only to the class of Multi-Class ETF Shares that are exchange-
traded. As such, the Exchange believes that using Rule 14.11(l) as the
basis for proposed Rule 14.11(n) is appropriate because they are
generally designed to address the issues associated with Multi-Class
ETF Shares.
The Exchange believes that the proposal is designed to prevent
fraudulent and manipulative acts and practices because the Exchange
will perform ongoing surveillance of Multi-Class ETF Shares listed on
the Exchange in order to ensure compliance with Rule 6c-11, the
Investment Company Act, and any applicable exemptive relief on an
ongoing basis. The Exchange believes that the manipulation concerns are
otherwise mitigated by a combination of the Exchange's surveillance
procedures, the Exchange's ability to halt trading under the proposed
Rule 14.11(n)(4)(B)(ii), and the Exchange's ability to suspend trading
and commence delisting proceedings under proposed Rule
14.11(n)(4)(B)(i). The Exchange will also halt trading in Multi-Class
ETF Shares under the conditions specified in Rule 11.18, ``Trading
Halts Due to Extraordinary Market Volatility.'' The Exchange also
believes that such concerns are further mitigated by enhancements to
the arbitrage mechanism that have come from Rule 6c-11, specifically
the additional flexibility provided to issuers of Multi-Class ETF
Shares through the use of custom baskets for creations and redemptions
and the additional information made available to the public through the
additional daily website disclosure obligations applicable under Rule
6c-11.\15\ The Exchange believes that the combination of these factors
will act to keep Multi-Class ETF Shares trading near the value of their
underlying holdings and further mitigate concerns around manipulation
of Multi-Class ETF Shares on the Exchange. The Exchange will monitor
for compliance with Rule 6c-11 and any applicable exemptive relief in
order to ensure that the continued listing standards are being met.
Specifically, the Exchange will review the website of each series of
Multi-Class ETF Shares listed on the Exchange in order to ensure that
the requirements of Rule 6c-11 are being met. The Exchange will also
employ numerous intraday alerts that will notify Exchange personnel of
trading activity throughout the day that is potentially indicative of
certain disclosures not being made accurately or the presence of other
unusual conditions or circumstances that could be detrimental to the
maintenance of a fair and orderly market. As a backstop to the
surveillances described above, the Exchange also notes that Rule
14.11(a) would require an issuer of Multi-Class ETF Shares to notify
the Exchange of any failure to comply with Rule 6c-11 or the Investment
Company Act.
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\15\ The Exchange notes that the Commission came to a similar
conclusion in several places in the Rule 6c-11 Release. See Rule 6c-
11 Release at 15-18; 60-61; 69-70; 78-79; 82-84; and 95-96.
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The Exchange may suspend trading in and commence delisting
proceedings for a series of Multi-Class ETF Shares where such series is
not in compliance with the applicable listing standards or where the
Exchange believes that further dealings on the Exchange are
inadvisable.\16\ The Exchange also notes that Rule 14.11(a) requires
any issuer to provide the Exchange with prompt notification after it
becomes aware of any non-compliance with proposed Rule 14.11(n), which
would include any failure of the issuer to comply with Rule 6c-11, the
Investment Company Act, or any exemptive relief applicable to Multi-
Class ETF Shares.\17\
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\16\ Specifically, proposed Rule 14.11(n)(4)(B) provides that
each series of Multi-Class ETF Shares will be listed and traded on
the Exchange subject to application of Proposed Rule
14.11(n)(4)(B)(i) and (ii). Proposed Rule 14.11(n)(4)(B)(i) provides
that the Exchange will consider the suspension of trading in, and
will commence delisting proceedings under Rule 14.12 for, a series
of Multi-Class ETF Shares under any of the following circumstances:
(a) if the Exchange becomes aware that the issuer of the Multi-Class
ETF Shares is no longer eligible to operate in reliance on Rule 6c-
11 under the Investment Company Act of 1940 or any applicable
exemptive relief applicable to Multi-Class ETF Shares; (b) if any of
the other listing requirements set forth in this Rule 14.11(n) are
not continuously maintained; (c) if, following the initial twelve
month period after commencement of trading on the Exchange of a
series of Multi-Class ETF Shares, there are fewer than 50 beneficial
holders of the series of Multi-Class ETF Shares for 30 or more
consecutive trading days; or (d) if such other event shall occur or
condition exists which, in the opinion of the Exchange, makes
further dealings on the Exchange inadvisable. Proposed Rule
14.11(n)(4)(B)(ii) provides that upon termination of an investment
company, the Exchange requires that Multi-Class ETF Shares issued in
connection with such entity be removed from Exchange listing.
\17\ The Exchange notes that failure by an issuer to notify the
Exchange of non-compliance pursuant to Rule 14.11(a) would itself be
considered non-compliance with the requirements of Rule 14.11 and
would subject the series of Multi-Class ETF Shares to potential
trading halts and the delisting process under Rule 14.12.
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Further, the Exchange also represents that its surveillance
procedures are adequate to properly monitor the trading of the Multi-
Class ETF Shares in all trading sessions and to deter and detect
violations of Exchange rules and applicable federal securities laws.
Specifically, the Exchange intends to utilize its existing surveillance
procedures applicable to derivative products, which are currently
applicable to ETF Shares, among other product types, to monitor trading
in Multi-Class ETF Shares. The Exchange or the Financial Industry
Regulatory Authority, Inc. (``FINRA''), on behalf of the Exchange, will
communicate as needed regarding trading in Multi-Class ETF Shares and
certain of their applicable underlying components with other markets
that are members of the Intermarket Surveillance Group (``ISG'') or
with which the Exchange has in place a comprehensive surveillance
sharing agreement. In addition, the Exchange may obtain information
regarding trading in Multi-Class ETF Shares and certain of their
applicable underlying
[[Page 24461]]
components from markets and other entities that are members of ISG or
with which the Exchange has in place a comprehensive surveillance
sharing agreement. Additionally, FINRA, on behalf of the Exchange, is
able to access, as needed, trade information for certain fixed income
securities that may be held by a series of Multi-Class ETF Shares
reported to FINRA's Trade Reporting and Compliance Engine (``TRACE'').
FINRA also can access data obtained from the Municipal Securities
Rulemaking Board's (``MSRB'') Electronic Municipal Market Access
(``EMMA'') system relating to municipal bond trading activity for
surveillance purposes in connection with trading in a series of Multi-
Class ETF Shares, to the extent that a series of Multi-Class ETF Shares
holds municipal securities. Finally, as noted above, the issuer of a
series of Multi-Class ETF Shares will be required to comply with Rule
10A-3 under the Act for the initial and continued listing of Multi-
Class ETF Shares, as provided under Rule 14.10(e)(1)(E).\18\
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\18\ The Exchange notes that these proposed changes would
subject ETF Shares to the same corporate governance requirements as
other open-end management investment companies listed on the
Exchange.
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The Exchange notes that it may consider all relevant factors in
exercising its discretion to halt or suspend trading in a series of
Multi-Class ETF Shares. Trading may be halted if the circuit breaker
parameters in Rule 11.18 have been reached, because of other market
conditions, or for reasons that, in the view of the Exchange, make
trading in the Shares inadvisable. These may include: (1) the extent to
which certain information about the Multi-Class ETF Shares that is
required to be disclosed under Rule 6c-11 of the Investment Company Act
is not being made available, including specifically where the Exchange
becomes aware that the net asset value or the daily portfolio
disclosure with respect to a series of Multi-Class ETF Shares is not
disseminated to all market participants at the same time, it will halt
trading in such series until such time as the net asset value or the
daily portfolio disclosure is available to all market participants;
\19\ (2) if an interruption to the dissemination to the value of the
index or reference asset on which a series of Multi-Class ETF Shares is
based persists past the trading day in which it occurred or is no
longer calculated or available; (3) trading in the securities
comprising the underlying index or portfolio has been halted in the
primary market(s); or (4) whether other unusual conditions or
circumstances detrimental to the maintenance of a fair and orderly
market are present.
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\19\ The Exchange will obtain a representation from the issuer
of Multi-Class ETF Shares that the net asset value per share will be
calculated daily and made available to all market participants at
the same time, and the requirements under Rule 6c-11 will be
satisfied for the series.
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2. Statutory Basis
The Exchange believes the proposed rule change is consistent with
Act and the rules and regulations thereunder applicable to the Exchange
and, in particular, the requirements of Section 6(b) of the Act.\20\
Specifically, the Exchange believes the proposed rule change is
consistent with the Section 6(b)(5) \21\ requirements that the rules of
an exchange be designed to prevent fraudulent and manipulative acts and
practices, to promote just and equitable principles of trade, to foster
cooperation and coordination with persons engaged in regulating,
clearing, settling, processing information with respect to, and
facilitating transactions in securities, 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.
Additionally, the Exchange believes the proposed rule change is
consistent with the Section 6(b)(5) \22\ requirement that the rules of
an exchange not be designed to permit unfair discrimination between
customers, issuers, brokers, or dealers.
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\20\ 15 U.S.C. 78f(b).
\21\ 15 U.S.C. 78f(b)(5).
\22\ Id.
---------------------------------------------------------------------------
The Exchange believes that proposed Rule 14.11(n) is designed to
prevent fraudulent and manipulative acts and practices in that the
proposed rules relating to listing and trading Multi-Class ETF Shares
on the Exchange provide specific initial and continued listing criteria
required to be met by such securities. Proposed Rule 14.11(n)(4) sets
forth initial and continued listing criteria applicable to Multi-Class
ETF Shares, specifically providing that the Exchange may approve a
series of Multi-Class ETF Shares for listing and/or trading (including
pursuant to unlisted trading privileges) on the Exchange pursuant to
Rule 19b-4(e) under the Act, provided such series of Multi-Class ETF
Shares complies with the requirements of Rule 6c-11 under the
Investment Company Act, and is eligible to operate in reliance on
exemptive relief from certain requirements of the Investment Company
Act and the rules and regulations thereunder that permits the fund to
offer Multi-Class ETF Shares, and must satisfy the requirements of this
Rule 14.11(n) on an initial and continued listing basis. The Exchange
will submit a Form 19b-4(e) for all series of Multi-Class ETF Shares
upon being listed pursuant to Rule 14.11(n) and such Form 19b-4(e) will
specifically note that such series of Multi-Class ETF Shares are being
listed on the Exchange pursuant to Rule 14.11(n).
Proposed Rule 14.11(n)(4)(B) provides that each series of Multi-
Class ETF Shares will be listed and traded on the Exchange subject to
application of Proposed Rule 14.11(n)(4)(B)(i) and (ii). Proposed Rule
14.11(n)(4)(B)(i) provides that the Exchange will consider the
suspension of trading in, and will commence delisting proceedings under
Rule 14.12 for, a series of Multi-Class ETF Shares under any of the
following circumstances: (a) if the Exchange becomes aware that the
issuer of the Multi-Class ETF Shares is no longer in compliance with
the requirements of Rule 6c-11 under the Investment Company Act of 1940
or the exemptive relief applicable to Multi-Class ETF Shares; (b) if
any of the other listing requirements set forth in this Rule 14.11(n)
are not continuously maintained; (c) if, following the initial twelve
month period after commencement of trading on the Exchange of a series
of Multi-Class ETF Shares, there are fewer than 50 beneficial holders
of the series of Multi-Class ETF Shares for 30 or more consecutive
trading days; or (d) if such other event shall occur or condition
exists which, in the opinion of the Exchange, makes further dealings on
the Exchange inadvisable. The Exchange notes that it may become aware
that the issuer is no longer compliant with Rule 6c-11 or any
applicable exemptive relief thereunder, as described in proposed Rule
14.11(n)(4)(B)(i)(a), as a result of either the Exchange identifying
non-compliance through its own monitoring process or through
notification by the issuer. Proposed Rule 14.11(n)(4)(B)(ii) provides
that upon termination of an investment company, the Exchange requires
that Multi-Class ETF Shares issued in connection with such entity be
removed from Exchange listing. The Exchange also notes that it will
obtain a representation from the issuer of each series of Multi-Class
ETF Shares stating that the requirements of Rule 6c-11 will be
continuously satisfied and that the issuer will notify the Exchange of
any failure to do so.
The Exchange further believes that proposed Rule 14.11(n) is
designed to prevent fraudulent and manipulative acts and practices
because of the robust surveillances in place on the Exchange
[[Page 24462]]
as required under proposed Rule 14.11(n)(2)(C) along with the
similarities of proposed Rule 14.11(n) to the rules related to other
securities that are already listed and traded on the Exchange and which
would qualify as Multi-Class ETF Shares. ETF Shares are identical to
Multi-Class ETF Shares except that Multi-Class ETF Shares have received
exemptive relief to operate an exchange-traded fund class in addition
to classes of shares that are not exchange-traded. As such, the
Exchange believes that using the Current ETF Standards and Rule
14.11(l) as the basis for proposed Rule 14.11(n) is appropriate because
they are generally designed to address the issues associated with
Multi-Class ETF Shares.
The Exchange believes that the proposal is consistent with Section
6(b)(1) of the Act \23\ in that, in addition to being designed to
prevent fraudulent and manipulative acts and practices, the Exchange
has the capacity to enforce proposed Rule 14.11(n) by performing
ongoing surveillance of Multi-Class ETF Shares listed on the Exchange
in order to ensure compliance with Rule 6c-11 and the 1940 Act on an
ongoing basis. The Exchange also believes that such concerns are
further mitigated by enhancements to the arbitrage mechanism that have
come from compliance with Rule 6c-11, specifically the additional
flexibility provided to issuers of Multi-Class ETF Shares through the
use of custom baskets for creations and redemptions and the additional
information made available to the public through the additional daily
website disclosure obligations applicable under Rule 6c-11.\24\ The
Exchange believes that the combination of these factors will act to
keep Multi-Class ETF Shares trading near the value of their underlying
holdings and further mitigate concerns around manipulation of Multi-
Class ETF Shares on the Exchange. The Exchange will monitor for
compliance with Rule 6c-11 and any applicable exemptive relief in order
to ensure that the continued listing standards are being met.
Specifically, the Exchange plans to review the website of series of
Multi-Class ETF Shares in order to ensure that the requirements of Rule
6c-11 are being met. The Exchange will also employ numerous intraday
alerts that will notify Exchange personnel of trading activity
throughout the day that is potentially indicative of certain
disclosures not being made accurately or the presence of other unusual
conditions or circumstances that could be detrimental to the
maintenance of a fair and orderly market. As a backstop to the
surveillances described above, the Exchange also notes that Rule
14.11(a) would require an issuer of Multi-Class ETF Shares to notify
the Exchange of any failure to comply with Rule 6c-11 or the Investment
Company Act.
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\23\ 15 U.S.C. 78f(b)(1).
\24\ The Exchange notes that the Commission came to a similar
conclusion in several places in the Rule 6c-11 Release. See Rule 6c-
11 Release at 15-18; 60-61; 69-70; 78-79; 82-84; and 95-96.
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To the extent that any of the requirements under Rule 6c-11 or the
1940 Act are not being met, the Exchange may halt trading in a series
of Multi-Class ETF Shares as provided in proposed Rule
14.11(n)(4)(B)(ii). Further, the Exchange may also suspend trading in
and commence delisting proceedings for a series of Multi-Class ETF
Shares where such series is not in compliance with the applicable
listing standards or where the Exchange believes that further dealings
on the Exchange are inadvisable.\25\ The Exchange also notes that Rule
14.11(a) requires any issuer to provide the Exchange with prompt
notification after it becomes aware of any non-compliance with proposed
Rule 14.11(n), which would include any failure of the issuer to comply
with Rule 6c-11 or the 1940 Act.\26\
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\25\ Specifically, proposed Rule 14.11(n)(4)(B) provides that
each series of Multi-Class ETF Shares will be listed and traded on
the Exchange subject to application of Proposed Rule
14.11(n)(4)(B)(i) and (ii). Proposed Rule 14.11(n)(4)(B)(i) provides
that the Exchange will consider the suspension of trading in, and
will commence delisting proceedings under Rule 14.12 for, a series
of Multi-Class ETF Shares under any of the following circumstances:
(a) if the Exchange becomes aware that the issuer of the Multi-Class
ETF Shares is no longer eligible to operate in reliance on Rule 6c-
11 under the Investment Company Act of 1940 or any exemptive relief
applicable to Multi-Class ETF Shares; (b) if any of the other
listing requirements set forth in this Rule 14.11(n) are not
continuously maintained; (c) if, following the initial twelve month
period after commencement of trading on the Exchange of a series of
Multi-Class ETF Shares, there are fewer than 50 beneficial holders
of the series of Multi-Class ETF Shares for 30 or more consecutive
trading days; or (d) if such other event shall occur or condition
exists which, in the opinion of the Exchange, makes further dealings
on the Exchange inadvisable. Proposed Rule 14.11(n)(4)(B)(ii)
provides that upon termination of an investment company, the
Exchange requires that Multi-Class ETF Shares issued in connection
with such entity be removed from Exchange listing.
\26\ The Exchange notes that failure by an issuer to notify the
Exchange of non-compliance pursuant to Rule 14.11(a) would itself be
considered non-compliance with the requirements of Rule 14.11 and
would subject the series of Multi-Class ETF Shares to potential
trading halts and the delisting process under Rule 14.12.
---------------------------------------------------------------------------
Further, the Exchange also represents that its surveillance
procedures are adequate to properly monitor the trading of the Multi-
Class ETF Shares in all trading sessions and to deter and detect
violations of Exchange rules. Specifically, the Exchange intends to
utilize its existing surveillance procedures applicable to derivative
products, which are currently applicable to ETF Shares, among other
product types, to monitor trading in Multi-Class ETF Shares. The
Exchange or FINRA, on behalf of the Exchange, will communicate as
needed regarding trading in Multi-Class ETF Shares and certain of their
applicable underlying components with other markets that are members of
the ISG or with which the Exchange has in place a comprehensive
surveillance sharing agreement. In addition, the Exchange may obtain
information regarding trading in Multi-Class ETF Shares and certain of
their applicable underlying components from markets and other entities
that are members of ISG or with which the Exchange has in place a
comprehensive surveillance sharing agreement. Additionally, FINRA, on
behalf of the Exchange, is able to access, as needed, trade information
for certain fixed income securities that may be held by a series of
Multi-Class ETF Shares reported to FINRA's TRACE. FINRA also can access
data obtained from the MSRB's EMMA system relating to municipal bond
trading activity for surveillance purposes in connection with trading
in a series of Multi-Class ETF Shares, to the extent that a series of
Multi-Class ETF Shares holds municipal securities. Finally, as noted
above, the issuer of a series of Multi-Class ETF Shares will be
required to comply with Rule 10A-3 under the Act for the initial and
continued listing of Multi-Class ETF Shares, as provided under Rule
14.10(e)(1)(E) to Rule 14.10.\27\
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\27\ The Exchange notes that these proposed changes would
subject Multi-Class ETF Shares to the same corporate governance
requirements as other open-end management investment companies
listed on the Exchange.
---------------------------------------------------------------------------
The Exchange believes that permitting Multi-Class ETF Shares to
list on the Exchange is consistent with the applicable exemptive relief
and will help perfect the mechanism of a free and open market and, in
general, will protect investors and the public interest in that it will
permit the listing and trading of Multi-Class ETF Shares, consistent
with the applicable exemptive relief, and in a manner that will benefit
investors. Specifically, the Exchange believes that the relief proposed
in the Applications and the expected benefits of the Multi-Class ETF
Shares described above would be to the benefit of investors.
Eliminating any unnecessary delay for additional Multi-Class ETF Shares
listing on the
[[Page 24463]]
Exchange under proposed Rule 14.11(n) will simply help accrue those
benefits to investors more expeditiously. Further, the Exchange is only
proposing to amend its rules to allow such a series of Multi-Class ETF
Shares to list on the Exchange pursuant to Rule 14.11(n), a change to
its rules that will only be meaningful if and when the Commission
grants such relief to an Applicant. As noted above, the Exchange
submits this proposal only to prevent any unnecessary delay in listing
additional Multi-Class ETF Shares generically under Rule 14.11(n) when
and if such requests are granted by the Commission.
The Exchange also believes that proposed Rule 14.11(n) to
explicitly provide that the initial and continued listing standards
applicable to Multi-Class ETF Shares, including the suspension of
trading or removal standards, are designed to promote transparency and
clarity in the Exchange's Rules. The Exchange believes that with these
changes, Rule 14.11(n) would clearly allow for the listing and trading
of Multi-Class ETF Shares upon the Commission's order of exemptive
relief.
The Exchange also believes that the corresponding change to amend
the Exchange's definitions, corporate governance requirements under
Rule 14.10(e), and other provisions of Rule 14.11 in order to
accommodate the proposed listing of Multi-Class ETF Shares will add
clarity to the Exchange's Rulebook. ETF Shares are similarly included
in these definitions and exempt from the applicable corporate
governance requirements. Therefore, the Exchange believes these are
non-substantive changes meant only to subject Multi-Class ETF Shares to
the same corporate governance requirements currently applicable ETF
Shares. All other corporate governance requirements that Multi-Class
ETF Shares are not specifically exempted from will otherwise apply.
For the above reasons, the Exchange believes that the proposed rule
change is consistent with the requirements of Section 6(b)(5) of the
Act.
B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act. The Exchange believes the
proposal, by permitting the listing and trading of Multi-Class ETF
Shares under exemptive relief from the Investment Company Act and the
rules and regulations thereunder, 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
The Exchange neither solicited nor received comments on the
proposed rule change.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Within 45 days of the date of publication of this notice in the
Federal Register or within such longer period up to 90 days (i) as the
Commission may designate if it finds such longer period to be
appropriate and publishes its reasons for so finding or (ii) as to
which the Exchange consents, the Commission will:
(A) by order approve or disapprove such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule
change should be disapproved.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
Send an email to [email protected]. Please include
file number SR-CboeBZX-2025-076 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-CboeBZX-2025-076. 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-CboeBZX-2025-076 and should
be submitted on or before July 1, 2025.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\28\
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\28\ 17 CFR 200.30-3(a)(12).
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Stephanie Fouse,
Assistant Secretary.
[FR Doc. 2025-10443 Filed 6-9-25; 8:45 am]
BILLING CODE 8011-01-P