Notice2023-07735
Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Amending the Rule Governing the Listing and Trading of Shares of the Gabelli Equity Income ETF
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 13, 2023
Issuing agencies
Securities and Exchange Commission
Full Text
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<title>Federal Register, Volume 88 Issue 71 (Thursday, April 13, 2023)</title>
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[Federal Register Volume 88, Number 71 (Thursday, April 13, 2023)]
[Notices]
[Pages 22493-22495]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-07735]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-97267; File No. SR-NYSEARCA-2023-30]
Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
and Immediate Effectiveness of a Proposed Rule Change Amending the Rule
Governing the Listing and Trading of Shares of the Gabelli Equity
Income ETF
April 7, 2023.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on April 5, 2023, NYSE Arca, Inc. (``NYSE Arca'' or ``Exchange'') filed
with the Securities and Exchange Commission (``Commission'') the
proposed rule change as described in Items I and II below, which Items
have been prepared by the Exchange. The Commission is publishing this
notice to solicit comments on the proposed rule change from interested
persons.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange proposes to reflect a change in the name of the
Gabelli Equity Income ETF (the ``Fund'') and an updated description of
the investment strategy for the Fund, shares of which are currently
listed and traded on the Exchange pursuant to NYSE Arca Rule 8.900-E.
The proposed rule change is available on the Exchange's website at
<a href="http://www.nyse.com">www.nyse.com</a>, at the principal office of the Exchange, and at the
Commission's Public Reference Room.
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of, and basis for, the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of those statements may be examined at
the places specified in Item IV below. The Exchange has prepared
summaries, set forth in sections A, B, and C below, of the most
significant parts of such statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and the
Statutory Basis for, the Proposed Rule Change
1. Purpose
The purpose of this rule filing is to reflect a change to the name
of the Fund and an updated description of the Fund's investment
strategy. The Commission previously approved the listing and trading of
Shares of the Fund on the Exchange pursuant to NYSE Arca Rule 8.900-
E.\3\ NYSE Arca Rule 8.900-E governs the listing and trading of Managed
Portfolio Shares, which are securities issued by an actively managed
open-end investment management company.\4\ The Shares of the Fund are
issued by the Gabelli ETFs Trust (the ``Trust''), a statutory trust
organized under the laws of the State of Delaware and registered with
the Commission as an open-end management investment company.\5\
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\3\ See Securities Exchange Act Release No. 89663 (August 25,
2020), 85 FR 53868 (August 31, 2020) (SR-NYSEArca-2020-48) (Order
Approving a Proposed Rule Change, as Modified by Amendment No. 1, To
List and Trade Shares of Gabelli ETFs Under Rule 8.900-E, Managed
Portfolio Shares) (the ``Approval Order'').
\4\ See Securities Exchange Act Release No. 88648 (April 15,
2020), 85 FR 22200 (April 21, 2020). Rule 8.900-E(c)(1) provides
that the term ``Managed Portfolio Share'' means a security that (a)
represents an interest in an investment company (``Investment
Company'') registered under the Investment Company Act of 1940 (the
``1940 Act'') organized as an open-end management investment company
that invests in a portfolio of securities selected by the Investment
Company's investment adviser consistent with the Investment
Company's investment objectives and policies; (b) is issued in a
Creation Unit, or multiples thereof, in return for a designated
portfolio of instruments (and/or an amount of cash) with a value
equal to the next determined net asset value and delivered to the
Authorized Participant (as defined in the Investment Company's Form
N-1A filed with the Commission) through a Confidential Account; (c)
when aggregated into a Redemption Unit, or multiples thereof, may be
redeemed for a designated portfolio of instruments (and/or an amount
of cash) with a value equal to the next determined net asset value
delivered to the Confidential Account for the benefit of the
Authorized Participant; and (d) the portfolio holdings for which are
disclosed within at least 60 days following the end of every fiscal
quarter.
\5\ The Trust is registered under the 1940 Act. The Commission
issued an order granting exemptive relief to the Trust (``Exemptive
Order'') under the 1940 Act on December 3, 2019 (Investment Company
Act Release No. 33708). The Exemptive Order was granted in response
to the Trust's application for exemptive relief (the ``Exemptive
Application'') (File No. 812-15036). The Trust has filed a
registration statement on Form N-1A under the Securities Act of 1933
(the ``1933 Act'') and the 1940 Act for the Fund (File No. 812-
15036) (``Registration Statement''). The Trust subsequently filed
Post-Effective Amendment No. 6 to the Registration Statement
reflecting the new name of the Fund and the updated description of
the Fund's investment strategy. See Post-Effective Amendment No. 6
to Registration Statement on Form N-1A for the Trust, dated March
11, 2023 (File Nos. 333-238109 and 811-23568). Investments made by
the Fund will comply with the conditions set forth in the Exemptive
Application and the Exemptive Order. See Approval Order, 85 FR at
53869 & n. 9. The description of the Fund and the changes to the
Fund proposed herein are based, in part, on information in the
Registration Statement, as amended. Shares of the Fund have been
listed and traded on the Exchange since January 4, 2023. The Adviser
(as defined in the Approval Order) represents that it will not
implement the changes described herein until the instant proposed
rule change is operative.
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The Approval Order stated that the Fund's name would be the Gabelli
Equity Income ETF. The Exchange now proposes to update the name of the
Fund to the Gabelli Commercial Aerospace and Defense ETF, which name is
reflected in the Registration Statement and is consistent with the
updated description of the Fund discussed below.
The Approval Order stated that the Fund seeks a high level of total
return on its assets with an emphasis on income and intends to invest
in income producing equity securities including U.S. exchange-listed
common stock and preferred stock. The Exchange proposes to update the
description of the Fund to provide that, as set forth in the
Registration Statement, the Fund will seek to achieve its investment
objective
[[Page 22494]]
by investing, under normal market conditions, at least 80% of its net
assets (including any assets purchased using borrowings for investment
purposes) in securities in the aerospace and defense sectors. According
to the Registration Statement, the Fund defines an ``aerospace and
defense'' company as a company that derives at least 50% of its
revenues from, or devotes 50% of its assets to, aerospace and/or
defense related activities. Aerospace companies include manufacturers,
assemblers and distributors of aircraft and aircraft parts; defense
companies include producers of components and equipment for the defense
industry, such as military aircraft, radar equipment and weapons.
Except for the changes noted above, all other representations made
in the Exchange's previous rule filing to list and trade Shares of the
Fund remain unchanged and will continue to constitute continuing
listing requirements for the Fund. As set forth in the Approval Order,
the Fund's holdings will continue to conform to the permissible
investments as set forth in the Exemptive Application and Exemptive
Order, and the holdings will be consistent with the Registration
Statement and all requirements in the Exemptive Application and
Exemptive Order.\6\ The Fund will also continue to comply with the
requirements of Rule 8.900-E.
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\6\ See note 3, supra.
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2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Act,\7\ in general, and furthers the
objectives of Section 6(b)(5) of the Act,\8\ in particular, in that it
is designed to prevent fraudulent and manipulative acts and practices,
to promote just and equitable principles of trade, to remove
impediments to and perfect the mechanism of a free and open market and
a national market system, and, in general, to protect investors and the
public interest.
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\7\ 15 U.S.C. 78f(b).
\8\ 15 U.S.C. 78f(b)(5).
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The Exchange believes the proposed rule change is designed to
remove impediments to and perfect the mechanism of a free and open
market and, in general, to protect investors and the public interest
because it would reflect the change in the Fund's name and description,
as set forth in the Registration Statement. Specifically, the proposed
rule change would reflect a change in the Fund's name from the Gabelli
Equity Income ETF to the Gabelli Commercial Aerospace and Defense ETF
and reflect the Fund's updated strategy, through which the Fund will
seek to achieve its investment objectives by investing, under normal
market conditions, at least 80% of its net assets (including any assets
purchased using borrowings for investment purposes) in securities in
the aerospace and defense sectors. The proposed change is also designed
to remove impediments to and perfect the mechanism of a free and open
market, promote just and equitable principles of trade, and protect
investors and the public interest because the Fund's investments will
be consistent with the Registration Statement and continue to comply
with all conditions set forth in the Exemptive Application and
Exemptive Order. Except for the changes noted above, all other
representations made in the Exchange's original rule filing remain
unchanged and will continue to constitute continuing listing
requirements for the Fund.
B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purpose of the Act. As noted above, the proposed
rule change would reflect only a change in the name and description of
the Fund and would thus facilitate the continued listing and trading of
Shares of the Fund on the Exchange, thereby promoting competition among
various ETF products, to the benefit of investors and the marketplace.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
No written comments were solicited or received with respect to the
proposed rule change.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Because the foregoing proposed rule change does not: (i)
significantly affect the protection of investors or the public
interest; (ii) impose any significant burden on competition; and (iii)
become operative for 30 days from the date on which it was filed, or
such shorter time as the Commission may designate, it has become
effective pursuant to Section 19(b)(3)(A)(iii) of the Act \9\ and
subparagraph (f)(6) of Rule 19b-4 thereunder.\10\
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\9\ 15 U.S.C. 78s(b)(3)(A)(iii).
\10\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)
requires the Exchange to give the Commission written notice of its
intent to file the proposed rule change, along with a brief
description and text of the proposed rule change, at least five
business days prior to the date of filing of the proposed rule
change, or such shorter time as designated by the Commission. The
Exchange has satisfied this requirement.
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A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the
Act normally does not become operative for 30 days after the date of
its filing. However, Rule 19b-4(f)(6)(iii) \11\ permits the Commission
to designate a shorter time if such action is consistent with the
protection of investors and the public interest. The Exchange has
requested that the Commission waive the 30-day operative delay so that
the proposal may become operative immediately upon filing. The Exchange
asserts that waiver of the operative delay would be consistent with the
protection of investors and the public interest because it would
promptly reflect the updated name and description of the Fund and
facilitate the continued listing and trading of the shares of the Fund.
In addition, the Commission notes that all types and quantities of
proposed permitted investments are presently permitted. For these
reasons, and because the proposal raises no novel legal or regulatory
issues, the Commission believes that waiver of the 30-day operative
delay is consistent with the protection of investors and the public
interest. Accordingly, the Commission hereby waives the 30-day
operative delay and designates the proposed rule change operative upon
filing.\12\
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\11\ 17 CFR 240.19b-4(f)(6)(iii).
\12\ For purposes only of waiving the 30-day operative delay,
the Commission has also considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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At any time within 60 days of the filing of such proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
[[Page 22495]]
Electronic Comments
<bullet> Use the Commission's internet comment form (<a href="https://www.sec.gov/rules/sro.shtml">https://www.sec.gov/rules/sro.shtml</a>); or
<bullet> Send an email to <a href="/cdn-cgi/l/email-protection#cdbfb8a1a8e0aea2a0a0a8a3b9be8dbea8aee3aaa2bb"><span class="__cf_email__" data-cfemail="a5d7d0c9c088c6cac8c8c0cbd1d6e5d6c0c68bc2cad3">[email protected]</span></a>. Please include
File Number SR-NYSEARCA-2023-30 on the subject line.
Paper Comments
<bullet> Send paper comments in triplicate to: Secretary,
Securities and Exchange Commission, 100 F Street NE, Washington, DC
20549-1090.
All submissions should refer to File Number SR-NYSEARCA-2023-30. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (<a href="https://www.sec.gov/rules/sro.shtml">https://www.sec.gov/rules/sro.shtml</a>). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for website viewing and
printing in the Commission's Public Reference Room, 100 F Street NE,
Washington, DC 20549 on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of the filing also will be available
for inspection and copying at the principal office of the Exchange. All
comments received will be posted without change. Persons submitting
comments are cautioned that we do not redact or edit personal
identifying information from comment submissions. You should submit
only information that you wish to make available publicly. All
submissions should refer to File Number SR-NYSEARCA-2023-30 and should
be submitted on or before May 4, 2023.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\13\
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\13\ 17 CFR 200.30-3(a)(12), (59).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-07735 Filed 4-12-23; 8:45 am]
BILLING CODE 8011-01-P
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