Federal Register / Vol. 85, No. 234 / Friday, December 4, 2020 / Notices 78389 

48 17 CFR 200.30–3(a)(12). 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

3See Securities Exchange Act Release No. 89869 

(September 15, 2020), 85 FR 59354. 

4Amendment No. 1, which amended and 

replaced the proposed rule change in its entirety, 

is available on the Commission’s website at: https:// 

www.sec.gov/comments/sr-nysearca-2020-80/ 

srnysearca202080.htm. 

5 15 U.S.C. 78s(b)(2). 

6See Securities Exchange Act Release No. 90286, 

85 FR 70216 (November 4, 2020). 

7Amendment No. 2, which amended and 

replaced the proposed rule change, as modified by 

Amendment No. 1, in its entirety, is available on 

the Commission’s website at: https://www.sec.gov/ 

comments/sr-nysearca-2020-80/ 

srnysearca202080.htm. 

8Additional information regarding the Funds, the 

Trust (defined infra), and the Shares can be found 

in Amendment No. 2, id., and the Registration 

Statement, infra note 9. 

9The Trust is registered under the Investment 

Company Act of 1940 (‘‘1940 Act’’). On August 17, 

2020, the Trust filed a registration statement on 

Form N–1A under the Securities Act of 1933 and 

the 1940 Act for the Funds (File No. 811–23603) 

(‘‘Registration Statement’’). The Commission issued 

an order granting exemptive relief to the Trust 

(‘‘Exemptive Order’’) under the 1940 Act on May 

19, 2020 (Investment Company Act Release No. 

33869) in response to the Trust’s application 

(‘‘Exemptive Application’’) for exemptive relief 

(File No. 812–15117). 

10Pursuant to the Exemptive Order, the only 

permissible investments for a Fund are the 

following that trade on a U.S. exchange 

contemporaneously with Shares of a Fund: 

Exchange-traded funds (‘‘ETFs’’), exchange-traded 

notes, exchange-listed common stocks, exchangetraded American Depositary Receipts, exchangetraded real estate investment trusts, exchangetraded commodity pools, exchange-traded metals 

trusts, exchange-traded currency trusts and 

exchange-traded futures, as well as cash and cash 

equivalents (short-term U.S. Treasury securities, 

government money market funds, and repurchase 

agreements). 

11Each Fund’s broad-based securities benchmark 

index will be identified in a future amendment to 

the Registration Statement following that Fund’s 

first full calendar year of performance. 

12 In approving this proposed rule change, the 

Commission has considered the proposed rule’s 

impact on efficiency, competition, and capital 

formation. See 15 U.S.C. 78c(f). 

13 15 U.S.C. 78f(b)(5). 

submissions should refer to File 

Number SR–CBOE–2020–106, and 

should be submitted on or before 

December 28, 2020.48

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority. 

J. Matthew DeLesDernier, 

Assistant Secretary. 

[FR Doc. 2020–26678 Filed 12–3–20; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–90528; File No. SR– 

NYSEArca–2020–80] 

Self-Regulatory Organizations; NYSE 

Arca, Inc.; Order Approving a 

Proposed Rule Change, as Modified by 

Amendment No. 2, To List and Trade 

Shares of Alger Mid Cap 40 ETF and 

Alger 25 ETF Under Rule 8.900–E 

November 30, 2020. 

I. Introduction 

On September 1, 2020, NYSE Arca, 

Inc. (‘‘NYSE Arca’’ or ‘‘Exchange’’) filed 

with the Securities and Exchange 

Commission (‘‘Commission’’), pursuant 

to Section 19(b)(1) of the Securities 

Exchange Act of 1934 (‘‘Act’’) 1 and Rule 

19b–4 thereunder,2 a proposed rule 

change to list and trade shares 

(‘‘Shares’’) of the Alger Mid Cap 40 ETF 

and Alger 25 ETF (individually, 

‘‘Fund,’’ and collectively, ‘‘Funds’’) 

under NYSE Arca Rule 8.900–E 

(Managed Portfolio Shares). The 

proposed rule change was published for 

comment in the Federal Register on 

September 21, 2020.3

On October 7, 2020, NYSE Arca filed 

Amendment No. 1 to the proposed rule 

change.4 On October 29, 2020, pursuant 

to Section 19(b)(2) of the Act,5 the 

Commission designated a longer period 

within which to approve the proposed 

rule change, disapprove the proposed 

rule change, or institute proceedings to 

determine whether to disapprove the 

proposed rule change.6 On November 5, 

2020, NYSE Arca filed Amendment No. 

2 to the proposed rule change.7 The 

Commission has received no comments 

on the proposal. This order grants 

approval of the proposed rule change, as 

modified by Amendment No. 2. 

II. The Exchange’s Description of the 

Proposal, as Modified by Amendment 

No. 2 8

NYSE Arca Rule 8.900–E(b)(1) 

requires the Exchange to file separate 

proposals under Section 19(b) of the Act 

before listing and trading any series of 

Managed Portfolio Shares on the 

Exchange. Accordingly, the Exchange 

has submitted this proposal to list and 

trade the Shares of the Funds. The 

Shares will be issued by The Alger ETF 

Trust (‘‘Trust’’), a business trust 

organized under the laws of the state of 

Massachusetts and registered with the 

Commission as an open-end 

management investment company.9 The 

investment adviser to each Fund will be 

Fred Alger Management, LLC 

(‘‘Adviser’’), and Fred Alger & 

Company, LLC will serve as the 

distributor of each of the Fund’s Shares. 

A. Description of the Funds 

Each Fund’s holdings will conform to 

the permissible investments as set forth 

in the Exemptive Application and 

Exemptive Order and the holdings will 

be consistent with all requirements in 

the Exemptive Application and 

Exemptive Order.10

Alger Mid Cap 40 ETF 

The Fund’s primary objective is to 

seek long-term capital appreciation. The 

Fund will primarily invest in equity 

securities listed on U.S. exchanges, 

including common or preferred stocks, 

of mid-cap growth companies. The 

Fund will generally own approximately 

40 holdings. 

Alger 25 ETF 

The Fund’s primary objective is to 

seek long-term capital appreciation. The 

Fund will primarily invest in equity 

securities of growth companies of any 

market capitalization listed on U.S. 

exchanges, including common or 

preferred stocks. The Fund will 

generally own approximately 25 

holdings. 

B. The Funds’ Investment Restrictions 

Each Fund’s investments, including 

derivatives, will be consistent with its 

investment objective and will not be 

used to enhance leverage (although 

certain derivatives and other 

investments may result in leverage). 

That is, for each Fund, 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).11

III. Discussion and Commission 

Findings 

After careful review, the Commission 

finds that the proposed rule change, as 

modified by Amendment No. 2, to list 

and trade the Shares is consistent with 

the Act and the rules and regulations 

thereunder applicable to a national 

securities exchange.12 In particular, the 

Commission finds that the proposed 

rule change, as modified by Amendment 

No. 2, is consistent with Section 6(b)(5) 

of the Act,13 which requires, among 

other things, that the Exchange’s rules 

be designed to prevent fraudulent and 

manipulative acts and practices, to 

promote just and equitable principles of 

trade, to remove impediments to and 

perfect the mechanism of a free and 

open market and a national market 

system, and, in general, to protect 

investors and the public interest. 

For each series, the Exchange will 

establish a minimum number of Shares 

78390 Federal Register / Vol. 85, No. 234 / Friday, December 4, 2020 / Notices 

14See NYSE Arca Rule 8.900–E(d)(1)(A). 

15See Amendment No. 2, supra note 7, at 6. 

16See id. See also NYSE Arca Rule 8.900–E(c)(5) 

(defining ‘‘Creation Basket’’). 

17See Amendment No. 2, supra note 7, at 6. 

Furthermore, the Exchange represents that in the 

event that (a) the Adviser becomes registered as a 

broker-dealer or becomes newly affiliated with a 

broker-dealer, or (b) any new adviser or sub-adviser 

is a registered broker-dealer or becomes affiliated 

with a broker-dealer, the Adviser will implement 

and maintain a fire wall with respect to personnel 

of the broker-dealer or broker-dealer affiliate 

regarding access to information concerning the 

composition and/or changes to the portfolio and/or 

Creation Basket. See id. at 6. 

18See NYSE Arca Rule 8.900–E(c)(5) (defining 

‘‘AP Representative’’). 

19See NYSE Arca Rule 8.900–E(b)(5). 

20See id. 

21See Amendment No. 2, supra note 7, at 15. 

22See id. 

23 15 U.S.C. 78k-1(a)(1)(C)(iii). 

24See Amendment No. 2, supra note 7, at 19. 

25See id. at 12. 

26See id. 

27NYSE Arca Rule 8.900–E(c)(2) defines the term 

‘‘Verified Intraday Indicative Value’’ as the 

indicative value of a Managed Portfolio Share based 

on all of the holdings of a series of Managed 

Portfolio Shares as of the close of business on the 

prior business day and, for corporate actions, based 

on the applicable holdings as of the opening of 

business on the current business day, priced and 

disseminated in one second intervals during the 

Core Trading Session by the Reporting Authority. 

NYSE Arca Rule 8.900–E(c)(8) defines the term 

‘‘Reporting Authority’’ with respect to a particular 

series of Managed Portfolio Shares as the Exchange, 

an institution, or a reporting service designated by 

the Exchange or by the exchange that lists a 

particular series of Managed Portfolio 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 NAV, 

the VIIV, or other information relating to the 

issuance, redemption, or trading of Managed 

Portfolio Shares. A series of Managed Portfolio 

Shares may have more than one Reporting 

Authority, each having different functions. 

28See NYSE Arca Rule 8.900–E(d)(2)(A). See 

Amendment No. 2, supra note 7, at 12. 

29The Bid/Ask Price of a Fund’s Shares will be 

the mid-point between the current national best bid 

and offer at the time of calculation of such Fund’s 

NAV. The records relating to Bid/Ask Prices will be 

retained by the Funds or their service providers. 

See Amendment No. 2, supra note 7, at 12, n. 7. 

30See id. 

required to be outstanding at the time of 

commencement of trading on the 

Exchange.14

The Adviser is not registered as a 

broker-dealer but is affiliated with a 

broker-dealer.15 The Adviser has 

implemented and will maintain a ‘‘fire 

wall’’ with respect to its broker-dealer 

affiliate regarding access to information 

concerning the composition of, and 

changes to, a Fund’s portfolio and 

Creation Basket.16 Any person related to 

the Adviser or the Trust who makes 

decisions pertaining to a Fund’s 

portfolio composition or that has access 

to information regarding a Fund’s 

portfolio or changes thereto or the 

Creation Basket will be subject to 

procedures designed to prevent the use 

and dissemination of material, nonpublic information regarding such 

portfolio or changes thereto and the 

Creation Basket.17 Further, any person 

or entity, including an AP 

Representative,18 custodian, Reporting 

Authority, distributor, or administrator, 

who has access to information regarding 

the Fund’s portfolio composition or 

changes thereto or its Creation Basket, 

must be subject to procedures designed 

to prevent the use and dissemination of 

material, non-public information 

regarding the applicable Fund portfolio 

or changes thereto or the Creation 

Basket.19 Moreover, if any such person 

or entity is registered as a broker-dealer 

or affiliated with a broker-dealer, such 

person or entity must erect and 

maintain a ‘‘fire wall’’ between the 

person or entity and the broker-dealer 

with respect to access to information 

concerning the composition of and/or 

changes to such Fund’s portfolio or 

Creation Basket.20

The Exchange states that trading in 

the Shares will be subject to the 

Exchange’s surveillance procedures for 

derivative products, and that its 

surveillance procedures are adequate to 

properly monitor the trading of the 

Shares on the Exchange during all 

trading sessions and to deter and detect 

violations of Exchange rules and the 

applicable federal securities laws.21

NYSE Arca Rule 8.900–E(b)(3) requires 

each Fund’s investment adviser to, upon 

request by the Exchange, or the 

Financial Industry Regulatory Authority 

(‘‘FINRA’’) on behalf of the Exchange, to 

make available to the daily portfolio 

holdings of each series of Managed 

Portfolio Shares. The Exchange states 

that it has a general policy prohibiting 

the distribution of material, non-public 

information by its employees.22 The 

Commission notes that, similarly, 

FINRA Rule 9910(d) generally prohibits 

FINRA employees from disseminating 

or disclosing, for a purpose unnecessary 

to the performance of FINRA job 

responsibilities any nonpublic 

information obtained in the course of 

his or her employment. 

The Commission also finds that the 

proposal is consistent with Section 

11A(a)(1)(C)(iii) of the Act,23 which sets 

forth Congress’s finding that it is in the 

public interest and appropriate for the 

protection of investors and the 

maintenance of fair and orderly markets 

to assure the availability to brokers, 

dealers, and investors of information 

with respect to quotations for, and 

transactions in, securities. The 

Commission believes that the proposal 

is reasonably designed to promote fair 

disclosure of information that may be 

necessary to price the Shares 

appropriately and to prevent trading in 

the Shares when a reasonable degree of 

certain pricing transparency cannot be 

assured. As such, the Commission 

believes the proposal is reasonably 

designed to maintain a fair and orderly 

market for trading the Shares. 

Specifically, as required by NYSE 

Arca Rule 8.900–E(d)(1)(B), the 

Exchange will obtain a representation 

from the issuer that the net asset value 

(‘‘NAV’’) per Share of each Fund will be 

calculated daily and will be made 

available to all market participants at 

the same time.24 Information regarding 

market price and trading volume of the 

Shares will be continually available on 

a real-time basis throughout the day on 

brokers’ computer screens and other 

electronic services.25 Quotation and 

last-sale information for the Shares will 

be available via the Consolidated Tape 

Association high-speed line.26 In 

addition, the Verified Intraday 

Indicative Value (‘‘VIIV’’), as defined in 

NYSE Arca Rule 8.900–E(c)(2),27 will be 

widely disseminated by the Reporting 

Authority and/or one or more major 

market data vendors in one second 

intervals during the Exchange’s Core 

Trading Session.28 Moreover, the Funds’ 

website will include a form of the 

prospectus for each Fund that may be 

downloaded. The Funds’ website will 

include additional quantitative 

information updated on a daily basis, 

including, for each Fund, the prior 

Business Day’s NAV, market closing 

price or mid-point of the bid/ask spread 

at the time of calculation of such NAV 

(‘‘Bid/Ask Price’’),29 and a calculation of 

the premium and discount of the market 

closing price or Bid/Ask Price against 

the NAV. The website and information 

will be publicly available at no charge.30

The Commission also notes that the 

Exchange’s rules regarding trading halts 

help to ensure the maintenance of fair 

and orderly markets for the Shares. 

Specifically, the Exchange may consider 

all relevant factors in exercising its 

discretion to halt trading in the Shares, 

and will halt trading in the Shares 

under the conditions specified in NYSE 

Arca Rule 7.12–E. Trading in the Shares 

will be subject to NYSE Arca Rule 

8.900–E(d)(2)(C), which sets forth 

circumstances under which trading in 

the Shares will be halted. Specifically, 

NYSE Arca Rule 8.900–E(d)(2)(C)(i) 

provides that the Exchange may 

consider all relevant factors in 

exercising its discretion to halt trading 

in a series of Managed Portfolio Shares. 

Trading may be halted because of 

Federal Register / Vol. 85, No. 234 / Friday, December 4, 2020 / Notices 78391 

31The Exemptive Application provides that the 

Investment Company or their agent will request that 

the Exchange halt trading in the applicable series 

of Managed Portfolio Shares where: (i) The intraday 

indicative values calculated by the calculation 

engines differ by more than 25 basis points for 60 

seconds in connection with pricing of the VIIV; or 

(ii) holdings representing 10% or more of a series 

of Managed Portfolio Shares’ portfolio have become 

subject to a trading halt or otherwise do not have 

readily available market quotations. Any such 

requests will be one of many factors considered in 

order to determine whether to halt trading in a 

series of Managed Portfolio Shares, and the 

Exchange retains sole discretion in determining 

whether trading should be halted. As provided in 

the Exemptive Application, each series of Managed 

Portfolio Shares would employ a pricing 

verification agent to continuously compare two 

intraday indicative values during regular trading 

hours in order to ensure the accuracy of the VIIV. 

See id. at 14, n. 21. 

32See Amendment No. 2, supra note 7, at 14. 

33The Bulletin will discuss the following: (1) The 

procedures for purchases and redemptions of 

Shares; (2) NYSE Arca Rule 9.2–E(a), which 

imposes a duty of due diligence on its ETP Holders 

to learn the essential facts relating to every 

customer prior to trading the Shares; (3) how 

information regarding the VIIV is disseminated; (4) 

the requirement that ETP Holders deliver a 

prospectus to investors purchasing newly issued 

Shares prior to or concurrently with the 

confirmation of a transaction; (5) trading 

information; and (6) that the portfolio holdings of 

the Shares are not disclosed on a daily basis. See 

id. at 15. 

34See id. at 7, n. 7. 

35See id. at 15. 

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

37 15 U.S.C. 78k–1(a)(1)(C)(iii). 

38 15 U.S.C. 78s(b)(2). 

39 17 CFR 200.30–3(a)(12). 

1 15 U.S.C. 78s(b)(1). 

2 15 U.S.C. 78a. 

3 17 CFR 240.19b–4. 

market conditions or for reasons that, in 

the view of the Exchange, make trading 

in the series of Managed 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 

portfolio; or (b) whether other unusual 

conditions or circumstances detrimental 

to the maintenance of a fair and orderly 

market are present.31 NYSE Arca Rule 

8.900–E(d)(2)(C)(ii) provides that, if the 

Exchange becomes aware that: (i) The 

VIIV of a series of Managed Portfolio 

Shares is not being calculated or 

disseminated in one second intervals, as 

required; (ii) the NAV with respect to a 

series of Managed Portfolio Shares is not 

disseminated to all market participants 

at the same time; (iii) the holdings of a 

series of Managed Portfolio Shares are 

not made available on at least a 

quarterly basis as required under the 

1940 Act; or (iv) such holdings are not 

made available to all market 

participants at the same time (except as 

otherwise permitted under the 

applicable Exemptive Order or noaction relief granted by the Commission 

or Commission staff to the Investment 

Company with respect to the series of 

Managed Portfolio Shares), it will halt 

trading in such series until such time as 

the VIIV, the NAV, or the holdings are 

available, as required. 

In support of this proposal, the 

Exchange has also made the following 

representations: 

(1) The Shares will conform to the 

initial and continued listing criteria 

under NYSE Arca Rule 8.900–E. 

(2) 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.32

(3) Prior to the commencement of 

trading, the Exchange will inform its 

members in an Information Bulletin 

(‘‘Bulletin’’) of the special 

characteristics and risks associated with 

trading the Shares.33

(4) FINRA, on behalf of the Exchange, 

or the regulatory staff of the Exchange, 

or both, will communicate as needed 

regarding trading in the Shares and 

certain exchange-traded instruments 

with other markets and other entities 

that are members of the Intermarket 

Surveillance Group (‘‘ISG’’), and FINRA, 

on behalf of the Exchange, or the 

regulatory staff of the Exchange, or both, 

may obtain trading information 

regarding trading such securities from 

such markets and other entities. In 

addition, the Exchange may obtain 

information regarding trading in the 

Shares and certain 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. 

(5) The Exchange represents that, for 

initial and/or continued listing, each 

Fund will be in compliance with Rule 

10A–3 under the Act.34

This approval order is based on all of 

the Exchange’s statements and 

representations set forth above and in 

Amendment No. 2 to the proposed rule 

change. Additionally, the Exchange 

states that all statements and 

representations made in its proposal 

regarding (a) the description of the 

portfolio or reference assets, (b) 

limitations on portfolio holdings or 

reference assets, or (c) the applicability 

of Exchange rules shall constitute 

continued listing requirements for 

listing the Shares on the Exchange, as 

provided under NYSE Arca Rule 8.900– 

E(b)(1). The issuer of the Shares will be 

required to represent to the Exchange 

that it will advise the Exchange of any 

failure by a Fund to comply with the 

continued listing requirements, and, 

pursuant to its obligations under 

Section 19(g)(1) of the Act, the Exchange 

will surveil for compliance with the 

continued listing requirements. If a 

Fund is not in compliance with the 

applicable listing requirements, the 

Exchange will commence delisting 

procedures under NYSE Arca Rule 5.5– 

E(m).35

For the foregoing reasons, the 

Commission finds that the proposed 

rule change, as modified by Amendment 

No. 2, is consistent with Section 6(b)(5) 

of the Act 36 and Section 

11A(a)(1)(C)(iii) of the Act 37 and the 

rules and regulations thereunder 

applicable to a national securities 

exchange. 

IV. Conclusion 

It is therefore ordered, pursuant to 

Section 19(b)(2) of the Act,38 that the 

proposed rule change (SR–NYSEArca– 

2020–80), as modified by Amendment 

No. 2, be, and it hereby is, approved. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.39

J. Matthew DeLesDernier, 

Assistant Secretary. 

[FR Doc. 2020–26673 Filed 12–3–20; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–90529; File No. SR– 

NYSEArca–2020–100] 

Self-Regulatory Organizations; NYSE 

Arca, Inc.; Notice of Filing and 

Immediate Effectiveness of Proposed 

Rule Change Relating to the Perth Mint 

Physical Gold ETF 

November 30, 2020. 

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 November 

20, 2020, NYSE Arca, Inc. (‘‘NYSE 

Arca’’ or the ‘‘Exchange’’) filed with the 

Securities and Exchange Commission 

(the ‘‘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. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange proposes to reflect (i) a 

change in the sponsors and the 

custodian of the Perth Mint Physical