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Federal Register / Vol. 86, No. 186 / Wednesday, September 29, 2021 / Notices
lotter on DSK11XQN23PROD with NOTICES1

Commentary .01 to Rule 8.601E
requires the Exchange to file separate proposals under Section 19b of the Act before listing and trading any series of Active Proxy Portfolio Shares on the Exchange. Pursuant to this provision, the Exchange submitted a proposal to list and trade shares Shares of Active Proxy Portfolio Shares of the Fidelity Womens Leadership ETF and Fidelity Sustainability U.S. Equity ETF 5
each a Fund and, collectively, the Funds on the Exchange under NYSE
Arca Rule 8.601E: T. The Exchange proposes to reflect an amendment to the Application and Exemptive Order as defined below governing the listing and trading of the Funds, as follows.
Fidelity Beach Street Trust Beach Street, Fidelity Management &
Research Company FMR, and Fidelity Distributors Corporation FDC, filed a ninth amended application for an order under Section 6c of the 1940 Act for exemptions from various provisions of the 1940 Act and rules thereunder the Prior Application.6 On December 10, 2019, the Commission issued an order the Prior Exemptive Order under the 1940 Act granting the exemptions requested in the Application.7
Under the Prior Exemptive Order, the Funds are required to publish a basket of securities and cash that, while different from a Funds portfolio, is designed to closely track its daily performance Proxy Portfolio.8 The Prior Application stated that the Proxy Portfolio is comprised of 1 select request in return for the Proxy Portfolio and/or cash to the holder by the issuer with a value equal to the next determined NAV; and d the portfolio holdings for which are disclosed within at least 60
days following the end of every fiscal quarter. Rule 8.601Ec2 provides that the term Actual Portfolio means the identities and quantities of the securities and other assets held by the Investment Company that shall form the basis for the Investment Companys calculation of NAV at the end of the business day. Rule 8.601Ec3
provides that the term Proxy Portfolio means a specified portfolio of securities, other financial instruments and/or cash designed to track closely the daily performance of the Actual Portfolio of a series of Active Proxy Portfolio Shares as provided in the exemptive relief pursuant to the Investment Company Act of 1940 applicable to such series.
5 On April 14, 2021, the Commission published the notice of filing and immediate effectiveness relating to the listing and trading of shares of the Fidelity Womens Leadership ETF and Fidelity Sustainability U.S. Equity ETF. See Securities Exchange Act Release No. 91514 April 8, 2021, 86
FR 19657 April 14, 2021 SRNYSEArca202123
Notice.
6 See File No. 81214364, dated November 8, 2019.
7 See Investment Company Act Release No.
33712, December 10, 2019.
8 The Funds use the term Tracking Basket.
Tracking Basket is the Proxy Portfolio for purposes of Rule 8.601Ec3. See Notice, 86 FR
19659, n. 10.

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recently disclosed portfolio holdings Strategy Components; 2 liquid ETFs that convey information about the types of instruments in which the fund invests that are not otherwise fully represented by Strategy Components Representative ETFs; and 3 cash and cash equivalents. As set forth in the Notice, investments made by the Funds will comply with the conditions set forth in the Prior Application and the Prior Exemptive Order.9
On October 30, 2020, as amended on April 2, 2021, June 11, 2021 and June 30, 2021, Beach Street, FMR, FDC and Fidelity Covington Trust 10 together, Fidelity sought to amend the Prior Order to, among other things, permit the Funds to include select securities from the universe from which a Funds investments are selected such as a broad-based market index Investment Universe in the Funds Proxy Portfolio the Updated Application.11
On August 5, 2021, the Commission issued an order permitting the Funds to include select securities from a Funds Investment Universe in the Funds Proxy Portfolio the Updated Exemptive Order.12 Accordingly, investments made by the Fidelity Womens Leadership ETF and Fidelity Sustainability U.S. Equity ETF will comply with this condition in the Updated Application and the Updated Exemptive Order.
Except for the change noted above, all other representations made in the respective rule filings remain unchanged and will continue to constitute continuing listing requirements for the Funds. The Funds will also continue to comply with the requirements of Rule 8.601E.
2. Statutory Basis The Exchange believes that the proposed rule change is consistent with Section 6b of the Act,13 in general, and furthers the objectives of Section 6b5
of the Act,14 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 9 See
Notice, 86 FR 19658, n. 8.
Covington Trust, a business trust under the laws of The Commonwealth of Massachusetts registered with the Commission as an open-end management investment company, was not part of the Prior Application.
11 See File No. 81215175.
12 See Investment Company Act Release No.
34350, August 5, 2021.
13 15 U.S.C. 78fb.
14 15 U.S.C. 78fb5.
10 Fidelity
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system, and, in general, to protect investors and the public interest.15
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest. The proposed revision is intended to ensure that each of the Funds will comply with the conditions set forth in the Updated Application and the Updated Exemptive Order that permits the Funds to use Creation Baskets that include instruments that are not included, or are included with different weightings, in the Funds Proxy Portfolio. The proposed rule change would permit the Funds to operate consistent with this updated condition in the Updated Application and the Updated Exemptive Order. Except for the changes noted above, all other representations made in the respective rule filings remain unchanged and, as noted, will continue to constitute continuing listing requirements for the Funds.
B. Self-Regulatory Organizations 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, the purpose of the filing is to reflect an amendment to the Application and Exemptive Order governing the listing and trading of these Funds. To the extent that the proposed rule change would continue to permit listing and trading of another type of activelymanaged ETF that has characteristics different from existing actively-managed and index ETFs, the Exchange believes that the proposal would benefit of investors by continuing to promote competition among various ETF
products.
C. Self-Regulatory Organizations 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 15 The Exchange represents that, for initial and continued listing, the Fund will be in compliance with Rule 10A3 under the Act, as provided by NYSE Arca Rule 5.3E.

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