[Federal Register Volume 84, Number 63 (Tuesday, April 2, 2019)]
[Notices]
[Pages 12646-12649]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06313]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-85430; File No. SR-NYSEArca-2019-14]


Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
of Proposed Rule Change Relating to Certain Changes Regarding 
Investments of the PGIM Ultra Short Bond ETF Under NYSE Arca Rule 
8.600-E

March 27, 2019.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby 
given that, on March 13, 2019, 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, II, 
and III below, which Items have been prepared by the self-regulatory 
organization. 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\ 15 U.S.C. 78a.
    \3\ 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 certain changes regarding investments of the 
PGIM Ultra Short Bond ETF (the ``Fund''), a series of PGIM ETF Trust 
(the ``Trust''), under NYSE Arca Rule 8.600-E (``Managed Fund 
Shares''). The proposed change is available on the Exchange's website 
at www.nyse.com, at the principal office of the Exchange, and at the 
Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the self-regulatory organization 
included statements concerning the purpose of, and basis for, the 
proposed rule change and discussed any comments it received on the 
proposed rule change. The text of those statements may be examined at 
the places specified in Item IV below. The Exchange has prepared 
summaries, set forth in sections A, B, and C below, of the most 
significant parts of such statements.

[[Page 12647]]

A. Self-Regulatory Organization's Statement of the Purpose of, and the 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes certain changes, described below under 
``Application of Generic Listing Requirements,'' regarding investments 
of the Fund. The shares (``Shares'') of the Fund commenced trading on 
the Exchange on April 10, 2018 pursuant to the generic listing 
standards under Commentary .01 to NYSE Arca Rule 8.600-E (``Managed 
Fund Shares'').\4\ The Commission has previously approved two proposed 
rule changes regarding certain changes that would result in the 
portfolio for the Fund not meeting all of the ``generic'' listing 
requirements of Commentary .01 to NYSE Arca Rule 8.600-E applicable to 
the listing of Managed Fund Shares.\5\
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    \4\ A Managed Fund Share is a security that represents an 
interest in an investment company registered under the Investment 
Company Act of 1940 (15 U.S.C. 80a-1) (the ``1940 Act'') organized 
as an open-end investment company or similar entity that invests in 
a portfolio of securities selected by its investment adviser 
consistent with its investment objectives and policies. In contrast, 
an open-end investment company that issues Investment Company Units, 
listed and traded on the Exchange under NYSE Arca Rule 5.2-E(j)(3), 
seeks to provide investment results that correspond generally to the 
price and yield performance of a specific foreign or domestic stock 
index, fixed income securities index or combination thereof.
    \5\ See Securities Exchange Act Release Nos. 83319 (May 24, 
2018), 83 FR 25097 (May 31, 2018) (SR-NYSEArca-2018-15), (Order 
Approving a Proposed Rule Change, as Modified by Amendment No. 1 
Thereto, to Continue Listing and Trading Shares of the PGIM Ultra 
Short Bond ETF under NYSE Arca Rule 8.600-E) (``First Prior 
Order''); 84818 (December 13, 2018) (SR-NYSEArca-2018-75) (Order 
Approving a Proposed Rule Change, as Modified by Amendment No. 1 
Thereto, Regarding the Listing and Trading of Shares of the PGIM 
Ultra Short Bond ETF) (``Second Prior Order'' and, together with the 
First Prior Order, the ``Prior Orders''). The First Prior Order 
stated that the Fund's portfolio would meet all requirements of 
Commentary .01 to NYSE Arca Rule 8.600-E except for those set forth 
in Commentary .01(a)(1), Commentary .01(b)(4) and Commentary 
.01(b)(5). The Second Prior Order stated that the Fund's portfolio 
would not meet the requirements of Commentary .01(e) to NYSE Arca 
Rule 8.600-E.
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    PGIM Investments LLC (the ``Adviser'') is the investment adviser 
for the Fund. PGIM Fixed Income (the ``Subadviser''), a unit of PGIM, 
Inc., is the subadviser to the Fund. The Adviser and the Subadviser are 
indirect wholly-owned subsidiaries of Prudential Financial, Inc.\6\
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    \6\ The Trust is registered under the 1940 Act. On March 26, 
2018, the Trust filed with the Commission Pre-Effective Amendment 
No. 1 to the Trust's registration statement on Form N-1A under the 
Securities Act of 1933 (15 U.S.C. 77a), and under the 1940 Act 
relating to the Fund (File Nos. 333-222469 and 811-23324) 
(``Registration Statement''). The Trust will file an amendment to 
the Registration Statement as necessary to conform to the 
representations in this filing. The description of the operation of 
the Trust and the Fund herein is based, in part, on the Registration 
Statement. In addition, the Commission has issued an order granting 
certain exemptive relief to the Trust under the 1940 Act. See 
Investment Company Act Release No. 31095 (June 24, 2014) (File No. 
812-14267).
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    As stated in the First Prior Order, the investment objective of the 
Fund seeks to provide total return through a combination of current 
income and capital appreciation, consistent with preservation of 
capital. The Fund seeks to achieve its investment objective by 
investing primarily in a portfolio of U.S. dollar denominated short-
term fixed, variable and floating rate debt instruments. Under normal 
market conditions,\7\ the Fund invests at least 80% of its net assets 
(plus any borrowings for investment purposes) in a portfolio of 
financial instruments consisting of (i) the Principal Investment 
Instruments (as defined in the First Prior Order) and (ii) derivatives 
(as described in the Prior Orders) that (A) provide exposure to such 
Principal Investment Instruments, or (B) are used to enhance returns, 
manage portfolio duration, or manage the risk of securities price 
fluctuations, as described in the Prior Orders.
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    \7\ The term ``normal market conditions'' is defined in NYSE 
Arca Rule 8.600-E(c)(5).
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Application of Generic Listing Requirements

    The Exchange proposes that, in addition to the requirement approved 
by the Commission in the First Prior Order that Private ABS/MBS (as 
defined below) will, in the aggregate, not exceed more than 20% of the 
total assets of the Fund,\8\ the Fund will not invest more than 20% of 
the Fund's total assets in U.S. or foreign collateralized debt 
obligations (``CDOs'').\9\ The Exchange also proposes that Private ABS/
MBS will not be required to comply with the requirements of Commentary 
.01(b)(4) to NYSE Arca Rule 8.600-E.\10\
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    \8\ As described in the First Prior Order, among the Fund's 
Principal Investment Instruments are asset-backed securities 
(``ABS''), including mortgage-backed securities (``MBS''). The ABS 
(including MBS) in which the Fund invests include both (i) ABS 
(including MBS) issued by the U.S. Government, an agency of the U.S. 
Government, or a government sponsored entity (``GSE'') and (ii) non-
U.S. Government, non-agency, non-GSE and other privately issued ABS 
(including MBS) (``Private ABS/MBS'').
    \9\ For purposes of this filing, CDOs will not be deemed to be 
ABS for purposes of the restriction on the Fund's holdings of 
Private ABS/MBS. See note 9, infra.
    \10\ Commentary .01(b)(4) provides that component securities 
that in the aggregate account for at least 90% of the fixed income 
weight of the portfolio must be either: (a) From issuers that are 
required to file reports pursuant to Sections 13 and 15(d) of the 
Act; (b) from issuers that have a worldwide market value of its 
outstanding common equity held by non-affiliates of $700 million or 
more; (c) from issuers that have outstanding securities that are 
notes, bonds debentures, or evidence of indebtedness having a total 
remaining principal amount of at least $1 billion; (d) exempted 
securities as defined in Section 3(a)(12) of the Act; or (e) from 
issuers that are a government of a foreign country or a political 
subdivision of a foreign country. In the First Prior Order, the 
Commission approved an exception from Commentary .01(b)(4) to 
provide that fixed income securities that do not meet any of the 
criteria in Commentary .01(b)(4) will not exceed 10% of the total 
assets of the Fund.
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    The Fund's investments currently comply with the generic 
requirements set forth in Commentary .01 to Rule 8.600-E.
    The Exchange is submitting this proposed rule change because the 
changes described in the preceding paragraph would not conform to the 
Exchange's representations regarding the Fund's investments as stated 
in the First Prior Order. In the First Prior Order, the Exchange stated 
that the Fund will not comply with the requirement in Commentary 
.01(b)(5) that investments in non-agency, non-government sponsored 
entity and privately issued mortgage-related and other asset-backed 
securities (i.e., Private ABS/MBS) not account, in the aggregate, for 
more than 20% of the weight of the fixed income portion of the 
portfolio, and, instead, that Private ABS/MBS, in the aggregate, may 
not exceed more than 20% of the total assets of the Fund.\11\ As stated 
above, the Exchange proposes to amend this representation regarding the 
Fund's investments to provide that the Fund will not invest more than 
20% of the Fund's total assets in Private ABS/MBS or more than 20% of 
the Fund's total assets in U.S. or foreign CDOs.\12\ CDOs

[[Page 12648]]

would be excluded from the 20% limit on Private ABS/MBS but would be 
subject to a separate limit of 20%, measured with respect to the total 
assets of the Fund.\13\ The Exchange believes that this 20% limitation 
will help the Fund maintain portfolio diversification and will reduce 
manipulation risk.\14\ In addition, the Fund's investment in CDOs will 
be subject to the Fund's liquidity procedures as adopted by the Board, 
and the Adviser does not expect that investments in CDOs of up to 20% 
of the total assets of the Fund will have any material impact on the 
liquidity of the Fund's investments.
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    \11\ Commentary .01(b)(5) to NYSE Arca Rule 8.600-E provides 
that non-agency, non-government sponsored entity and privately 
issued mortgage-related and other asset-backed securities components 
of a portfolio may not account, in the aggregate, for more than 20% 
of the weight of the fixed income portion of the portfolio. In the 
First Prior Order, the Commission approved an exception from 
Commentary .01(b)(5) to permit the Fund's investments in Private 
ABS/MBS to not exceed 20% of the total assets of the Fund.
    \12\ For purposes of this proposed rule change, CDOs are 
excluded from the definition of ABS and, for purposes of this 
proposed rule change only, are comprised exclusively of 
collateralized loan obligations (``CLOs'') and collateralized bond 
obligations (``CBOs''). CLOs are securities issued by a trust or 
other special purpose entity that are collateralized by a pool of 
loans by U.S. banks and participations in loans by U.S. banks that 
are unsecured or secured by collateral other than real estate. CBOs 
are securities issued by a trust or other special purpose entity 
that are backed by a diversified pool of fixed income securities 
issued by U.S. or foreign governmental entities or fixed income 
securities issued by U.S. or corporate issuers. CDOs are 
distinguishable from ABS because they are collateralized by bank 
loans or by corporate or government fixed income securities and not 
by consumer and other loans made by non-bank lenders, including 
student loans.
    \13\ The Exchange notes that the Commission has approved a 
proposed rule change permitting investments by an issue of Managed 
Fund Shares to exclude CDOs from the 20% limit on Private ABS/MBS 
but subject CDOs to a separate limit of 10%, measured with respect 
to the total assets of the fund. See Securities Exchange Act Release 
No. 84047 (September 6, 2018), 83 FR 46200 (September 12, 2018) (SR-
NASDAQ-2017-128) (Notice of Filing of Amendment No. 3 and Order 
Granting Accelerated Approval of a Proposed Rule Change, as Modified 
by Amendment No. 3, to List and Trade Shares of the Western Asset 
Total Return ETF).
    \14\ The Exchange notes that the Commission has approved a 
proposed rule change permitting an issue of Managed Fund Shares to 
hold up to 30% of the weight of the fixed income securities portion 
of the fund's portfolio to consist of non-agency, non-GSE and 
privately-issued mortgage-related and other asset-backed securities. 
See Securities Exchange Act Release No. 84826 (December 14, 2018), 
83 FR 65386 (December 20, 2018) (SR-NYSEArca-2018-25) (Order 
Approving a Proposed Rule Change, as Modified by Amendment No. 2, 
Regarding the Continued Listing and Trading of Shares of the Natixis 
Loomis Sayles Short Duration Income ETF)).
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    In addition, the First Prior Order stated that the Fund will not 
comply with the requirement that securities that in aggregate account 
for at least 90% of the fixed income weight of the portfolio meet one 
of the criteria in Commentary .01(b)(4), and, instead, fixed income 
securities that do not meet any of the criteria in Commentary .01(b)(4) 
will not exceed 10% of the total assets of the Fund. As stated above, 
the Exchange proposes to amend this representation to state that the 
Private ABS/MBS, which will be limited to 20% of the Fund's total 
assets, will not be required to comply with the criteria in Commentary 
.01(b)(4)(a) through (e) to NYSE Arca Rule 8.600-E. Therefore, fixed 
income securities that do not meet the criteria in Commentary .01(b)(4) 
will not exceed 10% of the total assets of the Fund, excluding Private 
ABS/MBS.\15\ CDOs also would not be subject to the criteria in 
Commentary .01(b)(4)(a) through (e) but would be subject to a limit of 
20%, measured with respect to the total assets of the Fund.
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    \15\ As noted above, CDOs would be excluded from the 20% limit 
on Private ABS/MBS but would be subject to a separate limit of 20%, 
measured with respect to the total assets of the Fund.
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    The Exchange notes that the Commission has previously approved the 
listing of Managed Fund Shares with similar investment objectives and 
strategies without imposing requirements that a certain percentage of 
such funds' securities meet one of the criteria set forth in Commentary 
.01(b)(4).\16\
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    \16\ See, e.g., Exchange Act Release Nos. 67894 (September 20, 
2012) 77 FR 59227 (September 26, 2012) (SR-BATS-2012-033) (order 
approving the listing and trading of shares of the iShares Short 
Maturity Bond Fund); 70342 (September 6, 2013), 78 FR 56256 
(September 12, 2013) (SR-NYSEArca-2013-71) (order approving the 
listing and trading of shares of the SPDR SSgA Ultra Short Term Bond 
ETF, SPDR SSgA Conservative Ultra Short Term Bond ETF and SPDR SSgA 
Aggressive Ultra Short Term Bond ETF).
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    Deviations from the generic requirements are necessary for the Fund 
to achieve its investment objective in a manner that is cost-effective 
and that maximizes investors' returns. Further, the proposed 
alternative requirements are narrowly tailored to allow the Fund to 
achieve its investment objective in manner that is consistent with the 
principles of Section 6(b)(5) of the Act. As a result, it is in the 
public interest to approve listing and trading of Shares of the Fund on 
the Exchange pursuant to the requirements set forth herein.
    In addition, the Fund's investment in Private ABS/MBS and CDOs will 
be subject to the Fund's liquidity risk management program as approved 
by the Fund's board of directors.\17\ The liquidity procedures 
generally include public disclosure by the Fund of its liquidity and 
redemption practices. The Fund's holdings in Private ABS/MBS and CDOs 
would be encompassed within the Fund's liquidity risk management 
program.
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    \17\ Rule 22e-4(b) under the 1940 Act requires, among other 
things, that a fund ``adopt and implement a written liquidity risk 
management program that is reasonably designed to assess and manage 
its liquidity risk.'' The rule is ``designed to promote effective 
liquidity risk management throughout the open-end investment company 
industry, thereby reducing the risk that funds will be unable to 
meet their redemption obligations and mitigating dilution of the 
interests of fund shareholders.'' See Release Nos. 33-10233; IC-
32315; File No. S7-16-15 (October 13, 2016).
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    Except for the changes noted above, all other representations made 
in the Prior Orders remain unchanged. All terms referenced but not 
defined in this proposed rule change are defined in the Prior Orders.
2. Statutory Basis
    The basis under the Act for this proposed rule change is the 
requirement under Section 6(b)(5) of the Act that an exchange have 
rules that are 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, in general, to protect investors and the public interest.
    As described above, deviations from the generic requirements of 
Commentary .01(b) to Rule 8.600-E are necessary for the Fund to achieve 
its investment objective in a manner that is cost-effective and that 
maximizes investors' returns. Further, the proposed alternative 
requirements are narrowly tailored to allow the Fund to achieve its 
investment objective in manner that is consistent with the principles 
of Section 6(b)(5) of the Act. As a result, it is in the public 
interest to approve continued listing and trading of Shares of the Fund 
on the Exchange pursuant to the requirements set forth herein.
    The Fund will not meet the requirement that at least 90% of the 
fixed income weight of the Fund's portfolio meet one of the criteria in 
Commentary .01(b)(4)(a) through (e) to Rule 8.600-E because some 
Private ABS/MBS cannot satisfy the criteria in Commentary .01(b)(4)(a) 
through (e). The Exchange proposes, in the alternative, to require that 
Fund's investments in fixed income securities that do not meet the 
criteria in Commentary .01(b)(4) will not exceed 10% of the total 
assets of the Fund, excluding Private ABS/MBS.\18\ CDOs also would not 
be subject to the criteria in Commentary .01(b)(4)(a) through (e) but 
would be subject to a limit of 20% measured with respect to the total 
assets of the Fund. The Exchange believes that this alternative 
limitation is appropriate because the criteria in Commentary 
.01(b)(4)(a) through (e) do not appear to be designed for structured 
finance vehicles such as Private ABS/MBS, and the overall weight of 
Private ABS/MBS held by the Fund will be limited to 20% of the total 
assets of the Fund's portfolio, as described above.
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    \18\ See note 13, supra.
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    As discussed above, the Exchange proposes that CDOs will not be 
deemed to be included in the definition of ABS for purposes of the 
limitation in Commentary .01(b)(5) to NYSE Arca Rule 8.600-E and, as a 
result, will not be subject to the restriction on aggregate holdings of 
Private ABS/MBS. However, the Fund's holdings in CDOs will be limited 
such that they do not account, in the aggregate, for more than 20% of 
the total assets of the Fund. The Exchange believes that the 20% limit 
on the Fund's holdings in CDOs will help to ensure that the Fund 
maintains a

[[Page 12649]]

diversified portfolio and will mitigate the risk of manipulation. In 
addition, the Fund's investment in CDOs will be subject to the Fund's 
liquidity procedures as adopted by the Board,\19\ and the Adviser does 
not expect that investments in CDOs of up to 20% of the total assets of 
the Fund will have any material impact on the liquidity of the Fund's 
investments.
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    \19\ See note 15, supra.
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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. The Exchange believes that 
the proposed rule change will facilitate listing and trading of shares 
of another actively managed ETF that principally holds fixed income 
securities, and that will enhance competition among market 
participants, 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

    Within 45 days of the date of publication of this notice in the 
Federal Register or 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 self-regulatory 
organization consents, the Commission will:
    A. By order approve or disapprove the 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 (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-NYSEArca-2019-14 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities 
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSEArca-2019-14. 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 (http://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 10:00 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-2019-14 and should be submitted 
on or before April 23, 2019.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\20\
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    \20\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Deputy Secretary.
[FR Doc. 2019-06313 Filed 4-1-19; 8:45 am]
 BILLING CODE 8011-01-P


