Notice2021-12249
Self-Regulatory Organizations; NYSE American LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Modify the NYSE American Options Fee Schedule
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Published
June 11, 2021
Issuing agencies
Securities and Exchange Commission
Full Text
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<title>Federal Register, Volume 86 Issue 111 (Friday, June 11, 2021)</title>
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[Federal Register Volume 86, Number 111 (Friday, June 11, 2021)]
[Notices]
[Pages 31351-31354]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-12249]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-92122; File No. SR-NYSEAMER-2021-30]
Self-Regulatory Organizations; NYSE American LLC; Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change To Modify
the NYSE American Options Fee Schedule
June 7, 2021.
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 June 2, 2021, NYSE American LLC (``NYSE American'' 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 to modify the NYSE American Options Fee
Schedule (``Fee Schedule'') regarding the charges applicable to Manual
transactions by NYSE American Options Market Makers, Specialists, and
e-Specialists. The Exchange proposes to implement the fee change
effective June 2, 2021.\4\ 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.
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\4\ The Exchange originally filed to amend the Fee Schedule on
May 3, 2021 (SR-NYSEAmer-2021-25), then withdrew and refiled on May
12, 2021 (SR-NYSEAmer-2021-27) and May 21, 2021 (SR-NYSEAmer-2021-
28), which latter filing the Exchange withdrew on June 2, 2021.
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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 filing is to modify Section I.A. of the Fee
Schedule regarding the charges for Manual transactions by NYSE American
Options Market Makers, Specialists, and e-Specialists. Currently, NYSE
American Options Market Makers (``Market Makers'') are charged $0.25
per contract for Manual transactions; Specialists and e-Specialists
(collectively, ``Specialists'') are charged $0.18 per contract for
Manual transactions. The Exchange proposes to modify the rates charged
for Manual transactions to $0.35 per contract for Market Makers and
$0.30 per contract for Specialists. The proposed rate for Market Makers
is competitive and intended to align the Exchange's fees for Manual
transactions by Market Makers with those charged by other markets.\5\
The proposed rate for Specialists would reduce the existing disparity
between rates charged to Specialists and Market Makers from seven cents
($0.07) to five ($0.05), which disparity the Exchange believes
continues to be justified given the additional fees imposed on
Specialists.\6\
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\5\ See, e.g., Nasdaq PHLX LLC (``Phlx'') Pricing Schedule,
available at: <a href="https://listingcenter.nasdaq.com/rulebook/phlx/rules/Phlx%20Options%207">https://listingcenter.nasdaq.com/rulebook/phlx/rules/Phlx%20Options%207</a> (providing $0.35 per contract rate for manual
transactions by market makers); Cboe Exchange, Inc. (``Cboe'') Fee
Schedule, available at: <a href="https://cdn.cboe.com/resources/membership/Cboe_FeeSchedule.pdf">https://cdn.cboe.com/resources/membership/Cboe_FeeSchedule.pdf</a> (providing $0.35 per contract rate for manual
transactions by market makers).
\6\ See Fee Schedule, Section III.C. (setting forth the Rights
Fee assessed on each issue in a Specialist's allocation, with rates
based on the Average National Daily Customer Contracts).
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The Exchange also proposes to modify Footnote 6 to Section 1.A. of
the Fee Schedule, which provides that participants in the Prepayment
Program \7\ will pay reduced rates for Manual transactions.
Specifically, the Exchange proposes to modify Footnote 6 to clarify
that Market Makers and Specialists who participate in the Prepayment
Program will receive a per contract discount on Manual transactions,
instead of setting forth a specific per contract charge. Currently,
Footnote 6 provides that Market Makers who participate in the
Prepayment Program are charged $0.23 per contract for Manual
transactions (representing a $0.02 discount on the current $0.25 per
contract rate applicable to Market Makers), and Specialists who
participate in the Prepayment Program are charged $0.17 per contract
for Manual transactions (which represents a $0.01 discount on the
current $0.18 per contract rate applicable to Specialists). The
Exchange proposes to revise this footnote to specify that Market Makers
that participate in the Prepayment Program will receive a $0.02
discount on the per contract rate for Manual transactions, and
Specialists that participate in the Prepayment Program will receive a
$0.01 discount on the per contract rate for Manual transactions.\8\ The
Exchange proposes this modification to the Fee Schedule to clarify the
nature of the discount available to Market Makers and Specialists who
participate in the Prepayment Program and to simplify the Fee Schedule
in the event of any future changes to the rates applicable to Manual
transactions by Market Makers and/or Specialists.
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\7\ See Fee Schedule, Section I.D.
\8\ Based on the proposed $0.35 and $0.30 per contract rates for
Market Maker and Specialist Manual transactions, respectively,
Market Makers who participate in the Prepayment Program would, as
proposed, receive a discounted rate of $0.33 per contract on Manual
transactions, and Specialists who participate in the Prepayment
Program would receive a discounted rate of $0.29 per contract on
Manual transactions.
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2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Act,\9\ in general, and furthers the
objectives of Sections 6(b)(4) and (5) of the Act,\10\ in particular,
because it provides for the equitable allocation of reasonable dues,
fees, and other charges among its members, issuers and other persons
using its facilities and does not unfairly discriminate between
customers, issuers, brokers or dealers.
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\9\ 15 U.S.C. 78f(b).
\10\ 15 U.S.C. 78f(b)(4) and (5).
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The Proposed Rule Change Is Reasonable
The Exchange operates in a highly competitive market. The
Commission has repeatedly expressed its preference
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for competition over regulatory intervention in determining prices,
products, and services in the securities markets. In Regulation NMS,
the Commission highlighted the importance of market forces in
determining prices and SRO revenues and, also, recognized that current
regulation of the market system ``has been remarkably successful in
promoting market competition in its broader forms that are most
important to investors and listed companies.'' \11\
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\11\ See Securities Exchange Act Release No. 51808 (June 9,
2005), 70 FR 37496, 37499 (June 29, 2005) (S7-10-04) (``Reg NMS
Adopting Release'').
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There are currently 16 registered options exchanges competing for
order flow. Based on publicly-available information, and excluding
index-based options, no single exchange has more than 16% of the market
share of executed volume of multiply-listed equity and ETF options
trades.\12\ Therefore, currently no exchange possesses significant
pricing power in the execution of multiply-listed equity & ETF options
order flow. More specifically, in March 2021, the Exchange had less
than 10% market share of executed volume of multiply-listed equity and
ETF options trades.\13\
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\12\ The OCC publishes options and futures volume in a variety
of formats, including daily and monthly volume by exchange,
available here: <a href="https://www.theocc.com/Market-Data/Market-Data-Reports/Volume-and-Open-Interest/Monthly-Weekly-Volume-Statistics">https://www.theocc.com/Market-Data/Market-Data-Reports/Volume-and-Open-Interest/Monthly-Weekly-Volume-Statistics</a>.
\13\ Based on a compilation of OCC data for monthly volume of
equity-based options and monthly volume of ETF-based options, see
id., the Exchange's market share in multiply-listed equity and ETF
options increased slightly from 7.89% for the month of March 2020 to
8.63% for the month of March 2021.
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The Exchange believes that the ever-shifting market share among the
exchanges from month to month demonstrates that market participants can
shift order flow, or discontinue or reduce use of certain categories of
products, in response to fee changes. Accordingly, competitive forces
constrain options exchange transaction fees. Stated otherwise, changes
to exchange transaction fees and rebates can have a direct effect on
the ability of an exchange to compete for order flow.
The proposed rule change is designed to bring the Exchange's fees
for Market Maker Manual transactions into alignment with those charged
on other markets with Trading Floors. The Exchange believes it is
reasonable to increase certain fees, similar to fees assessed by
competing options exchanges for similar transactions, and notes that
Specialists will continue to be charged lower fees than those assessed
by competing options exchanges for similar transactions.\14\ The
Exchange also believes that it is reasonable to continue to offer
Specialists lower fees than Market Makers for Manual transactions given
that Specialists are subject to additional monthly Rights Fees.\15\ The
Exchange believes that the proposed increased charge for Manual
executions by Market Makers and Specialists but not for other market
participants is reasonable because the resulting disparity would align
the Exchange's fees for Manual executions with the fees charged on
other exchanges.\16\
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\14\ See supra note 5.
\15\ See supra note 6.
\16\ The Exchange does not impose any fee on Manual transactions
by Customers but does charge $0.25 per contract for Manual
transactions by Firms, Broker-Dealers and Professional Customers,
which rates are consistent with fees charged these market
participants on other exchanges. See, e.g., supra note 5, PHLX
Pricing Schedule and Cboe Fee Schedule (both exchanges imposing no
charge for manual transactions by customers and imposing a $0.25 per
contract rate for manual transactions by firms, broker-dealers and
professional customers).
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The Exchange also believes the proposed changes, even though they
are increased fees, would not discourage Market Makers and Specialists
from continuing to conduct Manual transactions on the Exchange,
including because Market Makers and Specialists who participate in the
Prepayment Program will continue to receive discounted rates on Manual
transactions and because Specialists will continue to be charged lower
fees than those assessed by competing options exchanges for similar
transactions. And, for Market Makers and Specialists that do not
participate in the Prepayment Program, the Exchange believes that other
reduced pricing and incentives offer by the Exchange would continue to
encourage these participants to conduct Manual transactions on the
Exchange.\17\
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\17\ See Fee Schedule, Section III.A (regarding ATP fees for
Floor Market Makers); see also, e.g., Notice of Filing and Immediate
Effectiveness of Proposed Change to Amend the NYSE American Options
Fee Schedule, Securities Exchange Act Release No. 90193 (October 15,
2020), 85 FR 67069 (October 21, 2020) (SR-NYSEAMER-2020-76)
(reducing the cap on strategy executions from $1,000 to $200 for ATP
Holders that execute at least 25,000 monthly billable contract sides
in Strategy Executions) and Fee Schedule, Section I.J (Strategy
Execution Fee Cap). While the reduction to the cap on Strategy
Executions is available to all ATP Holders, the Exchange notes that
Market Makers and Specialists have a time and place advantage by
virtue of their presence on the Trading Floor to participate in such
executions and therefore benefit from the reduced cap.
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The Exchange thus believes that the proposed changes would continue
to attract volume and liquidity to the Exchange generally and would
therefore benefit all market participants (including those that do not
participate in Manual transactions) through increased opportunities to
trade.
Finally, to the extent the proposed fees do not discourage Market
Makers and Specialists from continuing to conduct Manual transactions
on the Exchange, the Exchange believes the proposed changes would
continue to improve the Exchange's overall competitiveness and
strengthen its market quality for all market participants. In the
backdrop of the competitive environment in which the Exchange operates,
the proposed rule change is a reasonable attempt by the Exchange to
maintain its market share relative to its competitors.
The Proposed Rule Change Is an Equitable Allocation of Fees and Rebates
The Exchange believes the proposed rule change is an equitable
allocation of its fees and credits. The proposal is based on the type
of business transacted on the Exchange, and Market Makers and
Specialists can opt to participate in Manual transactions or not.
Market Makers and Specialists who participate in the Prepayment Program
will also continue to receive the same size discount on their
respective rates for Manual transactions, as modified. The Exchange
notes that the increased fees for Manual executions by Market Makers
and Specialists, but not for other market participants, represents an
equitable allocation of fees given that the proposed fees (and
resulting disparity) are consistent with fees charged for Manual
executions by market makers on other exchanges.\18\ The Exchange also
believes that continuing to offer Specialists lower fees than Market
Makers is an equitable allocation of fees given that Specialists are
subject to additional fees set forth in the Exchange's Fee
Schedule.\19\
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\18\ See supra notes 5 and 16.
\19\ See supra note 6.
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Moreover, even though the proposed changes increase the fees
applicable to Manual transactions by Market Makers and Specialists, the
Exchange does not believe they will discourage such transactions on the
Exchange or the aggregation of such executions at the Exchange as a
primary execution venue, including because of other reduced fees and
incentives available to such participants on the Exchange.\20\ To the
extent that the proposed changes continue to attract Manual
transactions to the Exchange, this order flow would continue to make
the Exchange a more competitive venue for, among other things, order
execution. Thus, the Exchange believes the proposed rule change would
continue to improve
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market quality for all market participants on the Exchange and, as a
consequence, continue to attract more order flow to the Exchange,
thereby improving market-wide quality and price discovery.
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\20\ See supra note 17.
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The Proposed Rule Change Is Not Unfairly Discriminatory
The Exchange believes that the proposal is not unfairly
discriminatory because the proposed modifications would apply to all
Market Makers and Specialists who execute Manual transactions on the
Exchange on an equal and non-discriminatory basis. In addition, all
Market Makers and Specialists who are participants in the Prepayment
Program will continue to receive a discount on the rates applicable to
their respective Manual transactions. The proposal is based on the
amount and type of business transacted on the Exchange, and Market
Makers and Specialists are not obligated to participate in Manual
transactions on the Exchange. Rather, the proposal is designed to
continue to encourage the use of the Exchange as a primary trading
venue (if they have not done so previously) by maintaining the Trading
Floor for Manual transactions.
The Exchange also believes that increasing fees for Manual
executions by Market Makers, but not other market participants, is not
unfairly discriminatory given that the proposed rates (and resulting
disparity) are a competitive response to rates charged on competing
options exchanges for manual executions by market makers and because
these participants may available themselves of other reduced fees and
incentives offered by the Exchange.\21\ The Exchange also believes that
it is not unfairly discriminatory to continue to offer Specialists
lower fees than Market Makers given that Specialists are subject to
additional fees set forth in the Exchange's Fee Schedule.\22\
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\21\ See supra notes 5, 16 and 17.
\22\ See supra note 6.
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To the extent that the proposed change assists the Exchange in
continuing to attract Manual transactions to the Trading Floor, this
order flow would continue to make the Exchange a more competitive venue
for order execution. Thus, the Exchange believes the proposed rule
change would contribute to market quality for all market participants
on the Exchange and, as a consequence, attract more order flow to the
Exchange, thereby improving market-wide quality and price discovery.
The resulting volume and liquidity would continue to provide more
trading opportunities and tighter spreads to all market participants
and thus would promote just and equitable principles of trade, remove
impediments to and perfect the mechanism of a free and open market and
a national market system and, in general, protect investors and the
public interest.
Finally, the Exchange believes that it is subject to significant
competitive forces, as described below in the Exchange's statement
regarding the burden on competition.
B. Self-Regulatory Organization's Statement on Burden on Competition
In accordance with Section 6(b)(8) of the Act, the Exchange does
not believe that the proposed rule change would impose any burden on
competition that is not necessary or appropriate in furtherance of the
purposes of the Act. Instead, as discussed above, the Exchange believes
that the proposed changes would be consistent with charges for similar
business at other markets. As a result, the Exchange believes that the
proposed changes further the Commission's goal in adopting Regulation
NMS of fostering integrated competition among orders, which promotes
``more efficient pricing of individual stocks for all types of orders,
large and small.'' \23\
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\23\ See Reg NMS Adopting Release, supra note 11, at 37499.
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Intramarket Competition. The proposed change is designed to
continue to promote the use of the Exchange as a primary trading venue
by maintaining the Trading Floor for Manual transactions, which would
enhance the quality of quoting and may increase the volumes of
contracts traded on the Exchange. The Exchange believes that the
proposed increased fees for Manual executions by Market Makers and
Specialists but not for other market participants would not impose any
burden on intermarket competition that is not necessary or appropriate
because the proposed fees (and resulting disparity) are consistent with
fees charged for Manual executions by market makers on other exchanges
and because these participants may available themselves of other
reduced fees and incentives offered by the Exchange.\24\ The Exchange
believes that the proposed modifications to the rates applicable to
Manual transactions by Market Makers and Specialists will not
discourage those market participants from continuing to conduct Manual
transactions on the Exchange (including because those Market Makers and
Specialists who participate in the Prepayment Program will continue to
receive a discounted rate on Manual transactions and because
Specialists will continue to receive lower fees than those assessed by
competing options exchanges for similar transactions). To the extent
that this purpose is achieved, all of the Exchange's market
participants should benefit from the continued market liquidity.
Enhanced market quality and increased transaction volume that results
from the increase in order flow directed to the Exchange will benefit
all market participants and improve competition on the Exchange.
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\24\ See supra notes 5, 16 and 17.
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Intermarket Competition. The Exchange operates in a highly
competitive market in which market participants can readily favor one
of the 16 competing option exchanges if they deem fee levels at a
particular venue to be excessive. In such an environment, the Exchange
must continually adjust its mechanisms and fees to remain competitive
with other exchanges and to attract order flow to the Exchange. Based
on publicly-available information, and excluding index-based options,
no single exchange currently has more than 16% of the market share of
executed volume of multiply-listed equity and ETF options trades.\25\
Therefore, no exchange currently possesses significant pricing power in
the execution of multiply-listed equity & ETF options order flow. More
specifically, in March 2021, the Exchange had less than 10% market
share of executed volume of multiply-listed equity and ETF options
trades.\26\
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\25\ See supra note 12.
\26\ Based on a compilation of OCC data for monthly volume of
equity-based options and monthly volume of ETF-based options, see
id., the Exchange's market share in multiply-listed equity and ETF
options increased slightly from 7.89% for the month of March 2020 to
8.63% for the month of March 2021.
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The Exchange believes that the proposed rule change reflects this
competitive environment because it modifies the Exchange's fees to be
more closely aligned with fees charged by other markets with Trading
Floors for similar transactions.\27\ The Exchange also believes that
the proposed changes would continue to promote competition between the
Exchange and other execution venues by encouraging orders to be sent to
the Exchange for execution. To the extent that this purpose is
achieved, all the Exchange's market participants should benefit from
the improved market quality and increased opportunities for price
improvement.
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\27\ See supra notes 5 and 16.
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[[Page 31354]]
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
The foregoing rule change is effective upon filing pursuant to
Section 19(b)(3)(A) \28\ of the Act and subparagraph (f)(2) of Rule
19b-4 \29\ thereunder, because it establishes a due, fee, or other
charge imposed by the Exchange.
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\28\ 15 U.S.C. 78s(b)(3)(A).
\29\ 17 CFR 240.19b-4(f)(2).
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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. If the Commission
takes such action, the Commission shall institute proceedings under
Section 19(b)(2)(B) \30\ of the Act to determine whether the proposed
rule change should be approved or disapproved.
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\30\ 15 U.S.C. 78s(b)(2)(B).
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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
<bullet> Use the Commission's internet comment form (<a href="http://www.sec.gov/rules/sro.shtml">http://www.sec.gov/rules/sro.shtml</a>); or
<bullet> Send an email to <a href="/cdn-cgi/l/email-protection#bccec9d0d991dfd3d1d1d9d2c8cffccfd9df92dbd3ca"><span class="__cf_email__" data-cfemail="7604031a135b15191b1b131802053605131558111900">[email protected]</span></a>. Please include
File Number SR-NYSEAMER-2021-30 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-NYSEAMER-2021-30. 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="http://www.sec.gov/rules/sro.shtml">http://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-NYSEAMER-2021-30, and should be
submitted on or before July 2, 2021.
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\31\ 17 CFR 200.30-3(a)(12).
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\31\
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-12249 Filed 6-10-21; 8:45 am]
BILLING CODE 8011-01-P
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