[Federal Register Volume 85, Number 94 (Thursday, May 14, 2020)]
[Notices]
[Pages 28992-28996]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-10286]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-88840; File No. SR-NYSEAMER-2020-37]


Self-Regulatory Organizations; NYSE American LLC; Notice of 
Filing and Immediate Effectiveness of Proposed Change Modifying the 
NYSE American Options Fee Schedule

May 8, 2020.
    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 May 6, 2020, NYSE American LLC (``NYSE American'' or the 
``Exchange'') filed with the Securities and Exchange Commission (the 
``Commission'') the proposed rule change as described in

[[Page 28993]]

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'') to extend through May 2020 certain fee 
changes implemented for April 2020. The Exchange proposes to implement 
the fee change effective May 6, 2020.\4\ 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.
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    \4\ The Exchange originally filed to amend the Fee Schedule on 
May 1, 2020 (SR-NYSEAMER-2020-36) and withdrew such filing on May 6, 
2020.
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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 the Fee Schedule to extend 
through May 2020 certain fee changes implemented for April 2020, as 
described below. The Exchange proposes to implement the fee change 
effective May 6, 2020.
    On March 18, 2020, the Exchange announced that it would temporarily 
close the Trading Floor, effective Monday, March 23, 2020, as a 
precautionary measure to prevent the potential spread of COVID-19. 
Following the temporary closure of the Trading Floor, the Exchange 
temporarily modified certain fees for April 2020.\5\ Because the 
Trading Floor remains closed and has been closed for a longer period 
than expected--including seven business days in March, the Exchange 
proposes to extend the April 2020 fee changes through May 2020.
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    \5\ See Securities Exchange Act Release Nos. 88595 (April 8, 
2020), 85 FR 20737 (April 14, 2020) (SR-NYSEAMER-2020-25) (waiving 
Floor-based fixed fees); 88682 (April 8, 2020), 85 FR 20799 (April 
14, 2020) (SR-NYSEAMER-2020-26) (raising Floor Broker QCC Rebate 
Cap); 88682 (April 17, 2020), 85 FR 22772 (April 23, 2020) (SR-
NYSEAMER-2020-31) (including reversals and conversions in Strategy 
Execution Fee Cap).
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Waiver of Floor-Based Fixed Fees
    First, the Exchange proposes to extend through May 2020 the waiver 
of the following Floor-based fix fees, which relate directly to Floor 
operations, are charged only to Floor participants and do not apply to 
participants that conduct business off-Floor:
     Floor Access Fee;
     Floor Broker Handheld
     Transport Charges
     Floor Market Maker Podia;
     Booth Premises; and
     Wire Services.\6\
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    \6\ See proposed Fee Schedule, Section III.B, Monthly Trading 
Permit, Rights, Floor Access and Premium Product Fees, and IV. 
Monthly Floor Communication, Connectivity, Equipment and Booth or 
Podia Fees.
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    This proposed extension of the fee waiver would reduce monthly 
costs for Floor participants whose operations have been disrupted by 
the unanticipated Floor closure. In reducing this monthly financial 
burden while the Floor remains temporarily closed, the proposed change 
would allow affected participants to reallocate funds to assist with 
the cost of shifting and maintaining their previously on-Floor 
operations to off-Floor and recoup losses as a result of the 
unanticipated Floor closure. Absent this change, such participants may 
experience an unexpected increase in the cost of doing business on the 
Exchange.\7\ The Exchange believes that all ATP Holders that conduct 
business on the Trading Floor would benefit from this proposed fee 
change.
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    \7\ The Exchange will refund participants of the Floor Broker 
Prepayment Program for any prepaid May 2020 fees that are waived. 
See proposed Fee Schedule, Section III.E (providing that ``the 
Exchange will refund certain of the prepaid Eligible Fixed costs 
that were waived for April and May 2020, per Sections III.B and 
IV'').
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Floor Broker QCC Cap
    Second, the Exchange proposes to extend through May 2020 the 
increase in the maximum allowable Floor Broker credit, which is 
typically $425,000 up to $625,000 per month per Floor Broker (the ``FB 
QCC Cap'').\8\ Following the temporary closure of the Trading Floor, 
the Exchange experienced an unanticipated surge in QCC trades. The 
Exchange therefore believes that extending this fee change during the 
period while the Trading Floor remains temporarily closed would allow 
incentives to operate as intended--to encourage Floor Brokers to 
execute volume on the Exchange and to continue to execute all QCC 
transactions on the Exchange and, for the month of May, to continue to 
increase the number of such QCC transactions.
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    \8\ See proposed Fee Schedule, Section I.F., QCC Fees & Credits, 
n. 1 (setting forth available credits to Floor Brokers and providing 
that ``[t]he maximum Floor Broker credit paid shall not exceed 
$425,000 per month per Floor Broker firm (the ``Cap''), except that 
for the months of April and May 2020, the Cap would be $625,000 per 
Floor Broker firm'').
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    Absent the proposed change, participating Floor Brokers--whose 
operations have been disrupted by the unanticipated Floor closure for 
more than a month--could experience an unintended increase in the cost 
of trading on the Exchange, a result that is unintended and undesirable 
to the Exchange and its Floor Brokers trading QCCs. The Exchange 
believes that extending the increase in the FB QCC Cap through May 
would provide Floor Brokers with greater certainty as to their monthly 
costs and diminish the likelihood of an effective increase in the cost 
of trading.
    The Exchange cannot predict with certainty whether any Floor 
Brokers would benefit from this proposed fee change. However, without 
this proposed change during a time when Floor Brokers have increasingly 
turned to QCCs because the temporary Trading Floor closure prevents 
open outcry trading, the Exchange believes the proposed change is 
necessary to prevent Floor Brokers from diverting QCC order flow from 
the Exchange if and when they hit the Cap.
Strategy Fee Execution Cap
    Finally, the Exchange proposes to extend through May 2020 the 
inclusion of reversals and conversions executed as QCCs (``RevCon 
QCCs'') in the $1,000 daily Strategy Execution Cap (the ``Strategy 
Cap'').\9\ Absent this change, RevCon QCCs are not eligible for the 
Strategy Cap (but instead are subject to QCC Fees & Credits).\10\ With 
the temporary closure of the Trading Floor, which has continued longer 
than anticipated, Floor Brokers are unable to execute RevCons in open 
outcry. Floor

[[Page 28994]]

Brokers, however, are able to execute RevCon QCCs electronically via 
the Exchange systems. The Exchange believes the proposed inclusion of 
RevCon QCCs in the Strategy Cap, which is available to all ATP Holders, 
would encourage ATP Holders (including those acting as Floor Brokers) 
to execute their RevCon QCC volume on the Exchange, particularly during 
the period when open outcry is unavailable and to continue to increase 
the number of such RevCon QCC transactions during the month of May.
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    \9\ See proposed Fee Schedule, Sections I.J., Strategy Execution 
Fee Cap (including RevCon QCCs in the Strategy Cap during May 2020) 
and Section I.F., QCC Fees & Credits, n. 1 (providing that ``[t]he 
Floor Broker credit will not apply to any QCC trades that qualify 
for the Strategy Cap during the months of April and May 2020 (per 
Section I.J.)'').
    \10\ See Fee Schedule, Section I.F., QCC Fees & Credits.
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    The Exchange cannot predict with certainty whether any ATP Holders 
would benefit from this proposed fee change. At present, whether or 
when an ATP Holder qualifies for the Strategy Cap varies day-to-day, 
month-to-month. That said, the Exchange believes that ATP Holders would 
be encouraged to take advantage of the modified Cap. In addition, the 
Exchange believes the proposed change is necessary to prevent ATP 
Holders from diverting RevCon QCC order flow from the Exchange to a 
more economical venue.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Act,\11\ in general, and furthers the 
objectives of Sections 6(b)(4) and (5) of the Act,\12\ 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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    \11\ 15 U.S.C. 78f(b).
    \12\ 15 U.S.C. 78f(b)(4) and (5).
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    The Exchange operates in a highly competitive market. The 
Commission has repeatedly expressed its preference 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.''\13\
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    \13\ 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.\14\ Therefore, currently no exchange possesses significant 
pricing power in the execution of multiply-listed equity & ETF options 
order flow. More specifically, in January 2020, the Exchange had less 
than 10% market share of executed volume of multiply-listed equity & 
ETF options trades.\15\
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    \14\ The OCC publishes options and futures volume in a variety 
of formats, including daily and monthly volume by exchange, 
available here: https://www.theocc.com/market-data/volume/default.jsp.
    \15\ Based on OCC data, see id., the Exchange's market share in 
equity-based options declined from 9.82% for the month of January 
2019 to 8.08% for the month of January 2020.
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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 credits can have a direct effect on 
the ability of an exchange to compete for order flow. The proposed rule 
change is a reasonable attempt by the Exchange to increase the depth of 
its market and improve its market share relative to its competitors. 
The Exchange's fees are constrained by intermarket competition, as ATP 
Holders--whose operations may have been (unintentionally) disrupted by 
the unanticipated temporary closure of the Floor--may direct their 
order flow to any of the 16 options exchanges.
Waiver of Floor-Based Fixed Fees
    This proposed extension of the fee waiver is reasonable, equitable, 
and not unfairly discriminatory because it would reduce monthly costs 
for Floor participants whose operations have been disrupted by the 
unanticipated Floor closure for more than a month. In reducing this 
monthly financial burden, the proposed change would allow affected 
participants to reallocate funds to assist with the cost of shifting 
and maintaining their previously on-Floor operations to off-Floor and 
recoup losses as a result of the unanticipated Floor closure. Absent 
this change, such participants may experience an unexpected increase in 
the cost of doing business on the Exchange.
    The Exchange believes the proposed rule change is an equitable 
allocation of its fees and credits as it merely continues the fee 
waiver granted in April 2020, which impacts fees charged only to Floor 
participants and do not apply to participants that conduct business 
off-Floor.
    The Exchange believes that the proposal is not unfairly 
discriminatory because the proposed continuation of the fee waiver 
would affect all similarly-situated market participants on an equal and 
non-discriminatory basis.
    The Exchange believes that all ATP Holders that conduct business on 
the Trading Floor would benefit from this proposed fee change.
FB QCC Cap
    This proposed extension of the increase to the FB QCC Cap through 
May is reasonable, equitable, and not unfairly discriminatory because 
it would allow Exchange incentives to operate as intended and continue 
encourage QCC volume, which has seen an uptick in volume on the 
Exchange following the temporary closure of the Trading Floor. The 
proposed change would also facilitate fair and orderly markets by 
attempting to avoid an unintended increase in the cost of Floor 
Brokers' QCC trading on the Exchange. Absent the proposed change, 
participating Floor Brokers could experience an unintended increase in 
the cost of trading on the Exchange, a result that is unintended and 
undesirable to the Exchange and its Floor Brokers trading QCCs. The 
Exchange believes that the proposed increase to the Cap for May when 
the Trading Floor continues to be unavailable would provide Floor 
Brokers with greater certainty as to their monthly costs and diminish 
the likelihood of an effective increase in the cost of trading. To the 
extent that the proposed change attracts more QCC trades to the 
Exchange, this increased order flow would continue to make the Exchange 
a more competitive venue for, among other things, order execution, 
which, in turn, promotes just and equitable principles of trade and 
removes impediments to and perfects the mechanism of a free and open 
market and a national market system.
    The Exchange cannot predict with certainty whether any Floor 
Brokers would benefit from this proposed fee change. However, without 
this proposed change during a time when Floor Brokers have increasingly 
turned to QCCs because the ongoing temporary Trading Floor closure 
prevents open outcry trading, the Exchange believes the proposed change 
is necessary to prevent Floor Brokers from diverting QCC order flow 
from the Exchange if and when they hit the FB QCC Cap.
    The Exchange believes the proposed rule change is an equitable 
allocation of its fees and credits and not unfairly

[[Page 28995]]

discriminatory because it is based on the amount and type of business 
transacted on the Exchange during May and Floor Brokers can opt to 
avail themselves of the modified Cap (i.e., by executing more QCC 
transactions) or not. The proposed change would incent Floor Brokers to 
attract increased QCC order flow to the Exchange that might otherwise 
go to other options exchanges.
    The Exchange believes it is not unfairly discriminatory to modify 
the maximum allowable credit on QCC transactions to Floor Brokers 
because the proposed modification would be available to all similarly-
situated market participants (i.e., Floor Brokers) on an equal and non-
discriminatory basis.
Strategy Cap
    This proposed extension of the inclusion of RevCon QCCs in the 
$1,000 daily Strategy Cap for May 2020 is reasonable, equitable, and 
not unfairly discriminatory because it would encourage ATP Holders to 
execute their RevCon QCC volume on the Exchange, particularly during 
the period when open outcry is unavailable due to the ongoing temporary 
closure of the Trading Floor and to increase the number of such RevCon 
QCC transactions during the month of May. Further, the proposal is 
designed to encourage ATP Holders to aggregate all Strategy 
Executions--including RevCon QCCs--at the Exchange as a primary 
execution venue. To the extent that the proposed change attracts more 
Strategy Executions to the Exchange, this increased order flow would 
continue to make the Exchange a more competitive venue for order 
execution. Thus, the Exchange believes the proposed rule change would 
improve 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 Exchange believes the proposed rule change is an equitable 
allocation of its fees and credits and not unfairly discriminatory 
because it is based on the amount and type of business transacted on 
the Exchange and ATP Holders can opt to avail themselves of the 
modified Strategy Cap (i.e., by executing more RevCon QCC transactions) 
or not.
    The Exchange believes it is not unfairly discriminatory to extend 
the modification of the Strategy Cap through May because the proposed 
change would be available to all similarly-situated market participants 
on an equal and non-discriminatory basis.
    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. The Exchange believes that the proposed changes 
would encourage the continued participation of affected ATP Holders, 
thereby promoting market depth, price discovery and transparency and 
enhancing order execution opportunities for all market participants. As 
a result, the Exchange believes that the proposed change furthers 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.'' \16\
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    \16\ See Reg NMS Adopting Release, supra note 13, at 37499.
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    Intramarket Competition. The proposed continuation of the April 
2020 fee changes through May 2020 are designed to reduce monthly costs 
for Floor participants whose operations have been disrupted by the 
unanticipated Floor closure as well as to avoid an unintended increase 
in trading costs given the unavailability of open outcry trading on the 
Exchange. In addition, the continuation of the April 2020 fee changes 
is designed to attract additional order flow (particularly QCC trades 
and RevCon QCCs) to the Exchange
    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 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.\17\ Therefore, 
currently no exchange possesses significant pricing power in the 
execution of multiply-listed equity & ETF options order flow. More 
specifically, in January 2020, the Exchange had less than 10% market 
share of executed volume of multiply-listed equity & ETF options 
trades.\18\
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    \17\ See supra note 14.
    \18\ Based on OCC data, supra note 15, the Exchange's market 
share in equity-based options was 9.57% for the month of January 
2019 and 9.59% for the month of January, 2020.
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    The Exchange believes that the proposed rule change reflects this 
competitive environment because it modifies the Exchange's fees in a 
manner designed to reduce monthly costs for Floor participants whose 
operations have been disrupted by the unanticipated Floor closure and 
to encourage ATP Holders to direct trading interest (particularly QCCs 
and RevCon QCCs) to the Exchange, to provide liquidity and to attract 
order flow. 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.

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) \19\ of the Act and subparagraph (f)(2) of Rule 
19b-4 \20\ thereunder, because it establishes a due, fee, or other 
charge imposed by the Exchange.
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    \19\ 15 U.S.C. 78s(b)(3)(A).
    \20\ 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) \21\ of the Act to determine whether the proposed 
rule change should be approved or disapproved.
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    \21\ 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.

[[Page 28996]]

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-NYSEAMER-2020-37 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-NYSEAMER-2020-37. 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-NYSEAMER-2020-37, and should be 
submitted on or before June 4, 2020.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\22\
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    \22\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-10286 Filed 5-13-20; 8:45 am]
BILLING CODE 8011-01-P