[Federal Register Volume 85, Number 105 (Monday, June 1, 2020)]
[Notices]
[Pages 33249-33252]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-11652]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-88947; File No. SR-NYSEAMER-2020-41]


Self-Regulatory Organizations; NYSE American LLC; Notice of 
Filing and Immediate Effectiveness of a Proposed Rule Change To Amend 
Rule 960NY to Conform the Rule to Section 3.1 of the Plan for the 
Purpose of Developing and Implementing Procedures Designed To 
Facilitate the Listing and Trading of Standardized Options

May 26, 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 22, 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 Items I 
and II 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 amend Rule 960NY to conform the rule to 
Section 3.1 of the Plan for the Purpose of Developing and Implementing 
Procedures Designed to Facilitate the Listing and Trading of 
Standardized Options (the ``OLPP'') and add new Rule 960.1NY. The 
proposed rule 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.

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 rule change is to amend Rule 960NY (Trading 
Differentials) to align the rule with the recently approved amendment 
to the OLPP.
Background
    On January 23, 2007, the Commission approved on a limited basis a 
Penny Pilot in option classes in certain issues (``Penny Pilot''). The 
Penny Pilot was designed to determine whether investors would benefit 
from options being quoted in penny increments, and in which classes the 
benefits were most significant. The Penny Pilot was expanded and 
extended numerous times over the last 13 years.\4\ In each instance, 
these approvals relied upon the consideration of data periodically 
provided by the Exchanges that analyzed how quoting options in penny 
increments affects spreads, liquidity, quote traffic, and volume. 
Today, the Penny Pilot includes 363 option classes, which are among the 
most actively traded, multiply listed option classes. The Penny Pilot 
is scheduled to expire by its own terms on June 30, 2020.\5\
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    \4\ See Securities Exchange Act Release Nos. 55161 (January 24, 
2007), 72 FR 4738 (February 1, 2007) (SR-Amex-2006-106); 6567 
(September 27, 2007), 72 FR 56396 (October 7, 2007); 61061 (November 
24, 2009), 74 FR 62857 (December 1, 2009); 61106 (December 3, 2009), 
74 FR 65193 (December 9, 2009); 63393 (November 30, 2010), 75 FR 
75715 (December 6, 2010) (SR-NYSEAmex-2010-107); 65978 (December 15, 
2011), 76 FR 79246 (December 21, 2011) (SR-NYSEAmex-2011-107); 68427 
(December 13, 2012), 77 FR 75227 (December 19, 2012) (SR-NYSEMKT-
2012-75); 67321 (June 29, 2012), 77 FR 39761 (July 5, 2012) (SR-
NYSEMKT-2012-12); 61106 (December 3, 2009), 74 FR 65193 (December 9, 
2009) (SR-NYSEAmex-2009-74); 69105 (March 11, 2013), 78 FR 16554 
(March 15, 2013) (SR-NYSEMKT-2013-17); 69791 (June 18, 2013), 78 FR 
37860 (June 24, 2013) (SR-NYSEMKT-2013-48);[thinsp]71163 (December 
20, 2013), 78 FR 79049 (December 27, 2013) (SR-NYSEMKT-2013-104); 
72190 (May 20, 2014), 79 FR 30215 (May 27, 2014) (SR-NYSEMKT-2014-
47); 73778 (December 8, 2014), 79 FR 73922 (December 12, 2014) (SR-
NYSEMKT-2014-99); 75281 (June 24, 2015), 80 FR 37338 (June 30, 2015) 
(SR-NYSEMKT-2015-43); 78176 (June 28, 2016) 81 FR 43340 (July 1, 
2016). (SR-NYSEMKT-2016-61); 80989 (June 21, 2017), 82 FR 29130 
(June 27, 2017) (SR-NYSEMKT-2017-36); 79525 (December 12, 2016), 81 
FR 91230 (December 16, 2016) (SR-NYSEMKT-2016 111); 83507 (June 25, 
2018), 83 FR 30808 (June 29, 2018) (SR-NYSEAMER-2018-33); 84871 
(December 19, 2018) 83 FR 66789 (December 27, 2018) (SR- NYSE AMER-
2018-57); and 86061 (June 7, 2019) 84 FR 27665 (June 13, 2019) (SR-
NYSEAMER-2019-22).
    \5\ See Securities and Exchange Act Release No. 87633 (November 
26, 2019), 84 FR 66251 (December 3, 2019) (NYSEAmex-2019-51).
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    In light of the imminent expiration of the Penny Pilot on June 30, 
2020, the Exchange, together with other participating exchanges, filed, 
on July 18, 2019 a proposal to amend the OLPP.\6\ On April 1, 2020 the 
Commission approved the amendment to the OLPP to make permanent the 
Pilot Program (the ``OLPP Program'').\7\
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    \6\ See Securities Exchange Act Release No. 87681 (December 9, 
2019), 84 FR 68960 (December 17, 2019) (``Notice'').
    \7\ See Securities Exchange Act Release No. 88532 (April 1, 
2020), 85 FR 19545 (April 7, 2020) (File No. 4-443) (``Approval 
Order'').
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    The OLPP Program replaces the Penny Pilot by instituting a 
permanent program that would permit quoting in penny increments for 
certain option classes. Under the terms of the OLPP Program, designated 
option classes would continue to be quoted in $0.01 and $0.05 
increments according to the same parameters for the Penny Pilot. In 
addition, the OLPP Program would: (i) Establish an annual review 
process to add option classes to, or to remove option classes from, the 
OLPP Program; (ii) to allow an option class to be added to the OLPP 
Program if it is a newly listed option class and it meets certain 
criteria; (iii) to allow an option class to be added to the OLPP 
Program if it is an option class that has seen a significant growth in 
activity; (iv) to provide that if a corporate action involves one or 
more option classes in

[[Page 33250]]

the OLPP Program, all adjusted and unadjusted series and classes 
emerging as a result of the corporate action will be included in the 
OLPP Program; and (v) to provide that any series in an option class 
participating in the OLPP Program that have been delisted, or are 
identified by OCC as ineligible for opening Customer transactions, will 
continue to trade pursuant to the OLPP Program until they expire.
    To conform its Rules to the OLPP Program, the Exchange proposes to 
delete Commentary .02 to Rule 960NY (the ``Penny Pilot Rule''), which 
will be ``Reserved,'' and replace it with new Rule 960.1NY 
(Requirements for Penny Interval Program), which is described below, 
and to replace references to ``Penny Pilot'' in the Exchange rules with 
``Penny Interval Program.'' \8\ The Exchange also proposes to delete 
the superfluous operational language in Commentary .01 regarding the 
process for modifying trading differential by rule filing because such 
requirement remains the case today, as the Exchange must submit 
proposed rule changes--including for Rule 960NY--to the Commission; the 
Exchange will hold this Commentary as Reserved.\9\
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    \8\ This proposed rule change will become operative on July 1, 
2020, upon expiration of the current Penny Pilot on June 30, 2020.
    \9\ See Commentary .01 to Rule 960NY (providing that ``[t]he 
Exchange may only change the trading differentials for option 
contracts traded on the Exchange by filing a rule change proposal 
with the SEC, pursuant to Section 19(b)(3)(A) of the Securities 
Exchange Act of 1934 (effective upon filing)'').
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Penny Interval Program
    The Exchange proposes to codify the OLPP Program in new Rule 
960.1NY (Requirements for Penny Interval Program) (the ``Penny 
Program''), which will replace the Penny Pilot Rule and permanently 
permit the Exchange to quote certain option classes in minimum 
increments of one cents ($0.01) and five cents ($0.05) (``penny 
increments''). The penny increments that currently apply under the 
Penny Pilot will continue to apply for option classes included in the 
Penny Program. Specifically, (i) the minimum quoting increment for all 
series in the QQQ, SPY, and IWM would continue to be $0.01, regardless 
of price; \10\ (ii) all series of an option class included in the Penny 
Program with a price of less than $3.00 would be quoted in $0.01 
increments; and (iii) all series of an option class included in the 
Penny Program with a price of $3.00 or higher would be quoted in $0.05 
increments.
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    \10\ See Rule 960NY(a)(3)(A)-(C).
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    The Penny Program would initially apply to the 363 most actively 
traded multiply listed option classes, based on National Cleared Volume 
at The Options Clearing Corporation (``OCC'') in the six full calendar 
months ending in the month of approval (i.e., November 2019--April 
2020) that currently quote in penny increments, or overlie securities 
priced below $200, or any index at an index level below $200. 
Eligibility for inclusion in the Penny Program will be determined at 
the close of trading on the monthly Expiration Friday of the second 
full month following April 1, 2020 (i.e., June 19, 2020).
    Once in the Penny Program, an option class will remain included 
until it is no longer among the 425 most actively traded option classes 
at the time the annual review is conducted (described below), at which 
point it will be removed from the Penny Program. As described in more 
detail below, the removed class will be replaced by the next most 
actively traded multiply listed option class overlying securities 
priced below $200 per share, or any index at an index level below $200, 
and not yet in the Penny Program. Advanced notice regarding the option 
classes included, added, or removed from the Penny Program will be 
provided to the Exchange's membership via Trader Update and published 
by the Exchange on its website.
Annual Review
    The Penny Program would include an annual review process that 
applies objective criteria to determine option classes to be added to, 
or removed from, the Penny Program. Specifically, on an annual basis 
beginning in December 2020 and occurring ever December thereafter, the 
Exchange will review and rank all multiply listed option classes based 
on National Cleared Volume at OCC for the six full calendar months from 
June 1st through November 30th for determination of the most actively 
traded option classes. Any option classes not yet in the Penny Program 
may be added to the Penny Program if the class is among the 300 most 
actively traded multiply listed option classes and priced below $200 
per share or any index at an index level below $200.
    Following the annual review, option classes to be added to the 
Penny Program would begin quoting in penny increments (i.e., $0.01 if 
trading at less than $3; and $0.05 if trading at $3 and above) on the 
first trading day of January.\11\ In addition, following the annual 
review, any option class in the Penny Program that falls outside of the 
425 most actively traded option classes would be removed from the Penny 
Program. After the annual review, option classes that are removed from 
the Penny Program will be subject to the minimum trading increments set 
forth in Rule 960NY, effective on the first trading day of April.
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    \11\ See id. (providing that the minimum quoting increment for 
all series in the QQQ, SPY, and IWM would continue to be $0.01, 
regardless of price).
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Changes to the Composition of the Penny Program Outside of the Annual 
Review
Newly Listed Option Classes and Option Classes With Significant Growth 
in Activity
    The Penny Program would specify a process and parameters for 
including option classes in the Program outside the annual review 
process in two circumstances. These provisions are designed to provide 
objective criteria to add to the Penny Program new option classes in 
issues with the most demonstrated trading interest from market 
participants and investors on an expedited basis prior to the annual 
review, with the benefit that market participants and investors will 
then be able to trade these new option classes based upon quotes 
expressed in finer trading increments.
    First, the Penny Program provides for certain newly listed option 
classes to be added to the Penny Program outside of the annual review 
process, provided that (i) the class is among the 300 most actively 
traded, multiply listed option classes, as ranked by National Cleared 
Volume at OCC, in its first full calendar month of trading; and (ii) 
the underlying security is priced below $200 or the underlying index is 
at an index level below $200. Such newly listed option classes added to 
the Penny Program pursuant to this process would remain in the Penny 
Program for one full calendar year and then would be subject to the 
annual review process.
    Second, the Penny Program would allow an option class to be added 
to the Penny Program outside of the annual review process if it is an 
option class that meets certain specific criteria. Specifically, new 
option classes may be added to the Penny Program if: (i) the option 
class is among the 75 most actively traded multiply listed option 
classes, as ranked by National Cleared Volume at OCC, in the prior six 
full calendar months of trading and (ii) the underlying security is 
priced below $200 or the underlying index is at an index level below 
$200. Any option class added under this provision will be added on the 
first trading day of the second full month after it qualifies and will 
remain in the Penny Program for

[[Page 33251]]

the rest of the calendar year, after which it will be subject to the 
annual review process.
Corporate Actions
    The Penny Program would also specify a process to address option 
classes in the Penny Program that undergo a corporate action and is 
designed to ensure continuous liquidity in the affected option classes. 
Specifically, if a corporate action involves one or more option classes 
in the Penny Program, all adjusted and unadjusted series of an option 
class would continue to be included in the Penny Program.\12\ 
Furthermore, neither the trading volume threshold, nor the initial 
price test would apply to option classes added to the Penny Program as 
a result of the corporate action. Finally, the newly added adjusted and 
unadjusted series of the option class would remain in the Penny Program 
for one full calendar year and then would become subject to the annual 
review process.
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    \12\ For example, if Company A acquires Company B and Company A 
is not in the Penny Program but Company B is in the Penny Program, 
once the merger is consummated and an options contract adjustment is 
effective, then Company A would be added to the Penny Program and 
remain in the Penny Program for one calendar year.
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Delisted or Ineligible Option Classes
    Finally, the Penny Program would provide a mechanism to address 
option classes that have been delisted or those that are no longer 
eligible for listing. Specifically, any series in an option class 
participating in the Penny Program in which the underlying has been 
delisted, or is identified by OCC as ineligible for opening customer 
transactions, would continue to quote pursuant to the terms of the 
Penny Program until all options series have expired.
Technical Changes
    The Exchange proposes to replace reference to the Penny Pilot with 
reference to the Penny Interval Program in Rules 903, Commentary .14, 
960NY(a), and 986NY(a) and Commentary .01 thereto. The Exchange 
believes these technical changes would add clarity, transparency and 
internal consistency to Exchange rules making them easier to navigate.
Implementation
    This proposed rule change will become operative on July 1, 2020, 
upon expiration of the current Penny Pilot on June 30, 2020. The 
Exchange proposes to implement the Penny Program on July 1, 2020, which 
is the first trading day of the third month following the Approval 
Order issued on April 1, 2020--i.e., July 1, 2020.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Securities Exchange Act of 1934 (the ``Act''),\13\ in 
general, and furthers the objectives of Section 6(b)(5) 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 system, and, in 
general, to protect investors and the public interest.
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    \13\ 15 U.S.C. 78f(b).
    \14\ 15 U.S.C. 78f(b)(5).
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    In particular, the proposed rule change, which conforms the 
Exchange rules to the recently adopted OLPP Program, allows the 
Exchange to provide market participants with a permanent Penny Program 
for quoting options in penny increments, which maximizes the benefit of 
quoting in a finer quoting increment to investors while minimizing the 
burden that a finer quoting increment places on quote traffic.
    Accordingly, the Exchange believes that the proposal is consistent 
with the Act because, in conforming the Exchange rules to the OLPP 
Program, the Penny Program would employ processes, based upon objective 
criteria, that would rebalance the composition of the Penny Program, 
thereby helping to ensure that the most actively traded option classes 
are included in the Penny Program, which helps facilitate the 
maintenance of a fair and orderly market.
Technical Changes
    The Exchange notes that the proposed change to Rules 903, 960NY and 
968NY to replace references to the Penny Pilot with references to the 
Penny Interval Program would provide clarity and transparency to the 
Exchange rules and would promote just and equitable principles of trade 
and remove impediments to, and perfect the mechanism of, a free and 
open market and a national market system. The proposed rule changes 
would also provide internal consistency within Exchange rules and 
operate to protect investors and the investing public by making the 
Exchange rules easier to navigate and comprehend.

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 purposes of the Act. The proposed Penny Program, 
which modifies the exchange's rules to align them with the Commission 
approved OLPP Program, is not designed to be a competitive filing nor 
does it impose an undue burden on intermarket competition as the 
Exchange anticipates that the options exchanges will adopt 
substantially identical rules. Moreover, the Exchange believes that by 
conforming Exchange rules to the OLPP Program, the Exchange would 
promote regulatory clarity and consistency, thereby reducing burdens on 
the marketplace and facilitating investor protection. To the extent 
that there is a competitive burden on those option classes that do not 
qualify for the Penny Program, the Exchange believes that it is 
appropriate because the proposal should benefit all market participants 
and investors by maximizing the benefit of a finer quoting increment in 
those option classes with the most trading interest while minimizing 
the burden of greater quote traffic in option classes with less trading 
interest. The Exchange believes that adopting rules, which it 
anticipates will likewise be adopted by all option exchanges that are 
participants in the OLPP, would allow for continued competition between 
Exchange market participants trading similar products as their 
counterparts on other exchanges, while at the same time allowing the 
Exchange to continue to compete for order flow with other exchanges.

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 Exchange has filed the proposed rule change pursuant to Section 
19(b)(3)(A)(iii) of the Act \15\ and Rule 19b-4(f)(6) thereunder.\16\ 
Because the 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

[[Page 33252]]

prior to 30 days from the date on which it was filed, or such shorter 
time as the Commission may designate, if consistent with the protection 
of investors and the public interest, the proposed rule change has 
become effective pursuant to Section 19(b)(3)(A) of the Act and Rule 
19b-4(f)(6)(iii) thereunder.\17\
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    \15\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \16\ 17 CFR 240.19b-4(f)(6).
    \17\ 15 U.S.C. 78s(b)(3)(A)(iii). Rule 19b-4(f)(6)(iii) requires 
a self-regulatory organization to give the Commission written notice 
of its intent to file the proposed rule change at least five 
business days prior to the date of filing of the proposed rule 
change, or such shorter time as designated by the Commission. The 
Commission notes that the Exchange satisfied this requirement.
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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) \18\ of the Act to determine whether the proposed 
rule change should be approved or disapproved.
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    \18\ 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

     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-2020-41 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-2020-41. 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-2020-41 and should be submitted 
on or before June 22, 2020.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\19\
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    \19\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-11652 Filed 5-29-20; 8:45 am]
 BILLING CODE 8011-01-P