[Federal Register Volume 86, Number 3 (Wednesday, January 6, 2021)]
[Notices]
[Pages 641-644]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-29222]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-90833; File No. SR-NYSEAMER-2020-87]


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

December 30, 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 December 29, 2020, NYSE American LLC (``NYSE

[[Page 642]]

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'') to extend the waiver of certain Floor-based 
fixed fees. The Exchange proposes to implement the fee change effective 
January 1, 2021. 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.

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 
the waiver of certain Floor-based fixed fees for market participants 
that have been unable to resume their Floor operations to a certain 
capacity level, as discussed below. The Exchange proposes to implement 
the fee change effective January 1, 2021.
    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 
waived certain Floor-based fixed fees for April, May and June 2020.\4\ 
Although the Trading Floor partially reopened on May 26, 2020 and 
Floor-based open outcry activity is supported, certain participants 
have been unable to resume pre-Floor closure levels of operations. As a 
result, the Exchange extended the fee waiver through December 2020, but 
only for Floor Broker firms that were unable to operate at more than 
50% of their March 2020 on-Floor staffing levels and for Market Maker 
firms that have vacant or ``unmanned'' Podia for the entire month due 
to COVID-19 related considerations (the ``Qualifying Firms'').\5\ 
Because the Trading Floor will continue to operate with reduced 
capacity, the Exchange proposes to extend the fee waiver for Qualifying 
Firms through the earlier of the first full month of a full reopening 
of the Trading Floor facilities to Floor personnel or March 2021.\6\
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    \4\ 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); 88840 (May 8, 2020), 85 FR 28992 (May 14, 
2020) (SR-NYSEAMER-2020-37) (extending April 2020 fee changes 
through May 2020); and 89049 (June 11, 2020), 85 FR 36649 (June 17, 
2020) (SR-NYSEAMER-2020-44) (extending April and May fee changes 
through June 2020). See also Fee Schedule, Section III. Monthly 
Trading Permit, Rights, Floor Access and Premium Product Fees, and 
IV. Monthly Floor Communication, Connectivity, Equipment and Booth 
or Podia Fees.
    \5\ See Securities Exchange Act Release Nos. 89241 (July 7, 
2020), 85 FR 42034 (July 13, 2020) (SR-NYSEAMER-2020-47); 89482 
(August 5, 2020), 85 FR 48577 (August 11, 2020) (SR-NYSEAMER-2020-
55); 89692 (August 27, 2020), 85 FR 54611 (September 2, 2020) (SR-
NYSEAMER-2020-65); 90185 (October 14, 2020), 85 FR 66675 (October 
20, 2020) (SR-NYSEAMER-2020-75). See also Fee Schedule, Section 
III., Monthly Trading Permit, Rights, Floor Access and Premium 
Product Fees, and IV. Monthly Floor Communication, Connectivity, 
Equipment and Booth or Podia Fees.
    \6\ See proposed Fee Schedule, Section III., 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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    Specifically, as with the prior fee waivers, the proposed fee 
waiver covers the following fixed fees for Qualifying Firms, 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.\7\
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    \7\ See id.
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    The proposed fee change is designed to reduce monthly costs for all 
Qualifying Firms whose operations continue to be disrupted even though 
the Trading Floor has partially reopened. In reducing this monthly 
financial burden, the proposed change would allow Qualifying Firms that 
had Floor operations in March 2020 to reallocate funds to assist with 
the cost of shifting and maintaining their prior fully-staffed on-Floor 
operations to off-Floor and recoup losses as a result of the partial 
reopening. The Exchange believes that all Qualifying Firms would 
benefit from this proposed fee change.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Act,\8\ in general, and furthers the 
objectives of Sections 6(b)(4) and (5) of the Act,\9\ 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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    \8\ 15 U.S.C. 78f(b).
    \9\ 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.'' \10\
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    \10\ 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.\11\ Therefore, currently no exchange possesses significant 
pricing power in the execution of multiply-listed equity & ETF options 
order flow. More specifically, in November 2020, the Exchange had less 
than 10% market share of executed volume of multiply-listed equity and 
ETF options trades.\12\
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    \11\ 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.
    \12\ Based on OCC data, see id., the Exchange's market share in 
equity-based options increased slightly from 8.06% for the month of 
November 2019 to 9.09% for the month of November 2020.

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[[Page 643]]

    This proposed fee change is reasonable, equitable, and not unfairly 
discriminatory because it would reduce monthly costs for all Qualifying 
Firms whose operations have been disrupted despite the fact that the 
Trading Floor has partially reopened because of the social distancing 
requirements and/or other health concerns related to resuming operation 
on the Floor. In reducing this monthly financial burden, the proposed 
change would allow Qualifying Firms that had Floor operations in March 
2020 to reallocate funds to assist with the cost of shifting and 
maintaining their prior fully-staffed on-Floor operations to off-Floor 
and recoup losses as a result of the partial reopening of the Floor. 
The Exchange believes that all Qualifying Firms would benefit from this 
proposed fee change.
    The Exchange believes the proposed rule change is an equitable 
allocation of its fees and credits as it merely continues the previous 
fee waiver for Qualifying Firms, which affects fees charged only to 
Floor participants and does not apply to participants that conduct 
business off-Floor. The Exchange believes it is an equitable allocation 
of fees and credits to extend the fee waiver for Qualifying Firms 
because such firms have either no more than half of their Floor staff 
(as measured by either the March 2020 or Exchange-approved) levels or 
have vacant podia--and this reduction in staffing levels on the Floor 
impacts the speed, volume and efficiency with which these firms can 
operate, which is to their financial detriment.
    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.
    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 Qualifying Firms, 
thereby promoting market depth, price discovery and transparency and 
would enhance 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.'' \13\
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    \13\ See Reg NMS Adopting Release, supra note 10, at 37499.
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    Intramarket Competition. The proposed change, which continues the 
fee waiver for all Qualifying Firms, is designed to reduce monthly 
costs for those Floor participants whose operations continue to be 
impacted, even though the Trading Floor has partially reopened. In 
reducing this monthly financial burden, the proposed change would allow 
Qualifying Firms that had Floor operations in March 2020 to reallocate 
funds to assist with the cost of shifting and maintaining their 
previously on-Floor operations to off-Floor. The Exchange believes that 
the proposed waiver of fees for Qualifying Firms would not impose a 
disparate burden on competition among market participants on the 
Exchange because off-Floor market participants are not subject to these 
Floor-based fixed fees. In addition, Floor-based firms that are not 
subject to the extent of staffing shortfalls as are Qualifying Firms, 
i.e., such firms have more than 50% of their March 2020--or Exchange-
approved--staffing levels on the Floor and/or have no vacant Podia 
during the month, do not face the same operational disruption and 
potential financial impact during the partial reopening of the Floor.
    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 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.\14\ Therefore, currently 
no exchange possesses significant pricing power in the execution of 
multiply-listed equity & ETF options order flow. More specifically, in 
November 2020, the Exchange had less than 10% market share of executed 
volume of multiply-listed equity and ETF options trades.\15\
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    \14\ See supra note 11.
    \15\ Based on OCC data, supra note 12, the Exchange's market 
share in equity-based options was 8.06% for the month of November 
2019 and 9.09% for the month of November 2020.
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    The Exchange believes that the proposed rule change reflects this 
competitive environment because it waives fees for Qualifying Firms and 
is designed to reduce monthly costs for Floor participants whose 
operations continue to be disrupted even though the Trading Floor has 
partially reopened. 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 prior fully-
staffed on-Floor operations to off-Floor.

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) \16\ of the Act and subparagraph (f)(2) of Rule 
19b-4 \17\ thereunder, because it establishes a due, fee, or other 
charge imposed by the Exchange.
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    \16\ 15 U.S.C. 78s(b)(3)(A).
    \17\ 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) \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-

[[Page 644]]

NYSEAMER-2020-87 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-2020-87. 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-2020-87 and should be submitted 
on or before January 27, 2021.
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    \19\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\19\
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-29222 Filed 1-5-21; 8:45 am]
BILLING CODE 8011-01-P