[Federal Register Volume 87, Number 152 (Tuesday, August 9, 2022)]
[Notices]
[Pages 48523-48527]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-17009]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-95412; File No. SR-NYSEARCA-2022-47]


Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To Modify the NYSE 
Arca Options Fee Schedule

August 3, 2022.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby given 
that, on August 1, 2022, NYSE Arca, Inc. (``NYSE Arca'' or the 
``Exchange'') filed with the Securities and Exchange Commission (the 
``Commission'') the proposed rule change as described in Items I, II, 
and III below, which Items have been prepared by the self-regulatory 
organization. The Commission is publishing this notice to solicit 
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to modify the NYSE Arca Options Fee Schedule 
(``Fee

[[Page 48524]]

Schedule'') to waive fees for manual executions by Professional 
Customers. The Exchange proposes to implement the fee change effective 
August 1, 2022. 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 filing is to modify the Fee Schedule to provide 
for the waiver of fees for manually executed Professional Customer 
orders (``Professional Customer Manual Fees''). Specifically, the 
Exchange proposes to waive Professional Customer Manual Fees for the 
period of August 1, 2022 through December 31, 2022.
    The Exchange also proposes to add clarifying language to the Fee 
Schedule's description of the Floor Broker Fixed Cost Prepayment 
Incentive Program (the ``FB Prepay Program''), to provide that manually 
executed Professional Customer orders will continue to be included in 
the calculation of ``billable volume'' for purposes of the FB Prepay 
Program while Professional Customer Manual Fees are waived.
    The Exchange proposes to implement the rule change on August 1, 
2022.
Background
    In connection with the Exchange's migration to the new Pillar 
trading platform (the ``Pillar Migration''), the Exchange has 
introduced a new Electronic Order Capture System (``EOC'') device for 
order systemization and execution reporting for manual orders on the 
Trading Floor. The Exchange believes the improved workflow offered by 
the EOC device will enhance Floor Brokers' processing of manual orders, 
especially those submitted by Professional Customers, and allow Floor 
Brokers to provide improved service to Professional Customers. To 
attract more manually executed Professional Customer orders with 
enhanced order handling by Floor Brokers via the EOC device, the 
Exchange proposes to waive Professional Customer Manual Fees for the 
balance of the year (i.e., until December 31, 2022).
    The Exchange believes the proposed waiver would encourage 
additional Professional Customer volume executed by Floor Brokers on 
the Exchange, with the enhanced workflow offered by the EOC device as 
market participants continue to adapt to trading post-Pillar Migration, 
and that all market participants stand to benefit from such increase, 
which would promote market depth, facilitate tighter spreads and 
enhance price discovery, and may lead to a corresponding increase in 
order flow from other market participants as well.
    The Exchange believes that the proposed change relating to the FB 
Prepay Program would obviate any confusion about the impact of the 
proposed waiver of Professional Customer Manual Fees on participating 
Floor Brokers' ability to qualify for incentives offered through the FB 
Prepay Program. The Exchange believes that the proposed change would 
make clear that volume from manually executed Professional Customer 
orders would continue to count towards billable volume relevant to the 
FB Prepay Program when Professional Customer Manual Fees are waived.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Act,\4\ in general, and furthers the 
objectives of Sections 6(b)(4) and (5) of the Act,\5\ 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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    \4\ 15 U.S.C. 78f(b).
    \5\ 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 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.'' \6\
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    \6\ 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.\7\ Therefore, currently no exchange possesses significant 
pricing power in the execution of multiply-listed equity & ETF options 
order flow. More specifically, in June 2022, the Exchange had less than 
13% market share of executed volume of multiply-listed equity & ETF 
options trades.\8\
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    \7\ 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/Market-Data-Reports/Volume-and-Open-Interest/Monthly-Weekly-Volume-Statistics.
    \8\ Based on a compilation of OCC data for monthly volume of 
equity-based options and monthly volume of equity-based ETF options, 
see id., the Exchange's market share in equity-based options 
increased from 9.07% for the month of June 2021 to 12.23% for the 
month of June 2022.
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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 can have a direct effect on the ability of 
an exchange to compete for order flow.
    The Exchange believes that the proposed waiver of Professional 
Customer Manual Fees is reasonable because it is designed to incent 
Professional Customers to submit orders to Floor Brokers and increase 
familiarity with the improved workflow offered via the new EOC device 
on the Pillar platform, thereby encouraging increased manually executed 
Professional Customer orders on the Exchange. The Exchange notes that 
all market participants stand to benefit from any increase in 
Professional Customer volume executed by Floor Brokers, which promotes 
market depth, facilitates tighter spreads and enhances

[[Page 48525]]

price discovery, and may lead to a corresponding increase in order flow 
from other market participants.
    To the extent the proposed waiver attracts greater volume and 
liquidity, the Exchange believes the proposed change would 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 increase the depth of its 
market and improve its market share relative to its competitors. The 
proposed rule change is designed to incent Professional Customers to 
direct liquidity to the Exchange, thereby promoting market depth, price 
discovery and improvement and enhancing order execution opportunities 
for market participants.
    The Exchange believes the proposed change relating to the FB Prepay 
Program is reasonable because it would provide clarity in the Fee 
Schedule relating to volume that is counted towards the billable volume 
relevant to the FB Prepay Program when Professional Customer Manual 
Fees are waived, as proposed.
The Proposed Rule Change Is an Equitable Allocation of Credits and Fees
    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 Professional Customers can 
opt to submit orders for trading electronically or for manual execution 
on the Trading Floor. The proposed waiver of Professional Customer 
Manual Fees is intended to encourage Professional Customers to submit 
orders to be manually executed by Floor Brokers and, in addition, in 
connection with the Pillar Migration, the Exchange believes that the 
improved order handling that Floor Brokers can provide through the use 
of the EOC device will demonstrate to Professional Customers the value 
of submitting orders for manual execution on the Trading Floor.
    The proposed waiver is also designed to incent Professional 
Customers to direct orders to the Exchange as a primary execution 
venue. To the extent that the proposed change attracts more manual 
Professional Customer volume to the Exchange, this increased 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 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.
    With respect to the proposed change relating to the FB Prepay 
Program, the Exchange believes that the proposed clarification would 
support an equitable allocation of fees and credits because it would 
make clear that volume from Professional Customer manual executions 
would still count towards a Floor Broker's qualification for the 
incentives offered through the FB Prepay Program when Professional 
Customer Manual Fees are waived, as proposed, thereby promoting the 
continued equitable allocation of fees and credits set forth in the Fee 
Schedule.
The Proposed Rule Change Is Not Unfairly Discriminatory
    The Exchange believes that the proposed waiver is not unfairly 
discriminatory because the waiver would apply to manually executed 
Professional Customer orders on an equal and non-discriminatory basis. 
The proposed waiver is not unfairly discriminatory to other market 
participants because Professional Customers are an important source of 
order flow to the Exchange for execution via open outcry, which 
promotes price discovery, and the Exchange thus believes that it is 
appropriate to incentivize manually executed Professional Customer 
orders and encourage Professional Customers to experience the improved 
order handling offered via the new EOC device in connection with the 
Pillar Migration.
    The proposed change is also designed to encourage Professional 
Customers to utilize the Exchange as a primary trading venue (if they 
have not done so previously) and to increase manually executed 
Professional Customer orders sent to the Exchange. To the extent that 
the proposed change attracts more order flow to the Exchange (and, in 
particular, to the Floor), 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 resulting increased volume 
and liquidity would 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, to protect investors and the public interest.
    The Exchange also believes that the proposed change to clarify that 
volume from manually executed Professional Customer orders would 
continue to count towards billable volume for purposes of the FB Prepay 
Program is not unfairly discriminatory. The proposed change, which 
specifies that such volume will continue to be accounted for in 
determining participating Floor Brokers' eligibility for incentives 
available pursuant to the FB Prepay Program, would instead permit the 
program to continue to be administered in a non-discriminatory manner.
    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 change would encourage the submission of additional 
liquidity to a public exchange, 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 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.'' \9\
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    \9\ See Reg NMS Adopting Release, supra note 6, at 37499.
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    Intramarket Competition. The proposed waiver is designed to attract 
additional manually executed Professional Customer orders to the 
Exchange (and, in particular, to the Floor, with the enhanced workflow 
offered by the EOC tool introduced in the Pillar Migration), which may 
increase the volume of contracts traded on the Exchange. To the extent 
that the proposed change imposes an additional competitive burden on 
other market participants, the Exchange believes that any such burden 
would be appropriate because, to the extent the proposed change 
encourages Professional

[[Page 48526]]

Customers to submit additional orders to the Exchange to be executed 
via open outcry, such increase in manually executed Professional 
Customer orders would benefit all market participants by promoting 
opportunities for price discovery.
    To the extent that this purpose is achieved, all of the Exchange's 
market participants should benefit from the improved market liquidity. 
Enhanced market quality and increased transaction volume that results 
from the anticipated increase in order flow directed to the Exchange 
will benefit all market participants and improve competition on the 
Exchange.
    The Exchange does not believe that the proposed change relating to 
the FB Prepay Program would impact intramarket competition, as it 
merely clarifies that the proposed waiver of Professional Customer 
Manual Fees would not affect the current operation of the FB Prepay 
Program.
    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.\10\ Therefore, 
no exchange currently possesses significant pricing power in the 
execution of multiply-listed equity & ETF options order flow. More 
specifically, in June 2022, the Exchange had less than 13% market share 
of executed volume of multiply-listed equity & ETF options trades.\11\
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    \10\ See supra note 8.
    \11\ Based on a compilation of OCC data for monthly volume of 
equity-based options and monthly volume of equity-based ETF options, 
supra note 7, the Exchange's market share in equity-based options 
increased from 9.07% for the month of June 2021 to 12.23% for the 
month of June 2022.
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    The Exchange believes that the proposed change reflects this 
competitive environment because the proposed waiver of Professional 
Customer Manual Fees is intended to encourage Professional Customers to 
direct manual orders to the Exchange and experience the benefits of the 
enhanced technology provided by the Pillar Migration, which in turn 
would provide liquidity and attract order flow to the Exchange. To the 
extent that this purpose is achieved, all the Exchange's market 
participants should benefit from the improved market quality and 
increased trading opportunities.
    The Exchange notes that it operates in a highly competitive market 
in which market participants can readily favor competing venues. In 
such an environment, the Exchange must continually review, and consider 
adjusting, its fees and credits to remain competitive with other 
exchanges. For the reasons described above, the Exchange believes that 
the proposed rule change reflects this competitive environment. The 
Exchange also believes that the proposed change could promote 
competition between the Exchange and other execution venues, by 
encouraging additional orders to be sent to the Exchange for execution, 
including to the Floor in particular, and encouraging the use of 
technology introduced in connection with the Pillar Migration.
    The Exchange does not believe that the proposed change relating to 
the FB Prepay Program would have any effect on intermarket competition, 
as it merely clarifies that the proposed waiver of Professional 
Customer Manual Fees would not impact the current operation of the FB 
Prepay Program.

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) \12\ of the Act and subparagraph (f)(2) of Rule 
19b-4 \13\ thereunder, because it establishes a due, fee, or other 
charge imposed by the Exchange.
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    \12\ 15 U.S.C. 78s(b)(3)(A).
    \13\ 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) \14\ of the Act to determine whether the proposed 
rule change should be approved or disapproved.
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    \14\ 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-NYSEARCA-2022-47 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NYSEARCA-2022-47. This 
file number should be included on the subject line if email is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's internet website (http://www.sec.gov/rules/sro.shtml). 
Copies of the submission, all subsequent amendments, all written 
statements with respect to the proposed rule change that are filed with 
the Commission, and all written communications relating to the proposed 
rule change between the Commission and any person, other than those 
that may be withheld from the public in accordance with the provisions 
of 5 U.S.C. 552, will be available for website viewing and printing in 
the Commission's Public Reference Room, 100 F Street NE, Washington, DC 
20549 on official business days between the hours of 10:00 a.m. and 
3:00 p.m. Copies of the filing also will be available for inspection 
and copying at the principal office of the Exchange. All comments 
received will be posted without change. Persons submitting comments are 
cautioned that we do not redact or edit personal identifying 
information from comment submissions. You should submit only 
information that you wish to make available publicly. All submissions 
should refer to File Number SR-NYSEARCA-2022-47, and should be 
submitted on or before August 30, 2022.


[[Page 48527]]


    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\15\
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    \15\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Deputy Secretary.
[FR Doc. 2022-17009 Filed 8-8-22; 8:45 am]
BILLING CODE 8011-01-P