[Federal Register Volume 88, Number 188 (Friday, September 29, 2023)]
[Notices]
[Pages 67414-67418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-21339]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-98495; File No. SR-NYSENAT-2023-20]


Self-Regulatory Organizations; NYSE National, Inc.; Notice of 
Filing of Proposed Change To Amend the NYSE National Schedule of Fees 
and Rebates

September 25, 2023.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given 
that, on September 12, 2023, NYSE National, Inc. (``NYSE National'' or 
the ``Exchange'') filed with the Securities and Exchange Commission 
(``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\ 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 the NYSE National Schedule of Fees 
and Rebates (``Fee Schedule'') to reflect fees and credits relating to 
the NYSE National Retail Liquidity Program. 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,

[[Page 67415]]

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 Exchange proposes to amend the Fee Schedule to reflect fees and 
credits relating to the newly implemented NYSE National Retail 
Liquidity Program (the ``RLP'' or ``Program'').\3\ The Exchange 
proposes to implement the fee change effective September 12, 2023.\4\
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    \3\ See Securities Exchange Act Release No. 98169 (August 18, 
2023), 88 FR 57508 (August 23, 2023) (SR-NYSENAT-2023-17) (Notice of 
Filing and Immediate Effectiveness of Proposed Rule Change to Amend 
Rule 7.44).
    \4\ The Exchange previously filed to amend the Fee Schedule on 
August 28, 2023 (SR-NYSENAT-2023-19) and withdrew such filing on 
September 12, 2023.
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Background
    The Exchange operates in a highly competitive market. The 
Securities and Exchange Commission (``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.'' \5\
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    \5\ See Securities Exchange Act Release No. 51808 (June 9, 
2005), 70 FR 37496, 37499 (June 29, 2005) (File No. S7-10-04) (Final 
Rule) (``Regulation NMS'').
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    While Regulation NMS has enhanced competition, it has also fostered 
a ``fragmented'' market structure where trading in a single stock can 
occur across multiple trading centers. When multiple trading centers 
compete for order flow in the same stock, the Commission has recognized 
that ``such competition can lead to the fragmentation of order flow in 
that stock.'' \6\ Indeed, equity trading is currently dispersed across 
16 exchanges,\7\ numerous alternative trading systems,\8\ and broker-
dealer internalizers and wholesalers, all competing for order flow. 
Based on publicly available information, no single exchange currently 
has more than 18% market share.\9\ Therefore, no exchange possesses 
significant pricing power in the execution of equity order flow. More 
specifically, the Exchange's share of executed volume of equity trades 
in Tapes A, B and C securities combined is less than 1%.\10\
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    \6\ See Securities Exchange Act Release No. 61358, 75 FR 3594, 
3597 (January 21, 2010) (File No. S7-02-10) (Concept Release on 
Equity Market Structure).
    \7\ See Cboe U.S Equities Market Volume Summary, available at 
https://markets.cboe.com/us/equities/market_share. See generally 
https://www.sec.gov/fast-answers/divisionsmarketregmrexchangesshtml.html.
    \8\ See FINRA ATS Transparency Data, available at https://otctransparency.finra.org/otctransparency/AtsIssueData. A list of 
alternative trading systems registered with the Commission is 
available at https://www.sec.gov/foia/docs/atslist.htm.
    \9\ See Cboe Global Markets U.S. Equities Market Volume Summary, 
available at http://markets.cboe.com/us/equities/market_share/.
    \10\ See id.
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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 
move order flow, or discontinue or reduce use of certain categories of 
products. While it is not possible to know a firm's reason for shifting 
order flow, the Exchange believes that one such reason is because of 
fee changes at any of the registered exchanges or non-exchange venues 
to which a firm routes order flow. Accordingly, competitive forces 
constrain exchange transaction fees, and market participants can 
readily trade on competing venues if they deem pricing levels at those 
other venues to be more favorable.
    The Exchange utilizes a ``taker-maker'' or inverted fee model to 
attract orders that provide liquidity at the most competitive prices. 
Under the taker-maker model, offering rebates for taking (or removing) 
liquidity increases the likelihood that market participants will send 
orders to the Exchange to trade with liquidity providers' orders. This 
increased taker order flow provides an incentive for market 
participants to send orders that provide liquidity. The Exchange 
generally charges fees for order flow that provides liquidity. These 
fees are reasonable due to the additional marketable interest (in part 
attracted by the Exchange's rebate to remove liquidity) with which 
those order flow providers can trade.
Proposed Rule Change
    The Commission recently noticed for immediate effectiveness the 
Exchange's proposed rule change to introduce the RLP.\11\ The purpose 
of the program is to attract retail order flow to the Exchange and 
allow such order flow to receive potential price improvement at the 
midpoint or better. The RLP allows ETP Holders to provide potential 
price improvement to retail investor orders in the form of a non-
displayed order that is priced at the less aggressive of the midpoint 
of the PBBO or its limit price, called a Retail Price Improvement Order 
(``RPI Order'').\12\ When there is an RPI Order in a particular 
security that is eligible to trade at the midpoint of the PBBO, the 
Exchange disseminates an indicator, known as the Retail Liquidity 
Identifier, that such interest exists.\13\ Retail Member Organizations 
(``RMOs'') would be able to submit a Retail Order to the Exchange, 
which interacts, to the extent possible, with available contra-side RPI 
Orders and may interact with other liquidity on the Exchange, depending 
on the Retail Order's instructions.\14\ The segmentation in the Program 
would allow retail order flow to receive potential price improvement as 
a result of that order flow being deemed more desirable by liquidity 
providers.
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    \11\ See note 4, supra. See also Rule 7.44.
    \12\ See Rule 7.44(a)(3).
    \13\ See Rule 7.44(e).
    \14\ See Rules 7.44(a)(1) (defining RMO), 7.44(a)(2) (defining 
Retail Order), and 7.44(f) (describing the operation and designation 
of Retail Orders).
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    In connection with the implementation of the RLP,\15\ the Exchange 
proposes to amend the Fee Schedule to provide for fees and credits for 
orders executed in the Program. The Exchange proposes to modify the Fee 
Schedule to add new Section D.3., ``Fees and credits applicable to 
executions in the Retail Liquidity Program,'' and proposes that Section 
D.3. would provide for the following fees and credits:
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    \15\ See https://www.nyse.com/trader-update/history#110000643248.
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     For RPI Orders that execute against a Retail Order 
submitted by an RMO: no fee or credit will apply.
     For other (non-RPI Order) liquidity that executes against 
a Retail Order submitted by an RMO: the existing Tiered or Basic Rates 
set forth in the Fee Schedule, based on a firm's qualifying levels, 
will apply.
     For a Retail Order submitted by an RMO that executes 
against an RPI Order or against other non-RPI Order interest that is 
priced better than the PBBO (``price-improving interest''): a ($0.0003) 
credit will apply.
     For a Type 2 Retail Order submitted by an RMO that 
executes against non-price-improving interest: the existing Tiered or 
Basic Rates set forth in the Fee Schedule, based on a firm's qualifying 
levels, will apply.
    The Program is intended to attract retail order flow to the 
Exchange, including by facilitating opportunities for such order flow 
to receive potential price improvement at the midpoint or better, and 
to promote competition for retail order flow among execution venues 
(including those that also offer

[[Page 67416]]

retail price improvement programs), which would benefit retail 
investors by creating additional price improvement opportunities for 
marketable retail order flow on a public exchange. ETP Holders are not 
required to submit Retail Orders or RPI Orders, and all ETP Holders 
that participate in the Program would be subject to the same fees and 
credits, as outlined above. The Exchange believes that the proposed 
credits offered to Retail Orders that execute against RPI Orders or 
other price-improving interest would encourage ETP Holders to direct 
retail order flow to the Exchange, and that the amounts of those 
credits are reasonable and consistent with the range of credits 
currently offered to non-Retail Orders that remove liquidity on the 
Exchange.\16\ The Exchange notes that this proposed credit for Retail 
Orders is also comparable to the credit previously offered by the 
Exchange's affiliate, NYSE Arca, Inc. (``NYSE Arca''), for orders in 
its now-discontinued Retail Liquidity Program.\17\ The Exchange also 
believes that its proposal to not apply any fee or credit to RPI Orders 
that execute against Retail Orders could encourage ETP Holders to 
submit RPI Orders for execution against Retail Orders, thereby 
promoting additional trading opportunities for retail order flow on the 
Exchange. The Exchange notes that not applying any fee or credit to RPI 
Orders is also consistent with pricing in the Retail Liquidity Program 
offered by its affiliate, New York Stock Exchange LLC (``NYSE'').\18\ 
Finally, the Exchange believes that applying existing Tiered or Basic 
Rates, based on a firm's qualifying levels, to non-RPI Order interest 
that executes against a Retail Order and to Type 2 Retail Orders \19\ 
that execute against non-price-improving interest is reasonable, as 
those ETP Holders would continue to receive the rates for which they 
qualify under the current Fee Schedule. The Exchange notes that 
applying Tiered or Basic rates to non-RPI Order interest that executes 
against a Retail Order is consistent with pricing previously associated 
with the NYSE Arca Retail Liquidity Program.\20\ With respect to Type 2 
Retail Orders, because a remainder quantity of the order may execute 
against non-price-improving interest on the Exchange Book outside of 
the Program, the Exchange believes it is reasonable to apply Tiered or 
Basic rates to such portion of the Retail Order, consistent with the 
pricing currently offered to other removing orders that do not receive 
price improvement. The Exchange notes that this treatment of Type 2 
Retail Orders is also consistent with the fee structure that was in 
place for the NYSE Arca Retail Liquidity Program, which offered an 
identical Type 2 Retail Order.\21\
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    \16\ See NYSE National Fee Schedule, Section D.2. (Rates for 
Removing Liquidity (Per Share)).
    \17\ See Securities Exchange Act Release No. 98347 (September 
11, 2023) (SR-NYSEARCA-2023-59) (describing fee structure for former 
NYSE Arca Retail Liquidity Program, in which NYSE Arca--as a maker-
taker market--conversely offered a $0.0003 credit to RPI Order 
executions against Retail Orders).
    \18\ See NYSE Price List, Fees and Credits Applicable to 
Executions in the Retail Liquidity Program (no charge for a Retail 
Order submitted by a Retail Member Organization that executes 
against an RPI or MPL Order).
    \19\ A Type 2 Retail Order trades first with available RPI 
Orders and all other orders with a working price below (above) the 
PBO (PBB) on the Exchange Book. Any remaining quantity of a Type 2 
Retail Order may then trade with orders on the Exchange Book at 
prices equal to or above (below) the PBO (PBB). Type 2 Retail Orders 
differ from Type 1 Retail Orders (which trade only with available 
RPI Orders and all other orders with a working price below (above) 
or equal to the midpoint of the PBBO on the Exchange Book) because 
they would be able to trade first with all contra-side orders inside 
the PBBO and then would have the opportunity to trade as a Limit IOC 
Order, as such order is defined in Rule 7.31. See Rules 7.44(f)(1) 
(defining Type 1 Retail Order) and 7.44(f)(2) (defining Type 2 
Retail Order). Thus, a Type 2 Retail Order may be subject to two 
different rates, as proposed. If, for example, 100 shares of a Type 
2 Retail Order for 200 shares executes against an RPI Order, a 
($0.0003) credit would apply to that portion of the order; if the 
remaining 100 shares of the Type Retail Order then executes against 
non-price-improving interest on the Exchange Book, that portion of 
the order would receive the Tiered or Basic rates for which the 
entering firm qualifies.
    \20\ See note 18, supra (describing fee structure for NYSE Arca 
Retail Liquidity Program, in which non-displayed liquidity and 
displayable odd lot interest priced better than the PBBO (i.e., non-
RPI Order interest) that executes against a Retail Order would 
receive Tiered or Basic Rates based on the firm's qualification for 
such levels).
    \21\ See id. (``An RMO Retail Order that executes outside of the 
Retail Liquidity Program . . . receives pricing applicable to Tiered 
or Standard Rates in the Fee Schedule.'')
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Act,\22\ in general, and furthers the 
objectives of Sections 6(b)(4) and (5) of the Act,\23\ 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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    \22\ 15 U.S.C. 78f(b).
    \23\ 15 U.S.C. 78f(b)(4) and (5).
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    As discussed above, the Exchange operates in a highly fragmented 
and competitive market. The Commission has repeatedly expressed its 
preference for competition over regulatory intervention in determining 
prices, products, and services in the securities markets. Specifically, 
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.'' \24\
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    \24\ See note 6, supra.
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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, changes to exchange 
transaction fees can have a direct effect on the ability of an exchange 
to compete for order flow.
    In particular, the Exchange believes the proposed rule change is a 
reasonable means to encourage ETP Holders to participate in the RLP. 
The Program is offered by the Exchange on a voluntary basis; no rule or 
regulation requires that the Exchange offer it, and nor does any rule 
or regulation require market participants to participate in it. 
Instead, the Program is intended to encourage opportunities for retail 
order flow to receive price improvement at the midpoint or better, 
including by offering credits to Retail Orders submitted by RMOs for 
execution in the Program (and consistent with the Exchange's taker-
maker model, in which offering rebates for taking (or removing) 
liquidity increases the likelihood that market participants will direct 
order flow to the Exchange). The Exchange further believes that its 
proposal to apply Tiered or Basic rates to the portion of Type 2 Retail 
Orders that execute against non-price-improving interest is reasonable, 
as it would apply standard pricing to the portion of the order that 
executes outside of the Retail Liquidity Program (and is consistent 
with the Exchange's current pricing for liquidity removing orders that 
do not receive price improvement). The Exchange also believes the 
amounts of the credits offered are reasonable and consistent with the 
Exchange's existing fee structure, and are in line with credits 
currently offered by the Exchange to other non-retail liquidity 
removing orders.\25\ The Exchange also believes that the proposed fees 
and credits that would apply to RPI Orders and other (non-RPI Order) 
price-improving interest that executes against Retail Orders are 
reasonable and designed to encourage ETP Holders to direct orders

[[Page 67417]]

to the Exchange to interact with retail order flow. Finally, as noted 
above, the Exchange's proposed fees and credits are consistent with the 
fee structures associated with the Retail Liquidity Programs currently 
or previously offered by its affiliated exchanges.\26\
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    \25\ See note 17, supra.
    \26\ See also notes 18, 19, 21 & 22, supra.
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    The Exchange believes its proposal equitably allocates its fees 
among its market participants. The Exchange believes that the proposal 
represents an equitable allocation of fees because it would apply 
uniformly to all ETP Holders, in that all ETP Holders that participate 
in the RLP would be subject to the same fees and credits. While the 
Exchange has no way of knowing whether this proposed rule change would 
encourage ETP Holders to participate in the Program, the Exchange 
believes that the fees and credits associated with the Program are 
designed to incentivize ETP Holders to direct both Retail Orders and 
RPI Orders to the Program by offering credits to Retail Orders that 
execute against RPI Orders or other price-improving interest, applying 
the Tiered or Basic Rates for which an ETP Holder qualifies to non-RPI 
Order executions against Retail Orders and Type 2 Retail Order 
executions against non-price-improving interest, and not applying any 
fee or credit to RPI Orders that execute against Retail Orders. The 
Exchange further notes that, as discussed above, the proposed fee 
structure for the Program is consistent with the fees and credits 
associated with the Retail Liquidity Programs currently or previously 
offered by its affiliated exchanges.\27\
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    \27\ See also id.
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    The Exchange believes that the proposal is not unfairly 
discriminatory, as the proposed fees and credits would apply to all 
similarly situated ETP Holders. Moreover, this proposed rule change 
neither targets nor will it have a disparate impact on any particular 
category of market participant. Instead, the proposed changes are 
designed to encourage ETP Holders to participate in the Program, which 
could promote additional price improvements for retail order flow as 
well as competition between the Exchange and other execution venues. 
The Exchange believes that this proposal does not permit unfair 
discrimination because the changes described in this proposal would be 
applied to all ETP Holders that participate in the Program. 
Accordingly, no ETP Holder already operating on the Exchange would be 
disadvantaged by the proposed allocation of fees, and any ETP Holder's 
participation in the Program is voluntary. The Exchange further 
believes that the proposed rule change would not permit unfair 
discrimination among ETP Holders because the Program would be available 
to all ETP Holders on an equal basis. The Exchange believes that the 
fees and credits associated with the Program are designed to 
incentivize ETP Holders to participate in the Program by offering 
credits to Retail Orders that execute against RPI Orders or other 
price-improving interest and not applying any fee or credit to RPI 
Orders that execute against Retail Orders. The Exchange also believes 
it is not unfairly discriminatory to apply Tiered or Basic rates to 
non-RPI Order executions against Retail Orders and to the portion of 
Type 2 Retail Orders that execute against non-price-improving interest 
outside of the Program, as those ETP Holders would receive existing 
pricing for which they qualify. The Exchange also notes that the 
proposed fees and credits for the Program are, as discussed above, 
consistent with the fees and credits associated with the Retail 
Liquidity Programs currently or previously offered by the Exchange's 
affiliates.\28\
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    \28\ See also note 27, supra.
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    Finally, the submission of orders to the Exchange is optional for 
ETP Holders in that they could choose whether to submit orders to the 
Exchange and, if they do, the extent of its activity in this regard. 
The Exchange believes that it is subject to significant competitive 
forces, as described below in the Exchange's statement regarding the 
burden on competition.
    For the foregoing reasons, the Exchange believes that the proposal 
is consistent with the Act.

B. Self-Regulatory Organization's Statement on Burden on Competition

    In accordance with Section 6(b)(8) of the Act,\29\ the Exchange 
believes that the proposed rule change would not 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 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.'' \30\
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    \29\ 15 U.S.C. 78f(b)(8).
    \30\ See note 6, supra.
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    Intramarket Competition. The Exchange believes the proposed 
amendment to its Fee Schedule would not impose any burden on 
competition that is not necessary or appropriate in furtherance of the 
purposes of the Act. The Exchange believes the proposed rule change is 
a reasonable means to encourage ETP Holders to participate in the RLP. 
All ETP Holders that qualify as RMOs may send Retail Orders to the 
Exchange, and all ETP Holders may direct RPI Orders or other interest 
to the Exchange. The Program is offered by the Exchange on a voluntary 
basis, and no rule or regulation requires that the Exchange offer it. 
Likewise, ETP Holders have the choice whether or not to participate in 
the Program and those that choose not to participate will not be 
impacted by the proposed rule change. The Exchange also does not 
believe the proposed rule change would impact intramarket competition, 
as the proposed rule change would apply equally to all ETP Holders that 
choose to direct order flow to the Program, and therefore the proposed 
change would not impose a disparate burden on competition among market 
participants on the Exchange.
    Intermarket Competition. The Exchange operates in a highly 
competitive market in which market participants can readily choose to 
send their orders to other exchange and off-exchange venues if they 
deem fee levels at those other venues to be more favorable. As noted 
above, the Exchange's market share of intraday trading is currently 
less than 1%. In such an environment, the Exchange must continually 
adjust its fees and rebates to remain competitive with other exchanges 
and with off-exchange venues. Because competitors are free to modify 
their own fees and credits in response, and because market participants 
may readily adjust their order routing practices, the Exchange does not 
believe its proposed fee change can impose any burden on intermarket 
competition. In addition, as noted above, the Exchange believes that 
the Program could promote competition between the Exchange and other 
execution venues.

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 has become effective upon filing pursuant 
to Section 19(b)(3)(A) \31\ of the Act and paragraph

[[Page 67418]]

(f) thereunder. At any time within 60 days of the filing of the 
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.
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    \31\ 15 U.S.C. 78s(b)(3)(A).
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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 (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
file number SR-NYSENAT-2023-20 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-NYSENAT-2023-20. 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 (https://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 
a.m. and 3 p.m. Copies of the filing also will be available for 
inspection and copying at the principal office of the Exchange. Do not 
include personal identifiable information in submissions; you should 
submit only information that you wish to make available publicly. We 
may redact in part or withhold entirely from publication submitted 
material that is obscene or subject to copyright protection. All 
submissions should refer to file number SR-NYSENAT-2023-20 and should 
be submitted on or before October 20, 2023.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\32\
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    \32\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-21339 Filed 9-28-23; 8:45 am]
BILLING CODE 8011-01-P