Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 7.19-E, 77907-77910 [2022-27500]
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Federal Register / Vol. 87, No. 243 / Tuesday, December 20, 2022 / Notices
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estimates that the annual hour burden of
the collection of information imposed
by rule 19b–1(e) would be
approximately five hours per fund, at a
cost of $6,599.50.6 Because the staff
estimates that, each year, one fund will
file an application pursuant to rule 19b–
1(e), the total burden for the information
collection is 5 hours at a cost of
$6,599.50.
Commission staff estimates that there
is no hour burden associated with
complying with the collection of
information component of rule 19b–1(c).
This estimate assumes that UITs using
rule 19b–1(c) do not have their own
employees or staff and that the
mechanics of the notice requirement
would be handled by a UIT sponsor or
trustee as an accommodation for the
UIT. As such, the costs related to this
aspect of the collection of information
are captured in the external cost
estimates below.
As noted above, Commission staff
understands that funds that file an
application under rule 19b–1(e)
generally use outside counsel to prepare
the application.7 The staff estimates
that, on average, outside counsel spends
10 hours preparing a rule 19b–1(e)
application, including eight hours by an
associate and two hours by a partner.
Outside counsel billing arrangements
and rates vary based on numerous
factors, but the staff has estimated the
average cost of outside counsel as $531
per hour, based on information received
from funds, intermediaries, and their
counsel. The staff therefore estimates
that the average cost of outside counsel
preparation of the rule 19b–1(e)
exemptive application is $5,310.8
Because the staff estimates that, each
year, one fund will file an application
pursuant to rule 19b–1(e), the total
annual cost burden imposed by the
exemptive application requirements of
rule 19b–1(e) is estimated to be $5,310.
The Commission staff estimates that
there are approximately 1,779 UITs that
may rely on rule 19b–1(c) to make
capital gains distributions.9 The staff
estimates that, on average, these UITs
inflation, the staff estimates that the current average
cost of board of director time is approximately
$4,770.
6 This estimate is based on the following
calculations: $1,785 (3.5 hours × $510 = $1,785)
plus $44.5 (0.5 hours × $89 = $44.5) plus $4,770
equals $6,599.50 (cost of one application).
7 This understanding is based on conversations
with representatives from the fund industry.
8 This estimate is based on the following
calculation: 10 hours multiplied by $531per hour
equals $5,310.
9 See 2022 Investment Company Fact Book,
Investment Company Institute, available at https://
www.icifactbook.org/pdf/2022_factbook.pdf
(totaling the number of taxable debt and tax-free
debt UITs presented in Table 14).
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rely on rule 19b–1(c) once a year to
make a capital gains distribution.10 In
most cases, the trustee of the UIT is
responsible for preparing and sending
the notices that must accompany a
capital gains distribution under rule
19b–1(c)(2). These notices require
limited preparation, the cost of which
accounts for only a small, indiscrete
portion of the comprehensive fee
charged by the trustee for its services to
the UIT. The staff believes that as a
matter of good business practice, and for
tax preparation reasons, UITs would
collect and distribute the capital gains
information required to be sent to
unitholders under rule 19b–1(c) even in
the absence of the rule. The staff
estimates that the cost of preparing and
distributing a notice for a capital gains
distribution under rule 19b–1(c)(2) is
approximately $50.11 Thus, the staff
estimates that the capital gains
distribution notice requirement imposes
an annual cost on UITs of
approximately $88,950.12 The staff
therefore estimates that the total cost
imposed by rule 19b–1 is $94,260.13
An agency may not conduct or
sponsor, and a person is not required to
respond to, a collection of information
unless it displays a currently valid
control number.
Written comments are invited on: (a)
whether the proposed collection of
information is necessary for the proper
performance of the functions of the
Commission, including whether the
information shall have practical utility;
(b) the accuracy of the Commission’s
estimate of the burden of the collection
of information; (c) ways to enhance the
quality, utility, and clarity of the
information collected; and (d) ways to
minimize the burden of the collection of
information on respondents, including
through the use of automated collection
techniques or other forms of information
10 The number of times UITs rely on the rule to
make capital gains distributions depends on a wide
range of factors and, thus, can vary greatly across
years and UITs. UITs may distribute capital gains
biannually, annually, quarterly, or at other
intervals. Additionally, a number of UITs are
organized as grantor trusts, and therefore do not
generally make capital gains distributions under
rule 19b–1(c), or may not rely on rule 19b–1(c) as
they do not meet the rule’s requirements.
11 Although the $50 estimate is consistent with
prior renewals it is possible that the actual costs
have decreased over time as a result of electronic
automation or other efficiencies. In an abundance
of a caution, and for purposes of this Paperwork
Reduction Act renewal, we are assuming on a
conservative basis that this cost has not changed.
12 This estimate is based on the following
calculation: 1,779 UITs multiplied by $50 equals
$88,950.
13 This estimate is based on the following
calculation: $88,950 (total cost associated with rule
19b–1(c)) + $5,310 (total cost associated with rule
19b–1(e)) = $94,260.
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77907
technology. Consideration will be given
to comments and suggestions submitted
by February 21, 2023.
An agency may not conduct or
sponsor, and a person is not required to
respond to, a collection of information
under the PRA unless it displays a
currently valid OMB control number.
Please direct your written comments
to: David Bottom, Acting Director/Chief
Information Officer, Securities and
Exchange Commission, c/o John
Pezzullo, 100 F Street NE, Washington,
DC 20549 or send an email to: PRA_
Mailbox@sec.gov.
Dated: December 14, 2022.
Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2022–27488 Filed 12–19–22; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–96499; File No. SR–
NYSEARCA–2022–80]
Self-Regulatory Organizations; NYSE
Arca, Inc.; Notice of Filing and
Immediate Effectiveness of Proposed
Rule Change To Amend Rule 7.19–E
December 14, 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 December
8, 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.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange proposes to amend
Rule 7.19–E pertaining to pre-trade risk
controls to make additional pre-trade
risk controls available to Entering Firms.
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.
1 15
U.S.C. 78s(b)(1).
U.S.C. 78a.
3 17 CFR 240.19b–4.
2 15
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Federal Register / Vol. 87, No. 243 / Tuesday, December 20, 2022 / Notices
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 Exchange proposes to amend
Rule 7.19–E pertaining to pre-trade risk
controls to make additional pre-trade
risk controls available to Entering Firms.
Background and Purpose
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In 2020, in order to assist ETP
Holders’ efforts to manage their risk, the
Exchange amended its rules to add Rule
7.19–E (Pre-Trade Risk Controls),4
which established a set of pre-trade risk
controls by which Entering Firms and
their designated Clearing Firms 5 could
set credit limits and other pre-trade risk
controls for an Entering Firm’s trading
on the Exchange and authorize the
Exchange to take action if those credit
limits or other pre-trade risk controls are
exceeded. Specifically, the Exchange
added a Gross Credit Risk Limit, a
Single Order Maximum Notional Value
Risk Limit, and a Single Order
Maximum Quantity Risk Limit 6
(collectively, the ‘‘2020 Risk Controls’’).
The Exchange now proposes to
expand the list of the optional pre-trade
risk controls available to Entering Firms
by adding several additional pre-trade
risk controls that would provide
Entering Firms with enhanced abilities
to manage their risk with respect to
orders on the Exchange. Like the 2020
Risk Controls, use of the pre-trade risk
controls proposed herein is optional,
but all orders on the Exchange would
pass through these risk checks. As such,
an Entering Firm that does not choose
4 See Securities Exchange Act Release No. 88904
(May 19, 2020), 85 FR 31560 (May 26, 2020) (SR–
NYSEArca–2020–43).
5 The terms ‘‘Entering Firm’’ and ‘‘Clearing Firm’’
are defined in Rule 7.19–E.
6 The terms ‘‘Gross Credit Risk Limit,’’ ‘‘Single
Order Maximum Notional Value Risk Limit, and
‘‘Single Order Maximum Quantity Risk Limit’’ are
defined in Rule 7.19–E.
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to set limits pursuant to the new
proposed pre-trade risk controls would
not achieve any latency advantage with
respect to its trading activity on the
Exchange. In addition, the Exchange
expects that any latency added by the
pre-trade risk controls would be de
minimis.
The proposed new pre-trade risk
controls proposed herein would be
available to be set by Entering Firms
only. Clearing Firms designated by an
Entering Firm would continue to be able
to view all pre-trade risk controls set by
the Entering Firm and to set the 2020
Risk Controls on the Entering Firm’s
behalf.
Proposed Amendment to Rule 7.19–E
To accomplish this rule change, the
Exchange proposes to amend paragraph
(a) to include a new paragraph (a)(3)
that would define the term ‘‘Pre-Trade
Risk Controls’’ as all of the risk controls
listed in proposed paragraph (b),
inclusive of the 2020 Risk Controls and
the proposed new risk controls.
In proposed paragraph (b), the
Exchange proposes to list all Pre-Trade
Risk Controls available to Entering
Firms, which would include the
existing 2020 Risk Controls and the
proposed new controls. The Exchange
proposes to move the definition of Gross
Credit Risk Limit from current
paragraph (a)(5) to proposed paragraph
(b)(1), with no substantive change. Next,
the Exchange proposes to add paragraph
(b)(2), which would list all available
‘‘Single Order Risk Controls.’’ The
Exchange proposes to move the
definitions of Single Order Maximum
Notional Value Risk Limit and Single
Order Maximum Quantity Risk Limit
from current paragraphs (a)(3) and (a)(4)
to proposed paragraph (b)(2)(A), with no
substantive change. Next, the Exchange
proposes to add paragraphs (b)(2)(B)
through (b)(2)(F) to enumerate the
proposed new Single Order Risk
Controls, as follows:
(B) controls related to the price of an
order (including percentage-based and
dollar-based controls);
(C) controls related to the order types
or modifiers that can be utilized;
(D) controls to restrict the types of
securities transacted (including but not
limited to restricted securities);
(E) controls to prohibit duplicative
orders; and
(F) controls related to the size of an
order as compared to the average daily
volume of the security (including the
ability to specify the minimum average
daily volume for the securities for
which such controls will be activated).
Each of the Single Order Risk Controls
in proposed paragraph (b)(2) is
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substantively identical to risk settings
already in place on the Exchange’s
affiliate exchange NYSE American LLC
(‘‘NYSE American’’),7 as well as those
on the Cboe and MEMX equities
exchanges.8 As such, the proposed new
Pre-Trade Risk Controls are familiar to
market participants and are not novel.
The Exchange proposes to move
current paragraph (b)(2) to proposed
paragraph (c) and to re-name that
paragraph ‘‘Pre-Trade Risk Controls
Available to Clearing Firms.’’ The
Exchange proposes to renumber current
paragraphs (b)(2)(A), (b)(2)(B), and
(b)(2)(C) as paragraphs (c)(1), (c)(2), and
(c)(3) accordingly. The Exchange
proposes to smooth the grammar in
proposed paragraph (c)(1) by moving the
‘‘or both’’ language from the end of the
sentence to the beginning, to clarify that
an Entering Firm that does not self-clear
may designate its Clearing Firm to take
either or both of the following actions:
viewing or setting Pre-Trade Risk
Controls on the Entering Firm’s behalf.
Finally, in proposed paragraph (c)(1)(B),
the Exchange proposes to specify that
Clearing Firms so-designated may only
set the 2020 Risk Controls on an
Entering Firm’s behalf; the proposed
new risk controls set out in proposed
paragraph (b)(2)(B) through (b)(2)(F) are
available to be set by Entering Firms
only. The Exchange does not propose
any changes to proposed paragraph
(c)(2), and with respect to proposed
paragraph (c)(3), proposes only to
update internal cross-references.
The Exchange proposes to move
current paragraph (b)(3) regarding
‘‘Setting and Adjusting Pre-Trade Risk
Controls’’ to proposed paragraph (d),
and to renumber current paragraphs
(b)(3)(A) and (b)(3)(B) as proposed
paragraphs (d)(1) and (d)(2) accordingly.
The Exchange proposes to amend the
text of proposed paragraph (d)(2) to state
that in addition to Pre-Trade Risk
Controls being available to be set at the
MPID level or at one or more sub-IDs
associated with that MPID, or both, PreTrade Risk Controls related to the short
selling of securities, transacting in
restricted securities, and the size of an
order compared to the average daily
7 See NYSE American Rule 7.19E; see also
Securities Exchange Act Release No. 96403
(November 29, 2022) (SR–NYSEAMER–2022–53).
8 See Cboe BZX Exchange, Inc. (‘‘Cboe BZX’’)
Rule 11.13, Interpretations and Policies .01; Cboe
BYX Exchange, Inc. (‘‘Cboe BYX’’) Rule 11.13,
Interpretations and Policies .01; Cboe EDGA
Exchange, Inc. (‘‘Cboe EDGA’’) Rule 11.10,
Interpretations and Policies .01; Cboe EDGX
Exchange, Inc. (‘‘Cboe EDGX’’) Rule 11.10,
Interpretations and Policies .01; and MEMX LLC
(‘‘MEMX’’) Rule 11.10, Interpretations and Policies
.01.
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volume of a security must be set per
symbol.
The Exchange proposes to move
current paragraph (b)(4) regarding
‘‘Notifications’’ to paragraph (e), with no
changes.
The Exchange proposes to move
current paragraph (c) regarding
‘‘Automated Breach Actions’’ to
proposed paragraph (f) and to renumber
current paragraphs (c)(1), (c)(2), (c)(3),
and (c)(4) as paragraphs (f)(1), (f)(2),
(f)(3), and (f)(4) accordingly. The
Exchange proposes no changes to the
text of proposed paragraphs (f)(1), (f)(3),
or (f)(4), other than to update an internal
cross-reference. With respect to
proposed paragraph (f)(2) regarding
‘‘Breach Action for Single Order Risk
Limits,’’ the Exchange proposes to
change the word ‘‘Limits’’ in the
heading to ‘‘Controls.’’ The Exchange
further proposes to amend the text of
current paragraph (c)(2) to specify in
paragraph (f)(2)(A) that if an order
would breach a price control under
paragraph (b)(2)(B), it would be rejected
or canceled as specified in Rule 7.31–
E(a)(2)(B) (the ‘‘Limit Order Price
Protection Rule’’), while providing in
paragraph (f)(2)(B) that an order that
breaches the designated limit of any
other Single Order Risk Control would
be rejected.
The Exchange proposes to move
current paragraph (d) regarding
‘‘Reinstatement of Entering Firm After
Automated Breach Action’’ to proposed
paragraph (g), with no changes.
The Exchange proposes to move
current paragraph (e) regarding ‘‘Kill
Switch Actions’’ to proposed paragraph
(h) with no changes, other than to
update an internal cross-reference.
The Exchange proposes no changes to
Commentary .01 to the Rule. The
Exchange proposes to add Commentary
.02 to specify the interplay between the
Exchange’s Limit Order Price Protection
Rule and the price controls that may be
set by an Entering Firm pursuant to
proposed paragraph (b)(2)(B). Proposed
Commentary .02 specifies that pursuant
to paragraph (b)(2)(B), an Entering Firm
may always set dollar-based or
percentage-based controls as to the price
of an order that are equal to or more
restrictive than the levels set out in Rule
7.31–E(a)(2)(B) regarding Limit Order
Price Protection (e.g., the greater of
$0.15 or 10% (for securities with a
reference price up to and including
$25.00), 5% (for securities with a
reference price of greater than $25.00
and up to and including $50.00), or 3%
(for securities with a reference price
greater than $50.00) away from the NBB
or NBO). However, an Entering Firm
may set price controls under paragraph
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(b)(2)(B) that are less restrictive than the
levels in the Limit Order Price
Protection Rule only (i) outside of Core
Trading Hours or (ii) with respect to
LOC Orders.
Continuing Obligations of ETP Holders
Under Rule 15c3–5
The proposed Pre-Trade Risk Controls
described here are meant to supplement,
and not replace, the ETP Holders’ own
internal systems, monitoring, and
procedures related to risk management.
The Exchange does not guarantee that
these controls will be sufficiently
comprehensive to meet all of an ETP
Holder’s needs, the controls are not
designed to be the sole means of risk
management, and using these controls
will not necessarily meet an ETP
Holder’s obligations required by
Exchange or federal rules (including,
without limitation, the Rule 15c3–5
under the Act 9 (‘‘Rule 15c3–5’’)). Use of
the Exchange’s Pre-Trade Risk Controls
will not automatically constitute
compliance with Exchange or federal
rules and responsibility for compliance
with all Exchange and SEC rules
remains with the ETP Holder.10
Timing and Implementation
The Exchange anticipates completing
the technological changes necessary to
implement the proposed rule change in
the first quarter of 2023, but in any
event no later than April 30, 2023. The
Exchange anticipates announcing the
availability of the Pre-Trade Risk
Controls introduced in this filing by
Trader Update in the first quarter of
2023.
2. Statutory Basis
The Exchange believes that the
proposed rule change is consistent with
section 6(b) of the Act,11 in general, and
furthers the objectives of section 6(b)(5)
of the Act,12 in particular, because it is
designed to prevent fraudulent and
manipulative acts and practices, to
promote just and equitable principles of
trade, to foster cooperation and
coordination with persons engaged in
regulating, clearing, settling, processing
information with respect to, and
facilitating transactions in securities, to
remove impediments to and perfect the
9 See
17 CFR 240.15c3–5.
also Commentary .01 to Rule 7.19–E, which
provides that ‘‘[t]he pre-trade risk controls
described in this Rule are meant to supplement, and
not replace, the ETP Holder’s own internal systems,
monitoring and procedures related to risk
management and are not designed for compliance
with Rule 15c3–5 under the Exchange Act.
Responsibility for compliance with all Exchange
and SEC rules remains with the ETP Holder.’’
11 15 U.S.C. 78f(b).
12 15 U.S.C. 78f(b)(5).
10 See
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77909
mechanism of a free and open market
and a national market system, and, in
general, to protect investors and the
public interest, and because it is not
designed to permit unfair
discrimination between customers,
issuers, brokers, or dealers.
Specifically, the Exchange believes
that the proposed rule change will
remove impediments to and perfect the
mechanism of a free and open market
and a national market system because
the proposed additional Pre-Trade Risk
Controls would provide Entering Firms
with enhanced abilities to manage their
risk with respect to orders on the
Exchange. The proposed additional PreTrade Risk Controls are not novel; they
are based on existing risk settings
already in place on NYSE American,13
as well as those on the Cboe and MEMX
equities exchanges,14 and market
participants are already familiar with
the types of protections that the
proposed risk controls afford. As such,
the Exchange believes that the proposed
additional Pre-Trade Risk Controls
would provide a means to address
potentially market-impacting events,
helping to ensure the proper functioning
of the market.
In addition, the Exchange believes
that the proposed rule change will
protect investors and the public interest
because the proposed additional PreTrade Risk Controls are a form of impact
mitigation that will aid Entering Firms
in minimizing their risk exposure and
reduce the potential for disruptive,
market-wide events. The Exchange
understands that ETP Holders
implement a number of different riskbased controls, including those required
by Rule 15c3–5. The controls proposed
here will serve as an additional tool for
Entering Firms to assist them in
identifying any risk exposure. The
Exchange believes the proposed
additional Pre-Trade Risk Controls will
assist Entering Firms in managing their
financial exposure which, in turn, could
enhance the integrity of trading on the
securities markets and help to assure the
stability of the financial system.
The Exchange believes that the
proposed rule change will remove
impediments to and perfect the
mechanism of a free and open market
and a national market system by
permitting Entering Firms to set price
controls under paragraph (b)(2)(B) that
are equal to or more restrictive than the
levels in the Exchange’s Limit Order
Price Protection Rule, but preventing
Entering Firms from setting price
controls that are less restrictive than
13 See
14 See
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supra note 7.
supra note 8.
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those levels during Core Trading Hours
in most circumstances. The Exchange’s
Limit Order Price Protection Rule
protects from aberrant trades, thus
improving continuous trading and price
discovery. The Exchange believes that
Entering Firms should not be able to
circumvent the protections of that rule
by setting lower levels during Core
Trading Hours, except with respect to
orders that participate in the Closing
Auction (e.g., LOC Orders).15 But under
the proposed rule, Entering Firms
seeking to further manage their
exposure to aberrant trades would be
permitted to set price controls at levels
that are more restrictive than in the
Exchange’s Limit Order Price Protection
Rule. Additionally, because price
controls set by an Entering Firm under
paragraph (b)(2)(B) would function as a
form of limit order price protection, the
Exchange believes that it would remove
impediments to and perfect the
mechanism of a free and open market
and a national market system for an
order that would breach such a price
control to be rejected or canceled as
specified in the Limit Order Price
Protection Rule.
Finally, the Exchange believes that
the proposed rule change does not
unfairly discriminate among the
Exchange’s ETP Holders because use of
the proposed additional Pre-Trade Risk
Controls is optional and is not a
prerequisite for participation on the
Exchange. In addition, because all
orders on the Exchange would pass
through the risk checks, there would be
no difference in the latency experienced
by ETP Holders who have opted to use
the proposed additional Pre-Trade Risk
Controls versus those who have not
opted to use them.
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. In fact, the
Exchange believes that the proposal will
have a positive effect on competition
because, by providing Entering Firms
additional means to monitor and control
risk, the proposed rule will increase
confidence in the proper functioning of
the markets. The Exchange believes the
proposed additional Pre-Trade Risk
Controls will assist Entering Firms in
managing their financial exposure
which, in turn, could enhance the
integrity of trading on the securities
markets and help to assure the stability
15 LOC
Orders are not subject to the Limit Order
Price Protection in Rule 7.31–E(a)(2)(B).
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of the financial system. As a result, the
level of competition should increase as
public confidence in the markets is
solidified.
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 16 and Rule
19b–4(f)(6) thereunder.17 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
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.18
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) 19 of the Act to
determine whether the proposed rule
change should be approved or
disapproved.
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:
16 15
U.S.C. 78s(b)(3)(A)(iii).
CFR 240.19b–4(f)(6).
18 17 CFR 240.19b–4(f)(6)(iii). In addition, Rule
19b–4(f)(6) 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 Exchange has satisfied this
requirement.
19 15 U.S.C. 78s(b)(2)(B).
17 17
PO 00000
Frm 00124
Fmt 4703
Sfmt 9990
Electronic Comments
• Use the Commission’s internet
comment form (https://www.sec.gov/
rules/sro.shtml); or
• Send an email to rule-comments@
sec.gov. Please include File Number SR–
NYSEARCA–2022–80 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–2022–80. 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
10:00 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–2022–80 and
should be submitted on or before
January 10, 2023.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.20
Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2022–27500 Filed 12–19–22; 8:45 am]
BILLING CODE 8011–01–P
20 17
E:\FR\FM\20DEN1.SGM
CFR 200.30–3(a)(12).
20DEN1
]]>Agencies
[Federal Register Volume 87, Number 243 (Tuesday, December 20, 2022)]
[Notices]
[Pages 77907-77910]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27500]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-96499; File No. SR-NYSEARCA-2022-80]
Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change To Amend Rule 7.19-
E
December 14, 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 December 8, 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.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 15 U.S.C. 78a.
\3\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------
I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange proposes to amend Rule 7.19-E pertaining to pre-trade
risk controls to make additional pre-trade risk controls available to
Entering Firms. 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.
[[Page 77908]]
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 Exchange proposes to amend Rule 7.19-E pertaining to pre-trade
risk controls to make additional pre-trade risk controls available to
Entering Firms.
Background and Purpose
In 2020, in order to assist ETP Holders' efforts to manage their
risk, the Exchange amended its rules to add Rule 7.19-E (Pre-Trade Risk
Controls),\4\ which established a set of pre-trade risk controls by
which Entering Firms and their designated Clearing Firms \5\ could set
credit limits and other pre-trade risk controls for an Entering Firm's
trading on the Exchange and authorize the Exchange to take action if
those credit limits or other pre-trade risk controls are exceeded.
Specifically, the Exchange added a Gross Credit Risk Limit, a Single
Order Maximum Notional Value Risk Limit, and a Single Order Maximum
Quantity Risk Limit \6\ (collectively, the ``2020 Risk Controls'').
---------------------------------------------------------------------------
\4\ See Securities Exchange Act Release No. 88904 (May 19,
2020), 85 FR 31560 (May 26, 2020) (SR-NYSEArca-2020-43).
\5\ The terms ``Entering Firm'' and ``Clearing Firm'' are
defined in Rule 7.19-E.
\6\ The terms ``Gross Credit Risk Limit,'' ``Single Order
Maximum Notional Value Risk Limit, and ``Single Order Maximum
Quantity Risk Limit'' are defined in Rule 7.19-E.
---------------------------------------------------------------------------
The Exchange now proposes to expand the list of the optional pre-
trade risk controls available to Entering Firms by adding several
additional pre-trade risk controls that would provide Entering Firms
with enhanced abilities to manage their risk with respect to orders on
the Exchange. Like the 2020 Risk Controls, use of the pre-trade risk
controls proposed herein is optional, but all orders on the Exchange
would pass through these risk checks. As such, an Entering Firm that
does not choose to set limits pursuant to the new proposed pre-trade
risk controls would not achieve any latency advantage with respect to
its trading activity on the Exchange. In addition, the Exchange expects
that any latency added by the pre-trade risk controls would be de
minimis.
The proposed new pre-trade risk controls proposed herein would be
available to be set by Entering Firms only. Clearing Firms designated
by an Entering Firm would continue to be able to view all pre-trade
risk controls set by the Entering Firm and to set the 2020 Risk
Controls on the Entering Firm's behalf.
Proposed Amendment to Rule 7.19-E
To accomplish this rule change, the Exchange proposes to amend
paragraph (a) to include a new paragraph (a)(3) that would define the
term ``Pre-Trade Risk Controls'' as all of the risk controls listed in
proposed paragraph (b), inclusive of the 2020 Risk Controls and the
proposed new risk controls.
In proposed paragraph (b), the Exchange proposes to list all Pre-
Trade Risk Controls available to Entering Firms, which would include
the existing 2020 Risk Controls and the proposed new controls. The
Exchange proposes to move the definition of Gross Credit Risk Limit
from current paragraph (a)(5) to proposed paragraph (b)(1), with no
substantive change. Next, the Exchange proposes to add paragraph
(b)(2), which would list all available ``Single Order Risk Controls.''
The Exchange proposes to move the definitions of Single Order Maximum
Notional Value Risk Limit and Single Order Maximum Quantity Risk Limit
from current paragraphs (a)(3) and (a)(4) to proposed paragraph
(b)(2)(A), with no substantive change. Next, the Exchange proposes to
add paragraphs (b)(2)(B) through (b)(2)(F) to enumerate the proposed
new Single Order Risk Controls, as follows:
(B) controls related to the price of an order (including
percentage-based and dollar-based controls);
(C) controls related to the order types or modifiers that can be
utilized;
(D) controls to restrict the types of securities transacted
(including but not limited to restricted securities);
(E) controls to prohibit duplicative orders; and
(F) controls related to the size of an order as compared to the
average daily volume of the security (including the ability to specify
the minimum average daily volume for the securities for which such
controls will be activated).
Each of the Single Order Risk Controls in proposed paragraph (b)(2)
is substantively identical to risk settings already in place on the
Exchange's affiliate exchange NYSE American LLC (``NYSE American''),\7\
as well as those on the Cboe and MEMX equities exchanges.\8\ As such,
the proposed new Pre-Trade Risk Controls are familiar to market
participants and are not novel.
---------------------------------------------------------------------------
\7\ See NYSE American Rule 7.19E; see also Securities Exchange
Act Release No. 96403 (November 29, 2022) (SR-NYSEAMER-2022-53).
\8\ See Cboe BZX Exchange, Inc. (``Cboe BZX'') Rule 11.13,
Interpretations and Policies .01; Cboe BYX Exchange, Inc. (``Cboe
BYX'') Rule 11.13, Interpretations and Policies .01; Cboe EDGA
Exchange, Inc. (``Cboe EDGA'') Rule 11.10, Interpretations and
Policies .01; Cboe EDGX Exchange, Inc. (``Cboe EDGX'') Rule 11.10,
Interpretations and Policies .01; and MEMX LLC (``MEMX'') Rule
11.10, Interpretations and Policies .01.
---------------------------------------------------------------------------
The Exchange proposes to move current paragraph (b)(2) to proposed
paragraph (c) and to re-name that paragraph ``Pre-Trade Risk Controls
Available to Clearing Firms.'' The Exchange proposes to renumber
current paragraphs (b)(2)(A), (b)(2)(B), and (b)(2)(C) as paragraphs
(c)(1), (c)(2), and (c)(3) accordingly. The Exchange proposes to smooth
the grammar in proposed paragraph (c)(1) by moving the ``or both''
language from the end of the sentence to the beginning, to clarify that
an Entering Firm that does not self-clear may designate its Clearing
Firm to take either or both of the following actions: viewing or
setting Pre-Trade Risk Controls on the Entering Firm's behalf. Finally,
in proposed paragraph (c)(1)(B), the Exchange proposes to specify that
Clearing Firms so-designated may only set the 2020 Risk Controls on an
Entering Firm's behalf; the proposed new risk controls set out in
proposed paragraph (b)(2)(B) through (b)(2)(F) are available to be set
by Entering Firms only. The Exchange does not propose any changes to
proposed paragraph (c)(2), and with respect to proposed paragraph
(c)(3), proposes only to update internal cross-references.
The Exchange proposes to move current paragraph (b)(3) regarding
``Setting and Adjusting Pre-Trade Risk Controls'' to proposed paragraph
(d), and to renumber current paragraphs (b)(3)(A) and (b)(3)(B) as
proposed paragraphs (d)(1) and (d)(2) accordingly. The Exchange
proposes to amend the text of proposed paragraph (d)(2) to state that
in addition to Pre-Trade Risk Controls being available to be set at the
MPID level or at one or more sub-IDs associated with that MPID, or
both, Pre-Trade Risk Controls related to the short selling of
securities, transacting in restricted securities, and the size of an
order compared to the average daily
[[Page 77909]]
volume of a security must be set per symbol.
The Exchange proposes to move current paragraph (b)(4) regarding
``Notifications'' to paragraph (e), with no changes.
The Exchange proposes to move current paragraph (c) regarding
``Automated Breach Actions'' to proposed paragraph (f) and to renumber
current paragraphs (c)(1), (c)(2), (c)(3), and (c)(4) as paragraphs
(f)(1), (f)(2), (f)(3), and (f)(4) accordingly. The Exchange proposes
no changes to the text of proposed paragraphs (f)(1), (f)(3), or
(f)(4), other than to update an internal cross-reference. With respect
to proposed paragraph (f)(2) regarding ``Breach Action for Single Order
Risk Limits,'' the Exchange proposes to change the word ``Limits'' in
the heading to ``Controls.'' The Exchange further proposes to amend the
text of current paragraph (c)(2) to specify in paragraph (f)(2)(A) that
if an order would breach a price control under paragraph (b)(2)(B), it
would be rejected or canceled as specified in Rule 7.31-E(a)(2)(B) (the
``Limit Order Price Protection Rule''), while providing in paragraph
(f)(2)(B) that an order that breaches the designated limit of any other
Single Order Risk Control would be rejected.
The Exchange proposes to move current paragraph (d) regarding
``Reinstatement of Entering Firm After Automated Breach Action'' to
proposed paragraph (g), with no changes.
The Exchange proposes to move current paragraph (e) regarding
``Kill Switch Actions'' to proposed paragraph (h) with no changes,
other than to update an internal cross-reference.
The Exchange proposes no changes to Commentary .01 to the Rule. The
Exchange proposes to add Commentary .02 to specify the interplay
between the Exchange's Limit Order Price Protection Rule and the price
controls that may be set by an Entering Firm pursuant to proposed
paragraph (b)(2)(B). Proposed Commentary .02 specifies that pursuant to
paragraph (b)(2)(B), an Entering Firm may always set dollar-based or
percentage-based controls as to the price of an order that are equal to
or more restrictive than the levels set out in Rule 7.31-E(a)(2)(B)
regarding Limit Order Price Protection (e.g., the greater of $0.15 or
10% (for securities with a reference price up to and including $25.00),
5% (for securities with a reference price of greater than $25.00 and up
to and including $50.00), or 3% (for securities with a reference price
greater than $50.00) away from the NBB or NBO). However, an Entering
Firm may set price controls under paragraph (b)(2)(B) that are less
restrictive than the levels in the Limit Order Price Protection Rule
only (i) outside of Core Trading Hours or (ii) with respect to LOC
Orders.
Continuing Obligations of ETP Holders Under Rule 15c3-5
The proposed Pre-Trade Risk Controls described here are meant to
supplement, and not replace, the ETP Holders' own internal systems,
monitoring, and procedures related to risk management. The Exchange
does not guarantee that these controls will be sufficiently
comprehensive to meet all of an ETP Holder's needs, the controls are
not designed to be the sole means of risk management, and using these
controls will not necessarily meet an ETP Holder's obligations required
by Exchange or federal rules (including, without limitation, the Rule
15c3-5 under the Act \9\ (``Rule 15c3-5'')). Use of the Exchange's Pre-
Trade Risk Controls will not automatically constitute compliance with
Exchange or federal rules and responsibility for compliance with all
Exchange and SEC rules remains with the ETP Holder.\10\
---------------------------------------------------------------------------
\9\ See 17 CFR 240.15c3-5.
\10\ See also Commentary .01 to Rule 7.19-E, which provides that
``[t]he pre-trade risk controls described in this Rule are meant to
supplement, and not replace, the ETP Holder's own internal systems,
monitoring and procedures related to risk management and are not
designed for compliance with Rule 15c3-5 under the Exchange Act.
Responsibility for compliance with all Exchange and SEC rules
remains with the ETP Holder.''
---------------------------------------------------------------------------
Timing and Implementation
The Exchange anticipates completing the technological changes
necessary to implement the proposed rule change in the first quarter of
2023, but in any event no later than April 30, 2023. The Exchange
anticipates announcing the availability of the Pre-Trade Risk Controls
introduced in this filing by Trader Update in the first quarter of
2023.
2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with section 6(b) of the Act,\11\ in general, and furthers the
objectives of section 6(b)(5) of the Act,\12\ in particular, because it
is designed to prevent fraudulent and manipulative acts and practices,
to promote just and equitable principles of trade, to foster
cooperation and coordination with persons engaged in regulating,
clearing, settling, processing information with respect to, and
facilitating transactions in securities, 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,
and because it is not designed to permit unfair discrimination between
customers, issuers, brokers, or dealers.
---------------------------------------------------------------------------
\11\ 15 U.S.C. 78f(b).
\12\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------
Specifically, the Exchange believes that the proposed rule change
will remove impediments to and perfect the mechanism of a free and open
market and a national market system because the proposed additional
Pre-Trade Risk Controls would provide Entering Firms with enhanced
abilities to manage their risk with respect to orders on the Exchange.
The proposed additional Pre-Trade Risk Controls are not novel; they are
based on existing risk settings already in place on NYSE American,\13\
as well as those on the Cboe and MEMX equities exchanges,\14\ and
market participants are already familiar with the types of protections
that the proposed risk controls afford. As such, the Exchange believes
that the proposed additional Pre-Trade Risk Controls would provide a
means to address potentially market-impacting events, helping to ensure
the proper functioning of the market.
---------------------------------------------------------------------------
\13\ See supra note 7.
\14\ See supra note 8.
---------------------------------------------------------------------------
In addition, the Exchange believes that the proposed rule change
will protect investors and the public interest because the proposed
additional Pre-Trade Risk Controls are a form of impact mitigation that
will aid Entering Firms in minimizing their risk exposure and reduce
the potential for disruptive, market-wide events. The Exchange
understands that ETP Holders implement a number of different risk-based
controls, including those required by Rule 15c3-5. The controls
proposed here will serve as an additional tool for Entering Firms to
assist them in identifying any risk exposure. The Exchange believes the
proposed additional Pre-Trade Risk Controls will assist Entering Firms
in managing their financial exposure which, in turn, could enhance the
integrity of trading on the securities markets and help to assure the
stability of the financial system.
The Exchange believes that the proposed rule change will remove
impediments to and perfect the mechanism of a free and open market and
a national market system by permitting Entering Firms to set price
controls under paragraph (b)(2)(B) that are equal to or more
restrictive than the levels in the Exchange's Limit Order Price
Protection Rule, but preventing Entering Firms from setting price
controls that are less restrictive than
[[Page 77910]]
those levels during Core Trading Hours in most circumstances. The
Exchange's Limit Order Price Protection Rule protects from aberrant
trades, thus improving continuous trading and price discovery. The
Exchange believes that Entering Firms should not be able to circumvent
the protections of that rule by setting lower levels during Core
Trading Hours, except with respect to orders that participate in the
Closing Auction (e.g., LOC Orders).\15\ But under the proposed rule,
Entering Firms seeking to further manage their exposure to aberrant
trades would be permitted to set price controls at levels that are more
restrictive than in the Exchange's Limit Order Price Protection Rule.
Additionally, because price controls set by an Entering Firm under
paragraph (b)(2)(B) would function as a form of limit order price
protection, the Exchange believes that it would remove impediments to
and perfect the mechanism of a free and open market and a national
market system for an order that would breach such a price control to be
rejected or canceled as specified in the Limit Order Price Protection
Rule.
---------------------------------------------------------------------------
\15\ LOC Orders are not subject to the Limit Order Price
Protection in Rule 7.31-E(a)(2)(B).
---------------------------------------------------------------------------
Finally, the Exchange believes that the proposed rule change does
not unfairly discriminate among the Exchange's ETP Holders because use
of the proposed additional Pre-Trade Risk Controls is optional and is
not a prerequisite for participation on the Exchange. In addition,
because all orders on the Exchange would pass through the risk checks,
there would be no difference in the latency experienced by ETP Holders
who have opted to use the proposed additional Pre-Trade Risk Controls
versus those who have not opted to use them.
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. In fact, the Exchange
believes that the proposal will have a positive effect on competition
because, by providing Entering Firms additional means to monitor and
control risk, the proposed rule will increase confidence in the proper
functioning of the markets. The Exchange believes the proposed
additional Pre-Trade Risk Controls will assist Entering Firms in
managing their financial exposure which, in turn, could enhance the
integrity of trading on the securities markets and help to assure the
stability of the financial system. As a result, the level of
competition should increase as public confidence in the markets is
solidified.
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 \16\ and Rule 19b-4(f)(6) thereunder.\17\
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 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.\18\
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\16\ 15 U.S.C. 78s(b)(3)(A)(iii).
\17\ 17 CFR 240.19b-4(f)(6).
\18\ 17 CFR 240.19b-4(f)(6)(iii). In addition, Rule 19b-4(f)(6)
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 Exchange has satisfied this requirement.
---------------------------------------------------------------------------
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) \19\ of the Act to determine whether the proposed
rule change should be approved or disapproved.
---------------------------------------------------------------------------
\19\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------
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-NYSEARCA-2022-80 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-2022-80. 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 10:00 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-2022-80 and should be submitted
on or before January 10, 2023.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\20\
---------------------------------------------------------------------------
\20\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------
Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2022-27500 Filed 12-19-22; 8:45 am]
BILLING CODE 8011-01-P
