Self-Regulatory Organizations; NYSE American LLC; Notice of Filing and Immediate Effectiveness of Proposed Change To Amend Certain Standard Rates in the NYSE American Equities Price List and Fee Schedule, 24254-24258 [2023-08226]

Download as PDF 24254 Federal Register / Vol. 88, No. 75 / Wednesday, April 19, 2023 / Notices A. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change SECURITIES AND EXCHANGE COMMISSION [Release No. 34–97296; File No. SR– NYSEAMER–2023–25] Self-Regulatory Organizations; NYSE American LLC; Notice of Filing and Immediate Effectiveness of Proposed Change To Amend Certain Standard Rates in the NYSE American Equities Price List and Fee Schedule April 13, 2023. Pursuant to Section 19(b)(1) 1 of the Securities Exchange Act of 1934 (the ‘‘Act’’),2 and Rule 19b–4 thereunder,3 notice is hereby given that on April 3, 2023, NYSE American LLC (‘‘NYSE American’’ or the ‘‘Exchange’’) filed with the Securities and Exchange Commission (the ‘‘Commission’’) the proposed rule change as described in Items I and II below, which Items have been prepared by the self-regulatory organization. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to amend certain Standard Rates in the NYSE American Equities Price List and Fee Schedule (‘‘Price List’’) for transaction fees and credits that add and remove liquidity in securities at or above $1. The Exchange proposes to implement the fee changes effective April 3, 2023. 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. lotter on DSK11XQN23PROD with NOTICES1 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. 1 15 U.S.C. 78s(b)(1). U.S.C. 78a. 3 17 CFR 240.19b–4. 2 15 VerDate Sep<11>2014 16:37 Apr 18, 2023 Jkt 259001 1. Purpose The Exchange proposes to amend certain Standard Rates in its Price List for transaction fees and credits that add and remove liquidity in securities at or above $1. Specifically, the Exchange proposes to (1) lower the Tier 1 fee of $ 0.0026 per share for orders that remove liquidity from the Exchange; (2) lower the Tier 2 credit of $0.0024 per share for orders adding liquidity that set a new best bid or offer (‘‘BBO’’) on the Exchange; 4 (3) increase the Tier 2 fee of $0.0028 per share for orders removing liquidity; and (4) decrease the Non-Tier credits of $0.0020 per share for orders adding displayed liquidity and $0.0020 per share for orders adding liquidity that set a new BBO on the Exchange. The proposed changes respond to the current competitive environment where order flow providers have a choice of where to direct liquidity-providing and liquidity-removing orders by offering further incentives for ETP Holders to send additional adding and removing liquidity to the Exchange. The Exchange proposes to implement the fee changes effective April 3, 2023. Competitive Environment 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.’’ 5 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, cash equity trading is 4 See Rule 1.1E(h) (definition of BBO). 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’’). 6 See Securities Exchange Act Release No. 61358, 75 FR 3594, 3597 (January 21, 2010) (File No. S7– 5 See PO 00000 Frm 00108 Fmt 4703 Sfmt 4703 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 17% market share.9 Therefore, no exchange possesses significant pricing power in the execution of cash equity order flow. More specifically, the Exchange currently has less than 1% market share of executed volume of cash equities trading.10 The Exchange believes that the evershifting 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 nonexchange venues to which the firm routes order flow. In response to this competitive environment, the Exchange has established incentives for ETP Holders who submit orders that provide and remove liquidity on the Exchange. The proposed fee change is designed to attract additional order flow to the Exchange by incentivizing ETP Holders to send additional adding and removing liquidity to the Exchange to qualify for the liquidity adding and removing tiers and corresponding higher credits and lower fees, as follows. Proposed Rule Change Currently, for transactions in securities priced at or above $1.00, other than transactions by eDMMs in assigned securities, the Exchange offers the following tiered credits and fees for displayed and non-displayed orders, including orders setting a new Exchange BBO, that add and removed liquidity. The credits and fees are divided into Tier 1, Tier 2, and Non-Tier rates. 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/divisionsmarketregmr exchangesshtml.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 https://markets. cboe.com/us/equities/market_share/. 10 See id. E:\FR\FM\19APN1.SGM 19APN1 Federal Register / Vol. 88, No. 75 / Wednesday, April 19, 2023 / Notices Tier 1 Rates Currently, ETP Holders that add liquidity to the Exchange with an average daily volume (‘‘ADV’’) 11 (‘‘Adding ADV’’) of at least 3,500,000 shares are eligible under Tier 1 for a fee of $0.0026 per share for orders removing liquidity. The Exchange proposes to decrease the fee to $0.0025 per share. The proposed lower fee, together with the increased fee under Tier 2 for removing liquidity discussed below, seeks to encourage ETP Holders that are meeting or exceeding the minimum ADV requirement to qualify for Tier 2 rates to send additional liquidity in order to meet the higher Tier 1 requirement and therefore qualify for a lower fee. lotter on DSK11XQN23PROD with NOTICES1 Tier 2 Rates Currently, ETP Holders with an Adding ADV of at least 700,000 shares are eligible for a credit of $0.0024 per share under Tier 2 for orders adding liquidity that set a new BBO on the Exchange. The Exchange proposes to decrease the credit to $0.0023 per share. The Exchange determined that the current higher credit for setting the Exchange BBO did not incentivize setting activity by ETP Holders as expected and that lowering it was therefore reasonable. The Exchange notes that the proposed lower credit would bring the Tier 2 credit for setting the Exchange BBO into line with the current $0.0023 Tier 2 credit for adding displayed liquidity. Similarly, ETP Holders with an Adding ADV of at least 700,000 shares are eligible for a fee of $0.0028 under Tier 2 for removing liquidity orders. The Exchange proposes to increase the current fee to $0.0029 per share. In addition, as noted above, to seeking to encourage ETP Holders that are meeting or exceeding the minimum ADV requirements under Tier 2 to send additional liquidity to the Exchange, the proposed change would be consistent with the applicable rate on other marketplaces. For instance, Nasdaq charges a $0.0029 per share fee for removing liquidity for members meeting certain requirements; otherwise, its fee for removing liquidity is $0.0030 per share.12 The Exchange’s proposed fee increase to $0.0029 for removing liquidity from the Exchange would still 11 As defined in the Fee Schedule, Adding ADV means an ETP Holder’s average daily volume of shares executed on the Exchange that provided liquidity. 12 See Nasdaq Pricing at https:// www.nasdaqtrader.com/Trader.aspx? id=PriceListTrading2. VerDate Sep<11>2014 16:37 Apr 18, 2023 Jkt 259001 be competitive with respect to Nasdaq PSX. Non-Tier Rates The Exchange’s current Non-Tier rates are available to ETP Holders that do not qualify for either Tier 1 or Tier 2. Currently, orders adding displayed liquidity and orders adding liquidity that set a new BBO on the Exchange are both eligible for a Non-Tier credit of $0.0020 per share. The Exchange proposes to decrease both credits to $0.0016. The proposed change would encourage ETP Holders to send additional liquidity in order to qualify for the minimum Tier 2 ADV requirements and therefore qualify for a higher credit. In addition, the proposed change would be consistent with the applicable rate on other marketplaces.13 Overall, the proposed fee changes are designed to be available to all ETP Holders on the Exchange and is intended to provide ETP Holders a greater incentive to direct more orders to the Exchange. As noted, the Exchange operates in a competitive environment, particularly as it relates to attracting non-marketable orders, which add liquidity to the Exchange. The Exchange does not know how much order flow ETP Holders choose to route to other exchanges or to off-exchange venues. The Exchange does not know how many ETP Holders could qualify for the proposed credits and fees based on their current trading profile on the Exchange and if they choose to direct order flow to the Exchange. However, without having a view of ETP Holder’s activity on other exchanges and off-exchange venues, the Exchange has no way of knowing whether this proposed rule change would result in any ETP Holder directing more orders to the Exchange. The proposed changes are not otherwise intended to address any other issues, and the Exchange is not aware of any significant problems that market participants would have in complying with the proposed changes. 24255 because it provides for the equitable allocation of reasonable dues, fees, and other charges among its members, issuers and other persons using its facilities, is designed to prevent fraudulent and manipulative acts and practices and to promote just and equitable principles of trade, and does not unfairly discriminate between customers, issuers, brokers or dealers. The Proposed Fee Change Is Reasonable 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.’’ 16 The Exchange believes that the evershifting market share among the exchanges from month to month demonstrates that market participants can shift order flow, or discontinue to reduce use of certain categories of products, in response to fee changes. ETP Holders can choose from any one of the 16 currently operating registered exchanges, and numerous off-exchange venues, to route such order flow. Accordingly, competitive forces constrain exchange transaction fees that relate to orders on an exchange. Stated otherwise, changes to exchange transaction fees can have a direct effect on the ability of an exchange to compete for order flow. In light of the competitive environment in which the Exchange currently operates, the proposed rule change is a reasonable attempt to increase liquidity on the Exchange and improve the Exchange’s market share relative to its competitors. The Exchange believes the proposed change 2. Statutory Basis is also reasonable because it is designed The Exchange believes that the to attract higher volumes of orders proposed rule change is consistent with transacted on the Exchange by ETP Section 6(b) of the Act,14 in general, and Holders, which would benefit all market furthers the objectives of Sections participants by offering greater price 6(b)(4) and (5) of the Act,15 in particular, discovery and an increased opportunity to trade on the Exchange. 13 Both Cboe BZX Equities and Cboe EDGX More specifically, the Exchange Equities, for instance, offer a $0.0016 credit for believes that the proposed lower Tier 1 adding displayed liquidity. See https:// fee, together with the increased Tier 2 www.cboe.com/us/equities/membership/fee_ fee, for liquidity removing orders are schedule/bzx/ & https://www.cboe.com/us/equities/ membership/fee_schedule/edgx/. 14 15 U.S.C. 78f(b). 15 15 U.S.C. 78f(b)(4) and (5). PO 00000 Frm 00109 Fmt 4703 Sfmt 4703 16 See Regulation NMS, supra note 5, 70 FR at 37499. E:\FR\FM\19APN1.SGM 19APN1 lotter on DSK11XQN23PROD with NOTICES1 24256 Federal Register / Vol. 88, No. 75 / Wednesday, April 19, 2023 / Notices reasonable. The purpose of these changes, taken together, is to encourage additional liquidity on the Exchange because market participants benefit from the greater amounts of displayed liquidity present on a public exchange. The Exchange believes that the proposed fees will incentivize additional liquidity on a public exchange to qualify for lower fees for removing liquidity, thereby promoting price discovery and transparency and enhancing order execution opportunities for ETP Holders. The proposal is thus reasonable because all ETP Holders would benefit from such increased levels of liquidity. The Exchange believes that the proposed changes to the credits available for orders adding liquidity to the Exchange are also reasonable. The Exchange believes that lowering the Tier 2 credit for setting the Exchange BBO is reasonable because the current higher credit did not incentivize setting activity by ETP Holders and result in greater liquidity as the Exchange had anticipated. The Exchange believes it is reasonable to revise credits when such incentives become underutilized. In addition, the Exchange believes the proposed credit is reasonable because it would bring the credit into line with the current $0.0023 Tier 2 credit for adding displayed liquidity. Finally, the proposed changes to NonTier credits for orders adding displayed liquidity and orders adding liquidity that set a new Exchange BBO are reasonable because the proposed change would encourage ETP Holders to increase the liquidity-adding orders they send to the Exchange to qualify for higher credits under Tier 2, which would support the quality of price discovery on the Exchange and provide additional liquidity for incoming orders. The Exchange notes that the adding ADV requirement for Tier 2 is 700,000 shares, which the Exchange believes is an achievable level for many member organizations, given the higher requirements at other marketplaces. For example, the requirement for the Cboe BZX Adding Tier 1 adding credit of $0.0020 is 5,000,000 shares or 0.05% of CADV. The Exchange believes that by correlating the level of credits to the level of executed adding volume on the Exchange, the Exchange’s fee structure would encourage ETP Holders to submit more liquidity-providing orders to the Exchange that are likely to be executed, thereby increasing the potential for incoming marketable orders submitted to the Exchange to receive an execution. As noted above, the Exchange operates in a competitive environment, particularly as it relates to attracting VerDate Sep<11>2014 16:37 Apr 18, 2023 Jkt 259001 non-marketable orders that add liquidity to the Exchange. In addition, the proposed change would be consistent with the applicable rate on other marketplaces.17 Because the proposal involves the introduction of new fee and credit levels, the Exchange does not know how many more ETP Holders could qualify for the new fees and credits based on their current trading profile on the Exchange and if they choose to direct order flow to the Exchange. As previously noted, without a view of ETP Holder activity on other exchanges and off-exchange venues, the Exchange has no way of knowing whether the proposed rule change would result in any ETP Holder directing additional liquidity to qualify for a better tier, and corresponding higher credit, or lower fee. The Exchange believes the proposed changes are reasonable as it would provide an incentive for ETP Holders to direct their order flow to the Exchange and provide meaningful added levels of liquidity in order to qualify for the credits, thereby contributing to depth and market quality on the Exchange. The Proposed Change Is an Equitable Allocation of Fees and Credits The Exchange believes its proposal equitably allocates its fees and credits among its market participants by fostering liquidity provision and stability in the marketplace. The Exchange believes the proposal equitably allocates fees and credits among its market participants because all ETP Holders that participate on the Exchange may qualify for the proposed fees and credits. The Exchange believes that the proposed changes, taken together, will incentivize ETP Holders to send additional liquidity to achieve lower fees when removing liquidity from the Exchange, thereby increasing the number of orders that are executed on the Exchange, promoting price discovery and transparency and enhancing order execution opportunities and improving overall liquidity on a public exchange. The Exchange also believes that the proposed change is equitable because it would apply to all similarly situated ETP Holders that add or remove liquidity. The proposed change also is equitable because it would be consistent with the applicable rate on other marketplaces.18 As previously noted, the Exchange operates in a competitive environment, particularly as it relates to attracting orders that add liquidity to the 17 See 18 See PO 00000 note 13, supra. notes 12–13, supra. Frm 00110 Fmt 4703 Sfmt 4703 Exchange. The Exchange does not know how much order flow ETP Holders choose to route to other exchanges or to off-exchange venues. Because the proposed introduces new fees and credits, the Exchange does not know how many ETP Holders could qualify for the new rates based on their current trading profiles on the Exchange and if they choose to direct order flow to the Exchange. Without having a view of ETP Holder’s activity on other exchanges and off-exchange venues, the Exchange has no way of knowing whether this proposed rule change would result in any ETP Holder directing orders to the Exchange. The Exchange anticipates that ETP Holders would endeavor to send more of their orders for execution on the Exchange in order to earning higher credits and lower fees. The Exchange further believes that the proposed change is equitable because it is reasonably related to the value to the Exchange’s market quality associated with higher volume in orders. The Exchange believes that the proposed pricing adjustments would attract order flow to the Exchange, thereby contributing to price discovery on the Exchange and benefiting investors generally. The Exchange believes that the proposed rule change is equitable because maintaining or increasing the proportion of orders in exchange-listed securities that are executed on a registered national securities exchange (rather than relying on certain available off-exchange execution methods) would contribute to investors’ confidence in the fairness of their transactions and would benefit all investors by deepening the Exchange’s liquidity pool, supporting the quality of price discovery, promoting market transparency, and improving investor protection. The proposal neither targets nor will it have a disparate impact on any particular category of market participant. All ETP Holders would be eligible to qualify for the proposed fees and credits. The Exchange believes that offering fees for removing liquidity and credits for providing liquidity will continue to attract order flow and liquidity to the Exchange, thereby providing additional price improvement opportunities on the Exchange and benefiting investors generally. As to those market participants that do not presently meet the Adding ADV requirements to qualify for the Exchange’s best prices, the proposal would not adversely impact the ability of those ETP Holders to qualify for other credits or fees provided by the Exchange E:\FR\FM\19APN1.SGM 19APN1 Federal Register / Vol. 88, No. 75 / Wednesday, April 19, 2023 / Notices lotter on DSK11XQN23PROD with NOTICES1 and in fact would encourage them to increase the orders sent to the Exchange in order to qualify for the Exchange’s best prices. The Proposed Fee Change Is Not Unfairly Discriminatory The Exchange believes that the proposal is not unfairly discriminatory. In the prevailing competitive environment, ETP Holders are free to disfavor the Exchange’s pricing if they believe that alternatives offer them better value. The Exchange believes it is not unfairly discriminatory to provide the proposed fees and credits for ETP Holders that add or remove liquidity because the proposed fees and credits would be provided on an equal basis to all ETP Holders. Further, the Exchange believes the proposed fees and credits would incentivize ETP Holders to send more orders to the Exchange to qualify for the revised fees and credits, thereby promoting price discovery and transparency and enhancing order execution opportunities for ETP Holders. Since the proposed fees and credits would be new, no ETP Holder currently qualifies for them. As noted, without a view of ETP Holder activity on other exchanges and off-exchange venues, the Exchange has no way of knowing whether this proposed rule change would result in any ETP Holders qualifying for the proposed adding tiers. The Exchange believes the proposal is reasonable as it would provide an incentive for ETP Holders to direct their order flow to the Exchange and provide meaningful added levels of liquidity in order to qualify for the credits, thereby contributing to depth and market quality on the Exchange. In addition, the Exchange believes that the proposal is not unfairly discriminatory because it neither targets nor will it have a disparate impact on any particular category of market participant. All ETP Holders would be eligible to qualify for the proposed credits if they meet the proposed Adding ADV requirements for each proposed tier. The proposal does not permit unfair discrimination because the proposed rates would be applied to all similarly situated ETP Holders and other market participants, who would all be eligible for the same rates on an equal basis. Accordingly, no ETP Holder already operating on the Exchange would not be disadvantaged by the proposed allocation of fees and credits. The Exchange believes that offering credits for providing liquidity will continue to attract order flow and liquidity to the Exchange, thereby providing additional price improvement VerDate Sep<11>2014 16:37 Apr 18, 2023 Jkt 259001 opportunities on the Exchange and benefiting investors generally. As to those market participants that do not presently qualify for the revised fees and credits, the proposal will not adversely impact their ability to qualify for other credits provided by the Exchange. Finally, the submission of orders is optional for ETP Holders in that they could choose whether to submit orders to the Exchange and, if they do, they can choose the extent of their activity in this regard. The Exchange believes that it is subject to significant competitive forces, as described above and 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,19 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. Instead, as discussed above, the Exchange believes that the proposed fee 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 ETP Holders. As a result, the Exchange believes that the proposed change furthers the Commission’s goal in adopting Regulation NMS of fostering integrated competition among orders, which promotes ‘‘more efficient pricing of individual stocks for all types of orders, large and small.’’ 20 Intramarket Competition. The Exchange believes the proposed change would not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed change is designed to attract additional orders to the Exchange. The Exchange believes that the proposed changes would incentivize market participants to direct orders to the Exchange. Greater overall order flow, trading opportunities, and pricing transparency benefit all market participants on the Exchange by enhancing market quality and continuing to encourage ETP Holders to send orders, thereby U.S.C. 78f(b)(8). Securities Exchange Act Release No. 51808, 70 FR 37495, 37498–99 (June 29, 2005) (S7–10–04) (Final Rule). contributing towards a robust and wellbalanced market ecosystem. 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 offexchange venues if they deem fee levels at those other venues to be more favorable. As noted above, the Exchange currently has less than 1% market share of executed volume of equities trading. In such an environment, the Exchange must continually adjust its fees and credits 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. The Exchange believes that the proposed change could promote competition between the Exchange and other execution venues, including those that currently offer similar order types and comparable transaction pricing, by encouraging additional orders to be sent to the Exchange for execution. 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) 21 of the Act and subparagraph (f)(2) of Rule 19b–4 22 thereunder, because it establishes a due, fee, or other charge imposed by the Exchange. 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) 23 of the Act to determine whether the proposed rule 19 15 20 See PO 00000 Frm 00111 Fmt 4703 Sfmt 4703 24257 21 15 U.S.C. 78s(b)(3)(A). CFR 240.19b–4(f)(2). 23 15 U.S.C. 78s(b)(2)(B). 22 17 E:\FR\FM\19APN1.SGM 19APN1 24258 Federal Register / Vol. 88, No. 75 / Wednesday, April 19, 2023 / Notices 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: 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– NYSEAMER–2023–25 on the subject line. Paper Comments lotter on DSK11XQN23PROD with NOTICES1 • Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–1090. All submissions should refer to File Number SR–NYSEAMER–2023–25. 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–NYSEAMER–2023–25, and should be submitted on or before May 10, 2023. VerDate Sep<11>2014 16:37 Apr 18, 2023 Jkt 259001 For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.24 Sherry R. Haywood, Assistant Secretary. [FR Doc. 2023–08226 Filed 4–18–23; 8:45 am] BILLING CODE 8011–01–P DEPARTMENT OF STATE [Public Notice 12049] Determination and Certification Under Section 490(b)(1)(A) of the Foreign Assistance Act Relating to the Largest Exporting and Importing Countries of Certain Precursor Chemicals Pursuant to Section 490(b)(1)(A) of the Foreign Assistance Act of 1961, as amended, I hereby determine and certify the top five exporting and importing countries and economies of pseudoephedrine and/or ephedrine (cumulatively, Belgium, Czech Republic, Egypt, France, Germany, India, Indonesia, China, Republic of Korea, Romania, Singapore, Switzerland, Taiwan, and the United Kingdom) have cooperated fully with the United States, or have taken adequate steps on their own, to achieve full compliance with the goals and objectives established by the 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. This determination and certification shall be published in the Federal Register, and copies shall be provided to Congress together with the accompanying Memorandum of Justification. Dated: February 10, 2023. Wendy R. Sherman, Deputy Secretary of State. [FR Doc. 2023–08209 Filed 4–18–23; 8:45 am] BILLING CODE 4710–17–P DEPARTMENT OF STATE [Public Notice 12048] Amendment of the Designation of Qari Amjad (and Other Aliases) as a Specially Designated Global Terrorist Based upon a review of the administrative record assembled in this matter, and in consultation with the Attorney General and the Secretary of the Treasury, I have concluded that there is a sufficient factual basis to find that Qari Amjad uses the additional aliases Mufti Hazrat Deroji and Mufti Hazrat Ali. I also conclude that Mufti Hazrat Deroji is the primary name for this person. Therefore, pursuant to Section 1(a)(ii) of E.O. 13224, I hereby amend the designation of Qari Amjad as a Specially Designated Global Terrorist to include the following new aliases: Mufti Hazrat Deroji and Mufti Hazrat Ali. This notice shall be published in the Federal Register. Dated: March 25, 2023. Antony J. Blinken, Secretary of State. [FR Doc. 2023–08208 Filed 4–18–23; 8:45 am] BILLING CODE 4710–AD–P DEPARTMENT OF STATE [Public Notice 12047] Designation of Sami Mahmud Mohammed al-Uraydi as a Specially Designated Global Terrorist Acting under the authority of and in accordance with section 1(a)(ii)(B) of E.O. 13224 of September 23, 2001, as amended by E.O. 13268 of July 2, 2002, E.O. 13284 of January 23, 2003, and E.O. 13886 of September 9, 2019, I hereby determine that the person known as Sami Mahmud Mohammed al-Uraydi (also known as Sami Mahmoud Mohammad Eridi and Abu Mahmud alShami) is a leader of Hurras al-Din, a group whose property and interests in property are currently blocked pursuant to a determination by the Secretary of State pursuant to E.O. 13224. Consistent with the determination in section 10 of E.O. 13224 that prior notice to persons determined to be subject to the order who might have a constitutional presence in the United States would render ineffectual the blocking and other measures authorized in the order because of the ability to transfer funds instantaneously, I determine that no prior notice needs to be provided to any person subject to this determination who might have a constitutional presence in the United States, because to do so would render ineffectual the measures authorized in the order. This notice shall be published in the Federal Register. Authority: E.O. 13224. Dated: February 6, 2023. Antony J. Blinken, Secretary of State. [FR Doc. 2023–08210 Filed 4–18–23; 8:45 am] 24 17 PO 00000 CFR 200.30–3(a)(12). Frm 00112 Fmt 4703 Sfmt 9990 BILLING CODE 4710–AD–P E:\FR\FM\19APN1.SGM 19APN1

Agencies

SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 88, Number 75 (Wednesday, April 19, 2023)]
[Notices]
[Pages 24254-24258]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-08226]



[[Page 24254]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-97296; File No. SR-NYSEAMER-2023-25]


Self-Regulatory Organizations; NYSE American LLC; Notice of 
Filing and Immediate Effectiveness of Proposed Change To Amend Certain 
Standard Rates in the NYSE American Equities Price List and Fee 
Schedule

April 13, 2023.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (the ``Act''),\2\ and Rule 19b-4 thereunder,\3\ notice is hereby 
given that on April 3, 2023, NYSE American LLC (``NYSE American'' or 
the ``Exchange'') filed with the Securities and Exchange Commission 
(the ``Commission'') the proposed rule change as described in Items I 
and II below, which Items have been prepared by the self-regulatory 
organization. The Commission is publishing this notice to solicit 
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend certain Standard Rates in the NYSE 
American Equities Price List and Fee Schedule (``Price List'') for 
transaction fees and credits that add and remove liquidity in 
securities at or above $1. The Exchange proposes to implement the fee 
changes effective April 3, 2023. 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 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to amend certain Standard Rates in its Price 
List for transaction fees and credits that add and remove liquidity in 
securities at or above $1. Specifically, the Exchange proposes to (1) 
lower the Tier 1 fee of $ 0.0026 per share for orders that remove 
liquidity from the Exchange; (2) lower the Tier 2 credit of $0.0024 per 
share for orders adding liquidity that set a new best bid or offer 
(``BBO'') on the Exchange; \4\ (3) increase the Tier 2 fee of $0.0028 
per share for orders removing liquidity; and (4) decrease the Non-Tier 
credits of $0.0020 per share for orders adding displayed liquidity and 
$0.0020 per share for orders adding liquidity that set a new BBO on the 
Exchange.
---------------------------------------------------------------------------

    \4\ See Rule 1.1E(h) (definition of BBO).
---------------------------------------------------------------------------

    The proposed changes respond to the current competitive environment 
where order flow providers have a choice of where to direct liquidity-
providing and liquidity-removing orders by offering further incentives 
for ETP Holders to send additional adding and removing liquidity to the 
Exchange.
    The Exchange proposes to implement the fee changes effective April 
3, 2023.
Competitive Environment
    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.'' \5\
---------------------------------------------------------------------------

    \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'').
---------------------------------------------------------------------------

    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, cash 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 17% market share.\9\ Therefore, no exchange 
possesses significant pricing power in the execution of cash equity 
order flow. More specifically, the Exchange currently has less than 1% 
market share of executed volume of cash equities trading.\10\
---------------------------------------------------------------------------

    \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 https://markets.cboe.com/us/equities/market_share/.
    \10\ See id.
---------------------------------------------------------------------------

    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 the firm routes order flow.
    In response to this competitive environment, the Exchange has 
established incentives for ETP Holders who submit orders that provide 
and remove liquidity on the Exchange. The proposed fee change is 
designed to attract additional order flow to the Exchange by 
incentivizing ETP Holders to send additional adding and removing 
liquidity to the Exchange to qualify for the liquidity adding and 
removing tiers and corresponding higher credits and lower fees, as 
follows.
Proposed Rule Change
    Currently, for transactions in securities priced at or above $1.00, 
other than transactions by eDMMs in assigned securities, the Exchange 
offers the following tiered credits and fees for displayed and non-
displayed orders, including orders setting a new Exchange BBO, that add 
and removed liquidity. The credits and fees are divided into Tier 1, 
Tier 2, and Non-Tier rates.

[[Page 24255]]

Tier 1 Rates
    Currently, ETP Holders that add liquidity to the Exchange with an 
average daily volume (``ADV'') \11\ (``Adding ADV'') of at least 
3,500,000 shares are eligible under Tier 1 for a fee of $0.0026 per 
share for orders removing liquidity. The Exchange proposes to decrease 
the fee to $0.0025 per share.
---------------------------------------------------------------------------

    \11\ As defined in the Fee Schedule, Adding ADV means an ETP 
Holder's average daily volume of shares executed on the Exchange 
that provided liquidity.
---------------------------------------------------------------------------

    The proposed lower fee, together with the increased fee under Tier 
2 for removing liquidity discussed below, seeks to encourage ETP 
Holders that are meeting or exceeding the minimum ADV requirement to 
qualify for Tier 2 rates to send additional liquidity in order to meet 
the higher Tier 1 requirement and therefore qualify for a lower fee.
Tier 2 Rates
    Currently, ETP Holders with an Adding ADV of at least 700,000 
shares are eligible for a credit of $0.0024 per share under Tier 2 for 
orders adding liquidity that set a new BBO on the Exchange. The 
Exchange proposes to decrease the credit to $0.0023 per share.
    The Exchange determined that the current higher credit for setting 
the Exchange BBO did not incentivize setting activity by ETP Holders as 
expected and that lowering it was therefore reasonable. The Exchange 
notes that the proposed lower credit would bring the Tier 2 credit for 
setting the Exchange BBO into line with the current $0.0023 Tier 2 
credit for adding displayed liquidity.
    Similarly, ETP Holders with an Adding ADV of at least 700,000 
shares are eligible for a fee of $0.0028 under Tier 2 for removing 
liquidity orders. The Exchange proposes to increase the current fee to 
$0.0029 per share.
    In addition, as noted above, to seeking to encourage ETP Holders 
that are meeting or exceeding the minimum ADV requirements under Tier 2 
to send additional liquidity to the Exchange, the proposed change would 
be consistent with the applicable rate on other marketplaces. For 
instance, Nasdaq charges a $0.0029 per share fee for removing liquidity 
for members meeting certain requirements; otherwise, its fee for 
removing liquidity is $0.0030 per share.\12\ The Exchange's proposed 
fee increase to $0.0029 for removing liquidity from the Exchange would 
still be competitive with respect to Nasdaq PSX.
---------------------------------------------------------------------------

    \12\ See Nasdaq Pricing at https://www.nasdaqtrader.com/Trader.aspx?id=PriceListTrading2.
---------------------------------------------------------------------------

Non-Tier Rates
    The Exchange's current Non-Tier rates are available to ETP Holders 
that do not qualify for either Tier 1 or Tier 2. Currently, orders 
adding displayed liquidity and orders adding liquidity that set a new 
BBO on the Exchange are both eligible for a Non-Tier credit of $0.0020 
per share. The Exchange proposes to decrease both credits to $0.0016.
    The proposed change would encourage ETP Holders to send additional 
liquidity in order to qualify for the minimum Tier 2 ADV requirements 
and therefore qualify for a higher credit. In addition, the proposed 
change would be consistent with the applicable rate on other 
marketplaces.\13\
---------------------------------------------------------------------------

    \13\ Both Cboe BZX Equities and Cboe EDGX Equities, for 
instance, offer a $0.0016 credit for adding displayed liquidity. See 
https://www.cboe.com/us/equities/membership/fee_schedule/bzx/ & 
https://www.cboe.com/us/equities/membership/fee_schedule/edgx/.
---------------------------------------------------------------------------

    Overall, the proposed fee changes are designed to be available to 
all ETP Holders on the Exchange and is intended to provide ETP Holders 
a greater incentive to direct more orders to the Exchange.
    As noted, the Exchange operates in a competitive environment, 
particularly as it relates to attracting non-marketable orders, which 
add liquidity to the Exchange. The Exchange does not know how much 
order flow ETP Holders choose to route to other exchanges or to off-
exchange venues. The Exchange does not know how many ETP Holders could 
qualify for the proposed credits and fees based on their current 
trading profile on the Exchange and if they choose to direct order flow 
to the Exchange. However, without having a view of ETP Holder's 
activity on other exchanges and off-exchange venues, the Exchange has 
no way of knowing whether this proposed rule change would result in any 
ETP Holder directing more orders to the Exchange.
    The proposed changes are not otherwise intended to address any 
other issues, and the Exchange is not aware of any significant problems 
that market participants would have in complying with the proposed 
changes.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Act,\14\ in general, and furthers the 
objectives of Sections 6(b)(4) and (5) of the Act,\15\ 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, is designed to prevent fraudulent and 
manipulative acts and practices and to promote just and equitable 
principles of trade, and does not unfairly discriminate between 
customers, issuers, brokers or dealers.
---------------------------------------------------------------------------

    \14\ 15 U.S.C. 78f(b).
    \15\ 15 U.S.C. 78f(b)(4) and (5).
---------------------------------------------------------------------------

The Proposed Fee Change Is Reasonable
    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.'' \16\
---------------------------------------------------------------------------

    \16\ See Regulation NMS, supra note 5, 70 FR at 37499.
---------------------------------------------------------------------------

    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 to reduce use of certain categories of 
products, in response to fee changes. ETP Holders can choose from any 
one of the 16 currently operating registered exchanges, and numerous 
off-exchange venues, to route such order flow. Accordingly, competitive 
forces constrain exchange transaction fees that relate to orders on an 
exchange. Stated otherwise, changes to exchange transaction fees can 
have a direct effect on the ability of an exchange to compete for order 
flow.
    In light of the competitive environment in which the Exchange 
currently operates, the proposed rule change is a reasonable attempt to 
increase liquidity on the Exchange and improve the Exchange's market 
share relative to its competitors. The Exchange believes the proposed 
change is also reasonable because it is designed to attract higher 
volumes of orders transacted on the Exchange by ETP Holders, which 
would benefit all market participants by offering greater price 
discovery and an increased opportunity to trade on the Exchange.
    More specifically, the Exchange believes that the proposed lower 
Tier 1 fee, together with the increased Tier 2 fee, for liquidity 
removing orders are

[[Page 24256]]

reasonable. The purpose of these changes, taken together, is to 
encourage additional liquidity on the Exchange because market 
participants benefit from the greater amounts of displayed liquidity 
present on a public exchange. The Exchange believes that the proposed 
fees will incentivize additional liquidity on a public exchange to 
qualify for lower fees for removing liquidity, thereby promoting price 
discovery and transparency and enhancing order execution opportunities 
for ETP Holders. The proposal is thus reasonable because all ETP 
Holders would benefit from such increased levels of liquidity.
    The Exchange believes that the proposed changes to the credits 
available for orders adding liquidity to the Exchange are also 
reasonable.
    The Exchange believes that lowering the Tier 2 credit for setting 
the Exchange BBO is reasonable because the current higher credit did 
not incentivize setting activity by ETP Holders and result in greater 
liquidity as the Exchange had anticipated. The Exchange believes it is 
reasonable to revise credits when such incentives become underutilized. 
In addition, the Exchange believes the proposed credit is reasonable 
because it would bring the credit into line with the current $0.0023 
Tier 2 credit for adding displayed liquidity.
    Finally, the proposed changes to Non-Tier credits for orders adding 
displayed liquidity and orders adding liquidity that set a new Exchange 
BBO are reasonable because the proposed change would encourage ETP 
Holders to increase the liquidity-adding orders they send to the 
Exchange to qualify for higher credits under Tier 2, which would 
support the quality of price discovery on the Exchange and provide 
additional liquidity for incoming orders. The Exchange notes that the 
adding ADV requirement for Tier 2 is 700,000 shares, which the Exchange 
believes is an achievable level for many member organizations, given 
the higher requirements at other marketplaces. For example, the 
requirement for the Cboe BZX Adding Tier 1 adding credit of $0.0020 is 
5,000,000 shares or 0.05% of CADV. The Exchange believes that by 
correlating the level of credits to the level of executed adding volume 
on the Exchange, the Exchange's fee structure would encourage ETP 
Holders to submit more liquidity-providing orders to the Exchange that 
are likely to be executed, thereby increasing the potential for 
incoming marketable orders submitted to the Exchange to receive an 
execution. As noted above, the Exchange operates in a competitive 
environment, particularly as it relates to attracting non-marketable 
orders that add liquidity to the Exchange. In addition, the proposed 
change would be consistent with the applicable rate on other 
marketplaces.\17\
---------------------------------------------------------------------------

    \17\ See note 13, supra.
---------------------------------------------------------------------------

    Because the proposal involves the introduction of new fee and 
credit levels, the Exchange does not know how many more ETP Holders 
could qualify for the new fees and credits based on their current 
trading profile on the Exchange and if they choose to direct order flow 
to the Exchange. As previously noted, without a view of ETP Holder 
activity on other exchanges and off-exchange venues, the Exchange has 
no way of knowing whether the proposed rule change would result in any 
ETP Holder directing additional liquidity to qualify for a better tier, 
and corresponding higher credit, or lower fee. The Exchange believes 
the proposed changes are reasonable as it would provide an incentive 
for ETP Holders to direct their order flow to the Exchange and provide 
meaningful added levels of liquidity in order to qualify for the 
credits, thereby contributing to depth and market quality on the 
Exchange.
The Proposed Change Is an Equitable Allocation of Fees and Credits
    The Exchange believes its proposal equitably allocates its fees and 
credits among its market participants by fostering liquidity provision 
and stability in the marketplace.
    The Exchange believes the proposal equitably allocates fees and 
credits among its market participants because all ETP Holders that 
participate on the Exchange may qualify for the proposed fees and 
credits. The Exchange believes that the proposed changes, taken 
together, will incentivize ETP Holders to send additional liquidity to 
achieve lower fees when removing liquidity from the Exchange, thereby 
increasing the number of orders that are executed on the Exchange, 
promoting price discovery and transparency and enhancing order 
execution opportunities and improving overall liquidity on a public 
exchange. The Exchange also believes that the proposed change is 
equitable because it would apply to all similarly situated ETP Holders 
that add or remove liquidity. The proposed change also is equitable 
because it would be consistent with the applicable rate on other 
marketplaces.\18\
---------------------------------------------------------------------------

    \18\ See notes 12-13, supra.
---------------------------------------------------------------------------

    As previously noted, the Exchange operates in a competitive 
environment, particularly as it relates to attracting orders that add 
liquidity to the Exchange. The Exchange does not know how much order 
flow ETP Holders choose to route to other exchanges or to off-exchange 
venues. Because the proposed introduces new fees and credits, the 
Exchange does not know how many ETP Holders could qualify for the new 
rates based on their current trading profiles on the Exchange and if 
they choose to direct order flow to the Exchange. Without having a view 
of ETP Holder's activity on other exchanges and off-exchange venues, 
the Exchange has no way of knowing whether this proposed rule change 
would result in any ETP Holder directing orders to the Exchange. The 
Exchange anticipates that ETP Holders would endeavor to send more of 
their orders for execution on the Exchange in order to earning higher 
credits and lower fees.
    The Exchange further believes that the proposed change is equitable 
because it is reasonably related to the value to the Exchange's market 
quality associated with higher volume in orders. The Exchange believes 
that the proposed pricing adjustments would attract order flow to the 
Exchange, thereby contributing to price discovery on the Exchange and 
benefiting investors generally.
    The Exchange believes that the proposed rule change is equitable 
because maintaining or increasing the proportion of orders in exchange-
listed securities that are executed on a registered national securities 
exchange (rather than relying on certain available off-exchange 
execution methods) would contribute to investors' confidence in the 
fairness of their transactions and would benefit all investors by 
deepening the Exchange's liquidity pool, supporting the quality of 
price discovery, promoting market transparency, and improving investor 
protection.
    The proposal neither targets nor will it have a disparate impact on 
any particular category of market participant. All ETP Holders would be 
eligible to qualify for the proposed fees and credits. The Exchange 
believes that offering fees for removing liquidity and credits for 
providing liquidity will continue to attract order flow and liquidity 
to the Exchange, thereby providing additional price improvement 
opportunities on the Exchange and benefiting investors generally. As to 
those market participants that do not presently meet the Adding ADV 
requirements to qualify for the Exchange's best prices, the proposal 
would not adversely impact the ability of those ETP Holders to qualify 
for other credits or fees provided by the Exchange

[[Page 24257]]

and in fact would encourage them to increase the orders sent to the 
Exchange in order to qualify for the Exchange's best prices.
The Proposed Fee Change Is Not Unfairly Discriminatory
    The Exchange believes that the proposal is not unfairly 
discriminatory. In the prevailing competitive environment, ETP Holders 
are free to disfavor the Exchange's pricing if they believe that 
alternatives offer them better value. The Exchange believes it is not 
unfairly discriminatory to provide the proposed fees and credits for 
ETP Holders that add or remove liquidity because the proposed fees and 
credits would be provided on an equal basis to all ETP Holders.
    Further, the Exchange believes the proposed fees and credits would 
incentivize ETP Holders to send more orders to the Exchange to qualify 
for the revised fees and credits, thereby promoting price discovery and 
transparency and enhancing order execution opportunities for ETP 
Holders. Since the proposed fees and credits would be new, no ETP 
Holder currently qualifies for them. As noted, without a view of ETP 
Holder activity on other exchanges and off-exchange venues, the 
Exchange has no way of knowing whether this proposed rule change would 
result in any ETP Holders qualifying for the proposed adding tiers. The 
Exchange believes the proposal is reasonable as it would provide an 
incentive for ETP Holders to direct their order flow to the Exchange 
and provide meaningful added levels of liquidity in order to qualify 
for the credits, thereby contributing to depth and market quality on 
the Exchange.
    In addition, the Exchange believes that the proposal is not 
unfairly discriminatory because it neither targets nor will it have a 
disparate impact on any particular category of market participant. All 
ETP Holders would be eligible to qualify for the proposed credits if 
they meet the proposed Adding ADV requirements for each proposed tier. 
The proposal does not permit unfair discrimination because the proposed 
rates would be applied to all similarly situated ETP Holders and other 
market participants, who would all be eligible for the same rates on an 
equal basis. Accordingly, no ETP Holder already operating on the 
Exchange would not be disadvantaged by the proposed allocation of fees 
and credits. The Exchange believes that offering credits for providing 
liquidity will continue to attract order flow and liquidity to the 
Exchange, thereby providing additional price improvement opportunities 
on the Exchange and benefiting investors generally. As to those market 
participants that do not presently qualify for the revised fees and 
credits, the proposal will not adversely impact their ability to 
qualify for other credits provided by the Exchange. Finally, the 
submission of orders is optional for ETP Holders in that they could 
choose whether to submit orders to the Exchange and, if they do, they 
can choose the extent of their activity in this regard. The Exchange 
believes that it is subject to significant competitive forces, as 
described above and 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,\19\ 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. Instead, as discussed above, the Exchange believes 
that the proposed fee 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 ETP Holders. As a result, the Exchange believes that 
the proposed change furthers the Commission's goal in adopting 
Regulation NMS of fostering integrated competition among orders, which 
promotes ``more efficient pricing of individual stocks for all types of 
orders, large and small.'' \20\
---------------------------------------------------------------------------

    \19\ 15 U.S.C. 78f(b)(8).
    \20\ See Securities Exchange Act Release No. 51808, 70 FR 37495, 
37498-99 (June 29, 2005) (S7-10-04) (Final Rule).
---------------------------------------------------------------------------

    Intramarket Competition. The Exchange believes the proposed change 
would not impose any burden on competition that is not necessary or 
appropriate in furtherance of the purposes of the Act. The proposed 
change is designed to attract additional orders to the Exchange. The 
Exchange believes that the proposed changes would incentivize market 
participants to direct orders to the Exchange. Greater overall order 
flow, trading opportunities, and pricing transparency benefit all 
market participants on the Exchange by enhancing market quality and 
continuing to encourage ETP Holders to send orders, thereby 
contributing towards a robust and well-balanced market ecosystem.
    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 currently has less than 1% market share of executed 
volume of equities trading. In such an environment, the Exchange must 
continually adjust its fees and credits 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.
    The Exchange believes that the proposed change could promote 
competition between the Exchange and other execution venues, including 
those that currently offer similar order types and comparable 
transaction pricing, by encouraging additional orders to be sent to the 
Exchange for execution.

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) \21\ of the Act and subparagraph (f)(2) of Rule 
19b-4 \22\ thereunder, because it establishes a due, fee, or other 
charge imposed by the Exchange.
---------------------------------------------------------------------------

    \21\ 15 U.S.C. 78s(b)(3)(A).
    \22\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

    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) \23\ of the Act to determine whether the proposed 
rule

[[Page 24258]]

change should be approved or disapproved.
---------------------------------------------------------------------------

    \23\ 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-NYSEAMER-2023-25 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NYSEAMER-2023-25. 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-NYSEAMER-2023-25, and should be 
submitted on or before May 10, 2023.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\24\
---------------------------------------------------------------------------

    \24\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-08226 Filed 4-18-23; 8:45 am]
BILLING CODE 8011-01-P

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