[Federal Register Volume 88, Number 177 (Thursday, September 14, 2023)]
[Notices]
[Pages 63165-63169]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-19842]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-98332; File No. SR-NYSEAMER-2023-43]


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

September 8, 2023.
    Pursuant to section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby given 
that, on August 29, 2023, NYSE American LLC (``NYSE American'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``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 modify the NYSE American Options Fee 
Schedule (``Fee Schedule'') to provide for certain temporary fee 
changes in connection with the Exchange's migration to the Pillar 
trading platform. The Exchange proposes to implement the fee changes 
effective August 29, 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 the 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The purpose of this filing to amend the Fee Schedule to provide for 
certain temporary changes in connection with the Exchange's migration 
to a new trading platform known as Pillar. Currently, the Exchange 
conducts options trading on an electronic platform known as ``the 
Exchange System,'' which refers to the Exchange's electronic order 
delivery, execution, and reporting system for designated option issues 
through which orders and quotes of users are consolidated for execution 
and/or display.\4\ On or about October 23, 2023, the Exchange 
anticipates beginning the migration of its options trading to the 
Pillar technology platform.\5\
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    \4\ See NYSE American Rule 900.2NY Definitions.
    \5\ The Exchange has announced that, pending regulatory 
approval, it will begin migrating Exchange-listed options to Pillar 
on October 23, 2023, available here: https://www.nyse.com/trader-update/history#110000530919. See also, e.g., Securities Exchange Act 
Release Nos. 97297 (April 13, 2023), 88 FR 24225 (April 19, 2023) 
(SR-NYSEAMER-2023-16) (Notice of Filing and Immediate Effectiveness 
of Proposed Change to Modify Rule 900.2NY and to Adopt New Rules 
964NYP, 964.1NYP, and 964.2NYP); 97739 (June 15, 2023), 88 FR 40893 
(June 22, 2023) (SR-NYSEAMER-2023-17) (Notice of Filing of Amendment 
No. 1 and Order Granting Accelerated Approval of a Proposed Rule 
Change, as Modified by Amendment No. 1, to Adopt New Exchange Rule 
980NYP and Amend Exchange Rule 935NY); 97869 (July 10, 2023), 88 FR 
45730 (July 17, 2023) (SR-NYSEAMER-2023-34) (Notice of Filing and 
Immediate Effectiveness of Proposed New Rules 900.3NYP, 925.1NYP, 
928NYP, 928.1NYP, and 952NYP and Amendments to Rules 900.3NY, 925NY, 
925.1NY, 928NY, 952NY, 953.1NY, 967NY, 967.1NY, and 985NY); 97938 
(July 18, 2023), 88 FR 47536 (July 24, 2023) (NYSEAMER-2023-35) 
(Notice of Filing and Immediate Effectiveness of Proposed Change for 
New Rule 971.1NYP).

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[[Page 63166]]

    Specifically, the Exchange proposes to (1) provide ATP Holders and 
ATP Firms (collectively, ``ATP Holders'') with certainty regarding 
their eligibility for certain tiers, incentives, and discounts during 
the migration to Pillar; (2) waive Monthly Excessive Bandwidth 
Utilization Fees (``EBUF'') during the migration to Pillar and for a 
six-month period thereafter; and (3) cap certain port fees during the 
migration to Pillar. The Exchange proposes to implement the rule 
changes on August 29, 2023.
Tiers, Incentives, and Discounts
    The Exchange currently offers various volume- and performance-based 
incentives and discounts to encourage ATP Holders to use the Exchange 
as their primary venue for order routing and execution and for market 
making activity. Many of these incentive and discount programs include 
multiple tiers, which are intended to encourage greater participation 
in the programs and to incent ATP Holders to continually grow their 
business on the Exchange in order to qualify for the benefits offered 
in a higher tier.
    In advance of the Exchange's migration to the Pillar platform, the 
Exchange has noted concern among ATP Holders regarding their ability to 
achieve various volume qualifications and thresholds during the 
migration. Specifically, because ATP Holders may choose to moderate 
their order flow and quotation sizes to reduce risk as they familiarize 
themselves with the new trading platform, they may not achieve the 
tier(s), incentive(s), and discount(s) they qualified for pre-
migration. Accordingly, the Exchange believes that providing ATP 
Holders with certainty with respect to certain pricing they would 
receive during the transition to Pillar would provide ATP Holders with 
an opportunity to adjust to new functionality and new order handling 
mechanisms without taking on an additional financial burden.
    To this end, the Exchange proposes to amend Section I of the Fee 
Schedule to provide that, for the month during which the Exchange 
commences its migration to the Pillar platform (the ``Migration 
Month''), ATP Holders will receive the tier(s), incentive(s), and 
discount(s) they achieved in the month prior to the Migration Month or 
the tier(s), incentive(s), and discount(s) achieved during the 
Migration Month, whichever are better. Specifically, the Exchange will 
compare an ATP Holder's performance in each of the programs set forth 
below during the Migration Month and during the month prior (currently 
anticipated to be September 2023) and will bill the ATP Holder for the 
Migration Month at the most favorable rates based on each qualification 
level achieved.\6\
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    \6\ The Exchange notes that its affiliated exchange NYSE Arca 
Options implemented a similar fee change in connection with its 
migration to the Pillar technology platform in 2022. See Securities 
Exchange Act Release No. 94125 (February 1, 2022), 87 FR 6910 
(February 7, 2022) (SR-NYSEArca-2022-05) (providing for continuity 
of OTP Holders' eligibility for certain tiers, incentives, and 
discounts in connection with NYSE Arca Options Pillar migration).
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    The following tiers, incentives, and discount programs would be 
covered by the proposed change: \7\
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    \7\ See Fee Schedule, Sections I.C.; I.E. through I.H.; and I.M.

<bullet> NYSE American Options Market Maker Sliding Scale--Electronic
<bullet> American Customer Engagement (``ACE'') Program
<bullet> QCC Billable Bonus rebate
<bullet> CUBE Auction Fees and Credits
<bullet> Professional Step-Up Incentive
<bullet> BOLD Mechanism Fees & Credits

    The Exchange also proposes the same modification to Section III.E. 
of the Fee Schedule,\8\ which would apply to the Manual Billable Rebate 
Qualification, the QCC Billable Bonus Rebate Qualification, and the 
Floor Broker Manual Billable Incentive Program for Floor Brokers.
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    \8\ See Fee Schedule, Section III.E. ((Floor Broker Incentive 
and Rebate Programs).
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    The Exchange believes that, to the extent ATP Holders choose to 
modify their trading activity during the Migration Month, the proposed 
change would mitigate the impact of potential pricing disruption by 
providing ATP Holders with certainty regarding the tier(s), 
incentive(s), and discount(s) they would be eligible for in the 
Migration Month, which would in turn encourage ATP Holders to continue 
to send orders and quotes to the Exchange during the transition to 
Pillar.
    In addition, by offering ATP Holders the better pricing of the 
month before the Migration Month or the Migration Month, the Exchange 
believes ATP Holders will be incented to take full advantage of new 
Pillar functionality and possibly even increase their volume and 
participation during the migration.
    The Exchange is not proposing any changes to the underlying tiers, 
incentives, or discounts covered by the proposed change described 
above.
Monthly Excessive Bandwidth Utilization Fees
    Section II of the Fee Schedule describes two alternative fees that 
are charged for exceeding the ratio of orders or messages sent to the 
Exchange compared to the number of executions or contracts traded and 
are intended to deter ATP Holders from submitting an excessive number 
of orders that are not executed.\9\
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    \9\ See Fee Schedule, Section II. Monthly Excessive Bandwidth 
Utilization Fees.
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    The Exchange proposes to amend Section II of the Fee Schedule to 
specify that the Monthly Excessive Bandwidth Utilization Fees 
(``EBUF'') assessed to ATP Holders will be waived for the duration of 
the migration and for six months after the completion of the 
migration.\10\ Specifically, the Exchange proposes that the waiver of 
the EBUF take effect for the month during which the migration begins 
and remain in effect for six months following the month in which the 
migration is completed (the ``Waiver Period''). The Exchange believes 
that waiving EBUF during the Waiver Period will give both ATP Holders 
and the Exchange an opportunity to adjust to new functionality and new 
order handling mechanisms without imposing a financial burden on ATP 
Holders based on their order to execution ratios or messages to 
contracts traded ratios during the Pillar transition. In addition, 
during the Waiver Period, the Exchange intends to work closely with ATP 
Holders to monitor traffic rates and their order and message to 
execution ratios as they adapt to trading on the Pillar platform.
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    \10\ The Exchange notes that its affiliated exchange NYSE Arca 
Options adopted a similar cap in connection with its migration to 
the Pillar technology platform in 2022. See Securities Exchange Act 
Release No. 94095 (January 28, 2022), 87 FR 6216 (February 3, 2022) 
(SR-NYSEArca-2022-04) (providing for a temporary waiver of the Ratio 
Threshold Fee in connection with the NYSE Arca Options Pillar 
migration).
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Cap on Port Fees
    The Exchange proposes to adopt a cap on the monthly fees assessed 
for the use of certain ports connecting to the Exchange, which will go 
into effect on the day the Exchange commences its migration to the 
Pillar platform and remain in effect until the end of the month in 
which the migration is completed (the ``Migration Period'').
    Specifically, the Exchange proposes to cap the monthly fees charged 
to an ATP Holder for the use of Order/Quote Entry Ports, Quote Takedown 
Ports, and Drop Copy Ports (collectively, the ``Port Fees'') during the 
Migration Period (the ``Migration Cap''). The Migration Cap will be 
based on the number of ports an ATP Holder is billed for in the month 
preceding the beginning of the Exchange's migration to the Pillar 
platform, except that if an ATP Holder reduces the number of ports used 
during the Migration Period (i.e., incurs Port Fees below the Migration 
Cap), the ATP

[[Page 63167]]

Holder would only be billed for the actual number of ports used.
    Without this proposed rule change, the Fee Schedule provides that 
ATP Holders would be charged for the use of both legacy Exchange System 
platform ports and new Pillar platform ports, which could significantly 
increase costs to ATP Holders during the Migration Period. Thus, the 
proposed Migration Cap is intended to encourage ATP Holders to maintain 
the same levels of interaction with Exchange during the Migration 
Period, as well as promptly migrate to the more efficient Pillar 
technology platform, without incurring additional Port Fees as a result 
of the transition.\11\
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    \11\ The Exchange notes that its affiliated exchange NYSE Arca 
Options adopted a similar fee cap in connection with its migration 
to the Pillar technology platform in 2022. See Securities Exchange 
Act Release No. 94017 (January 20, 2022), 87 FR 4095 (January 26, 
2022) (SR-NYSEArca-2022-03) (providing for a temporary cap on 
monthly fees for use of ports in connection with the NYSE Arca 
Options Pillar migration).
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with section 6(b) of the Act,\12\ in general, and furthers the 
objectives of sections 6(b)(4) and (5) of the Act,\13\ in particular, 
because it provides for the equitable allocation of reasonable dues, 
fees, and other charges among its members, issuers and other persons 
using its facilities and does not unfairly discriminate between 
customers, issuers, brokers or dealers.
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    \12\ 15 U.S.C. 78f(b).
    \13\ 15 U.S.C. 78f(b)(4) and (5).
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The Proposed Rule Change Is Reasonable
    The Exchange operates in a highly competitive market. The 
Commission has repeatedly expressed its preference for competition over 
regulatory intervention in determining prices, products, and services 
in the securities markets. In Regulation NMS, the Commission 
highlighted the importance of market forces in determining prices and 
SRO revenues and, also, recognized that current regulation of the 
market system ``has been remarkably successful in promoting market 
competition in its broader forms that are most important to investors 
and listed companies.'' \14\
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    \14\ See Securities Exchange Act Release No. 51808 (June 9, 
2005), 70 FR 37496, 37499 (June 29, 2005) (S7-10-04) (``Reg NMS 
Adopting Release'').
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    There are currently 16 registered options exchanges competing for 
order flow. Based on publicly-available information, and excluding 
index-based options, no single exchange has more than 16% of the market 
share of executed volume of multiply-listed equity and ETF options 
trades.\15\ Therefore, currently no exchange possesses significant 
pricing power in the execution of multiply-listed equity & ETF options 
order flow. More specifically, in July 2023, the Exchange had less than 
8% market share of executed volume of multiply-listed equity & ETF 
options trades.\16\
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    \15\ The OCC publishes options and futures volume in a variety 
of formats, including daily and monthly volume by exchange, 
available here: https://www.theocc.com/Market-Data/Market-Data-Reports/Volume-and-Open-Interest/Monthly-Weekly-Volume-Statistics.
    \16\ Based on a compilation of OCC data for monthly volume of 
equity-based options and monthly volume of ETF-based options, see 
id., the Exchange's market share in equity-based options decreased 
from 7.26% for the month of July 2022 to 7.09% for the month of July 
2023.
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    The Exchange believes that the ever-shifting market share among the 
exchanges from month to month demonstrates that market participants can 
shift order flow or discontinue or reduce use of certain categories of 
products, in response to fee changes. Accordingly, competitive forces 
constrain options exchange transaction fees.
    The Exchange believes that the proposed change is reasonable 
because it is intended to encourage ATP Holders to maintain active 
participation on the Exchange during the Pillar migration by offering 
ATP Holders pricing at each of the tier(s), incentive(s), and 
discount(s) they qualify for during either the Migration Month or in 
the month prior to the Migration Month, whichever is more favorable to 
the ATP Holder, and to maintain sufficient active connections to the 
Exchange during its migration to Pillar by providing for the Migration 
Cap. Similarly, the Exchange believes that the proposed EBUF waiver is 
reasonable because it is intended to encourage ATP Holders to maintain 
active participation on the Exchange during and after its migration to 
Pillar. The Exchange further believes that the proposed change would 
lessen the impact of the migration on ATP Holders by enabling them to 
adapt their trading activity as needed to transition to Pillar 
functionality during the migration and ensure they have sufficient data 
connections and would thus encourage ATP Holders to promptly transition 
to the more efficient Pillar platform.
    To the extent the proposed rule change encourages ATP Holders to 
migrate to the new platform while maintaining their level of trading 
activity, the Exchange believes the proposed change would sustain the 
Exchange's overall competitiveness and its market quality for all 
market participants. In the backdrop of the competitive environment in 
which the Exchange operates, the proposed rule change is a reasonable 
attempt by the Exchange to mitigate the impact of the migration without 
affecting its competitiveness.
The Proposed Rule Change Is an Equitable Allocation of Credits and Fees
    The Exchange believes the proposed rule change is an equitable 
allocation of its fees and credits because the more favorable tier, 
incentive, and discount eligibility, Migration Cap, and EBUF waiver 
would be available to all ATP Holders. In addition, the proposed change 
relating to tiers, incentives, and discounts is based on each ATP 
Holder's activity levels before and during the Migration Month, just as 
the Migration Cap is based on each ATP Holder's use of ports before and 
during the Pillar migration. Accordingly, all ATP Holders would have 
the opportunity to adapt their trading activity and moderate their 
order flow and use of ports as needed to transition to Pillar 
functionality. Thus, the Exchange believes the proposed rule change 
would facilitate a smooth transition to the Pillar technology platform 
for all market participants on the Exchange by encouraging ATP Holders 
to continue to participate actively on the Exchange during the 
transition period, thereby promoting continued market-wide quality.
The Proposed Rule Change Is not Unfairly Discriminatory
    The Exchange believes the proposed rule change is not unfairly 
discriminatory because it would be available to all similarly-situated 
market participants on an equal and non-discriminatory basis.
    All ATP Holders would be eligible for the more favorable tier(s), 
incentive(s), and discount(s) they achieve in either the Migration 
Month or the preceding month, the Migration Cap, and the EBUF waiver. 
Moreover, the proposed change is based on each ATP Holder's achievement 
of tiers, incentives, and discounts prior to and during the Migration 
Month use of ports. The proposed change would thus allow ATP Holders to 
adjust their interactions with Exchange systems during the migration as 
needed and take advantage of the new functionality offered by Pillar by 
mitigating the impact of potential pricing disruptions. To the extent 
the proposal encourages ATP Holders to maintain or increase their 
current level of activity on the Exchange, such activity would result 
in trading opportunities for all market participants

[[Page 63168]]

and thus would promote just and equitable principles of trade, remove 
impediments to and perfect the mechanism of a free and open market and 
a national market system and, in general, protect investors and the 
public interest.
    Finally, the Exchange believes that it is subject to significant 
competitive forces, as described below in the Exchange's statement 
regarding the burden on competition.

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

    In accordance with section 6(b)(8) of the Act, the Exchange does 
not believe that the proposed rule change would impose any burden on 
competition that is not necessary or appropriate in furtherance of the 
purposes of the Act. Instead, as discussed above, the Exchange believes 
that the proposed changes would encourage the submission of additional 
liquidity to a public exchange, thereby promoting market depth, price 
discovery and transparency and enhancing order execution opportunities 
for all market participants. As a result, the Exchange believes that 
the proposed 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.'' \17\
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    \17\ See Reg NMS Adopting Release, supra note 14, at 37499.
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    Intramarket Competition. The Exchange does not believe the proposed 
rule change would impose any burden on intramarket competition that is 
not necessary or appropriate because it would apply equally to all ATP 
Holders. All ATP Holders would be eligible to receive the rates under 
each of the tier(s), incentive(s), and discount(s) they achieved in the 
Migration Month or in the month prior to the Migration Month, whichever 
are better, and all ATP Holders would be eligible for the Migration Cap 
and EBUF waiver.
    Intermarket Competition. The Exchange operates in a highly 
competitive market in which market participants can readily favor one 
of the 16 competing option exchanges if they deem fee levels at a 
particular venue to be excessive. In such an environment, the Exchange 
must continually adjust its fees to remain competitive with other 
exchanges and to attract order flow to the Exchange. Based on publicly-
available information, and excluding index-based options, no single 
exchange has more than 16% of the market share of executed volume of 
multiply-listed equity and ETF options trades.\18\ Therefore, no 
exchange possesses significant pricing power in the execution of 
multiply-listed equity and ETF options order flow. More specifically, 
in July 2023, the Exchange had less than 8% market share of executed 
volume of multiply-listed equity and ETF options trades.\19\
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    \18\ See note 15, supra.
    \19\ See note 16, supra.
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    The Exchange does not believe the proposed rule change would impose 
any burden on intermarket competition that is not necessary or 
appropriate because the Exchange operates in a highly competitive 
market in which market participants can readily choose to send their 
orders to other exchanges if they deem fee levels at those other venues 
to be more favorable. The Exchange believes that its fees are 
constrained by the robust competition for order flow among exchanges 
and thus believes that the proposed change is reasonably designed to 
encourage ATP Holders to transition to the Pillar platform while 
mitigating the risk of a significant change to the fees they would be 
subject to during the migration. Accordingly, the Exchange believes 
that the proposed change would continue to make the Exchange a 
competitive venue for order execution by enabling ATP Holders to 
maintain their current levels of interaction with the Exchange (or make 
adjustments as needed) during the migration, thus encouraging prompt 
migration to the newer, more efficient Pillar technology platform and 
sustained activity on the Exchange during the Pillar transition.

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) \20\ of the Act and subparagraph (f)(2) of Rule 
19b-4 \21\ thereunder, because it establishes a due, fee, or other 
charge imposed by the Exchange.
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    \20\ 15 U.S.C. 78s(b)(3)(A).
    \21\ 17 CFR 240.19b-4(f)(2).
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    At any time within 60 days of the filing of such proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is necessary or 
appropriate in the public interest, for the protection of investors, or 
otherwise in furtherance of the purposes of the Act. If the Commission 
takes such action, the Commission shall institute proceedings under 
section 19(b)(2)(B) \22\ of the Act to determine whether the proposed 
rule change should be approved or disapproved.
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    \22\ 15 U.S.C. 78s(b)(2)(B).
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IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

    <bullet> Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
    <bullet> Send an email to <a href="/cdn-cgi/l/email-protection#ea989f868fc7898587878f849e99aa998f89c48d859c"><span class="__cf_email__" data-cfemail="3e4c4b525b135d5153535b504a4d7e4d5b5d10595148">[email protected]</span></a>. Please include 
file number SR-NYSEAMER-2023-43 on the subject line.

Paper Comments

    <bullet> 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-2023-43. This 
file number should be included on the subject line if email is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's internet website (https://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for website viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE, 
Washington, DC 20549 on official business days between the hours of 10 
a.m. and 3 p.m. Copies of the filing also will be available for 
inspection and copying at the principal office of the Exchange. Do not 
include personal identifiable information in submissions; you should 
submit only information that you wish to make available

[[Page 63169]]

publicly. We may redact in part or withhold entirely from publication 
submitted material that is obscene or subject to copyright protection. 
All submissions should refer to file number SR-NYSEAMER-2023-43 and 
should be submitted on or before October 5, 2023.
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    \23\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\23\
Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-19842 Filed 9-13-23; 8:45 am]
BILLING CODE 8011-01-P


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