[Federal Register Volume 87, Number 23 (Thursday, February 3, 2022)]
[Notices]
[Pages 6212-6216]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02181]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-94093; File No. SR-NYSEAMER-2022-08]


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

January 28, 2022.
    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 January 21, 2022, 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, 
II, and III below, which Items have been prepared by the self-
regulatory organization. The Commission is publishing this notice to 
solicit comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend the NYSE American Options Fee 
Schedule (``Fee Schedule'') regarding fees for Professional executions. 
The Exchange proposes to implement the fee change effective January 21, 
2022.\4\ The proposed change is available on the Exchange's website at 
www.nyse.com, at the principal office of the Exchange, and at the 
Commission's Public Reference Room.
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    \4\ The Exchange originally filed to amend the Fee Schedule on 
December 29, 2021 (SR-NYSEAmer-2021-52), with an effective date of 
January 3, 2022, then withdrew such filing and amended the Fee 
Schedule on January 12, 2022 (SR-NYSEAmer-2022-04), which latter 
filing the Exchange withdrew on January 21, 2022.
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II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the self-regulatory organization 
included statements concerning the purpose of, and basis for, the 
proposed rule change and discussed any comments it received on the 
proposed rule change. The text of those statements may be examined at 
the places specified in Item IV below. The Exchange has prepared 
summaries, set forth in sections A, B, and C below, of the most 
significant parts of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and the 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The purpose of this filing is to modify certain fees for Electronic 
executions in the ``Professional'' range.\5\ Specifically, the Exchange 
proposes to modify the fees for Electronic executions in the 
Professional range for all participants, as well as fees for Electronic 
executions for participants that qualify for the Professional Step-Up 
Incentive.\6\ The Exchange further proposes a discounted rate for 
Electronic volume in the Professional range for ATP Holders that 
achieve Tier 3 or higher in the American

[[Page 6213]]

Customer Engagement (``ACE'') Program.\7\
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    \5\ For purposes of this filing, ``Professional'' Electronic 
volume includes: Professional Customer, Broker Dealer, Non-NYSE 
American Options Market Maker, and Firm.
    \6\ See NYSE American Options Fee Schedule, Section I.H., 
available at: https://www.nyse.com/publicdocs/nyse/markets/american-options/NYSE_American_Options_Fee_Schedule.pdf.
    \7\ See id. at Section I.E. (American Customer Engagement 
(``ACE'') Program). The ACE program offers tiered credits based on 
increasing levels of Customer Electronic Average Daily Volume 
(``ADV'') or Total Electronic ADV, of which 20% of the qualifying 
volume for the Tier must be Customer volume. Participants in the ACE 
Program are eligible for per contract credits on Customer volume in 
Electronic options transactions based on the ACE Tier achieved.
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    The Exchange proposes to implement the rule change on January 21, 
2022.
Proposed Rule Change
Professional Transaction Rates
    Currently, Section I.A. of the Fee Schedule (``Rates for Options 
transactions'') provides that the Exchange charges all participants a 
base rate of $0.75 per contract for Electronic executions in the 
Professional range in Non-Penny issues. The Exchange proposes to 
increase the rate per contract for Electronic transactions in Non-Penny 
issues for all participants that execute in the Professional range to 
$0.85 per contract.
    The Exchange also proposes to increase the per contract rate for 
Electronic transactions in Penny issues by Firm participants from $0.47 
to $0.49.
    The Exchange further proposes to add footnote 8 in Section I.A., 
which would provide for an additional discount to ATP Holders that also 
participate in the ACE program. Specifically, ATP Holders that achieve 
at least ACE Tier 3 would qualify for a further discounted rate of 
$0.80 per contract for Electronic transactions in the Professional 
range in Non-Penny issues.\8\
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    \8\ To effect this change, the Exchange also proposes to add 
references to footnote 8 in the ``Participant'' column to specify 
that the rate set forth in footnote 8 would be available to Broker-
Dealer, Firm, Non-NYSE American Options Market Maker, and 
Professional Customer participants. See proposed Fee Schedule, 
Section I.A.
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Professional Step-Up Incentive
    The Professional Step-Up Incentive is a program offering incentives 
to ATP Holders that increase their Electronic volume in the 
Professional range. Currently, the Professional Step-Up Incentive 
program provides that ATP Holders that increase their monthly 
Electronic Professional volume by specified percentages of TCADV over 
their August 2019 volume or, for new ATP Holders, that increase 
Electronic Professional volume by specified percentages of TCADV above 
a base level of 10,000 contracts ADV, will qualify for certain reduced 
transaction rates on Electronic Professional volume, as well as credits 
on Electronic Customer volume at Tier 1 of the ACE program. The 
Professional Step-Up Incentive program offers such incentives at two 
Tiers, based on qualifying volume.
    The Exchange proposes to modify the rates offered under the 
Professional Step-Up Incentive program to increase the per contract 
Non-Penny rates for both Tiers by $0.05 per contract. Specifically, the 
Exchange proposes to increase the rate for Tier A from $0.60 per 
contract to $0.65 per contract, and to increase the rate for Tier B 
from $0.50 per contract to $0.55 per contract.
* * * * *
    The Exchange's fees are constrained by intermarket competition, as 
ATP Holders may direct their order flow to any of the 16 options 
exchanges, including exchanges that charge similar fees for 
Professional transactions and that offer a similar incentive program 
for Professional volume.\9\ Thus, ATP Holders have a choice of where 
they direct their order flow. The Exchange believes that the proposed 
modifications to the base rates applicable to Electronic executions in 
the Professional range (including the additional discount proposed for 
ATP Holders that achieve ACE Tier 3 or better) and to the Professional 
Step-Up Incentive program would not discourage ATP Holders from 
continuing to direct and execute Electronic Professional volume on the 
Exchange. In addition, the proposed change to provide ATP Holders that 
achieve ACE Tier 3 or higher with a lower per contract rate on Non-
Penny Electronic transactions in the Professional range is designed to 
incent ATP Holders to direct such order flow to the Exchange by 
offering a more favorable rate on Professional executions while also 
encouraging increased Customer volume. Moreover, although the proposed 
changes would increase the rates for Electronic executions in the 
Professional range for Non-Penny issues (and, for Firm participants, 
the rates for executions in Penny issues), the modified rates remain 
lower than those charged by competing options exchanges,\10\ and the 
Exchange does not believe that the modified rates would discourage ATP 
Holders from continuing to direct Electronic Professional volume to the 
Exchange, thereby promoting market quality and opportunities for order 
execution for all market participants. In addition, while the Exchange 
likewise proposes increased rates for Non-Penny contracts for 
participants in the Professional Step-Up Incentive program, the 
Exchange believes that the program, as modified, would continue to 
incent ATP Holders to direct both Professional and Customer order flow 
to the Exchange because it would continue to offer discounted rates on 
Professional volume coupled with ACE program Tier 1 credits on Customer 
volume. Thus, the Exchange believes the proposed changes should 
continue to incent the consistent and concerted direction of both 
Professional and Customer order flow to the Exchange by ATP Holders, 
making it a more attractive venue for trading.
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    \9\ See, e.g., Nasdaq MRX, LLC (``Nasdaq MRX'') Options 7 
Pricing Schedule, Section 3. Regular Order Fees and Rebates, 
available at: https://listingcenter.nasdaq.com/rulebook/mrx/rules/MRX%20Options%207 (charging $0.90 maker fee and $1.10 taker fee for 
transactions by NASDAQ MRX Professional Customers in non-penny 
symbols); BOX Exchange (``BOX'') Fee Schedule, Section I.A. Non-
Auction Transactions, available at: https://boxoptions.com/regulatory/fee-schedule/ (providing for $0.95 fee on BOX 
Professional Customer or Broker Dealer transactions with customers); 
Nasdaq ISE, LLC (``Nasdaq ISE'') Options 7 Pricing Schedule, Section 
3. Regular Order Fees and Rebates, available at: https://listingcenter.nasdaq.com/rulebook/ise/rules/ISE%20Options%207 
(providing for $0.70 maker fee and $0.90 taker fee for Professional 
transactions); see also MIAX Options (``MIAX'') Fee Schedule, 
Section 1.a.iv, Professional Rebate Program, available at: https://www.miaxoptions.com/sites/default/files/fee_schedule-files/MIAX_Options_Fee_Schedule_121021.pdf (setting forth incentive 
program that, like the Professional Step-Up Incentive, provides a 
discounted net rate on Professional (as defined by the MIAX program) 
electronic volume, provided the Member achieves certain Professional 
volume increase percentage thresholds in the month relative to the 
fourth quarter of 2015).
    \10\ See Nasdaq MRX Pricing Schedule, BOX Fee Schedule, and 
Nasdaq ISE Fee Schedule, id.
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Act,\11\ in general, and furthers the 
objectives of Sections 6(b)(4) and (5) of the Act,\12\ 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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    \11\ 15 U.S.C. 78f(b).
    \12\ 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

[[Page 6214]]

system ``has been remarkably successful in promoting market competition 
in its broader forms that are most important to investors and listed 
companies.'' \13\
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    \13\ 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.\14\ Therefore, no exchange possesses significant pricing power 
in the execution of multiply-listed equity and ETF options order flow. 
More specifically, in November 2021, the Exchange had less than 8% 
market share of executed volume of multiply-listed equity and ETF 
options trades.\15\
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    \14\ The OCC publishes options and futures volume in a variety 
of formats, including daily and monthly volume by exchange, 
available at: https://www.theocc.com/Market-Data/Market-Data-Reports/Volume-and-Open-Interest/Monthly-Weekly-Volume-Statistics.
    \15\ 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 was 9.09% 
for the month of November 2020 and 7.06% for the month of November 
2021.
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    The Exchange believes that the ever-shifting market share among the 
exchanges from month to month demonstrates that market participants can 
shift order flow, or discontinue or reduce use of certain categories of 
products, in response to fee changes. Accordingly, competitive forces 
constrain options exchange transaction fees. Stated otherwise, changes 
to exchange transaction fees can have a direct effect on the ability of 
an exchange to compete for order flow.
    The Exchange believes that the proposed modifications to the 
Professional transaction fees and to the Firm charge for transactions 
in Penny issues are reasonable because they are within the range of 
fees currently charged by other options exchanges and, in the case of 
the Firm rate, would also more closely align with both the Exchange's 
Penny rates for other executions in the Professional range and the fee 
charged by another options exchange.\16\ Accordingly, the Exchange 
believes that the proposed rates, although they would generally 
increase the rates for Professional Electronic executions, would not 
discourage ATP Holders from continuing to direct Professional volume to 
the Exchange. In addition, to the extent the proposed fees on 
Professional volume are coupled with new or existing incentives that 
are intended to encourage Customer volume (e.g., the proposed 
additional discount available to ATP Holders that achieve ACE Tier 3 or 
higher), the Exchange further believes that the proposed changes are 
reasonably designed to encourage ATP Holders to direct a variety of 
transactions to the Exchange. All market participants stand to benefit 
from such volume--whether Professional or Customer--as such increase 
promotes market depth, facilitates tighter spreads and enhances price 
discovery, and may lead to a corresponding increase in order flow from 
other market participants.
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    \16\ See Nasdaq MRX Pricing Schedule, BOX Fee Schedule, and 
Nasdaq ISE Fee Schedule, supra note 9; see also Fee Schedule, 
Section I.A. (providing for $0.50 per contract rate for Penny issues 
for Broker-Dealer, Non-NYSE American Options Market Maker, and 
Professional Customer participants); Nasdaq Options Market, Options 
7 Pricing Schedule, Section 2 Nasdaq Options Market--Fees and 
Rebates, available at: https://listingcenter.nasdaq.com/rulebook/nasdaq/rules/Nasdaq%20Options%207 (setting forth $0.50 fee for Firms 
to remove liquidity in penny symbols).
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The Proposed Rule Change Is an Equitable Allocation of Credits and Fees
    The Exchange believes the proposed rule change is an equitable 
allocation of its fees and credits. The proposal is based on the amount 
and type of business transacted on the Exchange, and ATP Holders can 
opt to direct their Professional Electronic order flow to the Exchange 
to avail themselves of the rates and incentives offered or not. The 
Exchange also believes that the proposed rate for Firm transactions in 
Penny issues would be an equitable allocation of fees because it would 
bring the rate closer in line with those assessed to other participants 
executing in the Professional range. Moreover, although the proposed 
changes would generally increase the rates for Electronic executions in 
the Professional range, the Exchange believes that they would not 
discourage ATP Holders from continuing to aggregate their executions at 
the Exchange as a primary execution venue, particularly to the extent 
the proposal provides opportunities for ATP Holders to qualify for 
reduced rates by increasing their Customer volume. The Exchange further 
believes that maintaining a higher fee for Professional transactions as 
compared to transactions by Market Makers and Specialists represents an 
equitable allocation of fees because Market Makers and Specialists are 
subject to heightened obligations and additional fees based on their 
roles on the Exchange.
    To the extent that the proposed changes attract more Professional 
Electronic volume or Customer volume to the Exchange, this increased 
order flow would continue to make the Exchange a more competitive venue 
for, among other things, order execution. Thus, the Exchange believes 
the proposed rule changes would improve market quality for all market 
participants on the Exchange and, as a consequence, attract more order 
flow to the Exchange thereby improving market-wide quality and price 
discovery.
The Proposed Rule Change Is Not Unfairly Discriminatory
    The Exchange believes that the proposal is not unfairly 
discriminatory because the proposed modifications would be apply and be 
available to all similarly-situated market participants on an equal and 
non-discriminatory basis.
    The proposed changes are based on the amount and type of business 
transacted on the Exchange and would apply to all ATP Holders that 
execute Professional Electronic transactions to the Exchange. The 
Exchange believes that the disparity between fees for Professional 
Electronic transactions and Electronic transactions by Market Makers or 
Specialists is not unfairly discriminatory because those participants 
are subject to heightened obligations and additional fees based on 
their roles on the Exchange. In addition, ATP Holders that qualify for 
the Professional Step-Up Incentive will still be entitled to a 
discounted rate based on the Tier they achieve. The Exchange also 
believes that increasing the rate for Firm transactions in Penny issues 
would not be unfairly discriminatory because it would bring the rate 
closer in line with those assessed for transactions by other 
participants in the Professional range in Penny issues. In addition, to 
the extent the proposed rates are intended to incent both Professional 
and Customer volume, the Exchange believes they are designed to 
continue to encourage ATP Holders to direct order flow to the Exchange 
and utilize the Exchange as a primary trading venue (if they have not 
done so previously). To the extent that the proposed changes attract 
more executions to the Exchange, this increased order flow would 
continue to make the Exchange a more competitive venue for, among other 
things, order execution. Thus, the Exchange believes the proposed rule 
changes would improve market quality for all market participants on the 
Exchange and, as a consequence, attract more order flow to the Exchange 
thereby improving market-wide quality and price discovery. The 
resulting increased volume and liquidity would provide more trading 
opportunities and tighter spreads to all market participants and

[[Page 6215]]

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.
    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, 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 13, at 37499.
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    Intramarket Competition. The Exchange believes that the proposed 
modifications to the base rates for Professional Electronic 
transactions, as well as to the rates available to ATP Holders that 
qualify for the Professional Step-Up Incentive, would continue to 
incent market participants to direct both Professional and Customer 
volume to the Exchange. Greater liquidity benefits all market 
participants on the Exchange, and increased Electronic Professional 
volume would increase opportunities for execution of other trading 
interest. In addition, the base rates, as modified, would be the same 
for all participants executing Professional Electronic volume in Non-
Penny issues, and the rates for ATP Holders that achieve the 
Professional Step-Up Incentive will continue to be discounted and 
maintain the incentive structure of the two Tiers of that program. In 
addition, while Professional transactions will continue to be subject 
to a higher fee than transactions by Market Makers or Specialists, the 
Exchange does not believe that the proposed change would impose any 
burden on competition that is not necessary or appropriate because the 
lower fees offered to Market Makers or Specialists on their Electronic 
transactions are balanced with heightened obligations and additional 
fees based on their roles on the Exchange.
    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 (including other options exchanges with a similar incentive 
program or comparable transaction fees) \18\ 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.\19\ Therefore, no exchange possesses significant pricing power 
in the execution of multiply-listed equity & ETF options order flow. 
More specifically, in November 2021, the Exchange had less than 8% 
market share of executed volume of multiply-listed equity and ETF 
options trades.\20\
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    \18\ See supra note 9.
    \19\ See supra note 14.
    \20\ See supra note 15.
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    The Exchange believes that the proposed rule change reflects this 
competitive environment because it modifies the Exchange's fees in a 
manner designed to continue to encourage ATP Holders to direct trading 
interest to the Exchange, to provide liquidity and to attract order 
flow, including by continuing to provide discounted rates for ATP 
Holders that achieve the Professional Step-Up Incentive and offering a 
new discounted rate to ATP Holders that execute the requisite Customer 
volume to achieve ACE Tier 3. To the extent that this purpose is 
achieved, all the Exchange's market participants should benefit from 
the improved market quality and increased opportunities for price 
improvement.
    Thus, the Exchange believes that the proposed change could promote 
competition between the Exchange and other execution venues, including 
those that currently offer similar pricing models, 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.
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    \21\ 15 U.S.C. 78s(b)(3)(A).
    \22\ 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) \23\ of the Act to determine whether the proposed 
rule change should be approved or disapproved.
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    \23\ 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 (http://www.sec.gov/rules/sro.shtml); or
    <bullet> Send an email to <a href="/cdn-cgi/l/email-protection#3b494e575e16585456565e554f487b485e58155c544d"><span class="__cf_email__" data-cfemail="9eecebf2fbb3fdf1f3f3fbf0eaeddeedfbfdb0f9f1e8">[email protected]</span></a>. Please include 
File Number SR-NYSEAMER-2022-08 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-2022-08. 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

[[Page 6216]]

internet website (http://www.sec.gov/rules/sro.shtml). Copies of the 
submission, all subsequent amendments, all written statements with 
respect to the proposed rule change that are filed with the Commission, 
and all written communications relating to the proposed rule change 
between the Commission and any person, other than those that may be 
withheld from the public in accordance with the provisions of 5 U.S.C. 
552, will be available for website viewing and printing in the 
Commission's Public Reference Room, 100 F Street NE, Washington, DC 
20549 on official business days between the hours of 10:00 a.m. and 
3:00 p.m. Copies of the filing also will be available for inspection 
and copying at the principal office of the Exchange. All comments 
received will be posted without change. Persons submitting comments are 
cautioned that we do not redact or edit personal identifying 
information from comment submissions. You should submit only 
information that you wish to make available publicly. All submissions 
should refer to File Number SR-NYSEAMER-2022-08, and should be 
submitted on or before February 24, 2022.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\24\
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    \24\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2022-02181 Filed 2-2-22; 8:45 am]
BILLING CODE 8011-01-P


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