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52 Id. 

53 17 CFR 200.30–3(a)(12). 

1 15 U.S.C. 78s(b)(1). 

2 15 U.S.C. 78a. 

3 17 CFR 240.19b–4. 

4See Securities and Exchange Act Release No. 

87978 (January 15, 2020), 85 FR 3727 (January 22, 

2020) (SR–NYSEArca–2020–03). 

5The term ‘‘Lead Market Maker’’ is defined in 

Rule 1.1(w) to mean a registered Market Maker that 

is the exclusive Designated Market Maker in listings 

for which the Exchange is the primary market. 

6Pursuant to Rule 7.23–E(a)(1), all registered 

Market Makers, including LMMs, have an 

obligation to maintain continuous, two-sided 

trading interest in those securities in which the 

Market Marker is registered to trade. In addition, 

pursuant to Rule 7.24–E(b), LMMs are held to 

higher performance standards in the securities in 

which they are registered as LMM. LMMs can earn 

additional financial incentives for meeting the 

higher performance standards specified from time 

to time in the Fee Schedule. Only one LMM can be 

registered in a NYSE-Arca listed security, but that 

security can have an unlimited number of registered 

Market Makers. Market Makers can also be 

registered in securities that trade on an unlisted 

trading privileges basis on the Exchange. 

7The Exchange originally filed to amend the Fee 

Schedule on May 3, 2021 (SR–NYSEArca–2021–33). 

SR–NYSEArca–2021–33 was subsequently 

withdrawn and replaced by this filing. 

8See 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’’). 

9See Securities Exchange Act Release No. 61358, 

75 FR 3594, 3597 (January 21, 2010) (File No. S7– 

02–10) (Concept Release on Equity Market 

Structure). 

VI. Conclusion 

It is therefore ordered, pursuant to 

Section 19(b)(2) of the Act,52 that the 

proposed rule change (SR–NASDAQ– 

2021–009), as modified by Amendment 

No. 1, be, and hereby is, approved on an 

accelerated basis. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.53

J. Matthew DeLesDernier, 

Assistant Secretary. 

[FR Doc. 2021–11693 Filed 6–2–21; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–92053; File No. SR– 

NYSEArca–2021–43] 

Self-Regulatory Organizations; NYSE 

Arca, Inc.; Notice of Filing and 

Immediate Effectiveness of Proposed 

Rule Change Amending the NYSE Arca 

Equities Fees and Charges 

May 27, 2021. 

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 May 14, 

2021, NYSE Arca, Inc. (‘‘NYSE Arca’’ or 

the ‘‘Exchange’’) filed with the 

Securities and Exchange Commission 

(the ‘‘Commission’’) the proposed rule 

change as described in Items I, II, and 

III below, which Items have been 

prepared by the self-regulatory 

organization. The Commission is 

publishing this notice to solicit 

comments on the proposed rule change 

from interested persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange proposes to amend the 

NYSE Arca Equities Fees and Charges 

(‘‘Fee Schedule’’) to replace the monthly 

rebate tied to the performance in the 

opening and closing auctions in NYSE 

Arca-listed Securities and the ETF 

Incentive Program for NYSE Arca-listed 

Securities with a new pricing incentive 

for Lead Market Makers and ETP 

Holders registered as Market Makers. 

The Exchange proposes to implement 

the fee changes effective May 14, 2021. 

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 Exchange proposes to amend the 

Fee Schedule to replace the monthly 

rebate tied to the performance in the 

opening and closing auctions in NYSE 

Arca-listed Securities and the ETF 

Incentive Program for NYSE Arca-listed 

Securities 4 with a new pricing incentive 

that is tied to meeting enhanced market 

quality metrics. The Exchange now 

proposes to provide financial incentives 

for Lead Market Makers (‘‘LMMs’’) 5 that 

are based on whether the LMM meets 

certain Performance Metrics (as 

described below). Specifically, the 

Exchange would provide incremental 

credits to LMMs based on how many 

Performance Metrics an LMM meets in 

each NYSE Arca-listed Security. The 

Exchange also proposes to make the 

additional credits available for ETP 

Holders registered as Market Maker 

(‘‘Market Makers’’).6 The Exchange 

believes that the proposed rule change 

would encourage LMMs and Market 

Makers to maintain better market 

quality in NYSE Arca-listed Securities 

in which they are registered, including 

in lower volume securities. 

The Exchange notes that its listing 

business operates in a highly 

competitive market in which market 

participants, including issuers of 

securities, LMMs, and other liquidity 

providers, can readily transfer their 

listings, or direct order flow to 

competing venues if they deem fee 

levels, liquidity provision incentive 

programs, or other factors at a particular 

venue to be insufficient or excessive. 

The proposed rule change reflects the 

current competitive pricing 

environment and is designed to 

incentivize market participants to 

participate as LMMs or Market Makers, 

and thereby, further enhance the market 

quality on all securities listed on the 

Exchange and encourage issuers to list 

new products on the Exchange. 

The Exchange proposes to implement 

the fee changes effective May 14, 2021.7

Background 

As noted above, 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.’’ 8

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.’’ 9 Indeed, equity trading is 

currently dispersed across 16 


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10See 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. 11See 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. 12See Cboe Global Markets U.S. Equities Market 

Volume Summary, available at http://

markets.cboe.com/us/equities/market_share/. 

13See id. 

14With respect to equities traded on the 

Exchange, the term ‘‘Official Closing Price’’ means 

the reference price to determine the closing price 

in a security. See NYSE Arca Rule 1.1(ll). NYSE 

Arca Rule 1.1(ll) describes how the Official Closing 

Price is determined. 

15The term ‘‘Auction Reference Price’’ is defined 

in NYSE Arca Rule 7.35–E(a)(8)(A). NYSE Arca 

Rule 7.35–E(a)(8)(A) describes how the Auction 

Reference Price is determined. 

16With respect to equities traded on the 

Exchange, the term ‘‘Core Trading Hours’’ means 

the hours of 9:30 a.m. Eastern Time through 4:00 

p.m. (Eastern Time) or such other hours as may be 

determined by the Exchange from time to time. See 

NYSE Arca Rule 1.1(j). 

17The ‘‘Arca Only Order’’ has been renamed as 

the ‘‘Non-Routable Limit Order.’’ See Securities 

Exchange Act Release No. 83967 (August 28, 2018), 

83 FR 44984 (September 4, 2018) (SR–NYSEArca2018–61). Accordingly, the proposed new 

presentation would utilize the new name ‘‘NonRoutable Limit Orders’’ instead of ‘‘Arca Only 

Orders.’’ 

exchanges,10 numerous alternative 

trading systems,11 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.12 Therefore, no 

exchange possesses significant pricing 

power in the execution of equity order 

flow. More specifically, the Exchange 

currently has less than 10% market 

share of executed volume of equities 

trading.13

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 a firm routes 

order flow. With respect to nonmarketable order flow that would 

provide liquidity on an Exchange 

against which market makers can quote, 

ETP Holders can choose from any one 

of the 16 currently operating registered 

exchanges to route such order flow. 

Accordingly, competitive forces 

constrain exchange transaction fees that 

relate to orders that would provide 

liquidity on an exchange. 

Proposed Rule Change 

With this proposed rule change, the 

Exchange proposes to reorganize certain 

existing fees and credits and introduce 

new pricing that is tied to market 

quality metrics provided by LMMs and 

Market Makers on an ETP basis. In 

doing so, the Exchange proposes four 

new sections that would be applicable 

to LMM Transaction Fees and Credits. 

The proposed four sections, discussed 

below, would be: 

• Section I. Definitions for purposes 

of LMM Transaction Fees and Credits 

• Section II. LMM Base Fees and 

Credits per Share 

• Section III. LMM Performance 

Metrics-based Incremental Base Credit 

Adjustments 

• Section IV. Additional Tape B 

Credits for LMMs and Market Makers 

Section I. Definitions for purposes of 

LMM Transaction Fees and Credits 

In connection with the proposed rule 

change, the Exchange would add new 

Section I titled ‘‘Definitions for 

purposes of LMM Transaction Fees and 

Credits’’ that would set forth the 

following nine definitions: 

1. ‘‘CADV’’ would mean the 

consolidated average daily volume in a 

security in the prior month. 

2. ‘‘ETP’’ would mean Exchange 

Traded Products listed on NYSE Arca. 

3. ‘‘ETP Price’’ would mean the 

average Official Closing Price 14 in that 

ETP in the prior month. 

4. ‘‘Less Active ETPs’’ would mean 

ETPs that have a CADV in the prior 

calendar quarter that is the greater of 

either less than 100,000 shares or less 

than 0.013% of Consolidated Tape B 

ADV. 

5. ‘‘Leveraged ETP’’ would mean an 

ETP that tracks an underlying index by 

a ratio other than on a one-to-one basis. 

6. ‘‘Maximum LMM Spread’’ would 

mean time-weighted average LMM 

spread (LMM Offer minus LMM Bid) 

divided by the average of the LMM Bid 

and LMM Offer, in basis points. 

7. ‘‘Minimum LMM Shares within 1% 

of NBBO’’ would mean the average 

number of LMM shares quoted 

throughout the trading day that are 

within 1% of the National Best Bid and 

Best Offer divided by two. 

8. ‘‘Minimum LMM Shares at the Core 

Open Auction within 1.5% of the 

Auction Reference Price’’ would mean 

the average of LMM buy shares and 

LMM sell shares for Limit Orders 

quoted within 1.5% of the Auction 

Reference Price 15 divided by two. 

9. ‘‘Minimum LMM Shares at the 

Closing Auction within 1% of the 

NBBO’’ would mean the average 

number of LMM buy shares and LMM 

sell shares for Limit Orders quoted 

within 1% of the National Best Bid and 

Best Offer before the end of Core 

Trading Hours 16 divided by two. 

The Exchange proposes these 

definitions to use consistent terms 

throughout this section of the Fee 

Schedule relating to LMMs. 

Section II. LMM Base Fees and Credits 

per Share 

The Exchange proposes to add new 

Section II titled ‘‘LMM Base Fees and 

Credits per Share.’’ The Exchange notes 

that the fees and credits in proposed 

Section II are current fees and credits. 

The Exchange proposes a nonsubstantive change to reorganize these 

current fees and credits in a table format 

without any change to the level of the 

fees and credits. 

Specifically, the Exchange currently 

charges LMMs a base fee of $0.0029 per 

share for orders that remove liquidity 

and provides the following base credits: 

• $0.0033 per share for orders that 

provide liquidity in securities for which 

the LMM is registered as the LMM and 

which have a CADV in the previous 

month greater than 3,000,000 shares; 

• $0.0040 per share for orders that 

provide liquidity in securities for which 

the LMM is registered as the LMM and 

which have a CADV in the previous 

month of between 1,000,000 and 

3,000,000 shares; and 

• $0.0045 per share for orders that 

provide liquidity in securities for which 

the LMM is registered as the LMM and 

which have a CADV in the previous 

month of less than 1,000,000 shares. 

Additionally, LMMs are provided a 

credit of $0.0030 per share for orders 

that provide undisplayed liquidity in 

Arca Only Orders 17 in securities for 

which the LMM is registered as the 

LMM, and a credit of $0.0015 per share 

for Non-Displayed Limit Orders that 

provide liquidity in securities for which 

the LMM is registered as the LMM. The 

Exchange also does not charge LMMs a 

fee for orders executed in the Closing 

Auction. 

The Exchange proposes to reorganize 

the presentation of the Fee Schedule in 

order to enhance its clarity and 

transparency, thereby making the Fee 

Schedule easier to navigate. With 

respect the current LMM fees and 

credits discussed above, the Exchange 

proposes a horizontal presentation in a 

table rather than the current vertical 

presentation. The proposed changes 

described above would be included in 

the new presentation under proposed 


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Section II titled LMM Base Fees and 

Credits per Share, without any 

substantive change to the rate or the 

requirement to qualify for these existing 

fees and credits. The proposed changes 

would appear as follows in the Fee 

Schedule: 

ETP CADV Credit for adding 

liquidity 

Fee for removing 

liquidity 

Credit for adding 

non-displayed limit 

orders 

Credit for adding 

undisplayed liquidity 

in non-routable limit 

orders 

Fee for orders 

in the closing 

auction 

<1,000,000 ............................................... ($0.0045) $0.0029 ($0.0015) ($0.0030) No Fee. 

1,000,000 to 3,000,000 ........................... ($0.0040) .............................. .............................. ..................................

>3,000,000 ............................................... ($0.0033) .............................. .............................. ..................................

Section III. LMM Performance MetricsBased Incremental Base Credit 

Adjustments 

The Exchange proposes to adopt 

market quality metrics that LMMs 

would be required to meet to qualify for 

incremental credits. Proposed Section 

III titled ‘‘LMM Performance Metricsbased Incremental Base Credit 

Adjustments’’ would provide a table of 

Performance Metrics that LMMs would 

be required to meet to qualify for certain 

incremental credits. LMMs that meet the 

Performance Metrics would be entitled 

to enhanced credits based on the quality 

of the market provided by an LMM in 

an ETP assigned to the LMM. 

The Exchange proposes to adopt the 

following four Performance Metrics that 

LMMs would be measured by: 

1. Maximum LMM Spread. Maximum 

LMM Spread means time-weighted 

average LMM spread (LMM Offer minus 

LMM Bid) divided by the average of the 

LMM Bid and LMM Offer, in basis 

points; 

2. Minimum LMM Shares within 1% 

of NBBO. Minimum LMM Shares within 

1% of NBBO means the average number 

of LMM shares quoted throughout the 

trading day that are within 1% of the 

National Best Bid and Best Offer 

divided by two; 

3. Minimum LMM Shares in Core 

Open Auction within 1.5% of Auction 

Reference Price. Minimum LMM Shares 

at the Core Open Auction within 1.5% 

of the Auction Reference Price means 

the average of LMM buy shares and 

LMM sell shares for Limit Orders 

quoted within 1.5% of the Auction 

Reference Price divided by two; and 

4. Minimum LMM Shares at the 

Closing Auction within 1% of the 

NBBO. Minimum LMM Shares at the 

Closing Auction within 1% of the NBBO 

means the average number of LMM buy 

shares and LMM sell shares for Limit 

Orders quoted within 1% of the 

National Best Bid and Best Offer before 

the end of Core Trading Hours divided 

by two. 

As proposed, each ETP would be 

grouped based on its prior month CADV 

and its price. An LMM would be 

considered to have met a Performance 

Metric in an ETP assigned to the LMM 

in a billing month if it meets the 

following: 

MONTHLY AVERAGE LMM PERFORMANCE METRICS

ETP CADV ETP price 

Maximum 

LMM spread 

(bps) 

Minimum LMM 

shares within 

1% of national 

BBO 

Minimum LMM 

shares in core 

open auction 

within 1.5% of 

auction 

reference price 

Minimum LMM 

shares at the 

closing auction 

within 1% of 

the national 

BBO 

>1,000,000 ........................................ >$50 ................................................. 55 6,000 4,000 12,250 

$25–$50 ........................................... 45 20,000 8,500 14,250 

Under $25 ........................................ 40 42,000 22,000 30,000 

100,001–1,000,000 ........................... >$50 ................................................. 35 2,500 2,500 3,250 

$25–$50 ........................................... 35 3,500 4,000 4,750 

Under $25 ........................................ 65 10,000 5,750 7,250 

10,000–100,000 ................................ >$50 ................................................. 40 2,200 2,000 2,250 

$25–$50 ........................................... 55 2,400 2,050 2,500 

Under $25 ........................................ 70 4,000 2,200 4,500 

Under 10,000 .................................... >$50 ................................................. 50 2,000 1,750 2,000 

$25–$50 ........................................... 60 3,000 1,800 3,000 

Under $25 ........................................ 75 3,000 1,800 3,000 

Under the proposal, the base credit 

earned by an LMM for Adding 

Displayed Liquidity (as provided in 

Section II above) in an assigned ETP 

would be adjusted based on the number 

of Performance Metrics met by the LMM 

in the billing month for each assigned 

ETP, as follows: 

Numbers of 

performance 

metrics met 

Incremental 

base credit 

adjustment 

per ETP 

Incremental 

base credit 

adjustment 

per leveraged 

ETP 

4 .................... ($0.0001) ($0.0001) 

3 .................... (0.00005) (0.00005) 

2 .................... 0.0000 0.0000 

1 .................... 0.0001 0.0000 

0 .................... 0.0002 0.0000 

The Performance Metrics illustrated 

above would apply to all ETPs, 

including Leveraged ETPs. However, for 

Leveraged ETPs, there would be no 

adjustment to the base credit payable to 

the LMM if the LMM meets 1 or 2 

Performance Metrics or if the LMM does 

not meet any Performance Metrics. 

LMMs that are registered as the LMM in 

a Leveraged ETF would be able to earn 

an incremental credit of $0.00005 per 

share if the LMM meets 3 of the 4 

Performance Metrics, or earn an 

incremental credit of $0.0001 per share 


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18Under proposed Section II. LMM Base Fees and 

Credits per Share, ETPs that have a CADV of less 

than 1,000,000 shares receive $0.0045 per share 

credit for adding displayed liquidity. 

19The number of Less Active ETPs for the billing 

month is based on the number of Less Active ETPs 

in which an LMM is registered as the LMM on the 

average of the first and last business day of the 

previous month. 

if the LMM meets all 4 Performance 

Metrics. 

The following example illustrates 

how a LMM can earn an incremental 

credit by meeting the Performance 

Metrics. Assume an LMM is registered 

in an ETP that has a CADV of 500,000 

shares and a price of $30, both in the 

prior month. That LMM would 

currently be eligible for a base credit for 

adding of $0.0045 per share.18 Given the 

profile of the ETP, i.e., CADV of 500,000 

shares and a price of $30, the LMM 

would have to meet the following 

Performance Metrics to earn an 

incremental credit (as illustrated in the 

Performance Metrics table above): 

• Maximum LMM Spread (‘‘Spread’’): 

35 basis points (‘‘bps’’) 

• Minimum LMM Shares within 1% of 

Last Bid and Offer (‘‘Depth’’): 3,500 

shares 

• Minimum LMM Shares at the Core 

Open Auction within 1.5% of the 

Auction Reference Price (‘‘Open 

Depth’’): 4,000 shares 

• Minimum LMM Shares at the Closing 

Auction within 1% of the Last Bid & 

Offer (‘‘Closing Depth’’): 4,750 shares 

Assume in the billing month, the 

LMM in this ETP had a Spread of 30 

bps, Depth of 3,000 shares, Open Depth 

of 4,500 shares, and Closing Depth of 

5,000 shares. The LMM in this example 

met 3 of the 4 Performance Metrics 

(Spread, Open Depth, and Closing 

Depth) but did not meet Depth. As a 

result, the LMM has qualified to earn an 

incremental credit of $0.00005 per 

share, for a combined credit per share of 

$0.00455. 

The following example illustrates 

how a LMM registered as a LMM in a 

Leveraged ETP can earn an incremental 

credit. Assume the same LMM as in the 

example above was registered in a 

second ETP that is a Leveraged ETP that 

also has a CADV of 500,000 shares and 

a price of $30, both in the prior month. 

The LMM would currently be eligible 

for a base credit for adding of $0.0045 

per share. In this example, the profile of 

the Leveraged ETP is the same as in the 

non-Leveraged ETP in the example 

above. 

Assume in the billing month, the 

LMM in the Leveraged ETP had a 

Spread of 25 bps, Depth of 3,000 shares, 

Open Depth of 2,000 shares, and Closing 

Depth of 2,500 shares. The LMM in this 

example has met just 1 of the 4 

Performance Metrics and therefore, 

would not earn any incremental credit. 

Since the credit payable to a LMM in a 

Leveraged ETP would not be adjusted if 

the LMM meets only 1 or 2 Metrics, or 

does not meet any Performance Metrics, 

the LMM in this example would 

continue to receive the base credit of 

$0.0045 per share. If the LMM had met 

at least 3 of the 4 Performance Metrics 

in the Leveraged ETP, the LMM would 

have qualified for an incremental credit 

of $0.00005 per share, for a combined 

credit of $0.00455 per share. And if the 

LMM had met all 4 Performance Metrics 

in the Leveraged ETP, the LMM would 

have qualified for an incremental credit 

of $0.0001 per share, for a combined 

credit of $0.0046 per share. 

Section IV. Additional Tape B Credits 

for LMMs and Market Makers 

The Exchange proposes to add new 

Section IV titled ‘‘Additional Tape B 

Credits for LMMs and Market Makers.’’ 

The Exchange notes that the additional 

credits in proposed Section IV for 

LMMs are current; the Exchange is not 

proposing any new additional credits 

for LMMs under Section IV with this 

proposed rule change. 

As more fully described below, the 

Exchange proposes a non-substantive 

change to reorganize the presentation of 

the credits under proposed Section IV. 

The Exchange also proposes two 

changes with respect to the Section IV 

credits. First, the Exchange proposes 

that to qualify for the additional credits 

available under Section IV, LMMs 

would be required to meet at least two 

Performance Metrics per Less Active 

ETP assigned to the LMM. Second, the 

Exchange proposes to make additional 

credits available to Market Makers who 

meet the specified Performance Metrics. 

Non-Substantive Change 

The Exchange currently provides 

LMMs, and ETP Holders affiliated with 

such LMM, incremental credits for 

orders in Tape B Securities that provide 

displayed liquidity in securities for 

which they are registered as the LMM 

and in securities for which they are not 

registered as an LMM based on the 

number of securities that have a CADV 

in the prior calendar quarter of less than 

100,000 shares, or 0.013% of 

Consolidated Tape B ADV, whichever is 

greater (‘‘Less Active ETPs’’).19

These additional credits are as 

follows: 

• An additional credit of $0.0004 per 

share if an LMM is registered as the 

LMM in at least 400 Less Active ETPs 

or at least 300 Less Active ETPs if the 

LMM and ETP Holders and Market 

Makers affiliated with such LMM add 

liquidity in all securities of at least 

1.00% of US CADV. This credit would 

appear in the proposed Less Active table 

under proposed Section IV as Tier 1 

without any substantive change to the 

amount of the credit. 

• An additional credit of $0.0003 per 

share if an LMM is registered as the 

LMM in at least 200 but less than 400 

Less Active ETPs or in at least 200 but 

less than 300 Less Active ETPs if the 

LMM and ETP Holders and Market 

Makers affiliated with such LMM add 

liquidity in all securities of at least 

1.00% of US CADV. This credit would 

appear in the proposed Less Active table 

under proposed Section IV as Tier 2 

without any substantive change to the 

amount of the credit. 

• An additional credit of $0.0002 per 

share if an LMM is registered as the 

LMM in at least 100 but less than 200 

Less Active ETPs. This credit would 

appear in the proposed Less Active table 

under proposed Section IV as Tier 3 

without any substantive change to the 

amount of the credit. 

• An additional credit of $0.0001 per 

share if an LMM is registered as the 

LMM in at least 75 but less than 100 

Less Active ETPs. This credit would 

appear in the proposed Less Active table 

under proposed Section IV as Tier 4 

without any substantive change to the 

amount of the credit. 

• An additional credit of $0.00005 

per share if an LMM is registered as the 

LMM in at least 50 but less than 75 Less 

Active ETPs. This credit would appear 

in the proposed Less Active table under 

proposed Section IV as Tier 5 without 

any substantive change to the amount of 

the credit. 

As noted above, the Exchange 

proposes to reorganize the presentation 

of the incremental credits described 

above in a table rather than the current 

vertical presentation in order to enhance 

its clarity and transparency. 

Performance Metrics-Based Tape B 

Credits 

As noted above, the Exchange 

currently provides tier-based 

incremental credits to LMMs and to ETP 

Holders affiliated with the LMM that 

provide displayed liquidity in Tape B 

securities. A LMM can earn anywhere 

between $0.00005 per share to $0.0004 

per share of incremental credits 

depending on the number of Less Active 

ETP Securities in which an LMM is 

registered as the LMM. 

As proposed, LMMs would be able to 

earn an additional credit on all Tape B 

Securities if the LMM meets at least two 

Performance Metrics in each of the Less 


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Active ETPs in which they are 

registered as the LMM. 

The number of Less Active ETPs for 

a billing month would be calculated as 

the average number of Less Active ETPs 

in which an LMM is registered on the 

first and last business day of the 

previous month. 

To determine which Less Active ETP 

Tier would apply to an LMM, the 

Exchange would count the number of 

Less Active ETPs assigned to that LMM, 

as follows: 

Each Less Active ETP in which an 

LMM is registered and meets at least 

two Performance Metrics would count 

as one Less Active ETP. Each Less 

Active ETP that is a Leveraged ETP in 

which an LMM is registered would 

count as one Less Active ETP regardless 

of the number of Performance Metrics 

met. 

The Exchange also proposes that 

Market Makers would be eligible to earn 

this additional credit on all Tape B 

securities if: 

• The Market Maker notifies the 

Exchange on or before the first trading 

day that the additional credit is 

available in a calendar month of which 

new Less Active ETPs for which the 

Marker Maker is registered that it would 

be seeking to count towards or remove 

from qualifying for this additional credit 

in that month. 

• The Market Maker cannot also be 

the registered LMM in a Less Active 

ETP that it is seeking to count to qualify 

for the additional credit as a Market 

Maker. 

• Every two Less Active ETPs that a 

Market Maker identifies and meets at 

least two Performance Metrics will 

count as one Less Active ETP for 

purposes of determining the applicable 

additional credit. 

• If an ETP Holder is both an LMM 

and a Market Maker in Less Active ETPs 

and has notified the Exchange of Less 

Active ETPs that it seeking to count for 

the additional credit as a Market Maker, 

the number of Less Active ETPs 

calculated for the Market Maker above 

will be combined with the number of 

Less Active ETPs in which the LMM is 

registered. 

The Exchange believes that offering 

this incentive program to Market Makers 

would promote the additional display of 

liquidity in Less Active ETPs that list 

and trade on the Exchange. The 

Exchange notes that Market Makers 

would need to meet Performance 

Metrics in more Less Active ETPs than 

the assigned LMMs in order to achieve 

the same level of additional credit. 

The changes described above would 

be included under proposed new 

Section IV and would appear as follows 

on the Fee Schedule: 

Less active ETP tiers Number of less active ETPs per LMM/Market Maker 

Additional 

credit on all 

Tape B 

Securities 

Tier 5 ......................................................... 50–74 ETPs ................................................................................................................. ($0.00005) 

Tier 4 ......................................................... 75–99 ETPs ................................................................................................................. (0.0001) 

Tier 3 ......................................................... 100–199 ETPs ............................................................................................................. (0.0002) 

Tier 2 ......................................................... 200–399 ETPs, or 200–299 ETPs if the LMM or Market Maker and its affiliates add 

liquidity of at least 1.00% of US CADV.

(0.0003) 

Tier 1 ......................................................... At Least 400 ETPs, or at least 300 ETPs if the LMM or Market Maker and its affiliates add liquidity of at least 1.00% of US CADV.(0.0004) 

The following example illustrates the 

applicability of the expanded eligibility 

of additional Tape B credits to LMMs 

and Market Makers that meet a certain 

number of Performance Metrics. 

Assume a LMM is registered in 120 

Less Active ETPs. Currently, that LMM 

would qualify for an additional credit of 

$0.0002 per share for adding liquidity in 

all Tape B Securities under the Less 

Active ETP Tier 3 in the table above. 

Assume further that of those 120 Less 

Active ETPs, the LMM meets at least 

two Performance Metrics in 90 of those 

Less Active ETPs, and does not meet at 

least two Performance Metric in the 

other 30 Less Active ETPs. The LMM in 

this example would qualify for Less 

Active ETP Tier 4 and would receive an 

incremental credit of $0.0001 per share 

for adding liquidity on all Tape B 

Securities. If the LMM in this example 

seeks to qualify as a Market Maker in 

another 50 Less Active ETPs, and as a 

Market Maker, the LMM meets at least 

two Performance Metrics in 40 of its 

non-registered Less Active ETPs, then 

those 40 Less Active ETPs would count 

as 20 Less Active ETPs for a combined 

total number of Less Active ETPs of 110 

Less Active ETPs (90 Less Active ETPs 

as LMM + 20 Less Active ETPs as 

Market Maker). The LMM would then 

qualify for Less Active ETP Tier 3 and 

would receive an incremental credit of 

$0.0002 per share for adding liquidity 

on all Tape B Securities. 

The following example illustrates 

how a Market Maker that is not an LMM 

can receive the incremental credits. 

Assume a Market Maker notifies the 

Exchange that it is seeking to qualify in 

180 Less Active ETPs. Assume further 

that the Market Maker meets at least 2 

Performance Metrics in 160 Less Active 

ETPs, and does not meet at least 2 

Performance Metrics in the other 20 

Less Active ETPs, for a total of 80 Less 

Active ETPs since every two Less Active 

ETPs that a Market Maker identifies and 

meets at least two Performance Metrics 

count as one Less Active ETP for 

purposes of determining which Less 

Active ETP tier applies to the Market 

Maker. The Market Maker in this 

example would qualify under Less 

Active Tier 4 for an incremental credit 

of $0.0001 per share for adding liquidity 

in all Tape B securities. 

The Exchange believes the proposed 

rule change would enhance market 

quality on all NYSE Arca-listed 

Securities by incentivizing LMMs and 

Market Makers to meet the Performance 

Metrics across all Less Active ETPs, 

which would support the quality of 

price discovery in such securities on the 

Exchange and provide additional 

liquidity for incoming orders for the 

benefit of all market participants. The 

Exchange believes that providing 

increased credits to LMMs and ETP 

Holders that are affiliated with a LMM 

that add liquidity in Tape B Securities 

to the Exchange could lead to more 

LMMs to register to quote and trade in 

Less Active ETP Securities. The 

Exchange believes the proposed 

financial incentives could also 

encourage competition in Tape B 

Securities quoted and traded on the 

Exchange. 

The Exchange does not know how 

much order flow LMMs and Market 

Makers choose to route to other 

exchanges or to off-exchange venues. 

The proposed credits in NYSE Arcalisted Securities would be available to 

all LMMs and Market Makers that are 

registered in those securities and are 

subject to the obligations specified in 

Rule 7.23–E relating to Market Makers. 

There are currently seven LMMs that 


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20 15 U.S.C. 78f(b). 

21 15 U.S.C. 78f(b)(4) and (5). 

22See Equity 7 Pricing Schedule, Section 114. 

Market Quality Incentive Programs, at https://

listingcenter.nasdaq.com/rulebook/nasdaq/rules/ 

Nasdaq%20Equity%207#section_114_market_

quality_incentive_programs. 

would qualify for the incremental 

credits. Without having a view of their 

activity on other markets and offexchange venues, the Exchange has no 

way of knowing whether this proposed 

rule change would result in more LMMs 

and Market Makers sending their orders 

in NYSE Arca-listed Securities to the 

Exchange to qualify for the existing 

credits or whether this proposed rule 

change would result in these members 

sending more of their orders in NYSE 

Arca-listed Securities to the Exchange to 

qualify for the proposed incremental 

credits. The Exchange cannot predict 

with certainty how many LMMs and 

Market Makers would avail themselves 

of this opportunity, but additional 

liquidity-providing orders would benefit 

all market participants because it would 

provide greater execution opportunities 

on the Exchange. 

The proposed rule change is also 

intended to incentivize LMMs to 

increase auction liquidity in less liquid 

NYSE Arca-listed Securities to support 

price discovery in the Exchange’s 

opening and closing auctions for the 

benefit of all market participants. The 

Exchange believes that the proposed 

rule change could lead to more LMMs 

to register in less liquid securities and 

encourage greater participation in the 

opening and closing auctions on the 

Exchange. 

The Exchange believes the proposed 

rule change would also to provide 

superior market quality and price 

discovery for NYSE Arca-listed 

Securities, specifically securities that 

are less active, through a quoting size 

requirement that would promote 

liquidity in the opening and closing 

auction in such securities. The proposed 

rule change is intended to provide a 

more meaningful incentive to both 

LMMs and ETP Holders to provide 

liquidity in less active securities by 

providing financial incentives to the 

Exchange’s members as long as they 

meet certain prescribed quoting criteria. 

The Exchange believes that a 

performance-driven incentive would 

encourage such members to provide 

meaningful quotes and size in less 

active securities listed and traded on the 

Exchange. 

Additionally, for newly listed and low 

volume ETPs, the cost to a firm for 

making a market, such as holding 

inventory in the security, is often not 

fully offset by the revenue through 

rebates provided by the Exchange. In 

some cases, firms may even operate at 

a loss in new and low volume ETPs. The 

Exchange believes the proposed credits, 

which would compensate members as 

long as they meet the prescribed 

performance metrics, is a more 

deterministic program from a member’s 

perspective. The member would decide 

how many, if any, low volume securities 

it wants to provide tight and deep 

markets in. The more securities the 

member provides heightened quoting in, 

the more the member could collect in 

the form of a rebate. 

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,20 in general, and 

furthers the objectives of Sections 

6(b)(4) and (5) of the Act,21 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. The 

Exchange also notes that its ETP listing 

business operates in a highlycompetitive market in which market 

participants, which includes LMMs and 

ETP Holders, as well as ETP issuers, can 

readily transfer their listings or opt not 

to participate, respectively, if they deem 

fee levels, liquidity provision incentive 

programs, or any other factor at a 

particular venue to be insufficient or 

excessive. The proposed rule change 

reflects a competitive pricing structure 

designed to incentivize issuers to list 

new products and transfer existing 

products to the Exchange and market 

participants to enroll and participate as 

LMMs on the Exchange, which the 

Exchange believes will enhance market 

quality in all ETPs listed on the 

Exchange. 

The Proposed Fee Change is Reasonable 

The Exchange believes that the 

proposal to adopt market quality-based 

incentives is a reasonable means to 

incentivize liquidity provision in ETPs 

listed on the Exchange. The marketplace 

for listings is extremely competitive and 

the Exchange is not the only venue for 

listing ETPs. Competition in ETPs is 

further exacerbated by the fact that 

listings can and do transfer from one 

listing market to another. The proposed 

rule change is intended to help the 

Exchange compete as a listing venue for 

ETPs. Further, the Exchange notes that 

the proposed incentives are not 

transaction fees, nor are they fees paid 

by participants to access the Exchange. 

Rather, the proposed rebates are based 

on achieving certain objective market 

quality metrics. The Exchange believes 

providing rebates that are based on the 

quality of the market in individual ETPs 

that generally have low volume will 

allow ETP Holders to anticipate their 

revenue and will incentivize them to 

provide tight and deep markets in those 

securities. 

Given the novelty of the proposed 

rule change, the Exchange cannot be 

certain that LMMs and Market Makers 

will choose to actively compete for 

these incentives. For LMMs and Market 

Makers that do choose to actively 

participate by providing deep and tight 

markets in Less Active ETP Securities, 

the Exchange expects those members to 

receive payments comparable to what 

they currently receive, with the 

potential for additional upside when 

they meet the Performance Metrics in a 

greater number of less active securities. 

The Exchange believes the proposed 

credits, which would compensate 

LMMs and Market Makers as long as 

they meet the prescribed Performance 

Metrics, is also reasonable because it is 

a more deterministic program from an 

ETP Holder’s perspective. 

The Exchange believes the proposed 

rule change is intended to encourage 

LMMs and Market Makers to promote 

price discovery and market quality in 

Less Active ETP Securities for the 

benefit of all market participants. The 

Exchange believes the proposed rule 

change is reasonable and appropriate in 

that the credits are based on the amount 

of business transacted on the Exchange. 

The Exchange notes that the proposed 

incremental credits offered by the 

Exchange is similar to market quality 

incentive programs already in place on 

other markets, such as the Designated 

Liquidity Provider incentives on the 

Nasdaq Stock Market LLC (‘‘Nasdaq’’), 

which requires a member on that 

exchange to provide meaningful and 

consistent support to market quality and 

price discovery in low volume 

exchange-traded products by quoting at 

the National Best Bid and Offer and 

adding liquidity in a minimum number 

of such securities. In return, Nasdaq 

provides the member with an 

incremental rebate.22 The Exchange 

believes that providing increased credits 

to LMMs and Market Makers that add 

liquidity in Tape B Securities to the 

Exchange is reasonable because the 

Exchange believes that by providing 


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29874 Federal Register / Vol. 86, No. 105 / Thursday, June 3, 2021 / Notices 

increased rebates to such members, 

more of them will register to quote and 

trade in Less Active ETP Securities. The 

Exchange believes the proposed 

incremental credit for adding liquidity 

is also reasonable because it will 

encourage liquidity and competition in 

Tape B Securities quoted and traded on 

the Exchange. Moreover, the Exchange 

believes that the proposed fee change 

will incentivize LMMs and Market 

Maker to register as either an LMM or 

Market Maker in Less Active ETP 

Securities and thus, add more liquidity 

in Tape B Securities to the benefit of all 

market participants. 

The Exchange believes that providing 

additional credits to Market Makers that 

add liquidity in Less Active ETPs is 

reasonable because the Exchange 

believes that by providing such 

additional credits, more Market Makers 

would choose to register in Less Active 

ETP Securities on the Exchange, which 

the Exchange believes would benefit all 

market participants. As noted above, 

because Market Makers registered in a 

security must meet the quoting 

obligations specified in Rule 7.23–E, 

expanding eligibility to Market Makers 

to receive credits is a reasonable attempt 

to increase participation on the 

Exchange and provide an incentive for 

Market Makers to meet additional 

standards for their registered Less 

Active ETPs. 

Submission of additional liquidity to 

the Exchange would promote price 

discovery and transparency and 

enhance order execution opportunities 

for LMMs and Market Makers from the 

substantial amounts of liquidity present 

on the Exchange. All participants would 

benefit from the greater amounts of 

liquidity that will be present on the 

Exchange, which would provide greater 

execution opportunities. 

The Exchange believes that 

eliminating the existing monthly rebate 

tied to the performance in the opening 

and closing auctions in NYSE Arcalisted Securities and the ETF Incentive 

Program for NYSE Arca-listed Securities 

is reasonable because those pricing 

incentives did not the achieve their 

intended purpose of incentivizing 

LMMs and ETP Holders to send a 

greater number of their orders in Tape 

B Securities to the Exchange. The 

Exchange believes replacing the 

monthly rebate program and the ETF 

Incentive Program with pricing 

incentives tied to Performance Metrics 

discussed above will allow the 

Exchange to better maintain its 

competitive standing. On the backdrop 

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. 

Finally, the Exchange believes the 

proposed non-substantive changes to 

relocate existing fees and credits into a 

table format is reasonable and would 

not be inconsistent with the public 

interest and the protection of investors 

because investors will not be harmed 

and in fact would benefit from increased 

clarity and transparency of the Fee 

Schedule, thereby reducing potential 

confusion. 

The Proposed Fee Change is an 

Equitable Allocation of Fees and Credits 

The Exchange believes the proposed 

rule change is equitable because the 

proposal would provide discounts that 

are reasonably related to the value to the 

Exchange’s market quality associated 

with higher volumes in Less Active ETP 

Securities. The Exchange further 

believes that the proposed incremental 

rebate is equitable because it is 

consistent with the market quality and 

competitive benefits associated with the 

fee program and because the magnitude 

of the additional rebate is not 

unreasonably high in comparison to the 

rebate paid with respect to other 

displayed liquidity-providing orders. 

The Exchange believes that it is 

equitable to offer increased rebates to 

LMMs and Market Makers as both are 

currently subject to obligations specified 

in Rule 7.23–E, which are not applicable 

to non-Market Maker ETP Holders, and 

they would be subject to additional 

requirements and obligations (such as 

meeting Performance Metrics) that other 

market participants are not. 

The Exchange believes that the 

proposal to offer rebates tied to market 

quality metrics represents an equitable 

allocation of payments because LMMs 

and Market Makers would be required 

to not only meet their Rule 7.23–E 

obligations, but also meet prescribed 

quoting requirements in order to qualify 

for the payments, as described above. 

Where an LMM or Market Maker does 

not meet at least two Performance 

Metrics, that member will not receive 

any additional financial benefit. 

Further, all LMMs and Market Makers 

on the Exchange are eligible to 

participate and could do so by simply 

registering in a Less Active ETP and 

meeting the proposed market quality 

metrics. The Exchange has designed the 

proposed pricing incentives to be 

sustainable over the long-term and 

generally expects that payments made to 

LMMs and Market Makers will be 

comparable to payments the Exchange 

currently makes to its members and 

comparable to pricing incentives offered 

by the Exchange’s competitors. As such, 

the Exchange believes that the proposal 

represents an equitable allocation of 

dues, fees and credits. 

The Exchange believes that 

eliminating the existing monthly rebate 

tied to the performance in the opening 

and closing auctions in NYSE Arcalisted Securities and the ETF Incentive 

Program for NYSE Arca-listed Securities 

is equitable because the Exchange is 

eliminating those pricing incentives for 

all participants. 

The Proposed Fee Change is not 

Unfairly Discriminatory 

The Exchange believes that the 

proposed rule change is not unfairly 

discriminatory. In the prevailing 

competitive environment, LMMs and 

Market Makers 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 adopt 

incremental credits applicable to LMMs 

and Market Makers because both are 

already subject to additional obligations, 

as specified in Rule 7.23–E, and the 

proposed additional credits would be 

provided on an equal basis to all 

similarly situated participant provided 

each such participant meets the 

prescribed market quality metrics. If an 

LMM or Market Maker does not meet 

the required number of Performance 

Metrics, the member would not receive 

any incremental credit. Further, the 

Exchange believes the incremental 

credit would incentivize each of these 

participants to register in Less Active 

ETPs and send more orders to the 

Exchange to qualify for higher credits. 

The Exchange also believes that the 

proposed rule change is not unfairly 

discriminatory because it is reasonably 

related to the value to the Exchange’s 

market quality associated with higher 

volume. 

The proposal to offer an additional 

credit tied to meeting certain market 

quality requirements neither targets nor 

will it have a disparate impact on any 

particular category of market 

participant. The proposal does not 

permit unfair discrimination because 

LMMs and Market Makers already have 

increased obligations vis-a`-vis nonMarket Maker ETP Holders, as specified 

in Rule 7.23–E, and the proposed 

requirements would be applied to all 

similarly-situated LMMs and Market 

Maker equally. In addition, the 

proposed incentives for LMMs replace 

the existing incentive structure, which 

is already available only for LMMs. The 

Exchange does not believe it would be 

unfairly discriminatory to extend the 

availability of additional credits for 


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Federal Register / Vol. 86, No. 105 / Thursday, June 3, 2021 / Notices 29875 

23 15 U.S.C. 78f(b)(8). 

24See Securities Exchange Act Release No. 51808, 

70 FR 37495, 37498–99 (June 29, 2005) (S7–10–04) 

(Final Rule). 

25 15 U.S.C. 78s(b)(3)(A). 

26 17 CFR 240.19b–4(f)(2). 

27 15 U.S.C. 78s(b)(2)(B). 

Tape B securities to Market Makers 

because Market Makers have obligations 

under Rule 7.23–E, and pursuant to the 

proposed change, would need to meet 

additional performance requirements in 

order to qualify for the additional credit. 

The Exchange believes that the 

proposed rule change is not unfairly 

discriminatory because all LMMs and 

Market Makers that choose to qualify for 

the incremental credits would be 

required to meet a minimum number of 

Performance Metrics in order to receive 

the credits. Where a participant does not 

achieve a certain number of 

Performance Metrics, it will not receive 

any incremental credits. Further, all 

LMMs and Market Makers on the 

Exchange are eligible to participate in 

the program and could do so by simply 

registering in Less Active ETPs and 

meeting a minimum number of 

Performance Metrics. The Exchange has 

designed the pricing incentives 

proposed herein to be sustainable over 

the long-term and generally expects that 

payments made to LMMs and Market 

Makers would be comparable to 

payments the Exchange currently makes 

to its LMMs and comparable to pricing 

incentives offered by the Exchange’s 

competitors. As such, the Exchange 

believes that the proposal is not unfairly 

discriminatory. 

The Exchange believes that 

eliminating the existing monthly rebate 

tied to the performance in the opening 

and closing auctions in NYSE Arcalisted Securities and the ETF Incentive 

Program for NYSE Arca-listed Securities 

is not unfairly discriminatory because 

the Exchange is eliminating both pricing 

incentives for all participants. 

Finally, subject to their obligations 

specified in Rule 7.23–E, the submission 

of additional orders to the Exchange is 

optional for LMMs and Market Makers 

in that they could choose the level of 

trading activity on the Exchange. 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,23 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 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 LMMs and 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.’’ 24

Intramarket Competition. The 

proposed change is designed to attract 

additional order flow to the Exchange. 

The Exchange believes that the 

proposed Performance Metrics-based 

incremental credit applicable to LMMs 

and Market Makers in Less Active ETPs 

in which they are registered would 

continue to incentivize market 

participants to direct their displayed 

order flow to the Exchange. Greater 

liquidity benefits all market participants 

on the Exchange by providing more 

trading opportunities and encourages 

LMMs and Market Makers to send 

additional orders to the Exchange, 

thereby contributing to robust levels of 

liquidity, which benefits all market 

participants. The proposed pricing 

incentive would be applicable to all 

similarly-situated market participants 

that have obligations under Rule 7.23– 

E to meet specified obligations, and, as 

such, the proposed changes would not 

impose a disparate burden on 

competition among market participants 

on the Exchange. The Exchange believes 

the proposed adoption of Performance 

Metrics would enhance competition as 

it is intended to increase the Exchange’s 

competitiveness in Less Active ETPs, 

and all LMMs and Market Makers 

would be able to participate on an equal 

basis. Accordingly, the Exchange does 

not believe that the proposed change 

will impair the ability of ETP Holders to 

maintain their competitive standing. 

The Exchange does not believe that the 

proposed change represents a significant 

departure from previous pricing offered 

by the Exchange or its competitors. The 

Exchange also does not believe the 

proposed rule change to eliminate 

underutilized pricing incentives will 

impose any burden on intramarket 

competition because the proposed 

change would impact all LMMs and 

Market Makers uniformly. 

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’s market share of intraday 

trading (i.e., excluding auctions) is 

currently less than 10%. In such an 

environment, the Exchange must 

continually adjust its fees and rebates to 

remain competitive with other 

exchanges and with off-exchange 

venues. Because competitors are free to 

modify their own fees and credits in 

response, and because market 

participants may readily adjust their 

order routing practices, the Exchange 

does not believe its proposed fee change 

can impose any burden on intermarket 

competition. The Exchange believes that 

the proposed rule change could promote 

competition between the Exchange and 

other execution venues, including those 

that currently offer 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) 25 of the Act and 

subparagraph (f)(2) of Rule 19b–4 26

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) 27 of the Act to 

determine whether the proposed rule 

change should be approved or 

disapproved. 


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28 17 CFR 200.30–3(a)(12). 

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 (http://www.sec.gov/ 

rules/sro.shtml); or 

• Send an email to rule-comments@

sec.gov. Please include File No. SR– 

NYSEArca–2021–43 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 No. 

NYSEArca–2021–43. 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 (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 No. 

NYSEArca–2021–43, and should be 

submitted on or before June 24, 2021. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.28

J. Matthew DeLesDernier, 

Assistant Secretary. 

[FR Doc. 2021–11611 Filed 6–2–21; 8:45 am] 

BILLING CODE 8011–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

[Docket No. FMCSA–FMCSA–2021–0059] 

Parts and Accessories Necessary for 

Safe Operation; Application for an 

Exemption From Waste Management, 

Inc. 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT. 

ACTION: Notice of application for 

exemption; request for comments. 

SUMMARY: The Federal Motor Carrier 

Safety Administration (FMCSA) 

requests public comment on Waste 

Management, Inc.’s (Waste 

Management) application for an 

exemption to allow all of its 106 

operating companies to replace the 

high-mounted brake lights on their 

owned and operated fleets of heavyduty refuse and support trucks with red 

or amber brake-activated pulsating 

lamps positioned in the upper center 

position, or in an upper dual outboard 

position, in addition to the steady 

burning brake lamps required by the 

Federal Motor Carrier Safety 

Regulations (FMCSRs). 

DATES: Comments must be received on 

or before July 6, 2021. 

ADDRESSES: You may submit comments 

bearing the Federal Docket Management 

System (FDMS) Docket ID FMCSA– 

2021–0059 using any of the following 

methods: 

• Website: http://

www.regulations.gov. Follow the 

instructions for submitting comments 

on the Federal electronic docket site. 

• Fax: 1–202–493–2251. 

• Mail: Send comments to Docket 

Operations, M–30; U.S. Department of 

Transportation, 1200 New Jersey 

Avenue SE, Room W12–140, West 

Building Ground Floor, Washington, DC 

20590–0001. 

• Hand Delivery by Courier: Bring 

comments to Docket Operations in 

Room W12–140 of the West Building 

Ground Floor, U.S. Department of 

Transportation, 1200 New Jersey 

Avenue SE, Washington, DC, between 9 

a.m. and 5 p.m. e.t., Monday–Friday, 

except Federal holidays. To be sure 

someone is there to help you, please call 

(202) 366–9317 or (202) 366–9826 

before visiting Docket Operations. 

Instructions: All submissions must 

include the Agency name and docket 

number for this notice. For detailed 

instructions on submitting comments 

and additional information on the 

exemption process, see the ‘‘Public 

Participation’’ heading below. Note that 

all comments received will be posted 

without change to http://

www.regulations.gov, including any 

personal information provided. Please 

see the ‘‘Privacy Act’’ heading for 

further information. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http://

www.regulations.gov or to Docket 

Operations in Room W12–140, U.S. 

Department of Transportation, West 

Building Ground Floor, 1200 New Jersey 

Avenue SE, Washington, DC, between 9 

a.m. and 5 p.m., Monday through 

Friday, except Federal holidays. To be 

sure someone is there to help you, 

please call (202) 366–9317 or (202) 366– 

9826 before visiting Docket Operations. 

Privacy Act: In accordance with 5 

U.S.C. 553(c), DOT solicits comments 

from the public to better inform its 

regulatory processes. DOT posts these 

comments, without edit, including any 

personal information the commenter 

provides, to www.regulations.gov, as 

described in the system of records 

notice (DOT/ALL–14 FDMS), which can 

be reviewed at www.dot.gov/privacy. 

Public participation: The http://

www.regulations.gov website is 

generally available 24 hours each day, 

365 days each year. You may find 

electronic submission and retrieval help 

and guidelines under the ‘‘help’’ section 

of the http://www.regulations.gov 

website as well as the DOT’s http://

docketsinfo.dot.gov website. If you 

would like notification that we received 

your comments, please include a selfaddressed, stamped envelope or 

postcard or print the acknowledgment 

page that appears after submitting 

comments online. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Luke W. Loy, Vehicle and Roadside 

Operations Division, Office of Carrier, 

Driver, and Vehicle Safety, MC–PSV, 

Federal Motor Carrier Safety 

Administration, 1200 New Jersey 

Avenue SE, Washington, DC 20590– 

0001, (202) 366–0676, luke.loy@dot.gov. 

SUPPLEMENTARY INFORMATION: 


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