[Federal Register Volume 86, Number 60 (Wednesday, March 31, 2021)]
[Notices]
[Pages 16798-16801]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06558]



[[Page 16798]]

-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-91409; File No. SR-NYSE-2021-19]


Self-Regulatory Organizations; New York Stock Exchange LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To 
Amend Its Price List To Extend the Waiver of Equipment and Related 
Service Charges and Trading License Fees for NYSE Trading Floor-Based 
Member Organizations

March 25, 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 March 17, 2021, New York Stock Exchange LLC (``NYSE'' or 
the ``Exchange'') filed with the Securities and Exchange Commission 
(the ``Commission'') the proposed rule change as described in Items I, 
II, and III below, which Items have been prepared by the self-
regulatory organization. The Commission is publishing this notice to 
solicit comments on the proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend its Price List to extend the waiver 
of equipment and related service charges and trading license fees for 
NYSE Trading Floor-based member organizations through the earlier of 
the first full month of a full reopening of the Trading Floor 
facilities to Floor personnel or June 2021. The Exchange proposes to 
implement the fee changes effective April 1, 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 its Price List to extend the waiver 
of equipment and related service charges and trading license fees for 
NYSE Trading Floor-based member organizations through the earlier of 
the first full month of a full reopening of the Trading Floor 
facilities to Floor personnel or June 2021.
    As proposed, the Exchange would continue to waive 50% of the 
Telephone System charges and Service Charges (except for the internet 
Equipment Monthly Hosting Fee) and trading license fees for member 
organizations that meet the waiver criteria set forth in footnotes 11 
and 15 of the Price List, respectively, commencing January 1, 2021 
through the earlier of the first full month of a full reopening of the 
Trading Floor facilities to Floor personnel or June 2021.
    The Exchange proposes to implement the fee changes effective April 
1, 2021.
Background
Current Market and Competitive Environment
    Beginning in March 2020 and continuing into 2021, in order to slow 
the spread of the novel coronavirus (``COVID-19'') through social 
distancing measures, significant limitations were placed on large 
gatherings throughout the country. As a result, on March 18, 2020, the 
Exchange determined that beginning March 23, 2020, the physical Trading 
Floor facilities located at 11 Wall Street in New York City would close 
and that the Exchange would move, on a temporary basis, to fully 
electronic trading.\4\ Following the temporary closure of the Trading 
Floor, the Exchange waived certain equipment fees for the booth 
telephone system on the Trading Floor and associated service charges 
for the months of April and May.\5\
---------------------------------------------------------------------------

    \4\ See Press Release, dated March 18, 2020, available here: 
https://ir.theice.com/press/press-releases/allcategories/2020/03-18-2020-204202110.
    \5\ See Securities Exchange Act Release No. 88602 (April 8, 
2020), 85 FR 20730 (April 14, 2020) (SR-NYSE-2020-27); Securities 
Exchange Act Release No. 88874 (May 14, 2020), 85 FR 30743 (May 20, 
2020) (SR-NYSE-2020-29). See footnote 11 of the Price List.
---------------------------------------------------------------------------

    On May 14, 2020, the Exchange announced that on May 26, 2020 
trading operations on the Trading Floor would resume on a limited basis 
to a subset of Floor brokers, subject to health and safety measures 
designed to prevent the spread of COVID-19.\6\ On June 15, 2020, the 
Exchange announced that on June 17, 2020, the Trading Floor would 
reintroduce a subset of DMMs, also subject to health and safety 
measures designed to prevent the spread of COVID-19.\7\ Following this 
partial reopening of the Trading Floor, the Exchange extended the 
equipment fee waiver for the months of June 2020 through March 2021.\8\ 
The Trading Floor continues to operate with reduced headcount and 
additional health and safety precautions.\9\
---------------------------------------------------------------------------

    \6\ See Trader Update, dated May 14, 2020, available here: 
https://www.nyse.com/traderupdate/history#110000251588.
    \7\ See Trader Update, dated June 15, 2020, available here: 
https://www.nyse.com/trader-update/history#110000272018.
    \8\ See Securities Exchange Act Release No. 89050 (June 11, 
2020), 85 FR 36637 (June 17, 2020) (SR-NYSE-2020-49); Securities 
Exchange Act Release No. 89324 (July 15, 2020), 85 FR 44129 (July 
21, 2020) (SR-NYSE-2020-59); Securities Exchange Act Release No. 
89754 (September 2, 2020), 85 FR 55550 (September 8, 2020) (SR-NYSE-
2020-71); Securities Exchange Act Release No. 89798 (September 9, 
2020), 85 FR 57263 (September 15, 2020) (SR-NYSE2020-72); Securities 
Exchange Act Release No. 90161 (October 13, 2020), 85 FR 66370 
(October 19, 2020) (SR-NYSE-2020-81); Securities Exchange Act 
Release No. 90391 (November 10, 2020), 85 FR 73326 (November 17, 
2020) (SR-NYSE2020-92); Securities Exchange Act Release No. 90744 
(December 21, 2020), 85 FR 85712 (December 29, 2020) (SR-NYSE-2020-
102); Securities Exchange Act Release No. 91082 (February 9, 2021), 
86 FR 9546 (February 16, 2021) (SR-NYSE-2021-10).
    \9\ See Trader Update, dated June 15, 2020, available here: 
https://www.nyse.com/trader-update/history#110000272018.
---------------------------------------------------------------------------

Proposed Rule Change
    In response to the unprecedented events surrounding the spread of 
COVID-19 in 2020, the Exchange waived certain equipment and related 
service charges and trading license fees for NYSE Trading Floor-based 
member organizations through March 2021. Specifically, the Exchange 
extended the waiver of 50% of the Annual Telephone Line Charge of $400 
per phone number; the $129 fee for a single line phone, jack, and data 
jack; the related service charges ($161.25 to install single jack 
(voice or data); $107.50 to relocate a jack; $53.75 to remove a jack; 
$107.50 to install voice or data line; $53.75 to disconnect data line; 
$53.75 to change a phone line subscriber; and miscellaneous telephone 
charges billed at $106 per hour in 15 minute increments); and the 
monthly portion of all applicable annual fees through March 2021 for 
member organizations that

[[Page 16799]]

     meet the current requirements of having at least one 
trading license, a physical trading Floor presence and Floor broker 
executions accounting for 40% or more of the member organization's 
combined adding, taking, and auction volumes during March 1 to March 
20, 2020 or, if not a member organization during March 1 to March 20, 
2020, based on the member organization's combined adding, taking, and 
auction volumes during its first month as a member organization on or 
after May 26, 2020, and
     are unable to operate at more than 50% of their March 2020 
on-Floor staffing levels or, for member organizations that began Floor 
operations after March 2020, are unable to operate at more than 50% of 
their Exchange-approved on-Floor staffing levels, both excluding part-
time Floor brokers known as ``flex brokers'' (hereinafter, ``Qualifying 
Firms'').
    Because the Trading Floor continues to operate with reduced 
capacity, and in order to further reduce costs for member organizations 
with a Trading Floor presence, the Exchange proposes to extend the fee 
waiver for Qualifying Firms through the earlier of the first full month 
of a full reopening of the Trading Floor facilities to Floor personnel 
or June 2021. The proposed fee change is designed to reduce monthly 
costs for all Qualifying Firms whose operations continue to be 
disrupted even though the Trading Floor has partially reopened. The 
Exchange does not propose any substantive changes to the current waiver 
requirements set forth in footnotes 11 and 15 of the Price List. The 
Exchange believes that all Qualifying Firms would benefit from the 
proposed fee change.
    The proposed changes are not otherwise intended to address 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,\10\ in general, and furthers the 
objectives of Sections 6(b)(4) and (5) of the Act,\11\ 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.
---------------------------------------------------------------------------

    \10\ 15 U.S.C. 78f(b).
    \11\ 15 U.S.C. 78f(b)(4) & (5).
---------------------------------------------------------------------------

    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.'' \12\
---------------------------------------------------------------------------

    \12\ See Securities Exchange Act Release No. 51808 (June 9, 
2005), 70 FR 37495, 37499 (June 29, 2005) (S7-10-04) (Final Rule) 
(``Regulation NMS'').
---------------------------------------------------------------------------

    While Regulation NMS has enhanced competition, it has also fostered 
a ``fragmented'' market structure where trading in a single stock can 
occur across multiple trading centers. When multiple trading centers 
compete for order flow in the same stock, the Commission has recognized 
that ``such competition can lead to the fragmentation of order flow in 
that stock.'' \13\ Indeed, equity trading is currently dispersed across 
16 exchanges,\14\ 31 alternative trading systems,\15\ and numerous 
broker-dealer internalizers and wholesalers, all competing for order 
flow. Based on publicly available information, no single exchange has 
more than 16% market share.\16\ Therefore, no exchange possesses 
significant pricing power in the execution of equity order flow. More 
specifically, the Exchange's market share of trading in Tape A, B and C 
securities combined is less than 10%.
---------------------------------------------------------------------------

    \13\ See Securities Exchange Act Release No. 61358, 75 FR 3594, 
3597 (January 21, 2010) (File No. S7-02-10) (Concept Release on 
Equity Market Structure).
    \14\ See Cboe Global Markets, U.S. Equities Market Volume 
Summary, available at http://markets.cboe.com/us/equities/market_share/. See generally https://www.sec.gov/fast-answers/divisionsmarketregmrexchangesshtml.html.
    \15\ See FINRA ATS Transparency Data, available at https://otctransparency.finra.org/otctransparency/AtsIssueData. A list of 
alternative trading systems registered with the Commission is 
available at https://www.sec.gov/foia/docs/atslist.htm.
    \16\ See Cboe Global Markets U.S. Equities Market Volume 
Summary, available at http://markets.cboe.com/us/equities/market_share/.
---------------------------------------------------------------------------

The Proposed Change is Reasonable
    The proposed extension of the waiver of equipment and related 
service fees and the applicable monthly trading license fee for 
Qualified Firms through the earlier of the first full month of a full 
reopening of the Trading Floor facilities to Floor personnel or June 
2021 is reasonable in light of the continued partial closure of the 
NYSE Trading Floor as a result of spread of COVID-19. The proposed 
change is reasonable because it would extend reduction of monthly costs 
for all Qualifying Firms whose operations have been disrupted despite 
the fact that the Trading Floor has partially reopened because of the 
social distancing requirements and/or other health concerns related to 
resuming operation on the Trading Floor. In reducing this monthly 
financial burden, the proposed change would allow Qualifying Firms that 
that are unable to operate at more than 50% of their March 2020 or 
Exchange-approved on-Floor staffing levels to reallocate funds to 
assist with the cost of shifting and maintaining their prior fully-
staffed on-Floor operations to off-Floor and recoup losses resulting 
from the partial reopening of the Trading Floor.
The Proposal is an Equitable Allocation of Fees
    The Exchange believes the proposed extension of the waiver of 
equipment and related service fees and the applicable monthly trading 
license fee for Qualified Members for the proposed time period is an 
equitable allocation of fees. The proposed waivers apply to all Trading 
Floor-based firms meeting specific requirements during the specified 
period that the Trading Floor remains partially open. The Exchange 
believes the proposed rule change is an equitable allocation of its 
fees and credits as it continues the previous fee waiver for Qualifying 
Firms, which affects fees charged only to Floor participants and does 
not apply to participants that conduct business off-Floor. The Exchange 
believes it is an equitable allocation of fees and credits to extend 
the fee waiver for Qualifying Firms because such firms have no more 
than half of their Floor staff (as measured by either the March 2020 or 
Exchange-approved) levels, and this reduction in staffing levels on the 
Trading Floor impacts the speed, volume and efficiency with which these 
firms can operate, to their financial detriment.
The Proposal is Not Unfairly Discriminatory
    The Exchange believes that the proposal is not unfairly 
discriminatory because the proposed continuation of the fee waiver 
would affect all similarly situated market participants on an equal and 
non-discriminatory basis. The Exchange is not proposing to waive the 
Trading Floor-related fees indefinitely, but rather during the 
specified period during which the Trading Floor is not fully open. As 
noted, the proposed fee

[[Page 16800]]

change is designed to ease the financial burden on Trading Floor-based 
member organizations that cannot fully conduct Floor operations.
    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,\17\ 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 member organizations. 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.'' \18\
---------------------------------------------------------------------------

    \17\ 15 U.S.C. 78f(b)(8).
    \18\ Regulation NMS, 70 FR at 37498-99.
---------------------------------------------------------------------------

    Intramarket Competition. The proposed continued waiver of equipment 
and related service fees and the applicable monthly trading license fee 
for Qualified Firms is designed to reduce monthly costs for those Floor 
participants whose operations continue to be impacted by the COVID-19 
pandemic despite the fact that the Trading Floor has partially 
reopened. In reducing this monthly financial burden, the proposed 
change would allow Qualifying Firms that had Floor operations in March 
2020 to reallocate funds to assist with the cost of shifting and 
maintaining their previously on-Floor operations to off-Floor. Absent 
this change, all Qualifying Firms may experience an unintended increase 
in the cost of doing business on the Exchange, given that the Trading 
Floor has only reopened in a limited capacity. The Exchange believes 
that the proposed waiver of fees for Qualifying Firms would not impose 
a disparate burden on competition among market participants on the 
Exchange because off-Floor market participants are not subject to these 
Floor-based fixed fees. In addition, Floor-based firms that are not 
subject to the extent of staffing shortfalls as are Qualifying Firms, 
i.e., firms that have more than 50% of their March 2020, or Exchange-
approved staffing levels on the Trading Floor, do not face the same 
operational level of disruption and potential financial impact during 
the partial reopening of the Trading Floor. As noted, the proposal 
would apply to all similarly situated member organizations on the same 
and equal terms, who would benefit from the changes on the same basis. 
Accordingly, the proposed change would not impose a disparate burden on 
competition among market participants on the Exchange.
    Intermarket Competition. As noted above, the Exchange operates in a 
highly competitive market in which market participants can readily 
choose to send their orders to other exchange and off-exchange venues 
if they deem fee levels at those other venues to be more favorable. The 
Exchange believes that the proposed rule change reflects this 
competitive environment because it permits impacted member 
organizations to continue to conduct market-making operations on the 
Exchange and avoid unintended costs of doing business on the Exchange 
while the Trading Floor is not fully open, which could make the 
Exchange a less competitive venue on which to trade as compared to 
other equities markets. In reducing this monthly financial burden, the 
proposed change would allow affected participants to reallocate funds 
to assist with the cost of shifting and maintaining their prior fully 
staffed on-Floor operations to off-Floor. Absent this change, 
Qualifying Firms may experience an unintended increase in the cost of 
doing business on the Exchange, which would make the Exchange a less 
competitive venue on which to trade as compared to other options 
exchanges.

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) \19\ of the Act and subparagraph (f)(2) of Rule 
19b-4 \20\ thereunder, because it establishes a due, fee, or other 
charge imposed by the Exchange.
---------------------------------------------------------------------------

    \19\ 15 U.S.C. 78s(b)(3)(A).
    \20\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of such proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is necessary or 
appropriate in the public interest, for the protection of investors, or 
otherwise in furtherance of the purposes of the Act. If the Commission 
takes such action, the Commission shall institute proceedings under 
Section 19(b)(2)(B) \21\ of the Act to determine whether the proposed 
rule change should be approved or disapproved.
---------------------------------------------------------------------------

    \21\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to rule-comments@sec.gov. Please include 
File Number SR-NYSE-2021-19 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NYSE-2021-19. 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.

[[Page 16801]]

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-NYSE-2021-19 and should be 
submitted on or before April 21, 2021.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\22\
---------------------------------------------------------------------------

    \22\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-06558 Filed 3-30-21; 8:45 am]
BILLING CODE 8011-01-P


