[Federal Register Volume 86, Number 126 (Tuesday, July 6, 2021)]
[Notices]
[Pages 35551-35554]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-14254]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-92291; File No. SR-NYSEArca-2021-52]


Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To Amend the NYSE 
Arca Equities Fees and Charges

June 29, 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 June 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 and II 
below, which Items have been prepared by the self-regulatory 
organization. The Commission is publishing this notice to solicit 
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend the NYSE Arca Equities Fees and 
Charges (``Fee Schedule'') to modify the per share credit and fee 
associated with certain Retail Orders that add and remove liquidity. 
The Exchange proposes to implement the fee change effective June 14, 
2021.\4\ 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.
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    \4\ The Exchange originally filed to amend the Fee Schedule on 
June 1, 2021 (SR-NYSEArca-2021-49). SR-NYSEArca-2021-49 was 
subsequently withdrawn and replaced by this filing.
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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 Exchange proposes to amend the Fee Schedule to modify the per 
share credit and fee associated with certain Retail Orders \5\ that add 
and remove liquidity. The Exchange proposes to implement the fee change 
effective June 14, 2021.
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    \5\ A Retail Order is an agency order that originates from a 
natural person and is submitted to the Exchange by an ETP Holder, 
provided that no change is made to the terms of the order to price 
or side of market and the order does not originate from a trading 
algorithm or any other computerized methodology. See Securities 
Exchange Act Release No. 67540 (July 30, 2012), 77 FR 46539 (August 
3, 2012) (SR-NYSEArca-2012-77).
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Background
    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.'' \6\
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    \6\ See Securities Exchange Act Release No. 51808 (June 9, 
2005), 70 FR 37496, 37499 (June 29, 2005) (File No. S7-10-04) (Final 
Rule) (``Regulation NMS'').
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    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.'' \7\ Indeed, equity trading is currently dispersed across 
16 exchanges,\8\ numerous alternative trading systems,\9\ 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.\10\ 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.\11\
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    \7\ 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).
    \8\ See Cboe U.S. Equities Market Volume Summary, available at 
https://markets.cboe.com/us/equities/market_share. See generally 
https://www.sec.gov/fast-answers/divisionsmarketregmrexchangesshtml.html.
    \9\ 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.
    \10\ See Cboe Global Markets U.S. Equities Market Volume 
Summary, available at http://markets.cboe.com/us/equities/market_share/.
    \11\ See id.
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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 
move order flow, or discontinue or reduce use of certain categories of 
products. While it is not possible to know a firm's reason for shifting 
order flow, the Exchange believes that one such reason is because of 
fee changes at any of the registered exchanges or non-exchange venues 
to which a firm routes order flow. The competition for Retail Orders is 
even more stark, particularly as it relates to exchange versus off-
exchange venues.
    The Exchange thus needs to compete in the first instance with non-
exchange venues for Retail Order flow, and with the 15 other exchange 
venues for that Retail Order flow that is not directed off-exchange. 
Accordingly, competitive forces compel the Exchange to use exchange 
transaction fees and credits, particularly as they relate to competing 
for Retail Order flow, because market participants can readily trade on 
competing venues if they deem pricing levels at those other venues to 
be more favorable.
    To respond to this competitive environment, the Exchange has 
established Retail Order Step-Up tiers,\12\ which are designed to 
provide an incentive for ETP Holders to route Retail Orders to the 
Exchange by providing higher credits for adding liquidity correlated to 
an ETP Holder's higher trading volume in Retail Orders on the Exchange. 
Under the Retail Order Step-Up Tiers, ETP Holders also do not pay a fee 
when such Retail Orders have a time-in-force of Day and remove 
liquidity from the Exchange.
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    \12\ See Retail Order Tier, Retail Order Step-Up Tier 1, Retail 
Order Step-Up Tier 2 and Retail Order Step-Up Tier 3 on the Fee 
Schedule.

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[[Page 35552]]

Proposed Rule Change
    In response to this competitive environment, the Exchange proposes 
to modify the per share credit and fee associated with the execution of 
orders that are internalized.\13\ An internalized retail order 
execution is a trade where two Retail Orders that trade against each 
other share the same Market Participant Identifier (``MPID''). As 
proposed, the Exchange would not charge a fee or pay a credit for 
certain orders that qualify for the Retail Order Step-Up Tier 1, Retail 
Order Step-Up Tier 2 and Retail Order Step-Up Tier 3 pricing tiers. 
More specifically, the Exchange proposes to not charge a fee or pay a 
credit for Retail Orders where each side of the executed order shares 
the same MPID, each side of the executed order is a Retail Order with a 
time-in-force of Day, and the executed orders have an average daily 
volume (``ADV'') of at least 150,000 shares. The proposed rule change 
would not create new means of submitting orders to the Exchange nor 
would it permit ETP Holders to circumvent the Exchange's order priority 
rules. The Exchange's priority rules would continue to apply as they 
currently do with respect to the execution of Retail Orders that are 
the subject of this proposed rule change.
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    \13\ This occurs when two orders presented to the Exchange from 
the same ETP Holder (i.e., MPID) are presented separately and not in 
a paired manner, but nonetheless inadvertently match with one 
another.
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    Under the Retail Order Step-Up Tier 1 pricing tier, such orders 
currently receive a credit of $0.0038 per share for adding liquidity 
and do not pay a fee for removing liquidity. Under the Retail Order 
Step-Up Tier 2 pricing tier, such orders currently receive a credit of 
$0.0035 per share for adding liquidity and do not pay a fee for 
removing liquidity. Lastly, under the Retail Order Step-Up Tier 3 
pricing tier, such orders currently receive a credit of $0.0036 per 
share for adding liquidity and do not pay a fee for removing liquidity. 
When both sides of an execution are not Retail Orders or do not share 
the same MPID, the Exchange will continue to not charge a fee for 
removing liquidity and will provide the credits noted above. The 
proposed rule change would not impact orders that qualify for the 
Retail Order pricing tier that are internalized. Such orders would 
continue to receive a credit of $0.0033 per share for providing 
liquidity and would pay a basic rate fee of $0.0030 per share for 
removing liquidity.\14\
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    \14\ Under Tier 1, Tier 2 and Tier 3 pricing tiers, such orders 
would pay a fee of $0.0029 per share in Tape B securities. See Fee 
Schedule.
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    The following example illustrates how the proposed rule change 
would operate. Assume an ETP holder qualifies for the Retail Order 
Step-Up Tier 3 pricing tier. As such, the ETP Holder would receive a 
credit of $0.0036 per share for Retail Orders that add liquidity and 
would pay no fee for Retail Orders with a time-in-force of Day that 
remove liquidity. Further assume that the ETP holder has an ADV of 
Retail Orders with a time-in-force of Day that remove liquidity of 
500,000 shares, of which
     250,000 shares ADV where both sides of the executed orders 
share the same MPID and are both Retail Orders with a time-in-force of 
Day. Both sides of such orders would not pay a fee or receive a credit.
     100,000 shares ADV where both sides of the executed orders 
share the same MPID but are not both Retail Orders with a time-in-force 
of Day (e.g., the liquidity providing order is not a Retail Order). The 
retail removing shares would continue to not pay a fee for removing 
liquidity and the non-retail providing shares would continue to receive 
the tiered or basic rates that are applicable based on the ETP holder's 
qualifying levels.
     The remaining 150,000 shares ADV are where both sides of 
the executed orders do not share the same MPID. The retail removing 
shares would continue to not pay a fee for removing liquidity and the 
non-retail providing shares would continue to receive the tiered or 
basic rates that are applicable based on the ETP holder's qualifying 
levels.
    If instead, the ETP Holder in the example above has an ADV under 
150,000 shares then the ETP Holder would not be subject to the proposed 
fee change.
    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,\15\ in general, and furthers the 
objectives of Sections 6(b)(4) and (5) of the Act,\16\ 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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    \15\ 15 U.S.C. 78f(b).
    \16\ 15 U.S.C. 78f(b)(4) and (5).
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The Proposed Fee Change Is Reasonable
    As discussed above, the Exchange operates in a highly fragmented 
and competitive market. The Commission has repeatedly expressed its 
preference for competition over regulatory intervention in determining 
prices, products, and services in the securities markets. Specifically, 
in Regulation NMS, the Commission highlighted the importance of market 
forces in determining prices and SRO revenues and, also, recognized 
that current regulation of the market system ``has been remarkably 
successful in promoting market competition in its broader forms that 
are most important to investors and listed companies.'' \17\
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    \17\ See Securities Exchange Act Release No. 51808 (June 9, 
2005), 70 FR 37496, 37499 (June 29, 2005).
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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 to reduce use of certain categories of 
products, in response to fee changes. With respect to Retail Orders, 
ETP Holders can choose from any one of the 16 currently operating 
registered exchanges, and numerous off-exchange venues, to route such 
order flow. Accordingly, competitive forces reasonably constrain 
exchange transaction fees that relate to Retail Orders on an exchange. 
Stated otherwise, changes to exchange transaction fees can have a 
direct effect on the ability of an exchange to compete for order flow.
    Given this competitive environment, the proposal represents a 
reasonable attempt to attract additional Retail Orders and retain 
existing Retail Order flow on the Exchange.
    The Exchange believes that the proposed change to adopt lower 
credits for Retail Orders that are internalized is reasonable because 
while ETP Holders would no longer receive credits for such orders, they 
would also continue to not pay any fees for such orders. Further, as 
noted below, the Exchange believes that not providing a credit and not 
charging a fee for Retail Orders that are internalized is reasonable 
because, despite the lower credit, the resulting pricing would remain 
favorable compared to the fees charged for orders that are internalized 
by another market,\18\ and will therefore continue to incentivize 
market participants to submit Retail Orders to the Exchange. That said, 
the Exchange notes that market participants are free to shift their 
order flow to competing venues if they believe other markets offer more

[[Page 35553]]

favorable fees and credits. Additionally, the proposed rule change 
would apply only to a subset of Retail Orders directed to the Exchange 
by ETP Holders, i.e., those that share the same MPID and that add and 
remove retail liquidity. All other Retail Orders would continue to be 
subject to current fees and credits, including those orders that 
qualify for the Retail Order pricing tier.
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    \18\ See infra, note 19.
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    The Exchange believes the proposed rule change is also reasonable 
as it is designed to incentivize ETP Holders to send orders to the 
Exchange that may otherwise be internalized off-exchange, which further 
contributes to a deeper, more liquid market and provide even more 
execution opportunities for market participants. This overall increase 
in activity deepens the Exchange's liquidity pool, offers additional 
cost savings, supports the quality of price discovery, promotes market 
transparency and improves market quality, for all investors.
    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.
The Proposed Fee Change Is an Equitable Allocation of Fees and Credits
    The Exchange believes its proposal is an equitable allocation of 
its fees among its market participants because all ETP Holders that 
participate on the Exchange will be able to internalize their Retail 
Orders on the Exchange at no cost, i.e., they would not receive any 
credit or pay any fee for the execution of Retail Orders that are 
internalized. Without having a view of ETP Holders' activity on other 
markets and off-exchange venues, the Exchange has no way of knowing 
whether this proposed rule change would result in any ETP Holder 
sending more of their Retail Orders to the Exchange. The Exchange 
cannot predict with certainty how many ETP Holders would avail 
themselves of this opportunity but additional Retail Orders would 
benefit all market participants because it would provide greater 
execution opportunities on the Exchange.
    Further, given the competitive market for attracting Retail Order 
flow, the Exchange notes that with this proposed rule change, the cost 
for executing Retail Orders that are internalized would be lower than 
the fees charged by other exchanges that the Exchange competes with for 
order flow. For example, EDGX Equities (``EDGX'') charges its members 
an internalization fee of $0.00050 per share for orders that add 
liquidity and a fee of $0.00050 per share for orders that remove 
liquidity if such members do not have an adding ADV of 10,000,000 
shares.\19\
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    \19\ See EDGX Price List, Fee Codes EA and ER, at https://www.cboe.com/us/equities/membership/fee_schedule/edgx/.
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    The Exchange further believes that the proposed change is equitable 
because it is reasonably related to the value to the Exchange's market 
quality associated with higher volume in Retail Orders. The Exchange 
believes that recalibrating the fees and credits charged for execution 
of Retail Orders that are internalized will continue to attract order 
flow and liquidity to the Exchange, thereby contributing to price 
discovery on the Exchange and benefiting investors generally.
    The Exchange believes that the proposed rule change is equitable 
because maintaining or increasing the proportion of Retail Orders in 
exchange-listed securities that are executed on a registered national 
securities exchange (rather than relying on certain available off-
exchange execution methods) would contribute to investors' confidence 
in the fairness of their transactions and would benefit all investors 
by deepening the Exchange's liquidity pool, supporting the quality of 
price discovery, promoting market transparency and improving investor 
protection.
The Proposed Fee Change Is Not Unfairly Discriminatory
    The Exchange believes that the proposal is not unfairly 
discriminatory. In the prevailing competitive environment, ETP Holders 
are free to disfavor the Exchange's pricing if they believe that 
alternatives offer them better value.
    The Exchange believes that the proposed change is not unfairly 
discriminatory because it would apply to all ETP Holders on an equal 
and non-discriminatory basis. The Exchange believes that the proposed 
rule change is not unfairly discriminatory because maintaining or 
increasing the proportion of Retail Orders in exchange-listed 
securities that are executed on a registered national securities 
exchange (rather than relying on certain available off-exchange 
execution methods) would contribute to investors' confidence in the 
fairness of their transactions and would benefit all investors by 
deepening the Exchange's liquidity pool, supporting the quality of 
price discovery, promoting market transparency and improving investor 
protection. This aspect of the proposed rule change also is consistent 
with the Act because all similarly situated ETP Holders would be 
charged the same fee for executing Retail Orders that are internalized. 
The Exchange also notes that proposed rule change will not adversely 
impact any ETP Holder's ability to qualify for other reduced fee or 
enhanced rebate tiers. Lastly, the submission of Retail Orders is 
optional for ETP Holders in that they could choose whether to submit 
Retail Orders and, if they do, the extent of its activity in this 
regard. 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,\20\ 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 change would encourage the submission of additional 
liquidity to a public exchange, thereby promoting market depth, price 
discovery and transparency and enhancing order execution opportunities 
for ETP Holders. As a result, the Exchange believes that the proposed 
change furthers the Commission's goal in adopting Regulation NMS of 
fostering competition among orders, which promotes ``more efficient 
pricing of individual stocks for all types of orders, large and 
small.'' \21\
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    \20\ 15 U.S.C. 78f(b)(8).
    \21\ Securities Exchange Act Release No. 51808, 70 FR 37495, 
37498-99 (June 29, 2005) (S7-10-04) (Final Rule).
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    Intramarket Competition. The Exchange believes the proposed rule 
change does not impose any burden on intramarket competition that is 
not necessary or appropriate in furtherance of the purposes of the Act. 
Particularly, the proposed change applies to all ETP Holders equally in 
that all ETP Holders would be able to internalize Retail Orders on the 
Exchange at no cost, i.e., they would receive no credit or pay any fee. 
Additionally, the proposed change is designed to attract additional 
order flow to the Exchange. The Exchange believes that the proposed 
rule change would continue to incentivize market participants to submit 
Retail Orders that are internalized and executed on a public and 
transparent market rather

[[Page 35554]]

than on an off-exchange venue because ETP Holders would be able to 
transact such orders at no cost. Greater liquidity benefits all market 
participants on the Exchange by providing more trading opportunities 
and encourages ETP Holders to send orders, thereby contributing to 
robust levels of liquidity, which benefits all market participants. The 
proposed pricing for internalizing Retail Orders would be available to 
all similarly-situated market participants, and, as such, the proposed 
change would not impose a disparate burden on competition among market 
participants on the Exchange.
    Intermarket Competition. The Exchange believes the proposed rule 
change does not impose any burden on intermarket competition that is 
not necessary or appropriate in furtherance of the purposes of the Act. 
The Exchange operates in a highly competitive market in which market 
participants can readily choose to send their orders to other exchanges 
and off-exchange 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 
this proposed fee change would impose any burden on intermarket 
competition.
    The Exchange believes that the proposed change could promote 
competition between the Exchange and other execution venues, including 
those that currently offer similar order types and comparable 
transaction pricing, by encouraging additional orders to be sent to the 
Exchange for execution.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    No written comments were solicited or received with respect to the 
proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    The foregoing rule change has become effective pursuant to Section 
19(b)(3)(A)(ii) of the Act.\22\
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    \22\ 15 U.S.C. 78s(b)(3)(A)(ii).
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    At any time within 60 days of the filing of the proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is: (i) 
Necessary or appropriate in the public interest; (ii) for the 
protection of investors; or (iii) otherwise in furtherance of the 
purposes of the Act. If the Commission takes such action, the 
Commission shall institute proceedings to determine whether the 
proposed rule should be approved or disapproved.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to rule-comments@sec.gov. Please include 
File Number SR-NYSEArca-2021-52 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-NYSEArca-2021-52. 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 Number SR-NYSEArca-2021-52 and should be submitted 
on or before July 27, 2021.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\23\
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    \23\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-14254 Filed 7-2-21; 8:45 am]
BILLING CODE 8011-01-P


