[Federal Register Volume 88, Number 34 (Tuesday, February 21, 2023)]
[Notices]
[Pages 10580-10585]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03482]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-96922; File No. SR-NYSEAMER-2023-12]


Self-Regulatory Organizations; NYSE American LLC; Notice of 
Filing and Immediate Effectiveness of Proposed Change To Amend Rule 
7.19E Pertaining to Pre-Trade Risk Controls

February 14, 2023.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby given 
that, on February 9, 2023, NYSE American LLC (``NYSE American'' or the 
``Exchange'') filed with the Securities and Exchange Commission (the 
``Commission'') the proposed rule change as described in Items I, II, 
and III below, which Items have been prepared by the self-regulatory 
organization. The Commission is publishing this notice to solicit 
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend Rule 7.19E pertaining to pre-trade 
risk controls to make additional pre-trade risk controls available to 
Entering Firms. 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 Rule 7.19E pertaining to pre-trade 
risk controls to make additional pre-trade risk controls available to 
Entering Firms. The Exchange originally filed on November 17, 2022 to 
make this change immediately effective and that filing was published 
for comment on December 5, 2022.\4\ In light of a comment letter dated 
January 5, 2023,\5\ the Exchange withdrew the original filing and now 
submits this revised filing to address several of the points raised in 
the comment letter.
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    \4\ See Securities Exchange Act Release No. 96403 (November 29, 
2022), 87 FR 74459 (December 5, 2022) (SR-NYSEAMER-2022-53).
    \5\ See Letter to Vanessa Countryman, Secretary, Securities and 
Exchange Commission, from Gerard P. O'Connor, Vice President and 
General Counsel of Hyannis Port Research, Inc. (``HPR Letter'') 
dated January 5, 2023, available at https://www.sec.gov/comments/sr-nyseamer-2022-53/srnyseamer202253-20154615-322842.pdf. HPR is a 
provider of (among other things) non-exchange based risk controls 
solutions.
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Background and Purpose
    In 2020, in order to assist ETP Holders' efforts to manage their 
risk, the Exchange amended its rules to add Rule 7.19E (Pre-Trade Risk 
Controls),\6\ which established a set of optional pre-trade risk 
controls by which Entering Firms and their designated Clearing Firms 
\7\ could set credit limits and other pre-trade risk controls for an 
Entering Firm's trading on the Exchange and authorize the Exchange to 
take action if those credit limits or other pre-trade risk controls are 
exceeded. Specifically, the Exchange added a Gross Credit Risk Limit, a 
Single Order Maximum Notional Value Risk Limit, and a Single Order 
Maximum Quantity Risk Limit \8\ (collectively, the ``2020 Risk 
Controls'').
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    \6\ See Securities Exchange Act Release No. 88878 (May 14, 
2020), 85 FR 30770 (May 20, 2020) (SR-NYSEAMER-2020-38).
    \7\ The terms ``Entering Firm'' and ``Clearing Firm'' are 
defined in Rule 7.19E.
    \8\ The terms ``Gross Credit Risk Limit,'' ``Single Order 
Maximum Notional Value Risk Limit, and ``Single Order Maximum 
Quantity Risk Limit'' are defined in Rule 7.19E.
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    The Exchange now proposes to expand the list of the optional pre-
trade risk controls available to Entering Firms by adding several 
additional pre-trade risk controls that would provide Entering Firms 
with enhanced abilities to manage their risk with respect to orders on 
the Exchange. As detailed below, each of the proposed additional risk 
controls is modeled on risk settings that are already available on the 
Cboe,\9\

[[Page 10581]]

Nasdaq,\10\ MEMX,\11\ and MIAX Pearl \12\ equities exchanges.
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    \9\ See Securities Exchange Act Release Nos. 80611 (May 5, 
2017), 82 FR 22045 (May 11, 2017) (SR-BatsBZX-2017-24) (adopting 
Rule 11.13, Interpretation and Policies .01); 80612 (May 5, 2017), 
82 FR 22024 (May 11, 2017) (SR-BatsBYX-2017-07) (same); 80608 (May 
5, 2017), 82 FR 22030 (May 11, 2017) (SR-BatsEDGA-2017-07) (adopting 
Rule 11.10, Interpretation and Policies .01); 80607 (May 5, 2017), 
82 FR 22027 (May 11, 2017) (SR-BatsEDGX-2017-16) (same).
    \10\ See, e.g., Securities Exchange Act Release Nos. 82479 
(January 10, 2018), 83 FR 2471 (January 17, 2018) (SR-Nasdaq-2018-
002) (adopting IM-6200-1); 90577 (December 7, 2020), 85 FR 80202 
(December 11, 2020) (SR-Nasdaq-2020-79) (moving IM-6200-1 into 
Equity 6, Section 5). See also Securities Exchange Act Release Nos. 
82545 (January 19, 2018), 83 FR 3834 (January 26, 2018) (SR-BX-2018-
001) (adopting Rule 4765 and commentary thereto); 91830 (May 10, 
2021), 86 FR 26567 (May 14, 2021) (SR-BX-2021-012) (moving Rule 4765 
and commentary into Equity 6, Section 5).
    \11\ See Securities Exchange Act Release No. 89581 (August 17, 
2020), 85 FR 51799 (August 21, 2020) (SR-MEMX-2020-04) (adopting 
Rule 11.10, Interpretation and Policies .01).
    \12\ See Securities Exchange Act Release Nos. 89563 (August 14, 
2020), 85 FR 51510 (August 20, 2020) (SR-PEARL-2020-03) (adopting 
Rule 2618(a)(1)(A)-(D)); 96205 (November 1, 2022), 87 FR 67080 
(November 7, 2022) (SR-PEARL-2022-43) (adopting subsections (E)-(H) 
to Rule 2618(a)(1)).
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    Like the 2020 Risk Controls, use of the pre-trade risk controls 
proposed herein is optional, but all orders on the Exchange would pass 
through these risk checks. As such, an Entering Firm that does not 
choose to set limits pursuant to the new proposed pre-trade risk 
controls would not achieve any latency advantage with respect to its 
trading activity on the Exchange.
    The HPR Letter questions why the Exchange proposes to make all 
orders on the Exchange pass through its risk checks, even if a 
particular firm trading on the Exchange opts not to employ the 
Exchange's pre-trade risk controls. The Exchange has chosen to 
implement its risk checks ``symmetrically'' to all orders because that 
is the functionality that clients have specifically requested, and it 
is also the recognized best practice in this area. In a September 2021 
white paper entitled ``Market Lens: Exchange Best Practices for 
Reducing Operational Risk at Broker-Dealers,'' \13\ Citadel Securities 
requested that exchanges assist firms in mitigating operational trading 
risk by instituting exchange-based risk controls, but expressly 
cautioned exchanges against segmenting orders into those that would 
pass through risk checks versus those that would not. Citadel noted 
that such segmentation of orders would ``produce incentives for all 
firms to avoid using any controls, for fear of suffering a competitive 
disadvantage.'' \14\ Instead, Citadel recommended that exchanges 
``ensure orders follow the same order processing logic regardless of 
which options or features are enabled,'' \15\ in order to eliminate any 
competitive advantage or disadvantages for clients.
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    \13\ See Citadel Securities, ``Market Lens: Exchange Best 
Practices for Reducing Operational Risk at Broker-Dealers'' 
(``Citadel white paper'') dated September 2021, available at https://www.citadelsecurities.com/wp-content/uploads/sites/2/2021/09/Citadel_Securities_Market-Lens_Sept_2021_Exchange-Best-Practices-for-Reducing-Operational-Risk.pdf. As Citadel put it (at page 5):
    Insufficiently well-designed and tested controls can create what 
amount to penalties, driven by the time and computational power 
required to perform various stages of checks, if applied only to 
participants who opt-in to their use. This could produce incentives 
for all firms to avoid using any controls, for fear of suffering a 
competitive disadvantage. One way to address this, while maintaining 
choice for member firms, is to ensure orders follow the same order 
processing logic regardless of which options or features are 
enabled--similar to how all colocated servers in an equalized data 
center incur the same cabling distance to the matching engine, 
regardless of their physical proximity to it. Additionally, 
exchanges should vigorously test controls to ensure no latency 
penalty exists in practice. Exchanges should actively publicize the 
net-neutral risk controls.
    \14\ Id. at 5.
    \15\ Id.
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    This is the model that the Exchange used in building the 2020 Risk 
Controls that the Commission approved in 2020,\16\ and is the same 
model that the Exchange proposes would apply to the additional pre-
trade risk checks proposed here. There is nothing unique about this 
approach. Functionality on the Exchange's trading systems is often 
applied uniformly to all orders, regardless of whether a particular 
client has opted to use that functionality for a particular order. For 
example, the Exchange's limit order price protection applies generally 
to trading on the Exchange and orders with limit prices are not 
processed more slowly than those without. Similarly, the Exchange's 
trading systems check all orders for a variety of details and modifiers 
(e.g., duplicative client order check, order capacity check, and self-
trade prevention).
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    \16\ See Securities Exchange Act Release No. 88776 (April 29, 
2020), 85 FR 26768 (May 5, 2020) (SR-NYSE-2020-17) (order approving 
pre-trade risk controls on the Exchange's affiliate exchange, the 
New York Stock Exchange LLC). The Commission concluded that ``the 
proposed rule change is reasonably designed to provide members with 
optional tools to manage their credit risk.'' Id. at 26770.
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    The Exchange understands that the risk checks of other exchanges, 
on which the proposed rule is modeled, also apply symmetrically to all 
orders.\17\ The Exchange also notes that the Citadel white paper cited 
above was written ``in collaboration with several major exchanges, 
including NYSE, Nasdaq, MIAX, MEMX, and BOX,'' suggesting that some or 
all of those exchanges may also employ the symmetrical application of 
risk checks that the Citadel white paper recommends.\18\
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    \17\ See, e.g., MEMX Risk FAQ, dated October 13, 2020, available 
at https://info.memxtrading.com/us-equities-faq/#Bookmark21 (``The 
risk checks are applied in a consistent manner to all participant 
orders in order to mitigate risk without incurring latency 
disadvantage.''); MIAX Pearl Equities Exchange User Manual, updated 
October 2022, available at https://www.miaxequities.com/sites/default/files/website_file-files/MIAX_Pearl_Equities_User_Manual_October_2022.pdf, at 29 (stating 
that all but two of the exchange's 14 risk checks ``are latency 
equalized i.e. there is no latency penalty for a member when opting 
into and leveraging a risk protection available on the exchange when 
entering an order as compared to a member not opting into the risk 
protection when entering an order'').
    \18\ See Citadel white paper, supra note 13, at 2.
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    The Exchange stated in its original filing for the current proposal 
that it expects that any latency added by the proposed additional pre-
trade risk controls would be de minimis. Specifically, the Exchange 
expects that the latency added by the combination of the 2020 Risk 
Checks plus the proposed additional pre-trade risk controls would be 
significantly less than one microsecond. Nevertheless, seizing on the 
phrase ``de minimis,'' HPR argues that the Commission's 2016 
interpretation regarding automated quotations under Regulation NMS \19\ 
applies here and should require the Exchange to justify this de minimis 
latency change in a number of ways.\20\ But that Commission 
interpretation pertains to ``intentional access delays,'' like speed 
bumps--not to the issues here. The Exchange's pre-trade risk controls 
are not an intentional access delay,\21\ but a functional enhancement 
to the Exchange's trading systems, and, like any change to a trading 
system's function or performance, may impact the overall speed of 
trading on the Exchange in ways that can increase or decrease overall 
latency. It is within the Exchange's prerogative as a market center in 
the current hotly competitive environment to assess whether and when to 
make functional enhancements to its trading systems. What is key under 
the Exchange Act is that any anticipated latency effects of such 
enhancements are applied uniformly, to all orders of all market 
participants, in a non-discriminatory way--as the risk controls 
proposed here would be. If market participants find that the latency 
cost of such enhancements is not justified by the additional 
functionality they offer, such market participants will vote with their 
feet and send their order flow elsewhere.
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    \19\ See also Securities Exchange Act Release No. 78102 (June 
17, 2016), 81 FR 40785 (June 23, 2016) (File No. S7-03-16) 
(Commission Interpretation Regarding Automated Quotations Under 
Regulation NMS), available at https://www.sec.gov/rules/interp/2016/34-78102.pdf.
    \20\ HPR Letter, supra note 5, at 5-6.
    \21\ Indeed, the Commission did not treat any of the other 
exchanges' filings for pre-trade risk controls listed above in notes 
9-12 as ``intentional access delays.''
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    With one exception, the additional risk checks proposed here would 
be a

[[Page 10582]]

functional enhancement to the Exchange's Pillar gateway \22\ and the 
risk checks would be applied to all orders on the Exchange. While the 
Exchange strongly believes that symmetrical application of all pre-
trade risk controls is the appropriate approach (as explained above), 
providing customers an opt-out ability would require the Exchange to 
provide new order entry ports that would bypass the evaluation of such 
pre-trade risk protections. Providing such new ports would burden 
customers with additional costs to purchase such ports and to migrate 
their order flow to such ports. The Exchange does not believe that the 
added expense of creating such new ports (on the part of the Exchange) 
or of purchasing and migrating to them (on the part of customers) is 
justified in light of the de minimis latency imposed by the pre-trade 
risk controls at issue.
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    \22\ The one exception is the proposed pre-trade risk control in 
paragraph (b)(2)(B), discussed below, which would permit an Entering 
Firm to set dollar-based or percentage-based controls as to the 
price of an order that are equal to or more restrictive than the 
levels set out in Rule 7.31E(a)(2)(B) regarding Limit Order Price 
Protection. This risk check, like the Exchange's Limit Order Price 
Protection, is implemented in the matching engine.
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    The proposed new pre-trade risk controls proposed herein would be 
available to be set by Entering Firms only. Clearing Firms designated 
by an Entering Firm would continue to be able to view all pre-trade 
risk controls set by the Entering Firm and to set the 2020 Risk 
Controls on the Entering Firm's behalf.
Proposed Amendment to Rule 7.19E
    To accomplish this rule change, the Exchange proposes to amend 
paragraph (a) to include a new paragraph (a)(3) that would define the 
term ``Pre-Trade Risk Controls'' as all of the risk controls listed in 
proposed paragraph (b), inclusive of the 2020 Risk Controls and the 
proposed new risk controls.
    In proposed paragraph (b), the Exchange proposes to list all Pre-
Trade Risk Controls available to Entering Firms, which would include 
the existing 2020 Risk Controls and the proposed new controls. The 
Exchange proposes to move the definition of Gross Credit Risk Limit 
from current paragraph (a)(5) to proposed paragraph (b)(1), with no 
substantive change. Next, the Exchange proposes to add paragraph 
(b)(2), which would list all available ``Single Order Risk Controls.'' 
The Exchange proposes to move the definitions of Single Order Maximum 
Notional Value Risk Limit and Single Order Maximum Quantity Risk Limit 
from current paragraphs (a)(3) and (a)(4) to proposed paragraph 
(b)(2)(A), with no substantive change. Next, the Exchange proposes to 
add paragraphs (b)(2)(B) through (b)(2)(F) to enumerate the proposed 
new Single Order Risk Controls, as follows:
    (B) controls related to the price of an order (including 
percentage-based and dollar-based controls);
    (C) controls related to the order types or modifiers that can be 
utilized;
    (D) controls to restrict the types of securities transacted 
(including but not limited to restricted securities);
    (E) controls to prohibit duplicative orders; and
    (F) controls related to the size of an order as compared to the 
average daily volume of the security (including the ability to specify 
the minimum average daily volume for the securities for which such 
controls will be activated).
    Each of the Single Order Risk Controls in proposed paragraph (b)(2) 
is substantively identical to risk settings available on the Cboe, 
Nasdaq, MEMX, and MIAX Pearl \23\ equities exchanges. As such, the 
proposed new Pre-Trade Risk Controls are familiar to market 
participants and are not novel.
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    \23\ See supra notes 9-12.
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    The Exchange proposes to move current paragraph (b)(2) to proposed 
paragraph (c) and to re-name that paragraph ``Pre-Trade Risk Controls 
Available to Clearing Firms.'' The Exchange proposes to renumber 
current paragraphs (b)(2)(A), (b)(2)(B), and (b)(2)(C) as paragraphs 
(c)(1), (c)(2), and (c)(3) accordingly. The Exchange proposes to smooth 
the grammar in proposed paragraph (c)(1) by moving the ``or both'' 
language from the end of the sentence to the beginning, to clarify that 
an Entering Firm that does not self-clear may designate its Clearing 
Firm to take either or both of the following actions: viewing or 
setting Pre-Trade Risk Controls on the Entering Firm's behalf. Finally, 
in proposed paragraph (c)(1)(B), the Exchange proposes to specify that 
Clearing Firms so-designated may only set the 2020 Risk Controls on an 
Entering Firm's behalf; the proposed new risk controls set out in 
proposed paragraph (b)(2)(B) through (b)(2)(F) are available to be set 
by Entering Firms only. The Exchange does not propose any changes to 
proposed paragraph (c)(2), and with respect to proposed paragraph 
(c)(3), proposes only to update internal cross-references.
    The Exchange proposes to move current paragraph (b)(3) regarding 
``Setting and Adjusting Pre-Trade Risk Controls'' to proposed paragraph 
(d), and to renumber current paragraphs (b)(3)(A) and (b)(3)(B) as 
proposed paragraphs (d)(1) and (d)(2) accordingly. The Exchange 
proposes to amend the text of proposed paragraph (d)(2) to state that 
in addition to Pre-Trade Risk Controls being available to be set at the 
MPID level or at one or more sub-IDs associated with that MPID, or 
both, Pre-Trade Risk Controls related to the short selling of 
securities, transacting in restricted securities, and the size of an 
order compared to the average daily volume of a security must be set 
per symbol.
    The Exchange proposes to move current paragraph (b)(4) regarding 
``Notifications'' to paragraph (e), with no changes.
    The Exchange proposes to move current paragraph (c) regarding 
``Automated Breach Actions'' to proposed paragraph (f) and to renumber 
current paragraphs (c)(1), (c)(2), (c)(3), and (c)(4) as paragraphs 
(f)(1), (f)(2), (f)(3), and (f)(4) accordingly. The Exchange proposes 
no changes to the text of proposed paragraphs (f)(1), (f)(3), or 
(f)(4), other than to update an internal cross-reference. With respect 
to proposed paragraph (f)(2) regarding ``Breach Action for Single Order 
Risk Limits,'' the Exchange proposes to change the word ``Limits'' in 
the heading to ``Controls.'' The Exchange further proposes to amend the 
text of current paragraph (c)(2) to specify in paragraph (f)(2)(A) that 
if an order would breach a price control under paragraph (b)(2)(B), it 
would be rejected or canceled as specified in Rule 7.31E(a)(2)(B) (the 
``Limit Order Price Protection Rule''), while providing in paragraph 
(f)(2)(B) that an order that breaches the designated limit of any other 
Single Order Risk Control would be rejected.
    The Exchange proposes to move current paragraph (d) regarding 
``Reinstatement of Entering Firm After Automated Breach Action'' to 
proposed paragraph (g), with no changes.
    The Exchange proposes to move current paragraph (e) regarding 
``Kill Switch Actions'' to proposed paragraph (h) with no changes, 
other than to update an internal cross-reference.
    The Exchange proposes no changes to Commentary .01 to the Rule. The 
Exchange proposes to add Commentary .02 to specify the interplay 
between the Exchange's Limit Order Price Protection Rule and the price 
controls that may be set by an Entering Firm pursuant to proposed 
paragraph (b)(2)(B). Proposed Commentary .02 specifies that pursuant to 
paragraph (b)(2)(B), an Entering Firm may always set dollar-based or 
percentage-based controls as to the price of an order that are equal to 
or more restrictive than the levels set out in Rule

[[Page 10583]]

7.31E(a)(2)(B) regarding Limit Order Price Protection (e.g., the 
greater of $0.15 or 10% (for securities with a reference price up to 
and including $25.00), 5% (for securities with a reference price of 
greater than $25.00 and up to and including $50.00), or 3% (for 
securities with a reference price greater than $50.00) away from the 
NBB or NBO). However, an Entering Firm may set price controls under 
paragraph (b)(2)(B) that are less restrictive than the levels in the 
Limit Order Price Protection Rule only (i) outside of Core Trading 
Hours or (ii) with respect to LOC Orders.
Continuing Obligations of ETP Holders Under Rule 15c3-5
    The proposed Pre-Trade Risk Controls described here are meant to 
supplement, and not replace, the ETP Holders' own internal systems, 
monitoring, and procedures related to risk management. The Exchange 
does not guarantee that these controls will be sufficiently 
comprehensive to meet all of an ETP Holder's needs, the controls are 
not designed to be the sole means of risk management, and using these 
controls will not necessarily meet an ETP Holder's obligations required 
by Exchange or federal rules (including, without limitation, the Rule 
15c3-5 under the Act \24\ (``Rule 15c3-5'')). Use of the Exchange's 
Pre-Trade Risk Controls will not automatically constitute compliance 
with Exchange or federal rules and responsibility for compliance with 
all Exchange and SEC rules remains with the ETP Holder.\25\
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    \24\ See 17 CFR 240.15c3-5.
    \25\ See also Commentary .01 to Rule 7.19E, which provides that 
``[t]he pre-trade risk controls described in this Rule are meant to 
supplement, and not replace, the ETP Holder's own internal systems, 
monitoring and procedures related to risk management and are not 
designed for compliance with Rule 15c3-5 under the Exchange Act. 
Responsibility for compliance with all Exchange and SEC rules 
remains with the ETP Holder.''
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Timing and Implementation
    The Exchange anticipates completing the technological changes 
necessary to implement the proposed rule change in the first quarter of 
2023, but in any event no later than April 30, 2023. The Exchange 
anticipates announcing the availability of the Pre-Trade Risk Controls 
introduced in this filing by Trader Update in the first quarter of 
2023.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Act,\26\ in general, and furthers the 
objectives of Section 6(b)(5) of the Act,\27\ in particular, because it 
is designed to prevent fraudulent and manipulative acts and practices, 
to promote just and equitable principles of trade, to foster 
cooperation and coordination with persons engaged in regulating, 
clearing, settling, processing information with respect to, and 
facilitating transactions in securities, to remove impediments to and 
perfect the mechanism of a free and open market and a national market 
system, and, in general, to protect investors and the public interest, 
and because it is not designed to permit unfair discrimination between 
customers, issuers, brokers, or dealers.\28\
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    \26\ 15 U.S.C. 78f(b).
    \27\ 15 U.S.C. 78f(b)(5).
    \28\ HPR argues that the Exchange should be compelled to submit 
this proposal as a fee filing pursuant to Section 19(b)(3)(A)(ii) of 
the Exchange Act. See HPR Letter, supra note 5, at 6-8. But that 
provision only applies to rule filings ``establishing or charging a 
due, fee, or other charge imposed by the [SRO] . . . .'' Because the 
Exchange does not propose to charge any fees for the proposed 
services here, Section 19(b)(3)(A)(ii) is inapplicable. Notably, the 
Commission did not treat any of the other exchanges' filings for 
pre-trade risk controls listed above in notes 9-12 as fee filings.
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    Specifically, the Exchange believes that the proposed rule change 
will remove impediments to and perfect the mechanism of a free and open 
market and a national market system because the proposed additional 
Pre-Trade Risk Controls would provide Entering Firms with enhanced 
abilities to manage their risk with respect to orders on the Exchange. 
The proposed additional Pre-Trade Risk Controls are not novel; they are 
based on existing risk settings already in place on the Cboe, Nasdaq, 
MEMX, and MIAX Pearl equities exchanges \29\ and market participants 
are already familiar with the types of protections that the proposed 
risk controls afford. As such, the Exchange believes that the proposed 
additional Pre-Trade Risk Controls would provide a means to address 
potentially market-impacting events, helping to ensure the proper 
functioning of the market.
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    \29\ See supra notes 9-12.
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    In addition, the Exchange believes that the proposed rule change 
will protect investors and the public interest because the proposed 
additional Pre-Trade Risk Controls are a form of impact mitigation that 
will aid Entering Firms in minimizing their risk exposure and reduce 
the potential for disruptive, market-wide events. The Exchange 
understands that ETP Holders implement a number of different risk-based 
controls, including those required by Rule 15c3-5. The controls 
proposed here will serve as an additional tool for Entering Firms to 
assist them in identifying any risk exposure. The Exchange believes the 
proposed additional Pre-Trade Risk Controls will assist Entering Firms 
in managing their financial exposure which, in turn, could enhance the 
integrity of trading on the securities markets and help to assure the 
stability of the financial system.
    The Exchange believes that the proposed rule change will remove 
impediments to and perfect the mechanism of a free and open market and 
a national market system by permitting Entering Firms to set price 
controls under paragraph (b)(2)(B) that are equal to or more 
restrictive than the levels in the Exchange's Limit Order Price 
Protection Rule, but preventing Entering Firms from setting price 
controls that are less restrictive than those levels during Core 
Trading Hours in most circumstances. The Exchange's Limit Order Price 
Protection Rule protects from aberrant trades, thus improving 
continuous trading and price discovery. The Exchange believes that 
Entering Firms should not be able to circumvent the protections of that 
rule by setting lower levels during Core Trading Hours, except with 
respect to orders that participate in the Closing Auction (e.g., LOC 
Orders).\30\ But under the proposed rule, Entering Firms seeking to 
further manage their exposure to aberrant trades would be permitted to 
set price controls at levels that are more restrictive than in the 
Exchange's Limit Order Price Protection Rule. Additionally, because 
price controls set by an Entering Firm under paragraph (b)(2)(B) would 
function as a form of limit order price protection, the Exchange 
believes that it would remove impediments to and perfect the mechanism 
of a free and open market and a national market system for an order 
that would breach such a price control to be rejected or canceled as 
specified in the Limit Order Price Protection Rule.
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    \30\ LOC Orders are not subject to the Limit Order Price 
Protection in Rule 7.31E(a)(2)(B).
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    Finally, the Exchange believes that the proposed rule change does 
not unfairly discriminate among the Exchange's ETP Holders because use 
of the proposed additional Pre-Trade Risk Controls is optional and is 
not a prerequisite for participation on the Exchange. In addition, 
because all orders on the Exchange would pass through the risk checks, 
there would be no difference in the latency experienced by ETP Holders 
who have opted to use the proposed additional Pre-Trade Risk Controls 
versus those who have not opted to use them. The Exchange does not 
believe it is unfairly discriminatory to have all orders on the 
Exchange pass

[[Page 10584]]

through the risk checks, even for ETP Holders that opt not to use the 
Exchange's pre-trade risk controls. As described above, the proposed 
risk checks are a functional enhancement to the Exchange's trading 
systems that the Exchange proposes to apply uniformly to all orders on 
the Exchange; by applying them uniformly, the Exchange would avoid 
producing incentives for all firms to avoid using the risk controls for 
fear of suffering a competitive disadvantage. Additionally, any latency 
imposed by the pre-trade risk controls proposed here is de minimis and 
would not have a material impact on the order flow of ETP Holders that 
choose to employ non-exchange providers (such as HPR) to provide them 
with risk control solutions.

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

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act. In fact, the Exchange 
believes that the proposal will have a positive effect on competition 
because, by providing Entering Firms additional means to monitor and 
control risk, the proposed rule will increase confidence in the proper 
functioning of the markets. The Exchange believes the proposed 
additional Pre-Trade Risk Controls will assist Entering Firms in 
managing their financial exposure which, in turn, could enhance the 
integrity of trading on the securities markets and help to assure the 
stability of the financial system. As a result, the level of 
competition should increase as public confidence in the markets is 
solidified.
    In its letter, HPR contends that it is an unnecessary burden on 
competition for the Exchange to have all orders--even the orders of ETP 
Holders that choose not to use the proposed pre-trade risk controls--to 
pass through the Exchange's checks because doing so will reduce 
customer demand for HPR's risk control services. HPR argues that by 
imposing latency from its risk checks on all orders, the Exchange has 
created a ``latency tax'' that would encourage customers to use the 
Exchange's risk controls instead of third-party risk solutions like 
HPR's.\31\ These assertions are factually incorrect and obscure the 
very real differences between the Exchange's pre-trade risk controls 
and the services that HPR offers. The Exchange understands that HPR's 
enterprise risk management solutions, like those of its competitors, 
permit its clients to track aggregated risk across all markets and 
provide consolidated risk management capabilities. In contrast, 
exchange based-solutions such as the Exchange's only offer tools to 
manage risk across the Exchanges and its affiliate exchanges (e.g., the 
NYSE Group exchanges). The Exchange's proposed risk checks would not 
and could not replace HPR's far broader offering. In addition, as the 
Exchange made clear in its filing for the 2020 Risk Controls and 
repeats here, the Exchange's pre-trade risk controls are not a complete 
Rule 15c3-5 solution. The Exchange's risk controls are meant to 
supplement, and not replace, an ETP Holder's own internal risk 
management systems (which firms may outsource to providers like HPR), 
and the Exchange's controls are not designed to be the sole means of 
risk management that any firm uses. Additionally, any latency imposed 
by the Pre-Trade Risk Controls proposed here is de minimis and would 
not have a material impact on the order flow of ETP Holders that choose 
to employ non-exchange providers (such as HPR) to provide them with 
risk control solutions.
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    \31\ See HPR Letter, supra note 5, at 4 (claiming the Exchange 
has ``architected the proposed risk controls to give [itself] an 
unfair and anti-competitive latency advantage over non-exchange 
offerings provided by broker-dealers or vendors such as HPR.'').
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    Finally, the Exchange believes it would be an unfair burden on 
competition for the Commission to suspend and ultimately disapprove the 
pre-trade risk controls proposed here, where substantially identical 
controls are already in place on numerous of the Exchange's competitor 
exchanges.\32\ Since 2017, equities exchanges have been adding pre-
trade risk controls to their trading systems. It would be an 
unjustifiable burden on competition and on the Exchange for the 
Commission to permit all equities exchanges to offer such functionality 
except for the Exchange and its affiliates mentioned in the HPR Letter. 
Specifically, the Exchange would be at a significant competitive 
disadvantage vis-[agrave]-vis other equities exchanges that already 
offer the type of pre-trade risk controls proposed in this filing as 
ETP Holders may choose to direct order flow away from the Exchange 
until it is able to offer such competing pre-trade risk controls.
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    \32\ See supra notes 9-12.
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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 Exchange has filed the proposed rule change pursuant to Section 
19(b)(3)(A)(iii) of the Act \33\ and Rule 19b-4(f)(6) thereunder.\34\ 
Because the foregoing proposed rule change does not: (i) significantly 
affect the protection of investors or the public interest; (ii) impose 
any significant burden on competition; and (iii) become operative for 
30 days from the date on which it was filed, or such shorter time as 
the Commission may designate, it has become effective pursuant to 
Section 19(b)(3)(A)(iii) of the Act \35\ and subparagraph (f)(6) of 
Rule 19b-4 thereunder.\36\
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    \33\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \34\ 17 CFR 240.19b-4(f)(6).
    \35\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \36\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii) 
requires a self-regulatory organization to give the Commission 
written notice of its intent to file the proposed rule change, along 
with a brief description and text of the proposed rule change, at 
least five business days prior to the date of filing of the proposed 
rule change, or such shorter time as designated by the Commission. 
The Exchange has satisfied this requirement.
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    At any time within 60 days of the filing of such proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is necessary or 
appropriate in the public interest, for the protection of investors, or 
otherwise in furtherance of the purposes of the Act. If the Commission 
takes such action, the Commission shall institute proceedings under 
Section 19(b)(2)(B) \37\ of the Act to determine whether the proposed 
rule change should be approved or disapproved.
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    \37\ 15 U.S.C. 78s(b)(2)(B).
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IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-NYSEAMER-2023-12 on the subject line.

Paper Comments

     Send paper comments in triplicate to: Secretary, 
Securities and Exchange

[[Page 10585]]

Commission, 100 F Street NE, Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSEAMER-2023-12. 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-NYSEAMER-2023-12 and should be submitted 
on or before March 14, 2023.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\38\
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    \38\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-03482 Filed 2-17-23; 8:45 am]
BILLING CODE 8011-01-P


