Self-Regulatory Organizations: MIAX Emerald, LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Its Fee Schedule To Adjust the Options Regulatory Fee, 48268-48272 [2021-18462]

Download as PDF 48268 Federal Register / Vol. 86, No. 164 / Friday, August 27, 2021 / Notices disapprove, the proposed rule change (File No. SR–NYSEArca–2021–57). SECURITIES AND EXCHANGE COMMISSION [Release No. 34–92722; File No. SR– NYSEArca–2021–57] Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Designation of a Longer Period for Commission Action on a Proposed Rule Change To List and Trade Shares of the NYDIG Bitcoin ETF Under NYSE Arca Rule 8.201–E August 23, 2021. lotter on DSK11XQN23PROD with NOTICES1 On June 30, 2021, NYSE Arca, Inc. (‘‘NYSE Arca’’) filed with the Securities and Exchange Commission (‘‘Commission’’), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 a proposed rule change to list and trade shares of the NYDIG Bitcoin ETF under NYSE Arca Rule 8.201–E. The proposed rule change was published for comment in the Federal Register on July 19, 2021.3 The Commission has received comments on the proposed rule change.4 Section 19(b)(2) of the Act 5 provides that within 45 days of the publication of notice of the filing of a proposed rule change, or within such longer period up to 90 days (i) as the Commission may designate if it finds such longer period to be appropriate and publishes its reasons for so finding or (ii) as to which the self-regulatory organization consents, the Commission shall either approve the proposed rule change, disapprove the proposed rule change, or institute proceedings to determine whether the proposed rule change should be disapproved. The 45th day after publication of the notice for this proposed rule change is September 2, 2021. The Commission is extending this 45-day time period. The Commission finds that it is appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change and the comments received. Accordingly, pursuant to Section 19(b)(2) of the Act,6 the Commission designates October 17, 2021, as the date by which the Commission shall either approve or disapprove, or institute proceedings to determine whether to 1 15 U.S.C. 78s(b)(1). CFR 240.19b–4. 3 See Securities Exchange Act Release No. 92395 (July 13, 2021), 86 FR 38129 (July 19, 2021). 4 Comments received on the proposed rule change are available at: https://www.sec.gov/comments/srnysearca-2021-57/srnysearca202157.htm. 5 15 U.S.C. 78s(b)(2). 6 Id. 2 17 VerDate Sep<11>2014 17:52 Aug 26, 2021 Jkt 253001 For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.7 Jill M. Peterson, Assistant Secretary. [FR Doc. 2021–18458 Filed 8–26–21; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–92726; File No. SR– EMERALD–2021–27] Self-Regulatory Organizations: MIAX Emerald, LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Its Fee Schedule To Adjust the Options Regulatory Fee August 23, 2021. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the ‘‘Act’’),1 and Rule 19b–4 thereunder,2 notice is hereby given that on August 12, 2021, MIAX Emerald, LLC (‘‘MIAX Emerald’’ or ‘‘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 Exchange. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Exchange is filing a proposal to amend the Exchange’s Fee Schedule (‘‘Fee Schedule’’) to adjust the Options Regulatory Fee (‘‘ORF’’). The text of the proposed rule change is available on the Exchange’s website at https://www.miaxoptions.com/rulefilings/emerald, at MIAX’s principal office, 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 Exchange 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 these statements may be examined at the places specified in Item IV below. The 7 17 CFR 200.30–3(a)(31). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. Frm 00155 Fmt 4703 A. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose Currently, the Exchange assesses ORF in the amount of $0.00060 per contract side. The Exchange proposes to increase the amount of ORF from $0.00060 per contract side to $0.0016 per contract side. The Exchange initially filed this proposal on July 30, 2021 (SR– EMERALD–2021–24) and withdrew such filing on August 12, 2021. The Exchange proposes to implement the fee change effective August 12, 2021. In light of historical and projected volume changes and shifts in the industry and on the Exchange, as well as changes to the Exchange’s regulatory cost structure, the Exchange proposes to change the amount of ORF that will be collected by the Exchange. The Exchange’s proposed change to the ORF should balance the Exchange’s regulatory revenue against the anticipated regulatory costs. The Exchange will continue to monitor ORF to ensure that revenue collected from the ORF, in combination with other regulatory fees and fines, does not exceed the Exchange’s total regulatory costs. The Exchange notes it originally adopted the current ORF amount at a significantly lower rate as the Exchange had just begun operations and that the amount of ORF it collects has remain unchanged since it was first adopted in 2019.3 When the Exchange set the amount of its current ORF (almost 21⁄2 years ago), it was a brand new marketplace, and the amount was based on cost and revenue projections that were applicable to a new market. As such, the Exchange’s cost structure, including regulatory costs and projections, were significantly lower. The Exchange’s regulatory cost structure has since significantly increased since that time, as the Exchange has had to deploy significant resources and capital as the Exchange’s membership base, volume, and market share have grown. The increase in cost structure has outgrown any revenue increase as a result of higher volumes. Therefore, the Exchange believes it is reasonable to increase the amount of ORF assessed to Members, notwithstanding the fact that 3 See Securities Exchange Act Release No. 85251 (March 6, 2019), 84 FR 8931 (March 12, 2019) (SR– EMERALD–2019–01). 1 15 PO 00000 Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements. Sfmt 4703 E:\FR\FM\27AUN1.SGM 27AUN1 Federal Register / Vol. 86, No. 164 / Friday, August 27, 2021 / Notices ORF revenues have also grown as a result of increased volumes. To illustrate, for the first six months of 2021, the Exchange had market share of 3.50% in multi-listed options.4 The Exchange now proposes to adjust the amount of its ORF to be in line with those of more mature, established exchanges, as its regulatory cost structure has shifted from that of a nascent exchange to a more mature exchange. lotter on DSK11XQN23PROD with NOTICES1 Collection of ORF Currently, the Exchange assesses the per-contract ORF to each Member 5 for all options transactions, including Mini Options, cleared or ultimately cleared by the Member, which are cleared by the Options Clearing Corporation (‘‘OCC’’) in the ‘‘customer’’ range,6 regardless of the exchange on which the transaction occurs. The ORF is collected by OCC on behalf of the Exchange from either: (1) A Member that was the ultimate clearing firm for the transaction; or (2) a non-Member that was the ultimate clearing firm where a Member was the executing clearing firm for the transaction. The Exchange uses reports from OCC to determine the identity of the executing clearing firm and ultimate clearing firm. To illustrate how the Exchange assesses and collects ORF, the Exchange provides the following set of examples. For a transaction that is executed on the Exchange and the ORF is assessed, if there is no change to the clearing account of the original transaction, then the ORF is collected from the Member that is the executing clearing firm for the transaction (the Exchange notes that, for purposes of the Fee Schedule, when there is no change to the clearing account of the original transaction, the executing clearing firm is deemed to be the ultimate clearing firm). If there is a change to the clearing account of the original transaction (i.e., the executing clearing firm ‘‘gives-up’’ or ‘‘CMTAs’’ 7 the transaction to another clearing firm), then the ORF is collected from the clearing firm that ultimately clears the 4 See https://www.miaxoptions.com/sites/default/ files/press_release-files/MIAX_Press_Release_ 07132021.pdf. 5 The term ‘‘Member’’ means an individual or organization approved to exercise the trading rights associated with a Trading Permit. Members are deemed ‘‘members’’ under the Exchange Act. See Exchange Rule 100. See the Definitions Section of the Fee Schedule and Exchange Rule 100. 6 Exchange participants must record the appropriate account origin code on all orders at the time of entry in order. The Exchange represents that it has surveillances in place to verify that Members mark orders with the correct account origin code. 7 ‘‘CMTA’’ or Clearing Member Trade Assignment is a form of ‘‘give-up’’ whereby the position will be assigned to a specific clearing firm at OCC. VerDate Sep<11>2014 17:52 Aug 26, 2021 Jkt 253001 transaction—the ‘‘ultimate clearing firm.’’ The ultimate clearing firm may be either a Member or non-Member of the Exchange. If the transaction is executed on an away exchange and the ORF is assessed, then the ORF is collected from the ultimate clearing firm for the transaction. Again, the ultimate clearing firm may be either a Member or nonMember of the Exchange. The Exchange notes, however, that when the transaction is executed on an away exchange, the Exchange does not assess the ORF when neither the executing clearing firm nor the ultimate clearing firm is a Member (even if a Member is ‘‘given-up’’ or ‘‘CMTAed’’ and then such Member subsequently ‘‘gives-up’’ or ‘‘CMTAs’’ the transaction to another non-Member via a CMTA reversal). Finally, the Exchange does not assess the ORF on outbound linkage trades, whether executed at the Exchange or an away exchange. ‘‘Linkage trades’’ are tagged in the Exchange’s system, so the Exchange can readily tell them apart from other trades. A customer order routed to another exchange results in two customer trades, one from the originating exchange and one from the recipient exchange. Charging ORF on both trades could result in doublebilling of ORF for a single customer order; thus, the Exchange does not assess ORF on outbound linkage trades in a linkage scenario. This assessment practice is identical to the assessment practice currently utilized by the Exchange’s affiliates, MIAX PEARL, LLC (‘‘MIAX Pearl’’) and Miami International Securities Exchange, LLC (‘‘MIAX’’).8 As a practical matter, when a transaction that is subject to the ORF is not executed on the Exchange, the Exchange lacks the information necessary to identify the order-entering member for that transaction. There are a multitude of order-entering market participants throughout the industry, and such participants can make changes to the market centers to which they connect, including dropping their connection to one market center and establishing themselves as participants on another. For these reasons, it is not possible for the Exchange to identify, and thus assess fees such as ORF, on order-entering participants on away markets on a given trading day. Clearing members, however, are distinguished from order-entering participants because they remain identified to the Exchange on information the Exchange receives 8 See Securities Exchange Act Release Nos. 85163 (February 15, 2019), 84 FR 5798 (February 22, 2019) (SR–PEARL–2019–01); 85162 (February 15, 2019), 84 FR 5783 (February 22, 2019) (SR–MIAX–2019– 01). PO 00000 Frm 00156 Fmt 4703 Sfmt 4703 48269 from OCC regardless of the identity of the order-entering participant, their location, and the market center on which they execute transactions. Therefore, the Exchange believes it is more efficient for the operation of the Exchange and for the marketplace as a whole to collect the ORF from clearing members. ORF Revenue and Monitoring of ORF The Exchange monitors the amount of revenue collected from the ORF to ensure that it, in combination with other regulatory fees and fines, does not exceed regulatory costs. In determining whether an expense is considered a regulatory cost, the Exchange reviews all costs and makes determinations if there is a nexus between the expense and a regulatory function. The Exchange notes that fines collected by the Exchange in connection with a disciplinary matter offset ORF. As discussed below, the Exchange believes it is appropriate to charge the ORF only to transactions that clear as customer at the OCC. The Exchange believes that its broad regulatory responsibilities with respect to a Member’s activities supports applying the ORF to transactions cleared but not executed by a Member. The Exchange’s regulatory responsibilities are the same regardless of whether a Member enters a transaction or clears a transaction executed on its behalf. The Exchange regularly reviews all such activities, including performing surveillance for position limit violations, manipulation, front-running, contrary exercise advice violations and insider trading. These activities span across multiple exchanges. Revenue generated from ORF, when combined with all of the Exchange’s other regulatory fees and fines, is designed to recover a material portion of the regulatory costs to the Exchange of the supervision and regulation of Members’ customer options business including performing routine surveillances, investigations, examinations, financial monitoring, and policy, rulemaking, interpretive, and enforcement activities. Regulatory costs include direct regulatory expenses and certain indirect expenses in support of the regulatory function. The direct expenses include in-house and third party service provider costs to support the day-to-day regulatory work such as surveillances, investigations and examinations. The indirect expenses include support from such areas as the Office of the General Counsel, technology, and internal audit. Indirect expenses are estimated to be approximately 53% of the total E:\FR\FM\27AUN1.SGM 27AUN1 48270 Federal Register / Vol. 86, No. 164 / Friday, August 27, 2021 / Notices regulatory costs for 2021. Thus, direct expenses are estimated to be approximately 47% of total regulatory costs for 2021. The Exchange notes that its estimated direct and indirect expense percentages are in the range and similar to those at other options exchanges.9 The ORF is designed to recover a material portion of the costs to the Exchange of the supervision and regulation of its members, including performing routine surveillances, investigations, examinations, financial monitoring, and policy, rulemaking, interpretive, and enforcement activities. lotter on DSK11XQN23PROD with NOTICES1 Proposal Based on the Exchange’s most recent review, the Exchange proposes to increase the amount of ORF that will be collected by the Exchange from $0.00060 per contract side to $0.0016 per contract side. The Exchange issued an Options Regulatory Fee Announcement on July 2, 2021, indicating the proposed rate change for August 1, 2021.10 As described above, when the Exchange set the amount of its current ORF (almost 21⁄2 years ago), it was a brand new marketplace, and the amount was based on cost and revenue projections that were applicable to a new market. At that time, the Exchange’s cost structure, including regulatory costs and projections, were significantly lower. The Exchange’s regulatory cost structure has since significantly increased since that time, as the Exchange has had to deploy significant resources and capital as the Exchange’s membership base, volume, and market share have grown. The increase in cost structure has outgrown any revenue increase as a result of higher volumes. The Exchange believes the proposed adjustment will permit the Exchange to cover a material portion of its regulatory costs, while not exceeding regulatory costs; notwithstanding the fact that ORF revenues have also grown as a result of increased volumes. As noted above, the Exchange regularly reviews its ORF to ensure that the ORF, in combination with its other regulatory fees and fines, does not exceed regulatory costs. There can be no assurance that the Exchange’s final costs for 2021 will not 9 See Securities Exchange Act Release Nos. 91418 (March 26, 2021), 86 FR 17254 (April 1, 2021) (SR– Phlx–2021–16) (reducing the Nasdaq PHLX LLC ORF and estimating direct expenses at 58% and indirect expenses at 42%); 91420 (March 26, 2021), 86 FR 17223 (April 1, 2021) (SR–ISE–2021–04) (reducing the Nasdaq ISE, LLC ORF and estimating direct expenses at 58% and indirect expenses at 42%). 10 See https://www.miaxoptions.com/sites/ default/files/circular-files/MIAX_Emerald_RC_ 2021_33.pdf. VerDate Sep<11>2014 17:52 Aug 26, 2021 Jkt 253001 differ materially from these expectations and prior practice, nor can the Exchange predict with certainty whether options volume will remain at the current level going forward. The Exchange notes however, that when combined with regulatory fees and fines, the revenue being generated utilizing the current ORF rate results in revenue that is running below the Exchange’s estimated regulatory costs for the year. Particularly, as noted above, the Exchange initially set its ORF at a substantially lower rate when the Exchange first launched operations.11 The Exchange now believes that it is appropriate to increase the amount of the ORF so that it is in line with the Exchange’s cost structure for operating a more established exchange, so that when combined with all of the Exchange’s other regulatory fees and fines, it would allow the Exchange to recover a material portion of its regulatory costs, while continuing to not generate excess revenue.12 The Exchange will continue to monitor the amount of revenue collected from the ORF to ensure that it, in combination with its other regulatory fees and fines, does not exceed the Exchange’s total regulatory costs. The Exchange will continue to monitor MIAX Emerald regulatory costs and revenues at a minimum on a semiannual basis. If the Exchange determines regulatory revenues exceed or are insufficient to cover a material portion of its regulatory costs, the Exchange will adjust the ORF by submitting a fee change filing to the Commission. The Exchange will notify Members of adjustments to the ORF via regulatory circular at least 30 days prior to the effective date of the change. In connection with this filing, the Exchange notes that its affiliates, MIAX Pearl and MIAX, will also be adjusting the ORF fees that each of those exchanges charge. 2. Statutory Basis The Exchange believes that its proposal to amend its Fee Schedule is consistent with Section 6(b) of the Act 13 in general, and furthers the objectives of Section 6(b)(4) of the Act 14 in particular, in that it is an equitable allocation of reasonable dues, fees, and 11 See supra note 3. Exchange notes that its regulatory responsibilities with respect to Member compliance with options sales practice rules have been allocated to the Financial Industry Regulatory Authority (‘‘FINRA’’) under a 17d–2 Agreement. The ORF is not designed to cover the cost of options sales practice regulation. 13 15 U.S.C. 78f(b). 14 15 U.S.C. 78f(b)(4). 12 The PO 00000 Frm 00157 Fmt 4703 Sfmt 4703 other charges among its members and issuers and other persons using its facilities. The Exchange also believes the proposal furthers the objectives of Section 6(b)(5) of the Act 15 in that it is designed to promote just and equitable principles of trade, 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 is not designed to permit unfair discrimination between customers, issuers, brokers and dealers. The Exchange believes that increasing the ORF from $0.00060 to $0.0016 per contract side is equitable and not unfairly discriminatory because it is objectively allocated to Members in that it is charged to all Members on all their transactions that clear as customer at the OCC, with an exception.16 Moreover, the Exchange believes the ORF ensures fairness by assessing fees to Members such that the ORF assessment is directly based on the amount of customer options business each Member conducts. Regulating customer trading activity is much more labor intensive and requires greater expenditure of human and technical resources than regulating non-customer trading activity, which tends to be more automated and less labor-intensive. As a result, the costs associated with administering the customer component of the Exchange’s overall regulatory program are materially higher than the costs associated with administering the non-customer component (e.g., Member proprietary transactions) of its regulatory program. The Exchange notes it originally adopted the current ORF amount at a significantly lower rate as the Exchange had just begun operations and that the amount of ORF it collects has remain unchanged since it was first adopted in 2019.17 When the Exchange set the amount of its current ORF (almost 21⁄2 years ago), it was a brand new marketplace, and the amount was based on cost and revenue projections that were applicable to a new market. As such, the Exchange’s cost structure, including regulatory costs and projections, were significantly lower. The Exchange’s regulatory cost structure has since significantly increased since 15 15 U.S.C. 78f(b)(5). a transaction is executed on an away exchange, the Exchange does not assess the ORF when neither the executing clearing firm nor the ultimate clearing firm is a Member (even if a Member is ‘‘given-up’’ or ‘‘CMTAed’’ and then such Member subsequently ‘‘gives-up’’ or ‘‘CMTAs’’ the transaction to another non-Member via a CMTA reversal). 17 See supra note 3. 16 When E:\FR\FM\27AUN1.SGM 27AUN1 lotter on DSK11XQN23PROD with NOTICES1 Federal Register / Vol. 86, No. 164 / Friday, August 27, 2021 / Notices that time, as the Exchange has had to deploy significant resources and capital as the Exchange’s membership base, volume, and market share have grown. The increase in cost structure has outgrown any revenue increase as a result of higher volumes. Therefore, the Exchange believes it is reasonable, equitable and not unfairly discriminatory to increase the amount of ORF assessed to Members, notwithstanding the fact that ORF revenues have also grown as a result of increased volumes. The ORF is designed to recover a material portion of the costs of supervising and regulating Members’ customer options business including performing routine surveillances and investigations, as well as policy, rulemaking, interpretive and enforcement activities. The Exchange will monitor the amount of revenue collected from the ORF to ensure that it, in combination with its other regulatory fees and fines, does not exceed the Exchange’s total regulatory costs. The Exchange has designed the ORF to generate revenues that, when combined with all of the Exchange’s other regulatory fees, will be less than or equal to the Exchange’s regulatory costs, which is consistent with the Commission’s view that regulatory fees be used for regulatory purposes and not to support the Exchange’s business side. In this regard, the Exchange believes that the proposed increase to the fee is reasonable. The Exchange believes that continuing to limit changes to the ORF to twice a year on specific dates with advance notice is reasonable because it gives participants certainty on the timing of changes, if any, and better enables them to properly account for ORF charges among their customers. The Exchange believes that continuing to limit changes to the ORF to twice a year on specific dates is equitable and not unfairly discriminatory because it will apply in the same manner to all Members that are subject to the ORF and provide them with additional advance notice of changes to that fee. The Exchange believes that collecting the ORF from non-Members when such non-Members ultimately clear the transaction (that is, when the nonMember is the ‘‘ultimate clearing firm’’ for a transaction in which a Member was assessed the ORF) is an equitable allocation of reasonable dues, fees, and other charges among its members and issuers and other persons using its facilities. The Exchange notes that there is a material distinction between ‘‘assessing’’ the ORF and ‘‘collecting’’ the ORF. The ORF is only assessed to VerDate Sep<11>2014 17:52 Aug 26, 2021 Jkt 253001 a Member with respect to a particular transaction in which it is either the executing clearing firm or ultimate clearing firm. The Exchange does not assess the ORF to non-Members. Once, however, the ORF is assessed to a Member for a particular transaction, the ORF may be collected from the Member or a non-Member, depending on how the transaction is cleared at OCC. If there was no change to the clearing account of the original transaction, the ORF would be collected from the Member. If there was a change to the clearing account of the original transaction and a non-Member becomes the ultimate clearing firm for that transaction, then the ORF will be collected from that non-Member. The Exchange believes that this collection practice continues to be reasonable and appropriate, and was originally instituted for the benefit of clearing firms that desired to have the ORF be collected from the clearing firm that ultimately clears the transaction. The Exchange designed the ORF so that revenue generated from the ORF, in combination with its other regulatory fees and fines, does not exceed regulatory costs, which is consistent with the view of the Commission that regulatory fees be used for regulatory purposes and not to support the Exchange’s business operations. The Exchange also believes the proposed fee change is equitable and not unfairly discriminatory in that it is charged to all Members on all their transactions that clear in the customer range at the OCC,18 with an exception.19 The Exchange believes the ORF ensures fairness by assessing higher fees to those members that require more Exchange regulatory services based on the amount of customer options business they conduct. Regulating customer trading activity is much more labor intensive and requires greater expenditure of human and technical resources than regulating non-customer trading activity, which tends to be more automated and less labor-intensive. For example, there are costs associated with main office and branch office examinations (e.g., staff expenses), as well as investigations into customer complaints and the terminations of registered persons. As a result, the costs 18 If the OCC clearing member is an Exchange Member, ORF is assessed and collected on all cleared customer contracts (after adjustment for CMTA); and if the OCC clearing member is not an Exchange Member, ORF is collected only on the cleared customer contracts executed at the Exchange, taking into account any CMTA instructions which may result in collecting the ORF from a non-Member. 19 See supra note 16. PO 00000 Frm 00158 Fmt 4703 Sfmt 4703 48271 associated with administering the customer component of the Exchange’s overall regulatory program are materially higher than the costs associated with administering the noncustomer component (e.g., member proprietary transactions) of its regulatory program. Moreover, the Exchange notes that it has broad regulatory responsibilities with respect to activities of its Members, irrespective of where their transactions take place. Many of the Exchange’s surveillance programs for customer trading activity may require the Exchange to look at activity across all markets, such as reviews related to position limit violations and manipulation. Indeed, the Exchange cannot effectively review for such conduct without looking at and evaluating activity regardless of where it transpires. In addition to its own surveillance programs, the Exchange also works with other SROs and exchanges on intermarket surveillance related issues. Through its participation in the Intermarket Surveillance Group (‘‘ISG’’) 20 the Exchange shares information and coordinates inquiries and investigations with other exchanges designed to address potential intermarket manipulation and trading abuses. Accordingly, there is a strong nexus between the ORF and the Exchange’s regulatory activities with respect to customer trading activity of its Members. 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 not necessary or appropriate in furtherance of the purposes of the Act. This proposal does not create an unnecessary or inappropriate intra-market burden on competition because the ORF applies to all customer activity, thereby raising regulatory revenue to offset regulatory expenses. It also supplements the regulatory revenue derived from noncustomer activity. The Exchange notes, however, the proposed change is not designed to address any competitive issues. Indeed, this proposal does not create an unnecessary or inappropriate inter-market burden on competition because it is a regulatory fee that supports regulation in furtherance of the purposes of the Act. The Exchange is 20 ISG is an industry organization formed in 1983 to coordinate intermarket surveillance among the SROs by cooperatively sharing regulatory information pursuant to a written agreement between the parties. The goal of the ISG’s information sharing is to coordinate regulatory efforts to address potential intermarket trading abuses and manipulations. E:\FR\FM\27AUN1.SGM 27AUN1 48272 Federal Register / Vol. 86, No. 164 / Friday, August 27, 2021 / Notices obligated to ensure that the amount of regulatory revenue collected from the ORF, in combination with its other regulatory fees and fines, does not exceed regulatory costs. C. Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others Written comments were neither solicited nor received. 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,21 and Rule 19b–4(f)(2) 22 thereunder. 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 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 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: lotter on DSK11XQN23PROD with NOTICES1 Electronic Comments • Use the Commission’s internet comment form (https://www.sec.gov/ rules/sro.shtml); or • Send an email to rule-comments@ sec.gov. Please include File No. SR– EMERALD–2021–27 on the subject line. Paper Comments • Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–1090. All submissions should refer to File No. SR–EMERALD–2021–27. 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 (https://www.sec.gov/ rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for website viewing and printing in the Commission’s Public Reference Room, 100 F Street NE, Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File No. SR–EMERALD–2021–27, and should be submitted on or before September 17, 2021. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.23 Jill M. Peterson, Assistant Secretary. [FR Doc. 2021–18462 Filed 8–26–21; 8:45 am] SECURITIES AND EXCHANGE COMMISSION [Release No. 34–92721; File No. SR– CboeBZX–2021–039] Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change To List and Trade Shares of the Wise Origin Bitcoin Trust Under BZX Rule 14.11(e)(4), CommodityBased Trust Shares August 23, 2021. On May 10, 2021, Cboe BZX Exchange, Inc. (‘‘BZX’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘Commission’’), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 a proposed rule change to list and trade shares (‘‘Shares’’) of the Wise Origin Bitcoin Trust (‘‘Trust’’) under BZX Rule CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. U.S.C. 78s(b)(3)(A)(ii). 22 17 CFR 240.19b–4(f)(2). VerDate Sep<11>2014 17:52 Aug 26, 2021 1 15 Jkt 253001 I. Summary of the Proposal As described in more detail in the Notice,7 the Exchange proposes to list and trade the Shares of the Trust under BZX Rule 14.11(e)(4), which governs the listing and trading of Commodity-Based Trust Shares on the Exchange. The investment objective of the Trust would be to seek to track the performance of bitcoin, as measured by the Fidelity Bitcoin Index PR (‘‘Index’’), adjusted for the Trust’s expenses and other liabilities.8 Each Share will represent a fractional undivided beneficial interest in and ownership of the Trust. The Trust’s assets will consist of bitcoin held by the Custodian on behalf of the Trust. The Trust generally does not intend to hold cash or cash equivalents. However, there may be situations where the Trust will BILLING CODE 8011–01–P 23 17 21 15 14.11(e)(4), Commodity-Based Trust Shares. The proposed rule change was published for comment in the Federal Register on June 1, 2021.3 On July 13, 2021, pursuant to Section 19(b)(2) of the Act,4 the Commission designated a longer period within which to approve the proposed rule change, disapprove the proposed rule change, or institute proceedings to determine whether to disapprove the proposed rule change.5 This order institutes proceedings under Section 19(b)(2)(B) of the Act 6 to determine whether to approve or disapprove the proposed rule change. PO 00000 Frm 00159 Fmt 4703 Sfmt 4703 3 See Securities Exchange Act Release No. 91994 (May 25, 2021), 86 FR 29321 (June 1, 2021) (‘‘Notice’’). Comments on the proposed rule change can be found at: https://www.sec.gov/comments/srcboebzx-2021-039/srcboebzx2021039.htm. 4 15 U.S.C. 78s(b)(2). 5 See Securities Exchange Act Release No. 92388 (July 13, 2021), 86 FR 38163 (July 19, 2021). The Commission designated August 30, 2021, as the date by which it should approve, disapprove, or institute proceedings to determine whether to disapprove the proposed rule change. 6 15 U.S.C. 78s(b)(2)(B). 7 See Notice, supra note 3. 8 FD Funds Management LLC (‘‘Sponsor’’) is the sponsor of the Trust, Delaware Trust Company is the trustee, and Fidelity Service Company, Inc. will be the administrator (‘‘Administrator’’). A thirdparty transfer agent will facilitate the issuance and redemption of Shares of the Trust, respond to correspondence by Trust shareholders and others relating to its duties, maintain shareholder accounts, and make periodic reports to the Trust. An affiliate of the Sponsor, Fidelity Distributors Corporation, will be the marketing agent in connection with the creation and redemption of ‘‘baskets’’ of Shares, and the Sponsor will provide assistance in the marketing of the Shares. Fidelity Digital Asset Services, LLC will serve as the Trust’s custodian (‘‘Custodian’’). The Index methodology was developed by Fidelity Product Services, LLC and is administered by the Fidelity Index Committee. Coin Metrics, Inc. is the third-party calculation agent for the Index. The Sponsor’s affiliates have an ownership interest in Coin Metrics, Inc. See id. at 29321, 29327 n.57, 29328– 29. E:\FR\FM\27AUN1.SGM 27AUN1

Agencies

[Federal Register Volume 86, Number 164 (Friday, August 27, 2021)]
[Notices]
[Pages 48268-48272]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-18462]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-92726; File No. SR-EMERALD-2021-27]


Self-Regulatory Organizations: MIAX Emerald, LLC; Notice of 
Filing and Immediate Effectiveness of a Proposed Rule Change To Amend 
Its Fee Schedule To Adjust the Options Regulatory Fee

August 23, 2021.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given 
that on August 12, 2021, MIAX Emerald, LLC (``MIAX Emerald'' or 
``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 Exchange. 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\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

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

    The Exchange is filing a proposal to amend the Exchange's Fee 
Schedule (``Fee Schedule'') to adjust the Options Regulatory Fee 
(``ORF'').
    The text of the proposed rule change is available on the Exchange's 
website at https://www.miaxoptions.com/rule-filings/emerald, at MIAX's 
principal office, 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 Exchange 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 these 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 aspects of such 
statements.

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

1. Purpose
    Currently, the Exchange assesses ORF in the amount of $0.00060 per 
contract side. The Exchange proposes to increase the amount of ORF from 
$0.00060 per contract side to $0.0016 per contract side. The Exchange 
initially filed this proposal on July 30, 2021 (SR-EMERALD-2021-24) and 
withdrew such filing on August 12, 2021. The Exchange proposes to 
implement the fee change effective August 12, 2021.
    In light of historical and projected volume changes and shifts in 
the industry and on the Exchange, as well as changes to the Exchange's 
regulatory cost structure, the Exchange proposes to change the amount 
of ORF that will be collected by the Exchange. The Exchange's proposed 
change to the ORF should balance the Exchange's regulatory revenue 
against the anticipated regulatory costs. The Exchange will continue to 
monitor ORF to ensure that revenue collected from the ORF, in 
combination with other regulatory fees and fines, does not exceed the 
Exchange's total regulatory costs.
    The Exchange notes it originally adopted the current ORF amount at 
a significantly lower rate as the Exchange had just begun operations 
and that the amount of ORF it collects has remain unchanged since it 
was first adopted in 2019.\3\ When the Exchange set the amount of its 
current ORF (almost 2\1/2\ years ago), it was a brand new marketplace, 
and the amount was based on cost and revenue projections that were 
applicable to a new market. As such, the Exchange's cost structure, 
including regulatory costs and projections, were significantly lower. 
The Exchange's regulatory cost structure has since significantly 
increased since that time, as the Exchange has had to deploy 
significant resources and capital as the Exchange's membership base, 
volume, and market share have grown. The increase in cost structure has 
outgrown any revenue increase as a result of higher volumes. Therefore, 
the Exchange believes it is reasonable to increase the amount of ORF 
assessed to Members, notwithstanding the fact that

[[Page 48269]]

ORF revenues have also grown as a result of increased volumes. To 
illustrate, for the first six months of 2021, the Exchange had market 
share of 3.50% in multi-listed options.\4\ The Exchange now proposes to 
adjust the amount of its ORF to be in line with those of more mature, 
established exchanges, as its regulatory cost structure has shifted 
from that of a nascent exchange to a more mature exchange.
---------------------------------------------------------------------------

    \3\ See Securities Exchange Act Release No. 85251 (March 6, 
2019), 84 FR 8931 (March 12, 2019) (SR-EMERALD-2019-01).
    \4\ See https://www.miaxoptions.com/sites/default/files/press_release-files/MIAX_Press_Release_07132021.pdf.
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Collection of ORF
    Currently, the Exchange assesses the per-contract ORF to each 
Member \5\ for all options transactions, including Mini Options, 
cleared or ultimately cleared by the Member, which are cleared by the 
Options Clearing Corporation (``OCC'') in the ``customer'' range,\6\ 
regardless of the exchange on which the transaction occurs. The ORF is 
collected by OCC on behalf of the Exchange from either: (1) A Member 
that was the ultimate clearing firm for the transaction; or (2) a non-
Member that was the ultimate clearing firm where a Member was the 
executing clearing firm for the transaction. The Exchange uses reports 
from OCC to determine the identity of the executing clearing firm and 
ultimate clearing firm.
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    \5\ The term ``Member'' means an individual or organization 
approved to exercise the trading rights associated with a Trading 
Permit. Members are deemed ``members'' under the Exchange Act. See 
Exchange Rule 100. See the Definitions Section of the Fee Schedule 
and Exchange Rule 100.
    \6\ Exchange participants must record the appropriate account 
origin code on all orders at the time of entry in order. The 
Exchange represents that it has surveillances in place to verify 
that Members mark orders with the correct account origin code.
---------------------------------------------------------------------------

    To illustrate how the Exchange assesses and collects ORF, the 
Exchange provides the following set of examples. For a transaction that 
is executed on the Exchange and the ORF is assessed, if there is no 
change to the clearing account of the original transaction, then the 
ORF is collected from the Member that is the executing clearing firm 
for the transaction (the Exchange notes that, for purposes of the Fee 
Schedule, when there is no change to the clearing account of the 
original transaction, the executing clearing firm is deemed to be the 
ultimate clearing firm). If there is a change to the clearing account 
of the original transaction (i.e., the executing clearing firm ``gives-
up'' or ``CMTAs'' \7\ the transaction to another clearing firm), then 
the ORF is collected from the clearing firm that ultimately clears the 
transaction--the ``ultimate clearing firm.'' The ultimate clearing firm 
may be either a Member or non-Member of the Exchange. If the 
transaction is executed on an away exchange and the ORF is assessed, 
then the ORF is collected from the ultimate clearing firm for the 
transaction. Again, the ultimate clearing firm may be either a Member 
or non-Member of the Exchange. The Exchange notes, however, that when 
the transaction is executed on an away exchange, the Exchange does not 
assess the ORF when neither the executing clearing firm nor the 
ultimate clearing firm is a Member (even if a Member is ``given-up'' or 
``CMTAed'' and then such Member subsequently ``gives-up'' or ``CMTAs'' 
the transaction to another non-Member via a CMTA reversal). Finally, 
the Exchange does not assess the ORF on outbound linkage trades, 
whether executed at the Exchange or an away exchange. ``Linkage 
trades'' are tagged in the Exchange's system, so the Exchange can 
readily tell them apart from other trades. A customer order routed to 
another exchange results in two customer trades, one from the 
originating exchange and one from the recipient exchange. Charging ORF 
on both trades could result in double-billing of ORF for a single 
customer order; thus, the Exchange does not assess ORF on outbound 
linkage trades in a linkage scenario. This assessment practice is 
identical to the assessment practice currently utilized by the 
Exchange's affiliates, MIAX PEARL, LLC (``MIAX Pearl'') and Miami 
International Securities Exchange, LLC (``MIAX'').\8\
---------------------------------------------------------------------------

    \7\ ``CMTA'' or Clearing Member Trade Assignment is a form of 
``give-up'' whereby the position will be assigned to a specific 
clearing firm at OCC.
    \8\ See Securities Exchange Act Release Nos. 85163 (February 15, 
2019), 84 FR 5798 (February 22, 2019) (SR-PEARL-2019-01); 85162 
(February 15, 2019), 84 FR 5783 (February 22, 2019) (SR-MIAX-2019-
01).
---------------------------------------------------------------------------

    As a practical matter, when a transaction that is subject to the 
ORF is not executed on the Exchange, the Exchange lacks the information 
necessary to identify the order-entering member for that transaction. 
There are a multitude of order-entering market participants throughout 
the industry, and such participants can make changes to the market 
centers to which they connect, including dropping their connection to 
one market center and establishing themselves as participants on 
another. For these reasons, it is not possible for the Exchange to 
identify, and thus assess fees such as ORF, on order-entering 
participants on away markets on a given trading day. Clearing members, 
however, are distinguished from order-entering participants because 
they remain identified to the Exchange on information the Exchange 
receives from OCC regardless of the identity of the order-entering 
participant, their location, and the market center on which they 
execute transactions. Therefore, the Exchange believes it is more 
efficient for the operation of the Exchange and for the marketplace as 
a whole to collect the ORF from clearing members.
ORF Revenue and Monitoring of ORF
    The Exchange monitors the amount of revenue collected from the ORF 
to ensure that it, in combination with other regulatory fees and fines, 
does not exceed regulatory costs. In determining whether an expense is 
considered a regulatory cost, the Exchange reviews all costs and makes 
determinations if there is a nexus between the expense and a regulatory 
function. The Exchange notes that fines collected by the Exchange in 
connection with a disciplinary matter offset ORF.
    As discussed below, the Exchange believes it is appropriate to 
charge the ORF only to transactions that clear as customer at the OCC. 
The Exchange believes that its broad regulatory responsibilities with 
respect to a Member's activities supports applying the ORF to 
transactions cleared but not executed by a Member. The Exchange's 
regulatory responsibilities are the same regardless of whether a Member 
enters a transaction or clears a transaction executed on its behalf. 
The Exchange regularly reviews all such activities, including 
performing surveillance for position limit violations, manipulation, 
front-running, contrary exercise advice violations and insider trading. 
These activities span across multiple exchanges.
    Revenue generated from ORF, when combined with all of the 
Exchange's other regulatory fees and fines, is designed to recover a 
material portion of the regulatory costs to the Exchange of the 
supervision and regulation of Members' customer options business 
including performing routine surveillances, investigations, 
examinations, financial monitoring, and policy, rulemaking, 
interpretive, and enforcement activities. Regulatory costs include 
direct regulatory expenses and certain indirect expenses in support of 
the regulatory function. The direct expenses include in-house and third 
party service provider costs to support the day-to-day regulatory work 
such as surveillances, investigations and examinations. The indirect 
expenses include support from such areas as the Office of the General 
Counsel, technology, and internal audit. Indirect expenses are 
estimated to be approximately 53% of the total

[[Page 48270]]

regulatory costs for 2021. Thus, direct expenses are estimated to be 
approximately 47% of total regulatory costs for 2021. The Exchange 
notes that its estimated direct and indirect expense percentages are in 
the range and similar to those at other options exchanges.\9\
---------------------------------------------------------------------------

    \9\ See Securities Exchange Act Release Nos. 91418 (March 26, 
2021), 86 FR 17254 (April 1, 2021) (SR-Phlx-2021-16) (reducing the 
Nasdaq PHLX LLC ORF and estimating direct expenses at 58% and 
indirect expenses at 42%); 91420 (March 26, 2021), 86 FR 17223 
(April 1, 2021) (SR-ISE-2021-04) (reducing the Nasdaq ISE, LLC ORF 
and estimating direct expenses at 58% and indirect expenses at 42%).
---------------------------------------------------------------------------

    The ORF is designed to recover a material portion of the costs to 
the Exchange of the supervision and regulation of its members, 
including performing routine surveillances, investigations, 
examinations, financial monitoring, and policy, rulemaking, 
interpretive, and enforcement activities.
Proposal
    Based on the Exchange's most recent review, the Exchange proposes 
to increase the amount of ORF that will be collected by the Exchange 
from $0.00060 per contract side to $0.0016 per contract side. The 
Exchange issued an Options Regulatory Fee Announcement on July 2, 2021, 
indicating the proposed rate change for August 1, 2021.\10\ As 
described above, when the Exchange set the amount of its current ORF 
(almost 2\1/2\ years ago), it was a brand new marketplace, and the 
amount was based on cost and revenue projections that were applicable 
to a new market. At that time, the Exchange's cost structure, including 
regulatory costs and projections, were significantly lower. The 
Exchange's regulatory cost structure has since significantly increased 
since that time, as the Exchange has had to deploy significant 
resources and capital as the Exchange's membership base, volume, and 
market share have grown. The increase in cost structure has outgrown 
any revenue increase as a result of higher volumes. The Exchange 
believes the proposed adjustment will permit the Exchange to cover a 
material portion of its regulatory costs, while not exceeding 
regulatory costs; notwithstanding the fact that ORF revenues have also 
grown as a result of increased volumes. As noted above, the Exchange 
regularly reviews its ORF to ensure that the ORF, in combination with 
its other regulatory fees and fines, does not exceed regulatory costs.
---------------------------------------------------------------------------

    \10\ See https://www.miaxoptions.com/sites/default/files/circular-files/MIAX_Emerald_RC_2021_33.pdf.
---------------------------------------------------------------------------

    There can be no assurance that the Exchange's final costs for 2021 
will not differ materially from these expectations and prior practice, 
nor can the Exchange predict with certainty whether options volume will 
remain at the current level going forward. The Exchange notes however, 
that when combined with regulatory fees and fines, the revenue being 
generated utilizing the current ORF rate results in revenue that is 
running below the Exchange's estimated regulatory costs for the year. 
Particularly, as noted above, the Exchange initially set its ORF at a 
substantially lower rate when the Exchange first launched 
operations.\11\ The Exchange now believes that it is appropriate to 
increase the amount of the ORF so that it is in line with the 
Exchange's cost structure for operating a more established exchange, so 
that when combined with all of the Exchange's other regulatory fees and 
fines, it would allow the Exchange to recover a material portion of its 
regulatory costs, while continuing to not generate excess revenue.\12\
---------------------------------------------------------------------------

    \11\ See supra note 3.
    \12\ The Exchange notes that its regulatory responsibilities 
with respect to Member compliance with options sales practice rules 
have been allocated to the Financial Industry Regulatory Authority 
(``FINRA'') under a 17d-2 Agreement. The ORF is not designed to 
cover the cost of options sales practice regulation.
---------------------------------------------------------------------------

    The Exchange will continue to monitor the amount of revenue 
collected from the ORF to ensure that it, in combination with its other 
regulatory fees and fines, does not exceed the Exchange's total 
regulatory costs. The Exchange will continue to monitor MIAX Emerald 
regulatory costs and revenues at a minimum on a semi-annual basis. If 
the Exchange determines regulatory revenues exceed or are insufficient 
to cover a material portion of its regulatory costs, the Exchange will 
adjust the ORF by submitting a fee change filing to the Commission. The 
Exchange will notify Members of adjustments to the ORF via regulatory 
circular at least 30 days prior to the effective date of the change.
    In connection with this filing, the Exchange notes that its 
affiliates, MIAX Pearl and MIAX, will also be adjusting the ORF fees 
that each of those exchanges charge.
2. Statutory Basis
    The Exchange believes that its proposal to amend its Fee Schedule 
is consistent with Section 6(b) of the Act \13\ in general, and 
furthers the objectives of Section 6(b)(4) of the Act \14\ in 
particular, in that it is an equitable allocation of reasonable dues, 
fees, and other charges among its members and issuers and other persons 
using its facilities. The Exchange also believes the proposal furthers 
the objectives of Section 6(b)(5) of the Act \15\ in that it is 
designed to promote just and equitable principles of trade, 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 is not designed to permit unfair discrimination 
between customers, issuers, brokers and dealers.
---------------------------------------------------------------------------

    \13\ 15 U.S.C. 78f(b).
    \14\ 15 U.S.C. 78f(b)(4).
    \15\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Exchange believes that increasing the ORF from $0.00060 to 
$0.0016 per contract side is equitable and not unfairly discriminatory 
because it is objectively allocated to Members in that it is charged to 
all Members on all their transactions that clear as customer at the 
OCC, with an exception.\16\ Moreover, the Exchange believes the ORF 
ensures fairness by assessing fees to Members such that the ORF 
assessment is directly based on the amount of customer options business 
each Member conducts. Regulating customer trading activity is much more 
labor intensive and requires greater expenditure of human and technical 
resources than regulating non-customer trading activity, which tends to 
be more automated and less labor-intensive. As a result, the costs 
associated with administering the customer component of the Exchange's 
overall regulatory program are materially higher than the costs 
associated with administering the non-customer component (e.g., Member 
proprietary transactions) of its regulatory program.
---------------------------------------------------------------------------

    \16\ When a transaction is executed on an away exchange, the 
Exchange does not assess the ORF when neither the executing clearing 
firm nor the ultimate clearing firm is a Member (even if a Member is 
``given-up'' or ``CMTAed'' and then such Member subsequently 
``gives-up'' or ``CMTAs'' the transaction to another non-Member via 
a CMTA reversal).
---------------------------------------------------------------------------

    The Exchange notes it originally adopted the current ORF amount at 
a significantly lower rate as the Exchange had just begun operations 
and that the amount of ORF it collects has remain unchanged since it 
was first adopted in 2019.\17\ When the Exchange set the amount of its 
current ORF (almost 2\1/2\ years ago), it was a brand new marketplace, 
and the amount was based on cost and revenue projections that were 
applicable to a new market. As such, the Exchange's cost structure, 
including regulatory costs and projections, were significantly lower. 
The Exchange's regulatory cost structure has since significantly 
increased since

[[Page 48271]]

that time, as the Exchange has had to deploy significant resources and 
capital as the Exchange's membership base, volume, and market share 
have grown. The increase in cost structure has outgrown any revenue 
increase as a result of higher volumes. Therefore, the Exchange 
believes it is reasonable, equitable and not unfairly discriminatory to 
increase the amount of ORF assessed to Members, notwithstanding the 
fact that ORF revenues have also grown as a result of increased 
volumes.
---------------------------------------------------------------------------

    \17\ See supra note 3.
---------------------------------------------------------------------------

    The ORF is designed to recover a material portion of the costs of 
supervising and regulating Members' customer options business including 
performing routine surveillances and investigations, as well as policy, 
rulemaking, interpretive and enforcement activities. The Exchange will 
monitor the amount of revenue collected from the ORF to ensure that it, 
in combination with its other regulatory fees and fines, does not 
exceed the Exchange's total regulatory costs. The Exchange has designed 
the ORF to generate revenues that, when combined with all of the 
Exchange's other regulatory fees, will be less than or equal to the 
Exchange's regulatory costs, which is consistent with the Commission's 
view that regulatory fees be used for regulatory purposes and not to 
support the Exchange's business side. In this regard, the Exchange 
believes that the proposed increase to the fee is reasonable.
    The Exchange believes that continuing to limit changes to the ORF 
to twice a year on specific dates with advance notice is reasonable 
because it gives participants certainty on the timing of changes, if 
any, and better enables them to properly account for ORF charges among 
their customers. The Exchange believes that continuing to limit changes 
to the ORF to twice a year on specific dates is equitable and not 
unfairly discriminatory because it will apply in the same manner to all 
Members that are subject to the ORF and provide them with additional 
advance notice of changes to that fee.
    The Exchange believes that collecting the ORF from non-Members when 
such non-Members ultimately clear the transaction (that is, when the 
non-Member is the ``ultimate clearing firm'' for a transaction in which 
a Member was assessed the ORF) is an equitable allocation of reasonable 
dues, fees, and other charges among its members and issuers and other 
persons using its facilities. The Exchange notes that there is a 
material distinction between ``assessing'' the ORF and ``collecting'' 
the ORF. The ORF is only assessed to a Member with respect to a 
particular transaction in which it is either the executing clearing 
firm or ultimate clearing firm. The Exchange does not assess the ORF to 
non-Members. Once, however, the ORF is assessed to a Member for a 
particular transaction, the ORF may be collected from the Member or a 
non-Member, depending on how the transaction is cleared at OCC. If 
there was no change to the clearing account of the original 
transaction, the ORF would be collected from the Member. If there was a 
change to the clearing account of the original transaction and a non-
Member becomes the ultimate clearing firm for that transaction, then 
the ORF will be collected from that non-Member. The Exchange believes 
that this collection practice continues to be reasonable and 
appropriate, and was originally instituted for the benefit of clearing 
firms that desired to have the ORF be collected from the clearing firm 
that ultimately clears the transaction.
    The Exchange designed the ORF so that revenue generated from the 
ORF, in combination with its other regulatory fees and fines, does not 
exceed regulatory costs, which is consistent with the view of the 
Commission that regulatory fees be used for regulatory purposes and not 
to support the Exchange's business operations.
    The Exchange also believes the proposed fee change is equitable and 
not unfairly discriminatory in that it is charged to all Members on all 
their transactions that clear in the customer range at the OCC,\18\ 
with an exception.\19\ The Exchange believes the ORF ensures fairness 
by assessing higher fees to those members that require more Exchange 
regulatory services based on the amount of customer options business 
they conduct. Regulating customer trading activity is much more labor 
intensive and requires greater expenditure of human and technical 
resources than regulating non-customer trading activity, which tends to 
be more automated and less labor-intensive. For example, there are 
costs associated with main office and branch office examinations (e.g., 
staff expenses), as well as investigations into customer complaints and 
the terminations of registered persons. As a result, the costs 
associated with administering the customer component of the Exchange's 
overall regulatory program are materially higher than the costs 
associated with administering the non-customer component (e.g., member 
proprietary transactions) of its regulatory program. Moreover, the 
Exchange notes that it has broad regulatory responsibilities with 
respect to activities of its Members, irrespective of where their 
transactions take place. Many of the Exchange's surveillance programs 
for customer trading activity may require the Exchange to look at 
activity across all markets, such as reviews related to position limit 
violations and manipulation. Indeed, the Exchange cannot effectively 
review for such conduct without looking at and evaluating activity 
regardless of where it transpires. In addition to its own surveillance 
programs, the Exchange also works with other SROs and exchanges on 
intermarket surveillance related issues. Through its participation in 
the Intermarket Surveillance Group (``ISG'') \20\ the Exchange shares 
information and coordinates inquiries and investigations with other 
exchanges designed to address potential intermarket manipulation and 
trading abuses. Accordingly, there is a strong nexus between the ORF 
and the Exchange's regulatory activities with respect to customer 
trading activity of its Members.
---------------------------------------------------------------------------

    \18\ If the OCC clearing member is an Exchange Member, ORF is 
assessed and collected on all cleared customer contracts (after 
adjustment for CMTA); and if the OCC clearing member is not an 
Exchange Member, ORF is collected only on the cleared customer 
contracts executed at the Exchange, taking into account any CMTA 
instructions which may result in collecting the ORF from a non-
Member.
    \19\ See supra note 16.
    \20\ ISG is an industry organization formed in 1983 to 
coordinate intermarket surveillance among the SROs by cooperatively 
sharing regulatory information pursuant to a written agreement 
between the parties. The goal of the ISG's information sharing is to 
coordinate regulatory efforts to address potential intermarket 
trading abuses and manipulations.
---------------------------------------------------------------------------

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 not necessary or appropriate in 
furtherance of the purposes of the Act. This proposal does not create 
an unnecessary or inappropriate intra-market burden on competition 
because the ORF applies to all customer activity, thereby raising 
regulatory revenue to offset regulatory expenses. It also supplements 
the regulatory revenue derived from non-customer activity. The Exchange 
notes, however, the proposed change is not designed to address any 
competitive issues. Indeed, this proposal does not create an 
unnecessary or inappropriate inter-market burden on competition because 
it is a regulatory fee that supports regulation in furtherance of the 
purposes of the Act. The Exchange is

[[Page 48272]]

obligated to ensure that the amount of regulatory revenue collected 
from the ORF, in combination with its other regulatory fees and fines, 
does not exceed regulatory costs.

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

    Written comments were neither solicited nor received.

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,\21\ and Rule 19b-4(f)(2) \22\ thereunder. 
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 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 to determine whether 
the proposed rule should be approved or disapproved.
---------------------------------------------------------------------------

    \21\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \22\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

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 (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File No. SR-EMERALD-2021-27 on the subject line.

Paper Comments

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

All submissions should refer to File No. SR-EMERALD-2021-27. 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 (https://www.sec.gov/rules/sro.shtml). 
Copies of the submission, all subsequent amendments, all written 
statements with respect to the proposed rule change that are filed with 
the Commission, and all written communications relating to the proposed 
rule change between the Commission and any person, other than those 
that may be withheld from the public in accordance with the provisions 
of 5 U.S.C. 552, will be available for website viewing and printing in 
the Commission's Public Reference Room, 100 F Street NE, Washington, DC 
20549, on official business days between the hours of 10:00 a.m. and 
3:00 p.m. Copies of the filing also will be available for inspection 
and copying at the principal office of the Exchange. All comments 
received will be posted without change. Persons submitting comments are 
cautioned that we do not redact or edit personal identifying 
information from comment submissions. You should submit only 
information that you wish to make available publicly. All submissions 
should refer to File No. SR-EMERALD-2021-27, and should be submitted on 
or before September 17, 2021.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\23\
---------------------------------------------------------------------------

    \23\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2021-18462 Filed 8-26-21; 8:45 am]
BILLING CODE 8011-01-P
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