Self-Regulatory Organizations; Cboe EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Its Fee Schedule, 23703-23707 [2023-08143]

Download as PDF Federal Register / Vol. 88, No. 74 / Tuesday, April 18, 2023 / Notices FOR FURTHER INFORMATION CONTACT: David A. Trissell, General Counsel, at 202–789–6820. SUPPLEMENTARY INFORMATION: Table of Contents ddrumheller on DSK120RN23PROD with NOTICES1 I. Introduction II. Docketed Proceeding(s) I. Introduction The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the Market Dominant or the Competitive product list, or the modification of an existing product currently appearing on the Market Dominant or the Competitive product list. Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request’s acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request. The public portions of the Postal Service’s request(s) can be accessed via the Commission’s website (https:// www.prc.gov). Non-public portions of the Postal Service’s request(s), if any, can be accessed through compliance with the requirements of 39 CFR 3011.301.1 The Commission invites comments on whether the Postal Service’s request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern Market Dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3030, and 39 CFR part 3040, subpart B. For request(s) that the Postal Service states concern Competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3035, and 39 CFR part 3040, subpart B. Comment deadline(s) for each request appear in section II. II. Docketed Proceeding(s) 1. Docket No(s).: MC2023–133 and CP2023–135; Filing Title: USPS Request 1 See Docket No. RM2018–3, Order Adopting Final Rules Relating to Non-Public Information, June 27, 2018, Attachment A at 19–22 (Order No. 4679). VerDate Sep<11>2014 18:08 Apr 17, 2023 Jkt 259001 23703 to Add Priority Mail Express, Priority Mail, First-Class Package Service & Parcel Select Contract 114 to Competitive Product List and Notice of Filing Materials Under Seal; Filing Acceptance Date: April 11, 2023; Filing Authority: 39 U.S.C. 3642, 39 CFR 3040.130 through 3040.135, and 39 CFR 3035.105; Public Representative: Kenneth R. Moeller ; Comments Due: April 19, 2023. 2. Docket No(s).: MC2023–134 and CP2023–136; Filing Title: USPS Request to Add Priority Mail Express International, Priority Mail International & First-Class Package International Service Contract 18 to Competitive Product List and Notice of Filing Materials Under Seal; Filing Acceptance Date: April 11, 2023; Filing Authority: 39 U.S.C. 3642, 39 CFR 3040.130 through 3040.135, and 39 CFR 3035.105; Public Representative: Jennaca D. Upperman; Comments Due: April 19, 2023. This Notice will be published in the Federal Register. amend its Fee Schedule. The text of the proposed rule change is provided in Exhibit 5. The text of the proposed rule change is also available on the Exchange’s website (https://markets.cboe.com/us/ options/regulation/rule_filings/edgx/), at the Exchange’s Office of the Secretary, and at the Commission’s Public Reference Room. Erica A. Barker, Secretary. A. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change [FR Doc. 2023–08093 Filed 4–17–23; 8:45 am] BILLING CODE 7710–FW–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–97289; File No. SR– CboeEDGX–2023–028] Self-Regulatory Organizations; Cboe EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Its Fee Schedule April 12, 2023. 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 April 5, 2023, Cboe EDGX Exchange, Inc. (the ‘‘Exchange’’ or ‘‘EDGX’’) 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 Cboe EDGX Exchange, Inc. (the ‘‘Exchange’’ or ‘‘EDGX’’) proposes to 1 15 2 17 PO 00000 U.S.C. 78s(b)(1). CFR 240.19b–4. Frm 00086 Fmt 4703 Sfmt 4703 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. 1. Purpose The Exchange proposes to amend its Fee Schedule.3 The Exchange first notes that it operates in a highly competitive market in which market participants can readily direct order flow to competing venues if they deem fee levels at a particular venue to be excessive or incentives to be insufficient. More specifically, the Exchange is only one of 16 options venues to which market participants may direct their order flow. Based on publicly available information, no single options exchange has more than 17% of the market share and currently the Exchange represents only approximately 6% of the market share.4 Thus, in such a low-concentrated and highly competitive market, no single options exchange, including the Exchange, possesses significant pricing power in the execution of option order flow. The Exchange believes that the ever-shifting market share among the exchanges from month to month demonstrates that market participants can shift order flow or discontinue to 3 The Exchange initially filed the proposed fee changes on April 3, 2023 (SR–CboeEDGX–2023– 025). On April 5, 2023, the Exchange withdrew that filing and submitted SR–CboeEDGX–2023–027. On April 5, 2023, the Exchange withdrew that filing and submitted this proposal. 4 See Cboe Global Markets U.S. Options Market Monthly Volume Summary (March 28, 2023), available at https://markets.cboe.com/us/options/ market_statistics/. E:\FR\FM\18APN1.SGM 18APN1 23704 Federal Register / Vol. 88, No. 74 / Tuesday, April 18, 2023 / Notices reduce use of certain categories of products, in response to fee changes. Accordingly, competitive forces constrain the Exchange’s transaction fees, and market participants can readily trade on competing venues if they deem pricing levels at those other venues to be more favorable. ddrumheller on DSK120RN23PROD with NOTICES1 QCC Initiator/Solicitation Rebate Tiers The Exchange’s Fee Schedule sets forth standard rebates and rates applied per contract. For example, the Exchange assesses a fee of $0.20 per contract for SAM 5 Contra Non-Customer orders (including SAM Contra Professional orders), yielding fee code SF, and SAM Agency Non-Customer orders (including SAM Agency Professional orders), yielding fee code SA. The Fee Codes and Associated Fees section of the Fee Schedule also provides for certain fee codes associated with certain order types and market participants that provide for various other fees or rebates. Additionally, the Fee Schedule offers tiered pricing which provides Members 6 opportunities to qualify for higher rebates or reduced fees where certain volume criteria and thresholds are met. Tiered pricing provides an incremental incentive for Members to strive for higher tier levels, which provides increasingly higher benefits or discounts for satisfying increasingly more stringent criteria. For example, pursuant to Footnote 7 of the Fee Schedule, the Exchange currently offers four QCC 7 Initiator/ Solicitation Rebate Tiers which provide rebates between $0.14 and $0.26 per contract for qualifying QCC Agency Orders or Solicitation Agency Orders where a Member meets incrementally increasing volume thresholds. Particularly, the Exchange will apply the QCC Initiator/Solicitation Rebate to a Member that submits QCC Agency Orders or Solicitation Agency Orders, including a Member who routed orders to the Exchange with a Designated Give Up, when at least one side of the transaction is of Non-Customer, NonProfessional capacity. Fee codes QA,8 QM,9 QO,10 SA 11 and SC 12 qualify for 5 The term ‘‘SAM’’ refers to Solicitation Auction Mechanism. 6 See Exchange Rule 1.5(n). 7 The term ‘‘QCC’’ refers to Qualified Contingent Cross Orders. 8 Fee Code ‘‘QA’’ is appended to QCC Agency (Customer) Orders. 9 Fee Code ‘‘QM’’ is appended to QCC Agency (Non-Customer, Non-Professional) Orders. 10 Fee Code ‘‘QO’’ is appended to QCC Agency (Professional) orders. 11 Fee Code ‘‘SA’’ is appended to SAM Agency Non-Customer orders. 12 Fee Code ‘‘SC’’ is appended to SAM Agency (Customer) orders. VerDate Sep<11>2014 18:08 Apr 17, 2023 Jkt 259001 these rebates.13 There are two separate rebates that are available under each tier, depending on whether one or both sides of the transaction are of NonCustomer, Non-Professional capacity. A qualifying order will receive the rebate under ‘‘Rebate 1’’ if one side of the transaction is of Non-Customer, NonProfessional capacity. A qualifying order will receive the rebate under ‘‘Rebate 2’’, if both sides of the transaction are of Non-Customer, NonProfessional capacity. The Exchange proposes to amend the QCC Initiator/Solicitation Rebate Tier program by (1) amending the volume threshold for Tier 3, (2) eliminating Tier 4, and (3) amending current rebates for Tiers 2 and 3. The Exchange proposes to amend the volume thresholds for Tier 3. Currently, the volume threshold (per month) for Tier 1 is 0 to 999,999 contracts, for Tier 2 is 1,000,000 to 1,999,999 contracts, for Tier 3 is 2,000,000 to 2,999,999 contracts, and for Tier 4 is 3,000,000+ contracts. As proposed, the volume threshold (per month) for Tier 1 remains at 0 to 999,999 contracts, for Tier 2 remains at 1,000,000 to 1,999,999, and for Tier 3 is 2,000,000+ contracts. The Exchange proposes to eliminate Tier 4, as the volume thresholds and rebates for these tiers are now contained within the volume threshold for Tier 3, as amended. Further, the Exchange proposes to change the rebates for Tiers 2 and 3. Specifically, the Exchange proposes to increase Tier 2 Rebate 1 from $0.15 to $0.16, Tier 2 Rebate 2 from $0.23 to $0.25, Tier 3 Rebate 1 from $0.16 to $0.18, and Tier 3 Rebate 2 from $0.24 to $0.28. The rebates for Tier 1 remain unchanged. The proposed rebate changes account for the elimination of Tier 4, and maintain an established rebate structure based on volume. The Exchange believes the proposed rebate structure is competitive with rebates offered at another exchange for similar transactions.14 Additionally, the proposed changes to the QCC Initiator/ Solicitation Rebate Tiers are designed to incentivize Members to grow their QCC Initiator and/or Solicitation order flow to receive the enhanced rebates. The Exchange believes that incentivizing greater QCC Initiator and/or Solicitation 13 See Cboe EDGX U.S. Options Exchange Fees Schedule, Footnote 7, QCC Initiator/Solicitation Rebate Tiers. 14 See Box Options Fee Schedule, Section IV(D)(1), which provides rebates ranging from $0.14 to $0.17 per contract to the Agency Order where at least one party to the QCC transaction is a BrokerDealer or Market-Maker (i.e., a non-customer, nonprofessional) and from $0.22 to $0.27 per contract where both parties to the QCC transaction are a Broker-Dealer or Market-Maker. PO 00000 Frm 00087 Fmt 4703 Sfmt 4703 order flow would provide more opportunities for participation in QCC trades or in the SAM Auction which increases opportunities for price improvement. SAM Standard Fee Changes In connection with the proposed changes to Footnote 7 of the Fee Schedule, the Exchange proposes to amend the Fee Codes and Associated Fees table of the Fee Schedule to adopt new fee codes for SAM Contra 15 Professional 16 and SAM Agency 17 Professional orders. Specifically, the Exchange proposes to adopt new fee codes, SH and SG, to apply to SAM Contra Professional orders and SAM Agency Professional orders, respectively. The Exchange proposes to assess a fee of $0.04 per contract for SAM Contra Professional orders yielding fee code SH and a fee of $0.04 per contract for SAM Agency Professional orders yield fee code SG.18 The Exchange also proposes to amend the description of current fee code SF to provide it applies to SAM Contra NonCustomer, Non-Professional orders, and to amend the current description of current fee code SA to provide it applies to SAM Agency Non-Customer, NonProfessional orders. The Exchange proposes to decrease the standard fee for SAM Contra Non-Customer, NonProfessional orders and SAM Agency Non-Customer, Non-Professional orders (i.e., yield fee codes SF and SA, respectively) from $0.20 per contract to $0.18 per contract. The proposed rule change also amends Footnote 6 of the Fee Schedule to include new fee codes SG and SH, and to reflect the proposed change in fees for orders yielding fee codes SF and SA. Customer Volume Tiers The Exchange also proposes to amend Footnote 1 (Customer Volume Tiers), applicable to orders yielding fee codes 15 The term ‘‘SAM Contra Order’’ refers to an order submitted by a Member entering a SAM Agency Order for execution within SAM that will potentially execute against the SAM Agency Order pursuant to Rule 21.21 and 21.23. 16 The term ‘‘Professional’’ means any person or entity that: (A) is not a broker or dealer in securities; and (B) places more than 390 orders in listed options per day on average during a calendar month for its own beneficial account(s). All Professional orders shall be appropriately marked by Options Members. 17 The term ‘‘SAM Agency Order’’ refers to an order represented as agent by a Member on behalf of another party and submitted to SAM for potential price improvement pursuant to Rule 21.21 and 21.23. 18 The proposed rule change also adds fee code SG to the ‘‘QCC Initiator/Solicitation Rebate Tiers’’ table under footnote 7 of the Fee Schedule. E:\FR\FM\18APN1.SGM 18APN1 Federal Register / Vol. 88, No. 74 / Tuesday, April 18, 2023 / Notices ddrumheller on DSK120RN23PROD with NOTICES1 PC 19 and NC.20 Pursuant to Footnote 1 of the Fee Schedule, the Exchange currently offers four Customer Volume Rebate Tiers which provide rebates between $0.10 and $0.21 per contract for qualifying customer orders yielding fee codes PC and NC where a Member meets required criteria. The Exchange proposes to amend the Customer Volume Rebate Tier program by (1) amending the current rebate for Tier 3, and (2) amending required criteria for Tier 4. The Exchange proposes to change the rebates for Tier 3. Specifically, the Exchange proposes to amend the Tier 3 rebate from $0.21 to $0.17.21 The rebates for Tiers 1, 2, and 4 remain unchanged. The Exchange also proposes to amend the required criteria for Tier 4. Currently, to qualify for Tier 4, a Member must have (1) an ADV in Customer orders greater than or equal to 0.75% of average OCV; and (2) an ADV in Customer or Market Maker orders greater than or equal to 1.00% of average OCV; and (3) an ADV in Customer Non-Crossing orders greater than or equal to 0.40% of average OCV. The Exchange proposes to amend Tier 4 required criteria to state that a Member must have (1) an ADV in Customer orders greater than or equal to 0.75% of average OCV; and (2) an ADV in Customer or Market Maker orders greater than or equal to 1.50% of average OCV; and (3) an ADV in Customer Non-Crossing orders greater than or equal to 0.50% of average OCV; and (4) an ADAV in Customer NonCrossing orders greater than or equal to 0.40% of average OCV. The Exchange believes that the proposed changes to the Customer Volume Rebate Tier program are designed overall to incentivize more Customer order flow and to direct an increase of order flow to the EDGX Options Order Book. The Exchange believes that an increase in Customer order flow and overall order flow to the Exchange’s Book creates more trading opportunities, which, in turn attracts Market-Makers. A resulting increase in Market-Maker activity may facilitate tighter spreads, which may lead to an additional increase of order flow from other market participants, further contributing to a deeper, more liquid 19 Fee Code ‘‘PC’’ is appended to Customer (contra Non-Customer), (contra Customer, removes liquidity), Penny orders. 20 Fee Code ‘‘NC’’ is appended to Customer (contra Non-Customer), (contra Customer, removes liquidity), Non-Penny orders. 21 The Exchange proposes to amend this tier rebate as described in the table in Footnote 1 and amend the amounts of the rebates in the Standard Rates table. VerDate Sep<11>2014 18:08 Apr 17, 2023 Jkt 259001 market to the benefit of all market participants by creating a more robust and well-balanced market ecosystem. 2. Statutory Basis The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the ‘‘Act’’) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.22 Specifically, the Exchange believes the proposed rule change is consistent with the Section 6(b)(5) 23 requirements that the rules of an exchange be 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. Additionally, the Exchange believes the proposed rule change is consistent with the Section 6(b)(5) 24 requirement that the rules of an exchange not be designed to permit unfair discrimination between customers, issuers, brokers, or dealers. The Exchange also believes the proposed rule change is consistent with Section 6(b)(4) of the Act,25 which requires that Exchange rules provide for the equitable allocation of reasonable dues, fees, and other charges among its Trading Permit Holders and other persons using its facilities. As described above, the Exchange operates in a highly competitive market in which market participants can readily direct order flow to competing venues if they deem fee levels at a particular venue to be excessive or incentives to be insufficient. The proposed rule change reflects a competitive pricing structure designed to incentivize market participants to direct their order flow to the Exchange, which the Exchange believes would enhance market quality to the benefit of all market participants. The Exchange is only one of several options venues to which market participants may direct their order flow, and it represents a small percentage of the overall market. The proposed fee changes reflect a competitive pricing structure designed to incentivize market participants to direct their order flow, which the 22 15 23 15 PO 00000 Exchange believes would enhance market quality to the benefit of all Members. The Exchange believes the proposed changes to the QCC Initiator/Solicitation Rebate Tiers are reasonable, equitable, and not unfairly discriminatory. The Exchange believes the changes to the QCC Initiator/Solicitation Rebate Tiers are reasonable overall because, as stated above, in order to operate in the highly competitive markets, the Exchange and its competing exchanges seek to offer similar pricing structures, including assessing comparable rates and offering multiple enhanced pricing opportunities for various types of orders. Thus, the Exchange believes the proposed changes are reasonable as they are generally aligned with and competitive with the amounts assessed for similar orders on other options exchanges.26 Further, the Exchange believes the rebate tiers, as modified, continue to serve as a reasonable means to encourage Members to increase their liquidity on the Exchange, particularly in connection with additional QCC and/ or Solicitation Agency Order flow to the Exchange in order to benefit from the proposed enhanced rebates. The Exchange believes that incentivizing greater QCC Initiator and/or Solicitation order flow would provide more opportunities for participation in QCC trades or in the SAM Auction which increases opportunities for price improvement. The Exchange also believes that amending the rebate tier structure represents an equitable allocation of fees and is not unfairly discriminatory because they will continue to automatically and uniformly apply to all Members’ respective qualifying orders. Overall, the Exchange believes that its proposed adoption of new fee codes for SAM Contra Professional and SAM Agency Professional orders (and related fee changes for SAM Contra NonCustomer, Non-Professional and SAM Agency Non-Customer, NonProfessional orders) is consistent with Section 6(b)(4) of the Act in that the proposed fees are reasonable, equitable and not unfairly discriminatory. The Exchange believes that the proposed fees are reasonable, equitable, and not unfairly discriminatory in that competing options exchanges offer a similar distinction between market participant types in connection with similar price improvement auctions,27 26 See supra note 13 [sic]. MIAX Options Fee Schedule, Section 1(a)(v), ‘‘MIAX Price Improvement Mechanism (‘‘PRIME’’) Fees, which provides for comparable U.S.C. 78f(b). U.S.C. 78f(b)(5). 27 See 24 Id. 25 15 U.S.C. 78f(b)(4). Frm 00088 Fmt 4703 23705 Continued Sfmt 4703 E:\FR\FM\18APN1.SGM 18APN1 23706 Federal Register / Vol. 88, No. 74 / Tuesday, April 18, 2023 / Notices ddrumheller on DSK120RN23PROD with NOTICES1 as the Exchange now proposes. Further, competing exchanges charge different rates for transactions in their price improvement mechanisms, based on market participant type, in a manner similar to the proposal. The Exchange believes the fee and rebate schedule as proposed continues to reflect differentiation among different market participants typically found in options fee and rebate schedules. The proposed fees in relation to SAM orders are designed to promote order flow through SAM and, in particular, to attract liquidity, which benefits all market participants by providing additional trading opportunities at improved prices. This, in turn, attracts increased large-order flow from liquidity providers which facilitates tighter spreads and potentially triggers a corresponding increase in order flow originating from other market participants. Also, the Exchange believes that the proposed fee for SAM Non-Customer, Non-Professional Agency and Contra orders ($0.18 per contract) is reasonable because it encourages participation in SAM by offering a rate that is equivalent to or better than most other price improvement auctions offered by other options exchanges as well as the Exchange itself.28 The Exchange believes the proposed changes to the Customer Volume Rebate Tier program are reasonable because they continue to provide opportunities for Members to receive higher rebates by providing for incrementally increasing volume-based criteria they can reach for. The Exchange believes the tiers, as modified, continue to serve as a reasonable means to encourage Members to increase their liquidity on the Exchange, particularly in connection with additional Customer Order flow to the Exchange in order to benefit from the proposed enhanced rebates. The Exchange also notes that any overall increased liquidity that may result from the proposed tier incentives benefits all investors by offering additional flexibility for all investors to enjoy cost rates for similar market participant type orders submitted into its PRIME auctions. For example, PRIME Customer Agency orders are free of charge; PRIME Agency orders for a Public Customer that is Not a Priority Customer, MIAX Market Maker, NonMIAX Market Maker, Non-Member Broker-Dealer, and Firm are assessed a fee of $0.30; PRIME Customer Contra-side orders are free of charge; PRIME Contra-side orders for a Public Customer that is Not a Priority Customer, MIAX Market Maker, Non-MIAX Market Maker, Non-Member Broker-Dealer, and Firm are assessed a fee of $0.30. See also Box Options Fee Schedule, Section IV(C), which provides varying rates for similar market participant type orders submitted as a solicitation transaction. 28 Id. VerDate Sep<11>2014 18:08 Apr 17, 2023 Jkt 259001 savings, supporting the quality of price discovery, promoting market transparency and improving investor protection. The Exchange believes that the proposed changes to the Customer Volume Rebate Tier program represent an equitable allocation of fees and is not unfairly discriminatory because Members will be eligible for these tiers and the corresponding enhanced rebates will apply uniformly to all Members that reach the proposed tier criteria. The Exchange believes that a number of market participants have a reasonable opportunity to satisfy the tiers’ criteria as modified. While the Exchange has no way of knowing whether this proposed rule change would definitively result in any particular Member qualifying for Tier 4 as amended, the Exchange anticipates at least two Members meeting, or being reasonably able to meet, the revised Tier 4 criteria; however, the proposed tier is open to any Member that satisfies the tier’s criteria. The Exchange also notes that the proposed changes will not adversely impact any Member’s pricing or their ability to qualify for other rebate tiers. Rather, should a Member not meet the proposed criteria, the Member will merely not receive the corresponding enhanced rebates. 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. Rather, as discussed above, the Exchange believes that the proposed change would encourage the submission of additional order flow to a public exchange, thereby promoting market depth, execution incentives and enhanced execution opportunities for all Members. As a result, the Exchange believes that the proposed change furthers the Commission’s goal in adopting Regulation NMS of fostering competition among orders, which promotes ‘‘more efficient pricing of individual stocks for all types of orders, large and small.’’ The Exchange believes that the proposed rule change does not impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. First, the Exchange notes that the proposed changes apply uniformly to similarly situated Members. The Exchange believes that the proposed changes related to QCC and SAM transactions would not impose any burden on intramarket competition, but PO 00000 Frm 00089 Fmt 4703 Sfmt 4703 rather, serves to increase intramarket competition by incentivizing members, including Professionals, to direct their QCC and SAM orders to the Exchange, in turn providing for more opportunities to compete at improved prices. Similarly, the changes to the Customer Volume Rebate Tier program provides an incentive to bring additional liquidity to the Exchange, thereby promoting price discovery and enhancing order execution opportunities for Members. Additionally, the proposed rule change benefits all market participants as any overall increased liquidity that may result from the proposed fee and tier incentives benefits all investors by offering additional flexibility for all investors to enjoy cost savings, supporting the quality of price discovery, promoting market transparency and improving investor protection. The Exchange also believes the proposed rule change does not impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. As previously discussed, the Exchange operates in a highly competitive market. Members have numerous alternative venues they may participate on and direct their order flow, including 15 other options exchanges. Additionally, the Exchange represents a small percentage of the overall market. Based on publicly available information, no single options exchange has more than 17% of the market share. Therefore, no exchange possesses significant pricing power in the execution of order flow. Indeed, participants can readily choose to send their orders to other exchanges if they deem fee levels at those other venues to be more favorable. Moreover, the Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. Specifically, in Regulation NMS, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system ‘‘has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.’’ The fact that this market is competitive has also long been recognized by the courts. In NetCoalition v. Securities and Exchange Commission, the D.C. Circuit stated as follows: ‘‘[n]o one disputes that competition for order flow is ‘fierce.’ . . . As the SEC explained, ‘[i]n the U.S. national market system, buyers and sellers of securities, and the broker- E:\FR\FM\18APN1.SGM 18APN1 Federal Register / Vol. 88, No. 74 / Tuesday, April 18, 2023 / Notices dealers that act as their order-routing agents, have a wide range of choices of where to route orders for execution’; [and] ‘no exchange can afford to take its market share percentages for granted’ because ‘no exchange possesses a monopoly, regulatory or otherwise, in the execution of order flow from broker dealers’ . . . . ’’. Accordingly, the Exchange does not believe its proposed fee change imposes any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. C. Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others The Exchange neither solicited nor received comments on the proposed rule change. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act 29 and paragraph (f) of Rule 19b–4 30 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 will institute proceedings to determine whether the proposed rule change 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: ddrumheller on DSK120RN23PROD 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 Number SR– CboeEDGX–2023–028 on the subject line. Paper Comments • Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–1090. All submissions should refer to File Number SR–CboeEDGX–2023–028. 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. 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– CboeEDGX–2023–028, and should be submitted on or before May 9, 2023. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.31 Sherry R. Haywood, Assistant Secretary. [FR Doc. 2023–08143 Filed 4–17–23; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–97287; File No. SR– NYSEARCA–2023–29] Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Modify the NYSE Arca Options Fee Schedule April 12, 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 April 3, 31 17 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 15 U.S.C. 78a. 3 17 CFR 240.19b–4. 1 15 29 15 30 17 U.S.C. 78s(b)(3)(A). CFR 240.19b–4(f). VerDate Sep<11>2014 18:08 Apr 17, 2023 Jkt 259001 PO 00000 Frm 00090 Fmt 4703 Sfmt 4703 23707 2023, NYSE Arca, Inc. (‘‘NYSE Arca’’ or the ‘‘Exchange’’) filed with the Securities and Exchange Commission (the ‘‘Commission’’) the proposed rule change as described in Items I and II below, which Items have been prepared by the self-regulatory organization. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to modify the NYSE Arca Options Fee Schedule (‘‘Fee Schedule’’) regarding the Limit of Fees on Options Strategy Executions (the ‘‘Strategy Cap’’). The Exchange proposes to implement the fee change effective April 3, 2023. 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 purpose of this filing is to amend the Fee Schedule to include certain strategy executions which are the result of a QCC order 4 in the Strategy Cap. The Exchange proposes to implement the rule change on April 3, 2023. The Fee Schedule currently provides that the Strategy Cap is a $1,000 cap on transaction fees for orders that are executed to achieve certain investment strategies (‘‘Strategy Executions’’).5 Specifically, the Strategy Cap provides for a cap on Strategy Executions 4 A QCC Order is defined as an originating order to buy or sell at least 1,000 contracts that is identified as being part of a qualified contingent trade coupled with a contra-side order or orders totaling an equal number of contracts. See Rule 6.62P–O(g)(1)(A). 5 See Fee Schedule, LIMIT OF FEES ON OPTIONS STRATEGY EXECUTIONS. E:\FR\FM\18APN1.SGM 18APN1

Agencies

[Federal Register Volume 88, Number 74 (Tuesday, April 18, 2023)]
[Notices]
[Pages 23703-23707]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-08143]


=======================================================================
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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-97289; File No. SR-CboeEDGX-2023-028]


Self-Regulatory Organizations; Cboe EDGX Exchange, Inc.; Notice 
of Filing and Immediate Effectiveness of a Proposed Rule Change To 
Amend Its Fee Schedule

April 12, 2023.
    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 April 5, 2023, Cboe EDGX Exchange, Inc. (the ``Exchange'' or 
``EDGX'') 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

    Cboe EDGX Exchange, Inc. (the ``Exchange'' or ``EDGX'') proposes to 
amend its Fee Schedule. The text of the proposed rule change is 
provided in Exhibit 5.
    The text of the proposed rule change is also available on the 
Exchange's website (https://markets.cboe.com/us/options/regulation/rule_filings/edgx/), at the Exchange's Office of the Secretary, 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
    The Exchange proposes to amend its Fee Schedule.\3\ The Exchange 
first notes that it operates in a highly competitive market in which 
market participants can readily direct order flow to competing venues 
if they deem fee levels at a particular venue to be excessive or 
incentives to be insufficient. More specifically, the Exchange is only 
one of 16 options venues to which market participants may direct their 
order flow. Based on publicly available information, no single options 
exchange has more than 17% of the market share and currently the 
Exchange represents only approximately 6% of the market share.\4\ Thus, 
in such a low-concentrated and highly competitive market, no single 
options exchange, including the Exchange, possesses significant pricing 
power in the execution of option order flow. The Exchange believes that 
the ever-shifting market share among the exchanges from month to month 
demonstrates that market participants can shift order flow or 
discontinue to

[[Page 23704]]

reduce use of certain categories of products, in response to fee 
changes. Accordingly, competitive forces constrain the Exchange's 
transaction fees, and market participants can readily trade on 
competing venues if they deem pricing levels at those other venues to 
be more favorable.
---------------------------------------------------------------------------

    \3\ The Exchange initially filed the proposed fee changes on 
April 3, 2023 (SR-CboeEDGX-2023-025). On April 5, 2023, the Exchange 
withdrew that filing and submitted SR-CboeEDGX-2023-027. On April 5, 
2023, the Exchange withdrew that filing and submitted this proposal.
    \4\ See Cboe Global Markets U.S. Options Market Monthly Volume 
Summary (March 28, 2023), available at https://markets.cboe.com/us/options/market_statistics/.
---------------------------------------------------------------------------

QCC Initiator/Solicitation Rebate Tiers
    The Exchange's Fee Schedule sets forth standard rebates and rates 
applied per contract. For example, the Exchange assesses a fee of $0.20 
per contract for SAM \5\ Contra Non-Customer orders (including SAM 
Contra Professional orders), yielding fee code SF, and SAM Agency Non-
Customer orders (including SAM Agency Professional orders), yielding 
fee code SA.
---------------------------------------------------------------------------

    \5\ The term ``SAM'' refers to Solicitation Auction Mechanism.
---------------------------------------------------------------------------

    The Fee Codes and Associated Fees section of the Fee Schedule also 
provides for certain fee codes associated with certain order types and 
market participants that provide for various other fees or rebates. 
Additionally, the Fee Schedule offers tiered pricing which provides 
Members \6\ opportunities to qualify for higher rebates or reduced fees 
where certain volume criteria and thresholds are met. Tiered pricing 
provides an incremental incentive for Members to strive for higher tier 
levels, which provides increasingly higher benefits or discounts for 
satisfying increasingly more stringent criteria.
---------------------------------------------------------------------------

    \6\ See Exchange Rule 1.5(n).
---------------------------------------------------------------------------

    For example, pursuant to Footnote 7 of the Fee Schedule, the 
Exchange currently offers four QCC \7\ Initiator/Solicitation Rebate 
Tiers which provide rebates between $0.14 and $0.26 per contract for 
qualifying QCC Agency Orders or Solicitation Agency Orders where a 
Member meets incrementally increasing volume thresholds. Particularly, 
the Exchange will apply the QCC Initiator/Solicitation Rebate to a 
Member that submits QCC Agency Orders or Solicitation Agency Orders, 
including a Member who routed orders to the Exchange with a Designated 
Give Up, when at least one side of the transaction is of Non-Customer, 
Non-Professional capacity. Fee codes QA,\8\ QM,\9\ QO,\10\ SA \11\ and 
SC \12\ qualify for these rebates.\13\ There are two separate rebates 
that are available under each tier, depending on whether one or both 
sides of the transaction are of Non-Customer, Non-Professional 
capacity. A qualifying order will receive the rebate under ``Rebate 1'' 
if one side of the transaction is of Non-Customer, Non-Professional 
capacity. A qualifying order will receive the rebate under ``Rebate 
2'', if both sides of the transaction are of Non-Customer, Non-
Professional capacity.
---------------------------------------------------------------------------

    \7\ The term ``QCC'' refers to Qualified Contingent Cross 
Orders.
    \8\ Fee Code ``QA'' is appended to QCC Agency (Customer) Orders.
    \9\ Fee Code ``QM'' is appended to QCC Agency (Non-Customer, 
Non-Professional) Orders.
    \10\ Fee Code ``QO'' is appended to QCC Agency (Professional) 
orders.
    \11\ Fee Code ``SA'' is appended to SAM Agency Non-Customer 
orders.
    \12\ Fee Code ``SC'' is appended to SAM Agency (Customer) 
orders.
    \13\ See Cboe EDGX U.S. Options Exchange Fees Schedule, Footnote 
7, QCC Initiator/Solicitation Rebate Tiers.
---------------------------------------------------------------------------

    The Exchange proposes to amend the QCC Initiator/Solicitation 
Rebate Tier program by (1) amending the volume threshold for Tier 3, 
(2) eliminating Tier 4, and (3) amending current rebates for Tiers 2 
and 3.
    The Exchange proposes to amend the volume thresholds for Tier 3. 
Currently, the volume threshold (per month) for Tier 1 is 0 to 999,999 
contracts, for Tier 2 is 1,000,000 to 1,999,999 contracts, for Tier 3 
is 2,000,000 to 2,999,999 contracts, and for Tier 4 is 3,000,000+ 
contracts. As proposed, the volume threshold (per month) for Tier 1 
remains at 0 to 999,999 contracts, for Tier 2 remains at 1,000,000 to 
1,999,999, and for Tier 3 is 2,000,000+ contracts. The Exchange 
proposes to eliminate Tier 4, as the volume thresholds and rebates for 
these tiers are now contained within the volume threshold for Tier 3, 
as amended.
    Further, the Exchange proposes to change the rebates for Tiers 2 
and 3. Specifically, the Exchange proposes to increase Tier 2 Rebate 1 
from $0.15 to $0.16, Tier 2 Rebate 2 from $0.23 to $0.25, Tier 3 Rebate 
1 from $0.16 to $0.18, and Tier 3 Rebate 2 from $0.24 to $0.28. The 
rebates for Tier 1 remain unchanged. The proposed rebate changes 
account for the elimination of Tier 4, and maintain an established 
rebate structure based on volume.
    The Exchange believes the proposed rebate structure is competitive 
with rebates offered at another exchange for similar transactions.\14\ 
Additionally, the proposed changes to the QCC Initiator/Solicitation 
Rebate Tiers are designed to incentivize Members to grow their QCC 
Initiator and/or Solicitation order flow to receive the enhanced 
rebates. The Exchange believes that incentivizing greater QCC Initiator 
and/or Solicitation order flow would provide more opportunities for 
participation in QCC trades or in the SAM Auction which increases 
opportunities for price improvement.
---------------------------------------------------------------------------

    \14\ See Box Options Fee Schedule, Section IV(D)(1), which 
provides rebates ranging from $0.14 to $0.17 per contract to the 
Agency Order where at least one party to the QCC transaction is a 
Broker-Dealer or Market-Maker (i.e., a non-customer, non-
professional) and from $0.22 to $0.27 per contract where both 
parties to the QCC transaction are a Broker-Dealer or Market-Maker.
---------------------------------------------------------------------------

SAM Standard Fee Changes
    In connection with the proposed changes to Footnote 7 of the Fee 
Schedule, the Exchange proposes to amend the Fee Codes and Associated 
Fees table of the Fee Schedule to adopt new fee codes for SAM Contra 
\15\ Professional \16\ and SAM Agency \17\ Professional orders. 
Specifically, the Exchange proposes to adopt new fee codes, SH and SG, 
to apply to SAM Contra Professional orders and SAM Agency Professional 
orders, respectively. The Exchange proposes to assess a fee of $0.04 
per contract for SAM Contra Professional orders yielding fee code SH 
and a fee of $0.04 per contract for SAM Agency Professional orders 
yield fee code SG.\18\
---------------------------------------------------------------------------

    \15\ The term ``SAM Contra Order'' refers to an order submitted 
by a Member entering a SAM Agency Order for execution within SAM 
that will potentially execute against the SAM Agency Order pursuant 
to Rule 21.21 and 21.23.
    \16\ The term ``Professional'' means any person or entity that: 
(A) is not a broker or dealer in securities; and (B) places more 
than 390 orders in listed options per day on average during a 
calendar month for its own beneficial account(s). All Professional 
orders shall be appropriately marked by Options Members.
    \17\ The term ``SAM Agency Order'' refers to an order 
represented as agent by a Member on behalf of another party and 
submitted to SAM for potential price improvement pursuant to Rule 
21.21 and 21.23.
    \18\ The proposed rule change also adds fee code SG to the ``QCC 
Initiator/Solicitation Rebate Tiers'' table under footnote 7 of the 
Fee Schedule.
---------------------------------------------------------------------------

    The Exchange also proposes to amend the description of current fee 
code SF to provide it applies to SAM Contra Non-Customer, Non-
Professional orders, and to amend the current description of current 
fee code SA to provide it applies to SAM Agency Non-Customer, Non-
Professional orders. The Exchange proposes to decrease the standard fee 
for SAM Contra Non-Customer, Non-Professional orders and SAM Agency 
Non-Customer, Non-Professional orders (i.e., yield fee codes SF and SA, 
respectively) from $0.20 per contract to $0.18 per contract.
    The proposed rule change also amends Footnote 6 of the Fee Schedule 
to include new fee codes SG and SH, and to reflect the proposed change 
in fees for orders yielding fee codes SF and SA.
Customer Volume Tiers
    The Exchange also proposes to amend Footnote 1 (Customer Volume 
Tiers), applicable to orders yielding fee codes

[[Page 23705]]

PC \19\ and NC.\20\ Pursuant to Footnote 1 of the Fee Schedule, the 
Exchange currently offers four Customer Volume Rebate Tiers which 
provide rebates between $0.10 and $0.21 per contract for qualifying 
customer orders yielding fee codes PC and NC where a Member meets 
required criteria. The Exchange proposes to amend the Customer Volume 
Rebate Tier program by (1) amending the current rebate for Tier 3, and 
(2) amending required criteria for Tier 4.
---------------------------------------------------------------------------

    \19\ Fee Code ``PC'' is appended to Customer (contra Non-
Customer), (contra Customer, removes liquidity), Penny orders.
    \20\ Fee Code ``NC'' is appended to Customer (contra Non-
Customer), (contra Customer, removes liquidity), Non-Penny orders.
---------------------------------------------------------------------------

    The Exchange proposes to change the rebates for Tier 3. 
Specifically, the Exchange proposes to amend the Tier 3 rebate from 
$0.21 to $0.17.\21\ The rebates for Tiers 1, 2, and 4 remain unchanged.
---------------------------------------------------------------------------

    \21\ The Exchange proposes to amend this tier rebate as 
described in the table in Footnote 1 and amend the amounts of the 
rebates in the Standard Rates table.
---------------------------------------------------------------------------

    The Exchange also proposes to amend the required criteria for Tier 
4. Currently, to qualify for Tier 4, a Member must have (1) an ADV in 
Customer orders greater than or equal to 0.75% of average OCV; and (2) 
an ADV in Customer or Market Maker orders greater than or equal to 
1.00% of average OCV; and (3) an ADV in Customer Non-Crossing orders 
greater than or equal to 0.40% of average OCV. The Exchange proposes to 
amend Tier 4 required criteria to state that a Member must have (1) an 
ADV in Customer orders greater than or equal to 0.75% of average OCV; 
and (2) an ADV in Customer or Market Maker orders greater than or equal 
to 1.50% of average OCV; and (3) an ADV in Customer Non-Crossing orders 
greater than or equal to 0.50% of average OCV; and (4) an ADAV in 
Customer Non-Crossing orders greater than or equal to 0.40% of average 
OCV.
    The Exchange believes that the proposed changes to the Customer 
Volume Rebate Tier program are designed overall to incentivize more 
Customer order flow and to direct an increase of order flow to the EDGX 
Options Order Book. The Exchange believes that an increase in Customer 
order flow and overall order flow to the Exchange's Book creates more 
trading opportunities, which, in turn attracts Market-Makers. A 
resulting increase in Market-Maker activity may facilitate tighter 
spreads, which may lead to an additional increase of order flow from 
other market participants, further contributing to a deeper, more 
liquid market to the benefit of all market participants by creating a 
more robust and well-balanced market ecosystem.
2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with 
the Securities Exchange Act of 1934 (the ``Act'') and the rules and 
regulations thereunder applicable to the Exchange and, in particular, 
the requirements of Section 6(b) of the Act.\22\ Specifically, the 
Exchange believes the proposed rule change is consistent with the 
Section 6(b)(5) \23\ requirements that the rules of an exchange be 
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. Additionally, 
the Exchange believes the proposed rule change is consistent with the 
Section 6(b)(5) \24\ requirement that the rules of an exchange not be 
designed to permit unfair discrimination between customers, issuers, 
brokers, or dealers. The Exchange also believes the proposed rule 
change is consistent with Section 6(b)(4) of the Act,\25\ which 
requires that Exchange rules provide for the equitable allocation of 
reasonable dues, fees, and other charges among its Trading Permit 
Holders and other persons using its facilities.
---------------------------------------------------------------------------

    \22\ 15 U.S.C. 78f(b).
    \23\ 15 U.S.C. 78f(b)(5).
    \24\ Id.
    \25\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

    As described above, the Exchange operates in a highly competitive 
market in which market participants can readily direct order flow to 
competing venues if they deem fee levels at a particular venue to be 
excessive or incentives to be insufficient. The proposed rule change 
reflects a competitive pricing structure designed to incentivize market 
participants to direct their order flow to the Exchange, which the 
Exchange believes would enhance market quality to the benefit of all 
market participants. The Exchange is only one of several options venues 
to which market participants may direct their order flow, and it 
represents a small percentage of the overall market. The proposed fee 
changes reflect a competitive pricing structure designed to incentivize 
market participants to direct their order flow, which the Exchange 
believes would enhance market quality to the benefit of all Members.
    The Exchange believes the proposed changes to the QCC Initiator/
Solicitation Rebate Tiers are reasonable, equitable, and not unfairly 
discriminatory. The Exchange believes the changes to the QCC Initiator/
Solicitation Rebate Tiers are reasonable overall because, as stated 
above, in order to operate in the highly competitive markets, the 
Exchange and its competing exchanges seek to offer similar pricing 
structures, including assessing comparable rates and offering multiple 
enhanced pricing opportunities for various types of orders. Thus, the 
Exchange believes the proposed changes are reasonable as they are 
generally aligned with and competitive with the amounts assessed for 
similar orders on other options exchanges.\26\ Further, the Exchange 
believes the rebate tiers, as modified, continue to serve as a 
reasonable means to encourage Members to increase their liquidity on 
the Exchange, particularly in connection with additional QCC and/or 
Solicitation Agency Order flow to the Exchange in order to benefit from 
the proposed enhanced rebates. The Exchange believes that incentivizing 
greater QCC Initiator and/or Solicitation order flow would provide more 
opportunities for participation in QCC trades or in the SAM Auction 
which increases opportunities for price improvement. The Exchange also 
believes that amending the rebate tier structure represents an 
equitable allocation of fees and is not unfairly discriminatory because 
they will continue to automatically and uniformly apply to all Members' 
respective qualifying orders.
---------------------------------------------------------------------------

    \26\ See supra note 13 [sic].
---------------------------------------------------------------------------

    Overall, the Exchange believes that its proposed adoption of new 
fee codes for SAM Contra Professional and SAM Agency Professional 
orders (and related fee changes for SAM Contra Non-Customer, Non-
Professional and SAM Agency Non-Customer, Non-Professional orders) is 
consistent with Section 6(b)(4) of the Act in that the proposed fees 
are reasonable, equitable and not unfairly discriminatory. The Exchange 
believes that the proposed fees are reasonable, equitable, and not 
unfairly discriminatory in that competing options exchanges offer a 
similar distinction between market participant types in connection with 
similar price improvement auctions,\27\

[[Page 23706]]

as the Exchange now proposes. Further, competing exchanges charge 
different rates for transactions in their price improvement mechanisms, 
based on market participant type, in a manner similar to the proposal. 
The Exchange believes the fee and rebate schedule as proposed continues 
to reflect differentiation among different market participants 
typically found in options fee and rebate schedules.
---------------------------------------------------------------------------

    \27\ See MIAX Options Fee Schedule, Section 1(a)(v), ``MIAX 
Price Improvement Mechanism (``PRIME'') Fees, which provides for 
comparable rates for similar market participant type orders 
submitted into its PRIME auctions. For example, PRIME Customer 
Agency orders are free of charge; PRIME Agency orders for a Public 
Customer that is Not a Priority Customer, MIAX Market Maker, Non-
MIAX Market Maker, Non-Member Broker-Dealer, and Firm are assessed a 
fee of $0.30; PRIME Customer Contra-side orders are free of charge; 
PRIME Contra-side orders for a Public Customer that is Not a 
Priority Customer, MIAX Market Maker, Non-MIAX Market Maker, Non-
Member Broker-Dealer, and Firm are assessed a fee of $0.30. See also 
Box Options Fee Schedule, Section IV(C), which provides varying 
rates for similar market participant type orders submitted as a 
solicitation transaction.
---------------------------------------------------------------------------

    The proposed fees in relation to SAM orders are designed to promote 
order flow through SAM and, in particular, to attract liquidity, which 
benefits all market participants by providing additional trading 
opportunities at improved prices. This, in turn, attracts increased 
large-order flow from liquidity providers which facilitates tighter 
spreads and potentially triggers a corresponding increase in order flow 
originating from other market participants.
    Also, the Exchange believes that the proposed fee for SAM Non-
Customer, Non-Professional Agency and Contra orders ($0.18 per 
contract) is reasonable because it encourages participation in SAM by 
offering a rate that is equivalent to or better than most other price 
improvement auctions offered by other options exchanges as well as the 
Exchange itself.\28\
---------------------------------------------------------------------------

    \28\ Id.
---------------------------------------------------------------------------

    The Exchange believes the proposed changes to the Customer Volume 
Rebate Tier program are reasonable because they continue to provide 
opportunities for Members to receive higher rebates by providing for 
incrementally increasing volume-based criteria they can reach for. The 
Exchange believes the tiers, as modified, continue to serve as a 
reasonable means to encourage Members to increase their liquidity on 
the Exchange, particularly in connection with additional Customer Order 
flow to the Exchange in order to benefit from the proposed enhanced 
rebates. The Exchange also notes that any overall increased liquidity 
that may result from the proposed tier incentives benefits all 
investors by offering additional flexibility for all investors to enjoy 
cost savings, supporting the quality of price discovery, promoting 
market transparency and improving investor protection.
    The Exchange believes that the proposed changes to the Customer 
Volume Rebate Tier program represent an equitable allocation of fees 
and is not unfairly discriminatory because Members will be eligible for 
these tiers and the corresponding enhanced rebates will apply uniformly 
to all Members that reach the proposed tier criteria. The Exchange 
believes that a number of market participants have a reasonable 
opportunity to satisfy the tiers' criteria as modified. While the 
Exchange has no way of knowing whether this proposed rule change would 
definitively result in any particular Member qualifying for Tier 4 as 
amended, the Exchange anticipates at least two Members meeting, or 
being reasonably able to meet, the revised Tier 4 criteria; however, 
the proposed tier is open to any Member that satisfies the tier's 
criteria. The Exchange also notes that the proposed changes will not 
adversely impact any Member's pricing or their ability to qualify for 
other rebate tiers. Rather, should a Member not meet the proposed 
criteria, the Member will merely not receive the corresponding enhanced 
rebates.

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. Rather, as discussed above, 
the Exchange believes that the proposed change would encourage the 
submission of additional order flow to a public exchange, thereby 
promoting market depth, execution incentives and enhanced execution 
opportunities for all Members. As a result, the Exchange believes that 
the proposed change furthers the Commission's goal in adopting 
Regulation NMS of fostering competition among orders, which promotes 
``more efficient pricing of individual stocks for all types of orders, 
large and small.''
    The Exchange believes that the proposed rule change does not impose 
any burden on intramarket competition that is not necessary or 
appropriate in furtherance of the purposes of the Act. First, the 
Exchange notes that the proposed changes apply uniformly to similarly 
situated Members. The Exchange believes that the proposed changes 
related to QCC and SAM transactions would not impose any burden on 
intramarket competition, but rather, serves to increase intramarket 
competition by incentivizing members, including Professionals, to 
direct their QCC and SAM orders to the Exchange, in turn providing for 
more opportunities to compete at improved prices. Similarly, the 
changes to the Customer Volume Rebate Tier program provides an 
incentive to bring additional liquidity to the Exchange, thereby 
promoting price discovery and enhancing order execution opportunities 
for Members.
    Additionally, the proposed rule change benefits all market 
participants as any overall increased liquidity that may result from 
the proposed fee and tier incentives benefits all investors by offering 
additional flexibility for all investors to enjoy cost savings, 
supporting the quality of price discovery, promoting market 
transparency and improving investor protection.
    The Exchange also believes the proposed rule change does not impose 
any burden on intermarket competition that is not necessary or 
appropriate in furtherance of the purposes of the Act. As previously 
discussed, the Exchange operates in a highly competitive market. 
Members have numerous alternative venues they may participate on and 
direct their order flow, including 15 other options exchanges. 
Additionally, the Exchange represents a small percentage of the overall 
market. Based on publicly available information, no single options 
exchange has more than 17% of the market share. Therefore, no exchange 
possesses significant pricing power in the execution of order flow. 
Indeed, participants can readily choose to send their orders to other 
exchanges if they deem fee levels at those other venues to be more 
favorable. Moreover, the Commission has repeatedly expressed its 
preference for competition over regulatory intervention in determining 
prices, products, and services in the securities markets. Specifically, 
in Regulation NMS, the Commission highlighted the importance of market 
forces in determining prices and SRO revenues and, also, recognized 
that current regulation of the market system ``has been remarkably 
successful in promoting market competition in its broader forms that 
are most important to investors and listed companies.'' The fact that 
this market is competitive has also long been recognized by the courts. 
In NetCoalition v. Securities and Exchange Commission, the D.C. Circuit 
stated as follows: ``[n]o one disputes that competition for order flow 
is `fierce.' . . . As the SEC explained, `[i]n the U.S. national market 
system, buyers and sellers of securities, and the broker-

[[Page 23707]]

dealers that act as their order-routing agents, have a wide range of 
choices of where to route orders for execution'; [and] `no exchange can 
afford to take its market share percentages for granted' because `no 
exchange possesses a monopoly, regulatory or otherwise, in the 
execution of order flow from broker dealers' . . . . ''. Accordingly, 
the Exchange does not believe its proposed fee change imposes any 
burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act.

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

    The Exchange neither solicited nor received comments on the 
proposed rule change.

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

    The foregoing rule change has become effective pursuant to Section 
19(b)(3)(A) of the Act \29\ and paragraph (f) of Rule 19b-4 \30\ 
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 will institute proceedings to 
determine whether the proposed rule change should be approved or 
disapproved.
---------------------------------------------------------------------------

    \29\ 15 U.S.C. 78s(b)(3)(A).
    \30\ 17 CFR 240.19b-4(f).
---------------------------------------------------------------------------

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 Number SR-CboeEDGX-2023-028 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-CboeEDGX-2023-028. 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. 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-CboeEDGX-2023-028, and 
should be submitted on or before May 9, 2023.
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    \31\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\31\
Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-08143 Filed 4-17-23; 8:45 am]
BILLING CODE 8011-01-P
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