Self-Regulatory Organizations; Nasdaq GEMX, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend GEMX's Pricing Schedule at Options 7, 26349-26353 [2023-08979]

Download as PDF Federal Register / Vol. 88, No. 82 / Friday, April 28, 2023 / Notices For the Nuclear Regulatory Commission. Wesley W. Held, Policy Coordinator, Office of the Secretary. [FR Doc. 2023–09196 Filed 4–26–23; 4:15 pm] BILLING CODE 7590–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–97365; File No. SR–LTSE– 2023–01] ddrumheller on DSK120RN23PROD with NOTICES1 Self-Regulatory Organizations; LongTerm Stock Exchange, Inc.; Notice of Designation of a Longer Period for Commission Action on Proposed Rule Change, as Modified by Amendment No. 1, To Establish Listing Standards Related to Recovery of Erroneously Awarded Incentive-Based Executive Compensation The Commission is extending this 45day time period. The Commission finds it 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, as modified by Amendment No. 1. Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,5 designates June 15, 2023, as the date by which the Commission shall either approve or disapprove, or institute proceedings to determine whether to disapprove, the proposed rule change, as modified by Amendment No. 1 (File No. SR–LTSE–2023–01). For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.6 Sherry R. Haywood, Assistant Secretary. April 24, 2023. [FR Doc. 2023–08984 Filed 4–27–23; 8:45 am] On February 27, 2023, Long-Term Stock Exchange, Inc. (‘‘LTSE’’ or the ‘‘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 to adopt Listing Standards for the recovery of erroneously awarded compensation, as required by Rule 10D–1 of the Act. On March 9, 2023, the Exchange filed Amendment No. 1 to the proposed rule change, which replaced and superseded the proposed rule change as originally filed. The proposed rule change, as modified by Amendment No. 1, was published for comment in the Federal Register on March 17, 2023.3 The Commission has received no comments on the proposal, as modified by Amendment No. 1. Section 19(b)(2) of the Act 4 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 as the Commission may designate if it finds such longer period to be appropriate and publishes its reasons for so finding or 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 May 1, 2023. BILLING CODE 8011–01–P U.S.C. 78s(b)(1). CFR 240.19b–4. 3 See Securities Exchange Act Release No. 97123 (March 13, 2023), 88 FR 16487. 4 15 U.S.C. 78s(b)(2). SECURITIES AND EXCHANGE COMMISSION [Release No. 34–97360; File No. SR–GEMX– 2023–05] Self-Regulatory Organizations; Nasdaq GEMX, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend GEMX’s Pricing Schedule at Options 7 April 24, 2023. Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’),1 and Rule 19b–4 thereunder,2 notice is hereby given that on April 10, 2023, Nasdaq GEMX, LLC (‘‘GEMX’’ or the ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘SEC’’ or 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 proposes to amend GEMX’s Pricing Schedule at Options 7. While the changes proposed herein are effective upon filing, the Exchange has designated the amendments become operative on November 1, 2023. 1 15 2 17 VerDate Sep<11>2014 18:44 Apr 27, 2023 Jkt 259001 5 15 U.S.C. 78s(b)(2). CFR 200.30–3(a)(31). 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 6 17 PO 00000 Frm 00101 Fmt 4703 Sfmt 4703 26349 The text of the proposed rule change is available on the Exchange’s website at https://listingcenter.nasdaq.com/ rulebook/gemx/rules, 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 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 the Statutory Basis for, the Proposed Rule Change 1. Purpose GEMX proposes to amend its Pricing Schedule at Options 7. Specifically, GEMX proposes to: (1) add the defined term ‘‘Exposed Order’’ within Options 7, Section 1(c); and (2) amend Options 7, Section 6.C. to offer certain free ports in connection with an upcoming technology migration.3 Each change is described below. Options 7, Section 1 The Exchange proposes to define an Exposed Order for purposes of pricing within Options 7. The Exchange introduced the concept of an ‘‘exposure’’ in a rule change amending GEMX’s routing rules.4 In that rule change, the Exchange noted that for purposes of GEMX’s Options 5, Section 4 routing rule, ‘‘exposure’’ or ‘‘exposing’’ an order means a notification sent to Members with the price, size, and side of interest that is 3 See Options Trader Alert #2023–4. The GEMX migration will commence on Monday, November 6, 2023. 4 See Securities Exchange Act Release No. 94897 (May 12, 2022), 87 FR 30294 (May 18, 2022) (SR– ISE–2022–11) (Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Routing Functionality in Connection With a Technology Migration). GEMX’s Options 5 rules are incorporated by reference to Nasdaq ISE, LLC Options 5 rules. See also Securities Exchange Act Release No. 97126 (March 13, 2023), 88 FR 16485 (March 17, 2023) (SR–GEMX–2023–04) (Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Delay the Implementation of Certain Trading Functionality). E:\FR\FM\28APN1.SGM 28APN1 26350 Federal Register / Vol. 88, No. 82 / Friday, April 28, 2023 / Notices available for execution.5 The order exposure will apply to both routed orders and non-routed or ‘‘DNR Orders.’’ The order exposure process permits the Exchange to apply a Route Timer 6 prior to the initial and subsequent routing of an order and allows routing of the order after exposure occurs (during open trading) every time an order becomes marketable against the ABBO.7 At this time, the Exchange proposes to amend Options 7, Section 1(c) to provide, An ‘‘Exposed Order’’ is an order that is broadcast via an order exposure alert as described within Options 5, Section 4 (Order Routing). Unless otherwise noted in Options 7, Section 3 pricing, Exposed Orders will be assessed the applicable ‘‘Taker’’ Fee and any order or quote that executes against an Exposed Order during a Route Timer will be paid/assessed the applicable ‘‘Maker’’ Rebate/Fee. As proposed, the defined term would apply a Taker Fee, where applicable, to an executed Exposed Order. If an order or quote allocates against the Exposed Order during the Route Timer described within Options 5, Section 4, the Exchange would pay/assess the applicable Maker Rebate and/or Maker Fee. The Exchange believes that its proposal should provide increased opportunities for participation in executions on the Exchange, facilitating the ability of the Exchange to bring together participants and encourage more robust competition for orders. Options 7, Section 6 ddrumheller on DSK120RN23PROD with NOTICES1 In connection with a technology migration,8 Members may request new 5 See GEMX Options 5, Section 4(a) which is effective but not yet operative. See also Securities Exchange Act Release No. 94897 (May 12, 2022), 87 FR 30294 (May 18, 2022) (SR–ISE–2022–11) (Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Routing Functionality in Connection With a Technology Migration). 6 For purposes of Options 5, Section 4, a Route Timer shall not exceed one second and shall begin at the time orders are accepted into the System, and the System will consider whether an order can be routed at the conclusion of each Route Timer. 7 See GEMX Options 5, Section 4 which is effective but not yet operative. See also Securities Exchange Act Release No. 94897 (May 12, 2022), 87 FR 30294 (May 18, 2022) (SR–ISE–2022–11) (Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Routing Functionality in Connection With a Technology Migration). 8 GEMX is migrating its technology to an enhanced Nasdaq, Inc. functionality which results in higher performance, scalability, and more robust architecture. VerDate Sep<11>2014 18:44 Apr 27, 2023 Jkt 259001 FIX Ports,9 SQF Ports,10 SQF Purge Ports,11 OTTO Ports,12 CTI Ports,13 and FIX DROP Ports,14 at no additional cost, from November 1, 2023 through November 30, 2023 (‘‘Transition Period’’) which are duplicative of the type and quantity of their legacy ports. These second set of new ports would allow Members time to test ports to the new environment as well as provide continuous connection to the 9 ‘‘Financial Information eXchange’’ or ‘‘FIX’’ is an interface that allows Members and their Sponsored Customers to connect, send, and receive messages related to orders and auction orders to the Exchange. Features include the following: (1) execution messages; (2) order messages; (3) risk protection triggers and cancel notifications; and (4) post trade allocation messages. See Supplementary Material .03(a) to Options 3, Section 7. 10 ‘‘Specialized Quote Feed’’ or ‘‘SQF’’ is an interface that allows Market Makers to connect, send, and receive messages related to quotes, Immediate-or-Cancel Orders, and auction responses to the Exchange. Features include the following: (1) options symbol directory messages (e.g., underlying instruments); (2) System event messages (e.g., start of trading hours messages and start of opening); (3) trading action messages (e.g., halts and resumes); (4) execution messages; (5) quote messages; (6) Immediate-or-Cancel Order messages; (7) risk protection triggers and purge notifications; (8) opening imbalance messages; (9) auction notifications; and (10) auction responses. The SQF Purge Interface only receives and notifies of purge requests from the Market Maker. Market Makers may only enter interest into SQF in their assigned options series. See Supplementary Material .03(c) to Options 3, Section 7. 11 SQF Purge is a specific port for the SQF interface that only receives and notifies of purge requests from the Market Maker. Dedicated SQF Purge Ports enable Market Makers to seamlessly manage their ability to remove their quotes in a swift manner. 12 ‘‘Ouch to Trade Options’’ or ‘‘OTTO’’ is an interface that allows Members and their Sponsored Customers to connect, send, and receive messages related to orders, auction orders, and auction responses to the Exchange. Features include the following: (1) options symbol directory messages (e.g., underlying instruments); (2) System event messages (e.g., start of trading hours messages and start of opening); (3) trading action messages (e.g., halts and resumes); (4) execution messages; (5) order messages; (6) risk protection triggers and cancel notifications; (7) auction notifications; (8) auction responses; and (9) post trade allocation messages. See Supplementary Material .03(b) to Options 3, Section 7. 13 Clearing Trade Interface (‘‘CTI’’) is a real-time cleared trade update message that is sent to a Member after an execution has occurred and contains trade details specific to that Member. The information includes, among other things, the following: (i) The Clearing Member Trade Agreement (‘‘CMTA’’) or The Options Clearing Corporation (‘‘OCC’’) number; (ii) badge or mnemonic; (iii) account number; (iv) information which identifies the transaction type (e.g., auction type) for billing purposes; and (v) market participant capacity. See Option 3, Section 23(b)(1). 14 FIX DROP is a real-time order and execution update message that is sent to a Member after an order been received/modified or an execution has occurred and contains trade details specific to that Member. The information includes, among other things, the following: (i) executions; (ii) cancellations; (iii) modifications to an existing order; and (iv) busts or post-trade corrections. See Options 3, Section 23(b)(3). PO 00000 Frm 00102 Fmt 4703 Sfmt 4703 Exchange’s match engine during the Transition Period.15 During the Transition Period, Members will be required to utilize their new ports on the new GEMX platform for symbols that have migrated to the new platform, while continuing to leverage legacy ports for symbols that have not yet migrated to the new platform.16 For example, a GEMX Member with 3 legacy SQF Ports, 1 legacy SQF Purge Port, 1 legacy FIX DROP Port, 1 legacy OTTO Port, and 1 legacy CTI Port on November 1, 2023 could request the equivalent quantity and type of new ports (3 SQF Ports, 1 SQF Purge Port, 1 FIX DROP Port, 1 OTTO Port, and 1 CTI Port) for the new GEMX environment during the Transition Period at no additional cost. During the Transition Period, the GEMX Member would be assessed only for legacy ports and would not be assessed for the new ports, which are duplicative of the legacy ports. A Member may acquire additional legacy ports during the Transition Period and would be assessed the charges indicated in the current Pricing Schedule at Options 7, Section 6.C, respectively, for those additional legacy ports. The technology migration does not require a Member to acquire any additional legacy ports or any specific number of new ports, rather the technology migration requires a new port to connect to the new GEMX environment. As is the case today, a Member may decide the number of ports they desire to subscribe to on the new technology platform.17 Of note, only GEMX Members may utilize ports on GEMX and only one port is necessary to submit orders to GEMX. Similarly, a Market Maker quoting on GEMX only requires 1 SQF Port.18 A Member may also obtain any number of order and execution ports, such as a SQF Purge Ports, FIX DROP Ports and CTI Ports and any number of market data ports.19 Members are able to elect the quantity and type of ports they 15 Members would contact Market Operations to acquire new duplicative ports. 16 See Options Trader Alert #2023–4. The GEMX migration will commence on Monday, November 6, 2023 and end on Monday, November 13, 2023. 17 The technology migration is 1:1 and therefore would not require a Member to acquire an additional quantity of new ports, nor would it reduce the total number of ports needed to connect to the match engine. 18 SQF Ports are utilized solely by Market Makers who are the only Members permitted to quote on GEMX. 19 GEMX does not assess fees for the market data ports within Options 7, Section 6.C(iii). Members may acquire any number of market data ports at no cost. E:\FR\FM\28APN1.SGM 28APN1 Federal Register / Vol. 88, No. 82 / Friday, April 28, 2023 / Notices purchase based on that Member’s business model.20 This proposal is not intended to impose any additional fees on any GEMX Member. Rather, this proposal is intended to permit a GEMX Member to utilize the new environment with the same type and quantity of legacy ports, at no additional cost, during the Transition Period. GEMX will sunset legacy FIX Ports, SQF Ports, SQF Purge Ports, OTTO Ports, CTI Ports and FIX DROP Ports on December 29, 2023. After December 29, 2023, each Member would only be able to utilize the new ports for the new environment. Starting December 1, 2023, the port fees in Options 7, Section 6.C would apply to any substituted ports that a Member continues to subscribe to after the Transition Period. ddrumheller on DSK120RN23PROD with NOTICES1 2. Statutory Basis The Exchange believes that its proposal is consistent with section 6(b) of the Act,21 in general, and furthers the objectives of sections 6(b)(4) and 6(b)(5) of the Act,22 in particular, in that it provides for the equitable allocation of reasonable dues, fees, and other charges among members and issuers and other persons using any facility, and is not designed to permit unfair discrimination between customers, issuers, brokers, or dealers. The proposed changes to the Pricing Schedule are reasonable in several respects. As a threshold matter, the Exchange is subject to significant competitive forces in the market for order flow, which constrains its pricing determinations. The fact that the market for order flow is competitive has long been recognized by the courts. In NetCoalition v. Securities and Exchange Commission, the D.C. Circuit stated, ‘‘[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-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’. . . .’’ 23 20 For example, a Member may desire to utilize multiple FIX or OTTO Ports for accounting purposes, to measure performance, for regulatory reasons or other determinations that are specific to that Member. 21 See 15 U.S.C. 78f(b). 22 See 15 U.S.C. 78f(b)(4) and (5). 23 See NetCoalition, 615 F.3d at 539 (D.C. Cir. 2010) (quoting Securities Exchange Act Release No. VerDate Sep<11>2014 18:44 Apr 27, 2023 Jkt 259001 The Commission and the courts have repeatedly expressed their preference for competition over regulatory intervention to determine prices, products, and services in the securities markets. In Regulation NMS, while adopting a series of steps to improve the current market model, 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.’’ 24 Congress directed the Commission to ‘‘rely on ‘competition, whenever possible, in meeting its regulatory responsibilities for overseeing the SROs and the national market system.’ ’’ 25 As a result, the Commission has historically relied on competitive forces to determine whether a fee proposal is equitable, fair, reasonable, and not unreasonably or unfairly discriminatory. ‘‘If competitive forces are operative, the self-interest of the exchanges themselves will work powerfully to constrain unreasonable or unfair behavior.’’ 26 Accordingly, ‘‘the existence of significant competition provides a substantial basis for finding that the terms of an exchange’s fee proposal are equitable, fair, reasonable, and not unreasonably or unfairly discriminatory.’’ 27 Options 7, Section 1 The Exchange’s proposal to define an Exposed Order for purposes of pricing within Options 7, Section 1(c) is reasonable because it will provide Members information as to the manner in which pricing will be applied to both the Exposed Order as well as an order or quote that allocates against the Exposed Order.28 As proposed, the applicable Taker Fee would apply to an executed Exposed Order and the applicable Maker Rebate and/or Maker Fee would apply to an order or quote that allocated against the Exposed Order during the Route Timer. The Exchange 59039 (December 2, 2008), 73 FR 74770, 74782–83 (December 9, 2008) (SR–NYSEArca–2006–21)). 24 See Securities Exchange Act Release No. 51808 (June 9, 2005), 70 FR 37496, 37499 (June 29, 2005) (‘‘Regulation NMS Adopting Release’’). 25 See NetCoalition, 615 F.3d at 534–35; see also H.R. Rep. No. 94–229 at 92 (1975) (‘‘[I]t is the intent of the conferees that the national market system evolve through the interplay of competitive forces as unnecessary regulatory restrictions are removed.’’). 26 See Securities Exchange Act Release No. 59039 (December 2, 2008), 73 FR 74,770 (December 9, 2008) (SR–NYSEArca–2006–21). 27 Id. 28 See Option 5, Section 4. PO 00000 Frm 00103 Fmt 4703 Sfmt 4703 26351 believes the proposed pricing should provide increased opportunities for participation in executions on the Exchange, facilitating the ability of the Exchange to bring together participants and encourage more robust competition for orders. Order exposure has the potential to result in more efficient executions for participants as responses to exposed orders could result in faster executions. Order exposure assures that such exposed orders will only receive executions at a price at least as good as the price disseminated by the best away market at the time the order was received. Further, the Exchange believes that it is reasonable, equitable and not unfairly discriminatory to apply the Taker Fee to Exposed Orders and the Maker Rebate/Fee to any order or quote that executes against an Exposed Order during a Route Timer because the Exposed Order that would route to an away market if not otherwise executed on GEMX would be taking liquidity from the Exchange’s order book while a quote or order that executes against the Exposed Order during the Route Timer would be considered making liquidity in response to the notification sent to Members indicating the order is available for execution. Nasdaq MRX, LLC (‘‘MRX’’) similarly assesses a Taker Fee to an exposed order and pays/ assesses a Maker Rebate/Fee to any order or quote that executes against the exposed order during the Route Timer.29 The Exchange’s proposal to define an Exposed Order for purposes of pricing within Options 7, Section 1(c) is equitable and not unfairly discriminatory as the proposed pricing for Exposed Orders would be uniformly applied to all orders subject to the Exchange’s Route Timer, as described in Options 5, Section 4. Options 7, Section 6 The proposed amendments to Options 7, Section 6.C to permit Members to acquire a second set of FIX Ports, SQF Ports, SQF Purge Ports, OTTO Ports, CTI Ports and FIX DROP Ports, at no cost, as part of the technology migration are reasonable because they will permit GEMX Members to migrate to the new platform without a pricing impact. Specifically, the proposal is intended to permit GEMX Members to migrate their legacy FIX Ports, SQF Ports, SQF Purge Ports, OTTO Ports, CTI Ports and FIX DROP Ports to new ports at no additional cost during the Transition Period. This proposal will allow Members to test their ports and maintain continuous connection to the 29 See E:\FR\FM\28APN1.SGM MRX Options 7, Section 1(c). 28APN1 ddrumheller on DSK120RN23PROD with NOTICES1 26352 Federal Register / Vol. 88, No. 82 / Friday, April 28, 2023 / Notices Exchange’s match engine during the Transition Period. The proposed amendments to Options 7, Section 6.C to permit Members to acquire a second set of FIX Ports, SQF Ports, SQF Purge Ports, OTTO Ports, CTI Ports and FIX DROP Ports, at no cost, as part of the technology migration are equitable and not unfairly discriminatory because no Member would have a pricing impact as a result of this proposal, provided the Member did not obtain additional new ports to connect to the GEMX environment beyond the quantity and type the Member had on November 1, 2023 or additional legacy ports. No Member would be assessed a fee for the new second set of ports, provided they acquired a new second set of ports commiserate with the type and quantity of ports they subscribed to as of November 1, 2023. A Member obtaining additional legacy ports, beyond the current type and quantity of ports they have as of November 1, 2023, would be assessed the fees noted in Options 7, Section 6.C as applicable. GEMX will sunset legacy FIX Ports, SQF Ports, SQF Purge Ports, OTTO Ports, CTI Ports and FIX DROP Ports on December 29, 2023, so no Member would have a second type or quantity of a particular port as of December 29, 2023. Starting in December 1, 2023, the port fees in Options 7, Section 6.C would apply to any substituted ports that a Member continues to subscribe to after the Transition Period. The technology migration does not require a Member to acquire any additional quantity of new ports, nor would it reduce the total number of ports needed to connect to the match engine. Rather the technology migration requires a new port to replace any legacy port provided the Member desired to maintain the same number of ports on the new GEMX technology platform. Of note, only GEMX Members may utilize ports on GEMX and only one port is necessary to submit orders to GEMX. Similarly, a Market Maker quoting on GEMX only requires 1 SQF Port.30 A Member may also obtain any number of order and execution ports, such as a SQF Purge Ports, FIX DROP Ports and CTI Ports and any number of market data ports.31 Members are able to elect the quantity and type of ports they 30 SQF Ports are utilized solely by Market Makers who are the only Members permitted to quote on GEMX. 31 GEMX does not assess fees for the market data ports within Options 7, Section 6.C(iii). Members may acquire any number of market data ports at no cost. VerDate Sep<11>2014 18:44 Apr 27, 2023 Jkt 259001 purchase based on that Member’s business model.32 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. Intermarket Competition The Exchange believes its proposal remains competitive with other options markets, and will offer market participants with another choice of venue to transact options. The Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive, or rebate opportunities available at other venues to be more favorable. Because competitors are free to modify their own fees in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited. Intramarket Competition Options 7, Section 1 The Exchange’s proposal to define an Exposed Order for purposes of pricing within Options 7, Section 1(c) does not impose an undue burden on competition because the proposed pricing for Exposed Orders would be uniformly applied to all orders subject to the Exchange’s Route Timer, as described in Options 4, Section 5. Options 7, Section 6 The proposed amendments to Options 7, Section 6.C to permit Members to acquire a second set of FIX Ports, SQF Ports, SQF Purge Ports, OTTO Ports, CTI Ports and FIX DROP Ports, at no cost, as part of the technology migration do not impose an undue burden on competition because no Member would have a pricing impact as a result of this proposal, provided the Member did not obtain additional new ports to connect to the GEMX environment beyond the quantity and type the Member had on November 1, 2023 or additional legacy ports. No Member would be assessed a fee for the new second set of ports, provided they acquired a new second set of ports commiserate with the type 32 For example, a Member may desire to utilize multiple FIX or OTTO Ports for accounting purposes, to measure performance, for regulatory reasons or other determinations that are specific to that Member. PO 00000 Frm 00104 Fmt 4703 Sfmt 4703 and quantity of ports they subscribed to as of November 1, 2023. A Member obtaining additional legacy ports, beyond the current type and quantity of ports they have as of November 1, 2023, would be assessed the fees noted in Options 7, Section 6.C as applicable. GEMX will sunset legacy FIX Ports, SQF Ports, SQF Purge Ports, OTTO Ports, CTI Ports and FIX DROP Ports on December 29, 2023, so no Member would have a second type or quantity of a particular port as of December 29, 2023. Starting in December 1, 2023, the port fees in Options 7, Section 6.C would apply to any substituted ports that a Member continues to subscribe to after the Transition Period. C. Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others No written comments were either solicited or 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.33 At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved. IV. Solicitation of Comments Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission’s internet comment form (https://www.sec.gov/ rules/sro.shtml); or • Send an email to rule-comments@ sec.gov. Please include File Number SR– GEMX–2023–05 on the subject line. Paper Comments • Send paper comments in triplicate to Secretary, Securities and Exchange 33 15 E:\FR\FM\28APN1.SGM U.S.C. 78s(b)(3)(A)(ii). 28APN1 Federal Register / Vol. 88, No. 82 / Friday, April 28, 2023 / Notices Commission, 100 F Street NE, Washington, DC 20549–1090. SECURITIES AND EXCHANGE COMMISSION All submissions should refer to File Number SR–GEMX–2023–05. 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 such filing also will be available for inspection and copying at the principal office of the Exchange. Do not include personal identifiable information in submissions; you should submit only information that you wish to make available publicly. We may redact in part or withhold entirely from publication submitted material that is obscene or subject to copyright protection. All submissions should refer to File Number SR–GEMX–2023–05 and should be submitted on or before May 19, 2023. [Release No. 34–97368; File No. SR–CBOE– 2023–018] For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.34 Sherry R. Haywood, Assistant Secretary. Rules of Cboe Exchange, Inc. [FR Doc. 2023–08979 Filed 4–27–23; 8:45 am] ddrumheller on DSK120RN23PROD with NOTICES1 BILLING CODE 8011–01–P Self-Regulatory Organizations; Cboe Exchange, Inc.; Notice of Filing of a Proposed Rule Change To Make Permanent the Operation of its Flexible Exchange Options Pilot Program Regarding Permissible Exercise Settlement Values for FLEX Index Options April 24, 2023. Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’),1 and Rule 19b–4 thereunder,2 notice is hereby given that on April 10, 2023, Cboe Exchange, Inc. (‘‘Exchange’’ or ‘‘Cboe Options’’) filed with the Securities and Exchange Commission (‘‘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 Exchange, Inc. (the ‘‘Exchange’’ or ‘‘Cboe Options’’) proposes to make permanent the operation of its Flexible Exchange Options (‘‘FLEX Options’’) pilot program (‘‘Pilot Program’’) regarding permissible exercise settlement values for FLEX Index Options. The text of the proposed rule change is provided below. (additions are italicized; deletions are [bracketed]) * * * * CFR 200.30–3(a)(12). VerDate Sep<11>2014 18:44 Apr 27, 2023 2 17 Jkt 259001 * * * * * Rule 4.21. Series of FLEX Options (a) No change. (b) Terms. When submitting a FLEX Order for a FLEX Option series to the System, the submitting FLEX Trader must include one of each of the following terms in the FLEX Order (all other terms of a FLEX Option series are the same as those that apply to non-FLEX Options), provided that a FLEX Index Option with an index multiplier of one may not be the same type (put or call) and may not have the same exercise style, expiration date, settlement type, and exercise price as a non-FLEX Index Option overlying the same index listed for trading (regardless of the index multiplier of the non-FLEX Index Option), which terms constitute the FLEX Option series: (1)–(4) No change. 1 15 34 17 * PO 00000 U.S.C. 78s(b)(1). CFR 240.19b–4. Frm 00105 Fmt 4703 Sfmt 4703 26353 (5) settlement type: (A) No change. (B) FLEX Index Options. FLEX Index Options are settled in U.S. dollars, and may be: (i) No change. (ii) p.m.-settled (with exercise settlement value determined by reference to the reported level of the index derived from the reported closing prices of the component securities)[, except for a FLEX Index Option that expires on any business day that falls on or within two business days of a third Friday-of-themonth expiration day for a non-FLEX Option (other than a QIX option) may only be a.m.settled; however, for a pilot period ending the earlier of May 8, 2023 or the date on which the pilot program is approved on a permanent basis, a FLEX Index Option with an expiration date on the third-Friday of the month may be p.m.-settled]; * * * * * The text of the proposed rule change is also available on the Exchange’s website (https://www.cboe.com/ AboutCBOE/ CBOELegalRegulatoryHome.aspx), 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 make permanent its Pilot Program that permits the Exchange to list FLEX Options whose exercise settlement value is derived from closing prices on the last trading day prior to expiration that expire on or within two business days of a third Friday-of-the-month expiration day for a non-FLEX Option (other than QIX options) (‘‘FLEX PM Third Friday’’). The Securities and Exchange Commission (the ‘‘Commission’’) approved a Cboe Options rule change that, among other things, established a pilot program regarding permissible exercise settlement values for FLEX Index E:\FR\FM\28APN1.SGM 28APN1

Agencies

[Federal Register Volume 88, Number 82 (Friday, April 28, 2023)]
[Notices]
[Pages 26349-26353]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-08979]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-97360; File No. SR-GEMX-2023-05]


Self-Regulatory Organizations; Nasdaq GEMX, LLC; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To Amend GEMX's 
Pricing Schedule at Options 7

April 24, 2023.
    Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on April 10, 2023, Nasdaq GEMX, LLC (``GEMX'' or the ``Exchange'') 
filed with the Securities and Exchange Commission (``SEC'' or 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 proposes to amend GEMX's Pricing Schedule at Options 
7.
    While the changes proposed herein are effective upon filing, the 
Exchange has designated the amendments become operative on November 1, 
2023.
    The text of the proposed rule change is available on the Exchange's 
website at https://listingcenter.nasdaq.com/rulebook/gemx/rules, 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 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 the 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    GEMX proposes to amend its Pricing Schedule at Options 7. 
Specifically, GEMX proposes to: (1) add the defined term ``Exposed 
Order'' within Options 7, Section 1(c); and (2) amend Options 7, 
Section 6.C. to offer certain free ports in connection with an upcoming 
technology migration.\3\ Each change is described below.
---------------------------------------------------------------------------

    \3\ See Options Trader Alert #2023-4. The GEMX migration will 
commence on Monday, November 6, 2023.
---------------------------------------------------------------------------

Options 7, Section 1
    The Exchange proposes to define an Exposed Order for purposes of 
pricing within Options 7. The Exchange introduced the concept of an 
``exposure'' in a rule change amending GEMX's routing rules.\4\ In that 
rule change, the Exchange noted that for purposes of GEMX's Options 5, 
Section 4 routing rule, ``exposure'' or ``exposing'' an order means a 
notification sent to Members with the price, size, and side of interest 
that is

[[Page 26350]]

available for execution.\5\ The order exposure will apply to both 
routed orders and non-routed or ``DNR Orders.'' The order exposure 
process permits the Exchange to apply a Route Timer \6\ prior to the 
initial and subsequent routing of an order and allows routing of the 
order after exposure occurs (during open trading) every time an order 
becomes marketable against the ABBO.\7\
---------------------------------------------------------------------------

    \4\ See Securities Exchange Act Release No. 94897 (May 12, 
2022), 87 FR 30294 (May 18, 2022) (SR-ISE-2022-11) (Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To Amend Routing 
Functionality in Connection With a Technology Migration). GEMX's 
Options 5 rules are incorporated by reference to Nasdaq ISE, LLC 
Options 5 rules. See also Securities Exchange Act Release No. 97126 
(March 13, 2023), 88 FR 16485 (March 17, 2023) (SR-GEMX-2023-04) 
(Notice of Filing and Immediate Effectiveness of Proposed Rule 
Change To Delay the Implementation of Certain Trading 
Functionality).
    \5\ See GEMX Options 5, Section 4(a) which is effective but not 
yet operative. See also Securities Exchange Act Release No. 94897 
(May 12, 2022), 87 FR 30294 (May 18, 2022) (SR-ISE-2022-11) (Notice 
of Filing and Immediate Effectiveness of Proposed Rule Change To 
Amend Routing Functionality in Connection With a Technology 
Migration).
    \6\ For purposes of Options 5, Section 4, a Route Timer shall 
not exceed one second and shall begin at the time orders are 
accepted into the System, and the System will consider whether an 
order can be routed at the conclusion of each Route Timer.
    \7\ See GEMX Options 5, Section 4 which is effective but not yet 
operative. See also Securities Exchange Act Release No. 94897 (May 
12, 2022), 87 FR 30294 (May 18, 2022) (SR-ISE-2022-11) (Notice of 
Filing and Immediate Effectiveness of Proposed Rule Change To Amend 
Routing Functionality in Connection With a Technology Migration).
---------------------------------------------------------------------------

    At this time, the Exchange proposes to amend Options 7, Section 
1(c) to provide,

    An ``Exposed Order'' is an order that is broadcast via an order 
exposure alert as described within Options 5, Section 4 (Order 
Routing). Unless otherwise noted in Options 7, Section 3 pricing, 
Exposed Orders will be assessed the applicable ``Taker'' Fee and any 
order or quote that executes against an Exposed Order during a Route 
Timer will be paid/assessed the applicable ``Maker'' Rebate/Fee.

    As proposed, the defined term would apply a Taker Fee, where 
applicable, to an executed Exposed Order. If an order or quote 
allocates against the Exposed Order during the Route Timer described 
within Options 5, Section 4, the Exchange would pay/assess the 
applicable Maker Rebate and/or Maker Fee. The Exchange believes that 
its proposal should provide increased opportunities for participation 
in executions on the Exchange, facilitating the ability of the Exchange 
to bring together participants and encourage more robust competition 
for orders.
Options 7, Section 6
    In connection with a technology migration,\8\ Members may request 
new FIX Ports,\9\ SQF Ports,\10\ SQF Purge Ports,\11\ OTTO Ports,\12\ 
CTI Ports,\13\ and FIX DROP Ports,\14\ at no additional cost, from 
November 1, 2023 through November 30, 2023 (``Transition Period'') 
which are duplicative of the type and quantity of their legacy ports. 
These second set of new ports would allow Members time to test ports to 
the new environment as well as provide continuous connection to the 
Exchange's match engine during the Transition Period.\15\ During the 
Transition Period, Members will be required to utilize their new ports 
on the new GEMX platform for symbols that have migrated to the new 
platform, while continuing to leverage legacy ports for symbols that 
have not yet migrated to the new platform.\16\ For example, a GEMX 
Member with 3 legacy SQF Ports, 1 legacy SQF Purge Port, 1 legacy FIX 
DROP Port, 1 legacy OTTO Port, and 1 legacy CTI Port on November 1, 
2023 could request the equivalent quantity and type of new ports (3 SQF 
Ports, 1 SQF Purge Port, 1 FIX DROP Port, 1 OTTO Port, and 1 CTI Port) 
for the new GEMX environment during the Transition Period at no 
additional cost. During the Transition Period, the GEMX Member would be 
assessed only for legacy ports and would not be assessed for the new 
ports, which are duplicative of the legacy ports.
---------------------------------------------------------------------------

    \8\ GEMX is migrating its technology to an enhanced Nasdaq, Inc. 
functionality which results in higher performance, scalability, and 
more robust architecture.
    \9\ ``Financial Information eXchange'' or ``FIX'' is an 
interface that allows Members and their Sponsored Customers to 
connect, send, and receive messages related to orders and auction 
orders to the Exchange. Features include the following: (1) 
execution messages; (2) order messages; (3) risk protection triggers 
and cancel notifications; and (4) post trade allocation messages. 
See Supplementary Material .03(a) to Options 3, Section 7.
    \10\ ``Specialized Quote Feed'' or ``SQF'' is an interface that 
allows Market Makers to connect, send, and receive messages related 
to quotes, Immediate-or-Cancel Orders, and auction responses to the 
Exchange. Features include the following: (1) options symbol 
directory messages (e.g., underlying instruments); (2) System event 
messages (e.g., start of trading hours messages and start of 
opening); (3) trading action messages (e.g., halts and resumes); (4) 
execution messages; (5) quote messages; (6) Immediate-or-Cancel 
Order messages; (7) risk protection triggers and purge 
notifications; (8) opening imbalance messages; (9) auction 
notifications; and (10) auction responses. The SQF Purge Interface 
only receives and notifies of purge requests from the Market Maker. 
Market Makers may only enter interest into SQF in their assigned 
options series. See Supplementary Material .03(c) to Options 3, 
Section 7.
    \11\ SQF Purge is a specific port for the SQF interface that 
only receives and notifies of purge requests from the Market Maker. 
Dedicated SQF Purge Ports enable Market Makers to seamlessly manage 
their ability to remove their quotes in a swift manner.
    \12\ ``Ouch to Trade Options'' or ``OTTO'' is an interface that 
allows Members and their Sponsored Customers to connect, send, and 
receive messages related to orders, auction orders, and auction 
responses to the Exchange. Features include the following: (1) 
options symbol directory messages (e.g., underlying instruments); 
(2) System event messages (e.g., start of trading hours messages and 
start of opening); (3) trading action messages (e.g., halts and 
resumes); (4) execution messages; (5) order messages; (6) risk 
protection triggers and cancel notifications; (7) auction 
notifications; (8) auction responses; and (9) post trade allocation 
messages. See Supplementary Material .03(b) to Options 3, Section 7.
    \13\ Clearing Trade Interface (``CTI'') is a real-time cleared 
trade update message that is sent to a Member after an execution has 
occurred and contains trade details specific to that Member. The 
information includes, among other things, the following: (i) The 
Clearing Member Trade Agreement (``CMTA'') or The Options Clearing 
Corporation (``OCC'') number; (ii) badge or mnemonic; (iii) account 
number; (iv) information which identifies the transaction type 
(e.g., auction type) for billing purposes; and (v) market 
participant capacity. See Option 3, Section 23(b)(1).
    \14\ FIX DROP is a real-time order and execution update message 
that is sent to a Member after an order been received/modified or an 
execution has occurred and contains trade details specific to that 
Member. The information includes, among other things, the following: 
(i) executions; (ii) cancellations; (iii) modifications to an 
existing order; and (iv) busts or post-trade corrections. See 
Options 3, Section 23(b)(3).
    \15\ Members would contact Market Operations to acquire new 
duplicative ports.
    \16\ See Options Trader Alert #2023-4. The GEMX migration will 
commence on Monday, November 6, 2023 and end on Monday, November 13, 
2023.
---------------------------------------------------------------------------

    A Member may acquire additional legacy ports during the Transition 
Period and would be assessed the charges indicated in the current 
Pricing Schedule at Options 7, Section 6.C, respectively, for those 
additional legacy ports.
    The technology migration does not require a Member to acquire any 
additional legacy ports or any specific number of new ports, rather the 
technology migration requires a new port to connect to the new GEMX 
environment. As is the case today, a Member may decide the number of 
ports they desire to subscribe to on the new technology platform.\17\
---------------------------------------------------------------------------

    \17\ The technology migration is 1:1 and therefore would not 
require a Member to acquire an additional quantity of new ports, nor 
would it reduce the total number of ports needed to connect to the 
match engine.
---------------------------------------------------------------------------

    Of note, only GEMX Members may utilize ports on GEMX and only one 
port is necessary to submit orders to GEMX. Similarly, a Market Maker 
quoting on GEMX only requires 1 SQF Port.\18\ A Member may also obtain 
any number of order and execution ports, such as a SQF Purge Ports, FIX 
DROP Ports and CTI Ports and any number of market data ports.\19\ 
Members are able to elect the quantity and type of ports they

[[Page 26351]]

purchase based on that Member's business model.\20\
---------------------------------------------------------------------------

    \18\ SQF Ports are utilized solely by Market Makers who are the 
only Members permitted to quote on GEMX.
    \19\ GEMX does not assess fees for the market data ports within 
Options 7, Section 6.C(iii). Members may acquire any number of 
market data ports at no cost.
    \20\ For example, a Member may desire to utilize multiple FIX or 
OTTO Ports for accounting purposes, to measure performance, for 
regulatory reasons or other determinations that are specific to that 
Member.
---------------------------------------------------------------------------

    This proposal is not intended to impose any additional fees on any 
GEMX Member. Rather, this proposal is intended to permit a GEMX Member 
to utilize the new environment with the same type and quantity of 
legacy ports, at no additional cost, during the Transition Period.
    GEMX will sunset legacy FIX Ports, SQF Ports, SQF Purge Ports, OTTO 
Ports, CTI Ports and FIX DROP Ports on December 29, 2023. After 
December 29, 2023, each Member would only be able to utilize the new 
ports for the new environment. Starting December 1, 2023, the port fees 
in Options 7, Section 6.C would apply to any substituted ports that a 
Member continues to subscribe to after the Transition Period.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with section 
6(b) of the Act,\21\ in general, and furthers the objectives of 
sections 6(b)(4) and 6(b)(5) of the Act,\22\ in particular, in that it 
provides for the equitable allocation of reasonable dues, fees, and 
other charges among members and issuers and other persons using any 
facility, and is not designed to permit unfair discrimination between 
customers, issuers, brokers, or dealers.
---------------------------------------------------------------------------

    \21\ See 15 U.S.C. 78f(b).
    \22\ See 15 U.S.C. 78f(b)(4) and (5).
---------------------------------------------------------------------------

    The proposed changes to the Pricing Schedule are reasonable in 
several respects. As a threshold matter, the Exchange is subject to 
significant competitive forces in the market for order flow, which 
constrains its pricing determinations. The fact that the market for 
order flow is competitive has long been recognized by the courts. In 
NetCoalition v. Securities and Exchange Commission, the D.C. Circuit 
stated, ``[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-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'. . . .'' \23\
---------------------------------------------------------------------------

    \23\ See NetCoalition, 615 F.3d at 539 (D.C. Cir. 2010) (quoting 
Securities Exchange Act Release No. 59039 (December 2, 2008), 73 FR 
74770, 74782-83 (December 9, 2008) (SR-NYSEArca-2006-21)).
---------------------------------------------------------------------------

    The Commission and the courts have repeatedly expressed their 
preference for competition over regulatory intervention to determine 
prices, products, and services in the securities markets. In Regulation 
NMS, while adopting a series of steps to improve the current market 
model, 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.'' \24\
---------------------------------------------------------------------------

    \24\ See Securities Exchange Act Release No. 51808 (June 9, 
2005), 70 FR 37496, 37499 (June 29, 2005) (``Regulation NMS Adopting 
Release'').
---------------------------------------------------------------------------

    Congress directed the Commission to ``rely on `competition, 
whenever possible, in meeting its regulatory responsibilities for 
overseeing the SROs and the national market system.' '' \25\ As a 
result, the Commission has historically relied on competitive forces to 
determine whether a fee proposal is equitable, fair, reasonable, and 
not unreasonably or unfairly discriminatory. ``If competitive forces 
are operative, the self-interest of the exchanges themselves will work 
powerfully to constrain unreasonable or unfair behavior.'' \26\ 
Accordingly, ``the existence of significant competition provides a 
substantial basis for finding that the terms of an exchange's fee 
proposal are equitable, fair, reasonable, and not unreasonably or 
unfairly discriminatory.'' \27\
---------------------------------------------------------------------------

    \25\ See NetCoalition, 615 F.3d at 534-35; see also H.R. Rep. 
No. 94-229 at 92 (1975) (``[I]t is the intent of the conferees that 
the national market system evolve through the interplay of 
competitive forces as unnecessary regulatory restrictions are 
removed.'').
    \26\ See Securities Exchange Act Release No. 59039 (December 2, 
2008), 73 FR 74,770 (December 9, 2008) (SR-NYSEArca-2006-21).
    \27\ Id.
---------------------------------------------------------------------------

Options 7, Section 1
    The Exchange's proposal to define an Exposed Order for purposes of 
pricing within Options 7, Section 1(c) is reasonable because it will 
provide Members information as to the manner in which pricing will be 
applied to both the Exposed Order as well as an order or quote that 
allocates against the Exposed Order.\28\ As proposed, the applicable 
Taker Fee would apply to an executed Exposed Order and the applicable 
Maker Rebate and/or Maker Fee would apply to an order or quote that 
allocated against the Exposed Order during the Route Timer. The 
Exchange believes the proposed pricing should provide increased 
opportunities for participation in executions on the Exchange, 
facilitating the ability of the Exchange to bring together participants 
and encourage more robust competition for orders. Order exposure has 
the potential to result in more efficient executions for participants 
as responses to exposed orders could result in faster executions. Order 
exposure assures that such exposed orders will only receive executions 
at a price at least as good as the price disseminated by the best away 
market at the time the order was received. Further, the Exchange 
believes that it is reasonable, equitable and not unfairly 
discriminatory to apply the Taker Fee to Exposed Orders and the Maker 
Rebate/Fee to any order or quote that executes against an Exposed Order 
during a Route Timer because the Exposed Order that would route to an 
away market if not otherwise executed on GEMX would be taking liquidity 
from the Exchange's order book while a quote or order that executes 
against the Exposed Order during the Route Timer would be considered 
making liquidity in response to the notification sent to Members 
indicating the order is available for execution. Nasdaq MRX, LLC 
(``MRX'') similarly assesses a Taker Fee to an exposed order and pays/
assesses a Maker Rebate/Fee to any order or quote that executes against 
the exposed order during the Route Timer.\29\
---------------------------------------------------------------------------

    \28\ See Option 5, Section 4.
    \29\ See MRX Options 7, Section 1(c).
---------------------------------------------------------------------------

    The Exchange's proposal to define an Exposed Order for purposes of 
pricing within Options 7, Section 1(c) is equitable and not unfairly 
discriminatory as the proposed pricing for Exposed Orders would be 
uniformly applied to all orders subject to the Exchange's Route Timer, 
as described in Options 5, Section 4.
Options 7, Section 6
    The proposed amendments to Options 7, Section 6.C to permit Members 
to acquire a second set of FIX Ports, SQF Ports, SQF Purge Ports, OTTO 
Ports, CTI Ports and FIX DROP Ports, at no cost, as part of the 
technology migration are reasonable because they will permit GEMX 
Members to migrate to the new platform without a pricing impact. 
Specifically, the proposal is intended to permit GEMX Members to 
migrate their legacy FIX Ports, SQF Ports, SQF Purge Ports, OTTO Ports, 
CTI Ports and FIX DROP Ports to new ports at no additional cost during 
the Transition Period. This proposal will allow Members to test their 
ports and maintain continuous connection to the

[[Page 26352]]

Exchange's match engine during the Transition Period.
    The proposed amendments to Options 7, Section 6.C to permit Members 
to acquire a second set of FIX Ports, SQF Ports, SQF Purge Ports, OTTO 
Ports, CTI Ports and FIX DROP Ports, at no cost, as part of the 
technology migration are equitable and not unfairly discriminatory 
because no Member would have a pricing impact as a result of this 
proposal, provided the Member did not obtain additional new ports to 
connect to the GEMX environment beyond the quantity and type the Member 
had on November 1, 2023 or additional legacy ports. No Member would be 
assessed a fee for the new second set of ports, provided they acquired 
a new second set of ports commiserate with the type and quantity of 
ports they subscribed to as of November 1, 2023. A Member obtaining 
additional legacy ports, beyond the current type and quantity of ports 
they have as of November 1, 2023, would be assessed the fees noted in 
Options 7, Section 6.C as applicable. GEMX will sunset legacy FIX 
Ports, SQF Ports, SQF Purge Ports, OTTO Ports, CTI Ports and FIX DROP 
Ports on December 29, 2023, so no Member would have a second type or 
quantity of a particular port as of December 29, 2023. Starting in 
December 1, 2023, the port fees in Options 7, Section 6.C would apply 
to any substituted ports that a Member continues to subscribe to after 
the Transition Period.
    The technology migration does not require a Member to acquire any 
additional quantity of new ports, nor would it reduce the total number 
of ports needed to connect to the match engine. Rather the technology 
migration requires a new port to replace any legacy port provided the 
Member desired to maintain the same number of ports on the new GEMX 
technology platform. Of note, only GEMX Members may utilize ports on 
GEMX and only one port is necessary to submit orders to GEMX. 
Similarly, a Market Maker quoting on GEMX only requires 1 SQF Port.\30\ 
A Member may also obtain any number of order and execution ports, such 
as a SQF Purge Ports, FIX DROP Ports and CTI Ports and any number of 
market data ports.\31\ Members are able to elect the quantity and type 
of ports they purchase based on that Member's business model.\32\
---------------------------------------------------------------------------

    \30\ SQF Ports are utilized solely by Market Makers who are the 
only Members permitted to quote on GEMX.
    \31\ GEMX does not assess fees for the market data ports within 
Options 7, Section 6.C(iii). Members may acquire any number of 
market data ports at no cost.
    \32\ For example, a Member may desire to utilize multiple FIX or 
OTTO Ports for accounting purposes, to measure performance, for 
regulatory reasons or other determinations that are specific to that 
Member.
---------------------------------------------------------------------------

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.
Intermarket Competition
    The Exchange believes its proposal remains competitive with other 
options markets, and will offer market participants with another choice 
of venue to transact options. The Exchange notes that it operates in a 
highly competitive market in which market participants can readily 
favor competing venues if they deem fee levels at a particular venue to 
be excessive, or rebate opportunities available at other venues to be 
more favorable. Because competitors are free to modify their own fees 
in response, and because market participants may readily adjust their 
order routing practices, the Exchange believes that the degree to which 
fee changes in this market may impose any burden on competition is 
extremely limited.
Intramarket Competition
Options 7, Section 1
    The Exchange's proposal to define an Exposed Order for purposes of 
pricing within Options 7, Section 1(c) does not impose an undue burden 
on competition because the proposed pricing for Exposed Orders would be 
uniformly applied to all orders subject to the Exchange's Route Timer, 
as described in Options 4, Section 5.
Options 7, Section 6
    The proposed amendments to Options 7, Section 6.C to permit Members 
to acquire a second set of FIX Ports, SQF Ports, SQF Purge Ports, OTTO 
Ports, CTI Ports and FIX DROP Ports, at no cost, as part of the 
technology migration do not impose an undue burden on competition 
because no Member would have a pricing impact as a result of this 
proposal, provided the Member did not obtain additional new ports to 
connect to the GEMX environment beyond the quantity and type the Member 
had on November 1, 2023 or additional legacy ports. No Member would be 
assessed a fee for the new second set of ports, provided they acquired 
a new second set of ports commiserate with the type and quantity of 
ports they subscribed to as of November 1, 2023. A Member obtaining 
additional legacy ports, beyond the current type and quantity of ports 
they have as of November 1, 2023, would be assessed the fees noted in 
Options 7, Section 6.C as applicable. GEMX will sunset legacy FIX 
Ports, SQF Ports, SQF Purge Ports, OTTO Ports, CTI Ports and FIX DROP 
Ports on December 29, 2023, so no Member would have a second type or 
quantity of a particular port as of December 29, 2023. Starting in 
December 1, 2023, the port fees in Options 7, Section 6.C would apply 
to any substituted ports that a Member continues to subscribe to after 
the Transition Period.

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

    No written comments were either solicited or 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.\33\ At any time within 60 days of the 
filing of the proposed rule change, the Commission summarily may 
temporarily suspend such rule change if it appears to the Commission 
that such action is: (i) necessary or appropriate in the public 
interest; (ii) for the protection of investors; or (iii) otherwise in 
furtherance of the purposes of the Act. If the Commission takes such 
action, the Commission shall institute proceedings to determine whether 
the proposed rule should be approved or disapproved.
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    \33\ 15 U.S.C. 78s(b)(3)(A)(ii).
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IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-GEMX-2023-05 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities 
and Exchange

[[Page 26353]]

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

All submissions should refer to File Number SR-GEMX-2023-05. 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 such filing also will be available for inspection 
and copying at the principal office of the Exchange. Do not include 
personal identifiable information in submissions; you should submit 
only information that you wish to make available publicly. We may 
redact in part or withhold entirely from publication submitted material 
that is obscene or subject to copyright protection. All submissions 
should refer to File Number SR-GEMX-2023-05 and should be submitted on 
or before May 19, 2023.
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    \34\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\34\
Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-08979 Filed 4-27-23; 8:45 am]
BILLING CODE 8011-01-P
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