Self-Regulatory Organizations; MIAX Emerald, LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Its Fee Schedule, 27535-27539 [2023-09211]

Download as PDF Federal Register / Vol. 88, No. 84 / Tuesday, May 2, 2023 / Notices POSTAL REGULATORY COMMISSION [Docket Nos. MC2023–139 and CP2023–141] New Postal Products Postal Regulatory Commission. Notice. AGENCY: ACTION: The Commission is noticing a recent Postal Service filing for the Commission’s consideration concerning a negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps. DATES: Comments are due: May 4, 2023. ADDRESSES: Submit comments electronically via the Commission’s Filing Online system at https:// www.prc.gov. Those who cannot submit comments electronically should contact the person identified in the FOR FURTHER INFORMATION CONTACT section by telephone for advice on filing alternatives. SUMMARY: FOR FURTHER INFORMATION CONTACT: David A. Trissell, General Counsel, at 202–789–6820. SUPPLEMENTARY INFORMATION: Table of Contents I. Introduction II. Docketed Proceeding(s) ddrumheller on DSK120RN23PROD with NOTICES1 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 VerDate Sep<11>2014 18:14 May 01, 2023 Jkt 259001 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).: MC2023–139 and CP2023–141; Filing Title: USPS Request to Add Priority Mail, First-Class Package Service & Parcel Select Contract 8 to Competitive Product List and Notice of Filing Materials Under Seal; Filing Acceptance Date: April 26, 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: May 4, 2023. This Notice will be published in the Federal Register. Erica A. Barker, Secretary. [FR Doc. 2023–09262 Filed 5–1–23; 8:45 am] BILLING CODE 7710–FW–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–97387; File No. SR– EMERALD–2023–11] Self-Regulatory Organizations; MIAX Emerald, LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Its Fee Schedule April 26, 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 13, 2023, MIAX Emerald, LLC (‘‘MIAX Emerald’’ or ‘‘Exchange’’), filed with the Securities and Exchange Commission (‘‘Commission’’) a proposed rule change 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). 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. PO 00000 Frm 00105 Fmt 4703 Sfmt 4703 27535 as described in Items I, II, and III below, which Items have been prepared by the Exchange. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Exchange is filing a proposal to amend the MIAX Emerald Fee Schedule (the ‘‘Fee Schedule’’). The text of the proposed rule change is available on the Exchange’s website at https://www.miaxoptions.com/rulefilings/emerald, at MIAX’s principal office, and at the Commission’s Public Reference Room. II. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The 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 Section 1)a)i) of the Fee Schedule to amend footnote ‘‘*’’ to adopt new fees for Priority Customer 3 Complex Orders that remove liquidity that leg into the Simple book.4 The Exchange originally filed this proposal on March 31, 2023 (SR–EMERALD–2023–08). On April 13, 2023, the Exchange withdrew SR– EMERALD–2023–08 and resubmitted this proposal. Background The Exchange assesses transaction rebates and fees to all market participants, which are based upon a threshold tier structure (‘‘Tier’’). Tiers are determined on a monthly basis and 3 The term ‘‘Priority Customer’’ means a person or entity that (i) is not a broker or dealer in securities, and (ii) does not place more than 390 orders in listed options per day on average during a calendar month for its own beneficial account(s). See Exchange Rule 100. 4 The Simple Order Book or Simple book is the Exchange’s regular electronic book of orders and quotes. See Exchange Rule 518(a)(15). E:\FR\FM\02MYN1.SGM 02MYN1 27536 Federal Register / Vol. 88, No. 84 / Tuesday, May 2, 2023 / Notices ddrumheller on DSK120RN23PROD with NOTICES1 are based on three alternative calculation methods, as defined in Section 1)a)ii) of the Fee Schedule. The calculation method that results in the highest Tier achieved by the Member 5 shall apply to all Origin types by the Member, except the Priority Customer Origin type. For the Priority Customer Origin calculation, the Tier applied for a Member and its Affiliates 6 is solely determined by calculation Method 3, as defined in Section 1)a)ii) of the Fee Schedule, titled ‘‘Total Priority Customer, Maker sides volume, based on % of CTCV (‘Method 3’).’’ The monthly volume thresholds for each of the methods, associated with each Tier, are calculated as the total monthly volume executed by the Member in all options classes on MIAX Emerald in the relevant Origins and/or applicable liquidity, not including Excluded Contracts,7 (as the numerator) expressed as a percentage of (divided by) Customer Total Consolidated Volume (‘‘CTCV’’) (as the denominator). CTCV is calculated as the total national volume 5 ‘‘Member’’ means an individual or organization approved to exercise the trading rights associated with a Trading Permit. Members are deemed ‘‘members’’ under the Exchange Act. See the Definitions Section of the Fee Schedule and Exchange Rule 100. 6 ‘‘Affiliate’’ means (i) an affiliate of a Member of at least 75% common ownership between the firms as reflected on each firm’s Form BD, Schedule A, or (ii) the Appointed Market Maker of an Appointed EEM (or, conversely, the Appointed EEM of an Appointed Market Maker). An ‘‘Appointed Market Maker’’ is a MIAX Emerald Market Maker (who does not otherwise have a corporate affiliation based upon common ownership with an EEM) that has been appointed by an EEM and an ‘‘Appointed EEM’’ is an EEM (who does not otherwise have a corporate affiliation based upon common ownership with a MIAX Emerald Market Maker) that has been appointed by a MIAX Emerald Market Maker, pursuant to the following process. A MIAX Emerald Market Maker appoints an EEM and an EEM appoints a MIAX Emerald Market Maker, for the purposes of the Fee Schedule, by each completing and sending an executed Volume Aggregation Request Form by email to membership@miaxoptions.com no later than 2 business days prior to the first business day of the month in which the designation is to become effective. Transmittal of a validly completed and executed form to the Exchange along with the Exchange’s acknowledgement of the effective designation to each of the Market Maker and EEM will be viewed as acceptance of the appointment. The Exchange will only recognize one designation per Member. A Member may make a designation not more than once every 12 months (from the date of its most recent designation), which designation shall remain in effect unless or until the Exchange receives written notice submitted 2 business days prior to the first business day of the month from either Member indicating that the appointment has been terminated. Designations will become operative on the first business day of the effective month and may not be terminated prior to the end of the month. Execution data and reports will be provided to both parties. See the Definitions Section of the Fee Schedule. 7 The term ‘‘Excluded Contracts’’ means any contracts routed to an away market for execution. See the Definitions Section of the Fee Schedule. VerDate Sep<11>2014 18:14 May 01, 2023 Jkt 259001 cleared at The Options Clearing Corporation (‘‘OCC’’) in the Customer range in those classes listed on MIAX Emerald for the month for which fees apply, excluding volume cleared at the OCC in the Customer range executed during the period of time in which the Exchange experiences an ‘‘Exchange System Disruption’’ 8 (solely in the option classes of the affected Matching Engine).9 In addition, the per contract transaction rebates and fees shall be applied retroactively to all eligible volume once the Tier has been reached by the Member. Members that place resting liquidity, i.e., orders on the MIAX Emerald System, will be assessed the specified ‘‘maker’’ rebate or fee (each a ‘‘Maker’’) and Members that execute against resting liquidity will be assessed the specified ‘‘taker’’ fee or rebate (each a ‘‘Taker’’).10 Members are also assessed lower transaction fees and smaller rebates for order executions in standard option classes in the Penny Interval Program 11 (‘‘Penny Classes’’) than for order executions in standard option classes which are not in the Penny Program (‘‘non-Penny Classes’’), for which Members will be assessed higher transaction fees and larger rebates. Currently, footnote ‘‘*’’ provides that Priority Customer Complex Orders contra to Priority Customer Complex Orders are neither charged nor rebated. Footnote ‘‘*’’ further provides that, Priority Customer Complex Orders that leg into the Simple book are neither charged nor rebated. Proposal The Exchange now proposes to amend footnote ‘‘*’’ to adopt fees for Priority Customer Complex Orders that leg into the Simple Order Book. Specifically, the Exchange proposes to amend footnote 8 The term ‘‘Exchange System Disruption’’ means an outage of a Matching Engine or collective Matching Engines for a period of two consecutive hour or more, during trading hours. See the Definitions Section of the Fee Schedule. 9 A ‘‘Matching Engine’’ is a part of the MIAX Emerald electronic system that processes options orders and trades on a symbol-by-symbol basis. See the Definitions Section of the Fee Schedule. 10 For a Priority Customer Complex Order taking liquidity in the Strategy Book for both a Penny Class and non-Penny Class against Origins other than Priority Customer, the Priority Customer order will receive a rebate based on the Tier achieved. 11 See Securities Exchange Act Release No. 88993 (June 2, 2020), 85 FR 35145 (June 8, 2020) (SR– EMERALD–2020–05) (Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Exchange Rule 510, Minimum Price Variations and Minimum Trading Increments, To Conform the Rule to Section 3.1 of the Plan for the Purpose of Developing and Implementing Procedures Designed To Facilitate the Listing and Trading of Standardized Options) (the ‘‘Penny Program’’). PO 00000 Frm 00106 Fmt 4703 Sfmt 4703 ‘‘*’’ to provide that Priority Customer Complex Orders that remove liquidity that leg into the Simple book will be charged a per contract fee of $0.20 in Penny classes and $0.40 in Non-Penny classes. Additionally, the Exchange proposes to amend the second sentence of footnote ‘‘*’’ for clarity to provide that Priority Customer Complex Orders that add liquidity that leg into the Simple book are neither charged nor rebated. As amended footnote ‘‘*’’ will provide that, ‘‘Priority Customer Complex Orders contra to Priority Customer Complex Orders are neither charged nor rebated. Priority Customer Complex Orders that add liquidity that leg into the Simple book are neither charged nor rebated. Priority Customer Complex Orders that remove liquidity that leg into the Simple book will be charged a per contract fee of $0.20 in Penny classes and $0.40 in Non-Penny classes.’’ Complex Orders for Origins other than Priority Customer that remove liquidity that leg into the Simple book are charged a per contract ‘‘Taker’’ fee of $0.50 in Penny Classes and $0.88 in Non-Penny Classes. These fees are not changing under this proposal. The purpose of adopting these new fees is for business and competitive reasons. In order to attract order flow, the Exchange initially set its rebates and fees so that they were meaningfully higher/lower than other options exchanges that operate comparable maker/taker pricing models.12 The Exchange now believes that it is appropriate to adjust its fees to be competitive with other Exchanges that offer similar functionality and have similar fee structures.13 Implementation The proposed changes are immediately effective. 12 See Securities Exchange Act Release No. 85393 (March 21, 2019), 84 FR 11599 (March 27, 2019) (SR–EMERALD–2019–15) Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Establish the MIAX Emerald Fee Schedule. 13 The Nasdaq ISE Pricing Schedule provides that a $0.25 per contract fee applies instead of the applicable fee or rebate when trading against Priority Customer Complex Orders that leg into the regular order book. See ISE Options 7 Pricing Schedule, Section 3. Regular Order Fees and Rebates, footnote 11; Nasdaq Phlx Pricing Schedule provides that Customers will be assessed a $0.15 per contract surcharge to the extent that they execute the individual components of their Complex Orders in SPY against Market Maker or Lead Market Maker quotes that are resting on the Simple Order Book. See also Nasdaq Phlx Options 7, Pricing Schedule, Section 3. Rebates and Fees for Adding Liquidity in SPY. E:\FR\FM\02MYN1.SGM 02MYN1 ddrumheller on DSK120RN23PROD with NOTICES1 Federal Register / Vol. 88, No. 84 / Tuesday, May 2, 2023 / Notices 2. Statutory Basis The Exchange believes that its proposal to amend its Fee Schedule is consistent with Section 6(b) of the Act 14 in general, and furthers the objectives of Section 6(b)(4) of the Act,15 in particular, in that it is an equitable allocation of reasonable dues, fees and other charges among its Members and issuers and other persons using its facilities. The Exchange also believes that the proposed rule change is consistent with the objectives of Section 6(b)(5) of the Act 16 that the rules of an exchange be designed to prevent fraudulent and manipulative acts and practices, and to promote just and equitable principles of trade, foster cooperation and coordination with persons engaged in facilitating transactions in securities, remove impediments to and perfect the mechanisms of a free and open market and a national market system and, in general, protect investors and the public interest, and, particularly, is not designed to permit unfair discrimination between customers, issuers, brokers, or dealers. The Exchange believes its proposal provides for the equitable allocation of reasonable dues and fees and is not unfairly discriminatory for the following reasons. The Exchange operates in a competitive marketplace in which market participants can readily direct their order flow to competing venues if they deem fee levels at a particular venue to be excessive or incentives to be insufficient. There are currently 16 registered options exchanges competing for order flow. Based on publiclyavailable information, and excluding index-based options, no single exchange has a market share of more than approximately 12–13% of the equity options market.17 Therefore, no exchange possesses significant pricing power. More specifically, as of March 24, 2023, the Exchange had a market share of approximately 3.28% of executed volume of multiply-listed equity options for the month of March 2023.18 The Exchange believes that the evershifting market share among the exchanges from month to month demonstrates that market participants can discontinue or reduce use of certain categories of products and services, terminate an existing membership or 14 15 U.S.C. 78f(b). U.S.C. 78f(b)(4). 16 15 U.S.C. 78f(b)(1) and (b)(5). 17 See ‘‘The market at a glance, MTD AVERAGE,’’ available at https://www.miaxoptions.com/ (Data as of March 1, 2023 to March 23, 2023). 18 See id. 15 15 VerDate Sep<11>2014 18:14 May 01, 2023 Jkt 259001 determine to not become a new member, and/or shift order flow in response to transaction fee changes. For example, on February 28, 2019, the Exchange’s affiliate, MIAX PEARL, LLC (‘‘MIAX Pearl’’), filed with the Commission a proposal to increase Taker fees in certain Tiers for options transactions in certain Penny classes for Priority Customers and decrease Maker rebates in certain Tiers for options transactions in Penny classes for Priority Customers (which fee was to be effective March 1, 2019).19 MIAX Pearl experienced a decrease in total market share for the month of March 2019, after the proposal went into effect. Accordingly, the Exchange believes that the MIAX Pearl March 1, 2019 fee change, to increase certain transaction fees and decrease certain transaction rebates, may have contributed to the decrease in MIAX Pearl’s market share and, as such, the Exchange believes competitive forces constrain the Exchange’s, and other options exchanges, ability to set transaction fees and market participants can shift order flow based on fee changes instituted by the exchanges. 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. In response to the competitive environment, the Exchange offers specific rates and credits in its fees schedule, like those of other options exchanges’ fees schedules. The Exchange believes that its proposal to implement a new fee for Priority Customer Complex Orders that remove liquidity that leg into the Simple book is consistent with Section 6(b)(4) of the Act 20 in that the proposal is reasonable, equitable and not unfairly discriminatory as it applies equally to all similarly situated market participants. The Exchange believes that the application of this fee will continue to encourage Priority Customer order flow to the Exchange and may improve liquidity on the Exchange’s Strategy Book. Priority Customer order flow benefits all market participants because it attracts liquidity to the Exchange by providing more trading opportunities. This attracts Market Makers and other liquidity providers, thus, facilitating increased order flow and trading opportunities to the benefit of all market participants. In addition, the Exchange believes that its proposal is consistent with 19 See Securities Exchange Act Release No. 85304 (March 13, 2019), 84 FR 10144 (March 19, 2019) (SR–PEARL–2019–07). 20 15 U.S.C. 78f(b)(4). PO 00000 Frm 00107 Fmt 4703 Sfmt 4703 27537 Section 6(b)(5) of the Act 21 because it perfects the mechanisms of a free and open market and a national market system and protects investors and the public interest because an increase in Priority Customer order flow will bring greater volume and liquidity to the Exchange, which benefits all market participants by providing more trading opportunities. To the extent Priority Customer order flow is increased by this proposal, market participants will increasingly compete for the opportunity to trade on the Exchange by sending additional orders in an effort to trade with such Priority Customer order flow. The Exchange believes that assessing a fee for Priority Customer Complex Orders that remove liquidity that leg into the Simple book is equitable and not unfairly discriminatory because the proposed fees will apply equally to all similarly situated participants. The Exchange believes that the application of the fee is equitable and not unfairly discriminatory because, as stated above, Priority Customer order flow enhances liquidity on the Exchange, which in turn provides more trading opportunities and attracts other market participants, thus, facilitating increased order flow and trading opportunities to the benefit of all market participants. Moreover, the options industry has a long history of providing preferential pricing to Priority Customer Orders, and the Exchange’s current fees schedule currently does so in many places, as does the fee schedule of at least one other exchange.22 As noted above, the Exchange operates in a highly competitive market. 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 Exchange believes that the proposed fees are reasonable, equitable, and not unfairly discriminatory in that competing options exchanges offer similar fees for similar functionality.23 The Commission and the courts have repeatedly expressed their preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. In Regulation NMS, the Commission highlighted the importance of market forces in determining prices and SRO revenues and also recognized that current regulation of the market system ‘‘has been remarkably successful in promoting market competition in its 21 15 U.S.C. 78f(b)(5). supra note 13. 22 See 23 Id. E:\FR\FM\02MYN1.SGM 02MYN1 27538 Federal Register / Vol. 88, No. 84 / Tuesday, May 2, 2023 / Notices ddrumheller on DSK120RN23PROD with NOTICES1 broader forms that are most important to investors and listed companies.’’ 24 The Exchange believes that its proposal represents an equitable allocation of fees and is not unfairly discriminatory as the fee will apply uniformly to all Priority Customer Complex Orders that remove liquidity that leg into the Simple Order Book. Additionally, the Exchange recently adopted a new optional complex order instruction, ‘‘Do Not Leg’’ or ‘‘DNL,’’ 25 that provides Members 26 the ability to direct their complex orders to the Strategy Book 27 exclusively for execution, or if the instruction is not used, allows their complex orders to leg into the Simple Order Book.28 The Exchange is making this change for business and competitive reasons as the Exchange initially set its fees lower than other options exchanges that offer similar functionality and operate comparable pricing models.29 The Exchange now believes that it is appropriate to implement this new fee and application so that it is more in line with other exchanges, but will remain highly competitive such that it should enable the Exchange to continue to attract order flow and maintain market share. For the reasons discussed above, the Exchange submits that the proposal satisfies the requirements of Sections 6(b)(4) and 6(b)(5) of the Act in that it provides for the equitable allocation of reasonable dues, fees and other charges among its Members and other persons using its facilities and is not designed to unfairly discriminate between customers, issuers, brokers, or dealers. As described more fully above and below, in the Exchange’s statement regarding the burden on competition, the Exchange believes that its transaction pricing is subject to significant competitive forces, and that the proposed fees described herein are appropriate to address such forces. 24 See Securities Exchange Act Release No. 51808 (June 9, 2005), 70 FR 37499 (June 29, 2005). 25 See Securities Exchange Act Release No. 96378 (November 22, 2022), 87 FR 73364 (November 29, 2022) (SR–EMERALD–2022–31). 26 The term ‘‘Member’’ means an individual or organization approved to exercise the trading rights associated with a Trading Permit. Members are deemed ‘‘members’’ under the Exchange Act. See Exchange Rule 100. 27 The ‘‘Strategy Book’’ is the Exchange’s electronic book of complex orders and complex quotes. See Exchange Rule 518(b)(17). 28 Do Not Leg or ‘‘DNL’’ is an optional order instruction that may be applied to any complex order (excluding Complex Customer Cross Orders, Complex Qualified Contingent Cross Orders, and cPRIME Orders) to prevent the complex order from legging into the Simple Order Book. See Exchange Rule 518(b)(10). 29 See supra note 13. VerDate Sep<11>2014 18:14 May 01, 2023 Jkt 259001 B. Self-Regulatory Organization’s Statement on Burden on Competition In accordance with Section 6(b)(8) of the Act,30 the Exchange does not believe that the proposed rule change will impose any burden on intra-market or inter-market competition that is not necessary or appropriate in furtherance of the purposes of the Act. Intra-Market Competition The Exchange does not believe that its proposal will impose any burden on intra-market competition that is not necessary or appropriate in furtherance of the purposes of the Act because the proposed changes will apply uniformly to all similarly situated Priority Customer Complex Orders. The Exchange believes that the proposal will continue to encourage Members to submit Priority Customer Complex Orders to the Exchange, which will increase liquidity and benefit all market participants by providing more trading opportunities. The Exchange notes the fact that preferential pricing to Priority Customers is a long-standing options industry practice. The proposed fees may enhance Priority Customer liquidity on the Exchange’s Strategy Book, which, as a result, facilitates increased liquidity and execution opportunities to the benefit of all market participants. Additionally, the Exchange provides an optional complex order DNL instruction that Members may use to prevent their complex orders from legging into the Simple Order Book, and thereby not be subject to the proposed fees. Inter-Market Competition The Exchange 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. There are currently 16 registered options exchanges competing for order flow. Based on publicly-available information, and excluding index-based options, no single exchange has a market share of more than approximately 12–13% of the equity options market.31 Therefore, no exchange possesses significant pricing power. More specifically, as of March 24, 2023, the Exchange had a market share of approximately 3.28% of executed volume of multiply-listed equity options for the month of March 2023.32 Therefore, no exchange possesses significant pricing power in the execution of multiply-listed equity 30 15 U.S.C. 78f(b)(8). supra note 17. 32 See id. 31 See PO 00000 Frm 00108 Fmt 4703 Sfmt 4703 options order flow. In such an environment, the Exchange must continually adjust its transaction and non-transaction fees to remain competitive with other exchanges and to attract order flow. The Exchange believes that the proposed rule change reflects this competitive environment because it modifies the Exchange’s fees in a manner that will allow the Exchange to remain competitive. Additionally, 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.’’ 33 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: ‘‘[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 brokerdealers that act as their 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 possess a monopoly, regulatory or otherwise, in the execution of order flow from broker dealers’ . . .’’.34 Accordingly, the Exchange does not believe its proposed pricing changes impose 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 Written comments were neither solicited nor received. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act,35 and Rule 33 See Securities Exchange Act Release No. 51808 (June 9, 2005), 70 FR 37496, 37499 (June 29, 2005). 34 NetCoalition v. SEC, 615 F.3d 525, 539 (D.C. Cir. 2010) (quoting Securities Exchange Act Release No. 59039 (December 2, 2008), 73 FR 74770, 74782– 83 (December 9, 2008) (SR–NYSE–2006–21)). 35 15 U.S.C. 78s(b)(3)(A)(ii). E:\FR\FM\02MYN1.SGM 02MYN1 Federal Register / Vol. 88, No. 84 / Tuesday, May 2, 2023 / Notices 19b–4(f)(2) 36 thereunder. At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved. IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: 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– EMERALD–2023–11 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–EMERALD–2023–11. 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. Do not include 36 17 CFR 240.19b–4(f)(2). VerDate Sep<11>2014 18:14 May 01, 2023 Jkt 259001 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–EMERALD–2023– 11, and should be submitted on or before May 23, 2023. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.37 Sherry R. Haywood, Assistant Secretary. [FR Doc. 2023–09211 Filed 5–1–23; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–97383; File No. SR–ICEEU– 2023–012] Self-Regulatory Organizations; ICE Clear Europe Limited; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to Amendments to the Futures and Options Default Management Policy April 26, 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 13, 2023, ICE Clear Europe Limited (‘‘ICE Clear Europe’’ or the ‘‘Clearing House’’) filed with the Securities and Exchange Commission (‘‘Commission’’) the proposed rule changes described in Items I, II and III below, which Items have been prepared by ICE Clear Europe. ICE Clear Europe filed the proposed rule change pursuant to Section 19(b)(3)(A) of the Act 3 and Rule 19b–4(f)(4)(ii) thereunder,4 such that the proposed rule change was immediately effective upon filing with the Commission. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. I. Clearing Agency’s Statement of the Terms of Substance of the Proposed Rule Change ICE Clear Europe Limited (‘‘ICE Clear Europe’’ or the ‘‘Clearing House’’) is proposing to adopt a new Futures and Options Default Management Policy 37 17 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 3 15 U.S.C. 78s(b)(3)(A). 4 17 CFR 240.19b–4(f)(4)(ii). 1 15 PO 00000 Frm 00109 Fmt 4703 Sfmt 4703 27539 (‘‘Policy’’),5 to replace its existing Futures and Options Default Management Policy. The new Policy is intended to provide clearer procedures and guidance for managing a default by one or more Clearing Members. II. Clearing Agency’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, ICE Clear Europe 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. ICE Clear Europe has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of such statements. (A) Clearing Agency’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change (a) Purpose ICE Clear Europe is proposing to adopt a new Futures and Options Default Management Policy, which would address procedures and requirements for the Clearing House’s management of an Event of Default with respect to an F&O Clearing Member consistent with the requirements of Clearing House’s Rules and Procedures. The Policy would replace the existing Futures and Options Default Management Policy. The new Policy is designed to more clearly reflect and describe various aspects of the Clearing House’s existing default management practices and procedures for F&O Contracts (and would not generally change those practices and procedures). The new Policy would also clarify and enhance certain governance matters relating to F&O default management, as well as certain practices relating to hedging strategy following a default, as discussed below. The new Policy would also provide for certain additional scenarios to be used in default testing drills, as discussed below. The new Policy would also eliminate certain outdated or superseded provisions or the provisions that are no longer applicable. The Policy would include a background section describing the overall purpose of the document, which is to provide structure and guidance for ICE Clear Europe’s management of an Event of Default within the framework 5 Capitalized terms used but not defined herein have the meanings specified in the ICE Clear Europe Clearing Rules and the Futures and Options Management Policy. E:\FR\FM\02MYN1.SGM 02MYN1

Agencies

SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 88, Number 84 (Tuesday, May 2, 2023)]
[Notices]
[Pages 27535-27539]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09211]


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

[Release No. 34-97387; File No. SR-EMERALD-2023-11]


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

April 26, 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 13, 2023, MIAX Emerald, LLC (``MIAX Emerald'' or 
``Exchange''), filed with the Securities and Exchange Commission 
(``Commission'') a 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.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange is filing a proposal to amend the MIAX Emerald Fee 
Schedule (the ``Fee Schedule'').
    The text of the proposed rule change is available on the Exchange's 
website at https://www.miaxoptions.com/rule-filings/emerald, at MIAX's 
principal office, and at the Commission's Public Reference Room.

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

    In its filing with the Commission, the Exchange included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item IV below. The Exchange has prepared summaries, set forth in 
sections A, B, and C below, of the most significant aspects of such 
statements.

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

1. Purpose
    The Exchange proposes to amend Section 1)a)i) of the Fee Schedule 
to amend footnote ``*'' to adopt new fees for Priority Customer \3\ 
Complex Orders that remove liquidity that leg into the Simple book.\4\ 
The Exchange originally filed this proposal on March 31, 2023 (SR-
EMERALD-2023-08). On April 13, 2023, the Exchange withdrew SR-EMERALD-
2023-08 and resubmitted this proposal.
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    \3\ The term ``Priority Customer'' means a person or entity that 
(i) is not a broker or dealer in securities, and (ii) does not place 
more than 390 orders in listed options per day on average during a 
calendar month for its own beneficial account(s). See Exchange Rule 
100.
    \4\ The Simple Order Book or Simple book is the Exchange's 
regular electronic book of orders and quotes. See Exchange Rule 
518(a)(15).
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Background
    The Exchange assesses transaction rebates and fees to all market 
participants, which are based upon a threshold tier structure 
(``Tier''). Tiers are determined on a monthly basis and

[[Page 27536]]

are based on three alternative calculation methods, as defined in 
Section 1)a)ii) of the Fee Schedule. The calculation method that 
results in the highest Tier achieved by the Member \5\ shall apply to 
all Origin types by the Member, except the Priority Customer Origin 
type. For the Priority Customer Origin calculation, the Tier applied 
for a Member and its Affiliates \6\ is solely determined by calculation 
Method 3, as defined in Section 1)a)ii) of the Fee Schedule, titled 
``Total Priority Customer, Maker sides volume, based on % of CTCV 
(`Method 3').'' The monthly volume thresholds for each of the methods, 
associated with each Tier, are calculated as the total monthly volume 
executed by the Member in all options classes on MIAX Emerald in the 
relevant Origins and/or applicable liquidity, not including Excluded 
Contracts,\7\ (as the numerator) expressed as a percentage of (divided 
by) Customer Total Consolidated Volume (``CTCV'') (as the denominator). 
CTCV is calculated as the total national volume cleared at The Options 
Clearing Corporation (``OCC'') in the Customer range in those classes 
listed on MIAX Emerald for the month for which fees apply, excluding 
volume cleared at the OCC in the Customer range executed during the 
period of time in which the Exchange experiences an ``Exchange System 
Disruption'' \8\ (solely in the option classes of the affected Matching 
Engine).\9\ In addition, the per contract transaction rebates and fees 
shall be applied retroactively to all eligible volume once the Tier has 
been reached by the Member. Members that place resting liquidity, i.e., 
orders on the MIAX Emerald System, will be assessed the specified 
``maker'' rebate or fee (each a ``Maker'') and Members that execute 
against resting liquidity will be assessed the specified ``taker'' fee 
or rebate (each a ``Taker'').\10\ Members are also assessed lower 
transaction fees and smaller rebates for order executions in standard 
option classes in the Penny Interval Program \11\ (``Penny Classes'') 
than for order executions in standard option classes which are not in 
the Penny Program (``non-Penny Classes''), for which Members will be 
assessed higher transaction fees and larger rebates.
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    \5\ ``Member'' means an individual or organization approved to 
exercise the trading rights associated with a Trading Permit. 
Members are deemed ``members'' under the Exchange Act. See the 
Definitions Section of the Fee Schedule and Exchange Rule 100.
    \6\ ``Affiliate'' means (i) an affiliate of a Member of at least 
75% common ownership between the firms as reflected on each firm's 
Form BD, Schedule A, or (ii) the Appointed Market Maker of an 
Appointed EEM (or, conversely, the Appointed EEM of an Appointed 
Market Maker). An ``Appointed Market Maker'' is a MIAX Emerald 
Market Maker (who does not otherwise have a corporate affiliation 
based upon common ownership with an EEM) that has been appointed by 
an EEM and an ``Appointed EEM'' is an EEM (who does not otherwise 
have a corporate affiliation based upon common ownership with a MIAX 
Emerald Market Maker) that has been appointed by a MIAX Emerald 
Market Maker, pursuant to the following process. A MIAX Emerald 
Market Maker appoints an EEM and an EEM appoints a MIAX Emerald 
Market Maker, for the purposes of the Fee Schedule, by each 
completing and sending an executed Volume Aggregation Request Form 
by email to [email protected] no later than 2 business days 
prior to the first business day of the month in which the 
designation is to become effective. Transmittal of a validly 
completed and executed form to the Exchange along with the 
Exchange's acknowledgement of the effective designation to each of 
the Market Maker and EEM will be viewed as acceptance of the 
appointment. The Exchange will only recognize one designation per 
Member. A Member may make a designation not more than once every 12 
months (from the date of its most recent designation), which 
designation shall remain in effect unless or until the Exchange 
receives written notice submitted 2 business days prior to the first 
business day of the month from either Member indicating that the 
appointment has been terminated. Designations will become operative 
on the first business day of the effective month and may not be 
terminated prior to the end of the month. Execution data and reports 
will be provided to both parties. See the Definitions Section of the 
Fee Schedule.
    \7\ The term ``Excluded Contracts'' means any contracts routed 
to an away market for execution. See the Definitions Section of the 
Fee Schedule.
    \8\ The term ``Exchange System Disruption'' means an outage of a 
Matching Engine or collective Matching Engines for a period of two 
consecutive hour or more, during trading hours. See the Definitions 
Section of the Fee Schedule.
    \9\ A ``Matching Engine'' is a part of the MIAX Emerald 
electronic system that processes options orders and trades on a 
symbol-by-symbol basis. See the Definitions Section of the Fee 
Schedule.
    \10\ For a Priority Customer Complex Order taking liquidity in 
the Strategy Book for both a Penny Class and non-Penny Class against 
Origins other than Priority Customer, the Priority Customer order 
will receive a rebate based on the Tier achieved.
    \11\ See Securities Exchange Act Release No. 88993 (June 2, 
2020), 85 FR 35145 (June 8, 2020) (SR-EMERALD-2020-05) (Notice of 
Filing and Immediate Effectiveness of a Proposed Rule Change To 
Amend Exchange Rule 510, Minimum Price Variations and Minimum 
Trading Increments, To Conform the Rule to Section 3.1 of the Plan 
for the Purpose of Developing and Implementing Procedures Designed 
To Facilitate the Listing and Trading of Standardized Options) (the 
``Penny Program'').
---------------------------------------------------------------------------

    Currently, footnote ``*'' provides that Priority Customer Complex 
Orders contra to Priority Customer Complex Orders are neither charged 
nor rebated. Footnote ``*'' further provides that, Priority Customer 
Complex Orders that leg into the Simple book are neither charged nor 
rebated.
Proposal
    The Exchange now proposes to amend footnote ``*'' to adopt fees for 
Priority Customer Complex Orders that leg into the Simple Order Book. 
Specifically, the Exchange proposes to amend footnote ``*'' to provide 
that Priority Customer Complex Orders that remove liquidity that leg 
into the Simple book will be charged a per contract fee of $0.20 in 
Penny classes and $0.40 in Non-Penny classes. Additionally, the 
Exchange proposes to amend the second sentence of footnote ``*'' for 
clarity to provide that Priority Customer Complex Orders that add 
liquidity that leg into the Simple book are neither charged nor 
rebated.
    As amended footnote ``*'' will provide that, ``Priority Customer 
Complex Orders contra to Priority Customer Complex Orders are neither 
charged nor rebated. Priority Customer Complex Orders that add 
liquidity that leg into the Simple book are neither charged nor 
rebated. Priority Customer Complex Orders that remove liquidity that 
leg into the Simple book will be charged a per contract fee of $0.20 in 
Penny classes and $0.40 in Non-Penny classes.'' Complex Orders for 
Origins other than Priority Customer that remove liquidity that leg 
into the Simple book are charged a per contract ``Taker'' fee of $0.50 
in Penny Classes and $0.88 in Non-Penny Classes. These fees are not 
changing under this proposal.
    The purpose of adopting these new fees is for business and 
competitive reasons. In order to attract order flow, the Exchange 
initially set its rebates and fees so that they were meaningfully 
higher/lower than other options exchanges that operate comparable 
maker/taker pricing models.\12\ The Exchange now believes that it is 
appropriate to adjust its fees to be competitive with other Exchanges 
that offer similar functionality and have similar fee structures.\13\
---------------------------------------------------------------------------

    \12\ See Securities Exchange Act Release No. 85393 (March 21, 
2019), 84 FR 11599 (March 27, 2019) (SR-EMERALD-2019-15) Notice of 
Filing and Immediate Effectiveness of a Proposed Rule Change To 
Establish the MIAX Emerald Fee Schedule.
    \13\ The Nasdaq ISE Pricing Schedule provides that a $0.25 per 
contract fee applies instead of the applicable fee or rebate when 
trading against Priority Customer Complex Orders that leg into the 
regular order book. See ISE Options 7 Pricing Schedule, Section 3. 
Regular Order Fees and Rebates, footnote 11; Nasdaq Phlx Pricing 
Schedule provides that Customers will be assessed a $0.15 per 
contract surcharge to the extent that they execute the individual 
components of their Complex Orders in SPY against Market Maker or 
Lead Market Maker quotes that are resting on the Simple Order Book. 
See also Nasdaq Phlx Options 7, Pricing Schedule, Section 3. Rebates 
and Fees for Adding Liquidity in SPY.
---------------------------------------------------------------------------

Implementation
    The proposed changes are immediately effective.

[[Page 27537]]

2. Statutory Basis
    The Exchange believes that its proposal to amend its Fee Schedule 
is consistent with Section 6(b) of the Act \14\ in general, and 
furthers the objectives of Section 6(b)(4) of the Act,\15\ in 
particular, in that it is an equitable allocation of reasonable dues, 
fees and other charges among its Members and issuers and other persons 
using its facilities. The Exchange also believes that the proposed rule 
change is consistent with the objectives of Section 6(b)(5) of the Act 
\16\ that the rules of an exchange be designed to prevent fraudulent 
and manipulative acts and practices, and to promote just and equitable 
principles of trade, foster cooperation and coordination with persons 
engaged in facilitating transactions in securities, remove impediments 
to and perfect the mechanisms of a free and open market and a national 
market system and, in general, protect investors and the public 
interest, and, particularly, is not designed to permit unfair 
discrimination between customers, issuers, brokers, or dealers.
---------------------------------------------------------------------------

    \14\ 15 U.S.C. 78f(b).
    \15\ 15 U.S.C. 78f(b)(4).
    \16\ 15 U.S.C. 78f(b)(1) and (b)(5).
---------------------------------------------------------------------------

    The Exchange believes its proposal provides for the equitable 
allocation of reasonable dues and fees and is not unfairly 
discriminatory for the following reasons. The Exchange operates in a 
competitive marketplace in which market participants can readily direct 
their order flow to competing venues if they deem fee levels at a 
particular venue to be excessive or incentives to be insufficient. 
There are currently 16 registered options exchanges competing for order 
flow. Based on publicly-available information, and excluding index-
based options, no single exchange has a market share of more than 
approximately 12-13% of the equity options market.\17\ Therefore, no 
exchange possesses significant pricing power. More specifically, as of 
March 24, 2023, the Exchange had a market share of approximately 3.28% 
of executed volume of multiply-listed equity options for the month of 
March 2023.\18\
---------------------------------------------------------------------------

    \17\ See ``The market at a glance, MTD AVERAGE,'' available at 
https://www.miaxoptions.com/ (Data as of March 1, 2023 to March 23, 
2023).
    \18\ See id.
---------------------------------------------------------------------------

    The Exchange believes that the ever-shifting market share among the 
exchanges from month to month demonstrates that market participants can 
discontinue or reduce use of certain categories of products and 
services, terminate an existing membership or determine to not become a 
new member, and/or shift order flow in response to transaction fee 
changes. For example, on February 28, 2019, the Exchange's affiliate, 
MIAX PEARL, LLC (``MIAX Pearl''), filed with the Commission a proposal 
to increase Taker fees in certain Tiers for options transactions in 
certain Penny classes for Priority Customers and decrease Maker rebates 
in certain Tiers for options transactions in Penny classes for Priority 
Customers (which fee was to be effective March 1, 2019).\19\ MIAX Pearl 
experienced a decrease in total market share for the month of March 
2019, after the proposal went into effect. Accordingly, the Exchange 
believes that the MIAX Pearl March 1, 2019 fee change, to increase 
certain transaction fees and decrease certain transaction rebates, may 
have contributed to the decrease in MIAX Pearl's market share and, as 
such, the Exchange believes competitive forces constrain the 
Exchange's, and other options exchanges, ability to set transaction 
fees and market participants can shift order flow based on fee changes 
instituted by the exchanges.
---------------------------------------------------------------------------

    \19\ See Securities Exchange Act Release No. 85304 (March 13, 
2019), 84 FR 10144 (March 19, 2019) (SR-PEARL-2019-07).
---------------------------------------------------------------------------

    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. In response to the competitive environment, the 
Exchange offers specific rates and credits in its fees schedule, like 
those of other options exchanges' fees schedules.
    The Exchange believes that its proposal to implement a new fee for 
Priority Customer Complex Orders that remove liquidity that leg into 
the Simple book is consistent with Section 6(b)(4) of the Act \20\ in 
that the proposal is reasonable, equitable and not unfairly 
discriminatory as it applies equally to all similarly situated market 
participants. The Exchange believes that the application of this fee 
will continue to encourage Priority Customer order flow to the Exchange 
and may improve liquidity on the Exchange's Strategy Book. Priority 
Customer order flow benefits all market participants because it 
attracts liquidity to the Exchange by providing more trading 
opportunities. This attracts Market Makers and other liquidity 
providers, thus, facilitating increased order flow and trading 
opportunities to the benefit of all market participants.
---------------------------------------------------------------------------

    \20\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

    In addition, the Exchange believes that its proposal is consistent 
with Section 6(b)(5) of the Act \21\ because it perfects the mechanisms 
of a free and open market and a national market system and protects 
investors and the public interest because an increase in Priority 
Customer order flow will bring greater volume and liquidity to the 
Exchange, which benefits all market participants by providing more 
trading opportunities. To the extent Priority Customer order flow is 
increased by this proposal, market participants will increasingly 
compete for the opportunity to trade on the Exchange by sending 
additional orders in an effort to trade with such Priority Customer 
order flow.
---------------------------------------------------------------------------

    \21\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Exchange believes that assessing a fee for Priority Customer 
Complex Orders that remove liquidity that leg into the Simple book is 
equitable and not unfairly discriminatory because the proposed fees 
will apply equally to all similarly situated participants. The Exchange 
believes that the application of the fee is equitable and not unfairly 
discriminatory because, as stated above, Priority Customer order flow 
enhances liquidity on the Exchange, which in turn provides more trading 
opportunities and attracts other market participants, thus, 
facilitating increased order flow and trading opportunities to the 
benefit of all market participants. Moreover, the options industry has 
a long history of providing preferential pricing to Priority Customer 
Orders, and the Exchange's current fees schedule currently does so in 
many places, as does the fee schedule of at least one other 
exchange.\22\
---------------------------------------------------------------------------

    \22\ See supra note 13.
---------------------------------------------------------------------------

    As noted above, the Exchange operates in a highly competitive 
market. 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 Exchange believes that the 
proposed fees are reasonable, equitable, and not unfairly 
discriminatory in that competing options exchanges offer similar fees 
for similar functionality.\23\
---------------------------------------------------------------------------

    \23\ Id.
---------------------------------------------------------------------------

    The Commission and the courts have repeatedly expressed their 
preference for competition over regulatory intervention in determining 
prices, products, and services in the securities markets. In Regulation 
NMS, the Commission highlighted the importance of market forces in 
determining prices and SRO revenues and also recognized that current 
regulation of the market system ``has been remarkably successful in 
promoting market competition in its

[[Page 27538]]

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 37499 (June 29, 2005).
---------------------------------------------------------------------------

    The Exchange believes that its proposal represents an equitable 
allocation of fees and is not unfairly discriminatory as the fee will 
apply uniformly to all Priority Customer Complex Orders that remove 
liquidity that leg into the Simple Order Book. Additionally, the 
Exchange recently adopted a new optional complex order instruction, 
``Do Not Leg'' or ``DNL,'' \25\ that provides Members \26\ the ability 
to direct their complex orders to the Strategy Book \27\ exclusively 
for execution, or if the instruction is not used, allows their complex 
orders to leg into the Simple Order Book.\28\
---------------------------------------------------------------------------

    \25\ See Securities Exchange Act Release No. 96378 (November 22, 
2022), 87 FR 73364 (November 29, 2022) (SR-EMERALD-2022-31).
    \26\ The term ``Member'' means an individual or organization 
approved to exercise the trading rights associated with a Trading 
Permit. Members are deemed ``members'' under the Exchange Act. See 
Exchange Rule 100.
    \27\ The ``Strategy Book'' is the Exchange's electronic book of 
complex orders and complex quotes. See Exchange Rule 518(b)(17).
    \28\ Do Not Leg or ``DNL'' is an optional order instruction that 
may be applied to any complex order (excluding Complex Customer 
Cross Orders, Complex Qualified Contingent Cross Orders, and cPRIME 
Orders) to prevent the complex order from legging into the Simple 
Order Book. See Exchange Rule 518(b)(10).
---------------------------------------------------------------------------

    The Exchange is making this change for business and competitive 
reasons as the Exchange initially set its fees lower than other options 
exchanges that offer similar functionality and operate comparable 
pricing models.\29\ The Exchange now believes that it is appropriate to 
implement this new fee and application so that it is more in line with 
other exchanges, but will remain highly competitive such that it should 
enable the Exchange to continue to attract order flow and maintain 
market share.
---------------------------------------------------------------------------

    \29\ See supra note 13.
---------------------------------------------------------------------------

    For the reasons discussed above, the Exchange submits that the 
proposal satisfies the requirements of Sections 6(b)(4) and 6(b)(5) of 
the Act in that it provides for the equitable allocation of reasonable 
dues, fees and other charges among its Members and other persons using 
its facilities and is not designed to unfairly discriminate between 
customers, issuers, brokers, or dealers. As described more fully above 
and below, in the Exchange's statement regarding the burden on 
competition, the Exchange believes that its transaction pricing is 
subject to significant competitive forces, and that the proposed fees 
described herein are appropriate to address such forces.

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

    In accordance with Section 6(b)(8) of the Act,\30\ the Exchange 
does not believe that the proposed rule change will impose any burden 
on intra-market or inter-market competition that is not necessary or 
appropriate in furtherance of the purposes of the Act.
---------------------------------------------------------------------------

    \30\ 15 U.S.C. 78f(b)(8).
---------------------------------------------------------------------------

Intra-Market Competition
    The Exchange does not believe that its proposal will impose any 
burden on intra-market competition that is not necessary or appropriate 
in furtherance of the purposes of the Act because the proposed changes 
will apply uniformly to all similarly situated Priority Customer 
Complex Orders. The Exchange believes that the proposal will continue 
to encourage Members to submit Priority Customer Complex Orders to the 
Exchange, which will increase liquidity and benefit all market 
participants by providing more trading opportunities. The Exchange 
notes the fact that preferential pricing to Priority Customers is a 
long-standing options industry practice. The proposed fees may enhance 
Priority Customer liquidity on the Exchange's Strategy Book, which, as 
a result, facilitates increased liquidity and execution opportunities 
to the benefit of all market participants. Additionally, the Exchange 
provides an optional complex order DNL instruction that Members may use 
to prevent their complex orders from legging into the Simple Order 
Book, and thereby not be subject to the proposed fees.
Inter-Market Competition
    The Exchange 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. There are currently 16 
registered options exchanges competing for order flow. Based on 
publicly-available information, and excluding index-based options, no 
single exchange has a market share of more than approximately 12-13% of 
the equity options market.\31\ Therefore, no exchange possesses 
significant pricing power. More specifically, as of March 24, 2023, the 
Exchange had a market share of approximately 3.28% of executed volume 
of multiply-listed equity options for the month of March 2023.\32\ 
Therefore, no exchange possesses significant pricing power in the 
execution of multiply-listed equity options order flow. In such an 
environment, the Exchange must continually adjust its transaction and 
non-transaction fees to remain competitive with other exchanges and to 
attract order flow. The Exchange believes that the proposed rule change 
reflects this competitive environment because it modifies the 
Exchange's fees in a manner that will allow the Exchange to remain 
competitive.
---------------------------------------------------------------------------

    \31\ See supra note 17.
    \32\ See id.
---------------------------------------------------------------------------

    Additionally, 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.'' \33\ 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: ``[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 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 possess a 
monopoly, regulatory or otherwise, in the execution of order flow from 
broker dealers' . . .''.\34\ Accordingly, the Exchange does not believe 
its proposed pricing changes impose any burden on competition that is 
not necessary or appropriate in furtherance of the purposes of the Act.
---------------------------------------------------------------------------

    \33\ See Securities Exchange Act Release No. 51808 (June 9, 
2005), 70 FR 37496, 37499 (June 29, 2005).
    \34\ NetCoalition v. SEC, 615 F.3d 525, 539 (D.C. Cir. 2010) 
(quoting Securities Exchange Act Release No. 59039 (December 2, 
2008), 73 FR 74770, 74782-83 (December 9, 2008) (SR-NYSE-2006-21)).
---------------------------------------------------------------------------

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

    Written comments were neither solicited nor received.

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

    The foregoing rule change has become effective pursuant to Section 
19(b)(3)(A)(ii) of the Act,\35\ and Rule

[[Page 27539]]

19b-4(f)(2) \36\ thereunder. At any time within 60 days of the filing 
of the proposed rule change, the Commission summarily may temporarily 
suspend such rule change if it appears to the Commission that such 
action is necessary or appropriate in the public interest, for the 
protection of investors, or otherwise in furtherance of the purposes of 
the Act. If the Commission takes such action, the Commission shall 
institute proceedings to determine whether the proposed rule should be 
approved or disapproved.
---------------------------------------------------------------------------

    \35\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \36\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-EMERALD-2023-11 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-EMERALD-2023-11. 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. 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-EMERALD-2023-11, and 
should be submitted on or before May 23, 2023.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\37\
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    \37\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-09211 Filed 5-1-23; 8:45 am]
BILLING CODE 8011-01-P

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