Self-Regulatory Organizations; Cboe Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Update Its Fees Schedule, 50249-50258 [2023-16247]

Download as PDF Federal Register / Vol. 88, No. 146 / Tuesday, August 1, 2023 / Notices circuits for which Users contracted were supplied by the Telecoms.27 The proposed rule encourages competition between Telecoms because a Telecom may select the MMR services that best suit its needs. The selection may vary depending on the size, customer base, and needs of the Telecom at issue. For example, as of April 30, 2023, the Telecom with the largest MMR presence had four cabinets, 16 kW, four conduit sleeves, and 105 carrier connections. The Telecom with the smallest MMR presence had one cabinet, 4 kW, no conduit sleeves, and three carrier connections. The proposed rule would not force Telecoms to accept a ‘‘one-size-fits-all’’ suite of MMR services, but would instead permit them to tailor their service selection and fees to meet their own individual business models. In sum, the MMR structure creates incentives for Telecoms to compete against each other in providing their customers with connectivity services. These customers, which are both Users and other Telecoms, directly and indirectly participate in the national market system. As a result, the MMR structure fosters cooperation and coordination with persons facilitating transactions in securities. C. Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others No written comments were solicited or received with respect to the proposed rule change. lotter on DSK11XQN23PROD with NOTICES1 III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The Exchange has filed the proposed rule change pursuant to section 19(b)(3)(A)(iii) of the Act 28 and Rule 19b–4(f)(6) thereunder.29 Because the proposed rule change does not: (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative prior to 30 days from the date on which it was filed, or such shorter time as the Commission may designate, if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to section 19(b)(3)(A) of the Act and Rule 19b–4(f)(6)(iii) thereunder. 27 To estimate the number of circuits, FIDS totaled the numbers of (a) carrier connection fees and (b) cross connects to FIDS circuits. 28 15 U.S.C. 78s(b)(3)(A)(iii). 29 17 CFR 240.19b–4(f)(6). VerDate Sep<11>2014 18:34 Jul 31, 2023 Jkt 259001 At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under section 19(b)(2)(B) 30 of the Act to determine whether the proposed rule change should be approved or disapproved. IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: 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– NYSEARCA–2023–47 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–NYSEARCA–2023–47. 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 a.m. and 3 p.m. Copies of the filing also will be available for inspection and PO 00000 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–NYSEARCA–2023–47 and should be submitted on or before August 22, 2023. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.31 Sherry R. Haywood, Assistant Secretary. [FR Doc. 2023–16239 Filed 7–31–23; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–97996; File No. SR–CBOE– 2023–034] Self-Regulatory Organizations; Cboe Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Update Its Fees Schedule July 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 July 14, 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 update its Fees Schedule. The text of the proposed rule change is provided in Exhibit 5. The text of the proposed rule change is also available on the Exchange’s website (https://www.cboe.com/ AboutCBOE/ CBOELegalRegulatoryHome.aspx), at the Exchange’s Office of the Secretary, and at the Commission’s Public Reference Room. 31 17 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 1 15 30 15 U.S.C. 78s(b)(2)(B). Frm 00151 Fmt 4703 Sfmt 4703 50249 E:\FR\FM\01AUN1.SGM 01AUN1 50250 Federal Register / Vol. 88, No. 146 / Tuesday, August 1, 2023 / Notices 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 the Market Data section of its Fees Schedule.3 Particularly, the Exchange proposes to (i) adopt a New External Credit applicable to Cboe Options Top, (ii) adopt a credit towards the monthly Distribution fees for Cboe Options Top, (iii) modify the Cboe Options Top Enterprise Fee; and (iv) establish fees for the Cboe One Options Feed. lotter on DSK11XQN23PROD with NOTICES1 Cboe Top Data By way of background, the Exchange offers the Cboe Options Top Data feed, which is an uncompressed data feed that offers top-of-book quotations and last sale information based on options orders entered into the Exchange’s System. The Cboe Options Top Data feed benefits investors by facilitating their prompt access to real-time top-ofbook information contained in Cboe Options Top Data. The Exchange’s affiliated options exchanges (i.e., Cboe C2 Exchange, Inc. (‘‘C2 Options’’), Cboe BZX Exchange, Inc. (‘‘BZX Options’’), and Cboe EDGX Exchange, Inc. (‘‘EDGX Options’’) (collectively, ‘‘Affiliates’’ and together with the Exchange, ‘‘Cboe Options Exchanges’’) also offer similar top-of-book data feeds.4 Particularly, each of the Exchange’s Affiliates offer top-of-book quotation and last sale information based on their own quotation and trading activity that is substantially similar to the information 3 The Exchange initially filed the proposed fee changes on March 1, 2023 (SR–CBOE–2023–014). On March 10, 2023, the Exchange withdrew that filing and submitted SR–CBOE–2023–015. On May 9, the Exchange withdrew that filing and submitted SR–CBOE–2023–026. On May 15, 2023, the Exchange withdrew that filing and submitted SR– CBOE–2023–027. On July 14, 2023, the Exchange withdrew that filing and submitted this proposal. 4 See C2 Options Fees Schedule, EDGX Rule 21.15, and BZX Rule 21.15. VerDate Sep<11>2014 18:34 Jul 31, 2023 Jkt 259001 provided by the Exchange through the Cboe Options Top. The Exchange proposes to make the following fee changes relating to Cboe Options Top. New External Distributor Credit The Exchange first proposes to adopt a New External Distributor Credit which will provide that new External Distributors of the Cboe Options Top feed will not be charged an External Distributor Fee for their first three (3) months in order to incentivize External Distributors to enlist new users to receive Cboe Options Top feed.5 The Exchange notes that other exchanges, including the Exchange’s affiliated equities exchanges, offer similar credits for similar market data products. For example, Cboe’s equities exchanges currently offer a one (1) month New External Distributor Credit applicable to External Distributors of top-of-book data feeds.6 They also offer a three (3) month new External Credit applicable to External Distributors of summary depthof-book feeds.7 Distributor Fee Credit The Exchange also proposes to provide that each External Distributor will receive a credit against its monthly Distributor Fee for the Cboe Options Top equal to the amount of its monthly User Fees up to a maximum of the External Distributor Fee for the Cboe Options Top feed.8 The proposed Enterprise Fees discussed below would also be counted towards the Distributor Fee credit, equal to the amount of an External Distributor’s monthly Cboe Options Top External Distribution fee. For example, an External Distributor will be subject to a $5,000 monthly Distributor Fee where they elect to receive the Cboe Options Top. If that External Distributor reports User 5 Any applicable User fees or Enterprise fee will continue to apply during this three-month period. The New External Distributor Credit will not apply during an External Distributor’s trial usage period for Cboe Options Top. External Distributors who receive Cboe Options Top on a trial basis are still eligible for the New Distributor Credit and such free trial basis will not count towards the three (3) months. For example, if an External Distributor has a trial usage period from June 1 through June 30, the New External Distributor Credit will apply for July, August and September. 6 See e.g., EDGX Equities Exchange Fees Schedule, Market Data Fees. 7 See e.g., EDGX Equities Exchange Fees Schedule, Market Data Fees, Id. 8 The Distributor Fee Credit does not apply during any such time that an External Distributor is receiving the New External Distributor Credit or during a trial usage period for Cboe Options Top. The Exchange also proposes to update Footnote 50 relating to the trial usage period to make clear that first time Users and Distributors of Exchange Market Data Products will not receive any applicable credits during their trial usage period. PO 00000 Frm 00152 Fmt 4703 Sfmt 4703 quantities totaling $5,000 or more of monthly usage of the Cboe Options Top, it will pay no net Distributor Fee, whereas if that same External Distributor were to report User quantities totaling $4,000 of monthly usage, it will pay a net of $1,000 for the Distributor Fee. External Distributors will remain subject to the per User fees applicable to Cboe Options Top. External Distributors who choose to purchase an Enterprise license as an alternative to paying User Fees will get a credit in the amount of the External Distribution Fee, which is currently $5,000, since the proposed Enterprise Fees are in excess of the External Distribution fee. In every case the Exchange will receive at least $5,000 in connection with the distribution of the Cboe Options Top (through a combination of the External Distribution Fee and per User Fees or Enterprise Fees, as applicable). The Exchange notes that its affiliated equities exchanges offer a similar credit for a similar market data product.9 Enterprise Fee Tiers The Exchange currently offers Distributors the ability to purchase a monthly (and optional) Enterprise license to receive the Cboe Options Top Feed for distribution to an unlimited number of Professional 10 and NonProfessional 11 Users. The Enterprise Fee is an alternative to Professional and Non-Professional User fees and permits a Distributor to pay a flat fee for an unlimited number of Professional and Non-Professional Users and is in addition to the Distribution fees. The Exchange currently assesses a flat monthly Enterprise fee of $300,000. The 9 See e.g., EDGX Equities Exchange Fees Schedule, Id. 10 A Professional User of an Exchange Market Data product is any User other than a NonProfessional User. 11 A ‘‘Non-Professional User’’ of an Exchange Market Data product is a natural person or qualifying trust that uses Data only for personal purposes and not for any commercial purpose and, for a natural person who works in the United States, is not: (i) registered or qualified in any capacity with the Securities and Exchange Commission, the Commodities Futures Trading Commission, any state securities agency, any securities exchange or association, or any commodities or futures contract market or association; (ii) engaged as an ‘‘investment adviser’’ as that term is defined in section 202(a)(11) of the Investment Advisors Act of 1940 (whether or not registered or qualified under that Act); or (iii) employed by a bank or other organization exempt from registration under federal or state securities laws to perform functions that would require registration or qualification if such functions were performed for an organization not so exempt; or, for a natural person who works outside of the United States, does not perform the same functions as would disqualify such person as a Non-Professional User if he or she worked in the United States. E:\FR\FM\01AUN1.SGM 01AUN1 Federal Register / Vol. 88, No. 146 / Tuesday, August 1, 2023 / Notices lotter on DSK11XQN23PROD with NOTICES1 Exchange proposes to modify the current Enterprise Fee and adopt a tiered structure based on the number of Users a Distributor has. The Exchange proposes to adopt the following monthly Enterprise Fees: $300,000 for up to 1,500,000 Users (Tier 1), $450,000 for 1,500,001 to 2,500,000 Users (Tier 2) and $600,000 for 2,500,001 or greater Users (Tier 3). The proposed fees are non-progressive (e.g., if a Distributor has 2,000,000 Users, it will be subject to $450,000 for Tier 2). The Enterprise Fee may provide an opportunity to reduce fees. For example, if a Distributor has 1.4 million Non-Professional Users who each receive Cboe Options Top at $0.30 per month, then that Distributor will pay $420,000 per month in NonProfessional Users fees. If the Distributor instead were to purchase the proposed Enterprise license (tier 1), it would alternatively pay a flat fee of $300,000 for up to 1.5 million Professional and Non-Professional Users. A Distributor that pays the Tier 1 or Tier 2 Enterprise Fee will have to report its number of such Users on a monthly basis. A Distributor that pays the Tier 3 Enterprise Fee will only have to report the number of its Users every six months.12 The Exchange notes that if the reported number of Users exceed the Enterprise Tier a Distributor has purchased, the higher Tier will apply (e.g., if a Distributor purchases Tier 1, but reports 1,600,000 Users for a month, the Distributor will be assessed the Tier 2 fee). The Exchange also proposes to allow Distributors to purchase the Enterprise Fee on a monthly or annual basis. Annual licenses will receive a 5% discount off the applicable Enterprise Tier fee.13 The Exchange notes that the purchase of an Enterprise license is voluntary, and a firm may elect to instead use the per User structure and benefit from the proposed per User Fees described above. For example, a firm that does not have a sufficient number of Users to benefit from purchase of a license need not do so. 12 See Cboe Global Markets North American Data Policies, which provides that Distributors that have obtained an Enterprise license are required to report quantities monthly unless they reach the highest Enterprise Tier available (i.e., Tier 3), in which case they are required to report user quantities only every six months).. 13 The discount will be taken off the applicable fee assessed for the applicable Enterprise Tier each month. For example, if a Distributor elects to purchase an annual license and is in Tier 1 for any 9 months of the year and Tier 2 for any 3 months of the year, the total amount of fees paid for one year will be $3,847,500 ($300,000¥5% × 9 months + $450,000¥5% × 3 months) as compared to $4,050,000 ($300,000 × 9 months + $450,000 × 3 months). VerDate Sep<11>2014 18:34 Jul 31, 2023 Jkt 259001 Cboe One Options Feed By way of background, the Exchange recently adopted a new market data product called Cboe One Options Feed, which launched March 1, 2023.14 Cboe One Options Feed will provide top-ofbook quotation and last sale information based on the quotation and trading activity on the Exchange and each of its Affiliates, which the Exchange believes offers a comprehensive and highly representative view of US options pricing to market participants. More specifically, Cboe One Options Feed will contain the aggregate best bid and offer (‘‘BBO’’) of all displayed orders for options traded on the Exchange and its Affiliates, as well as individual last sale information and volume, which includes the price, time of execution and individual Cboe options exchange on which the trade was executed. The Cboe One Options Feed will also consist of Symbol Summary,15 Market Status,16 Trading Status,17 and Trade Break 18 messages for the Exchange and each of its Affiliates. The Exchange will use the following data feeds to create the Cboe One Options Feed, each of which is available to other vendors and/or distributors: Cboe Options Top Data, C2 Options Top Data, EDGX Options Top and BZX Options Top. A vendor and/or distributor that wishes to create a product like the Cboe One Options Feed could instead subscribe to each of the aforementioned data feeds. Any entity that receives, or elects to receive, the individual data feeds or the feeds that may be used to create a product like the Cboe One Options Feed would be able SR–CBOE–2023–012. Symbol Summary message will include the total executed volume across all Cboe Options Exchanges. 16 The Market Status message is disseminated to reflect a change in the status of one of the Cboe Options Exchanges. For example, the Market Status message will indicate whether one of the Cboe Options Exchanges is experiencing a systems issue or disruption and quotation or trade information from that market is not currently being disseminated via the Cboe One Options Feed as part of the aggregated BBO. The Market Status message will also indicate when a Cboe Options Exchange is no longer experiencing a systems issue or disruption to properly reflect the status of the aggregated BBO. 17 The Trade Break message will indicate when an execution on a Cboe Options Exchange is broken in accordance with the individual Cboe Options Exchange’s rules (e.g., Cboe Options Rule 6.5, C2 Option Rule 6.5, BZX Options Rule 20.6, EDGX Options Rule 20.6). 18 The Trading Status message will indicate the current trading status of an option contract on each individual Cboe Options Exchange. A Trading Status message will also be sent whenever a security’s trading status changes. For example, a Trading Status message will be sent when a symbol is open for trading or when a symbol is subject to a trading halt or when it resumes trading. PO 00000 14 See 15 The Frm 00153 Fmt 4703 Sfmt 4703 50251 to, if it so chooses, to create a data feed with the same information included in the Cboe One Options Feed and sell and distribute it to its clients so that it could be received by those clients as quickly as the Cboe One Options Feed would be received by those same clients. The Exchange proposes to amend its fee schedule to incorporate fees related to the Cboe One Options Feed. The Exchange has taken into consideration its affiliated relationship with its Affiliates in its design of the Cboe One Options Feed to assure that vendors 19 would be able to offer a similar product on the same terms as the Exchange from a cost perspective. Although Cboe Options Exchanges are the exclusive distributors of the individual data feeds from which certain data elements would be taken to create the Cboe One Options Feed, the Exchange would not be the exclusive distributor of the aggregated and consolidated information that compose the proposed Cboe One Options Feed. Distributors and/or vendors would be able, if they chose, to create a data feed with the same information as the Cboe One Options Feed and distribute it to their clients on a level-playing field with respect to latency and cost as compared to the Exchange’s proposed Cboe One Options Feed. The pricing the Exchange proposes to charge for the Cboe One Options Feed, as described more fully below, is not lower than the cost to a distributor or vendor to obtain the underlying data feeds. In fact, the Distribution and User (Professional and Non-Professional) fees, as well as the optional Enterprise Fees, that the Exchange proposes to adopt for the Cboe One Options Feed are equal to the respective combined fees for subscribing to each individual data feed. The Exchange also proposes to adopt a ‘‘Data Consolidation Fee,’’ which would reflect the value of the aggregation and consolidation function the Exchange performs in creating the Cboe One Options Feed. Therefore, vendors would 19 For purposes of this filing, a ‘‘vendor’’, which is a type of distributor, will refer to any entity that receives an exchange market data product directly from the exchange or indirectly from another entity (for example, from an extranet) and then resell that data to a third-party customer (e.g., a data provider that resells exchange market data to a retail brokerage firm). The term ‘‘distributor’’ herein, will refer to any entity that receives an exchange market data product, directly from the exchange or indirectly from another entity (e.g., from a data vendor) and then distributes to individual internal or external end-users (e.g., a retail brokerage firm who distributes exchange data to its individual employees and/or customers). An example of a vendor’s ‘‘third-party customer’’ or ‘‘customer’’ is an institutional broker dealer or a retail broker dealer, who then may in turn distribute the data to their customers who are individual internal or external end-users. E:\FR\FM\01AUN1.SGM 01AUN1 50252 Federal Register / Vol. 88, No. 146 / Tuesday, August 1, 2023 / Notices lotter on DSK11XQN23PROD with NOTICES1 be enabled to create a competing product based on the individual data feeds and charge their clients a fee that they believe reflects the value of the aggregation and consolidation function that is competitive with Cboe One Options Feed pricing. For these reasons, the Exchange believes that vendors could readily offer a product similar to the Cboe One Options Feed on a competitive basis at a similar cost. The proposed Cboe One Options Feed fees include the following, each of which are described in further detail below: (i) Distributor Fees; (ii) User Fees for both Professional and NonProfessional Users; (iii) Enterprise Fees; and (iv) a Data Consolidation Fee. The Exchange also proposes to adopt a New External Distributor credit and a credit against the monthly External Distribution Fee equal to the amount of monthly User Fees or Enterprise Fees, up to a maximum of the External Distributor Fee. To ensure consistency across the Cboe Options Exchanges, C2 Options, EDGX Options, and BZX Options will be filing companion proposals to reflect this proposal in their respective fee schedules. Distributor Fees As proposed, each Internal Distributor that receives the Cboe One Options Feed shall pay a fee of $15,000 per month. The proposed Internal Distribution Fee equals the combined monthly Internal Distribution fees for the underlying individual data feeds of the Cboe Options Exchanges (i.e., the monthly Internal Distribution fees are $3,000 for BZX Options Top, $500 for EDGX Options Top, $2,500 for C2 Options Top and $9,000 for Cboe Options Top). The Exchange also proposes to assess External Distributors a monthly fee of $10,000. The proposed External Distribution fee equals the combined monthly External Distribution fees for the underlying individual data feeds of the Cboe Options Exchanges (i.e., the monthly External Distribution fees are $5,000 per month for the Cboe Options Top, $2,500 per month for C2 Options Top, $2,000 per month for BZX Options Top, and $500 for EDGX Options Top). As noted above, the Exchange is proposing to charge Internal Distributors an Internal Distribution Fee, and External Distributors an External Distribution Fee, that equals the combined respective Distribution fees of each individual Top feed to ensure the combined cost of subscribing to Cboe Options, C2 Options, BZX Options and EDGX Options Top feeds are no greater than the amount that would be charged to subscribe to the Cboe One Options feed, thereby ensuring that vendors VerDate Sep<11>2014 18:34 Jul 31, 2023 Jkt 259001 could compete with the Exchange by creating the same product as the Cboe One Options Feed to sell to their clients. User Fees In addition to Internal and External Distributor Fees, the Exchange proposes to assess Professional User and NonProfessional User Fees. The proposed monthly Professional User fee for the Cboe Options Exchanges is $30.50 per Professional User, which equals the combined monthly Professional User fees of the underlying individual Cboe Options Exchanges Top feeds (i.e., $15.50 per Professional User for the Cboe Options Top, $5 per Professional User for C2 Options Top, $5 per Professional User for BZX Options Top, and $5 per Professional User for EDGX Options Top). The Exchange also proposes to adopt a monthly NonProfessional User fee of $0.60 per NonProfessional User, which similarly represents the combined total NonProfessional User fee for the individual data feeds of the Cboe Options (i.e., $0.30 per Non-Professional User for Cboe Options Top, $0.10 per NonProfessional User for C2 Options Top, $0.10 per Non-Professional User for BZX Options Top, and $0.10 per NonProfessional User for EDGX Options Top). Similar to the individual underlying feeds, Distributors that receive Cboe One Options Feed will be required to count Professional and NonProfessional Users to which they provide the data feed. The Exchange is proposing to charge Professional and Non-Professional User fees that equal the combined respective Professional and Non-Professional User fees of each individual Top feed to ensure the combined cost of subscribing to Cboe Options, C2 Options, BZX Options and EDGX Options Top feeds are no greater than the amount that would be charged to subscribe to the Cboe One Options feed, thereby ensuring that vendors could compete with the Exchange by creating the same product as the Cboe One Options Feed to sell to their clients. Enterprise Fees The Exchange also proposes to establish Enterprise Fees that will permit a Distributor to purchase a monthly (and optional) Enterprise license to receive the Cboe One Options Feed for distribution to a specified number of Professional and NonProfessional Users. The Enterprise Fee will be an alternative to Professional and Non-Professional User fees and will permit a Distributor to pay a flat fee to receive the data for a specified number of Professional and Non-Professional Users, which the Exchange proposes to PO 00000 Frm 00154 Fmt 4703 Sfmt 4703 make clear in the Fee Schedule. Like User fees, the Enterprise Fee would be assessed in addition to the Distribution Fees. The Exchange proposes to adopt the following monthly Enterprise Fees: $350,000 for up to 1,500,000 Users (Tier 1), $550,000 for 1,500,001 to 2,500,000 Users (Tier 2) and $750,000 for 2,500,001 or greater Users (Tier 3). The proposed fee amounts for each Tier equals the combined Enterprise Fees for the respective tiers for the underlying individual Cboe Options Exchanges Top feeds (i.e., $300,000, $450,000 and $600,000 for Tiers 1, 2 and 3 respectively for the Cboe Options Top; $10,000, $20,000 and $30,000 for Tiers 1, 2 and 3 respectively for C2 Options Top; $20,000, $40,000 and $60,000 for Tiers 1, 2 and 3 respectively for BZX Options Top; and $20,000, $40,000 and $60,000 for Tiers 1, 2 and 3 respectively for EDGX Options Top). The proposed fees are non-progressive (e.g., if a Distributor has 2,000,000 Users, it will be subject to $550,000 for Tier 2). The Enterprise Fee may provide an opportunity to reduce fees. For example, if a Distributor has 1 million NonProfessional Users who each receive Cboe One Options Feed at $0.60 per month (as proposed), then that Distributor will pay $600,000 per month in Non-Professional Users fees. If the Distributor instead were to purchase the proposed Enterprise license (Tier 1), it would alternatively pay a flat fee of $350,000 for up to 1.5 million Professional and Non-Professional Users. A Distributor must pay a separate Enterprise Fee for each entity that controls the display of Cboe One Options Feed if it wishes for such Users to be covered by an Enterprise Fee rather than by per User fees.20 A Distributor that pays the Tier 1 or Tier 2 Enterprise Fee will have to report its number of such Users on a monthly basis. A Distributor that pays the Tier 3 Enterprise Fee will only have to report the number of its Users every six months.21 The Exchange notes that if the reported number of Users exceed the Enterprise Tier a Distributor has purchased, the higher Tier will apply (e.g., if a Distributor purchases Tier 1, but reports 1,600,000 Users for a month, 20 For example, if a Distributor that distributes Cboe Options Top to Retail Brokerage Firm A and Retail Brokerage Firm B and wishes to have the Users under each firm covered by an Enterprise license, the Distributor would be subject to two Enterprise Fees. 21 See Cboe Global Markets North American Data Policies, which provides that Distributors that have obtained an Enterprise license are required to report quantities monthly unless they reach the highest Enterprise Tier available (i.e., Tier 3), in which case they are required to report user quantities only every six months). E:\FR\FM\01AUN1.SGM 01AUN1 Federal Register / Vol. 88, No. 146 / Tuesday, August 1, 2023 / Notices the Distributor will be assessed the Tier 2 fee). The Exchange also proposes to allow Distributors to purchase the Enterprise Fee on a monthly or annual basis. Annual licenses will receive a 5% discount off the applicable Enterprise Fee tier.22 The Exchange notes that the purchase of an Enterprise license is voluntary, and a firm may elect to instead use the per User structure and benefit from the proposed per User Fees described above. For example, a firm that does not have a sufficient number of Users to benefit from purchase of a license need not do so. The Exchange is proposing to charge Enterprise Fees that equal the combined respective Enterprise Fees of each individual Top feed and is also is proposing to adopt a 5% discount for those that purchase an Annual license for Cboe Options Top (with a corresponding change will also be proposed by the Exchange’s Affiliates) to ensure the combined cost of subscribing to Cboe Options, C2 Options, BZX Options and EDGX Options Top feeds will be the same as those that would be charged to subscribe to the Cboe One Options feed, thereby ensuring that vendors could compete with the Exchange by creating the same product as the Cboe One Options Feed to sell to their clients. lotter on DSK11XQN23PROD with NOTICES1 New External Distributor Credit The Exchange proposes to adopt a New External Distributor Credit which would provide that new External Distributors of the Cboe One Options Feed will not be charged an External Distributor Fee for their first three (3) months in order to incentivize them to enlist new Users to receive the Cboe One Options Feed.23 The Exchange notes that other exchanges, including the Exchange’s affiliated equities exchanges offer similar credits for similar market data products. For example, Cboe’s equities exchanges currently offer a one (1) month New External Distributor Credit applicable to 22 The discount will be taken off the applicable fee assessed for the applicable Enterprise Tier each month.. For example, if a Distributor elects to purchase an annual license and is in Tier 1 for any 9 months of the year and Tier 2 for any 3 months of the year, the total amount of fees paid for one year will be $4,560,00 ($350,000¥5% × 9 months + $550,000¥5% × 3 months) as compared to $4,800,000 ($350,000 × 9 months + $550,000 × 3 months). 3150000 [sic] 23 Any applicable User fees will continue to apply during this three-month period. The New External Distributor Credit will not apply during an External Distributor’s trial usage period for Cboe One Options and such free trial basis will not count towards the three (3) months. For example, if an External Distributor has a trial usage period from June 1 through June 30, the New External Distributor Credit will apply for July, August and September. VerDate Sep<11>2014 18:34 Jul 31, 2023 Jkt 259001 the Cboe One Summary Feed and a three (3) month New External Distributor Credit applicable to the distribution of the Cboe One Premium Feed.24 To alleviate any competitive issues that may arise with a vendor seeking to offer a product similar to the Cboe One Options Feed based on the underlying data feeds, the Exchange is proposing, as discussed above, to also adopt a three-month New External Distributor Credit for the underlying top-of-book data feeds for the Cboe Options Exchanges. The respective proposals to adopt a three-month credit ensures the proposed New External Distributor Credit for Cboe One Options will not cause the combined cost of subscribing to Cboe Options, C2 Options, BZX Options and EDGX Options Top feeds for new External Distributors to be greater than those that would be charged to subscribe to the Cboe One Options feed, thereby ensuring that vendors could compete with the Exchange by creating the same product as the Cboe One Options Feed to sell to their clients. Distributor Fee Credit The Exchange also proposes to provide that each External Distributor will receive a credit against its monthly External Distributor Fee for the Cboe One Options Feed equal to the amount of its monthly User Fees up to a maximum of the External Distributor Fee for the Cboe One Options Feed.25 The proposed Enterprise Fees discussed above would also be counted towards the Distributor Fee credit, equal to the amount of its monthly Cboe One Options External Distribution fee. For example, an External Distributor will be subject to a $10,000 monthly Distributor Fee where they elect to receive the Cboe One Options Feed. If that External Distributor reports User quantities totaling $10,000 or more of monthly User fees of the Cboe Options One Feed, it will pay no net Distributor Fee, whereas if that same External Distributor were to report User quantities totaling $9,000 of monthly usage, it will pay a net of $1,000 for the Distributor Fee. External Distributors will remain subject to the per User fees discussed above. External Distributors who choose to purchase an Enterprise license as an alternative to paying User Fees will get a credit in the amount of the External Distribution Fee, which is currently $10,000, since the proposed 24 See e.g., EDGX Equities Exchange Fees Schedule, Market Data Fees. 25 The Distributor Fee Credit does not apply during any such time that an External Distributor is receiving the New External Distributor Credit or during a trial usage period for Cboe One Options. PO 00000 Frm 00155 Fmt 4703 Sfmt 4703 50253 Enterprise Fees are in excess of the External Distribution fee. In every case the Exchange will receive at least $10,000 in connection with the distribution of the Cboe One Options Feed (through a combination of the External Distribution Fee and per User Fees or the Enterprise Fees, as applicable). The Exchange notes that its affiliated equities exchanges offer a similar credit for a similar market data product.26 The proposal to adopt a Distributor Fee Credit for Cboe One Options Feed ensures the proposed credit for Cboe One Options will not cause the combined cost of subscribing to Cboe Options, C2 Options, BZX Options and EDGX Options Top feeds for External Distributors to be greater than the amount that would be charged to subscribe to the Cboe One Options feed, thereby ensuring that vendors could compete with the Exchange by creating the same product as the Cboe One Options Feed to sell to their clients. Data Consolidation Fee The Exchange also proposes to charge Distributors of the Cboe One Options Feed a separate Data Consolidation Fee, which reflects the value of the aggregation and consolidation function the Exchange performs in creating the Cboe One Options Feed.27 As stated above, the Exchange creates the Cboe One Options Feed from data derived from the Cboe Options Top, C2 Options Top, BZX Options Top, and EDGX Options Top Feeds. Distributors (including vendors) could similarly create a competing product to the Cboe One Options Feed based on these individual data feeds offered by the Exchanges, and could charge its clients a fee that it believes reflects the value of the aggregation and consolidation function. Accordingly, the Exchange believes that vendors could readily offer a product similar to the Cboe One Options Feed on a competitive basis at a similar cost. 2. Statutory Basis The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the ‘‘Act’’) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of 26 See e.g., EDGX Equities Exchange Fees Schedule, Market Data Fees. 27 If a vendor distributes the Cboe One Options Feed to another firm, who then re-distributes the Cboe One Options Feed, both entities would be subject to the Data Consolidation Fee. A vendor will only be assessed a single Data Consolidated Fee, even if it distributes Cboe One Options Feed to more than one entity. E:\FR\FM\01AUN1.SGM 01AUN1 50254 Federal Register / Vol. 88, No. 146 / Tuesday, August 1, 2023 / Notices lotter on DSK11XQN23PROD with NOTICES1 section 6(b) of the Act.28 Specifically, the Exchange believes the proposed rule change is consistent with the section 6(b)(5) 29 requirements that the rules of an exchange be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest. Additionally, the Exchange believes the proposed rule change is consistent with the section 6(b)(5) requirement that the rules of an exchange not be designed to permit unfair discrimination between customers, issuers, brokers, or dealers. The Exchange also believes this proposal is consistent with section 6(b)(8) of the Act, which requires that the rules of an exchange not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.30 In addition, the Exchange believes that the proposed rule change is consistent with section 11(A) of the Act as it supports (i) fair competition among brokers and dealers, among exchange markets, and between exchange markets and markets other than exchange markets, and (ii) the availability to brokers, dealers, and investors of information with respect to quotations for and transactions in securities.31 The Exchange also believes the proposed rule change is consistent with section 6(b)(4) of the Act,32 which requires that Exchange rules provide for the equitable allocation of reasonable dues, fees, and other charges among its Trading Permit Holders and other persons using its facilities. The Exchange first notes that it operates in a highly competitive environment. Indeed, there are currently 16 registered options exchanges that trade options. Based on publicly available information, no single options exchange has more than 18% of the market share.33 The Exchange believes top-of-book quotation and transaction data is highly competitive as national securities exchanges compete vigorously with each other to provide efficient, 28 15 U.S.C. 78f(b). U.S.C. 78f(b)(5). 30 15 U.S.C. 78f(b)(8). 31 15 U.S.C. 78k–1. 32 15 U.S.C. 78f(b)(4). 33 See Cboe Global Markets U.S. Options Market Month-to-Date Volume Summary (April 24, 2023), available at https://markets.cboe.com/us/options/ market_statistics/. 29 15 VerDate Sep<11>2014 18:34 Jul 31, 2023 Jkt 259001 reliable, and low-cost data to a wide range of investors and market participants. Indeed, there are several competing products offered by other national securities exchanges today, not counting products offered by the Exchange’s affiliates, and each of the Exchange’s affiliated U.S. options exchanges also offers similar top-ofbook data.34 Each of those exchanges offer top-of-book quotation and last sale information based on their own quotation and trading activity that is substantially similar to the information provided by the Exchange through the Cboe Options Top Data Feed. Further, the quote and last sale data contained in the Cboe Data Feed is identical to the data sent to OPRA for redistribution to the public.35 Accordingly, Exchange top-of-book data is widely available today from a number of different sources. Moreover, the Cboe Options Top Data Feed and Cboe One Options Feeds are distributed and purchased on a voluntary basis, in that neither the Exchange nor market data distributors are required by any rule or regulation to make these data products available. Accordingly, Distributors (including vendors) and Users can discontinue use at any time and for any reason, including due to an assessment of the reasonableness of fees charged. Further, the Exchange is not required to make any proprietary data products available or to offer any specific pricing alternatives to any customers. Moreover, persons (including broker-dealers) who subscribe to any exchange proprietary data feed must also have equivalent access to consolidated Options Information 36 from OPRA for the same 34 See e.g., NYSE Arca Options Proprietary Market Data Fees Schedule, MIAX Options Exchange, Fee Schedule, Section 6 (Market Data Fees), Nasdaq PHLX Options 7 Pricing Schedule, Section 10 (Proprietary Data Feed Fees) and Cboe Data Services, LLC Fees Schedule. 35 The Exchange makes available the top-of-book data and last sale data that is included in the Cboe Options Top Data Feed no earlier than the time at which the Exchange sends that data to OPRA. 36 ‘‘Consolidated Options Information’’ means consolidated Last Sale Reports combined with either consolidated Quotation Information or the BBO furnished by OPRA. Access to consolidated Options Information is deemed ‘‘equivalent’’ if both kinds of information are equally accessible on the same terminal or work station. See Limited Liability Company Agreement of Options Price Reporting Authority, LLC (‘‘OPRA Plan’’), Section 5.2(c)(iii). The Exchange notes that this requirement under the OPRA Plan is also reiterated under the Cboe Global Markets Global Data Agreement and Cboe Global Markets North American Data Policies, which subscribers to any exchange proprietary product must sign and are subject to, respectively. Additionally, the Exchange’s Data Order Form (used for requesting the Exchange’s market data products) requires confirmation that the requesting market participant receives data from OPRA. PO 00000 Frm 00156 Fmt 4703 Sfmt 4703 classes or series of options that are included in the proprietary data feed, and proprietary data feeds cannot be used to meet that particular requirement.37 As such, all proprietary data feeds are optional. The Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. Particularly, 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.’’ 38 Making similar data products available to market participants fosters competition in the marketplace, and constrains the ability of exchanges to charge supracompetitive fees. In the event that a market participant views one exchange’s data product as more or less attractive than the competition they can and do switch between similar products. The proposed fees are a result of the competitive environment, as the Exchange seeks to adopt fees to attract purchasers of Cboe Options Top Data and Cboe One Options Feed. The Exchange has also taken into consideration its affiliated relationship with its Affiliates in its design of the Cboe One Options Feed to ensure that vendors would be able to offer a similar product on the same terms as the Exchange from a cost perspective. While the Cboe Options Exchanges are the exclusive distributors of the individual data feeds from which certain data elements may be taken to create the Cboe One Options Feed, they are not the exclusive distributors of the aggregated and consolidated information that comprises the Cboe One Options Feed. Any entity that receives, or elects to receive, the individual data feeds would be able to, if it so chooses, to create a data feed with the same information included in the Cboe One Options Feed and sell and distribute it to its clients so that it could be received by those clients as quickly as the Cboe One Options Feed would be received by those same clients with no greater cost than the Exchange. In addition, vendors and Distributors that do not wish to purchase the Cboe One Options Feed may separately purchase the individual underlying 37 Id. 38 See Securities Exchange Act Release No. 51808 (June 9, 2005), 70 FR 37496, 37499 (June 29, 2005) (‘‘Regulation NMS Adopting Release’’). E:\FR\FM\01AUN1.SGM 01AUN1 lotter on DSK11XQN23PROD with NOTICES1 Federal Register / Vol. 88, No. 146 / Tuesday, August 1, 2023 / Notices products, and if they so choose, perform a similar aggregation and consolidation function that the Exchange performs in creating the Cboe One Options Feed. To enable such competition, the Exchange is offering the Cboe One Options Feed on terms that a vendor of those underlying feeds could offer a competing product if it so chooses. In addition, the fees that are the subject of this rule filing are constrained by competition. Particularly, the Exchange competes with other exchanges (and their affiliates) that may choose to offer similar market data products. If another exchange (or its affiliate) were to charge less to consolidate and distribute a similar product than the Exchange charges to consolidate and distribute the Cboe One Options Feed, prospective Users likely could choose to not subscribe to, or would cease subscribing to, the Cboe One Options Feed. In addition, the Exchange would compete with unaffiliated market data vendors who would be in a position to consolidate and distribute the same data that comprises the Cboe One Options Feed into the vendor’s own comparable market data product. If the third-party vendor is able to provide the exact same data for a lower cost, prospective Users would avail themselves of that lower cost and elect not to take the Cboe One Options Feed. For these reasons, the Exchange believes that the proposed fees are reasonable, equitable, and not unfairly discriminatory. User Fees. The Exchange believes that the proposed Professional and NonProfessional User fees for the Cboe One Options Feed are reasonable because they represent the combined monthly fees for Professional and NonProfessional User fees, respectively for the underlying individual data feeds, which have previously been filed with the Commission. Combining the Professional and Non-Professional User fees, of each individual Top feed, respectively, further ensures vendors can compete with the Exchange by creating the same product as the Cboe One Options Feed to sell to their clients. The Exchange believes that the proposed fees are equitable and not unfairly discriminatory because they will be charged uniformly to Distributors. Moreover, the proposed fee structure of differentiated Professional and Non-Professional fees that are paid by both Internal and External Distributors has long been used by other exchanges, including the Exchange, for their proprietary data products, and by the OPRA plan in order to reduce the price of data to retail investors and VerDate Sep<11>2014 18:34 Jul 31, 2023 Jkt 259001 make it more broadly available.39 The Exchange also believes offering Cboe One Options Feed to Non-Professional Users at a lower cost than Professional Users results in greater equity among data recipients, as Professional Users are categorized as such based on their employment and participation in financial markets, and thus, are compensated to participate in the markets. Although Non-Professional Users too can receive significant financial benefits through their participation in the markets, the Exchange believes it is reasonable to charge more to those Users who are more directly engaged in the markets. Enterprise Fee. The Exchange believes the proposed Enterprise Fees for the Cboe One Options Feed and proposed changes to the Enterprise Fee for the Cboe Options Top feed are reasonable as the fees proposed could result in a fee reduction for Distributors of the respective products with a large number of Professional and Non-Professional Users. If a Distributor has a smaller number of Professional or NonProfessional Users of the Cboe One Options Feed or Cboe Options Top Feed, then it may continue using the per User structure and benefit from the per User Fee reductions for each respective product. By reducing prices for Distributors with a large number of Professional and Non-Professional Users, the Exchange believes that more firms may choose to receive and to distribute the Cboe One Options Feed or Cboe Options Top feeds, thereby expanding the distribution of this market data for the benefit of investors. The Exchange believes it is reasonable, equitable and not unfairly discriminatory to assess incrementally higher fees for higher tiers, because such tier covers a higher number of users (and indeed for those in Tier 3, an unlimited number of users). The Exchange believes it’s reasonable to require monthly reporting only for proposed Tiers 1 and 2 because such tiers cover a defined number of Users that need to be accounted for billing purposes, as compared to Tier 3 which covers unlimited Users. Also as described above, the Enterprise Fees are 39 See, e.g., Securities Exchange Act Release No. 59544 (March 9, 2009), 74 FR 11162 (March 16, 2009) (SR–NYSE–2008–131) (establishing the $15 Non-Professional User Fee (Per User) for NYSE OpenBook); See, e.g., Securities Exchange Act Release No. 67589 (August 2, 2012), 77 FR 47459 (August 8, 2012) (revising OPRA’s definition of the term ‘‘Nonprofessional’’); and See Securities Exchange Act Release No. 70683 (October 15, 2013), 78 FR 62798 (October 22, 2013) (SR–CBOE–2013– 087) (establishing Professional and NonProfessional User fees for Cboe Options COB Data Feed). PO 00000 Frm 00157 Fmt 4703 Sfmt 4703 50255 entirely optional. A firm that does not have a sufficient number of Users to benefit from purchase of a license, or purchase of a specific tier level, need not do so. The Exchange believes the proposed discount for an Annual license is also reasonable, equitable and not unfairly discriminatory as it provides Distributors an opportunity to be assessed lower fees and is available to any Distributor who chooses to make a one-year commitment via the Annual license. The Exchange believes the proposed 5% discount will attract Distributors to purchase and make available Cboe Options Top Data and Cboe One Options Feed for at least one year, thereby fostering and expanding the distribution of these market data products for the benefit of investors, and particularly retail investors. The Exchange lastly notes that the proposed Enterprise Fees for Cboe One Options and the proposed 5% discount for an Annual license equal the combined respective Enterprise Fees and discount, respectively, of each individual Top feed, thereby ensuring that vendors can compete with the Exchange by creating the same product as the Cboe One Options Feed to sell to their clients. Distributor Fees. The Exchange believes that the proposed Distributor fees for the Cboe One Options Feed are reasonable because they represent the combined monthly fees for Internal and External Distributor fees, respectively for the underlying individual data feeds, which have previously been filed with the Commission. The Exchange believes that the proposed fees are equitable and not unfairly discriminatory because they will be charged uniformly to Internal and External Distributors. The Exchange believes that it is also fair and equitable, and not unfairly discriminatory to charge different fees for internal and external distribution of the Cboe One Options Feed. Although the proposed distribution fee charged to External Distributors will be lower than the distribution fee charged to Internal Distributors, External Distributors are subject to Non-Professional user fees to which Internal Distributors are not subject, in addition to Professional User fees (or alternatively the proposed Enterprise Fee). The Exchange also notes that Cboe One Options Feed, like the underlying top-of-book feeds, are more likely to be distributed externally as such data is expected to be used more frequently by Non-Professional Users who, by definition, do not receive the data for commercial purposes (e.g., retail investors) and are therefore not internal. The Exchange therefore believes that the proposed reduced fee E:\FR\FM\01AUN1.SGM 01AUN1 50256 Federal Register / Vol. 88, No. 146 / Tuesday, August 1, 2023 / Notices lotter on DSK11XQN23PROD with NOTICES1 for External Distributors is reasonable because it may encourage more distributors to choose to offer the Cboe One Options, thereby expanding the distribution of this market data for the benefit of investors, and particularly retail investors. The proposed Distributor Fees for the Cboe One Options Feed are also designed to ensure that vendors could compete with the Exchange by creating a similar product as the Cboe One Options Feed. The Exchange believes that the proposed Distributor Fees are equitable and reasonable as they equal the combined fee of subscribing to each individual data feed of the Cboe Options Exchanges, which have been previously published by the Commission. New External Distributor Credit In addition, the Exchange believes it is reasonable to not charge External Distributors of Cboe Options Top and Cboe One Options Feed a Distribution Fee during their first three (3) months because such Distributors will not be subject to any External Distribution fees for those months.40 Additionally, the Exchange’s affiliated equities exchanges offer a similar credit for a similar market data product.41 The proposed credit is also intended to incentivize new External Distributors to enlist Users to subscribe to the Cboe Options Top or Cboe One Options Feed in an effort to broaden the products’ distribution. While this incentive is not available to Internal Distributors of these products, the Exchange believes it is appropriate as Internal Distributors have no Users outside of their own firm. Furthermore, External Distributors are subject to higher risks of launch as the data is provided outside their own firm. For these reasons, the Exchange believes it is appropriate to provide this incentive so that External Distributors have sufficient time to test the data within their own systems prior to going live externally. The Exchange also does not believe this would inhibit a vendor from creating a competing product and offer a similar free period as the Exchange. Specifically, a vendor seeking to create the Cboe One Options Feed could do so by subscribing to the underlying individual data feeds, all of which will also include a New External Distributor Credit identical to that proposed for the Cboe One Options Feed. As a result, a competing vendor would incur similar costs as the Exchange in offering such 40 As noted above, Distributors are additionally not assessed any Distribution fee during any trial usage period, under the existing Trial Usage period offered by the Exchange. 41 See e.g., EDGX Equities Exchange Fees Schedule, Market Data Fees. VerDate Sep<11>2014 18:34 Jul 31, 2023 Jkt 259001 free period for a competing product and may do so on the same terms as the Exchange. Distributor Fee Credit. The Exchange believes the proposal to provide External Distributors a credit against their monthly External Distribution Fee equal to the amount of its monthly Usage Fee or Enterprise Fees, is reasonable as it could result in the External Distributor paying a discounted, or no, External Distribution fee.42 The Exchange notes that its affiliated equities exchanges offer a similar credit for a similar market data product.43 Further, in every case the Exchange will receive at least the amount of the External Distribution fee for Cboe Options Top or Cboe One Options, as applicable, in connection with the distribution of each respective feed (through a combination of the External Distribution Fee and per User Fees or Enterprise Fees, as applicable). The Exchange believes it is also equitable and not unfairly discriminatory to apply the credit to External Distributors only because, like the free-three month credit described above, it is also intended to incentivize new External Distributors to enlist Users, including Non-Profession Users such as retail investors, to subscribe to the Cboe Options Top or Cboe One Options Feed in an effort to broaden the products’ distribution. While this incentive is not available to Internal Distributors of these products, the Exchange believes it is appropriate as Internal Distributors have no Users outside of their own firm. Furthermore, External Distributors are subject to higher risks of launch as the data is provided outside their own firm. For these reasons, the Exchange believes it is appropriate to provide this incentive to only External Distributors. The proposal to adopt a Distributor Fee Credit for Cboe One Options Feed in particular also ensures the proposed credit for Cboe One Options will not cause the combined cost of subscribing to Cboe Options, C2 Options, BZX Options and EDGX Options Top feeds for External Distributors to be greater than the amount that would be charged to subscribe to the Cboe One Options feed, thereby ensuring that vendors can compete with the Exchange by creating the same product as the Cboe One Options Feed (i.e., purchasing the underlying data feeds and aggregating 42 A Distributor that does not qualify to receive the New External Distributor Credit, does not need to wait three months to be eligible to receive the Distributor Fee Credit (i.e., the Distributor would be eligible to receive the credit immediately). 43 See e.g., EDGX Equities Exchange Fees Schedule, Market Data Fees. PO 00000 Frm 00158 Fmt 4703 Sfmt 4703 the feeds themselves) to sell to their clients. The Exchange also believes updating Footnote 50 relating to Trial Usage avoids potential confusion as to whether new Users or Distributors would be entitled to any credits, including the proposed Distributor Fee Credit (and New External Distributor Credit), during the trial usage period. The Exchange believes its reasonable not to provide such credits as such new users are not paying assessed any fees during their trial period. Data Consolidation Fee. The Exchange believes that the proposed $500 per month Data Consolidation Fee charged to Distributors (including vendors) who receive the Cboe One Options Feed is reasonable because it represents the value of the data aggregation and consolidation function that the Exchange performs. The Exchange further believes the proposed Data Consolidation Fee is not designed to permit unfair discrimination because all Distributors who obtain the Cboe One Options Feed will be charged the same fee. Accordingly, the Exchange believes that Distributors could readily offer a product similar to the Cboe One Options Feed on a competitive basis at a similar cost. Therefore, the Exchange believes the proposed application of the Data Consolidation Fee is reasonable and would not permit unfair discrimination. B. Self-Regulatory Organization’s Statement on Burden on Competition The Exchange does not believe that the proposed rule change would result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange operates in a highly competitive environment, and its ability to price top-of-book data is constrained by competition among exchanges that offer similar data products to their customers. Top-of-book data is broadly disseminated by competing U.S. options exchanges. In this competitive environment potential Distributors are free to choose which competing product to purchase to satisfy their respective needs for market information. Often, the choice comes down to price, as market data participants look to purchase cheaper data products, and quality, as market participants seek to purchase data that represents significant market liquidity. The Exchange believes that the proposed fees do not impose a burden on competition or on other SROs that is not necessary or appropriate in furtherance of the purposes of the Act. In particular, market participants are not E:\FR\FM\01AUN1.SGM 01AUN1 lotter on DSK11XQN23PROD with NOTICES1 Federal Register / Vol. 88, No. 146 / Tuesday, August 1, 2023 / Notices forced to subscribe to Cboe Options Top, Cboe One Options Feed or any of the Exchange’s data feeds, as described above. As noted, the quote and last sale data contained in the Exchange’s Cboe Options Top feed is identical to the data sent to OPRA for redistribution to the public. Accordingly, Exchange top-ofbook data is widely available today from a number of different sources. The Exchange believes that the proposed fees do not put any market participants at a relative disadvantage compared to other market participants. As discussed, the proposed waiver, credits and Enterprise Fees would apply to all similarly situated Distributors of Cboe Options Top on an equal and nondiscriminatory basis. Because market data customers can find suitable substitute feeds, an exchange that overprices its market data products stands a high risk that users may substitute another product. These competitive pressures ensure that no one exchange’s market data fees can impose an undue burden on competition, and the Exchange’s proposed fees do not do so here. Additionally, the Cboe One Options Feed will enhance competition because it provides investors with an alternative option for receiving market data. Although the Cboe Options Exchanges are the exclusive distributors of the individual data feeds from which certain data elements would be taken to create the Cboe One Options Feed, the Exchange would not be the exclusive distributor of the aggregated and consolidated information that would compose the proposed Cboe One Options Feed. Any entity that receives, or elects to receive, the underlying data feeds would be able to, if it so chooses, to create a data feed with the same information included in the Cboe One Options Feed and sell and distribute it to its clients so that it could be received by those clients as quickly as the Cboe One Options Feed would be received by those same clients and at a similar cost. The proposed pricing the Exchange would charge for the Cboe One Options Feed compared to the cost of the individual data feeds from the Cboe Options Exchanges would enable a vendor to receive the underlying individual data feeds and offer a similar product on a competitive basis and with no greater cost than the Exchange. The pricing the Exchange proposes to charge for the Cboe One Options Feed is not lower than the cost to a vendor of receiving the underlying data feeds. Indeed, the proposed pricing equals the combined costs of the respective fees, and the proposed waivers are also being proposed for the underlying individual VerDate Sep<11>2014 18:34 Jul 31, 2023 Jkt 259001 feeds as well, thereby enabling a vendor to receive the underlying data feeds and offer a similar product on a competitive basis and with no greater cost than the Exchange. The Exchange further believes that its proposed monthly Data Consolidation Fee would be pro-competitive because a vendor could create a competing product, perform a similar aggregating and consolidating function, and similarly charge for such service. The Exchange notes that a competing vendor might engage in a different analysis of assessing the cost of a competing product. For these reasons, the Exchange believes the proposed pricing, fee waiver and credit, would enable a vendor to create a competing product based on the individual data feeds and charge its clients a fee that it believes reflects the value of the aggregation and consolidation function that is competitive with Cboe One Options Feed pricing. In establishing the proposed fees, the Exchange considered the competitiveness of the market for proprietary data and all of the implications of that competition. The Exchange believes that it has considered all relevant factors and has not considered irrelevant factors in order to establish fair, reasonable, and not unreasonably discriminatory fees and an equitable allocation of fees among all users. C. Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any written comments from members or other interested parties. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The foregoing rule change has become effective pursuant to section 19(b)(3)(A) of the Act 44 and paragraph (f) of Rule 19b–4 45 thereunder. At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission will institute proceedings PO 00000 44 15 45 17 U.S.C. 78s(b)(3)(A). CFR 240.19b–4(f). Frm 00159 Fmt 4703 Sfmt 4703 50257 to determine whether the proposed rule change should be approved or disapproved. IV. Solicitation of Comments Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: 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– CBOE–2023–034 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–CBOE–2023–034. 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 a.m. and 3 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–CBOE–2023–034 and should be submitted on or before August 22, 2023. E:\FR\FM\01AUN1.SGM 01AUN1 50258 Federal Register / Vol. 88, No. 146 / Tuesday, August 1, 2023 / Notices For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.46 Sherry R. Haywood, Assistant Secretary. [FR Doc. 2023–16247 Filed 7–31–23; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–97997; File No. SR– CboeBZX–2023–051] Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Update Its Fees Schedule July 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 July 14, 2023, Cboe BZX Exchange, Inc. (‘‘Exchange’’ or ‘‘BZX’’) 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 BZX Exchange, Inc. (the ‘‘Exchange’’ or ‘‘BZX’’) proposes to update its Fees Schedule. The text of the proposed rule change is provided in Exhibit 5. The text of the proposed rule change is also available on the Exchange’s website (https://markets.cboe.com/us/ equities/regulation/rule_filings/bzx/), at the Exchange’s Office of the Secretary, and at the Commission’s Public Reference Room. lotter on DSK11XQN23PROD with NOTICES1 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 46 17 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 1 15 VerDate Sep<11>2014 18:34 Jul 31, 2023 Jkt 259001 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 the Market Data section of its Fees Schedule.3 Particularly, the Exchange proposes to (i) adopt a New External Credit applicable to BZX Options Top, (ii) adopt a credit towards the monthly Distribution fees for BZX Options Top, (iii) modify the BZX Options Top Enterprise Fee; and (iv) establish fees for Cboe One Options Feed. BZX Top Data By way of background, the Exchange offers the BZX Options Top Data feed, which is an uncompressed data feed that offers top-of-book quotations and last sale information based on options orders entered into the Exchange’s System. The BZX Options Top Data feed benefits investors by facilitating their prompt access to real-time top-of-book information contained in BZX Options Top Data. The Exchange’s affiliated options exchanges (i.e., Cboe Exchange, Inc. (‘‘Cboe Options’’), Cboe C2 Exchange, Inc. (‘‘C2 Options’’), and Cboe EDGX Exchange, Inc. (‘‘EDGX Options’’) (collectively, ‘‘Affiliates’’ and together with the Exchange, ‘‘Cboe Options Exchanges’’) also offer similar top-of-book data feeds.4 Particularly, each of the Exchange’s Affiliates offer top-of-book quotation and last sale information based on their own quotation and trading activity that is substantially similar to the information provided by the Exchange through the BZX Options Top. The Exchange proposes to make the following fee changes relating to BZX Options Top. New External Distributor Credit The Exchange first proposes to adopt a New External Distributor Credit which will provide that new External Distributors of the BZX Options Top feed will not be charged an External Distributor Fee for their first three (3) months in order to incentivize External 3 The Exchange initially filed the proposed fee changes on March 1, 2023 (SR–CboeBZX–2023– 018). On March 3, 2023, the Exchange withdrew that filing and submitted SR–CboeBZX–2023–019. On March 16, 2023, the Exchange withdrew that filing and submitted SR–CboeBZX–2023–021. On May 15, 2023, the Exchange withdrew that filing and submitted SR–CboeBZX–2023–035. SR–CBOE– 2023–027 [sic]. On July 14, 2023, the Exchange withdrew that filing and submitted this proposal. 4 See Cboe Options Fees Schedule, C2 Options Fees Schedule, and EDGX Rule 21.15. PO 00000 Frm 00160 Fmt 4703 Sfmt 4703 Distributors to enlist new users to receive BZX Options Top feed.5 The Exchange notes that other exchanges, including the Exchange’s affiliated equities exchanges, offer similar credits for similar market data products. For example, Cboe’s equities exchanges currently offer a one (1) month New External Distributor Credit applicable to External Distributors of top-of-book data feeds.6 They also offer a three (3) month new External Credit applicable to External Distributors of summary depthof-book feeds.7 Distributor Fee Credit The Exchange also proposes to provide that each External Distributor will receive a credit against its monthly External Distributor Fee for the BZX Options Top equal to the amount of its monthly User Fees up to a maximum of the Distributor Fee for the BZX Options Top feed.8 The proposed Enterprise Fees discussed below would also be counted towards the Distributor Fee credit, equal to the amount of an External Distributor’s monthly BZX Options Top External Distribution fee. For example, an External Distributor will be subject to a $2,000 monthly Distributor Fee where they elect to receive the BZX Options Top. If that External Distributor reports User quantities totaling $2,000 or more of monthly usage of the BZX Options Top, it will pay no net Distributor Fee, whereas if that same External Distributor were to report User quantities totaling $1,500 of monthly 5 Any applicable User fees or Enterprise fee will continue to apply during this three-month period. The New External Distributor Credit will not apply during an External Distributor’s trial usage period for BZX Options Top. External Distributors who receive BZX Options Top on a trial basis are still eligible for the New Distributor Credit and such free trial basis will not count towards the three (3) months. For example, if an External Distributor has a trial usage period from June 1 through June 30, the New External Distributor Credit will apply for July, August and September. Additionally, pursuant to the BZX Options Fees Schedule, a Distributor that distributes BZX Options Top both externally and internally will be subject to the greater of the two Distribution fees set forth in the fees schedule (i.e., $3.000). The New External Distributor Credit applies only to the External Distribution Fee (i.e., $2,000) and therefore any External Distributor that also distributes BZX Options Top internally would still be subject to the $1,000 difference. 6 See e.g.,, EDGX Equities Exchange Fees Schedule, Market Data Fees. 7 See e.g.,, EDGX Equities Exchange Fees Schedule, Market Data Fees. 8 The Distributor Fee Credit does not apply during any such time that an External Distributor is receiving the New External Distributor Credit or during a trial usage period for BZX Options Top. The Exchange also proposes to update the Trial Usage section of the Fees Schedule to make clear that first time Users and Distributors of Exchange Market Data Products will not receive any applicable credits during their trial usage period. E:\FR\FM\01AUN1.SGM 01AUN1

Agencies

SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 88, Number 146 (Tuesday, August 1, 2023)]
[Notices]
[Pages 50249-50258]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16247]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-97996; File No. SR-CBOE-2023-034]


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

July 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 July 14, 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.
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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

    Cboe Exchange, Inc. (the ``Exchange'' or ``Cboe Options'') proposes 
to update its Fees Schedule. The text of the proposed rule change is 
provided in Exhibit 5.
    The text of the proposed rule change is also available on the 
Exchange's website (https://www.cboe.com/AboutCBOE/CBOELegalRegulatoryHome.aspx), at the Exchange's Office of the 
Secretary, and at the Commission's Public Reference Room.

[[Page 50250]]

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 the Market Data section of its Fees 
Schedule.\3\ Particularly, the Exchange proposes to (i) adopt a New 
External Credit applicable to Cboe Options Top, (ii) adopt a credit 
towards the monthly Distribution fees for Cboe Options Top, (iii) 
modify the Cboe Options Top Enterprise Fee; and (iv) establish fees for 
the Cboe One Options Feed.
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    \3\ The Exchange initially filed the proposed fee changes on 
March 1, 2023 (SR-CBOE-2023-014). On March 10, 2023, the Exchange 
withdrew that filing and submitted SR-CBOE-2023-015. On May 9, the 
Exchange withdrew that filing and submitted SR-CBOE-2023-026. On May 
15, 2023, the Exchange withdrew that filing and submitted SR-CBOE-
2023-027. On July 14, 2023, the Exchange withdrew that filing and 
submitted this proposal.
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Cboe Top Data
    By way of background, the Exchange offers the Cboe Options Top Data 
feed, which is an uncompressed data feed that offers top-of-book 
quotations and last sale information based on options orders entered 
into the Exchange's System. The Cboe Options Top Data feed benefits 
investors by facilitating their prompt access to real-time top-of-book 
information contained in Cboe Options Top Data. The Exchange's 
affiliated options exchanges (i.e., Cboe C2 Exchange, Inc. (``C2 
Options''), Cboe BZX Exchange, Inc. (``BZX Options''), and Cboe EDGX 
Exchange, Inc. (``EDGX Options'') (collectively, ``Affiliates'' and 
together with the Exchange, ``Cboe Options Exchanges'') also offer 
similar top-of-book data feeds.\4\ Particularly, each of the Exchange's 
Affiliates offer top-of-book quotation and last sale information based 
on their own quotation and trading activity that is substantially 
similar to the information provided by the Exchange through the Cboe 
Options Top. The Exchange proposes to make the following fee changes 
relating to Cboe Options Top.
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    \4\ See C2 Options Fees Schedule, EDGX Rule 21.15, and BZX Rule 
21.15.
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New External Distributor Credit
    The Exchange first proposes to adopt a New External Distributor 
Credit which will provide that new External Distributors of the Cboe 
Options Top feed will not be charged an External Distributor Fee for 
their first three (3) months in order to incentivize External 
Distributors to enlist new users to receive Cboe Options Top feed.\5\ 
The Exchange notes that other exchanges, including the Exchange's 
affiliated equities exchanges, offer similar credits for similar market 
data products. For example, Cboe's equities exchanges currently offer a 
one (1) month New External Distributor Credit applicable to External 
Distributors of top-of-book data feeds.\6\ They also offer a three (3) 
month new External Credit applicable to External Distributors of 
summary depth-of-book feeds.\7\
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    \5\ Any applicable User fees or Enterprise fee will continue to 
apply during this three-month period. The New External Distributor 
Credit will not apply during an External Distributor's trial usage 
period for Cboe Options Top. External Distributors who receive Cboe 
Options Top on a trial basis are still eligible for the New 
Distributor Credit and such free trial basis will not count towards 
the three (3) months. For example, if an External Distributor has a 
trial usage period from June 1 through June 30, the New External 
Distributor Credit will apply for July, August and September.
    \6\ See e.g., EDGX Equities Exchange Fees Schedule, Market Data 
Fees.
    \7\ See e.g., EDGX Equities Exchange Fees Schedule, Market Data 
Fees, Id.
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Distributor Fee Credit
    The Exchange also proposes to provide that each External 
Distributor will receive a credit against its monthly Distributor Fee 
for the Cboe Options Top equal to the amount of its monthly User Fees 
up to a maximum of the External Distributor Fee for the Cboe Options 
Top feed.\8\ The proposed Enterprise Fees discussed below would also be 
counted towards the Distributor Fee credit, equal to the amount of an 
External Distributor's monthly Cboe Options Top External Distribution 
fee. For example, an External Distributor will be subject to a $5,000 
monthly Distributor Fee where they elect to receive the Cboe Options 
Top. If that External Distributor reports User quantities totaling 
$5,000 or more of monthly usage of the Cboe Options Top, it will pay no 
net Distributor Fee, whereas if that same External Distributor were to 
report User quantities totaling $4,000 of monthly usage, it will pay a 
net of $1,000 for the Distributor Fee. External Distributors will 
remain subject to the per User fees applicable to Cboe Options Top. 
External Distributors who choose to purchase an Enterprise license as 
an alternative to paying User Fees will get a credit in the amount of 
the External Distribution Fee, which is currently $5,000, since the 
proposed Enterprise Fees are in excess of the External Distribution 
fee. In every case the Exchange will receive at least $5,000 in 
connection with the distribution of the Cboe Options Top (through a 
combination of the External Distribution Fee and per User Fees or 
Enterprise Fees, as applicable). The Exchange notes that its affiliated 
equities exchanges offer a similar credit for a similar market data 
product.\9\
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    \8\ The Distributor Fee Credit does not apply during any such 
time that an External Distributor is receiving the New External 
Distributor Credit or during a trial usage period for Cboe Options 
Top. The Exchange also proposes to update Footnote 50 relating to 
the trial usage period to make clear that first time Users and 
Distributors of Exchange Market Data Products will not receive any 
applicable credits during their trial usage period.
    \9\ See e.g., EDGX Equities Exchange Fees Schedule, Id.
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Enterprise Fee Tiers
    The Exchange currently offers Distributors the ability to purchase 
a monthly (and optional) Enterprise license to receive the Cboe Options 
Top Feed for distribution to an unlimited number of Professional \10\ 
and Non-Professional \11\ Users. The Enterprise Fee is an alternative 
to Professional and Non-Professional User fees and permits a 
Distributor to pay a flat fee for an unlimited number of Professional 
and Non-Professional Users and is in addition to the Distribution fees. 
The Exchange currently assesses a flat monthly Enterprise fee of 
$300,000. The

[[Page 50251]]

Exchange proposes to modify the current Enterprise Fee and adopt a 
tiered structure based on the number of Users a Distributor has. The 
Exchange proposes to adopt the following monthly Enterprise Fees: 
$300,000 for up to 1,500,000 Users (Tier 1), $450,000 for 1,500,001 to 
2,500,000 Users (Tier 2) and $600,000 for 2,500,001 or greater Users 
(Tier 3). The proposed fees are non-progressive (e.g., if a Distributor 
has 2,000,000 Users, it will be subject to $450,000 for Tier 2). The 
Enterprise Fee may provide an opportunity to reduce fees. For example, 
if a Distributor has 1.4 million Non-Professional Users who each 
receive Cboe Options Top at $0.30 per month, then that Distributor will 
pay $420,000 per month in Non-Professional Users fees. If the 
Distributor instead were to purchase the proposed Enterprise license 
(tier 1), it would alternatively pay a flat fee of $300,000 for up to 
1.5 million Professional and Non-Professional Users. A Distributor that 
pays the Tier 1 or Tier 2 Enterprise Fee will have to report its number 
of such Users on a monthly basis. A Distributor that pays the Tier 3 
Enterprise Fee will only have to report the number of its Users every 
six months.\12\ The Exchange notes that if the reported number of Users 
exceed the Enterprise Tier a Distributor has purchased, the higher Tier 
will apply (e.g., if a Distributor purchases Tier 1, but reports 
1,600,000 Users for a month, the Distributor will be assessed the Tier 
2 fee).
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    \10\ A Professional User of an Exchange Market Data product is 
any User other than a Non-Professional User.
    \11\ A ``Non-Professional User'' of an Exchange Market Data 
product is a natural person or qualifying trust that uses Data only 
for personal purposes and not for any commercial purpose and, for a 
natural person who works in the United States, is not: (i) 
registered or qualified in any capacity with the Securities and 
Exchange Commission, the Commodities Futures Trading Commission, any 
state securities agency, any securities exchange or association, or 
any commodities or futures contract market or association; (ii) 
engaged as an ``investment adviser'' as that term is defined in 
section 202(a)(11) of the Investment Advisors Act of 1940 (whether 
or not registered or qualified under that Act); or (iii) employed by 
a bank or other organization exempt from registration under federal 
or state securities laws to perform functions that would require 
registration or qualification if such functions were performed for 
an organization not so exempt; or, for a natural person who works 
outside of the United States, does not perform the same functions as 
would disqualify such person as a Non-Professional User if he or she 
worked in the United States.
    \12\ See Cboe Global Markets North American Data Policies, which 
provides that Distributors that have obtained an Enterprise license 
are required to report quantities monthly unless they reach the 
highest Enterprise Tier available (i.e., Tier 3), in which case they 
are required to report user quantities only every six months)..
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    The Exchange also proposes to allow Distributors to purchase the 
Enterprise Fee on a monthly or annual basis. Annual licenses will 
receive a 5% discount off the applicable Enterprise Tier fee.\13\ The 
Exchange notes that the purchase of an Enterprise license is voluntary, 
and a firm may elect to instead use the per User structure and benefit 
from the proposed per User Fees described above. For example, a firm 
that does not have a sufficient number of Users to benefit from 
purchase of a license need not do so.
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    \13\ The discount will be taken off the applicable fee assessed 
for the applicable Enterprise Tier each month. For example, if a 
Distributor elects to purchase an annual license and is in Tier 1 
for any 9 months of the year and Tier 2 for any 3 months of the 
year, the total amount of fees paid for one year will be $3,847,500 
($300,000-5% x 9 months + $450,000-5% x 3 months) as compared to 
$4,050,000 ($300,000 x 9 months + $450,000 x 3 months).
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Cboe One Options Feed
    By way of background, the Exchange recently adopted a new market 
data product called Cboe One Options Feed, which launched March 1, 
2023.\14\ Cboe One Options Feed will provide top-of-book quotation and 
last sale information based on the quotation and trading activity on 
the Exchange and each of its Affiliates, which the Exchange believes 
offers a comprehensive and highly representative view of US options 
pricing to market participants. More specifically, Cboe One Options 
Feed will contain the aggregate best bid and offer (``BBO'') of all 
displayed orders for options traded on the Exchange and its Affiliates, 
as well as individual last sale information and volume, which includes 
the price, time of execution and individual Cboe options exchange on 
which the trade was executed.
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    \14\ See SR-CBOE-2023-012.
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    The Cboe One Options Feed will also consist of Symbol Summary,\15\ 
Market Status,\16\ Trading Status,\17\ and Trade Break \18\ messages 
for the Exchange and each of its Affiliates.
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    \15\ The Symbol Summary message will include the total executed 
volume across all Cboe Options Exchanges.
    \16\ The Market Status message is disseminated to reflect a 
change in the status of one of the Cboe Options Exchanges. For 
example, the Market Status message will indicate whether one of the 
Cboe Options Exchanges is experiencing a systems issue or disruption 
and quotation or trade information from that market is not currently 
being disseminated via the Cboe One Options Feed as part of the 
aggregated BBO. The Market Status message will also indicate when a 
Cboe Options Exchange is no longer experiencing a systems issue or 
disruption to properly reflect the status of the aggregated BBO.
    \17\ The Trade Break message will indicate when an execution on 
a Cboe Options Exchange is broken in accordance with the individual 
Cboe Options Exchange's rules (e.g., Cboe Options Rule 6.5, C2 
Option Rule 6.5, BZX Options Rule 20.6, EDGX Options Rule 20.6).
    \18\ The Trading Status message will indicate the current 
trading status of an option contract on each individual Cboe Options 
Exchange. A Trading Status message will also be sent whenever a 
security's trading status changes. For example, a Trading Status 
message will be sent when a symbol is open for trading or when a 
symbol is subject to a trading halt or when it resumes trading.
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    The Exchange will use the following data feeds to create the Cboe 
One Options Feed, each of which is available to other vendors and/or 
distributors: Cboe Options Top Data, C2 Options Top Data, EDGX Options 
Top and BZX Options Top. A vendor and/or distributor that wishes to 
create a product like the Cboe One Options Feed could instead subscribe 
to each of the aforementioned data feeds. Any entity that receives, or 
elects to receive, the individual data feeds or the feeds that may be 
used to create a product like the Cboe One Options Feed would be able 
to, if it so chooses, to create a data feed with the same information 
included in the Cboe One Options Feed and sell and distribute it to its 
clients so that it could be received by those clients as quickly as the 
Cboe One Options Feed would be received by those same clients.
    The Exchange proposes to amend its fee schedule to incorporate fees 
related to the Cboe One Options Feed. The Exchange has taken into 
consideration its affiliated relationship with its Affiliates in its 
design of the Cboe One Options Feed to assure that vendors \19\ would 
be able to offer a similar product on the same terms as the Exchange 
from a cost perspective. Although Cboe Options Exchanges are the 
exclusive distributors of the individual data feeds from which certain 
data elements would be taken to create the Cboe One Options Feed, the 
Exchange would not be the exclusive distributor of the aggregated and 
consolidated information that compose the proposed Cboe One Options 
Feed. Distributors and/or vendors would be able, if they chose, to 
create a data feed with the same information as the Cboe One Options 
Feed and distribute it to their clients on a level-playing field with 
respect to latency and cost as compared to the Exchange's proposed Cboe 
One Options Feed. The pricing the Exchange proposes to charge for the 
Cboe One Options Feed, as described more fully below, is not lower than 
the cost to a distributor or vendor to obtain the underlying data 
feeds. In fact, the Distribution and User (Professional and Non-
Professional) fees, as well as the optional Enterprise Fees, that the 
Exchange proposes to adopt for the Cboe One Options Feed are equal to 
the respective combined fees for subscribing to each individual data 
feed. The Exchange also proposes to adopt a ``Data Consolidation Fee,'' 
which would reflect the value of the aggregation and consolidation 
function the Exchange performs in creating the Cboe One Options Feed. 
Therefore, vendors would

[[Page 50252]]

be enabled to create a competing product based on the individual data 
feeds and charge their clients a fee that they believe reflects the 
value of the aggregation and consolidation function that is competitive 
with Cboe One Options Feed pricing. For these reasons, the Exchange 
believes that vendors could readily offer a product similar to the Cboe 
One Options Feed on a competitive basis at a similar cost.
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    \19\ For purposes of this filing, a ``vendor'', which is a type 
of distributor, will refer to any entity that receives an exchange 
market data product directly from the exchange or indirectly from 
another entity (for example, from an extranet) and then resell that 
data to a third-party customer (e.g., a data provider that resells 
exchange market data to a retail brokerage firm). The term 
``distributor'' herein, will refer to any entity that receives an 
exchange market data product, directly from the exchange or 
indirectly from another entity (e.g., from a data vendor) and then 
distributes to individual internal or external end-users (e.g., a 
retail brokerage firm who distributes exchange data to its 
individual employees and/or customers). An example of a vendor's 
``third-party customer'' or ``customer'' is an institutional broker 
dealer or a retail broker dealer, who then may in turn distribute 
the data to their customers who are individual internal or external 
end-users.
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    The proposed Cboe One Options Feed fees include the following, each 
of which are described in further detail below: (i) Distributor Fees; 
(ii) User Fees for both Professional and Non-Professional Users; (iii) 
Enterprise Fees; and (iv) a Data Consolidation Fee. The Exchange also 
proposes to adopt a New External Distributor credit and a credit 
against the monthly External Distribution Fee equal to the amount of 
monthly User Fees or Enterprise Fees, up to a maximum of the External 
Distributor Fee. To ensure consistency across the Cboe Options 
Exchanges, C2 Options, EDGX Options, and BZX Options will be filing 
companion proposals to reflect this proposal in their respective fee 
schedules.
Distributor Fees
    As proposed, each Internal Distributor that receives the Cboe One 
Options Feed shall pay a fee of $15,000 per month. The proposed 
Internal Distribution Fee equals the combined monthly Internal 
Distribution fees for the underlying individual data feeds of the Cboe 
Options Exchanges (i.e., the monthly Internal Distribution fees are 
$3,000 for BZX Options Top, $500 for EDGX Options Top, $2,500 for C2 
Options Top and $9,000 for Cboe Options Top). The Exchange also 
proposes to assess External Distributors a monthly fee of $10,000. The 
proposed External Distribution fee equals the combined monthly External 
Distribution fees for the underlying individual data feeds of the Cboe 
Options Exchanges (i.e., the monthly External Distribution fees are 
$5,000 per month for the Cboe Options Top, $2,500 per month for C2 
Options Top, $2,000 per month for BZX Options Top, and $500 for EDGX 
Options Top). As noted above, the Exchange is proposing to charge 
Internal Distributors an Internal Distribution Fee, and External 
Distributors an External Distribution Fee, that equals the combined 
respective Distribution fees of each individual Top feed to ensure the 
combined cost of subscribing to Cboe Options, C2 Options, BZX Options 
and EDGX Options Top feeds are no greater than the amount that would be 
charged to subscribe to the Cboe One Options feed, thereby ensuring 
that vendors could compete with the Exchange by creating the same 
product as the Cboe One Options Feed to sell to their clients.
User Fees
    In addition to Internal and External Distributor Fees, the Exchange 
proposes to assess Professional User and Non-Professional User Fees. 
The proposed monthly Professional User fee for the Cboe Options 
Exchanges is $30.50 per Professional User, which equals the combined 
monthly Professional User fees of the underlying individual Cboe 
Options Exchanges Top feeds (i.e., $15.50 per Professional User for the 
Cboe Options Top, $5 per Professional User for C2 Options Top, $5 per 
Professional User for BZX Options Top, and $5 per Professional User for 
EDGX Options Top). The Exchange also proposes to adopt a monthly Non-
Professional User fee of $0.60 per Non-Professional User, which 
similarly represents the combined total Non-Professional User fee for 
the individual data feeds of the Cboe Options (i.e., $0.30 per Non-
Professional User for Cboe Options Top, $0.10 per Non-Professional User 
for C2 Options Top, $0.10 per Non-Professional User for BZX Options 
Top, and $0.10 per Non-Professional User for EDGX Options Top). Similar 
to the individual underlying feeds, Distributors that receive Cboe One 
Options Feed will be required to count Professional and Non-
Professional Users to which they provide the data feed. The Exchange is 
proposing to charge Professional and Non-Professional User fees that 
equal the combined respective Professional and Non-Professional User 
fees of each individual Top feed to ensure the combined cost of 
subscribing to Cboe Options, C2 Options, BZX Options and EDGX Options 
Top feeds are no greater than the amount that would be charged to 
subscribe to the Cboe One Options feed, thereby ensuring that vendors 
could compete with the Exchange by creating the same product as the 
Cboe One Options Feed to sell to their clients.
Enterprise Fees
    The Exchange also proposes to establish Enterprise Fees that will 
permit a Distributor to purchase a monthly (and optional) Enterprise 
license to receive the Cboe One Options Feed for distribution to a 
specified number of Professional and Non-Professional Users. The 
Enterprise Fee will be an alternative to Professional and Non-
Professional User fees and will permit a Distributor to pay a flat fee 
to receive the data for a specified number of Professional and Non-
Professional Users, which the Exchange proposes to make clear in the 
Fee Schedule. Like User fees, the Enterprise Fee would be assessed in 
addition to the Distribution Fees. The Exchange proposes to adopt the 
following monthly Enterprise Fees: $350,000 for up to 1,500,000 Users 
(Tier 1), $550,000 for 1,500,001 to 2,500,000 Users (Tier 2) and 
$750,000 for 2,500,001 or greater Users (Tier 3). The proposed fee 
amounts for each Tier equals the combined Enterprise Fees for the 
respective tiers for the underlying individual Cboe Options Exchanges 
Top feeds (i.e., $300,000, $450,000 and $600,000 for Tiers 1, 2 and 3 
respectively for the Cboe Options Top; $10,000, $20,000 and $30,000 for 
Tiers 1, 2 and 3 respectively for C2 Options Top; $20,000, $40,000 and 
$60,000 for Tiers 1, 2 and 3 respectively for BZX Options Top; and 
$20,000, $40,000 and $60,000 for Tiers 1, 2 and 3 respectively for EDGX 
Options Top). The proposed fees are non-progressive (e.g., if a 
Distributor has 2,000,000 Users, it will be subject to $550,000 for 
Tier 2). The Enterprise Fee may provide an opportunity to reduce fees. 
For example, if a Distributor has 1 million Non-Professional Users who 
each receive Cboe One Options Feed at $0.60 per month (as proposed), 
then that Distributor will pay $600,000 per month in Non-Professional 
Users fees. If the Distributor instead were to purchase the proposed 
Enterprise license (Tier 1), it would alternatively pay a flat fee of 
$350,000 for up to 1.5 million Professional and Non-Professional Users. 
A Distributor must pay a separate Enterprise Fee for each entity that 
controls the display of Cboe One Options Feed if it wishes for such 
Users to be covered by an Enterprise Fee rather than by per User 
fees.\20\ A Distributor that pays the Tier 1 or Tier 2 Enterprise Fee 
will have to report its number of such Users on a monthly basis. A 
Distributor that pays the Tier 3 Enterprise Fee will only have to 
report the number of its Users every six months.\21\ The Exchange notes 
that if the reported number of Users exceed the Enterprise Tier a 
Distributor has purchased, the higher Tier will apply (e.g., if a 
Distributor purchases Tier 1, but reports 1,600,000 Users for a month,

[[Page 50253]]

the Distributor will be assessed the Tier 2 fee).
---------------------------------------------------------------------------

    \20\ For example, if a Distributor that distributes Cboe Options 
Top to Retail Brokerage Firm A and Retail Brokerage Firm B and 
wishes to have the Users under each firm covered by an Enterprise 
license, the Distributor would be subject to two Enterprise Fees.
    \21\ See Cboe Global Markets North American Data Policies, which 
provides that Distributors that have obtained an Enterprise license 
are required to report quantities monthly unless they reach the 
highest Enterprise Tier available (i.e., Tier 3), in which case they 
are required to report user quantities only every six months).
---------------------------------------------------------------------------

    The Exchange also proposes to allow Distributors to purchase the 
Enterprise Fee on a monthly or annual basis. Annual licenses will 
receive a 5% discount off the applicable Enterprise Fee tier.\22\ The 
Exchange notes that the purchase of an Enterprise license is voluntary, 
and a firm may elect to instead use the per User structure and benefit 
from the proposed per User Fees described above. For example, a firm 
that does not have a sufficient number of Users to benefit from 
purchase of a license need not do so. The Exchange is proposing to 
charge Enterprise Fees that equal the combined respective Enterprise 
Fees of each individual Top feed and is also is proposing to adopt a 5% 
discount for those that purchase an Annual license for Cboe Options Top 
(with a corresponding change will also be proposed by the Exchange's 
Affiliates) to ensure the combined cost of subscribing to Cboe Options, 
C2 Options, BZX Options and EDGX Options Top feeds will be the same as 
those that would be charged to subscribe to the Cboe One Options feed, 
thereby ensuring that vendors could compete with the Exchange by 
creating the same product as the Cboe One Options Feed to sell to their 
clients.
---------------------------------------------------------------------------

    \22\ The discount will be taken off the applicable fee assessed 
for the applicable Enterprise Tier each month.. For example, if a 
Distributor elects to purchase an annual license and is in Tier 1 
for any 9 months of the year and Tier 2 for any 3 months of the 
year, the total amount of fees paid for one year will be $4,560,00 
($350,000-5% x 9 months + $550,000-5% x 3 months) as compared to 
$4,800,000 ($350,000 x 9 months + $550,000 x 3 months). 3150000 
[sic]
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New External Distributor Credit
    The Exchange proposes to adopt a New External Distributor Credit 
which would provide that new External Distributors of the Cboe One 
Options Feed will not be charged an External Distributor Fee for their 
first three (3) months in order to incentivize them to enlist new Users 
to receive the Cboe One Options Feed.\23\ The Exchange notes that other 
exchanges, including the Exchange's affiliated equities exchanges offer 
similar credits for similar market data products. For example, Cboe's 
equities exchanges currently offer a one (1) month New External 
Distributor Credit applicable to the Cboe One Summary Feed and a three 
(3) month New External Distributor Credit applicable to the 
distribution of the Cboe One Premium Feed.\24\ To alleviate any 
competitive issues that may arise with a vendor seeking to offer a 
product similar to the Cboe One Options Feed based on the underlying 
data feeds, the Exchange is proposing, as discussed above, to also 
adopt a three-month New External Distributor Credit for the underlying 
top-of-book data feeds for the Cboe Options Exchanges. The respective 
proposals to adopt a three-month credit ensures the proposed New 
External Distributor Credit for Cboe One Options will not cause the 
combined cost of subscribing to Cboe Options, C2 Options, BZX Options 
and EDGX Options Top feeds for new External Distributors to be greater 
than those that would be charged to subscribe to the Cboe One Options 
feed, thereby ensuring that vendors could compete with the Exchange by 
creating the same product as the Cboe One Options Feed to sell to their 
clients.
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    \23\ Any applicable User fees will continue to apply during this 
three-month period. The New External Distributor Credit will not 
apply during an External Distributor's trial usage period for Cboe 
One Options and such free trial basis will not count towards the 
three (3) months. For example, if an External Distributor has a 
trial usage period from June 1 through June 30, the New External 
Distributor Credit will apply for July, August and September.
    \24\ See e.g., EDGX Equities Exchange Fees Schedule, Market Data 
Fees.
---------------------------------------------------------------------------

Distributor Fee Credit
    The Exchange also proposes to provide that each External 
Distributor will receive a credit against its monthly External 
Distributor Fee for the Cboe One Options Feed equal to the amount of 
its monthly User Fees up to a maximum of the External Distributor Fee 
for the Cboe One Options Feed.\25\ The proposed Enterprise Fees 
discussed above would also be counted towards the Distributor Fee 
credit, equal to the amount of its monthly Cboe One Options External 
Distribution fee. For example, an External Distributor will be subject 
to a $10,000 monthly Distributor Fee where they elect to receive the 
Cboe One Options Feed. If that External Distributor reports User 
quantities totaling $10,000 or more of monthly User fees of the Cboe 
Options One Feed, it will pay no net Distributor Fee, whereas if that 
same External Distributor were to report User quantities totaling 
$9,000 of monthly usage, it will pay a net of $1,000 for the 
Distributor Fee. External Distributors will remain subject to the per 
User fees discussed above. External Distributors who choose to purchase 
an Enterprise license as an alternative to paying User Fees will get a 
credit in the amount of the External Distribution Fee, which is 
currently $10,000, since the proposed Enterprise Fees are in excess of 
the External Distribution fee. In every case the Exchange will receive 
at least $10,000 in connection with the distribution of the Cboe One 
Options Feed (through a combination of the External Distribution Fee 
and per User Fees or the Enterprise Fees, as applicable). The Exchange 
notes that its affiliated equities exchanges offer a similar credit for 
a similar market data product.\26\ The proposal to adopt a Distributor 
Fee Credit for Cboe One Options Feed ensures the proposed credit for 
Cboe One Options will not cause the combined cost of subscribing to 
Cboe Options, C2 Options, BZX Options and EDGX Options Top feeds for 
External Distributors to be greater than the amount that would be 
charged to subscribe to the Cboe One Options feed, thereby ensuring 
that vendors could compete with the Exchange by creating the same 
product as the Cboe One Options Feed to sell to their clients.
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    \25\ The Distributor Fee Credit does not apply during any such 
time that an External Distributor is receiving the New External 
Distributor Credit or during a trial usage period for Cboe One 
Options.
    \26\ See e.g., EDGX Equities Exchange Fees Schedule, Market Data 
Fees.
---------------------------------------------------------------------------

Data Consolidation Fee
    The Exchange also proposes to charge Distributors of the Cboe One 
Options Feed a separate Data Consolidation Fee, which reflects the 
value of the aggregation and consolidation function the Exchange 
performs in creating the Cboe One Options Feed.\27\ As stated above, 
the Exchange creates the Cboe One Options Feed from data derived from 
the Cboe Options Top, C2 Options Top, BZX Options Top, and EDGX Options 
Top Feeds. Distributors (including vendors) could similarly create a 
competing product to the Cboe One Options Feed based on these 
individual data feeds offered by the Exchanges, and could charge its 
clients a fee that it believes reflects the value of the aggregation 
and consolidation function. Accordingly, the Exchange believes that 
vendors could readily offer a product similar to the Cboe One Options 
Feed on a competitive basis at a similar cost.
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    \27\ If a vendor distributes the Cboe One Options Feed to 
another firm, who then re-distributes the Cboe One Options Feed, 
both entities would be subject to the Data Consolidation Fee. A 
vendor will only be assessed a single Data Consolidated Fee, even if 
it distributes Cboe One Options Feed to more than one entity.
---------------------------------------------------------------------------

2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with 
the Securities Exchange Act of 1934 (the ``Act'') and the rules and 
regulations thereunder applicable to the Exchange and, in particular, 
the requirements of

[[Page 50254]]

section 6(b) of the Act.\28\ Specifically, the Exchange believes the 
proposed rule change is consistent with the section 6(b)(5) \29\ 
requirements that the rules of an exchange be designed to prevent 
fraudulent and manipulative acts and practices, to promote just and 
equitable principles of trade, to foster cooperation and coordination 
with persons engaged in regulating, clearing, settling, processing 
information with respect to, and facilitating transactions in 
securities, to remove impediments to and perfect the mechanism of a 
free and open market and a national market system, and, in general, to 
protect investors and the public interest. Additionally, the Exchange 
believes the proposed rule change is consistent with the section 
6(b)(5) requirement that the rules of an exchange not be designed to 
permit unfair discrimination between customers, issuers, brokers, or 
dealers. The Exchange also believes this proposal is consistent with 
section 6(b)(8) of the Act, which requires that the rules of an 
exchange not impose any burden on competition that is not necessary or 
appropriate in furtherance of the purposes of the Act.\30\ In addition, 
the Exchange believes that the proposed rule change is consistent with 
section 11(A) of the Act as it supports (i) fair competition among 
brokers and dealers, among exchange markets, and between exchange 
markets and markets other than exchange markets, and (ii) the 
availability to brokers, dealers, and investors of information with 
respect to quotations for and transactions in securities.\31\ The 
Exchange also believes the proposed rule change is consistent with 
section 6(b)(4) of the Act,\32\ which requires that Exchange rules 
provide for the equitable allocation of reasonable dues, fees, and 
other charges among its Trading Permit Holders and other persons using 
its facilities.
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    \28\ 15 U.S.C. 78f(b).
    \29\ 15 U.S.C. 78f(b)(5).
    \30\ 15 U.S.C. 78f(b)(8).
    \31\ 15 U.S.C. 78k-1.
    \32\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

    The Exchange first notes that it operates in a highly competitive 
environment. Indeed, there are currently 16 registered options 
exchanges that trade options. Based on publicly available information, 
no single options exchange has more than 18% of the market share.\33\ 
The Exchange believes top-of-book quotation and transaction data is 
highly competitive as national securities exchanges compete vigorously 
with each other to provide efficient, reliable, and low-cost data to a 
wide range of investors and market participants. Indeed, there are 
several competing products offered by other national securities 
exchanges today, not counting products offered by the Exchange's 
affiliates, and each of the Exchange's affiliated U.S. options 
exchanges also offers similar top-of-book data.\34\ Each of those 
exchanges offer top-of-book quotation and last sale information based 
on their own quotation and trading activity that is substantially 
similar to the information provided by the Exchange through the Cboe 
Options Top Data Feed. Further, the quote and last sale data contained 
in the Cboe Data Feed is identical to the data sent to OPRA for 
redistribution to the public.\35\ Accordingly, Exchange top-of-book 
data is widely available today from a number of different sources.
---------------------------------------------------------------------------

    \33\ See Cboe Global Markets U.S. Options Market Month-to-Date 
Volume Summary (April 24, 2023), available at https://markets.cboe.com/us/options/market_statistics/.
    \34\ See e.g., NYSE Arca Options Proprietary Market Data Fees 
Schedule, MIAX Options Exchange, Fee Schedule, Section 6 (Market 
Data Fees), Nasdaq PHLX Options 7 Pricing Schedule, Section 10 
(Proprietary Data Feed Fees) and Cboe Data Services, LLC Fees 
Schedule.
    \35\ The Exchange makes available the top-of-book data and last 
sale data that is included in the Cboe Options Top Data Feed no 
earlier than the time at which the Exchange sends that data to OPRA.
---------------------------------------------------------------------------

    Moreover, the Cboe Options Top Data Feed and Cboe One Options Feeds 
are distributed and purchased on a voluntary basis, in that neither the 
Exchange nor market data distributors are required by any rule or 
regulation to make these data products available. Accordingly, 
Distributors (including vendors) and Users can discontinue use at any 
time and for any reason, including due to an assessment of the 
reasonableness of fees charged. Further, the Exchange is not required 
to make any proprietary data products available or to offer any 
specific pricing alternatives to any customers. Moreover, persons 
(including broker-dealers) who subscribe to any exchange proprietary 
data feed must also have equivalent access to consolidated Options 
Information \36\ from OPRA for the same classes or series of options 
that are included in the proprietary data feed, and proprietary data 
feeds cannot be used to meet that particular requirement.\37\ As such, 
all proprietary data feeds are optional.
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    \36\ ``Consolidated Options Information'' means consolidated 
Last Sale Reports combined with either consolidated Quotation 
Information or the BBO furnished by OPRA. Access to consolidated 
Options Information is deemed ``equivalent'' if both kinds of 
information are equally accessible on the same terminal or work 
station. See Limited Liability Company Agreement of Options Price 
Reporting Authority, LLC (``OPRA Plan''), Section 5.2(c)(iii). The 
Exchange notes that this requirement under the OPRA Plan is also 
reiterated under the Cboe Global Markets Global Data Agreement and 
Cboe Global Markets North American Data Policies, which subscribers 
to any exchange proprietary product must sign and are subject to, 
respectively. Additionally, the Exchange's Data Order Form (used for 
requesting the Exchange's market data products) requires 
confirmation that the requesting market participant receives data 
from OPRA.
    \37\ Id.
---------------------------------------------------------------------------

    The Commission has repeatedly expressed its preference for 
competition over regulatory intervention in determining prices, 
products, and services in the securities markets. Particularly, 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.'' \38\ Making 
similar data products available to market participants fosters 
competition in the marketplace, and constrains the ability of exchanges 
to charge supracompetitive fees. In the event that a market participant 
views one exchange's data product as more or less attractive than the 
competition they can and do switch between similar products. The 
proposed fees are a result of the competitive environment, as the 
Exchange seeks to adopt fees to attract purchasers of Cboe Options Top 
Data and Cboe One Options Feed.
---------------------------------------------------------------------------

    \38\ See Securities Exchange Act Release No. 51808 (June 9, 
2005), 70 FR 37496, 37499 (June 29, 2005) (``Regulation NMS Adopting 
Release'').
---------------------------------------------------------------------------

    The Exchange has also taken into consideration its affiliated 
relationship with its Affiliates in its design of the Cboe One Options 
Feed to ensure that vendors would be able to offer a similar product on 
the same terms as the Exchange from a cost perspective. While the Cboe 
Options Exchanges are the exclusive distributors of the individual data 
feeds from which certain data elements may be taken to create the Cboe 
One Options Feed, they are not the exclusive distributors of the 
aggregated and consolidated information that comprises the Cboe One 
Options Feed. Any entity that receives, or elects to receive, the 
individual data feeds would be able to, if it so chooses, to create a 
data feed with the same information included in the Cboe One Options 
Feed and sell and distribute it to its clients so that it could be 
received by those clients as quickly as the Cboe One Options Feed would 
be received by those same clients with no greater cost than the 
Exchange.
    In addition, vendors and Distributors that do not wish to purchase 
the Cboe One Options Feed may separately purchase the individual 
underlying

[[Page 50255]]

products, and if they so choose, perform a similar aggregation and 
consolidation function that the Exchange performs in creating the Cboe 
One Options Feed. To enable such competition, the Exchange is offering 
the Cboe One Options Feed on terms that a vendor of those underlying 
feeds could offer a competing product if it so chooses.
    In addition, the fees that are the subject of this rule filing are 
constrained by competition. Particularly, the Exchange competes with 
other exchanges (and their affiliates) that may choose to offer similar 
market data products. If another exchange (or its affiliate) were to 
charge less to consolidate and distribute a similar product than the 
Exchange charges to consolidate and distribute the Cboe One Options 
Feed, prospective Users likely could choose to not subscribe to, or 
would cease subscribing to, the Cboe One Options Feed. In addition, the 
Exchange would compete with unaffiliated market data vendors who would 
be in a position to consolidate and distribute the same data that 
comprises the Cboe One Options Feed into the vendor's own comparable 
market data product. If the third-party vendor is able to provide the 
exact same data for a lower cost, prospective Users would avail 
themselves of that lower cost and elect not to take the Cboe One 
Options Feed.
    For these reasons, the Exchange believes that the proposed fees are 
reasonable, equitable, and not unfairly discriminatory.
    User Fees. The Exchange believes that the proposed Professional and 
Non-Professional User fees for the Cboe One Options Feed are reasonable 
because they represent the combined monthly fees for Professional and 
Non-Professional User fees, respectively for the underlying individual 
data feeds, which have previously been filed with the Commission. 
Combining the Professional and Non-Professional User fees, of each 
individual Top feed, respectively, further ensures vendors can compete 
with the Exchange by creating the same product as the Cboe One Options 
Feed to sell to their clients. The Exchange believes that the proposed 
fees are equitable and not unfairly discriminatory because they will be 
charged uniformly to Distributors. Moreover, the proposed fee structure 
of differentiated Professional and Non-Professional fees that are paid 
by both Internal and External Distributors has long been used by other 
exchanges, including the Exchange, for their proprietary data products, 
and by the OPRA plan in order to reduce the price of data to retail 
investors and make it more broadly available.\39\ The Exchange also 
believes offering Cboe One Options Feed to Non-Professional Users at a 
lower cost than Professional Users results in greater equity among data 
recipients, as Professional Users are categorized as such based on 
their employment and participation in financial markets, and thus, are 
compensated to participate in the markets. Although Non-Professional 
Users too can receive significant financial benefits through their 
participation in the markets, the Exchange believes it is reasonable to 
charge more to those Users who are more directly engaged in the 
markets.
---------------------------------------------------------------------------

    \39\ See, e.g., Securities Exchange Act Release No. 59544 (March 
9, 2009), 74 FR 11162 (March 16, 2009) (SR-NYSE-2008-131) 
(establishing the $15 Non-Professional User Fee (Per User) for NYSE 
OpenBook); See, e.g., Securities Exchange Act Release No. 67589 
(August 2, 2012), 77 FR 47459 (August 8, 2012) (revising OPRA's 
definition of the term ``Nonprofessional''); and See Securities 
Exchange Act Release No. 70683 (October 15, 2013), 78 FR 62798 
(October 22, 2013) (SR-CBOE-2013-087) (establishing Professional and 
Non-Professional User fees for Cboe Options COB Data Feed).
---------------------------------------------------------------------------

    Enterprise Fee. The Exchange believes the proposed Enterprise Fees 
for the Cboe One Options Feed and proposed changes to the Enterprise 
Fee for the Cboe Options Top feed are reasonable as the fees proposed 
could result in a fee reduction for Distributors of the respective 
products with a large number of Professional and Non-Professional 
Users. If a Distributor has a smaller number of Professional or Non-
Professional Users of the Cboe One Options Feed or Cboe Options Top 
Feed, then it may continue using the per User structure and benefit 
from the per User Fee reductions for each respective product. By 
reducing prices for Distributors with a large number of Professional 
and Non-Professional Users, the Exchange believes that more firms may 
choose to receive and to distribute the Cboe One Options Feed or Cboe 
Options Top feeds, thereby expanding the distribution of this market 
data for the benefit of investors. The Exchange believes it is 
reasonable, equitable and not unfairly discriminatory to assess 
incrementally higher fees for higher tiers, because such tier covers a 
higher number of users (and indeed for those in Tier 3, an unlimited 
number of users). The Exchange believes it's reasonable to require 
monthly reporting only for proposed Tiers 1 and 2 because such tiers 
cover a defined number of Users that need to be accounted for billing 
purposes, as compared to Tier 3 which covers unlimited Users. Also as 
described above, the Enterprise Fees are entirely optional. A firm that 
does not have a sufficient number of Users to benefit from purchase of 
a license, or purchase of a specific tier level, need not do so. The 
Exchange believes the proposed discount for an Annual license is also 
reasonable, equitable and not unfairly discriminatory as it provides 
Distributors an opportunity to be assessed lower fees and is available 
to any Distributor who chooses to make a one-year commitment via the 
Annual license. The Exchange believes the proposed 5% discount will 
attract Distributors to purchase and make available Cboe Options Top 
Data and Cboe One Options Feed for at least one year, thereby fostering 
and expanding the distribution of these market data products for the 
benefit of investors, and particularly retail investors. The Exchange 
lastly notes that the proposed Enterprise Fees for Cboe One Options and 
the proposed 5% discount for an Annual license equal the combined 
respective Enterprise Fees and discount, respectively, of each 
individual Top feed, thereby ensuring that vendors can compete with the 
Exchange by creating the same product as the Cboe One Options Feed to 
sell to their clients.
    Distributor Fees. The Exchange believes that the proposed 
Distributor fees for the Cboe One Options Feed are reasonable because 
they represent the combined monthly fees for Internal and External 
Distributor fees, respectively for the underlying individual data 
feeds, which have previously been filed with the Commission. The 
Exchange believes that the proposed fees are equitable and not unfairly 
discriminatory because they will be charged uniformly to Internal and 
External Distributors. The Exchange believes that it is also fair and 
equitable, and not unfairly discriminatory to charge different fees for 
internal and external distribution of the Cboe One Options Feed. 
Although the proposed distribution fee charged to External Distributors 
will be lower than the distribution fee charged to Internal 
Distributors, External Distributors are subject to Non-Professional 
user fees to which Internal Distributors are not subject, in addition 
to Professional User fees (or alternatively the proposed Enterprise 
Fee). The Exchange also notes that Cboe One Options Feed, like the 
underlying top-of-book feeds, are more likely to be distributed 
externally as such data is expected to be used more frequently by Non-
Professional Users who, by definition, do not receive the data for 
commercial purposes (e.g., retail investors) and are therefore not 
internal. The Exchange therefore believes that the proposed reduced fee

[[Page 50256]]

for External Distributors is reasonable because it may encourage more 
distributors to choose to offer the Cboe One Options, thereby expanding 
the distribution of this market data for the benefit of investors, and 
particularly retail investors.
    The proposed Distributor Fees for the Cboe One Options Feed are 
also designed to ensure that vendors could compete with the Exchange by 
creating a similar product as the Cboe One Options Feed. The Exchange 
believes that the proposed Distributor Fees are equitable and 
reasonable as they equal the combined fee of subscribing to each 
individual data feed of the Cboe Options Exchanges, which have been 
previously published by the Commission.
New External Distributor Credit
    In addition, the Exchange believes it is reasonable to not charge 
External Distributors of Cboe Options Top and Cboe One Options Feed a 
Distribution Fee during their first three (3) months because such 
Distributors will not be subject to any External Distribution fees for 
those months.\40\ Additionally, the Exchange's affiliated equities 
exchanges offer a similar credit for a similar market data product.\41\ 
The proposed credit is also intended to incentivize new External 
Distributors to enlist Users to subscribe to the Cboe Options Top or 
Cboe One Options Feed in an effort to broaden the products' 
distribution. While this incentive is not available to Internal 
Distributors of these products, the Exchange believes it is appropriate 
as Internal Distributors have no Users outside of their own firm. 
Furthermore, External Distributors are subject to higher risks of 
launch as the data is provided outside their own firm. For these 
reasons, the Exchange believes it is appropriate to provide this 
incentive so that External Distributors have sufficient time to test 
the data within their own systems prior to going live externally. The 
Exchange also does not believe this would inhibit a vendor from 
creating a competing product and offer a similar free period as the 
Exchange. Specifically, a vendor seeking to create the Cboe One Options 
Feed could do so by subscribing to the underlying individual data 
feeds, all of which will also include a New External Distributor Credit 
identical to that proposed for the Cboe One Options Feed. As a result, 
a competing vendor would incur similar costs as the Exchange in 
offering such free period for a competing product and may do so on the 
same terms as the Exchange.
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    \40\ As noted above, Distributors are additionally not assessed 
any Distribution fee during any trial usage period, under the 
existing Trial Usage period offered by the Exchange.
    \41\ See e.g., EDGX Equities Exchange Fees Schedule, Market Data 
Fees.
---------------------------------------------------------------------------

    Distributor Fee Credit. The Exchange believes the proposal to 
provide External Distributors a credit against their monthly External 
Distribution Fee equal to the amount of its monthly Usage Fee or 
Enterprise Fees, is reasonable as it could result in the External 
Distributor paying a discounted, or no, External Distribution fee.\42\ 
The Exchange notes that its affiliated equities exchanges offer a 
similar credit for a similar market data product.\43\ Further, in every 
case the Exchange will receive at least the amount of the External 
Distribution fee for Cboe Options Top or Cboe One Options, as 
applicable, in connection with the distribution of each respective feed 
(through a combination of the External Distribution Fee and per User 
Fees or Enterprise Fees, as applicable). The Exchange believes it is 
also equitable and not unfairly discriminatory to apply the credit to 
External Distributors only because, like the free-three month credit 
described above, it is also intended to incentivize new External 
Distributors to enlist Users, including Non-Profession Users such as 
retail investors, to subscribe to the Cboe Options Top or Cboe One 
Options Feed in an effort to broaden the products' distribution. While 
this incentive is not available to Internal Distributors of these 
products, the Exchange believes it is appropriate as Internal 
Distributors have no Users outside of their own firm. Furthermore, 
External Distributors are subject to higher risks of launch as the data 
is provided outside their own firm. For these reasons, the Exchange 
believes it is appropriate to provide this incentive to only External 
Distributors. The proposal to adopt a Distributor Fee Credit for Cboe 
One Options Feed in particular also ensures the proposed credit for 
Cboe One Options will not cause the combined cost of subscribing to 
Cboe Options, C2 Options, BZX Options and EDGX Options Top feeds for 
External Distributors to be greater than the amount that would be 
charged to subscribe to the Cboe One Options feed, thereby ensuring 
that vendors can compete with the Exchange by creating the same product 
as the Cboe One Options Feed (i.e., purchasing the underlying data 
feeds and aggregating the feeds themselves) to sell to their clients.
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    \42\ A Distributor that does not qualify to receive the New 
External Distributor Credit, does not need to wait three months to 
be eligible to receive the Distributor Fee Credit (i.e., the 
Distributor would be eligible to receive the credit immediately).
    \43\ See e.g., EDGX Equities Exchange Fees Schedule, Market Data 
Fees.
---------------------------------------------------------------------------

    The Exchange also believes updating Footnote 50 relating to Trial 
Usage avoids potential confusion as to whether new Users or 
Distributors would be entitled to any credits, including the proposed 
Distributor Fee Credit (and New External Distributor Credit), during 
the trial usage period. The Exchange believes its reasonable not to 
provide such credits as such new users are not paying assessed any fees 
during their trial period.
    Data Consolidation Fee. The Exchange believes that the proposed 
$500 per month Data Consolidation Fee charged to Distributors 
(including vendors) who receive the Cboe One Options Feed is reasonable 
because it represents the value of the data aggregation and 
consolidation function that the Exchange performs. The Exchange further 
believes the proposed Data Consolidation Fee is not designed to permit 
unfair discrimination because all Distributors who obtain the Cboe One 
Options Feed will be charged the same fee. Accordingly, the Exchange 
believes that Distributors could readily offer a product similar to the 
Cboe One Options Feed on a competitive basis at a similar cost. 
Therefore, the Exchange believes the proposed application of the Data 
Consolidation Fee is reasonable and would not permit unfair 
discrimination.

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

    The Exchange does not believe that the proposed rule change would 
result in any burden on competition that is not necessary or 
appropriate in furtherance of the purposes of the Act. The Exchange 
operates in a highly competitive environment, and its ability to price 
top-of-book data is constrained by competition among exchanges that 
offer similar data products to their customers. Top-of-book data is 
broadly disseminated by competing U.S. options exchanges. In this 
competitive environment potential Distributors are free to choose which 
competing product to purchase to satisfy their respective needs for 
market information. Often, the choice comes down to price, as market 
data participants look to purchase cheaper data products, and quality, 
as market participants seek to purchase data that represents 
significant market liquidity.
    The Exchange believes that the proposed fees do not impose a burden 
on competition or on other SROs that is not necessary or appropriate in 
furtherance of the purposes of the Act. In particular, market 
participants are not

[[Page 50257]]

forced to subscribe to Cboe Options Top, Cboe One Options Feed or any 
of the Exchange's data feeds, as described above. As noted, the quote 
and last sale data contained in the Exchange's Cboe Options Top feed is 
identical to the data sent to OPRA for redistribution to the public. 
Accordingly, Exchange top-of-book data is widely available today from a 
number of different sources.
    The Exchange believes that the proposed fees do not put any market 
participants at a relative disadvantage compared to other market 
participants. As discussed, the proposed waiver, credits and Enterprise 
Fees would apply to all similarly situated Distributors of Cboe Options 
Top on an equal and non-discriminatory basis. Because market data 
customers can find suitable substitute feeds, an exchange that 
overprices its market data products stands a high risk that users may 
substitute another product. These competitive pressures ensure that no 
one exchange's market data fees can impose an undue burden on 
competition, and the Exchange's proposed fees do not do so here.
    Additionally, the Cboe One Options Feed will enhance competition 
because it provides investors with an alternative option for receiving 
market data. Although the Cboe Options Exchanges are the exclusive 
distributors of the individual data feeds from which certain data 
elements would be taken to create the Cboe One Options Feed, the 
Exchange would not be the exclusive distributor of the aggregated and 
consolidated information that would compose the proposed Cboe One 
Options Feed. Any entity that receives, or elects to receive, the 
underlying data feeds would be able to, if it so chooses, to create a 
data feed with the same information included in the Cboe One Options 
Feed and sell and distribute it to its clients so that it could be 
received by those clients as quickly as the Cboe One Options Feed would 
be received by those same clients and at a similar cost.
    The proposed pricing the Exchange would charge for the Cboe One 
Options Feed compared to the cost of the individual data feeds from the 
Cboe Options Exchanges would enable a vendor to receive the underlying 
individual data feeds and offer a similar product on a competitive 
basis and with no greater cost than the Exchange. The pricing the 
Exchange proposes to charge for the Cboe One Options Feed is not lower 
than the cost to a vendor of receiving the underlying data feeds. 
Indeed, the proposed pricing equals the combined costs of the 
respective fees, and the proposed waivers are also being proposed for 
the underlying individual feeds as well, thereby enabling a vendor to 
receive the underlying data feeds and offer a similar product on a 
competitive basis and with no greater cost than the Exchange.
    The Exchange further believes that its proposed monthly Data 
Consolidation Fee would be pro-competitive because a vendor could 
create a competing product, perform a similar aggregating and 
consolidating function, and similarly charge for such service. The 
Exchange notes that a competing vendor might engage in a different 
analysis of assessing the cost of a competing product. For these 
reasons, the Exchange believes the proposed pricing, fee waiver and 
credit, would enable a vendor to create a competing product based on 
the individual data feeds and charge its clients a fee that it believes 
reflects the value of the aggregation and consolidation function that 
is competitive with Cboe One Options Feed pricing.
    In establishing the proposed fees, the Exchange considered the 
competitiveness of the market for proprietary data and all of the 
implications of that competition. The Exchange believes that it has 
considered all relevant factors and has not considered irrelevant 
factors in order to establish fair, reasonable, and not unreasonably 
discriminatory fees and an equitable allocation of fees among all 
users.

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

    The Exchange has not solicited, and does not intend to solicit, 
comments on this proposed rule change. The Exchange has not received 
any written comments from members or other interested parties.

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

    The foregoing rule change has become effective pursuant to section 
19(b)(3)(A) of the Act \44\ and paragraph (f) of Rule 19b-4 \45\ 
thereunder. At any time within 60 days of the filing of the proposed 
rule change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is necessary or 
appropriate in the public interest, for the protection of investors, or 
otherwise in furtherance of the purposes of the Act. If the Commission 
takes such action, the Commission will institute proceedings to 
determine whether the proposed rule change should be approved or 
disapproved.
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    \44\ 15 U.S.C. 78s(b)(3)(A).
    \45\ 17 CFR 240.19b-4(f).
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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-CBOE-2023-034 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-CBOE-2023-034. 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 
a.m. and 3 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-CBOE-2023-034 and should be 
submitted on or before August 22, 2023.


[[Page 50258]]


    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\46\
---------------------------------------------------------------------------

    \46\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-16247 Filed 7-31-23; 8:45 am]
BILLING CODE 8011-01-P

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