Notice2023-16988
Self-Regulatory Organizations; MIAX Emerald, LLC; Suspension of and Order Instituting Proceedings To Determine Whether To Approve or Disapprove Proposed Rule Change To Increase Fees for the ToM Market Data Product and Establish Fees for the cToM Market Data Product
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 9, 2023
Issuing agencies
Securities and Exchange Commission
Full Text
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<title>Federal Register, Volume 88 Issue 152 (Wednesday, August 9, 2023)</title>
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[Federal Register Volume 88, Number 152 (Wednesday, August 9, 2023)]
[Notices]
[Pages 53937-53941]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-16988]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-98051; File No. SR-EMERALD-2023-13]
Self-Regulatory Organizations; MIAX Emerald, LLC; Suspension of
and Order Instituting Proceedings To Determine Whether To Approve or
Disapprove Proposed Rule Change To Increase Fees for the ToM Market
Data Product and Establish Fees for the cToM Market Data Product
August 3, 2023.
I. Introduction
On June 7, 2023, MIAX Emerald, LLC (``MIAX Emerald'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission''), pursuant to section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act''),\1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change (File Number SR-EMERALD-2023-13) to increase fees
for the MIAX Emerald Top of Market (``ToM'') market data product and
establish fees for the MIAX Emerald Complex Top of Market (``cToM'')
market data product. The proposed rule change was immediately effective
upon filing with the Commission pursuant to section 19(b)(3)(A) of the
Act.\3\ The proposed rule change was published for comment in the
Federal Register on June 26, 2023.\4\ Pursuant to section 19(b)(3)(C)
of
[[Page 53938]]
the Act,\5\ the Commission is hereby: (1) temporarily suspending the
proposed rule change; and (2) instituting proceedings to determine
whether to approve or disapprove the proposed rule change.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ 15 U.S.C. 78s(b)(3)(A). A proposed rule change may take
effect upon filing with the Commission if it is designated by the
exchange as ``establishing or changing a due, fee, or other charge
imposed by the self-regulatory organization on any person, whether
or not the person is a member of the self-regulatory organization.''
15 U.S.C. 78s(b)(3)(A)(ii).
\4\ See Securities Exchange Act Release No. 97767 (June 20,
2023), 88 FR 41442 (``Notice'').
\5\ 15 U.S.C. 78s(b)(3)(C).
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II. Background and Description of the Proposed Rule Change
The Exchange proposes to increase fees for the ToM market data
product and establish fees for the cToM market data product.\6\
According to the Exchange, the ToM feed provides subscribers with top
of book quotations based on options orders and quotes entered into the
System \7\ and resting on the Exchange's Simple Order Book \8\ as well
as administrative messages.\9\ The cToM feed provides subscribers with
the same information as TOM as it relates to the Strategy Book \10\
(i.e., best bid and offer for a complex strategy, with aggregate size,
based on displayable orders in the complex strategy on the Exchange),
plus additional information specific to complex orders (i.e.,
identification of the complex strategies currently trading on the
Exchange, complex strategy last sale information, and the status of
securities underlying the complex strategy).\11\
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\6\ The Exchange initially filed the proposed fee change on
December 28, 2022, with an effective date of January 1, 2023. See
Securities Exchange Act Release No. 96625 (January 10, 2023), 88 FR
2688 (January 17, 2023) (SR-EMERALD-2022-37). That filing was
withdrawn by the Exchange and the Exchange filed new proposed fee
changes with additional justification (SR-EMERALD-2023-04) on
February 23, 2023. See Securities Exchange Act Release No. 97078
(March 8, 2023), 88 FR 15813 (March 14, 2023). The Exchange
subsequently withdrew that filing and replaced it with SR-EMERALD-
2023-10 on April 11, 2023. See Securities Exchange Act Release No.
97326 (April 19, 2023), 88 FR 25043 (April 25, 2023). The Exchange
subsequently withdrew that filing and replaced it with the instant
filing to provide additional information and a revised justification
for the proposal, which is discussed herein. See Notice, supra note
4, at 41442.
\7\ The term ``System'' means the automated trading system used
by the Exchange for the trading of Securities. See Exchange Rule
100.
\8\ The term ``Simple Order Book'' means ``the Exchange's
regular electronic book of orders and quotes.'' See Exchange Rule
518(a)(15).
\9\ See Notice, supra note 4, at 41443.
\10\ The ``Strategy Book'' is each Exchange's electronic book of
complex orders and complex quotes. See Exchange Rule 518(a)(17).
\11\ See Notice, supra note 4, at 41443. The Exchange states
that cToM is a distinct market data product from ToM. The Exchange
also states that ToM subscribers are not required to subscribe to
cToM, and that cToM subscribers are not required to subscribe to
ToM. See id. at 41443-44.
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The Exchange proposes to increase the fee for Internal Distributors
\12\ from $1,250 per month to $2,000 per month and External
Distributors \13\ from $1,750 per month to $3,000 per month for the ToM
data feed.\14\ The Exchange also proposes to assess a fee on Internal
Distributors of $2,000 per month and External Distributors of $3,000
per month for the cToM feed.\15\ The Exchange will assess the increased
ToM and new cToM fees on Internal and External Distributors in each
month the Distributor is credentialed to use ToM or cToM, and will
reduce such fees for new Distributors for the first month during which
they subscribe to ToM or cToM based on the number of trading days that
have been held during the month prior to the date on which that
subscriber has been credentialed to use ToM or cToM.\16\
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\12\ A ``Distributor'' of MIAX Emerald data is any entity that
receives a feed or file of data either directly from MIAX Emerald or
indirectly through another entity and then distributes it either
internally (within that entity) or externally (outside that entity).
See Fee Schedule, Section 6(a). All members or non-members that
determine to receive any market data feed from the Exchange, or its
affiliates, must first execute, among other things, the MIAX
Exchange Group Exchange Data Agreement (``Exchange Data
Agreement''). See Notice, supra note 4, at 41451. Pursuant to the
Exchange Data Agreement, ``Internal Distributors'' are restricted to
the ``internal use'' of any market data they receive, meaning they
may only distribute the Exchange's market data to their officers and
employees and their affiliates. See id.
\13\ ``External Distributors'' may distribute the Exchange's
market data to persons who are not their officers, employees, or
affiliates, and may charge their own fees for the distribution of
such market data. See id.
\14\ See Notice, supra note 4, at 41443.
\15\ See id. at 41444.
\16\ New cToM Distributors will be assessed a pro-rata
percentage of the fees described above, which is the percentage of
the number of trading days remaining in the affected calendar month
as of the date on which they have been credentialed to use cToM,
divided by the total number of trading days in the affected calendar
month. See id.
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III. Suspension of the Proposed Rule Changes
Pursuant to section 19(b)(3)(C) of the Act,\17\ at any time within
60 days of the date of filing of an immediately effective proposed rule
change pursuant to section 19(b)(1) of the Act,\18\ the Commission
summarily may temporarily suspend the change in the rules of a self-
regulatory organization (``SRO'') 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. The Commission believes a temporary suspension of the proposed
rule changes is necessary and appropriate to allow for additional
analysis of the proposed rule changes' consistency with the Act and the
rules thereunder.
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\17\ 15 U.S.C. 78s(b)(3)(C).
\18\ 15 U.S.C. 78s(b)(1).
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In support of the proposal, the Exchange states its belief that the
proposed fees overall are fair and reasonable as a form of ``cost
recovery plus the possibility of a reasonable return'' for the
Exchange's aggregate costs of offering the ToM and cToM data feeds.\19\
Specifically, the Exchange states the fees are based on a ``cost-plus
model'' used to determine a reasonable fee structure that is informed
by the Exchange's understanding of different use of products by
different types of participants.\20\ According to the Exchange,
employing a methodology that is the ``result of an extensive review and
analysis,'' it estimates the total projected annual cost of providing
the ToM and cToM data feeds to be $665,296.\21\ To arrive at these
figures, the Exchange states that it undertook a thorough internal
analysis of nearly every expense in the Exchange's general expense
ledger to determine whether each such expense related to the provision
of ToM and cToM data feeds, and, if such expense did so relate, what
portion (or percentage) of such expense supported the provision of ToM
and cToM data feeds.\22\ The Exchange states that it determined the
total cost for the Exchange and its affiliated markets for each cost
driver \23\ through a company-wide this process that included
discussions with senior management, Exchange department heads, and the
Finance Team.\24\ The Exchange further
[[Page 53939]]
states that it determined what portion of the cost allocated to the
Exchange pursuant to this methodology is to be allocated to each core
service, including the appropriate allocation to market data.\25\ The
Exchange states that through this allocation methodology, the Exchange
``applied an estimated allocation of each cost driver to each core
service'' and ``[e]ach of the [resulting] cost allocations is unique to
the Exchange and represents a percentage of overall cost that was
allocation to the Exchange pursuant to the initial allocation.'' \26\
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\19\ See id. 41450.
\20\ See id. at 41450. In addition, the Exchange states that the
proposed monthly cToM fees for Internal and External Distributors
are identical to the fees that the Exchange proposes to charge for
ToM. See id. at 41444. The Exchange also states that cToM was
provided free of charge for the past four years, since the cToM
market data product was established on the Exchange, the Exchange
absorbed all costs associated with compiling and disseminating cToM
during that time, and the Exchange now proposes to establish fees
for cToM to recoup its ongoing costs going forward. See id. at
41443.
\21\ See id. at 41446. The Exchange states that the Cost
Analysis is based on the Exchange's 2023 fiscal year of operations
and projections. See id. at 41449. The Exchange has calculated the
annual cost for producing ToM to subscribers to be $317,753, and
$347,543 for cToM. See id. at 41443.
\22\ See id. at 41446.
\23\ The Exchange defines ``cost drivers'' within the filing as
the costs necessary to deliver each of the core services, see infra
note 25, including infrastructure, software, human resources (i.e.,
personnel), and certain general and administrative expenses. See
Notice supra note 4, at 41445.
\24\ See id. at 41445. The Exchange states that because the
Exchange's parent company currently owns and operates four separate
and distinct marketplaces, the Exchange's parent company determines
the actual cost for each marketplace, which results in different
allocations and amounts across exchanges for the same cost drivers.
See id. According to the Exchange, its allocation methodology
ensures that no portion of any cost would be allocated twice or
double-counted between the Exchange and its affiliated markets. See
id.
\25\ See id. at 41446. The Exchange describes ``core services''
as services provided by the Exchange, including transactions, market
data, membership services, physical connectivity, and ports (which
provides order entry, cancellation and modification functionality,
risk functionality, ability to receive drop copies, and other
functionality). See id.
\26\ Id.
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The Exchange states that the $665,296 aggregate annual costs for
providing the ToM and cToM data feeds is the sum of to the following
individual line-item costs: (1) Human Resources at $354,553; (2)
Network Infrastructure (fiber connectivity) at $9,428; (3) Data Center
at $20,630; (4) Hardware and Software Maintenance and Licenses at
$22,202; (5) Depreciation at $21,167; and (6) Allocated Shared Expenses
at $237,316.\27\ The Exchange represents that it estimates that the
proposed fees will result in an annual revenue of approximately
$804,000, which is a potential profit margin of 17% over the cost of
providing ToM and cToM market data feeds.\28\
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\27\ See id. at 41446-47.
\28\ See id. at 41446, 41448.
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The Exchange states its belief that a 17% rate of return is
reasonable because it allows the Exchange to ``recoup all of its
expenses for providing the ToM and cToM data products'' and that any
additional revenue would represent no more than what the Exchange
believes to be a reasonable rate of return.\29\ In addition, the
Exchange states its belief that the proposed fees are reasonable
because they are generally less than the fees charged by competing
options exchanges for comparable market data products.\30\
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\29\ Id. at 41450. The Exchange also states that an
approximately 17% mark-up is fair and reasonable after taking into
account the costs related to creating, generating and disseminating
the ToM and cToM data feeds and the fact that the Exchange will need
to fund future expenditures. Id. at 41448.
\30\ Id. at 41450.
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In further support of the proposal, the Exchange states its belief
that the fees are reasonable, fair, and equitable, and not unfairly
discriminatory, because they are designed to align fees with services
provided, are allocated fairly and equitably among the various
categories of users of the feeds with any differences among categories
of users being justified and appropriate, and will apply uniformly to
all data recipients that choose to subscribe to the ToM and cToM data
feeds.\31\ Moreover, the Exchange asserts that it is reasonable,
equitable, and not unfairly discriminatory to assess Internal
Distributors fees that are lower than the fees assessed for External
Distributors for subscriptions to the ToM and cToM data feeds because
Internal Distributors have limited, restricted usage rights to the
market data, as compared to External Distributors, which have more
expansive usage rights, including rights to commercialize such market
data.\32\
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\31\ See id.
\32\ See id. at 41451. In addition, the Exchange argues that it
utilizes more resources to support External Distributors as compared
to Internal Distributors, as External Distributors have reporting
and monitoring obligations that Internal Distributors do not have,
thus requiring additional time and effort of the Exchange's staff.
See id.
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Finally, the Exchange asserts that the proposed fees would not
cause any unnecessary or inappropriate burden on inter-market
competition because other exchanges already have similar market data
fees and they are free to adopt comparable fee structures subject to
the Commission's rule filing process.\33\ Furthermore, the Exchange
asserts that the allowing the Exchange, or any new market entrant, to
waive fees for a period of time to allow it to become established, such
as the Exchange did with cToM, will encourage market entry and thus
ultimately promote competition.\34\ The Exchange also asserts that the
proposed rule change would not cause any unnecessary or inappropriate
burden on intra-market competition because the proposed fees are
associated with the usage of the data feed by each market participant
based on whether the market participant internally and externally
distributes the Exchange data.\35\
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\33\ See id. at 41452.
\34\ See id.
\35\ See id.
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To date, the Commission has not received any comment letters on the
revised justifications for the increase in ToM market data fees or the
establishment of the cToM market data fees.
When exchanges file their proposed rule changes with the
Commission, including fee filings like the Exchange's present proposal,
they are required to provide a statement supporting the proposal's
basis under the Act and the rules and regulations thereunder applicable
to the exchange.\36\ The instructions to Form 19b-4, on which exchanges
file their proposed rule changes, specify that such statement ``should
be sufficiently detailed and specific to support a finding that the
proposed rule change is consistent with [those] requirements.'' \37\
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\36\ See 17 CFR 240.19b-4 (Item 3 entitled ``Self-Regulatory
Organization's Statement of the Purpose of, and Statutory Basis for,
the Proposed Rule Change'').
\37\ See id.
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Section 6 of the Act, including sections 6(b)(4), (5), and (8),
require the rules of an exchange to: (1) provide for the equitable
allocation of reasonable fees among members, issuers, and other persons
using the exchange's facilities; \38\ (2) perfect the mechanism of a
free and open market and a national market system, protect investors
and the public interest, and not be designed to permit unfair
discrimination between customers, issuers, brokers, or dealers; \39\
and (3) not impose any burden on competition not necessary or
appropriate in furtherance of the purposes of the Act.\40\
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\38\ 15 U.S.C. 78f(b)(4).
\39\ 15 U.S.C. 78f(b)(5).
\40\ 15 U.S.C. 78f(b)(8).
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In temporarily suspending the Exchange's proposed rule change, the
Commission intends to further consider whether the proposal to increase
fees for the ToM market data feeds and establish fees for the cToM
market data feeds are consistent with the statutory requirements
applicable to a national securities exchange under the Act. In
particular, the Commission will consider whether the proposed rule
change satisfies the standards under the Act and the rules thereunder
requiring, among other things, that an exchange's rules provide for the
equitable allocation of reasonable fees among members, issuers, and
other persons using its facilities; not permit unfair discrimination
between customers, issuers, brokers or dealers; and do not impose any
burden on competition not necessary or appropriate in furtherance of
the purposes of the Act.\41\
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\41\ See 15 U.S.C. 78f(b)(4), (5), and (8), respectively.
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Therefore, the Commission finds that it is appropriate in the
public interest, for the protection of investors, and otherwise in
furtherance of the purposes of the Act, to temporarily suspend the
proposed rule change.\42\
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\42\ For purposes of temporarily suspending the proposed rule
change, the Commission has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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[[Page 53940]]
IV. Proceedings To Determine Whether To Approve or Disapprove the
Proposed Rule Changes
In addition to temporarily suspending the proposal, the Commission
also hereby institutes proceedings pursuant to sections 19(b)(3)(C)
\43\ and 19(b)(2)(B)of the Act \44\ to determine whether the Exchange's
proposed rule change should be approved or disapproved. Institution of
proceedings does not indicate that the Commission has reached any
conclusions with respect to any of the issues involved. Rather, the
Commission seeks and encourages interested persons to provide
additional comment on the proposed rule change to inform the
Commission's analysis of whether to approve or disapprove the proposed
rule change.
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\43\ 15 U.S.C. 78s(b)(3)(C). Once the Commission temporarily
suspends a proposed rule change, section 19(b)(3)(C) of the Act
requires that the Commission institute proceedings under section
19(b)(2)(B) to determine whether a proposed rule change should be
approved or disapproved.
\44\ 15 U.S.C. 78s(b)(2)(B).
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Pursuant to section 19(b)(2)(B) of the Act,\45\ the Commission is
providing notice of the grounds for possible disapproval under
consideration:
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\45\ Id. Section 19(b)(2)(B) of the Act also provides that
proceedings to determine whether to disapprove a proposed rule
change must be concluded within 180 days of the date of publication
of notice of the filing of the proposed rule change. See id. The
time for conclusion of the proceedings may be extended for up to 60
days if the Commission finds good cause for such extension and
publishes its reasons for so finding, or if the exchange consents to
the longer period. See id.
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<bullet> Whether the Exchange has demonstrated how the proposed
fees are consistent with section 6(b)(4) of the Act, which requires
that the rules of a national securities exchange ``provide for the
equitable allocation of reasonable dues, fees, and other charges among
its members and issuers and other persons using its facilities''; \46\
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\46\ 15 U.S.C. 78f(b)(4).
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<bullet> Whether the Exchange has demonstrated how the proposed
fees are consistent with section 6(b)(5) of the Act, which requires,
among other things, that the rules of a national securities exchange
not be ``designed to permit unfair discrimination between customers,
issuers, brokers, or dealers''; \47\ and
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\47\ 15 U.S.C. 78f(b)(5).
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<bullet> Whether the Exchange has demonstrated how the proposed
fees are consistent with section 6(b)(8) of the Act, which requires
that the rules of a national securities exchange ``not impose any
burden on competition not necessary or appropriate in furtherance of
the purposes of [the Act].'' \48\
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\48\ 15 U.S.C. 78f(b)(8).
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As discussed in section III above, the Exchange made various
arguments in support of their proposal. The Commission believes that
there are questions as to whether the Exchange has provided sufficient
information to demonstrate that the proposed fees are consistent with
the Act and the rules thereunder.
Under the Commission's Rules of Practice, the ``burden to
demonstrate that a proposed rule change is consistent with the [Act]
and the rules and regulations issued thereunder . . . is on the [SRO]
that proposed the rule change.'' \49\ The description of a proposed
rule change, its purpose and operation, its effect, and a legal
analysis of its consistency with applicable requirements must all be
sufficiently detailed and specific to support an affirmative Commission
finding,\50\ and any failure of an SRO to provide this information may
result in the Commission not having a sufficient basis to make an
affirmative finding that a proposed rule change is consistent with the
Act and the applicable rules and regulations.\51\
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\49\ 17 CFR 201.700(b)(3).
\50\ See id.
\51\ See id.
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The Commission is instituting proceedings to allow for additional
consideration and comment on the issues raised herein, including as to
whether the proposed fees are consistent with the Act, and
specifically, with its requirements that exchange fees be reasonable
and equitably allocated, not be unfairly discriminatory, and not impose
any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act.\52\
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\52\ See 15 U.S.C. 78f(b)(4), (5), and (8).
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V. Commission's Solicitation of Comments
The Commission requests written views, data, and arguments with
respect to the concerns identified above as well as any other relevant
concerns. Such comments should be submitted by August 30, 2023.
Rebuttal comments should be submitted by September 13, 2023. Although
there do not appear to be any issues relevant to approval or
disapproval that would be facilitated by an oral presentation of views,
data, and arguments, the Commission will consider, pursuant to Rule
19b-4, any request for an opportunity to make an oral presentation.\53\
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\53\ 15 U.S.C. 78s(b)(2). Section 19(b)(2) of the Act grants the
Commission flexibility to determine what type of proceeding--either
oral or notice and opportunity for written comments--is appropriate
for consideration of a particular proposal by an SRO. See Securities
Acts Amendments of 1975, Report of the Senate Committee on Banking,
Housing and Urban Affairs to Accompany S. 249, S. Rep. No. 75, 94th
Cong., 1st Sess. 30 (1975).
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The Commission asks that commenters address the sufficiency and
merit of the Exchange's statements in support of the proposal, in
addition to any other comments they may wish to submit about the
proposed rule changes.
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
<bullet> Use the Commission's internet comment form (<a href="https://www.sec.gov/rules/sro.shtml">https://www.sec.gov/rules/sro.shtml</a>); or
<bullet> Send an email to <a href="/cdn-cgi/l/email-protection#552720393078363a3838303b2126152630367b323a23"><span class="__cf_email__" data-cfemail="5321263f367e303c3e3e363d2720132036307d343c25">[email protected]</span></a>. Please include
file number
SR-EMERALD-2023-13 on the subject line.
Paper Comments
<bullet> Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
All submissions should refer to file number SR-EMERALD-2023-13. 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 (<a href="https://www.sec.gov/rules/sro.shtml">https://www.sec.gov/rules/sro.shtml</a>). 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
[[Page 53941]]
withhold entirely from publication submitted material that is obscene
or subject to copyright protection. All submissions should refer to
file number SR-EMERALD-2023-13 and should be submitted on or before
August 30, 2023. Rebuttal comments should be submitted by September 13,
2023.
VI. Conclusion
It is therefore ordered, pursuant to section 19(b)(3)(C) of the
Act,\54\ that File No. SR-EMERALD-2023-13, be and hereby is,
temporarily suspended. In addition, the Commission is instituting
proceedings to determine whether the proposed rule change should be
approved or disapproved.
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\54\ 15 U.S.C. 78s(b)(3)(C).
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\55\
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\55\ 17 CFR 200.30-3(a)(57).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-16988 Filed 8-8-23; 8:45 am]
BILLING CODE 8011-01-P
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