Notice2023-26189
Self-Regulatory Organizations; Cboe EDGA Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Its Fee Schedule
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Published
November 28, 2023
Issuing agencies
Securities and Exchange Commission
Full Text
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<title>Federal Register, Volume 88 Issue 227 (Tuesday, November 28, 2023)</title>
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[Federal Register Volume 88, Number 227 (Tuesday, November 28, 2023)]
[Notices]
[Pages 83176-83179]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-26189]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-99012; File No. SR-CboeEDGA-2023-020]
Self-Regulatory Organizations; Cboe EDGA Exchange, Inc.; Notice
of Filing and Immediate Effectiveness of a Proposed Rule Change To
Amend Its Fee Schedule
November 22, 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 November 10, 2023, Cboe EDGA Exchange, Inc. (the ``Exchange'' or
``EDGA'') 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 EDGA Exchange, Inc. (the ``Exchange'') proposes to amend its
Fee Schedule. The text of the proposed rule change is provided in
Exhibit 5.
The text of the proposed rule change is also available on the
Exchange's website (<a href="http://markets.cboe.com/us/equities/regulation/rule_filings/edga/">http://markets.cboe.com/us/equities/regulation/rule_filings/edga/</a>), at the Exchange's Office of the Secretary, and at
the Commission's Public Reference Room.
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant aspects of such
statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
1. Purpose
The Exchange proposes to amend its Fee Schedule applicable to its
equities trading platform (``EDGA Equities'') by modifying its Add/
Remove Volume Tiers. The Exchange proposes to implement these changes
effective November 1, 2023.\3\
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\3\ The Exchange initially filed the proposed fee change on
November 1, 2023 (SR-CboeEDGA-2023-019). On November 10, 2023, the
Exchange withdrew that filing and submitted this proposal.
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The Exchange first notes that it operates in a highly competitive
market in which market participants can readily direct order flow to
competing venues if they deem fee levels at a particular venue to be
excessive or incentives to be insufficient. More specifically, the
Exchange is only one of 16 registered equities exchanges, as well as a
number of alternative trading systems and other off-exchange venues
that do not have similar self-regulatory responsibilities under the
Securities Exchange Act of 1934 (the ``Act''), to which market
participants may direct their order flow. Based on publicly available
information,\4\ no single registered equities exchange has more than
17% of the market share. Thus, in such a low-concentrated and highly
competitive market, no single equities exchange possesses significant
pricing power in the execution of order flow. The Exchange in
particular operates a ``Taker-Maker'' model whereby it pays credits to
members that remove liquidity and assesses fees to those that add
liquidity. The Exchange's Fee Schedule sets forth the standard rebates
and rates applied per share for orders that remove and provide
liquidity, respectively. Currently, for orders in securities priced at
or above $1.00, the Exchange provides a standard rebate of $0.00160 per
share for orders that remove liquidity and assesses a fee of $0.0030
per share for orders that add liquidity.\5\ For orders in securities
priced below $1.00, the Exchange does not assess any fees or provide
any rebates for orders that add or remove liquidity.\6\ Additionally,
in response to the competitive environment, the Exchange also offers
tiered pricing which provides Members opportunities to qualify for
higher rebates or reduced fees where certain volume criteria and
thresholds are met. Tiered pricing provides an incremental incentive
for Members to strive for higher tier levels, which provides
increasingly higher benefits or discounts for satisfying increasingly
more stringent criteria.
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\4\ See Cboe Global Markets, U.S. Equities Market Volume
Summary, Month-to-Date (October 27, 2023), available at <a href="https://www.cboe.com/us/equities/market_statistics/">https://www.cboe.com/us/equities/market_statistics/</a>.
\5\ See EDGA Equities Fee Schedule, Standard Rates.
\6\ Id.
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Add/Remove Volume Tiers
Under footnote 7 of the Fee Schedule, the Exchange currently offers
various Add/Remove Volume Tiers. In particular, the Exchange offers
three Add Volume Tiers that each assess a reduced fee for Members'
qualifying orders yielding fee codes 3,\7\ 4,\8\ B,\9\ V,\10\ and
Y,\11\ where a Member reaches certain add volume-based criteria. The
Exchange is proposing to introduce a new Add Volume Tier 4. The
proposed criteria is as follows:
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\7\ Fee code 3 is appended to orders that add liquidity to EDGA
in Tape A or Tape C securities during the pre and post market.
\8\ Fee code 4 is appended to orders that add liquidity to EDGA
in Tape B securities during the pre and post market.
\9\ Fee code B is appended to orders that add liquidity to EDGA
in Tape B securities.
\10\ Fee code V is appended to orders that add liquidity to EDGA
in Tape A securities.
\11\ Fee code Y is appended to orders that add liquidity to EDGA
in Tape C securities.
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[[Page 83177]]
<bullet> Proposed Tier 4 assesses a reduced fee of $0.0014 per
share for securities priced at or above $1.00 to qualifying orders
(i.e., orders yielding fee codes 3, 4, B, V, or Y) where a Member adds
or removes an ADV \12\ >=0.90% of the TCV.\13\
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\12\ ``ADV'' means average daily volume calculated as the number
of shares added to, removed from, or routed by, the Exchange, or any
combination or subset thereof, per day. ADV is calculated on a
monthly basis.
\13\ ``TCV'' means total consolidated volume calculated as the
volume reported by all exchanges and trade reporting facilities to a
consolidated transaction reporting plan for the month for which the
fees apply.
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The Exchange believes that proposed Add Volume Tier 4 will
incentivize Members to add volume to and remove volume from the
Exchange, thereby contributing to a deeper and more liquid market,
which benefits all market participants and provides greater execution
opportunities on the Exchange. The Exchange further believes the
proposed reduced fee associated with proposed Add Volume Tier 4
provides a fee commensurate with the difficulty of meeting the criteria
associated with the tier.
In addition to the Add Volume Tiers offered under footnote 7, the
Exchange also offers three Remove Volume Tiers that each provide an
enhanced rebate for Members' qualifying orders yielding fee codes
N,\14\ W,\15\ 6 \16\ and BB,\17\ where a Member reaches certain remove
volume-based criteria. Currently Members who satisfy the criteria of
Remove Volume Tier 2 receive an enhanced rebate of $0.0022 per share
for securities priced at or above $1.00. The Exchange now proposed to
revise the enhanced rebate associated with Remove Volume Tier 2. As
proposed, Members who satisfy the criteria of Remove Volume Tier 2 will
receive an enhanced rebate of $0.0020 per share for securities priced
at or above $1.00. The purpose of reducing the enhanced rebate
associated with Remove Volume Tier 2 is for business and competitive
reasons, as the Exchange believes that reducing such rebate as proposed
would decrease the Exchange's expenditures with respect to transaction
pricing in a manner that is still consistent with the Exchange's
overall pricing philosophy of encouraging added liquidity. The Exchange
notes that despite the modest decrease in the enhanced rebate
associated with Remove Volume Tier 2, the enhanced rebate remains
competitive and continues to be in-line with the enhanced rebate
provided under Remove Volume Tier 1 and Remove Volume Tier 3 (discussed
infra).
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\14\ Fee code N is appended to orders that remove liquidity from
EDGA in Tape C securities.
\15\ Fee code W is appended to orders that remove liquidity from
EDGA in Tape A securities.
\16\ Fee code 6 is appended to orders that remove liquidity from
EDGA in all tapes in the pre and post market.
\17\ Fee code BB is appended to orders that remove liquidity
from EDGA in Tape B securities.
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Additionally, the Exchange proposes to amend Remove Volume Tier 3.
Currently, the criteria for Remove Volume Tier 3 is as follows:
<bullet> Remove Volume Tier 3 provides an enhanced rebate of
$0.0024 per share for securities priced at or above $1.00 to qualifying
orders (i.e., orders yielding fee codes N, W, 6, or BB) where (1)
Member adds or removes a Step-Up ADV from May 2021 >=0.05% of the TCV
or Member adds or removes a Step-Up ADV from May 2021 >=3,000,000
shares; and (2) Member adds an ADV >=0.05% or Member adds an ADV
>=3,000,000 shares.
The proposed criteria for Remove Volume Tier 3 is as follows:
<bullet> Proposed Remove Volume Tier 3 provides an enhanced rebate
of $0.0022 per share for securities priced at or above $1.00 to
qualifying orders (i.e., orders yielding fee codes N, W, 6, or BB)
where a Member adds or removes an ADV >=0.25% of the TCV.
The proposed criteria is less stringent than the current criteria
as the proposed criteria does not have a Step-Up ADV component. The
Exchange believes that proposed Remove Volume Tier 3 will incentivize
Members to add volume to and remove volume from the Exchange, thereby
contributing to a deeper and more liquid market, which benefits all
market participants and provides greater execution opportunities on the
Exchange. While the proposed rebate under Remove Volume Tier 3 is less
than the current rebate provided under such tier, the Exchange believes
the proposed enhanced rebate associated with proposed Remove Volume
Tier 3 provides a rebate commensurate with the difficulty of meeting
the criteria associated with the tier and is in-line with the enhanced
rebates provided under Remove Volume Tiers 1 and 2.
2. Statutory Basis
The Exchange believes the proposed rule change is consistent with
the Act and the rules and regulations thereunder applicable to the
Exchange and, in particular, the requirements of section 6(b) of the
Act.\18\ Specifically, the Exchange believes the proposed rule change
is consistent with the section 6(b)(5) \19\ 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) \20\ requirement that the rules of
an exchange not be designed to permit unfair discrimination between
customers, issuers, brokers, or dealers as well as section 6(b)(4) \21\
as it is designed to provide for the equitable allocation of reasonable
dues, fees and other charges among its Members and other persons using
its facilities.
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\18\ 15 U.S.C. 78f(b).
\19\ 15 U.S.C. 78f(b)(5).
\20\ Id.
\21\ 15 U.S.C. 78f(b)(4).
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As described above, the Exchange operates in a highly competitive
market in which market participants can readily direct order flow to
competing venues if they deem fee levels at a particular venue to be
excessive or incentives to be insufficient. The Exchange believes that
its proposal to introduce Add Volume Tier 4, reduce the rebate provided
under Remove Volume Tier 2, and modify Remove Volume Tier 3 reflects a
competitive pricing structure designed to incentivize market
participants to direct their order flow to the Exchange, which the
Exchange believes would enhance market quality to the benefit of all
Members. Additionally, the Exchange notes that relative volume-based
incentives and discounts have been widely adopted by exchanges,\22\
including the Exchange,\23\ and are reasonable, equitable and non-
discriminatory because they are open to all Members on an equal basis
and provide additional benefits or discounts that are reasonably
related to (i) the value to an exchange's market quality and (ii)
associated higher levels of market activity, such as higher levels of
liquidity provision and/or growth patterns. Competing equity exchanges
offer similar tiered pricing structures, including schedules of rebates
and fees that apply based upon members achieving certain volume and/or
growth thresholds, as well as assess similar fees or rebates for
similar types of orders, to that of the Exchange.
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\22\ See e.g., BYX Equities Fee Schedule, Footnote 1, Add/Remove
Volume Tiers.
\23\ See e.g., EDGA Equities Fee Schedule, Fee Codes 3 and 6.
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[[Page 83178]]
In particular, the Exchange believes its proposal to introduce Add
Volume Tier 4 and modify Remove Volume Tiers 2 and 3 is reasonable
because the tiers will be available to all Members and provide all
Members with an additional opportunity to receive a reduced fee or an
enhanced rebate. The Exchange further believes that despite any
proposed reduced rebates, the proposed Add Volume Tier 4 and modified
Remove Volume Tiers 2 and 3 will provide a reasonable means to
encourage adding and/or removing displayed orders in Members' order
flow to the Exchange and to incentivize Members to continue to provide
volume to the Exchange by offering them an additional opportunity to
receive a reduced fee or an enhanced rebate on qualifying orders. An
overall increase in activity would deepen the Exchange's liquidity
pool, offers additional cost savings, support the quality of price
discovery, promote market transparency and improve market quality, for
all investors.
In addition, the Exchange believes that its proposal to lower the
enhanced rebate paid to Members that satisfy the criteria of Remove
Volume Tier 2 is reasonable, equitable, and consistent with the Act
because such change is designed to decrease the Exchange's expenditures
with respect to transaction pricing in order to offset some of the
costs associated with the Exchange's current pricing structure, which
provides various rebates for liquidity-removing orders, and the
Exchange's operations generally, in a manner that is consistent with
the Exchange's overall pricing philosophy of encouraging added
liquidity. The proposed lower enhanced rebate ($0.0020 per share) is
reasonable and appropriate because it represents only a modest decrease
from the current enhanced rebate ($0.0022 per share) and remains
competitive with the reduced fees offered under Remove Volume Tier 1
and proposed Remove Volume Tier 3. The Exchange further believes that
the proposed decrease to the enhanced rebate associated with Remove
Volume Tier 2 is not unfairly discriminatory because it applies to all
Members equally, in that all Members will receive the reduced fee upon
satisfying the criteria of Remove Volume Tier 2.
Similarly, the Exchange believes its proposal to lower the enhanced
rebate to Members that satisfy the criteria of Remove Volume Tier 3 is
reasonable, equitable, and consistent with the Act because such is
commensurate with the new proposed criteria. As noted above, the
proposed criteria under Remove Volume Tier 3 is less stringent than the
existing criteria as there is no Step-Up ADV component. The Exchange
further believes that the proposed decrease to the enhanced rebate
associated with Remove Volume Tier 3 is not unfairly discriminatory
because it applies to all Members equally, in that all Members will
receive the reduced fee upon satisfying the criteria of Remove Volume
Tier 3.
The Exchange believes the proposed Add Volume Tier 4 and the
proposed modified Remove Volume Tier 3 are reasonable as they do not
represent a significant departure from the criteria currently offered
in the Fee Schedule. The Exchange also believes that the proposal
represents an equitable allocation of fees and rebates and is not
unfairly discriminatory because all Members will be eligible for the
new and revised tiers and have the opportunity to meet the tiers'
criteria and receive the corresponding reduced fee or enhanced rebate
if such criteria are met. Without having a view of activity on other
markets and off-exchange venues, the Exchange has no way of knowing
whether these proposed rule changes would definitely result in any
Members qualifying for the new proposed tiers. While the Exchange has
no way of predicting with certainty how the proposed changes will
impact Member activity, based on the prior months volume, the Exchange
anticipates that at least one Member will be able to satisfy proposed
Add Volume Tier 4, and at least five Members will be able to satisfy
proposed Remove Volume Tier 3. The Exchange also notes that the
proposed changes will not adversely impact any Member's ability to
qualify for reduced fees or enhanced rebates offered under other tiers.
Should a Member not meet the proposed new criteria, the Member will
merely not receive that corresponding enhanced rebate or reduced fee.
B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act. Rather, as discussed above,
the Exchange believes that the proposed changes would encourage the
submission of additional order flow to a public exchange, thereby
promoting market depth, execution incentives and enhanced execution
opportunities, as well as price discovery and transparency for all
Members. As a result, the Exchange believes that the proposed changes
further the Commission's goal in adopting Regulation NMS of fostering
competition among orders, which promotes ``more efficient pricing of
individual stocks for all types of orders, large and small.''
The Exchange believes the proposed rule changes do not impose any
burden on intramarket competition that is not necessary or appropriate
in furtherance of the purposes of the Act. Particularly, the proposed
introduction of Add Volume Tier 4 and the proposed changes to Remove
Volume Tiers 2 and 3 will apply to all Members equally in that all
Members are eligible for each of the Tiers, have a reasonable
opportunity to meet the Tiers' criteria and will receive the reduced
fee or enhanced rebate on their qualifying orders if such criteria are
met. The Exchange does not believe the proposed changes burden
competition, but rather, enhance competition. Despite any proposed
reduced rebate, the Exchange's fee structure is intended to increase
the competitiveness of EDGA by adopting a new pricing incentive and
amending existing pricing incentives in order to attract order flow and
incentivize participants to increase their participation on the
Exchange, providing for additional execution opportunities for market
participants and improved price transparency. Greater overall order
flow, trading opportunities, and pricing transparency benefits all
market participants on the Exchange by enhancing market quality and
continuing to encourage Members to send orders, thereby contributing
towards a robust and well-balanced market ecosystem.
Next, the Exchange believes the proposed rule changes does not
impose any burden on intermarket competition that is not necessary or
appropriate in furtherance of the purposes of the Act. As previously
discussed, the Exchange operates in a highly competitive market.
Members have numerous alternative venues that they may participate on
and direct their order flow, including other equities exchanges, off-
exchange venues, and alternative trading systems. Additionally, the
Exchange represents a small percentage of the overall market. Based on
publicly available information, no single equities exchange has more
than 17% of the market share.\24\ Therefore, no exchange possesses
significant pricing power in the execution of order flow. Indeed,
participants can readily choose to send their orders to other exchange
and off-exchange venues if they deem fee levels at those other venues
to be more favorable. Moreover, the Commission has repeatedly expressed
its preference
[[Page 83179]]
for competition over regulatory intervention in determining prices,
products, and services in the securities markets. Specifically, in
Regulation NMS, the Commission highlighted the importance of market
forces in determining prices and SRO revenues and, also, recognized
that current regulation of the market system ``has been remarkably
successful in promoting market competition in its broader forms that
are most important to investors and listed companies.'' \25\ The fact
that this market is competitive has also long been recognized by the
courts. In NetCoalition v. Securities and Exchange Commission, the D.C.
Circuit stated as follows: ``[n]o one disputes that competition for
order flow is `fierce.' . . . As the SEC explained, `[i]n the U.S.
national market system, buyers and sellers of securities, and the
broker-dealers that act as their order-routing agents, have a wide
range of choices of where to route orders for execution'; [and] `no
exchange can afford to take its market share percentages for granted'
because `no exchange possesses a monopoly, regulatory or otherwise, in
the execution of order flow from broker dealers.' . . .''.\26\
Accordingly, the Exchange does not believe its proposed fee change
imposes any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act.
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\24\ Supra note 3 [sic].
\25\ See Securities Exchange Act Release No. 51808 (June 9,
2005), 70 FR 37496, 37499 (June 29, 2005).
\26\ NetCoalition v. SEC, 615 F.3d 525, 539 (D.C. Cir. 2010)
(quoting Securities Exchange Act Release No. 59039 (December 2,
2008), 73 FR 74770, 74782-83 (December 9, 2008) (SR-NYSEArca-2006-
21)).
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C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
The Exchange neither solicited nor received comments on the
proposed rule change.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
The foregoing rule change has become effective pursuant to section
19(b)(3)(A) of the Act \27\ and paragraph (f) of Rule 19b-4 \28\
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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\27\ 15 U.S.C. 78s(b)(3)(A).
\28\ 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
<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#dfadaab3baf2bcb0b2b2bab1abac9facbabcf1b8b0a9"><span class="__cf_email__" data-cfemail="0e7c7b626b236d6163636b607a7d4e7d6b6d20696178">[email protected]</span></a>. Please include
file number SR-CboeEDGA-2023-020 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-CboeEDGA-2023-020. 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 withhold entirely from publication submitted
material that is obscene or subject to copyright protection. All
submissions should refer to file number SR-CboeEDGA-2023-020 and should
be submitted on or before December 19, 2023.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\29\
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\29\ 17 CFR 200.30-3(a)(12).
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Christina Z. Milnor,
Assistant Secretary.
[FR Doc. 2023-26189 Filed 11-27-23; 8:45 am]
BILLING CODE 8011-01-P
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