Notice2023-26263
Self-Regulatory Organizations; MEMX LLC; Suspension of and Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change To Amend Its Fee Schedule To Establish an Options Regulatory Fee
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
November 30, 2023
Issuing agencies
Securities and Exchange Commission
Full Text
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<title>Federal Register, Volume 88 Issue 229 (Thursday, November 30, 2023)</title>
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[Federal Register Volume 88, Number 229 (Thursday, November 30, 2023)]
[Notices]
[Pages 83590-83594]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-26263]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-99017; File No. SR-MEMX-2023-25]
Self-Regulatory Organizations; MEMX LLC; Suspension of and Order
Instituting Proceedings To Determine Whether To Approve or Disapprove a
Proposed Rule Change To Amend Its Fee Schedule To Establish an Options
Regulatory Fee
November 24, 2023.
I. Introduction
On September 27, 2023, MEMX LLC (``MEMX'' or the ``Exchange'')
filed with the Securities and Exchange Commission (the ``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-MEMX-2023-25) to adopt an Options Regulatory Fee
(``ORF'').\3\ The proposed rule change was immediately effective upon
filing with the Commission pursuant to section 19(b)(3)(A) of the
Act.\4\ The proposed rule change was published for comment in the
Federal Register on October 4, 2023.\5\
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ See Securities Exchange Act Release No. 98585 (September 28,
2023), 88 FR 68692 (October 4, 2023) (``Notice'').
\4\ 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).
\5\ See Notice, supra note 3.
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Pursuant to section 19(b)(3)(C) of the Act,\6\ the Commission is
hereby: (1) temporarily suspending file number SR-MEMX-2023-25; and (2)
instituting proceedings to determine whether to approve or disapprove
file number SR-MEMX-2023-25.
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\6\ 15 U.S.C. 78s(b)(3)(C).
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II. Description of the Proposed Rule Change
The Exchange proposes to establish an ORF in the amount of $0.0015
per contract side.\7\ The per-contract ORF will be collected by the
Options Clearing Corporation (``OCC'') on behalf of the Exchange for
each options transaction, cleared or ultimately cleared by an Exchange
member in the ``customer'' range, regardless of the exchange on which
the transaction occurs. The ORF is collected from either: (1) a Member
that was the ultimate clearing firm for the transaction; or (2) a non-
Member that was the ultimate clearing firm where a Member was the
executing clearing firm for the transaction.\8\
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\7\ See Notice, supra note 3, at 68692.
\8\ Id.
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According to the Exchange, the amount of the proposed ORF fee is
``based on historical industry volume, projected volumes on the
Exchange, and
[[Page 83591]]
projected Exchange regulatory costs.'' \9\ The Exchange states that
``revenue generated from ORF, when combined with all of the Exchange's
other regulatory fees and fines, will cover a material portion, but not
all, of the Exchange's regulatory costs.'' \10\ The Exchange notes that
it will monitor the amount of ORF revenue it collects ``to ensure that
it, in combination with its other regulatory fees and fines, does not
exceed the Exchange's total regulatory costs.'' \11\
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\9\ Id. at 68693.
\10\ Id.
\11\ Id.
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The Exchange proposes that the ORF will automatically sunset on
September 30, 2024, approximately one year after the operative
date.\12\ The Exchange believes this will allow it time to ``gather the
necessary data, including its actual regulatory costs and revenues, as
well as the cost of regulating executions that clear in a customer
capacity and executions that occur on away markets, while also allowing
it to adequately cover a portion of the projected costs associated with
the regulation of its Members.'' \13\ According to the Exchange,
allowing the collection of ORF from the outset of its operations on
September 27, 2023 until September 30, 2023, when the fee will
automatically sunset, will allow the Exchange to fund its regulatory
program and collect evidence to provide to the Commission and inform
its approach to ORF after the sunset period.\14\
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\12\ Id. at 68692 and 68695.
\13\ Id. at 68695.
\14\ Id.
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III. Suspension of the Proposed Rule Change
Pursuant to section 19(b)(3)(C) of the Act,\15\ 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,\16\ 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. As discussed below, the Commission believes a temporary
suspension of the proposed rule change is necessary or appropriate in
the public interest, for the protection of investors, or otherwise in
furtherance of the purposes of the Act to allow for additional analysis
of the proposed rule change's consistency with the Act and the rules
thereunder.
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\15\ 15 U.S.C. 78s(b)(3)(C).
\16\ 15 U.S.C. 78s(b)(1).
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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.\17\ 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'' \18\
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\17\ 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'').
\18\ 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; \19\ (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; \20\
and (3) not impose any burden on competition not necessary or
appropriate in furtherance of the purposes of the Act.\21\
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\19\ 15 U.S.C. 78f(b)(4).
\20\ 15 U.S.C. 78f(b)(5).
\21\ 15 U.S.C. 78f(b)(8).
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In justifying its proposal, the Exchange stated that establishing
an ORF in the amount of $0.0015 is reasonable because it ``will serve
to balance the Exchange's regulatory revenue against the anticipated
regulatory costs'' and ``is lower than the amount of ORF assessed on
other exchanges.'' \22\ According to the Exchange, its ORF is designed
to ``generate revenues that, when combined with all of the Exchange's
other regulatory fees, will be less than 75% of the Exchange's
regulatory costs. . . .'' \23\
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\22\ See Notice, supra note 3, at 68695-96. Several other
exchanges have a lower ORF rate than that proposed by the Exchange.
See, e.g., Nasdaq ISE, available at <a href="https://listingcenter.nasdaq.com/rulebook/ise/rules/ISE%20Options%207">https://listingcenter.nasdaq.com/rulebook/ise/rules/ISE%20Options%207</a>
($0.0013); Nasdaq GEMX, available at Rules [bond] Nasdaq GEMX
($0.0012); CboeEDGX, available at Cboe EDGX Options Exchange Fee
Schedule ($0.0001); and MIAX Emerald, available at <a href="https://www.miaxglobal.com/sites/default/files/fee_schedule-files/MIAX_Emerald_Fee_Schedule_10122023_3.pdf">https://www.miaxglobal.com/sites/default/files/fee_schedule-files/MIAX_Emerald_Fee_Schedule_10122023_3.pdf</a> ($0.0006).
\23\ See Notice, supra note 3, at 68696.
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The Exchange also asserted that the ORF is equitably allocated and
not unfairly discriminatory because ``it is charged to all Members on
all their transactions that clear as customer at the OCC'' and is
``directly based on the amount of customer options business they
conduct.'' \24\ In addition, the Exchange stated that ``[r]egulating
customer trading activity is much more labor intensive and requires
greater expenditure of human and technical resources than regulating
non-customer trading activity, which tends to be more automated and
less labor-intensive.'' \25\ Further, the Exchange stated that it has
``broad regulatory responsibilities with respect to a Members'
activities, irrespective of where their transactions take place'' and
notes that it ``will not be able to effectively surveil [its Members']
conduct without looking at and evaluating activity across all options
markets.'' \26\ Consequently, the Exchange imposes the ORF on all
customer-range transactions cleared by a Member, even if the
transactions do not take place on the Exchange and regardless of
whether the transaction was executed by a member.\27\
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\24\ Id.
\25\ Id.
\26\ Id. at 68693 and 68696.
\27\ Id. The Exchange also states that its proposed collection
method which is similar to that utilized by other options exchanges
``was originally instituted for the benefit of clearing firms that
desired to have the ORF be collected from the clearing firm that
ultimately clears the transaction.'' Id. at 68696.
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Furthermore, the Exchange notes that implementing the proposed ORF
with a sunset date of approximately one year after the operative date
is reasonable because ``it will give the Exchange adequate time to
collect and analyze pertinent data while ensuring the Exchange, as a
new entrant into equity options trading, is able to adequately fund its
regulatory program to the same extent as its competitors.'' \28\
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\28\ Id. at 68697.
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In temporarily suspending the Exchange's proposed rule change, the
Commission intends to further consider whether the proposal to
establish an ORF in the amount of $0.0015 is 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
[[Page 83592]]
impose any burden on competition not necessary or appropriate in
furtherance of the purposes of the Act.\29\
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\29\ See 15 U.S.C. 78f(b)(4), (5), and (8), respectively.
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Therefore, the Commission finds that it is necessary or 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.\30\
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\30\ 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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IV. Proceedings To Determine Whether To Approve or Disapprove the
Proposed Rule Change
In addition to temporarily suspending the proposal, the Commission
also hereby institutes proceedings pursuant to sections 19(b)(3)(C)
\31\ and 19(b)(2)(B) of the Act \32\ 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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\31\ 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.
\32\ 15 U.S.C. 78s(b)(2)(B).
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Pursuant to section 19(b)(2)(B) of the Act,\33\ the Commission is
providing notice of the grounds for possible disapproval under
consideration:
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\33\ 15 U.S.C. 78s(b)(2)(B). 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 its proposed fee
is 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'' \34\
(emphasis added);
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\34\ 15 U.S.C. 78f(b)(4).
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<bullet> Whether the Exchange has demonstrated how its proposed fee
is 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'' \35\ (emphasis added); and
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\35\ 15 U.S.C. 78f(b)(5).
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<bullet> Whether the Exchange has demonstrated how its proposed fee
is 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].'' \36\
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\36\ 15 U.S.C. 78f(b)(8).
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As noted above, the Exchange proposes to establish an ORF in the
amount of $0.0015 per contract side ``based on historical industry
volume, projected volumes on the Exchange, and projected Exchange
regulatory costs.'' \37\ The Exchange also states that ``revenue
generated from ORF, when combined with all of the Exchange's other
regulatory fees and fines, will cover a material portion, but not all,
of the Exchange's regulatory costs.\38\ However, those and other
statements in support of its proposed establishment of an ORF are
general in nature and lack sufficient detail and specificity.
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\37\ See Notice, supra note 3, at 68692.
\38\ Id. at 68693.
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For example, the Exchange does not elaborate on the ``material
portion'' of options regulatory expenses that it seeks to recover from
the ORF and why the threshold it selected (i.e., that ORF will ``not
exceed more than 75% of total annual regulatory costs'') correlates to
the degree of regulatory responsibility and expenses borne by the
Exchange as it relates to the regulation of customer options
transactions.\39\ Further, the Exchange has not provided any
quantifiable information to support its assertion that regulating
customer trading activity is ``much more labor-intensive'' and
therefore, more costly. The Exchange does not claim in its filing that
its regulation of customer activity will consume 75% of total
regulatory costs nor does it assert that customer activity will require
a level of effort that will occupy 75% of the regulatory department's
attention. Further, the Exchange does not sufficiently analyze how
funding 75% of its total regulatory costs (including direct and
indirect expenses) from ORF constitutes an equitable allocation of
reasonable fees among members, and it does not provide sufficient
detail to allow the Commission and commenters to consider those issues.
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\39\ See Notice, supra note 3, at 68693.
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Further, the Exchange has not provided specific or detailed
information regarding the anticipated regulatory cost associated with
regulating, monitoring, and surveilling on-exchange activity compared
to activity that takes place on other exchanges (which exchanges assess
their own ORF on those trades). In particular, the Exchange proposes to
collect ORF on executions that do not occur on the Exchange. The
proposed ORF rate is the same for on-exchange and off-exchange
activity, so the proposal will result in the Exchange at least
initially funding a very significant portion of its total regulatory
costs from a fee charged on contracts that execute away from the
Exchange. The Exchange does not provide a sufficiently detailed
analysis or present specific facts to show the level of regulatory
effort and regulatory costs it would expend on contracts that execute
on other exchanges. Without more information in the filing on the
Exchange's projected regulatory revenues, regulatory costs, and
regulatory activities to supervise and regulate members, specifically,
e.g., customer versus non-customer activity and on-exchange versus off-
exchange activity, the proposal lacks specific information that can
speak to whether the proposed ORF is reasonable, equitably allocated,
and not unfairly discriminatory, particularly given that the ORF is
assessed only on transactions that clear in the ``customer'' range and
regardless of the exchange on which the transaction occurs.
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.'' \40\ 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,\41\ 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.\42\
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\40\ 17 CFR 201.700(b)(3).
\41\ See id.
\42\ See id.
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As explained above, the Exchange's statements in support of the
proposed rule change are general in nature and
[[Page 83593]]
lack detail and specificity. The Commission cannot unquestionably rely
on an exchange's statements and representations.\43\ Instead, the
Commission needs sufficient information to support independent findings
that a proposal is consistent with the requirements of the Act.\44\
Here, such an analysis includes, among other things, whether the
proposed ORF is an equitable allocation of reasonable dues, fees, and
other changes among the Exchange's members, as well as whether the
proposed ORF is equitable and not unfairly discriminatory.
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\43\ See Susquehanna Int'l Grp., LLP v. SEC, 866 F.3d 442, 447
(August 8, 2017).
\44\ See id.
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The Commission needs additional information from the Exchange to
demonstrate how the proposal meets those and other applicable
requirements of the Act, to assess whether the Exchange has established
a sufficient nexus between the proposed ORF and the Exchange's
regulation of customer trading activity both on and off exchange. While
the Commission broadly solicits comment from all interested parties on
the proposal, the Commission believes that the Exchange alone has
access to much of the specific detail necessary to fully address these
questions and concerns because these matters involve qualitative and
quantitative information about the Exchange's operations. Specifically,
among other things, the Commission asks that commenters address the
sufficiency of the Exchange's statements in support of the proposal
contained in the Notice.\45\ In particular, the Commission seeks
comment on the following aspects of the proposal and asks commenters to
submit data where appropriate to support their views:
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\45\ See Notice, supra note 3.
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1. Information on the Exchange's Projected Regulatory Costs and
Revenues. The Exchange states that its proposed ORF rate is reasonable
based on historical industry volume, projected volumes on the Exchange,
and projected Exchange regulatory costs. The Exchange notes that its
regulatory costs would include direct regulatory expenses and certain
indirect expenses for work ``allocated in support of the regulatory
function.'' \46\ According to the Exchange, indirect regulatory
expenses (including, among other things, human resources, legal,
information technology, facilities and accounting, as well as certain
shared expenses necessary to operate the Exchange and carry out its
regulatory function) are anticipated to be approximately 24% of the
Exchange's total regulatory costs for 2023 and 2024 and direct
regulatory expenses are anticipated to be approximately 76% of the
Exchange's total regulatory costs for 2023 and 2024.\47\ Do commenters
believe the Exchange has provided adequate detail regarding these
metrics? If not, what additional information should be provided to
demonstrate how the proposal is consistent with the Act?
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\46\ See Notice, supra note 3, at 68693.
\47\ Id.
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2. Information on the Exchange's Imposition of ORF on Customer
Orders. The Exchange states that it will ensure that revenue generated
from ORF not exceed more than 75% of total annual regulatory costs.\48\
Do commenters believe that the Exchange has sufficiently analyzed and
justified its proposal to fund 75% of its total regulatory expenses
from a fee imposed only on options transactions clearing in the
customer-range, where those expenses include the regulation of
transactions that clear in the non-customer-range (e.g., broker-dealer
and market maker trades)? In addition, explaining that the proposed ORF
would be charged to ``all Members on all their transactions that clear
as customer at the OCC,'' the Exchange states that such methodology
``ensures fairness by assessing fees to those Members that are directly
based on the amount of customer options business they conduct.'' \49\
The Exchange further asserts that ``[r]egulating customer trading
activity is much more labor intensive and requires greater expenditure
of human and technical resources than regulating non-customer trading
activity, which tends to be more automated and less labor-intensive.''
\50\ According to the Exchange, ``the costs associated with
administering the customer component of the Exchange's overall
regulatory program are materially higher than the costs associated with
administering the non-customer component (e.g., Member proprietary
transactions) of its regulatory program.'' \51\ Do commenters believe
that the Exchange has provided sufficiently detailed quantitative and
qualitative evidence in support of this aspect of its proposal?
Specifically, examples of information that would be helpful to
demonstrate how the assessment of ORF only on orders that clear in the
customer-range correlates to the level of effort and costs the Exchange
expends to regulate customer options transactions include: (a) the
percentage of volume expected to clear in the customer-range both on
and off the Exchange compared to the percentage of volume expected to
clear in a range other than customer both on and off the Exchange; (b)
the percentage of the Exchange's regulatory budget that would be
attributable to the regulation of orders that are expected to clear in
the customer-range compared to the percentage of the Exchange's
regulatory budget that would be attributable to orders that are
expected to clear in a range other than customer; (c) the anticipated
percentage of the Exchange's regulatory level of effort that would be
attributable to the regulation of orders that are expected to clear in
the customer-range compared to the anticipated percentage of the
Exchange's regulatory level effort that would be attributable to orders
that are expected to clear in a range other than customer; and (d) the
proportion of the Exchange's revenues, as reported in the most recent
annual financials it submitted on Form1, that would be represented by
expected ORF revenues if those revenues had been included in the most
recent annual financials.
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\48\ See id.
\49\ Id. at 68696.
\50\ Id.
\51\ Id.
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3. Information on the Exchange's Assessment of ORF on Away-Market
Activity. The Exchange states that it has ``broad regulatory
responsibilities with respect a Member's activities, irrespective of
where their transactions take place. . . .'' \52\ The Exchange
therefore believes that it is appropriate to impose the ORF even where
the transaction does not take place on the Exchange.\53\ Do commenters
believe that the Exchange has provided sufficiently detailed
quantitative and qualitative evidence in support of how the assessment
of ORF on away-market transactions correlates to the effort it will
expend on regulating away-market transactions compared to the level of
effort the Exchange will invest in regulating transactions on Exchange?
Specifically, examples of information that would be helpful to assess
the application of the ORF to executions that do not occur on the
Exchange include: (a) the projected percentage of the Exchange's
overall regulatory budget that is expected to be attributable to
regulating away-market transactions compared to the projected
percentage of the Exchange's overall regulatory budget that is expected
to be attributable to regulating on-Exchange transactions; (b) the
projected percentage of the Exchange's regulatory level of effort that
is expected to be attributable to the regulation of away-market
transactions compared to the projected percentage of
[[Page 83594]]
the Exchange's regulatory level of effort that is expected to be
attributable to the regulation of orders that execute on the Exchange;
(c) the anticipated percentage of ORF revenue that is expected to be
derived from away-market transactions compared to the anticipated
percentage of ORF revenue that is expected to be derived from
executions on the Exchange; and (d) more detail on the regulatory
activities the exchange expects to perform for trades that do not occur
on the Exchange.
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\52\ See id. at 68694.
\53\ See id.
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4. Information on the Exchange's Regulatory Program Concerning
Clearing Brokers. The Exchange states that ORF is collected on
``customer range'' options transactions cleared or ultimately cleared
by an Exchange member regardless of the exchange on which the
transaction occurs.\54\ The Exchange also will collect ORF from a non-
Member clearing broker where a member was the executing firm and a non-
Member was the ultimate clearing firm. Do commenters believe that the
Exchange has provided sufficiently detailed quantitative and
qualitative evidence in support of this aspect of its proposal?
Specifically, examples of information that would be helpful to provide
context for the collection of ORF from member and non-member clearing
brokers and determine whether a sufficient nexus exists between the ORF
and the Exchange's regulation of clearing activity, include: (a) the
percentage of the Exchange's regulatory expenses and level of
regulatory activity that is expected to pertain to clearance and
settlement activity and the percentage this is expected to account for
with respect to the Exchange's overall regulatory costs and regulatory
activity, and if that differs depending on whether the ultimate
clearing firm is an Exchange member or not and whether the contract
executes on the Exchange or not; (b) the number of ``ultimate clearing
firms'' that are Exchange members compared to the number of ``ultimate
clearing firms'' that are non-Members from which ORF is expected to be
collected on behalf of the Exchange; and (c) the percentage of ORF
revenues that is expected to be collected from Member clearing firms
compared to the percentage of ORF revenue that is expected to be
collected from non-Member clearing firms.
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\54\ See id. at 68692.
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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 the requirements that exchange fees be reasonable,
equitably allocated, and not unfairly discriminatory.\55\
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\55\ 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 December 21, 2023.
Rebuttal comments should be submitted by January 4, 2024. Although
there do not appear to be any issues relevant to approval or
disapproval which 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.\56\
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\56\ 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 change.
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#a6d4d3cac38bc5c9cbcbc3c8d2d5e6d5c3c588c1c9d0"><span class="__cf_email__" data-cfemail="a9dbdcc5cc84cac6c4c4ccc7dddae9daccca87cec6df">[email protected]</span></a>. Please include
file number SR-MEMX-2023-25 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-MEMX-2023-25. 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-MEMX-2023-25 and should be
submitted on or before December 21, 2023. Rebuttal comments should be
submitted by January 4, 2024.
VI. Conclusion
It is therefore ordered, pursuant to section 19(b)(3)(C) of the
Act,\57\ that file number SR-MEMX-2023-25, 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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\57\ 15 U.S.C. 78s(b)(3)(C).
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\58\
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\58\ 17 CFR 200.30-3(a)(57) and (58).
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Christina Z. Milnor,
Assistant Secretary.
[FR Doc. 2023-26263 Filed 11-29-23; 8:45 am]
BILLING CODE 8011-01-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.