Notice2025-17333
Self-Regulatory Organizations; Cboe EDGX Exchange, Inc.; Notice of Filing of Amendment No. 1 and Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change, as Modified by Amendment No. 1, To Amend Rule 11.21 To Allow an RMO To Enter a Retail Order Onto the Exchange in a Principal Capacity
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
September 10, 2025
Issuing agencies
Securities and Exchange Commission
Full Text
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<title>Federal Register, Volume 90 Issue 173 (Wednesday, September 10, 2025)</title>
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[Federal Register Volume 90, Number 173 (Wednesday, September 10, 2025)]
[Notices]
[Pages 43668-43675]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-17333]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-103878; File No. SR-CboeEDGX-2025-035]
Self-Regulatory Organizations; Cboe EDGX Exchange, Inc.; Notice
of Filing of Amendment No. 1 and Order Instituting Proceedings To
Determine Whether To Approve or Disapprove a Proposed Rule Change, as
Modified by Amendment No. 1, To Amend Rule 11.21 To Allow an RMO To
Enter a Retail Order Onto the Exchange in a Principal Capacity
September 5, 2025.
On May 21, 2025, Cboe EDGX Exchange, Inc. (``EDGX'' or the
``Exchange'') filed with the Securities and Exchange Commission
[[Page 43669]]
(``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 to (i) amend Rule 11.21(a)(2) to allow a Retail
Member Organization to enter a Retail Order onto the Exchange in a
principal capacity, provided the requirements of proposed Rule 11.21(g)
are satisfied; (ii) codify in proposed new Rule 11.21(g) additional
requirements a Retail Member Organization must comply with in order to
enter Retail Orders as principal; and (iii) amend Rule 11.21(b)(6) to
require that Retail Member Organizations have in place policies and
procedures reasonably designed to ensure compliance with proposed Rule
11.21(g), as well as to ensure that the Retail Member Organization can,
upon request by the Exchange, produce documentation evidencing
compliance with the requirements of Rule 11.21(g). The proposed rule
change was published for comment in the Federal Register on June 10,
2025.\3\ On July 25, 2025, pursuant to Section 19(b)(2) of the Act,\4\
the Commission designated a longer period within which to approve the
proposed rule change, disapprove the proposed rule change, or institute
proceedings to determine whether to disapprove the proposed rule
change.\5\ On September 4, 2025, the Exchange filed Amendment No. 1 to
the proposed rule change, as described in Items I and II below, which
Items have been prepared by the Exchange.\6\
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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. 103182 (June 4,
2025), 90 FR 24476. The Commission has not received any comments on
the proposed rule change.
\4\ 15 U.S.C. 78s(b)(2).
\5\ See Securities Exchange Act Release No. 103546, 90 FR 35954
(July 30, 2025). The Commission designated September 8, 2025 as the
date by which the Commission shall approve or disapprove, or
institute proceedings to determine whether to disapprove, the
proposed rule change.
\6\ Amendment No. 1 amends and supersedes the original filing in
its entirety. Amendment No. 1 is available at srcboeedgx2025035-
648447-1943494.pdf.
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The Commission is publishing this notice and order to solicit
comment on the proposed rule change, as modified by Amendment No. 1,
from interested persons and to institute proceedings under Section
19(b)(2)(B) of the Act \7\ to determine whether to approve or
disapprove the proposed rule change, as modified by Amendment No. 1.
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\7\ 15 U.S.C. 78s(b)(2)(B).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
Cboe EDGX Exchange, Inc. (the ``Exchange'' or ``EDGX'') proposes to
(i) amend Rule 11.21(a)(2), to allow a Retail Member Organization to
enter a Retail Order onto the Exchange in a principal capacity,
provided the requirements of proposed Rule 11.21(g) are satisfied; (ii)
codify in proposed new Rule 11.21(g) additional requirements a Retail
Member Organization must comply with in order to enter Retail Orders as
principal; and (iii) amend Rule 11.21(b)(6) to require that Retail
Member Organizations have in place policies and procedures reasonably
designed to ensure compliance with proposed Rule 11.21(g), as well as
to ensure that the Retail Member Organization can, upon request by the
Exchange, produce documentation evidencing compliance with the
requirements of Rule 11.21(g). The Exchange initially submitted this
rule filing SR-CboeEDGX-2025-035 to the Securities and Exchange
Commission (``Commission'') on May 21, 2025 (the ``Initial
Filing'').\8\ This Amendment No. 1 supersedes the Initial Filing and
replaces it in its entirety. The text of the proposed rule change is
provided in Exhibit 5.
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\8\ Securities Exchange Act Release No. 34-103182 (May 21,
2025), 90 FR 24476 (June 10, 2025) (SR-CboeBYX-2025-035) (``Initial
Filing'').
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The text of the proposed rule change is also available on the
Exchange's website (<a href="http://markets.cboe.com/us/options/regulation/rule_filings/edgx/">http://markets.cboe.com/us/options/regulation/rule_filings/edgx/</a>) and at the Exchange's Office of the Secretary.
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 (i) amend Rule 11.21(a)(2) to allow a
Retail Member Organization (``RMO'') \9\ to enter a Retail Order \10\
onto the Exchange in a principal capacity, provided the requirements of
Rule 11.21(g) are satisfied; (ii) codify in proposed new Rule 11.21(g)
additional requirements a Retail Member Organization must comply with
in order to enter Retail Orders as principal; and (iii) amend Rule
11.21(b)(6) requiring that Retail Member Organizations have in place
policies and procedures reasonably designed to ensure compliance with
proposed Rule 11.21(g), as well to ensure that the Retail Member
Organization can, upon request by the Exchange, produce documentation
evidencing compliance with the requirements of Rule 11.21(g).
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\9\ A ``Retail Member Organization'' or ``RMO'' is a Member (or
a division thereof) that has been approved by the Exchange under
Rule 11.21 to submit Retail Orders. See Rule 11.21(a)(1).
\10\ A Retail Order is currently defined as ``an agency or
riskless principal order that meets the criteria of FINRA Rule
5320.03 that originates from a natural person and is submitted to
the Exchange by a Retail Member Organization, provided that no
change is made to the terms of the order with respect to price or
side of market and the order does not originate from a trading
algorithm or any other computerized methodology.'' See Rule
11.21(a)(2).
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These proposed amendments are in response to feedback received by
the Exchange from certain RMOs that have stated that the ability to
enter orders in a principal capacity would better enable them to
provide their retail customers with better priced executions.
Currently, RMOs are only able to enter Retail Orders onto the Exchange
in either an agency or riskless principal capacity. Specifically, these
RMOs have explained that the ability to handle Retail Orders in a
principal capacity will enable them to provide their retail customers
with post-execution price improvement that is in addition to any price
improvement received on the Exchange. Because the price ultimately
allocated to the retail customer by the RMO would be different from
(and notably, would always be better priced than) the price the
principal order received on the Exchange, such Retail Orders would not
currently qualify as riskless principal transactions.\11\ Accordingly,
because Exchange rules currently only permit the entry of Retail Orders
in a riskless principal or agency
[[Page 43670]]
capacity, such post-execution price improvement is not currently
permitted.
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\11\ A ``riskless principal'' transaction is a transaction in
which a member, after having received an order to buy (sell) a
security, purchases (sells) the security as principal and satisfies
the original order by selling (buying) as principal at the same
(emphasis added) price (the offsetting ``riskless'' leg). See FINRA
Rule 5320.03--``Riskless Principal Exception'', available at:
<a href="https://www.finra">https://www.finra</a>./rules-guidance/rulebooks/finra-rules/5320.
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The Exchange notes that the ultimate determination as to whether an
RMO may choose to execute in this manner is not something to which the
Exchange has visibility. Indeed, such a decision will vary from RMO to
RMO. Generally speaking, RMOs may choose to execute in this manner to
satisfy certain execution quality and price improvement benchmarks RMOs
have applied to their underlying retail order(s), as well as to simply
provide additional price improvement as a service to their retail
customer(s) or retail broker customers. Because principal orders
entered in this manner are for the benefit of the underlying retail
customer(s)--i.e., to provide retail orders with better priced
executions--the Exchange believes that such transactions are consistent
with the definition of Retail Order, and the purposes of EDGX's Retail
Priority Program (discussed infra).
Current Definition of ``Retail Order''
Currently, Rule 11.21(a)(2) provides that a Retail Order is an
agency order, or a riskless principal order that meets the criteria of
FINRA Rule 5320.03.\12\ A Retail Order must originate from a natural
person and must be entered onto the Exchange by an RMO. The RMO is not
permitted to change the terms of the order with respect to the price or
side of the market, and a Retail Order may not originate from a trading
algorithm or any other computerized methodology. An RMO is a Member (or
a division thereof) that has been approved by the Exchange under EDGX
Rule 11.21 to submit Retail Orders. Pursuant to EDGX Rule 11.21(b),
which describes the qualification and application process for becoming
a Retail Member Organization, any member may qualify as a Retail Member
Organization if it conducts a retail business or routes retail orders
on behalf of another broker-dealer.
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\12\ See FINRA Rule 5320.3, Riskless Principal Exception,
available at: <a href="https://www.finra">https://www.finra</a>.org/rules-guidance/rulebooks/finra-
rules/5320.
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Proposed Definition of Retail Order
The Exchange believes that retail customers are a key part of the
trading ecosystem, and as such, has designed products and programs to
execute Retail Orders quickly, with high execution quality and at a
low-cost, with added pricing incentives. For instance, EDGX's Retail
Priority Program seeks to enhance execution quality for individual
customers who trade U.S. equities on EDGX. Retail Priority offers a
distinct allocation model, which differs from the traditional time-
based allocation model used by most U.S. equities market centers that
allocate trades to orders that arrive first in time at each price
point. Retail Priority focuses on improving execution quality and
trading outcomes for individual customers, and the firms facilitating
their orders, by reducing their time to execution. Under Retail
Priority, individual customers' displayed limit orders will post at the
front of the order queue for same-priced orders submitted on EDGX.
Additionally, EDGX offers retail-only pricing incentives for low cost
remove and premium rebates. EDGX also offers RMOs discounts on port
fees and market data, and retail tiers give growing retail firms
additional rebates.
EDGX offers RMOs the ability to participate in the Exchange's
Retail Priority program, which seeks to enhance execution quality for
individual customers who trade U.S. equities on EDGX. Specifically,
Retail Priority offers a distinct patent-pending allocation model,
which differs from the traditional time-based allocation model used by
most U.S. equities market centers that allocate trades to orders that
arrive first in time at each price point. The Retail Priority model
focuses on improving execution quality and trading outcomes for
individual customers, and the firms facilitating their orders, by
reducing their time to execution. Under the mechanism, the displayed
portion of an individual customers' Retail Priority Order \13\ will
post at the front of the order queue for same-priced orders submitted
on EDGX. While Exchange rules currently permit the routing of Retail
Orders, the Exchange does not currently identify Retail Orders as such
when routing to away exchanges, and the Exchange does not propose to do
so with this current proposal.
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\13\ A Retail Priority Order is a Retail Order, as defined in
Rule 11.21(a)(2), that is entered on behalf of a person that does
not place more than 390 equity orders per day on average during a
calendar month for its own beneficial account(s). See Exchange Rule
11.9, Interpretations and Policies .01. The 390 order count is
considered for each distinct beneficial retail account, and where a
Retail Order is entered on behalf of multiple retail customers, the
390 order limitation is considered for each beneficial retail
account For the purposes of calculating the 390 equity order count,
the Exchange rules contemplate parent and child orders.
Specifically, a parent order that is broken into multiple ``child''
orders by an RMO counts as one order even if the child orders are
routed across multiple exchanges. Exchange rules also contemplate
Cancel/Replace messages when calculating the 390 order count. Any
order that cancels and replaces an existing order, counts as a
separate order, except that an order that cancels and replaces any
child order resulting from a parent order that is broken into
multiple child orders does not count as a new order. Importantly,
the Exchange notes that this current proposal will not change how
the Exchange determines whether a beneficial account has exceeded
the 390 order count.
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The Exchange now seeks to amend Rule 11.21(a)(2) to provide that an
RMO may also enter a Retail Order in a principal capacity, provided the
RMO satisfies the conditions codified in proposed Rule 11.21(g). As
noted above, some RMOs have expressed a desire to enter Retail Orders
onto the Exchange on behalf of their retail customers in a principal
capacity and subsequently provide such orders with post-execution price
improvement in addition to any price improvement received on the
Exchange. Because the RMO will allocate its Exchange execution to its
retail customer at a different (and better) price than it received on
the Exchange, such transaction can only be done in a principal
capacity. To better illustrate the order flow of a Retail Order being
executed in a principal capacity by an RMO, consider the following
example:
<bullet> An RMO has an order in hand from its retail customer to
sell 100 shares of stock XYZ.
<bullet> The RMO elects to send a Retail Order to the Exchange on
behalf of its retail customer;
<bullet> The Retail Order is accepted and executed by the Exchange
at a price improved price of $10.005;
<bullet> The Exchange sends the execution message back to the RMO
with the execution price of $10.005;
<bullet> Based on their own internal best execution practices, or
execution quality metrics, the RMO may then elect to provide their
retail customer's order with price improvement in addition to that
already received on the Exchange.
<bullet> For the purposes of this example, assume that the RMO
indeed chooses to provide their retail customer with additional price
improvement of $0.005, for a final execution price of $10.01.\14\ This
transaction is executed as principal, and is a separate \15\
transaction executed off-exchange by and between the RMO and its retail
customer.
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\14\ Here, the RMO is not permitted to execute this transaction
in a riskless principal capacity, because the RMO is not providing
its retail customer with the same execution price it received on the
Exchange. By permitting the RMO to use a principal order, though,
the RMO would be able to provide its retail customer with price
improvement in addition to that already received on the Exchange.
\15\ The Exchange notes that for the purposes of determining the
390 order count, the Exchange will only count the on-Exchange
transaction. The off-exchange transaction, printed to the TRF will
not be counted; i.e., a Retail Order entered principally on the
Exchange will only count as one transaction.
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<bullet> This transaction and its execution price of $10.01 will be
reported to the Transaction Reporting Facility (``TRF'')
[[Page 43671]]
consistent with FINRA off-exchange reporting rules and guidance.\16\
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\16\ See ``Trade Reporting Frequently Asked Questions'', Section
309: Reporting Customer Price Adjustment Transactions, available at:
<a href="https://www.finra">https://www.finra</a>.org/filing-reporting/market-transparency-
reporting/trade-reporting-faq#309.
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Importantly, the Exchange intends for Retail Orders to be entered
on behalf of only bona fide retail customers. As such, the Exchange now
also proposes to introduce new Rule 11.21(g), Retail Orders Entered as
Principal, to codify requirements designed to ensure that Retail Orders
by RMOs in a principal capacity are in fact on behalf of retail
customers. Specifically, the Exchange seeks to codify that any Retail
Orders entered onto the Exchange in a principal capacity by an RMO on
behalf of its retail customer(s) must meet the following criteria,
which are similar to the requirements under FINRA Rule 5320.03's,
Riskless Principal Exception: (i) the RMO must be in receipt of and
actively managing, at the time of order entry onto the Exchange, a
Retail Order it seeks to execute on behalf of a retail customer (ii)
the Retail Order entered by an RMO as principal must solely be for the
purpose of providing post-execution price improvement \17\ to the
retail customer(s) in addition to any price improvement received on the
Exchange; (iii) the size of the principal order shall not be greater
than that of the underlying order(s) entered on behalf of the retail
customer(s); and (iv) the total number of shares executed in a
principal capacity must be fully allocated to the underlying retail
customer(s) in a consistent manner and within 60-seconds of execution.
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\17\ Should an RMO enter a Retail Order principally but elect
not to provide post-execution price improvement the Exchange would
expect that the RMO would allocate that execution back to their
retail customer(s) in a riskless principal capacity, in which case
such transaction must comply with existing Exchange Rule 11.21(a)(2)
and FINRA Rule 5320.03.
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The monitoring for compliance with these requirements will occur
post-trade, as part of the Exchange's surveillance functions.
Importantly, the Exchange's Regulatory and Surveillance departments
already possess the capability to review Retail Orders to ensure that
those entered in either a principal or riskless principal transaction
were indeed entered and executed by the RMO on behalf of a retail
customer.\18\ For instance, the Exchange's Regulatory and Surveillance
teams currently review Retail Orders entered as principal to determine
whether such orders were in fact ultimately executed as riskless
principal \19\ and fully allocated to the RMO's end retail customer, at
the same price, in accordance with FINRA Rule 5320.03. While the
proposed amendment would enable RMOs to allocate a trade to their end
retail customer at a different price, this would not diminish the
Exchange's Regulatory and Surveillance teams' ability to effectively
regulate RMOs' compliance with the Exchange's Retail Order rules.
Rather, the Regulatory and Surveillance functions would instead need
only monitor for Retail Orders that were entered principally, but not
ultimately executed as riskless principal, and further inquire with the
RMO that (i) the RMO was in receipt of and actively managing, at the
time of order entry onto the Exchange, a Retail Order it sought to
execute on behalf of a retail customer (ii) the Retail Order entered by
an RMO as principal was solely be for the purpose of providing post-
execution price improvement to the retail customer(s) in addition to
any price improvement received on the Exchange; (iii) the size of the
principal order was not greater than that of the underlying order(s)
entered on behalf of the retail customer(s); and (iv) the total number
of shares executed in a principal capacity was fully allocated to the
underlying retail customer(s) in a consistent manner and within 60-
seconds of execution.
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\18\ The Exchange permits RMOs to enter Retail Orders onto the
Exchange in an agency, principal, or riskless principal capacity.
See ``Capacity'' in ``Cboe US Equities BOE Specification'', pg. 62,
available at: <a href="https://cdn.cboe.com/resources/membership/Cboe_US_Equities_BOE_Specification.pdf">https://cdn.cboe.com/resources/membership/Cboe_US_Equities_BOE_Specification.pdf</a>; see also ``Order Capacity''
in ``Cboe US Equities FIX Specification,'' p. 21, available at:
<a href="https://cdn.cboe.com/resources/membership/Cboe_US_Equities_FIX_Specification.pdf">https://cdn.cboe.com/resources/membership/Cboe_US_Equities_FIX_Specification.pdf</a>.
\19\ As a general matter the exchange notes that riskless
principal transactions are typically entered into the marketplace as
principal orders, buying the security for itself and then, post-
execution, selling the security to its end-customer. If the broker-
dealer sells its customer the security at the same price for which
it purchased the security, this is typically called a riskless
principal transaction. This transaction is known as ``riskless''
because the broker-dealer purchases the security, knowing that it
will sell the security to its customer at the same price. See
generally SEC Office of Education and Advocacy, ``Investor Bulletin:
How to Read Confirmation Statements,'' available at: <a href="https://www.sec.gov/investor/alerts/ib_confirmations.pdf">https://www.sec.gov/investor/alerts/ib_confirmations.pdf</a>.
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In this regard, whether the order is executed principally or as
riskless principal, the Exchange will still have the ability to
effectively enforce its rules. Indeed, the Exchange's Regulatory and
Surveillance functions already monitor for Retail Orders that are
entered as riskless principal as well as principal. Notably, for the
full year 2024, 25.5% of all Retail Orders entered across each of
Cboe's four equities exchanges, were entered as principal, compared to
only 6.4% entered as riskless principal. Therefore, as a practical
matter, the Exchange is accustomed to conducting surveillance of Retail
Orders entered as principal, and the proposed amendment should not pose
any additional issues.
Importantly, for the purpose of determining whether an order should
qualify as a Retail Order, the Exchange believes that from a
surveillance perspective, principal orders and riskless principal
orders are essentially the same order type. In addition to how it
monitors and surveils Retails Orders (discussed directly above), EDGX
notes that there is no difference between a Retail Order entered as a
riskless principal order that meets the requirements of FINRA Rule
5320.03, and a principal order, that meets the requirements of the
proposed rule. As noted above, a riskless principal order is a
transaction in which a Member, after having received an order to buy
(sell) a security, purchases (sells) the security as principal and,
contemporaneously, satisfies the original order by selling (buying) as
principal at the same price. A riskless principal order involves two
orders, the execution of one being dependent upon the receipt of the
execution of the other. As such, there is no ``risk'' in the
interdependent transactions when completed. Notably, riskless principal
orders are typically entered onto exchanges in a principal capacity,
and the riskless principal leg of the transaction is reflected only via
a corresponding non-media trade report to a FINRA Facility.\20\ In this
regard, the Exchange believes that the results of a riskless principal
transaction and a principal transaction are the same: the customer will
receive an execution while the involved Member acts as an intermediary
to effect the transaction. However, instead of receiving the same
Exchange execution price, the retail customer will now receive a better
priced execution because the RMO is now able to commit capital to that
order, as principal. Existing rule text does not permit this scenario
because the current definition of Retail Order only permits an RMO to
trade in an agency or riskless principal capacity.
[[Page 43672]]
When trading as agent, the RMO is simply passing the execution back to
its retail customer(s) at the price received on-Exchange. If trading as
riskless principal, the RMO trades principally on the Exchange, but
then allocates to the execution, at the same price, back to its retail
customer in a riskless transaction.\21\ In this regard, by trading
principally, an RMO may instead use its financial balance sheet and
principal trading account to provide additional price improvement to a
retail customer's order in a separate transaction. Here, the RMO is not
permitted to execute this transaction in a riskless principal capacity,
because the RMO is not providing its retail customer with the same
execution price it received on the Exchange. By permitting the RMO to
use a principal order, though, the RMO would be able to provide its
retail customer with price improvement in addition to that already
received on the Exchange.
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\20\ FINRA Members can report riskless principal transactions by
submitting a single tape report to a FINRA Facility in the same
manner as an agency transaction, marked with a ``riskless
principal'' capacity indicator, excluding the mark-up or mark-down,
commission-equivalent or other fee. Alternatively, members can
report an OTC riskless principal transaction by submitting two (or
more, as necessary) reports: (1) a tape report to reflect the
initial leg of the transaction with a capacity of principal; and (2)
a non-tape (regulatory or clearing-only) report to reflect the
offsetting ``riskless'' leg of the transaction with a capacity of
riskless principal.
\21\ Id.
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Existing RMO Application Process/Requirements & Proposed Policies and
Procedures
The Exchange also notes that the proposed amendment does not
present any new or material risks that the Exchange has not already
mitigated through its RMO application process for orders entered onto
the Exchange as Retail Orders on behalf of retail customers. Currently,
Rule 11.21(b)(1)-(6) sets forth an objective process by which a Member
organization applies to become an RMO. First, to qualify as a Retail
Member Organization, a Member must conduct a retail routing business or
route retail orders on behalf of another broker-dealer.\22\ To become
an RMO, a Member is required to submit an application form,\23\
supporting documentation (e.g., marketing literature, website
screenshots, and other publicly disclosed materials) confirming that
the applicant's order flow would meet the requirements of the Retail
Order definition,\24\ and an attestation \25\ in a form prescribed by
the Exchange, that substantially all orders submitted as Retail Orders
will qualify as such under the Rule.\26\ After submission of these
materials, various Exchange functions, including legal and operations,
review the application to assess whether the applicant's order flow
complies with Exchange rules.\27\ Applicants are then notified, in
writing, of the Exchange's decision.\28\
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\22\ See Rule 11.21(b)(1).
\23\ See Rule 11.21(b)(2)(A).
\24\ See Rule 11.21(b)(2)(B).
\25\ See, ``Retail Member Organization--Broker-Dealer Customer
Agreement'', and ``Broker-Dealer Customer Annual Attestation'' of
``Cboe EDGX Exchange, Inc., Retail Member Organization
Application'', available at: <a href="https://cdn.cboe.com/resources/membership/_Retail_Member_Organization_Application.pdf">https://cdn.cboe.com/resources/membership/_Retail_Member_Organization_Application.pdf</a>. Following
approval of this proposal, the Exchange will make conforming edits
to the attestation reflecting the changes to the definition of
``Retail Order'', as well as the amendments made to the
Interpretations and Policies to Rule 11.21.
\26\ See Rule 11.21(b)(2)(C).
\27\ See Rule 11.21(b)(3).
\28\ Id.
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Furthermore, all RMOs must have in place policies and procedures
reasonably designed to ensure that it will only designate orders as
Retail Orders if all requirements of a Retail Order are met.\29\ These
policies and procedures must require the Member to (i) exercise due
diligence before entering a Retail Order to ensure that entry as a
Retail Order is in compliance with the requirements of the Rule, and
(ii) monitor whether orders entered as Retail Orders meet the
applicable requirements.\30\ If an RMO does not itself conduct a retail
business but routes Retail Orders on behalf of another broker-dealer,
the RMO's supervisory procedures must be reasonably designed to ensure
that the orders it receives from the other broker-dealer that are
designated as Retail Orders meets the definition of a Retail Order.\31\
In these cases, the RMO must (i) obtain an annual written
representation, in a form acceptable to the Exchange, from each other
broker-dealer that sends the RMO orders to be designated as Retail
Orders that the entry of such orders as Retail Orders will be in
compliance with the requirements of Rule 11.21; and (ii) monitor
whether Retail Order flow routed on behalf of other such broker-dealers
meets the applicable requirements.\32\ Importantly, the Exchange's
regulatory and surveillance functions provide appropriate oversight by
the Exchange by monitoring for continued compliance with the terms of
these provisions. If an RMO fails to abide by the Retail Order
requirements, the Exchange in its sole discretion may disqualify a
Member from its status as an RMO.\33\ The proposed amendment will not
eliminate or diminish the strength of the existing protections
currently codified in Rule 11.21.
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\29\ See Rule 11.21(b)(6).
\30\ Id.
\31\ Id.
\32\ Id.
\33\ See Rule 11.21(b)(d)(1).
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In addition, as noted further above, the Exchange has proposed
requirements pursuant to proposed Rule 11.21(g) designed to ensure that
Retail Orders entered in a principal capacity are in fact entered on
behalf of bona fide retail customers, and that such principal orders
comply with specific requirements. Namely, when entering a Retail Order
onto the Exchange for execution in a principal capacity, an RMO must
comply with the following requirements, which are similar to those
required by FINRA Rule 5320.03's Riskless Principal Exception
requirements: (i) the RMO must be in receipt of and actively managing,
at the time of order entry onto the Exchange, a Retail Order it seeks
to execute on behalf of a retail customer (ii) the Retail Order entered
by an RMO as principal must solely be for the purpose of providing
post-execution price improvement \34\ to the retail customer(s) in
addition to any price improvement received on the Exchange; (iii) the
size of the principal order shall not be greater than that of the
underlying order(s) entered on behalf of the retail customer(s); and
(iv) the total number of shares executed in a principal capacity must
be fully allocated to the underlying retail customer(s) in a consistent
manner and within 60-seconds of execution.
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\34\ Should an RMO enter a Retail Order principally but elect
not to provide post-execution price improvement the Exchange would
expect that the RMO would allocate that execution back to their
retail customer(s) in a riskless principal capacity, in which case
such transaction must comply with existing Exchange Rule 11.21(a)(2)
and FINRA Rule 5320.03.
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In conjunction with these requirements, the Exchange also proposes
to amend Rule 11.21(b)(6), to codify the requirements that RMOs
choosing to enter Retail Orders in a principal capacity must have in
place policies and procedures reasonably designed to ensure compliance
with the requirements of 11.21(g), and to ensure the RMO is able to,
upon request, provide the Exchange with documentation evidencing
compliance with such requirements. Moreover, if a Retail Member
Organization does not itself conduct a retail business, but chooses to
execute in a principal capacity Retail Orders it manages on behalf of
another broker-dealer, the Retail Member Organization's supervisory
procedures must be reasonably designed to ensure that the orders it
receives from such other broker-dealer that are designated as Retail
Orders meet the definition of a Retail Order. The Retail Member
Organization must: (i) obtain an annual written representation, in a
form acceptable to the Exchange, from each other broker-dealer that
sends the Retail Member Organization orders to be designated as Retail
Orders that entry of
[[Page 43673]]
such orders as Retail Orders will be in compliance with the
requirements of this Rule; and (ii) monitor whether Retail Order flow
routed on behalf of such other broker-dealers meets the applicable
requirements.
Finally, the Exchange believes it important to note that as Members
of the Exchange, RMOs must be registered brokers or dealers. As
registered brokers or dealers, RMOs are subject to a panoply of rules,
such as FINRA Rule 2010 (Standards of Commercial Honor and Principles
of Trade), EDGX Rule 2.2 (Obligation of Members and the Exchange), and
EDGX Rule 3.1 (Business Conduct of Members). These rules require,
amongst other things, that as brokers or dealers, Members are required
to conduct business with the highest standards of commercial honor, and
obligate Members to comply with all Exchange rules, by-laws, and
regulations.\35\ While the Exchange has an obligation to maintain fair
and orderly markets and carry out it its duties as a self-regulatory
organization, RMOs are also obligated to ensure that only orders that
comply with Exchange rules are routed to the Exchange and designated as
Retail Orders.
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\35\ While the RMO application process discussed above does rely
on information provided by the applicant, the Exchange believes that
ultimately it must be allowed to rely on representations made by
registered brokers or dealers that are obligated to conduct their
securities business consistent with the highest standards of
commercial honor, and in submitting their application, have attested
to the accuracy of the information provided to the Exchange.
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2. Statutory Basis
The Exchange believes the proposed rule change is consistent with
the Securities Exchange Act of 1934 (the ``Act'') and the rules and
regulations thereunder applicable to the Exchange and, in particular,
the requirements of Section 6(b) of the Act.\36\ Specifically, the
Exchange believes the proposed rule change is consistent with the
Section 6(b)(5) \37\ 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) \38\ requirement that the rules of an exchange not be
designed to permit unfair discrimination between customers, issuers,
brokers, or dealers.
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\36\ 15 U.S.C. 78f(b).
\37\ 15 U.S.C. 78f(b)(5).
\38\ Id.
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In particular, the Exchange believes that the proposed rule change
is consistent with these principles because it would increase
competition among execution venues, encourage additional on-exchange
retail liquidity, and in turn, increase the opportunities for retail
customers to receive even greater levels of price improvement from RMOs
that trade principally and choose to commit additional capital to their
Retail Orders. The Exchange notes that a significant percentage of the
orders of individual customers are executed over the counter.\39\ By
providing RMOs with an additional order capacity in which they may
submit their retail orders to the Exchange, EDGX believes that more
retail flow may be directed to the Exchange and have the opportunity to
execute on a regulated, transparent market. Indeed, even the Commission
has noted that ``a very large percentage of marketable (immediately
executable) order flow of individual customers is `executed' or
`internalized' by broker-dealers in the [over-the-counter-markets].''
\40\ The Commission has also noted that a review of the order flow of
eight retail brokers revealed that nearly 100% of their customer market
orders were routed to over-the-counter market makers, often pursuant to
payment for order flow arrangements.\41\ By making clear to retail
broker-dealers that, subject to the conditions discussed herein, they
can enter and execute Retail Orders on the Exchange in a principal
capacity, such market participants may be encouraged to seek on-
Exchange price improvement opportunities. The Exchange believes that
the proposed change is likely to increase the number of Retail Orders
entered onto the Exchange. Based on feedback from Members that manage
retail orders, they already trade retail orders on-exchange in a
principal capacity. However, because Exchange rules do not currently
permit the execution and allocation of a Retail Order in a principal
capacity, such Members simply enter their principal retail orders as
non-retail attested order flow--i.e., they do not enter Retail Orders
as RMOs, onto the Exchange. As such, these Members' retail customer
orders are not eligible to avail themselves to the benefits EDGX offers
to retail firms and Retail Orders. By making clear that such Members
can now enter such orders as Retail Orders, the Exchange believes the
volume of Retail Orders entered onto the Exchange will increase. In
turn, an increase in the number of Retail Orders submitted onto the
Exchange will encourage more retail liquidity provision, thereby
deepening EDGX's retail liquidity pool, fostering enhanced price
discovery, and offering Retail Orders more price improvement
opportunities as the number of liquidity providers competing to trade
with Retail Orders increases.
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\39\ Ninety-plus percent (90%) of retail marketable orders are
routed to wholesalers and executed off-exchange. See Chair Gensler's
remarks, ``Market Structure and the Retail Investors: Remarks Before
the Piper Sandler Global Exchange Conference'', (June 2, 2022),
available at: <a href="https://www.sec.gov/news/speech/gensler-remarks-piper-sandler-global-exchange-conference-060822">https://www.sec.gov/news/speech/gensler-remarks-piper-sandler-global-exchange-conference-060822</a>).
\40\ See Securities Exchange Act Release No. 61358 (January 14,
2010), 75 FR 3594, 3600 (January 21, 2010) (``Concept Release on
Equity Market Structure'').
\41\ Id.
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The Exchange also believes that the proposed amendment to add
principal orders to the definition of Retail Order, promotes just and
equitable principles of trade and is not unfairly discriminatory. All
RMOs are permitted to utilize the proposed principal order capacity and
doing so is not mandatory. While some RMOs may choose not to provide
additional price improvement to executions they receive on the
Exchange, such possibility does not make the proposed amendment
discriminatory. Indeed, to prevent all RMOs from trading in a principal
capacity to provide their retail customers with additional price
improvement, simply because some RMOs may choose not to do so, only
disadvantages the retail customer. Moreover, each RMO has its own
rationale and strategies in how to provide their retail orders with
best execution, and the proposed amendment to merely permit trading in
a principal capacity should not be germane to a consideration of
whether certain RMOs are better positioned to trade in this manner,
than others.
Moreover, proposed Rule 11.21(g) and the proposed amendment to Rule
11.21(b)(6) are designed to prevent fraudulent and manipulative acts
and practices, and to promote just and equitable principles of trade.
Specifically, the proposed requirements under Rule 11.21(g) are
designed to ensure that RMOs trade principally only on behalf of bona
fide retail customers, and not the RMOs own trading account.
Furthermore, the requirement that RMOs have in place policies and
procedures reasonably designed to ensure compliance with Rule
11.21(g)(1) will also help to ensure that RMOs are cognizant of their
regulatory obligations, thereby better ensuring their compliance
[[Page 43674]]
with Rule 11.21(g). Additionally, Rule 11.21(b)(6)'s requirement that
RMOs also have policies and procedures in place reasonably designed to
ensure that RMOs can, upon request, provide the Exchange with
documentation of their compliance with Rule 11.21(g) will help to
ensure the Exchange can properly surveil and regulate its RMOs.
Finally, the Exchange also believes that this proposal is not
designed to permit unfair discrimination between customers, issuers,
brokers, or dealers. As noted above, while the proposed definition will
help to ensure that only bona fide retail customers receive the
benefits afforded to Retail Orders, the segmentation afforded Retail
Orders is not a novel concept in the securities market. The Commission
has long recognized that U.S. capital markets should be structured with
the interests of retail customers in mind \42\ and recently proposed a
series of rules designed, in part, to attempt to bring order flow back
to the exchanges from off-exchange trading venues.\43\
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\42\ See U.S. Securities and Exchange Commission, Strategic
Plan, Fiscal Years 2018-2022, available at <a href="https://www.sec.gov/files/SEC_Strategic_Plan_FY18-FY22_FINAL_0.pdf">https://www.sec.gov/files/SEC_Strategic_Plan_FY18-FY22_FINAL_0.pdf</a>.
\43\ See Securities Exchange Act Release No. 96495 (December 14,
2022), 88 FR 128 (January 3, 2023) (``Order Competition Rule'');
Securities Exchange Act Release No. 96494 (December 14, 2022), 87 FR
80266 (December 29, 2022) (``Tick Size Proposal''); Securities
Exchange Act Release No. 96496 (December 14, 2022), 88 FR 5440
(January 27, 2023) (``Regulation Best Execution''); Securities
Exchange Act Release No. 96493 (December 14, 2022), 88 FR 3786
(January 20, 2023) (``Disclosure of Order Execution Information'').
The Exchange notes that while such proposals have since been
withdrawn by the Commission, the underlying principles of investor
protection and protection of the interests of retail investors,
remain a critical focus of the SEC, today.
---------------------------------------------------------------------------
Additionally, while certain RMOs may elect to trade principally and
other RMOs may choose not to do so, the Exchange is not privy to such
decision making and the Exchange does not dictate how RMOs may choose
to enhance the execution quality of their Retail Orders. Just as some
RMOs choosing to enter their Retail Orders onto the Exchange with more
marketable or more conservative limit prices is non-discriminatory, the
mere fact that the Exchange now seeks to permit an RMO to trade
principally should not raise such concerns. Moreover, any RMO that
satisfies the requirements of Rule 11.21(g) may enter Retail Orders
onto the Exchange in a principal capacity, regardless of their size or
trading volume. Likewise, trading principally is not a requirement to
enter orders onto the Exchange as principal, and RMOs are free to do
so, or not, consistent with their business models and order handling
practices.
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 intermarket competition that is not necessary or
appropriate in furtherance of the purposes of the Act. The Exchange
believes the proposed amendment will help to enhance the submission of
Retail Orders to the Exchange by providing RMOs with additional
flexibility in how they choose to execute their retail customers'
orders on the Exchange. In turn, greater overall order flow and trading
opportunities benefits all market participants on the Exchange. An
increase in RMO activity and liquidity providing orders will serve to
enhance the Exchange's available liquidity. Deeper liquidity pools
will, in turn, enhance price discovery, as well as price improvement
opportunities for retail customers as liquidity providers compete for
retail executions. Liquidity providers also benefit by being able to
interact with retail order flow that is often executed off-exchange,
and therefore generally inaccessible to those trading in the lit
markets.
While the proposed definition will help to ensure that only bona
fide retail customers receive the benefits afforded to Retail Orders,
the segmentation afforded Retail Orders is not a novel concept in the
securities market. The Commission has long recognized that U.S. capital
markets should be structured with the interests of retail customers in
mind \44\ and has recently proposed a series of rules designed, in
part, to attempt to bring order flow back to the exchanges from off-
exchange trading venues.\45\ In this regard, the proposed amendments
should not result in any new or novel issues to be considered by the
Commission or that have not already been contemplated by today's market
participants. For example, many exchanges, including the Exchange's
affiliate, Cboe BYX Exchange, Inc., offer retail price improvement
programs designed to attract retail order flow to regulated markets and
provide retail order flow with price improvement opportunities.\46\
Additionally, as noted in Amendment 1 of EDGX's Retail Priority
filing,\47\ customer priority has a long tradition in the options
market where orders entered on behalf of non-broker dealer public
customers have historically been afforded priority over orders
submitted by registered broker dealers. The aforementioned retail price
improvement programs and Retail Priority program each provide benefits
to Retail Orders not afforded to other customers by segmenting retail
order flow from traditional order flow. The Exchange's proposal does
not encourage additional segmentation, but rather seeks to enhance
existing benefits to retail customers by codifying that RMOs may
utilize a principal order type in order to provide additional post-
execution price improvement to Retail Orders.
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\44\ Supra note 41.
\45\ Supra note 42.
\46\ See, e.g., Cboe BYX Exchange Rule 11.24 (Retail Price
Improvement Program); NYSE National, Inc. Rule 7.44 (Retail
Liquidity Program); Investors Exchange Inc. Rule 11.232 (Retail
Price Improvement Program).
\47\ See Securities Exchange Act Release No. 86280 (July 2,
2019), 84 FR 32808 (July 9, 2019) (``Notice of Amendment No. 1'').
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Additionally, the Exchange does not believe its proposal unfairly
discriminates between Retail Orders--i.e., between Retail Orders that
are executed principally, and Retail Orders executed in an agency or
riskless principal capacity. While Retail Orders entered in a principal
capacity must satisfy additional requirements compared to Retail Orders
entered as agent or riskless principal, these requirements are designed
to ensure that the benefits of the Exchange's Retail Order program
accrue only to bona retail brokers and their retail customers.
Moreover, treating Retail Orders entered principally in the same manner
as Retail Orders entered as agent or riskless principal equally does
not unfairly discriminate between Retail Orders. The choice to enter a
Retail Order principally or as agent or riskless principal, does not
provide a Retail Order with any additional on-Exchange benefits--i.e.,
whether entered as principal, riskless principal, or agent, the Retail
Order will be handled in the same manner. The additional price
improvement received by principal Retail Orders is fully accrued off-
Exchange, when the RMO chooses to provide additional price improvement
to their retail customers post-execution on the Exchange.
The Exchange further believes that the proposed rule change will
increase intermarket competition by enabling the Exchange to better
compete with other exchanges and off-exchange trading venues for retail
order flow. The Commission has spoken about ``increasing competition
and enhancing the direct exposure of individual customer orders to a
broader spectrum of market participants'' \48\ and the Exchange
believes its proposed amendment to the definition of Retail Order will
help to encourage RMOs to
[[Page 43675]]
submit additional retail order flow to the Exchange. In turn, retail
customers will have additional opportunities to receive executions on a
transparent, regulated, national securities exchange in addition to the
currently available off-exchange trading venues, and could also create
additional incentives for regulated exchanges to develop additional
liquidity programs designed at providing additional benefits to retail
customers, thus promoting additional intermarket competition.
---------------------------------------------------------------------------
\48\ See Order Competition Rule at 178.
---------------------------------------------------------------------------
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. Proceedings To Determine Whether To Approve or Disapprove SR-
CboeEDGX-2025-035, as Modified by Amendment No. 1, and Grounds for
Disapproval Under Consideration
The Commission is instituting proceedings pursuant to Section
19(b)(2)(B) of the Act \49\ to determine whether the proposed rule
change, as modified by Amendment No. 1, should be approved or
disapproved. Institution of proceedings is appropriate at this time in
view of the legal and policy issues raised by the proposal. Institution
of proceedings does not indicate that the Commission has reached any
conclusions with respect to any of the issues involved. Rather, as
described below, the Commission seeks and encourages interested persons
to provide comments on the proposed rule change.
---------------------------------------------------------------------------
\49\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------
Pursuant to Section 19(b)(2)(B) of the Act,\50\ the Commission is
providing notice of the grounds for disapproval under consideration. As
described above, the Exchange has proposed to allow a Retail Member
Organization to enter a Retail Order onto the Exchange in a principal
capacity. The Commission is instituting proceedings to allow for
additional analysis of, and input from commenters with respect to, the
proposal's consistency with the Act, and in particular with Sections
6(b)(5) \51\ and 6(b)(8) \52\ of the Act. Section 6(b)(5) of the Act
requires that the rules of a national securities exchange be designed,
among other things, to promote just and equitable principles of trade,
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, and not be designed to permit unfair
discrimination between customers, issuers, brokers, or dealers. Section
6(b)(8) of the Act requires that the rules of a national securities
exchange not impose any burden on competition that is not necessary or
appropriate in furtherance of the purposes of the Act.
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\50\ Id.
\51\ 15 U.S.C. 78f(b)(5).
\52\ 15 U.S.C. 78f(b)(8).
---------------------------------------------------------------------------
The Commission asks that commenters address the sufficiency of the
Exchange's statements in support of the proposal, which are set forth
above, in addition to any other comments they may wish to submit about
the proposed rule change. In particular, the Commission seeks comment
on whether the proposed rule change would enhance the ability of bona
fide retail trading interest to compete for executions and whether the
proposed rule change would ensure that only bona fide retail orders
benefit from retail-only incentives provided by the Exchange.
IV. Procedure: Request for Written Comments
The Commission requests that interested persons provide written
submissions of their data, views, and arguments with respect to the
issues identified above, as well as any other concerns they may have
with the proposal. In particular, the Commission invites the written
views of interested persons concerning whether the proposed rule
change, as modified by Amendment No. 1, is consistent with Sections
6(b)(5) and 6(b)(8) or any other provision of the Act, and the rules
and regulations thereunder. Although there do not appear to be any
issues relevant to approval or disapproval that would be facilitated by
an oral presentation of data, views, and arguments, the Commission will
consider, pursuant to Rule 19b-4 under the Act,\53\ any request for an
opportunity to make an oral presentation.\54\
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\53\ 17 CFR 240.19b-4.
\54\ Section 19(b)(2) of the Act, as amended by the Securities
Acts Amendments of 1975, Public Law 94-29 (Jun. 4, 1975), grants to
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 a self-
regulatory organization. See Securities Acts Amendments of 1975,
Senate Comm. on Banking, Housing & Urban Affairs, S. Rep. No. 75,
94th Cong., 1st Sess. 30 (1975).
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Interested persons are invited to submit written data, views, and
arguments regarding whether the proposed rule change, as modified by
Amendment No. 1, should be approved or disapproved by October 1, 2025.
Any person who wishes to file a rebuttal to any other person's
submission must file that rebuttal by October 15, 2025.
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#3143445d541c525e5c5c545f4542714254521f565e47"><span class="__cf_email__" data-cfemail="2052554c450d434f4d4d454e5453605345430e474f56">[email protected]</span></a>. Please include
file number SR-CboeEDGX-2025-035 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-CboeEDGX-2025-035. 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 filing 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-CboeEDGX-2025-035 and should be
submitted by October 1, 2025. Rebuttal comments should be submitted by
October 15, 2025.
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. 2025-17333 Filed 9-9-25; 8:45 am]
BILLING CODE 8011-01-P
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