Notice2025-18249
Self-Regulatory Organizations; Nasdaq GEMX, LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Lower the Options Regulatory Fee (ORF)
Primary source
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Published
September 22, 2025
Issuing agencies
Securities and Exchange Commission
Full Text
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<title>Federal Register, Volume 90 Issue 181 (Monday, September 22, 2025)</title>
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[Federal Register Volume 90, Number 181 (Monday, September 22, 2025)]
[Notices]
[Pages 45446-45449]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-18249]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-103990; File No. SR-GEMX-2025-24]
Self-Regulatory Organizations; Nasdaq GEMX, LLC; Notice of Filing
and Immediate Effectiveness of a Proposed Rule Change To Lower the
Options Regulatory Fee (ORF)
September 17, 2025.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on September 5, 2025, Nasdaq GEMX, LLC (``GEMX'' or ``Exchange'') filed
with the Securities and Exchange Commission (``Commission'') the
proposed rule change as described in Items I and II below, which Items
have been prepared by the Exchange. The Commission is publishing this
notice to solicit comments on the proposed rule change from interested
persons.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange proposes to decrease GEMX's Options Regulatory Fee or
``ORF.''
While the changes proposed herein are effective upon filing, the
Exchange has designated the amendments become operative on October 1,
2025.
The text of the proposed rule change is available on the Exchange's
website at <a href="https://listingcenter.nasdaq.com/rulebook/gemx/rulefilings">https://listingcenter.nasdaq.com/rulebook/gemx/rulefilings</a>
and at the principal office of the Exchange.
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.
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A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
1. Purpose
GEMX proposes to decrease its ORF at Options 7, Section 5 from
$0.0009 to $0.0002 per contract side effective October 1, 2025.
Background on Current ORF
Today, GEMX assesses its ORF for each Customer option transaction
that is either: (1) executed by a Member \3\ on GEMX; or (2) cleared by
an GEMX Member at OCC in the Customer range, even if the transaction
was executed by a non-Member of GEMX, regardless of the exchange on
which the transaction occurs.\4\ If the OCC clearing member is an GEMX
Member, ORF is assessed and collected on all ultimately cleared
Customer contracts (after adjustment for CMTA \5\); and (2) if the OCC
clearing member is not an GEMX Member, ORF is collected only on the
cleared Customer contracts executed at GEMX, taking into account any
CMTA instructions which may result in collecting the ORF from a non-
Member.\6\ The current GEMX ORF is $0.0009 per contract side.
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\3\ The term ``Member'' means an organization that has been
approved to exercise trading rights associated with Exchange Rights.
See General 1, Section 1(a)(13).
\4\ The Exchange uses reports from OCC when assessing and
collecting the ORF. Market participants must record the appropriate
account origin code on all orders at the time of entry of the order.
The Exchange represents that it has surveillances in place to verify
that members mark orders with the correct account origin code.
\5\ CMTA or Clearing Member Trade Assignment is a form of
``give-up'' whereby the position will be assigned to a specific
clearing firm at OCC.
\6\ By way of example, if Broker A, an GEMX Member, routes a
Customer order to CBOE and the transaction executes on CBOE and
clears in Broker A's OCC Clearing account, ORF will be collected by
GEMX from Broker A's clearing account at OCC via direct debit. While
this transaction was executed on a market other than GEMX, it was
cleared by an GEMX Member in the member's OCC clearing account in
the Customer range, therefore there is a regulatory nexus between
GEMX and the transaction. If Broker A was not an GEMX Member, then
no ORF should be assessed and collected because there is no nexus;
the transaction did not execute on GEMX nor was it cleared by an
GEMX Member.
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Today, in the case where a Member both executes a transaction and
clears the transaction, the ORF will be assessed to and collected from
that Member. Today, in the case where a Member executes a transaction
and a different Member clears the transaction, the ORF will be assessed
to and collected from the Member who clears the transaction and not the
Member who executes the transaction. Today, in the case where a non-
Member executes a transaction at an away market and a Member clears the
transaction, the ORF will be assessed to and collected from the Member
who clears the transaction. Today, in the case where a Member executes
a transaction on GEMX and a non-Member clears the transaction, the ORF
will be assessed to the Member that executed the transaction on GEMX
and collected from the non-Member who cleared the transaction. Today,
in the case where a Member executes a transaction at an away market and
a non-Member ultimately clears the transaction, the ORF will not be
assessed to the Member who executed the transaction or collected from
the non-Member who cleared the transaction because the Exchange does
not have access to the data to make absolutely certain that ORF should
apply. Further, the data does not allow the Exchange to identify the
Member executing the trade at an away market.
ORF Revenue and Monitoring of ORF
Today, the Exchange monitors the amount of revenue collected from
the ORF (``ORF Regulatory Revenue'') to ensure that it, in combination
with other regulatory fees and fines, does not exceed Options
Regulatory Costs.\7\ In determining whether an expense is considered an
Options Regulatory Cost, the Exchange reviews all costs and makes
determinations if there is a nexus between the expense and a regulatory
function. The Exchange notes that fines collected by the Exchange in
connection with a disciplinary matter offset Options Regulatory Cost.
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\7\ The regulatory costs for options comprise a subset of the
Exchange's regulatory budget that is specifically related to options
regulatory expenses and encompasses the cost to regulate all
Members' options activity (``Options Regulatory Cost'').
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ORF Regulatory Revenue, when combined with all of the Exchange's
other regulatory fees and fines, is designed to recover the Options
Regulatory Costs to the Exchange of the supervision and regulation of
member Customer options business including performing routine
surveillances, investigations, examinations, financial monitoring, and
policy, rulemaking, interpretive, and enforcement activities. Options
Regulatory Costs include direct regulatory expenses and certain
indirect expenses in support of the regulatory function. The direct
expenses include in-house and third-party service provider costs to
support the day-to-day regulatory work such as surveillance,
investigations, and examinations. The indirect expenses are only those
expenses that are in support of the regulatory functions, such areas
include Office of the General Counsel, technology, finance, and
internal audit. Indirect expenses will not exceed 35% of the total
Options Regulatory Costs, in which case direct expenses could be 65% or
more of total Options Regulatory Costs.\8\
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\8\ Direct and indirect expenses are based on the Exchange's
2025 Regulatory Budget.
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Proposal for October 1, 2025
At this time, the Exchange proposes to decrease GEMX's ORF from
$0.0009 to $0.0002 per contract side, effective October 1, 2025, as a
result of fines received by the Exchange. As noted above, fines
collected by the Exchange in connection with a disciplinary matter
offset Options Regulatory Cost.
GEMX notes that there can be no assurance that the Options
Regulatory Costs for the remainder of 2025 will not differ materially
from these expectations and prior practice, nor can the Exchange
predict with certainty whether options volume will remain at the
current level going forward. The Exchange notes however, that when
combined with regulatory fees and fines, the ORF Regulatory Revenue
that may be generated utilizing an ORF rate of $0.0009 per contract
side may result in ORF Regulatory Revenue which exceeds the Exchange's
estimated Options Regulatory Costs for 2025. The Exchange therefore
proposes to reduce its ORF to $0.0002 per contract side to ensure that
ORF Regulatory Revenue does not exceed the Exchange's estimated Options
Regulatory Costs in 2025. Particularly, the Exchange believes that
reducing the ORF when combined with all of the Exchange's other
regulatory fees and fines, would allow the Exchange to continue
covering its Options Regulatory Costs, while lessening the potential
for generating excess revenue that may otherwise occur using the rate
of $0.0009 per contract side.\9\ The Exchange notified Members of the
proposed decrease to the ORF through an Options Trader Alert.\10\
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\9\ The Exchange notes that its regulatory responsibilities with
respect to Member compliance with options sales practice rules have
largely been allocated to FINRA under a 17d-2 agreement. The ORF is
not designed to cover the cost of that options sales practice
regulation.
\10\ See Options Trader Alert #2025-37.
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The Exchange will continue to monitor the amount of ORF Regulatory
Revenue collected from the ORF to ensure that ORF Regulatory Revenue,
in combination with its other regulatory fees and fines, does not
exceed Options Regulatory Costs. If the Exchange determines that to be
the case, the Exchange will adjust the ORF by
[[Page 45448]]
submitting a fee change filing to the Commission and notifying \11\ its
Members via an Options Trader Alert.\12\
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\11\ The Exchange will provide Members with such notice at least
30 calendar days prior to the effective date of the change.
\12\ The Exchange notes that in connection with this proposal,
it provided the Commission confidential details regarding the
Exchange's projected regulatory revenue, including projected revenue
from ORF, along with a projected regulatory expense.
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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.\13\ Specifically, the
Exchange believes the proposed rule change is consistent with Section
6(b)(4) of the Act,\14\ which provides that Exchange rules may provide
for the equitable allocation of reasonable dues, fees, and other
charges among its members, and other persons using its facilities.
Additionally, the Exchange believes the proposed rule change is
consistent with the Section 6(b)(5) \15\ requirement that the rules of
an exchange not be designed to permit unfair discrimination between
customers, issuers, brokers, or dealers.
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\13\ 15 U.S.C. 78f(b).
\14\ 15 U.S.C. 78f(b)(4).
\15\ 15 U.S.C. 78f(b)(5).
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The Exchange believes the proposed reduction of ORF is reasonable
because it would help ensure that ORF Regulatory Revenue does not
exceed a material portion of the Exchange's ORF Regulatory Costs. As
noted above, the ORF is designed to recover a material portion, but not
all, of the Exchange's ORF Regulatory Costs. Further, the Exchange
believes the proposed fee change is reasonable because Customer
transactions will be subject to a lower ORF than the rate that would
otherwise be in effect on October 1, 2025.
The Exchange had designed the ORF to generate ORF Regulatory
Revenue that would be less than the amount of the Exchange's ORF
Regulatory Costs to ensure that it, in combination with its other
regulatory fees and fines, does not exceed ORF Regulatory Costs, which
is consistent with the view of the Commission that regulatory fees be
used for regulatory purposes and not to support the Exchange's business
operations. As discussed above, however, after review of its ORF
Regulatory Costs and ORF Regulatory Revenue, which includes revenues
from ORF and other regulatory fees and fines, the Exchange determined
that absent a reduction in ORF it may collect ORF Regulatory Revenue
which would exceed its ORF Regulatory Costs. Indeed, the Exchange notes
that when taking into account the lower cost resulting from fines
received by the Exchange, it estimates the ORF may generate ORF
Regulatory Revenue that would cover more than the approximated
Exchange's projected ORF Regulatory Costs. As such, the Exchange
believes it's reasonable and appropriate to reduce the ORF amount from
$0.0009 to $0.0002 per contract side.
The Exchange also believes the proposed fee change is equitable and
not unfairly discriminatory in that it is charged to all Members on all
their transactions that clear in the Customer range at OCC.\16\ The
Exchange believes the ORF ensures fairness by assessing higher fees to
those Members that require more Exchange regulatory services based on
the amount of Customer options business they conduct. Regulating
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. For example, there are costs associated with main
office and branch office examinations (e.g., staff expenses), as well
as investigations into Customer complaints and the terminations of
registered persons. As a result, 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 of its regulatory program.
Moreover, the Exchange notes that it has broad regulatory
responsibilities with respect to activities of its Members, a small
portion of which takes place on away exchanges. Indeed, the Exchange
cannot effectively review for such conduct without looking at and
evaluating activity regardless of where it transpires. In addition to
its own surveillance programs, the Exchange also works with other SROs
and exchanges on intermarket surveillance related issues. Through its
participation in the Intermarket Surveillance Group (``ISG'') \17\ the
Exchange shares information and coordinates inquiries and
investigations with other exchanges designed to address potential
intermarket manipulation and trading abuses. Accordingly, there is a
strong nexus between the ORF and the Exchange's regulatory activities
with respect to Customer trading activity of its Members.
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\16\ If the OCC clearing member is a GEMX Member, ORF will be
assessed and collected on all cleared Customer contracts (after
adjustment for CMTA); and (2) if the OCC clearing member is not a
GEMX Member, ORF will be collected only on the cleared Customer
contracts executed at GEMX, taking into account any CMTA
instructions which may result in collecting the ORF from a non-
member.
\17\ ISG is an industry organization formed in 1983 to
coordinate intermarket surveillance among the self-regulatory
organizations by cooperatively sharing regulatory information
pursuant to a written agreement between the parties. The goal of the
ISG's information sharing is to coordinate regulatory efforts to
address potential intermarket trading abuses and manipulations.
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B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change will
impose any burden on competition not necessary or appropriate in
furtherance of the purposes of the Act. This proposal does not create
an unnecessary or inappropriate intra-market burden on competition
because ORF applies to all customer activity, thereby raising ORF
Regulatory Revenue to offset Options Regulatory Cost. It also
supplements the regulatory revenue derived from non-customer activity.
The Exchange notes, however, the proposed change is not designed to
address any competitive issues. Indeed, this proposal does not create
an unnecessary or inappropriate inter-market burden on competition
because it is a regulatory fee that supports regulation in furtherance
of the purposes of the Act. The Exchange is obligated to ensure that
the amount of ORF Regulatory Revenue collected from the ORF, in
combinations with its other regulatory fees and fines, does not exceed
Options Regulatory Cost.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
No written comments were either solicited or received.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
The foregoing rule change has become effective pursuant to Section
19(b)(3)(A) of the Act \18\ and paragraph (f) of Rule 19b-4 \19\
thereunder. At any time within 60 days of the filing of the proposed
rule change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the
[[Page 45449]]
Commission will institute proceedings to determine whether the proposed
rule change should be approved or disapproved.
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\18\ 15 U.S.C. 78s(b)(3)(A).
\19\ 17 CFR 240.19b-4(f).
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IV. Solicitation of Comments
Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
<bullet> Use the Commission's internet comment form (<a href="https://www.sec.gov/rules/sro.shtml">https://www.sec.gov/rules/sro.shtml</a>); or
<bullet> Send an email to <a href="/cdn-cgi/l/email-protection#3d4f485158105e5250505853494e7d4e585e135a524b"><span class="__cf_email__" data-cfemail="b8cacdd4dd95dbd7d5d5ddd6cccbf8cbdddb96dfd7ce">[email protected]</span></a>. Please include
file number SR-GEMX-2025-24 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-GEMX-2025-24. 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-GEMX-2025-24 and should be submitted on
or before October 14, 2025.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\20\
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\20\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2025-18249 Filed 9-19-25; 8:45 am]
BILLING CODE 8011-01-P
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