Federal Register / Vol. 88, No. 172 / Thursday, September 7, 2023 / Notices 61645 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

3See Securities Exchange Act Release No. 91963 

(May 21, 2021), 86 FR 28662 (May 27, 2021) (SR– 

EMERALD–2021–18) (Notice of Filing and 

Immediate Effectiveness of a Proposed Rule Change 

To Adopt a New Historical Market Data Product To 

Be Known as the Open-Close Report). 

4The term ‘‘Member’’ means an individual or 

organization approved to exercise the trading rights 

associated with a Trading Permit. Members are 

deemed ‘‘members’’ under the Exchange Act. See 

Exchange Rule 100. 

5See Securities Exchange Act Release No. 92138 

(June 9, 2021), 86 FR 31769 (June 15, 2021) (SR– 

EMERALD–2021–20) (Notice of Filing and 

Immediate Effectiveness of a Proposed Rule Change 

To Amend Its Fee Schedule To Adopt Fees for the 

Open-Close Report). 

6See the Exchange’s press release ‘‘MIAX 

Emerald Successfully Launches Trading 

Operations’’ available at https://

www.prnewswire.com/news-releases/miax-emeraldsuccessfully-launches-trading-operations300805959.html. 

7 15 U.S.C. 78f(b). 

8 15 U.S.C. 78f(b)(4). 

9 15 U.S.C. 78f(b)(5). 

10BOX Options Market LLC (‘‘BOX’’) offers a 

market data report for Intraday Ad-hoc Requests 

(historical data) beginning with January 2018. BOX 

charges $1,000 per request per month. See the BOX 

fee schedule, available at https://boxexchange.com/ 

assets/BOX-Fee-Schedule-as-of-July-3-2023.pdf. 

Nasdaq ISE, LLC (‘‘ISE’’) offers the market data 

report for Nasdaq ISE Intraday Ad-hoc Requests 

(historical data) beginning with May 2005. See 

https://www.nasdaq.com/solutions/nasdaq-openclose-trade-profiles%3A-ise-and-gemx. ISE charges 

$1,000 per request per month. See ISE fee schedule, 

available at https://listingcenter.nasdaq.com/ 

rulebook/ise/rules/ise-options-7. Nasdaq PHLX LLC 

(‘‘PHLX’’) offers historical data for its intra-day 

report starting in January 2009 for purchase on an 

ad-hoc basis. See https://www.nasdaqtrader.com/ 

micro.aspx?id=photo. PHXL charges $1,000 per 

month or $12,000 for the most recent 36 months to 

firms currently subscribed to the on-going 

subscription. See PHLX fee schedule, available at 

Continued 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–98259; File No. SR– 

EMERALD–2023–21] 

Self-Regulatory Organizations; MIAX 

Emerald, LLC; Notice of Filing and 

Immediate Effectiveness of a Proposed 

Rule Change To Amend the 

Exchange’s Options Fee Schedule To 

Extend the Date for Which Ad Hoc 

Requests for Historical Intra-Day 

Open-Close Report Data May Be 

Requested 

August 31, 2023. 

Pursuant to the provisions of 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 August 18, 2023, MIAX Emerald, 

LLC (‘‘MIAX Emerald’’ or ‘‘Exchange’’) 

filed with the Securities and Exchange 

Commission (‘‘Commission’’) a 

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. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange proposes to amend the 

Exchange’s Options Fee Schedule (‘‘Fee 

Schedule’’) to extend the date for which 

ad hoc requests for historical intra-day 

Open-Close Report data may be 

requested. 

The text of the proposed rule change 

is available on the Exchange’s website at 

https://www.miaxglobal.com/markets/ 

us-options/emerald-options/rule-filings, 

at MIAX Emerald’s principal office, and 

at the Commission’s Public Reference 

Room. 

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, the 

Exchange included statements 

concerning the purpose of and basis for 

the proposed rule change and discussed 

any comments it received on the 

proposed rule change. The text of these 

statements may be examined at the 

places specified in Item IV below. The 

Exchange has prepared summaries, set 

forth in sections A, B, and C below, of 

the most significant aspects of such 

statements. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

The Exchange adopted a new data 

product for options known as the OpenClose Report,3 which the Exchange 

made available for purchase to 

Exchange Members 4 and non-Members 

on June 1, 2021.5 The Open-Close 

Report is described under Exchange 

Rule 531(d)(1). 

By way of background, the Exchange 

offers two versions of the Open-Close 

Report, an end-of-day summary and 

intra-day report, both of which can be 

requested on an ad-hoc basis. The OpenClose Report data is proprietary 

Exchange trade data and does not 

include trade data from any other 

exchange. It is also a historical data 

product and not a real-time data feed. 

The Exchange notes that Open-Close 

Report data is not necessary for trading 

and subscribing to the Open-Close 

Report is completely optional. 

The Exchange charges Members and 

Non-Members who request on an ad hoc 

basis historical intra-day Open-Close 

Report data $1,000 per request per 

month. The Fee Schedule currently 

specifies that an ad hoc request may be 

for any number of months beginning 

with June 2021, the month in which the 

Exchange first made the Open-Close 

Report available. The Exchange recently 

completed an initiative to now make 

available historical intra-day OpenClose Report data beginning with March 

2019, the first full month in which the 

Exchange began operations.6

The Exchange now proposes to amend 

the Fee Schedule to reflect that ad hoc 

requests for historical intra-day OpenClose Report data may be made for data 

dating back to March 2019. The 

Exchange does not propose to amend 

the fee for ad hoc request for historical 

intra-day Open-Close Report data. 

Implementation Date 

The Exchange intends to implement 

the proposed changes immediately. 

2. Statutory Basis 

The Exchange believes that its 

proposal to permit ad-hoc requests for 

historical intra-day Open-Close Report 

data to be made for data going back to 

March 2019 and to correspondingly 

amend its Fee Schedule is consistent 

with Section 6(b) of the Act 7 in general, 

and furthers the objectives of Section 

6(b)(4) of the Act 8 in particular, in that 

it is an equitable allocation of 

reasonable fees and other charges among 

its Members and issuers and other 

persons using its facilities. The 

Exchange also believes that its proposal 

to permit ad-hoc requests for historical 

intra-day Open-Close Report data to be 

made for data going back to March 2019 

and to correspondingly amend its Fee 

Schedule is consistent with Section 

6(b)(5) of the Act 9 in that it is designed 

to promote just and equitable principles 

of trade, remove impediments to and 

perfect the mechanism of a free and 

open market and a national market 

system, and it is not designed to permit 

unfair discrimination among customers, 

brokers, or dealers. 

The Exchange believes its proposal is 

reasonable and not unfairly 

discriminatory because the Exchange 

now has over four years of historical 

intra-day Open-Close Report data to 

provide to market participants who 

request ad-hoc historical intra-day 

Open-Close Report data since the 

Exchange’s first full month of operations 

in March 2019. The Exchange notes that 

competing exchanges offer similar 

historical data products,10 which 


ddrumheller on DSK120RN23PROD with NOTICES1
61646 Federal Register / Vol. 88, No. 172 / Thursday, September 7, 2023 / Notices 

https://listingcenter.nasdaq.com/rulebook/phlx/ 

rules/Phlx%20Options%207. 

11The Exchange notes that its Open-Close Report 

data product does not include data on any 

exclusive, singly-listed option series. 

12See supra note 10. 

13 15 U.S.C. 78f(b)(5). 

14See supra note 10. 

15 15 U.S.C. 78s(b)(3)(A). 

16 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– 

4(f)(6)(iii) requires a self-regulatory organization to 

give the Commission written notice of its intent to 

file the proposed rule change, along with a brief 

description and text of the proposed rule change, 

at least five business days prior to the date of filing 

of the proposed rule change, or such shorter time 

as designated by the Commission. The Exchange 

has satisfied this requirement. 

17 17 CFR 240.19b–4(f)(6). 

18 17 CFR 240.19b–4(f)(6)(iii). 

provide insight into trading on those 

markets. The Exchange believes that its 

proposal to expand this particular range 

of available historical data will allow 

the Exchange to compete better with the 

other exchanges that offer similar 

historical intra-day reports. Although 

each of these similar Open-Close Report 

data products provide only proprietary 

trade data and not trade data from 

competing exchanges, it is possible 

investors are still able to gauge overall 

investor sentiment across different 

option series based on open and closing 

interest on any one exchange.11

Similarly, market participants may be 

able to analyze option trade and volume 

data, and create and test trading models 

and analytical strategies using only 

Open-Close data, including historical 

intra-day data, relating to trading 

activity on one or more of the competing 

markets that provide similar data 

products. As such, if a market 

participant views another exchange’s 

historical intra-day Open-Close data as 

more attractive than the Exchange’s 

historical intra-day Open-Close Report 

data, then such market participant can 

choose not to request such data from the 

Exchange and instead purchase another 

exchange’s historical intra-day OpenClose data, which offers similar data 

points, albeit based on that other 

market’s trading activity. 

The Exchange also believes its 

proposal is reasonable as it would 

further enhance the usefulness of its 

Open-Close Report data, which is 

designed to aid investors by providing 

insight into trading on the Exchange. 

Providing market data, such as the 

historical intra-day Open-Close Report, 

is also a means by which exchanges 

compete to attract business. Purchasers 

that receive the expanded historical 

intra-day Open-Close Report data as a 

result of this proposal, may use such 

data to evaluate the usefulness of the 

Exchange’s Open-Close Report and 

decide, based on that data, whether to 

purchase the Open-Close Report. To the 

extent that the Exchange is successful in 

selling the ad-hoc historical intra-day 

Open-Close Report, it may earn trading 

revenues and further enhance the value 

of its data products. 

The Exchange currently charges 

$1,000 per request per month for ad hoc 

requests for its historical intra-day 

Open-Close Report data, which is in line 

with, or lower than, the per request 

amounts charged by competing 

exchanges for their similar historical 

data products.12 The Exchange does not 

propose to amend the amount of the fee 

for ad hoc requests for historical intraday Open-Close Report data. 

In adopting Regulation NMS, the 

Commission granted self-regulatory 

organizations (‘‘SROs’’) and brokerdealers increased authority and 

flexibility to offer new and unique 

market data to the public. It was 

believed that this authority would 

expand the amount of data available to 

consumers, and also spur innovation 

and competition for the provision of 

market data. Particularly, the expanded 

historical intra-day Open-Close Report 

data further broadens the availability of 

U.S. option market data to investors 

consistent with the principles of 

Regulation NMS. 

The Exchange believes that its 

proposal to permit ad-hoc requests for 

historical intra-day Open-Close Report 

data to be made for data going back to 

March 2019 is consistent with Section 

6(b)(5) of the Act 13 in that it is designed 

to promote just and equitable principles 

of trade, remove impediments to and 

perfect the mechanism of a free and 

open market and a national market 

system, and it is not designed to permit 

unfair discrimination among customers, 

brokers, or dealers. In particular, the 

proposed extended historical data range 

would remove impediments to and 

perfect the mechanism of a free and 

open market and benefit Members and 

market participants by providing access 

to an expanded range of historical intraday Open-Close Report data, which as 

noted above, may aid investors by 

providing insight into trading on the 

Exchange, as well as research and 

studies of the options industry as a 

whole. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

The Exchange does not believe that 

the proposed rule change will result in 

any burden on competition that is not 

necessary or appropriate in furtherance 

of the purposes of the Act. Rather, the 

Exchange believes that the proposal will 

promote competition by permitting the 

Exchange to sell, for months not 

previously available, a historic data 

product similar to those offered by other 

competitor options exchanges.14 The 

Exchange made the expanded historical 

intra-day Open-Close Report data 

available in order to keep pace with 

changes in the industry and evolving 

customer needs, and believes that 

providing such data to market 

participants that make requests for it 

will continue to contribute to robust 

competition among national securities 

exchanges. 

The Exchange also does not believe 

the proposal would cause any 

unnecessary or inappropriate burden on 

intermarket competition as other 

exchanges are free to expand their own 

comparable data product and compete 

with the Exchange’s offering. The 

Exchange does not believe the proposed 

rule change would cause any 

unnecessary or inappropriate burden on 

intramarket competition because the 

expanded date range will be available to 

both Members and non-Members 

equally. 

C. Self-Regulatory Organization’s 

Statement on Comments on the 

Proposed Rule Change Received From 

Members, Participants, or Others 

Written comments were neither 

solicited nor received. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

Because the foregoing proposed rule 

change does not: (i) significantly affect 

the protection of investors or the public 

interest; (ii) impose any significant 

burden on competition; and (iii) become 

operative for 30 days from the date on 

which it was filed, or such shorter time 

as the Commission may designate, it has 

become effective pursuant to Section 

19(b)(3)(A) of the Act 15 and Rule 19b– 

4(f)(6) thereunder.16

A proposed rule change filed under 

Rule 19b–4(f)(6) 17 normally does not 

become operative prior to 30 days after 

the date of the filing. However, Rule 

19b–4(f)(6)(iii) 18 permits the 

Commission to designate a shorter time 

if such action is consistent with the 

protection of investors and the public 

interest. The Exchange has requested 

that the Commission to waive the 30- 

day operative delay so that the proposal 

may become operative immediately 

upon filing. The Exchange states that 

the proposal expands the data available 

under an existing product, the intra-day 

Open-Close Report, and that this 

product is designed to compete with 


ddrumheller on DSK120RN23PROD with NOTICES1
Federal Register / Vol. 88, No. 172 / Thursday, September 7, 2023 / Notices 61647 

19See supra note 10. 

20For purposes only of waiving the 30-day 

operative delay, the Commission has also 

considered the proposed rule’s impact on 

efficiency, competition, and capital formation. See 

15 U.S.C. 78c(f). 

21 17 CFR 200.30–3(a)(12), (59). 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

3See Securities Exchange Act Release No. 97884 

(July 12, 2023), 88 FR 45947. Comments on the 

proposed rule change are available at: http://

www.sec.gov/comments/sr-nysearca-2023-44/ 

srnysearca202344.htm. 

4 15 U.S.C. 78s(b)(2). 

5 15 U.S.C. 78s(b)(2). 

6 17 CFR 200.30–3(a)(31). 

products that other exchanges offer.19

The Exchange further states that it does 

not propose to amend the fee for ad hoc 

requests for historical intra-day OpenClose Report data. For these reasons, 

and because the proposal raises no 

novel legal or regulatory issues, the 

Commission believes that waiver of the 

30-day operative delay is consistent 

with the protection of investors and the 

public interest. Accordingly, the 

Commission hereby waives the 30-day 

operative delay and designates the 

proposed rule change as operative upon 

filing.20

At any time within 60 days of the 

filing of the proposed rule change, the 

Commission summarily may 

temporarily suspend such rule change if 

it appears to the Commission that such 

action is necessary or appropriate in the 

public interest, for the protection of 

investors, or otherwise in furtherance of 

the purposes of the Act. If the 

Commission takes such action, the 

Commission shall institute proceedings 

to determine whether the proposed rule 

change should be approved or 

disapproved. 

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 

• Use the Commission’s internet 

comment form (https://www.sec.gov/ 

rules/sro.shtml); or 

• Send an email to rule-comments@

sec.gov. Please include file number 

SR–EMERALD–2023–21 on the 

subject line. 

Paper Comments 

• Send paper comments in triplicate 

to Secretary, Securities and Exchange 

Commission, 100 F Street NE, 

Washington, DC 20549–1090. 

All submissions should refer to file 

number SR–EMERALD–2023–21. 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 (https://www.sec.gov/ 

rules/sro.shtml). 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–EMERALD–2023–21 and should be 

submitted on or before September 28, 

2023. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.21

Sherry R. Haywood, 

Assistant Secretary. 

[FR Doc. 2023–19233 Filed 9–6–23; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–98268; File No. SR– 

NYSEARCA–2023–44] 

Self-Regulatory Organizations; NYSE 

Arca, Inc.; Notice of Designation of a 

Longer Period for Commission Action 

on a Proposed Rule Change to List and 

Trade Shares of the Bitwise Bitcoin 

ETP Trust Under NYSE Arca Rule 

8.201–E (Commodity-Based Trust 

Shares) 

August 31, 2023. 

On June 28, 2023, NYSE Arca, Inc. 

(‘‘NYSE Arca’’ or ‘‘Exchange’’) filed 

with the Securities and Exchange 

Commission (‘‘Commission’’), pursuant 

to section 19(b)(1) of the Securities 

Exchange Act of 1934 (‘‘Act’’) 1 and Rule 

19b–4 thereunder,2 a proposed rule 

change to list and trade shares of the 

Bitwise Bitcoin ETP Trust under NYSE 

Arca Rule 8.201–E (Commodity-Based 

Trust Shares). The proposed rule change 

was published for comment in the 

Federal Register on July 18, 2023.3

Section 19(b)(2) of the Act 4 provides 

that within 45 days of the publication of 

notice of the filing of a proposed rule 

change, or within such longer period up 

to 90 days as the Commission may 

designate if it finds such longer period 

to be appropriate and publishes its 

reasons for so finding or as to which the 

self-regulatory organization consents, 

the Commission shall either approve the 

proposed rule change, disapprove the 

proposed rule change, or institute 

proceedings to determine whether the 

proposed rule change should be 

disapproved. The 45th day after 

publication of the notice for this 

proposed rule change is September 1, 

2023. The Commission is extending this 

45-day time period. 

The Commission finds it appropriate 

to designate a longer period within 

which to take action on the proposed 

rule change so that it has sufficient time 

to consider the proposed rule change 

and the issues raised therein. 

Accordingly, the Commission, pursuant 

to section 19(b)(2) of the Act,5

designates October 16, 2023, as the date 

by which the Commission shall either 

approve or disapprove, or institute 

proceedings to determine whether to 

disapprove, the proposed rule change 

(File No. SR–NYSEARCA–2023–44). 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.6

Sherry R. Haywood, 

Assistant Secretary. 

[FR Doc. 2023–19242 Filed 9–6–23; 8:45 am] 

BILLING CODE 8011–01–P 


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