67398 Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / Notices 

3See Securities Exchange Act Release No. 98231 

(August 28, 2023), 88 FR 60516. No comments have 

been received on the proposed rule change. 

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

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

6 17 CFR 200.30–3(a)(31). 

1 15 U.S.C 78k–1. 

2 17 CFR 242.608. 

3The OPRA Plan is a national market system plan 

approved by the Commission pursuant to Section 

11A of the Act and Rule 608 thereunder. See 

Securities Exchange Act Release No. 17638 (Mar. 

18, 1981), 22 SEC. Docket 484 (Mar. 31, 1981). The 

full text of the OPRA Plan and a list of its 

participants are available at https://

www.opraplan.com/. The OPRA Plan provides for 

the collection and dissemination of last sale and 

quotation information on options that are traded on 

the participant exchanges. 

4See Securities Exchange Act Release No. 98012 

(July 27, 2023), 88 FR 50939 (‘‘Notice’’). 

5 17 CFR 242.608(b)(2)(i). 

6The full text of the Proposed Amendment 

appears as Attachment A to the Notice. See Notice, 

supra note 4, 88 FR at 50941–42. 7See id. at 50939. 8See id. 

9See id. 

10See id. 

11See id. 

12See id. at 50939–40 (stating OPRA ‘‘used the 

negotiation process as an opportunity to ensure that 

SIAC’s ability to increase the amount of port fees 

would be capped during the term of the 2015 

Processor Agreement for all OPRA data recipients, 

including OPRA members, who were authorized to 

receive direct access to OPRA data.’’). 

change to amend the initial period after 

commencement of trading of a series of 

ETF Shares on the Exchange as it 

specifically relates to holders of record 

and/or beneficial holders under BZX 

Rule 14.11(l). The proposed rule change 

was published for comment in the 

Federal Register on September 1, 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 October 16, 

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 November 30, 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–CboeBZX– 

2023–062). 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.6

Sherry R. Haywood, 

Assistant Secretary. 

[FR Doc. 2023–21341 Filed 9–28–23; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–98514; File No. SR–OPRA– 

2023–01] 

Joint Industry Plan; Order Instituting 

Proceedings To Determine Whether To 

Approve or Disapprove a Proposed 

Amendment To Modify the Options 

Price Reporting Authority’s Fee 

Schedule Regarding Caps on the 

Amounts of Certain Port Fees 

September 25, 2023. 

I. Introduction 

On July 14, 2023, the Options Price 

Reporting Authority (‘‘OPRA’’), 

pursuant to Section 11A of the 

Securities Exchange Act of 1934 

(‘‘Act’’) 1 and Rule 608 of Regulation 

National Market System (‘‘Regulation 

NMS’’) thereunder,2 filed with the 

Securities and Exchange Commission 

(‘‘Commission’’) a proposed amendment 

to the Plan for Reporting of 

Consolidated Options Last Sale Reports 

and Quotation Information (‘‘OPRA 

Plan’’).3 The proposed OPRA Plan 

amendment (‘‘Proposed Amendment’’) 

would amend the OPRA Fee Schedule 

to reflect the applicable monthly fee 

caps on certain connectivity ports that 

are used to access OPRA data. The 

Proposed Amendment was published 

for comment in the Federal Register on 

August 2, 2023.4 The Commission has 

not received any comments on the 

Proposed Amendment. 

This order institutes proceedings, 

under Rule 608(b)(2)(i) of Regulation 

NMS,5 to determine whether to approve 

or disapprove the Proposed Amendment 

or to approve the Proposed Amendment 

with any changes or subject to any 

conditions the Commission deems 

necessary or appropriate after 

considering public comment. 

II. Summary of the Proposed 

Amendment 6

OPRA states that the Proposed 

Amendment is designed to amend the 

OPRA Fee Schedule to provide public 

notice that OPRA negotiated terms in 

the 2021 Processor Services Agreement 

(the ‘‘2021 Processor Agreement’’) 

between OPRA and the Securities 

Industry Automation Corporation 

(‘‘SIAC’’) that impose caps on certain 

port fees that can be charged per month 

when SIAC, either directly or through a 

third party, provides direct access to 

OPRA data to any person authorized by 

OPRA to receive direct access to OPRA 

data.7 OPRA further states that, under 

the 2021 Processor Agreement, SIAC is 

OPRA’s ‘‘processor,’’ meaning that SIAC 

gathers the last sale and quote 

information from each of the OPRA 

members, consolidates that information, 

and disseminates the consolidated 

OPRA data.8 According to OPRA, as the 

processor, SIAC works directly with 

OPRA members and data vendors to 

provide connectivity to SIAC, and 

connectivity to SIAC is currently 

provided by an affiliate of SIAC, the ICE 

Global Network (‘‘IGN’’), which both 

sets and charges the port fees associated 

with that connectivity.9

OPRA states that recipients of OPRA 

data can access that data using a 10 

gigabit (‘‘Gb’’), 40 Gb, or 100 Gb network 

connection. OPRA further states that it 

has contractually capped the 

connectivity or ‘‘port’’ fees that SIAC, or 

any third party utilized by SIAC, may 

charge to provide direct connectivity to 

OPRA data using a 10 Gb or 40 Gb 

connection and that it has ‘‘the right to 

approve a cap on port fees that could be 

charged for . . . higher capacity ports’’ 

in the event that such higher capacity 

ports become available in the future.10

OPRA states that the negotiated port 

fee caps of $16,000 per month per 10 Gb 

port and $20,500 per month per 40 Gb 

port were established as part of the 2015 

Processor Agreement between OPRA 

and SIAC.11 OPRA further states that 

these caps were retained in the 2021 

Processor Agreement,12 and that 

OPRA’s Management Committee 


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13See id. 

14See id. at 50939. 

15 Id. 

16 Id. 

17 17 CFR 242.608(b)(2)(i). 

18 17 CFR 201.700. 

19 17 CFR 242.608(b)(2). 

20See id. 

21 17 CFR 242.608(b)(2)(i). See also Commission 

Rule of Practice 700(b)(2), 17 CFR 201.700(b)(2). 

22See 17 CFR 242.608(b)(2). 

23See 17 CFR 242.603(a), 614(d)(3). 

24See 17 CFR 242.608(a)(4)(C). 

25See 17 CFR 242.608(a)(5). 

26See CFR 242.608(b)(2). 

27 15 U.S.C. 78k–1(a)(1)(C)(iii). 

28 15 U.S.C. 78k–1(c)(1)(B). 

29 17 CFR 201.700(b)(3)(ii). 

30 Id. 

31See id. 

subsequently approved the $30,000 per 

month port fee cap with respect to the 

100 Gb port in September 2021 in 

accordance with the terms of the 2021 

Processor Agreement.13

OPRA states that it does not provide 

access ports, does not itself charge any 

port fees, does not collect any fees on 

behalf of OPRA members in connection 

with access to SIAC, and does not 

receive any portion of port fees charged 

by other entities.14 OPRA further states 

that it does not believe the caps that it 

negotiated with SIAC concerning ‘‘the 

amount of port fees that can be charged 

either (1) establishes or changes a fee or 

charge collected on behalf of the 

members of the OPRA Plan in 

connection with access to, or use of, any 

OPRA facilities or (2) represents a fee or 

charge imposed by OPRA as 

contemplated by Rule 608(a)(5)(ii) of 

Regulation NMS.’’ 15 OPRA states that it 

submitted the Proposed Amendment to 

‘‘provide notice of the contractual fee 

caps it negotiated with SIAC’’ and 

because Commission staff requested that 

it do so.16

III. Proceedings To Determine Whether 

To Approve Or Disapprove the 

Proposed Amendment 

The Commission is instituting 

proceedings pursuant to Rule 

608(b)(2)(i) of Regulation NMS,17 and 

Rule 700 of the Commission’s Rules of 

Practice,18 to determine whether to 

approve or disapprove the Proposed 

Amendment or to approve the Proposed 

Amendment with any changes or 

subject to any conditions the 

Commission deems necessary or 

appropriate after considering public 

comment. Institution of proceedings 

does not indicate that the Commission 

has reached any conclusions with 

respect to any of the issues involved. 

Rather, the Commission seeks and 

encourages interested persons to 

provide additional comment on the 

Proposed Amendment to inform the 

Commission’s analysis. 

Rule 608(b)(2) of Regulation NMS 

provides that the Commission ‘‘shall 

approve a . . . proposed amendment to 

an effective national market system 

plan, with such changes or subject to 

such conditions as the Commission may 

deem necessary or appropriate, if it 

finds that such . . . amendment is 

necessary or appropriate in the public 

interest, for the protection of investors 

and the maintenance of fair and orderly 

markets, to remove impediments to, and 

perfect the mechanisms of, a national 

market system, or otherwise in 

furtherance of the purposes of the 

Act.’’ 19 Rule 608(b)(2) further provides 

that the Commission shall disapprove a 

proposed amendment if it does not 

make such a finding.20 Pursuant to Rule 

608(b)(2)(i) of Regulation NMS,21 the 

Commission is providing notice of the 

grounds for possible disapproval under 

consideration: 

• Whether the Proposed Amendment 

is consistent with Rule 608 of 

Regulation NMS. Specifically, whether 

the Proposed Amendment is necessary 

or appropriate in the public interest, for 

the protection of investors and the 

maintenance of fair and orderly markets, 

to remove impediments to, and perfect 

the mechanisms of, a national market 

system, or otherwise in furtherance of 

the purposes of the Act.22

• Whether, consistent with Rule 

603(a) and 614(d)(3) of Regulation NMS, 

the Proposed Amendment provides for 

the distribution of information with 

respect to quotations for and 

transactions in NMS stocks on terms 

that are fair and reasonable and not 

unreasonably discriminatory.23

• Whether the Proposed Amendment 

is consistent with Rule 608(a)(4)(C) of 

Regulation NMS requiring every 

amendment to a national market system 

plan be accompanied by, among other 

things, an analysis of the impact on 

competition of implementation of the 

amendment.24

• Whether the Proposed Amendment 

is consistent with Rule 608(a)(5) of 

Regulation NMS requiring every 

amendment to a national market system 

plan include a description of the 

manner in which any facility 

contemplated by the plan or amendment 

will be operated and further requiring 

that any such description include, to the 

extent applicable, the method by which 

any fees or charges collected on behalf 

of all of the sponsors and/or participants 

in connection with access to, or use of, 

any facility contemplated by the plan or 

amendment will be determined and 

imposed (including any provision for 

distribution of any net proceeds from 

such fees or charges to the sponsors 

and/or participants) and the amount of 

such fees or charge.25

• Whether modifications to the 

Proposed Amendment, or conditions to 

its approval, would be required to make 

the Proposed Amendment necessary or 

appropriate in the public interest, for 

the protection of investors and the 

maintenance of fair and orderly markets, 

to remove impediments to, and perfect 

the mechanisms of, a national market 

system, or otherwise in furtherance of 

the purposes of the Act.26

• Whether the Proposed Amendment 

is consistent with Congress’s finding, in 

Section 11A(1)(C)(iii) of the Act, that it 

is in the public interest and appropriate 

for the protection of investors and the 

maintenance of fair and orderly markets 

to ensure ‘‘the availability to brokers, 

dealers, and investors or information 

with respect to quotations for and 

transactions in securities.27

• Whether, consistent with the 

purposes of Section 11A(c)(1)(B) of the 

Act,28 the Proposed Amendment’s 

provisions are drafted to support the 

prompt, accurate, reliable, and fair 

collection, processing, distribution, and 

publication of information with respect 

to quotations for and transactions in 

NMS securities, and the fairness and 

usefulness of the form and content of 

such information. 

Under the Commission’s Rules of 

Practice, the ‘‘burden to demonstrate 

that a NMS plan filing is consistent with 

the Exchange Act and the rules and 

regulations issued thereunder . . . is on 

the plan participants that filed the NMS 

plan filing.’’ 29 The description of the 

NMS plan filing, its purpose and 

operation, its effect, and a legal analysis 

of its consistency with applicable 

requirements must all be sufficiently 

detailed and specific to support an 

affirmative Commission finding, and 

‘‘[a] mere assertion that the NMS plan 

filing is consistent with those 

requirements is not sufficient.’’ 30 Any 

failure of the plan participants that filed 

the NMS plan filing to provide such 

detail and specificity may result in the 

Commission not having a sufficient 

basis to make an affirmative finding that 

the NMS plan filing is consistent with 

the Act and the applicable rules and 

regulations thereunder.31

IV. Commission’s Solicitation of 

Comments 

The Commission requests that 

interested persons provide written 

submissions of their views, data, and 


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67400 Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / Notices 

32See Notice, supra note 4, 88 FR at 30989. 

33 17 CFR 242.608(b)(2)(i). 

34Rule 700(c)(2) of the Commission’s Rules of 

Practice provides that ‘‘[t]he Commission, in its sole 

discretion, may determine whether any issues 

relevant to approval or disapproval would be 

facilitated by the opportunity for an oral 

presentation of views.’’ 17 CFR 201.700(c)(2). 

35 17 CFR 200.30–3(a)(85). 

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

2 17 CFR 240.19b–4. 

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

4 17 CFR 240.19b–4(f)(6). 

arguments with respect to the issues 

identified above, as well as any other 

comments or concerns they may have 

regarding the proposal. In particular, the 

Commission invites the written views of 

interested persons concerning whether 

the proposal is consistent with Section 

11A or any other provision of the Act, 

or the rules and regulations thereunder, 

and the Commission asks that 

commenters address the sufficiency and 

merit of OPRA’s statements in support 

of the Proposed Amendment.32

Although there do not appear to be 

any issues relevant to approval or 

disapproval that would be facilitated by 

an oral presentation of views, data, and 

arguments, the Commission will 

consider, pursuant to Rule 608(b)(2)(i) 

of Regulation NMS,33 any request for an 

opportunity to make an oral 

presentation.34

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– 

OPRA–2023–01 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–OPRA–2023–01. 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 Participants’ principal 

offices. 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–OPRA–2023–01 

and should be submitted on or before 

October 20, 2023. Rebuttal comments 

should be submitted by November 3, 

2023. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.35

Sherry R. Haywood, 

Assistant Secretary. 

[FR Doc. 2023–21349 Filed 9–28–23; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–98511; File No. SR–CBOE– 

2023–053] 

Self-Regulatory Organizations; Cboe 

Exchange, Inc.; Notice of Filing and 

Immediate Effectiveness of a Proposed 

Rule Change To Amend Its Automated 

Price Improvement Auction Rules 

September 25, 2023. 

Pursuant to Section 19(b)(1) of the 

Securities Exchange Act of 1934 (the 

‘‘Act’’),1 and Rule 19b–4 thereunder,2

notice is hereby given that on 

September 20, 2023, Cboe Exchange, 

Inc. (the ‘‘Exchange’’ or ‘‘Cboe 

Options’’) filed with the Securities and 

Exchange Commission (the 

‘‘Commission’’) the proposed rule 

change as described in Items I and II 

below, which Items have been prepared 

by the Exchange. The Exchange filed the 

proposal as a ‘‘non-controversial’’ 

proposed rule change pursuant to 

Section 19(b)(3)(A)(iii) of the Act 3 and 

Rule 19b–4(f)(6) thereunder.4 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 

Cboe Exchange, Inc. (the ‘‘Exchange’’ 

or ‘‘Cboe Options’’) proposes to amend 

its automated price improvement 

auction rules. The text of the proposed 

rule change is provided in Exhibit 5. 

The text of the proposed rule change 

is also available on the Exchange’s 

website (http://www.cboe.com/ 

AboutCBOE/

CBOELegalRegulatoryHome.aspx), at 

the Exchange’s Office of the Secretary, 

and at the Commission’s Public 

Reference Room. 

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, the 

Exchange included statements 

concerning the purpose of and basis for 

the proposed rule change and discussed 

any comments it received on the 

proposed rule change. The text of these 

statements may be examined at the 

places specified in Item IV below. The 

Exchange has prepared summaries, set 

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

the most significant aspects of such 

statements. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

The Exchange proposes to amend 

provisions in Rule 5.37 (Automated 

Price Improvement Mechanism (‘‘AIM’’ 

or ‘‘AIM Auction’’)) and Rule 5.38 

(Complex Automated Improvement 

Mechanism (‘‘C–AIM’’ or ‘‘C–AIM 

Auction’’)) regarding concurrent AIM 

and C–AIM Auctions, respectively. The 

Exchange also proposes to update the 

provisions in those Rules regarding the 

permissible stop price. 

By way of background, Rules 5.37 and 

5.38 contain the requirements 

applicable to the execution of orders 

using AIM and C–AIM, respectively. 

The AIM and C–AIM auctions are 

electronic auctions intended to provide 

orders that Trading Permit Holders 

(‘‘TPHs’’) represent as agent (‘‘Agency 

Orders’’) with opportunities to receive 

price improvement (over the National 

Best Bid or Offer (‘‘NBBO’’) in AIM, or 

the synthetic best bid or offer (‘‘SBBO’’) 

on the Exchange in C–AIM). Upon 

submitting an Agency Order into an 

AIM or C–AIM auction, the initiating 

Trading Permit Holder (‘‘Initiating 

TPH’’) must also submit a contra-side 

second order (‘‘Initiating Order’’) for the 


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