84028 Federal Register / Vol. 88, No. 230 / Friday, December 1, 2023 / Notices 

29 Id. at 4. 

30 Id. at 4. The Participants state that there have 

been 406 queries in the industry test environment, 

which is an average of 27 queries per month during 

this 15-month period. Id. 

31 Id. at 2. Specifically, Section 1.2 of Appendix 

D of the CAT NMS Plan requires that ‘‘[o]perational 

metrics associated with industry testing (including 

but not limited to testing results, firms who 

participated, and amount of data reported and 

linked) must be stored for the same duration as the 

CAT production data.’’ Id. Industry Test Data does 

not include such operational metrics associated 

with industry testing, and operational metrics will 

continue to be retained for six years. 

32 15 U.S.C. 78mm(a)(1). 

33 17 CFR 242.608(e). 

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

2 17 CFR 240.19b–4. 

3For example, subscribers to the intraday product 

will receive the first calculation of intraday data by 

approximately 9:42 a.m. ET, which represents data 

captured from 9:30 a.m. to 9:40 a.m. Subscribers 

will receive the next update at 9:52 a.m., 

representing the data previously provided together 

with data captured from 9:40 a.m. through 9:50 

a.m., and so forth. Each update will represent the 

aggregate data captured from the current 

‘‘snapshot’’ and all previous ‘‘snapshots.’’ 

Industry Test Data through CAT LLC 

and the Plan Processor, and will 

continue to retain such data for three 

months pursuant to the requirement in 

Section 1.2 of Appendix D of the CAT 

NMS Plan.29 The Commission believes 

that the regulatory value does not justify 

the approximately $1 million per year 

cost for retaining Industry Test Data 

beyond three months. As the 

Participants note, the primary purpose 

of Industry Test Data is to facilitate CAT 

Reporter testing needs. Indeed, the 

Participants stated that over the past 

fifteen months, queries of Industry Test 

Data generally were concentrated 

around Participant user acceptance test 

periods for releases.30 Additionally, 

Section 1.2 of the CAT NMS Plan 

requires the operational metrics 

associated with industry testing to be 

retained for six years.31

Based on the foregoing, pursuant to 

section 36(a)(1) of the Exchange Act, it 

is appropriate in the public interest and 

consistent with the protection of 

investors, and pursuant to Rule 608(e), 

it is consistent with the public interest, 

the protection of investors, the 

maintenance of fair and orderly markets 

and the removal of impediments to, and 

the perfection of a national market 

system to grant exemptive relief that 

exempts each Participant from the 

longer recordkeeping and data retention 

requirements for Industry Test Data as 

set forth in Rule 17a–1 under the 

Exchange Act, Section 9.1 of the CAT 

NMS Plan, Section 1.4 of Appendix D 

of the CAT NMS Plan and Appendix C 

of the CAT NMS Plan (to the extent any 

may apply). 

IV. Conclusion 

The Commission believes it is 

appropriate to grant exemptive relief 

that exempts each Participant from the 

longer recordkeeping and data retention 

requirements for Industry Test Data as 

set forth in Rule 17a–1 under the 

Exchange Act, Section 9.1 of the CAT 

NMS Plan, Section 1.4 of Appendix D 

of the CAT NMS Plan and Appendix C 

of the CAT NMS Plan (to the extent any 

may apply). 

Accordingly, it is hereby ordered, 

pursuant to section 36(a)(1) of the 

Exchange Act,32 and Rule 608(e) of the 

Exchange Act 33 that the Participants are 

granted an exemption from the longer 

recordkeeping and data retention 

requirements for Industry Test Data as 

set forth in Rule 17a–1 under the 

Exchange Act, Section 9.1 of the CAT 

NMS Plan, Section 1.4 of Appendix D 

of the CAT NMS Plan and Appendix C 

of the CAT NMS Plan (to the extent any 

may apply). 

By the Commission. 

Christina Z. Milnor, 

Assistant Secretary. 

[FR Doc. 2023–26407 Filed 11–30–23; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–99027; File No. SR– 

CboeBZX–2023–094] 

Self-Regulatory Organizations; Cboe 

BZX Exchange, Inc.; Notice of Filing 

and Immediate Effectiveness of a 

Proposed Rule Change To Amend Its 

Fee Schedule 

November 28, 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 November 

15, 2023, Cboe BZX Exchange, Inc. (the 

‘‘Exchange’’ or ‘‘BZX’’) filed with the 

Securities and Exchange Commission 

(the ‘‘Commission’’) the proposed rule 

change as described in Items I, II, and 

III 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 

Cboe BZX Exchange, Inc. (the 

‘‘Exchange’’ or ‘‘BZX’’) proposes to 

amend its Fee Schedule. 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://markets.cboe.com/us/ 

equities/regulation/rule_filings/bzx/), 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 update its 

Fee Schedule to provide a 20% discount 

on fees assessed to BZX Members and 

non-Members that purchase $20,000 or 

more of historical Open-Close Data, 

effective November 15, 2023 through 

December 31, 2023. 

By way of background, the Exchange 

currently offers End-of-Day (‘‘EOD’’) and 

Intraday Open-Close Data (collectively, 

‘‘Open-Close Data’’). EOD Open-Close 

Data is an end-of-day volume summary 

of trading activity on the Exchange at 

the option level by origin (customer, 

professional customer, broker-dealer, 

and market maker), side of the market 

(buy or sell), price, and transaction type 

(opening or closing). The customer and 

professional customer volume is further 

broken down into trade size buckets 

(less than 100 contracts, 100–199 

contracts, greater than 199 contracts). 

The EOD Open-Close Data is proprietary 

BZX 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 also 

offers Intraday Open-Close Data, which 

provides similar information to that of 

EOD Open-Close Data but is produced 

and updated every 10 minutes during 

the trading day. Data is captured in 

‘‘snapshots’’ taken every 10 minutes 

throughout the trading day and is 

available to subscribers within five 

minutes of the conclusion of each 10- 

minute period.3 The Intraday OpenVerDate Sep<11>2014 18:47 Nov 30, 2023 Jkt 262001 PO 00000 Frm 00133 Fmt 4703 Sfmt 4703 E:\FR\FM\01DEN1.SGM 01DEN1

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Federal Register / Vol. 88, No. 230 / Friday, December 1, 2023 / Notices 84029 

4These substitute products are: Nasdaq PHLX 

Options Trade Outline, Nasdaq Options Trade 

Outline, ISE Profile, GEMX Trade Profile data; 

open-close data from Cboe Options, C2, and BYX; 

Open Close Reports from MIAX Options, Pearl, and 

Emerald; and NYSE Options Open-Close Volume 

Summary. 

5The discount will apply on an order-by-order 

basis. To qualify for the discount, an order must 

contain End-of-Day Ad-hoc Requests (historical 

data) and/or Intraday Ad-hoc Requests (historical 

data) and must total $20,000 or more; the Exchange 

will not aggregate purchases made throughout a 

billing cycle for purposes of the incentive program. 

The discount will apply to the total purchase price, 

once the $20,000 minimum purchase is satisfied 

(for example, a qualifying order of $25,000 would 

be discounted to $20,000, i.e. receive a 20% 

discount of $5,000). 

6As part of the proposed rule change, the 

Exchange also proposes to delete obsolete language 

related to a free trial that was offered for the months 

of September through December 2022 for up to 3 

months of Intraday Open-Close Historical Data, as 

the offering is no longer in effect. 

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

8 15 U.S.C. 78f(b)(5). 

9 Id. 

10See supra note 2. 

11See Cboe Global Markets U.S. Options Market 

Month-to-Date Volume Summary (November 8, 

2023), available at https://markets.cboe.com/us/ 

options/market_statistics/. 

12See Securities Exchange Act Release No. 51808 

(June 9, 2005), 70 FR 37496, 37499 (June 29, 2005) 

(‘‘Regulation NMS Adopting Release’’). 

Close Data provides a volume summary 

of trading activity on the Exchange at 

the option level by origin (customer, 

professional customer, broker-dealer, 

and market maker), side of the market 

(buy or sell), and transaction type 

(opening or closing). The customer and 

professional customer volume are 

further broken down into trade size 

buckets (less than 100 contracts, 100– 

199 contracts, greater than 199 

contracts). The Intraday Open-Close 

Data is proprietary BZX trade data and 

does not include trade data from any 

other exchange. All Open-Close Data 

products are completely voluntary 

products, in that the Exchange is not 

required by any rule or regulation to 

make this data available and that 

potential customers may purchase it on 

an ad-hoc basis only if they voluntarily 

choose to do so. 

Cboe LiveVol, LLC (‘‘LiveVol’’), a 

wholly owned subsidiary of the 

Exchange’s parent company, Cboe 

Global Markets, Inc., makes the OpenClose Data available for purchase to 

Members and non-Members on the 

LiveVol DataShop website 

(datashop.cboe.com). Customers may 

currently purchase Open-Close Data on 

a subscription basis (monthly or 

annually) or by ad hoc request for a 

specified month (historical file, e.g., 

request for Intraday Open-Close Data for 

month of June 2023 or End-of-Day 

Open-Close Data for month of June 

2023). An ad-hoc request can be for any 

number of months for which the data is 

available. 

Open-Close Data is subject to direct 

competition from similar end-of-day 

and intraday options trading summaries 

offered by several other options 

exchanges.4 All of these exchanges offer 

essentially the same end-of-day and 

intraday options trading summary 

information. 

The Exchange proposes to provide a 

temporary pricing incentive program in 

which Members or Non-Members that 

purchase historical Open-Close Data 

will receive a percentage fee discount 

where specific purchase thresholds are 

met. Specifically, the Exchange 

proposes to provide a 20% discount for 

ad-hoc purchases of historical OpenClose Data of $20,000 or more.5 The 

proposed program will apply to all 

market participants irrespective of 

whether the market participant is a new 

or current purchaser; however, the 

discount cannot be combined with any 

other discounts offered by the Exchange, 

including the academic discount 

provided for Qualifying Academic 

Purchasers of historical Open-Close 

Data. The Exchange intends to introduce 

the discount program beginning 

November 15, 2023, with the program 

remaining in effect through December 

31, 2023.6

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.7 Specifically, 

the Exchange believes the proposed rule 

change is consistent with the Section 

6(b)(5) 8 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) 9 requirement that 

the rules of an exchange not be designed 

to permit unfair discrimination between 

customers, issuers, brokers, or dealers. 

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. The Exchange believes the 

proposed fee changes will further 

broaden the availability of U.S. option 

market data to investors consistent with 

the principles of Regulation NMS. 

Open-Close Data is designed to help 

investors understand underlying market 

trends to improve the quality of 

investment decisions. Indeed, 

purchasers of the data may be able to 

enhance their ability to analyze option 

trade and volume data and create and 

test trading models and analytical 

strategies. The Exchange believes OpenClose Data provides a valuable tool that 

purchasers can use to gain 

comprehensive insight into the trading 

activity in a particular series, but also 

emphasizes such data is not necessary 

for trading and as noted above, is 

entirely optional. Moreover, several 

other exchanges offer a similar data 

product which offer same type of data 

content through end-of-day or intraday 

reports.10

The Exchange also operates in a 

highly competitive environment. 

Indeed, there are currently 17 registered 

options exchanges that trade options. 

Based on publicly available information, 

no single options exchange has more 

than 15% of the market share.11 The 

Commission has repeatedly expressed 

its preference for competition over 

regulatory intervention in determining 

prices, products, and services in the 

securities markets. Particularly, in 

Regulation NMS, the Commission 

highlighted the importance of market 

forces in determining prices and SRO 

revenues and, also, recognized that 

current regulation of the market system 

‘‘has been remarkably successful in 

promoting market competition in its 

broader forms that are most important to 

investors and listed companies.’’ 12

Making similar data products available 

to market participants fosters 

competition in the marketplace, and 

constrains the ability of exchanges to 

charge supracompetitive fees. In the 

event that a market participant views 

one exchange’s data product as more or 

less attractive than the competition they 

can and do switch between similar 

products. The proposed fees are a result 

of the competitive environment, as the 

Exchange seeks to adopt fees to attract 


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84030 Federal Register / Vol. 88, No. 230 / Friday, December 1, 2023 / Notices 

13 15 U.S.C. 78s(b)(3)(A). 14 17 CFR 240.19b–4(f). 

15 17 CFR 200.30–3(a)(12). 

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

purchasers of historical Open-Close 

Data. 

The Exchange believes that the 

proposed incentive program for any 

Member or non-Member who purchases 

historical Open-Close Data is reasonable 

because such purchasers would receive 

a 20% discount for purchasing $20,000 

or more worth of historical Open-Close 

Data. The Exchange believes the 

proposed discount is reasonable as it 

will give purchasers the ability to use 

and test the historical Open-Close Data 

at a discounted rate, prior to purchasing 

additional months or a monthly 

subscription, and will therefore 

encourage and promote users to 

purchase the historical Open-Close 

Data. Further, the proposed discount is 

intended to promote increased use of 

the Exchange’s historical Open-Close 

Data by defraying some of the costs a 

purchaser would ordinarily have to 

expend before using the data product. 

The Exchange believes that the 

proposed discount is equitable and not 

unfairly discriminatory because it will 

apply equally to all Members and nonMembers who purchase historical OpenClose Data. Lastly, the purchase of this 

data product is discretionary and not 

compulsory. Indeed, no market 

participant is required to purchase the 

historical Open-Close Data, and the 

Exchange is not required to make the 

historical Open-Close Data available to 

all investors. Potential purchasers may 

request the data at any time if they 

believe it to be valuable or may decline 

to purchase such data. 

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 that is not 

necessary or appropriate in furtherance 

of the purposes of the Act. The 

Exchange operates in a highly 

competitive environment in which the 

Exchange must continually adjust its 

fees to remain competitive. Because 

competitors are free to modify their own 

fees in response, the Exchange believes 

that the degree to which fee changes in 

this market may impose any burden on 

competition is extremely limited. As 

discussed above, Open-Close Data is 

subject to direct competition from 

several other options exchanges that 

offer substitutes to Open-Close Data. 

Moreover, purchase of Open-Close Data 

is optional. It is designed to help 

investors understand underlying market 

trends to improve the quality of 

investment decisions, but is not 

necessary to execute a trade. 

The proposed rule changes are 

grounded in the Exchange’s efforts to 

compete more effectively. In this 

competitive environment, potential 

purchasers are free to choose which, if 

any, similar product to purchase to 

satisfy their need for market 

information. As a result, the Exchange 

believes this proposed rule change 

permits fair competition among national 

securities exchanges. Further, the 

Exchange believes that these changes 

will not cause any unnecessary or 

inappropriate burden on intermarket 

competition, as the proposed incentive 

program applies uniformly to any 

purchaser of historical Open-Close Data. 

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. 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 13 and paragraph (f) of Rule 

19b–4 14 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 

Commission will 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– 

CboeBZX–2023–094 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–CboeBZX–2023–094. 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–CboeBZX–2023–094 and should be 

submitted on or before December 22, 

2023. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.15

Sherry R. Haywood, 

Assistant Secretary. 

[FR Doc. 2023–26491 Filed 11–30–23; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–99021; File No. SR– 

NYSEARCA–2023–80] 

Self-Regulatory Organizations; NYSE 

Arca, Inc.; Notice of Filing and 

Immediate Effectiveness of Proposed 

Rule Change To Modify the NYSE Arca 

Options Fee Schedule 

November 27, 2023. 

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

Securities Exchange Act of 1934 


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