87466 Federal Register / Vol. 88, No. 241 / Monday, December 18, 2023 / Notices 

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

2 17 CFR 240.19b–4. 

3NDX represents A.M.-settled options on the full 

value of the Nasdaq 100 Index traded under the 

symbol NDX. 

4NDXP represents P.M.-settled options on the full 

value of the Nasdaq 100 Index traded under the 

symbol NDXP. 

5The term ‘‘Non-Customer’’ applies to 

transactions for the accounts of Lead Market 

Makers, Market Makers, Firms, Professionals, 

Broker-Dealers and JBOs. 

6The term ‘‘Customer’’ applies to any transaction 

that is identified by a member or member 

organization for clearing in the Customer range at 

The Options Clearing Corporation (‘‘OCC’’) which 

is not for the account of a broker or dealer or for 

the account of a ‘‘Professional’’ (as that term is 

defined in Options 1, Section 1(b)(45)). 

7For example, Cboe Options (‘‘Cboe’’) currently 

assesses a $0.25 per contract customer transaction 

fee for MXEA and MXEF options, $0.35 per contract 

for OEX and XEO options, and $0.36 per contract 

(if premium < $1.00) or $0.45 per contract (if 

premium >= $1.00) for SPX and SPESG options. See 

Cboe Fees Schedule. 

8See proposed notes 5 and 6 of Options 7, 

Section 5.A. 

9For example, Cboe currently assesses customers 

a $0.25 per contract exotic surcharge and a $0.21 

per contract execution surcharge in SPX and SPESG 

options. Cboe also assesses non-customers a $0.45 

per contract license surcharge in RUT, and LEAPS 

surcharge fees in SPX ranging from $1.00 to $2.50 

per contract, according to time-to-expiration. See 

Cboe Fees Schedule. 

10 15 U.S.C. 78f(b). 

SECURITIES AND EXCHANGE 

COMMISSION 

Sunshine Act Meetings 

TIME AND DATE: 2:00 p.m. on Thursday, 

December 21, 2023. 

PLACE: The meeting will be held via 

remote means and/or at the 

Commission’s headquarters, 100 F 

Street NE, Washington, DC 20549. 

STATUS: This meeting will be closed to 

the public. 

MATTERS TO BE CONSIDERED: 

Commissioners, Counsel to the 

Commissioners, the Secretary to the 

Commission, and recording secretaries 

will attend the closed meeting. Certain 

staff members who have an interest in 

the matters also may be present. 

In the event that the time, date, or 

location of this meeting changes, an 

announcement of the change, along with 

the new time, date, and/or place of the 

meeting will be posted on the 

Commission’s website at https://

www.sec.gov. 

The General Counsel of the 

Commission, or her designee, has 

certified that, in her opinion, one or 

more of the exemptions set forth in 5 

U.S.C. 552b(c)(3), (5), (6), (7), (8), 9(B) 

and (10) and 17 CFR 200.402(a)(3), 

(a)(5), (a)(6), (a)(7), (a)(8), (a)(9)(ii) and 

(a)(10), permit consideration of the 

scheduled matters at the closed meeting. 

The subject matter of the closed 

meeting will consist of the following 

topics: 

Institution and settlement of 

injunctive actions; 

Institution and settlement of 

administrative proceedings; 

Resolution of litigation claims; and 

Other matters relating to examinations 

and enforcement proceedings. 

At times, changes in Commission 

priorities require alterations in the 

scheduling of meeting agenda items that 

may consist of adjudicatory, 

examination, litigation, or regulatory 

matters. 

CONTACT PERSON FOR MORE INFORMATION: 

For further information; please contact 

Vanessa A. Countryman from the Office 

of the Secretary at (202) 551–5400. 

(Authority: 5 U.S.C. 552b.) 

Dated: December 14, 2023. 

Vanessa A. Countryman, 

Secretary. 

[FR Doc. 2023–27848 Filed 12–14–23; 4:15 pm] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–99141; File No. SR-Phlx2023–55] 

Self-Regulatory Organizations; Nasdaq 

PHLX LLC; Notice of Filing and 

Immediate Effectiveness of Proposed 

Rule Change to Amend the Fees for 

Options on the Nasdaq 100 Index in 

the Exchange’s Pricing Schedule at 

Options 7 

December 12, 2023. 

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 November 

30, 2023, Nasdaq PHLX LLC (‘‘Phlx’’ or 

‘‘Exchange’’) filed with the Securities 

and Exchange Commission (‘‘SEC’’ or 

‘‘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 

The Exchange proposes to amend the 

fees for Nasdaq 100 Index options in the 

Exchange’s Pricing Schedule at Options 

7, Section 5A. While these amendments 

are effective upon filing, the Exchange 

has designated the proposed 

amendments to be operative on 

December 1, 2023. 

The text of the proposed rule change 

is available on the Exchange’s website at 

https://listingcenter.nasdaq.com/ 

rulebook/phlx/rules, at the principal 

office of the Exchange, 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 purpose of the proposed rule 

change is to amend the fees for NDX 3

and NDXP.4 As set forth in Options 7, 

Section 5A, the Exchange currently 

charges all Non-Customer 5 orders in 

NDX and NDXP a $0.75 per contract 

transaction fee. Customer 6 orders 

receive free executions in NDX and 

NDXP today. These transaction fees 

apply to electronic simple and complex 

executions as well as floor transactions. 

The Exchange now proposes to begin 

assessing Customer NDX and NDXP 

orders a $0.25 per contract transaction 

fee. The Exchange notes that the 

proposed fee amount is in line with 

customer transaction fees assessed on 

other index products.7 The Exchange 

also proposes to assess a surcharge of 

$0.50 per contract to all Non-Customer 

complex executions in NDX and NDXP, 

and a surcharge of 0.25 per contract to 

all Customer complex executions in 

NDX and NDXP.8 The Exchange notes 

that the proposed surcharge amounts are 

within the range of various surcharges 

assessed at another options exchange.9

2. Statutory Basis 

The Exchange believes that its 

proposal is consistent with section 6(b) 

of the Act,10 in general, and furthers the 

objectives of sections 6(b)(4) and 6(b)(5) 


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Federal Register / Vol. 88, No. 241 / Monday, December 18, 2023 / Notices 87467 

11 15 U.S.C. 78f(b)(4) and (5). 

12By way of example, in analyzing an obvious 

error, the Exchange would have additional data 

points available in establishing a theoretical price 

for a multiply listed option as compared to a 

proprietary product, which requires additional 

analysis and administrative time to comply with 

Exchange rules to resolve an obvious error. 

13See supra note 7. 

14QQQ is an exchange-traded fund based on the 

same Nasdaq 100 Index as NDX, NDXP, and XND. 

15The Exchange has not amended NDX and 

NDXP transaction fees since 2018, so the fees have 

remained at $0.75 per contract for Non-Customers 

and $0.00 for Priority Customers during this time. 

See Securities Exchange Act Release No. 82499 

(January 12, 2018), 83 FR 2834 (January 19, 2018) 

(SR–Phlx–2018–02). 

16See supra notes 7 and 9. 

17For example, the Exchange offers a Customer 

Rebate Program in Options 7, Section 2. 

18See supra notes 7 and 9. 

19 15 U.S.C. 78s(b)(3)(A)(ii). 

of the Act,11 in particular, in that it 

provides for the equitable allocation of 

reasonable dues, fees and other charges 

among members and issuers and other 

persons using any facility, and is not 

designed to permit unfair 

discrimination between customers, 

issuers, brokers, or dealers. 

The Exchange believes it is reasonable 

to begin assessing a $0.25 per contract 

transaction fee to all Customer orders in 

NDX and NDXP, a $0.25 per contract 

complex surcharge to Customer 

complex orders in NDX and NDXP, and 

a $0.50 per contract complex surcharge 

to Non-Customer complex orders in 

NDX and NDXP because the proposed 

pricing reflects the proprietary nature of 

this product. Similar to other 

proprietary products like options 

overlying the Nasdaq 100 Micro Index 

(‘‘XND’’), the Exchange seeks to recoup 

the operational costs of listing 

proprietary products.12 Also, pricing by 

symbol is a common practice on many 

U.S. options exchanges as a means to 

incentivize order flow to be sent to an 

exchange for execution in particular 

products. Other options exchanges price 

by symbol.13 Further, the Exchange 

notes that market participants are 

offered different ways to gain exposure 

to the Nasdaq 100 Index, whether 

through the Exchange’s proprietary 

products like options overlying NDX, 

NDPX, or XND, or separately through 

multi-listed options overlying Invesco 

QQQ Trust (‘‘QQQ’’).14 Offering such 

products provides market participants 

with a variety of choices in selecting the 

product they desire to utilize in order to 

gain exposure to the Nasdaq 100 Index. 

When exchanges are able to recoup 

costs associated with offering 

proprietary products, it incentivizes 

growth and competition for the 

innovation of additional products. 

The Exchange further believes that the 

proposed pricing described above is 

reasonable because the proposal is 

designed to update fees for the 

Exchange’s services to reflect their 

current value—rather than their value 

when the Exchange last updated NDX 

and NDXP pricing five years ago 15— 

based on the Exchange’s ability to 

deliver value to its customers by 

offering proprietary products on its 

market like NDX and NDXP. 

While NDX and NDXP pricing is 

increasing for all market participants 

under this proposal, the Exchange 

believes that the proposal is reasonable 

and would continue to incentivize 

market participants to transact in NDX 

and NDXP, and especially in Customer 

NDX and NDXP orders because 

Customers would continue to be 

charged at a lower rate for NDX and 

NDXP than Non-Customers. As a result, 

the Exchange believes that the proposed 

pricing is structured in a way that 

continues to encourage market 

participants, especially Customers, to 

transact in NDX and NDXP on Phlx. An 

increase in Customer order flow would 

benefit all market participants through 

quality of order interaction and 

increased trading opportunities. As 

noted above, the proposed fee and 

surcharge amounts are in line with fees 

and surcharges assessed on other 

products at another options exchange.16

The Exchange’s proposal to assess a 

$0.25 per contract transaction fee to 

Customer orders in NDX and NDXP is 

equitable and not unfairly 

discriminatory it will apply uniformly 

to all similarly situated market 

participants. The Exchange believes it is 

equitable and not unfairly 

discriminatory to continue charging 

Customers a lower transaction fee for 

NDX and NDXP orders because 

Customer orders bring valuable liquidity 

to the market by providing more trading 

opportunities, which, in turn, attracts 

Market Makers. An increase in the 

activity of these market participants in 

turn facilitates tighter spreads, which 

may cause an additional corresponding 

increase in order flow to the benefit of 

all market participants. 

The Exchange also believes that it is 

equitable and not unfairly 

discriminatory to assess the $0.25 per 

contract surcharge to Customer complex 

orders in NDX and NDXP and the $0.50 

per contract surcharge to Non-Customer 

complex orders in NDX and NDXP 

because the proposed surcharges will 

apply uniformly to all similarly situated 

participants. The Exchange believes it is 

equitable and not unfairly 

discriminatory to assess a lower 

complex surcharge to Customers than 

Non-Customers as the Exchange has 

historically provided more favorable 

pricing to Customers in its Pricing 

Schedule.17 In addition, Customer 

orders bring valuable liquidity to the 

market by providing more trading 

opportunities. This, in turn, attracts 

Market Maker activity, which facilitates 

tighter spreads, which may cause an 

additional corresponding increase in 

order flow to the benefit of all market 

participants. 

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. In terms of 

inter-market competition, the Exchange 

notes that it operates in a highly 

competitive market in which market 

participants can readily favor competing 

venues if they deem fee levels at a 

particular venue to be excessive, or 

rebate opportunities available at other 

venues to be more favorable. As noted 

above, market participants are offered 

an opportunity to transact in NDX, 

NDXP, or XND, or separately execute 

options overlying QQQ. Offering these 

products provides market participants 

with a variety of choices in selecting the 

product they desire to use to gain 

exposure to the Nasdaq 100 Index. 

Furthermore, the proposed fee amounts 

are in line with customer transaction 

fees and surcharges assessed on other 

products at another options exchange.18

Further, the Exchange does not 

believe that the proposed changes will 

impose an undue burden on intramarket competition because Customers 

will continue to be assessed lower fees 

in NDX and NDXP than Non-Customers, 

which is in line with how the Exchange 

historically assessed fees. As discussed 

above, Customer order flow enhances 

liquidity on the Exchange for the benefit 

of all market participants. 

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)(ii) of the Act.19

At any time within 60 days of the 

filing of the proposed rule change, the 


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87468 Federal Register / Vol. 88, No. 241 / Monday, December 18, 2023 / Notices 

20 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3A ‘‘Crossing Order’’ is an order executed in the 

Exchange’s Facilitation Mechanism, Solicited Order 

Mechanism (‘‘SOM’’), Price Improvement 

Mechanism (‘‘PIM’’) or submitted as a Qualified 

Contingent Cross (‘‘QCC’’) order. For purposes of 

the Pricing Schedule, orders executed in the Block 

Order Mechanism are also considered Crossing 

Orders. See Options 7, Section 1(c). 

4The PIM is a process by which an Electronic 

Access Member can provide price improvement 

opportunities for a transaction wherein the 

Electronic Access Member seeks to facilitate an 

order it represents as agent, and/or a transaction 

wherein the Electronic Access Member solicited 

interest to execute against an order it represents as 

agent. See Options 3, Section 13. 

5The Facilitation Mechanism is a process by 

which an Electronic Access Member can execute a 

transaction wherein the Electronic Access Member 

seeks to facilitate a block-size order it represents as 

agent, and/or a transaction wherein the Electronic 

Access Member solicited interest to execute against 

a block-size order it represents as agent. Electronic 

Access Members must be willing to execute the 

entire size of orders entered into the Facilitation 

Mechanism. See Options 3, Section 11(b). Complex 

Facilitation is described in Options 3, Section 11(c). 

6The Solicited Order Mechanism or ‘‘SOM’’ is a 

process by which an Electronic Access Member can 

attempt to execute orders of 500 or more contracts 

it represents as agent (the ‘‘Agency Order’’) against 

contra orders that it solicited. Each order entered 

into the Solicited Order Mechanism shall be 

designated as all-or-none. See Options 3, Section 

11(d). The Complex Solicited Order Mechanism is 

described in Options 3, Section 11(e). 

7A ’’Professional Customer’’ is a person or entity 

that is not a broker/dealer and is not a Priority 

Customer. See Options 7, Section 1(c). 

8A QCC Order is comprised of an originating 

order to buy or sell at least 1000 contracts that is 

identified as being part of a qualified contingent 

trade, as that term is defined in Supplementary 

Material .01 to Options 3, Section 7, coupled with 

a contra-side order or orders totaling an equal 

number of contracts. See Options 3, Section 7(j). 

Commission summarily may 

temporarily suspend such rule change if 

it appears to the Commission that such 

action is: (i) necessary or appropriate in 

the public interest; (ii) for the protection 

of investors; or (iii) 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 

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– 

Phlx–2023–55 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–Phlx–2023–55. 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–Phlx–2023–55 and should be 

submitted on or before January 8, 2024. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.20

Sherry R. Haywood, 

Assistant Secretary. 

[FR Doc. 2023–27676 Filed 12–15–23; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–99142; File No. SR–ISE– 

2023–35] 

Self-Regulatory Organizations; Nasdaq 

ISE, LLC; Notice of Filing and 

Immediate Effectiveness of Proposed 

Rule Change to Amend ISE Options 7 

December 12, 2023. 

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 December 

1, 2023, Nasdaq ISE, LLC (‘‘ISE’’ or 

‘‘Exchange’’) filed with the Securities 

and Exchange Commission (‘‘SEC’’ or 

‘‘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. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange proposes to amend the 

Exchange’s Pricing Schedule at Options 

7. 

The text of the proposed rule change 

is available on the Exchange’s website at 

https://listingcenter.nasdaq.com/ 

rulebook/ise/rules, at the principal 

office of the Exchange, 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 purpose of the proposed rule 

change is to amend the Exchange’s 

Pricing Schedule at Options 7 to: (i) 

decrease the Fees for Crossing Orders,3

except Price Improvement Mechanism 

or ‘‘PIM’’ Orders,4 in Sections 3 and 4, 

(ii) eliminate the Crossing Fee Cap in 

Section 6.H and reserve certain 

footnotes related to the cap, (iii) 

increase the Facilitation 5 and 

Solicitation 6 Break-Up Rebates in 

Sections 3 and 4, (iv) eliminate the Fees 

for Crossing Orders applicable to 

Professional Customers 7 for Qualified 

Contingent Cross or ‘‘QCC’’ Orders 8 and 

SOM Orders in Sections 3 and 4, (v) 

amend the Solicitation Rebate in 

Section 6.A, and (vi) amend the QCC 


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