Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Notices 88195 

26 15 U.S.C. 78s(b)(3)(A). 

27 17 CFR 240.19b–4(f). 28 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

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, the Exchange’s 

historical Short Volume Reports offering 

is subject to direct competition from 

several other options exchanges that 

offer similar data products. Moreover, 

purchase of historical Short Volume 

Reports 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 Short Volume 

Reports. 

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 26 and paragraph (f) of Rule 

19b–4 27 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– 

CboeEDGA–2023–021 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–CboeEDGA–2023–021. 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–CboeEDGA–2023–021 and should 

be submitted on or before January 10, 

2024. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.28

Sherry R. Haywood, 

Assistant Secretary. 

[FR Doc. 2023–27925 Filed 12–19–23; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–99172; File No. SR–GEMX– 

2023–20] 

Self-Regulatory Organizations; Nasdaq 

GEMX, 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 14, 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 

8, 2023, Nasdaq GEMX, LLC (‘‘GEMX’’ 

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 

transaction fees for Nasdaq 100 Index 

options in the Exchange’s Pricing 

Schedule at Options 7, Section 3. 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/gemx/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 


ddrumheller on DSK120RN23PROD with NOTICES1
88196 Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Notices 

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

value of the Nasdaq 100 Index traded under the 

symbol NDX. 

4 ‘‘Non-Priority Customers’’ include Market 

Makers, Non-Nasdaq GEMX Market Makers 

(FarMMs), Firm Proprietary/Broker-Dealers, and 

Professional Customers. As discussed later in this 

filing, the Exchange will codify this definition in 

Options 7, Section 1. 

5A ‘‘Priority Customer’’ is a person or entity that 

is not a broker/dealer in securities, and does not 

place more than 390 orders in listed options per day 

on average during a calendar month for its own 

beneficial account(s), as defined in Nasdaq GEMX 

Options 1, Section 1(a)(36). 

6For 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. 

7See e.g., Options 7, Section 3, footnotes 4 and 

11. 

8See ISE Options 7, Section 1(c). 

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

10 15 U.S.C. 78f(b)(4) and (5). 

11By 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. 

12See supra note 6. 

13QQQ is an exchange-traded fund based on the 

same Nasdaq 100 Index as NDX. 14See supra note 6. 

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 transaction fees 

for NDX 3 in Options 7, Section 3. The 

Exchange initially filed the proposed 

pricing changes on November 30, 2023 

(SR–GEMX–2023–18). On December 8, 

2023, the Exchange withdrew that filing 

and submitted this filing. 

Today, the Exchange assesses a 

transaction fee of $0.75 per contract for 

all Non-Priority Customer 4 orders in 

NDX. Priority Customers 5 currently 

receive free executions in NDX. The 

Exchange now proposes to begin 

assessing Priority Customer NDX 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.6

The Exchange also proposes a change 

in Options 7, Section 1(c) to add ‘‘NonPriority Customers’’ as a defined term. 

The Exchange notes that this term is 

already used in its Pricing Schedule,7

and aligns with how it is currently used 

in the Pricing Schedule as well as with 

the definition in the pricing schedule of 

its affiliate, Nasdaq ISE, LLC (‘‘ISE’’).8

The Exchange will also capitalize the 

current reference to ‘‘non-Priority 

Customer’’ in Options 7, Section 3, 

footnote 11 to align with the proposed 

change to add Non-Priority Customer as 

a defined term. The Exchange also 

proposes to alphabetize the definitions 

in Options 7, Section 1(c) for better 

readability. 

2. Statutory Basis 

The Exchange believes that its 

proposal is consistent with Section 6(b) 

of the Act,9 in general, and furthers the 

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

of the Act,10 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 Priority Customer 

orders in NDX a $0.25 per contract fee 

because the proposed pricing reflects 

the proprietary nature of this product. 

Similar to other proprietary products, 

the Exchange seeks to recoup the 

operational costs of listing such 

products.11 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.12

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 NDX options, 

or separately through multi-listed 

options overlying Invesco QQQ Trust 

(‘‘QQQ’’).13 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. 

While the transaction fee for Priority 

Customer NDX orders is increasing 

under this proposal, the Exchange 

believes that the proposal is reasonable 

and would continue to incentivize 

market participants to transaction in 

Priority Customer NDX orders because 

Priority Customers would continue to be 

assessed a lower fee for NDX than NonPriority Customers (i.e., $0.25 versus 

$0.75 per contract). As a result, the 

Exchange believes that the proposed 

pricing is structured in a way that 

continues to encourage market 

participants, especially Priority 

Customers, to transact in NDX on 

GEMX. As noted above, the proposed 

fee amount is in line with customer 

transaction fees assessed on other index 

products at another options exchange.14

The Exchange’s proposal to assess a 

$0.25 per contract transaction fee to 

Priority Customer NDX orders 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 

Priority Customers a lower transaction 

fee because Priority 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. 

Lastly, the Exchange believes that the 

proposed changes in Options 7, Section 

1(c) to add ‘‘Non-Priority Customers’’ as 

a defined term, to capitalize the 

reference to ‘‘non-Priority Customer’’ in 

footnote 11 of Options 7, Section 3, and 

to alphabetize the definitions are 

reasonable, equitable and not unfairly 

discriminatory. As noted above, the 

term ‘‘Non-Priority Customers’’ is 

already used in the Exchange’s Pricing 

Schedule and codifying this definition 

in the manner it is used today will bring 

greater clarity to the Exchange’s rules to 

the benefit of all market participants. 

The Exchange likewise believes that 

alphabetizing the definitions in Options 

7, Section 1(c) for better readability will 

add more clarity to the Pricing 

Schedule. 

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 


ddrumheller on DSK120RN23PROD with NOTICES1
Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Notices 88197 

15See supra note 6. 

16 15 U.S.C. 78s(b)(3)(A)(ii). 

17 17 CFR 240.19b–4(f)(2). 

18 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

an opportunity to transact in NDX 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 amount is in line with 

customer transaction fees assessed on 

other index products at another options 

exchange.15

Further, the Exchange does not 

believe that its proposal to begin 

assessing a $0.25 per contract 

transaction fee for Priority Customer 

NDX orders will impose an undue 

burden on intra-market competition 

because Priority Customers will 

continue to be assessed lower fees than 

Non-Priority Customers for NDX orders. 

As discussed above, Priority Customer 

order flow enhances liquidity on the 

Exchange for the benefit of all market 

participants. 

Finally, the Exchange believes that 

the proposed changes in Options 7 to 

add Non-Priority Customers as a defined 

term, to capitalize the reference to ‘‘nonPriority Customer,’’ and to alphabetize 

the Pricing Schedule definitions do not 

impose an undue burden on 

competition because these are noncompetitive changes that are intended to 

bring clarity to the Exchange’s Pricing 

Schedule. 

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 16 and Rule 

19b–4(f)(2) 17 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: (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– 

GEMX–2023–20 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–GEMX–2023–20. 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–GEMX–2023–20 and should be 

submitted on or before January 10, 2024. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.18

Sherry R. Haywood, 

Assistant Secretary. 

[FR Doc. 2023–27915 Filed 12–19–23; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–99183; File No. SR–Phlx– 

2023–57] 

Self-Regulatory Organizations; Nasdaq 

PHLX LLC; Notice of Filing and 

Immediate Effectiveness of Proposed 

Rule Change To Amend the 

Exchange’s Proprietary Data Fees for 

Top of PHLX Options (‘‘TOPO’’), PHLX 

Orders, and TOPO Plus Orders at 

Options 7, Section 10 

December 14, 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 

5, 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 

Exchange’s proprietary data fees for Top 

of PHLX Options (‘‘TOPO’’), PHLX 

Orders, and TOPO Plus Orders at 

Options 7, Section 10, as described 

further below. 

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 


ddrumheller on DSK120RN23PROD with NOTICES1