3452 Federal Register / Vol. 89, No. 12 / Thursday, January 18, 2024 / Notices 

12 15 U.S.C. 78s(b)(3)(A)(ii). 

13 17 CFR 240.19b–4(f)(2). 14 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3See Securities Exchange Act Release No. 98888 

(November 8, 2023), 88 FR 78430 (November 15, 

2023) (‘‘Notice’’). 

4 15 U.S.C. 78s(b)(3)(A). A proposed rule change 

may take effect upon filing with the Commission if 

it is designated by the exchange as ‘‘establishing or 

changing a due, fee, or other charge imposed by the 

self-regulatory organization on any person, whether 

or not the person is a member of the self-regulatory 

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

5See Notice, supra note 3. 

6 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

proposed rule change would not impose 

any burden on competition that is not 

necessary or appropriate in furtherance 

of the purposes of the Act. Specifically, 

the Exchange believes that the proposed 

change will reflect fees that will be 

assessed by FINRA as of January 2024 

and will thus result in the same 

regulatory fees being charged to all OTP 

Holders required to report information 

to the CRD system and for services 

performed by FINRA, regardless of 

whether or not such OTP Holders are 

FINRA members. 

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)(ii) of the Act 12 and Rule 

19b–4(f)(2) 13 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 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 (http://www.sec.gov/ 

rules/sro.shtml); or 

• Send an email to rule-comments@

sec.gov. Please include file number SR– 

NYSEARCA–2023–88 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–NYSEARCA–2023–88. 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 (http://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–NYSEARCA–2023–88 and should be 

submitted on or before February 8, 2024. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.14

Sherry R. Haywood, 

Assistant Secretary. 

[FR Doc. 2024–00855 Filed 1–17–24; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–99333; File No. SR–MEMX– 

2023–29] 

Self-Regulatory Organizations; MEMX 

LLC; Notice of Withdrawal of a 

Proposed Rule Change To Amend the 

Exchange’s Fee Schedule To Adopt 

Connectivity and Application Session 

Fees for MEMX Options 

January 11, 2024. 

On October 24, 2023, MEMX LLC 

(‘‘MEMX’’ or the ‘‘Exchange’’) filed with 

the Securities and Exchange 

Commission (the ‘‘Commission’’), 

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

Securities Exchange Act of 1934 (the 

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

proposed rule change (File No. SR– 

MEMX–2023–29) to adopt connectivity 

and application session fees for MEMX 

Options.3 The proposed rule change was 

immediately effective upon filing with 

the Commission pursuant to Section 

19(b)(3)(A) of the Act.4 The proposed 

rule change was published for comment 

in the Federal Register on November 15, 

2023.5 On December 21, 2023, the 

Exchange withdrew the proposed rule 

change (SR–MEMX–2023–29). 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.6

Sherry R. Haywood, 

Assistant Secretary. 

[FR Doc. 2024–00854 Filed 1–17–24; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–99326; File No. SR–CBOE– 

2024–002] 

Self-Regulatory Organizations; Cboe 

Exchange, Inc.; Notice of Filing and 

Immediate Effectiveness of a Proposed 

Rule Change To Amend Its Fee 

Schedule Related to Certain Data Fees 

January 11, 2024. 

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 January 2, 

2024, Cboe Exchange, Inc. (the 

‘‘Exchange’’ or ‘‘Cboe Options’’) filed 

with the Securities and Exchange 

Commission (‘‘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. 


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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.’’ 

4These substitute products include: Nasdaq 

PHLX Options Trade Outline, Nasdaq Options 

Trade Outline, ISE Trade Profile, GEMX Trade 

Profile data; open-close data from C2, BZX, and 

EDGX; and Open Close Reports from MIAX 

Options, Pearl, and Emerald. 

5See Price List—U.S. Derivatives Data for Nasdaq 

PHLX, LLC (‘‘PHLX’’), The Nasdaq Stock Market, 

LLC (‘‘Nasdaq’’), Nasdaq ISE, LLC (‘‘ISE’’), and 

Nasaq GEMX, LLC (‘‘GEMX’’), available at http://

www.nasdaqtrader.com/ 

Trader.aspx?id=DPPriceListOptions#web. 

Particularly, PHLX offers ‘‘Nasdaq PHLX Options 

Trade Outline (PHOTO)’’ and assesses $2,500 per 

month for an intraday subscription and $1,000 per 

month for historical reports; Nasdaq offers the 

‘‘Nasdaq Options Trade Outline (NOTO)’’ and 

assesses $750 per month for an intraday 

subscription and $500 per month for historical 

reports; ISE offers the ‘‘Nasdaq ISE Open/Close 

Trade Profile’’ and assesses $2,000 per month for 

an intraday subscription and $1,000 per month for 

historical reports; and GEMX offers the ‘‘Nasdaq 

GEMX Open/Close Trade Profile’’ and assesses 

$1,000 per month for an intraday subscription and 

$750 per month for historical reports. 

6See Rule 5.1(c). Except under unusual 

conditions as may be determined by the Exchange 

or the Holiday hours set forth in Rule 5.1(d), GTH 

starts at 8:15 p.m. ET and continue through the next 

day until 9:15 a.m. ET. Currently trading is limited 

to SPX, VIX, and XSP. 

7See Rule 5.1 (b) (Regular Trading Hours) and 

Rule 5.1(d) (Curb Trading Hours). 

8As part of the proposed rule change, the 

Exchange proposes to delete language in the Fees 

Schedule regarding the provision of a 20% discount 

on fees assessed to Exchange Members and nonMembers that purchase $20,000 or more of 

historical Open-Close Data; such discount program 

was effective from November 15, 2023 through 

December 31, 2023, and is no longer in effect. 

9See Exchange Fees Schedule. Daily end-of-day 

delivery is provided via the DataShop SFTP. Files 

will typically become available after 8pm ET; see 

also Exchange Rule 1.1, which defines ‘‘System.’’ 

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 Fees 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://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 its 

Fees Schedule, effective January 2, 

2024. 

Open-Close Data 

The Exchange proposes to amend 

certain fees related to its provision of 

Open-Close Data. By way of 

background, the Exchange currently 

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

Open-Close Data (collectively, ‘‘OpenClose 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 Open-Close Data is proprietary 

Cboe Options 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 OpenClose 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 Open-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 OpenClose Data is also proprietary Cboe 

Options trade data and does not include 

trade data from any other exchange. 

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 

TPHs and non-TPHs on the LiveVol 

DataShop website (datashop.cboe.com). 

Customers may currently purchase 

Intraday Open-Close Data on a 

subscription basis (monthly or annually) 

or by ad hoc request for a specified 

month (e.g., request for Intraday OpenClose Data for month of December 

2023). The Exchange assesses a monthly 

fee of $2,000 (or $24,000 per year) for 

subscribing to the data feed and assesses 

a fee of $1,000 per request per month for 

an ad-hoc request of historical Intraday 

Open/Close data covering all Exchangelisted securities. The Exchanges notes 

that 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, which may be purchased 

on both a subscription and ad-hoc basis 

and which are similarly priced.5

The Exchange notes that the current 

fee for Intraday Open-Close Data has 

been in place, without change, since 

2020 when the Exchange first adopted 

the Intraday Open-Close Data product 

offering. In the time since, the Exchange 

has made enhancements to the offering, 

including adding data from the Global 

Trading Hours (‘‘GTH’’) 6 session to the 

Intraday Open-Close Data, in addition to 

the Regular Trading Hours (‘‘RTH’’) and 

Curb sessions.7 As a result, Intraday 

Open-Close Data is produced and 

updated every 10 minutes throughout 

all trading sessions. The Exchange now 

proposes to increase the fee for Intraday 

Open-Close Data.8 The Exchange 

proposes to assess a monthly fee of 

$3,000 (or $36,000 per year) for 

subscribing to the data feed. 

Historical Depth Data 

By way of background, the Exchange 

currently makes available for purchase 

Depth Data, which is a daily archive of 

the Exchange’s depth of book real-time 

feed, which provides depth-of-book 

quotations and execution information 

based on options orders entered into the 

System.9 The Exchange also offers 

Historical Depth Data, for no charge, 

which offers such data on a historical 

basis, i.e. T+1 or later, dating back to 


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10See https://datashop.cboe.com/cboe-usoptions-multicast-pitch. 

11See, e.g., https://www.nasdaqtrader.com/ 

Trader.aspx?id=DPPriceListOptions#nom; and 

https://www.nyse.com/publicdocs/nyse/data/ 

NYSE_Market_Data_Fee_Schedule.pdf. 

12 15 U.S.C. 78f(b). 

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

14 Id. 

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

16See Cboe Global Markets U.S. Options Market 

Volume Summary (December 18, 2023), available at 

https://markets.cboe.com/us/options/market_

statistics/. 

17See Securities Exchange Act Release No. 51808 

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

(‘‘Regulation NMS Adopting Release’’). 

18See supra note 4. 

October 2019. The Depth Data and 

Historical Depth Data are available to 

Members and Non-Members on the 

Cboe LiveVol, LLC (‘‘LiveVol’’) 

website,10 for internal use only; LiveVol 

is a wholly owned subsidiary of the 

Exchange’s parent company, Cboe 

Global Markets, Inc. 

The Exchange and affiliated equities 

and options exchanges (i.e., Cboe C2 

Exchange, Inc. (‘‘C2 Options’’), Cboe 

EDGX Exchange, Inc. (‘‘EDGX’’), Cboe 

BYX Exchange, Inc. (‘‘BYX’’), Cboe BZX 

Exchange, Inc. (‘‘BZX’’), and Cboe 

EDGA Exchange, Inc. (‘‘EDGA’’) 

(collectively, ‘‘Affiliates’’) also offer 

similar data products. Particularly, each 

of the Exchange’s Affiliates offer a daily 

and historical archive of their depth of 

book real-time feed with execution 

information based on their trading 

activity that is substantially similar to 

the information provided by the 

Exchange through its Depth Data 

products. 

Currently, the Exchange provides 

Historical Depth Data to users without 

a charge. Since the Exchange first began 

offering access to historical quotation 

and transactions data, the Exchange has 

made a number of significant 

enhancements to its platform, including, 

among other things, implementing a 

more efficient means of data delivery 

(via SFTP rather than shipment of hard 

drives), which consequently increases 

the value of the market data product. 

The Exchange now proposes to amend 

its Fees Schedule and assess a fee of 

$1,500 per month of Historical Depth 

Data accessed by a user. As is currently 

the case, the data will be provided to 

data recipients for internal use only, and 

thus, no redistribution will be 

permitted. 

The Exchange notes that the Depth 

Data products, including the Historical 

Depth Data, are completely voluntary 

products, in that the Exchange is not 

required by any rule or regulation to 

make the reports or services available 

and that potential subscribers may 

purchase it only if they voluntarily 

choose to do so. Further, the Exchange 

notes that other exchanges offer similar 

products for a fee.11

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.12 Specifically, 

the Exchange believes the proposed rule 

change is consistent with the Section 

6(b)(5) 13 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) 14 requirement that 

the rules of an exchange not be designed 

to permit unfair discrimination between 

customers, issuers, brokers, or dealers. 

The Exchange also believes the 

proposed rule change is consistent with 

Section 6(b)(4) of the Act,15 which 

requires that Exchange rules provide for 

the equitable allocation of reasonable 

dues, fees, and other charges among its 

Trading Permit Holders and other 

persons using its facilities. 

The Exchange believes the proposed 

changes to increase the fee for Intraday 

Open-Close Data subscriptions and 

adopt a fee for Historical Depth Data are 

reasonable. In adopting Regulation 

NMS, the Commission granted selfregulatory organizations (‘‘SROs’’) and 

broker-dealers 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 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 12% of the market share.16 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.’’ 17

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 Exchange believes the proposed 

change will continue to 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, 

subscribers to the data may enhance 

their ability to analyze option trade and 

volume data and create and test trading 

models and analytical strategies, 

especially given recent changes to the 

offering, including the addition of data 

from the GTH trading session. The 

Exchange believes Open-Close Data 

continues to provide a valuable tool that 

subscribers 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 the same type of 

data content through end-of-day or 

intraday reports,18 with similar pricing. 

Further, the Exchange believes the 

proposed changes to the Intraday OpenClose Data fee are reasonable, given the 

enhancements to the offering, including 

the addition of data from the GTH 

session, in addition to the RTH and 

Curb sessions. As noted above, Intraday 

Open-Close Data is now produced and 

updated every 10 minutes throughout 

all trading sessions. The addition of the 

GTH session provides subscribers with 

more granular insight into trading 

activity in the products that trade 

during that session. The Exchange notes 

a wide variety of market participants 

purchase Intraday Open-Close Data, 

including, but not limited to, individual 

customers, buy-side investors, and 

investment banks. The Exchange 

believes the Intraday Open-Close Data 


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19See supra note 5. 

20See supra note 11. 

21See supra notes 5 and 11. 

22See supra note 16. 

23See Securities Exchange Act Release No. 51808 

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

product provides helpful trading 

information regarding investor 

sentiment that may allow market 

participants to make better trading 

decisions throughout the day and may 

be used to create and test trading 

models and analytical strategies and 

provides comprehensive insight into 

trading on the Exchange. For example, 

intraday open data may allow a market 

participant to identify new interest or 

possible risks throughout the trading 

day, while intraday closing data may 

allow a market participant to identify 

fading interests in a security. The 

product is a completely voluntary 

product, in that the Exchange is not 

required by any rule or regulation to 

make this data available and that 

potential subscribers may purchase it 

only if they voluntarily choose to do so. 

The Exchange notes that other 

exchanges offer similar data products, 

which are similarly priced.19

Additionally, the Exchange believes 

the proposed changes to the Historical 

Depth Data fee are reasonable, as the 

Exchange’s Historical Depth Data is a 

competitively priced alternative to 

historical depth of book data 

disseminated by other national 

securities exchanges. The Exchange’s 

Depth Data products, including 

Historical Depth Data, benefits a wide 

range of investors that participate in the 

national market system. As noted above, 

Nasdaq and NYSE have similar Depth 

Data offerings for a charge.20 The 

Exchange therefore believes that the 

proposed fees are reasonable and set at 

a level to compete with other exchanges 

that offer similar reports. Indeed, 

proposing fees that are excessively 

higher than established fees for similar 

data products would simply serve to 

reduce demand for the Exchange’s data 

product, which as noted, is entirely 

optional. As such, if a market 

participant views another exchange’s 

potential report as more attractive, then 

such market participant can merely 

choose not to purchase the Exchange’s 

Historical Depth Data offering and 

instead purchase another exchange’s 

similar data product, which offers 

similar data points, albeit based on 

other market’s trading activity. Further, 

the Exchange believes the fees are 

reasonable since, as proposed, they 

represent a relatively modest fee for 

historical depth of book data that has 

proven valuable for investors. 

The Exchange also believes that the 

proposed fee is reasonable because it is 

reasonably aligned with the value and 

benefits provided to users that choose to 

purchase Historical Depth Data from the 

Exchange. As discussed above, 

Historical Depth Data may be beneficial 

to Members and non-Members as it may 

provide helpful trading information 

regarding investor sentiment that may 

allow market participants to make more 

informed trading decisions and may be 

used to create and test trading models 

and analytical strategies and provide 

comprehensive insight into trading on 

the Exchange. As noted above, since 

first offering Historical Depth Data, the 

Exchange has made a number of 

significant enhancements to its 

platform, including, among other things, 

implementing a more efficient means of 

data delivery (via SFTP rather than 

shipment of hard drives), which 

consequently increases the value of the 

market data product. 

Finally, the Exchange believes that 

the proposed changes to the Exchange’s 

Intraday Open-Close Data and Historical 

Depth Data offerings are equitable and 

not unfairly discriminatory because the 

changes to the offerings apply to all 

current and potential subscribers of the 

products uniformly, in that all 

subscribers will be assessed the new 

proposed fee for purchases of Intraday 

Open-Close Data or Historical Depth 

Data. As stated, purchase of Intraday 

Open-Close Data and Historical Depth 

Data is completely optional and not 

necessary for trading. Rather, the 

Exchange voluntarily makes Intraday 

Open-Close Data and Historical Depth 

Data available, and users may choose to 

purchase the data based on their own 

individual business needs. 

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. As discussed 

above, the Exchange’s Intraday OpenClose Data and Historical Depth Data 

offerings are subject to direct 

competition from several other 

exchanges that offer similar data 

products. 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 the proposed rule changes 

permit fair competition among national 

securities exchanges. 

Additionally, the Exchange believes 

the proposed rule change does not 

impose any burden on intramarket 

competition that is not necessary or 

appropriate in furtherance of the 

purposes of the Act. The changes to the 

Intraday Open-Close Data and Historical 

Depth Data offerings apply to all current 

and potential subscribers of the product 

uniformly, in that all subscribers will be 

assessed the same fees for subscribing to 

receive Intraday Open-Close Data and 

Historical Depth Data. Moreover, 

purchase of Intraday Open-Close Data 

and Historical Depth Data is optional. 

Further, the Exchange also does not 

believe that the proposed rule changes 

will impose any burden on intermarket 

competition that is not necessary or 

appropriate in furtherance of the 

purposes of the Act. As noted above, 

other exchanges offer similar data 

products, which are similarly priced.21

As previously discussed, the Exchange 

operates in a highly competitive market. 

Members have numerous alternative 

venues that they may participate on and 

direct their order flow, including 16 

other options exchanges and offexchange venues. Additionally, the 

Exchange represents a small percentage 

of the overall market. Based on publicly 

available information, no single options 

exchange has more than 12% of the 

market share.22 Therefore, no exchange 

possesses significant pricing power in 

the execution of option order flow. 

Indeed, participants can readily choose 

to send their orders to other exchange 

and off-exchange venues if they deem 

fee levels at those other venues to be 

more favorable. Moreover, the 

Commission has repeatedly expressed 

its preference for competition over 

regulatory intervention in determining 

prices, products, and services in the 

securities markets. Specifically, 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.’’ 23 The 

fact that this market is competitive has 

also long been recognized by the courts. 

In NetCoalition v. Securities and 

Exchange Commission, the D.C. Circuit 

stated as follows: ‘‘[n]o one disputes 

that competition for order flow is 

‘fierce.’ . . . As the SEC explained, ‘[i]n 

the U.S. national market system, buyers 

and sellers of securities, and the brokerdealers that act as their order-routing 

agents, have a wide range of choices of 

where to route orders for execution’; 


khammond on DSKJM1Z7X2PROD with NOTICES
3456 Federal Register / Vol. 89, No. 12 / Thursday, January 18, 2024 / Notices 

24NetCoalition v. SEC, 615 F.3d 525, 539 (D.C. 

Cir. 2010) (quoting Securities Exchange Act Release 

No. 59039 (December 2, 2008), 73 FR 74770, 74782– 

83 (December 9, 2008) (SR–NYSEArca–2006–21)). 

25 15 U.S.C. 78s(b)(3)(A). 

26 17 CFR 240.19b–4(f). 

27 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3See BZX Fees Schedule and BZX Rule 11.22. 

Daily end-of-day delivery is provided via the 

DataShop SFTP. Files will typically become 

available after 10 p.m. ET; see also BZX Rule 1.5, 

which defines ‘‘System.’’ 

[and] ‘no exchange can afford to take its 

market share percentages for granted’ 

because ‘no exchange possesses a 

monopoly, regulatory or otherwise, in 

the execution of order flow from broker 

dealers’. . . .’’.24 Accordingly, the 

Exchange does not believe its proposed 

fee change imposes any burden on 

competition that is not necessary or 

appropriate in furtherance of the 

purposes of the Act. 

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 25 and paragraph (f) of Rule 

19b–4 26 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– 

CBOE–2024–002 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–CBOE–2024–002. 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–CBOE–2024–002 and should be 

submitted on or before February 8, 2024. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.27

Sherry R. Haywood, 

Assistant Secretary. 

[FR Doc. 2024–00848 Filed 1–17–24; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–99320; File No. SR– 

CboeBYX–2024–001] 

Self-Regulatory Organizations; Cboe 

BYX Exchange, Inc.; Notice of Filing 

and Immediate Effectiveness of a 

Proposed Rule Change To Amend Its 

Fee Schedule To Modify Historical 

Depth Data Fees 

January 11, 2024. 

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 January 2, 

2024, Cboe BYX Exchange, Inc. (the 

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

Securities and Exchange Commission 

(‘‘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 BYX Exchange, Inc. (the 

‘‘Exchange’’ or ‘‘BYX’’) proposes to 

amend its Fees 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/BYX/), 

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 its 

Fees Schedule, effective January 2, 

2024. 

By way of background, the Exchange 

currently makes available for purchase 

Depth Data, which is a daily archive of 

the Exchange’s depth of book real-time 

feed, which provides depth-of-book 

quotations and execution information 

based on equity orders entered into the 

System.3 The Exchange also offers 

Historical Depth Data, which offers such 

data on a historical basis, i.e. T+1 or 


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