[Federal Register Volume 89, Number 216 (Thursday, November 7, 2024)]
[Notices]
[Pages 88315-88317]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-25835]



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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-101500; File No. SR-ISE-2024-51]


Self-Regulatory Organizations; Nasdaq ISE, LLC; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To Increase the 
Exchange's SQF Fees in Options 7, Section 7.C

November 1, 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 October 18, 2024, Nasdaq ISE, LLC (``ISE'' or ``Exchange'') 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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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to increase the Exchange's port fees in 
Options 7, Section 7.C.
    While these amendments are effective upon filing, the Exchange has 
designated the proposed amendments to be operative on January 1, 2025.
    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 increase the 
Exchange's connectivity fees in Options 7, Section 7.C for the 
Specialized Quote Feed (``SQF'') Ports \3\ and SQF Purge Ports \4\ by 
10%.
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    \3\ ``Specialized Quote Feed'' or ``SQF'' is an interface that 
allows Market Makers to connect, send, and receive messages related 
to quotes, Immediate-or-Cancel Orders, and auction responses to the 
Exchange. Features include the following: (1) options symbol 
directory messages (e.g., underlying instruments); (2) System event 
messages (e.g., start of trading hours messages and start of 
opening); (3) trading action messages (e.g., halts and resumes); (4) 
execution messages; (5) quote messages; (6) Immediate-or-Cancel 
Order messages; (7) risk protection triggers and purge 
notifications; (8) opening imbalance messages; (9) auction 
notifications; and (10) auction responses. Market Makers may only 
enter interest into SQF in their assigned options series. Immediate-
or-Cancel Orders entered into SQF are not subject to the Order Price 
Protection, Market Order Spread Protection, and Size Limitation 
Protection in Options 3, Section 15(a)(1)(A), (1)(B), and (2)(B) 
respectively. See Supplementary Material .03(c) to Options 3, 
Section 7.
    \4\ The SQF Purge Interface only receives and notifies of purge 
requests from the Market Maker. See Supplementary Material .03(c) to 
Options 3, Section 7.
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    Options 7, Section 7.C(i) includes the Exchange's fees that relate 
to the SQF Ports and SQF Purge Ports that Market Makers \5\ use to 
connect to the Exchange. Today, the Exchange assesses all Market Makers 
an SQF Port fee of $1,100 per port per month and an SQF Purge Port Fee 
of $1,100 per port per month. The Exchange now proposes to increase the 
foregoing fees by 10% so that the amended SQF Port and amended SQF 
Purge Port fees would each become $1,210 per port per month.
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    \5\ The term ``Market Makers'' refers to ``Competitive Market 
Makers'' and ``Primary Market Makers'' collectively. See Options 1, 
Section 1(a)(21).
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    The proposed fee increases would enable the Exchange to maintain 
and improve its market technology and services to remain competitive 
with its peers. Over the years, customer demand for risk protections 
and capacity has increased. The Exchange continues to invest in 
maintaining, improving, and enhancing its protocols like SQF Ports and 
SQF Purge Ports for the benefit and often at the behest of its 
customers. Such enhancements include refreshing hardware, upgrading 
risk protections and information security, and offering customers 
additional capacity. Nevertheless, the Exchange has not increased the 
fees for SQF Ports and SQF Purge Ports since 2017 \6\ (where inflation 
has been around 14.6%, as measured using the metric described below). 
Nevertheless, the Exchange proposes to increase its fees by only 10%.
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    \6\ See Securities Exchange Act Release No. 81882 (October 16, 
2017), 82 FR 48865 (October 20, 2017) (SR-ISE-2017-87).
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    As discussed below, the Exchange proposes to adjust its fees by an 
industry- and product-specific inflationary measure. It is reasonable 
and consistent with the Act for the Exchange to recoup its investments, 
at least in part, by adjusting its fees. Continuing to operate at fees 
frozen at 2017 levels impacts the Exchange's ability to enhance its 
offerings and the interests of market participants and investors.
    The fee increases the Exchange proposes are based on an industry-
specific Producer Price Index (``PPI''), which is a tailored measure of 
inflation.\7\ As a general matter, the Producer Price Index is a family 
of indexes that measures the average change over time in selling prices 
received by domestic producers of goods and services. PPI measures 
price change from the perspective of the seller. This contrasts with 
other metrics, such as the Consumer Price Index (``CPI''), that measure 
price change from the purchaser's perspective.\8\ About 10,000 PPIs for 
individual products and groups of products are tracked and released 
each month.\9\ PPIs are available for the output of nearly all 
industries in the goods-producing sectors of the U.S. economy--mining, 
manufacturing, agriculture, fishing, and forestry--as well as natural 
gas, electricity, and construction, among others. The PPI program 
covers approximately 69 percent of the service sector's output, as 
measured by revenue reported in the 2017 Economic Census.
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    \7\ See https://data.bls.gov/timeseries/PCU5182105182105.
    \8\ See https://www.bls.gov/ppi/overview.htm.
    \9\ See id.
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    For purposes of this proposal, the relevant industry-specific PPI 
is the Hosting, Active Server Pages, and Other IT Infrastructure 
Provisioning Services (``Data PPI'') within the Data Processing and 
Related Services Industry, which is an industry net-output PPI that 
measures the average change in selling prices received by companies 
that provide data processing services.
    The Data Processing and Related Services Industry was introduced to 
the PPI in January 2002 by the Bureau of Labor Statistics (``BLS'') as 
part of an ongoing effort to expand Producer Price Index coverage of 
the services sector of

[[Page 88316]]

the U.S. economy and is identified as NAICS--518210 in the North 
American Industry Classification System.\10\ According to the BLS 
``[t]he primary output of NAICS 518210 is the provision of electronic 
data processing services. In the broadest sense, computer services 
companies help their customers efficiently use technology. The 
processing services market consists of vendors who use their own 
computer systems--often utilizing proprietary software--to process 
customers' transactions and data. Companies that offer processing 
services collect, organize, and store a customer's transactions and 
other data for record-keeping purposes. Price movements for the NAICS 
518210 index are based on changes in the revenue received by companies 
that provide data processing services. Each month, companies provide 
net transaction prices for a specified service. The transaction is an 
actual contract selected by probability, where the price-determining 
characteristics are held constant while the service is repriced. The 
prices used in index calculation are the actual prices billed for the 
selected service contract.'' \11\
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    \10\ See https://data.bls.gov/timeseries/PCU5182105182105.
    \11\ See https://www.bls.gov/ppi/factsheets/producer-price-index-for-the-data-processing-and-related-servicesindustry-naics-518210.htm.
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    The Exchange believes the Data PPI is the most appropriate subset 
of the Data Processing and Related Services Industry to be considered 
in the context of the proposed pricing changes because the Exchange 
uses its ``own computer systems'' and ``proprietary software,'' i.e., 
its own data center and proprietary matching engine software, 
respectively, to receive options quotes on the Exchange's proprietary 
trading platform.
    For purposes of this proposed rule change, the Exchange examined 
the Data PPI value for the period from October 2017 to August 2024. The 
Data PPI had a starting value of 101.6 in October 2017 and an ending 
value of 116.445 in August 2024, a 14.6% increase. This data indicates 
that companies who are also in the data storage and processing business 
have generally increased prices for a specified service covered under 
NAICS 518210 by an average of 14.6% during this period. Based on that 
percentage change, the Exchange proposes to make a one-time fee 
increase of only 10%, which reflects an increase covering roughly the 
entire period since the last price adjustments to these fees were made.
    The Exchange further believes the Data PPI is an appropriate 
measure for purposes of the proposed rule change on the basis that it 
is a stable metric with limited volatility, unlike other consumer-side 
inflation metrics. In fact, the Data PPI has not experienced a greater 
than 2.16% increase for any one calendar year period since Data PPI was 
introduced into the PPI in January 2002. The average calendar year 
change from January 2002 to December 2023 was .62%, with a cumulative 
increase of 15.67% over this 21-year period. The Exchange believes the 
Data PPI is considerably less volatile than other inflation metrics 
such as CPI, which has had individual calendar-year increases of more 
than 6.5%, and a cumulative increase of over 73% over the same 
period.\12\
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    \12\ See https://www.usinflationcalculator.com/.
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    The Exchange believes the Data PPI, and significant investments 
into, and enhanced performance of, the Exchange support the 
reasonableness of the proposed fee increases.\13\
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    \13\ See supra discussion of SQF Port and SQF Purge Port 
enhancements. Additionally, other exchanges have filed for increases 
in certain fees, based in part on comparisons to inflation. See, 
e.g., Securities Exchange Act Release Nos. 34-100004 (April 22, 
2024), 89 FR 32465 (April 26, 2024) (SR-CboeBYX-2024-012); and 34-
100398 (June 21, 2024), 89 FR 53676 (June 27, 2024) (SR-BOX-2024-
16)l; Securities Exchange Act Release No. 34-100994 (September 10, 
2024), 89 FR 75612 (September 16, 2024) (SR-NYSEARCA-2024-79).
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2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act,\14\ in general, and furthers the objectives of 
Sections 6(b)(4) and 6(b)(5) of the Act,\15\ 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.
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    \14\ 15 U.S.C. 78f(b).
    \15\ 15 U.S.C. 78f(b)(4) and (5).
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    This belief is based on two factors. First, the current fees do not 
properly reflect the quality of the SQF and SQF Purge Ports, as fees 
for these offerings have been static in nominal terms, and therefore 
falling in real terms due to inflation. Second, the Exchange believes 
that investments made in enhancing the risk protections and capacity of 
SQF and SQF Purge Ports has increased the performance of these 
offerings.
The Proposed Rule Change Is Reasonable
    As noted above, the Exchange has not increased any of the fees 
included in the proposal since 2017. However, in the years following 
the last fee increases, the Exchange has made significant investments 
in upgrades to its SQF Ports and SQF Purge Ports, enhancing the quality 
of its services, as measured by, among other things, increased 
capacity. In other words, Exchange customers have greatly benefitted, 
while the Exchange's ability to recoup its investments has been 
hampered. Between 2017 and 2024, the inflation rate is 3.66% per year, 
on average, producing a cumulative inflation rate of 28.63%.\16\ Using 
the more targeted inflation number of Data PPI, the cumulative 
inflation rate was around 14.6%. The Exchange believes the Data PPI is 
a reasonable metric to base this fee increase on because it is targeted 
to producer-side increases in the data processing industry, which based 
on the definition adopted by BLS would include the Exchange's port 
offerings.
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    \16\ See https://www.officialdata.org/us/inflation/2017?amount=1.
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    Notwithstanding inflation, as noted above, the Exchange has not 
increased its fees at all for seven years for the SQF and SQF Purge 
Ports. The proposed fee changes represent a modest increase from the 
current fees. The Exchange believes the proposed fee increase is 
reasonable in light of the Exchange's continued expenditure in 
maintaining a robust technology ecosystem. Furthermore, the Exchange 
continues to invest in maintaining and enhancing its port products--for 
the benefit and often at the behest of its customers and global 
investors. Such enhancements include refreshing several aspects of the 
technology ecosystem including software, hardware, and network while 
introducing new and innovative products. The goal of the enhancements 
discussed above, among other things, is to provide more modern 
connectivity to the match engine. Accordingly, the Exchange continues 
to expend resources to innovate and modernize its technology so that it 
may benefit its members in offering SQF and SQF Purge Ports.
The Proposed Fees Are Equitably Allocated and Not Unfairly 
Discriminatory
    The Exchange believes that the proposal represents an equitable 
allocation of reasonable dues, fees and other charges because Exchange 
fees have fallen in real terms during the relevant period. The Exchange 
also believes that the proposed fee increases are equitably allocated 
and not unfairly discriminatory because they would apply uniformly to 
all Market Makers

[[Page 88317]]

that subscribe to SQF and SQF Purge Ports to quote on the Exchange. 
Market Makers are the only market participants that are assessed SQF 
Port and SQF Purge Port fees because they are the only market 
participants that are permitted to quote on the Exchange.\17\ These 
liquidity providers are critical market participants in that they are 
the only market participants that provide liquidity to the Exchange on 
a continuous basis. SQF Ports and SQF Purge Ports are only utilized in 
a Market Maker's assigned options series.
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    \17\ Unlike other market participants, Market Makers are subject 
to market making and quoting obligations. See Options 2, Sections 4 
and 5.
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed pricing changes 
will impose any burden on competition not necessary or appropriate in 
furtherance of the purposes of the Act.
Intra-Market Competition
    The Exchange believes that the proposed fees do not put any market 
participants at a relative disadvantage compared to other market 
participants. As noted above, the Exchange would apply the proposed 10% 
increase to the SQF Port and SQF Purge Port fees to all Market Makers 
uniformly. Market Makers are the only market participants that are 
assessed SQF Port and SQF Purge Port fees because they are the only 
market participants that are permitted to quote on the Exchange. These 
liquidity providers are critical market participants in that they are 
the only market participants that provide liquidity to the Exchange on 
a continuous basis. SQF Ports and SQF Purge Ports are only utilized in 
a Market Maker's assigned options series.
Intermarket Competition
    The Exchange believes that the proposed fees do not impose a burden 
on intermarket competition or on other SROs that is not necessary or 
appropriate. In determining the proposed fees, the Exchange utilized an 
objective and stable metric with limited volatility. Utilizing Data PPI 
over a specified period of time is a reasonable means of recouping the 
Exchange's investment in maintaining and enhancing its port offerings 
such as the SQF and SQF Purge Ports. The Exchange believes utilizing 
Data PPI, a tailored measure of inflation, to increase the fees for the 
SQF Port and SQF Purge Port, to recoup the Exchange's investment in 
maintaining and enhancing such offerings would not impose a burden on 
intermarket competition.

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.\18\
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    \18\ 15 U.S.C. 78s(b)(3)(A)(ii).
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    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

    <bullet> Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
    <bullet> Send an email to <a href="/cdn-cgi/l/email-protection#92e0e7fef7bff1fdfffff7fce6e1d2e1f7f1bcf5fde4"><span class="__cf_email__" data-cfemail="c5b7b0a9a0e8a6aaa8a8a0abb1b685b6a0a6eba2aab3">[email protected]</span></a>. Please include 
file number SR-ISE-2024-51 on the subject line.

Paper Comments

    <bullet> 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-ISE-2024-51. 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-ISE-2024-51 and should be 
submitted on or before November 28, 2024.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\19\
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    \19\ 17 CFR 200.30-3(a)(12).
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Vanessa A. Countryman,
Secretary.
[FR Doc. 2024-25835 Filed 11-6-24; 8:45 am]
BILLING CODE 8011-01-P


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