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[Federal Register Volume 89, Number 219 (Wednesday, November 13, 2024)]
[Notices]
[Pages 89670-89673]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-26196]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-101526; File No. SR-CboeEDGX-2024-072]

Self-Regulatory Organizations; Cboe EDGX Exchange, Inc.; Notice 
of Filing and Immediate Effectiveness of a Proposed Rule Change To 
Amend Its Fees Schedule Related to Physical Port Fees

November 6, 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 25, 2024, Cboe EDGX Exchange, Inc. (the ``Exchange'' or 
``EDGX'') 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

    Cboe EDGX Exchange, Inc. (the ``Exchange'' or ``EDGX 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://markets.cboe.com/us/options/regulation/rule_filings/edgx/), 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 fee schedule relating to 
physical connectivity fees.\3\
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    \3\ The Exchange initially filed the proposed fee changes on 
July 3, 2023 (SR-CboeEDGX-2023-045). On September 1, 2023, the 
Exchange withdrew that filing and submitted SR-CboeEDGX-2023-058. On 
September 29, 2023, the Securities and Exchange Commission issued a 
Suspension of and Order Instituting Proceedings to Determine whether 
to Approve or Disapprove a Proposed Rule Change to Amend its Fees 
Schedule Related to Physical Port Fees (the ``OIP'') in anticipation 
of a possible U.S. government shutdown. ''). On September 29, 2023, 
the Exchange filed the proposed fee change (SR-CboeEDGX-2023-063). 
On October 13, 2023, the Exchange withdrew that filing and submitted 
SR-CboeEDGX-2023-064. On December 12, 2023, the Exchange withdrew 
that filing and submitted SR-CboeEDGX-2023-080. On February 12, 
2024, the Exchange withdrew that filing and submitted SR-CboeEDGX-
2024-014. On April 9, 2024, the Exchange withdrew that filing and 
submitted SR-CboeEDGX-2024-021. On June 7, 2024, the Exchange 
withdrew that filing and submitted SR-CboeEDGX-2024-036. On August 
29, 2024, the Exchange withdrew that filing and submitted SR-
CboeEDGX-2024-057. On October 25, 2024, the Exchange withdrew that 
filing and submitted this filing.
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    By way of background, a physical port is utilized by a Member or 
non-Member to connect to the Exchange at the data centers where the 
Exchange's servers are located. The Exchange currently assesses the 
following physical connectivity fees for Members and non-Members on a 
monthly basis: $2,500 per physical port for a 1 gigabit (``Gb'') 
circuit and $7,500 per physical port for a 10 Gb circuit. The Exchange 
proposes to increase the monthly fee for 10 Gb physical ports from 
$7,500 to $8,500 per port. The Exchange notes the proposed fee change 
better enables it to continue to maintain and improve its market 
technology and services and also notes that the proposed fee amount, 
even as amended, continues to be in line with, or even lower than, 
amounts assessed by other exchanges for similar connections.\4\ The 
Exchange also notes

[[Page 89671]]

that a single 10 Gb physical port can be used to access the Systems of 
the following affiliate exchanges: the Cboe BYX Exchange, Inc., Cboe 
BZX Exchange, Inc. (options and equities platforms), Cboe EDGA 
Exchange, Inc., and Cboe C2 Exchange, Inc., (``Affiliate 
Exchanges'').\5\ Notably, only one monthly fee currently (and will 
continue) to apply per 10 Gb physical port regardless of how many 
affiliated exchanges are accessed through that one port.\6\
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    \4\ See e.g., The Nasdaq Stock Market LLC (``Nasdaq''), General 
8, Connectivity to the Exchange. Nasdaq and its affiliated exchanges 
charge a monthly fee of $15,000 for each 10Gb Ultra fiber connection 
to the respective exchange, which is analogous to the Exchange's 
10Gb physical port. See also New York Stock Exchange LLC, NYSE 
American LLC, NYSE Arca, Inc., NYSE Chicago Inc., NYSE National, 
Inc. Connectivity Fee Schedule, which provides that 10 Gb LX LCN 
Circuits (which are analogous to the Exchange's 10 Gb physical port) 
are assessed $22,000 per month, per port.
    \5\ The Affiliate Exchanges are also submitting contemporaneous 
identical rule filings.
    \6\ The Exchange notes that conversely, other exchange groups 
charge separate port fees for access to separate, but affiliated, 
exchanges. See e.g., Securities and Exchange Release No. 99822 
(March 21, 2024), 89 FR 21337 (March 27, 2024) (SR-MIAX-2024-016).
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2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with 
the Securities Exchange Act of 1934 (the ``Act'') and the rules and 
regulations thereunder applicable to the Exchange and, in particular, 
the requirements of Section 6(b) of the Act.\7\ Specifically, the 
Exchange believes the proposed rule change is consistent with the 
Section 6(b)(5) \8\ requirements that the rules of an exchange be 
designed to prevent fraudulent and manipulative acts and practices, to 
promote just and equitable principles of trade, to foster cooperation 
and coordination with persons engaged in regulating, clearing, 
settling, processing information with respect to, and facilitating 
transactions in securities, to remove impediments to and perfect the 
mechanism of a free and open market and a national market system, and, 
in general, to protect investors and the public interest. Additionally, 
the Exchange believes the proposed rule change is consistent with the 
Section 6(b)(5) \9\ requirement that the rules of an exchange not be 
designed to permit unfair discrimination between customers, issuers, 
brokers, or dealers. The Exchange also believes the proposed rule 
change is consistent with Section 6(b)(4) \10\ of the Act, which 
requires that Exchange rules provide for the equitable allocation of 
reasonable dues, fees, and other charges among its Members and other 
persons using its facilities. This belief is based on various factors 
as described below.
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    \7\ 15 U.S.C. 78f(b).
    \8\ 15 U.S.C. 78f(b)(5).
    \9\ Id.
    \10\ 15 U.S.C. 78f(b)(4).
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    First, the Exchange believes its proposal is reasonable as it 
reflects a moderate increase in physical connectivity fees for 10 Gb 
physical ports and its offering, even as amended, continues to be more 
affordable as compared to analogous physical connectivity offerings at 
competitor exchanges.\11\
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    \11\ See e.g., The Nasdaq Stock Market LLC (``Nasdaq''), General 
8, Connectivity to the Exchange. Nasdaq and its affiliated exchanges 
charge a monthly fee of $15,000 for each 10Gbps Ultra fiber 
connection to the respective exchange, which is analogous to the 
Exchange's 10Gbps physical port. See also New York Stock Exchange 
LLC, NYSE American LLC, NYSE Arca, Inc., NYSE Chicago Inc., NYSE 
National, Inc. Connectivity Fee Schedule, which provides that 10 
Gbps LX LCN Circuits (which are analogous to the Exchange's 10 Gbps 
physical port) are assessed $22,000 per month, per port.
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    The Exchange also believes the current fee does not properly 
reflect the quality of the service and product, as fees for 10 Gb 
physical ports have been static in nominal terms since 2018, and 
therefore falling in real terms due to inflation. As a general matter, 
the Producer Price Index (``PPI'') 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.\12\ About 10,000 PPIs for individual products 
and groups of products are tracked and released each month.\13\ 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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    \12\ See https://www.bls.gov/ppi/overview.htm.
    \13\ Id.
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    For purposes of this proposal, the relevant industry-specific PPI 
is the Data Processing and Related Services PPI (``Data PPI''), 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 PPI was introduced 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 the U.S. economy and is 
identified as NAICS--518210 in the North American Industry 
Classification System.\14\ 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.'' \15\
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    \14\ NAICS appears in table 5 of the PPI Detailed Report and is 
available at https://data.bls.gov/timeseries/PCU518210518210.
    \15\ See https://www.bls.gov/ppi/factsheets/producer-price-index-for-the-data-processing-and-related-services-industry-naics-518210.htm.
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    The Exchange believes the Data PPI is an appropriate measure to be 
considered in the context of the proposed rule change to modify the 10 
Gb physical port fee because the Exchange uses its ``own computer 
systems'' and ``proprietary software,'' i.e., its own data center and 
proprietary matching engine software, respectively, to collect, 
organize, store, report and receive orders on the Exchange's 
proprietary trading platform. In other words, the Exchange is in the 
business of data processing and related services.
    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. For example, 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

[[Page 89672]]

cumulative increase of over 73% over the same period.\16\
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    \16\ See https://www.usinflationcalculator.com/inflation/consumer-price-index-and-annual-percent-changes-from-1913-to-2008/.
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    As noted above, the current 10 Gb physical port fee remained 
unchanged for six years, particularly since June 2018.\17\ Since its 
last increase over 6 years ago however, there has been notable 
inflation, including under the industry-specific PPI, which as 
described above is a tailored measure of inflation.\18\ Particularly, 
the Data PPI had a starting value of 107 in June 2018 (the month the 
Exchange started assessing the current fee) and an ending value of 
116.22 in August 2024, representing an 8.6% increase.\19\ This 
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 8.6% during this 
period.
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    \17\ See Securities and Exchange Release No. 83430 (June 14, 
2018), 83 FR 28697 (June 20, 2018) (SR CboeEDGX-2018-017).
    \18\ See https://fred.stlouisfed.org/series/PCU51825182#0.
    \19\ Id.
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    The Exchange also believes that it is reasonable to increase its 
fees to compensate for inflation because, over time, inflation has 
degraded the value of each dollar that the Exchange collects in fees, 
such that the real revenue collected today is considerably less than 
that same revenue collected in 2018. The impact of this inflationary 
effect is also independent of any change in the Exchange's costs in 
providing its goods and services. The Exchange therefore believes that 
it is reasonable for it to offset, in part, this erosion in the value 
of the revenues it collects. Additionally, the Exchange historically 
does not increase fees every year notwithstanding inflation. Other 
exchanges have also filed for increases in certain fees, based in part 
on comparisons to inflation.\20\ Accordingly, based on the above-
described percentage change, and in conjunction with the rationale 
further described above and below, the Exchange believes the proposed 
fee increase is reasonable.
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    \20\ See, e.g., Securities Exchange Act Release Nos. 34-100994 
(September 10, 2024), 89 FR 75612 (September 16, 2024) (SR-NYSEARCA-
2024-79) and 34-100398 (June 21, 2024), 89 FR 53676 (June 27, 2024) 
(SR-BOX-2024-16).
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    Next, the Exchange believes significant investments into, and 
enhanced performance of, the Exchange, in the years following the last 
10 Gb physical port fee increase support the reasonableness of the 
proposed fee increase. These investments enhanced the quality of its 
services, as measured by, among other things, increased throughput and 
faster processing speeds. Customers have therefore greatly benefitted 
from these investments, while the Exchange's ability to recoup its 
investments has been hampered.
    For example, the Exchange and its affiliated exchanges recently 
launched a multi-year initiative to improve Cboe Exchange Platform 
performance and capacity requirements to increase competitiveness, 
support growth and advance a consistent world class platform. The goal 
of the project, among other things, is to provide faster and more 
consistent order handling and matching performance for options, while 
ensuring quicker processing time and supporting increasing volumes and 
capacity needs. For example, the Exchange recently performed switch 
hardware upgrades. Particularly, the Exchange replaced existing 
customer access switches with newer models, which the Exchange believes 
resulted in increased determinism. The recent switch upgrades also 
increased the Exchange's capacity to accommodate more physical ports by 
nearly 50%. Network bandwidth was also increased nearly two-fold as a 
result of the upgrades, which among other things, can lead to reduce 
message queuing. The Exchange also believes these newer models result 
in less natural variance in the processing of messages. The Exchange 
notes that it incurred costs associated with purchasing and upgrading 
to these newer models, of which the Exchange has not otherwise passed 
through or offset.
    As of April 1, 2024, market participants also having the option of 
connecting to a new data center (i.e., Secaucus NY6 Data Center 
(``NY6'')), in addition to the current data centers at NY4 and NY5. The 
Exchange made NY6 available in response to customer requests in 
connection with their need for additional space and capacity. In order 
to make this space available, the Exchange expended significant 
resources to prepare this space, and will also incur ongoing costs with 
respect to maintaining this offering, including costs related to power, 
space, fiber, cabinets, panels, labor and maintenance of racks. The 
Exchange also incurred a large cost with respect to ensuring NY6 would 
be latency equalized, as it is for NY4 and NY5.
    The Exchange also has made various other improvements since the 
current physical port rates were adopted in 2018. For example, the 
Exchange has updated its customer portal to provide more transparency 
with respect to firms' respective connectivity subscriptions, enabling 
them to better monitor, evaluate and adjust their connections based on 
their evolving business needs. The Exchange also performs proactive 
audits on a weekly basis to ensure that all customer cross connects 
continue to fall within allowable tolerances for Latency Equalized 
connections. Accordingly, the Exchange expended, and will continue to 
expend, resources to innovate and modernize technology so that it may 
benefit its Members and continue to compete among other options 
markets. The ability to continue to innovate with technology and offer 
new products to market participants allows the Exchange to remain 
competitive in the equities space which currently has 18 registered 
options markets and potential new entrants. If the Exchange were not 
able to assess incrementally higher fees for its connectivity, it would 
effectively impact how the Exchange manages its technology and hamper 
the Exchange's ability to continue to invest in and fund access 
services in a manner that allows it to meet existing and anticipated 
access demands of market participants. Disapproval of fee changes such 
as the proposal herein, could also have the adverse effect of 
discouraging an exchange from improving its operations and implementing 
innovative technology to the benefit of market participants if it 
believes the Commission would later prevent that exchange from 
recouping costs and monetizing its operational enhancements, thus 
adversely impacting competition as well as the interests of market 
participants and investors.
    Finally, the proposed fee is also the same as is concurrently being 
proposed for its Affiliate Exchanges. Further, Members are able to 
utilize a single port to connect to all of its Affiliate Exchanges and 
will only be charged one single fee (i.e., a market participant will 
only be assessed the proposed $8,500 even if it uses that physical port 
to connect to the Exchange and another (or even all 6) of its Affiliate 
Exchanges. Particularly, the Exchange believes the proposed monthly per 
port fee is reasonable, equitable and not unfairly discriminatory since 
as the Exchange has determined to not charge multiple fees for the same 
port. Indeed, the Exchange notes that several ports are in fact 
purchased and utilized across one or more of the Exchange's affiliated 
Exchanges (and charged only once).
    The Exchange also believes that the proposed fee change is not 
unfairly discriminatory because it would be assessed uniformly across 
all market participants that purchase the physical

[[Page 89673]]

ports. The Exchange believes increasing the fee for 10 Gb physical 
ports and charging a higher fee as compared to the 1 Gb physical port 
is equitable as the 1 Gb physical port is 1/10th the size of the 10 Gb 
physical port and therefore does not offer access to many of the 
products and services offered by the Exchange (e.g., ability to receive 
certain market data products). Thus, the value of the 1 Gb alternative 
is lower than the value of the 10 Gb alternative, when measured based 
on the type of Exchange access it offers. Moreover, market participants 
that purchase 10 Gb physical ports utilize the most bandwidth and 
therefore consume the most resources from the network. The Exchange 
also anticipates that firms that utilize 10 Gb ports will benefit the 
most from the Exchange's investment in offering NY6 as the Exchange 
anticipates there will be much higher quantities of 10 Gb physical 
ports connecting from NY6 as compared to 1 Gb ports. Indeed, the 
Exchange notes that 10 Gb physical ports account for approximately 90% 
of physical ports across the NY4, NY5, and NY6 data centers, and to 
date, 80% of new port connections in NY6 are 10 Gb ports. As such, the 
Exchange believes the proposed fee change for 10 Gb physical ports is 
reasonably and appropriately allocated.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act. The proposed fee change will 
not impact intramarket competition because it will apply to all 
similarly situated Members equally (i.e., all market participants that 
choose to purchase the 10 Gb physical port). Additionally, the Exchange 
does not believe its proposed pricing will impose a barrier to entry to 
smaller participants and notes that its proposed connectivity pricing 
is associated with relative usage of the various market participants. 
For example, market participants with modest capacity needs can 
continue to buy the less expensive 1 Gb physical port (which cost is 
not changing) or may choose to obtain access via a third-party re-
seller. While pricing may be increased for the larger capacity physical 
ports, such options provide far more capacity and are purchased by 
those that consume more resources from the network. Accordingly, the 
proposed connectivity fees do not favor certain categories of market 
participants in a manner that would impose a burden on competition; 
rather, the allocation reflects the network resources consumed by the 
various size of market participants--lowest bandwidth consuming members 
pay the least, and highest bandwidth consuming members pays the most.
    The proposed fee change also does not impose a burden on 
competition or on other Self-Regulatory Organizations that is not 
necessary or appropriate. As described above, the Exchange evaluated 
its proposed fee change using objective and stable metric with limited 
volatility. Utilizing Data Processing PPI over a specified period of 
time is a reasonable means of recouping a portion of the Exchange's 
investment in maintaining and enhancing the connectivity service 
identified above. The Exchange believes utilizing Data Processing PPI, 
a tailored measure of inflation, to increase certain connectivity fees 
to recoup the Exchange's investment in maintaining and enhancing its 
services and products would not impose a burden on competition.

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 \21\ and paragraph (f) of Rule 19b-4 \22\ 
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.
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    \21\ 15 U.S.C. 78s(b)(3)(A).
    \22\ 17 CFR 240.19b-4(f).
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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 [email protected]. Please include 
file number SR-CboeEDGX-2024-072 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-CboeEDGX-2024-072. 
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-CboeEDGX-2024-072 and 
should be submitted on or before December 4, 2024.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\23\
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    \23\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2024-26196 Filed 11-12-24; 8:45 am]
BILLING CODE 8011-01-P
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