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[Federal Register Volume 89, Number 222 (Monday, November 18, 2024)]
[Notices]
[Pages 90787-90790]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-26755]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-101589; File No. SR-SAPPHIRE-2024-35]

Self-Regulatory Organizations; MIAX Sapphire, LLC; Notice of 
Filing and Immediate Effectiveness of a Proposed Rule Change by MIAX 
Sapphire LLC To Extend the Sunset Provision Relating to the Options 
Regulatory Fee (ORF)

November 12, 2024.
    Pursuant to the provisions of 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 31, 2024, MIAX Sapphire, LLC (``MIAX 
Sapphire'' or ``Exchange'') filed with the Securities and Exchange 
Commission (``Commission'') a 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 is filing a proposal to amend the MIAX Sapphire 
Options Exchange Fee Schedule (the ``Fee Schedule'') relating to the 
Options Regulatory Fee (``ORF'') to extend the current sunset date of 
October 31, 2024 to May 31, 2025.
    The text of the proposed rule change is available on the Exchange's 
website at https://www.miaxglobal.com/markets/us-options/all-options-
exchanges/rule-

[[Page 90788]]

filings, at MIAX Sapphire's principal office, 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 related to the ORF 
to extend the current sunset date of October 31, 2024 to May 31, 2025, 
and thus continue charging the previously established ORF in the amount 
of $0.0013 per contract side through May 31, 2025. As discussed herein, 
the ORF sunset date of October 31, 2024 was initially proposed to 
provide time for the Exchange to inform its approach to ORF and discuss 
alternative ORF models with market participants, so that it may compete 
on equal footing with each of the other option exchanges that charge 
similar regulatory fees. However, those discussions have made clear 
that there is not yet consensus among market participants on a path 
forward that would address industry concerns in a manner that would 
effect change broadly across all U.S. options exchanges. Thus, the 
Exchange proposes to extend the automatic sunset date of October 31, 
2024 until May 31, 2025 in order to provide it additional time to 
inform its approach to the ORF after the sunset date while continuing 
to fund a portion of its regulatory program via ORF so that it may 
operate on equal footing with each of the seventeen (17) other options 
exchanges that charge similar regulatory fees in amounts that far 
exceed the relatively modest amounts collected by the Exchange.
    As background, on August 7, 2024 the Exchange initially filed this 
proposal to establish an ORF in the amount of $0.0013 per contract side 
that would automatically sunset on October 31, 2024 (SR-SAPPHIRE-2024-
14). The Exchange withdrew SR-SAPPHIRE-2024-14, and on August 21, 2024 
replaced it with SR-SAPPHIRE-2024-25 (the ``Initial ORF Filing'').\3\ 
The Initial ORF Filing was published for comment in the Federal 
Register on September 3, 2024.\4\ To date, the Securities and Exchange 
Commission (the ``Commission'') received no comments on the Initial ORF 
Filing.
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    \3\ See Securities Exchange Act Release No. 100824 (August 27, 
2024), 89 FR 71496 (September 3, 2024) (SR-SAPPHIRE-2024-25).
    \4\ See Supra note 3.
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    The ORF is designed to recover a material portion of the costs to 
the Exchange of the supervision and regulation of Members' \5\ customer 
options business, including performing routine surveillances and 
investigations, as well as policy, rulemaking, interpretive and 
enforcement activities. The Exchange believes that revenue generated 
from the ORF, when combined with all of the Exchange's other regulatory 
fees and fines, will cover a material portion, but not all, of the 
Exchange's regulatory costs. Currently, all other registered options 
exchanges impose ORF on their members, and those exchanges also charge 
ORF for executions occurring on the Exchange cleared by their 
customers.\6\
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    \5\ The term ``Member'' means an individual or organization that 
is registered with the Exchange pursuant to Chapter II of MIAX 
Sapphire Rules for purposes of trading on the Exchange as an 
``Electronic Exchange Member'' or ``Market Maker.'' Members are 
deemed ``members'' under the Exchange Act. See Exchange Rule 100.
    \6\ See Securities Exchange Act Release Nos. 58817 (October 20, 
2008), 73 FR 63744 (October 27, 2008) (SR-CBOE-2008-05) (notice of 
filing and immediate effectiveness of Cboe adopting an ORF 
applicable to transactions across all options exchanges); 61133 
(December 9, 2009), 74 FR 66715 (December 16, 2009) (SR-Phlx-2009-
100) (notice of filing and immediate effectiveness of Phlx adopting 
an ORF applicable to transactions across all options exchanges); 
61154 (December 11, 2009), 74 FR 67278 (December 18, 2009) (SR-ISE-
2009-105) (notice of filing and immediate effectiveness of ISE 
adopting an ORF applicable to transactions across all options 
exchanges); 61388 (January 20, 2010), 75 FR 4431 (January 27, 2010) 
(SR-BX-2010-001) (notice of filing and immediate effectiveness of 
Nasdaq OMX BX, Inc. (``BX'') adopting an ORF applicable to 
transactions across all options exchanges); 70200 (August 14, 2013) 
78 FR 51242 (August 20, 2013) (SR-Topaz-2013-01)) (notice of filing 
and immediate effectiveness of GEMX, formerly known as ISE Gemini 
and Topaz Exchange, adopting an ORF applicable to transactions 
across all options exchanges); 64400 (May 4, 2011), 76 FR 27118 (May 
10, 2011) (SR-NYSEAmex-2011-27) (notice of filing and immediate 
effectiveness of NYSE AMEX adopting an ORF applicable to 
transactions across all options exchanges); 64399 (May 4, 2011), 76 
FR 27114 (May 10, 2011) (SR-NYSEArca-2011-20) (notice of filing and 
immediate effectiveness of NYSE Arca adopting an ORF applicable to 
transactions across all options exchanges); 65913 (December 8, 
2011), 76 FR 77883 (December 14, 2011) (SR-NASDAQ-2011-163) (notice 
of filing and immediate effectiveness of Nasdaq Options Market 
(``NOM'') adopting an ORF applicable to transactions across all 
options exchanges); 66979 (May 14, 2012), 77 FR 29740 (May 18, 2012) 
(SR-BOX-2012-002) (notice of filing and immediate effectiveness of 
BOX adopting an ORF applicable to transactions across all options 
exchanges); 67596 (August 6, 2012), 77 FR 47902 (August 10, 2012) 
(SR-C2-2012-023) (notice of filing and immediate effectiveness of C2 
Options Exchange, Inc. (``C2'') adopting an ORF applicable to 
transactions across all options exchanges); 68711 (January 23, 2013) 
78 FR 6155 (January 29, 2013) (SR-MIAX-2013-01) (notice of filing 
and immediate effectiveness of MIAX Options adopting an ORF 
applicable to transactions across all options exchanges); 74214 
(February 5, 2015), 80 FR 7665 (February 11, 2015) (SR-BATS-2015-08) 
(notice of filing and immediate effectiveness of BZX formerly known 
as BATS, adopting an ORF applicable to transactions across all 
options exchanges); 80025 (February 13, 2017) 82 FR 11081 (February 
17, 2017) (SR-BatsEDGX-2017-04) (notice of filing and immediate 
effectiveness of EDGX formerly known as Bats EDGX Exchange, Inc., 
adopting an ORF applicable to transactions across all options 
exchanges); 80875 (June 7, 2017) 82 FR 27096 (June 13, 2017) (SR-
PEARL-2017-26) (notice of filing and immediate effectiveness of MIAX 
PEARL adopting an ORF applicable to transactions across all options 
exchanges); 85127 (February 13, 2019) 84 FR 5173 (February 20, 2019) 
(SR-MRX-2019-03) (notice of filing and immediate effectiveness of 
Nasdaq MRX, LLC (``MRX'') adopting an ORF applicable to transactions 
across all options exchanges); 85251 (March 6, 2019) 84 FR 8931 
(March 12, 2019) (SR-EMERALD-2019-01) (notice of filing and 
immediate effectiveness of MIAX Emerald adopting an ORF applicable 
to transactions across all options exchanges).
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    The Exchange recognizes that in 2019, the Commission issued 
suspensions of and orders instituting proceedings to determine whether 
to approve or disapprove a proposed rule change to modify the Options 
Regulatory Fee of NYSE American, NYSE Arca, MIAX Options, MIAX PEARL, 
MIAX Emerald, Cboe, Cboe EDGX Options, and C2.\7\ Each of those 
exchanges had filed to increase their ORF, and the Commission indicated 
that each of those filings lacked detail and specificity, signaling 
that more information was needed to speak to whether the proposed 
increased ORFs were reasonable, equitably allocated and not unfairly 
discriminatory, particularly given that the ORF is assessed on 
transactions that clear in the ``customer'' range and regardless of the 
exchange on which the transaction occurs. The Commission

[[Page 90789]]

also noted that the filings provided only broad general statements 
regarding options transaction volume and did not provide any 
information on those exchanges' historic or projected options 
regulatory costs (including the costs of regulating activity that 
cleared in the ``customer'' range and the costs of regulating activity 
that occurred off exchange), the amount of regulatory revenue they had 
generated and expected to generate from the ORF as well as other 
sources, or the ``material portion'' of options regulatory expenses 
that they sought to recover from the ORF. Each of those exchanges 
withdrew their filings, but continue charging ORF today as discussed 
above. The Exchange would be at an unfair competitive disadvantage if 
it were not allowed to charge the ORF to recover a material portion, 
but not all, of the Exchange's regulatory costs for the supervision and 
regulation of activity of its Members which as noted above, is charged 
by all currently operating options exchanges.
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    \7\ See Securities Exchange Act Release No. 87168 (September 30, 
2019), 84 FR 53210 (October 4, 2019) (SR-Emerald-2019-29); 
Securities Exchange Act Release No. 87167 (September 30, 2019), 84 
FR 53189 (October 4, 2019) (SR-PEARL-2019-23); Securities Exchange 
Act Release No. 87169 (September 30, 2019), 84 FR 53195 (October 4, 
2019) (SR-MIAX-2019-35); Securities Exchange Act Release No. 87170 
(September 30, 2019), 84 FR 53213 (October 4, 2019) (SRCBOE-2019-
040); Securities Exchange Act Release No. 87172 (September 30, 2019) 
84 FR 53192 (October 4, 2019) (SR-CboeEDGX-2019-051); Securities 
Exchange Act Release No 87171 (September 30, 2019), 84 FR 53200 
(October 4, 2019) (SR-C2-2019-018); Securities Exchange Act Release 
No. 86832 (August 30, 2019), 84 FR 46980 (September 6, 2019) (SR-
NYSEArca-2019-49); Securities Exchange Act Release No. 86833 (August 
30, 2019) 84 FR 47029 (September 6, 2019) (SR-NYSEAMER-2019-27).
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    The Exchange recognizes that an alternative model is being pursued 
among industry participants but that a consensus has not yet been 
reached. As such, the Exchange proposes additional time to work towards 
a permanent ORF solution by gathering relevant data internally as well 
from other industry participants, while continuing to charge as other 
options exchanges currently do, until May 31, 2025, at which time its 
ORF will automatically sunset.
    The Exchange notes that if, during the proposed sunset period of 
October 31, 2024 through May 31, 2025, a viable alternative methodology 
for the ORF presents itself, the Exchange would endeavor to implement 
said alternative prior to the proposed sunset date. In other words, the 
existence of the sunset date of May 31, 2025 to the Exchange's current 
ORF would not preclude it from filing to modify its ORF methodology 
prior to that date, if applicable.
    As a new exchange, not having the opportunity to fund its 
regulatory program through the same regulatory fee charged by every 
other options exchange would place an undue competitive disadvantage 
upon the Exchange's regulatory program and options business as a whole. 
Further, the Exchange emphasizes that other exchanges will be charging 
ORF for transactions occurring on MIAX Sapphire, and as such, it 
follows that the exchange that is primarily responsible for monitoring 
those transactions should also be able to charge the ORF for activity 
occurring on its own market, as well as transactions it surveils on 
away markets. Again, the Exchange is committed to facilitating and 
joining efforts to revamp the ORF, however, it must be afforded 
additional time to do so while recouping a portion of its regulatory 
costs via the ORF as all other options exchanges do.
2. Statutory Basis
    The Exchange believes that its proposal to amend its Fee Schedule 
is consistent with Section 6(b) of the Act \8\ in general, and furthers 
the objectives of Section 6(b)(4) of the Act \9\ in particular, in that 
it is an equitable allocation of reasonable dues, fees, and other 
charges among its members and issuers and other persons using its 
facilities. The Exchange also believes the proposal furthers the 
objectives of Section 6(b)(5) of the Act \10\ in that it is designed to 
promote just and equitable principles of trade, 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 and is not designed to permit unfair discrimination between 
customers, issuers, brokers and dealers.
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    \8\ 15 U.S.C. 78f(b).
    \9\ 15 U.S.C. 78f(b)(4).
    \10\ 15 U.S.C. 78f(b)(5).
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    The ORF is designed to recover a material portion of the costs of 
supervising and regulating Members' customer options business including 
performing routine surveillances and investigations, as well as policy, 
rulemaking, interpretive, and enforcement activities. Extending the 
current ORF sunset date to May 31, 2025 is reasonable because continued 
collection of ORF will serve to balance the Exchange's regulatory 
revenue against the anticipated regulatory costs, thereby ensuring 
proper regulatory funding. Moreover, the Exchange's ORF rate is lower 
than the amount of ORF assessed on other exchanges.\11\
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    \11\ See, e.g., NYSE Arca Options Fees and Charges, ORF and NYSE 
American Options Fees Schedule, Section VII(A), which provide that 
ORF is assessed at a rate of $0.0055 per contract for each 
respective exchange. See also Nasdaq PHLX, Options 7 Pricing 
Schedule, Section 6(D), which provides for an ORF rate of $0.0034 
per contract; Cboe Options Fee Schedule, which provides an ORF rate 
of $0.0017 per contract; Nasdaq Options Market, Options 7 Pricing 
Schedule, Section 5, which provides an ORF rate of $0.0016 per 
contract; BOX Options Fee Schedule Section II(C), which provides an 
ORF rate of $0.00295 per contract; MIAX Options Fee Schedule, 
Section 2(b), which provides an ORF rate of $0.0019 per contract; 
MIAX Pearl Fee Schedule, Section 2(b), which provides an ORF rate of 
$0.0018 per contract; and the MEMX Fee Schedule which provides an 
ORF rate of $0.0015.
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    Extending the sunset date is also reasonable because doing so would 
allow the Exchange additional time to inform its approach to ORF moving 
forward while recouping a portion of its regulatory expenses via the 
ORF as other options exchanges do. If the Exchange were not allowed to 
charge an ORF during this additional time period, then after the sunset 
date of October 31, 2024, it would be forced to pay for its regulatory 
program solely out of business revenues while working towards an 
alternative ORF solution, unlike every other competing exchange, each 
of which would continue to assess an ORF, including on transactions 
executed on the Exchange, indefinitely. This would impact the 
Exchange's ability to assure adequate funding of its regulatory 
program.
    Extending the ORF sunset date to May 31, 2025 is also equitable and 
not unfairly discriminatory because prior to the proposed sunset date, 
the ORF would continue to be objectively allocated to Members in a 
manner that is consistent with the ORF imposed by the other seventeen 
(17) options exchanges. The Exchange will continue to monitor the 
amount of revenue collected from the ORF to ensure that it, in 
combination with its other regulatory fees and fines, does not exceed 
the Exchange's total regulatory costs.

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

    MIAX Sapphire 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. This proposal will not create 
an unnecessary or inappropriate intra-market burden on competition 
because the ORF will apply to all customer activity, and is designed to 
enable the Exchange to recover a material portion of the Exchange's 
cost related to its regulatory activities. This proposal will not 
create an unnecessary or inappropriate inter-market burden on 
competition because it will be a regulatory fee that supports 
regulation in furtherance of the purposes of the Act. The Exchange is 
obligated to ensure that the amount of regulatory revenue collected 
from the ORF, in combination with its other regulatory fees and fines, 
does not exceed regulatory costs. MIAX Sapphire's ORF, is lower than, 
or comparable to, fees charged by other options exchanges for the same 
or similar services.
    The Exchange notes that while it does not believe that its proposed 
ORF will impose any burden on inter-market competition, the Exchange 
not charging an ORF or being precluded from charging an ORF after 
October 31, 2024 but prior to the proposed sunset date of May 31, 2025 
would, in-fact, represent a significant burden on the Exchange's 
ability to assure adequate funding of its regulatory program. As noted 
above, the

[[Page 90790]]

Exchange is a new entrant in the highly competitive environment for 
equity options trading. Also, as noted above, all registered options 
exchanges currently impose the ORF on their members, and such ORF fees 
imposed by other options exchanges currently do and will continue to 
extend to executions occurring on the Exchange. The Exchange believes 
that it is likely that a viable ORF alternative may be presented during 
the proposed sunset period. The Exchange believes that in order to 
compete with these existing options exchanges, it must, in fact, impose 
an ORF on its Members during this additional sunset period, and that 
the inability to do so would result in an unfair competitive 
disadvantage to the Exchange.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    Written comments were neither solicited nor 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,\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 should be approved or disapproved.
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    \12\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \13\ 17 CFR 240.19b 4(f)(2).
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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-SAPPHIRE-2024-35 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-SAPPHIRE-2024-35. 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-SAPPHIRE-2024-35 and should 
be submitted on or before December 9, 2024.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\14\
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    \14\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2024-26755 Filed 11-15-24; 8:45 am]
BILLING CODE 8011-01-P
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