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[Federal Register Volume 89, Number 220 (Thursday, November 14, 2024)]
[Notices]
[Pages 90139-90143]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-26416]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-101556; File No. SR-MEMX-2024-44]

Self-Regulatory Organizations; MEMX LLC; Notice of Filing and 
Immediate Effectiveness of a Proposed Rule Change To Amend the 
Exchange's Fee Schedule Concerning Equities Transaction Pricing

November 7, 2024.
    Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given 
that, on October 31, 2024, MEMX LLC (``MEMX'' or the ``Exchange'') 
filed with the Securities and Exchange Commission (the ``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 is filing with the Commission a proposed rule change 
to amend the Exchange's fee schedule applicable to Members \3\ (the 
``Fee Schedule'') pursuant to Exchange Rules 15.1(a) and (c). The 
Exchange proposes to implement the changes to the Fee Schedule pursuant 
to this proposal immediately. The text of the proposed rule change is 
provided in Exhibit 5.
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    \3\ See Exchange Rule 1.5(p).
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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 amend the Fee 
Schedule to: (i) modify the required criteria under Liquidity Provision 
Tier 2; and (ii) modify the Cross Asset Tiers by eliminating Cross 
Asset Tiers 1 and 2 and renaming the current Cross Asset Tier 3 as 
Cross Asset Tier 1, as further described below.
    The Exchange first notes that it operates in a highly competitive 
market in which market participants can readily direct order flow to 
competing venues if they deem fee levels at a particular venue to be 
excessive or incentives to be insufficient. More specifically, the 
Exchange is only one of 16 registered equities exchanges, as well as a 
number of alternative trading systems and other off-exchange venues, to 
which market participants may direct their order flow. Based on 
publicly available information, no single registered equities exchange 
currently has more than approximately 14% of the total market share of 
executed volume of equities trading.\4\ Thus, in such a low-
concentrated and highly competitive market, no single equities exchange 
possesses significant pricing power in the execution of order flow, and 
the Exchange currently represents approximately 2% of the overall 
market share.\5\ The Exchange in particular operates a ``Maker-Taker'' 
model whereby it provides rebates to Members that add liquidity to the 
Exchange and charges fees to Members that remove liquidity from the 
Exchange. The Fee Schedule sets forth the standard rebates and fees 
applied per share for orders that add and remove liquidity, 
respectively. Additionally, in response to the competitive environment, 
the Exchange also offers tiered pricing, which provides Members with 
opportunities to qualify for higher rebates or lower fees where certain 
volume criteria and thresholds are met. Tiered pricing provides an 
incremental incentive for Members to strive for higher tier levels, 
which provides increasingly higher benefits or discounts for satisfying 
increasingly more stringent criteria.
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    \4\ Market share percentage calculated as of October 30, 2024. 
The Exchange receives and processes data made available through 
consolidated data feeds (i.e., CTS and UTDF).
    \5\ Id.

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[[Page 90140]]

Liquidity Provision Tier 2
    The Exchange currently provides a standard rebate of $0.0015 per 
share for executions of orders in securities priced at or above $1.00 
per share that add displayed liquidity to the Exchange (such orders, 
``Added Displayed Volume'').\6\ The Exchange also currently offers 
Liquidity Provision Tiers 1-5, among other volume-based tiers, under 
which a Member may receive an enhanced rebate for executions of Added 
Displayed Volume by achieving the corresponding required volume 
criteria for each such tier. The Exchange now proposes to modify the 
required criteria under Liquidity Provision Tier 2,\7\ as further 
described below.
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    \6\ The base rebate for executions of Added Displayed Volume is 
referred to by the Exchange on the Fee Schedule under the existing 
description ``Added displayed volume'' with a Fee Code of ``B'', 
``D'' or ``J'', as applicable, on execution reports.
    \7\ The pricing for Liquidity Provision Tier 2 is referred to by 
the Exchange on the Fee Schedule under the existing description 
``Added displayed volume, Liquidity Provision Tier 2'' with a Fee 
Code of ``B2'', ``D2'', or ``J2'', as applicable, to be provided by 
the Exchange on the monthly invoices provided to Members.
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    The Exchange currently provides an enhanced rebate of $0.0032 per 
share for executions of Added Displayed Volume for Members that qualify 
for Liquidity Provision Tier 2 by achieving (1) an ADAV \8\ that is 
equal to or greater than 0.20% of the TCV \9\ in securities priced at 
or above $1.00 per share and an ADV \10\ that is equal to or greater 
than 0.40% of the TCV in securities priced at or above $1.00 per share; 
or (2) a Step-Up ADAV \11\ from June 2024 (excluding Retail Orders) 
that is equal to or greater than 0.05% of the TCV in securities priced 
at or above $1.00 per share and an ADAV (excluding Retail Orders) that 
is equal to or greater than 0.20% of the TCV in securities priced at or 
above $1.00 per share; or (3) an ADAV that is equal to or greater than 
0.30% of the TCV. Now, the Exchange proposes to modify alternative 
criteria (1) of Liquidity Provision Tier 2, such that a Member may 
qualify for such alternative criteria (1) by achieving an ADAV that is 
equal to or greater than 0.20% of the TCV and an ADV that is equal to 
or greater than 0.50% of the TCV. Thus, the Exchange is proposing to 
keep the existing alternative criteria (2) and (3) intact without 
changes while modifying the current alternative criteria (1) such that 
the TCV calculation includes all securities, not just those priced at 
or above $1.00 per share, and the ADV requirement in the second half of 
the criteria is increased from 0.40% of the TCV to 0.50% of the TCV. 
The Exchange is not proposing to change the rebate provided under 
Liquidity Provision Tier 2.
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    \8\ As set forth on the Fee Schedule, ``ADAV'' means the average 
daily added volume calculated as the number of shares added per day, 
which is calculated on a monthly basis, and ``Displayed ADAV'' means 
ADAV with respect to displayed orders.
    \9\ As set forth on the Fee Schedule, ``TCV'' means total 
consolidated volume calculated as the volume reported by all 
exchanges and trade reporting facilities to a consolidated 
transaction reporting plan for the month for which the fees apply.
    \10\ As set forth on the Fee Schedule, ``ADV'' means average 
daily volume calculated as the number of shares added or removed, 
combined, per day, which is calculated on a monthly basis.
    \11\ As set forth on the Fee Schedule, ``Step-Up ADAV'' means 
ADAV in the relevant baseline month subtracted from current ADAV.
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    The tiered pricing structure for executions of Added Displayed 
Volume under the Liquidity Provision Tiers provides an incremental 
incentive for Members to strive for higher volume thresholds to receive 
higher enhanced rebates for such executions and, as such, is intended 
to encourage Members to maintain or increase their order flow, 
primarily in the form of liquidity-adding volume, to the Exchange, 
thereby contributing to a deeper and more liquid market to the benefit 
of all Members and market participants. The Exchange believes that the 
proposed changes to Liquidity Provision Tier 2 reflect a reasonable and 
competitive pricing structure that is right-sized and consistent with 
the Exchange's overall pricing philosophy of encouraging added and/or 
displayed liquidity. Specifically, the Exchange believes that, after 
giving effect to the proposed changes described above, the rebate for 
executions of Added Displayed Volume provided under Liquidity Provision 
Tier 2 remains commensurate with the corresponding required criteria 
under each such tier and is reasonably related to the market quality 
benefits that such tier is designed to achieve.
Cross Asset Tiers
    The Exchange currently offers Cross Asset Tiers 1-3 under which a 
Member may receive an enhanced rebate for executions of Added Displayed 
Volume in securities priced at or above $1.00 per share by achieving 
the corresponding required volume criteria for such tier on the 
Exchange's equity options platform, MEMX Options. The Exchange now 
proposes to modify the Cross Asset Tiers by eliminating Cross Asset 
Tiers 1 and 2 and renaming the current Cross Asset Tier 3 to become 
Cross Asset Tier 1.
    With respect to the current Cross Asset Tiers 1 and 2, under Cross 
Asset Tier 1, the Exchange provides an enhanced rebate of $0.0033 per 
share for executions of Added Displayed Volume for Members that qualify 
for such tier by achieving an Options ADAV \12\ in the Market Maker 
\13\ capacity that is equal to or greater than 250,000 contracts on 
MEMX Options and an ADAV on MEMX Equities that is equal to or greater 
than 0.30% of the TCV. Under the current Cross Asset Tier 2, the 
Exchange provides an enhanced rebate of $0.0027 per share for 
executions of Added Displayed Volume for Members that qualify for such 
tier by achieving an Options ADAV in the Market Maker capacity that is 
equal to or greater than 125,000 contracts on MEMX Options. The 
Exchange now proposes to eliminate Cross Asset Tiers 1 and 2, as the 
Exchange no longer wishes to, nor is it required to, maintain such 
tiers.
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    \12\ As set forth on the Fee Schedule, a Member's ``Options 
ADAV'' for purposes of equities pricing means the average daily 
added volume calculated as a number of contracts added on MEMX 
Options per day by the Member, which is calculated on a monthly 
basis.
    \13\ As set forth on the MEMX Options Fee Schedule, ``Market 
Maker'' applies to any order for the account of a registered Market 
Maker. ``Market Maker'' shall have the meaning set forth in Rule 
16.1 of the MEMX Rulebook.
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    With respect to the current Cross Asset Tier 3, the Exchange 
currently provides an enhanced rebate of $0.0026 per share for 
executions of Added Displayed Volume for Members that qualify for such 
tier by achieving an Options ADAV in the Customer \14\ and/or 
Professional \15\ capacity that is equal to or greater than 20,000 
contracts on MEMX Options. The Exchange is not proposing to change the 
rebate provided or the required criteria under this tier, however, 
given the elimination of Cross Asset Tiers 1 and 2, the Exchange is 
proposing to re-number the current Cross Asset Tier 3 as Cross Asset 
Tier 1.\16\
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    \14\ As set forth on the MEMX Options Fee Schedule, ``Customer'' 
applies to any order for the account of a Priority Customer. 
Priority Customer shall have the meaning set forth in Rule 16.1 of 
the MEMX Rulebook.
    \15\ As set forth on the MEMX Options Fee Schedule, 
``Professional'' applies to any order for the account of a 
Professional.
    \16\ Currently, as noted on the Fee Schedule, Members that 
qualify for Cross Asset Tier 3 based on activity in a given month 
will also receive that associated Cross Asset Tier 3 rebate during 
the following month. Given the Exchange is proposing to re-name this 
tier Cross Asset Tier 1 and leave it otherwise unchanged, it will 
update the note under the table to read: ``Members that qualify for 
Cross Asset Tier 1 based on activity in a given month will also 
receive that associated Cross Asset Tier 1 rebate during the 
following month.''
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with the provisions of section 6 of the Act,\17\ in general, and with 
sections 6(b)(4) and 6(b)(5) of the Act,\18\ in particular, in that

[[Page 90141]]

it provides for the equitable allocation of reasonable dues, fees and 
other charges among its Members and other persons using its facilities 
and is not designed to permit unfair discrimination between customers, 
issuers, brokers, or dealers.
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    \17\ 15 U.S.C. 78f.
    \18\ 15 U.S.C. 78f(b)(4) and (5).
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    As discussed above, the Exchange operates in a highly fragmented 
and competitive market in which market participants can readily direct 
order flow to competing venues if they deem fee levels at a particular 
venue to be excessive or incentives to be insufficient, and the 
Exchange represents only a small percentage of the overall market. The 
Commission and the courts have repeatedly expressed their preference 
for competition over regulatory intervention in determining prices, 
products, and services in the securities markets. 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.'' \19\
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    \19\ Securities Exchange Act Release No. 51808 (June 9, 2005), 
70 FR 37496, 37499 (June 29, 2005).
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    The Exchange believes that the ever-shifting market share among the 
exchanges from month to month demonstrates that market participants can 
shift order flow or discontinue to reduce use of certain categories of 
products, in response to new or different pricing structures being 
introduced into the market. Accordingly, competitive forces constrain 
the Exchange's transaction fees and rebates, and market participants 
can readily trade on competing venues if they deem pricing levels at 
those other venues to be more favorable. The Exchange believes the 
proposal reflects a reasonable and competitive pricing structure 
designed to encourage market participants to strive for higher volume 
on the Exchange, which the Exchange believes would promote price 
discovery and enhance liquidity and market quality on the Exchange to 
the benefit of all Members and market participants.
    The Exchange notes that volume-based incentives (such as Liquidity 
Provision Tiers and Cross Asset Tiers) have been widely adopted by 
exchanges (including the Exchange), and are reasonable, equitable, and 
not unfairly discriminatory because they are open to all members on an 
equal basis and provide additional benefits or discount that are 
reasonably related to the value to an exchange's market quality 
associated with higher levels of market activity, such as higher levels 
of liquidity provision and/or growth patterns, and the introduction of 
higher volumes of orders into the price and volume discovery process. 
The Exchange believes that the proposed changes to the required 
criteria under Liquidity Provision Tier 2 are reasonable, equitable and 
not unfairly discriminatory because, as described above, such changes 
are available to all Members on an equal basis, and, are designed to 
encourage Members to maintain or increase their order flow, including 
in the form of displayed, liquidity-adding, orders to the Exchange in 
order to qualify for an enhanced rebate, as applicable, thereby 
contributing to a deeper, more liquid and well balanced market 
ecosystem on the Exchange to the benefit of all Members and market 
participants.
    The Exchange believes the proposed change to eliminate Cross Asset 
Tiers 1 and 2 and renumber the existing Cross Asset Tier 3 to Cross 
Asset Tier 1 is reasonable because, as noted above, the Exchange is not 
required to maintain such tiers and the opportunity to qualify for the 
former Cross Asset Tier 3, now Cross Asset Tier 1, continues to be 
equally available to all Members, and continues to provide Members with 
an incremental incentive to achieve certain volume thresholds on the 
Exchange and on MEMX Options, thereby contributing to a deeper, more 
liquid and well balanced market ecosystem on the Exchange to the 
benefit of all Members and market participants.
    For the reasons discussed above, the Exchange submits that the 
proposal satisfies the requirements of sections 6(b)(4) and 6(b)(5) of 
the Act \20\ in that it provides for the equitable allocation of 
reasonable dues, fees and other charges among its Members and other 
persons using its facilities and is not designed to unfairly 
discriminate between customers, issuers, brokers, or dealers. As 
described more fully below in the Exchange's statement regarding the 
burden on competition, the Exchange believes that its transaction 
pricing is subject to significant competitive forces, and that the 
proposed fees and rebates described herein are appropriate to address 
such forces.
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    \20\ 15 U.S.C. 78f(b)(4) and (5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposal will result in any 
burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act. Instead, as discussed above, 
the proposal is intended to incentivize market participants to direct 
additional order flow to the Exchange, which the Exchange believes 
would promote price discovery and enhance liquidity and market quality 
on the Exchange to the benefit of all Members and market participants. 
As a result, the Exchange believes the proposal would enhance its 
competitiveness as a market that attracts actionable orders, thereby 
making it a more desirable destination venue for its customers. For 
these reasons, the Exchange believes that the proposal furthers the 
Commission's goal in adopting Regulation NMS of fostering competition 
among orders, which promotes ``more efficient pricing of individual 
stocks for all types of orders, large and small.'' \21\
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    \21\ See supra note 19.
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Intramarket Competition
    As discussed above, the Exchange believes that the proposal would 
maintain a tiered pricing structure that is still consistent with the 
Exchange's overall pricing philosophy of encouraging added and/or 
displayed liquidity and would incentivize market participants to direct 
additional order flow to the Exchange through volume-based tiers, 
thereby enhancing liquidity and market quality on the Exchange to the 
benefit of all Members, as well as enhancing the attractiveness of the 
Exchange as a trading venue, which the Exchange believes, in turn, 
would continue to encourage market participants to direct additional 
order flow to the Exchange. Greater liquidity benefits all Members by 
providing more trading opportunities and encourages Members to send 
additional orders to the Exchange, thereby contributing to robust 
levels of liquidity, which benefits all market participants.
    The Exchange does not believe that the proposed changes would 
impose any burden on intramarket competition because such changes will 
incentivize members to submit additional order flow, thereby 
contributing to a more robust and well-balanced market ecosystem on the 
Exchange to the benefit of all Members as well as enhancing the 
attractiveness of the Exchange as a trading venue, which the Exchange 
believes, in turn, would continue to encourage market participants to 
direct additional order flow to the Exchange. Greater liquidity 
benefits all Members by providing more trading opportunities and 
encourages Members to send additional orders to

[[Page 90142]]

the Exchange, thereby contributing to robust levels of liquidity, which 
benefits all market participants. The opportunity to qualify for the 
modified Liquidity Provision Tier 2 and re-numbered Cross Asset Tier 1, 
and thus receive the corresponding enhanced rebates, as applicable, 
would be available to all Members that meet the associated volume 
requirements in any month. As described above, the Exchange believes 
that the required criteria under each such tier are commensurate with 
the corresponding rebate under such tier and are reasonably related to 
the enhanced liquidity and market quality that such tier is designed to 
promote. For the foregoing reasons, the Exchange believes the proposed 
changes would not impose any burden on intramarket competition that is 
not necessary or appropriate in furtherance of the purposes of the Act.
Intermarket Competition
    As noted above, the Exchange operates in a highly competitive 
market in which market participants can readily direct order flow to 
competing venues if they deem fee levels at a particular venue to be 
excessive or incentives to be insufficient. Members have numerous 
alternative venues that they may participate on and direct their order 
flow to, including 15 other equities exchanges and numerous alternative 
trading systems and other off-exchange venues. As noted above, no 
single registered equities exchange currently has more than 
approximately 14% of the total market share of executed volume of 
equities trading. Thus, in such a low-concentrated and highly 
competitive market, no single equities exchange possesses significant 
pricing power in the execution of order flow. Moreover, the Exchange 
believes that the ever-shifting market share among the exchanges from 
month to month demonstrates that market participants can shift order 
flow or discontinue to reduce use of certain categories of products, in 
response to new or different pricing structures being introduced into 
the market. Accordingly, competitive forces constrain the Exchange's 
transaction fees and rebates and market 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. As 
described above, the proposed changes represent a competitive proposal 
through which the Exchange is seeking to incentivize market 
participants to direct additional order flow to the Exchange through 
volume-based tiers, which have been widely adopted by exchanges, 
including the Exchange. Accordingly, the Exchange believes the proposal 
would not burden, but rather promote, intermarket competition by 
enabling it to better compete with other exchanges that offer similar 
pricing structures and incentives to market participants.
    Additionally, 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.'' \22\ The fact 
that this market is competitive has also long been recognized by the 
courts. In NetCoalition v. SEC, 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 broker-dealers that act as their order-
routing agents, have a wide range of choices of where to route orders 
for execution'; [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' . . . .''.\23\ Accordingly, the Exchange does not believe its 
proposed pricing changes impose any burden on competition that is not 
necessary or appropriate in furtherance of the purposes of the Act.
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    \22\ See supra note 19.
    \23\ NetCoalition 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-NYSE-2006-21)).
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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 \24\ and Rule 19b-4(f)(2) \25\ thereunder.
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    \24\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \25\ 17 CFR 240.19b-4(f)(2).
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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 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 (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
file number SR-MEMX-2024-44 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-MEMX-2024-44. 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

[[Page 90143]]

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-MEMX-2024-44 and should be submitted on or before 
December 5, 2024.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\26\
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    \26\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2024-26416 Filed 11-13-24; 8:45 am]
BILLING CODE 8011-01-P
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