41366 Federal Register / Vol. 87, No. 132 / Tuesday, July 12, 2022 / Notices 

2See Offer and Sale of Securities to Canadian 

Tax-Deferred Retirement Savings Accounts, Release 

Nos. 33–7860, 34–42905, IC–24491 (June 7, 2000) 

[65 FR 37672 (June 15, 2000)]. This rulemaking also 

included new rule 237 under the Securities Act, 

permitting securities of foreign issuers to be offered 

to Canadian-U.S. Participants and sold to Canadian 

retirement accounts without being registered under 

the Securities Act. 17 CFR 230.237. 

3 17 CFR 270.7d–2. 

4 44 U.S.C. 3501–3502. 

5 Investment Company Institute, 2021 Investment 

Company Fact Book (2021) at 276, tbl. 66, available 

at https://www.ici.org/system/files/2021-05/2021_

factbook.pdf. Since the last renewal, we understand 

that the Investment Company Institute has changed 

its methodology to enhance the accuracy of how it 

estimates the number of Canadian funds. The 

estimate used for this renewal reflects this change 

in methodology and the number of estimated 

Canadian funds has increased from the last renewal. 

6The Commission’s estimate concerning the wage 

rate for attorney time is based on salary information 

for the securities industry compiled by the 

Securities Industry and Financial Markets 

Association (‘‘SIFMA’’). The $455 per hour figure 

for an Attorney is based on SIFMA’s Management 

& Professional Earnings in the Securities Industry 

2013, updated for 2022, modified by Commission 

staff to account for an 1,800-hour work-year and 

inflation, and multiplied by 5.35 to account for 

bonuses, firm size, employee benefits and overhead. 

As discussed in footnote 5, since the last renewal, 

we understand that the Investment Company 

Institute has changed its methodology to enhance 

the accuracy of how it estimates the number of 

Canadian funds. The estimate used for this renewal 

reflects this change in methodology and the hourly 

burden has increased from the last renewal. 

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

2 15 U.S.C. 78a. 

3 17 CFR 240.19b–4. 

retirement accounts as needed to meet 

their changing investment goals or 

income needs. 

The Commission issued a rulemaking 

in 2000 that enabled Canadian-U.S. 

Participants to manage the assets in 

their Canadian retirement accounts by 

providing relief from the U.S. 

registration requirements for offers of 

securities of foreign issuers to CanadianU.S. Participants and sales to Canadian 

retirement accounts.2 Rule 7d–2 under 

the Investment Company Act 3 permits 

foreign funds to offer securities to 

Canadian-U.S. Participants and sell 

securities to Canadian retirement 

accounts without registering as 

investment companies under the 

Investment Company Act. 

Rule 7d–2 contains a ‘‘collection of 

information’’ requirement within the 

meaning of the Paperwork Reduction 

Act of 1995.4 Rule 7d–2 requires written 

offering materials for securities offered 

or sold in reliance on that rule to 

disclose prominently that those 

securities and the fund issuing those 

securities are not registered with the 

Commission, and that those securities 

and the fund issuing those securities are 

exempt from registration under U.S. 

securities laws. Rule 7d–2 does not 

require any documents to be filed with 

the Commission. 

Rule 7d–2 requires written offering 

documents for securities offered or sold 

in reliance on the rule to disclose 

prominently that the securities are not 

registered with the Commission and 

may not be offered or sold in the United 

States unless registered or exempt from 

registration under the U.S. securities 

laws, and also to disclose prominently 

that the fund that issued the securities 

is not registered with the Commission. 

The burden under the rule associated 

with adding this disclosure to written 

offering documents is minimal and is 

non-recurring. The foreign issuer, 

underwriter, or broker-dealer can redraft 

an existing prospectus or other written 

offering material to add this disclosure 

statement, or may draft a sticker or 

supplement containing this disclosure 

to be added to existing offering 

materials. In either case, based on 

discussions with representatives of the 

Canadian fund industry, the staff 

estimates that it would take an average 

of 10 minutes per document to draft the 

requisite disclosure statement. 

The staff estimates that there are 4,312 

publicly offered Canadian funds that 

potentially would rely on the rule to 

offer securities to participants and sell 

securities to their Canadian retirement 

accounts without registering under the 

Investment Company Act.5 The staff 

estimates that all of these funds have 

previously relied upon the rule and 

have already made the one-time change 

to their offering documents required to 

rely on the rule. The staff estimates that 

216 (5 percent) additional Canadian 

funds would newly rely on the rule each 

year to offer securities to Canadian-U.S. 

Participants and sell securities to their 

Canadian retirement accounts, thus 

incurring the paperwork burden 

required under the rule. The staff 

estimates that each of those funds, on 

average, distributes 3 different written 

offering documents concerning those 

securities, for a total of 648 offering 

documents. The staff therefore estimates 

that 216 respondents would make 648 

responses by adding the new disclosure 

statement to 648 written offering 

documents. The staff therefore estimates 

that the annual burden associated with 

the rule 7d–2 disclosure requirement 

would be 108 hours (648 offering 

documents × 10 minutes per document). 

The total annual cost of these burden 

hours is estimated to be $49,140 (108 

hours × $455 per hour of attorney 

time).6

These burden hour estimates are 

based upon the Commission staff’s 

experience and discussions with the 

fund industry. The estimates of average 

burden hours are made solely for the 

purposes of the Paperwork Reduction 

Act. These estimates are not derived 

from a comprehensive or even a 

representative survey or study of the 

costs of Commission rules. 

Compliance with the collection of 

information requirements of the rule is 

mandatory and is necessary to comply 

with the requirements of the rule in 

general. An agency may not conduct or 

sponsor, and a person is not required to 

respond to a collection of information 

unless it displays a currently valid 

control number. 

Written comments are invited on: (a) 

whether the proposed collection of 

information is necessary for the proper 

performance of the functions of the 

Commission, including whether the 

information shall have practical utility; 

(b) the accuracy of the Commission’s 

estimate of the burden of the collection 

of information; (c) ways to enhance the 

quality, utility, and clarity of the 

information collected; and (d) ways to 

minimize the burden of the collection of 

information on respondents, including 

through the use of automated collection 

techniques or other forms of information 

technology. Consideration will be given 

to comments and suggestions submitted 

by September 12, 2022. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

under the PRA unless it displays a 

currently valid OMB control number. 

Please direct your written comments 

to: David Bottom, Acting Director/Chief 

Information Officer, Securities and 

Exchange Commission, c/o John 

Pezzullo, 100 F Street NE, Washington, 

DC 20549 or send an email to: PRA_

Mailbox@sec.gov. 

Dated: July 6, 2022. 

J. Matthew DeLesDernier, 

Assistant Secretary. 

[FR Doc. 2022–14746 Filed 7–11–22; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–95201; File No. SR– 

NYSEArca-2022–37] 

Self-Regulatory Organizations; NYSE 

Arca, Inc.; Notice of Filing and 

Immediate Effectiveness of Proposed 

Rule Change to Amend the NYSE Arca 

Options Proprietary Market Data Fee 

Schedule 

July 6, 2022. 

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

Securities Exchange Act of 1934 

(‘‘Act’’) 2 and Rule 19b–4 thereunder,3


jspears on DSK121TN23PROD with NOTICES1
Federal Register / Vol. 87, No. 132 / Tuesday, July 12, 2022 / Notices 41367 

4See Securities Exchange Act Release No. 93132 

(September 27, 2021), 86 FR 54499 (October 1, 

2021) (SR–NYSEArca–2021–82) (Notice of Filing 

and Immediate Effectiveness of Proposed Rule 

Change to Adopt a New Historical Market Data 

Product to Be Known as the NYSE Options OpenClose Volume Summary) (‘‘Product Filing’’). 

5Members of the Exchange are OTP Firms, OTP 

Holders and ETP Holders. 

6The Exchange has announced that it will begin 

migrating Exchange-listed options to the Pillar 

technology platform on July 11, 2022, available 

here: https://www.nyse.com/trader-update/ 

history#110000421498. 

7See Securities Exchange Act Release No. 94336 

(March 1, 2022), 87 FR 12752 (March 7, 2022) (SR– 

NYSEArca–2022–09) (Notice of Filing and 

Immediate Effectiveness of Proposed Rule Change 

To Amend the NYSE Arca Options Proprietary 

Market Data Fee Schedule). 

8The terms Customer, Professional Customer, 

Firm and Market Maker are defined in Rule 1.1, 

Definitions. 

9See Securities Exchange Act Release Nos. 89497 

(August 6, 2020), 85 FR 48747 (August 12, 2020) 

(SR–CboeBZX–2020–059); 89498 (August 6, 2020), 

85 FR 48735 (August 12, 2020) (SR–Cboe–EDGX– 

2020–36); 89496 (August 6, 2020), 85 FR 48743 

(August 12, 2020) (SR–C2–2020–010); 89586 

(August 17, 2020), 85 FR 51833 (August 21, 2020) 

(SR–C2–2020–012); 62887 (September 10, 2010), 75 

FR 57092 (September 17, 2010) (SR–Phlx–2010– 

121); 65587 (October 18, 2011), 76 FR 65765 

(October 24, 2011) (SR–NASDAQ–2011–144); 61317 

(January 8, 2010), 75 FR 2915 (January 19, 2010) 

(SR–ISE–2009–103); 81632 (September 15, 2017), 

82 FR 44235 (September 21, 2017) (SR–GEMX– 

2017–42); 91963 (May 21, 2021), 86 FR 28662 (May 

27, 2021) (SR–EMERALD–2021–18); 91964 (May 21, 

2012), 86 FR 28667 (May 27, 2021) (SR–PEARL– 

2021–24); and 91965 (May 21, 2021), 86 FR 28665 

(May 27, 2021) (SR–MIAX–2021–18). 

10See supra note 9. 

notice is hereby given that, on June 23, 

2022, NYSE Arca, Inc. (‘‘NYSE Arca’’ or 

the ‘‘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 self-regulatory 

organization. The Commission is 

publishing this notice to solicit 

comments on the proposed rule change 

from interested persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange proposes to amend the 

NYSE Arca Options Proprietary Market 

Data Fee Schedule (‘‘Fee Schedule’’) to 

adopt fees for the NYSE Options OpenClose Volume Summary market data 

product, effective July 11, 2022. The 

proposed rule change is available on the 

Exchange’s website at www.nyse.com, 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 

self-regulatory organization 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 those 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 parts of such 

statements. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and the 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

The Exchange proposes to amend the 

Fee Schedule to adopt fees for the NYSE 

Options Open-Close Volume Summary,4

which will be available for purchase by 

any market participant, i.e., members 5

and non-members. The Exchange 

proposes to implement fees for the 

NYSE Options Open-Close Volume 

Summary market data product on July 

11, 2022.6 The proposed fees would be 

applied equally to all market 

participants and all market participants 

would receive the same information in 

the data feed. 

Background 

By way of background, pursuant to 

the Product Filing, the Exchange 

adopted two versions of the NYSE 

Options Open-Close Volume Summary: 

an End of Day Volume Summary market 

data product and an Intra-Day Volume 

Summary market data product. The 

Exchange initially introduced the End of 

Day Volume Summary market data 

product on March 1, 2022 and adopted 

fees for the End of Day Volume 

Summary market data product.7 The 

purpose of this filing is to adopt fees for 

the Intra-Day Volume Summary market 

data product. 

The Intra-Day Volume Summary 

provides a volume summary of trading 

activity on the Exchange at the option 

level by origin (Customer, Professional 

Customer, Firm, Broker-Dealer, and 

Market Maker 8), side of the market (buy 

or sell), contract volume, and 

transaction type (opening or closing). 

The Customer, Professional Customer, 

Firm, Broker-Dealer, and Market Maker 

volume is further broken down into 

trade size buckets (less than 100 

contracts, 100–199 contracts, greater 

than 199 contracts). The Intra-Day 

Volume Summary provides similar 

information to that of the End of Day 

Volume Summary but is produced and 

updated every 10 minutes during the 

trading day. The data is captured in 

‘‘snapshots’’ taken every 10 minutes 

throughout the trading day and will be 

available to subscribers within five 

minutes of the conclusion of each 10- 

minute period. Each update would 

represent combined data captured from 

the current ‘‘snapshot’’ and all previous 

‘‘snapshots’’ and thus would provide 

open-close data on an aggregate basis. 

The NYSE Options Open-Close 

Volume Summary is proprietary 

Exchange trade data and does not 

include trade data from any other 

exchange. It is also a historical data 

product and not a real-time data feed. 

The Exchange anticipates a wide 

variety of market participants to 

purchase the Intra-Day Volume 

Summary data product, including, but 

not limited to, individual customers, 

buy-side investors, and investment 

banks. The Exchange believes the IntraDay Volume Summary would provide 

subscribers data that should enhance 

their ability to analyze options trade and 

volume data, and to create and test 

trading models and analytical strategies. 

The Exchange believes the Intra-Day 

Volume Summary will be a valuable 

tool that subscribers can use to gain 

comprehensive insight into the trading 

activity in a particular options series. 

The Intra-Day Volume Summary is a 

completely voluntary product, in that 

the Exchange is not required by any rule 

or regulation to make this data available 

and that potential subscribers may 

purchase it only if they voluntarily 

choose to do so. The Exchange notes 

that other exchanges offer a similar 

product.9

The Intra-Day Volume Summary is 

subject to direct competition from 

similar end of day options trading 

summaries offered by other options 

exchanges.10 All of these exchanges 

offer essentially the same intra day 

options trading summary information. 

The options trading summary files 

offered by the Exchange’s competitors 

are substitutes, not complements. The 

Intra-Day Volume Summary provides 

data on options market activity which 

can be used to infer longer-term trends. 

The information provided by one 

exchange is generally similar to that 

provided by other exchanges because 

order flow can move from one exchange 

to another, and market sentiment trends 

that appear on one exchange are likely 

to be similar to the sentiment trends on 

other exchanges. The key differentiator 

in the quality of the data depends on the 

volume of transactions on a given 

exchange. The greater the volume of 


jspears on DSK121TN23PROD with NOTICES1
41368 Federal Register / Vol. 87, No. 132 / Tuesday, July 12, 2022 / Notices 

11See Price List—U.S. Derivatives Data for 

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

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

and Nasdaq GEMX, LLC (‘‘GEMX’’), available at 

http://www.nasdaqtrader.com/Trader.aspx?id=DP

PriceListOptions#web. Particularly, PHLX offers 

‘‘Nasdaq PHLX Options Trade Outline (PHOTO)’’ 

and assesses $2,500 per month for an intra-day 

subscription; Nasdaq offers the ‘‘Nasdaq Options 

Trade Outline (NOTO)’’ and assesses $750 per 

month for an intra-day subscription; ISE offers the 

‘‘Nasdaq ISE Open/Close Trade Profile’’ and 

assesses $2,000 per month for an intra-day 

subscription; and GEMX offers the ‘‘Nasdaq GEMX 

Open/Close Trade Profile’’ and assesses $1,000 per 

month for an intra-day subscription. Cboe EDGX 

Exchange, Inc. (‘‘EDGX’’) assesses $1,000 per month 

for an intraday subscription and Cboe BZX 

Exchange, Inc. (‘‘BZX’’) assesses $1,500 per month 

for an intraday subscription. See EDGX fee schedule 

available at http://markets.cboe.com/us/options/ 

membership/fee_schedule/edgx/; and BZX fee 

schedule available at http://markets.cboe.com/us/ 

options/membership/fee_schedule/bzx/. Miami 

International Securities Exchange, LLC (‘‘MIAX’’), 

MIAX Emerald, LLC (‘‘Emerald’’) and MIAX 

PEARL, LLC (‘‘PEARL’’) each assesses $2,000 per 

month for an intra-day subscription. See MIAX Fee 

Schedule, available at https://

www.miaxoptions.com/sites/default/files/fee_

schedule-files/MIAX_Options_Fee_Schedule_

09282021.pdf; Emerald Fee Schedule, available at 

https://www.miaxoptions.com/sites/default/files/ 

fee_schedule-files/MIAX_Emerald_Fee_Schedule_

09282021.pdf; and PEARL Fee Schedule, available 

at https://www.miaxoptions.com/sites/default/files/ 

fee_schedule-files/MIAX_Pearl_Options_Fee_

Schedule_092821.pdf. 

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

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

14 15 U.S.C. 78f(b). 

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

16See supra note 9. 

17The Options Clearing Corporation (‘‘OCC’’) 

publishes options and futures volume in a variety 

of formats, including daily and monthly volume by 

exchange, available here: https://www.theocc.com/ 

Market-Data/Market-Data-Reports/Volume-andOpen-Interest/Monthly-Weekly-Volume-Statistics. 

18Based on OCC data for monthly volume of 

equity-based options and monthly volume of ETFbased options, see id., the Exchange’s market share 

in multiply-listed equity and ETF options was 

10.16% for the month of March 2021 and 13.57% 

for the month of March 2022. 

19See Securities Exchange Act Release No. 51808 

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

20NetCoalition v. SEC, 615 F.3d 525, 535 (D.C. 

Cir. 2010) (quoting H.R. Rep. No. 94–229 at 92 

(1975), as reprinted in 1975 U.S.C.C.A.N. 323). 

21 Id. at 535. 

22See Securities Exchange Act Release No. 34– 

90217 (October 16, 2020), 85 FR 67392 (October 22, 

2020) (SR–NYSENAT–2020–05) (internal quotation 

marks omitted), quoting Securities Exchange Act 

transactions, the greater the value of the 

data. 

Proposed Rule Change 

The Exchange proposes to adopt 

subscription fees for the purchase of the 

Intra-Day Volume Summary on a 

monthly basis. The Exchange proposes 

to assess a fee of $2,000 per month for 

subscribing to the Intra-Day Volume 

Summary. As noted on the Fee 

Schedule, for mid-month subscriptions, 

new subscribers will be charged for the 

full calendar month for which they 

subscribe and will be provided NYSE 

Options Open-Close Volume Summary 

data for each trading day of the calendar 

month in which they subscribed. The 

proposed monthly fees will apply to all 

market participants. The Exchange notes 

that other exchanges provide similar 

data products that may be purchased on 

a monthly basis and are comparably 

priced.11

2. Statutory Basis 

The Exchange believes that the 

proposed rule change is consistent with 

Section 6(b) of the Act,12 in general, and 

furthers the objectives of Section 6(b)(5) 

of the Act,13 in particular, in that it is 

designed to prevent fraudulent and 

manipulative acts and practices, 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 to protect investors and the 

public interest, and that it is not 

designed to permit unfair 

discrimination among customers, 

brokers, or dealers. The Exchange also 

believes that its proposal to adopt fees 

for the Intra-Day Volume Summary 

market data product is consistent with 

Section 6(b) of the Act 14 in general, and 

furthers the objectives of Section 6(b)(4) 

of the Act 15 in particular, in that it is 

an equitable allocation of dues, fees and 

other charges among its members and 

other recipients of Exchange data. 

In adopting Regulation NMS, the 

Commission granted self-regulatory 

organizations (‘‘SROs’’) and brokerdealers increased authority and 

flexibility to offer new and unique 

market data to the public. It was 

believed that this authority would 

expand the amount of data available to 

users and consumers of such data and 

also spur innovation and competition 

for the provision of market data. 

Particularly, the Intra-Day Volume 

Summary further broadens the 

availability of U.S. options market data 

to investors consistent with the 

principles of Regulation NMS. 

Subscribers to the data may also be able 

to enhance their ability to analyze 

options trade and volume data and 

create and test trading models and 

analytical strategies. The Exchange 

believes the Intra-Day Volume Summary 

would provide a valuable tool that 

subscribers can use to gain 

comprehensive insight into the trading 

activity in a particular series, but also 

emphasizes such data is not necessary 

for trading. Moreover, other exchanges 

offer a similar data product.16

The Exchange operates in a highly 

competitive market. Indeed, there are 

currently 16 registered options 

exchanges competing for order flow. 

Based on publicly-available 

information, and excluding index-based 

options, no single exchange has more 

than 16% of the market share of 

executed volume of multiply-listed 

equity and ETF options trades.17

Therefore, currently no exchange 

possesses significant pricing power in 

the execution of multiply-listed equity 

and ETF options order flow. More 

specifically, in March 2022, the 

Exchange had less than 14% market 

share of executed volume of multiplylisted equity and ETF options trades.18

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.’’ 19

With respect to market data, the 

decision of the United States Court of 

Appeals for the District of Columbia 

Circuit in NetCoalition v. SEC upheld 

the Commission’s reliance on the 

existence of competitive market 

mechanisms to evaluate the 

reasonableness and fairness of fees for 

proprietary market data: 

In fact, the legislative history indicates that 

the Congress intended that the market system 

‘‘evolve through the interplay of competitive 

forces as unnecessary regulatory restrictions 

are removed’’ and that the SEC wield its 

regulatory power ‘‘in those situations where 

competition may not be sufficient,’’ such as 

in the creation of a ‘‘consolidated 

transactional reporting system.’’ 20

The court agreed with the 

Commission’s conclusion that 

‘‘Congress intended that ‘competitive 

forces should dictate the services and 

practices that constitute the U.S. 

national market system for trading 

equity securities.’ ’’ 21

More recently, the Commission 

confirmed that it applies a ‘‘marketbased’’ test in its assessment of market 

data fees, and that under that test: 

the Commission considers whether the 

exchange was subject to significant 

competitive forces in setting the terms of its 

proposal for [market data], including the 

level of any fees. If an exchange meets this 

burden, the Commission will find that its fee 

rule is consistent with the Act unless there 

is a substantial countervailing basis to find 

that the terms of the rule violate the Act or 

the rules thereunder.22


jspears on DSK121TN23PROD with NOTICES1
Federal Register / Vol. 87, No. 132 / Tuesday, July 12, 2022 / Notices 41369 

Release No. 59039 (December 2, 2008), 73 FR 

74770, 74781 (December 9, 2008) (ArcaBook 

Approval Order). 

23See supra note 11. 24See supra note 9. 

Making similar historic data products 

available to market participants fosters 

competition in the marketplace, and 

constrains the ability of exchanges to 

charge supra-competitive fees. In the 

event that a market participant views 

one exchange’s data product as more or 

less attractive than the competition they 

can and do switch between similar 

products. The proposed fees are a result 

of the competitive environment, as the 

Exchange seeks to adopt fees to attract 

purchasers of the Intra-Day Volume 

Summary data product. 

The Exchange believes the proposed 

fees are reasonable as they are 

comparable to the fees assessed by other 

exchanges that provide similar data 

products.23 Indeed, proposing fees that 

are excessively higher than established 

fees for similar data products would 

simply serve to reduce demand for the 

Exchange’s data product, which as 

noted, is entirely optional. Like the 

Intra-Day Volume Summary, other 

exchanges offer similar data products 

that each provide insight into trading on 

those markets and may likewise aid in 

assessing investor sentiment. Although 

each of these similar data products 

provide only proprietary trade data and 

not trade data from other exchanges, it 

is possible investors are still able to 

gauge overall investor sentiment across 

different option series based on open 

and closing interest on any one 

exchange. Similarly, market participants 

may be able to analyze option trade and 

volume data, and create and test trading 

models and analytical strategies using 

only the Intra-Day Volume Summary 

data relating to trading activity on one 

or more of the other markets that 

provide similar data products. As such, 

if a market participant views another 

exchange’s data as more attractive than 

the Exchange’s data product, then such 

market participant can merely choose 

not to purchase the Exchange’s data 

product and instead purchase another 

exchange’s product, which offer similar 

data points, albeit based on that other 

market’s trading activity. 

The Exchange also believes the 

proposed fees are reasonable as they 

would support the introduction of a 

new historic market data product that is 

designed to aid investors by providing 

insight into trading on the Exchange. 

Once the Intra-Day Volume Summary is 

made available, it would provide 

options market participants with 

valuable information about opening and 

closing transactions executed on the 

Exchange throughout the trading day, 

similar to other trade data products 

offered by competing options 

exchanges. In turn, this data would 

assist market participants in gauging 

investor sentiment and trading activity, 

resulting in potentially better-informed 

trading decisions. As noted above, 

subscribers may also use such data to 

create and test trading models and 

analytical strategies. 

Selling historic market data is also a 

means by which exchanges compete to 

attract business. To the extent that the 

Exchange is successful in attracting 

subscribers to the Exchange’s historic 

data product, it may earn trading 

revenues and further enhance the value 

of its data products. If the market deems 

the proposed fees to be unfair or 

inequitable, subscribers can diminish or 

discontinue their use of the historic data 

and/or avail themselves of similar 

products offered by other exchanges.24

The Exchange therefore believes that the 

proposed fees reflect the competitive 

environment and would be properly and 

equally assessed to all subscribers. The 

Exchange also believes the proposed 

fees are equitable and not unfairly 

discriminatory as the fees would apply 

equally to all subscribers who choose to 

purchase such data. Nothing in this 

proposal treats any category of market 

participant any differently from any 

other category of market participant. 

The Intra-Day Volume Summary is 

available to all market participants, i.e., 

members and non-members, and all 

market participants would receive the 

same information in the data feed. 

As noted above, the Exchange 

anticipates a wide variety of market 

participants to purchase the Exchange’s 

data product, including but not limited 

to individual customers, buy-side 

investors and investment banks. The 

Exchange reiterates that the decision as 

to whether or not to purchase the IntraDay Volume Summary is entirely 

optional for all potential subscribers. 

Indeed, no market participant is 

required to purchase the data product, 

and the Exchange is not required to 

make the data product available to 

market participants. Rather, the 

Exchange is voluntarily making the 

Intra-Day Volume Summary data 

product available, as requested by 

customers, and market participants may 

choose to receive (and pay for) this data 

based on their own business needs. 

Potential subscribers may request the 

data at any time if they believe it to be 

valuable or may decline to purchase 

such data. 

In sum, the fierce competition for 

order flow constrains any exchange 

from pricing its historic market data at 

a supra-competitive price, and 

constrains the Exchange here in setting 

its fees for the Intra-Day Volume 

Summary data product. As described 

above, the Exchange’s data product 

competes head-to-head with numerous 

products currently available in the 

marketplace. These products each serve 

as reasonable substitutes for one another 

as they are each designed to provide 

data on options market activity which 

can be used to infer longer-term trends. 

The information provided by one 

exchange is generally similar to that 

provided by other exchanges because 

order flow can move from one exchange 

to another, and market sentiment trends 

that appear on one exchange are likely 

to be similar to the sentiment trends on 

other exchanges. The key differentiator 

in the quality of the data depends on the 

volume of transactions on a given 

exchange. The greater the volume of 

transactions, the greater the value of the 

historic data. The proposed fees are 

therefore reasonable because in setting 

them, the Exchange is constrained by 

the availability of numerous substitute 

venues offering historic market data 

products and trading. Such substitutes 

need not be identical, but only 

substantially similar to the product at 

hand. 

More specifically, in setting fees for 

the Intra-Day Volume Summary, the 

Exchange is constrained by the fact that, 

if its pricing is unattractive to 

subscribers, subscribers have their pick 

of an increasing number of alternative 

venues to use instead of the Exchange. 

The existence of numerous alternatives 

to the Exchange ensures that the 

Exchange cannot set unreasonable fees 

for historic market data without 

suffering the negative effects of that 

decision in the fiercely competitive 

market in which it operates. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

The Exchange does not believe that 

the proposed rule change will result in 

any burden on competition that is not 

necessary or appropriate in furtherance 

of the purposes of the Act. The 

Exchange also does not believe the 

proposed fees would cause any 

unnecessary or inappropriate burden on 

intermarket competition as other 

exchanges are free to introduce their 

own comparable historic data product 

and adopt fees to better compete with 

the Exchange’s offering. Rather, the 

Exchange believes that the proposal will 

promote competition by permitting the 

Exchange to sell a data product similar 


jspears on DSK121TN23PROD with NOTICES1
41370 Federal Register / Vol. 87, No. 132 / Tuesday, July 12, 2022 / Notices 

25 Id. 

26See supra note 11. 

27 15 U.S.C. 78s(b)(3)(A). 

28 17 CFR 240.19b–4(f)(2). 

29 15 U.S.C. 78s(b)(2)(B). 30 17 CFR 200.30–3(a)(12). 

to those offered by other competitor 

options exchanges.25 The Exchange is 

offering the Intra-Day Volume Summary 

in order to keep pace with changes in 

the industry and evolving customer 

needs, and believes the data product 

will contribute to robust competition 

among national securities exchanges. At 

least eight other U.S. options exchanges 

offer a market data product that is 

substantially similar to the Exchange’s 

offering. As a result, the Exchange 

believes this proposed rule change 

permits fair competition among national 

securities exchanges. 

Furthermore, the Exchange operates 

in a highly competitive environment, 

and its ability to price Intra-Day Volume 

Summary is constrained by competition 

among exchanges that offer similar data 

products to their customers. As 

discussed above, there are currently a 

number of similar products available to 

market participants and investors. At 

least eight other U.S. options exchanges 

offer a market data product that is 

substantially similar to the Exchange’s 

offering, which the Exchange must 

consider in its pricing discipline in 

order to compete effectively.26 For 

example, proposing fees that are 

excessively higher than established fees 

for similar data products would simply 

serve to reduce demand for the 

Exchange’s data product, which as 

discussed, market participants are under 

no obligation to utilize or purchase. In 

this competitive environment, potential 

purchasers are free to choose which, if 

any, similar product to purchase to 

satisfy their need for market 

information. As a result, the Exchange 

believes this proposed rule change 

permits fair competition among national 

securities exchanges. 

The Exchange does not believe the 

proposed rule change would cause any 

unnecessary or inappropriate burden on 

intramarket competition. Particularly, 

the proposed fees would apply 

uniformly to any subscriber, in that the 

Exchange would not differentiate 

between subscribers that purchase the 

Intra-Day Volume Summary and all 

subscribers would receive the same 

information in the data feed. The 

Exchange believes the proposed fees are 

set at a modest level that would allow 

interested subscribers to purchase such 

data based on their business needs. 

C. Self-Regulatory Organization’s 

Statement on Comments on the 

Proposed Rule Change Received From 

Members, Participants, or Others 

No written comments were solicited 

or received with respect to the proposed 

rule change. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

The foregoing rule change is effective 

upon filing pursuant to Section 

19(b)(3)(A) 27 of the Act and 

subparagraph (f)(2) of Rule 19b–4 28

thereunder, because it establishes a due, 

fee, or other charge imposed by the 

Exchange. 

At any time within 60 days of the 

filing of such 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 

under Section 19(b)(2)(B) 29 of the Act to 

determine whether the proposed rule 

change should be approved or 

disapproved. 

IV. Solicitation of Comments 

Interested persons are invited to 

submit written data, views, and 

arguments concerning the foregoing, 

including whether the proposed rule 

change is consistent with the Act. 

Comments may be submitted by any of 

the following methods: 

Electronic Comments 

• Use the Commission’s internet 

comment form (http://www.sec.gov/ 

rules/sro.shtml); or 

• Send an email to rule-comments@

sec.gov. Please include File Number SR– 

NYSEArca–2022–37 on the subject line. 

Paper Comments 

• Send paper comments in triplicate 

to Secretary, Securities and Exchange 

Commission, 100 F Street NE, 

Washington, DC 20549–1090. 

All submissions should refer to File 

Number SR–NYSEArca–2022–37. This 

file number should be included on the 

subject line if email is used. To help the 

Commission process and review your 

comments more efficiently, please use 

only one method. The Commission will 

post all comments on the Commission’s 

internet website (http://www.sec.gov/ 

rules/sro.shtml). Copies of the 

submission, all subsequent 

amendments, all written statements 

with respect to the proposed rule 

change that are filed with the 

Commission, and all written 

communications relating to the 

proposed rule change between the 

Commission and any person, other than 

those that may be withheld from the 

public in accordance with the 

provisions of 5 U.S.C. 552, will be 

available for website viewing and 

printing in the Commission’s Public 

Reference Room, 100 F Street NE, 

Washington, DC 20549 on official 

business days between the hours of 

10:00 a.m. and 3:00 p.m. Copies of the 

filing also will be available for 

inspection and copying at the principal 

office of the Exchange. All comments 

received will be posted without change. 

Persons submitting comments are 

cautioned that we do not redact or edit 

personal identifying information from 

comment submissions. You should 

submit only information that you wish 

to make available publicly. All 

submissions should refer to File 

Number SR–NYSEArca–2022–37 and 

should be submitted on or before 

August 2, 2022. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.30

J. Matthew DeLesDernier, 

Assistant Secretary. 

[FR Doc. 2022–14755 Filed 7–11–22; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[SEC File No. 270–815, OMB Control No. 

3235–0769] 

Proposed Collection; Comment 

Request; Extension: Rule 139b 

Upon Written Request, Copies Available 

From: Securities and Exchange 

Commission, Office of FOIA Services, 

100 F Street NE, Washington, DC 

20549–2736 

Notice is hereby given that the 

Securities and Exchange Commission 

(the ‘‘Commission’’) has, in accordance 

with the Paperwork Reduction Act of 

1995 (Public Law 104–13, 44 U.S.C. 

3501 et seq.) (‘‘PRA’’), is soliciting 

comments on the collection of 

information associated with the Rule 

139b (17 CFR 230.139b) under the 

Securities Act of 1933 (15 U.S.C. 77a et 

seq.) (‘‘Securities Act’’) that was 

adopted by the Commission on 


jspears on DSK121TN23PROD with NOTICES1