[Federal Register Volume 82, Number 208 (Monday, October 30, 2017)]
[Notices]
[Pages 50181-50185]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-23480]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-81932; File No. SR-PEARL-2017-35]


Self-Regulatory Organizations; MIAX PEARL, LLC; Notice of Filing 
and Immediate Effectiveness of a Proposed Rule Change To Amend the MIAX 
PEARL Fee Schedule

October 24, 2017.
    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 11, 2017, MIAX PEARL, LLC (``MIAX PEARL'' or 
``Exchange'') filed with the Securities and Exchange Commission (the 
``Commission'') the proposed rule change as described in Items I and II 
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 PEARL Fee 
Schedule (the ``Fee Schedule'') to adopt a fee for the sale of certain 
historical market data.
    The text of the proposed rule change is available on the Exchange's 
Web site at http://www.miaxoptions.com/rule-filings/pearl at MIAX 
PEARL'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 to adopt a fee for 
the sale of certain historical market data.
    The historical market data that the Exchange proposes to sell 
provides information about the past activity of all option products 
traded on the Exchange for each trading session conducted during a 
particular calendar month. The data is intended to enhance the user's 
ability to analyze option trade and volume data, evaluate historical 
trends in the trading activity of a particular option product, and 
enable the testing of trading models and analytical strategies. 
Specifically, the historical market data that the Exchange proposes to 
sell includes all data that is captured and disseminated on the 
following proprietary MIAX PEARL data feeds, on a T+1 basis: MIAX PEARL 
Top of Market (``ToM''); and MIAX PEARL Liquidity Feed (``PLF'') 
(``Historical Market Data''). All such proprietary MIAX PEARL data 
feeds that, on a T+1 basis, comprise the Historical Market Data are 
described on the Exchange's Fee Schedule.\3\
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    \3\ See MIAX PEARL Fee Schedule, Section 6.
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    ToM provides real-time, ultra-low latency updates of the MIAX PEARL 
Best Bid or Offer, or PBBO,\4\ the last sale with trade price, size and 
condition, last sale cancellations, listed series updates, system 
state, and underlying trading state.\5\ PLF provides real-time, ultra-
low latency updates of new simple orders added to the MIAX PEARL order 
book, updates to simple orders resting on the MIAX PEARL order book, 
listed series updates, System \6\ state, and underlying trading 
state.\7\
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    \4\ The term ``PBBO'' means the best bid or offer on the PEARL 
Exchange. See Exchange Rule 100. See also Exchange Rule 506(d).
    \5\ See Securities Exchange Act Release No. 79913 (February 1, 
2017), 82 FR 9617 (February 7, 2017) (SR-PEARL-2017-01) 
(Establishing MIAX PEARL ToM and PLF Data Products).
    \6\ The term ``System'' means the automated trading system used 
by the Exchange for the trading of securities. See Exchange Rule 
100.
    \7\ See supra note 5.
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    MIAX PEARL will only assess the fee for Historical Market Data on a 
user (whether Member or Non-Member) that specifically requests such 
Historical Market Data. Historical Market Data will be uploaded onto an 
Exchange-provided device. The amount of the fee is $500, and it will be 
assessed on a per device basis. Each device shall have a maximum 
storage capacity of 8 Terabytes and will be configured to include data 
for both MIAX Options and MIAX PEARL. Users may request up to six 
months of Historical Market Data per device, subject to the device's 
storage capacity. Historical Market Data is available from August 1, 
2017 to the present (always on a T+1 basis), however only the most 
recent six months of Historical Market Data shall be available for 
purchase from the request date. Historical Market Data usage is 
restricted to internal use only, and thus may not be distributed to any 
third-party.
    The Exchange notes that this filing is substantially similar to a 
companion MIAX Options filing \8\ establishing a fee for historical 
market data on its exchange.
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    \8\ See SR-MIAX-2017-42 (filed on October 11, 2017).
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2. Statutory Basis
    The Exchange believes that its proposal to amend its Fee Schedule 
is consistent with Section 6(b) of the Act \9\ in general, and furthers 
the objectives of Section 6(b)(4) of the Act,\10\ in particular, in 
that it is an equitable allocation of reasonable dues, fees and other 
charges among Exchange members and issuers and other persons using its 
facilities. The proposal provides for the equitable allocation of 
reasonable fees and other charges among Exchange

[[Page 50182]]

members and other persons using its facilities because all persons and 
entities will have equal access to Historical Market Data.
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    \9\ 15 U.S.C. 78f(b).
    \10\ 15 U.S.C. 78f(b)(4).
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    The Exchange believes the proposed fees are a reasonable allocation 
of its costs and expenses among its Members and other persons using its 
facilities since it is recovering the costs associated with 
distributing such data. Access to the Exchange is provided on fair and 
non-discriminatory terms. The Exchange believes the proposed fees are 
equitable and not unfairly discriminatory because the fee level results 
in a reasonable and equitable allocation of fees amongst users for 
similar services. Moreover, the decision as to whether or not to 
purchase Historical Market Data is entirely optional to all users. 
Potential purchasers are not required to purchase the Historical Market 
Data, and the Exchange is not required to make the Historical Market 
Data available. Purchasers may request the data at any time or may 
decline to purchase such data. The allocation of fees among users is 
fair and reasonable because, if the market deems the proposed fees to 
be unfair or inequitable, firms can diminish or discontinue their use 
of this data.
    In adopting Regulation NMS, the Commission granted self-regulatory 
organizations and broker-dealers 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 consumers, 
and also spur innovation and competition for the provision of market 
data:

    [E]fficiency is promoted when broker-dealers who do not need the 
data beyond the prices, sizes, market center identifications of the 
NBBO and consolidated last sale information are not required to 
receive (and pay for) such data when broker-dealers may choose to 
receive (and pay for) additional market data based on their own 
internal analysis of the need for such data.\11\
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    \11\ See Securities Exchange Act Release No. 51808 (June 9, 
2005), 70 FR 37496 (June 29, 2005).

    By removing ``unnecessary regulatory restrictions'' on the ability 
of exchanges to sell their own data, Regulation NMS advanced the goals 
of the Act and the principles reflected in its legislative history. If 
the free market should determine whether proprietary data is sold to 
broker-dealers at all, it follows that the price at which such data is 
sold should be set by the market as well.
    In July, 2010, Congress adopted H.R. 4173, the Dodd-Frank Wall 
Street Reform and Consumer Protection Act of 2010 (``Dodd-Frank Act''), 
which amended Section 19 of the Act. Among other things, Section 916 of 
the Dodd-Frank Act amended paragraph (A) of Section 19(b)(3) of the Act 
by inserting the phrase ``on any person, whether or not the person is a 
member of the self-regulatory organization'' after ``due, fee or other 
charge imposed by the self-regulatory organization.'' As a result, all 
SRO rule proposals establishing or changing dues, fees or other charges 
are immediately effective upon filing regardless of whether such dues, 
fees or other charges are imposed on members of the SRO, non-members, 
or both. Section 916 further amended paragraph (C) of Section 19(b)(3) 
of the Act to read, in pertinent part, ``At any time within the 60-day 
period beginning on the date of filing of such a proposed rule change 
in accordance with the provisions of paragraph (1) [of Section 19(b)], 
the Commission summarily may temporarily suspend the change in the 
rules of the self-regulatory organization made thereby, 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 this title. If the Commission takes such 
action, the Commission shall institute proceedings under paragraph 
(2)(B) [of Section 19(b)] to determine whether the proposed rule should 
be approved or disapproved.''
    The Exchange believes that these amendments to Section 19 of the 
Act reflect Congress's intent to allow the Commission to rely upon the 
forces of competition to ensure that fees for market data are 
reasonable and equitably allocated. Although Section 19(b) had formerly 
authorized immediate effectiveness for a ``due, fee or other charge 
imposed by the self-regulatory organization,'' the Commission adopted a 
policy and subsequently a rule stating that fees for data and other 
products available to persons that are not members of the self-
regulatory organization must be approved by the Commission after first 
being published for comment. At the time, the Commission supported the 
adoption of the policy and the rule by pointing out that unlike 
members, whose representation in self-regulatory organization 
governance was mandated by the Act, non-members should be given the 
opportunity to comment on fees before being required to pay them, and 
that the Commission should specifically approve all such fees. The 
Exchange believes that the amendment to Section 19 reflects Congress's 
conclusion that the evolution of self-regulatory organization 
governance and competitive market structure have rendered the 
Commission's prior policy on non-member fees obsolete. Specifically, 
many exchanges have evolved from member-owned, not-for-profit 
corporations into for-profit, investor-owned corporations (or 
subsidiaries of investor-owned corporations). Accordingly, exchanges no 
longer have narrow incentives to manage their affairs for the exclusive 
benefit of their members, but rather have incentives to maximize the 
appeal of their products to all customers, whether members or non-
members, so as to broaden distribution and grow revenues. Moreover, the 
Exchange believes that the change also reflects an endorsement of the 
Commission's determinations that reliance on competitive markets is an 
appropriate means to ensure equitable and reasonable prices. Simply 
put, the change reflects a presumption that all fee changes should be 
permitted to take effect immediately, since the level of all fees are 
constrained by competitive forces.
    Selling proprietary market data, such as Historical Market Data, is 
a means by which exchanges compete to attract business. To the extent 
that exchanges are successful in such competition, they earn trading 
revenues and also enhance the value of their data products by 
increasing the amount of data they provide. The need to compete for 
business places substantial pressure upon exchanges to keep their fees 
for both executions and data reasonable.\12\ The Exchange therefore 
believes that the fees for Historical Market Data are properly assessed 
on Members and Non-Member users.
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    \12\ See Sec. Indus. Fin. Mkts. Ass'n (SIFMA), Initial Decision 
Release No. 1015, 2016 SEC LEXIS 2278 (ALJ June 1, 2016) (finding 
the existence of vigorous competition with respect to non-core 
market data).
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    The decision of the United States Court of Appeals for the District 
of Columbia Circuit in NetCoalition v. SEC, No. 09-1042 (D.C. Cir. 
2010), although reviewing a Commission decision made prior to the 
effective date of the Dodd-Frank Act, upheld the Commission's reliance 
upon competitive markets to set reasonable and equitably allocated fees 
for 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

[[Page 50183]]

in the creation of a `consolidated transactional reporting system.' 
\13\
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    \13\ NetCoalition, at 15 (quoting H.R. Rep. No. 94-229, at 92 
(1975), as reprinted in 1975 U.S.C.C.A.N. 321, 323).

    The court's conclusions about Congressional intent are therefore 
reinforced by the Dodd-Frank Act amendments, which create a presumption 
that exchange fees, including market data fees, may take effect 
immediately, without prior Commission approval, and that the Commission 
should take action to suspend a fee change and institute a proceeding 
to determine whether the fee change should be approved or disapproved 
only where the Commission has concerns that the change may not be 
consistent with the Act.

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

    MIAX PEARL does not believe that the proposed rule changes will 
impose any burden on competition not necessary or appropriate in 
furtherance of the purposes of the Act. Indeed, the Exchange believes 
that offering certain Historical Market Data will enhance competition 
by encouraging sales, which will make analytical data more readily 
available to investors. Notwithstanding its determination that the 
Commission may rely upon competition to establish fair and equitably 
allocated fees for market data, the NetCoalition Court found that the 
Commission had not, in that case, compiled a record that adequately 
supported its conclusion that the market for the data at issue in the 
case was competitive. The Exchange believes that a record may readily 
be established to demonstrate the competitive nature of the market in 
question.
    The market for data products is extremely competitive and users may 
freely choose alternative venues and data vendors based on the 
aggregate fees assessed, the data offered, and the value provided. 
Numerous exchanges compete with each other for listings, trades, and 
market data itself, providing virtually limitless opportunities for 
entrepreneurs who wish to produce and distribute their own market data. 
Transaction execution and proprietary data products are complementary 
in that market data is both an input and a byproduct of the execution 
service. In fact, market data and trade execution are a paradigmatic 
example of joint products with joint costs. The decision whether and on 
which platform to post an order will depend on the attributes of the 
platform where the order can be posted, including the execution fees, 
data quality and price, and distribution of its data products. Without 
trade executions, exchange data products cannot exist. Moreover, data 
products are valuable to many end users only insofar as they provide 
information that end users expect will assist them or their customers 
in making trading decisions.
    The costs of producing market data include not only the costs of 
the data distribution infrastructure, but also the costs of designing, 
maintaining, and operating the exchange's transaction execution 
platform and the cost of regulating the exchange to ensure its fair 
operation and maintain investor confidence. The total return that a 
trading platform earns reflects the revenues it receives from both 
products and the joint costs it incurs. Moreover, the operation of the 
Exchange is characterized by high fixed costs and low marginal costs. 
This cost structure is common in content distribution industries such 
as software, where developing new software typically requires a large 
initial investment (and continuing large investments to upgrade 
software), but once the software is developed, the incremental cost of 
providing that software to an additional user is typically small, or 
even zero (e.g., if the software can be downloaded over the internet 
after being purchased).\14\ In the case of any exchange, it is costly 
to build and maintain a trading platform, but the incremental cost of 
trading each additional share on an existing platform, or distributing 
an additional instance of data, is very low. Market information and 
executions are each produced jointly (in the sense that the activities 
of trading and placing orders are the source of the information that is 
distributed) and are each subject to significant scale economies.
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    \14\ See William J. Baumol and Daniel G. Swanson, ``The New 
Economy and Ubiquitous Competitive Price Discrimination: Identifying 
Defensible Criteria of Market Power,'' Antitrust Law Journal, Vol. 
70, No. 3 (2003).
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    Competition among trading platforms can be expected to constrain 
the aggregate return each platform earns from the sale of its joint 
products. The level of competition and contestability in the market is 
evidence in the numerous alternative venues that compete for order 
flow, including SRO markets, as well as internalizing BDs and various 
forms of alternative trading systems (``ATSs''), including dark pools 
and electronic communication networks (``ECNs''). Each SRO market 
competes to produce transaction reports via trade executions. It is 
common for BDs to further and exploit this competition by sending their 
order flow and transaction reports to multiple markets, rather than 
providing them all to a single market. Competitive markets for order 
flow, executions, and transaction reports provide pricing discipline 
for the inputs of proprietary data products. The large number of SROs, 
TRFs, BDs, and ATSs that currently produce proprietary data or are 
currently capable of producing it provides further pricing discipline 
for proprietary data products. Each SRO, TRF, ATS, and BD is currently 
permitted to produce proprietary data products, and many currently do 
or have announced plans to do so, including the Nasdaq exchanges, NYSE 
exchanges, and CBOE/Bats exchanges.
    In this competitive environment, an ``excessive'' price for one 
product will have to be reflected in lower prices for other products 
sold by the Exchange, or otherwise the Exchange may experience a loss 
in sales that may adversely affect its profitability. In this case, the 
proposed rule change enhances competition by providing Historical 
Market Data at a fixed price. As such, the Exchange believes that the 
proposed changes will enhance, not impair, competition in the financial 
markets.
    The market for market data products is competitive and inherently 
contestable because there is fierce competition for the inputs 
necessary to the creation of proprietary data and strict pricing 
discipline for the proprietary products themselves. Numerous exchanges 
compete with each other for listings, trades, and market data itself, 
providing virtually limitless opportunities for entrepreneurs who wish 
to produce and distribute their own market data. This proprietary data 
is produced by each individual exchange, as well as other entities, in 
a vigorously competitive market.
    Broker-dealers currently have numerous alternative venues for their 
order flow, including fifteen existing options markets. Each SRO market 
competes to produce transaction reports via trade executions. 
Competitive markets for order flow, executions, and transaction reports 
provide pricing discipline for the inputs of proprietary data products. 
The large number of SROs that currently produce proprietary data or are 
currently capable of producing it provides further pricing discipline 
for proprietary data products. Each SRO is currently permitted to 
produce proprietary data products, and many in addition to MIAX PEARL 
currently do, including NASDAQ, CBOE, Nasdaq ISE, NYSE American, and 
NYSE Arca. Additionally, order routers and market data vendors can

[[Page 50184]]

facilitate single or multiple broker-dealers' production of proprietary 
data products. The potential sources of proprietary products are 
virtually limitless.
    Market data vendors provide another form of price discipline for 
proprietary data products because they control the primary means of 
access to end subscribers. Vendors impose price restraints based upon 
their business models. For example, vendors such as Bloomberg and 
Thomson Reuters that assess a surcharge on data they sell may refuse to 
offer proprietary products that end subscribers will not purchase in 
sufficient numbers. Internet portals, such as Google, impose a 
discipline by providing only data that will enable them to attract 
``eyeballs'' that contribute to their advertising revenue. Retail 
broker-dealers, such as Schwab and Fidelity, offer their customers 
proprietary data only if it promotes trading and generates sufficient 
commission revenue. Although the business models may differ, these 
vendors' pricing discipline is the same: They can simply refuse to 
purchase any proprietary data product that fails to provide sufficient 
value. The Exchange and other producers of proprietary data products 
must understand and respond to these varying business models and 
pricing disciplines in order to market proprietary data products 
successfully.
    In addition to the competition and price discipline described 
above, the market for proprietary data products is also highly 
contestable because market entry is rapid, inexpensive, and profitable. 
The history of electronic trading is replete with examples of entrants 
that swiftly grew into some of the largest electronic trading platforms 
and proprietary data producers: Archipelago, BATS Trading and Direct 
Edge. Regulation NMS, by deregulating the market for proprietary data, 
has increased the contestability of that market. While broker-dealers 
have previously published their proprietary data individually, 
Regulation NMS encourages market data vendors and broker-dealers to 
produce proprietary products cooperatively in a manner never before 
possible. Multiple market data vendors already have the capability to 
aggregate data and disseminate it on a profitable scale, including 
Bloomberg, and Thomson Reuters.
    The Court in NetCoalition concluded that the Commission had failed 
to demonstrate that the market for market data was competitive based on 
the reasoning of the Commission's NetCoalition order because, in the 
Court's view, the Commission had not adequately demonstrated that the 
proprietary data at issue in the case is used to attract order flow. 
The Exchange believes, however, that evidence not then before the court 
clearly demonstrates that availability of data attracts order flow. Due 
to competition among platforms, the Exchange intends to improve its 
platform data offerings on a continuing basis, and to respond promptly 
to customers' data needs.
    The intensity of competition for proprietary information is 
significant and the Exchange believes that this proposal itself clearly 
evidences such competition. The Exchange is offering Historical Market 
Data in order to keep pace with changes in the industry and evolving 
customer needs. It is entirely optional and is geared towards 
attracting new order flow. MIAX PEARL competitors continue to create 
new market data products and innovative pricing in this space. In all 
cases, the Exchange expects firms and other parties to make decisions 
on how much and what types of data to consume on the basis of the total 
cost of interacting with MIAX PEARL or other exchanges. Of course, the 
explicit data fees are only one factor in a total platform analysis. 
Some competitors have lower transactions fees and higher data fees, and 
others are vice versa. The market for this proprietary information is 
highly competitive and continually evolves as products develop and 
change.

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 is effective pursuant to Section 
19(b)(3)(A)(ii) of the Act,\15\ and subparagraph (f)(2) of Rule 19b-
4\16\ 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) \17\ of the Act to 
determine whether the proposed rule change should be approved or 
disapproved.
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    \15\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \16\ 17 CFR 240.19b-4(f)(2).
    \17\ 15 U.S.C. 78s(b)(2)(B).
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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 (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-PEARL-2017-35 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-PEARL-2017-35. 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 Web site (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 Web site 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-PEARL-2017-35 and should be 
submitted on or before November 20, 2017.
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    \18\ 17 CFR 200.30-3(a)(12).


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    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\18\
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017-23480 Filed 10-27-17; 8:45 am]
 BILLING CODE 8011-01-P