[Federal Register Volume 83, Number 9 (Friday, January 12, 2018)]
[Notices]
[Pages 1647-1651]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-00413]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-82462; File No. SR-CboeEDGX-2017-010]


Self-Regulatory Organizations; Cboe EDGX Exchange, Inc.; Notice 
of Filing and Immediate Effectiveness of a Proposed Rule Change To 
Adopt Fees for Certain Market Data Products on the Exchange's Equity 
Options Platform

January 8, 2018.
    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 December 27, 2017, Cboe EDGX Exchange, Inc. (the ``Exchange'' 
or ``EDGX'') 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 filed a proposal to amend the Market Data section of 
its fee schedule applicable to its equity options platform (``EDGX 
Options'') to adopt fees for certain of its market data products, which 
are currently offered free of charge. The Exchange also proposes to 
amend the names of these market data products in Exchange Rule 
21.15(b).
    The text of the proposed rule change is available at the Exchange's 
website at www.markets.cboe.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 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 parts of such 
statements.

[[Page 1648]]

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 the Market Data section of its fee 
schedule applicable to EDGX Options to adopt fees for certain of its 
market data products, which are currently offered free of charge. The 
Exchange also proposes to amend the names of these market data products 
in Exchange Rule 21.15(b).
    The Exchange proposes to adopt fees for the following market data 
products: EDGX Options Depth (currently referred to as Multicast 
PITCH), EDGX Options Top (currently referred to Multicast Top), and 
EDGX Options Auction Feed. Each of these market data products are 
currently offered free of charge. The Exchange also proposes to amend 
Rule 21.15(b) to revise the names of each of these market data 
products.
    Multicast Pitch, to be renamed as EDGX Options Depth, is a data 
feed that offers depth of book quotations and execution information 
based on options orders entered into the System.\3\ The Exchange offers 
separate EDGX Options Depth data feeds for the Exchange's Simple Book 
and the Exchange's Complex Order Book. The Exchange introduced Complex 
Order Book functionality on October 23, 2017.\4\ The Exchange's Complex 
Book is the EDGX Options electronic book of Complex Orders.\5\ The 
Exchange's Simple Book is its regular electronic book of orders.\6\
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    \3\ Exchange Rule 21.15(b)(1).
    \4\ Exchange Rule 21.20. See also Securities Exchange Act 
Release No. 81891 (October 17, 2017), 82 FR 49058 (October 23, 2017) 
(order approving the Exchange's proposal to adopt a complex order 
book) (SR-BatsEDGX-2017-29).
    \5\ Exchange Rule 21.20.(a)(6). A ``Complex Order'' is any order 
involving the concurrent purchase and/or sale of two or more 
different options in the same underlying security (the ``legs'' or 
``components'' of the complex order), for the same account, in a 
ratio that is equal to or greater than one-to-three (.333) and less 
than or equal to three-to-one (3.00) and for the purposes of 
executing a particular investment strategy. Exchange Rule 
21.20(a)(5).
    \6\ Exchange Rule 21.20(a)(10). See also Exchange Rule 
16.1(a)(9) (defining the EDGX Options Book).
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    Multicast TOP, to be renamed as EDGX Options Top, is a data feed 
that offers top of book quotations and execution information based on 
options orders entered into the System.\7\ Like the EDGX Options Depth 
feed, the Exchange offers separate EDGX Options Top data feeds for the 
Exchange's Simple Book and the Exchange's Complex Order Book.
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    \7\ Exchange Rule 21.15(b)(2).
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    Finally, the Auction Feed, to be renamed the EDGX Options Auctions 
Feed, is a data feed that provides information regarding the current 
status of price and size information related to auctions conducted by 
the Exchange.\8\ Like EDGX Options Depth and EDGX Options Top, the 
Exchange offers separate EDGX Options Auction data feeds for the 
Exchange's Simple Book and the Exchange's Complex Order Book.
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    \8\ Exchange Rule 21.15(b)(5).
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    The Exchange now proposes to amend its fee schedule to incorporate 
fees for distribution of each of the above market data products to 
subscribers. The proposed fees include the following, each of which are 
described in detail below: (i) Distribution Fees for both Internal and 
External Distributors; \9\ and (ii) Usage Fees for both Professional 
\10\ and Non-Professional \11\ Users. The Exchange is proposing 
identical Distribution and Users fees for each market data product 
described above. Also, Distributors and Users of any one of the market 
data products subject to this proposal may receive access to any or all 
of the other market data products at no additional charge.
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    \9\ A ``Distributor'' is defined as ``any entity that receives 
the Exchange Market Data product directly from the Exchange or 
indirectly through another entity and then distributes it internally 
or externally to a third party.'' See the Exchange's fee schedule 
available at http://markets.cboe.com/us/options/membership/fee_schedule/edgx/. An ``Internal Distributor'' is defined as ``a 
Distributor that receives the Exchange Market Data product and then 
distributes that data to one or more Users within the Distributor's 
own entity.'' Id. An ``External Distributor'' is defined as ``a 
Distributor that receives the Exchange Market Data product and then 
distributes that data to a third party or one or more Users outside 
the Distributor's own entity.'' Id.''
    \10\ A ``Professional User'' is defined as ``any User other than 
a Non-Professional User.'' See the Exchange's fee schedule available 
at http://markets.cboe.com/us/options/membership/fee_schedule/edgx/.
    \11\ A ``Non-Professional User'' is defined as ``a natural 
person who is not: (i) Registered or qualified in any capacity with 
the Commission, the Commodity Futures Trading Commission, any state 
securities agency, any securities exchange or association, or any 
commodities or futures contract market or association; (ii) engaged 
as an ``investment adviser'' as that term is defined in Section 
202(a)(11) of the Investment Advisers Act of 1940 (whether or not 
registered or qualified under that Act); or (iii) employed by a bank 
or other organization exempt from registration under federal or 
state securities laws to perform functions that would require 
registration or qualification if such functions were performed for 
an organization not so exempt.'' Id.
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    Distribution Fees. As proposed, each Internal Distributor and 
External Distributor that receives either the simple or complex 
versions of EDGX Options Depth, EDGX Options Top, and/or the EDGX 
Options Auction Feed shall pay a fee of $500 per month.
    User Fees. The Exchange proposes to charge Internal Distributors 
and External Distributors that redistribute either the simple or 
complex versions of EDGX Options Depth, EDGX Options Top, and/or the 
EDGX Options Auction Feed different fees for their Professional Users 
and Non-Professional Users. The Exchange will assess a monthly fee for 
Professional Users of $10.00 per User. Non-Professional Users will be 
assessed a monthly fee of $1.00 per User.
    Distributors that receive either the simple or complex versions of 
EDGX Options Depth, EDGX Options Top, and/or the EDGX Options Auction 
Feed will be required to count every Professional User and Non-
Professional User to which they provide the market data product(s), the 
requirements for which are identical to that currently in place for 
other market data products offered by the Exchange's equity trading 
platform.\12\ Thus, the Distributor's count will include every person 
and device that accesses the data regardless of the purpose for which 
the individual or device uses the data. Distributors must report all 
Professional and Non-Professional Users in accordance with the 
following:
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    \12\ See Securities Exchange Act Release Nos. 74282 (February 
18, 2015); 80 FR 9487 (February 23, 2015) (SR-EDGX-2015-09) 
(proposing fees for the Bats One Feed); 75397 (July 8, 2015), 80 FR 
41104 (July 14, 2015) (SR-EDGX-2015-28) (proposing user fees for the 
EDGX Top and Last Sale data feeds); and 75788 (August 28, 2015), 80 
FR 53364 (September 3, 2015) (SR-EDGX-2015-38) (proposing fees for 
EDGX Book Viewer).
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     In connection with a Distributor's distribution of the 
market data product, the Distributor should count as one User each 
unique User that the Distributor has entitled to have access to the 
market data product. However, where a device is dedicated specifically 
to a single individual, the Distributor should count only the 
individual and need not count the device.
     The Distributor should identify and report each unique 
User. If a User uses the same unique method to gain access to the 
market data product, the Distributor should count that as one User. 
However, if a unique User uses multiple methods to gain access to the 
market data product (e.g., a single User has multiple passwords and 
user identifications), the Distributor should report all of those 
methods as an individual User.
     Distributors should report each unique individual person 
who receives access through multiple devices as one User so long as 
each device is dedicated specifically to that individual.
     If a Distributor entitles one or more individuals to use 
the same device, the Distributor should include only the individuals, 
and not the device, in the count.

[[Page 1649]]

    The Exchange intends to implement the proposed changes to its fee 
schedule on January 2, 2018.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with the objectives of Section 6 of the Act,\13\ in general, and 
furthers the objectives of Section 6(b)(4),\14\ in particular, as it is 
designed to provide for the equitable allocation of reasonable dues, 
fees and other charges among its members and other recipients of 
Exchange data. The Exchange believes that the proposed rates are 
equitable and non-discriminatory in that they apply uniformly to all 
recipients of Exchange data and that the proposed fees are competitive 
with those charged by other venues and, therefore, reasonable and 
equitably allocated to recipients.
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    \13\ 15 U.S.C. 78f.
    \14\ 15 U.S.C. 78f(b)(4).
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    The Exchange also believes that the proposed rule change is 
consistent with Section 11(A) of the Act \15\ in that it supports (i) 
fair competition among brokers and dealers, among exchange markets, and 
between exchange markets and markets other than exchange markets and 
(ii) the availability to brokers, dealers, and investors of information 
with respect to quotations for and transactions in securities. 
Furthermore, the proposed rule change is consistent with Rule 603 of 
Regulation NMS,\16\ which provides that any national securities 
exchange that distributes information with respect to quotations for or 
transactions in an NMS stock do so on terms that are not unreasonably 
discriminatory. 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.
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    \15\ 15 U.S.C. 78k-1.
    \16\ 17 CFR 242.603.
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    In addition, the proposed fees would not permit unfair 
discrimination because all of the Exchange's customers and market data 
vendors will be subject to the proposed fees on an equivalent basis. 
EDGX Options Depth, EDGX Options Top, and the EDGX Options Auction Feed 
are distributed and purchased on a voluntary basis, in that neither the 
Exchange nor market data distributors are required by any rule or 
regulation to make this data available. Accordingly, Distributors and 
Users can discontinue use at any time and for any reason, including due 
to an assessment of the reasonableness of fees charged. Firms have a 
wide variety of alternative market data products from which to choose, 
such as similar proprietary data products offered by other exchanges 
and consolidated data. Moreover, the Exchange is not required to make 
any proprietary data products available or to offer any specific 
pricing alternatives to any customers.
    In addition, the fees that are the subject of this rule filing are 
constrained by competition. As explained below in the Exchange's 
Statement on Burden on Competition, the existence of alternatives to 
EDGX Options Depth, EDGX Options Top, and the EDGX Options Auction Feed 
further ensures that the Exchange cannot set unreasonable fees, or fees 
that are unreasonably discriminatory, when vendors and subscribers can 
elect such alternatives. That is, the Exchange competes with other 
exchanges (and their affiliates) that provide similar market data 
products. If another exchange (or its affiliate) were to charge less to 
distribute its similar product than the Exchange charges to distribute 
EDGX Options Depth, EDGX Options Top, and the EDGX Options Auction 
Feed, prospective Users likely would not subscribe to, or would cease 
subscribing to, EDGX Options Depth, EDGX Options Top, and the EDGX 
Options Auction Feed.
    The Exchange notes that the Commission is not required to undertake 
a cost-of-service or rate-making approach. The Exchange believes that, 
even if it were possible as a matter of economic theory, cost-based 
pricing for non-core market data would be so complicated that it could 
not be done practically.
    Distribution Fee. The Exchange believes that the proposed 
Distribution Fees are also reasonable, equitably allocated, and not 
unreasonably discriminatory. The fees for Members and non-Members are 
uniform except with respect to reasonable distinctions with respect to 
internal and external distribution, the fee for both are equal for each 
of the market data products subject to this proposal. The Exchange 
believes that the Distribution Fees for EDGX Options Depth, EDGX 
Options Top, and the EDGX Options Auction Feed are reasonable and fair 
in light of alternatives offered by other market centers. For example, 
EDGX Options Depth, EDGX Options Top, and the EDGX Options Auction Feed 
provides investors with alternative market data and competes with 
similar market data product currently offered by Nasdaq PHLX LLC 
(``PHLX''). Specifically, PHLX charges a fee of $5,000 per month to 
External Distributors and $4,000 per month to Internal Distributors for 
the TOPO Plus Orders feed,\17\ which included PHLX's complex order 
book. PHLX also charges Internal Distributors $2,000 per month and 
External Distributors $2,500 per month for the Top of PHLX Options, 
which includes PHLX top of book data.\18\ PHLX charges Internal 
Distributors $4,000 per month and External Distributors $4,500 per 
month for the PHLX Depth Data, which includes PHLX depth of book 
quotations.\19\ Each of these fees charged by PHLX are higher than that 
proposed herein.
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    \17\ See a description of TOPO Plus Orders available at http://www.nasdaqtrader.com/Micro.aspx?id=topoplusorders. See also Section 
IV of PHLX Rules outlining the fees for the TOPO Plus Orders feed.
    \18\ See Section IV of PHLX Rules outlining the fees for the Top 
of PHLX Options feed.
    \19\ See Section IV of PHLX Rules outlining the fees for the 
PHLX Depth Data feed.
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    User Fees. The Exchange believes that implementing the Professional 
and Non-Professional User fees for EDGX Options Depth, EDGX Options 
Top, and the EDGX Options Auction Feed are equitable and reasonable 
because they will result in greater availability to Professional and 
Non-Professional Users. Moreover, introducing a modest Non-Professional 
User fee for EDGX Options Depth, EDGX Options Top, and the EDGX Options 
Auction Feed is reasonable because it provides an additional method for 
retail investors to access EDGX Options Depth, EDGX Options Top, and 
the EDGX Options Auction Feed data by providing the same data that is 
available to Professional Users. The Exchange believes that the 
proposed fees are equitable and not unfairly discriminatory because 
they will be charged uniformly to recipient firms and Users. The fee 
structure of differentiated Professional and Non-Professional fees is 
utilized by the Exchange for the Cboe One Feed and has long been used 
by other exchanges for their proprietary data products, and by the 
Nasdaq UTP and the CTA and CQ Plans in order to reduce the price of 
data to retail investors and make it more broadly available.\20\ 
Offering EDGX

[[Page 1650]]

Options Depth, EDGX Options Top, and the EDGX Options Auction Feed to 
Non-Professional Users with the same data available to Professional 
Users results in greater equity among data recipients. The requirement 
that Distributors count every Professional User and Non-Professional 
User to which they provide the market data product(s) is also equitable 
and reasonable because the requirements are identical to that currently 
in place for other market data products offered by the Exchange's 
equity trading platform.\21\
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    \20\ See Securities Exchange Act Release Nos. 74285 (February 
18, 2015), 80 FR 9828 (February 24, 2015) (SR-BATS-2015-11); 74283 
(February 18, 2015), 80 FR 9809 (February 24, 2015) (SR-EDGA-2015-
09); 74282 (February 17, 2015), 80 FR 9487 (February 23, 2015) (SR-
EDGX-2015-09); and 74284 (February 18, 2015), 80 FR 9792 (February 
24, 2015) (SR-BYX-2015-09). See also, e.g., Securities Exchange Act 
Release No. 20002, File No. S7-433 (July 22, 1983) (establishing 
nonprofessional fees for CTA data); and Nasdaq Rules 7023(b), 7047.
    \21\ See Securities Exchange Act Release Nos. 74282 (February 
18, 2015); 80 FR 9487 (February 23, 2015) (SR-EDGX-2015-09) 
(proposing fees for the Bats One Feed); 75397 (July 8, 2015), 80 FR 
41104 (July 14, 2015) (SR-EDGX-2015-28) (proposing user fees for the 
EDGX Top and Last Sale data feeds); and 75788 (August 28, 2015), 80 
FR 53364 (September 3, 2015) (SR-EDGX-2015-38) (proposing fees for 
EDGX Book Viewer).
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    In addition, the proposed fees are reasonable when compared to 
similar fees for comparable products offered by PHLX. Specifically, 
PHLX charges a fee of $40 per month to professional users and $1.00 per 
month to non-professional users of TOPO Plus Orders feed, Top of PHLX 
Options, and PHLX Depth Data.\22\ Each of these fees charged by PHLX 
are either equal to or higher than that proposed herein.
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    \22\ See Section IV of PHLX Rules outlining the fees for each of 
these PHLX market data products.
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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, as amended. The 
Exchange's ability to price EDGX Options Depth, EDGX Options Top, and 
the EDGX Options Auction Feed is constrained by: (i) Competition among 
exchanges, other trading platforms, and Trade Reporting Facilities 
(``TRF'') that compete with each other in a variety of dimensions; (ii) 
the existence of inexpensive real-time consolidated data and market-
specific data and free delayed data; and (iii) the inherent 
contestability of the market for proprietary data.
    The Exchange and its market data products are subject to 
significant competitive forces and the proposed fees represent 
responses to that competition. To start, the Exchange competes 
intensely for order flow. It competes with the other national 
securities exchanges that currently trade equities, with electronic 
communication networks, with quotes posted in FINRA's Alternative 
Display Facility, with alternative trading systems, and with securities 
firms that primarily trade as principal with their customer order flow.
    In addition, EDGX Options Depth, EDGX Options Top, and the EDGX 
Options Auction Feed compete with a number of alternative products. For 
instance, EDGX Options Depth, EDGX Options Top, and the EDGX Options 
Auction Feed do not provide a complete picture of all trading activity 
in a security. Rather, the other national securities exchanges, the 
several TRFs of FINRA, and Electronic Communication Networks (``ECN'') 
that produce proprietary data all produce trades and trade reports. 
Each is currently permitted to produce last sale information products, 
and many currently do, including Nasdaq and NYSE. In addition, market 
participants can gain access to EDGX Options last sale and depth-of-
book quotations, though integrated with the prices of other markets, on 
feeds made available through the SIPs.
    In sum, the availability of a variety of alternative sources of 
information imposes significant competitive pressures on Exchange data 
products and the Exchange's compelling need to attract order flow 
imposes significant competitive pressure on the Exchange to act 
equitably, fairly, and reasonably in setting the proposed data product 
fees. The proposed data product fees are, in part, responses to that 
pressure. The Exchange believes that the proposed fees would reflect an 
equitable allocation of its overall costs to users of its facilities.
    In addition, when establishing the proposed fees, the Exchange 
considered the competitiveness of the market for proprietary data and 
all of the implications of that competition. The Exchange believes that 
it has considered all relevant factors and has not considered 
irrelevant factors in order to establish fair, reasonable, and not 
unreasonably discriminatory fees and an equitable allocation of fees 
among all Users. The existence of alternatives to EDGX Options Depth, 
EDGX Options Top, and the EDGX Options Auction Feed, including existing 
similar feeds by other exchanges, consolidated data, and proprietary 
data from other sources, ensures that the Exchange cannot set 
unreasonable fees, or fees that are unreasonably discriminatory, when 
vendors and subscribers can elect these alternatives or choose not to 
purchase a specific proprietary data product if its cost to purchase is 
not justified by the returns any particular vendor or subscriber would 
achieve through the purchase.

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

    The Exchange has neither solicited nor received written comments on 
the proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    The foregoing rule change has become effective pursuant to Section 
19(b)(3)(A) of the Act \23\ and paragraph (f) of Rule 19b-4 
thereunder.\24\ 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.
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    \23\ 15 U.S.C. 78s(b)(3)(A).
    \24\ 17 CFR 240.19b-4(f).
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IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-CboeEDGX-2017-010 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 CboeEDGX-2017-010. 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

[[Page 1651]]

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 
CboeEDGX-2017-010 and should be submitted on or before February 2, 
2018.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\25\
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    \25\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018-00413 Filed 1-11-18; 8:45 am]
BILLING CODE 8011-01-P