[Federal Register Volume 85, Number 128 (Thursday, July 2, 2020)]
[Notices]
[Pages 39961-39964]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14229]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-89162; File No. SR-GEMX-2020-16]


Self-Regulatory Organizations; Nasdaq GEMX, LLC; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To Amend Options 3, 
Section 3 to Conform the Rule to Section 3.1 of the Plan for the 
Purpose of Developing and Implementing Procedures Designed To 
Facilitate the Listing and Trading of Standardized Options

June 26, 2020
    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 June 23, 2020, Nasdaq GEMX, LLC (the ``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 Exchange filed the proposal as 
a ``non-controversial'' proposed rule change pursuant to Section 
19(b)(3)(A)(iii) of the Act \3\ and Rule 19b-4(f)(6) thereunder.\4\ 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.
    \3\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \4\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend Options 3, Section 3 to conform the 
rule to Section 3.1 of the Plan for the Purpose of Developing and 
Implementing Procedures Designed to Facilitate the Listing and Trading 
of Standardized Options (the ``OLPP'').
    The text of the proposed rule change is available on the Exchange's 
website at http://nasdaqgemx.cchwallstreet.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 aspects of such 
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The purpose of this rule change is to amend Options 3, Section 3 
(Minimum Trading Increments) to align the rule with the recently 
approved amendment to the OLPP.
Background
    On January 23, 2007, the Commission approved on a limited basis a 
Penny Pilot in option classes in certain issues (``Penny Pilot''). The 
Penny Pilot was designed to determine whether investors would benefit 
from options being quoted in penny increments, and in which classes the 
benefits were most significant. The Penny Pilot was initiated at the 
then existing option exchanges in January 2007 \5\ and was expanded and 
extended numerous times over the last 13 years.\6\ In each instance, 
these approvals relied upon the consideration of data periodically 
provided by the Exchanges that analyzed how quoting options in penny 
increments affects spreads, liquidity, quote traffic, and volume. 
Today, the Penny Pilot includes 363 option classes, which are among the 
most actively traded, multiply listed option classes. The Penny Pilot 
is scheduled to expire by its own terms on June 30, 2020.\7\
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    \5\ See Securities Exchange Act Release Nos. 55154 (January 23, 
2007), 72 FR 4743 (February 1, 2007) (SR-CBOE-2006-92); 55161 
(January 24, 2007), 72 FR 4754 (February 1, 2007) (SR-ISE-2006-62); 
54886 (December 6, 2006), 71 FR 74979 (December 13, 2006) (SR-Phlx-
2006-74); 54590 (October 12, 2006), 71 FR 61525 (October 18, 2006) 
(SR-NYSEArca-2006-73); and 54741 (November 9, 2006), 71 FR 67176 
(November 20, 2006) (SR-Amex-2006-106).
    \6\ The Penny Pilot was established on the Exchange in July 2013 
as part of the Exchange's Form 1 application for registration as a 
national securities exchange, and was last extended in December 
2019. See Securities Exchange Act Release Nos. 70050 (July 26, 
2013), 78 FR 46622 (August 1, 2013) (File No. 10-209); and 87753 
(December 16, 2019), 84 FR 70243 (December 20, 2019) (SR-GEMX-2019-
19).
    \7\ See Securities Exchange Act Release No. 87753 (December 16, 
2019), 84 FR 70243 (December 20, 2019) (SR-GEMX-2019-19).
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    In light of the imminent expiration of the Penny Pilot on June 30, 
2020, the Exchange, together with other participating exchanges, filed, 
on July 18, 2019 a proposal to amend the OLPP.\8\ On April 1, 2020 the 
Commission approved the amendment to the OLPP to make permanent the 
Pilot Program (the ``OLPP Program'').\9\
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    \8\ See Securities Exchange Act Release No. 87681 (December 9, 
2019), 84 FR 68960 (December 17, 2019) (``Notice'').
    \9\ See Securities Exchange Act Release No. 88532 (April 1, 
2020), 85 FR 19545 (April 7, 2020) (File No. 4-443) (``Approval 
Order'').
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    The OLPP Program replaces the Penny Pilot by instituting a 
permanent program that would permit quoting in penny increments for 
certain option classes. Under the terms of the OLPP Program, designated 
option classes would continue to be quoted in $0.01 and $0.05 
increments according to the same parameters for the Penny Pilot. In 
addition, the OLPP Program would: (i) establish an annual review 
process to add option classes to, or to remove option classes from, the 
OLPP Program; (ii) to allow an option class to be added to the OLPP 
Program if it is a newly listed option class and it meets certain 
criteria; (iii) to allow an option class to be added to the OLPP 
Program if it is an option class that has seen a significant growth in 
activity; (iv) to provide that if a corporate action involves one or 
more option classes in the OLPP Program, all adjusted and unadjusted 
series and classes emerging as a result of the corporate action will be 
included in the OLPP Program; and (v) to provide that any series in an 
option class participating in the OLPP Program that have been delisted, 
or are identified by OCC as ineligible for opening Customer 
transactions, will

[[Page 39962]]

continue to trade pursuant to the OLPP Program until they expire.
    To conform its Rules to the OLPP Program, the Exchange proposes to 
delete the current rule text in Supplementary Material.01 to Options 3, 
Section 3 (the ``Penny Pilot Rule''), and replace it with the 
requirements for the proposed Penny Interval Program from the OLPP 
Program, which is described below, and to replace references to the 
``Penny Pilot'' in several Exchange rules with ``Penny Interval 
Program.''
    The Exchange also proposes to amend Options 3, Section 3 to adopt 
new subparagraphs (a)(3)(A)-(C) to conform the Exchange's rules 
regarding the minimum price variations for options in the proposed 
Penny Interval Program with similar rules of other options 
exchanges.\10\ Specifically, the Exchange proposes to provide in new 
subparagraphs (a)(3)(A)-(C) that for options series traded pursuant to 
the proposed Penny Interval Program as described in Supplementary 
Material .01 to Options 3, Section 3, the following minimum quoting 
increments will apply: (A) One cent ($0.01) for all options contracts 
in QQQ, SPY, and IWM; (B) one cent ($0.01) for all other options 
contracts included in the Penny Interval Program that are trading at 
less than $3.00; and (C) five cents ($0.05) for all other options 
contracts included in the Penny Interval Program that are trading at or 
above $3.00. The Exchange notes that the Commission previously approved 
minimum quoting increments of one cent ($0.01) for all options 
contracts in QQQ, IWM, and SPY, regardless of price, over the course of 
the expansion of the Penny Pilot rules.\11\ Accordingly, the Exchange 
proposes to align its rules regarding minimum price variations for 
options contracts in the Penny Interval Program with other options 
exchanges.
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    \10\ See e.g., NYSE Arca Rule 6.72-O; and Nasdaq Options Market 
Supplementary Material .01 to Options 3, Section 3.
    \11\ See Securities Exchange Act Release Nos. 55156 (January 23, 
2007), 72 FR 4759 (February 1, 2007) (SR-NYSEArca-2006-73) (Order 
Granting Approval to Proposed rule Change as Modified by Amendment 
No. 1 Thereto, To Create an Options Penny Pilot Program); 61061 
(November 24, 2009), 74 FR 62857 (December 1, 2009) (SRNYSEArca-
2009-44) (Order Granting Partial Approval of a Proposed Rule Change, 
as Modified by Amendment No. 4 Thereto, Expanding the Penny Pilot 
Program).
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    The Exchange also proposes to delete obsolete and superfluous 
language in Options 3, Section 3(a) regarding amendments to the minimum 
increments that may be established by the Board and designated as a 
stated policy, practice or interpretation within the meaning of the 
Act, and the process for such amendments by rule filing.\12\ Today, the 
Exchange may determine to establish a change to the minimum increments 
within its Rules and must submit proposed rule changes for such 
amendments to the Commission.\13\ Accordingly, Options 3, Section 3(a), 
as amended, will simply provide that the following minimum quoting 
increments (as enumerated within Options 3, Section 3(a)) shall apply 
to options contracts traded on the Exchange.
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    \12\ See Options 3, Section 3(a), which specifically provides: 
``The Board may establish minimum trading increments for options 
traded on the Exchange. Such changes by the Board will be designated 
as a stated policy, practice, or interpretation with respect to the 
administration of this Rule within the meaning of paragraph (3)(A) 
of Section 19(b) of the Exchange Act and will be filed with the SEC 
as a rule change for effectiveness upon filing.''
    \13\ Decisions to change the minimum increments relate to 
Exchange trading and operations, and thus are made by Exchange 
management via delegated authority from the Board, rather than the 
Board itself, which is generally not involved in determinations 
related to day-to-day operations of the Exchange.
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Penny Interval Program
    The Exchange proposes to codify the OLPP Program in Supplementary 
Material .01 to Options 3, Section (Requirements for Penny Interval 
Program) (the ``Penny Program''), which will replace the Penny Pilot 
Rule and permanently permit the Exchange to quote certain option 
classes in minimum increments of one cents ($0.01) and five cents 
($0.05) (``penny increments''), as set forth in proposed subparagraphs 
(a)(3)(A)-(C) of Options 3, Section 3. The penny increments that 
currently apply under the Penny Pilot \14\ will continue to apply for 
options classes included in the Penny Program.\15\
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    \14\ See supra notes 10 and 11, with accompanying text.
    \15\ See proposed subparagraphs (a)(3)(A)-(C) of Options 3, 
Section 3.
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    The Penny Program would initially apply to the 363 most actively 
traded multiply listed option classes, based on National Cleared Volume 
at The Options Clearing Corporation (``OCC'') in the six full calendar 
months ending in the month of approval (i.e., November 2019-April 2020) 
that currently quote in penny increments, or overlie securities priced 
below $200, or any index at an index level below $200. Eligibility for 
inclusion in the Penny Program will be determined at the close of 
trading on the monthly Expiration Friday of the second full month 
following April 1, 2020 (i.e., June 19, 2020).
    Once in the Penny Program, an option class will remain included 
until it is no longer among the 425 most actively traded option classes 
at the time the annual review is conducted (described below), at which 
point it will be removed from the Penny Program. As described in more 
detail below, the removed class will be replaced by the next most 
actively traded multiply listed option class overlying securities 
priced below $200 per share, or any index at an index level below $200, 
and not yet in the Penny Program. Advanced notice regarding the option 
classes included, added, or removed from the Penny Program will be 
provided to the Exchange's membership via Options Trader Alert and 
published by the Exchange on its website.
Annual Review
    The Penny Program would include an annual review process that 
applies objective criteria to determine option classes to be added to, 
or removed from, the Penny Program. Specifically, on an annual basis 
beginning in December 2020 and occurring every December thereafter, the 
Exchange will review and rank all multiply listed option classes based 
on National Cleared Volume at OCC for the six full calendar months from 
June 1st through November 30th for determination of the most actively 
traded option classes. Any option classes not yet in the Penny Program 
may be added to the Penny Program if the class is among the 300 most 
actively traded multiply listed option classes and priced below $200 
per share or any index at an index level below $200.
    Following the annual review, option classes to be added to the 
Penny Program would begin quoting in penny increments (i.e., $0.01 if 
trading at less than $3; and $0.05 if trading at $3 and above) on the 
first trading day of January. In addition, following the annual review, 
any option class in the Penny Program that falls outside of the 425 
most actively traded option classes would be removed from the Penny 
Program. After the annual review, option classes that are removed from 
the Penny Program will be subject to the minimum trading increments set 
forth in Options 3, Section 3, effective on the first trading day of 
April.
Changes to the Composition of the Penny Program Outside of the Annual 
Review
Newly Listed Option Classes and Option Classes With Significant Growth 
in Activity
    The Penny Program would specify a process and parameters for 
including option classes in the Penny Program outside the annual review 
process in two circumstances. These provisions are

[[Page 39963]]

designed to provide objective criteria to add to the Penny Program new 
option classes in issues with the most demonstrated trading interest 
from market participants and investors on an expedited basis prior to 
the annual review, with the benefit that market participants and 
investors will then be able to trade these new option classes based 
upon quotes expressed in finer trading increments.
    First, the Penny Program provides for certain newly listed option 
classes to be added to the Penny Program outside of the annual review 
process, provided that (i) the class is among the 300 most actively 
traded, multiply listed option classes, as ranked by National Cleared 
Volume at OCC, in its first full calendar month of trading; and (ii) 
the underlying security is priced below $200 or the underlying index is 
at an index level below $200. Such newly listed option classes added to 
the Penny Program pursuant to this process would remain in the Penny 
Program for one full calendar year and then would be subject to the 
annual review process.
    Second, the Penny Program would allow an option class to be added 
to the Penny Program outside of the annual review process if it is an 
option class that meets certain specific criteria. Specifically, new 
option classes may be added to the Penny Program if: (i) the option 
class is among the 75 most actively traded multiply listed option 
classes, as ranked by National Cleared Volume at OCC, in the prior six 
full calendar months of trading and (ii) the underlying security is 
priced below $200 or the underlying index is at an index level below 
$200. Any option class added under this provision will be added on the 
first trading day of the second full month after it qualifies and will 
remain in the Penny Program for the rest of the calendar year, after 
which it will be subject to the annual review process.
Corporate Actions
    The Penny Program would also specify a process to address option 
classes in the Penny Program that undergo a corporate action and is 
designed to ensure continuous liquidity in the affected option classes. 
Specifically, if a corporate action involves one or more option classes 
in the Penny Program, all adjusted and unadjusted series of an option 
class would continue to be included in the Penny Program.\16\ 
Furthermore, neither the trading volume threshold, nor the initial 
price test would apply to option classes added to the Penny Program as 
a result of the corporate action. Finally, the newly added adjusted and 
unadjusted series of the option class would remain in the Penny Program 
for one full calendar year and then would become subject to the annual 
review process.
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    \16\ For example, if Company A acquires Company B and Company A 
is not in the Penny Program but Company B is in the Penny Program, 
once the merger is consummated and an options contract adjustment is 
effective, then Company A would be added to the Penny Program and 
remain in the Penny Program for one calendar year.
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Delisted or Ineligible Option Classes
    Finally, the Penny Program would provide a mechanism to address 
option classes that have been delisted or those that are no longer 
eligible for listing. Specifically, any series in an option class 
participating in the Penny Program in which the underlying has been 
delisted, or is identified by OCC as ineligible for opening customer 
transactions, would continue to quote pursuant to the terms of the 
Penny Program until all options series have expired.
Technical Changes
    The Exchange proposes to replace references to the Penny Pilot with 
references to the Penny Interval Program in Options 3, Section 8(a)(7) 
and in Options 3, Section 15(a)(2)(A)(iv). The Exchange believes these 
technical changes would add clarity, transparency, and internal 
consistency to the Exchange's rules, making them easier for market 
participants to navigate.
Implementation
    The Exchange proposes to implement the Penny Program on July 1, 
2020, which is the first trading day of the third month following the 
Approval Order issued on April 1, 2020--i.e., July 1, 2020.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act,\17\ in general, and furthers the objectives of Section 
6(b)(5) of the Act,\18\ 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, in general, to protect investors and the public interest.
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    \17\ 15 U.S.C. 78f(b).
    \18\ 15 U.S.C. 78f(b)(5).
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    In particular, the proposed rule change, which conforms the 
Exchange rules to the recently adopted OLPP Program, allows the 
Exchange to provide market participants with a permanent Penny Program 
for quoting options in penny increments, which maximizes the benefit of 
quoting in a finer quoting increment to investors while minimizing the 
burden that a finer quoting increment places on quote traffic.
    Accordingly, the Exchange believes that the proposal is consistent 
with the Act because, in conforming the Exchange rules to the OLPP 
Program, the Penny Program would employ processes, based upon objective 
criteria, that would rebalance the composition of the Penny Program, 
thereby helping to ensure that the most actively traded option classes 
are included in the Penny Program, which helps facilitate the 
maintenance of a fair and orderly market.
    The Exchange notes that the proposed changes to Options 3, Section 
8(a)(7) and Options 3, Section 15(a)(2)(A)(iv) to replace references to 
the Penny Pilot with references to the Penny Interval Program would 
provide clarity and transparency to the Exchange's rules, would promote 
just and equitable principles of trade, and remove impediments to, and 
perfect the mechanism of, a free and open market and a national market 
system. The proposed rule changes would also provide internal 
consistency within Exchange rules and operate to protect investors and 
the investing public by making the Exchange's rules easier to navigate 
and comprehend.

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

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition not necessary or appropriate in 
furtherance of the purposes of the Act. The proposed Penny Program, 
which modifies the Exchange's rules to align them with the Commission 
approved OLPP Program, is not designed to be a competitive filing nor 
does it impose an undue burden on intermarket competition as the 
Exchange anticipates that the options exchanges will adopt 
substantially identical rules. Moreover, the Exchange believes that by 
conforming Exchange rules to the OLPP Program, the Exchange would 
promote regulatory clarity and consistency, thereby reducing burdens on 
the marketplace and facilitating investor protection. To the extent 
that there is a competitive burden on those option classes that do not 
qualify for the Penny Program, the Exchange believes that it is 
appropriate because the proposal should benefit all market participants 
and

[[Page 39964]]

investors by maximizing the benefit of a finer quoting increment in 
those option classes with the most trading interest while minimizing 
the burden of greater quote traffic in option classes with less trading 
interest. The Exchange believes that adopting rules, which it 
anticipates will likewise be adopted by all option exchanges that are 
participants in the OLPP, would allow for continued competition between 
Exchange market participants trading similar products as their 
counterparts on other exchanges, while at the same time allowing the 
Exchange to continue to compete for order flow with other exchanges.

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

    No written comments were either solicited or received.

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

    Because the foregoing proposed rule change does not: (i) 
Significantly affect the protection of investors or the public 
interest; (ii) impose any significant burden on competition; and (iii) 
become operative for 30 days after the date of the filing, or such 
shorter time as the Commission may designate, it has become effective 
pursuant to Section 19(b)(3)(A) of the Act \19\ and Rule 19b-4(f)(6) 
\20\ thereunder. The Exchange has proposed to implement the Penny 
Program on July 1, 2020 and has asked the Commission to waive the 30-
day operative delay for this filing.
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    \19\ 15 U.S.C. 78s(b)(3)(A).
    \20\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6) 
requires a self-regulatory organization to give the Commission 
written notice of its intent to file the proposed rule change at 
least five business days prior to the date of filing of the proposed 
rule change, or such shorter time as designated by the Commission. 
The Exchange has satisfied this requirement.
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    The Commission believes that waiving the 30-day operative delay is 
consistent with the protection of investors and the public interest 
because it will allow the Exchange to modify its rules to conform to 
the OLPP Program and implement the Penny Program on July 1, 2020, 
consistent with the Commission's approval of the OLPP Amendment. 
Accordingly, the Commission designates the proposed rule change as 
operative on July 1, 2020.\21\
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    \21\ For purposes only of waiving the operative delay for this 
proposal, the Commission has considered the proposed rule's impact 
on efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
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    At any time within 60 days of the filing of the proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is necessary or 
appropriate in the public interest, for the protection of investors, or 
otherwise in furtherance of the purposes of the Act. If the Commission 
takes such action, the Commission shall institute proceedings to 
determine whether the proposed rule 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 [email protected]. Please include 
File Number SR-GEMX-2020-16 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-GEMX-2020-16. 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-GEMX-2020-16 and should be submitted on 
or before July 23, 2020 .

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\22\
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    \22\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-14229 Filed 7-1-20; 8:45 am]
BILLING CODE 8011-01-P