[Federal Register Volume 86, Number 164 (Friday, August 27, 2021)]
[Notices]
[Pages 48260-48263]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-18461]



[[Page 48260]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-92725; File No. SR-MIAX-2021-38]


Self-Regulatory Organizations: Miami International Securities 
Exchange LLC; Notice of Filing and Immediate Effectiveness of a 
Proposed Rule Change To Amend Its Fee Schedule To Adjust the Options 
Regulatory Fee

August 23, 2021.
    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 August 12, 2021, Miami International Securities Exchange LLC 
(``MIAX'' or ``Exchange'') filed with the Securities and Exchange 
Commission (the ``Commission'') the proposed rule change as described 
in Items I, II, and III below, which Items have been prepared by the 
Exchange. The Commission is publishing this notice to solicit comments 
on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange is filing a proposal to amend the MIAX Options Fee 
Schedule (the ``Fee Schedule'') to adjust the Options Regulatory Fee 
(``ORF'').
    The text of the proposed rule change is available on the Exchange's 
website at http://www.miaxoptions.com/rule-filings, at MIAX'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
    Currently, the Exchange assesses ORF in the amount of $0.0029 per 
contract side. The Exchange proposes to reduce the amount of ORF from 
$0.0029 per contract side to $0.0019 per contract side in order to help 
ensure that revenue collected from the ORF, in combination with other 
regulatory fees and fines, does not exceed the Exchange's total 
regulatory costs. The Exchange's proposed change to the ORF should 
balance the Exchange's regulatory revenue against the anticipated 
regulatory costs. The Exchange initially filed this proposal on July 
30, 2021 (SR-MIAX-2021-36) and withdrew such filing on August 12, 2021. 
The Exchange proposes to implement the fee change effective August 12, 
2021.
Collection of ORF
    Currently, the Exchange assesses the per-contract ORF to each 
Member \3\ for all options transactions, including Mini Options, 
cleared or ultimately cleared by the Member, which are cleared by the 
Options Clearing Corporation (``OCC'') in the ``customer'' range,\4\ 
regardless of the exchange on which the transaction occurs. The ORF is 
collected by OCC on behalf of the Exchange from either: (1) A Member 
that was the ultimate clearing firm for the transaction; or (2) a non-
Member that was the ultimate clearing firm where a Member was the 
executing clearing firm for the transaction. The Exchange uses reports 
from OCC to determine the identity of the executing clearing firm and 
ultimate clearing firm.
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    \3\ The term ``Member'' means an individual or organization 
approved to exercise the trading rights associated with a Trading 
Permit. Members are deemed ``members'' under the Exchange Act. See 
Exchange Rule 100.
    \4\ Exchange participants must record the appropriate account 
origin code on all orders at the time of entry in order. The 
Exchange represents that it has surveillances in place to verify 
that Members mark orders with the correct account origin code.
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    To illustrate how the Exchange assesses and collects ORF, the 
Exchange provides the following set of examples. For a transaction that 
is executed on the Exchange and the ORF is assessed, if there is no 
change to the clearing account of the original transaction, then the 
ORF is collected from the Member that is the executing clearing firm 
for the transaction (the Exchange notes that, for purposes of the Fee 
Schedule, when there is no change to the clearing account of the 
original transaction, the executing clearing firm is deemed to be the 
ultimate clearing firm). If there is a change to the clearing account 
of the original transaction (i.e., the executing clearing firm ``gives-
up'' or ``CMTAs'' \5\ the transaction to another clearing firm), then 
the ORF is collected from the clearing firm that ultimately clears the 
transaction--the ``ultimate clearing firm.'' The ultimate clearing firm 
may be either a Member or non-Member of the Exchange. If the 
transaction is executed on an away exchange and the ORF is assessed, 
then the ORF is collected from the ultimate clearing firm for the 
transaction. Again, the ultimate clearing firm may be either a Member 
or non-Member of the Exchange. The Exchange notes, however, that when 
the transaction is executed on an away exchange, the Exchange does not 
assess the ORF when neither the executing clearing firm nor the 
ultimate clearing firm is a Member (even if a Member is ``given-up'' or 
``CMTAed'' and then such Member subsequently ``gives-up'' or ``CMTAs'' 
the transaction to another non-Member via a CMTA reversal). Finally, 
the Exchange does not assess the ORF on outbound linkage trades, 
whether executed at the Exchange or an away exchange. ``Linkage 
trades'' are tagged in the Exchange's system, so the Exchange can 
readily tell them apart from other trades. A customer order routed to 
another exchange results in two customer trades, one from the 
originating exchange and one from the recipient exchange. Charging ORF 
on both trades could result in double-billing of ORF for a single 
customer order; thus, the Exchange does not assess ORF on outbound 
linkage trades in a linkage scenario. This assessment practice is 
identical to the assessment practice currently utilized by the 
Exchange's affiliates, MIAX PEARL, LLC (``MIAX Pearl'') and MIAX 
Emerald, LLC (``MIAX Emerald'').\6\
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    \5\ ``CMTA'' or Clearing Member Trade Assignment is a form of 
``give-up'' whereby the position will be assigned to a specific 
clearing firm at OCC.
    \6\ See Securities Exchange Act Release Nos. 85163 (February 15, 
2019), 84 FR 5798 (February 22, 2019) (SR-PEARL-2019-01); 85251 
(March 6, 2019), 84 FR 8931 (March 12, 2019) (SR-EMERALD-2019-01).
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    As a practical matter, when a transaction that is subject to the 
ORF is not executed on the Exchange, the Exchange lacks the information 
necessary to identify the order-entering member for that transaction. 
There are a multitude of order-entering market participants throughout 
the industry, and such participants can make changes to the market 
centers to which they connect, including dropping their connection to 
one market center and establishing themselves as participants

[[Page 48261]]

on another. For these reasons, it is not possible for the Exchange to 
identify, and thus assess fees such as ORF, on order-entering 
participants on away markets on a given trading day. Clearing members, 
however, are distinguished from order-entering participants because 
they remain identified to the Exchange on information the Exchange 
receives from OCC regardless of the identity of the order-entering 
participant, their location, and the market center on which they 
execute transactions. Therefore, the Exchange believes it is more 
efficient for the operation of the Exchange and for the marketplace as 
a whole to collect the ORF from clearing members.
ORF Revenue and Monitoring of ORF
    The Exchange monitors the amount of revenue collected from the ORF 
to ensure that it, in combination with other regulatory fees and fines, 
does not exceed regulatory costs. In determining whether an expense is 
considered a regulatory cost, the Exchange reviews all costs and makes 
determinations if there is a nexus between the expense and a regulatory 
function. The Exchange notes that fines collected by the Exchange in 
connection with a disciplinary matter offset ORF.
    As discussed below, the Exchange believes it is appropriate to 
charge the ORF only to transactions that clear as customer at the OCC. 
The Exchange believes that its broad regulatory responsibilities with 
respect to a Member's activities supports applying the ORF to 
transactions cleared but not executed by a Member. The Exchange's 
regulatory responsibilities are the same regardless of whether a Member 
enters a transaction or clears a transaction executed on its behalf. 
The Exchange regularly reviews all such activities, including 
performing surveillance for position limit violations, manipulation, 
front-running, contrary exercise advice violations and insider trading. 
These activities span across multiple exchanges.
    Revenue generated from ORF, when combined with all of the 
Exchange's other regulatory fees and fines, is designed to recover a 
material portion of the regulatory costs to the Exchange of the 
supervision and regulation of Members' customer options business 
including performing routine surveillances, investigations, 
examinations, financial monitoring, and policy, rulemaking, 
interpretive, and enforcement activities. Regulatory costs include 
direct regulatory expenses and certain indirect expenses in support of 
the regulatory function. The direct expenses include in-house and third 
party service provider costs to support the day-to-day regulatory work 
such as surveillances, investigations and examinations. The indirect 
expenses include support from such areas as the Office of the General 
Counsel, technology, and internal audit. Indirect expenses are 
estimated to be approximately 48% of the total regulatory costs for 
2021. Thus, direct expenses are estimated to be approximately 52% of 
total regulatory costs for 2021. The Exchange notes that its estimated 
direct and indirect expense percentages are in the range and similar to 
those at other options exchanges.\7\
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    \7\ See Securities Exchange Act Release Nos. 91418 (March 26, 
2021), 86 FR 17254 (April 1, 2021) (SR-Phlx-2021-16) (reducing the 
Nasdaq PHLX LLC ORF and estimating direct expenses at 58% and 
indirect expenses at 42%); 91420 (March 26, 2021), 86 FR 17223 
(April 1, 2021) (SR-ISE-2021-04) (reducing the Nasdaq ISE, LLC ORF 
and estimating direct expenses at 58% and indirect expenses at 42%).
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    The ORF is designed to recover a material portion of the costs to 
the Exchange of the supervision and regulation of its members, 
including performing routine surveillances, investigations, 
examinations, financial monitoring, and policy, rulemaking, 
interpretive, and enforcement activities.
Proposal
    Based on the Exchange's most recent review, the Exchange proposes 
to reduce the amount of ORF that will be collected by the Exchange from 
$0.0029 per contract side to $0.0019 per contract side. The Exchange 
issued an Options Regulatory Fee Announcement on July 2, 2021, 
indicating the proposed rate change for August 1, 2021.\8\
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    \8\ See https://www.miaxoptions.com/sites/default/files/circular-files/MIAX_Options_RC_2021_36.pdf.
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    The proposed decrease is based on recent options volumes, which 
included an increase in retail investors. With respect to options 
volume, the Exchange, and the options industry as a whole, experienced 
a significant increase between 2020 and 2021. For example, total 
options contract volumes in April, May and June 2021 were 29.7%, 32.7% 
and 25.6% higher than the total options contract volumes in April, May 
and June 2020, respectively.\9\
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    \9\ See data from OCC at: https://www.businesswire.com/news/home/20210504005178/en/OCC-April-2021-Total-Volume-Up-29.7-Percent-from-a-Year-Ago, https://www.businesswire.com/news/home/20210602005174/en/OCC-May-2021-Total-Volume-Up-32.7-Percent-from-a-Year-Ago, and https://apnews.com/press-release/business-wire/778385e696f4407590cc6ff9cb64db03.
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    There can be no assurance that the Exchange's final costs for 2021 
will not differ materially from these expectations, nor can the 
Exchange predict with certainty whether options volume will remain at 
the current level going forward. The Exchange notes however, that when 
combined with regulatory fees and fines, the revenue being generated 
utilizing the current ORF rate may result in revenue that will run in 
excess of the Exchange's estimated regulatory costs for the year.\10\ 
Particularly, as noted above, the options market has seen a substantial 
increase in volume throughout 2020 and 2021, due in large part to the 
extreme volatility in the marketplace as a result of the COVID-19 
pandemic. This unprecedented spike in volatility resulted in 
significantly higher volume than was originally projected by the 
Exchange (thereby resulting in substantially higher ORF revenue than 
projected). The Exchange therefore proposes to decrease the ORF in 
order to ensure it does not exceed its regulatory costs for the year. 
Particularly, the Exchange believes that decreasing the ORF when 
combined with all of the Exchange's other regulatory fees and fines, 
would allow the Exchange to continue covering a material portion of its 
regulatory costs, while lessening the potential for generating excess 
revenue that may otherwise occur using the current rate.\11\
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    \10\ The Exchange notes that notwithstanding the potential 
excess ORF revenue the Exchange anticipates it would collect 
utilizing the current rate, it would not use such revenue for non-
regulatory purposes.
    \11\ The Exchange notes that its regulatory responsibilities 
with respect to Member compliance with options sales practice rules 
have been allocated to the Financial Industry Regulatory Authority 
(``FINRA'') under a 17d-2 Agreement. The ORF is not designed to 
cover the cost of options sales practice regulation.
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    The Exchange will continue to monitor the amount of revenue 
collected from the ORF to ensure that it, in combination with its other 
regulatory fees and fines, does not exceed the Exchange's total 
regulatory costs. The Exchange will continue to monitor MIAX regulatory 
costs and revenues at a minimum on a semi-annual basis. If the Exchange 
determines regulatory revenues exceed or are insufficient to cover a 
material portion of its regulatory costs, the Exchange will adjust the 
ORF by submitting a fee change filing to the Commission. The Exchange 
will notify Members of adjustments to the ORF via regulatory circular 
at least 30 days prior to the effective date of the change.
    In connection with this filing, the Exchange notes that its 
affiliates, MIAX Pearl and MIAX Emerald, will also be adjusting the ORF 
fees that each of those exchanges charge.

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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 \12\ in general, and 
furthers the objectives of Section 6(b)(4) of the Act \13\ in 
particular, in that it is an equitable allocation of reasonable dues, 
fees, and other charges among its members and issuers and other persons 
using its facilities. The Exchange also believes the proposal furthers 
the objectives of Section 6(b)(5) of the Act \14\ in that it is 
designed 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 and is not designed to permit unfair discrimination 
between customers, issuers, brokers and dealers.
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    \12\ 15 U.S.C. 78f(b).
    \13\ 15 U.S.C. 78f(b)(4).
    \14\ 15 U.S.C. 78f(b)(5).
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    The Exchange believes the proposed fee change is reasonable because 
customer transactions will be subject to a lower ORF fee than the 
current rate. Moreover, the proposed reduction is necessary in order 
for the Exchange to not collect revenue in excess of its anticipated 
regulatory costs, in combination with other regulatory fees and fines, 
which is consistent with the Exchange's practices.
    The ORF is designed to recover a material portion of the costs of 
supervising and regulating Members' customer options business including 
performing routine surveillances and investigations, as well as policy, 
rulemaking, interpretive and enforcement activities. The Exchange will 
monitor the amount of revenue collected from the ORF to ensure that it, 
in combination with its other regulatory fees and fines, does not 
exceed the Exchange's total regulatory costs. The Exchange has designed 
the ORF to generate revenues that, when combined with all of the 
Exchange's other regulatory fees, will be less than or equal to the 
Exchange's regulatory costs, which is consistent with the Commission's 
view that regulatory fees be used for regulatory purposes and not to 
support the Exchange's business side. In this regard, the Exchange 
believes that the proposed decrease to the fee is reasonable.
    The Exchange believes that continuing to limit changes to the ORF 
to twice a year on specific dates with advance notice is reasonable 
because it gives participants certainty on the timing of changes, if 
any, and better enables them to properly account for ORF charges among 
their customers. The Exchange believes that continuing to limit changes 
to the ORF to twice a year on specific dates is equitable and not 
unfairly discriminatory because it will apply in the same manner to all 
Members that are subject to the ORF and provide them with additional 
advance notice of changes to that fee.
    The Exchange believes that collecting the ORF from non-Members when 
such non-Members ultimately clear the transaction (that is, when the 
non-Member is the ``ultimate clearing firm'' for a transaction in which 
a Member was assessed the ORF) is an equitable allocation of reasonable 
dues, fees, and other charges among its members and issuers and other 
persons using its facilities. The Exchange notes that there is a 
material distinction between ``assessing'' the ORF and ``collecting'' 
the ORF. The ORF is only assessed to a Member with respect to a 
particular transaction in which it is either the executing clearing 
firm or ultimate clearing firm. The Exchange does not assess the ORF to 
non-Members. Once, however, the ORF is assessed to a Member for a 
particular transaction, the ORF may be collected from the Member or a 
non-Member, depending on how the transaction is cleared at OCC. If 
there was no change to the clearing account of the original 
transaction, the ORF would be collected from the Member. If there was a 
change to the clearing account of the original transaction and a non-
Member becomes the ultimate clearing firm for that transaction, then 
the ORF will be collected from that non-Member. The Exchange believes 
that this collection practice continues to be reasonable and 
appropriate, and was originally instituted for the benefit of clearing 
firms that desired to have the ORF be collected from the clearing firm 
that ultimately clears the transaction.
    The Exchange designed the ORF so that revenue generated from the 
ORF, in combination with its other regulatory fees and fines, does not 
exceed regulatory costs, which is consistent with the view of the 
Commission that regulatory fees be used for regulatory purposes and not 
to support the Exchange's business operations. As discussed above, 
however, after review of its regulatory costs and regulatory revenues, 
which includes revenues from ORF and other regulatory fees and fines, 
the Exchange determined that absent a reduction in ORF, it may be 
collecting revenue in excess of its regulatory costs. Indeed, the 
Exchange notes that when taking into account the recent options volume, 
which included an increase in customer options transactions, it 
estimates the ORF will generate revenues that may cover more than the 
approximated Exchange's projected regulatory costs. Moreover, when 
coupled with the Exchange's other regulatory fees and revenues, the 
Exchange estimates ORF to generate over 100% of the Exchange's 
projected regulatory costs. As such, the Exchange believes it is 
reasonable and appropriate to decrease the ORF amount from $0.0029 to 
$0.0019 per contract side.
    The Exchange also believes the proposed fee change is equitable and 
not unfairly discriminatory in that it is charged to all Members on all 
their transactions that clear in the customer range at the OCC,\15\ 
with an exception.\16\ The Exchange believes the ORF ensures fairness 
by assessing higher fees to those members that require more Exchange 
regulatory services based on the amount of customer options business 
they conduct. Regulating customer trading activity is much more labor 
intensive and requires greater expenditure of human and technical 
resources than regulating non-customer trading activity, which tends to 
be more automated and less labor-intensive. For example, there are 
costs associated with main office and branch office examinations (e.g., 
staff expenses), as well as investigations into customer complaints and 
the terminations of registered persons. As a result, the costs 
associated with administering the customer component of the Exchange's 
overall regulatory program are materially higher than the costs 
associated with administering the non-customer component (e.g., member 
proprietary transactions) of its regulatory program. Moreover, the 
Exchange notes that it has broad regulatory responsibilities with 
respect to activities of its Members, irrespective of where their 
transactions take place. Many of the Exchange's surveillance programs 
for customer trading activity may require the Exchange to look at 
activity across all markets, such as reviews related to position limit 
violations and manipulation. Indeed,

[[Page 48263]]

the Exchange cannot effectively review for such conduct without looking 
at and evaluating activity regardless of where it transpires. In 
addition to its own surveillance programs, the Exchange also works with 
other SROs and exchanges on intermarket surveillance related issues. 
Through its participation in the Intermarket Surveillance Group 
(``ISG'') \17\ the Exchange shares information and coordinates 
inquiries and investigations with other exchanges designed to address 
potential intermarket manipulation and trading abuses. Accordingly, 
there is a strong nexus between the ORF and the Exchange's regulatory 
activities with respect to customer trading activity of its Members.
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    \15\ If the OCC clearing member is an Exchange Member, ORF is 
assessed and collected on all cleared customer contracts (after 
adjustment for CMTA); and if the OCC clearing member is not an 
Exchange Member, ORF is collected only on the cleared customer 
contracts executed at the Exchange, taking into account any CMTA 
instructions which may result in collecting the ORF from a non-
Member.
    \16\ When a transaction is executed on an away exchange, the 
Exchange does not assess the ORF when neither the executing clearing 
firm nor the ultimate clearing firm is a Member (even if a Member is 
``given-up'' or ``CMTAed'' and then such Member subsequently 
``gives-up'' or ``CMTAs'' the transaction to another non-Member via 
a CMTA reversal).
    \17\ ISG is an industry organization formed in 1983 to 
coordinate intermarket surveillance among the SROs by cooperatively 
sharing regulatory information pursuant to a written agreement 
between the parties. The goal of the ISG's information sharing is to 
coordinate regulatory efforts to address potential intermarket 
trading abuses and manipulations.
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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 
impose any burden on competition not necessary or appropriate in 
furtherance of the purposes of the Act. This proposal does not create 
an unnecessary or inappropriate intra-market burden on competition 
because the ORF applies to all customer activity, thereby raising 
regulatory revenue to offset regulatory expenses. It also supplements 
the regulatory revenue derived from non-customer activity. The Exchange 
notes, however, the proposed change is not designed to address any 
competitive issues. Indeed, this proposal does not create an 
unnecessary or inappropriate inter-market burden on competition because 
it is a regulatory fee that supports regulation in furtherance of the 
purposes of the Act. The Exchange is obligated to ensure that the 
amount of regulatory revenue collected from the ORF, in combination 
with its other regulatory fees and fines, does not exceed regulatory 
costs.

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 has become effective pursuant to Section 
19(b)(3)(A)(ii) of the Act,\18\ and Rule 19b-4(f)(2) \19\ thereunder. 
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.
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    \18\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \19\ 17 CFR 240.19b-4(f)(2).
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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 No. SR-MIAX-2021-38 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 No. SR-MIAX-2021-38. 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 No. SR-MIAX-2021-38, and should be submitted on or 
before September 17, 2021.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\20\
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    \20\ 17 CFR 200.30-3(a)(12).
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Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2021-18461 Filed 8-26-21; 8:45 am]
BILLING CODE 8011-01-P