[Federal Register Volume 87, Number 61 (Wednesday, March 30, 2022)]
[Notices]
[Pages 18439-18441]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-06630]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-94507; File No. SR-CboeBYX-2022-004]


Self-Regulatory Organizations; Cboe BYX Exchange, Inc.; Notice of 
Filing and Immediate Effectiveness of a Proposed Rule Change To Amend 
the Fee Schedule

March 24, 2022.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on March 14, 2022, Cboe BYX Exchange, Inc. (``Exchange'' or ``BYX'') 
filed with the Securities and Exchange Commission (``Commission'') the 
proposed rule change as described in Items I, II, and III below, which 
Items have been prepared by the 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

    Cboe BYX Exchange, Inc. (the ``Exchange'' or ``BYX'' or ``BYX 
Equities'') is filing with the Securities and Exchange Commission 
(``Commission'') a proposed rule change to amend its Fee Schedule. The 
text of the proposed rule change is provided in Exhibit 5.
    The text of the proposed rule change is also available on the 
Exchange's website (http://markets.cboe.com/us/equities/regulation/rule_filings/byx/), at the Exchange's Office of the Secretary, 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 Fees Schedule to adopt fees for 
Certification Logical Port fees, effective March 1, 2022.\3\
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    \3\ The Exchange initially filed the proposed fee changes on 
March 1, 2022 (SR- CboeBYX-2022-002). On March 14, 2022, the 
Exchange withdrew that filing and submitted this proposal.
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    By way of background, the Exchange offers a variety of logical 
ports, which provide users with the ability within the Exchange's 
System to accomplish a specific function through a connection, such as 
order entry, data receipt or access to information. Specifically, the 
Exchange offers Logical Ports,\4\ Purge Ports,\5\ Multicast PITCH GRP 
Ports and Multicast PITCH Spin Server Ports.\6\ For each type of the 
aforementioned logical ports that is used in the production 
environment, the Exchange also offers corresponding ports which provide 
Members and non-Members access to the Exchange's certification 
environment to test proprietary systems and applications (i.e., 
``Certification Logical Ports''). The certification environment 
facilitates testing using replicas of the Exchange's production 
environment process configurations which provide for a robust and 
realistic testing experience. For example, the certification 
environment allows unlimited firm-level testing of order types, order 
entry, order management, order throughput, acknowledgements, risk 
settings, mass cancelations, and purge requests. Historically, the 
Exchange has not assessed fees for Certification Logical Ports. The 
Exchange now proposes to establish a monthly fee for Certification 
Logical Ports. Particularly, the Exchange proposes to adopt a monthly 
fee of $250 per Certification Logical Port. However, the Exchange notes 
that it will continue to offer free of charge one Certification Logical 
Port per logical port type offered in the production environment (i.e., 
Logical Ports, Purge, Multicast PITCH GRP, and Multicast PITCH Spin 
Server Ports) to each Member or non-Member, as applicable. Any 
additional Certification Logical Ports will be assessed $250 per month 
per port.\7\ The Exchange notes that purchasing additional 
Certification Logical Ports is voluntary and not required in order to 
participate in the production environment, including live production 
trading on the Exchange. Additionally, Members and non-Members are not 
required to purchase any particular production logical port in order to 
receive a corresponding Certification Logical Port free of charge.\8\ 
Further, the Exchange also notes that other exchanges similarly assess 
fees related

[[Page 18440]]

to their respective testing environments.\9\
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    \4\ Logical Ports include FIX and BOE ports (used for order 
entry), drop logical port (which grants users the ability to receive 
and/or send drop copies) and ports that are used for receipt of 
certain market data feeds.
    \5\ Purge Ports are dedicated ports that permit a User to 
simultaneously cancel all or a subset of its orders in one or more 
symbols across multiple logical ports by requesting the Exchange to 
effect such cancellation.
    \6\ Spin Ports and GRP Ports are used to request and receive a 
retransmission of data from the Exchange's Multicast PITCH data 
feeds.
    \7\ For example, if a Member maintains 3 FIX Certification 
Logical Ports, 1 Purge Certification Logical Port, and 1 set of 
Multicast PITCH Spin Server Certification Logical Port, the Member 
will be assessed $500 per month for Certification Logical Port Fees 
(i.e., 1 FIX, 1 Purge and 1 set of Multicast PITCH Spin Server 
Certification Logical Ports x $0 and 2 FIX Certification Logical 
Ports x $250).
    \8\ For example, a Member may obtain a Certification Purge Port 
free of charge, even if that Member has not otherwise purchased a 
Purge Port for the live production environment. Certification 
Logical Ports are not automatically enabled for each User, but 
rather must be proactively requested by Users.
    \9\ See e.g., Nasdaq Stock Market LLC, Equity 7, Pricing 
Schedule, Section 130. See also MIAX Options Exchange Fee Schedule, 
Section 4, Testing and Certification Fees.
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    Lastly, the Exchange does not intend to prorate Certification 
Logical Ports for the first month of service and intends to make this 
clear in the notes section under the Logical Port Fees section of the 
Fees Schedule.
2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with 
the Securities Exchange Act of 1934 (the ``Act'') and the rules and 
regulations thereunder applicable to the Exchange and, in particular, 
the requirements of Section 6(b) of the Act.\10\ Specifically, the 
Exchange believes the proposed rule change is consistent with the 
Section 6(b)(5) \11\ requirements that the rules of an exchange be 
designed to prevent fraudulent and manipulative acts and practices, to 
promote just and equitable principles of trade, to foster cooperation 
and coordination with persons engaged in regulating, clearing, 
settling, processing information with respect to, and facilitating 
transactions in securities, 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. Additionally, 
the Exchange believes the proposed rule change is consistent with 
Section 6(b)(4) of the Act,\12\ which requires that Exchange rules 
provide for the equitable allocation of reasonable dues, fees, and 
other charges among its Members and other persons using its facilities.
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    \10\ 15 U.S.C. 78f(b).
    \11\ 15 U.S.C. 78f(b)(5).
    \12\ 15 U.S.C. 78f(b)(4).
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    As noted above, the Exchange's certification environment provides a 
robust and realistic testing experience using a replica of the 
Exchange's production environment process configurations. This 
environment enables market participants to manage risk more effectively 
through testing software development changes in certification prior to 
implementing them in the live trading environment, thereby reducing the 
likelihood of a potentially disruptive system failure in the live 
trading environment, which has the potential to affect all market 
participants. As such, the Exchange believes it's reasonable to adopt a 
Certification Logical Port fee as it better enables the Exchange to 
continue to maintain and improve its testing environment, which the 
Exchange believes serves to improve live production trading on the 
Exchange. The Exchange also believes the proposed Certification Logical 
Port fee is reasonable because while such ports will no longer be 
completely free, Members and non-Members will continue to be entitled 
to receive free of charge one Certification Logical Port for each type 
of logical port that are currently offered in the production 
environment. Notably, the Exchange believes one Certification Logical 
Port per logical port type will be sufficient for most users and indeed 
anticipates that the majority of users will not purchase additional 
Certification Logical Ports. More specifically, while the Exchange has 
no way of predicting with certainty the impact of the proposed changes, 
it anticipates approximately 19% of Users to be assessed fees for 
Certification Logical Ports (i.e., request Certification Ports in 
excess of the Certification Logical Ports provided free of charge). For 
those users who wish to obtain additional Certification Logical Ports 
based on their respective business needs, they are able to do so for a 
modest fee. Indeed, the proposed fee is lower than the fees assessed 
for the corresponding logical ports used in the Exchange's production 
environment.\13\ Additionally, the Exchange notes other exchanges 
similarly assess fees relating to their respective testing 
environments.\14\ Further, the decision to purchase additional ports is 
optional and no market participant is required or under any regulatory 
obligation to purchase excess Certification Logical Ports in order to 
access the Exchange's certification environment.\15\
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    \13\ See Cboe BYX Fees Schedule, Logical Port Fees.
    \14\ See e.g., Nasdaq Stock Market LLC, Equity 7, Pricing 
Schedule, Section 130. See also MIAX Options Exchange Fee Schedule, 
Section 4, Testing and Certification Fees.
    \15\ Although many Users use Certification Logical Ports on a 
daily basis, the Exchange notes frequency of use of Certification 
Logical Ports varies by User and depends on a User's business needs. 
To the extent a User purchases additional Certification Logical 
Ports and its respective needs change or it determines it no longer 
wishes to maintain excess Certification Logical Ports, the User is 
free to cancel such ports for the following month(s).
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    The Exchange believes the proposed fee is also equitable and not 
unfairly discriminatory because it applies uniformly to all market 
participants that choose to obtain additional Certification Logical 
Ports. The Exchange also believes the proposed fee is reasonable, 
equitable and not unfairly discriminatory because it is designed to 
encourage market participants to be efficient with their respective 
Certification Logical Port usage. Without some sort of fee for its 
Certification Logical Ports, the Exchange believes that Members and 
non-Members may be less efficient in testing their systems, potentially 
resulting in excessive time and resources being consumed by the 
Exchange in supporting testing and certifying Members and non-Members 
to the detriment of all market participants as Exchange resources are 
diverted away from other trading operations. Additionally, similar to 
its production environment, the Exchange's certification environment 
does not have unlimited system capacity to support unlimited testing. 
As such, the proposed fee structure also ensures that firms that use 
the most capacity pay for that capacity, rather than placing that 
burden on market participants that have more modest needs. The Exchange 
lastly believes that its proposed fee is aligned with the goals of the 
Commission in facilitating a competitive market for all firms that 
trade on the Exchange and of ensuring that critical market 
infrastructure has ``levels of capacity, integrity, resiliency, 
availability, and security adequate to maintain their operational 
capability and promote the maintenance of fair and orderly markets.'' 
\16\
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    \16\ See Securities Exchange Act Release No. 73639 (November 19, 
2014), 79 FR 72251 (December 5, 2014) (File No. S7-01-13) 
(Regulation SCI Adopting Release).
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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 intramarket or intermarket competition that is not 
necessary or appropriate in furtherance of the purposes of the Act. The 
Exchange does not believe that the proposed rule change will impose any 
burden on intramarket competition because as the proposed change 
applies uniformly to all market participants. Additionally, the 
Exchange does not believe that the proposed fee creates an undue burden 
on competition because the Exchange will continue to offer free of 
charge one Certification Logical Port per each logical port type 
offered in the production environment. Although the Exchange now 
proposes to charge users for additional Certification Logical Ports, 
the Exchange believes without some sort of fee assessed for excess 
Certification Logical Ports, Members and non-Members may be less 
efficient in testing their systems, potentially resulting in excessive 
time and resources being consumed by the Exchange and also potentially 
impacting

[[Page 18441]]

the certification environment's capacity thresholds. The proposed fee 
structure therefore would ensure that market participants that pay the 
proposed fee are the ones that demand the most resources from the 
Exchange. Also as discussed, the purchase of additional ports is 
optional and based on the business needs of each market participant. 
Moreover, such market participants will continue to benefit from access 
to the certification environment, which the Exchange believes provides 
a robust and realistic testing experience via a replica of the 
production environment.
    The Exchange does not believe that the proposed rule changes will 
impose any burden on intermarket competition that is not necessary or 
appropriate in furtherance of the purposes of the Act. Particularly, 
the proposed change applies only to the Exchange's certification 
environment. Additionally, the Exchange notes that it operates in a 
highly competitive market. Members have numerous alternative venues 
that they may participate on and direct their order flow, including 15 
other equities exchanges, as well as a number of alternative trading 
systems and other off-exchange venues, where competitive products are 
available for trading. Indeed, participants can readily choose to send 
their orders to other exchanges, and, additionally off-exchange venues, 
if they deem overall fee levels at those other venues to be more 
favorable. Moreover, the Commission has repeatedly expressed its 
preference for competition over regulatory intervention in determining 
prices, products, and services in the securities markets. Specifically, 
in Regulation NMS, the Commission highlighted the importance of market 
forces in determining prices and SRO revenues and, also, recognized 
that current regulation of the market system ``has been remarkably 
successful in promoting market competition in its broader forms that 
are most important to investors and listed companies.'' \17\ The fact 
that this market is competitive has also long been recognized by the 
courts. In NetCoalition v. Securities and Exchange Commission, the D.C. 
Circuit stated as follows: ``[n]o one disputes that competition for 
order flow is `fierce.' . . . As the SEC explained, `[i]n the U.S. 
national market system, buyers and sellers of securities, and the 
broker-dealers that act as their order-routing agents, have a wide 
range of choices of where to route orders for execution'; [and] `no 
exchange can afford to take its market share percentages for granted' 
because `no exchange possesses a monopoly, regulatory or otherwise, in 
the execution of order flow from broker dealers' . . . .''.\18\ 
Accordingly, the Exchange does not believe its proposed fee change 
imposes any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act.
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    \17\ See Securities Exchange Act Release No. 51808 (June 9, 
2005), 70 FR 37496, 37499 (June 29, 2005).
    \18\ NetCoalition v. SEC, 615 F.3d 525, 539 (D.C. Cir. 2010) 
(quoting Securities Exchange Act Release No. 59039 (December 2, 
2008), 73 FR 74770, 74782-83 (December 9, 2008) (SR-NYSEArca-2006-
21)).
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C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    The Exchange neither solicited nor received 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 \19\ and paragraph (f) of Rule 19b-4 \20\ 
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 will institute proceedings to 
determine whether the proposed rule change should be approved or 
disapproved.
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    \19\ 15 U.S.C. 78s(b)(3)(A).
    \20\ 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-CboeBYX-2022-004 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-CboeBYX-2022-004. 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-CboeBYX-2022-004 and should be submitted 
on or before April 20, 2022.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\21\
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    \21\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2022-06630 Filed 3-29-22; 8:45 am]
BILLING CODE 8011-01-P