[Federal Register Volume 87, Number 187 (Wednesday, September 28, 2022)]
[Notices]
[Pages 58856-58859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-20948]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-95885; File No. SR-EMERALD-2022-29]


Self-Regulatory Organizations: Notice of Filing and Immediate 
Effectiveness of a Proposed Rule Change by MIAX Emerald, LLC To Amend 
Its Fee Schedule

September 22, 2022.
    Pursuant to the provisions of 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 September 13, 2022, MIAX Emerald, LLC (``MIAX 
Emerald'' or ``Exchange''), filed with the Securities and Exchange 
Commission (``Commission'') a 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 Emerald Fee 
Schedule (the ``Fee Schedule'').
    The text of the proposed rule change is available on the Exchange's 
website at http://www.miaxoptions.com/rule-filings/emerald, 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
    The Exchange proposes to amend Section 1)a)i) of the Fee Schedule 
to amend the rebates provided for Market Maker Origins for Simple \3\ 
Maker (defined below) volume in Penny Classes (defined below) that 
trade contra to Priority Customers \4\ Origins by $0.02 in each Tier 
(defined below). The Exchange initially filed this proposal on 
September 1, 2022 (SR-EMERALD-2022-26). On September 13, 2022, the 
Exchange withdrew SR-EMERALD-2022-26 and resubmitted this proposal (SR-
EMERALD-2022-29).
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    \3\ The Simple Order Book is the Exchange's regular electronic 
book of orders and quotes. See Exchange Rule 518(a)(15).
    \4\ ``Priority Customer'' means a person or entity that (i) is 
not a broker or dealer in securities, and (ii) does not place more 
than 390 orders in listed options per day on average during a 
calendar month for its own beneficial account(s). See Exchange Rule 
100, including Interpretation and Policy .01.
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Background
    The Exchange currently assesses transaction rebates and fees to all 
market participants, which are based upon a threshold tier structure 
(``Tier''). Tiers are determined on a monthly basis and are based on 
three alternative calculation methods, as defined in Section 1)a)ii) of 
the Fee Schedule. The calculation method that results in the highest 
Tier achieved by the Member \5\ shall apply to all Origin types by the 
Member, except the Priority Customer Origin type. For the Priority 
Customer Origin calculation, the Tier applied for a Member and its 
Affiliates' \6\ is solely determined by calculation Method 3, as 
defined in Section 1)a)ii) of the Fee Schedule, titled ``Total Priority 
Customer, Maker sides volume, based on % of CTCV (`Method 3').'' The 
monthly volume thresholds for each of the methods, associated with each 
Tier, are calculated as the total monthly volume executed by the Member 
in all options classes on MIAX Emerald in the relevant Origins and/or 
applicable liquidity, not including Excluded Contracts,\7\ (as the 
numerator) expressed as a percentage of (divided by) Customer

[[Page 58857]]

Total Consolidated Volume (``CTCV'') (as the denominator). CTCV is 
calculated as the total national volume cleared at The Options Clearing 
Corporation (``OCC'') in the Customer range in those classes listed on 
MIAX Emerald for the month for which fees apply, excluding volume 
cleared at the OCC in the Customer range executed during the period of 
time in which the Exchange experiences an ``Exchange System 
Disruption'' \8\ (solely in the option classes of the affected Matching 
Engine).\9\ In addition, the per contract transaction rebates and fees 
shall be applied retroactively to all eligible volume once the Tier has 
been reached by the Member. Members that place resting liquidity, i.e., 
orders on the MIAX Emerald System, will be assessed the specified 
``maker'' rebate or fee (each a ``Maker'') and Members that execute 
against resting liquidity will be assessed the specified ``taker'' fee 
or rebate (each a ``Taker'').\10\ Members are also assessed lower 
transaction fees and smaller rebates for order executions in standard 
option classes in the Penny Interval Program \11\ (``Penny Classes'') 
than for order executions in standard option classes which are not in 
the Penny Program (``non-Penny Classes''), for which Members will be 
assessed a higher transaction fees and larger rebates.
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    \5\ ``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 the 
Definitions Section of the Fee Schedule and Exchange Rule 100.
    \6\ ``Affiliate'' means (i) an affiliate of a Member of at least 
75% common ownership between the firms as reflected on each firm's 
Form BD, Schedule A, or (ii) the Appointed Market Maker of an 
Appointed EEM (or, conversely, the Appointed EEM of an Appointed 
Market Maker). An ``Appointed Market Maker'' is a MIAX Emerald 
Market Maker (who does not otherwise have a corporate affiliation 
based upon common ownership with an EEM) that has been appointed by 
an EEM and an ``Appointed EEM'' is an EEM (who does not otherwise 
have a corporate affiliation based upon common ownership with a MIAX 
Emerald Market Maker) that has been appointed by a MIAX Emerald 
Market Maker, pursuant to the following process. A MIAX Emerald 
Market Maker appoints an EEM and an EEM appoints a MIAX Emerald 
Market Maker, for the purposes of the Fee Schedule, by each 
completing and sending an executed Volume Aggregation Request Form 
by email to [email protected] no later than 2 business days 
prior to the first business day of the month in which the 
designation is to become effective. Transmittal of a validly 
completed and executed form to the Exchange along with the 
Exchange's acknowledgement of the effective designation to each of 
the Market Maker and EEM will be viewed as acceptance of the 
appointment. The Exchange will only recognize one designation per 
Member. A Member may make a designation not more than once every 12 
months (from the date of its most recent designation), which 
designation shall remain in effect unless or until the Exchange 
receives written notice submitted 2 business days prior to the first 
business day of the month from either Member indicating that the 
appointment has been terminated. Designations will become operative 
on the first business day of the effective month and may not be 
terminated prior to the end of the month. Execution data and reports 
will be provided to both parties. See the Definitions Section of the 
Fee Schedule.
    \7\ The term ``Excluded Contracts'' means any contracts routed 
to an away market for execution. See the Definitions Section of the 
Fee Schedule.
    \8\ The term ``Exchange System Disruption'' means an outage of a 
Matching Engine or collective Matching Engines for a period of two 
consecutive hour or more, during trading hours. See the Definitions 
Section of the Fee Schedule.
    \9\ A ``Matching Engine'' is a part of the MIAX Emerald 
electronic system that processes options orders and trades on a 
symbol-by-symbol basis. See the Definitions Section of the Fee 
Schedule.
    \10\ For a Priority Customer complex order taking liquidity in 
both a Penny Class and non-Penny Class against Origins other than 
Priority Customer, the Priority Customer order will receive a rebate 
based on the Tier achieved.
    \11\ See Securities Exchange Act Release No. 88993 (June 2, 
2020), 85 FR 35145 (June 8, 2020) (SR-EMERALD-2020-05) (Notice of 
Filing and Immediate Effectiveness of a Proposed Rule Change To 
Amend Exchange Rule 510, Minimum Price Variations and Minimum 
Trading Increments, 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 
``Penny Program'').
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Proposal
    The Exchange proposes to adopt note ``!'' to Market Maker in the 
Origin column to provide that, the rebate for Market Maker Origins for 
Simple Maker volume in Penny Classes will be reduced by $0.02 for each 
Tier when trading contra to a Priority Customer Origins. Currently, the 
Exchange provides a Simple Maker rebate for Market Maker Origins, for 
any contra Origin, in Tier 1 of $0.30; Tier 2 of $0.33; Tier 3 of 
$0.35; and Tier 4 of $0.45. Under the Exchange's proposal when a Market 
Maker Origin is contra to a Priority Customer in a Penny Class the 
Exchange will reduce the rebate for each Tier by $0.02. Therefore, the 
effective rebate for Market Maker Origins in Simple Maker volume when 
trading contra to a Priority Customer Origin in Tier 1 would be $0.28; 
Tier 2 would be $0.31; Tier 3 would be $0.33; and Tier 4 would be 
$0.43.
    The purpose of adjusting the specified Simple Maker rebate is for 
business and competitive reasons. In order to attract order flow, the 
Exchange initially set its Maker rebates and Taker fees so that they 
were meaningfully higher/lower than other options exchanges that 
operate comparable maker/taker pricing models.\12\ The Exchange now 
believes that it is appropriate to further adjust the specified Maker 
rebates based upon contra party Origin. The Exchange notes that at 
least one other options exchange offers a similar pricing structure for 
rebates/fees that is dependent upon the contra party Origin type.\13\
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    \12\ See Securities Exchange Act Release No. 85393 (March 21, 
2019), 84 FR 11599 (March 27, 2019) (SR-EMERALD-2019-15).
    \13\ See BOX Options Exchange Fee Schedule, Section IV, A, Non-
Auction Transactions, which provides a table where the exchange 
assesses a per contract fee (or credit) based upon three factors: 
(i) the account type of the Participant submitting the order; (ii) 
whether the Participant is a liquidity provider or liquidity taker; 
and (iii) the account type of the contra party, on its public 
website (available at https://boxoptions.com/fee-schedule/).
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Implementation
    The proposed changes are immediately effective.
2. Statutory Basis
    The Exchange believes that its proposal to amend its Fee Schedule 
is consistent with Section 6(b) of the Act \14\ in general, and 
furthers the objectives of Section 6(b)(4) of the Act,\15\ 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 that the proposed rule 
change is consistent with the objectives of Section 6(b)(5) of the Act 
\16\ that the rules of an exchange be designed to prevent fraudulent 
and manipulative acts and practices, and to promote just and equitable 
principles of trade, foster cooperation and coordination with persons 
engaged in facilitating transactions in securities, remove impediments 
to and perfect the mechanisms of a free and open market and a national 
market system and, in general, protect investors and the public 
interest, and, particularly, is not designed to permit unfair 
discrimination between customers, issuers, brokers, or dealers.
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    \14\ 15 U.S.C. 78f(b).
    \15\ 15 U.S.C. 78f(b)(4).
    \16\ 15 U.S.C. 78f(b)(1) and (b)(5).
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    The Exchange operates in a competitive marketplace in which market 
participants can readily direct their order flow to competing venues if 
they deem fee levels at a particular venue to be excessive or 
incentives to be insufficient. There are currently 16 registered 
options exchanges competing for order flow. Based on publicly-available 
information, and excluding index-based options, no single exchange has 
a market share of more than approximately 11-12% of the equity options 
market.\17\ Therefore, no exchange possesses significant pricing power. 
More specifically, as of August 29, 2022, the Exchange had a market 
share of approximately 3.06% of executed volume of multiply-listed 
equity options for the month of August 2022.\18\
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    \17\ See ``The market at a glance, MTD AVERAGE'' (last visited 
August 29, 2022), available at https://www.miaxoptions.com/ (Data as 
of August 1, 2022 to August 26, 2022).
    \18\ See id.
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    The Commission and the courts have repeatedly expressed their 
preference for competition over regulatory intervention in determining 
prices, products, and services in the securities markets. 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.'' \19\
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    \19\ Securities Exchange Act Release No. 51808 (June 9, 2005), 
70 FR 37499 (June 29, 2005).
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    The Exchange believes that the ever-shifting market share among the 
exchanges from month to month demonstrates that market participants can 
discontinue or reduce use of certain categories of products and 
services, terminate an existing membership or determine to not become a 
new member, and/or shift order flow, in response to transaction fee 
changes. For example, on February 28, 2019, the Exchange's affiliate, 
MIAX PEARL, LLC (``MIAX Pearl''), filed with the Commission a proposal 
to increase Taker fees in certain Tiers for options transactions in 
certain Penny classes for Priority Customers and decrease Maker rebates 
in certain Tiers for options transactions in Penny classes for Priority 
Customers

[[Page 58858]]

(which fee was to be effective March 1, 2019).\20\ MIAX Pearl 
experienced a decrease in total market share for the month of March 
2019, after the proposal went into effect. Accordingly, the Exchange 
believes that the MIAX Pearl March 1, 2019 fee change, to increase 
certain transaction fees and decrease certain transaction rebates, may 
have contributed to the decrease in MIAX Pearl's market share and, as 
such, the Exchange believes competitive forces constrain the 
Exchange's, and other options exchanges, ability to set transaction 
fees and market participants can shift order flow based on fee changes 
instituted by the exchanges.
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    \20\ See Securities Exchange Act Release No. 85304 (March 13, 
2019), 84 FR 10144 (March 19, 2019) (SR-PEARL-2019-07).
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    The Exchange believes its proposal to amend the rebate provided to 
Market Maker Origins for Simple Maker volume in Penny Classes when 
contra to Priority Customer Origins is reasonable, equitable and not 
unfairly discriminatory because all similarly situated participants in 
the same Origin type and Tier are subject to the same tiered Maker 
rebates and Taker fees. The Exchange believes it is equitable and not 
unfairly discriminatory to reduce the rebates provided for executions 
of Simple Maker volume where the contra party is a Priority Customer 
Origin in Penny Classes.
    The Exchange is making this change for business and competitive 
reasons as the Exchange initially set its Simple Maker rebates for such 
orders higher than certain other options exchanges that operate 
comparable pricing models.\21\ The Exchange also believes it is 
equitable and not unfairly discriminatory to provide a different rebate 
to Market Makers Origins for Simple Maker volume in Penny Classes when 
contra to Priority Customer Origins, as at least one other competing 
exchange also provides differing rebates and fees dependent upon the 
origin and contra origin type.\22\ Additionally, the Exchange believes 
that the proposed change (a $0.02 decrease from the current rebate 
provided in each Tier) is reasonable in that it represents a modest 
decrease from the current rebate in each Tier. The Exchange believes 
that the proposed rebates will continue to provide an incentive for 
Market Makers to continue to trade with Priority Customer Origins on 
the Exchange.
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    \21\ See supra note 13.
    \22\ See id.
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    The Exchange believes that it is equitable and not unfairly 
discriminatory that Priority Customer Origins be treated differently 
than other Origin types. The exchanges, in general, have historically 
aimed to improve markets for investors and develop various features 
within their market structure for customer benefit. Priority Customer 
liquidity benefits all market participants by providing more trading 
opportunities. An increase in the activity of these market participants 
in turn facilitates tighter spreads, which may cause an additional 
corresponding increase in order flow from other market participants.
    Furthermore, the proposed amendment of Simple Maker rebates when 
the contra is a Priority Customer promotes just and equitable 
principles of trade, fosters cooperation and coordination with persons 
engaged in facilitating transactions in securities, and protects 
investors and the public interest, because even with the decrease, the 
Exchange's proposed rebates should enable the Exchange to continue to 
attract order flow and maintain market share.\23\
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    \23\ See supra note 17.
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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.
Intra-Market Competition
    The Exchange believes that the proposed changes to the specified 
Simple Maker rebates for the applicable market participants should 
continue to encourage the provision of liquidity that enhances the 
quality of the Exchange's market and increases the number of trading 
opportunities on the Exchange for all participants who will be able to 
compete for such opportunities. The proposed rule change should enable 
the Exchange to continue to attract and compete for Priority Customer 
order flow with other exchanges. The Exchange believes that even with 
the proposed changes, the rebates provided will continue to encourage 
Members to transact on the Exchange, which benefits all Exchange 
participants by providing more trading opportunities and tighter 
spreads. However, this competition does not create an undue burden on 
competition but rather offers all market participants the opportunity 
to receive the benefit of competitive pricing.
    The Exchange believes that the pricing structure to provide 
different rebates to Market Maker Origins for Simple volume dependent 
upon whether the contra is a Priority Customer Origin will not impose 
any undue burden on intra-market competition because the applicable 
rebate applies equally to all similarly situated Market Makers on the 
Exchange.
    The Exchange believes that it is equitable and not unfairly 
discriminatory that Priority Customer Origins be treated differently 
than other Origin types. The exchanges, in general, have historically 
aimed to improve markets for investors and develop various features 
within their market structure for customer benefit. Priority Customer 
liquidity benefits all market participants by providing more trading 
opportunities. An increase in the activity of these market participants 
in turn facilitates tighter spreads, which may cause an additional 
corresponding increase in order flow from other market participants.
    The Exchange believes that it is equitable and not unfairly 
discriminatory to reduce the rebate provided to Market Maker Origins 
for Simple volume when the contra Origin is Priority Customer. A 
Priority Customer by definition is not a broker or dealer in 
securities, and does not place more than 390 orders in listed options 
per day on average during a calendar month for its own beneficial 
account(s).\24\ This change does not apply to Market Makers that trade 
contra to other Origin types on the Exchange, such as non-MIAX Emerald 
Market Maker, Firm Proprietary/Broker Dealer, or Non-Priority 
Customers, who will generally submit a higher number of orders than 
Priority Customers. The Exchange believes that even with the proposed 
changes, the rebates provided to Market Maker Origins for Simple volume 
when the contra Origin is Priority Customer will continue to provide an 
incentive for Market Makers to participate on the Exchange, which 
benefits all Exchange participants by providing more trading 
opportunities.
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    \24\ See supra note 4.
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    The Exchange does not believe its proposal will have any effect on 
Priority Customer order flow to the Exchange as the proposal affects 
only Simple Maker volume in Penny Classes when contra to Priority 
Customer Origins.
Inter-Market Competition
    The Exchange operates in a highly competitive market in which 
market participants can readily favor competing venues if they deem fee 
levels at a particular venue to be excessive. There are currently 16 
registered options exchanges competing for order flow. Based on 
publicly-available

[[Page 58859]]

information, and excluding index-based options, no single exchange has 
a market share of more than approximately 11-12% of the equity options 
market.\25\ Therefore, no exchange possesses significant pricing power. 
More specifically, as of August 29, 2022, the Exchange had a market 
share of approximately 3.06% of executed volume of multiply-listed 
equity options for the month of August 2022.\26\ Therefore, no exchange 
possesses significant pricing power in the execution of multiply-listed 
equity options order flow. In such an environment, the Exchange must 
continually adjust its transaction and non-transaction fees to remain 
competitive with other exchanges and to attract order flow. The 
Exchange believes that the proposed rule change reflects this 
competitive environment because it modifies the Exchange's rebates in a 
manner that will allow the Exchange to remain competitive.
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    \25\ See supra note 17.
    \26\ See id.
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    Additionally, 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.'' \27\ The fact 
that this market is competitive has also long been recognized by the 
courts. In NetCoalition v. Securities and Exchange Commission, the DC 
circuit stated: ``[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 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 possess a 
monopoly, regulatory or otherwise, in the execution of order flow from 
broker dealers' . . .''.\28\ Accordingly, the Exchange does not believe 
its proposed pricing changes impose any burden on competition that is 
not necessary or appropriate in furtherance of the purposes of the Act.
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    \27\ See Securities Exchange Act Release No. 51808 (June 9, 
2005), 70 FR 37496, 37499 (June 29, 2005).
    \28\ NetCoalition v. SEC, 615 F.3d 525, 539 (DC Cir. 2010) 
(quoting Securities Exchange Act Release No. 59039 (December 2, 
2008), 73 FR 74770, 74782-83 (December 9, 2008) (SR-NYSE-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

    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,\29\ and Rule 19b-4(f)(2) \30\ 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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    \29\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \30\ 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 SR-EMERALD-2022-29 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-EMERALD-2022-29. 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 such 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-EMERALD-2022-29 and should be submitted 
on or before October 19, 2022.
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    \31\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\31\
J. Matthew DeLesDernier,
Deputy Secretary.
[FR Doc. 2022-20948 Filed 9-27-22; 8:45 am]
BILLING CODE 8011-01-P