[Federal Register Volume 88, Number 53 (Monday, March 20, 2023)]
[Notices]
[Pages 16704-16708]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05539]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-97138; File No. SR-CboeBZX-2023-016]


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

March 14, 2023.
    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 February 28, 2023, Cboe BZX Exchange, Inc. (``Exchange'' or ``BZX'') 
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 BZX Exchange, Inc. (the ``Exchange'' or ``BZX Options'') 
proposes 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/bzx/), 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.

[[Page 16705]]

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 Fee Schedule to modify its 
market data fees for BZX Options Top.\3\ Particularly, the Exchange 
proposes to modify the Professional and Non-Professional User Fees, 
modify the Enterprise Fee for BXZ Options Top and make other 
clarifying, non-substantive changes.\4\
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    \3\ BZX Options Top is an uncompressed data feed that offers top 
of book quotations and execution information based on options orders 
entered into the System. Uncompressed data is disseminated ``as is'' 
in the native format by the Exchange, with no compression.
    \4\ The Exchange initially filed the proposed fee changes on 
January 3, 2023 (SR-CboeBZX-2023-001). On February 28, 2023, the 
Exchange withdrew that filing and submitted this proposal.
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    The Exchange first proposes to reduce the rates for Professional 
and Non-Professional User fees for BZX Options Top. The Exchange 
currently charges Internal Distributors and External Distributors that 
redistribute any of the BZX Options Data Feeds different fees for their 
Professional Users \5\ and Non-Professional Users.\6\ The Exchange 
currently assesses a monthly fee for Professional Users of $30.00 per 
User and a monthly fee of $1.00 per Non-Professional User.\7\ One User 
fee allows access to the BZX Options Top Feed and the BZX Options Depth 
Feed.\8\ The Exchange proposes to reduce the rates for the User fees 
for BZX Options Top. Particularly, the Exchange proposes to reduce the 
monthly (i) Professional User fee from $30 per user to $5 per user and 
(ii) Non-Professional User fee from $1.00 per user to $0.10 per user. 
The Exchange also proposes to start charging separate User fees for BZX 
Options Top and BZX Options Depth Feed. The Exchange therefore proposes 
to eliminate the language under the BZX Options Top table and BZX 
Options Depth Feed table that states one User fee allows access to the 
BZX Options Top Feed and the BZX Options Depth Feed.\9\
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    \5\ A Professional User of an Exchange Market Data product is 
any User other than a a Non-Professional User. The Exchange proposes 
to amend the definition of ``Professional User'' in the Fee Schedule 
to further clarify that a Professional User is a natural person 
recipient of an Exchange Data product who is not a Non-Professional 
User.
    \6\ A ``Non-Professional User'' of an Exchange Market Data 
product is a natural person or qualifying trust that uses Data only 
for personal purposes and not for any commercial purpose and, for a 
natural person who works in the United States, is not: (i) 
registered or qualified in any capacity with the Securities and 
Exchange Commission, the Commodities Futures Trading Commission, any 
state securities agency, any securities exchange or association, or 
any commodities or futures contract market or association; (ii) 
engaged as an ``investment adviser'' as that term is defined in 
Section 202(a)(11) of the Investment Advisors Act of 1940 (whether 
or not registered or qualified under that Act); or (iii) employed by 
a bank or other organization exempt from registration under federal 
or state securities laws to perform functions that would require 
registration or qualification if such functions were performed for 
an organization not so exempt; or, for a natural person who works 
outside of the United States, does not perform the same functions as 
would disqualify such person as a Non-Professional User if he or she 
worked in the United States.
    \7\ Distributors that receive BZX Options Data are required to 
count every Professional User and Non-Professional User to which 
they provide the data feed(s).
    \8\ BZX Options Depth is an uncompressed data feed that offers 
depth of book quotations and execution information based on options 
orders entered into the System.
    \9\ The Exchange is not proposing any changes to the current 
User Fee amounts for BZX Options Depth Feed at this time.
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    The Exchange next proposes to increase the current monthly 
Enterprise Fee. The Enterprise Fee permits a recipient firm (i.e., a 
Distributor) to purchase a monthly (and optional) Enterprise license to 
receive the BZX Options Top Feed for distribution to an unlimited 
number of Professional and Non-Professional Users.\10\ The Enterprise 
Fee is an alternative to Professional and Non-Professional User fees 
and permits a Distributor to pay a flat fee for unlimited number of 
Professional and Non-Professional Users. Like User fees, it is also 
assessed in addition to the Distribution Fee.\11\ Currently, the 
Exchange assesses an Enterprise Fee of $3,500 per month. The Exchange 
proposes to increase the Enterprise Fee to $20,000 per month. For 
example, if a Distributor distributes BZX Options Top to 15,000 
Professional Users who each receive BZX Options Top at $5.00 per month 
(as proposed), then that Distributor will pay $75,000 per month in 
Professional Users fees. Under the proposed Enterprise Fee, it will pay 
a flat fee of $20,000 for an unlimited number of Professional and Non-
Professional Users. A Distributor must pay a separate Enterprise Fee 
for each entity that controls the display of BZX Options Top if it 
wishes for such User to be covered by the Enterprise Fee rather than by 
per User fees.\12\ A Distributor that pays the Enterprise Fee will not 
have to report its number of such Users on a monthly basis. However, 
every six months, it must provide the Exchange with a count of the 
total number of Professional and Non-Professional Users of BZX Options 
Top.\13\
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    \10\ The Exchange proposes to amend the description relating to 
the Enterprise Fees under the BZX Options Top and Depth fee tables 
to clarify that Distributors are the market participant that would 
be purchasing the monthly Enterprise license for purposes of 
distribution to Professional and Non-Professional Users.
    \11\ The Exchange also proposes to clarify in the descriptions 
relating to the Enterprise Fees that (i) it is an alternative to 
``Professional and Non-Professional'' User fees and (ii) is in 
addition to the Distribution Fee.
    \12\ For example, if a Distributor that distributes BZX Options 
Top to Retail Brokerage Firm A and Retail Brokerage Firm B and 
wishes to have the Users under each firm covered by an Enterprise 
license, the Distributor would be subject to two Enterprise Fees.
    \13\ See Cboe Global Markets North American Data Policies.
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    The Exchange lastly proposes to add references to ``Depth'' in the 
description of the Distribution Fees and Enterprise Fee under the BZX 
Options Depth Feed table to clarify which data feed such fees currently 
applies to, thereby alleviating potential confusion. The Exchange also 
proposes to replace references to ``Recipient firm'' with 
``Distributors'' to more accurately reflect the type of market 
participants the fees are applicable to, thereby alleviating potential 
confusion. Lastly, the Exchange proposes to modify the definition of 
Professional User under the definitions section of the Market Data Fees 
section to clarify that a Professional ``User'' is any natural person 
recipient of an Exchange Market Data product who is not a Non-
Professional User. The proposed modification also aligns the definition 
with that of the definition used by the Exchange's affiliates Cboe 
Exchange, Inc. and Cboe C2 Exchange, Inc.\14\
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    \14\ See Cboe Data Services, LLC Fees Schedule and Cboe C2 
Options Fees Schedule.
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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.\15\ Specifically, the 
Exchange believes the proposed rule change is consistent with the 
Section 6(b)(5) \16\ 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

[[Page 16706]]

Section 6(b)(4) of the Act,\17\ 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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    \15\ 15 U.S.C. 78f(b).
    \16\ 15 U.S.C. 78f(b)(5).
    \17\ 15 U.S.C. 78f(b)(4).
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    The Exchange first notes that it operates in a highly competitive 
environment. Indeed, there are currently 16 registered options 
exchanges that trade options. Based on publicly available information, 
no single options exchange has more than 17% of the market share.\18\ 
The Exchange believes top-of-book quotation and transaction data is 
highly competitive as national securities exchanges compete vigorously 
with each other to provide efficient, reliable, and low-cost data to a 
wide range of investors and market participants. Indeed, there are 
several competing products offered by other national securities 
exchanges today, not counting products offered by the Exchange's 
affiliates, and each of the Exchange's affiliated U.S. options 
exchanges also offers similar top-of-book data.\19\ Each of those 
exchanges offer top-of-book quotation and last sale information based 
on their own quotation and trading activity that is substantially 
similar to the information provided by the Exchange through the BZX 
Options Top Feed. Further, the quote and last sale data contained in 
the BZX Options Top Feed is identical to the data sent to OPRA for 
redistribution to the public.\20\ Accordingly, Exchange top-of-book 
data is widely available today from a number of different sources.
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    \18\ See Cboe Global Markets U.S. Options Market Month-to-Date 
Volume Summary (February 24, 2023), available at https://markets.cboe.com/us/options/market_statistics/.
    \19\ See e.g., NYSE Arca Options Proprietary Market Data Fees 
Schedule, MIAX Options Exchange, Fee Schedule, Section 6 (Market 
Data Fees), Nasdaq PHLX Options 7 Pricing Schedule, Section 10 
(Proprietary Data Feed Fees) and Cboe Data Services, LLC Fees 
Schedule.
    \20\ The Exchange notes that it makes available the top-of-book 
and last sale data that is included in the BZX Options Top Data Feed 
no earlier than the time at which the Exchange sends that data to 
OPRA.
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    Moreover, the BZX Options Top is distributed and purchased on a 
voluntary basis, in that neither the Exchange nor market data 
distributors are required by any rule or regulation to make this data 
available. Accordingly, Distributors and Users can discontinue use at 
any time and for any reason, including due to an assessment of the 
reasonableness of fees charged. As described above, market participants 
have a wide variety of alternative market data products from which to 
choose, such as similar proprietary data products offered by other 
exchanges and consolidated data. Further, the Exchange is not required 
to make any proprietary data products available or to offer any 
specific pricing alternatives to any customers. Moreover, persons 
(including broker-dealers) who subscribe to any exchange proprietary 
data feed must also have equivalent access to consolidated Options 
Information \21\ from OPRA for the same classes or series of options 
that are included in the proprietary data feed, and proprietary data 
feeds cannot be used to meet that particular requirement.\22\ As such, 
all proprietary data feeds are optional.
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    \21\ ``Consolidated Options Information'' means consolidated 
Last Sale Reports combined with either consolidated Quotation 
Information or the BBO furnished by OPRA. Access to consolidated 
Options Information is deemed ``equivalent'' if both kinds of 
information are equally accessible on the same terminal or work 
station. See Limited Liability Company Agreement of Options Price 
Reporting Authority, LLC (``OPRA Plan''), Section 5.2(c)(iii). The 
Exchange notes that this requirement under the OPRA Plan is also 
reiterated under the Cboe Global Markets Global Data Agreement and 
Cboe Global Markets North American Data Policies, which subscribers 
to any exchange proprietary product must sign and are subject to, 
respectively. Additionally, the Exchange's Data Order Form (used for 
requesting the Exchange's market data products) requires 
confirmation that the requesting market participant receives data 
from OPRA.
    \22\ Id.
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    The Commission has repeatedly expressed its preference for 
competition over regulatory intervention in determining prices, 
products, and services in the securities markets. Particularly, 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.'' \23\ Making 
similar data products available to market participants fosters 
competition in the marketplace, and constrains the ability of exchanges 
to charge supracompetitive fees. In the event that a market participant 
views one exchange's data product as more or less attractive than the 
competition they can and do switch between similar products. The 
proposed fees are a result of the competitive environment, as the 
Exchange seeks to adopt fees to attract purchasers of BZX Options Top 
Data.
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    \23\ See Securities Exchange Act Release No. 51808 (June 9, 
2005), 70 FR 37496, 37499 (June 29, 2005) (``Regulation NMS Adopting 
Release'').
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    The Exchange believes the proposed changes to reduce the rates of 
the current Professional and Non-Professional User fees are reasonable 
as Distributors will be subject to lower BZX Options Top User fees. 
Additionally, the User fees continue to be in line with and/or lower 
than User fees assessed by other exchanges for similar data.\24\
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    \24\ See e.g., Nasdaq PHLX Options 7 Pricing Schedule, Section 
10 (Proprietary Data Feed Fees), which provides for a fee of $40 per 
month to professional users and $1.00 per month to non-professional 
users to cover the usage of PHLX Options (TOPO) Data, TOPO Plus 
Orders, PHLX Orders and PHLX Depth Data feeds. See also NYSE 
American Options Proprietary Market Data Fees schedule, which 
provides for a fee of $50 per month to professional users and $1.00 
per month to non-professional users of American Options Top Data, 
American Options Deep and American Options Complex products. By 
comparison, the total combined Professional User fee for the 
Exchange's market data products is still lower at $35 per 
Professional User (i.e., $5 per Professional Users of BZX Options 
Top, as proposed, and $30 per Professional User of BZX Options 
Depth). The Exchange's combined Non-Professional User Fee at $1.10 
per Non-Professional User (i.e., $0.10 per Non-Professional User of 
BZX Options Top, as proposed, and $1 per Non-Professional User of 
BZX Options Depth) is still in line with, and not a significant 
departure from, PHLX's and NYSE American's aforementioned Non-
Professional User fees.
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    The Exchange believes that the proposed fees are equitable and not 
unfairly discriminatory because they will be charged uniformly to 
recipient firms and Users. The Exchange also believes continuing to 
offer BZX Options Top Data to Non-Professional Users at a lower cost 
than Professional Users results in greater equity among data 
recipients, as Professional Users are categorized as such based on 
their employment and participation in financial markets, and thus, are 
compensated to participate in the markets. Although Non-Professional 
Users too can receive significant financial benefits through their 
participation in the markets, the Exchange believes it is reasonable to 
charge more to those Users who are more directly engaged in the 
markets.
    The Exchange next notes it is not required to charge a single User 
fee to cover all its available data products, but none-the-less has not 
charged separate User Fees for both BZX Options Top and BZX Options 
Depth since BZX Options Top was adopted in March 2018.\25\ However, the 
Exchange no longer wishes to continue to have a single fee. The 
Exchange believes the proposed change is reasonable, equitable and not 
unfairly discriminatory as the Top and Book Depth Data Feeds are purely 
optional. Only those Distributors that deem the products to be of 
sufficient overall value and usefulness would purchase them for 
purposes of distribution to Users.

[[Page 16707]]

Further, Distributors are not required to distribute, and Users are not 
required to receive, any one particular data product and indeed may 
choose to receive none, one, or several of the Exchange's market data 
products. Indeed, less than 25% of the Exchange's market data 
subscriptions is for BZX Options Top. Additionally, the Exchange is not 
required to provide any fee waiver to Distributors of BZX Options Top. 
The Exchange believes the proposed change is equitable and not unfairly 
discriminatory as it will apply uniformly to Distributors.
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    \25\ See Securities Exchange Act Release No. 82874 (March 14, 
2018), 83 FR 12210 (March 20, 2018) (SR-CboeBZX-2018-017).
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    The proposed increased Enterprise Fee for BZX Options Top Feed is 
equitable and reasonable as the proposed fee could still result in a 
fee reduction for Distributors with a large number of Professional and 
Non-Professional Users. If a Distributor has a smaller number of 
Professional Users of BZX Options Top, then it may continue using the 
per User structure and benefit from the proposed per BZX Options Top 
User Fee reductions. By reducing prices Distributors with a large 
number of Professional and Non-Professional Users, the Exchange 
believes that more firms may choose to receive and to distribute BZX 
Options Top Data, thereby expanding the distribution of this market 
data for the benefit of investors. The Exchange notes that currently no 
Distributors have purchased an Enterprise license. The Exchange 
believes however, that the proposed lower User fees for BZX Options Top 
may incentivize additional External Distributors to distribute BZX 
Options Top an enlist additional Users. As noted, as a Distributor's 
User base grows, it may make sense for a Distributor to purchase the 
alternative Enterprise license to cap its fees. In connection with this 
potential increase in Users, the Exchange believes it is therefore also 
reasonable to increase the Enterprise Fee. That said, as described 
above, the Enterprise Fee is entirely optional. A firm that does not 
have a sufficient number of Users to benefit from purchase of the 
license need not do so.
    The Exchange further believes that the Enterprise Fee, even as 
amended, is reasonable because it simplifies reporting for certain 
recipients that have large numbers of Professional and Non-Professional 
Users. Firms that pay the proposed Enterprise Fee do have to report the 
number of Users on a monthly basis as they currently do, but rather 
only have to count authorized users every six months, which is a 
significant reduction in administrative burden.
    The Exchange lastly believes the proposed non-substantive 
clarifying changes will alleviate potential confusion, thereby removing 
impediments to and perfecting the mechanism of a free and open market 
and a national market system, and, in general, protecting investors and 
the public interest.

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

    The Exchange does not believe that the proposed rule change would 
result in any burden on competition that is not necessary or 
appropriate in furtherance of the purposes of the Act. The Exchange 
operates in a highly competitive environment, and its ability to price 
top-of-book data is constrained by competition among exchanges that 
offer similar data products to their customers. Top-of-book data is 
broadly disseminated by competing U.S. options exchanges and through 
OPRA. There are therefore a number of alternative products available to 
market participants and investors, including products offered by 
certain competing exchanges, as well as OPRA. In this competitive 
environment potential Distributors are free to choose which competing 
product to purchase to satisfy their need for market information. 
Often, the choice comes down to price, as market data customers look to 
purchase cheaper data products, and quality, as market participants 
seek to purchase data that represents significant market liquidity.
    The Exchange believes that the proposed fees do not put any market 
participants at a relative disadvantage compared to other market 
participants. As discussed, the proposed fees would apply to all 
similarly situated Distributors of BZX Options Top on an equal and non-
discriminatory basis. The Exchange believes the differentiated fees for 
Professional and Non-Professional Users of BZX Options Top is 
appropriate given Professional Users are categorized as such based on 
their employment and participation in financial markets, and thus, are 
compensated to participate in the markets. Non-Professional Users too 
can receive significant financial benefits through their participation 
in the markets, however the Exchange believes it is reasonable to 
charge more for those Users who are more directly engaged in the 
markets. The Exchange therefore believes that the proposed fee neither 
favors nor penalizes one or more categories of market participants in a 
manner that would impose an undue burden on competition.
    The Exchange believes that the proposed fees do not impose a burden 
on competition or on other SROs that is not necessary or appropriate in 
furtherance of the purposes of the Act. In particular, market 
participants are not forced to subscribe to BZX Options Top, or any of 
the Exchange's data feeds, as described above. Also as described above, 
there are numerous substitute products offered by other national 
securities exchanges, as well as OPRA. Because market data customers 
can find suitable substitute feeds, an exchange that overprices its 
market data products stands a high risk that users may substitute 
another product. These competitive pressures ensure that no one 
exchange's market data fees can impose an undue burden on competition, 
and the Exchange's proposed fees do not do so here.

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 \26\ and paragraph (f) of Rule 19b-4 \27\ 
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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    \26\ 15 U.S.C. 78s(b)(3)(A).
    \27\ 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

[[Page 16708]]

     Send an email to [email protected]. Please include 
File Number SR-CboeBZX-2023-016 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-CboeBZX-2023-016. 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-CboeBZX-2023-016 and should be submitted 
on or before April 10, 2023.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\28\
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    \28\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-05539 Filed 3-17-23; 8:45 am]
BILLING CODE 8011-01-P