[Federal Register Volume 88, Number 90 (Wednesday, May 10, 2023)]
[Notices]
[Pages 30181-30185]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09904]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-97437; File No. SR-CboeBZX-2023-020]


Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; 
Suspension of and Order Instituting Proceedings To Determine Whether To 
Approve or Disapprove Proposed Rule Change To Amend the BZX Equities 
Fee Schedule To Add and Modify Certain Step-Up Tiers, Add a Non-
Displayed Step-Up Tier and Modify Certain Fee Codes

May 4, 2023.

I. Introduction

    On March 6, 2023, Cboe BZX Exchange, Inc. (the ``Exchange'' or 
``EDGX'') filed with the Securities and Exchange Commission 
(``Commission''), pursuant to Section 19(b)(1) of the Securities 
Exchange Act of 1934 (``Exchange Act'' or ``Act''),\1\ and Rule 19b-4 
thereunder,\2\ a proposed rule

[[Page 30182]]

change (File Number SR-CboeBZX-2023-020) to amend the BZX Equities Fee 
Schedule (``Fee Schedule'') to add and modify certain Step-Up Tiers, 
add a Non-Displayed Step-Up Tier and to modify Fee Codes HB, HV and 
HY.\3\ The proposed rule change was immediately effective upon filing 
with the Commission pursuant to Section 19(b)(3)(A) of the Act.\4\ The 
proposed rule change was published for comment in the Federal Register 
on March 16, 2023.\5\ The Commission has received no comment letters on 
the proposed rule change. Under Section 19(b)(3)(C) of the Act,\6\ the 
Commission is hereby: (i) temporarily suspending File Number SR-
CboeBZX-2023-020; and (ii) instituting proceedings to determine whether 
to approve or disapprove File Number SR-CboeBZX-2023-020.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Notice, infra note 5, at 16285.
    \4\ 15 U.S.C. 78s(b)(3)(A). A proposed rule change may take 
effect upon filing with the Commission if it is designated by the 
exchange as ``establishing or changing a due, fee, or other charge 
imposed by the self-regulatory organization on any person, whether 
or not the person is a member of the self-regulatory organization.'' 
15 U.S.C. 78s(b)(3)(A)(ii).
    \5\ See Securities Exchange Act Release No. 97108 (March 10, 
2023), 88 FR 16285 (``Notice''). The Exchange initially filed the 
proposed fee changes on March 1, 2023 (SR-CboeBZX-2023-017). 
However, on March 6, 2023, the Exchange withdrew that filing and 
submitted SR-CboeBZX-2023-020.
    \6\ 15 U.S.C. 78s(b)(3)(C).
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II. Description of the Proposed Rule Change

    The Exchange operates a ``Maker-Taker'' model whereby it pays 
credits to Members \7\ that add liquidity and assesses fees to those 
that remove liquidity.\8\ The Exchange also offers tiered pricing which 
provides Members opportunities to qualify for higher rebates or reduced 
fees where certain volume criteria and thresholds are met.\9\ According 
to the Exchange, tiered pricing provides an incremental incentive for 
Members to strive for higher tier levels, which provides increasingly 
higher benefits or discounts for satisfying increasingly more stringent 
criteria.\10\
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    \7\ See BZX Rule 1.5(n). The term ``Member'' shall mean any 
registered broker or dealer that has been admitted to membership in 
the Exchange. A Member will have the status of a ``member'' of the 
Exchange as that term is defined in Section 3(a)(3) of the Act. 
Membership may be granted to a sole proprietor, partnership, 
corporation, limited liability company or other organization which 
is a registered broker or dealer pursuant to Section 15 of the Act, 
and which has been approved by the Exchange.
    \8\ See Notice, supra note 5, at 16286.
    \9\ Id.
    \10\ Id.
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    The Exchange proposes to amend its Fee Schedule to add and modify 
certain Step-Up Tiers, add a Non-Displayed Step-Up Tier and to modify 
Fee Codes HB, HV and HY, which fee changes became effective on March 6, 
2023.\11\ With respect to the Exchange's Step-Up Tiers, the Exchange 
currently offers Step-Up Tiers (tiers 1 through 3) that provide Members 
an opportunity to receive an enhanced rebate from the standard rebate 
for liquidity adding orders that yield fee codes B, V, and Y where they 
increase their relative liquidity each month over a predetermined 
baseline.\12\ The Exchange now proposes to add a new Tier 1 and 
renumber existing Tiers 1 through 3 (existing Step-Up Tiers 1, 2 and 3 
would be renumbered to Tiers 2, 3 and 4 respectively, and will be 
referred to herein as ``proposed Step-Up Tier'' 2, 3 or 4, as 
applicable).\13\ Specifically, proposed Tier 1 would provide for the 
following:
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    \11\ Id.
    \12\ Id. See also Fee Schedule, Footnotes 2, Step-Up Tiers.
    \13\ Id.
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     Proposed Tier 1 would offer an enhanced rebate of $0.0031 
per share for qualifying orders (i.e., orders yielding fee codes B, V, 
or Y) where (1) Member has a Step-Up ADAV \14\ from January 2023 
>=10,000,000 or Member has a Step-Up Add TCV \15\ from January 2023 
>=0.10%; and (2) Member has an ADV \16\ >=0.60% of the TCV.\17\
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    \14\ ``Step-Up ADAV'' means ADAV in the relevant baseline month 
subtracted from current ADAV. See Notice, supra note 5, at 16286.
    \15\ ``Step-Up Add TCV'' means ADAV as a percentage of TCV in 
the relevant baseline month subtracted from current ADAV as a 
percentage of TCV. ADAV means average daily added volume calculated 
as the number of shares added per day. ADAV is calculated on a 
monthly basis. TCV means total consolidated volume calculated as the 
volume reported by all exchanges and trade reporting facilities to a 
consolidated transaction reporting plan for the month for which the 
fees apply. Id.
    \16\ ``ADV'' means average daily volume calculated as the number 
of shares added or removed, combined, per day. ADV is calculated on 
a monthly basis. Id.
    \17\ ``TCV'' means total consolidated volume calculated as the 
volume reported by all exchanges and trade reporting facilities to a 
consolidated transaction reporting plan for the month for which the 
fees apply. The Exchange excludes from its calculation of TCV volume 
on any day that the Exchange experiences an Exchange System 
Disruption, on any day with a scheduled early market close and the 
Russell Reconstitution Day. See Fee Schedule, Definitions.
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    Proposed Tiers 2 through 4 would have the same criteria and provide 
the same enhanced rebate as existing Tiers 1 through 3, 
respectively.\18\
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    \18\ See Notice, supra note 5, at 16286.
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    The Exchange also proposes to amend footnote 2 to add a Non-
Displayed Step-Up Tier, which will provide Members an opportunity to 
receive an enhanced rebate from the standard rebate for liquidity 
adding non-displayed orders that yield fee codes HB,\19\ HV,\20\ and HY 
\21\ and meet certain required volume-based criteria.\22\ The proposed 
criteria for the Non-Displayed Step-Up Tier is as follows:
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    \19\ Orders yielding Fee Code ``HB'' are non-displayed orders 
adding liquidity to BZX (Tape B). See Fee Schedule, Fee Codes and 
Associated Fees. To reflect eligibility for the Non-Displayed Step-
Up Tier for Fee Code HB, the Exchange added footnote to 2 to Fee 
Code HB.
    \20\ Orders yielding Fee Code ``HV'' are non-displayed orders 
adding liquidity to BZX (Tape A). Id. To reflect eligibility for the 
Non-Displayed Step-Up Tier for Fee Code HV, the Exchange added 
footnote to 2 to Fee Code HV.
    \21\ Orders yielding Fee Code ``HY'' are non-displayed orders 
adding liquidity to BZX (Tape C). Id. To reflect eligibility for the 
Non-Displayed Step-Up Tier for Fee Code HY, the Exchange added 
footnote to 2 to Fee Code HY.
    \22\ See Notice, supra note 5, at 16286.
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     The proposed Non-Displayed Step-Up Tier would offer an 
enhanced rebate of $0.0025 per share for qualifying orders (i.e., 
orders yielding fee codes HB, HV, or HY) where (1) Member has a Step-Up 
ADAV from January 2023 >=10,000,000 or Member has a Step-Up Add TCV 
from January 2023 >=0.10%; and (2) Member has an ADV >=0.60% of the 
TCV.

III. Suspension of the Proposed Rule Change

    Pursuant to Section 19(b)(3)(C) of the Act,\23\ at any time within 
60 days of the date of filing of an immediately effective proposed rule 
change pursuant to Section 19(b)(1) of the Act,\24\ the Commission 
summarily may temporarily suspend the change in the rules of a self-
regulatory organization (``SRO'') 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. As discussed below, the Commission believes a temporary 
suspension of the proposed rule change is necessary and appropriate to 
allow for additional analysis of the proposed rule change's consistency 
with the Act and the rules thereunder.
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    \23\ 15 U.S.C. 78s(b)(3)(C).
    \24\ 15 U.S.C. 78s(b)(1).
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    In support of the proposal, the Exchange argues that is operates in 
a highly competitive market in which market participants can readily 
direct order flow to competing venues if they deem fee levels at a 
particular venue to be excessive or incentives to be insufficient.\25\ 
The Exchange believes that its specific proposal reflects a competitive 
pricing structure designed to incentivize market participants to direct 
their order flow to the Exchange, which the Exchange believes would

[[Page 30183]]

enhance market quality to the benefit of all Members.\26\ The Exchange 
states that the Step-Up Tiers in general are designed to provide 
Members with additional opportunities to receive enhanced rebates by 
increasing their order flow to the Exchange, which further contributes 
to a deeper, more liquid market and provides even more execution 
opportunities for active market participants.\27\ According to the 
Exchange, like other Step-Up Tiers, the proposed Step-Up Tier 1 is 
designed to give members an additional opportunity to receive an 
enhanced rebate for orders meeting the applicable criteria.\28\ 
Furthermore, the Exchange states that the proposed Non-Displayed Step-
Up Tier is designed to increase the Members' provision of liquidity to 
the Exchange, which increases execution opportunities and provides for 
overall enhanced price discovery and price improvement opportunities on 
the Exchange.\29\ The Exchange believes that increased overall order 
flow benefits all Members by contributing towards a robust and well-
balanced market ecosystem.\30\
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    \25\ See Notice, supra note 5, at 16287.
    \26\ Id.
    \27\ See Notice, supra note 5, at 16286.
    \28\ Id.
    \29\ Id.
    \30\ Id.
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    Additionally, the Exchange believes the proposed Step-Up Tier 1 and 
Non-Displayed Step-Up Tier are reasonable as they serve to incentivize 
Members to increase their liquidity-adding, displayed volume (Step-Up 
Tier 1) and liquidity-adding, non-displayed volume (Non-Displayed Step-
Up Tier), which benefit all market participants by incentivizing 
continuous liquidity and thus, deeper, more liquid markets as well as 
increased execution opportunities.\31\ The Exchange states that the 
proposed incentives to provide displayed liquidity are designed to 
incentivize continuous displayed liquidity, which signals other market 
participants to take the additional execution opportunities provided by 
such liquidity, while the proposed incentives to provide non-displayed 
liquidity will further contribute to a deeper, more liquid market and 
provide even more execution opportunities for active market 
participants at improved prices.\32\ According to the Exchange, this 
overall increase in activity deepens the Exchange's liquidity pool, 
offers additional cost savings, supports the quality of price 
discovery, promotes market transparency, and improves market quality 
for all investors.\33\
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    \31\ See Notice, supra note 5, at 16287.
    \32\ Id.
    \33\ Id.
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    The Exchange also believes the proposed Step-Up Tier 1 and Non-
Displayed Step-Up Tier represent an equitable allocation of rebates and 
are not unfairly discriminatory because all Members are eligible for 
those tiers and would have the opportunity to meet a tier's criteria 
and would receive the proposed rebate if such criteria is met.\34\ 
Further, according to the Exchange, the proposed rebates are 
commensurate with the proposed criteria.\35\ The Exchange states that 
the rebates reasonably reflect the difficulty in achieving the 
applicable criteria as proposed.\36\ The Exchange also states that the 
proposed tier/rebate will not adversely impact any Member's ability to 
qualify for other reduced fee or enhanced rebate tiers.\37\ Should a 
Member not meet the proposed criteria under the modified tier, the 
Member will merely not receive that corresponding enhanced rebate.\38\
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    \34\ Id.
    \35\ Id.
    \36\ Id.
    \37\ Id.
    \38\ Id.
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    Additionally, the Exchange states that relative volume-based 
incentives and discounts have been widely adopted by exchanges, 
including the Exchange, and are reasonable, equitable and non-
discriminatory because they are open to all Members on an equal basis 
and provide additional benefits or discounts that are reasonably 
related to (i) the value to an exchange's market quality and (ii) 
associated higher levels of market activity, such as higher levels of 
liquidity provision and/or growth patterns.\39\ According to the 
Exchange, competing equity exchanges offer similar tiered pricing 
structures, including schedules of rebates and fees that apply based 
upon members achieving certain volume and/or growth thresholds, as well 
as assess similar fees or rebates for similar types of orders, to that 
of the Exchange.\40\
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    \39\ Id.
    \40\ Id.
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    When exchanges file their proposed rule changes with the 
Commission, including fee filings like the Exchange's present proposal, 
they are required to provide a statement supporting the proposal's 
basis under the Act and the rules and regulations thereunder applicable 
to the exchange.\41\ The instructions to Form 19b-4, on which exchanges 
file their proposed rule changes, specify that such statement ``should 
be sufficiently detailed and specific to support a finding that the 
proposed rule change is consistent with [those] requirements.'' \42\
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    \41\ See 17 CFR 240.19b-4 (Item 3 entitled ``Self-Regulatory 
Organization's Statement of the Purpose of, and Statutory Basis for, 
the Proposed Rule Change'').
    \42\ Id.
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    Section 6 of the Act, including Sections 6(b)(4), (5), and (8), 
requires the rules of an exchange to (1) provide for the equitable 
allocation of reasonable fees among members, issuers, and other persons 
using the exchange's facilities; \43\ (2) perfect the mechanism of a 
free and open market and a national market system, protect investors 
and the public interest, and not be designed to permit unfair 
discrimination between customers, issuers, brokers, or dealers; \44\ 
and (3) not impose any burden on competition not necessary or 
appropriate in furtherance of the purposes of the Act.\45\
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    \43\ 15 U.S.C. 78f(b)(4).
    \44\ 15 U.S.C. 78f(b)(5).
    \45\ 15 U.S.C. 78f(b)(8).
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    In temporarily suspending the Exchange's fee change, the Commission 
intends to further consider whether the proposal, in particular the 
proposed modifications to add and modify certain Step-Up Tiers and add 
a Non-Displayed Step-Up Tier, is consistent with the statutory 
requirements applicable to a national securities exchange under the 
Act. The Commission will consider whether the proposed rule change 
satisfies the standards under the Act and the rules thereunder 
requiring, among other things, that an exchange's rules provide for the 
equitable allocation of reasonable fees among members, issuers, and 
other persons using its facilities; not permit unfair discrimination 
between customers, issuers, brokers or dealers; and do not impose any 
burden on competition not necessary or appropriate in furtherance of 
the purposes of the Act.\46\
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    \46\ See 15 U.S.C. 78f(b)(4), (5), and (8), respectively.
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    Therefore, the Commission finds that it is appropriate in the 
public interest, for the protection of investors, and otherwise in 
furtherance of the purposes of the Act, to temporarily suspend the 
proposed rule change.\47\
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    \47\ For purposes of temporarily suspending the proposed rule 
change, the Commission has considered the proposed rule's impact on 
efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
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IV. Proceedings To Determine Whether To Approve or Disapprove the 
Proposed Rule Change

    In addition to temporarily suspending the proposal, the Commission 
also hereby institutes proceedings pursuant

[[Page 30184]]

to Sections 19(b)(3)(C) \48\ and 19(b)(2)(B) of the Act \49\ to 
determine whether the proposed rule change should be approved or 
disapproved. Institution of proceedings does not indicate that the 
Commission has reached any conclusions with respect to any of the 
issues involved. Rather, the Commission seeks and encourages interested 
persons to provide additional comment on the proposed rule change to 
inform the Commission's analysis of whether to approve or disapprove 
the proposed rule change.
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    \48\ 15 U.S.C. 78s(b)(3)(C). Once the Commission temporarily 
suspends a proposed rule change, Section 19(b)(3)(C) of the Act 
requires that the Commission institute proceedings under Section 
19(b)(2)(B) to determine whether a proposed rule change should be 
approved or disapproved.
    \49\ 15 U.S.C. 78s(b)(2)(B).
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    Pursuant to Section 19(b)(2)(B) of the Act,\50\ the Commission is 
providing notice of the grounds for possible disapproval under 
consideration:
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    \50\ 15 U.S.C. 78s(b)(2)(B). Section 19(b)(2)(B) of the Act also 
provides that proceedings to determine whether to disapprove a 
proposed rule change must be concluded within 180 days of the date 
of publication of notice of the filing of the proposed rule change. 
See id. The time for conclusion of the proceedings may be extended 
for up to 60 days if the Commission finds good cause for such 
extension and publishes its reasons for so finding, or if the 
exchange consents to the longer period. See id.
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     Whether the Exchange has demonstrated how the proposal is 
consistent with Section 6(b)(4) of the Act, which requires that the 
rules of a national securities exchange ``provide for the equitable 
allocation of reasonable dues, fees, and other charges among its 
members and issuers and other persons using its facilities;'' \51\
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    \51\ 15 U.S.C. 78f(b)(4).
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     Whether the Exchange has demonstrated how the proposal is 
consistent with Section 6(b)(5) of the Act, which requires, among other 
things, that the rules of a national securities exchange be ``designed 
to perfect the operation of a free and open market and a national 
market system'' and ``protect investors and the public interest,'' and 
not be ``designed to permit unfair discrimination between customers, 
issuers, brokers, or dealers;'' \52\ and
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    \52\ 15 U.S.C. 78f(b)(5).
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     Whether the Exchange has demonstrated how the proposal is 
consistent with Section 6(b)(8) of the Act, which requires that the 
rules of a national securities exchange ``not impose any burden on 
competition not necessary or appropriate in furtherance of the purposes 
of [the Act].'' \53\
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    \53\ 15 U.S.C. 78f(b)(8).
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    As discussed in Section III above, the Exchange argues that all 
Members will be eligible for the proposed new tiers and have the 
opportunity to meet the tiers' criteria. The Exchange further states 
the proposal provides a reasonable means to incentivize Members to 
continue to send certain types of order flow to the Exchange. Because 
the proposed Step-Up Tier and Non-Displayed Step-Up Tier are designed 
to provide more favorable pricing to Members with volume increases over 
specified baseline months, questions are raised as to whether the 
Exchange has satisfied its burden to demonstrate that such tiers will, 
as the Exchange argues, continue to provide a reasonable means to 
incentivize Members to send certain types of order flow to the 
Exchange, in a manner consistent with the Act and the rules thereunder 
when the specified baseline months remain the same and may continue 
indefinitely.
    Under the Commission's Rules of Practice, the ``burden to 
demonstrate that a proposed rule change is consistent with the [Act] 
and the rules and regulations issued thereunder . . . is on the [SRO] 
that proposed the rule change.'' \54\ The description of a proposed 
rule change, its purpose and operation, its effect, and a legal 
analysis of its consistency with applicable requirements must all be 
sufficiently detailed and specific to support an affirmative Commission 
finding,\55\ and any failure of an SRO to provide this information may 
result in the Commission not having a sufficient basis to make an 
affirmative finding that a proposed rule change is consistent with the 
Act and the applicable rules and regulations.\56\
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    \54\ 17 CFR 201.700(b)(3).
    \55\ See id.
    \56\ See id.
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    The Commission is instituting proceedings to allow for additional 
consideration and comment on the issues raised herein, including as to 
whether the proposal is consistent with the Act, specifically, with its 
requirements that the rules of a national securities exchange provide 
for the equitable allocation of reasonable dues, fees, and other 
charges among its members, issuers, and other persons using its 
facilities; are designed to perfect the operation of a free and open 
market and a national market system, and to protect investors and the 
public interest; are not designed to permit unfair discrimination 
between customers, issuers, brokers, or dealers; and do not impose any 
burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act; \57\ as well as any other 
provision of the Act, or the rules and regulations thereunder.
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    \57\ See 15 U.S.C. 78f(b)(4), (5), and (8).
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V. Commission's Solicitation of Comments

    The Commission requests written views, data, and arguments with 
respect to the concerns identified above as well as any other relevant 
concerns. Such comments should be submitted by May 31, 2023. Rebuttal 
comments should be submitted by June 14, 2023. Although there do not 
appear to be any issues relevant to approval or disapproval that would 
be facilitated by an oral presentation of views, data, and arguments, 
the Commission will consider, pursuant to Rule 19b-4, any request for 
an opportunity to make an oral presentation.\58\
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    \58\ 15 U.S.C. 78s(b)(2). Section 19(b)(2) of the Act grants the 
Commission flexibility to determine what type of proceeding--either 
oral or notice and opportunity for written comments--is appropriate 
for consideration of a particular proposal by an SRO. See Securities 
Acts Amendments of 1975, Report of the Senate Committee on Banking, 
Housing and Urban Affairs to Accompany S. 249, S. Rep. No. 75, 94th 
Cong., 1st Sess. 30 (1975).
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    The Commission asks that commenters address the sufficiency and 
merit of the Exchange's statements in support of the proposal, in 
addition to any other comments they may wish to submit about the 
proposed rule change.
    Interested persons are invited to submit written data, views, and 
arguments concerning the proposed rule change, including whether the 
proposal 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-CboeBZX-2023-020 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-2023-020. 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

[[Page 30185]]

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. Do not include 
personal identifiable information in submissions; you should submit 
only information that you wish to make available publicly. We may 
redact in part or withhold entirely from publication submitted material 
that is obscene or subject to copyright protection. All submissions 
should refer to File Number SR-CboeBZX-2023-020 and should be submitted 
on or before May 31, 2023. Rebuttal comments should be submitted by 
June 14, 2023.

VI. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(3)(C) of the 
Act,\59\ that File Number SR-CboeBZX-2023-020 be and hereby is, 
temporarily suspended. In addition, the Commission is instituting 
proceedings to determine whether the proposed rule change should be 
approved or disapproved.
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    \59\ 15 U.S.C. 78s(b)(3)(C).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\60\
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    \60\ 17 CFR 200.30-3(a)(57) and (58).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-09904 Filed 5-9-23; 8:45 am]
BILLING CODE 8011-01-P