[Federal Register Volume 88, Number 152 (Wednesday, August 9, 2023)]
[Notices]
[Pages 53937-53941]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16988]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-98051; File No. SR-EMERALD-2023-13]


Self-Regulatory Organizations; MIAX Emerald, LLC; Suspension of 
and Order Instituting Proceedings To Determine Whether To Approve or 
Disapprove Proposed Rule Change To Increase Fees for the ToM Market 
Data Product and Establish Fees for the cToM Market Data Product

August 3, 2023.

I. Introduction

    On June 7, 2023, MIAX Emerald, LLC (``MIAX Emerald'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission''), pursuant to section 19(b)(1) of the Securities 
Exchange Act of 1934 (``Act''),\1\ and Rule 19b-4 thereunder,\2\ a 
proposed rule change (File Number SR-EMERALD-2023-13) to increase fees 
for the MIAX Emerald Top of Market (``ToM'') market data product and 
establish fees for the MIAX Emerald Complex Top of Market (``cToM'') 
market data product. The proposed rule change was immediately effective 
upon filing with the Commission pursuant to section 19(b)(3)(A) of the 
Act.\3\ The proposed rule change was published for comment in the 
Federal Register on June 26, 2023.\4\ Pursuant to section 19(b)(3)(C) 
of

[[Page 53938]]

the Act,\5\ the Commission is hereby: (1) temporarily suspending the 
proposed rule change; and (2) instituting proceedings to determine 
whether to approve or disapprove the proposed rule change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 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).
    \4\ See Securities Exchange Act Release No. 97767 (June 20, 
2023), 88 FR 41442 (``Notice'').
    \5\ 15 U.S.C. 78s(b)(3)(C).
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II. Background and Description of the Proposed Rule Change

    The Exchange proposes to increase fees for the ToM market data 
product and establish fees for the cToM market data product.\6\ 
According to the Exchange, the ToM feed provides subscribers with top 
of book quotations based on options orders and quotes entered into the 
System \7\ and resting on the Exchange's Simple Order Book \8\ as well 
as administrative messages.\9\ The cToM feed provides subscribers with 
the same information as TOM as it relates to the Strategy Book \10\ 
(i.e., best bid and offer for a complex strategy, with aggregate size, 
based on displayable orders in the complex strategy on the Exchange), 
plus additional information specific to complex orders (i.e., 
identification of the complex strategies currently trading on the 
Exchange, complex strategy last sale information, and the status of 
securities underlying the complex strategy).\11\
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    \6\ The Exchange initially filed the proposed fee change on 
December 28, 2022, with an effective date of January 1, 2023. See 
Securities Exchange Act Release No. 96625 (January 10, 2023), 88 FR 
2688 (January 17, 2023) (SR-EMERALD-2022-37). That filing was 
withdrawn by the Exchange and the Exchange filed new proposed fee 
changes with additional justification (SR-EMERALD-2023-04) on 
February 23, 2023. See Securities Exchange Act Release No. 97078 
(March 8, 2023), 88 FR 15813 (March 14, 2023). The Exchange 
subsequently withdrew that filing and replaced it with SR-EMERALD-
2023-10 on April 11, 2023. See Securities Exchange Act Release No. 
97326 (April 19, 2023), 88 FR 25043 (April 25, 2023). The Exchange 
subsequently withdrew that filing and replaced it with the instant 
filing to provide additional information and a revised justification 
for the proposal, which is discussed herein. See Notice, supra note 
4, at 41442.
    \7\ The term ``System'' means the automated trading system used 
by the Exchange for the trading of Securities. See Exchange Rule 
100.
    \8\ The term ``Simple Order Book'' means ``the Exchange's 
regular electronic book of orders and quotes.'' See Exchange Rule 
518(a)(15).
    \9\ See Notice, supra note 4, at 41443.
    \10\ The ``Strategy Book'' is each Exchange's electronic book of 
complex orders and complex quotes. See Exchange Rule 518(a)(17).
    \11\ See Notice, supra note 4, at 41443. The Exchange states 
that cToM is a distinct market data product from ToM. The Exchange 
also states that ToM subscribers are not required to subscribe to 
cToM, and that cToM subscribers are not required to subscribe to 
ToM. See id. at 41443-44.
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    The Exchange proposes to increase the fee for Internal Distributors 
\12\ from $1,250 per month to $2,000 per month and External 
Distributors \13\ from $1,750 per month to $3,000 per month for the ToM 
data feed.\14\ The Exchange also proposes to assess a fee on Internal 
Distributors of $2,000 per month and External Distributors of $3,000 
per month for the cToM feed.\15\ The Exchange will assess the increased 
ToM and new cToM fees on Internal and External Distributors in each 
month the Distributor is credentialed to use ToM or cToM, and will 
reduce such fees for new Distributors for the first month during which 
they subscribe to ToM or cToM based on the number of trading days that 
have been held during the month prior to the date on which that 
subscriber has been credentialed to use ToM or cToM.\16\
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    \12\ A ``Distributor'' of MIAX Emerald data is any entity that 
receives a feed or file of data either directly from MIAX Emerald or 
indirectly through another entity and then distributes it either 
internally (within that entity) or externally (outside that entity). 
See Fee Schedule, Section 6(a). All members or non-members that 
determine to receive any market data feed from the Exchange, or its 
affiliates, must first execute, among other things, the MIAX 
Exchange Group Exchange Data Agreement (``Exchange Data 
Agreement''). See Notice, supra note 4, at 41451. Pursuant to the 
Exchange Data Agreement, ``Internal Distributors'' are restricted to 
the ``internal use'' of any market data they receive, meaning they 
may only distribute the Exchange's market data to their officers and 
employees and their affiliates. See id.
    \13\ ``External Distributors'' may distribute the Exchange's 
market data to persons who are not their officers, employees, or 
affiliates, and may charge their own fees for the distribution of 
such market data. See id.
    \14\ See Notice, supra note 4, at 41443.
    \15\ See id. at 41444.
    \16\ New cToM Distributors will be assessed a pro-rata 
percentage of the fees described above, which is the percentage of 
the number of trading days remaining in the affected calendar month 
as of the date on which they have been credentialed to use cToM, 
divided by the total number of trading days in the affected calendar 
month. See id.
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III. Suspension of the Proposed Rule Changes

    Pursuant to section 19(b)(3)(C) of the Act,\17\ 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,\18\ 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. The Commission believes a temporary suspension of the proposed 
rule changes is necessary and appropriate to allow for additional 
analysis of the proposed rule changes' consistency with the Act and the 
rules thereunder.
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    \17\ 15 U.S.C. 78s(b)(3)(C).
    \18\ 15 U.S.C. 78s(b)(1).
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    In support of the proposal, the Exchange states its belief that the 
proposed fees overall are fair and reasonable as a form of ``cost 
recovery plus the possibility of a reasonable return'' for the 
Exchange's aggregate costs of offering the ToM and cToM data feeds.\19\ 
Specifically, the Exchange states the fees are based on a ``cost-plus 
model'' used to determine a reasonable fee structure that is informed 
by the Exchange's understanding of different use of products by 
different types of participants.\20\ According to the Exchange, 
employing a methodology that is the ``result of an extensive review and 
analysis,'' it estimates the total projected annual cost of providing 
the ToM and cToM data feeds to be $665,296.\21\ To arrive at these 
figures, the Exchange states that it undertook a thorough internal 
analysis of nearly every expense in the Exchange's general expense 
ledger to determine whether each such expense related to the provision 
of ToM and cToM data feeds, and, if such expense did so relate, what 
portion (or percentage) of such expense supported the provision of ToM 
and cToM data feeds.\22\ The Exchange states that it determined the 
total cost for the Exchange and its affiliated markets for each cost 
driver \23\ through a company-wide this process that included 
discussions with senior management, Exchange department heads, and the 
Finance Team.\24\ The Exchange further

[[Page 53939]]

states that it determined what portion of the cost allocated to the 
Exchange pursuant to this methodology is to be allocated to each core 
service, including the appropriate allocation to market data.\25\ The 
Exchange states that through this allocation methodology, the Exchange 
``applied an estimated allocation of each cost driver to each core 
service'' and ``[e]ach of the [resulting] cost allocations is unique to 
the Exchange and represents a percentage of overall cost that was 
allocation to the Exchange pursuant to the initial allocation.'' \26\
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    \19\ See id. 41450.
    \20\ See id. at 41450. In addition, the Exchange states that the 
proposed monthly cToM fees for Internal and External Distributors 
are identical to the fees that the Exchange proposes to charge for 
ToM. See id. at 41444. The Exchange also states that cToM was 
provided free of charge for the past four years, since the cToM 
market data product was established on the Exchange, the Exchange 
absorbed all costs associated with compiling and disseminating cToM 
during that time, and the Exchange now proposes to establish fees 
for cToM to recoup its ongoing costs going forward. See id. at 
41443.
    \21\ See id. at 41446. The Exchange states that the Cost 
Analysis is based on the Exchange's 2023 fiscal year of operations 
and projections. See id. at 41449. The Exchange has calculated the 
annual cost for producing ToM to subscribers to be $317,753, and 
$347,543 for cToM. See id. at 41443.
    \22\ See id. at 41446.
    \23\ The Exchange defines ``cost drivers'' within the filing as 
the costs necessary to deliver each of the core services, see infra 
note 25, including infrastructure, software, human resources (i.e., 
personnel), and certain general and administrative expenses. See 
Notice supra note 4, at 41445.
    \24\ See id. at 41445. The Exchange states that because the 
Exchange's parent company currently owns and operates four separate 
and distinct marketplaces, the Exchange's parent company determines 
the actual cost for each marketplace, which results in different 
allocations and amounts across exchanges for the same cost drivers. 
See id. According to the Exchange, its allocation methodology 
ensures that no portion of any cost would be allocated twice or 
double-counted between the Exchange and its affiliated markets. See 
id.
    \25\ See id. at 41446. The Exchange describes ``core services'' 
as services provided by the Exchange, including transactions, market 
data, membership services, physical connectivity, and ports (which 
provides order entry, cancellation and modification functionality, 
risk functionality, ability to receive drop copies, and other 
functionality). See id.
    \26\ Id.
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    The Exchange states that the $665,296 aggregate annual costs for 
providing the ToM and cToM data feeds is the sum of to the following 
individual line-item costs: (1) Human Resources at $354,553; (2) 
Network Infrastructure (fiber connectivity) at $9,428; (3) Data Center 
at $20,630; (4) Hardware and Software Maintenance and Licenses at 
$22,202; (5) Depreciation at $21,167; and (6) Allocated Shared Expenses 
at $237,316.\27\ The Exchange represents that it estimates that the 
proposed fees will result in an annual revenue of approximately 
$804,000, which is a potential profit margin of 17% over the cost of 
providing ToM and cToM market data feeds.\28\
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    \27\ See id. at 41446-47.
    \28\ See id. at 41446, 41448.
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    The Exchange states its belief that a 17% rate of return is 
reasonable because it allows the Exchange to ``recoup all of its 
expenses for providing the ToM and cToM data products'' and that any 
additional revenue would represent no more than what the Exchange 
believes to be a reasonable rate of return.\29\ In addition, the 
Exchange states its belief that the proposed fees are reasonable 
because they are generally less than the fees charged by competing 
options exchanges for comparable market data products.\30\
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    \29\ Id. at 41450. The Exchange also states that an 
approximately 17% mark-up is fair and reasonable after taking into 
account the costs related to creating, generating and disseminating 
the ToM and cToM data feeds and the fact that the Exchange will need 
to fund future expenditures. Id. at 41448.
    \30\ Id. at 41450.
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    In further support of the proposal, the Exchange states its belief 
that the fees are reasonable, fair, and equitable, and not unfairly 
discriminatory, because they are designed to align fees with services 
provided, are allocated fairly and equitably among the various 
categories of users of the feeds with any differences among categories 
of users being justified and appropriate, and will apply uniformly to 
all data recipients that choose to subscribe to the ToM and cToM data 
feeds.\31\ Moreover, the Exchange asserts that it is reasonable, 
equitable, and not unfairly discriminatory to assess Internal 
Distributors fees that are lower than the fees assessed for External 
Distributors for subscriptions to the ToM and cToM data feeds because 
Internal Distributors have limited, restricted usage rights to the 
market data, as compared to External Distributors, which have more 
expansive usage rights, including rights to commercialize such market 
data.\32\
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    \31\ See id.
    \32\ See id. at 41451. In addition, the Exchange argues that it 
utilizes more resources to support External Distributors as compared 
to Internal Distributors, as External Distributors have reporting 
and monitoring obligations that Internal Distributors do not have, 
thus requiring additional time and effort of the Exchange's staff. 
See id.
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    Finally, the Exchange asserts that the proposed fees would not 
cause any unnecessary or inappropriate burden on inter-market 
competition because other exchanges already have similar market data 
fees and they are free to adopt comparable fee structures subject to 
the Commission's rule filing process.\33\ Furthermore, the Exchange 
asserts that the allowing the Exchange, or any new market entrant, to 
waive fees for a period of time to allow it to become established, such 
as the Exchange did with cToM, will encourage market entry and thus 
ultimately promote competition.\34\ The Exchange also asserts that the 
proposed rule change would not cause any unnecessary or inappropriate 
burden on intra-market competition because the proposed fees are 
associated with the usage of the data feed by each market participant 
based on whether the market participant internally and externally 
distributes the Exchange data.\35\
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    \33\ See id. at 41452.
    \34\ See id.
    \35\ See id.
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    To date, the Commission has not received any comment letters on the 
revised justifications for the increase in ToM market data fees or the 
establishment of the cToM market data fees.
    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.\36\ 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.'' \37\
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    \36\ 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'').
    \37\ See id.
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    Section 6 of the Act, including sections 6(b)(4), (5), and (8), 
require 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; \38\ (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; \39\ 
and (3) not impose any burden on competition not necessary or 
appropriate in furtherance of the purposes of the Act.\40\
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    \38\ 15 U.S.C. 78f(b)(4).
    \39\ 15 U.S.C. 78f(b)(5).
    \40\ 15 U.S.C. 78f(b)(8).
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    In temporarily suspending the Exchange's proposed rule change, the 
Commission intends to further consider whether the proposal to increase 
fees for the ToM market data feeds and establish fees for the cToM 
market data feeds are consistent with the statutory requirements 
applicable to a national securities exchange under the Act. In 
particular, 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.\41\
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    \41\ 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.\42\
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    \42\ 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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[[Page 53940]]

IV. Proceedings To Determine Whether To Approve or Disapprove the 
Proposed Rule Changes

    In addition to temporarily suspending the proposal, the Commission 
also hereby institutes proceedings pursuant to sections 19(b)(3)(C) 
\43\ and 19(b)(2)(B)of the Act \44\ to determine whether the Exchange's 
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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    \43\ 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.
    \44\ 15 U.S.C. 78s(b)(2)(B).
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    Pursuant to section 19(b)(2)(B) of the Act,\45\ the Commission is 
providing notice of the grounds for possible disapproval under 
consideration:
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    \45\ Id. 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 proposed 
fees are 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''; \46\
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    \46\ 15 U.S.C. 78f(b)(4).
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     Whether the Exchange has demonstrated how the proposed 
fees are consistent with section 6(b)(5) of the Act, which requires, 
among other things, that the rules of a national securities exchange 
not be ``designed to permit unfair discrimination between customers, 
issuers, brokers, or dealers''; \47\ and
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    \47\ 15 U.S.C. 78f(b)(5).
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     Whether the Exchange has demonstrated how the proposed 
fees are 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].'' \48\
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    \48\ 15 U.S.C. 78f(b)(8).
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    As discussed in section III above, the Exchange made various 
arguments in support of their proposal. The Commission believes that 
there are questions as to whether the Exchange has provided sufficient 
information to demonstrate that the proposed fees are consistent with 
the Act and the rules thereunder.
    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.'' \49\ 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,\50\ 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.\51\
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    \49\ 17 CFR 201.700(b)(3).
    \50\ See id.
    \51\ 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 proposed fees are consistent with the Act, and 
specifically, with its requirements that exchange fees be reasonable 
and equitably allocated, not be unfairly discriminatory, and not impose 
any burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act.\52\
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    \52\ 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 August 30, 2023. 
Rebuttal comments should be submitted by September 13, 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.\53\
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    \53\ 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 changes.
    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 (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
file number
    SR-EMERALD-2023-13 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-2023-13. 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 (https://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 
a.m. and 3 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

[[Page 53941]]

withhold entirely from publication submitted material that is obscene 
or subject to copyright protection. All submissions should refer to 
file number SR-EMERALD-2023-13 and should be submitted on or before 
August 30, 2023. Rebuttal comments should be submitted by September 13, 
2023.

VI. Conclusion

    It is therefore ordered, pursuant to section 19(b)(3)(C) of the 
Act,\54\ that File No. SR-EMERALD-2023-13, 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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    \54\ 15 U.S.C. 78s(b)(3)(C).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\55\
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    \55\ 17 CFR 200.30-3(a)(57).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-16988 Filed 8-8-23; 8:45 am]
BILLING CODE 8011-01-P