[Federal Register Volume 88, Number 159 (Friday, August 18, 2023)]
[Notices]
[Pages 56675-56679]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-17760]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-98130; File No. SR-Phlx-2023-36]


Self-Regulatory Organizations; Nasdaq PHLX LLC; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To Amend Options 7, 
Section 4 Regarding Qualified Contingent Cross Rebates

August 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 August 10, 2023, Nasdaq PHLX LLC (``Phlx'' or ``Exchange'') filed 
with the Securities and Exchange Commission (``SEC'' or ``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

    The Exchange proposes to amend Phlx's Pricing Schedule at Options 
7, Section 4, ``Multiply Listed Options Fees (Includes options 
overlying equities, ETFs, ETNs and indexes which are Multiply Listed) 
(Excludes SPY and

[[Page 56676]]

broad-based index options symbols listed within Options 7, Section 
5.A).'' \3\
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    \3\ On August 2, 2023, SR-Phlx-2023-32 was withdrawn and 
replaced with SR-Phlx-2023-33. On August 10, 2023, SR-Phlx-2023-33 
was withdrawn and replaced with the instant filing.
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    The text of the proposed rule change is available on the Exchange's 
website at https://listingcenter.nasdaq.com/rulebook/phlx/rules, at the 
principal office of the Exchange, 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
    Phlx proposes to amend its Pricing Schedule at Options 7, Section 
4, ``Multiply Listed Options Fees (Includes options overlying equities, 
ETFs, ETNs and indexes which are Multiply Listed) (Excludes SPY and 
broad-based index options symbols listed within Options 7, Section 
5.A).'' Specifically, Phlx proposes to amend its Qualified Contingent 
Cross (``QCC'') Rebates in Section A, and remove the expired QCC Growth 
Tier Rebate in Section B of Options 7, Section 4.
    Today, the Exchange assesses a $.20 per contract QCC Transaction 
Fee for a Lead Market Maker,\4\ Market Maker,\5\ Firm \6\ and Broker-
Dealer.\7\ Customers \8\ and Professionals \9\ are not assessed a QCC 
Transaction Fee. QCC Transaction Fees apply to electronic QCC Orders 
\10\ and Floor QCC Orders.\11\
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    \4\ The term ``Lead Market Maker'' applies to transactions for 
the account of a Lead Market Maker (as defined in Options 2, Section 
12(a)). A Lead Market Maker is an Exchange member who is registered 
as an options Lead Market Maker pursuant to Options 2, Section 
12(a). An options Lead Market Maker includes a Remote Lead Market 
Maker which is defined as an options Lead Market Maker in one or 
more classes that does not have a physical presence on an Exchange 
floor and is approved by the Exchange pursuant to Options 2, Section 
11. See Options 7, Section 1(c). The term ``Floor Lead Market 
Maker'' is a member who is registered as an options Lead Market 
Maker pursuant to Options 2, Section 12(a) and has a physical 
presence on the Exchange's trading floor. See Options 8, Section 
2(a)(3).
    \5\ The term ``Market Maker'' is defined in Options 1, Section 
1(b)(28) as a member of the Exchange who is registered as an options 
Market Maker pursuant to Options 2, Section 12(a). A Market Maker 
includes SQTs and RSQTs as well as Floor Market Makers. See Options 
7, Section 1(c). The term ``Floor Market Maker'' is a Market Maker 
who is neither an SQT or an RSQT. A Floor Market Maker may provide a 
quote in open outcry. See Options 8, Section 2(a)(4).
    \6\ The term ``Firm'' applies to any transaction that is 
identified by a member or member organization for clearing in the 
Firm range at The Options Clearing Corporation. See Options 7, 
Section 1(c).
    \7\ The term ``Broker-Dealer'' applies to any transaction which 
is not subject to any of the other transaction fees applicable 
within a particular category. See Options 7, Section 1(c).
    \8\ The term ``Customer'' applies to any transaction that is 
identified by a member or member organization for clearing in the 
Customer range at The Options Clearing Corporation (``OCC'') which 
is not for the account of a broker or dealer or for the account of a 
``Professional'' (as that term is defined in Options 1, Section 
1(b)(45)). See Options 7, Section 1(c).
    \9\ The term ``Professional'' applies to transactions for the 
accounts of Professionals, as defined in Options 1, Section 1(b)(45) 
means any person or entity that (i) is not a broker or dealer in 
securities, and (ii) places more than 390 orders in listed options 
per day on average during a calendar month for its own beneficial 
account(s). See Options 7, Section 1(c).
    \10\ Electronic QCC Orders are described in Options 3, Section 
12.
    \11\ Floor QCC Orders are described in Options 8, Section 30(e).
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Part A: QCC Rebates
    Today, in Part A of Options 7, Section 4, the Exchange describes 
several QCC Rebates. Today, the Exchange pays a QCC Rebate of $0.12 per 
contract on electronic QCC Orders, as defined in Options 3, Section 12, 
and Floor QCC Orders, as defined in Options 8, Section 30(e), when a 
QCC Order is comprised of a Customer or Professional order on one side 
and a Lead Market Maker, Market Maker, Broker-Dealer, or Firm order on 
the other side. Today, the Exchange also pays a rebate of $0.17 per 
contract in the event that a member or member organization executes 
greater than 1,000,000 qualifying QCC contracts in a given month. 
Additionally, today, the Exchange pays a QCC Rebate of $0.14 per 
contract on electronic QCC Orders, as defined in Options 3, Section 12, 
and Floor QCC Orders, as defined in Options 8, Section 30(e), when a 
QCC Order is comprised of a Lead Market Maker, Market Maker, Broker-
Dealer, or Firm order on one side and a Lead Market Maker, Market 
Maker, Broker-Dealer, or Firm order on the other side. Today, the 
Exchange pays a rebate to $0.19 per contract in the event that a member 
or member organization executes greater than 1,000,000 qualifying QCC 
contracts in a given month.
    Today, these QCC rebates are paid on all qualifying executed 
electronic QCC Orders, as defined in Options 3, Section 12, and Floor 
QCC Orders, as defined in Options 8, Section 30(e), except where the 
transaction is either: (i) Customer-to-Customer; (ii) Customer-to-
Professional; (iii) Professional-to-Professional or (iv) a dividend, 
merger, short stock interest, reversal and conversion, jelly roll, and 
box spread strategy executions (as defined in Options 7, Section 4). 
Further, today, volume resulting from all executed electronic QCC 
Orders and Floor QCC Orders, including Customer-to-Customer, Customer-
to-Professional, and Professional-to-Professional transactions and 
excluding dividend, merger, short stock interest or reversal or 
conversion strategy executions, is aggregated in determining the 
applicable member or member organization qualifying QCC contract volume 
in a given month. Finally, today, members and member organizations are 
entitled to one QCC Rebate in a given month, which would be the greater 
of the QCC Rebate in Section A or the QCC Growth Tier Rebate in Section 
B in a given month, but not both.
Proposal
    At this time, the Exchange proposes to offer two QCC Rebates in 
addition to the current QCC Rebates described above. The Exchange 
proposes to pay a rebate of $0.22 per contract, when a QCC Order is 
comprised of a Customer or Professional order on one side and a Lead 
Market Maker, Market Maker, Broker-Dealer, or Firm order on the other 
side, in the event that a member or member organization executes (1) 
greater than 1,000,000 qualifying QCC contracts in a given month; (2) 
Floor Originated Strategy \12\ Executions in excess of 3,500,000 
contracts in a given month; and (3) at least 40% of the member or 
member organization's QCC executed contracts in that month are 
comprised of a Lead Market Maker, Market Maker, Broker-Dealer, or Firm 
order on one side and Lead Market Maker, Market Maker, Broker-Dealer, 
or Firm order on the other side.
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    \12\ Floor Originated Strategy Executions are defined as a 
dividend, merger, short stock interest, reversal and conversion, 
jelly roll or box spread strategy as described in Options 7, Section 
4. The Exchange proposes to add this defined term in the Pricing 
Schedule at Part A of Options 7, Section 4.
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    Additionally, the Exchange proposes to pay a rebate of $0.27 per 
contract, when a QCC Order is comprised of a Lead Market Maker, Market 
Maker, Broker-Dealer, or Firm order on one side and a Lead Market 
Maker, Market Maker, Broker-Dealer, or Firm order on

[[Page 56677]]

the other side, in the event that a member or member organization 
executes: (1) greater than 1,000,000 qualifying QCC contracts in a 
given month; (2) Floor Originated Strategy Executions in excess of 
3,500,000 contracts in a given month and (3) at least 40% of the member 
or member organization's QCC executed contracts in that month are 
comprised of a Lead Market Maker, Market Maker, Broker-Dealer, or Firm 
order on one side and Lead Market Maker, Market Maker, Broker-Dealer, 
or Firm order on the other side.
    Additionally, the Exchange would continue to pay QCC Rebates on all 
qualifying executed electronic QCC Orders, as defined in Options 3, 
Section 12, and Floor QCC Orders, as defined in Options 8, Section 
30(e), except where the transaction is either: (i) Customer-to-
Customer; (ii) Customer-to-Professional; (iii) Professional-to-
Professional; or (iv) a dividend, merger, short stock interest, 
reversal and conversion, jelly roll, and box spread strategy executions 
(as defined in Options 7, Section 4). Also, the Exchange would continue 
to aggregate volume resulting from all executed electronic QCC Orders 
and Floor QCC Orders, including Customer-to-Customer, Customer-to-
Professional, and Professional-to-Professional transactions and 
excluding dividend, merger, short stock interest, reversal and 
conversion, jelly roll, and box spread strategy executions, in 
determining the applicable member or member organization qualifying QCC 
contract volume in a given month.
    Finally, the Exchange currently only permits member and member 
organizations to receive either the QCC Rebate in Section A or the QCC 
Growth Tier Rebate in Section B in a given month, but not both. The 
Exchange is removing this rule text from the Pricing Schedule because 
the QCC Growth Tier Rebate pricing was only available until July 31, 
2023 as explained further below. The Exchange also proposes to remove 
the Part ``A'' reference as there is no longer a Part B.
    The Exchange believes that the proposed QCC Rebates in Part A will 
encourage Phlx members and member organizations to transact a greater 
number of QCC Orders on the Exchange.
Part B: QCC Growth Tier Rebate
    The Exchange offered a QCC Growth Tier Rebate \13\ to encourage 
Phlx members and member organizations to transact a greater number of 
QCC Orders on Phlx. The QCC Growth Tier Rebate expired on July 31, 
2023. The Exchange proposes to remove the pricing from the Pricing 
Schedule at this time.
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    \13\ The QCC Growth Tier Rebate permitted Phlx members and 
member organizations to qualify for certain rebates by executing a 
certain amount of floor transactions, electronic QCC Orders and 
Floor QCC Orders volume in excess of the member's or member 
organization's QCC transaction volume in January 2023. The Exchange 
also offered an alternative qualification to achieve the QCC Growth 
Tier Rebate by executing transactions in open outcry along with QCC 
volume.
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2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act,\14\ in general, and furthers the objectives of 
Sections 6(b)(4) and 6(b)(5) of the Act,\15\ in particular, in that it 
provides for the equitable allocation of reasonable dues, fees and 
other charges among members and issuers and other persons using any 
facility, and 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) and (5).
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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, while adopting a series of steps to improve the current market 
model, 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.'' \16\
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    \16\ Securities Exchange Act Release No. 51808 (June 9, 2005), 
70 FR 37496, 37499 (June 29, 2005) (``Regulation NMS Adopting 
Release'').
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    Likewise, in NetCoalition v. Securities and Exchange Commission 
\17\ (``NetCoalition'') the D.C. Circuit upheld the Commission's use of 
a market-based approach in evaluating the fairness of market data fees 
against a challenge claiming that Congress mandated a cost-based 
approach.\18\ As the court emphasized, the Commission ``intended in 
Regulation NMS that `market forces, rather than regulatory 
requirements' play a role in determining the market data . . . to be 
made available to investors and at what cost.'' \19\
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    \17\ NetCoalition v. SEC, 615 F.3d 525 (D.C. Cir. 2010).
    \18\ See NetCoalition, at 534-535.
    \19\ Id. at 537.
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    Further, ``[n]o one disputes that competition for order flow is 
`fierce.' . . . As the SEC explained, `[i]n the U.S. national market 
system, buyers and sellers of securities, and the broker-dealers that 
act as their order-routing agents, have a wide range of choices of 
where to route orders for execution'; [and] `no exchange can afford to 
take its market share percentages for granted' because `no exchange 
possesses a monopoly, regulatory or otherwise, in the execution of 
order flow from broker dealers'. . . .'' \20\ Although the court and 
the SEC were discussing the cash equities markets, the Exchange 
believes that these views apply with equal force to the options 
markets.
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    \20\ Id. at 539 (quoting Securities Exchange Act Release No. 
59039 (December 2, 2008), 73 FR 74770, 74782-83 (December 9, 2008) 
(SR-NYSEArca-2006-21)).
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    The Exchange's proposal to offer two new QCC Rebates in Section A 
of Options 7, Section 4,\21\ in addition to the current QCC Rebates, is 
reasonable because the proposed QCC Rebates will encourage Phlx members 
and member organizations to transact a greater number of qualifying QCC 
contracts and Floor Originated Strategy Executions on Phlx. The 
proposal would pay a new rebate of $0.22 per contract, when a QCC Order 
is comprised of a Customer or Professional order on one side and a Lead 
Market Maker, Market Maker, Broker-Dealer, or Firm order on the other 
side, and the proposal would pay a new higher rebate of $0.27 per 
contract, when the QCC Order is comprised of a Lead Market Maker, 
Market Maker, Broker-Dealer, or Firm order on one side and a Lead 
Market Maker, Market Maker, Broker-Dealer, or Firm order on the other 
side. The Exchange believes that the higher rebate of $0.27 per 
contract, when the QCC Order is comprised of a Lead Market Maker, 
Market Maker, Broker-Dealer, or Firm order on one side and a Lead 
Market Maker, Market Maker, Broker-Dealer, or Firm order on the other 
side, is reasonable because the Exchange assesses a QCC Transaction Fee 
of $0.20 per contract on Lead Market Makers, Market Makers, Firms and 
Broker- Dealers and does not assess a QCC Transaction Fee on Customers 
and Professionals. The third qualification,

[[Page 56678]]

which requires that 40% of the QCC executed contracts to have a Lead 
Market Maker, Market Maker, Broker-Dealer, or Firm on each side of the 
transaction, will assist the Exchange in funding the higher $0.27 per 
contract QCC Rebate.
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    \21\ The Exchange proposes to pay a rebate of $0.22 per 
contract, when a QCC Order is comprised of a Customer or 
Professional order on one side and a Lead Market Maker, Market 
Maker, Broker-Dealer, or Firm order on the other side, in the event 
that a member or member organization both executes greater than 
1,000,000 qualifying QCC contracts in a given month and executes 
Floor Originated Strategy Executions in excess of 3,500,000 
contracts in a given month. Additionally, the Exchange proposes to 
pay a $0.27 per contract, when a QCC Order is comprised of a Lead 
Market Maker, Market Maker, Broker-Dealer, or Firm order on one side 
and a Lead Market Maker, Market Maker, Broker-Dealer, or Firm order 
on the other side, in the event that a member or member organization 
both executes greater than 1,000,000 qualifying QCC contracts in a 
given month and executes Floor Originated Strategy Executions in 
excess of 3,500,000 contracts in a given month.
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    The Exchange's proposal to offer two new QCC Rebates in Section A 
of Options 7, Section 4,\22\ in addition to the current QCC Rebates, is 
equitable and not unfairly discriminatory because all members and 
member organizations may qualify for QCC Rebates, provided they 
transact the requisite volume. The Exchange believes that the higher 
rebate of $0.27 per contract, when the QCC Order is comprised of a Lead 
Market Maker, Market Maker, Broker-Dealer, or Firm order on one side 
and a Lead Market Maker, Market Maker, Broker-Dealer, or Firm order on 
the other side, is equitable and not unfairly discriminatory because 
the Exchange assesses a QCC Transaction Fee of $0.20 per contract for 
Lead Market Makers, Market Makers, Firms and Broker-Dealers and does 
not assess a QCC Transaction Fee on Customers and Professionals. The 
proposed rebate of $0.22 per contract, when a QCC Order is comprised of 
a Customer or Professional order on one side and a Lead Market Maker, 
Market Maker, Broker-Dealer, or Firm order on the other side, is lower 
as compared to the $0.27 per contract rebate because Customers and 
Professionals do not pay a QCC Transaction Fee whereas Lead Market 
Makers, Market Makers, Broker-Dealers, and Firms pay a $0.20 per 
contract QCC Transaction Fee.
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    \22\ See supra note 21.
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    The Exchange's proposal to remove the pricing for the QCC Growth 
Tier Rebate in Section B of Options 7, Section 4 as well as the rule 
text concerning receiving either the QCC Rebate in Section A or the QCC 
Growth Tier Rebate in Section B in a given month, but not both, is 
reasonable, equitable and not unfairly discriminatory because as noted 
in the Pricing Schedule, the QCC Growth Tier Rebate pricing was only 
available until July 31, 2023. This pricing is no longer available.

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.
Inter-Market Competition
    The proposal does not impose an undue burden on inter-market 
competition. The Exchange believes its proposal remains competitive 
with other options markets and will offer market participants with 
another choice of where to transact options. The Exchange notes that it 
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, or rebate opportunities available at 
other venues to be more favorable. In such an environment, the Exchange 
must continually adjust its fees to remain competitive with other 
exchanges. Because competitors are free to modify their own fees in 
response, and because market participants may readily adjust their 
order routing practices, the Exchange believes that the degree to which 
fee changes in this market may impose any burden on competition is 
extremely limited.
Intra-Market Competition
    The proposed amendments do not impose an undue burden on intra-
market competition. In terms of intra-market competition, the 
Exchange's proposal to offer two new QCC Rebates in Section A of 
Options 7, Section 4,\23\ in addition to the current QCC Rebates, does 
not impose an undue burden on competition because all members and 
member organizations may qualify for QCC Rebates, provided they 
transact the requisite volume. The Exchange believes that the higher 
rebate of $0.27 per contract, when the QCC Order is comprised of a Lead 
Market Maker, Market Maker, Broker-Dealer, or Firm order on one side 
and a Lead Market Maker, Market Maker, Broker-Dealer, or Firm order on 
the other side, does not impose an undue burden on competition because 
the Exchange assesses a QCC Transaction Fee of $0.20 per contract for 
Lead Market Makers, Market Makers, Firms and Broker-Dealers and does 
not assess a QCC Transaction Fee on Customers and Professionals. The 
proposed rebate of $0.22 per contract, when a QCC Order is comprised of 
a Customer or Professional order on one side and a Lead Market Maker, 
Market Maker, Broker-Dealer, or Firm order on the other side, is lower 
as compared to the $0.27 per contract rebate because Customers and 
Professionals do not pay a QCC Transaction Fee whereas Lead Market 
Makers, Market Makers, Broker-Dealers, and Firms pay a $0.20 per 
contract QCC Transaction Fee.
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    \23\ See supra note 21.
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    The Exchange's proposal to remove the pricing for the QCC Growth 
Tier Rebate in Section B of Options 7, Section 4, as well as the rule 
text concerning receiving either the QCC Rebate in Section A or the QCC 
Growth Tier Rebate in Section B in a given month, but not both, does 
not impose an undue burden on competition because, as noted in the 
Pricing Schedule, the QCC Growth Tier Rebate pricing was only available 
until July 31, 2023. This pricing is no longer available.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    No written comments were either solicited or 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.\24\
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    \24\ 15 U.S.C. 78s(b)(3)(A)(ii).
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    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: (i) 
necessary or appropriate in the public interest; (ii) for the 
protection of investors; or (iii) 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.

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 (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
file number SR-Phlx-2023-36 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-Phlx-2023-36. This file

[[Page 56679]]

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 withhold entirely from publication submitted 
material that is obscene or subject to copyright protection. All 
submissions should refer to file number SR-Phlx-2023-36 and should be 
submitted on or before September 8, 2023.
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    \25\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\25\
Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-17760 Filed 8-17-23; 8:45 am]
BILLING CODE 8011-01-P