[Federal Register Volume 88, Number 172 (Thursday, September 7, 2023)]
[Notices]
[Pages 61645-61647]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-19233]



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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-98259; File No. SR-EMERALD-2023-21]


Self-Regulatory Organizations; MIAX Emerald, LLC; Notice of 
Filing and Immediate Effectiveness of a Proposed Rule Change To Amend 
the Exchange's Options Fee Schedule To Extend the Date for Which Ad Hoc 
Requests for Historical Intra-Day Open-Close Report Data May Be 
Requested

August 31, 2023.
    Pursuant to the provisions of Section 19(b)(1) of the Securities 
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice 
is hereby given that on August 18, 2023, MIAX Emerald, LLC (``MIAX 
Emerald'' or ``Exchange'') filed with the Securities and Exchange 
Commission (``Commission'') a proposed rule change as described in 
Items I and II 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 the Exchange's Options Fee Schedule 
(``Fee Schedule'') to extend the date for which ad hoc requests for 
historical intra-day Open-Close Report data may be requested.
    The text of the proposed rule change is available on the Exchange's 
website at https://www.miaxglobal.com/markets/us-options/emerald-options/rule-filings, at MIAX Emerald's principal office, and at the 
Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item IV below. The Exchange has prepared summaries, set forth in 
sections A, B, and C below, of the most significant aspects of such 
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange adopted a new data product for options known as the 
Open-Close Report,\3\ which the Exchange made available for purchase to 
Exchange Members \4\ and non-Members on June 1, 2021.\5\ The Open-Close 
Report is described under Exchange Rule 531(d)(1).
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    \3\ See Securities Exchange Act Release No. 91963 (May 21, 
2021), 86 FR 28662 (May 27, 2021) (SR-EMERALD-2021-18) (Notice of 
Filing and Immediate Effectiveness of a Proposed Rule Change To 
Adopt a New Historical Market Data Product To Be Known as the Open-
Close Report).
    \4\ The term ``Member'' means an individual or organization 
approved to exercise the trading rights associated with a Trading 
Permit. Members are deemed ``members'' under the Exchange Act. See 
Exchange Rule 100.
    \5\ See Securities Exchange Act Release No. 92138 (June 9, 
2021), 86 FR 31769 (June 15, 2021) (SR-EMERALD-2021-20) (Notice of 
Filing and Immediate Effectiveness of a Proposed Rule Change To 
Amend Its Fee Schedule To Adopt Fees for the Open-Close Report).
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    By way of background, the Exchange offers two versions of the Open-
Close Report, an end-of-day summary and intra-day report, both of which 
can be requested on an ad-hoc basis. The Open-Close Report data is 
proprietary Exchange trade data and does not include trade data from 
any other exchange. It is also a historical data product and not a 
real-time data feed. The Exchange notes that Open-Close Report data is 
not necessary for trading and subscribing to the Open-Close Report is 
completely optional.
    The Exchange charges Members and Non-Members who request on an ad 
hoc basis historical intra-day Open-Close Report data $1,000 per 
request per month. The Fee Schedule currently specifies that an ad hoc 
request may be for any number of months beginning with June 2021, the 
month in which the Exchange first made the Open-Close Report available. 
The Exchange recently completed an initiative to now make available 
historical intra-day Open-Close Report data beginning with March 2019, 
the first full month in which the Exchange began operations.\6\
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    \6\ See the Exchange's press release ``MIAX Emerald Successfully 
Launches Trading Operations'' available at https://www.prnewswire.com/news-releases/miax-emerald-successfully-launches-trading-operations-300805959.html.
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    The Exchange now proposes to amend the Fee Schedule to reflect that 
ad hoc requests for historical intra-day Open-Close Report data may be 
made for data dating back to March 2019. The Exchange does not propose 
to amend the fee for ad hoc request for historical intra-day Open-Close 
Report data.
Implementation Date
    The Exchange intends to implement the proposed changes immediately.
2. Statutory Basis
    The Exchange believes that its proposal to permit ad-hoc requests 
for historical intra-day Open-Close Report data to be made for data 
going back to March 2019 and to correspondingly amend its Fee Schedule 
is consistent with Section 6(b) of the Act \7\ in general, and furthers 
the objectives of Section 6(b)(4) of the Act \8\ in particular, in that 
it is an equitable allocation of reasonable fees and other charges 
among its Members and issuers and other persons using its facilities. 
The Exchange also believes that its proposal to permit ad-hoc requests 
for historical intra-day Open-Close Report data to be made for data 
going back to March 2019 and to correspondingly amend its Fee Schedule 
is consistent with Section 6(b)(5) of the Act \9\ in that it is 
designed to promote just and equitable principles of trade, remove 
impediments to and perfect the mechanism of a free and open market and 
a national market system, and it is not designed to permit unfair 
discrimination among customers, brokers, or dealers.
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    \7\ 15 U.S.C. 78f(b).
    \8\ 15 U.S.C. 78f(b)(4).
    \9\ 15 U.S.C. 78f(b)(5).
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    The Exchange believes its proposal is reasonable and not unfairly 
discriminatory because the Exchange now has over four years of 
historical intra-day Open-Close Report data to provide to market 
participants who request ad-hoc historical intra-day Open-Close Report 
data since the Exchange's first full month of operations in March 2019. 
The Exchange notes that competing exchanges offer similar historical 
data products,\10\ which

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provide insight into trading on those markets. The Exchange believes 
that its proposal to expand this particular range of available 
historical data will allow the Exchange to compete better with the 
other exchanges that offer similar historical intra-day reports. 
Although each of these similar Open-Close Report data products provide 
only proprietary trade data and not trade data from competing 
exchanges, it is possible investors are still able to gauge overall 
investor sentiment across different option series based on open and 
closing interest on any one exchange.\11\ Similarly, market 
participants may be able to analyze option trade and volume data, and 
create and test trading models and analytical strategies using only 
Open-Close data, including historical intra-day data, relating to 
trading activity on one or more of the competing markets that provide 
similar data products. As such, if a market participant views another 
exchange's historical intra-day Open-Close data as more attractive than 
the Exchange's historical intra-day Open-Close Report data, then such 
market participant can choose not to request such data from the 
Exchange and instead purchase another exchange's historical intra-day 
Open-Close data, which offers similar data points, albeit based on that 
other market's trading activity.
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    \10\ BOX Options Market LLC (``BOX'') offers a market data 
report for Intraday Ad-hoc Requests (historical data) beginning with 
January 2018. BOX charges $1,000 per request per month. See the BOX 
fee schedule, available at https://boxexchange.com/assets/BOX-Fee-Schedule-as-of-July-3-2023.pdf. Nasdaq ISE, LLC (``ISE'') offers the 
market data report for Nasdaq ISE Intraday Ad-hoc Requests 
(historical data) beginning with May 2005. See https://www.nasdaq.com/solutions/nasdaq-open-close-trade-profiles%3A-ise-and-gemx. ISE charges $1,000 per request per month. See ISE fee 
schedule, available at https://listingcenter.nasdaq.com/rulebook/ise/rules/ise-options-7. Nasdaq PHLX LLC (``PHLX'') offers 
historical data for its intra-day report starting in January 2009 
for purchase on an ad-hoc basis. See https://www.nasdaqtrader.com/micro.aspx?id=photo. PHXL charges $1,000 per month or $12,000 for 
the most recent 36 months to firms currently subscribed to the on-
going subscription. See PHLX fee schedule, available at https://listingcenter.nasdaq.com/rulebook/phlx/rules/Phlx%20Options%207.
    \11\ The Exchange notes that its Open-Close Report data product 
does not include data on any exclusive, singly-listed option series.
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    The Exchange also believes its proposal is reasonable as it would 
further enhance the usefulness of its Open-Close Report data, which is 
designed to aid investors by providing insight into trading on the 
Exchange. Providing market data, such as the historical intra-day Open-
Close Report, is also a means by which exchanges compete to attract 
business. Purchasers that receive the expanded historical intra-day 
Open-Close Report data as a result of this proposal, may use such data 
to evaluate the usefulness of the Exchange's Open-Close Report and 
decide, based on that data, whether to purchase the Open-Close Report. 
To the extent that the Exchange is successful in selling the ad-hoc 
historical intra-day Open-Close Report, it may earn trading revenues 
and further enhance the value of its data products.
    The Exchange currently charges $1,000 per request per month for ad 
hoc requests for its historical intra-day Open-Close Report data, which 
is in line with, or lower than, the per request amounts charged by 
competing exchanges for their similar historical data products.\12\ The 
Exchange does not propose to amend the amount of the fee for ad hoc 
requests for historical intra-day Open-Close Report data.
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    \12\ See supra note 10.
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    In adopting Regulation NMS, the Commission granted self-regulatory 
organizations (``SROs'') and broker-dealers increased authority and 
flexibility to offer new and unique market data to the public. It was 
believed that this authority would expand the amount of data available 
to consumers, and also spur innovation and competition for the 
provision of market data. Particularly, the expanded historical intra-
day Open-Close Report data further broadens the availability of U.S. 
option market data to investors consistent with the principles of 
Regulation NMS.
    The Exchange believes that its proposal to permit ad-hoc requests 
for historical intra-day Open-Close Report data to be made for data 
going back to March 2019 is consistent with Section 6(b)(5) of the Act 
\13\ in that it is designed to promote just and equitable principles of 
trade, remove impediments to and perfect the mechanism of a free and 
open market and a national market system, and it is not designed to 
permit unfair discrimination among customers, brokers, or dealers. In 
particular, the proposed extended historical data range would remove 
impediments to and perfect the mechanism of a free and open market and 
benefit Members and market participants by providing access to an 
expanded range of historical intra-day Open-Close Report data, which as 
noted above, may aid investors by providing insight into trading on the 
Exchange, as well as research and studies of the options industry as a 
whole.
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    \13\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
result in any burden on competition that is not necessary or 
appropriate in furtherance of the purposes of the Act. Rather, the 
Exchange believes that the proposal will promote competition by 
permitting the Exchange to sell, for months not previously available, a 
historic data product similar to those offered by other competitor 
options exchanges.\14\ The Exchange made the expanded historical intra-
day Open-Close Report data available in order to keep pace with changes 
in the industry and evolving customer needs, and believes that 
providing such data to market participants that make requests for it 
will continue to contribute to robust competition among national 
securities exchanges.
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    \14\ See supra note 10.
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    The Exchange also does not believe the proposal would cause any 
unnecessary or inappropriate burden on intermarket competition as other 
exchanges are free to expand their own comparable data product and 
compete with the Exchange's offering. The Exchange does not believe the 
proposed rule change would cause any unnecessary or inappropriate 
burden on intramarket competition because the expanded date range will 
be available to both Members and non-Members equally.

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

    Written comments were neither solicited nor received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Because the foregoing proposed rule change does not: (i) 
significantly affect the protection of investors or the public 
interest; (ii) impose any significant burden on competition; and (iii) 
become operative for 30 days from the date on which it was filed, or 
such shorter time as the Commission may designate, it has become 
effective pursuant to Section 19(b)(3)(A) of the Act \15\ and Rule 19b-
4(f)(6) thereunder.\16\
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    \15\ 15 U.S.C. 78s(b)(3)(A).
    \16\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii) 
requires a self-regulatory organization to give the Commission 
written notice of its intent to file the proposed rule change, along 
with a brief description and text of the proposed rule change, at 
least five business days prior to the date of filing of the proposed 
rule change, or such shorter time as designated by the Commission. 
The Exchange has satisfied this requirement.
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    A proposed rule change filed under Rule 19b-4(f)(6) \17\ normally 
does not become operative prior to 30 days after the date of the 
filing. However, Rule 19b-4(f)(6)(iii) \18\ permits the Commission to 
designate a shorter time if such action is consistent with the 
protection of investors and the public interest. The Exchange has 
requested that the Commission to waive the 30-day operative delay so 
that the proposal may become operative immediately upon filing. The 
Exchange states that the proposal expands the data available under an 
existing product, the intra-day Open-Close Report, and that this 
product is designed to compete with

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products that other exchanges offer.\19\ The Exchange further states 
that it does not propose to amend the fee for ad hoc requests for 
historical intra-day Open-Close Report data. For these reasons, and 
because the proposal raises no novel legal or regulatory issues, the 
Commission believes that waiver of the 30-day operative delay is 
consistent with the protection of investors and the public interest. 
Accordingly, the Commission hereby waives the 30-day operative delay 
and designates the proposed rule change as operative upon filing.\20\
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    \17\ 17 CFR 240.19b-4(f)(6).
    \18\ 17 CFR 240.19b-4(f)(6)(iii).
    \19\ See supra note 10.
    \20\ For purposes only of waiving the 30-day operative delay, 
the Commission has also considered the proposed rule's impact on 
efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
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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 necessary or 
appropriate in the public interest, for the protection of investors, or 
otherwise in furtherance of the purposes of the Act. If the Commission 
takes such action, the Commission shall institute proceedings to 
determine whether the proposed rule change 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-EMERALD-2023-21 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-2023-21. 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 withhold entirely from publication submitted 
material that is obscene or subject to copyright protection. All 
submissions should refer to file number SR-EMERALD-2023-21 and should 
be submitted on or before September 28, 2023.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\21\
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    \21\ 17 CFR 200.30-3(a)(12), (59).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-19233 Filed 9-6-23; 8:45 am]
BILLING CODE 8011-01-P