[Federal Register Volume 88, Number 177 (Thursday, September 14, 2023)]
[Notices]
[Pages 63176-63180]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-19846]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-98339; File No. SR-MEMX-2023-18]


Self-Regulatory Organizations; MEMX LLC; Notice of Filing and 
Immediate Effectiveness of a Proposed Rule Change To Amend Rule 19.5

September 8, 2023.
    Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\

[[Page 63177]]

notice is hereby given that on September 6, 2023, MEMX LLC (``MEMX'' or 
the ``Exchange'') filed with the Securities and Exchange Commission 
(the ``Commission'') the proposed rule change as described in Items I 
and II below, which Items have been prepared by the Exchange. The 
Exchange filed the proposal as a ``non-controversial'' proposed rule 
change pursuant to section 19(b)(3)(A)(iii) of the Act \3\ and Rule 
19b-4(f)(6) thereunder.\4\ 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.
    \3\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \4\ 17 CFR 240.19b-4(f)(6).
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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 MEMX Rule 19.5. The text of the 
proposed rule change is provided in Exhibit 5.

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 purpose of the proposed rule change is to amend Rule 19.5, 
Interpretation and Policy .05. Specifically, the Exchange proposes to 
amend Rule 19.5, Interpretation and Policy .05(f) to account for 
conflicts between different provisions within the Short Term Option 
Series Rules, extend current $0.50 strike price intervals in equity 
options to short term options with strike prices less than $100, and 
make other clarifying changes.
    In August 2022, the Commission approved the Exchange's adoption of 
rules to govern the trading of options on the Exchange by MEMX 
Options,\5\ which will be a facility of the Exchange. The rules adopted 
were substantially similar to those of other currently operating 
options exchanges, in particular, Cboe BZX Exchange, Inc. (``BZX 
Options''). Since that time, BZX Options and other options exchanges, 
including Cboe EDGX Exchange, Inc. (``EDGX Options''), have modified 
certain of those rules \6\ and as such, the Exchange wishes to propose 
the same modifications in order to conform to those rules at the time 
trading begins on MEMX Options.\7\
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    \5\ See Securities Exchange Act Release No. 95445 (August 9, 
2022), 87 FR 49884 (August 12, 2022) (SR-MEMX-2022-010).
    \6\ See Securities Exchange Act Release Nos. 95406 (August 1, 
2022), 87 FR 48051 (August 5, 2022) (SR-CboeBZX-2022-042); 95407 
(August 1, 2022), 87 FR 48055 (August 5, 2022) (SR-CboeEDGX-2022-
034).
    \7\ Currently, the Exchange plans to launch MEMX Options in 
September 2023.
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    Specifically, the Exchange's current Rule 19.5, Interpretation and 
Policy .05 limits the intervals between strikes in equity options 
listed as part of the Short Term Option Series Program, excluding 
Exchange-Traded Fund Shares and ETNs, that have an expiration date more 
than twenty-one days from the listing date (``Strike Interval 
Proposal''). The Strike Interval Proposal paragraph (f) includes a 
table that specifies the applicable strike intervals that would 
supersede subparagraph (e) \8\ for Short Term Option Series in equity 
options, excluding options on exchange-traded fund shares and on 
exchange-traded notes, which have an expiration more than 21 days from 
the listing date. The Strike Interval Proposal was designed to reduce 
the density of strike intervals that would be listed in later weeks, 
within the Short Term Option Series Program, by utilizing limitations 
for intervals between strikes that have an expiration date more than 21 
days from the listing date.
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    \8\ Rule 19.5, Interpretation and Policy .05(e) states if a 
class does not trade in $1 strike price intervals, the strike price 
interval for Short Term Option Series may be (i) $0.50 or greater 
where the strike price is less than $75; (ii) $1.00 or greater where 
the strike price is between $75 and $150; or (iii) $2.50 or greater 
for strike prices greater than $150.
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    The Exchange proposes to amend Rule 19.5, Interpretation and Policy 
.05 to clarify the current rule text and amend the application of the 
table to account for potential conflicts within the Short Term Option 
Series Rules. Currently, Rule 19.5, Interpretation and Policy .05(f) 
provides that notwithstanding subparagraph (e),\9\ when Short Term 
Option Series in equity options (excluding options on ETFs and ETNs) 
have an expiration more than 21 days from the listing date, the strike 
interval for each option class will be based on the following table, 
and also states: ``to the extent there is conflict between applying 
subparagraph (e) above and the below table, the greater interval would 
apply.'' The existing table is as follows:
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    \9\ The proposed rule change makes a nonsubstantive change to 
correct the term ``subparagraph'' to ``paragraph'' in the 
introductory paragraph of Rule 19.5, Interpretation and Policy 
.05(f) as well as subparagraph (f)(3).

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                                                                                                           Share price 1
                                                                         -------------------------------------------------------------------------------
                   Tier                         Average daily volume                        $25 to less     $75 to less    $150 to less       $500 or
                                                                          Less  than $25     than $75        than $150       than $500        greater
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1.........................................  Greater than 5,000..........           $0.50           $1.00           $1.00           $5.00           $5.00
2.........................................  Greater than 1,000 to 5,000.            1.00            1.00            1.00            5.00           10.00
3.........................................  0 to 1,000..................            2.50            5.00            5.00            5.00           10.00
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\1\ The Share Price is the closing price on the primary market on the last day of the calendar quarter. In the event of a corporate action, the Share
  Price of the surviving company is utilized. The Average Daily Volume is the total number of option contracts traded in a given security for the
  applicable calendar quarter divided by the number of trading days in the applicable calendar quarter. Beginning on the second trading day in the first
  month of each calendar quarter, the Average Daily Volume is calculated by utilizing data from the prior calendar quarter based on Customer-cleared
  volume at OCC. For options listed on the first trading day of a given calendar quarter, the Average Daily Volume is calculated using the quarter prior
  to the last trading calendar quarter. See Rule 19.5, Interpretation and Policy .05(f)(1) and (2).

    First, the Exchange proposes to add the phrase ``which specifies 
the applicable interval for listing'' to the end of the first sentence 
of paragraph (f). The table within that paragraph provides for the 
listing of intervals based on certain parameters (average daily volume 
and share price). The Exchange proposes to add the phrase ``which 
specifies the applicable interval for listing'' to clarify that the 
only permitted intervals are as specified in

[[Page 63178]]

the table within paragraph (f), as proposed to be amended.
    Second, the Exchange proposes to delete the final sentence of 
paragraph (f) which indicates that in the event of a conflict between 
applying subparagraph (e) and the below table, the greater interval 
would apply, and amend the table in paragraph (f) to address situations 
in which there is a conflict between applying the intervals in 
paragraph (e) and the table in paragraph (f). Today, there are 
instances where a conflict is presented as between the application of 
the table within paragraph (f) and the rule text within paragraph (e) 
with respect to the correct interval. To address these potential 
conflicts, the Exchange included the final sentence in paragraph (f) 
that indicates to the extent there is a conflict between applying the 
current table within paragraph (f) and the rule text within paragraph 
(e), the greater interval would apply. However, in order to more 
clearly reflect this within the Rules and maintain consistency with 
other exchanges \10\, the Exchange proposes to amend the table in 
paragraph (f) to specify what the greater interval would be, and thus 
the interval the Exchange would apply, in the event of any possible 
conflict between the two rule provisions. While the substance of the 
rule does not change by this proposed modification, the Exchange 
believes that the amended table provides a simpler reference for 
Options Members. Specifically, the proposed rule change amends the 
table as follows:
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    \10\ See supra note 6.

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                                                                                                   Share price
                                                        ------------------------------------------------------------------------------------------------
               Tier                Average daily volume                          $25 to less  than    $75 to less  than    $150 to less       $500 or
                                                            Less  than $25              $75                  $150            than $500        greater
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1................................  Greater than 5,000..  $0.50 for strikes     $1.00 for strikes     $1.00 for strikes             $5.00           $5.00
                                                          less than $100 in     less than $150.       less than $150.
                                                          Short Term Option    $2.50 for strikes     $2.50 for strikes
                                                          Series Program        greater than $150.    greater than $150..
                                                          classes and classes
                                                          that trade in $1
                                                          increments in non-
                                                          Short Term Option
                                                          Series.
                                                         $1.00 for strikes
                                                          between $100 and
                                                          $150 for classes
                                                          that do not
                                                          otherwise trade in
                                                          $1.00 increments in
                                                          non-Short Term
                                                          Option Series.
                                                         $2.50 for strikes
                                                          greater than $150..
2................................  Greater than 1,000    $1.00 for strikes     $1.00 for strikes     $1.00 for strikes              5.00           10.00
                                    to 5,000.             less than $150.       less than $150.       less than $150.
                                                         $2.50 for strikes     $2.50 for strikes     $2.50 for strikes
                                                          greater than $150..   greater than $150.    greater than $150.
3................................  0 to 1,000..........  $2.50...............  $5.00...............  $5.00..............            5.00           10.00
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    Below are some examples to demonstrate the application of the 
proposed table:
    Example 1: Assume a Tier 1 stock that closed on the last day of Q1 
with a quarterly share price higher than $75 but less than $150. 
Therefore, utilizing the current table within paragraph (f), the 
interval would be $1.00 for strikes added during Q2 even for strikes 
above $150. However, paragraph (e) provides that the Exchange may list 
a Short Term Option Series at $2.50 intervals where the strike price is 
above $150. In other words, there is a potential conflict between the 
permitted strike intervals above $150 during Q2. In this example, 
current paragraph (f) would specify a $1.00 interval whereas current 
paragraph (e) would specify a $2.50 interval. Consistent with selecting 
the greater interval (from current paragraph (e)), the permissible 
strike interval in this scenario would be $2.50 as set forth in the 
proposed table. Therefore, during Q2, the following strikes would be 
eligible to list: $152.50 and $157.50. For strikes less than $150, the 
following strikes would be eligible to list during Q2: $149 and $148 
because Short Term Option Series with expiration dates more than 21 
days from the listing date as well as Short Term Option Series with 
expiration dates less than 21 days from the listing date would both be 
eligible to list $1 intervals pursuant to both paragraphs (e) and (f).
    Example 2: Assume a Tier 2 stock that closed on the last day of Q1 
with a quarterly share price less than $25. Therefore, utilizing the 
current table within paragraph (f), the interval would be $1.00 for 
strikes added during Q2 even for strikes above $25. However, paragraph 
(e), as proposed to be amended, provides that the Exchange may list a 
Short Term Option Series at $0.50 intervals where the strike is less 
than $100, at $1.00 intervals where the strike price is between $100 
and $150, and at $2.50 intervals where the strike price is above $150. 
In other words, there is a potential conflict between the permitted 
strike intervals below $100 and above $150 during Q2. In this example, 
current paragraph (f) would specify a $1.00 interval for strikes below 
$100 whereas amended paragraph (e) would specify a $0.50 interval. 
Consistent with selecting the greater interval (from current paragraph 
(f)), the permissible strike interval in this scenario for strikes 
below $100 would be $1.00 as set forth in the proposed table. For 
strikes between $100 and $150, there is no conflict, as both provisions 
would provide $1.00 intervals for those strikes. For strikes above 
$150, current paragraph (f) would specify a $1.00 interval for strikes 
above $150 whereas current paragraph (e) would specify a $2.50 
interval. Consistent with selecting the greater interval (from current 
paragraph (e)), the permissible strike interval in this scenario for 
strikes above $150 would be $2.50 as set forth in the proposed table.
    Example 3: Assume a Tier 3 stock that closed on the last day of Q1 
with a quarterly share price less than $25. Therefore, utilizing the 
current table within paragraph (f), the interval would be $2.50 for all 
strikes added during Q2. However, paragraph (e), as proposed to be 
amended, provides that the Exchange may list a Short Term Option Series 
at $0.50 intervals where the strike price is less than $100, $1.00 
intervals where the strike price is between $100 and $150, and $2.50 
intervals where the strike price is above $150. In other words, there 
is a potential conflict between the permitted strike intervals

[[Page 63179]]

below $150 during Q2 (there is no conflict for strikes above $150, as 
both provisions provide for a $2.50 strike interval). Consistent with 
selecting the greater interval (from current paragraph (f)), the 
permissible strike interval in this scenario for strikes below $150 
would be $2.50 as set forth in the proposed table.\11\
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    \11\ The Exchange made similar corresponding changes to the 
table for tier 1 and tier 2 stocks with prices $25 to less than $75 
and $75 to less than $150, with all potential conflicts between 
current paragraphs (e) and (f) resolved to apply the greater 
interval.
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    Finally, the Exchange proposes to amend Rule 19.5, Interpretation 
and Policy .05(e) to extend $0.50 strike price intervals in equity 
options to short-term options with strike prices less than $100 instead 
of the current $75. This proposed change is intended to conform this 
provision of the Short Term Option Series Program to that of other 
options exchanges.\12\ With this proposed change, for short term 
options in equity option classes that do not trade in $1 strike price 
intervals, the strike price interval for Short Term Option Series may 
be (i) $0.50 or greater where the strike price is less than $100; (ii) 
$1.00 or greater where the strike price is between $100 and $150; or 
(iii) $2.50 or greater for strike prices greater than $150.
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    \12\ See, e.g., EDGX Rule 19.6, Interpretation and Policy 
.05(e).
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with the Securities Exchange Act of 1934 (the ``Act'') and the rules 
and regulations thereunder applicable to the Exchange and, in 
particular, the requirements of section 6(b) of the Act.\13\ 
Specifically, the Exchange believes the proposed rule change is 
consistent with the section 6(b)(5) \14\ requirements that the rules of 
an exchange be designed to prevent fraudulent and manipulative acts and 
practices, to promote just and equitable principles of trade, to foster 
cooperation and coordination with persons engaged in regulating, 
clearing, settling, processing information with respect to, and 
facilitating transactions in securities, to remove impediments to and 
perfect the mechanism of a free and open market and a national market 
system, and, in general, to protect investors and the public interest. 
Additionally, the Exchange believes the proposed rule change is 
consistent with the section 6(b)(5) \15\ requirement that the rules of 
an exchange not be designed to permit unfair discrimination between 
customers, issuers, brokers, or dealers. The Exchange believes the 
Strike Proposal continues to limit the intervals between strikes listed 
in the Short Term Option Series Program that have an expiration date 
more than twenty-one days.
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    \13\ 15 U.S.C. 78f(b).
    \14\ 15 U.S.C. 78f(b)(5).
    \15\ Id.
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    In particular, the Exchange's proposed addition to the first 
sentence of Rule 19.5, Interpretation and Policy .05(f) is consistent 
with the Act because it clarifies that the only permitted intervals are 
as specified in the table within that subparagraph, as amended.
    The Exchange believes this proposed rule change will bring greater 
transparency to the rule. The proposed rule change to delete the final 
sentence of the introductory paragraph and amend the table within Rule 
19.5, Interpretation and Policy .05(f) to address potential conflicts 
between that paragraph and paragraph (e) with respect to the correct 
strike interval is consistent with the Act because it protects 
investors and the public interest by adding transparency to the manner 
in which the Exchange implements its listing rules and removes 
potential uncertainty. The proposed rule text specifies the applicable 
intervals when there is a conflict between the rule text within 
paragraphs (e) and (f), thereby providing certainty as to the outcome.
    The Strike Interval Proposal was designed to reduce the density of 
strike intervals that would be listed in later weeks, within the Short 
Term Option Series Program, by utilizing limitations for intervals 
between strikes which have an expiration date more than twenty-one days 
from the listing date. The Exchange's proposal intends to continue to 
remove certain strike intervals where there exist clusters of strikes 
whose characteristics closely resemble one another and, therefore, do 
not serve different trading needs,\16\ rendering these strikes less 
useful. Also, the Strike Interval Proposal continues to reduce the 
number of strikes listed on the Exchange, allowing Market-Makers to 
expend their capital in the options market in a more efficient manner, 
thereby improving overall market quality on the Exchange.
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    \16\ For example, two strikes that are densely clustered may 
have the same risk properties and may also be the same percentage 
out-of-the-money.
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    Additionally, by providing more clarity as to which interval would 
apply between the current rule text within Rule 19.5, Interpretation 
and Policy .05(e) and (f), the Exchange is reducing the number of 
strikes listed in a manner consistent with the intent of the Strike 
Interval Proposal, which was to reduce strikes which were farther out 
in time. The result of this clarification is to select wider strike 
intervals for Short Term Option Series in equity options which have an 
expiration date more than twenty-one days from the listing date. This 
rule change would harmonize strike intervals as between inner weeklies 
(those having less than twenty-one days from the listing date) and 
outer weeklies (those having more than twenty-one days from the listing 
date) so that strike intervals are not widening as the listing date 
approaches.
    The proposed rule change to extend current $0.50 strike price 
intervals in equity options to short term options with strike prices 
less than $100 will remove impediments to and perfect the mechanism of 
a free and open market and a national market system, because it will 
conform this portion of the Short Term Option Series Program to that of 
other options exchanges.\17\
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    \17\ See, e.g., EDGX Rule 19.6, Interpretation and Policy 
.05(e).
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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 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act. The Strike Interval Proposal 
continues to limit the number of Short Term Option Series Program 
strike intervals available for quoting and trading on the Exchange for 
all Options Members.
    The Exchange believes adding clarifying language to the first 
sentence of Rule 19.5, Interpretation and Policy .05(f) regarding which 
parameter the table within that provision amends within the Short Term 
Option Series Program will bring greater transparency to the rules. 
Amending the table within paragraph (f) to address potential conflicts 
as between the rule text of Rule 19.5, Interpretation and Policy .05(e) 
and (f) will bring greater transparency to and reduce potential 
confusion regarding the manner in which the Exchange implements its 
listing rules. Deleting the last sentence of the first paragraph of the 
introductory paragraph of Rule 19.5, Interpretation and Policy .05(f) 
does not impose an undue burden on competition and will avoid potential 
confusion because the table within paragraph (f) clarifies which strike 
intervals will apply in all scenarios. Extending current $0.50 strike 
price intervals in equity options to short term options with strike 
prices less than $100 will not impose an undue burden on competition, 
because it is consistent

[[Page 63180]]

with the rules of other options exchanges.\18\
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    \18\ Id.
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    While this proposal continues to limit the intervals of strikes 
listed on the Exchange, the Exchange continues to balance the needs of 
market participants by continuing to offer a number of strikes to meet 
a market participant's investment objective. The Exchange's Strike 
Interval Proposal does not impose an undue burden on intermarket 
competition as this Strike Interval Proposal does not impact the 
listings available at another self-regulatory organization.

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

    The Exchange neither solicited nor received comments on the 
proposed rule change.

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

    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 \19\ and Rule 19b-
4(f)(6) thereunder.\20\
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    \19\ 15 U.S.C. 78s(b)(3)(A).
    \20\ 17 CFR 240.19b-4(f)(6)(iii). In addition, Rule 19b-4(f)(6) 
requires a self-regulatory organization to give the Commission 
written notice of its intent to file 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) \21\ normally 
does not become operative prior to 30 days after the date of the 
filing. However, pursuant to Rule 19b-4(f)(6)(iii),\22\ the Commission 
may 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 waive the 30-day operative delay so that 
the proposed rule change may become operative upon filing. The proposed 
rule change is substantially similar to those of other currently 
operating options exchanges.\23\ The Exchange states that it intends to 
launch MEMX Options on September 13, 2023 and that waiver of the 30-day 
operative delay would allow the Exchange to implement the proposed 
change to amend its rules as set forth above prior to launch, thus 
ensuring consistency of strike rules between the Exchange and other 
options exchanges. For these reasons, and because the proposed rule 
change does not raise any novel legal or regulatory issues, the 
Commission believes that waiving the 30-day operative delay is 
consistent with the protection of investors and the public interest. 
Therefore, the Commission hereby waives the 30-day operative delay and 
designates the proposal operative upon filing.\24\
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    \21\ 17 CFR 240.19b-4(f)(6).
    \22\ 17 CFR 240.19b-4(f)(6)(iii).
    \23\ See supra note 6.
    \24\ 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-MEMX-2023-18 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-MEMX-2023-18. 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-MEMX-2023-18 and should be 
submitted on or before October 5, 2023.
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    \25\ 17 CFR 200.30-3(a)(12), (59).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\25\
Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-19846 Filed 9-13-23; 8:45 am]
BILLING CODE 8011-01-P