[Federal Register Volume 88, Number 246 (Tuesday, December 26, 2023)]
[Notices]
[Pages 88997-89001]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28328]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-99207; File No. SR-CboeBZX-2023-106]


Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of 
Filing and Immediate Effectiveness of a Proposed Rule Change To Amend 
Its Fee Schedule by Modifying Certain Tiers and Discontinuing the NBBO 
Setter Program

December 19, 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 December 12, 2023, Cboe BZX Exchange, Inc. (the ``Exchange'' or 
``BZX'') filed with the Securities and Exchange Commission 
(``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

    Cboe BZX Exchange, Inc. (the ``Exchange'' or ``BZX'') proposes to 
amend its Fee Schedule. The text of the proposed rule change is 
provided in Exhibit 5.
    The text of the proposed rule change is also available on the 
Exchange's website (http://markets.cboe.com/us/equities/regulation/rule_filings/bzx/), at the Exchange's Office of the Secretary, 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.

[[Page 88998]]

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

1. Purpose
    The Exchange proposes to amend its Fee Schedule applicable to its 
equities trading platform (``BZX Equities'') by (1) modifying certain 
Add/Remove Volume Tiers; (2) modifying the Lead Market Maker (``LMM'') 
Pricing Tiers; and (3) discontinuing the NBBO Setter Program. The 
Exchange proposes to implement these changes effective December 1, 
2023.\3\
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    \3\ The Exchange initially filed the proposed fee change on 
December 1, 2023 (SR-CboeBZX-2023-098). On December 12, 2023, the 
Exchange withdrew that filing and submitted this proposal.
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    The Exchange first notes that it operates in a highly competitive 
market in which market participants can readily direct order flow to 
competing venues if they deem fee levels at a particular venue to be 
excessive or incentives to be insufficient. More specifically, the 
Exchange is only one of 16 registered equities exchanges, as well as a 
number of alternative trading systems and other off-exchange venues 
that do not have similar self-regulatory responsibilities under the 
Securities Exchange Act of 1934 (the ``Act''), to which market 
participants may direct their order flow. Based on publicly available 
information,\4\ no single registered equities exchange has more than 
14% of the market share. Thus, in such a low-concentrated and highly 
competitive market, no single equities exchange possesses significant 
pricing power in the execution of order flow. The Exchange in 
particular operates a ``Maker-Taker'' model whereby it pays rebates to 
members that add liquidity and assesses fees to those that remove 
liquidity. The Exchange's Fee Schedule sets forth the standard rebates 
and rates applied per share for orders that provide and remove 
liquidity, respectively. Currently, for orders in securities priced at 
or above $1.00, the Exchange provides a standard rebate of $0.00160 per 
share for orders that add liquidity and assesses a fee of $0.0030 per 
share for orders that remove liquidity.\5\ For orders in securities 
priced below $1.00, the Exchange provides a standard rebate of $0.00009 
per share for orders that add liquidity and assesses a fee of 0.30% of 
the total dollar value for orders that remove liquidity.\6\ 
Additionally, in response to the competitive environment, the Exchange 
also offers tiered pricing which provides Members opportunities to 
qualify for higher rebates or reduced fees where certain volume 
criteria and thresholds are met. Tiered pricing provides an incremental 
incentive for Members to strive for higher tier levels, which provides 
increasingly higher benefits or discounts for satisfying increasingly 
more stringent criteria.
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    \4\ See Cboe Global Markets, U.S. Equities Market Volume 
Summary, Month-to-Date (November 27, 2023), available at https://www.cboe.com/us/equities/_statistics/.
    \5\ See BZX Equities Fee Schedule, Standard Rates.
    \6\ Id.
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Add/Remove Volume Tiers
    Under footnote 1 of the Fee Schedule, the Exchange currently offers 
various Add/Remove Volume Tiers that provide enhanced rebates for 
orders yielding fee codes B,\7\ V \8\ and Y \9\ where a Member reaches 
certain add volume-based criteria. The Exchange also offers various 
Add/Remove Volume Tiers that provide enhanced rebates for orders 
yielding fee codes HB,\10\ HV \11\ or HY \12\ where a Member reaches 
certain non-displayed add volume-based criteria. The Exchange first 
proposes to modify the enhanced rebate associated with Non-Displayed 
Add Volume Tier 4. Currently, Members who satisfy the criteria of Non-
Displayed Add Volume Tier 4 receive an enhanced rebate of $0.00275 per 
share for securities priced at or above $1.00. As proposed, Members who 
satisfy the criteria of Non-Displayed Add Volume Tier 4 will receive an 
enhanced rebate of $0.0027 per share for securities priced at or above 
$1.00. The purpose of reducing the enhanced rebate associated with Non-
Displayed Add Volume Tier 4 is for business and competitive reasons, as 
the Exchange believes that reducing such rebate as proposed would 
decrease the Exchange's expenditures with respect to transaction 
pricing in a manner that is still consistent with the Exchange's 
overall pricing philosophy of encouraging added liquidity. The Exchange 
notes that despite the modest decrease in the enhanced rebate 
associated with Non-Displayed Add Volume Tier 4, the enhanced rebate 
remains competitive and continues to be in-line with the enhanced 
rebates provided under Non-Displayed Add Volume Tiers 1-3.\13\
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    \7\ Fee code B is appended to orders that add liquidity to BZX 
in Tape B securities.
    \8\ Fee code V is appended to orders that add liquidity to BZX 
in Tape A securities.
    \9\ Fee code Y is appended to orders that add liquidity to BZX 
in Tape C securities.
    \10\ Fee code HB is appended to orders that add non-displayed 
liquidity to BZX in Tape B securities.
    \11\ Fee code HV is appended to orders that add non-displayed 
liquidity to BZX in Tape A securities.
    \12\ Fee code HY is appended to orders that add non-displayed 
liquidity to BZX in Tape C securities.
    \13\ The Exchange notes that Non-Displayed Add Volume Tier 1 
pays an enhanced rebate of $0.0018 per share for securities priced 
at or above $1.00, Non-Displayed Add Volume Tier 2 pays an enhanced 
rebate of $0.0020 per share for securities priced at or above $1.00, 
and Non-Displayed Add Volume Tier 3 pays an enhanced rebate of 
$0.0025 for securities priced at or above $1.00. See BZX Equities 
Fee Schedule, Footnote 1.
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    Next, the Exchange proposes to discontinue Non-Displayed Add Volume 
Tier 5, as no Members have satisfied the criteria within the past six 
months and the Exchange no longer wishes to, nor is required to, 
maintain such tier. More specifically, the proposed change removes this 
tier as the Exchange would rather redirect future resources and funding 
into other programs and tiers intended to incentivize increased order 
flow.
Lead Market Maker Pricing Tiers
    Under footnote 14 of the Fee Schedule, the Exchange offers a 
comprehensive liquidity provision program to incentivize Lead Market 
Makers (``LMMs'') to provide enhanced market quality across all BZX-
listed securities. Under the Exchange's LMM Program,\14\ the Exchange 
offers daily incentives for LMMs in securities listed on the Exchange 
for which the LMM meets certain Minimum Performance Standards.\15\ Such 
daily incentives are determined based on the number of Cboe-listed 
securities for which the LMM meets the Minimum Performance Standards 
and the average auction volume across such securities. Generally, the 
more LMM Securities \16\ for which the LMM meets the Minimum 
Performance Standards and the higher the auction volume across those 
securities, the greater the total daily payment to the LMM. Currently, 
pursuant to paragraph (D) of footnote 14 the Exchange offers LMM Add 
Volume Tiers, which provide an enhanced rebate to LMMs who reach 
certain add-

[[Page 88999]]

volume based criteria. Now, the Exchange proposes to update the 
applicable fee codes for LMM Add Volume Tiers 2, 3, and 4 to remove fee 
codes ZV,\17\ ZB,\18\ and ZY.\19\ Specifically, the Exchange proposes 
to: (i) amend LMM Add Volume Tier 2 to apply to orders yielding fee 
codes V and HV (removing fee code ZV); (ii) amend LMM Add Volume Tier 3 
to apply to orders yielding fee codes B and HB (removing fee code ZB); 
and (iii) amend LMM Add Volume Tier 4 to apply to orders yielding fee 
codes Y and HY (removing fee code ZY). The purpose of eliminating 
certain fee codes from LMM Add Volume Tiers 2-4 is for business and 
competitive reasons, as the Exchange believes that eliminating such fee 
codes as proposed would decrease the Exchange's expenditures with 
respect to transaction pricing in a manner that is still consistent 
with the Exchange's overall pricing philosophy of encouraging added 
liquidity. The Exchange notes that despite eliminating fee codes 
associated with retail orders from LMM Add Volume Tiers 2-4, LMM Add 
Volume Tiers 2-4 will continue to provide enhanced rebates for 
liquidity-adding orders in displayed and non-displayed orders, which 
does not represent a significant departure from the enhanced rebate 
offered under LMM Add Volume Tier 1.
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    \14\ See Securities Exchange Act Release No. 72020 (April 25, 
2014), 79 FR 24807 (May 1, 2014), SR-BATS-2014-015 (``Original LMM 
Filing'').
    \15\ As defined in Rule 11.8(e)(1)(E), the term ``Minimum 
Performance Standards'' means a set of standards applicable to an 
LMM that may be determined from time to time by the Exchange. Such 
standards will vary between LMM Securities depending on the price, 
liquidity, and volatility of the LMM Security in which the LMM is 
registered. The performance measurements will include (A) Percent of 
time at the NBBO; (B) percent of executions better than the NBBO; 
(C) average displayed size; and (D) average quoted spread. For 
additional detail, see Original LMM Filing.
    \16\ See Rule 11.8(e)(1)(D). The term ``LMM Security'' means a 
Listed Security that has an LMM. See also Rule 11.8(e)(1)(B). The 
term ``Listed Security'' means any ETP or any Primary Equity 
Security or Closed-End Fund listed on the Exchange pursuant to Rule 
14.8 or 14.9.
    \17\ Fee code ZV is appended to Retail Orders that add liquidity 
to BZX in Tape A securities.
    \18\ Fee code ZB is appended to Retail Orders that add liquidity 
to BZX in Tape B securities.
    \19\ Fee code ZY is appended to Retail Orders that add liquidity 
to BZX in Tape C securities.
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NBBO Setter Program
    Under footnote 20 of the Fee Schedule the Exchange offers its NBBO 
Setter Program, which offers an enhanced rebate to Members which reach 
certain add volume criteria in NBBO Setter Securities.\20\ The Exchange 
now proposes to discontinue the NBBO Setter Program as the Exchange no 
longer wishes to, nor is required to, maintain such tier. More 
specifically, the proposed change removes this tier as the Exchange 
would rather redirect future resources and funding into other programs 
and tiers intended to incentivize increased order flow. In addition, 
the Exchange proposes to eliminate the terms Setter NBBO,\21\ NBBO 
Setter Securities, Baseline Setter ADAV,\22\ and Current Setter ADAV 
\23\ from the Definitions section of the Fee Schedule as these terms 
apply only to the NBBO Setter Program.
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    \20\ NBBO Setter Securities means a list of securities included 
in the NBBO Setter Program, the universe of which will be determined 
by the Exchange and published in a Notice distributed to Members and 
on the Exchange's website.
    \21\ Setter NBBO means a quotation of at least 100 shares that 
is better than the NBBO or a quotation of a notional size of at 
least $10,000.00 that is better than the NBBO.
    \22\ Baseline Setter ADAV means ADAV calculated as the number of 
displayed shares added per day that establish a new NBBO in NBBO 
Setter Securities. ADAV means average daily added volume calculated 
as the number of shares added per day, calculated on a monthly 
basis.
    \23\ Current Setter ADAV means ADAV calculated as the number of 
displayed shares added per day that establish a new Setter NBBO in 
NBBO Setter Securities.
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2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with 
the Act and the rules and regulations thereunder applicable to the 
Exchange and, in particular, the requirements of Section 6(b) of the 
Act.\24\ Specifically, the Exchange believes the proposed rule change 
is consistent with the Section 6(b)(5) \25\ 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) \26\ requirement that the rules of 
an exchange not be designed to permit unfair discrimination between 
customers, issuers, brokers, or dealers as well as Section 6(b)(4) \27\ 
as it is designed to provide for the equitable allocation of reasonable 
dues, fees and other charges among its Members and other persons using 
its facilities.
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    \24\ 15 U.S.C. 78f(b).
    \25\ 15 U.S.C. 78f(b)(5).
    \26\ Id.
    \27\ 15 U.S.C. 78f(b)(4).
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    As described above, the Exchange operates in a highly competitive 
market in which market participants can readily direct order flow to 
competing venues if they deem fee levels at a particular venue to be 
excessive or incentives to be insufficient. The Exchange believes that 
its proposal to lower the enhanced rebate paid to Members that satisfy 
the criteria of Non-Displayed Add Volume Tier 4 is reasonable, 
equitable, and consistent with the Act because such change is designed 
to decrease the Exchange's expenditures with respect to transaction 
pricing in order to offset some of the costs associated with the 
Exchange's current pricing structure, which provides various rebates 
for liquidity-adding orders, and the Exchange's operations generally, 
in a manner that is consistent with the Exchange's overall pricing 
philosophy of encouraging added liquidity. The proposed lower enhanced 
rebate ($0.0027 per share) is reasonable and appropriate because it 
represents only a modest decrease from the current enhanced rebate 
($0.00275 per share) and remains competitive with the enhanced rebates 
offered under Non-Displayed Add Volume Tiers 1-3. The Exchange further 
believes that the proposed decrease to the enhanced rebate associated 
with Non-Displayed Add Volume Tier 4 is not unfairly discriminatory 
because it applies to all Members equally, in that all Members will 
receive the reduced enhanced rebate upon satisfying the criteria of 
Non-Displayed Add Volume Tier 4.
    Similarly, the Exchange believes that its proposal to eliminate fee 
codes ZV, ZB, and ZY from LMM Add Volume Tiers 2-4 is reasonable, 
equitable, and consistent with the Act because such change is designed 
to decrease the Exchange's expenditures with respect to transaction 
pricing in order to offset some of the costs associated with the 
Exchange's current pricing structure, which provides various rebates 
for liquidity-adding orders, and the Exchange's operations generally, 
in a manner that is consistent with the Exchange's overall pricing 
philosophy of encouraging added liquidity. The Exchange further 
believes that the proposal to eliminate fee codes ZV, ZB, and ZY from 
LMM Add Volume Tiers 2-4 is not unfairly discriminatory because it 
applies to all LMMs equally, in that no LMMs will be permitted to use 
fee codes ZV, ZB, or ZY to receive an enhanced rebate under LMM Add 
Volume Tiers 2-4 and all LMMs are still eligible to receive an enhanced 
rebate by satisfying the criteria of LMM Add Volume Tiers 2-4 pursuant 
to the remaining fee codes. The remaining fee codes applicable to LMM 
Add Volume Tiers 2-4 do not represent a significant departure from LMM 
Add Volume Tier 1, which all LMMs continue to be eligible to receive an 
enhanced rebate from.
    Finally, The Exchange believes that its proposal to eliminate Non-
Displayed Add Volume Tier 5 and the NBBO Setter Tier is reasonable 
because the Exchange is not required to maintain these tiers or provide 
Members an opportunity to receive enhanced rebates. The Exchange 
believes its proposal to eliminate these tiers is also equitable and 
not unfairly discriminatory because it applies to all

[[Page 89000]]

Members (i.e., the tiers will not be available for any Member). The 
Exchange also notes that the proposed rule change to remove these tiers 
merely results in Members not receiving an enhanced rebate, which, as 
noted above, the Exchange is not required to offer or maintain. 
Furthermore, the proposed rule change to eliminate Non-Displayed Add 
Volume Tier 5 and the NBBO Setter Tier enables the Exchange to redirect 
resources and funding into other programs and tiers intended to 
incentivize increased order flow.

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. Rather, as discussed above, 
the Exchange believes that the proposed changes would encourage the 
submission of additional order flow to a public exchange, thereby 
promoting market depth, execution incentives and enhanced execution 
opportunities, as well as price discovery and transparency for all 
Members. As a result, the Exchange believes that the proposed changes 
further the Commission's goal in adopting Regulation NMS of fostering 
competition among orders, which promotes ``more efficient pricing of 
individual stocks for all types of orders, large and small.''
    The Exchange believes the proposed rule changes do not impose any 
burden on intramarket competition that is not necessary or appropriate 
in furtherance of the purposes of the Act. Particularly, the proposed 
changes to Non-Displayed Add Volume Tier 4 and LMM Add Volume Tiers 2-4 
will apply to all Members and LMMs equally in that all Members and LMMs 
are eligible for the tiers, have a reasonable opportunity to meet the 
tiers' criteria and will receive the enhanced rebate on their 
qualifying orders if such criteria is met. The Exchange does not 
believe the proposed changes burden competition, but rather, enhances 
competition as it is intended to increase the competitiveness of BZX by 
adopting pricing incentives in order to attract order flow and 
incentivize participants to increase their participation on the 
Exchange, providing for additional execution opportunities for market 
participants and improved price transparency. The proposed change to 
eliminate Non-Displayed Add Volume Tier 5 and the NBBO Setter Program 
will not impose any burden on intramarket competition because the 
changes apply to all Members uniformly, as in, the tiers will no longer 
be available to any Member.
    Next, the Exchange believes the proposed rule changes does not 
impose any burden on intermarket competition that is not necessary or 
appropriate in furtherance of the purposes of the Act. As previously 
discussed, the Exchange operates in a highly competitive market. 
Members have numerous alternative venues that they may participate on 
and direct their order flow, including other equities exchanges, off-
exchange venues, and alternative trading systems. Additionally, the 
Exchange represents a small percentage of the overall market. Based on 
publicly available information, no single equities exchange has more 
than 14% of the market share.\28\ Therefore, no exchange possesses 
significant pricing power in the execution of order flow. Indeed, 
participants can readily choose to send their orders to other exchange 
and off-exchange venues if they deem fee levels at those other venues 
to be more favorable. Moreover, the Commission has repeatedly expressed 
its preference for competition over regulatory intervention in 
determining prices, products, and services in the securities markets. 
Specifically, in Regulation NMS, 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.'' \29\ The fact that this market is competitive has also 
long been recognized by the courts. In NetCoalition v. Securities and 
Exchange Commission, the D.C. Circuit stated as follows: ``[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' . . . .''.\30\ Accordingly, the Exchange does not believe its 
proposed fee change imposes any burden on competition that is not 
necessary or appropriate in furtherance of the purposes of the Act.
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    \28\ Supra note 4.
    \29\ See Securities Exchange Act Release No. 51808 (June 9, 
2005), 70 FR 37496, 37499 (June 29, 2005).
    \30\ NetCoalition v. SEC, 615 F.3d 525, 539 (D.C. Cir. 2010) 
(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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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

    The foregoing rule change has become effective pursuant to Section 
19(b)(3)(A) of the Act \31\ and paragraph (f) of Rule 19b-4 \32\ 
thereunder. 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 will institute proceedings to 
determine whether the proposed rule change should be approved or 
disapproved.
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    \31\ 15 U.S.C. 78s(b)(3)(A).
    \32\ 17 CFR 240.19b-4(f).
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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-CboeBZX-2023-106 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities 
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.

All submissions should refer to file number SR-CboeBZX-2023-106. 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

[[Page 89001]]

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-CboeBZX-2023-106 and should be submitted 
on or before January 16, 2024.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\33\
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    \33\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-28328 Filed 12-22-23; 8:45 am]
BILLING CODE 8011-01-P