[Federal Register Volume 89, Number 97 (Friday, May 17, 2024)]
[Notices]
[Pages 43452-43455]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-10817]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-100122; File No. SR-CboeBYX-2024-014]


Self-Regulatory Organizations; Cboe BYX Exchange, Inc.; Notice of 
Filing and Immediate Effectiveness of a Proposed Rule Change To Amend 
Its Fees Schedule To Adopt Fees for Dedicated Cores

May 13, 2024.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given 
that on May 6, 2024, Cboe BYX Exchange, Inc. (the ``Exchange'' or 
``BYX'') filed with the Securities and Exchange Commission (the 
``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 BYX Exchange, Inc. (the ``Exchange'' or ``BYX Equities'') 
proposes to amend its Fees 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/BYX/), 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.

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 to amend [sic] the 
fees and increase [sic] the maximum cap for Dedicated Cores.
    By way of background, as of May 6, 2025, the Exchange allow Users 
\3\ to assign a Single Binary Order Entry (``BOE'') logical order entry 
port \4\ to a single dedicated Central Processing Unit (CPU Core) 
(``Dedicated Core''). Historically, CPU Cores had been shared by 
logical order entry ports (i.e., multiple logical ports from multiple

[[Page 43453]]

firms may connect to a single CPU Core). Use of Dedicated Cores 
however, can provide reduced latency, enhanced throughput, and improved 
performance since a firm using a Dedicated Core is utilizing the full 
processing power of a CPU Core instead of sharing that power with other 
firms. This offering is completely voluntary and is available to all 
Users that wish to purchase Dedicated Cores. Users may utilize BOE 
logical order entry ports on shared CPU Cores, either in lieu of, or in 
addition to, their use of Dedicated Core(s). As such, Users are able to 
operate across a mix of shared and dedicated CPU Cores which the 
Exchange believes provides additional risk and capacity management. 
Further, Dedicated Cores are not required nor necessary to participate 
on the Exchange and as such Users may opt not to use Dedicated Cores at 
all.
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    \3\ A User may be either a Member or Sponsored Participant. The 
term ``Member'' shall mean any registered broker or dealer that has 
been admitted to membership in the Exchange, limited liability 
company or other organization which is a registered broker or dealer 
pursuant to Section 15 of the Act, and which has been approved by 
the Exchange. A Sponsored Participant may be a Member or non-Member 
of the Exchange whose direct electronic access to the Exchange is 
authorized by a Sponsoring Member subject to certain conditions. See 
Exchange Rule 11.3.
    \4\ Users may currently connect to the Exchange using a logical 
port available through an application programming interface 
(``API''), such as the Binary Order Entry (``BOE'') protocol. A BOE 
logical order entry port is used for order entry.
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    The Exchange proposes to assess the following monthly fees for 
those Users that wish to use Dedicated Cores: $650 per Dedicated Core 
for 3-10 Dedicated Cores; $850 per Dedicated Core for 11-15 Dedicated 
Cores; and $1,050 per Dedicated Core for 16 or more Dedicated Cores. 
The proposed fees are progressive and and [sic] the Exchange proposes 
to include the following example in the Fees Schedule to provide 
clarity as to how the fees will be applied. Particularly, the Exchange 
will provide the following example: if a User were to purchase 11 
Dedicated Cores, it will be charged a total of $6,050 per month ($0 * 2 
+ $650 * 8 + $850 * 1). The Exchange also proposes to make clear in the 
Fees Schedule that the monthly fees are assessed and applied in their 
entirety and are not prorated. The Exchange notes the current standard 
fees assessed for BOE Logical Ports, whether used with Dedicated or 
shared CPU cores, will remain applicable and unchanged.\5\
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    \5\ The Exchange currently assesses $550 per port per month. See 
Cboe BYX Equities Fee Schedule.
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    Since the Exchange currently has finite amount of space in its data 
centers in which its servers (and therefore corresponding CPU Cores) 
are located, the Exchange also proposes to prescribe a maximum limit on 
the number of Dedicated Cores that Users may purchase each month. The 
purpose of establishing these limits is to manage the allotment of 
Dedicated Cores in a fair manner and to prevent the Exchange from being 
required to expend large amounts of resources in order to provide an 
unlimited number of Dedicated Cores. Particularly, the Exchange 
proposes to provide that Members will be limited to a maximum number of 
20 Dedicated Cores \6\ and Sponsoring Members will be limited to a 
maximum number of 8 Dedicated Cores for each of their Sponsored Access 
relationships.\7\ The Exchange notes that it will continue monitoring 
Dedicated Core interest by all Users and allotment availability with 
the goal of increasing these limits to meet Users' needs.
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    \6\ The prescribed maximum quantity of Dedicated Cores for 
Members applies regardless of whether that Member purchases the 
Dedicated Cores directly from the Exchange and/or through a Service 
Bureau. In a Service Bureau relationship, a customer allows its MPID 
to be used on the ports of a technology provider, or Service Bureau. 
One MPID may be allowed on several different Service Bureaus.
    \7\ The fee tier(s) applicable to Sponsoring Members are 
determined on a per Sponsored Access relationship basis and not on 
the combined total of Dedicated Cores across Sponsored Users. For 
example, under the proposed changes, a Sponsoring Member that has 
two Sponsored Access relationships is entitled to a total of 16 
Dedicated Cores for those 2 Sponsored Access relationships but would 
be assessed fees separately based on the 8 Dedicated Cores for each 
Sponsored User (instead of combined total of 16 Dedicated Core). For 
example, a Sponsoring Member with 2 Sponsored Access relationships 
would be provided 2 Dedicated Cores at no additional cost for each 
Sponsored User under Tier 1 (total of 4 Dedicated Cores at no 
additional cost) and provided an additional 6 Dedicated Cores for 
each Sponsored User under Tier 2 (total 12 Dedicated Cores) at $650 
per month.
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2. Statutory Basis
    The Exchange believes 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.\8\ Specifically, the 
Exchange believes the proposed rule change is consistent with the 
Section 6(b)(5) \9\ 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) \10\ requirement that the rules of an exchange not be 
designed to permit unfair discrimination between customers, issuers, 
brokers, or dealers. The Exchange also believes the proposed rule 
change is consistent with Section 6(b)(4) \11\ of the Act, which 
requires that Exchange rules 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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    \8\ 15 U.S.C. 78f(b).
    \9\ 15 U.S.C. 78f(b)(5).
    \10\ Id.
    \11\ 15 U.S.C. 78f(b)(4).
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    The Exchange believes the proposal is reasonable because the 
Exchange is offering any Users who wishes to utilize Dedicated Cores up 
to two Dedicated Cores at no additional cost. The Exchange believes the 
proposed fees are reasonable because Dedicated Cores provide a valuable 
service in that it may provide reduced latency, enhanced throughput, 
and improved performance compared to use of a shared CPU Core since a 
firm using a Dedicated Core is utilizing the full processing power of a 
CPU Core. The Exchange also emphasizes however, that the use of 
Dedicated Cores is not necessary for trading and as noted above, is 
entirely optional. Indeed, Users can continue to access the Exchange 
through shared CPU Cores at no additional cost. Depending on a firm's 
specific business needs, the proposal enables Users to choose to use 
Dedicated Cores in lieu of, or in addition to, shared CPU Cores (or as 
noted, not use Dedicated Cores at all). The Exchange believes the 
proposal to operate across a mix of shared and dedicated CPU Cores may 
further provide additional risk and capacity management. If a User 
finds little benefit in having Dedicated Cores, or determines Dedicated 
Cores are not cost-efficient for its needs or does not provide 
sufficient value to the firm, such User may continue its use of the 
shared CPU Cores, unchanged. Indeed, the Exchange has no plans to 
eliminate shared CPU Cores nor to require Users to purchase Dedicated 
Cores.
    The Exchange also believes that the proposed Dedicated Core fees 
are equitable and not unfairly discriminatory because they continue to 
be assessed uniformly to similarly situated users in that all Users who 
choose to purchase Dedicated Cores will be subject to the same proposed 
tiered fee schedule. Further all Users are entitled to up to 2 
Dedicated Cores at no additional cost. The Exchange believes the 
proposed ascending fee structure is also reasonable, equitable and not 
unfairly discriminatory as it is designed so that firms that use a 
higher allotment of the Exchange's finite number of Dedicated Cores pay 
higher rates, rather than placing that burden on market participants 
that have more modest needs who will have the flexibility of obtaining 
Dedicated Cores at lower price points in the lower tiers. As such, the

[[Page 43454]]

proposed fees do not favor certain categories of market participants in 
a manner that would impose a burden on competition; rather, the 
ascending fee structure reflects the resources consumed by the various 
needs of market participants--that is, the lowest Dedicated Core 
consuming Users pay the least, and highest Dedicated Core consuming 
Users pay the most. Other exchanges similarly assess higher fees to 
those that consume more Exchange resources.\12\ It's also designed to 
encourage firms to manage their needs in a fair manner and to prevent 
the Exchange from being required to expend large amounts of resources 
in order to provide an additional number of Dedicated Cores.
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    \12\ See also Cboe U.S. Options Fees Schedule, BZX Options, 
Options Logical Port Fees, Ports with Bulk Quoting Capabilities.
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    The Exchange believes it is reasonable to limit the number of 
Dedicated Cores Users can purchase because the Exchange has a finite 
amount of space in its data centers and availability of cores. The 
Exchange will continually monitor market participant demand and 
resource availability and endeavor to adjust the limit if and when the 
Exchange is able to accommodate additional CPU Cores (including 
Dedicated Cores). The Exchange monitors its capacity and data center 
space and thus is in the best place to determine these limits and 
modify them as appropriate in response to changes to this capacity and 
space. The proposed limits also apply uniformly to similarly situated 
market participants (i.e., all Members are subject to the same limit 
and all Sponsored Participants are subject to the same limit, 
respectively). The Exchange believes it's not unfairly discriminatory 
to provide for different limits for different types of users. For 
example, the Exchange believe it's not unfairly discriminatory to 
provide for an initial lower limit to be allocated for Sponsored 
Participants because unlike Members, Sponsored Participants are able to 
access the Exchange without paying a Membership Fee. Members also have 
more regulatory obligations and risk that Sponsored Participants do 
not. For example, while Sponsored Participants must agree to comply 
with the Rules of the Exchange, it is the Sponsoring Member of that 
Sponsored Participant that remains ultimately responsible for all 
orders entered on or through the Exchange by that Sponsored 
Participant. The industry also has a history of applying fees 
differently to Members as compared to Sponsored Participants.\13\
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    \13\ See e.g., Securities Exchange Act Release No. 68342 
(December 3, 2012) 77 FR 73096 (December 7, 2012) (SR-CBOE-2012-
114).and Securities Exchange Act Release No. 66082 (January 3, 2012) 
77 FR 1101 (January 9, 2012) (SR-C2-2011-041).
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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 intramarket competition that is not necessary in 
furtherance of the purposes of the Act because the proposed tiered fee 
structure will apply equally to all similarly situated Users that 
choose to use Dedicated Cores. As discussed above, Dedicated Cores are 
optional and Users may choose to utilize Dedicated Cores, or not, based 
on their views of the additional benefits and added value provided by 
utilizing a Dedicated Core. The Exchange believes the proposed fee will 
be assessed proportionately to the potential value or benefit received 
by Users with a greater number of Dedicated Cores and notes that Users 
may determine at any time to cease using Dedicated Cores. As discussed, 
Users can also continue to access the Exchange through shared CPU Cores 
at no additional cost. Finally, all Users will be entitled to two 
Dedicated Cores at no additional cost.
    Next, the Exchange believes the proposed rule change 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, 
including competition for exchange memberships. Market Participants 
have numerous alternative venues that they may participate on, 
including 15 other equities exchanges, as well as off-exchange venues, 
where competitive products are available for trading. Indeed, 
participants can readily choose to submit their order flow 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.'' \14\ 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'. . . .''.\15\ Accordingly, the Exchange does not believe its 
proposed change imposes any burden on competition that is not necessary 
or appropriate in furtherance of the purposes of the Act.
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    \14\ See Securities Exchange Act Release No. 51808 (June 9, 
2005), 70 FR 37496, 37499 (June 29, 2005).
    \15\ 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 \16\ and paragraph (f) of Rule 19b-4 \17\ 
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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    \16\ 15 U.S.C. 78s(b)(3)(A).
    \17\ 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.

[[Page 43455]]

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-CboeBYX-2024-014 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-CboeBYX-2024-014. 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-CboeBYX-2024-014 and should 
be submitted on or before June 7, 2024.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\18\
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    \18\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2024-10817 Filed 5-16-24; 8:45 am]
BILLING CODE 8011-01-P