[Federal Register Volume 84, Number 157 (Wednesday, August 14, 2019)]
[Notices]
[Pages 40449-40452]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17386]


-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-86606; File No. SR-EMERALD-2019-29]


Self-Regulatory Organizations; MIAX Emerald, LLC; Notice of 
Filing and Immediate Effectiveness of a Proposed Rule Change To Amend 
Its Options Regulatory Fee

August 8, 2019.
    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 1, 2019, 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.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange is filing a proposal to amend the MIAX Emerald Fee 
Schedule (the ``Fee Schedule'') to adjust its Options Regulatory Fee 
(``ORF'').
    The text of the proposed rule change is available on the Exchange's 
website at http://www.miaxoptions.com/rule-filings/emerald, at MIAX'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 the 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    Currently, the Exchange charges an ORF in the amount of $0.00060 
per contract side. The Exchange proposes to increase this ORF to 
$0.0013 per contract side. In light of historical and projected volume 
changes and shifts in the industry and on the Exchange, as well as 
changes to the Exchange's regulatory cost structure, the Exchange is 
proposing to change the amount of ORF that will be collected by the 
Exchange. The Exchange's proposed change to the ORF should balance the 
Exchange's regulatory revenue against the anticipated regulatory costs.
    The per-contract ORF will continue to be assessed by MIAX Emerald 
to each MIAX Emerald Member for all options transactions, including 
Mini Options, cleared or ultimately cleared by the Member which are 
cleared by the Options Clearing Corporation (``OCC'') in the 
``customer'' range, regardless of the exchange on which the transaction 
occurs. The ORF will be collected by OCC on behalf of MIAX Emerald from 
either (1) a Member that was the ultimate clearing firm for the 
transaction or (2) a non-Member that was the ultimate clearing firm 
where a Member was the executing clearing firm for the transaction. The 
Exchange uses reports from OCC to determine the identity of the 
executing clearing firm and ultimate clearing firm.
    To illustrate how the ORF is assessed and collected, the Exchange 
provides the following set of examples. If the transaction is executed 
on the Exchange and the ORF is assessed, if there is no change to the 
clearing account of the original transaction, then the ORF is collected 
from the Member that is the executing clearing firm for the 
transaction. (The Exchange notes that, for purposes of the Fee 
Schedule, when there is no change to the clearing account of the 
original transaction, the executing clearing firm is deemed to be the 
ultimate clearing firm.) If there is a change to the clearing account 
of the original transaction (i.e., the executing clearing firm ``gives-
up'' or ``CMTAs'' the transaction to another clearing firm), then the 
ORF is collected from the clearing firm that ultimately clears the 
transaction--the ultimate clearing firm. The ultimate clearing firm may 
be either a Member or non-Member of the Exchange. If the transaction is 
executed on an away exchange and the ORF is assessed, then the ORF is 
collected from the ultimate clearing firm for the transaction. Again, 
the ultimate clearing firm may be either a Member or non-Member of the 
Exchange. The Exchange notes, however, that when the transaction is 
executed on an away exchange, the Exchange does not assess the ORF when 
neither the executing clearing firm nor the ultimate clearing firm is a 
Member (even if a Member is ``given-up'' or ``CMTAed'' and then such 
Member subsequently ``gives-up'' or ``CMTAs'' the transaction to 
another non-Member via a CMTA reversal). Finally, the Exchange will not 
assess the ORF on outbound linkage trades, whether executed at the 
Exchange or an away exchange. ``Linkage trades'' are tagged in the 
Exchange's system, so the Exchange can readily tell them apart from 
other trades. A customer order routed to another exchange results in 
two customer trades, one from the originating exchange and one from the 
recipient exchange. Charging ORF on both trades could result in double-
billing of ORF for a single customer order, thus the Exchange will not 
assess ORF on outbound linkage trades in a linkage scenario. This 
assessment practice is identical to the assessment practice currently 
utilized by the Exchange's affiliates, Miami International Securities 
Exchange, LLC (``MIAX'') and MIAX PEARL, LLC (``MIAX PEARL'').\3\
---------------------------------------------------------------------------

    \3\ See Securities Exchange Act Release Nos. 85162 (February 15, 
2019), 84 FR 5783 (February 22, 2019) (SR-MIAX-2019-01); 85163 
(February 15, 2019), 84 FR 5798 (February 22, 2019) (SR-PEARL-2019-
01).
---------------------------------------------------------------------------

    As a practical matter, when a transaction that is subject to the 
ORF is not executed on the Exchange, the Exchange lacks the information 
necessary to identify the order entering member for that transaction. 
There are a multitude of order entering market participants throughout 
the industry,

[[Page 40450]]

and such participants can make changes to the market centers to which 
they connect, including dropping their connection to one market center 
and establish themselves as participants on another. For these reasons, 
it is not possible for the Exchange to identify, and thus assess fees 
such as an ORF, on order entering participants on away markets on a 
given trading day.
    Clearing members, however, are distinguished from order entering 
participants because they remain identified to the Exchange on 
information the Exchange receives from OCC regardless of the identity 
of the order entering participant, their location, and the market 
center on which they execute transactions. Therefore, the Exchange 
believes it is more efficient for the operation of the Exchange and for 
the marketplace as a whole to collect the ORF from clearing members.
    The Exchange monitors the amount of revenue collected from the ORF 
to ensure that it, in combination with other regulatory fees and fines, 
does not exceed regulatory costs. In determining whether an expense is 
considered a regulatory cost, the Exchange reviews all costs and makes 
determinations if there is a nexus between the expense and a regulatory 
function. The Exchange notes that fines collected by the Exchange in 
connection with a disciplinary matter offset ORF.
    As discussed below, the Exchange believes it is appropriate to 
charge the ORF only to transactions that clear as customer at the OCC. 
The Exchange believes that its broad regulatory responsibilities with 
respect to a Member's activities supports applying the ORF to 
transactions cleared but not executed by a Member. The Exchange's 
regulatory responsibilities are the same regardless of whether a Member 
enters a transaction or clears a transaction executed on its behalf. 
The Exchange regularly reviews all such activities, including 
performing surveillance for position limit violations, manipulation, 
front-running, contrary exercise advice violations and insider trading. 
These activities span across multiple exchanges.
    The ORF is designed to recover a material portion of the costs to 
the Exchange of the supervision and regulation of Members' customer 
options business, including performing routine surveillances and 
investigations, as well as policy, rulemaking, interpretive and 
enforcement activities. The Exchange believes that revenue generated 
from the ORF, when combined with all of the Exchange's other regulatory 
fees and fines, will cover a material portion, but not all, of the 
Exchange's regulatory costs. The Exchange notes that its regulatory 
responsibilities with respect to Member compliance with options sales 
practice rules have been allocated to the Financial Industry Regulatory 
Authority (``FINRA'') under a 17d-2 Agreement. The ORF is not designed 
to cover the cost of options sales practice regulation.
    The Exchange will continue to monitor the amount of revenue 
collected from the ORF to ensure that it, in combination with its other 
regulatory fees and fines, does not exceed the Exchange's total 
regulatory costs. The Exchange will continue to monitor MIAX Emerald 
regulatory costs and revenues at a minimum on a semi-annual basis. If 
the Exchange determines regulatory revenues exceed or are insufficient 
to cover a material portion of its regulatory costs, the Exchange will 
adjust the ORF by submitting a fee change filing to the Commission. The 
Exchange will notify Members of adjustments to the ORF via regulatory 
circular at least 30 days prior to the effective date of the change.
    The Exchange believes it is reasonable and appropriate for the 
Exchange to charge the ORF for options transactions regardless of the 
exchange on which the transactions occur. The Exchange has a statutory 
obligation to enforce compliance by Members and their associated 
persons under the Act and the rules of the Exchange and to surveil for 
other manipulative conduct by market participants (including non-
Members) trading on the Exchange. The Exchange cannot effectively 
surveil for such conduct without looking at and evaluating activity 
across all options markets. Many of the Exchange's market surveillance 
programs require the Exchange to look at and evaluate activity across 
all options markets, such as surveillance for position limit 
violations, manipulation, front-running and contrary exercise advice 
violations/expiring exercise declarations. While much of this activity 
relates to the execution of orders, the ORF is assessed on and 
collected from clearing firms. The Exchange, because it lacks access to 
information on the identity of the entering firm for executions that 
occur on away markets, believes it is appropriate to assess the ORF on 
its Members' clearing activity, based on information the Exchange 
receives from OCC, including for away market activity. Among other 
reasons, doing so better and more accurately captures activity that 
occurs away from the Exchange over which the Exchange has a degree of 
regulatory responsibility. In so doing, the Exchange believes that 
assessing ORF on Member clearing firms equitably distributes the 
collection of ORF in a fair and reasonable manner. Also, the Exchange 
and the other options exchanges are required to populate a consolidated 
options audit trail (``COATS'') \4\ system in order to surveil a 
Member's activities across markets.
---------------------------------------------------------------------------

    \4\ COATS effectively enhances intermarket options surveillance 
by enabling the options exchanges to reconstruct the market promptly 
to effectively surveil certain rules.
---------------------------------------------------------------------------

    In addition to its own surveillance programs, the Exchange works 
with other SROs and exchanges on intermarket surveillance related 
issues. Through its participation in the Intermarket Surveillance Group 
(``ISG''),\5\ the Exchange shares information and coordinates inquiries 
and investigations with other exchanges designed to address potential 
intermarket manipulation and trading abuses. The Exchange's 
participation in ISG helps it to satisfy the requirement that it has 
coordinated surveillance with markets on which security futures are 
traded and markets on which any security underlying security futures 
are traded to detect manipulation and insider trading.\6\
---------------------------------------------------------------------------

    \5\ ISG is an industry organization formed in 1983 to coordinate 
intermarket surveillance among the SROs by co-operatively sharing 
regulatory information pursuant to a written agreement between the 
parties. The goal of the ISG's information sharing is to coordinate 
regulatory efforts to address potential intermarket trading abuses 
and manipulations.
    \6\ See Section 6(h)(3)(I) of the Act.
---------------------------------------------------------------------------

    The Exchange believes that charging the ORF across markets avoids 
having Members direct their trades to other markets in order to avoid 
the fee and to thereby avoid paying for their fair share for 
regulation. If the ORF did not apply to activity across markets then a 
Member would send their orders to the least cost, least regulated 
exchange. Other exchanges do impose a similar fee on their members' 
activity, including the activity of those members on MIAX Emerald,\7\ 
including the activity of those members on MIAX Emerald, MIAX and MIAX 
PEARL.\8\ The Exchange notes that there is established precedent for an 
SRO charging a fee across markets,

[[Page 40451]]

namely, FINRAs Trading Activity Fee \9\ and the NYSE American LLC 
(``NYSE American''), NYSE Arca, Inc. (``NYSE Arca''), Cboe Exchange, 
Inc. (``CBOE''), Nasdaq PHLX LLC (``Phlx''), Nasdaq ISE, LLC (``ISE''), 
Nasdaq GEMX, LLC (``GEMX'') and BOX Exchange LLC (``BOX'') ORF. While 
the Exchange does not have all the same regulatory responsibilities as 
FINRA, the Exchange believes that, like other exchanges that have 
adopted an ORF, its broad regulatory responsibilities with respect to a 
Member's activities, irrespective of where their transactions take 
place, supports a regulatory fee applicable to transactions on other 
markets. Unlike FINRA's Trading Activity Fee, the ORF applies only to a 
Member's customer options transactions.
---------------------------------------------------------------------------

    \7\ Similar regulatory fees have been instituted by Nasdaq PHLX 
LLC (``Phlx'') (See Securities Exchange Act Release No. 61133 
(December 9, 2009), 74 FR 66715 (December 16, 2009) (SR-Phlx-2009-
100)); Nasdaq ISE, LLC (``ISE'') (See Securities Exchange Act 
Release No. 61154 (December 11, 2009), 74 FR 67278 (December 18, 
2009) (SR-ISE-2009-105)); and Nasdaq GEMX, LLC (``GEMX'') (See 
Securities Exchange Act Release No. 70200 (August 14, 2013) 78 FR 
51242 (August 20, 2013) (SR-Topaz-2013-01)).
    \8\ See supra note 3.
    \9\ See Securities Exchange Act Release No. 47946 (May 30, 
2003), 68 FR 34021 (June 6, 2003) (SR-NASD-2002-148).
---------------------------------------------------------------------------

    Additionally, the Exchange specifies in the Fee Schedule that the 
Exchange may only increase or decrease the ORF semi-annually, and any 
such fee change will be effective on the first business day of February 
or August. In addition to submitting a proposed rule change to the 
Commission as required by the Act to increase or decrease the ORF, the 
Exchange notifies participants via a Regulatory Circular of any 
anticipated change in the amount of the fee at least 30 calendar days 
prior to the effective date of the change. The Exchange believes that 
by providing guidance on the timing of any changes to the ORF, the 
Exchange makes it easier for participants to ensure their systems are 
configured to properly account for the ORF.
    The Exchange is proposing to increase the ORF from $0.00060 to 
$0.0013, as of August 1, 2019. In light of recent market volumes on the 
Exchange and changes to the Exchange's regulatory costs, the Exchange 
is proposing to increase the amount of ORF that will be collected by 
the Exchange. As noted above, the Exchange regularly reviews its ORF to 
ensure that the ORF, in combination with its other regulatory fees and 
fines, does not exceed regulatory costs. The Exchange believes this 
adjustment will permit the Exchange to cover a material portion of its 
regulatory costs, while not exceeding regulatory costs.
    In connection with this filing, the Exchange notes that its 
affiliates, MIAX and MIAX PEARL, will also be adjusting the ORF fees 
that each of those exchanges charge. Including the proposed adjustments 
to ORF of both MIAX and MIAX PEARL with the proposed adjustment by the 
Exchange, MIAX Emerald and its affiliates' ORF will see a net decrease 
from $0.0063 to $0.0053 with the proposed adjustments for August 1, 
2019.
    The Exchange notified Members via a Regulatory Circular of the 
proposed change to the ORF at least thirty (30) calendar days prior to 
the proposed operative date, on July 1, 2019.\10\ The Exchange believes 
that the prior notification to market participants will ensure market 
participants are prepared to configure their systems to properly 
account for the ORF.
---------------------------------------------------------------------------

    \10\ See MIAX Emerald Regulatory Circular 2019-61 available at 
https://www.miaxoptions.com/sites/default/files/circular-files/MIAX_Emerald_RC_2019_61.pdf.
---------------------------------------------------------------------------

2. Statutory Basis
    The Exchange believes that its proposal to amend its Fee Schedule 
is consistent with Section 6(b) of the Act \11\ in general, and 
furthers the objectives of Section 6(b)(4) of the Act \12\ in 
particular, in that it is an equitable allocation of reasonable dues, 
fees, and other charges among its members and issuers and other persons 
using its facilities. The Exchange also believes the proposal furthers 
the objectives of Section 6(b)(5) of the Act \13\ in that it is 
designed to promote just and equitable principles of trade, 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 and is not designed to permit unfair discrimination 
between customers, issuers, brokers and dealers.
---------------------------------------------------------------------------

    \11\ 15 U.S.C. 78f(b).
    \12\ 15 U.S.C. 78f(b)(4).
    \13\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Exchange believes that increasing the ORF from $0.00060 to 
$0.0013, as of August 1, 2019 is reasonable because the Exchange's 
collection of ORF needs to be balanced against the amount of regulatory 
costs incurred by the Exchange. The Exchange believes that the proposed 
adjustments noted herein will serve to balance the Exchange's 
regulatory revenue against the anticipated regulatory costs.
    The Exchange believes that increasing the ORF from $0.00060 to 
$0.0013, as of August 1, 2019, is equitable and not unfairly 
discriminatory because it is objectively allocated to Members in that 
it is charged to all Members on all their transactions that clear as 
customer at the OCC. Moreover, the Exchange believes the ORF ensures 
fairness by assessing fees to those Members that are directly based on 
the amount of customer options business they conduct. Regulating 
customer trading activity is much more labor intensive and requires 
greater expenditure of human and technical resources than regulating 
non-customer trading activity, which tends to be more automated and 
less labor-intensive. As a result, the costs associated with 
administering the customer component of the Exchange's overall 
regulatory program are materially higher than the costs associated with 
administering the non-customer component (e.g., Member proprietary 
transactions) of its regulatory program.
    The ORF is designed to recover a material portion of the costs of 
supervising and regulating Members' customer options business including 
performing routine surveillances and investigations, as well as policy, 
rulemaking, interpretive and enforcement activities. The Exchange will 
monitor the amount of revenue collected from the ORF to ensure that it, 
in combination with its other regulatory fees and fines, does not 
exceed the Exchange's total regulatory costs. The Exchange has designed 
the ORF to generate revenues that, when combined with all of the 
Exchange's other regulatory fees, will be less than or equal to the 
Exchange's regulatory costs, which is consistent with the Commission's 
view that regulatory fees be used for regulatory purposes and not to 
support the Exchange's business side. In this regard, the Exchange 
believes that the proposed increase to the fee is reasonable.
    The Exchange believes that continuing to limit changes to the ORF 
to twice a year on specific dates with advance notice is reasonable 
because it gives participants certainty on the timing of changes, if 
any, and better enables them to properly account for ORF charges among 
their customers. The Exchange believes that continuing to limit changes 
to the ORF to twice a year on specific dates is equitable and not 
unfairly discriminatory because it will apply in the same manner to all 
Members that are subject to the ORF and provide them with additional 
advance notice of changes to that fee.
    The Exchange believes that collecting the ORF from non-Members when 
such non-Members ultimately clear the transaction (that is, when the 
non-Member is the ``ultimate clearing firm'' for a transaction in which 
a Member was assessed the ORF) is an equitable allocation of reasonable 
dues, fees, and other charges among its members and issuers and other 
persons using its facilities. The Exchange notes that there is a 
material distinction between ``assessing'' the ORF and ``collecting'' 
the ORF. The ORF is only assessed to a Member with respect to a 
particular transaction in which it is either the

[[Page 40452]]

executing clearing firm or ultimate clearing firm. The Exchange does 
not assess the ORF to non-Members. Once, however, the ORF is assessed 
to a Member for a particular transaction, the ORF may be collected from 
the Member or a non-Member, depending on how the transaction is cleared 
at OCC. If there was no change to the clearing account of the original 
transaction, the ORF would be collected from the Member. If there was a 
change to the clearing account of the original transaction and a non-
Member becomes the ultimate clearing firm for that transaction, then 
the ORF will be collected from that non-Member. The Exchange believes 
that this collection practice continues to be reasonable and 
appropriate, and was originally instituted for the benefit of clearing 
firms that desired to have the ORF be collected from the clearing firm 
that ultimately clears the transaction.

B. Self-Regulatory Organization's Statement on Burden on Competition

    MIAX Emerald does not believe that the proposed rule change will 
impose any burden on competition not necessary or appropriate in 
furtherance of the purposes of the Act. This proposal does not create 
an unnecessary or inappropriate intra-market burden on competition 
because the ORF applies to all customer activity, and is designed to 
enable the Exchange to recover a material portion of the Exchange's 
cost related to its regulatory activities. It also supplements the 
regulatory revenue derived from non-customer activity. This proposal 
does not create an unnecessary or inappropriate inter-market burden on 
competition because it is a regulatory fee that supports regulation in 
furtherance of the purposes of the Act. The Exchange is obligated to 
ensure that the amount of regulatory revenue collected from the ORF, in 
combination with its other regulatory fees and fines, does not exceed 
regulatory costs. Unilateral action by MIAX Emerald in establishing 
fees for services provided to its Members and others using its 
facilities will not have an impact on competition. As a new entrant in 
the highly competitive environment for equity options trading, MIAX 
Emerald does not have the market power necessary to set prices for 
services that are unreasonable or unfairly discriminatory in violation 
of the Act. The Exchange's ORF, as described herein, is comparable to 
fees charged by other options exchanges for the same or similar 
services. The Exchange believes that continuing to limit the changes to 
the ORF to twice a year on specific dates with advance notice is not 
intended to address a competitive issue but rather to provide Members 
with better notice of any change that the Exchange may make to the ORF.

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

    The foregoing rule change has become effective pursuant to Section 
19(b)(3)(A)(ii) of the Act,\14\ and Rule 19b-4(f)(2) \15\ 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 shall institute proceedings to determine whether 
the proposed rule should be approved or disapproved.
---------------------------------------------------------------------------

    \14\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \15\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

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 (http://www.sec.gov/rules/sro.shtml); or
     Send an email to rule-comments@sec.gov. Please include 
File No. SR-EMERALD-2019-29 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 No. SR-EMERALD-2019-29. 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 (http://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 10:00 a.m. and 
3:00 p.m. Copies of the filing also will be available for inspection 
and copying at the principal office of the Exchange. All comments 
received will be posted without change. Persons submitting comments are 
cautioned that we do not redact or edit personal identifying 
information from comment submissions. You should submit only 
information that you wish to make available publicly. All submissions 
should refer to File No. SR-EMERALD-2019-29, and should be submitted on 
or before September 4, 2019.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\16\
---------------------------------------------------------------------------

    \16\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2019-17386 Filed 8-13-19; 8:45 am]
 BILLING CODE 8011-01-P


