[Federal Register Volume 88, Number 10 (Tuesday, January 17, 2023)]
[Notices]
[Pages 2707-2729]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00662]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-96632; File No. SR-PEARL-2022-62]


Self-Regulatory Organizations; MIAX PEARL, LLC; Notice of Filing 
and Immediate Effectiveness of a Proposed Rule Change To Amend the MIAX 
Pearl Options Fee Schedule To Modify Certain Connectivity and Port Fees

January 10, 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 30, 2022, MIAX PEARL, LLC (``MIAX Pearl'' or ``Exchange'') 
filed with the Securities and Exchange Commission (``Commission'') a 
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

    The Exchange is filing a proposal to amend the MIAX Pearl Options 
Fee Schedule (the ``Fee Schedule'') to amend certain connectivity and 
port fees.
    The text of the proposed rule change is available on the Exchange's 
website at http://www.miaxoptions.com/rule-filings/pearl at MIAX 
Pearl's principal office, and at the Commission's Public Reference 
Room.

[[Page 2708]]

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 the Fee Schedule as follows: (1) 
increase the fees for a 10 gigabit (``Gb'') ultra-low latency (``ULL'') 
fiber connection for Members \3\ and non-Members; (2) amend the 
calculation of fees for MIAX Express Network Full Service (``MEO'') \4\ 
Ports (Bulk and Single); and (3) amend the fees for Full Service MEO 
Ports (Bulk and Single). The Exchange and its affiliate, Miami 
International Securities Exchange, LLC (``MIAX'') operated 10Gb ULL 
connectivity on a single shared network that provided access to both 
exchanges via a single 10Gb ULL connection. The Exchange last increased 
fees for 10Gb ULL connections from $9,300 to $10,000 per month on 
January 1, 2021.\5\ At the same time, MIAX also increased its 10Gb ULL 
connectivity fee from $9,300 to $10,000 per month.\6\ The Exchange and 
MIAX shared a combined cost analysis in those filings due to the single 
shared 10Gb ULL connectivity network for both exchanges. In those 
filings, the Exchange and MIAX allocated a combined total of $17.9 
million in expenses to providing 10Gb ULL connectivity.\7\
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    \3\ The term ``Member'' means an individual or organization 
approved to exercise the trading rights associated with a Trading 
Permit. Members are deemed ``members'' under the Exchange Act. See 
Exchange Rule 100.
    \4\ The term ``MEO Interface'' or ``MEO'' means a binary order 
interface for certain order types as set forth in Rule 516 into the 
MIAX Pearl System. See the Definitions Section of the Fee Schedule 
and Exchange Rule 100.
    \5\ See Securities Exchange Act Release No. 90981 (January 25, 
2021), 86 FR 7582 (January 29, 2021) (SR-PEARL-2021-01).
    \6\ See Securities Exchange Act Release No. 90980 (January 25, 
2021), 86 FR 7602 (January 29, 2021) (SR-MIAX-2021-02).
    \7\ See id.
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    Beginning in late January 2023, the Exchange also recently 
determined a substantial operational need to no longer operate 10Gb ULL 
connectivity on a single shared network with MIAX. The Exchange is 
bifurcating 10Gb ULL connectivity due to ever-increasing capacity 
constraints and to enable it to continue to satisfy the anticipated 
access needs for Members and other market participants.\8\ Since the 
time of 2021 increase discussed above, the Exchange experienced ongoing 
increases in expenses, particularly internal expenses.\9\ As discussed 
more fully below, the Exchange recently calculated increased annual 
aggregate costs of $11,567,509 for providing 10Gb ULL connectivity on a 
single unshared network (an overall increase over its prior cost to 
provide 10Gb ULL connectivity on a shared network with MIAX) and 
$1,644,132 for providing Full Service MEO Ports.
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    \8\ See MIAX Options and MIAX Pearl Options--Announce planned 
network changes related to shared 10G ULL extranet, issued August 
12, 2022, available at https://www.miaxoptions.com/alerts/2022/08/12/miax-options-and-miax-pearl-options-announce-planned-network-changes-related-0. The Exchange will continue to provide access to 
both the Exchange and MIAX over a single shared 1Gb connection. See 
Securities Exchange Act Release Nos. 96553 (December 20, 2022), 87 
FR 79379 (December 27, 2022) (SR-PEARL-2022-60); 96545 (December 20, 
2022) 87 FR 79393 (December 27, 2022) (SR-MIAX-2022-48).
    \9\ The Exchange notes it last filed to amend the fees for Full 
Service MEO Ports in 2018 (excluding filings made in July 2021 
through early 2022), prior to which the Exchange provided Full 
Service MEO Ports free of charge since the it launched operations in 
2017 and absorbed all costs since that time. See Securities Exchange 
Act Release No. 82867 (March 13, 2018), 83 FR 12044 (March 19, 2018) 
(SR-PEARL-2018-07).
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    Much of the cost relates to monitoring and analysis of data and 
performance of the network via the subscriber's connection with 
nanosecond granularity, and continuous improvements in network 
performance with the goal of improving the subscriber's experience. The 
costs associated with maintaining and enhancing a state-of-the-art 
network is a significant expense for the Exchange, and thus the 
Exchange believes that it is reasonable and appropriate to help offset 
those increased costs by amending fees for connectivity services. 
Subscribers expect the Exchange to provide this level of support so 
they continue to receive the performance they expect. This 
differentiates the Exchange from its competitors.
    The Exchange now proposes to amend the Fee Schedule to amend the 
fees for 10Gb ULL connectivity and Full Service MEO Ports (Bulk and 
Single) in order to recoup cost related to bifurcating 10Gb 
connectivity to the Exchange and MIAX as well as the ongoing costs and 
increase in expenses set forth below in the Exchange's cost 
analysis.\10\
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    \10\ The Exchange notes that MIAX will make a similar filing to 
increase its 10Gb ULL connectivity fees.
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* * * * *
    Starting in 2017, following the United States Court of Appeals for 
the District of Columbia's Susquehanna Decision \11\ and various other 
developments, the Commission began to undertake a heightened review of 
exchange filings, including non-transaction fee filings that was 
substantially and materially different from it prior review process 
(hereinafter referred to as the ``Revised Review Process''). In the 
Susquehanna Decision, the D.C. Circuit Court stated that the Commission 
could not maintain a practice of ``unquestioning reliance'' on claims 
made by a self-regulatory organization (``SRO'') in the course of 
filing a rule or fee change with the Commission.\12\ Then, on October 
16, 2018, the Commission issued an opinion in Securities Industry and 
Financial Markets Association finding that exchanges failed both to 
establish that the challenged fees were constrained by significant 
competitive forces and that these fees were consistent with the 
Act.\13\ On that same day, the Commission issued an order remanding to 
various exchanges and national market system (``NMS'') plans challenges 
to over 400 rule changes and plan amendments that were asserted in 57 
applications for review (the ``Remand Order'').\14\ The Remand Order 
directed the exchanges to ``develop a record,'' and to ``explain their 
conclusions, based on that record, in a written decision that is 
sufficient to enable us to perform our review.'' \15\ The Commission 
denied requests by various exchanges and plan participants for 
reconsideration of the Remand Order.\16\ However, the Commission did 
extend the deadlines in the Remand Order ``so that they d[id] not begin 
to run until the resolution of the appeal of the SIFMA Decision in the 
D.C. Circuit and the issuance of the

[[Page 2709]]

court's mandate.'' \17\ Both the Remand Order and the Order Denying 
Reconsideration were appealed to the D.C. Circuit.
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    \11\ See Susquehanna International Group, LLP v. Securities & 
Exchange Commission, 866 F.3d 442 (D.C. Circuit 2017) (the 
``Susquehanna Decision'').
    \12\ Id.
    \13\ See Sec. Indus. & Fin. Mkts. Ass'n, Securities Exchange Act 
Release No. 84432, 2018 WL 5023228 (October 16, 2018) (the ``SIFMA 
Decision'').
    \14\ See Sec. Indus. & Fin. Mkts. Ass'n, Securities Exchange Act 
Release No. 84433, 2018 WL 5023230 (Oct. 16, 2018). See 15 U.S.C. 
78k-1, 78s; see also Rule 608(d) of Regulation NMS, 17 CFR 
242.608(d) (asserted as an alternative basis of jurisdiction in some 
applications).
    \15\ Id. at page 2.
    \16\ Sec. Indus. & Fin. Mkts. Ass'n, Securities Exchange Act 
Release No. 85802, 2019 WL 2022819 (May 7, 2019) (the ``Order 
Denying Reconsideration'').
    \17\ Order Denying Reconsideration, 2019 WL 2022819, at *13.
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    While the above appeal to the D.C. Circuit was pending, on March 
29, 2019, the Commission issued an order disapproving a proposed fee 
change by BOX Exchange LLC (``BOX'') to establish connectivity fees 
(the ``BOX Order''), which significantly increased the level of 
information needed for the Commission to believe that an exchange's 
filing satisfied its obligations under the Act with respect to changing 
a fee.\18\ Despite approving hundreds of access fee filings in the 
years prior to the BOX Order (described further below) utilizing a 
``market-based'' test, the Commission changed course and disapproved 
BOX's proposal to begin charging connectivity at one-fourth the rate of 
competing exchanges' pricing.
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    \18\ See Securities Exchange Act Release No. 85459 (March 29, 
2019), 84 FR 13363 (April 4, 2019) (SR-BOX-2018-24, SR-BOX-2018-37, 
and SR-BOX-2019-04) (Order Disapproving Proposed Rule Changes to 
Amend the Fee Schedule on the BOX Market LLC Options Facility to 
Establish BOX Connectivity Fees for Participants and Non-
Participants Who Connect to the BOX Network). The Commission noted 
in the BOX Order that it ``historically applied a `market-based' 
test in its assessment of market data fees, which [the Commission] 
believe[s] present similar issues as the connectivity fees proposed 
herein.'' Id. at page 16. Despite this admission, the Commission 
disapproved BOX's proposal to begin charging $5,000 per month for 
10Gb connections (while allowing legacy exchanges to charge rates 
equal to 3-4 times that amount utilizing ``market-based'' fee 
filings from years prior).
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    Also while the above appeal was pending, on May 21, 2019, the 
Commission Staff issued guidance ``to assist the national securities 
exchanges and FINRA . . . in preparing Fee Filings that meet their 
burden to demonstrate that proposed fees are consistent with the 
requirements of the Securities Exchange Act.'' \19\ In the Staff 
Guidance, the Commission Staff states that, ``[a]s an initial step in 
assessing the reasonableness of a fee, staff considers whether the fee 
is constrained by significant competitive forces.'' \20\ The Staff 
Guidance also states that, ``. . . even where an SRO cannot 
demonstrate, or does not assert, that significant competitive forces 
constrain the fee at issue, a cost-based discussion may be an 
alternative basis upon which to show consistency with the Exchange 
Act.'' \21\
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    \19\ See Staff Guidance on SRO Rule Filings Relating to Fees 
(May 21, 2019), available at https://www.sec.gov/tm/staff-guidance-sro-rule-filings-fees (the ``Staff Guidance'').
    \20\ Id.
    \21\ Id.
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    Following the BOX Order and Staff Guidance, on August 6, 2020, the 
D.C. Circuit vacated the Commission's SIFMA Decision in NASDAQ Stock 
Market, LLC v. SEC \22\ and remanded for further proceedings consistent 
with its opinion.\23\ That same day, the D.C. Circuit issued an order 
remanding the Remand Order to the Commission for reconsideration in 
light of NASDAQ. The court noted that the Remand Order required the 
exchanges and NMS plan participants to consider the challenges that the 
Commission had remanded in light of the SIFMA Decision. The D.C. 
Circuit concluded that because the SIFMA Decision ``has now been 
vacated, the basis for the [Remand Order] has evaporated.'' \24\ 
Accordingly, on August 7, 2020, the Commission vacated the Remand Order 
and ordered the parties to file briefs addressing whether the holding 
in NASDAQ v. SEC that Exchange Act Section 19(d) does not permit 
challenges to generally applicable fee rules requiring dismissal of the 
challenges the Commission previously remanded.\25\ The Commission 
further invited ``the parties to submit briefing stating whether the 
challenges asserted in the applications for review . . . should be 
dismissed, and specifically identifying any challenge that they contend 
should not be dismissed pursuant to the holding of Nasdaq v. SEC.'' 
\26\ Without resolving the above issues, on October 5, 2020, the 
Commission issued an order granting SIFMA and Bloomberg's request to 
withdraw their applications for review and dismissed the 
proceedings.\27\
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    \22\ NASDAQ Stock Mkt., LLC v. SEC, No 18-1324, --- Fed. App'x -
---, 2020 WL 3406123 (D.C. Cir. June 5, 2020). The court's mandate 
was issued on August 6, 2020.
    \23\ Nasdaq v. SEC, 961 F.3d 421, at 424, 431 (D.C. Cir. 2020). 
The court's mandate issued on August 6, 2020. The D.C. Circuit held 
that Exchange Act ``Section 19(d) is not available as a means to 
challenge the reasonableness of generally-applicable fee rules.'' 
Id. The court held that ``for a fee rule to be challengeable under 
Section 19(d), it must, at a minimum, be targeted at specific 
individuals or entities.'' Id. Thus, the court held that ``Section 
19(d) is not an available means to challenge the fees at issue'' in 
the SIFMA Decision. Id.
    \24\ Id. at *2; see also id. (``[T]he sole purpose of the 
challenged remand has disappeared.'').
    \25\ Sec. Indus. & Fin. Mkts. Ass'n, Securities Exchange Act 
Release No. 89504, 2020 WL 4569089 (August 7, 2020) (the ``Order 
Vacating Prior Order and Requesting Additional Briefs'').
    \26\ Id.
    \27\ Sec. Indus. & Fin. Mkts. Ass'n, Securities Exchange Act 
Release No. 90087 (October 5, 2020).
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    As a result of the Commission's loss of the NASDAQ vs. SEC case 
noted above, the Commission never followed through with its intention 
to subject the over 400 fee filings to ``develop a record,'' and to 
``explain their conclusions, based on that record, in a written 
decision that is sufficient to enable us to perform our review.'' \28\ 
As such, all of those fees remained in place and amounted to a baseline 
set of fees for those exchanges that had the benefit of getting their 
fees in place before the Commission Staff's fee review process 
materially changed. The net result of this history and lack of 
resolution in the D.C. Circuit Court resulted in an uneven competitive 
landscape where the Commission subjects all new non-transaction fee 
filings, particularly those submitted by new exchanges, to the new 
Revised Review Process, while allowing the previously challenged fee 
filings, mostly submitted by incumbent exchanges prior to 2019, to 
remain in effect and not subject to the ``record'' or ``review'' 
earlier intended by the Commission.
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    \28\ See supra note 14, at page 2.
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    While the Exchange appreciates that the Staff Guidance articulates 
an important policy goal of improving disclosures and requiring 
exchanges to justify that their market data and access fee proposals 
are fair and reasonable, the practical effect of the Revised Review 
Process, Staff Guidance, and the Commission's related practice of 
continuous suspension of new fee filings, is anti-competitive, 
discriminatory, and has put in place an un-level playing field, which 
has negatively impacted smaller, nascent, non-legacy exchanges (``non-
legacy exchanges''), while favoring larger, incumbent, entrenched, 
legacy exchanges (``legacy exchanges'').\29\ The legacy exchanges all 
established a significantly higher baseline for access and market data 
fees prior to the Revised Review Process. From 2011 until the issuance 
of the Staff Guidance in 2019, national securities exchanges filed, and 
the Commission Staff did not abrogate or suspend (allowing such fees to 
become effective), at least 92 filings \30\

[[Page 2710]]

to amend exchange connectivity or port fees (or similar access fees). 
The support for each of those filings was a simple statement by the 
relevant exchange that the fees were constrained by competitive 
forces.\31\ These fees remain in effect today.
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    \29\ Commission Chair Gary Gensler recently reiterated the 
Commission's mandate to ensure competition in the equities markets. 
See ``Statement on Minimum Price Increments, Access Fee Caps, Round 
Lots, and Odd-Lots'', by Chair Gary Gensler, dated December 14, 2022 
(stating ``[i]n 1975, Congress tasked the Securities and Exchange 
Commission with responsibility to facilitate the establishment of 
the national market system and enhance competition in the securities 
markets, including the equity markets'' (emphasis added)). In that 
same statement, Chair Gary Gensler cited the five objectives laid 
out by Congress in 11A of the Exchange Act (15 U.S.C. 78k-1), 
including ensuring ``fair competition among brokers and dealers, 
among exchange markets, and between exchange markets and markets 
other than exchange markets. . . .'' (emphasis added). Id. at note 
1. See also Securities Acts Amendments of 1975, available at https://www.govtrack.us/congress/bills/94/s249.
    \30\ This timeframe also includes challenges to over 400 rule 
filings by SIFMA and Bloomberg discussed above. Sec. Indus. & Fin. 
Mkts. Ass'n, Securities Exchange Act Release No. 84433, 2018 WL 
5023230 (Oct. 16, 2018). Those filings were left to stand, while at 
the same time, blocking newer exchanges from the ability to 
establish competitive access and market data fees. See The Nasdaq 
Stock Market, LLC v. SEC, Case No. 18-1292 (D.C. Cir. June 5, 2020). 
The expectation at the time of the litigation was that the 400 rule 
flings challenged by SIFMA and Bloomberg would need to be justified 
under revised review standards.
    \31\ See, e.g., Securities Exchange Act Release Nos. 74417 
(March 3, 2015), 80 FR 12534 (March 9, 2015) (SR-ISE-2015-06); 83016 
(April 9, 2018), 83 FR 16157 (April 13, 2018) (SR-PHLX-2018-26); 
70285 (August 29, 2013), 78 FR 54697 (September 5, 2013) (SR-
NYSEMKT-2013-71); 76373 (November 5, 2015), 80 FR 70024 (November 
12, 2015) (SR-NYSEMKT-2015-90); 79729 (January 4, 2017), 82 FR 3061 
(January 10, 2017) (SR-NYSEARCA-2016-172).
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    The net result is that the non-legacy exchanges are effectively now 
blocked by the Commission Staff from adopting or increasing fees to 
amounts comparable to the legacy exchanges (which were not subject to 
the Revised Review Process and Staff Guidance), despite providing 
enhanced disclosures and rationale to support their proposed fee 
changes that far exceed any such support provided by legacy exchanges. 
Simply put, legacy exchanges were able to increase their non-
transaction fees during an extended period in which the Commission 
applied a ``market-based'' test that only relied upon the assumed 
presence of significant competitive forces, while exchanges today are 
subject to a cost-based test requiring extensive cost and revenue 
disclosures, a process that is complex, inconsistently applied, and 
rarely results in a successful outcome, i.e., non-suspension. The 
Revised Review Process and Staff Guidance changed decades-long 
Commission Staff standards for review, resulting in unfair 
discrimination and placing an undue burden on inter-market competition 
between legacy exchanges and non-legacy exchanges.
    Commission Staff now require exchange filings, including from non-
legacy exchanges such as MIAX Pearl, to provide detailed cost-based 
analysis in place of competition-based arguments to support such 
changes. However, even with the added detailed cost and expense 
disclosures, the Commission Staff continues to either suspend such 
filings and institute disapproval proceedings, or put the exchanges in 
the unenviable position of having to repeatedly withdraw and re-file 
with additional detail in order to continue to charge those fees.\32\ 
By impeding any path forward for non-legacy exchanges to establish 
commensurate non-transaction fees, or by failing to provide any 
alternative means for smaller markets to establish ``fee parity'' with 
legacy exchanges, the Commission is stifling competition: non-legacy 
exchanges are, in effect, being deprived of the revenue necessary to 
compete on a level playing field with legacy exchanges. This is 
particularly harmful, given that the costs to maintain exchange systems 
and operations continue to increase. The Commission Staff's change in 
position impedes the ability of non-legacy exchanges to raise revenue 
to invest in their systems to compete with the legacy exchanges who 
already enjoy disproportionate non-transaction fee based revenue. For 
example, the Cboe Exchange, Inc. (``Cboe'') reported ``access and 
capacity fee'' revenue of $70,893,000 for 2020 \33\ and $80,383,000 for 
2021.\34\ Cboe C2 Exchange, Inc. (``C2'') reported ``access and 
capacity fee'' revenue of $19,016,000 for 2020 \35\ and $22,843,000 for 
2021.\36\ Cboe BZX Exchange, Inc. (``BZX'') reported ``access and 
capacity fee'' revenue of $38,387,000 for 2020 \37\ and $44,800,000 for 
2021.\38\ Cboe EDGX Exchange, Inc. (``EDGX'') reported ``access and 
capacity fee'' revenue of $26,126,000 for 2020 \39\ and $30,687,000 for 
2021.\40\ For 2021, the affiliated Cboe, C2, BZX, and EDGX (the four 
largest exchanges of the Cboe exchange group) reported $178,712,000 in 
``access and capacity fees'' in 2021. NASDAQ Phlx, LLC (``NASDAQ 
Phlx'') reported ``Trade Management Services'' revenue of $20,817,000 
for 2019.\41\ The Exchange notes it is unable to compare ``access fee'' 
revenues with NASDAQ Phlx (or other affiliated NASDAQ exchanges) 
because after 2019, the ``Trade Management Services'' line item was 
bundled into a much larger line item in PHLX's Form 1, simply titled 
``Market services.'' \42\
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    \32\ The Exchange has filed, and subsequently withdrew, various 
forms of this proposed fee change numerous times since August 2021 
with each proposal containing hundreds of cost and revenue 
disclosures never previously disclosed by legacy exchanges in their 
access and market data fee filings prior to 2019.
    \33\ According to Cboe's 2021 Form 1 Amendment, access and 
capacity fees represent fees assessed for the opportunity to trade, 
including fees for trading-related functionality. See Cboe 2021 Form 
1 Amendment, available at https://www.sec.gov/Archives/edgar/vprr/2100/21000465.pdf.
    \34\ See Cboe 2022 Form 1 Amendment, available at https://www.sec.gov/Archives/edgar/vprr/2200/22001155.pdf.
    \35\ See C2 2021 Form 1 Amendment, available at https://www.sec.gov/Archives/edgar/vprr/2100/21000469.pdf.
    \36\ See C2 2022 Form 1 Amendment, available at https://www.sec.gov/Archives/edgar/vprr/2200/22001156.pdf.
    \37\ See BZX 2021 Form 1 Amendment, available at https://www.sec.gov/Archives/edgar/vprr/2100/21000465.pdf.
    \38\ See BZX 2022 Form 1 Amendment, available at https://www.sec.gov/Archives/edgar/vprr/2200/22001152.pdf.
    \39\ See EDGX 2021 Form 1 Amendment, available at https://www.sec.gov/Archives/edgar/vprr/2100/21000467.pdf.
    \40\ See EDGX 2022 Form 1 Amendment, available at https://www.sec.gov/Archives/edgar/vprr/2200/22001154.pdf.
    \41\ According to PHLX, ``Trade Management Services'' includes 
``a wide variety of alternatives for connectivity to and accessing 
[the PHLX] markets for a fee. These participants are charged monthly 
fees for connectivity and support in accordance with [PHLX's] 
published fee schedules.'' See PHLX 2020 Form 1 Amendment, available 
at https://www.sec.gov/Archives/edgar/vprr/2001/20012246.pdf.
    \42\ See PHLX Form 1 Amendment, available at https://www.sec.gov/Archives/edgar/vprr/2100/21000475.pdf.
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    The much higher non-transaction fees charged by the legacy 
exchanges provides them with two significant competitive advantages. 
First, legacy exchanges are able to use their additional non-
transaction revenue for investments in infrastructure, vast marketing 
and advertising on major media outlets,\43\ new products and other 
innovations. Second, higher non-transaction fees provide the legacy 
exchanges with greater flexibility to lower their transaction fees (or 
use the revenue from the higher non-transaction fees to subsidize 
transaction fee rates), which are more immediately impactful in 
competition for order flow and market share, given the variable nature 
of this cost on member firms. The prohibition of a reasonable path 
forward denies the Exchange (and other non-legacy exchanges) this 
flexibility, eliminates the ability to remain competitive on 
transaction fees, and hinders the ability to compete for order flow and 
market share with legacy exchanges. While one could debate whether the 
pricing of non-transaction fees are subject to the same market forces 
as transaction fees, there is little doubt that subjecting one exchange 
to a materially different standard than that historically applied to 
legacy exchanges for non-transaction fees leaves that exchange at a 
disadvantage in its ability to compete with its pricing of transaction 
fees.
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    \43\ See, e.g., CNBC Debuts New Set on NYSE Floor, available at 
https://www.cnbc.com/id/46517876.
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    While the Commission has clearly noted that the Staff Guidance is 
merely guidance and ``is not a rule, regulation or statement of the . . 
. Commission . . . the Commission has neither approved nor disapproved 
its

[[Page 2711]]

content. . .'',\44\ this is not the reality experienced by exchanges 
such as MIAX Pearl. As such, non-legacy exchanges are forced to rely on 
an opaque cost-based justification standard. However, because the Staff 
Guidance is devoid of detail on what must be contained in cost-based 
justification, this standard is nearly impossible to meet despite good-
faith efforts by the Exchange to provide substantial amount of cost-
related details. The Exchange has attempted to increase fees using a 
cost-based justification numerous times, having submitted over six 
filings.\45\ However, despite providing 100+ page filings describing in 
extensive detail its costs associated with providing the services 
described in the filings, Commission Staff continues to suspend such 
filings, with the rationale that the Exchange has not provided 
sufficient detail of its costs. The Commission Staff appears to be 
interpreting the reasonableness standard set forth in Section 6(b)(4) 
of the Act \46\ in a manner that is not possible to achieve. This 
essentially nullifies the cost-based approach for exchanges as a 
legitimate alternative as laid out in the Staff Guidance. By refusing 
to accept a reasonable cost-based argument to justify non-transaction 
fees (in addition to refusing to accept a competition-based argument as 
described above), or by failing to provide the detail required to 
achieve that standard, the Commission Staff is effectively preventing 
non-legacy exchanges from making any non-transaction fee changes, which 
benefits the legacy exchanges and anticompetitive to the non-legacy 
exchanges. This does not meet the fairness standard under the Act and 
is discriminatory.
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    \44\ See supra note 19, at note 1.
    \45\ See Securities Exchange Act Release Nos. 92798 (August 27, 
2021), 86 FR 49360 (September 2, 2021) (SR-PEARL-2021-33); 92644 
(August 11, 2021), 86 FR 46055 (August 17, 2021) (SR-PEARL-2021-36); 
93162 (September 28, 2021), 86 FR 54739 (October 4, 2021) (SR-PEARL-
2021-45); 93556 (November 10, 2021), 86 FR 64235 (November 17, 2021) 
(SR-PEARL-2021-53); 93774 (December 14, 2021), 86 FR 71952 (December 
20, 2021) (SR-PEARL-2021-57); 93894 (January 4, 2022), 87 FR 1203 
(January 10, 2022) (SR-PEARL-2021-58); 94258 (February 15, 2022), 87 
FR 9659 (February 22, 2022) (SR-PEARL-2022-03); 94286 (February 18, 
2022), 87 FR 10860 (February 25, 2022) (SR-PEARL-2022-04); 94721 
(April 14, 2022), 87 FR 23573 (April 20, 2022) (SR-PEARL-2022-11); 
94722 (April 14, 2022), 87 FR 23660 (April 20, 2022) (SR-PEARL-2022-
12); 94888 (May 11, 2022), 87 FR 29892 (May 17, 2022) (SR-PEARL-
2022-18).
    \46\ 15 U.S.C. 78f(b)(4).
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    Because of the un-level playing field created by the Revised Review 
Process and Staff Guidance, the Exchange believes that the Commission 
Staff, at this point, should either (a) provide sufficient clarity on 
how its cost-based standard can be met, including a clear and 
exhaustive articulation of required data and its views on acceptable 
margins,\47\ to the extent that this is pertinent; (b) establish a 
framework to provide for commensurate non-transaction based fees among 
competing exchanges to ensure fee parity; \48\ or (c) accept that 
certain competition-based arguments are applicable given the linkage 
between non-transaction fees and transaction fees, especially where 
non-transaction fees among exchanges are based upon disparate standards 
of review, lack parity, and impede fair competition. Considering the 
absence of any such framework or clarity, the Exchange believes that 
the Commission does not have a reasonable basis to deny the Exchange 
this change in fees, where the proposed change would result in fees 
meaningfully lower than comparable fees at competing exchanges and 
where the associated non-transaction revenue is meaningfully lower than 
competing exchanges.
---------------------------------------------------------------------------

    \47\ To the extent that the cost-based standard includes 
Commission Staff making determinations as to the appropriateness of 
certain profit margins, the Exchange believes that Staff should be 
clear as to what they determine is an appropriate profit margin.
    \48\ In light of the arguments above regarding disparate 
standards of review for historical legacy non-transaction fees and 
current non-transaction fees for non-legacy exchanges, a fee parity 
alternative would be one possible way to avoid the current unfair 
and discriminatory effect of the Staff Guidance and Revised Review 
Process. See, e.g., CSA Staff Consultation Paper 21-401, Real-Time 
Market Data Fees, available at https://www.bcsc.bc.ca/-/media/PWS/Resources/Securities_Law/Policies/Policy2/21401_Market_Data_Fee_CSA_Staff_Consulation_Paper.pdf.
---------------------------------------------------------------------------

    In light of the above, disapproval of this would not meet the 
fairness standard under the Act, would be discriminatory and place a 
substantial burden on competition. The Exchange would be uniquely 
disadvantaged by not being able to increase its access fees to 
comparable levels (or lower levels than current market rates) to those 
of other options exchanges for connectivity. If the Commission Staff 
were to disapprove this proposal, that action, and not market forces, 
would substantially affect whether the Exchange can be successful in 
its competition with other options exchanges. Disapproval of this 
filing could also be viewed as an arbitrary and capricious decision 
should the Commission Staff continue to ignore its past treatment of 
non-transaction fee filings before implementation of the Revised Review 
Process and Staff Guidance and refuse to allow such filings to be 
approved despite significantly enhanced arguments and cost 
disclosures.\49\
---------------------------------------------------------------------------

    \49\ The Exchange's costs have clearly increased and continue to 
increase, particularly regarding capital expenditures, as well as 
employee benefits provided by third parties (e.g., healthcare and 
insurance). Yet, practically no fee change proposed by the Exchange 
to cover its ever increasing costs has been acceptable to the 
Commission Staff since 2021. The only other fair and reasonable 
alternative would be to require the numerous fee filings 
unquestioningly approved before the Staff Guidance and Revised 
Review Process to ``develop a record,'' and to ``explain their 
conclusions, based on that record, in a written decision that is 
sufficient to enable us to perform our review,'' and to ensure a 
comparable review process with the Exchange's filing.
---------------------------------------------------------------------------

    Lastly, the Exchange notes that the Commission Staff has allowed 
similar fee increases by other exchanges to remain in effect by 
publishing those filings for comment and allowing the exchange to 
withdraw and re-file numerous times.\50\ Recently, the Commission Staff 
has not afforded the Exchange the same flexibility.\51\ This again is 
evidence that the Commission Staff is not treating non-transaction fee 
filings in a consistent manner and is holding exchanges to different 
levels of scrutiny in reviewing filings.
---------------------------------------------------------------------------

    \50\ See, e.g., Securities Exchange Act Release Nos. 93937 
(January 10, 2022), 87 FR 2466 (January 14, 2022) (SR-MEMX-2021-22); 
94419 (March 15, 2022), 87 FR 16046 (March 21, 2022) (SR-MEMX-2022-
02); SR-MEMX-2022-12 (withdrawn before being noticed); 94924 (May 
16, 2022), 87 FR 31026 (May 20, 2022) (SR-MEMX-2022-13); 95299 (July 
15, 2022), 87 FR 43563 (July 21, 2022) (SR-MEMX-2022-17); SR-MEMX-
2022-24 (withdrawn before being noticed); 95936 (September 27, 
2022), 87 FR 59845 (October 3, 2022) (SR-MEMX-2022-26); 94901 (May 
12, 2022), 87 FR 30305 (May 18, 2022) (SR-MRX-2022-04); SR-MRX-2022-
06 (withdrawn before being noticed); 95262 (July 12, 2022), 87 FR 
42780 (July 18, 2022) (SR-MRX-2022-09); 95710 (September 8, 2022), 
87 FR 56464 (September 14, 2022) (SR-MRX-2022-12); 96046 (October 
12, 2022), 87 FR 63119 (October 18, 2022) (SR-MRX-2022-20); 95936 
(September 27, 2022), 87 FR 59845 (October 3, 2022) (SR-MEMX-2022-
26); and 96430 (December 1, 2022), 87 FR 75083 (December 7, 2022) 
(SR-MEMX-2022-32).
    \51\ Securities Exchange Act Release Nos. 94721 (April 14, 
2022), 87 FR 23573 (April 20, 2022) (SR-PEARL-2022-11) and 94722 
(April 14, 2022), 87 FR 23660 (April 20, 2022) (SR-PEARL-2022-12).
---------------------------------------------------------------------------

* * * * *
10Gb ULL Connectivity Fee Change
    The Exchange recently filed a proposal to no longer operate 10Gb 
connectivity to the Exchange on a single shared network with its 
affiliate, MIAX. This change is an operational necessity due to ever-
increasing capacity constraints and to accommodate anticipated access 
needs for Members and other market participants.\52\ This proposal: (i) 
sets forth the applicable fees for the bifurcated 10Gb ULL network; and 
(ii) removes provisions in the Fee Schedule that provides for a shared 
10Gb ULL network; and (iii)

[[Page 2712]]

specifies that market participants may continue to connect to both the 
Exchange and MIAX via the 1Gb network.
---------------------------------------------------------------------------

    \52\ See supra note 8.
---------------------------------------------------------------------------

    The Exchange plans to bifurcate the Exchange and MIAX 10Gb ULL 
networks in the first quarter of 2023, currently anticipated to be 
effective on January 23, 2023. The Exchange issued an alert on August 
12, 2022 publicly announcing the planned network change and 
implementation plan and dates to provide market participants adequate 
time to prepare.\53\ Upon bifurcation of the 10Gb ULL network, 
subscribers would need to purchase separate connections to the Exchange 
and MIAX at the applicable rate. The Exchange's proposed amended rate 
for 10Gb ULL connectivity is described below. Until the 10Gb ULL 
network is bifurcated, subscribers to 10Gb ULL connectivity would be 
able to connect to both the Exchange and MIAX at the applicable rate 
set forth below.
---------------------------------------------------------------------------

    \53\ Id.
---------------------------------------------------------------------------

    The Exchange, therefore, proposes to amend the Fee Schedule to 
increase the fees for Members and non-Members to access the Exchange's 
system networks \54\ via a 10Gb ULL fiber connection and to specify 
that this fee is for a dedicated connection to the Exchange and no 
longer provides access to MIAX. Specifically, the Exchange proposes to 
amend Sections (5)(a)-(b) of the Fee Schedule to increase the 10Gb ULL 
connectivity fee for Members and non-Members from $10,000 per month to 
$13,500 per month (``10Gb ULL Fee'').\55\ The Exchange also proposes to 
amend the Fee Schedule to reflect the bifurcation of the 10Gb ULL 
network and specify that only the 1Gb network provides access to both 
the Exchange and MIAX.
---------------------------------------------------------------------------

    \54\ The Exchange's system networks consist of the Exchange's 
extranet, internal network, and external network.
    \55\ Market participants that purchase additional 10Gb ULL 
connections as a result of this change will not be subject to the 
Exchange's Member Network Connectivity Testing and Certification Fee 
under Section (4)(c) of the Exchange's fee schedule. See Section 
(4)(c) of the Exchange's fee schedule available at https://www.miaxoptions.com/sites/default/files/fee_schedule-files/MIAX_Options_Fee_Schedule_10192022.pdf (providing that ``Network 
Connectivity Testing and Certification Fees will not be assessed in 
situations where the Exchange initiates a mandatory change to the 
Exchange's system that requires testing and certification. Member 
Network Connectivity Testing and Certification Fees will not be 
assessed for testing and certification of connectivity to the 
Exchange's Disaster Recovery Facility.'').
---------------------------------------------------------------------------

    The Exchange proposes to make the following changes to reflect the 
bifurcated 10Gb ULL network for the Exchange and MIAX. First, in the 
Definitions section of the Fee Schedule, the Exchange proposes to amend 
the last sentence in the definition of ``MENI'' to specify that the 
MENI can be configured to provide network connectivity to the trading 
platforms, market data systems, test systems, and disaster recovery 
facilities of the Exchange's affiliate, MIAX, via a single, shared 1Gb 
connection. Next, the Exchange proposes to amend the explanatory 
paragraphs below the network connectivity fee tables in Sections 
(5)(a)-(b) of the Fee Schedule to specify that, with the bifurcated 
10Gb ULL network, Members (and non-Members) utilizing the MENI to 
connect to the trading platforms, market data systems, test systems, 
and disaster recovery facilities of the Exchange and MIAX via a single, 
can only do so via a shared 1Gb connection.
    The Exchange will continue to assess monthly Member and non-Member 
network connectivity fees for connectivity to the primary and secondary 
facilities in any month the Member or non-Member is credentialed to use 
any of the Exchange APIs or market data feeds in the production 
environment. The Exchange will continue to pro-rate the fees when a 
Member or non-Member makes a change to the connectivity (by adding or 
deleting connections) with such pro-rated fees based on the number of 
trading days that the Member or non-Member has been credentialed to 
utilize any of the Exchange APIs or market data feeds in the production 
environment through such connection, divided by the total number of 
trading days in such month multiplied by the applicable monthly rate.
    Implementation of 10Gb ULL Fee. The proposed 10Gb ULL fee will be 
effective January 1, 2023. From January 1, 2023 until January 22, 2023, 
subscribers to 10Gb ULL connectivity will continue to receive access to 
both the Exchange and MIAX via a single 10Gb ULL connection. Upon 
bifurcation of the 10Gb ULL network on January 23, 2023, subscribers 
that elect to continue to access both the Exchange and MIAX via a 10Gb 
ULL connection will need to purchase separate 10Gb ULL connections from 
each exchange. Existing subscribers of 10Gb ULL connections on the 
Exchange that also purchase a new 10Gb ULL connection to access MIAX 
would pay a pro-rated portion of the monthly fee for the added 
connection for the remainder of the month.
Full Service MEO Ports--Bulk and Single
Background
    The Exchange also proposes to amend Section (5)(d) of the Fee 
Schedule to amend the calculation and amount of fees for Full Service 
MEO Ports. The Exchange currently offers different types of MEO Ports 
depending on the services required by the Member, including a Full 
Service MEO Port-Bulk,\56\ a Full Service MEO Port-Single,\57\ and a 
Limited Service MEO Port.\58\ For one monthly price, a Member may be 
allocated two (2) Full-Service MEO Ports of either type per matching 
engine \59\ and may request Limited Service MEO Ports for which MIAX 
Pearl will assess Members Limited Service MEO Port fees based on a 
sliding scale for the number of Limited Service MEO Ports utilized each 
month. The two (2) Full-Service MEO Ports that may be allocated per 
matching engine to a Member may consist of: (a) two (2) Full Service 
MEO Ports--Bulk; (b) two (2) Full Service MEO Ports--Single; or (c) one 
(1) Full Service MEO Port--Bulk and one (1) Full Service MEO Port--
Single.
---------------------------------------------------------------------------

    \56\ ``Full Service MEO Port--Bulk'' means an MEO port that 
supports all MEO input message types and binary bulk order entry. 
See the Definitions Section of the Fee Schedule.
    \57\ ``Full Service MEO Port--Single'' means an MEO port that 
supports all MEO input message types and binary order entry on a 
single order-by-order basis, but not bulk orders. See the 
Definitions Section of the Fee Schedule.
    \58\ ``Limited Service MEO Port'' means an MEO port that 
supports all MEO input message types, but does not support bulk 
order entry and only supports limited order types, as specified by 
the Exchange via Regulatory Circular. See the Definitions Section of 
the Fee Schedule.
    \59\ A ``Matching Engine'' is a part of the Exchange's 
electronic system that processes options orders and trades on a 
symbol-by-symbol basis. See the Definitions Section of the Fee 
Schedule.
---------------------------------------------------------------------------

    Currently, the Exchange assesses Members Full Service MEO Port 
Fees, either for a Full Service MEO Port--Bulk and/or for a Full 
Service MEO Port--Single, based upon the monthly total volume executed 
by a Member and its Affiliates \60\ on the Exchange, across all origin 
types, not including Excluded Contracts,\61\ as compared to the Total 
Consolidated Volume (``TCV''),\62\ in all

[[Page 2713]]

MIAX Pearl-listed options. The Exchange adopted a tier-based fee 
structure based upon the volume-based tiers detailed in the definition 
of ``Non-Transaction Fees Volume-Based Tiers'' described in the 
Definitions section of the Fee Schedule. The Exchange assesses these 
and other monthly Port fees to Members in each month the market 
participant is credentialed to use a Port in the production 
environment.
---------------------------------------------------------------------------

    \60\ ``Affiliate'' means (i) an affiliate of a Member of at 
least 75% common ownership between the firms as reflected on each 
firm's Form BD, Schedule A, or (ii) the Appointed Market Maker of an 
Appointed EEM (or, conversely, the Appointed EEM of an Appointed 
Market Maker). See the Definitions Section of the Fee Schedule.
    \61\ ``Excluded Contracts'' means any contracts routed to an 
away market for execution. See the Definitions Section of the Fee 
Schedule.
    \62\ ``TCV'' means total consolidated volume calculated as the 
total national volume in those classes listed on MIAX Pearl for the 
month for which the fees apply, excluding consolidated volume 
executed during the period of time in which the Exchange experiences 
an Exchange System Disruption (solely in the option classes of the 
affected Matching Engine). See the Definitions Section of the Fee 
Schedule.
---------------------------------------------------------------------------

Full Service MEO Port (Bulk) Fee Changes
    Current Full Service MEO Port (Bulk) Fees. The Exchange currently 
assesses all Members (Market Makers \63\ and Electronic Exchange 
Members \64\ (``EEMs'')) monthly Full Service MEO Port--Bulk fees as 
follows:
---------------------------------------------------------------------------

    \63\ The term ``Market Maker'' means a Member registered with 
the Exchange for the purpose of making markets in options contracts 
traded on the Exchange and that is vested with the rights and 
responsibilities specified in Chapter VI of Exchange Rules. See the 
Definitions Section of the Fee Schedule and Exchange Rule 100.
    \64\ The term ``Electronic Exchange Member'' or ``EEM'' means 
the holder of a Trading Permit who is a Member representing as agent 
Public Customer Orders or Non-Customer Orders on the Exchange and 
those non-Market Maker Members conducting proprietary trading. 
Electronic Exchange Members are deemed ``members'' under the 
Exchange Act. See the Definitions Section of the Fee Schedule and 
Exchange Rule 100.
---------------------------------------------------------------------------

    (i) if its volume falls within the parameters of Tier 1 of the Non-
Transaction Fees Volume-Based Tiers, or volume up to 0.30%, $3,000;
    (ii) if its volume falls within the parameters of Tier 2 of the 
Non-Transaction Fees Volume-Based Tiers, or volume above 0.30% up to 
0.60%, $4,500; and
    (iii) if its volume falls within the parameters of Tier 3 of the 
Non-Transaction Fees Volume-Based Tiers, or volume above 0.60%, $5,000.
    Proposed Full Service MEO Port (Bulk) Fees. The Exchange proposes 
to amend the calculation and amount of Full Service MEO Port (Bulk) 
fees for EEMs and Market Makers. In particular, for EEMs, the Exchange 
proposes to move away from the above-described volume tier-based fee 
structure and instead charge all EEMs that utilize Full Service MEO 
Ports (Bulk) a flat monthly fee of $7,500. For this flat monthly fee, 
EEMs will continue to be entitled to two (2) Full Service MEO Ports 
(Bulk) for each Matching Engine for the single monthly fee of $7,500. 
The Exchange now proposes to amend the calculation and amount of Full 
Service MEO Port (Bulk) fees for Market Makers by moving away from the 
above-described volume tier-based fee structure to harmonize the Full 
Service MEO Port (Bulk) fee structure for Market Makers with that of 
the Exchange's affiliates, MIAX and MIAX Emerald.\65\ The Exchange 
proposes that the amount of the monthly Full Service MEO Port (Bulk) 
fees for Market Makers would be based on the lesser of either the per 
class traded or percentage of total national average daily volume 
(``ADV'') measurement based on classes traded by volume. The amount of 
monthly Market Maker Full Service MEO Port (Bulk) fee would be based 
upon the number of classes in which the Market Maker was registered to 
quote on any given day within the calendar month, or upon the class 
volume percentages. This change in how Full Service MEO Port (Bulk) 
fees are calculated is identical to how the Exchange assesses Market 
Makers Trading Permit fees, which is in line with how numerous 
exchanges charge similar membership fees.
---------------------------------------------------------------------------

    \65\ See MIAX Fee Schedule, Section (5)(d)(ii) and MIAX Emerald 
Fee Schedule, Section (5)(d)(ii).
---------------------------------------------------------------------------

    Specifically, the Exchange proposes to adopt the following Full 
Service MEO Port (Bulk) fees for Market Makers: (i) $5,000 for Market 
Maker registrations in up to 10 option classes or up to 20% of option 
classes by national ADV; (ii) $7,500 for Market Maker registrations in 
up to 40 option classes or up to 35% of option classes by ADV; (iii) 
$10,000 for Market Maker registrations in up to 100 option classes or 
up to 50% of option classes by ADV; and (iv) $12,000 for Market Maker 
registrations in over 100 option classes or over 50% of option classes 
by ADV up to all option classes listed on MIAX Pearl. For example, if 
Market Maker 1 elects to quote the top 40 option classes which consist 
of 58% of the total national average daily volume in the prior calendar 
quarter, the Exchange would assess $7,500 to Market Maker 1 for the 
month which is the lesser of `up to 40 classes' and `over 50% of 
classes by volume up to all classes listed on MIAX Pearl'. If Market 
Maker 2 elects to quote the bottom 1000 option classes which consist of 
10% of the total national average daily volume in the prior quarter, 
the Exchange would assess $5,000 to Market Maker 2 for the month which 
is the lesser of `over 100 classes' and `up to 20% of classes by 
volume. The Exchange notes that the proposed tiers (ranging from $5,000 
to $12,000) are lower than the tiers that the Exchange's affiliates 
charge for their comparable ports (ranging from $5,000 to $20,500) for 
similar per class tier thresholds.\66\
---------------------------------------------------------------------------

    \66\ See id.
---------------------------------------------------------------------------

    With the proposed changes, a Market Maker would be determined to be 
registered in a class if that Market Maker has been registered in one 
or more series in that class.\67\ The Exchange will assess MIAX Pearl 
Market Makers the monthly Market Maker Full Service MEO Port (Bulk) fee 
based on the greatest number of classes listed on MIAX Pearl that the 
MIAX Pearl Market Maker registered to quote in on any given day within 
a calendar month. Therefore, with the proposed changes to the 
calculation of Market Maker Full Service MEO Port (Bulk) fees, the 
Exchange's Market Makers would be encouraged to quote in more series in 
each class they are registered in because each additional series in 
that class would not count against their total classes for purposes of 
the Full Service MEO Port (Bulk) fee tiers. The class volume percentage 
is based on the total national ADV in classes listed on MIAX Pearl in 
the prior calendar quarter. Newly listed option classes are excluded 
from the calculation of the monthly Market Maker Full Service MEO Port 
(Bulk) fee until the calendar quarter following their listing, at which 
time the newly listed option classes will be included in both the per 
class count and the percentage of total national ADV.
---------------------------------------------------------------------------

    \67\ Pursuant to Exchange Rule 602(a), a Member that has 
qualified as a Market Maker may register to make markets in 
individual series of options.
---------------------------------------------------------------------------

    The Exchange also proposes to adopt an alternative lower Full 
Service MEO Port (Bulk) fee for Market Makers who fall within the 2nd, 
3rd and 4th levels of the proposed Market Maker Full Service MEO Port 
(Bulk) fee table: (i) Market Maker registrations in up to 40 option 
classes or up to 35% of option classes by volume; (ii) Market Maker 
registrations in up to 100 option classes or up to 50% of option 
classes by volume; and (iii) Market Maker registrations in over 100 
option classes or over 50% of option classes by volume up to all option 
classes listed on MIAX Pearl. In particular, the Exchange proposes to 
adopt footnote ``**'' following the Market Maker Full Service MEO Port 
(Bulk) fee table for these Monthly Full Service MEO Port (Bulk) tier 
levels. New proposed footnote ``**'' will provide that if the Market 
Maker's total monthly executed volume during the relevant month is less 
than 0.040% of the total monthly TCV for MIAX Pearl-listed option 
classes for that month, then the fee will be $6,000 instead of the fee 
otherwise applicable to such level.
    The purpose of the alternative lower fee designated in proposed 
footnote ``**'' is to provide a lower fixed fee to

[[Page 2714]]

those Market Makers who are willing to quote the entire Exchange market 
(or substantial amount of the Exchange market), as objectively measured 
by either number of classes assigned or national ADV, but who do not 
otherwise execute a significant amount of volume on the Exchange. The 
Exchange believes that, by offering lower fixed fees to Market Makers 
that execute less volume, the Exchange will retain and attract smaller-
scale Market Makers, which are an integral component of the option 
marketplace, but have been decreasing in number in recent years, due to 
industry consolidation. Since these smaller-scale Market Makers utilize 
less Exchange capacity due to lower overall volume executed, the 
Exchange believes it is reasonable and equitable to offer such Market 
Makers a lower fixed fee. The Exchange notes that the Exchange's 
affiliates, MIAX and MIAX Emerald, also provide lower MIAX Express 
Interface (``MEI'') Port fees (the comparable ports on those exchanges) 
for Market Makers who quote the entire MIAX and MIAX Emerald markets 
(or substantial amount of those markets), as objectively measured by 
either number of classes assigned or national ADV, but who do not 
otherwise execute a significant amount of volume on MIAX or MIAX 
Emerald.\68\ The proposed changes to the Full Service MEO Port (Bulk) 
fees for Market Makers who fall within the 2nd, 3rd and 4th levels of 
the fee table are based upon a business determination of current Market 
Maker assignments and trading volume.
---------------------------------------------------------------------------

    \68\ See MIAX Fee Schedule, Section (5)(d)(ii), note ``*'' and 
MIAX Emerald Fee Schedule, Section (5)(d)(ii), note ````.
---------------------------------------------------------------------------

    Unlike other options exchanges that provide similar port 
functionality and charge fees on a per port basis,\69\ the Exchange 
offers Full Service MEO Ports as a package and provides Members with 
the option to receive up to two Full Service MEO Ports (described 
above) per matching engine to which that Member connects. The Exchange 
currently has twelve (12) matching engines, which means Market Makers 
may receive up to twenty-four (24) Full Service MEO Ports for a single 
monthly fee, that can vary based on the lesser of either the per class 
traded or percentage of total national ADV measurement based on classes 
traded by volume, as described above. For illustrative purposes, the 
Exchange currently assesses a fee of $5,000 per month for Market Makers 
that reach the highest Full Service MEO Port (Bulk) tier, regardless of 
the number of Full Service MEO Ports allocated to the Market Maker. For 
example, assuming a Market Maker connects to all twelve (12) matching 
engines during a month, with two Full Service MEO Ports (Bulk) per 
matching engine, this results in an effective fee of $208.33 per Full 
Service MEO Port ($5,000 divided by 24) for the month, as compared to 
other exchanges that charge over $1,000 per port and require multiple 
ports to connect to all of their matching engines.\70\ This fee had 
been unchanged since the Exchange adopted Full Service MEO Port fees in 
2018.\71\ The Exchange proposes to increase Full Service MEO Port fees, 
with the highest monthly fee of $12,000 for the Full Service MEO Ports 
(Bulk). Market Makers will continue to receive two (2) Full Service MEO 
Ports to each matching engine to which they connect for the single flat 
monthly fee. Assuming a Market Maker connects to all twelve (12) 
matching engines during the month, with two Full Service MEO Ports per 
matching engine, this would result in an effective fee of $500 per Full 
Service MEO Port ($12,000 divided by 24).
---------------------------------------------------------------------------

    \69\ See NYSE American Options Fee Schedule, Section V.A., Port 
Fees (each port charged on a per matching engine basis, with NYSE 
American having 17 match engines). See NYSE Technology FAQ and Best 
Practices: Options, Section 5.1 (How many matching engines are used 
by each exchange?) (September 2020) (providing a link to an Excel 
file detailing the number of matching engines per options exchange); 
NYSE Arca Options Fee Schedule, Port Fees (each port charged on a 
per matching engine basis, NYSE Arca having 19 match engines); and 
NYSE Technology FAQ and Best Practices: Options, Section 5.1 (How 
many matching engines are used by each exchange?) (September 2020) 
(providing a link to an Excel file detailing the number of matching 
engines per options exchange). See NASDAQ Fee Schedule, NASDAQ 
Options 7 Pricing Schedule, Section 3, Nasdaq Options Market--Ports 
and Other Services (each port charged on a per matching engine 
basis, with Nasdaq having multiple matching engines). See NASDAQ 
Specialized Quote Interface (SQF) Specification, Version 6.5b 
(updated February 13, 2020), Section 2, Architecture, available at 
https://www.nasdaq.com/docs/2020/02/18/Specialized-Quote-Interface-SQI-6.5b.pdf (the ``NASDAQ SQF Interface Specification''). The 
NASDAQ SQF Interface Specification also provides that NASDAQ's 
affiliates, NASDAQ Phlx and NASDAQ BX, Inc. (``BX''), have trading 
infrastructures that may consist of multiple matching engines with 
each matching engine trading only a range of option classes. 
Further, the NASDAQ SQF Interface Specification provides that the 
SQF infrastructure is such that the firms connect to one or more 
servers residing directly on the matching engine infrastructure. 
Since there may be multiple matching engines, firms will need to 
connect to each engine's infrastructure in order to establish the 
ability to quote the symbols handled by that engine.
    \70\ Id. See also infra notes 95 to 102 and accompanying text.
    \71\ See Securities Exchange Act Release No. 82867 (March 13, 
2018), 83 FR 12044 (March 19, 2018) (SR-PEARL-2018-07).

                                             Full Service MEO Ports
                                                     [Bulk]
----------------------------------------------------------------------------------------------------------------
                                                                Total number of
                                                                ports for market
                                              Number of match   maker to connect     Total fee     Effective per
                                                  engines         to all match       (monthly)       port fee
                                                                    engines
----------------------------------------------------------------------------------------------------------------
Pricing Based on Market Maker Being Charged                12                 24          $5,000         $208.33
 the Highest Tier (Current).................
Pricing Based on Market Maker Being Charged                12                 24          12,000             500
 the Highest Tier (as proposed).............
----------------------------------------------------------------------------------------------------------------

Full Service MEO Port (Single) Fee Changes
    Current Full Service MEO Port (Single) Fees. The Exchange currently 
assesses all Members (Market Makers and EEMs) monthly Full Service MEO 
Port (Single) fees as follows:
    (i) if its volume falls within the parameters of Tier 1 of the Non-
Transaction Fees Volume-Based Tiers, or volume up to 0.30%, $2,000;
    (ii) if its volume falls within the parameters of Tier 2 of the 
Non-Transaction Fees Volume-Based Tiers, or volume above 0.30% up to 
0.60%, $3,375; and
    (iii) if its volume falls within the parameters of Tier 3 of the 
Non-Transaction Fees Volume-Based Tiers, or volume above 0.60%, $3,750.
    Proposed Full Service MEO Port (Single) Fees. The Exchange proposes 
to

[[Page 2715]]

amend the calculation and amount of Full Service MEO Port (Single) fees 
for EEMs and Market Makers. In particular, the Exchange proposes to 
move away from the above-described volume tier-based fee structure and 
instead charge all Members that utilize Full Service MEO Ports (Single) 
a flat monthly fee of $4,000. For this flat monthly fee, all Members 
will continue to be entitled to two (2) Full Service MEO Ports (Single) 
for each Matching Engine for the single monthly fee of $4,000.
    The Exchange offers various types of ports with differing prices 
because each port accomplishes different tasks, are suited to different 
types of Members, and consume varying capacity amounts of the network. 
For instance, MEO ports allow for a higher throughput and can handle 
much higher quote/order rates than FIX ports. Members that are Market 
Makers or high frequency trading firms utilize these ports (typically 
coupled with 10Gb ULL connectivity) because they transact in 
significantly higher amounts of messages being sent to and from the 
Exchange, versus FIX port users, who are traditionally customers 
sending only orders to the Exchange (typically coupled with 1Gb 
connectivity). The different types of ports cater to the different 
types of Exchange Memberships and different capabilities of the various 
Exchange Members. Certain Members need ports and connections that can 
handle using far more of the network's capacity for message throughput, 
risk protections, and the amount of information that the System has to 
assess. Those Members account for the vast majority of network capacity 
utilization and volume executed on the Exchange, as discussed 
throughout. For example, three (3) Members account for 64% of all 10Gb 
ULL connections and Full Service MEO Ports purchased.
    The Exchange proposes to increase its monthly Full Service MEO Port 
fees since it has not done so since the fees were adopted in 2018,\72\ 
which are designed to recover a portion of the costs associated with 
directly accessing the Exchange. As described above, the Exchange's 
affiliates, MIAX and MIAX Emerald, also charge fees for their high 
throughput, low latency ports in a similar fashion as the Exchange 
proposes to charge for its MEO Ports--generally, the more active user 
the Member (i.e., the greater number/greater national ADV of classes 
assigned to quote on MIAX and MIAX Emerald), the higher the MEI Port 
fee.\73\ This concept is, therefore, not new or novel.
---------------------------------------------------------------------------

    \72\ See id.
    \73\ See Exchange Fee Schedule, Section (5)d)ii); MIAX Emerald 
Fee Schedule, Section (5)(d)(ii).
---------------------------------------------------------------------------

    Implementation of Full Service MEO Port Fees. This proposed fee 
change will be effective January 1, 2023.
2. Statutory Basis
    The Exchange believes that the proposed fees are consistent with 
Section 6(b) of the Act \74\ in general, and furthers the objectives of 
Section 6(b)(4) of the Act \75\ in particular, in that it provides for 
the equitable allocation of reasonable dues, fees and other charges 
among Members and other persons using any facility or system which the 
Exchange operates or controls. The Exchange also believes the proposed 
fees further the objectives of Section 6(b)(5) of the Act \76\ in that 
they are designed to promote just and equitable principles of trade, 
remove impediments to and perfect the mechanism of a free and open 
market and a national market system, and, in general protect investors 
and the public interest and are not designed to permit unfair 
discrimination between customers, issuers, brokers and dealers.
---------------------------------------------------------------------------

    \74\ 15 U.S.C. 78f(b).
    \75\ 15 U.S.C. 78f(b)(4).
    \76\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Exchange believes that the information provided to justify the 
proposed fees meets or exceeds the amount of detail required in respect 
of proposed fee changes under the Revised Review Process and as set 
forth in recent Staff Guidance. Based on both the BOX Order \77\ and 
the Staff Guidance,\78\ the Exchange believes that the proposed fees 
are consistent with the Act because they are: (i) reasonable, equitably 
allocated, not unfairly discriminatory, and not an undue burden on 
competition; (ii) comply with the BOX Order and the Staff Guidance; and 
(iii) supported by evidence (including comprehensive revenue and cost 
data and analysis) that they are fair and reasonable and will not 
result in excessive pricing or supra-competitive profit.
---------------------------------------------------------------------------

    \77\ See supra note 18.
    \78\ See supra note 19.
---------------------------------------------------------------------------

    The Exchange believes that exchanges, in setting fees of all types, 
should meet high standards of transparency to demonstrate why each new 
fee or fee amendment meets the requirements of the Act that fees be 
reasonable, equitably allocated, not unfairly discriminatory, and not 
create an undue burden on competition among market participants. The 
Exchange believes this high standard is especially important when an 
exchange imposes various fees for market participants to access an 
exchange's marketplace.
    In the Staff Guidance, the Commission Staff states that, ``[a]s an 
initial step in assessing the reasonableness of a fee, staff considers 
whether the fee is constrained by significant competitive forces.'' 
\79\ The Staff Guidance further states that, ``. . . even where an SRO 
cannot demonstrate, or does not assert, that significant competitive 
forces constrain the fee at issue, a cost-based discussion may be an 
alternative basis upon which to show consistency with the Exchange 
Act.'' \80\ In the Staff Guidance, the Commission Staff further states 
that, ``[i]f an SRO seeks to support its claims that a proposed fee is 
fair and reasonable because it will permit recovery of the SRO's costs, 
. . . , specific information, including quantitative information, 
should be provided to support that argument.'' \81\
---------------------------------------------------------------------------

    \79\ Id.
    \80\ Id.
    \81\ Id.
---------------------------------------------------------------------------

    The proposed fees are reasonable because they promote parity among 
exchange pricing for access, which promotes competition, including in 
the Exchanges' ability to competitively price transaction fees, invest 
in infrastructure, new products and other innovations, all while 
allowing the Exchange to recover its costs to provide dedicated access 
via 10Gb ULL connectivity (driven by the bifurcation of the 10Gb ULL 
network) and Full Service MEO Ports. As discussed above, the Revised 
Review Process and Staff Guidance have created an uneven playing field 
between legacy and non-legacy exchanges by severely restricting non-
legacy exchanges from being able to increase non-transaction relates 
fees to provide them with additional necessary revenue to better 
compete. The much higher non-transaction fees charged by the legacy 
exchanges provides them with two significant competitive advantages: 
(i) additional non-transaction revenue that may be used to fund areas 
other than the non-transaction service related to the fee, such as 
investments in infrastructure, advertising, new products and other 
innovations; and (ii) greater flexibility to lower their transaction 
fees (or use the revenue from the higher non-transaction fees to 
subsidize transaction fee rates). The latter is more immediately 
impactful in competition for order flow and market share, given the 
variable nature of this cost on Member firms. The absence of a 
reasonable path forward to increase non-transaction fees to comparable 
(or lower rates) limits the

[[Page 2716]]

Exchange's flexibility to, among other things, make additional 
investments in infrastructure and advertising, diminishes the ability 
to remain competitive on transaction fees, and hinders the ability to 
compete for order flow and market share. Again, while one could debate 
whether the pricing of non-transaction fees are subject to the same 
market forces as transaction fees, there is little doubt that 
subjecting one exchange to a materially different standard than that 
applied to other exchanges for non-transaction fees leaves that 
exchange at a disadvantage in its ability to compete with its pricing 
of transaction fees.
The Proposed Fees Ensure Parity Among Exchange Access Fees, Which 
Promotes Competition
    The Exchange commenced operations in February 2017 \82\ and adopted 
its initial fee schedule, with 10Gb ULL connectivity fees set at $8,500 
(the Exchange originally had a non-ULL 10Gb connectivity option, which 
it has since removed) and a fee waiver for all Full Service MEO Port 
fees.\83\ As a new exchange entrant, the Exchange chose to offer Full 
Service MEO Ports free of charge to encourage market participants to 
trade on the Exchange and experience, among things, the quality of the 
Exchange's technology and trading functionality. This practice is not 
uncommon. New exchanges often do not charge fees or charge lower fees 
for certain services such as memberships/trading permits to attract 
order flow to an exchange, and later amend their fees to reflect the 
true value of those services, absorbing all costs to provide those 
services in the meantime. Allowing new exchange entrants time to build 
and sustain market share through various pricing incentives before 
increasing non-transaction fees encourages market entry and fee parity, 
which promotes competition among exchanges. It also enables new 
exchanges to mature their markets and allow market participants to 
trade on the new exchanges without fees serving as a potential barrier 
to attracting memberships and order flow.\84\
---------------------------------------------------------------------------

    \82\ See MIAX PEARL Successfully Launches Trading Operations, 
dated February 6, 2017, available at https://www.miaxoptions.com/sites/default/files/alert-files/MIAX_Press_Release_02062017.pdf.
    \83\ See Securities Exchange Act Release No. 80061 (February 17, 
2017), 82 FR 11676 (February 24, 2017) (SR-PEARL-2017-10).
    \84\ See Securities Exchange Act Release No. 94894 (May 11, 
2022), 87 FR 29987 (May 17, 2022) (SR-BOX-2022-17) (stating, ``[t]he 
Exchange established this lower (when compared to other options 
exchanges in the industry) Participant Fee in order to encourage 
market participants to become Participants of BOX. . .''). See also 
Securities Exchange Act Release No. 90076 (October 2, 2020), 85 FR 
63620 (October 8, 2020) (SR-MEMX-2020-10) (proposing to adopt the 
initial fee schedule and stating that ``[u]nder the initial proposed 
Fee Schedule, the Exchange proposes to make clear that it does not 
charge any fees for membership, market data products, physical 
connectivity or application sessions.''). MEMX's market share has 
increased and recently proposed to adopt numerous non-transaction 
fees, including fees for membership, market data, and connectivity. 
See Securities Exchange Act Release Nos. 93927 (January 7, 2022), 87 
FR 2191 (January 13, 2022) (SR-MEMX-2021-19) (proposing to adopt 
membership fees); 96430 (December 1, 2022), 87 FR 75083 (December 7, 
2022) (SR-MEMX-2022-32) and 95936 (September 27, 2022), 87 FR 59845 
(October 3, 2022) (SR-MEMX-2022-26) (proposing to adopt fees for 
connectivity). See also, e.g., Securities Exchange Act Release No. 
88211 (February 14, 2020), 85 FR 9847 (February 20, 2020) (SR-
NYSENAT-2020-05), available at https://www.nyse.com/publicdocs/nyse/markets/nyse-national/rule-filings/filings/2020/SR-NYSENat-2020-05.pdf (initiating market data fees for the NYSE National exchange 
after initially setting such fees at zero).
---------------------------------------------------------------------------

    Later in 2018, as the Exchange's market share increased,\85\ the 
Exchange adopted nominal fees for Full Service MEO Ports.\86\ The 
Exchange last increased the fees for its 10Gb ULL fiber connections 
from $9,300 to $10,000 per month on January 1, 2021.\87\ The Exchange 
balanced business and competitive concerns with the need to financially 
compete with the larger incumbent exchanges that charge higher fees for 
similar connectivity and use that revenue to invest in their technology 
and other service offerings.
---------------------------------------------------------------------------

    \85\ The Exchange experienced a monthly average trading volume 
of 3.94% for the month of March 2018. See Market at a Glance, 
available at www.miaxoptions.com.
    \86\ See Securities Exchange Act Release No. 82867 (March 13, 
2018), 83 FR 12044 (March 19, 2018) (SR-PEARL-2018-07).
    \87\ See Securities Exchange Act Release No. 90981 (January 25, 
2021), 86 FR 7582 (January 29, 2021) (SR-PEARL-2021-01).
---------------------------------------------------------------------------

    The proposed changes to the Fee Schedule are reasonable in several 
respects. As a threshold matter, the Exchange is subject to significant 
competitive forces, which constrains its pricing determinations for 
transaction fees as well as non-transaction fees. The fact that the 
market for order flow is competitive has long been recognized by the 
courts. In NetCoalition v. Securities and Exchange Commission, the D.C. 
Circuit stated, ``[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'. . ..'' \88\
---------------------------------------------------------------------------

    \88\ See NetCoalition, 615 F.3d at 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)).
---------------------------------------------------------------------------

    The Commission and the courts have repeatedly expressed their 
preference for competition over regulatory intervention to determine 
prices, products, and services in the securities markets. In Regulation 
NMS, while adopting a series of steps to improve the current market 
model, 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.'' \89\
---------------------------------------------------------------------------

    \89\ See Securities Exchange Act Release No. 51808 (June 9, 
2005), 70 FR 37496, 37499 (June 29, 2005) (``Regulation NMS Adopting 
Release'').
---------------------------------------------------------------------------

    Congress directed the Commission to ``rely on `competition, 
whenever possible, in meeting its regulatory responsibilities for 
overseeing the SROs and the national market system.''' \90\ As a 
result, and as evidenced above, the Commission has historically relied 
on competitive forces to determine whether a fee proposal is equitable, 
fair, reasonable, and not unreasonably or unfairly discriminatory. ``If 
competitive forces are operative, the self-interest of the exchanges 
themselves will work powerfully to constrain unreasonable or unfair 
behavior.'' \91\ Accordingly, ``the existence of significant 
competition provides a substantial basis for finding that the terms of 
an exchange's fee proposal are equitable, fair, reasonable, and not 
unreasonably or unfairly discriminatory.'' \92\ In the Revised Review 
Process and Staff Guidance, Commission Staff indicated that they would 
look at factors beyond the competitive environment, such as cost, only 
if a ``proposal lacks persuasive evidence that the proposed fee is 
constrained by significant competitive forces.'' \93\
---------------------------------------------------------------------------

    \90\ See NetCoalition, 615 F.3d at 534-35; see also H.R. Rep. 
No. 94-229 at 92 (1975) (``[I]t is the intent of the conferees that 
the national market system evolve through the interplay of 
competitive forces as unnecessary regulatory restrictions are 
removed.'').
    \91\ See Securities Exchange Act Release No. 59039 (December 2, 
2008), 73 FR 74,770 (December 9, 2008) (SR-NYSEArca-2006-21).
    \92\ Id.
    \93\ See Staff Guidance, supra note 19.
---------------------------------------------------------------------------

    The Exchange believes the competing exchanges' 10Gb connectivity 
and port fees are useful examples of alternative approaches to 
providing and charging for access and demonstrating how such fees are 
competitively set and

[[Page 2717]]

constrained. To that end, the Exchange believes the proposed fees are 
reasonable because the proposed fees are similar to or less than fees 
charged for similar connectivity and port access provided by other 
options exchanges with comparable market shares. As such, the Exchange 
believes that denying its ability to institute fees that are closer to 
parity with legacy exchanges, in effect, impedes its ability to 
compete, including in its pricing of transaction fees and ability to 
invest in competitive infrastructure.
    The following table shows how the Exchange's proposed fees remain 
similar to or less than fees charged for similar connectivity and port 
access provided by other options exchanges with similar market share. 
Each of the market data rates in place at competing options exchanges 
were filed with the Commission for immediate effectiveness and remain 
in place today.

----------------------------------------------------------------------------------------------------------------
                Exchange                   Type of connection or port   Monthly fee (per connection or per port)
----------------------------------------------------------------------------------------------------------------
MIAX Pearl (as proposed) (equity options  10Gb ULL connection........  $13,500.
 market share of 4.45% for the month of   Full Service MEO Port        Lesser of either the per class basis or
 November 2022) \94\.                      (Bulk) for Market Makers.    percentage of total national ADV by the
                                                                        Market Maker, as follows:
                                                                       $5,000-up to 10 classes or up to 20% of
                                                                        classes by volume.
                                                                       $7,500 **-up to 40 classes or up to 35%
                                                                        of classes by volume.
                                                                       $10,000 **-up to 100 classes or up to 50%
                                                                        of classes by volume.
                                                                       $12,000 **-over 100 classes or over 50%
                                                                        of all classes by volume up to all
                                                                        classes (or $500 per port per matching
                                                                        engine).
                                                                       ** A lower rate of $6,000 will apply to
                                                                        these tiers if the Market Maker's total
                                                                        monthly executed volume is less than
                                                                        0.040% of total monthly TCV for MIAX
                                                                        Pearl options.
                                          Full Service MEO Port        $7,500 (or $312.50 per port per matching
                                           (Bulk) for EEMs.             engine).
                                          Full Service MEO Port        $4,000 (or $166.66 per port per matching
                                           (Single) for Market Makers   engine).
                                           and EEMs.
NASDAQ \95\ (equity options market share  10Gb Ultra fiber connection  $15,000 per connection.
 of 7.14% for the month of November       SQF Port...................  1-5 ports: $1,500 per port.
 2022) \96\.                                                           6-20 ports: $1,000 per port.
                                                                       21 or more ports: $500 per port.
NASDAQ ISE LLC (``ISE'') \97\ (equity     10Gb Ultra fiber connection  $15,000 per connection.
 options market share of 6.19% for the    SQF Port...................  $1,100 per port.
 month of November 2022) \98\.
NYSE American LLC (``NYSE American'')     10Gb LX LCN connection.....  $22,000 per connection.
 \99\ (equity options market share of     Order/Quote Entry Port.....  Ports 1-40. $450 per port.
 6.93% for the month of November 2022)                                 Ports 41 and greater. $150 per port.
 \100\.
NASDAQ GEMX, LLC (``GEMX'') \101\         10Gb Ultra connection......  $15,000 per connection.
 (equity options market share of 1.93%    SQF Port...................  $1,250 per port.
 for the month of November 2022) \102\.
----------------------------------------------------------------------------------------------------------------

    The Exchange acknowledges that, without additional contextual 
information, the above table may lead someone to believe that the 
Exchange's proposed fees for Full Service MEO Ports is higher than 
other exchanges when in fact, that is not true. The Exchange provides 
each Member or non-Member access to two (2) ports on all twelve (12) 
matching engines for a single fee and a vast majority choose to connect 
to all twelve (12) matching engines and utilize both ports for a total 
of 24 ports. Other exchanges charge on a per port basis and require 
firms to connect to multiple matching engines, thereby multiplying the 
cost to access their full market.\103\
---------------------------------------------------------------------------

    \94\ See supra note 85.
    \95\ See NASDAQ Pricing Schedule, Options 7, Section 3, Ports 
and Other Services and NASDAQ Rules, General 8: Connectivity, 
Section 1. Co-Location Services.
    \96\ See supra note 85.
    \97\ See ISE Pricing Schedule, Options 7, Section 7, 
Connectivity Fees and ISE Rules, General 8: Connectivity.
    \98\ See supra note 85.
    \99\ See NYSE American Options Fee Schedule, Section V.A. Port 
Fees and Section V.B. Co-Location Fees.
    \100\ See supra note 85.
    \101\ See GEMX Pricing Schedule, Options 7, Section 6, 
Connectivity Fees and GEMX Rules, General 8: Connectivity.
    \102\ See supra note 85.
    \103\ See Specialized Quote Interface Specification, Nasdaq 
PHLX, Nasdaq Options Market, Nasdaq BX Options, Version 6.5a, 
Section 2, Architecture (revised August 16, 2019), available at 
http://www.nasdaqtrader.com/content/technicalsupport/specifications/TradingProducts/SQF6.5a-2019-Aug.pdf. The Exchange notes that it is 
unclear whether the NASDAQ exchanges include connectivity to each 
matching engine for the single fee or charge per connection, per 
matching engine. See also NYSE Technology FAQ and Best Practices: 
Options, Section 5.1 (How many matching engines are used by each 
exchange?) (September 2020). The Exchange notes that NYSE provides a 
link to an Excel file detailing the number of matching engines per 
options exchange, with Arca and Amex having 19 and 17 matching 
engines, respectively.
---------------------------------------------------------------------------

    There is no requirement, regulatory or otherwise, that any broker-
dealer connect to and access any (or all of) the available options 
exchanges. Market participants may choose to become a member of one or 
more options exchanges based on the market participant's assessment of 
the business opportunity relative to the costs of the Exchange. With 
this, there is elasticity of demand for exchange membership. As an 
example, one Member will terminate their membership effective January 
1, 2023 as a direct result of the proposed fee changes.
    It is not a requirement for market participants to become members 
of all options exchanges, in fact, certain market participants conduct 
an options business as a member of only one options market.\104\ A very 
small number

[[Page 2718]]

of market participants choose to become a member of all sixteen options 
exchanges. Most firms that actively trade on options markets are not 
currently Members of the Exchange and do not purchase connectivity or 
port services at the Exchange. Connectivity and ports are only 
available to Members or service bureaus, and only a Member may utilize 
a port.\105\
---------------------------------------------------------------------------

    \104\ BOX recently adopted an electronic market maker trading 
permit fee. See Securities Exchange Release No. 94894 (May 11, 
2022), 87 FR 29987 (May 17, 2022) (SR-BOX-2022-17). In that 
proposal, BOX stated that, ``. . . it is not aware of any reason why 
Market Makers could not simply drop their access to an exchange (or 
not initially access an exchange) if an exchange were to establish 
prices for its non-transaction fees that, in the determination of 
such Market Maker, did not make business or economic sense for such 
Market Maker to access such exchange. [BOX] again notes that no 
market makers are required by rule, regulation, or competitive 
forces to be a Market Maker on [BOX].'' Also in 2022, MEMX 
established a monthly membership fee. See Securities Exchange Act 
Release No. 93927 (January 7, 2022), 87 FR 2191 (January 13, 2022) 
(SR-MEMX-2021-19). In that proposal, MEMX reasoned that that there 
is value in becoming a member of the exchange and stated that it 
believed that the proposed membership fee ``is not unfairly 
discriminatory because no broker-dealer is required to become a 
member of the Exchange'' and that ``neither the trade-through 
requirements under Regulation NMS nor broker-dealers' best execution 
obligations require a broker-dealer to become a member of every 
exchange.''
    \105\ Service Bureaus may obtain ports on behalf of Members.
---------------------------------------------------------------------------

    One other exchange recently noted in a proposal to amend their own 
trading permit fees that of the 62 market making firms that are 
registered as Market Makers across Cboe, MIAX, and BOX, 42 firms access 
only one of the three exchanges.\106\ The Exchange and its affiliates, 
MIAX and MIAX Emerald, have a total of 47 members. Of those 47 total 
members, 35 are members of all three affiliated exchanges, four are 
members of only two (2) affiliated exchanges, and eight (8) are members 
of only one affiliated exchange. The Exchange also notes that no firm 
is a Member of the Exchange only. The above data evidences that a 
broker-dealer need not have direct connectivity to all options 
exchanges, let alone the Exchange and its two affiliates, and broker-
dealers may elect to do so based on their own business decisions and 
need to directly access each exchange's liquidity pool.
---------------------------------------------------------------------------

    \106\ See Securities Exchange Act Release No. 94894 (May 11, 
2022), 87 FR 29987 (May 17, 2022) (SR-BOX-2022-17) (Notice of Filing 
and Immediate Effectiveness of a Proposed Rule Change to Amend the 
Fee Schedule on the BOX Options Market LLC Facility To Adopt 
Electronic Market Maker Trading Permit Fees). The Exchange believes 
that BOX's observation demonstrates that market making firms can, 
and do, select which exchanges they wish to access, and, 
accordingly, options exchanges must take competitive considerations 
into account when setting fees for such access.
---------------------------------------------------------------------------

    Not only is there not an actual regulatory requirement to connect 
to every options exchange, the Exchange believes there is also no ``de 
facto'' or practical requirement as well, as further evidenced by the 
broker-dealer membership analysis of the options exchanges discussed 
above. As noted above, this is evidenced by the fact that one Member 
will terminate their membership effective January 1, 2023 as a direct 
result of the proposed fee changes. Indeed, broker-dealers choose if 
and how to access a particular exchange and because it is a choice, the 
Exchange must set reasonable pricing, otherwise prospective members 
would not connect and existing members would disconnect from the 
Exchange. The decision to become a member of an exchange, particularly 
for registered market makers, is complex, and not solely based on the 
non-transactional costs assessed by an exchange. As noted herein, 
specific factors include, but are not limited to: (i) an exchange's 
available liquidity in options series; (ii) trading functionality 
offered on a particular market; (iii) product offerings; (iv) customer 
service on an exchange; and (v) transactional pricing. Becoming a 
member of the exchange does not ``lock'' a potential member into a 
market or diminish the overall competition for exchange services.
    In lieu of becoming a member at each options exchange, a market 
participant may join one exchange and elect to have their orders routed 
in the event that a better price is available on an away market. 
Nothing in the Order Protection Rule requires a firm to become a Member 
at--or establish connectivity to--the Exchange.\107\ If the Exchange is 
not at the NBBO, the Exchange will route an order to any away market 
that is at the NBBO to ensure that the order was executed at a superior 
price and prevent a trade-through.\108\
---------------------------------------------------------------------------

    \107\ See Options Order Protection and Locked/Crossed Market 
Plan (August 14, 2009), available at https://www.theocc.com/getmedia/7fc629d9-4e54-4b99-9f11-c0e4db1a2266/options_order_protection_plan.pdf.
    \108\ Members may elect to not route their orders by utilizing 
the Do Not Route order type. See Exchange Rule 516(g).
---------------------------------------------------------------------------

    With respect to the submission of orders, Members may also choose 
not to purchase any connection at all from the Exchange, and instead 
rely on the port of a third party to submit an order. For example, a 
third-party broker-dealer Member of the Exchange may be utilized by a 
retail investor to submit orders into an Exchange. An institutional 
investor may utilize a broker-dealer, a service bureau,\109\ or request 
sponsored access \110\ through a member of an exchange in order to 
submit a trade directly to an options exchange.\111\ A market 
participant may either pay the costs associated with becoming a member 
of an exchange or, in the alternative, a market participant may elect 
to pay commissions to a broker-dealer, pay fees to a service bureau to 
submit trades, or pay a member to sponsor the market participant in 
order to submit trades directly to an exchange.
---------------------------------------------------------------------------

    \109\ Service Bureaus provide access to market participants to 
submit and execute orders on an exchange. On the Exchange, a Service 
Bureau may be a Member. Some Members utilize a Service Bureau for 
connectivity and that Service Bureau may not be a Member. Some 
market participants utilize a Service Bureau who is a Member to 
submit orders.
    \110\ Sponsored Access is an arrangement whereby a Member 
permits its customers to enter orders into an exchange's system that 
bypass the Member's trading system and are routed directly to the 
Exchange, including routing through a service bureau or other third-
party technology provider.
    \111\ This may include utilizing a floor broker and submitting 
the trade to one of the five options trading floors.
---------------------------------------------------------------------------

    Non-Member third-parties, such as service bureaus and extranets, 
resell the Exchange's connectivity. This indirect connectivity is 
another viable alternative for market participants to trade on the 
Exchange without connecting directly to the Exchange (and thus not pay 
the Exchange's connectivity fees), which alternative is already being 
used by non-Members and further constrains the price that the Exchange 
is able to charge for connectivity and other access fees to its market. 
The Exchange notes that it could, but chooses not to, preclude market 
participants from reselling its connectivity. Unlike other exchanges, 
the Exchange also does not currently assess fees on third-party 
resellers on a per customer basis (i.e., fees based on the number of 
firms that connect to the Exchange indirectly via the third-
party).\112\ Indeed, the Exchange does not receive any connectivity 
revenue when connectivity is resold by a third-party, which often is 
resold to multiple customers, some of whom are agency broker-dealers 
that have numerous customers of their own.\113\ Particularly, in the 
event that a market participant views the Exchange's direct 
connectivity and access fees as more or less attractive than competing 
markets, that market participant can choose to connect to the Exchange 
indirectly or may choose not to connect to the Exchange and connect 
instead to one or more of the other 16 options markets. Accordingly, 
the Exchange believes that the proposed fees are fair and

[[Page 2719]]

reasonable and constrained by competitive forces.
---------------------------------------------------------------------------

    \112\ See, e.g., Nasdaq Price List--U.S. Direct Connection and 
Extranet Fees, available at, US Direct-Extranet Connection 
(nasdaqtrader.com); and Securities Exchange Act Release Nos. 74077 
(January 16, 2022), 80 FR 3683 (January 23, 2022) (SR-NASDAQ-2015-
002); and 82037 (November 8, 2022), 82 FR 52953 (November 15, 2022) 
(SR-NASDAQ-2017-114).
    \113\ The Exchange notes that resellers, such as SFTI, are not 
required to publicize, let alone justify or file with the Commission 
their fees, and as such could charge the market participant any fees 
it deems appropriate (including connectivity fees higher than the 
Exchange's connectivity fees), even if such fees would otherwise be 
considered potentially unreasonable or uncompetitive fees.
---------------------------------------------------------------------------

    The Exchange is obligated to regulate its Members and secure access 
to its environment. In order to properly regulate its Members and 
secure the trading environment, the Exchange takes measures to ensure 
access is monitored and maintained with various controls. Connectivity 
and ports are methods utilized by the Exchange to grant Members secure 
access to communicate with the Exchange and exercise trading rights. 
When a market participant elects to be a Member, and is approved for 
membership by the Exchange, the Member is granted trading rights to 
enter orders and/or quotes into Exchange through secure connections.
    Again, there is no legal or regulatory requirement that a market 
participant become a Member of the Exchange, or, if it is a Member, to 
purchase connectivity beyond the one connection that is necessary to 
quote or submit orders on the Exchange. Members may freely choose to 
rely on one or many connections, depending on their business model.
Bifurcation of 10Gb ULL Connectivity and Related Fees
    The Exchange stresses that bifurcating the 10Gb ULL connectivity 
between the Exchange and MIAX was not designed with the objective to 
generate an overall increase in access fee revenue. Rather, the 
proposed change is necessitated by 10Gb ULL connectivity experiencing a 
significant decrease in port availability mostly driven by connectivity 
demands of latency sensitive Members that seek to maintain multiple 
10Gb ULL connections on every switch in the network. Due to the ever-
increasing connectivity demands, the Exchange found it necessary to 
bifurcate 10Gb ULL connectivity to the Exchange's and MIAX Pearl's 
Systems and networks to continue to meet ongoing and future 10Gb ULL 
connectivity and access demands. Such changes accordingly necessitated 
a review of the Exchange's previous 10Gb ULL connectivity fees and 
related costs. The proposed fees are reasonable as they are intended to 
allow the Exchange to cover ongoing costs related to providing and 
maintaining such connectivity, described more fully below. The ever 
increasing connectivity demands that necessitated this change also 
proves that the proposed fees are reasonable because this demand 
reflects that Members and non-Members believe they are getting value 
from the 10Gb ULL connections they purchase.
    The Exchange announced on August 12, 2022 the planned network 
change and January 23, 2023 implementation date to provide market 
participants adequate time to prepare.\114\ Since August 12, 2022, the 
Exchange has worked with current 10Gb ULL subscribers to address their 
connectivity needs ahead of the January 23, 2023 date. Based on those 
interactions and subscriber feedback, the Exchange expects a minimal 
net increase of approximately six (6) overall 10Gb ULL connectivity 
subscriptions across the Exchange and MIAX. This anticipated immaterial 
increase in overall connections reflect a minimal fee impact for all 
types of subscribers and reflects that subscribers elected to 
reallocate existing 10Gb ULL connectivity directly to the Exchange or 
MIAX, or chose to decrease or cease connectivity as a result of the 
change.
---------------------------------------------------------------------------

    \114\ See supra note 8.
---------------------------------------------------------------------------

    Should the Commission Staff disapprove such fees, it would 
effectively dictate how an exchange manages its technology and would 
hamper the Exchange's ability to continue to invest in and fund access 
services in a manner that allows it to meet existing and anticipated 
access demands of market participants. Disapproval could also have the 
adverse effect of discouraging exchanges from innovating technology to 
the benefit of market participants if it believes the Commission would 
later prevent that exchange from monetizing its innovation, thus 
adversely impacting competition. Also, as noted above, the economic 
consequences of not being able to better establish fee parity with 
other exchanges for non-transaction fees hampers the Exchange's ability 
to compete as aggressively on transaction fees.
Cost Analysis
    In general, the Exchange believes that exchanges, in setting fees 
of all types, should meet very high standards of transparency to 
demonstrate why each new fee or fee increase meets the Exchange Act 
requirements that fees be reasonable, equitably allocated, not unfairly 
discriminatory, and not create an undue burden on competition among 
members and markets. In particular, the Exchange believes that each 
exchange should take extra care to be able to demonstrate that these 
fees are based on its costs and reasonable business needs.
    In proposing to charge fees for connectivity services, the Exchange 
seeks to be especially diligent in assessing those fees in a 
transparent way against its own aggregate costs of providing the 
related service, and also carefully and transparently assessing the 
impact on Members--both generally and in relation to other Members, 
i.e., to assure the fee will not create a financial burden on any 
participant and will not have an undue impact in particular on smaller 
Members and competition among Members in general. The Exchange believes 
that this level of diligence and transparency is called for by the 
requirements of Section 19(b)(1) under the Act,\115\ and Rule 19b-4 
thereunder,\116\ with respect to the types of information SROs should 
provide when filing fee changes, and Section 6(b) of the Act,\117\ 
which requires, among other things, that exchange fees be reasonable 
and equitably allocated,\118\ not designed to permit unfair 
discrimination,\119\ and that they not impose a burden on competition 
not necessary or appropriate in furtherance of the purposes of the 
Act.\120\ This rule change proposal addresses those requirements, and 
the analysis and data in each of the sections that follow are designed 
to clearly and comprehensively show how they are met.\121\ The Exchange 
notes that the legacy exchanges with whom the Exchange vigorously 
competes for order flow and market share, were not subject to any such 
diligence or transparency in setting their baseline non-transaction 
fees, most of which were put in place before the Revised Review Process 
and Staff Guidance.
---------------------------------------------------------------------------

    \115\ 15 U.S.C. 78s(b)(1).
    \116\ 17 CFR 240.19b-4.
    \117\ 15 U.S.C. 78f(b).
    \118\ 15 U.S.C. 78f(b)(4).
    \119\ 15 U.S.C. 78f(b)(5).
    \120\ 15 U.S.C. 78f(b)(8).
    \121\ See Staff Guidance, supra note 19.
---------------------------------------------------------------------------

    As detailed below, the Exchange recently calculated its aggregate 
annual costs for providing physical 10Gb ULL connectivity to the 
Exchange at $11,567,509 (or approximately $963,959 per month, rounded 
to the nearest dollar when dividing the annual cost by 12 months) and 
its aggregate annual costs for providing Full Service MEO Ports at 
$1,644,132 (or approximately $137,012 per month, rounded to the nearest 
dollar when dividing the annual cost by 12 months). In order to cover 
the aggregate costs of providing connectivity to its Users (both 
Members and non-Members \122\) going forward and to make a modest 
profit, as described below, the Exchange proposes to modify its Fee

[[Page 2720]]

Schedule to charge a fee of $13,500 per month for each physical 10Gb 
ULL connection and to remove language providing for a shared 10Gb ULL 
network between the Exchange and MIAX. The Exchange also proposes to 
modify its Fee Schedule to charge tiered rates for Full Service MEO 
Ports (Bulk) depending on the number of classes assigned or the 
percentage of national ADV, which is in line with how the Exchange's 
affiliates, MIAX and MIAX Emerald, assess fees for their comparable MEI 
Ports.
---------------------------------------------------------------------------

    \122\ Types of market participants that obtain connectivity 
services from the Exchange but are not Members include service 
bureaus and extranets. Service bureaus offer technology-based 
services to other companies for a fee, including order entry 
services, and thus, may access application sessions on behalf of one 
or more Members. Extranets offer physical connectivity services to 
Members and non-Members.
---------------------------------------------------------------------------

    In 2019, the Exchange completed a study of its aggregate costs to 
produce market data and connectivity (the ``Cost Analysis'').\123\ The 
Cost Analysis required a detailed analysis of the Exchange's aggregate 
baseline costs, including a determination and allocation of costs for 
core services provided by the Exchange--transaction execution, market 
data, membership services, physical connectivity, and port access 
(which provide order entry, cancellation and modification 
functionality, risk functionality, the ability to receive drop copies, 
and other functionality). The Exchange separately divided its costs 
between those costs necessary to deliver each of these core services, 
including infrastructure, software, human resources (i.e., personnel), 
and certain general and administrative expenses (``cost drivers''). 
Next, the Exchange adopted an allocation methodology with various 
principles to guide how much of a particular cost should be allocated 
to each core service. For instance, fixed costs that are not driven by 
client activity (e.g., message rates), such as data center costs, were 
allocated more heavily to the provision of 1Gb and 10Gb ULL physical 
connectivity (62%), with smaller allocations to all ports (5%), and the 
remainder to the provision of transaction execution, membership 
services and market data services (33%). The allocation methodology was 
developed through conversations with senior management familiar with 
each area of the Exchange's operations. After adopting this allocation 
methodology, the Exchange then applied an estimated allocation of each 
cost driver to each core service, resulting in the cost allocations 
described below.
---------------------------------------------------------------------------

    \123\ The Exchange frequently updates it Cost Analysis as 
strategic initiatives change, costs increase or decrease, and market 
participant needs and trading activity changes. The Exchange's most 
recent Cost Analysis was conducted ahead of this filing.
---------------------------------------------------------------------------

    By allocating segmented costs to each core service, the Exchange 
was able to estimate by core service the potential margin it might earn 
based on different fee models. The Exchange notes that as a non-listing 
venue it has five primary sources of revenue that it can potentially 
use to fund its operations: transaction fees, fees for connectivity and 
port services, membership fees, regulatory fees, and market data fees. 
Accordingly, the Exchange must cover its expenses from these five 
primary sources of revenue. The Exchange also notes that as a general 
matter each of these sources of revenue is based on services that are 
interdependent. For instance, the Exchange's system for executing 
transactions is dependent on physical hardware and connectivity, only 
Members and parties that they sponsor to participate directly on the 
Exchange may submit orders to the Exchange, many Members (but not all) 
consume market data from the Exchange in order to trade on the 
Exchange, and the Exchange consumes market data from external sources 
in order to comply with regulatory obligations. Accordingly, given this 
interdependence, the allocation of costs to each service or revenue 
source required judgment of the Exchange and was weighted based on 
estimates of the Exchange that the Exchange believes are reasonable, as 
set forth below. While there is no standardized and generally accepted 
methodology the allocation of an exchange's costs, the Exchange's 
methodology is the result of an extensive review and analysis and will 
be consistently applied going forward for any other potential fee 
proposals.
    Through the Exchange's extensive updated Cost Analysis, the 
Exchange analyzed every expense item in the Exchange's general expense 
ledger to determine whether each such expense relates to the provision 
of connectivity services, and, if such expense did so relate, what 
portion (or percentage) of such expense actually supports the provision 
of connectivity services, and thus bears a relationship that is, ``in 
nature and closeness,'' directly related to network connectivity 
services. In turn, the Exchange allocated certain costs more to 
physical connectivity and others to ports, while certain costs were 
only allocated to such services at a very low percentage or not at all, 
using consistent allocation methodologies as described above. Based on 
this analysis, the Exchange estimates that the cost drivers to provide 
10Gb ULL connectivity and Full Service MEO Port services, results in an 
aggregate monthly cost of approximately $1,106,971 (utilizing the 
rounded numbers when dividing the annual cost for 10Gb ULL connectivity 
and annual cost for Full Service MEO Ports by 12 months, then adding 
both numbers together), as further detailed below.
Costs Related To Offering Physical 10Gb ULL Connectivity
    The following chart details the individual line-item costs 
considered by the Exchange to be related to offering physical dedicated 
10Gb ULL connectivity via an unshared network as well as the percentage 
of the Exchange's overall costs that such costs represent for such area 
(e.g., as set forth below, the Exchange allocated approximately 26.9% 
of its overall Human Resources cost to offering physical connectivity).

[[Page 2721]]



----------------------------------------------------------------------------------------------------------------
                                                                    Annual cost       Monthly cost
                          Cost drivers                                 \124\             \125\         % of all
----------------------------------------------------------------------------------------------------------------
Human Resources................................................        $3,675,098           $306,258        26.3
Connectivity (external fees, cabling, switches, etc.)..........            70,163              5,847        60.6
Internet Services, including External Market Data..............           322,388             26,866        73.3
Data Center....................................................           739,983             61,665        60.6
Hardware and Software Maintenance and Licenses.................           959,157             79,930        58.6
Depreciation...................................................         1,885,969            157,164        58.2
Allocated Shared Expenses......................................         3,914,751            326,229        49.2
                                                                ------------------------------------------------
    Total......................................................        11,567,509            963,959        40.5
----------------------------------------------------------------------------------------------------------------

    Below are additional details regarding each of the line-item costs 
considered by the Exchange to be related to offering physical 10Gb ULL 
connectivity.
---------------------------------------------------------------------------

    \124\ The Annual Cost includes figures rounded to the nearest 
dollar.
    \125\ The Monthly Cost was determined by dividing the Annual 
Cost for each line item by twelve (12) months and rounding up or 
down to the nearest dollar.
---------------------------------------------------------------------------

Human Resources
    For personnel costs (Human Resources), the Exchange calculated an 
allocation of employee time for employees whose functions include 
providing and maintaining physical connectivity and performance thereof 
(primarily the Exchange's network infrastructure team, which spends 
most of their time performing functions necessary to provide physical 
connectivity) and for which the Exchange allocated a percentage of 
42.9% of each employee's time. The Exchange also allocated Human 
Resources costs to provide physical connectivity to a limited subset of 
personnel with ancillary functions related to establishing and 
maintaining such connectivity (such as information security and finance 
personnel), for which the Exchange allocated cost on an employee-by-
employee basis (i.e., only including those personnel who do support 
functions related to providing physical connectivity) and then applied 
a smaller allocation to such employees (less than 17%). The Exchange 
notes that it has 184 employees and each department leader has direct 
knowledge of the time spent by those spent by each employee with 
respect to the various tasks necessary to operate the Exchange. The 
estimates of Human Resources cost were therefore determined by 
consulting with such department leaders, determining which employees 
are involved in tasks related to providing physical connectivity, and 
confirming that the proposed allocations were reasonable based on an 
understanding of the percentage of their time such employees devote to 
tasks related to providing physical connectivity. The Exchange notes 
that senior level executives were only allocated Human Resources costs 
to the extent the Exchange believed they are involved in overseeing 
tasks related to providing physical connectivity. The Human Resources 
cost was calculated using a blended rate of compensation reflecting 
salary, equity and bonus compensation, benefits, payroll taxes, and 
401(k) matching contributions.
Connectivity and Internet Services
    The Connectivity cost includes external fees paid to connect to 
other exchanges and third parties, cabling and switches required to 
operate the Exchange. The Connectivity line-item is more narrowly 
focused on technology used to complete connections to the Exchange and 
to connect to external markets. The Exchange notes that its 
connectivity to external markets is required in order to receive market 
data to run the Exchange's matching engine and basic operations 
compliant with existing regulations, primarily Regulation NMS.
    The Exchange relies on various connectivity and content service 
providers for connectivity and data feeds for the entire U.S. options 
industry, as well as content, connectivity, and infrastructure services 
for critical components of the network that are necessary to provide 
and maintain its System Networks and access to its System Networks via 
10Gb ULL connectivity. Specifically, the Exchange utilizes connectivity 
and content service providers to connect to other national securities 
exchanges, the Options Price Reporting Authority (``OPRA''), and to 
receive market data from other exchanges and market data providers. The 
Exchange understands that these service providers provide services to 
most, if not all, of the other U.S. exchanges and other market 
participants. Connectivity and market data provided these service 
providers is critical to the Exchanges daily operations and performance 
of its System Networks to which market participants connect to via 10Gb 
ULL connectivity. Without these services providers, the Exchange would 
not be able to connect to other national securities exchanges, market 
data providers, or OPRA and, therefore, would not be able to operate 
and support its System Networks. The Exchange does not employ a 
separate fee to cover its connectivity and content service provider 
expense and recoups that expense, in part, by charging for 10Gb ULL 
connectivity.
Data Center
    Data Center costs includes an allocation of the costs the Exchange 
incurs to provide physical connectivity in the third-party data centers 
where it maintains its equipment (such as dedicated space, security 
services, cooling and power). The Exchange notes that it does not own 
the Primary Data Center or the Secondary Data Center, but instead, 
leases space in data centers operated by third parties. The Exchange 
has allocated a high percentage of the Data Center cost (60.6%) to 
physical 10Gb ULL connectivity because the third-party data centers and 
the Exchange's physical equipment contained therein is the most direct 
cost in providing physical access to the Exchange. In other words, for 
the Exchange to operate in a dedicated space with connectivity of 
participants to a physical trading platform, the data centers are a 
very tangible cost, and in turn, if the Exchange did not maintain such 
a presence then physical connectivity would be of no value to market 
participants.
External Market Data
    External Market Data includes fees paid to third parties, including 
other exchanges, to receive and consume market data from other markets. 
The Exchange included External Market Data fees to the provision of 
10Gb ULL connectivity as such market data is necessary here to offer 
certain services related to such connectivity, such as certain risk 
checks that are performed prior to execution, and checking for other 
conditions (e.g., re-pricing of orders to avoid lock or crossed 
markets, trading collars). This allocation was included as part of the 
Internet Services

[[Page 2722]]

cost described above. Thus, as market data from other Exchanges is 
consumed at the matching engine level, (to which 10Gb ULL connectivity 
provides access to) in order to validate orders before additional 
entering the matching engine or being executed, the Exchange believes 
it is reasonable to allocate a small amount of such costs to 10Gb ULL 
connectivity.
Hardware and Software Maintenance and Licenses
    Hardware and Software Licenses includes hardware and software 
licenses used to operate and monitor physical assets necessary to offer 
physical connectivity to the Exchange.
Monthly Depreciation
    All physical assets and software, which also includes assets used 
for testing and monitoring of Exchange infrastructure, were valued at 
cost, depreciated or leased over periods ranging from three to five 
years. Thus, the depreciation cost primarily relates to servers 
necessary to operate the Exchange, some of which are owned by the 
Exchange and some of which are leased by the Exchange in order to allow 
efficient periodic technology refreshes. As noted above, the Exchange 
allocated 58.2% of all depreciation costs to providing physical 10Gb 
ULL connectivity. The Exchange notes, however, that it did not allocate 
depreciation costs for any depreciated software necessary to operate 
the Exchange to physical connectivity, as such software does not impact 
the provision of physical connectivity.
Allocated Shared Expenses
    Finally, a limited portion of general shared expenses was allocated 
to overall physical connectivity costs as without these general shared 
costs the Exchange would not be able to operate in the manner that it 
does and provide physical connectivity. The costs included in general 
shared expenses include general expenses of the Exchange, including 
office space and office expenses (e.g., occupancy and overhead 
expenses), utilities, recruiting and training, marketing and 
advertising costs, professional fees for legal, tax and accounting 
services (including external and internal audit expenses), and 
telecommunications costs. The Exchange notes that the cost of paying 
directors to serve on its Board of Directors is also included in the 
Exchange's general shared expenses.\126\ The Exchange notes that the 
49.2% allocation of general shared expenses for physical 10Gb ULL 
connectivity is higher than that allocated to general shared expenses 
for Full Service MEO Ports based on its allocation methodology that 
weighted costs attributable to each Core Service based on an 
understanding of each area. While physical connectivity has several 
areas where certain tangible costs are heavily weighted towards 
providing such service (e.g., Data Centers, as described above), Full 
Service MEO Ports do not require as many broad or indirect resources as 
other Core Services. The total monthly cost for 10Gb ULL connectivity 
of $963,959 was divided by the number of physical 10Gb ULL connections 
the Exchange maintained at the time that proposed pricing was 
determined (108), to arrive at a cost of approximately $8,925 per 
month, per physical 10Gb ULL connection.
---------------------------------------------------------------------------

    \126\ The Exchange notes that MEMX allocated a precise amount of 
10% of the overall cost for directors to providing physical 
connectivity. The Exchange does not calculate is expenses at that 
granular a level. Instead, director costs are included as part of 
the overall general allocation.
---------------------------------------------------------------------------

Costs Related To Offering Full Service MEO Ports
    The following chart details the individual line-item costs 
considered by the Exchange to be related to offering Full Service MEO 
Ports as well as the percentage of the Exchange's overall costs such 
costs represent for such area (e.g., as set forth below, the Exchange 
allocated approximately 8.3% of its overall Human Resources cost to 
offering Full Service MEO Ports).

----------------------------------------------------------------------------------------------------------------
                                                                    Annual cost       Monthly cost
                          Cost drivers                                 \127\             \128\         % of all
----------------------------------------------------------------------------------------------------------------
Human Resources................................................        $1,159,831            $96,653         8.3
Connectivity (external fees, cabling, switches, etc.)..........             1,589                132         1.4
Internet Services, including External Market Data..............             6,033                503         1.4
Data Center....................................................            41,881              3,490         3.4
Hardware and Software Maintenance and Licenses.................            22,438              1,870         1.4
Depreciation...................................................           127,986             10,666         3.9
Allocated Shared Expenses......................................           284,374             23,698         3.6
                                                                ------------------------------------------------
    Total......................................................         1,644,132            137,012         5.8
----------------------------------------------------------------------------------------------------------------

Human Resources
---------------------------------------------------------------------------

    \127\ See supra note 124 (describing rounding of Annual Costs).
    \128\ See supra note 125 (describing rounding of Monthly Costs 
based on Annual Costs).
---------------------------------------------------------------------------

    With respect to Full Service MEO Ports, the Exchange calculated 
Human Resources cost by taking an allocation of employee time for 
employees whose functions include providing Full Service MEO Ports and 
maintaining performance thereof (including a broader range of employees 
such as technical operations personnel, market operations personnel, 
and software engineering personnel) as well as a limited subset of 
personnel with ancillary functions related to maintaining such 
connectivity (such as sales, membership, and finance personnel). The 
estimates of Human Resources cost were again determined by consulting 
with department leaders, determining which employees are involved in 
tasks related to providing application sessions and maintaining 
performance thereof, and confirming that the proposed allocations were 
reasonable based on an understanding of the percentage of their time 
such employees devote to tasks related to providing application 
sessions and maintaining performance thereof. The Exchange notes that 
senior level executives were only allocated Human Resources costs to 
the extent the Exchange believed they are involved in overseeing tasks 
related to providing application sessions and maintaining performance 
thereof. The Human Resources cost was again calculated using a blended 
rate of compensation reflecting salary, equity and bonus compensation, 
benefits, payroll taxes, and 401(k) matching contributions.
Connectivity and Internet Services
    The Connectivity cost includes external fees paid to connect to 
other exchanges, cabling and switches, as described above. For purposes 
of Full Service MEO Ports, the Exchange also includes a portion of its 
costs related to

[[Page 2723]]

External Market Data, as described below.
Data Center
    Data Center costs includes an allocation of the costs the Exchange 
incurs to provide physical connectivity in the third-party data centers 
where it maintains its equipment as well as related costs (the Exchange 
does not own the Primary Data Center or the Secondary Data Center, but 
instead, leases space in data centers operated by third parties).
External Market Data
    External Market Data includes fees paid to third parties, including 
other exchanges, to receive and consume market data from other markets. 
The Exchange included External Market Data fees to the provision of 
application sessions as such market data is also necessary here (in 
addition to physical connectivity) to offer certain services related to 
such sessions, such as validating orders on entry against the national 
best bid and national best offer and checking for other conditions 
(e.g., whether a symbol is halted). This allocation was included as 
part of the internet Services cost described above.\129\ Thus, as 
market data from other Exchanges is consumed at the application session 
level in order to validate orders before additional processing occurs 
with respect to such orders, the Exchange believes it is reasonable to 
allocate a small amount of such costs to application sessions.
---------------------------------------------------------------------------

    \129\ The Exchange notes that MEMX separately allocated 7.5% of 
its external market data costs to providing physical connectivity.
---------------------------------------------------------------------------

Hardware and Software Maintenance and Licenses
    Hardware and Software Licenses includes hardware and software 
licenses used to monitor the health of the order entry services 
provided by the Exchange, as described above.
Monthly Depreciation
    All physical assets and software, which also includes assets used 
for testing and monitoring of order entry infrastructure, were valued 
at cost, depreciated or leased over periods ranging from three to five 
years. Thus, the depreciation cost primarily relates to servers 
necessary to operate the Exchange, some of which is owned by the 
Exchange and some of which is leased by the Exchange in order to allow 
efficient periodic technology refreshes. The Exchange allocated 3.9% of 
all depreciation costs to providing Full Service MEO Ports. In contrast 
to physical connectivity, described above, the Exchange did allocate 
depreciation costs for depreciated software necessary to operate the 
Exchange to Full Service MEO Ports because such software is related to 
the provision of such connectivity.
Allocated Shared Expenses
    Finally, a limited portion of general shared expenses was allocated 
to overall Full Service MEO Ports costs as without these general shared 
costs the Exchange would not be able to operate in the manner that it 
does and provide application sessions. The costs included in general 
shared expenses include general expenses of the Exchange, including 
office space and office expenses (e.g., occupancy and overhead 
expenses), utilities, recruiting and training, marketing and 
advertising costs, professional fees for legal, tax and accounting 
services (including external and internal audit expenses), and 
telecommunications costs. The Exchange again notes that the cost of 
paying directors to serve on its Board of Directors is included in the 
calculation of Allocated Shared Expenses, and thus a portion of such 
overall cost amounting to less than 4.0% of the overall cost for 
directors was allocated to providing Full Service MEO Ports. The 
Exchange notes that the 3.6% allocation of general shared expenses for 
Full Service MEO Ports is lower than that allocated to general shared 
expenses for physical connectivity based on its allocation methodology 
that weighted costs attributable to each Core Service based on an 
understanding of each area. While Full Service MEO Ports have several 
areas where certain tangible costs are heavily weighted towards 
providing such service (e.g., Data Centers, as described above), 10Gb 
ULL connectivity requires a broader level of support from Exchange 
personnel in different areas, which in turn leads to a broader general 
level of cost to the Exchange. The total monthly cost of $137,012 was 
divided by the number of Full Service MEO Ports the Exchange maintained 
at the time that proposed pricing was determined (20 total; 16 Full 
Service MEO Port, Bulk, and 4 Full Service MEO Port, Single), to arrive 
at a cost of approximately $6,851 per month, per Full Service MEO Port.
Cost Analysis--Additional Discussion
    In conducting its Cost Analysis, the Exchange did not allocate any 
of its expenses in full to any core services (including physical 
connectivity or Full Service MEO Ports) and did not double- count any 
expenses. Instead, as described above, the Exchange allocated 
applicable cost drivers across its core services and used the same Cost 
Analysis to form the basis of this proposal and the filings the 
Exchange submitted proposing fees for proprietary data feeds offered by 
the Exchange. For instance, in calculating the Human Resources expenses 
to be allocated to physical connections, the Exchange has a team of 
employees dedicated to network infrastructure and with respect to such 
employees the Exchange allocated network infrastructure personnel with 
a high percentage of the cost of such personnel (42.9%) given their 
focus on functions necessary to provide physical connections. The 
salaries of those same personnel were allocated only 12.3% to Full 
Service MEO Ports and the remaining 44.8% was allocated to 1Gb 
connectivity, other port services, transaction services, membership 
services and market data. The Exchange did not allocate any other Human 
Resources expense for providing physical connections to any other 
employee group, outside of a smaller allocation of 16.9% for 10Gb ULL 
connectivity or 17.3% for the entire network, of the cost associated 
with certain specified personnel who work closely with and support 
network infrastructure personnel. In contrast, the Exchange allocated 
much smaller percentages of costs (6.0% or less) across a wider range 
of personnel groups in order to allocate Human Resources costs to 
providing Full Service MEO Ports. This is because a much wider range of 
personnel are involved in functions necessary to offer, monitor and 
maintain Full Service MEO Ports but the tasks necessary to do so are 
not a primary or full-time function.
    In total, the Exchange allocated 26.9% of its personnel costs to 
providing physical connections and 8.3% of its personnel costs to 
providing Full Service MEO Ports, for a total allocation of 35.2% Human 
Resources expense to provide these specific connectivity services. In 
turn, the Exchange allocated the remaining 64.8% of its Human Resources 
expense to membership services, transaction services, other port 
services and market data. Thus, again, the Exchange's allocations of 
cost across core services were based on real costs of operating the 
Exchange and were not double-counted across the core services or their 
associated revenue streams.
    As another example, the Exchange allocated depreciation expense to 
all core services, including physical connections and Full Service MEO 
Ports, but in different amounts. The Exchange believes it is reasonable 
to allocate the identified portion of such expense because such expense 
includes the actual cost of the computer

[[Page 2724]]

equipment, such as dedicated servers, computers, laptops, monitors, 
information security appliances and storage, and network switching 
infrastructure equipment, including switches and taps that were 
purchased to operate and support the network. Without this equipment, 
the Exchange would not be able to operate the network and provide 
connectivity services to its Members and non-Members and their 
customers. However, the Exchange did not allocate all of the 
depreciation and amortization expense toward the cost of providing 
connectivity services, but instead allocated approximately 62.1% of the 
Exchange's overall depreciation and amortization expense to 
connectivity services (58.2% attributed to 10Gb ULL physical 
connections and 3.9% to Full Service MEO Ports). The Exchange allocated 
the remaining depreciation and amortization expense (approximately 
37.9%) toward the cost of providing transaction services, membership 
services, other port services and market data.
    The Exchange notes that its revenue estimates are based on 
projections across all potential revenue streams and will only be 
realized to the extent such revenue streams actually produce the 
revenue estimated. The Exchange does not yet know whether such 
expectations will be realized. For instance, in order to generate the 
revenue expected from connectivity, the Exchange will have to be 
successful in retaining existing clients that wish to maintain physical 
connectivity and/or Full Service MEO Ports or in obtaining new clients 
that will purchase such services. Similarly, the Exchange will have to 
be successful in retaining a positive net capture on transaction fees 
in order to realize the anticipated revenue from transaction pricing.
    The Exchange notes that the Cost Analysis is based on the 
Exchange's 2023 fiscal year of operations and projections. As such, the 
Exchange believes that its costs will remain relatively similar in 
future years. It is possible however that such costs will either 
decrease or increase. To the extent the Exchange sees growth in use of 
connectivity services it will receive additional revenue to offset 
future cost increases.
    However, if use of connectivity services is static or decreases, 
the Exchange might not realize the revenue that it anticipates or needs 
in order to cover applicable costs. Accordingly, the Exchange is 
committing to conduct a one-year review after implementation of these 
fees. The Exchange expects that it may propose to adjust fees at that 
time, to increase fees in the event that revenues fail to cover costs 
and a reasonable mark-up of such costs. Similarly, the Exchange would 
propose to decrease fees in the event that revenue materially exceeds 
our current projections. In addition, the Exchange will periodically 
conduct a review to inform its decision making on whether a fee change 
is appropriate (e.g., to monitor for costs increasing/decreasing or 
subscribers increasing/decreasing, etc. in ways that suggest the then-
current fees are becoming dislocated from the prior cost-based 
analysis) and would propose to increase fees in the event that revenues 
fail to cover its costs and a reasonable mark-up, or decrease fees in 
the event that revenue or the mark-up materially exceeds our current 
projections. In the event that the Exchange determines to propose a fee 
change, the results of a timely review, including an updated cost 
estimate, will be included in the rule filing proposing the fee change. 
More generally, we believe that it is appropriate for an exchange to 
refresh and update information about its relevant costs and revenues in 
seeking any future changes to fees, and the Exchange commits to do so.
Projected Revenue \130\
---------------------------------------------------------------------------

    \130\ For purposes of calculating revenue for 10Gb ULL 
connectivity, the Exchange used projected revenues for February 
2023, the first full month for which it will provide dedicated 10Gb 
ULL connectivity to the Exchange and cease operating a shared 10Gb 
ULL network with MIAX.
---------------------------------------------------------------------------

    The proposed fees will allow the Exchange to cover certain costs 
incurred by the Exchange associated with providing and maintaining 
necessary hardware and other network infrastructure as well as network 
monitoring and support services; without such hardware, infrastructure, 
monitoring and support the Exchange would be unable to provide the 
connectivity services. Much of the cost relates to monitoring and 
analysis of data and performance of the network via the subscriber's 
connection(s). The above cost, namely those associated with hardware, 
software, and human capital, enable the Exchange to measure network 
performance with nanosecond granularity. These same costs are also 
associated with time and money spent seeking to continuously improve 
the network performance, improving the subscriber's experience, based 
on monitoring and analysis activity. The Exchange routinely works to 
improve the performance of the network's hardware and software. The 
costs associated with maintaining and enhancing a state-of-the-art 
exchange network is a significant expense for the Exchange, and thus 
the Exchange believes that it is reasonable and appropriate to help 
offset those costs by amending fees for connectivity services. 
Subscribers, particularly those of 10Gb ULL connectivity, expect the 
Exchange to provide this level of support to connectivity so they 
continue to receive the performance they expect. This differentiates 
the Exchange from its competitors. As detailed above, the Exchange has 
five primary sources of revenue that it can potentially use to fund its 
operations: transaction fees, fees for connectivity services, 
membership and regulatory fees, and market data fees. Accordingly, the 
Exchange must cover its expenses from these five primary sources of 
revenue.
    The Exchange's Cost Analysis estimates the annual cost to provide 
10Gb ULL connectivity services at $11,567,509. Based on current 10Gb 
ULL connectivity services usage, the Exchange would generate annual 
revenue of approximately $17,496,000. This represents a modest profit 
of 34% when compared to the cost of providing 10Gb ULL connectivity 
services. The Exchange's Cost Analysis estimates the annual cost to 
provide Full Service MEO Port services at $1,644,132. Based on current 
Full Service MEO Port services usage, the Exchange would generate 
annual revenue of approximately $1,644,000. This represents a small 
negative margin when compared to the cost of providing Full Service MEO 
Port services. Even if the Exchange earns those amounts or 
incrementally more, the Exchange believes the proposed fees are fair 
and reasonable because they will not result in excessive pricing or 
supra-competitive profit, when comparing the total expense of the 
Exchange associated with providing 10Gb ULL connectivity and Full 
Service MEO Port services versus the total projected revenue of the 
Exchange associated with network 10Gb ULL connectivity and Full Service 
MEO Port services.
* * * * *
    The Exchange has operated at a cumulative net annual loss since it 
launched operations in 2017.\131\ The Exchange has operated at a net 
loss due to a number of factors, one of which is choosing to forgo 
revenue by offering certain products, such as connectivity, at lower 
rates than other options

[[Page 2725]]

exchanges to attract order flow and encourage market participants to 
experience the high determinism, low latency, and resiliency of the 
Exchange's trading systems. The Exchange should not now be penalized 
for seeking to raise its fees in light of necessary technology changes 
and its increased costs after offering such products as discounted 
prices. Therefore, the Exchange believes the proposed fees are 
reasonable because they are based on both relative costs to the 
Exchange to provide dedicated 10Gb ULL connectivity and Full Service 
MEO Ports, the extent to which the product drives the Exchange's 
overall costs and the relative value of the product, as well as the 
Exchange's objective to make access to its Systems broadly available to 
market participants. The Exchange also believes the proposed fees are 
reasonable because they are designed to generate annual revenue to 
recoup the Exchange's costs of providing dedicated 10Gb ULL 
connectivity and Full Service MEO Ports.
---------------------------------------------------------------------------

    \131\ The Exchange has incurred a cumulative loss of $79 million 
since its inception in 2017 to 2021. See Exchange's Form 1/A, 
Application for Registration or Exemption from Registration as a 
National Securities Exchange, filed July 28, 2021, available at 
https://www.sec.gov/Archives/edgar/vprr/2100/21000461.pdf.
---------------------------------------------------------------------------

    The Exchange notes that its revenue estimate is based on 
projections and will only be realized to the extent customer activity 
actually produces the revenue estimated. As a competitor in the hyper-
competitive exchange environment, and an exchange focused on driving 
competition, the Exchange does not yet know whether such projections 
will be realized. For instance, in order to generate the revenue 
expected from 10Gb ULL connectivity and Full Service MEO Ports, the 
Exchange will have to be successful in retaining existing clients that 
wish to utilize 10Gb ULL connectivity and Full Service MEO Ports and/or 
obtaining new clients that will purchase such access. To the extent the 
Exchange is successful in encouraging new clients to utilize 10Gb ULL 
connectivity and Full Service MEO Ports, the Exchange does not believe 
it should be penalized for such success. The Exchange, like other 
exchanges, is, after all, a for-profit business, which provides 
economic value to its Members. To the extent the Exchange has mispriced 
and experiences a net loss in clients, the Exchange could experience a 
net reduction in revenue. While the Exchange believes in transparency 
around costs and potential revenue, the Exchange does not believe that 
these estimates should form the sole basis of whether or not a proposed 
fee is reasonable or can be adopted.
    Further, the proposal reflects the Exchange's efforts to control 
its costs, which the Exchange does on an ongoing basis as a matter of 
good business practice. A potential profit margin should not be judged 
alone based on its size, but is also indicative of costs management and 
whether the ultimate fee reflects the value of the services provided. 
For example, a profit margin on one exchange should not be deemed 
excessive where that exchange has been successful in controlling its 
costs, but not excessive where on another exchange where that exchange 
is charging comparable fees but has a lower profit margin due to higher 
costs. Doing so could have the perverse effect of not incentivizing 
cost control where higher costs alone could be used to justify fees 
increases.
The Proposed Pricing Is Not Unfairly Discriminatory and Provides for 
the Equitable Allocation of Fees, Dues, and Other Charges
    The Exchange believes that the proposed fees are reasonable, fair, 
equitable, and not unfairly discriminatory because they are designed to 
align fees with services provided and will apply equally to all 
subscribers.
10Gb ULL Connectivity
    The Exchange believes that the proposed fees are equitably 
allocated among users of the network connectivity and port 
alternatives, as the users of 10Gb ULL connections consume 
substantially more bandwidth and network resources than users of 1Gb 
ULL connection. Specifically, the Exchange notes that 10Gb ULL 
connection users account for more than 99% of message traffic over the 
network, driving other costs that are linked to capacity utilization, 
as described above, while the users of the 1Gb ULL connections account 
for less than 1% of message traffic over the network. In the Exchange's 
experience, users of the 1Gb connections do not have the same business 
needs for the high-performance network as 10Gb ULL users.
    The Exchange's high-performance network and supporting 
infrastructure (including employee support), provides unparalleled 
system throughput with the network ability to support access to several 
distinct options markets. To achieve a consistent, premium network 
performance, the Exchange must build out and maintain a network that 
has the capacity to handle the message rate requirements of its most 
heavy network consumers. These billions of messages per day consume the 
Exchange's resources and significantly contribute to the overall 
network connectivity expense for storage and network transport 
capabilities. The Exchange must also purchase additional storage 
capacity on an ongoing basis to ensure it has sufficient capacity to 
store these messages to satisfy its record keeping requirements under 
the Exchange Act.\132\ Thus, as the number of messages an entity 
increases, certain other costs incurred by the Exchange that are 
correlated to, though not directly affected by, connection costs (e.g., 
storage costs, surveillance costs, service expenses) also increase. 
Given this difference in network utilization rate, the Exchange 
believes that it is reasonable, equitable, and not unfairly 
discriminatory that the 10Gb ULL users pay for the vast majority of the 
shared network resources from which all market participants' benefit.
---------------------------------------------------------------------------

    \132\ 17 CFR 240.17a-1 (recordkeeping rule for national 
securities exchanges, national securities associations, registered 
clearing agencies and the Municipal Securities Rulemaking Board).
---------------------------------------------------------------------------

Full Service MEO Ports
    The tiered pricing structure for Full Service MEO Ports has been in 
effect since 2018.\133\ The Exchange now proposes a pricing structure 
that is used by the Exchange's affiliates, MIAX and MIAX Emerald, 
except with lower pricing for each tier for Full Service MEO Ports 
(Bulk) and a flat fee for Full Service MEO Ports (Single). Members that 
are frequently in the highest tier for Full Service MEO Ports consume 
the most bandwidth and resources of the network. Specifically, like 
above for the 10Gb ULL connectivity, the Exchange notes that the Market 
Makers who reach the highest tier for Full Service MEO Ports (Bulk) 
account for approximately greater than 84% of ADV on the Exchange, 
while Market Makers that are typically in the lowest Tier for Full 
Service MEO Ports, account for approximately less than 14% of ADV on 
the Exchange. The remaining 1% is accounted for by Market Makers who 
are frequently in the middle Tier for Full Service MEO Ports (Bulk).
---------------------------------------------------------------------------

    \133\ See Securities Exchange Act Release No. 82867 (March 13, 
2018), 83 FR 12044 (March 19, 2018) (SR-PEARL-2018-07).
---------------------------------------------------------------------------

    To achieve a consistent, premium network performance, the Exchange 
must build out and maintain a network that has the capacity to handle 
the message rate requirements of its most heavy network consumers. 
Billions of messages per day consume the Exchange's resources and 
significantly contribute to the overall network connectivity expense 
for storage and network transport capabilities. The Exchange must also 
purchase additional storage capacity on an ongoing basis to ensure it 
has sufficient capacity to store these messages as part of it 
surveillance program and to satisfy its record keeping requirements 
under the

[[Page 2726]]

Exchange Act.\134\ Thus, as the number of connections a Market Maker 
has increases, the related pull on Exchange resources also increases. 
The Exchange sought to design the proposed tiered-pricing structure to 
set the amount of the fees to relate to the number of connections a 
firm purchases. The more connections purchased by a Market Maker likely 
results in greater expenditure of Exchange resources and increased cost 
to the Exchange.
---------------------------------------------------------------------------

    \134\ 17 CFR 240.17a-1 (recordkeeping rule for national 
securities exchanges, national securities associations, registered 
clearing agencies and the Municipal Securities Rulemaking Board).
---------------------------------------------------------------------------

    The Exchange further believes that the proposed fees are 
reasonable, equitably allocated and not unfairly discriminatory 
because, for the flat fee, the Exchange provides each Member two (2) 
Full Service MEO Ports for each matching engine to which that Member is 
connected. Unlike other options exchanges that provide similar port 
functionality and charge fees on a per port basis,\135\ the Exchange 
offers Full Service MEO Ports as a package and provides Members with 
the option to receive up to two Full Service MEO Ports per matching 
engine to which it connects. The Exchange currently has twelve (12) 
matching engines, which means Members may receive up to twenty-four 
(24) Full Service MEO Ports for a single monthly fee, that can vary 
based on certain volume percentages. The Exchange currently assesses 
Members a fee of $5,000 per month in the highest Full Service MEO 
Port--Bulk Tier, regardless of the number of Full Service MEO Ports 
allocated to the Member. Assuming a Member connects to all twelve (12) 
matching engines during a month, with two Full Service MEO Ports per 
matching engine, this results in a cost of $208.33 per Full Service MEO 
Port--Bulk ($5,000 divided by 24) for the month. This fee has been 
unchanged since the Exchange adopted Full Service MEO Port fees in 
2018.\136\ Members will continue to receive two (2) Full Service MEO 
Ports to each matching engine to which they are connected for the 
single flat monthly fee. Assuming a Member connects to all twelve (12) 
matching engines during the month, and achieves the highest Tier for 
that month, with two Full Service MEO Ports (Bulk) per matching engine, 
this would result in a cost of $500 per Full Service MEO Port ($12,000 
divided by 24).
---------------------------------------------------------------------------

    \135\ See supra notes 95 to 102 and accompanying text.
    \136\ See Securities Exchange Act Release No. 82867 (March 13, 
2018), 83 FR 12044 (March 19, 2018) (SR-PEARL-2018-07).
---------------------------------------------------------------------------

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.
Intra-Market Competition
    The Exchange believes the proposed fees will not result in any 
burden on intra-market competition that is not necessary or appropriate 
in furtherance of the purposes of the Act because the proposed fees 
will allow the Exchange to recoup some of its costs in providing 10Gb 
ULL connectivity and Full Service MEO Ports at below market rates to 
market participants since the Exchange launched operations. As 
described above, the Exchange has operated at a cumulative net annual 
loss since it launched operations in 2017 \137\ due to providing a low-
cost alternative to attract order flow and encourage market 
participants to experience the high determinism and resiliency of the 
Exchange's trading Systems. To do so, the Exchange chose to waive the 
fees for some non-transaction related services and Exchange products or 
provide them at a very lower fee, which was not profitable to the 
Exchange. This resulted in the Exchange forgoing revenue it could have 
generated from assessing any fees or higher fees. The Exchange could 
have sought to charge higher fees at the outset, but that could have 
served to discourage participation on the Exchange. Instead, the 
Exchange chose to provide a low-cost exchange alternative to the 
options industry, which resulted in lower initial revenues. Examples of 
this are 10Gb ULL connectivity and Full Service MEO Ports, for which 
the Exchange only now seeks to adopt fees at a level similar to or 
lower than those of other options exchanges.
---------------------------------------------------------------------------

    \137\ See supra note 131.
---------------------------------------------------------------------------

    Further, the Exchange does not believe that the proposed fee 
increase for the 10Gb ULL connection change would place certain market 
participants at the Exchange at a relative disadvantage compared to 
other market participants or affect the ability of such market 
participants to compete. As is the case with the current proposed flat 
fee, the proposed fee would apply uniformly to all market participants 
regardless of the number of connections they choose to purchase. The 
proposed fee does not favor certain categories of market participants 
in a manner that would impose an undue burden on competition.
    The Exchange does not believe that the proposed rule change would 
place certain market participants at the Exchange at a relative 
disadvantage compared to other market participants or affect the 
ability of such market participants to compete. In particular, Exchange 
personnel has been informally discussing potential fees for 
connectivity services with a diverse group of market participants that 
are connected to the Exchange (including large and small firms, firms 
with large connectivity service footprints and small connectivity 
service footprints, as well as extranets and service bureaus) for 
several months leading up to that time. The Exchange does not believe 
the proposed fees for connectivity services would negatively impact the 
ability of Members, non-Members (extranets or service bureaus), third-
parties that purchase the Exchange's connectivity and resell it, and 
customers of those resellers to compete with other market participants 
or that they are placed at a disadvantage.
    The Exchange does anticipate, however, that some market 
participants may reduce or discontinue use of connectivity services 
provided directly by the Exchange in response to the proposed fees. In 
fact, as mentioned above, one Member will terminate their membership on 
January 1, 2023 as a direct result of the proposed fee changes. The 
Exchange does not believe that the proposed fees for connectivity 
services place certain market participants at a relative disadvantage 
to other market participants because the proposed connectivity pricing 
is associated with relative usage of the Exchange by each market 
participant and does not impose a barrier to entry to smaller 
participants. The Exchange believes its proposed pricing is reasonable 
and, when coupled with the availability of third-party providers that 
also offer connectivity solutions, that participation on the Exchange 
is affordable for all market participants, including smaller trading 
firms. As described above, the connectivity services purchased by 
market participants typically increase based on their additional 
message traffic and/or the complexity of their operations. The market 
participants that utilize more connectivity services typically utilize 
the most bandwidth, and those are the participants that consume the 
most resources from the network. Accordingly, the proposed fees for 
connectivity services do not favor certain categories of market 
participants in a manner that would impose a burden on competition; 
rather, the

[[Page 2727]]

allocation of the proposed connectivity fees reflects the network 
resources consumed by the various size of market participants and the 
costs to the Exchange of providing such connectivity services.
Inter-Market Competition
    The Exchange also does not believe that the proposed rule change 
will result in any burden on inter-market competition that is not 
necessary or appropriate in furtherance of the purposes of the Act. As 
discussed above, options market participants are not forced to connect 
to all options exchanges. There is no reason to believe that our 
proposed price increase will harm another exchange's ability to 
compete. There are other options markets of which market participants 
may connect to trade options at higher rates than the Exchange's. There 
is also a range of alternative strategies, including routing to the 
exchange through another participant or market center or accessing the 
Exchange indirectly. Market participants are free to choose which 
exchange or reseller to use to satisfy their business needs. 
Accordingly, the Exchange does not believe its proposed fee changes 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act.
    The Exchange also believes that the proposed fees for 10Gb 
connectivity are appropriate and warranted in light of it bifurcating 
10Gb connectivity between the Exchange and MIAX and would not impose 
any burden on competition because this is a technology driven change 
that would assist the Exchange in recovering costs related to providing 
dedicating 10Gb connectivity to the Exchange while enabling it to 
continue to meet current and anticipated demands for connectivity by 
its Members and other market participants. Separating its 10Gb network 
from MIAX would enable the Exchange to better compete with other 
exchanges by ensuring it can continue to provide adequate connectivity 
to existing and new Members, which may increase in ability to compete 
for order flow and deepen its liquidity pool, improving the overall 
quality of its market.
    The proposed rates for 10Gb ULL connectivity are also driven by the 
Exchange's need to bifurcate its 10Gb ULL network shared with MIAX so 
that it can continue to meet current and anticipated connectivity 
demands of all market participants. Similarly, and also in connection 
with a technology change, Cboe Exchange, Inc. (``Cboe'') amended access 
and connectivity fees, including port fees.\138\ Specifically, Cboe 
adopted certain logical ports to allow for the delivery and/or receipt 
of trading messages--i.e., orders, accepts, cancels, transactions, etc. 
Cboe established tiered pricing for BOE and FIX logical ports, tiered 
pricing for BOE Bulk ports, and flat prices for DROP, Purge Ports, GRP 
Ports and Multicast PITCH/Top Spin Server Ports. Cboe argued in its fee 
proposal that the proposed pricing more closely aligned its access fees 
to those of its affiliated exchanges, and reasonably so, as the 
affiliated exchanges offer substantially similar connectivity and 
functionality and are on the same platform that Cboe migrated to.\139\ 
Cboe also justified its proposal by stating that, ``. . . the Exchange 
believes substitutable products and services are in fact available to 
market participants, including, among other things, other options 
exchanges a market participant may connect to in lieu of the Exchange, 
indirect connectivity to the Exchange via a third-party reseller of 
connectivity and/or trading of any options product, including 
proprietary products, in the Over-the-Counter (OTC) markets.'' \140\ 
Cboe stated in its proposal that,
---------------------------------------------------------------------------

    \138\ See Securities Exchange Act Release No. 90333 (November 4, 
2020), 85 FR 71666 (November 10, 2020) (SR-CBOE-2020-105). The 
Exchange notes that Cboe submitted this filing after the Staff 
Guidance and contained no cost based justification.
    \139\ Id. at 71676.
    \140\ Id.
---------------------------------------------------------------------------

    The rule structure for options exchanges are also fundamentally 
different from those of equities exchanges. In particular, options 
market participants are not forced to connect to (and purchase market 
data from) all options exchanges. For example, there are many order 
types that are available in the equities markets that are not utilized 
in the options markets, which relate to mid-point pricing and pegged 
pricing which require connection to the SIPs and each of the equities 
exchanges in order to properly execute those orders in compliance with 
best execution obligations. Additionally, in the options markets, the 
linkage routing and trade through protection are handled by the 
exchanges, not by the individual members. Thus not connecting to an 
options exchange or disconnecting from an options exchange does not 
potentially subject a broker-dealer to violate order protection 
requirements. Gone are the days when the retail brokerage firms (such 
as Fidelity, Schwab, and eTrade) were members of the options 
exchanges--they are not members of the Exchange or its affiliates, they 
do not purchase connectivity to the Exchange, and they do not purchase 
market data from the Exchange. Accordingly, not only is there not an 
actual regulatory requirement to connect to every options exchange, the 
Exchange believes there is also no ``de facto'' or practical 
requirement as well, as further evidenced by the recent significant 
reduction in the number of broker-dealers that are members of all 
options exchanges.\141\
---------------------------------------------------------------------------

    \141\ Id. at 71676.
---------------------------------------------------------------------------

    The proposal also referenced the National Market System Plan 
Governing the Consolidated Audit Trail (``CAT NMS Plan''),\142\ wherein 
the Commission discussed the existence of competition in the 
marketplace generally, and particularly for exchanges with unique 
business models. The Commission acknowledged that, even if an exchange 
were to exit the marketplace due to its proposed fee-related change, it 
would not significantly impact competition in the market for exchange 
trading services because these markets are served by multiple 
competitors.\143\ Further, the Commission explicitly stated that 
``[c]onsequently, demand for these services in the event of the exit of 
a competitor is likely to be swiftly met by existing competitors.'' 
\144\ Finally, the Commission recognized that while some exchanges may 
have a unique business model that is not currently offered by 
competitors, a competitor could create similar business models if 
demand were adequate, and if a competitor did not do so, the Commission 
believes it would be likely that new entrants would do so if the 
exchange with that unique business model was otherwise profitable.\145\
---------------------------------------------------------------------------

    \142\ See Securities Exchange Act Release No. 86901 (September 
9, 2019), 84 FR 48458 (September 13, 2019) (File No. S7-13-19).
    \143\ Id.
    \144\ Id.
    \145\ Id.
---------------------------------------------------------------------------

    Cboe also filed to establish a monthly fee for Certification 
Logical Ports of $250 per Certification Logical Port.\146\ Cboe 
reasoned that purchasing additional Certification Logical Ports, beyond 
the one Certification Logical Port per logical port type offered in the 
production environment free of charge, is voluntary and not required in 
order to participate in the production

[[Page 2728]]

environment, including live production trading on the Exchange.\147\
---------------------------------------------------------------------------

    \146\ See Securities Exchange Act Release No. 94512 (March 24, 
2002), 87 FR 18425 (March 30, 2022) (SR-Cboe-2022-011). Cboe offers 
BOE and FIX Logical Ports, BOE Bulk Logical Ports, DROP Logical 
Ports, Purge Ports, GRP Ports and Multicast PITCH/Top Spin Server 
Ports. For each type of the aforementioned logical ports that are 
used in the production environment, the Exchange also offers 
corresponding ports which provide Trading Permit Holders and non-
TPHs access to the Exchange's certification environment to test 
proprietary systems and applications (i.e., ``Certification Logical 
Ports'').
    \147\ See Securities Exchange Act Release No. 94512 (March 24, 
2002), 87 FR 18425 (March 30, 2022) (SR-Cboe-2022-011).
---------------------------------------------------------------------------

    In its statutory basis, Cboe justified the new port fee by stating 
that it believed the Certification Logical Port fee were reasonable 
because while such ports were no longer completely free, TPHs and non-
TPHs would continue to be entitled to receive free of charge one 
Certification Logical Port for each type of logical port that is 
currently offered in the production environment.\148\ Cboe noted that 
other exchanges assess similar fees and cited to NASDAQ LLC and 
MIAX.\149\ Cboe also noted that the decision to purchase additional 
ports is optional and no market participant is required or under any 
regulatory obligation to purchase excess Certification Logical Ports in 
order to access the Exchange's certification environment.\150\ Finally, 
similar proposals to adopt a Certification Logical Port monthly fee 
were filed by Cboe BYX Exchange, Inc.,\151\ BZX,\152\ and Cboe EDGA 
Exchange, Inc.\153\
---------------------------------------------------------------------------

    \148\ Id. at 18426.
    \149\ Id.
    \150\ Id.
    \151\ See Securities Exchange Act Release No. 94507 (March 24, 
2002), 87 FR 18439 (March 30, 2022) (SR-CboeBYX-2022-004).
    \152\ See Securities Exchange Act Release No. 94511 (March 24, 
2002), 87 FR 18411 (March 30, 2022) (SR-CboeBZX-2022-021).
    \153\ See Securities Exchange Act Release No. 94517 (March 25, 
2002), 87 FR 18848 (March 31, 2022) (SR-CboeBZX-2022-021).
---------------------------------------------------------------------------

    The Cboe fee proposals described herein were filed subsequent to 
the D.C. Circuit decision in Susquehanna Int'l Grp., LLC v. SEC, 866 
F.3d 442 (D.C. Cir. 2017), meaning that such fee filings were subject 
to the same (and current) standard for SEC review and approval as this 
proposal. In summary, the Exchange requests the Commission apply the 
same standard of review to this proposal which was applied to the 
various Cboe and Cboe affiliated markets' filings with respect to non-
transaction fees. If the Commission were to apply a different standard 
of review to this proposal than it applied to other exchange fee 
filings it would create a burden on competition such that it would 
impair the Exchange's ability to make necessary technology driven 
changes, such as bifurcating its 10Gb ULL network, because it would be 
unable to monetize or recoup costs related to that change and compete 
with larger, non-legacy exchanges.
* * * * *
    In conclusion, as discussed thoroughly above, the Exchange 
regrettably believes that the application of the Revised Review Process 
and Staff Guidance has adversely affected inter-market competition 
among legacy and non-legacy exchanges by impeding the ability of non-
legacy exchanges to adopt or increase fees for their market data and 
access services (including connectivity and port products and services) 
that are on parity or commensurate with fee levels previously 
established by legacy exchanges. Since the adoption of the Revised 
Review Process and Staff Guidance, and even more so recently, it has 
become extraordinarily difficult to adopt or increase fees to generate 
revenue necessary to invest in systems, provide innovative trading 
products and solutions, and improve competitive standing to the benefit 
of non-legacy exchanges' market participants. Although the Staff 
Guidance served an important policy goal of improving disclosures and 
requiring exchanges to justify that their market data and access fee 
proposals are fair and reasonable, it has also negatively impacted non-
legacy exchanges in particular in their efforts to adopt or increase 
fees that would enable them to more fairly compete with legacy 
exchanges, despite providing enhanced disclosures and rationale under 
both competitive and cost basis approaches provided for by the Revised 
Review Process and Staff Guidance to support their proposed fee 
changes.

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,\154\ and Rule 19b-4(f)(2) \155\ 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.
---------------------------------------------------------------------------

    \154\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \155\ 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 [email protected]. Please include 
File Number SR-PEARL-2022-62 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-PEARL-2022-62. 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 Number SR-PEARL-2022-62 and should be submitted on 
or before February 7, 2023.


[[Page 2729]]


    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\156\
---------------------------------------------------------------------------

    \156\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-00662 Filed 1-13-23; 8:45 am]
BILLING CODE 8011-01-P


