[Federal Register Volume 86, Number 189 (Monday, October 4, 2021)]
[Notices]
[Pages 54750-54760]
[FR Doc No: 2021-21491]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-93165; File No. SR-MIAX-2021-41]

Self-Regulatory Organizations; Miami International Securities
Exchange LLC; Notice of Filing and Immediate Effectiveness of a
Proposed Rule Change To Amend the MIAX Fee Schedule To Adopt a Tiered-
Pricing Structure for Certain Connectivity Fees

September 28, 2021.
    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 September 24, 2021, Miami International Securities Exchange LLC
(``MIAX'' 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 Options Fee
Schedule (the ``Fee Schedule'') to amend certain connectivity fees.
    The text of the proposed rule change is available on the Exchange's
website at http://www.miaxoptions.com/rule-filings, at MIAX's principal
office, and at the Commission's Public Reference Room.

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

    In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The

Exchange has prepared summaries, set forth in sections A, B, and C
below, of the most significant aspects of such statements.

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

1. Purpose
    The Exchange proposes to amend the Fee Schedule to adopt a tiered-
pricing structure for the 10 gigabit (``Gb'') ultra-low latency
(``ULL'') fiber connection available to Members \3\ and non-Members.
The Exchange believes a tiered-pricing structure will encourage Members
and non-Members to be more efficient and economical when determining
how to connect to the Exchange. This should also enable the Exchange to
better monitor and provide access to the Exchange's network to ensure
sufficient capacity and headroom in the System.\4\
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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 ``System'' means the automated trading system used
by the Exchange for the trading of securities. See Exchange Rule
100.
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    The Exchange initially filed this proposal on July 30, 2021, with
the proposed fee changes effective beginning August 1, 2021.\5\ The
First Proposed Rule Change was published for comment in the Federal
Register on August 17, 2021.\6\ The Commission received one comment
letter on the First Proposed Rule Change.\7\ The Exchange has withdrawn
the First Proposed Rule Change and now submits this proposal, which is
immediately effective. This proposal provides additional justification
for the proposed fee changes and addresses certain points raised in the
single comment letter that submitted on the First Proposed Rule Change.
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    \5\ See Securities Exchange Act Release No. 92643 (August 11,
2021), 86 FR 46034 (August 17, 2021) (SR-MIAX-2021-35) (the ``First
Proposed Rule Change'').
    \6\ Id.
    \7\ See Letter from Richard J. McDonald, Susquehanna
International Group, LLC (``SIG''), to Vanessa Countryman,
Secretary, Commission, dated September 7, 2021 (``SIG Comment
Letter'').
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10Gb ULL Tiered-Pricing Structure
    The Exchange proposes to amend Sections (5)(a)-(b) of the Fee
Schedule to provide for a tiered-pricing structure for 10Gb ULL
connections for Members and non-Members. Currently, the Exchange
assesses Members and non-Members a flat monthly fee of $10,000 per 10Gb
ULL connection for access to the Exchange's primary and secondary
facilities.
    The Exchange now proposes to move from a flat monthly fee per
connection to a tiered-pricing structure under which the monthly fee
would vary depending on the number of 10Gb ULL connections each Member
or non-Member elects to purchase per exchange. Specifically, the
Exchange proposes to decrease the fee for the first and second 10Gb ULL
connections for each Member and non-Member from the current flat
monthly fee of $10,000 to $9,000 per connection. To encourage more
efficient connectivity usage, the Exchange proposes to increase the per
connection fee for Members and non-Members that purchase more than two
10Gb ULL connections. In particular, (i) the third and fourth 10Gb ULL
connections for each Member or non-Member will increase from the
current flat monthly fee of $10,000 to $11,000 per connection; and (ii)
for the fifth 10Gb ULL connection, and each 10Gb ULL connection
purchased by Members and non-Members thereafter, the fee will increase
from the flat monthly fee of $10,000 to $13,000 per connection. The
proposed 10Gb ULL tiered-pricing structure and fees are collectively
referred to herein as the ``Proposed Access Fees.''
    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 MIAX APIs or market data feeds in the production
environment. The Exchange proposes 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 MIAX 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. The Exchange will
continue to assess monthly Member and non-Member network connectivity
fees for connectivity to the disaster recovery facility in each month
during which the Member or non-Member has established connectivity with
the disaster recovery facility.
    The Exchange's MIAX Express Network Interconnect (``MENI'') can be
configured to provide Members and non-Members of the Exchange network
connectivity to the trading platforms, market data systems, test
systems, and disaster recovery facilities of both the Exchange and its
affiliate, MIAX PEARL, LLC (``MIAX Pearl''), via a single, shared
connection. 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 Pearl via a single, shared
connection will continue to only be assessed one monthly connectivity
fee per connection, regardless of the trading platforms, market data
systems, test systems, and disaster recovery facilities accessed via
such connection.
    Pursuant to the proposed tiered-pricing structure, any firm that is
a Member of both MIAX and MIAX Pearl Options and purchases three or
four total 10Gb ULL connections, can effectively allocate one or two
10Gb ULL connections to MIAX at the lowest rate and the other one or
two 10Gb ULL connections to MIAX Pearl Options at the lowest rate. This
allocation will provide additional cost saving benefits to those
Members and non-Members, due to the shared MENI infrastructure of MIAX
and MIAX Pearl.
2. Statutory Basis
    The Exchange believes that its proposal to amend its Fee Schedule
is consistent with Section 6(b) of the Act \8\ in general, and furthers
the objectives of Section 6(b)(4) of the Act \9\ in particular, in that
it provides for the equitable allocation of reasonable dues, fees and
other charges among Exchange Members and issuers and other persons
using any facility or system which the Exchange operates or controls.
The Exchange also believes the proposal furthers the objectives of
Section 6(b)(5) of the Act \10\ in that it is 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 is not
designed to permit unfair discrimination between customers, issuers,
brokers and dealers.
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    \8\ 15 U.S.C. 78f(b).
    \9\ 15 U.S.C. 78f(b)(4).
    \10\ 15 U.S.C. 78f(b)(5).
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    The Exchange notes that it operates in a highly competitive market
in which market participants can readily favor competing venues if they
deem fee levels at a particular venue to be excessive. In such an
environment, the Exchange must continually adjust its fees for services
and products, in addition to order flow, to remain competitive with
other exchanges. The Exchange believes that the proposed

changes reflect this competitive environment.
    The Exchange believes the proposal to move from a flat fee per
month for the 10Gb ULL connection to a tiered-pricing structure is
reasonable, equitably allocated and not unfairly discriminatory because
the Exchange believes the proposed structure would encourage firms to
be more economical and efficient in the number of connections they
purchase. The Exchange believes this will enable the Exchange to better
monitor and provide access to the Exchange's network to ensure
sufficient capacity and headroom in the System.
    The Exchange believes that the proposal to move to a tiered-pricing
structure for its 10Gb ULL connections is reasonable, equitably
allocated and not unfairly discriminatory because the majority of
Members and non-Members that purchase 10Gb ULL connections will either
save money or pay the same amount after the tiered-pricing structure is
implemented. After the effective date of the First Proposed Rule Change
on August 1, 2021, approximately 80% of the firms that purchased at
least one 10Gb ULL connection experienced a decrease in their monthly
connectivity fees while only approximately 20% of firms experienced an
increase in their monthly connectivity fees as a result of the proposed
tiered-pricing structure when compared to the flat monthly fee
structure. To illustrate, firms that purchase only one 10Gb ULL
connection per month used to pay the flat rate of $10,000 per month for
that one 10Gb ULL connection. Pursuant to the proposed tiered-pricing
structure, these firms now pay $9,000 per month for that one 10Gb ULL
connection, saving $1,000 per month or $12,000 annually. Further, firms
that purchase two 10Gb ULL connections per month previously paid a flat
rate of $20,000 per month ($10,000 x 2) for those two 10Gb ULL
connections. Pursuant to the proposed tiered-pricing structure, these
firms now pay $18,000 per month ($9,000 x 2) for those two 10Gb ULL
connections, saving $2,000 per month or $24,000 annually. Additionally,
any firm that is a Member of both MIAX and MIAX Pearl Options and
purchases four total 10Gb ULL connections, can allocate two 10Gb ULL
connections to MIAX at the $9,000 rate (saving $2,000 per month as
compared to the flat fee) and two 10Gb ULL connections to MIAX Pearl
Options at the $9,000 rate (saving an additional $2,000 per month as
compared to the flat fee), for a total savings of $4,000 per month, or
$48,000 annually, due to the shared MENI infrastructure of MIAX and
MIAX Pearl.
    The Exchange also notes that firms that primarily route orders
seeking best-execution generally only need a limited number of
connections to fulfill that obligation. Therefore, the connectivity
costs will likely be lower for these firms based on the proposed
tiered-pricing structure. The firms that engage in advanced trading
strategies typically require multiple connections and, therefore,
generate higher costs by utilizing more of the Exchange's resources.
These firms experienced increased connectivity costs based on the
proposed tiered-pricing structure, as shown by the 20% of firms that
may have experienced an increase in their monthly connectivity fees.
Additionally, the firms that purchase a higher amount of 10Gb ULL
connections tend to have specific business-driven trading strategies,
as opposed to firms engaging solely in order routing as part of their
best-execution obligations.
    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 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 access fees for market participants to access
an exchange's marketplace. The Exchange deems connectivity to be access
fees. It records these fees as part of its ``Access Fees'' revenue in
its financial statements. The Exchange believes that it is important to
demonstrate that these fees are based on its costs and reasonable
business needs. The Exchange believes the Proposed Access Fees will
allow the Exchange to offset expense the Exchange has and will incur,
and that the Exchange is providing sufficient transparency (as
described below) into how the Exchange determined to charge such fees.
Accordingly, the Exchange is providing an analysis of its revenues,
costs, and profitability associated with the Proposed Access Fees. This
analysis includes information regarding its methodology for determining
the costs and revenues associated with the Proposed Access Fees.
    In order to determine the Exchange's costs to provide the access
services associated with the Proposed Access Fees, the Exchange
conducted an extensive cost review in which the Exchange analyzed
nearly every expense item in the Exchange's general expense ledger to
determine whether each such expense relates to the Proposed Access
Fees, and, if such expense did so relate, what portion (or percentage)
of such expense actually supports the access services. The sum of all
such portions of expenses represents the total cost to the Exchange to
provide the access services associated with the Proposed Access Fees.
For the avoidance of doubt, no expense amount was allocated twice. The
Exchange is also providing detailed information regarding the
Exchange's cost allocation methodology--namely, information that
explains the Exchange's rationale for determining that it was
reasonable to allocate certain expenses described in this filing
towards the cost to the Exchange to provide the access services
associated with the Proposed Access Fees.
    In order to determine the Exchange's projected revenue associated
with the Proposed Access Fees, the Exchange analyzed the number of
Members and non-Members currently utilizing the 10Gb ULL fiber
connection, and, utilizing a recent monthly billing cycle
representative of 2021 monthly revenue, extrapolated annualized revenue
on a going-forward basis. The Exchange does not believe it is
appropriate to factor into its analysis future revenue growth or
decline into its projections for purposes of these calculations, given
the uncertainty of such projections due to the continually changing
access needs of market participants, discounts that can be achieved due
to lower trading volume and vice versa, market participant
consolidation, etc. Additionally, the Exchange similarly does not
factor into its analysis future cost growth or decline. The Exchange is
presenting its revenue and expense associated with the Proposed Access
Fees in this filing in a manner that is consistent with how the
Exchange presents its revenue and expense in its Audited Unconsolidated
Financial Statements. The Exchange's most recent Audited Unconsolidated
Financial Statement is for 2020. However, since the revenue and expense
associated with the Proposed Access Fees were not in place in 2020 or
for the first seven months of 2021, the Exchange believes its 2020
Audited Unconsolidated Financial Statement is not representative of its
current total annualized revenue and costs associated with the Proposed
Access Fees. Accordingly, the Exchange believes it is more appropriate
to analyze the Proposed Access Fees utilizing its 2021 revenue and
costs, as described herein, which utilize the same presentation
methodology as set forth in the Exchange's previously-issued Audited

Unconsolidated Financial Statements. Based on this analysis, the
Exchange believes that the Proposed Access Fees are fair and reasonable
because they will not result in excessive pricing or supra-competitive
profit when comparing the Exchange's total annual expense associated
with providing the services associated with the Proposed Access Fees
versus the total projected annual revenue the Exchange will collect for
providing those services.
* * * * *
    On March 29, 2019, the Commission issued its 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 ``BOX
Order'').\11\ On May 21, 2019, the Commission issued the Staff Guidance
on SRO Rule Filings Relating to Fees.\12\ Accordingly, the Exchange
believes that the Proposed Access Fees are consistent with the Act
because they (i) are reasonable, equitably allocated, not unfairly
discriminatory, and not an undue burden on competition; (ii) comply
with the BOX Order and the Guidance; (iii) are supported by evidence
(including comprehensive revenue and cost data and analysis) that they
are fair and reasonable because they will not result in excessive
pricing or supra-competitive profit; and (iv) utilize a cost-based
justification framework that is substantially similar to a framework
previously used by the Exchange, and its affiliates, MIAX Pearl and
MIAX Emerald, LLC (``MIAX Emerald''), to establish or increase other
non-transaction fees.\13\ Accordingly, the Exchange believes that the
Proposed Access Fees are consistent with the Act.
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    \11\ 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).
    \12\ See Staff Guidance on SRO Rule Filings Relating to Fees
(May 21, 2019), at https://www.sec.gov/tm/staff-guidance-sro-rule-filings-fees (the ``Guidance'').
    \13\ See Securities Exchange Act Release Nos. 90981 (January 25,
2021), 86 FR 7582 (January 29, 2021) (SR-PEARL-2021-01) (proposal to
increase connectivity fees); 91460 (April 2, 2021), 86 FR 18349 (SR-
EMERALD-2021-11) (proposal to adopt port fees, increase connectivity
fees, and increase additional limited service ports); 91033
(February 1, 2021), 86 FR 8455 (February 5, 2021) (SR-EMERALD-2021-
03) (proposal to adopt trading permit fees).
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* * * * *
    As of September 20, 2021, the Exchange had a market share of only
5.47% of the U.S. equity options industry for the month of September
2021.\14\ The Exchange is not aware of any evidence that a market share
of approximately 5-6% provides the Exchange with anti-competitive
pricing power. If the Exchange were to attempt to establish
unreasonable pricing for any of its means provided to access the
Exchange, market participants may look to access the Exchange via other
means such as through a third party service provider, or look to
connect to the Exchange via a competing exchange with cheaper access
alternatives that also provides routing services to the Exchange. In
addition, existing market participants that are connected to the
Exchange may choose to disconnect from the Exchange or reduce their
number of connections to the Exchange as a means to reduce their
overall costs.
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    \14\ See ``The market at a glance,'' available at https://www.miaxoptions.com/ (last visited September 20, 2021).
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    The Exchange believes the proposed tiered-pricing structure for
10Gb ULL connections is equitable and reasonable because the proposed
highest tier is still less than fees charged for similar connectivity
provided by other options exchanges with comparable market shares. For
example, The Nasdaq Stock Market LLC (``NASDAQ'') (equity options
market share of 7.79% as of September 22, 2021 for the month of
September) \15\ charges a monthly fee of $10,000 per 10Gb fiber
connection and $15,000 per 10Gb Ultra fiber connection.\16\ The highest
tier of the Exchange's proposed fee structure for a 10Gb ULL connection
is $2,000 per month less than NASDAQ and, unlike NASDAQ, the Exchange
does not charge installation fees. The Exchange notes that the same
connectivity fees described above for NASDAQ also apply to its
affiliates, Nasdaq ISE, LLC (``ISE'') (equity options market share of
6.47% as of September 22, 2021 for the month of September) \17\ and
NASDAQ PHLX LLC (``PHLX'') (equity options market share of 11.25% as of
September 22, 2021 for the month of September).\18\ NYSE American LLC
(``Amex'') (equity options market share of 7.89% as of September 22,
2021 for the month of September) \19\ charges $15,000 per connection
initially plus $22,000 monthly per 10Gb LX LCN circuit connection.\20\
Again, the highest tier of the Exchange's proposed fee structure for a
10Gb ULL connection is $9,000 per month lower than the Amex
connectivity fee after the first month.
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    \15\ See ``The market at a glance,'' available at https://www.miaxoptions.com/ (last visited September 22, 2021).
    \16\ See Nasdaq Stock Market LLC Rules, General 8: Connectivity,
Section 1. Co-Location Services; Nasdaq ISE Rules, General 8:
Connectivity.
    \17\ See id.
    \18\ See id. See also PHLX Rules, General 8: Connectivity.
    \19\ See supra note 15.
    \20\ See NYSE American Options Fee Schedule, Section IV.
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    In the each of the above cases, the Exchange's highest tier in the
proposed tiered-pricing structure is significantly lower than that of
competing options exchanges with similar market share. Further, as
described in more detail below, those exchanges generate higher overall
operating profit margins and higher ``access fees'' than the Exchange,
even with this proposed fee change. Despite proposing lower or similar
fees to that of competing options exchanges with similar market share,
the Exchange believes that it provides a premium network experiencer to
its Members and non-Members via a highly deterministic system, enhanced
network monitoring and customer reporting, and a superior network
infrastructure than markets with higher market shares and more
expensive connectivity alternatives. Each of the connectivity rates in
place at competing options exchanges were filed with the Commission for
immediate effectiveness and remain in place today.
    The Exchange also notes that the higher connectivity fees described
above for competing exchanges have been in place for years (over 8
years in some cases), allowing those exchanges to derive significantly
more revenue from their access fees. For example, in 2013, Amex adopted
the pricing for its 10Gb LX LCN connection of $15,000 as an initial
charge per connection and then a monthly fee of $20,000 per connection.
The initial fee per connection is higher than the Exchange's highest
proposed tier of $13,000 per connection, notwithstanding the fact that
the monthly fee is $7,000 more than the Exchange's highest proposed
tier and Amex's fees have been in place for nearly 8 years.\21\ NYSE
Arca, Inc. (``Arca'') also adopted the exact same fees as Amex in 2013
and has been collecting higher fees than the Exchange's current
proposal for nearly 8 years as well (initial charge of $15,000 per
connection and then a monthly fee of $20,000 per connection).\22\ Not
only were the fees that Amex and Arca adopted in 2013 significantly
higher than the fees the Exchange currently proposes, in 2016, Amex and
Arca

raised the monthly fees even higher to $22,000 per connection.\23\
Similarly, in 2013, NASDAQ adopted the pricing for its 10Gb Ultra
connection of $1,500 per connection as a one-time installation fee and
then a monthly fee of $15,000 per connection.\24\ The Exchange's
current proposal does not contemplate any sort of installation fee or
one-time fee and the monthly fee for the Exchange's highest
connectivity tier ($13,000) is $2,000 lower than the fees adopted 8
years ago by Amex, Arca and NASDAQ. Separately, the Exchange is not
aware of any reason why market participants could not simply drop their
access (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 participant, did not make business or
economic sense for such market participant to access such exchange. No
options market participant is required by rule, regulation, or
competitive forces to be a Member of the Exchange. As evidence of the
fact that market participants can and do drop their access to exchanges
based on non-transaction fee pricing, R2G Services LLC (``R2G'') filed
a comment letter after BOX's proposed rule changes to increase its
connectivity fees (SR-BOX-2018-24, SR-BOX-2018-37, and SR-BOX-2019-04).
The R2G Letter stated, ``[w]hen BOX instituted a $10,000/month price
increase for connectivity; we had no choice but to terminate
connectivity into them as well as terminate our market data
relationship. The cost benefit analysis just didn't make any sense for
us at those new levels.'' Similarly, the Exchange's affiliate, MIAX
Emerald, noted in a recent filing that once MIAX Emerald issued a
notice that it was instituting MEI Port fees, among other non-
transaction fees, one MIAX Emerald Member dropped its access to MIAX
Emerald as a result of those fees.\25\ Accordingly, these examples show
that if a market participant believes, based on its business model,
that an exchange charges too high of a fee for connectivity and/or
other non-transaction fees for its relevant marketplace, market
participants can choose to drop their access to such exchange.
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    \21\ See Securities Exchange Act Release No. 70982 (December 4,
2013), 78 FR 74197 (December 10, 2013) (SR-NYSEMKT-2013-97).
    \22\ See Securities Exchange Act Release No. 70981 (December 4,
2013), 78 FR 74203 (December 10, 2013) (SR-NYSEARCA-2013-131).
    \23\ See Securities Exchange Act Release Nos. 79729 (January 4,
2017), 82 FR 3061 (January 10, 2017) (SR-NYSEARCA-2016-172); 79728
(January 4, 2017), 82 FR 3035 (January 10, 2017) (SR-NYSEMKT-2016-
126).
    \24\ See Securities Exchange Act Release No. 70129 (August 7,
2013), 78 FR 49308 (August 13, 2013 (SR-NASDAQ-2013-099).
    \25\ See Securities Exchange Act Release No. 91460 (April 2,
2021), 86 FR 18349 (April 8, 2021) (SR-EMERALD-2021-11) (Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change To
Amend Its Fee Schedule To Adopt Port Fees, Increase Certain Network
Connectivity Fees, and Increase the Number of Additional Limited
Service MIAX Emerald Express Interface Ports Available to Market
Makers) (adopting tiered MEI Port fee structure ranging from $5,000
to $20,500 per month).
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    In order to provide more detail and to quantify the Exchange's
costs associated with providing access to the Exchange in general, the
Exchange notes that there are material costs associated with providing
the infrastructure and headcount to fully-support access to the
Exchange. The Exchange incurs technology expense related to
establishing and maintaining Information Security services, enhanced
network monitoring and customer reporting, as well as Regulation SCI
mandated processes, associated with its network technology. While some
of the expense is fixed, much of the expense is not fixed, and thus
increases as the services associated with the Proposed Access Fees
increase. For example, new Members to the Exchange may require the
purchase of additional hardware to support those Members as well as
enhanced monitoring and reporting of customer performance that the
Exchange and its affiliates provide. Further, as the total number
Members increases, the Exchange and its affiliates may need to increase
their data center footprint and consume more power, resulting in
increased costs charged by their third-party data center provider.
Accordingly, the cost to the Exchange and its affiliates to provide
access to its Members is not fixed. The Exchange believes the Proposed
Access Fees are a reasonable attempt to offset a portion of the costs
to the Exchange associated with providing access to its network
infrastructure.
    The Exchange only has four primary sources of revenue: Transaction
fees, access fees (which includes the Proposed Access Fees), regulatory
fees, and market data fees. Accordingly, the Exchange must cover all of
its expenses from these four primary sources of revenue.
    The Exchange believes that the Proposed Access Fees are fair and
reasonable because they will not result in excessive pricing or supra-
competitive profit, when comparing the total annual expense that the
Exchange and MIAX Pearl project to incur in connection with providing
these access services versus the total annual revenue that the Exchange
projects to collect in connection with services associated with the
Proposed Access Fees. For 2021,\26\ the total annual expense for
providing the access services associated with the Proposed Access Fees
(that is, the shared network connectivity of the Exchange and MIAX
Pearl, but excluding MIAX Emerald) is projected to be approximately
$15.9 million. The approximately $15.9 million in projected total
annual expense is comprised of the following, all of which are directly
related to the access services associated with the Proposed Access
Fees: (1) Third-party expense, relating to fees paid by the Exchange to
third-parties for certain products and services; and (2) internal
expense, relating to the internal costs of the Exchange and MIAX Pearl
to provide the services associated with the Proposed Access Fees.\27\
As noted above, the Exchange believes it is more appropriate to analyze
the Proposed Access Fees utilizing its 2021 revenue and costs, which
utilize the same presentation methodology as set forth in the
Exchange's previously-issued Audited Unconsolidated Financial
Statements.\28\ The $15.9 million in projected total annual expense is
directly related to the access services associated with the Proposed
Access Fees, and not any other product or service offered by the
Exchange. It does not include general costs of operating matching
systems and other trading technology, and no expense amount was
allocated twice.
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    \26\ The Exchange has not yet finalized its 2021 year end
results.
    \27\ The percentage allocations used in this proposed rule
change may differ from past filings from the Exchange or its
affiliates due to, among other things, changes in expenses charged
by third-parties, adjustments to internal resource allocations, and
different system architecture of the Exchange as compared to its
affiliates.
    \28\ For example, the Exchange previously noted that all third-
party expense described in its prior fee filing was contained in the
information technology and communication costs line item under the
section titled ``Operating Expenses Incurred Directly or Allocated
From Parent,'' in the Exchange's 2019 Form 1 Amendment containing
its financial statements for 2018. See Securities Exchange Act
Release No. 87875 (December 31, 2019), 85 FR 770 (January 7, 2020)
(SR-MIAX-2019-51). Accordingly, the third-party expense described in
this filing is attributed to the same line item for the Exchange's
2021 Form 1 Amendment, which will be filed in 2022.
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    As discussed, the Exchange conducted an extensive cost review in
which the Exchange analyzed nearly every expense item in the Exchange's
general expense ledger (this includes over 150 separate and distinct
expense items) to determine whether each such expense relates to the
access services associated with the Proposed Access Fees, and, if such
expense did so relate, what portion (or percentage) of such expense
actually supports those services, and thus bears a relationship that
is, ``in nature and closeness,'' directly related to those services.
The sum of all such portions of expenses

represents the total cost of the Exchange to provide access services
associated with the Proposed Access Fees.
    For 2021, total third-party expense, relating to fees paid by the
Exchange and MIAX Pearl to third-parties for certain products and
services for the Exchange to be able to provide the access services
associated with the Proposed Access Fees, is projected to be $3.9
million. This includes, but is not limited to, a portion of the fees
paid to: (1) Equinix, for data center services, for the primary,
secondary, and disaster recovery locations of the Exchange's trading
system infrastructure; (2) Zayo Group Holdings, Inc. (``Zayo'') for
network services (fiber and bandwidth products and services) linking
the Exchange's and MIAX Pearl's office locations in Princeton, New
Jersey and Miami, Florida, to all data center locations; (3) Secure
Financial Transaction Infrastructure (``SFTI''),\29\ which supports
connectivity and feeds for the entire U.S. options industry; (4)
various other services providers (including Thompson Reuters, NYSE,
Nasdaq, and Internap), which provide content, connectivity services,
and infrastructure services for critical components of options
connectivity and network services; and (5) various other hardware and
software providers (including Dell and Cisco, which support the
production environment in which Members connect to the network to
trade, receive market data, etc.).
---------------------------------------------------------------------------

    \29\ In fact, on October 22, 2019, the Exchange was notified by
SFTI that it is again raising its fees charged to the Exchange by
approximately 11%, without having to show that such fee change
complies with the Act by being reasonable, equitably allocated, and
not unfairly discriminatory. It is unfathomable to the Exchange
that, given the critical nature of the infrastructure services
provided by SFTI, that its fees are not required to be rule-filed
with the Commission pursuant to Section 19(b)(1) of the Act and Rule
19b-4 thereunder. See 15 U.S.C. 78s(b)(1) and 17 CFR 240.19b-4,
respectively.
---------------------------------------------------------------------------

    For clarity, only a portion of all fees paid to such third-parties
is included in the third-party expense herein, and no expense amount is
allocated twice. Accordingly, the Exchange and MIAX Pearl do not
allocate their entire information technology and communication costs to
the access services associated with the Proposed Access Fees. Further,
the Exchange notes that, with respect to the MIAX Pearl expenses
included herein, those expenses only cover the MIAX Pearl options
market; expenses associated with MIAX Pearl Equities are accounted for
separately and are not included within the scope of this filing. As
noted above, the percentage allocations used in this proposed rule
change may differ from past filings from the Exchange or its affiliates
due to, among other things, changes in expenses charged by third-
parties, adjustments to internal resource allocations, and different
system architecture of the Exchange as compared to its affiliates.
Further, as part its ongoing assessment of costs and expenses, the
Exchange recently conducted a periodic thorough review of its expenses
and resource allocations which, in turn, resulted in a revised
percentage allocations in this filing.
    The Exchange believes it is reasonable to allocate such third-party
expense described above towards the total cost to the Exchange and MIAX
Pearl to provide the access services associated with the Proposed
Access Fees. In particular, the Exchange believes it is reasonable to
allocate the identified portion of the Equinix expense because Equinix
operates the data centers (primary, secondary, and disaster recovery)
that host the Exchange's network infrastructure. This includes, among
other things, the necessary storage space, which continues to expand
and increase in cost, power to operate the network infrastructure, and
cooling apparatuses to ensure the Exchange's network infrastructure
maintains stability. Without these services from Equinix, the Exchange
would not be able to operate and support the network and provide the
access services associated with the Proposed Access Fees to its Members
and their customers. The Exchange did not allocate all of the Equinix
expense toward the cost of providing the access services associated
with the Proposed Access Fees, only that portion which the Exchange
identified as being specifically mapped to providing the access
services associated with the Proposed Access Fees, approximately 62% of
the total applicable Equinix expense. The Exchange believes this
allocation is reasonable because it represents the Exchange's actual
cost to provide the access services associated with the Proposed Access
Fees, and not any other service, as supported by its cost review.\30\
---------------------------------------------------------------------------

    \30\ As noted above, the percentage allocations used in this
proposed rule change may differ from past filings from the Exchange
or its affiliates due to, among other things, changes in expenses
charged by third-parties, adjustments to internal resource
allocations, and different system architecture of the Exchange as
compared to its affiliates. Again, as part its ongoing assessment of
costs and expenses, the Exchange recently conducted a periodic
thorough review of its expenses and resource allocations which, in
turn, resulted in a revised percentage allocations in this filing.
---------------------------------------------------------------------------

    The Exchange believes it is reasonable to allocate the identified
portion of the Zayo expense because Zayo provides the internet, fiber
and bandwidth connections with respect to the network, linking the
Exchange with its affiliates, MIAX Pearl and MIAX Emerald, as well as
the data center and disaster recovery locations. As such, all of the
trade data, including the billions of messages each day per exchange,
flow through Zayo's infrastructure over the Exchange's network. Without
these services from Zayo, the Exchange would not be able to operate and
support the network and provide the access services associated with the
Proposed Access Fees. The Exchange did not allocate all of the Zayo
expense toward the cost of providing the access services associated
with the Proposed Access Fees, only the portion which the Exchange
identified as being specifically mapped to providing the Proposed
Access Fees, approximately 62% of the total applicable Zayo expense.
The Exchange believes this allocation is reasonable because it
represents the Exchange's actual cost to provide the access services
associated with the Proposed Access Fees, and not any other service, as
supported by its cost review.\31\
---------------------------------------------------------------------------

    \31\ Id.
---------------------------------------------------------------------------

    The Exchange believes it is reasonable to allocate the identified
portions of the SFTI expense and various other service providers'
(including Thompson Reuters, NYSE, Nasdaq, and Internap) expense
because those entities provide connectivity and feeds for the entire
U.S. options industry, as well as the content, connectivity services,
and infrastructure services for critical components of the network.
Without these services from SFTI and various other service providers,
the Exchange would not be able to operate and support the network and
provide access to its Members and their customers. The Exchange did not
allocate all of the SFTI and other service providers' expense toward
the cost of providing the access services associated with the Proposed
Access Fees, only the portions which the Exchange identified as being
specifically mapped to providing the access services associated with
the Proposed Access Fees, approximately 75% of the total applicable
SFTI and other service providers' expense. The Exchange believes this
allocation is reasonable because it represents the Exchange's actual
cost to provide the access services associated with the Proposed Access
Fees.\32\
---------------------------------------------------------------------------

    \32\ Id.
---------------------------------------------------------------------------

    The Exchange believes it is reasonable to allocate the identified
portion of the other hardware and software provider expense because
this includes costs for dedicated hardware licenses for

switches and servers, as well as dedicated software licenses for
security monitoring and reporting across the network. Without this
hardware and software, the Exchange would not be able to operate and
support the network and provide access to its Members and their
customers. The Exchange did not allocate all of the hardware and
software provider expense toward the cost of providing the access
services associated with the Proposed Access Fees, only the portions
which the Exchange identified as being specifically mapped to providing
the access services associated with the Proposed Access Fees,
approximately 51% of the total applicable hardware and software
provider expense. The Exchange believes this allocation is reasonable
because it represents the Exchange's actual cost to provide the access
services associated with the Proposed Access Fees.\33\
---------------------------------------------------------------------------

    \33\ Id.
---------------------------------------------------------------------------

    For 2021, total projected internal expense, relating to the
internal costs of the Exchange and MIAX Pearl to provide the access
services associated with the Proposed Access Fees, is projected to be
approximately $12 million. This includes, but is not limited to, costs
associated with: (1) Employee compensation and benefits for full-time
employees that support the access services associated with the Proposed
Access Fees, including staff in network operations, trading operations,
development, system operations, business, as well as staff in general
corporate departments (such as legal, regulatory, and finance) that
support those employees and functions (including an increase as a
result of the higher determinism project); (2) depreciation and
amortization of hardware and software used to provide the access
services associated with the Proposed Access Fees, including equipment,
servers, cabling, purchased software and internally developed software
used in the production environment to support the network for trading;
and (3) occupancy costs for leased office space for staff that provide
the access services associated with the Proposed Access Fees. The
breakdown of these costs is more fully-described below. For clarity,
only a portion of all such internal expenses are included in the
internal expense herein, and no expense amount is allocated twice.
Accordingly, the Exchange and MIAX Pearl do not allocate their entire
costs contained in those items to the access services associated with
the Proposed Access Fees.
    The Exchange believes it is reasonable to allocate such internal
expense described above towards the total cost to the Exchange to
provide the access services associated with the Proposed Access Fees.
In particular, the Exchange's and MIAX Pearl's combined employee
compensation and benefits expense relating to providing the access
services associated with the Proposed Access Fees is projected to be
approximately $6.1 million, which is only a portion of the
approximately $12.6 million (for MIAX) and $9.2 million (for MIAX
Pearl) total projected expense for employee compensation and benefits.
The Exchange believes it is reasonable to allocate the identified
portion of such expense because this includes the time spent by
employees of several departments, including Technology, Back Office,
Systems Operations, Networking, Business Strategy Development (who
create the business requirement documents that the Technology staff use
to develop network features and enhancements), Trade Operations,
Finance (who provide billing and accounting services relating to the
network), and Legal (who provide legal services relating to the
network, such as rule filings and various license agreements and other
contracts). As part of the extensive cost review conducted by the
Exchange, the Exchange reviewed the amount of time spent by each
employee on matters relating to the provision of access services
associated with the Proposed Access Fees. Without these employees, the
Exchange would not be able to provide the access services associated
with the Proposed Access Fees to its Members and their customers. The
Exchange did not allocate all of the employee compensation and benefits
expense toward the cost of the access services associated with the
Proposed Access Fees, only the portions which the Exchange identified
as being specifically mapped to providing the access services
associated with the Proposed Access Fees, approximately 28% of the
total applicable employee compensation and benefits expense. The
Exchange believes this allocation is reasonable because it represents
the Exchange's actual cost to provide the access services associated
with the Proposed Access Fees, and not any other service, as supported
by its cost review.\34\
---------------------------------------------------------------------------

    \34\ Id.
---------------------------------------------------------------------------

    The Exchange's and MIAX Pearl's combined depreciation and
amortization expense relating to providing the services associated with
the Proposed Access Fees is projected to be $5.3 million, which is only
a portion of the $4.8 million (for MIAX) and $2.9 million (for MIAX
Pearl) total projected expense for depreciation and amortization. The
Exchange believes it is reasonable to allocate the identified portion
of such expense because such expense includes the actual cost of the
computer 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 and provide the
access services associated with the Proposed Access Fees. Without this
equipment, the Exchange would not be able to operate the network and
provide the access services associated with the Proposed Access Fees to
its Members and their customers. The Exchange did not allocate all of
the depreciation and amortization expense toward the cost of providing
the access services associated with the Proposed Access Fees, only the
portion which the Exchange identified as being specifically mapped to
providing the access services associated with the Proposed Access Fees,
approximately 70% of the total applicable depreciation and amortization
expense, as these access services would not be possible without relying
on such. The Exchange believes this allocation is reasonable because it
represents the Exchange's actual cost to provide the access services
associated with the Proposed Access Fees, and not any other service, as
supported by its cost review.\35\
---------------------------------------------------------------------------

    \35\ Id.
---------------------------------------------------------------------------

    The Exchange's and MIAX Pearl's combined occupancy expense relating
to providing the services associated with the Proposed Access Fees is
projected to be approximately $0.6 million, which is only a portion of
the $0.6 million (for MIAX) and $0.5 million (for MIAX Pearl) total
projected expense for occupancy. The Exchange believes it is reasonable
to allocate the identified portion of such expense because such expense
represents the portion of the Exchange's cost to rent and maintain a
physical location for the Exchange's staff who operate and support the
network, including providing the access services associated with the
Proposed Access Fees. This amount consists primarily of rent for the
Exchange's Princeton, NJ office, as well as various related costs, such
as physical security, property management fees, property taxes, and
utilities. The Exchange operates its Network Operations Center
(``NOC'') and Security Operations Center (``SOC'')

from its Princeton, New Jersey office location. A centralized office
space is required to house the staff that operates and supports the
network. The Exchange currently has approximately 150 employees.
Approximately two-thirds of the Exchange's staff are in the Technology
department, and the majority of those staff have some role in the
operation and performance of the access services associated with the
Proposed Access Fees. Without this office space, the Exchange would not
be able to operate and support the network and provide the access
services associated with the Proposed Access Fees to its Members and
their customers. Accordingly, the Exchange believes it is reasonable to
allocate the identified portion of its occupancy expense because such
amount represents the Exchange's actual cost to house the equipment and
personnel who operate and support the Exchange's network infrastructure
and the access services associated with the Proposed Access Fees. The
Exchange did not allocate all of the occupancy expense toward the cost
of providing the access services associated with the Proposed Access
Fees, only the portion which the Exchange identified as being
specifically mapped to operating and supporting the network,
approximately 53% of the total applicable occupancy expense. The
Exchange believes this allocation is reasonable because it represents
the Exchange's cost to provide the access services associated with the
Proposed Access Fees, and not any other service, as supported by its
cost review.\36\
---------------------------------------------------------------------------

    \36\ Id.
---------------------------------------------------------------------------

    The Exchange notes that a material portion of its total overall
expense is allocated to the provision of access services (including
connectivity, ports, and trading permits). The Exchange believes this
is reasonable and in line, as the Exchange operates a technology-based
business that differentiates itself from its competitors based on its
trading systems that rely on access to a high performance network,
resulting in significant technology expense. Over two-thirds of
Exchange staff are technology-related employees. The majority of the
Exchange's expense is technology-based. As described above, the
Exchange and MIAX Pearl have only four primary sources of fees to
recover their costs; thus, the Exchange and MIAX Pearl believe it is
reasonable to allocate a material portion of their total overall
expense towards access fees.
    Accordingly, based on the facts and circumstances presented, the
Exchange believes that its provision of the access services associated
with the Proposed Access Fees will not result in excessive pricing or
supra-competitive profit. To illustrate, on a going-forward, fully-
annualized basis, the Exchange and MIAX Pearl project that annualized
revenue for providing the access services associated with the Proposed
Access Fees would be approximately $22 million per annum, based on a
recent billing cycle.\37\ The Exchange and MIAX Pearl project that
their annualized revenue for providing network connectivity services
(all connectivity alternatives) to be approximately $22.8 million per
annum. The Exchange and MIAX Pearl project that their annualized
expense for providing network connectivity services (all connectivity
alternatives) to be approximately $15.9 million per annum. Accordingly,
on a fully-annualized basis, the Exchange and MIAX Pearl believe their
total projected revenue for the providing the access services
associated with the Proposed Access Fees will not result in excessive
pricing or supra-competitive profit, as the Exchange and MIAX Pearl
will make a profit margin of only approximately 30% inclusive of the
Proposed Access Fees and all other connectivity alternatives ($22.8
million in total connectivity revenue minus $15.9 million in expense =
$6.9 million in profit per annum). Additionally, this profit margin
does not take into account the cost of capital expenditures (``CapEx'')
the Exchange and MIAX Pearl historically spent or are projected to
spend each year on CapEx going forward.
---------------------------------------------------------------------------

    \37\ The Exchange and MIAX Pearl also continue to project
approximately $69,550 in monthly revenue through 1Gb connections;
however, the Exchange and MIAX Pearl do not propose to adjust the
fees for those connections at this time.
---------------------------------------------------------------------------

    For the avoidance of doubt, none of the expenses included herein
relating to the access services associated with the Proposed Access
Fees relate to the provision of any other services offered by the
Exchange or MIAX Pearl. Stated differently, no expense amount of the
Exchange is allocated twice. The Exchange notes that, with respect to
the MIAX Pearl expenses included herein, those expenses only cover the
MIAX Pearl options market; expenses associated with the MIAX Pearl
equities market and the Exchange's affiliate, MIAX Emerald, are
accounted for separately and are not included within the scope of this
filing. Stated differently, no expense amount of the Exchange is also
allocated to MIAX Pearl Equities or MIAX Emerald.
    The Exchange believes it is reasonable, equitable and not unfairly
discriminatory to allocate the respective percentages of each expense
category described above towards the total cost to the Exchange of
operating and supporting the network, including providing the access
services associated with the Proposed Access Fees because the Exchange
performed a line-by-line item analysis of nearly every expense of the
Exchange, and has determined the expenses that directly relate to
providing access to the Exchange and MIAX Pearl. Further, the Exchange
notes that, without the specific third-party and internal items listed
above, the Exchange would not be able to provide the access services
associated with the Proposed Access Fees to its Members and their
customers. Each of these expense items, including physical hardware,
software, employee compensation and benefits, occupancy costs, and the
depreciation and amortization of equipment, have been identified
through a line-by-line item analysis to be integral to providing access
services. The Proposed Access Fees are intended to recover the
Exchange's and MIAX Pearl's costs of providing access to their Systems.
Accordingly, the Exchange believes that the Proposed Access Fees are
fair and reasonable because they do not result in excessive pricing or
supra-competitive profit, when comparing the actual costs to the
Exchange versus the projected annual revenue from the Proposed Access
Fees.
    The Exchange believes the proposed changes are reasonable,
equitably allocated and not unfairly discriminatory, and do not result
in a ``supra-competitive'' \38\ profit. Of note, the Guidance defines
``supra-competitive profit'' as profits that exceed the profits that
can be obtained in a competitive market.\39\ With the proposed changes,
the Exchange and MIAX Pearl anticipate that their collective
connectivity profit margin will be approximately 30%, inclusive of the
Proposed Access Fees and all other connectivity alternatives. In order
to achieve a consistent, premium network performance, the Exchange must
build out and continue to maintain a network that has the capacity to
handle the message rate requirements of not only firms that consume
minimal Exchange connectivity resources, but also those firms that most
heavily consume Exchange connectivity resources, network consumers, and
purchasers of 10Gb ULL connectivity, which generate billions of
messages per day across the Exchange and MIAX Pearl. 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. Given that 10Gb ULL
purchasers utilize the most resources across the network, the Exchange
believes that it is reasonable to operate at a profit margin of
approximately 30% for connectivity, inclusive of the Proposed Access
Fees and all other connectivity alternatives. Such profit margin should
enable the Exchange to continue to invest in its network and systems,
maintain its current infrastructure, support future enhancements to
network connectivity, and continue to offer enhanced customer reporting
and monitoring services.
---------------------------------------------------------------------------

    \38\ See supra note 12.
    \39\ See id.
---------------------------------------------------------------------------

    While the proposed fees are similar to or less than that of other
options exchanges,\40\ as discussed above, the incremental increase in
revenue generated from the 30% profit margin for connectivity will
allow the Exchange and MIAX Pearl to further invest in their system
architecture and matching engine functionality to the benefit of all
market participants. The ability to continue to invest in technology
and systems will also enable the Exchange to improve the determinism
and overall performance of not only its system connectivity, but
overall performance including the resiliency and efficiency of its
matching engines. The revenue generated under the proposed rule change
would also provide the exchange with the resources necessary to further
innovate and enhance its systems and seek additional improvements or
functionality to offer market participants generally. The Exchange
believes that these investments, in turn, will benefit all investors by
encouraging other exchanges to further invest, innovate, and improve
their own systems in response.
---------------------------------------------------------------------------

    \40\ See supra notes 16, 18 and 20.
---------------------------------------------------------------------------

    Based on the 2020 Audited Financial Statements of competing options
exchanges (since the 2021 Audited Financial Statements will likely not
become publicly available until early July 2022, after the Exchange has
submitted this filing), the Exchange's revenue that is derived from its
access fees is in line with the revenue that is derived from access
fees of competing exchanges. For example, the total revenue from
``access fees'' \41\ for 2020 for MIAX was $15,805,000. MIAX projects
that the total revenue from ``access fees'' for 2021 for MIAX will be
$21,727,396, inclusive of the Proposed Access Fees described herein.
Similarly, the total revenue from ``access fees'' \42\ for 2020 for
MIAX Pearl was $11,422,000. MIAX Pearl projects that the total revenue
from ``access fees'' for 2021 for MIAX Pearl will be $20,001,243,
inclusive of the Proposed Access Fees described herein.
---------------------------------------------------------------------------

    \41\ As described in the Exchange's Audited Financial
Statements, fees for ``access services'' are assessed to exchange
members for the opportunity to trade and use other related functions
of the exchanges. See https://www.sec.gov/Archives/edgar/vprr/2100/21000461.pdf.
    \42\ As described in MIAX Pearl's Audited Financial Statements,
fees for ``access services'' are assessed to exchange members for
the opportunity to trade and use other related functions of the
exchanges. See Form 1 Amendment, at https://www.sec.gov/Archives/edgar/vprr/2100/21000460.pdf.
---------------------------------------------------------------------------

    The Exchange's projected revenue from access fees is still less
than, or similar to, the access fee revenues generated by access fees
charged by other U.S. options exchanges. For example, the Cboe
Exchange, Inc. (``Cboe'') reported $70,893,000 in ``access and capacity
fee'' \43\ revenue for 2020. Cboe C2 Exchange, Inc. (``C2'') reported
$19,016,000 in ``access and capacity fee'' revenue for 2020.\44\ Cboe
BZX Exchange, Inc. (``BZX'') reported $38,387,000 in ``access and
capacity fee'' revenue for 2020.\45\ Cboe EDGX Exchange, Inc.
(``EDGX'') reported $26,126,000 in ``access and capacity fee'' revenue
for 2020.\46\ PHLX reported $20,817,000 in ``Trade Management
Services'' revenue for 2019.\47\ The Exchange notes it is unable to
compare ``access fee'' revenues with 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.'' \48\
---------------------------------------------------------------------------

    \43\ According to Cboe, access and capacity fees represent fees
assessed for the opportunity to trade, including fees for trading-
related functionality. See Form 1 Amendment, at https://www.sec.gov/Archives/edgar/vprr/2100/21000465.pdf.
    \44\ See id.
    \45\ See id.
    \46\ See id.
    \47\ 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 Form 1 Amendment, at https://www.sec.gov/Archives/edgar/vprr/2001/20012246.pdf.
    \48\ See Form 1 Amendment, at https://www.sec.gov/Archives/edgar/vprr/2100/21000475.pdf.
---------------------------------------------------------------------------

    The Exchange also believes that, based on the 2020 Audited
Financial Statements of competing options exchanges, the Exchange's
overall operating margin is in line with or less than the operating
margins of competing options exchanges, including the revenue and
expense associated with the Proposed Access Fees. For example, the 2020
operating margin for MIAX was 46%. The 2020 operating margin for MIAX
Pearl was -18%.\49\ Based on competing exchanges' Form 1 Amendments,
ISE's operating profit margin for 2020 was approximately 85%; PHLX's
operating profit margin for 2020 was approximately 49%; NASDAQ's
operating profit margin for 2020 was approximately 62%; Arca's
operating profit margin for 2020 was approximately 55%; Amex's
operating profit margin for 2020 was approximately 59%; Cboe's
operating profit margin for 2020 was approximately 74%; and BZX's
operating profit margin for 2020 was approximately 52%.
---------------------------------------------------------------------------

    \49\ This information is provided in response to the SIG Comment
Letter. See supra note 7.
---------------------------------------------------------------------------

    The Exchange believes that the Proposed Access Fees are reasonable,
equitably allocated and not unfairly discriminatory because, for one
10Gb ULL connection, the Exchange provides each Member or non-Member
access to all twenty-four (24) matching engines on MIAX and a vast
majority choose to connect to all twenty-four (24) matching engines.
The Exchange believes that other exchanges require firms to connect to
multiple matching engines.\50\ Further, the Exchange notes that no
Member or non-Member has altered its use of 10Gb ULL connectivity since
the proposed fee changes went into effect on August 1, 2021 via the
First Proposed Rule Change.
---------------------------------------------------------------------------

    \50\ 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.
---------------------------------------------------------------------------

    The Exchange further believes its proposed fees are reasonable,
equitably allocated and not unfairly discriminatory because the
Exchange believes that it benefits overall competition in the
marketplace to allow relatively new entrants like the Exchange and its
affiliates, MIAX Pearl and MIAX Emerald, to propose fees that may help
these new entrants recoup their substantial investment in building out
costly infrastructure. The Exchange and its affiliates have
historically set

their fees purposefully low in order to attract business and market
share, and the proposed tiered-pricing structure will help make the
rates consistent with other exchanges while not raising costs for a
majority of the Exchange's Members and non-Members.
    The Guidance provides that in determining whether a proposed fee is
constrained by significant competitive forces, the Commission will
consider whether there are reasonable substitutes for the product or
service that is the subject of a proposed fee. As described below, the
Exchange believes substitute products and services are available to
market participants, including, among other things, other options
exchanges that market participants may connect to in lieu of the
Exchange, indirect connectivity to the Exchange via a third-party
reseller.
    There is also no regulatory requirement that any market participant
connect to any one options exchange, that any market participant
connect at a particular connection speed or act in a particular
capacity on the Exchange, or trade any particular product offered on an
exchange. Moreover, membership is not a requirement to participate on
the Exchange. A market participant may submit orders to the Exchange
via a Sponsored User.\51\ Indeed, the Exchange is unaware of any one
options exchange whose membership includes every registered broker-
dealer. Based on a recent analysis conducted by the Cboe Exchange, Inc.
(``Cboe''), as of October 21, 2020, only three (3) of the broker-
dealers, out of approximately 250 broker-dealers, were members of at
least one exchange that lists options for trading and were members of
all 16 options exchanges.\52\ Additionally, the Cboe Fee Filing found
that several broker-dealers were members of only a single exchange that
lists options for trading and that the number of members at each
exchange that trades options varies greatly.\53\
---------------------------------------------------------------------------

    \51\ See Exchange Rule 210. The Sponsored User is subject to the
fees, if any, of the Sponsoring Member. The Exchange notes that the
Sponsoring Member is not required to publicize, let alone justify or
file with the Commission its fees, and as such could charge the
Sponsored User any fees it deems appropriate, even if such fees
would otherwise be considered supra-competitive, or otherwise
potentially unreasonable or uncompetitive.
    \52\ See Securities Exchange Act Release No. 90333 (November 4,
2020), 85 FR 71666 (November 10, 2020) (SR-CBOE-2020-105) (the
``Cboe Fee Filing''). The Cboe Fee Filing cited to the October 2020
Active Broker Dealer Report, provided by the Commission's Office of
Managing Executive, on October 8, 2020.
    \53\ Id.
---------------------------------------------------------------------------

    The Exchange notes that 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. The Exchange also chooses not to adopt fees that would be
assessed to 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). 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.\54\ In sum,
the Exchange believes this creates and fosters a competitive
environment and subjects the Exchange to competitive forces in pricing
its connectivity and access fees. 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 15 options markets. Accordingly, the Exchange
believes that the Proposed Access Fees are fair and reasonable and do
not result in excessive pricing or supra-competitive profit.
---------------------------------------------------------------------------

    \54\ The Exchange notes that resellers 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.
---------------------------------------------------------------------------

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.
    With respect to intra-market 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. As stated above, the Exchange does not believe
its proposed pricing will impose a barrier to entry to smaller
participants and notes that its proposed connectivity pricing structure
for its 10Gb ULL connections is associated with relative usage of the
various market participants. Further, the majority of firms that
purchase 10Gb ULL connections may either save money or pay the same
amount after the tiered-pricing structure is implemented. While total
cost may be increased for market participants with larger capacity
needs or for business/technical preferences, such options provide far
more capacity and are purchased by those that consume more resources
from the network. Accordingly, the proposed tiered-pricing structure
does not favor certain categories of market participants in a manner
that would impose a burden on competition; rather, the allocation
reflects the network resources consumed by the various usage of market
participants--lowest bandwidth consuming members pay the least, and
highest bandwidth consuming members pays the most, particularly since
higher bandwidth consumption translates to higher costs to the
Exchange.
    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. The Exchange operates in a highly competitive
environment, and as discussed above, its ability to price access and
connectivity is constrained by competition among exchanges and third
parties. There are other options markets of which market participants
may connect to trade options. There is also a possible range of
alternative strategies, including routing to the exchange through
another participant or market center or accessing the Exchange
indirectly. For example, there are 15 other U.S. options exchanges,
which the Exchange must consider in its pricing discipline in order to
compete for market participants. In this competitive environment,
market participants are free to choose which competing exchange or
reseller to use to satisfy their business needs. As a result, the
Exchange believes this proposed rule change permits fair competition
among national securities exchanges. 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.

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

    The Exchange received one comment on the proposed rule change.\55\
The Exchange notes that the Exchange, and its affiliates MIAX Pearl and
MIAX Emerald, justified similar fee changes in the past with similar,
if not identical, justifications in previous filings that have been
noticed by the Commission for public comment and are currently in
effect.\56\ Nonetheless, the Exchange has sought to address the
commenters concerns via the enhanced justification and additional
information included in this proposal.
---------------------------------------------------------------------------

    \55\ See the SIG Comment Letter, supra note 7.
    \56\ See Securities Exchange Act Release Nos. 90980 (January 25,
2021), 86 FR 7602 (January 29, 2021) (SR-MIAX-2021-02); 90981
(January 25, 2021), 86 FR 7582 (January 29, 2021) (SR-PEARL-2021-
01); 91033 (February 1, 2021), 86 FR 8455 (February 5, 2021) (SR-
EMERALD-2021-03); 91460 (April 2, 2021), 86 FR 18349 (April 8, 2021)
(SR-EMERALD-2021-11).
---------------------------------------------------------------------------

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,\57\ and Rule 19b-4(f)(2) \58\ 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.
---------------------------------------------------------------------------

    \57\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \58\ 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_ADDRESS>Please include
File Number SR-MIAX-2021-41 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-MIAX-2021-41. 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-MIAX-2021-41 and should be submitted on
or before October 25, 2021.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\59\
---------------------------------------------------------------------------

    \59\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-21491 Filed 10-1-21; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 81, Number 180 (Friday, September 16, 2016)]
[Rules and Regulations]
[Page 63701]
[FR Doc No: 2016-22225]

=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2016-0304; FRL-9952-47-Region 3]

Approval and Promulgation of Air Quality Implementation Plans;
Maryland; Control of Volatile Organic Compounds Emissions From
Fiberglass Boat Manufacturing Materials; Withdrawal of Direct Final
Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Withdrawal of direct final rule.

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

SUMMARY: Due to the receipt of a comment, the Environmental Protection
Agency (EPA) is withdrawing the direct final rule published on August
1, 2016, to approve the State of Maryland's adoption of the
requirements in EPA's control technique guidelines (CTG) for fiberglass
boat manufacturing materials.

DATES: The direct final rule published at 81 FR 50336 on August 1,
2016, is withdrawn effective September 16, 2016.

FOR FURTHER INFORMATION CONTACT: Gavin Huang,<PHONE_NUMBER>, or by
email at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: In the direct final rule published on August
1, 2016 (81 FR 50336), we stated that if we received comment by August
31, 2016, the rule would be withdrawn and not take effect. EPA received
a comment before the August 31, 2016 deadline. EPA will address the
comment received in a subsequent final action based upon the proposed
action also published on August 1, 2016 (81 FR 50427). EPA will not
institute a second comment period on this action.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Ozone, Volatile organic compounds.

    Dated: September 6, 2016.
 Shawn M. Garvin,
Regional Administrator, Region III.

0
Accordingly, the direct final rule which published in the Federal
Register on August 1, 2016, at 81 FR 50336 is withdrawn as of September
16, 2016.

[FR Doc. 2016-22225 Filed 9-15-16; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register Volume 81, Number 219 (Monday, November 14, 2016)]
[Notices]
[Pages 79502-79504]
[FR Doc No: 2016-27252]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2011-N-0144]

Voluntary Qualified Importer Program; Guidance for Industry;
Availability

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice of availability.

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

SUMMARY: The Food and Drug Administration (FDA or we) is announcing the
availability of a guidance for industry entitled ``FDA's Voluntary
Qualified Importer Program.'' The guidance describes the Voluntary
Qualified Importer Program (VQIP), which provides for expedited review
and importation of food offered for importation by importers who
voluntarily agree to participate in the program. The guidance describes
the eligibility criteria for, and benefits of, participation in VQIP.
The guidance also provides information on submitting an application for
VQIP participation, obtaining a facility certification for the foreign
supplier of a food imported under VQIP, the VQIP user fee, conditions
that might result in the revocation of VQIP eligibility, and criteria
for reinstatement of eligibility.

DATES: Submit either electronic or written comments on FDA guidances at
any time.

ADDRESSES: You may submit comments as follows:

Electronic Submissions

    Submit electronic comments in the following way:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments. Comments submitted
electronically, including attachments, to http://www.regulations.gov
will be posted to the docket unchanged. Because your comment will be
made public, you are solely responsible for ensuring that your comment
does not include any confidential information that you or a third party
may not wish to be posted, such as medical information, your or anyone
else's Social Security number, or confidential business information,
such as a manufacturing process. Please note that if you include your
name, contact information, or other information that identifies you in
the body of your comments, that information will be posted on http://www.regulations.gov.
     If you want to submit a comment with confidential
information that you do not wish to be made available to the public,
submit the comment as a written/paper submission and in the manner
detailed below (see ``Written/Paper Submissions'' and
``Instructions'').

Written/Paper Submissions

    Submit written/paper submissions as follows:
     Mail/Hand delivery/Courier (for written/paper
submissions): Division of Dockets Management (HFA-305), Food and Drug
Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
     For written/paper comments submitted to the Division of
Dockets Management, FDA will post your comment, as well as any
attachments, except for information submitted, marked and identified,
as confidential, if submitted as detailed in ``Instructions.''
    Instructions: All submissions received must include the Docket No.
FDA-2011-N-0144 for ``FDA's Voluntary Qualified Importer Program.''
Received comments will be placed in the docket and, except for those
submitted as ``Confidential Submissions,'' publicly viewable at http://www.regulations.gov or at the Division of Dockets

Management between 9 a.m. and 4 p.m., Monday through Friday.
     Confidential Submissions--To submit a comment with
confidential information that you do not wish to be made publicly
available, submit your comments only as a written/paper submission. You
should submit two copies total. One copy will include the information
you claim to be confidential with a heading or cover note that states
``THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.'' The Agency will
review this copy, including the claimed confidential information, in
its consideration of comments. The second copy, which will have the
claimed confidential information redacted/blacked out, will be
available for public viewing and posted on http://www.regulations.gov.
Submit both copies to the Division of Dockets Management. If you do not
wish your name and contact information to be made publicly available,
you can provide this information on the cover sheet and not in the body
of your comments and you must identify this information as
``confidential.'' Any information marked as ``confidential'' will not
be disclosed except in accordance with 21 CFR 10.20 and other
applicable disclosure law. For more information about FDA's posting of
comments to public dockets, see 80 FR 56469, September 18, 2015, or
access the information at: http://www.fda.gov/regulatoryinformation/dockets/default.htm.
    Docket: For access to the docket to read background documents or
the electronic and written/paper comments received, go to http://www.regulations.gov and insert the docket number, found in brackets in
the heading of this document, into the ``Search'' box and follow the
prompts and/or go to the Division of Dockets Management, 5630 Fishers
Lane, Rm. 1061, Rockville, MD 20852.
    Submit written requests for a single hard copy of the guidance to
the Office of Enforcement and Import Operations (ELEM-3108), Office of
Regulatory Affairs, Food and Drug Administration, 12420 Parklawn Dr.,
Element Bldg., Rockville, MD 20857. Send two self-addressed adhesive
labels to assist that office in processing your request. See the
SUPPLEMENTARY INFORMATION section for electronic access to the
guidance.

FOR FURTHER INFORMATION CONTACT: Regarding the guidance: Office of
Enforcement and Import Operations (ELEM-3108), Office of Regulatory
Affairs, Food and Drug Administration, 12420 Parklawn Dr., Element
Bldg., Rockville, MD 20857,<PHONE_NUMBER>.
    Regarding the information collection: FDA PRA Staff, Office of
Operations, Food and Drug Administration, Three White Flint North,
11601 Landsdown St., 10A-12M, North Bethesda, MD 20852,
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background

    Section 302 of the FDA Food Safety Modernization Act (FSMA) (Pub.
L. 111-353) amended the Federal Food, Drug, and Cosmetic Act (the FD&C
Act) by adding section 806, Voluntary Qualified Importer Program (21
U.S.C. 384b). Section 806(a)(1) of the FD&C Act directs FDA to
establish a voluntary program for the expedited review and importation
of food, and to establish a process for the issuance of a facility
certification to accompany food offered for importation by importers
participating in VQIP. Section 806(a)(2) of the FD&C Act directs FDA to
issue a guidance document related to participation in, revocation of
such participation in, reinstatement in, and compliance with VQIP.
    We are announcing the availability of a guidance for industry
entitled ``FDA's Voluntary Qualified Importer Program.'' We are issuing
this guidance consistent with our good guidance practices regulation
(21 CFR 10.115). The guidance represents the current thinking of FDA on
this topic. It does not establish any rights for any person and is not
binding on FDA or the public. You can use an alternative approach if it
satisfies the requirements of the applicable statutes and regulations.
    In the Federal Register of June 5, 2015 (80 FR 32136), we made
available a draft guidance for industry on VQIP for importers of human
or animal food and gave interested parties an opportunity to submit
comments by August 19, 2015, for us to consider before beginning work
on the final version of the guidance. We received numerous comments on
the draft guidance and have modified the final guidance where
appropriate. Changes to the guidance include:
     Clarifying that, during the VQIP fiscal year, a VQIP
importer may add additional food from a foreign supplier from which the
importer already imports food under VQIP;
     clarifying that VQIP applicants will not be required to
upload food labels for foods included in the VQIP application, but FDA
may request a copy of food labels for the foods included in the
application to determine if there are labeling violations relating to
the risk of the food during a VQIP inspection or audit examinations;
     providing examples of how to ensure that the Foreign
Supplier Verification Program (FSVP) or the Hazard Analysis and
Critical Control Point (HACCP) importer of the food (when it is not the
VQIP applicant) is in compliance with the applicable FSVP or HACCP
regulations; and
     revising the `3-year import history' eligibility criteria
to provide for use of shared importation history of previous or parent
companies.
    We also made editorial changes and changes to improve clarity. The
guidance announced in this notice finalizes the draft guidance dated
June 2015.
    VQIP begins on January 1, 2018, which is the first date FDA will
begin accepting applications to participate in VQIP for the fiscal year
2019 beginning October 1, 2018. We encourage food importers with robust
supplier verification programs to apply for participation in VQIP. We
anticipate that VQIP will allow FDA to focus its resources on food
shipments that pose a higher risk to public health and will facilitate
risk-based admissibility practices. We anticipate that we will approve
approximately 200 applications for the first year of the program. We
established this limit based on consideration of the demands on Agency
resources necessary to establish and implement VQIP. We will review
applications in the order that we receive them.

II. Paperwork Reduction Act of 1995

    This guidance contains information collection provisions that are
subject to review by the Office of Management and Budget (OMB) under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Under the
PRA, Federal Agencies must obtain approval from OMB for each collection
of information they conduct or sponsor. ``Collection of information''
is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3 and includes Agency
requests or requirements that members of the public submit reports,
keep records, or provide information to a third party. Section
3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal
Agencies to provide a 60-day notice in the Federal Register concerning
each proposed collection of information before submitting the
collection to OMB for approval. To comply with this requirement, in the
Federal Register of June 5, 2015, we gave interested persons 60 days to
comment on the information collection provisions in the draft guidance
(80 FR 32136 at 32138).
    Currently FDA is finalizing the VQIP application and will be
submitting the proposed collection for OMB review and clearance under
44 U.S.C. 3507. An

Agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a currently
valid OMB control number. FDA is issuing this final guidance subject to
OMB approval of the collection of information. Before the Agency begins
collecting information for the VQIP program, FDA will publish a notice
in the Federal Register announcing OMB's decision to approve, modify,
or disapprove the information collection provisions in the guidance.
    The guidance also refers to previously approved collections of
information found in FDA regulations. The collections of information
regarding food labeling have been approved under OMB control number
0910-0381; the collections of information regarding Low Acid Canned
Food have been approved under OMB control number 0910-0037; the
collections of information regarding Third-Party Certification Bodies
to Conduct Food Safety Audits and to Issue Certifications have been
approved under OMB control number 0910-0750; the collections of
information regarding Current Good Manufacturing Practice and Hazard
Analysis and Risk-Based Preventive Controls for Human Food have been
approved under OMB control number 0910-0751; the collections of
information regarding Current Good Manufacturing Practice and Hazard
Analysis and Risk-Based Preventive Controls for Food for Animals have
been approved under OMB control number 0910-0789; the collections of
information regarding the Foreign Supplier Verification Program have
been approved under OMB control number 0910-0752; the collections of
information regarding the Sanitary Transportation of Human and Animal
Food have been approved under OMB control number 0910-0773; and the
collections of information regarding Focused Mitigation Strategies to
Protect Food Against Intentional Adulteration have been approved under
OMB control number 0910-0812.

III. Electronic Access

    Persons with access to the Internet may obtain the guidance at
either http://www.fda.gov/RegulatoryInformation/Guidances or http://www.regulations.gov. Use the FDA Web site listed in the previous
sentence to find the most current version of the guidance.

IV. Other Issues for Consideration

    FSMA directs FDA to collect user fees to fund VQIP. Consistent with
section 743(b)(2)(B)(iii) of the FD&C Act, we set forth a proposed set
of guidelines in consideration of the burden of user fee amounts on
small businesses in the Federal Register of June 5, 2015 (80 FR 32136),
which also announced the draft guidance for industry on VQIP. We are
considering comments we received on the VQIP user fee. We will publish
the actual fee in a Federal Register notice in accordance with section
743(b)(1) of the FD&C Act prior to the fiscal year when we begin
program benefits.

    Dated: November 7, 2016.
Leslie Kux,
Associate Commissioner for Policy.
[FR Doc. 2016-27252 Filed 11-10-16; 8:45 am]
 BILLING CODE 4164-01-P