[Federal Register Volume 86, Number 161 (Tuesday, August 24, 2021)]
[Notices]
[Pages 47355-47359]
[FR Doc No: 2021-18122]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-92698; File No. SR-GEMX-2021-08]

Self-Regulatory Organizations; Nasdaq GEMX, LLC; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change to Amend GEMX's
Options Regulatory Fee

August 18, 2021.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on August 9, 2021, Nasdaq GEMX, LLC (``GEMX'' or ``Exchange'')
filed with the Securities and Exchange Commission (the ``Commission'')
the proposed rule change as described in Items I, II, and III below,
which Items have been prepared by the Exchange. The Commission is
publishing this notice to solicit comments on the proposed rule change
from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to amend GEMX's Pricing Schedule at Options
7, Section 5 related to the Options Regulatory Fee or ``ORF''.
    While the changes proposed herein are effective upon filing, the
Exchange has designated the amendments become operative on October 1,
2021.
    The text of the proposed rule change is available on the Exchange's
website at https://listingcenter.nasdaq.com/rulebook/gemx/rules, at the
principal office of the Exchange, 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
    Currently, GEMX assesses an ORF of $0.0018 per contract side as
specified in GEMX's Pricing Schedule at Options 7, Section 5. The
Exchange proposes to waive its ORF from October 1, 2021 to January 31,
2022, and then recommence the ORF on February 1, 2022.
    By way of background, the options industry has experienced
extremely high options trading volumes and volatility. This historical
anomaly of persistent increased options volumes has impacted GEMX's ORF
collection which, in turn, has caused the Exchange to continue to
revisit its financial forecast to reflect the sustained elevated
options volumes and volatility. As the Exchange continues to monitor
the amount of revenue collected from the ORF to ensure that our ORF
collection,

in combination with other regulatory fees and fines, does not exceed
regulatory costs, the Exchange has found it difficult to determine when
volumes will return to more normal levels. In order to avoid iterative
rule changes to amend its ORF, the Exchange believes it is prudent to
instead waive its ORF from October 1, 2021 to January 31, 2022, to
permit the Exchange to plan future forecasts without the need to
account for any ORF collection during that timeframe. This proposal
would ensure that revenue collected from the ORF, in combination with
other regulatory fees and fines, would not exceed the Exchange's total
regulatory costs. GEMX would recommence assessing its current ORF rate
of $0.0018 per contract side as of February 1, 2022. Furthermore, prior
to February 1, 2022, GEMX will examine its ORF rate to determine if the
$0.0018 per contract side ORF is justified given the current volumes in
2022 as well as the current Exchange regulatory expenses at that time.
GEMX would file a proposed rule change to amend its per contract ORF if
changes are necessary to ensure an equitable allocation of reasonable
ORF, if e.g., the Exchange believes that the volumes GEMX experiences
in the second half of 2021 are likely to persist throughout 2022. Of
note, GEMX proposes to continue to operate with the ORF fee waived in
January 2022 to allow its members and other broker dealers time to
align their systems for February 1, 2022, allowing for time after the
holiday period which traditionally have year-end code freezes in place.
Collection of ORF
    Currently, GEMX assesses its ORF for each customer option
transaction that is either: (1) Executed by a member on GEMX; or (2)
cleared by an GEMX member at The Options Clearing Corporation (``OCC'')
in the customer range,\3\ even if the transaction was executed by a
non-member of GEMX, regardless of the exchange on which the transaction
occurs.\4\
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    \3\ Participants must record the appropriate account origin code
on all orders at the time of entry of the order. The Exchange
represents that it has surveillances in place to verify that members
mark orders with the correct account origin code.
    \4\ The Exchange uses reports from OCC when assessing and
collecting the ORF.
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ORF Revenue and Monitoring of ORF
    The Exchange monitors the amount of revenue collected from the ORF
to ensure that it, in combination with other regulatory fees and fines,
does not exceed regulatory costs. In determining whether an expense is
considered a regulatory cost, the Exchange reviews all costs and makes
determinations if there is a nexus between the expense and a regulatory
function. The Exchange notes that fines collected by the Exchange in
connection with a disciplinary matter offset ORF.
    Revenue generated from ORF, when combined with all of the
Exchange's other regulatory fees and fines, is designed to recover a
material portion of the regulatory costs to the Exchange of the
supervision and regulation of member customer options business
including performing routine surveillances, investigations,
examinations, financial monitoring, and policy, rulemaking,
interpretive, and enforcement activities. Regulatory costs include
direct regulatory expenses and certain indirect expenses in support of
the regulatory function. The direct expenses include in-house and
third-party service provider costs to support the day-to-day regulatory
work such as surveillances, investigations and examinations. The
indirect expenses include support from such areas as Office of the
General Counsel, technology, and internal audit. Indirect expenses are
estimated to be approximately 42% of the total regulatory costs for
2021. Thus, direct expenses are estimated to be approximately 58% of
total regulatory costs for 2021.
    The ORF is designed to recover a material portion of the costs to
the Exchange of the supervision and regulation of its members,
including performing routine surveillances, investigations,
examinations, financial monitoring, and policy, rulemaking,
interpretive, and enforcement activities.
Proposal
    Based on the Exchange's most recent review, the Exchange proposes
to waive ORF from October 1, 2021 to January 31, 2022, to help ensure
that revenue collected from the ORF, in combination with other
regulatory fees and fines, does not exceed the Exchange's total
regulatory costs. GEMX would recommence assessing its current ORF rate
of $0.0018 per contract side as of February 1, 2022. The Exchange
issued an Options Trader Alert on August 9, 2021 indicating the
proposed rate change for October 1, 2021.\5\
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    \5\ See Options Trader Alert 2021-45.
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    The proposed waiver is based on recent options volume which has
remained at abnormally and unexpectedly high levels. Options volume in
2021 remains significantly high when that volume is compared to 2019
and 2020 options volume. For example, total options contract volume in
November 2020 was 71% higher than the total options contract volume in
November 2019.\6\ Below is industry data from OCC \7\ which illustrates
the significant increase in volume during the fourth quarter of 2020.
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    \6\ See data from OCC at: https://www.businesswire.com/news/home/20201202005584/en/OCC-November-2020-Total-Volume-Up-71-Percent-From-a-Year-Ago.
    \7\ See data from OCC at: https://www.theocc.com/Market-Data/Market-Data-Reports/Volume-and-Open-Interest/Volume-by-Account-Type.

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               Volume                    October 2020      November 2020      December 2020         Q4 2020
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Total...............................        633,365,184        673,660,858        753,568,354      2,060,594,396
Customer............................        587,707,301        630,297,252        708,037,956      1,926,042,509
Total ADV...........................      28,789,326.55      33,683,042.90      34,253,107.00      32,196,787.44
Customer ADV........................      26,713,968.23      31,514,862.60      32,183,543.45      30,094,414.20
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    Below is industry data from OCC \8\ which illustrates the
significant increase in volume from January 2021 through March 2021.
The options volume in the first quarter of 2021 was higher than the
fourth quarter of 2020. Also, April and May 2021 volumes remain
significantly high as compared to 2020 options volume in general.
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    \8\ Id.

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                          Volume                              January 2021      February 2021        March 2021         April 2021          May 2021
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Total....................................................        838,339,790        823,412,827        898,653,388        711,388,828        718,368,993
Customer.................................................        784,399,878        782,113,450        837,247,059        667,208,963        659,913,862
Total ADV................................................      44,123,146.84      43,337,517.20      39,071,886.40      33,875,658.50      35,918,449.70

Customer ADV.............................................      41,284,204.11      41,163,865.79      36,402,046.04      31,771,855.38      32,995,693.10
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    As a result of the historical anomaly created by these high options
volumes, GEMX has no assurance that the Exchange's final costs for 2021
will not differ materially from these expectations and prior practice,
nor can the Exchange predict with certainty whether options volume will
remain at the current level going forward. The Exchange notes however,
that when combined with regulatory fees and fines, the revenue being
generated utilizing the current ORF rate may result in revenue in
excess of the Exchange's estimated regulatory costs for the year.
Particularly, as noted above, the options market has seen a substantial
increase in volume in 2021 as compared to 2020, due in large part to
the continued extreme volatility in the marketplace as a result of the
COVID-19 pandemic. This unprecedented spike in volatility resulted in
significantly higher volume than was originally projected by the
Exchange (thereby resulting in substantially higher ORF revenue than
projected). The Exchange therefore proposes to waive ORF from October
1, 2021 to January 31, 2022 to ensure it does not exceed its regulatory
costs for 2021. Particularly, the Exchange believes that waiving ORF
from October 1, 2021 to January 31, 2022 and considering all of the
Exchange's other regulatory fees and fines would allow the Exchange to
continue covering a material portion of its regulatory costs, while
lessening the potential for generating excess revenue that may
otherwise occur using the current rate.\9\
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    \9\ The Exchange notes that its regulatory responsibilities with
respect to member compliance with options sales practice rules have
largely been allocated to FINRA under a 17d-2 agreement. The ORF is
not designed to cover the cost of that options sales practice
regulation.
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    GEMX would recommence assessing its current ORF rate of $0.0018 per
contract side as of February 1, 2022. Until October 1, 2021, the
Exchange will continue to monitor the amount of revenue collected from
the ORF to ensure that it, in combination with its other regulatory
fees and fines, does not exceed regulatory costs. The Exchange would
also continue monitoring the amount of revenue collected from the ORF
when it recommences assessing ORF on February 1, 2022. If the Exchange
determines regulatory revenues exceed regulatory costs, the Exchange
will adjust the ORF by submitting a fee change filing to the Commission
and notifying \10\ its members via an Options Trader Alert.\11\
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    \10\ The Exchange will provide members with such notice at least
30 calendar days prior to the effective date of the change.
    \11\ The Exchange notes that in connection with this proposal,
it provided the Commission confidential details regarding the
Exchange's projected regulatory revenue, including projected revenue
from ORF, along with a projected regulatory expenses.
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2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with
the Securities Exchange Act of 1934 (the ``Act'') and the rules and
regulations thereunder applicable to the Exchange and, in particular,
the requirements of Section 6(b) of the Act.\12\ Specifically, the
Exchange believes the proposed rule change is consistent with Section
6(b)(4) of the Act,\13\ which provides that Exchange rules may provide
for the equitable allocation of reasonable dues, fees, and other
charges among its members, and other persons using its facilities.
Additionally, the Exchange believes the proposed rule change is
consistent with the Section 6(b)(5) \14\ requirement that the rules of
an exchange not be designed to permit unfair discrimination between
customers, issuers, brokers, or dealers.
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    \12\ 15 U.S.C. 78f(b).
    \13\ 15 U.S.C. 78f(b)(4).
    \14\ 15 U.S.C. 78f(b)(5).
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    The Exchange believes the proposed fee waiver is reasonable because
customer transactions will be subject to no ORF from October 1, 2021 to
January 31, 2022. Moreover, the proposed waiver is necessary, so the
Exchange does not collect revenue in excess of its anticipated
regulatory costs, in combination with other regulatory fees and fines,
which is consistent with the Exchange's practices.
    The Exchange designed the ORF to generate revenues that would be
less than the amount of the Exchange's regulatory costs to ensure that
it, in combination with its other regulatory fees and fines, does not
exceed regulatory costs, which is consistent with the view of the
Commission that regulatory fees be used for regulatory purposes and not
to support the Exchange's business operations. As discussed above,
however, after review of its regulatory costs and regulatory revenues,
which includes revenues from ORF and other regulatory fees and fines,
the Exchange determined that absent a reduction in ORF, it may be
collecting revenue in excess of its regulatory costs. Indeed, the
Exchange notes that when considering the recent options volume, which
included an increase in customer options transactions, it estimates the
ORF may generate revenues that may cover more than the approximated
Exchange's projected regulatory costs. As such, the Exchange believes
it is reasonable and appropriate to waive ORF from October 1, 2021 to
January 31, 2022 and recommence assessing ORF on February 1, 2022.
    The Exchange also believes the proposed fee change is equitable and
not unfairly discriminatory as no member would be assessed an ORF from
October 1, 2021 to January 31, 2022. While the Exchange has assessed
and collected ORF from January through September 2021, but will not
collect ORF, with this proposal, from October 2021 through January
2022, the Exchange does not believe that it is unfairly discriminatory
to not assess the ORF from October 2021 through January 2022 because
the ORF is designed and intended to recover a portion of the Exchange's
regulatory costs without collecting in excess of those costs.
Unexpectedly high and sustained customer volume has resulted in higher
revenues from the ORF that, if not suspended, will likely result in
over-collection of ORF, which would be inconsistent with the Exchange's
prior representations and undertaking to not collect ORF in excess of
regulatory expenses. The Exchange did not decrease the amount of the
ORF earlier in 2021 because it did not expect, based on its prior
experience, that customer volume would remain abnormally high. Also, it
is equitable and not unfairly discriminatory to recommence the
assessment of the ORF on February 1, 2022 because assessing the ORF to
each member for options transactions cleared by OCC in the customer
range where the execution occurs on another exchange and is cleared by
a GEMX member is an equitable allocation of reasonable dues, fees, and
other charges among its members and issuers and other persons using its
facilities.\15\
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    \15\ If the OCC clearing member is a GEMX member, ORF is
assessed and collected on all cleared customer contracts (after
adjustment for CMTA); and (2) if the OCC clearing member is not a
GEMX member, ORF is collected only on the cleared customer contracts
executed at GEMX, taking into account any CMTA instructions which
may result in collecting the ORF from a non-member.

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    The Exchange believes recommencing the ORF on February 1, 2022 at
the same rate, unless options volumes or the Exchange's regulatory
expense at that time warrant a proposed rule change, continues to
ensure fairness by assessing higher fees to those members that require
more Exchange regulatory services based on the amount of customer
options business they conduct. As noted in prior ORF rule changes which
set the current ORF rate of $0.0018 per contract side, regulating
customer trading activity is much more labor intensive and requires
greater expenditure of human and technical resources than regulating
non-customer trading activity, which tends to be more automated and
less labor-intensive. For example, there are costs associated with main
office and branch office examinations (e.g., staff expenses), as well
as investigations into customer complaints and the terminations of
registered persons.\16\
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    \16\ See Securities Exchange Act Release No. 85140 (February 14,
2019), 84 FR 5511 (February 21, 2019) (SR-GEMX-2019-01) (Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change To
Amend the Options Regulatory Fee). The Exchange also noted in this
rule change that, ``As a result, the costs associated with
administering the customer component of the Exchange's overall
regulatory program are materially higher than the costs associated
with administering the non-customer component (e.g., member
proprietary transactions) of its regulatory program.'' Further, the
Exchange notes that it has broad regulatory responsibilities with
respect to activities of its members, irrespective of where their
transactions take place. Many of the Exchange's surveillance
programs for customer trading activity may require the Exchange to
look at activity across all markets, such as reviews related to
position limit violations and manipulation. Indeed, the Exchange
cannot effectively review for such conduct without looking at and
evaluating activity regardless of where it transpires. In addition
to its own surveillance programs, the Exchange also works with other
SROs and exchanges on intermarket surveillance related issues.
Through its participation in the Intermarket Surveillance Group
(``ISG'') the Exchange shares information and coordinates inquiries
and investigations with other exchanges designed to address
potential intermarket manipulation and trading abuses. Accordingly,
there is a strong nexus between the ORF and the Exchange's
regulatory activities with respect to customer trading activity of
its members.''
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
impose any burden on competition not necessary or appropriate in
furtherance of the purposes of the Act. The Exchange does not believe
that this proposal creates an unnecessary or inappropriate intra-market
or inter-market burden on competition for several reasons. First, while
GEMX's ORF has been not [sic] been amended since its inception in
2013,\17\ other exchanges have amended their ORF. For example, ISE
amended its ORF rate on April 1, 2021, from $0.0020 to $0.0018 per
contract side.\18\ With respect to that filing, members who either
executed a transaction on ISE or cleared a transaction at OCC in the
customer range would have been assessed a higher ORF for a transaction
executed on ISE on March 31, 2021 ($0.0020 per contract side) as
compared to April 1, 2021 ($0.0018 per contract side). Second, GEMX's
regulatory costs have varied over time. For example, if GEMX received
payment of a fine from a disciplinary action, that fine would offset
regulatory costs and would cause GEMX to require less regulatory
revenue for a particular period. The changing regulatory costs would
impact the ORF assessed by GEMX to members. Third, options markets
assess ORF at different rates. For instance, today, Nasdaq MRX, LLC
(``MRX'') assesses a lower ORF of $0.0004 per contract side.\19\ MRX
has assessed this rate since February 1, 2019.\20\ Depending on where a
customer order is executed, a member could be assessed a much different
ORF. For example, in the case where a customer order is sent to GEMX
and routed to MRX, and a non-member cleared that transaction, the GEMX
ORF of $0.0018 would not be assessed to the member who executed the
transaction or cleared the transaction, rather the MRX rate of $0.0004
per contract side would be assessed. In that same scenario presuming a
non-member cleared the transaction, if the customer order could have
executed on GEMX instead of routing away the member would have been
assessed the GEMX ORF of $0.0018 per contract side. The customer, in
that instance, would have no knowledge of where the order could be
executed, as the liquidity profile of each exchange may differ at that
exact moment. Therefore, members could be assessed a different ORF on
the same day on the same transaction based on routing decisions, and in
those cases the member would continue to benefit from the regulatory
program available on each market and discover where the liquidity is
available, irrespective of any ORF rate differentials across markets.
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    \17\ The Exchange adopted the ORF in 2013. See Securities
Exchange Act Release No. 70200 (August 14, 2013), 78 FR 51242
(August 20, 2013) (SR-Topaz-2013-01). GEMX amended its ORF in 2017,
but no rate change occurred at that time. See Securities Exchange
Act Release No. 81342 (August 8, 2017), 82 FR 37971 (August 14,
2017) (SR-GEMX-2017-31).
    \18\ See Securities Exchange Act Release No. 91420 (March 26,
2021), 86 FR 17223 (April 1, 2021) (SR-ISE-2021-04) (Notice of
Filing and Immediate Effectiveness of Proposed Rule Change To Amend
ISE's Pricing Schedule at Options 7, Section 9, Part C To Reduce the
Options Regulatory Fee).
    \19\ See Securities Exchange Act Release Nos. 85127 (February
13, 2019), 84 FR 5173 (February 20, 2019) (SR-MRX-2019-03).
    \20\ Of note, prior to February 1, 2019, MRX assessed no ORF
thereby creating a calendar year where members were assessed no ORF
for a period similar to what is proposed.
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    The Exchange believes recommencing the ORF on February 1, 2022 at
the same rate, unless options volumes or the Exchange's regulatory
expense at that time warrant a proposed rule change, does not create an
undue burden on competition because the ORF applies to all customer
activity, thereby raising regulatory revenue to offset regulatory
expenses. It also supplements the regulatory revenue derived from non-
customer activity. Recommencing the assessment of the current ORF does
not create an unnecessary or inappropriate inter-market burden on
competition because it is a regulatory fee that supports regulation in
furtherance of the purposes of the Act. The Exchange is obligated to
ensure that the amount of regulatory revenue collected from the ORF, in
combination with its other regulatory fees and fines, does not exceed
regulatory costs.

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

    No written comments were either solicited or received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A) of the Act \21\ and paragraph (f) of Rule 19b-4 \22\
thereunder. At any time within 60 days of the filing of the proposed
rule change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission will institute proceedings to
determine whether the proposed rule change should be approved or
disapproved.
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    \21\ 15 U.S.C. 78s(b)(3)(A).
    \22\ 17 CFR 240.19b-4(f).
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IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act.

Comments may be submitted by any of the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File No. SR-GEMX-2021-08 on the subject line.

Paper Comments

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

All submissions should refer to File No. SR-GEMX-2021-08. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549, on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File No. SR-GEMX-2021-08, and should be submitted on or
before September 14, 2021.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\23\
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    \23\ 17 CFR 200.30-3(a)(12).
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Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2021-18122 Filed 8-23-21; 8:45 am]
BILLING CODE 8011-01-P