[Federal Register Volume 87, Number 200 (Tuesday, October 18, 2022)]
[Notices]
[Pages 63119-63131]
[FR Doc No: 2022-22557]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-96046; File No. SR-MRX-2022-20]

Self-Regulatory Organizations; Nasdaq MRX, LLC; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change To Amend MRX's
Pricing Schedule at Options 7, Section 6

October 12, 2022.
    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 October 11, 2022, Nasdaq MRX, LLC (``MRX'' or ``Exchange'') filed
with the Securities and Exchange Commission (``SEC'' or ``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 MRX's Pricing Schedule at Options 7,
section 6.
    The text of the proposed rule change is available on the Exchange's
website at https://listingcenter.nasdaq.com/rulebook/mrx/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
    MRX proposes to amend its Pricing Schedule at Options 7, section 6,
Ports and Other Services, to assess port fees, which were not assessed
until this year. Prior to this year, MRX did not assess its Members any
port fees. MRX launched its options market in 2016 \3\ And Members did
not pay any port fees until 2022.
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    \3\ The Exchange initially filed the proposed pricing changes on
May 2, 2022 (SR-MRX-2022-04) instituting fees for membership, ports
and market data. On June 29, 2022, the Exchange withdrew that
filing, and submitted separate filings for membership, ports and
market data. SR-MRX-2022-06 replaced the port fees set forth in SR-
MRX-2022-04. SR-MRX-2022-06 was withdrawn on July 1, 2022 and
replaced with SR-MRX-2022-09. On August 25, 2022. SR-MRX-2022-09
which was withdrawn and replaced with SR-MRX-2022-12. The instant
filing replaces SR-MRX-2022-12 which was withdrawn on October 11,
2022.
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    The proposed changes are designed to update fees for MRX's services
to reflect their current value--rather than their value when it was
established six years ago--based on MRX's ability to deliver

value to its customers through technology, liquidity and functionality.
Newly-opened exchanges often charge no fees for certain services, such
as ports, in order to attract order flow to an exchange, and later
amend their fees to reflect the true value of those services.\4\
Allowing newly-opened exchanges time to build and sustain market share
before charging non-transactional fees encourages market entry and
promotes competition. The proposed port fees within Options 7, section
6, Ports and Other Services, are described below.
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    \4\ See, e.g., Securities Exchange Act Release No 90076 (October
2, 2020), 85 FR 63620 (October 8, 2020) (Notice of Filing and
Immediate Effectiveness of a Proposed Rule Change To Adopt the
Initial Fee Schedule and Other Fees for MEMX LLC).
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    This proposal reflects MRX's assessment that it has gained
sufficient market share to compete effectively against the other 15
options exchanges without waiving fees for ports. These types of fees
are assessed by options exchanges that compete with MRX in the sale of
exchange services--indeed, as of the date of the initial filing of
these port fees, MRX was the only options exchange (out of the 16
current options exchanges) not assessing port fees. New exchanges
commonly waive connectivity fees to attract market participants,
facilitating their entry into the market and, once there is sufficient
depth and breadth of liquidity, ``graduate'' to compete against
established exchanges and charge fees that reflect the value of their
services.\5\ If MRX is incorrect in this assessment, that error will be
reflected in MRX's ability to compete with other options exchanges.\6\
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    \5\ For example, MIAX Emerald commenced operations as a national
securities exchange registered on March 1, 2019. See Securities
Exchange Act Release No. 84891 (December 20, 2018), 83 FR 67421
(December 28, 2018) (File No. 10-233) (order approving application
of MIAX Emerald, LLC for registration as a national securities
exchange). MIAX Emerald filed to adopt its transaction fees and
certain of its non-transaction fees in its filing SR-EMERALD-2019-
15. See Securities Exchange Act Release No. 85393 (March 21, 2019),
84 FR 11599 (March 27, 2019) (SR-EMERALD-2019-15) (Notice of Filing
and Immediate Effectiveness of a Proposed Rule Change To Establish
the MIAX Emerald Fee Schedule). MIAX Emerald waived its one-time
application fee and monthly Trading Permit Fees assessable to EEMs
and Market Makers among other fees within SR-EMERALD-2019-15.
    \6\ Nasdaq announced that, beginning in 2022, it plans to
migrate its North American markets to Amazon Web Services in a
phased approach, starting with MRX. The MRX migration will take
place in November 2022. The proposed fee changes are entirely
unrelated to this effort.
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    The Exchange proposes to amend fees for the following ports within
Options 7, section 6: (1) FIX,\7\ (2) SQF; \8\ (3) SQF Purge; \9\ (4)
OTTO; \10\ (5) CTI; \11\ (6) FIX DROP; \12\ and Disaster Recovery
Ports.\13\ Currently, no fees are being assessed for these ports.
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    \7\ ``Financial Information eXchange'' or ``FIX'' is an
interface that allows Members and their Sponsored Customers to
connect, send, and receive messages related to orders and auction
orders to the Exchange. Features include the following: (1)
execution messages; (2) order messages; (3) risk protection triggers
and cancel notifications; and (4) post trade allocation messages.
See Supplementary Material .03(a) to Options 3, section 7.
    \8\ ``Specialized Quote Feed'' or ``SQF'' is an interface that
allows Market Makers to connect, send, and receive messages related
to quotes, Immediate-or-Cancel Orders, and auction responses to the
Exchange. Features include the following: (1) options symbol
directory messages (e.g., underlying and complex instruments); (2)
system event messages (e.g., start of trading hours messages and
start of opening); (3) trading action messages (e.g., halts and
resumes); (4) execution messages; (5) quote messages; (6) Immediate-
or-Cancel Order messages; (7) risk protection triggers and purge
notifications; (8) opening imbalance messages; (9) auction
notifications; and (10) auction responses. The SQF Purge Interface
only receives and notifies of purge requests from the Market Maker.
Market Makers may only enter interest into SQF in their assigned
options series. See Supplementary Material .03(c) to Options 3,
section 7.
    \9\ SQF Purge is a specific port for the SQF interface that only
receives and notifies of purge requests from the Market Maker.
Dedicated SQF Purge Ports enable Market Makers to seamlessly manage
their ability to remove their quotes in a swift manner.
    \10\ ``Ouch to Trade Options'' or ``OTTO'' is an interface that
allows Members and their Sponsored Customers to connect, send, and
receive messages related to orders, auction orders, and auction
responses to the Exchange. Features include the following: (1)
options symbol directory messages (e.g., underlying and complex
instruments); (2) system event messages (e.g., start of trading
hours messages and start of opening); (3) trading action messages
(e.g., halts and resumes); (4) execution messages; (5) order
messages; (6) risk protection triggers and cancel notifications; (7)
auction notifications; (8) auction responses; and (9) post trade
allocation messages. See Supplementary Material .03(b) to Options 3,
section 7.
    \11\ Clearing Trade Interface (``CTI'') is a real-time cleared
trade update message that is sent to a Member after an execution has
occurred and contains trade details specific to that Member. The
information includes, among other things, the following: (i) The
Clearing Member Trade Agreement (``CMTA'') or The Options Clearing
Corporation (``OCC'') number; (ii) badge or mnemonic; (iii) account
number; (iv) information which identifies the transaction type
(e.g., auction type) for billing purposes; and (v) market
participant capacity. See Options 3, section 23(b)(1).
    \12\ FIX DROP is a real-time order and execution update message
that is sent to a Member after an order been received/modified or an
execution has occurred and contains trade details specific to that
Member. The information includes, among other things, the following:
(i) executions; (ii) cancellations; (iii) modifications to an
existing order; and (iv) busts or post-trade corrections. See
Options 3, section 23(b)(3).
    \13\ Disaster Recovery ports provide connectivity to the
Exchange's disaster recovery data center, to be utilized in the
event the Exchange should failover during a trading day.
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    The Exchange proposes to assess no fee for the first FIX Port
obtained by an Electronic Access Member \14\ or the first SQF Port
obtained by a Market Maker.\15\ The Exchange proposes to assess a FIX
Port Fee of $650 per port, per month, per account number \16\ for each
subsequent port beyond the first port. The Exchange proposes to assess
an SQF Port Fee of $1,250 per port, per month for each subsequent port
beyond the first port.\17\ The Exchange proposes to assess an SQF Purge
Port Fee of $1,250 per port, per month. The Exchange proposes to assess
an OTTO Port Fee of $650 per port, per month, per account number. The
Exchange proposes to assess a CTI Port Fee and a FIX Drop Port Fee of
$650 per port, per month.
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    \14\ The first FIX Port would be provided to each Electronic
Access Member. The term ``Electronic Access Member'' or ``EAM''
means a Member that is approved to exercise trading privileges
associated with EAM Rights. See General 1, section 1(a)(6). Also,
the first SQF Port would be provided to each Market Maker. The term
``Market Makers'' refers to ``Competitive Market Makers'' and
``Primary Market Makers'' collectively. See Options 1, section
1(a)(21). The term ``Competitive Market Maker'' means a Member that
is approved to exercise trading privileges associated with CMM
Rights. See Options 1, section 1(a)(12). The term ``Primary Market
Maker'' means a Member that is approved to exercise trading
privileges associated with PMM Rights. See Options 1, section
1(a)(35).
    \15\ The first SQF Port would be provided to each Market Maker.
The term ``Market Makers'' refers to ``Competitive Market Makers''
and ``Primary Market Makers'' collectively. See Options 1, section
1(a)(21). The term ``Competitive Market Maker'' means a Member that
is approved to exercise trading privileges associated with CMM
Rights. See Options 1, section 1(a)(12). The term ``Primary Market
Maker'' means a Member that is approved to exercise trading
privileges associated with PMM Rights. See Options 1, section
1(a)(35).
    \16\ An ``account number'' shall mean a number assigned to a
Member. Members may have more than one account number. See Options
1, section 1(a)(1). Account numbers are free on MRX.
    \17\ SQF's Port Fees are assessed a higher dollar fee as
compared to FIX and OTTO ports ($1,250 vs. $650) because the
Exchange has to maintain options assignments within SQF and manage
quoting traffic. Market Makers may utilize SQF Ports in their
assigned options series. Market Maker badges are assigned to
specific SQF ports to manage the option series in which a Market
Maker may quote. Additionally, because of quoting obligations
provided for within Options 2, section 5, Market Makers are required
to provide liquidity in their assigned options series which
generates quote traffic. The Exchange notes because of the higher
fee, SQF ports are billed per port, per month while FIX and OTTO
ports are billed per port, per month, per account number. Members
may have more than one account number.
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    The Exchange proposes to assess no fee for the first FIX Disaster
Recovery Port obtained by an Electronic Access Member \18\ or the first
SQF Disaster

Recovery Port obtained by a Market Maker.\19\ The Exchange proposes to
assess each additional FIX Disaster Recovery Port and each additional
SQF Disaster Recovery Port a fee of $50 per port, per month, per
account number. Additionally, the Exchange proposes to assess a
Disaster Recovery Fee for SQF Purge and OTTO Ports of $50 per port, per
month, per account number. Finally, the Exchange proposes to assess a
Disaster Recovery Fee for CTI Ports and FIX DROP Ports of $50 per port,
per month.
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    \18\ The first FIX Port would be provided to each Electronic
Access Member. The term ``Electronic Access Member'' or ``EAM''
means a Member that is approved to exercise trading privileges
associated with EAM Rights. See General 1, section 1(a)(6). Also,
the first SQF Port would be provided to each Market Maker. The term
``Market Makers'' refers to ``Competitive Market Makers'' and
``Primary Market Makers'' collectively. See Options 1, section
1(a)(21). The term ``Competitive Market Maker'' means a Member that
is approved to exercise trading privileges associated with CMM
Rights. See Options 1, section 1(a)(12). The term ``Primary Market
Maker'' means a Member that is approved to exercise trading
privileges associated with PMM Rights. See Options 1, section
1(a)(35).
    \19\ The first SQF Port would be provided to each Market Maker.
The term ``Market Makers'' refers to ``Competitive Market Makers''
and ``Primary Market Makers'' collectively. See Options 1, section
1(a)(21). The term ``Competitive Market Maker'' means a Member that
is approved to exercise trading privileges associated with CMM
Rights. See Options 1, section 1(a)(12). The term ``Primary Market
Maker'' means a Member that is approved to exercise trading
privileges associated with PMM Rights. See Options 1, section
1(a)(35).
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    The OTTO Port, CTI Port, FIX Port, FIX Drop Port and all Disaster
Recovery Ports \20\ are available to all Electronic Access Members, and
will be subject to a monthly cap of $7,500.
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    \20\ This includes FIX, SQF, SQF Purge, OTTO, CTI and FIX Drop
Disaster Recovery Ports.
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    The SQF Port and the SQF Purge Port are available to all Market
Makers, and will be subject to a monthly cap of $17,500.\21\
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    \21\ Only Market Makers may quote on MRX. The Exchange is
proposing non-substantive technical amendments to add commas within
the ``Production'' column of the proposed rule text to separate
terms.
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    The Exchange is not amending the TradeInfo MRX Interface \22\ or
the Nasdaq MRX Depth of Market, Nasdaq MRX Order Feed, Nasdaq MRX Top
Quote Feed, Nasdaq MRX Trades Feed, or Nasdaq MRX Spread Feed Ports;
all of these aforementioned ports will continue to be assessed no fees.
Additionally, as is the case today, the Disaster Recovery Ports for
TradeInfo and the Nasdaq MRX Depth of Market, Nasdaq MRX Order Feed,
Nasdaq MRX Top Quote Feed, Nasdaq MRX Trades Feed and Nasdaq MRX Spread
Feed Ports will not be assessed a fee.
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    \22\ TradeInfo is a user interface that permits a Member to: (i)
search all orders submitted in a particular security or all orders
of a particular type, regardless of their status (open, canceled,
executed, etc.); (ii) view orders and executions; and (iii) download
orders and executions for recordkeeping purposes. TradeInfo users
may also cancel open orders at the order, port or firm mnemonic
level through TradeInfo. See Options 3, section 23(b)(2).
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Order and Quote Entry Protocols

    Only one order protocol is required for an MRX Member to submit
orders into MRX. The Exchange will provide each Electronic Access
Member the first FIX Port at no cost to submit orders into MRX. Only
one account number is necessary to transact an options business on MRX
and account numbers are available to Members at no cost. Only one quote
protocol is required for an MRX Market Maker to submit quotes into MRX.
The Exchange will provide each Market Maker the first SQF Port at no
cost to submit quotes into MRX. A quoting protocol, such as SQF, is
only required to the extent an MRX Member has been appointed as a
Market Maker in an options series pursuant to Options 2, section 1.
    Only MRX Members may utilize ports on MRX. Any market participant
that sends orders to a Member would not need to utilize a port. The
Member can send all orders, proprietary and agency, through one port to
MRX. Members may elect to obtain multiple account numbers to organize
their business, however only one account number and one port for orders
and one port for quotes is necessary for a Member to trade on MRX.
    MRX also offers an OTTO protocol. Unlike FIX, which offers routing
capability, OTTO does not permit routing. Depending on a Member's
business model, Members may elect to purchase an OTTO Port in addition
to the first FIX Port offered at no cost. Members may prefer one
protocol as compared to another protocol, for example, the ability to
route may cause a Member to utilize FIX and a Member that desires to
execute an order locally may utilize OTTO. Also, the OTTO Port offers
lower latency as compared to the FIX Port, which may be attractive to
Members depending on their trading behavior. MRX Members utilizing the
first FIX Port offered at no cost do not need to purchase an OTTO Port.
However, Members may elect to utilize both order entry protocols,
depending on how they organize their business. Because the Exchange is
providing the first FIX Port at no cost, the use of an OTTO Port is
optional. OTTO provides MRX Members with an additional choice as to the
type of protocol that they may use to submit orders to the Exchange.
Today, Nasdaq Phlx LLC (``Phlx'') and Nasdaq BX, Inc. (``BX'') offer
only a FIX Port to submit orders on those options markets.\23\
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    \23\ See Phlx and BX Options 3, section 7 for a list of
protocols.
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    Further, while only one protocol is necessary to submit orders into
MRX, Members may choose to purchase a greater number of order entry
ports, depending on that Member's business model.\24\ To the extent
that Electronic Access Members chose to utilize more than one FIX Port,
the Electronic Access Member would be assessed $650 per port, per
month, per account number for each subsequent optional port beyond the
first port. To the extent that Market Makers chose to utilize more than
one SQF Port, the Market Maker would be assessed $1,250 per port, per
month for each subsequent optional port beyond the first port.
Additionally, to the extent a Member expended more than $7,500 for FIX
Ports or more than $17,500 for SQF Ports, the Exchange would not charge
an MRX Member for additional FIX or SQF Ports, respectively, beyond the
cap.
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    \24\ For example, a Member may desire to utilize multiple FIX or
OTTO Ports for accounting purposes, to measure performance, for
regulatory reasons or other determinations that are specific to that
Member.
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Other Protocols

    The Exchange's proposal to offer an SQF Purge Port for $1,250 per
port, per month is optional. The SQF Purge Port is designed to assist
Market Makers in the management of, and risk control over, their
quotes. Market Makers may utilize a purge port to reduce uncertainty
and to manage risk by purging all quotes in their assigned options
series. Of note, Market Makers may only enter interest into SQF in
their assigned options series. Additionally, the SQF Purge Port may be
utilized by a Market Maker in the event that the Member has a system
issue and determines to purge its quotes from the order book. The SQF
Purge Port is optional as Market Makers have various ways of purging
their quotes from the order book. First of all, a Market Maker may
cancel quotes through SQF in their assigned option series.\25\ Second,
a Member may cancel any bids or offers in any series of options by
requesting MRX Market Operations staff to effect such cancellation as
per the instructions of the Member.\26\ Third, in the event of a loss
of communication with the Exchange, MRX offers the ability to cancel
all of a Member's open quotes via a cancel-on-disconnect control.\27\
Fourth, MRX offers Market Makers the ability, with respect to quotes,
to establish pre-determined levels of risk exposure which would be
utilized to automatically remove quotes in all

series of an options class.\28\ Accordingly, the Exchange believes that
the SQF Purge Port provides an efficient option to other available
services which allow a Market Maker to cancel quotes.
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    \25\ SQF Purge Ports, similar to SQF Ports, allow Market Makers
to mass cancel quotes.
    \26\ See Options 3, section 19, Mass Cancellation of Trading
Interest.
    \27\ See MRX Options 3, section 18, Detection of Loss. This risk
protection is free.
    \28\ See MRX Options 3, section 15(a)(3)(B). Thresholds may be
set by Members based on percentage, volume, delta or vega. This risk
protection is free.
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    CTI Ports and FIX DROP Ports are optional as Members have multiple
ways of receiving information concerning open orders and executed
transactions. First, FIX and OTTO protocols provide Members with real-
time order execution messages similar to the Clearing Trade Interface
and FIX DROP. Second, TradeInfo provides Members with the ability to
query open orders and order executions real-time, at no cost, similar
to the Clearing Trade Interface and FIX DROP. Third, Members receive
free daily reports listing open orders and trade executions from the
Exchange. While not real-time, the Open Orders Report and Trade Detail
Report provide Members with information similar to the Clearing Trade
Interface and FIX DROP.

Disaster Recovery

    With respect to Disaster Recovery Ports, the Exchange proposes to
assess no fee for the first FIX Disaster Recovery Port obtained by an
Electronic Access Member or the first SQF Disaster Recovery Port
obtained by a Market Maker. The Exchange proposes to assess no fees for
these ports to provide Members with continuous access to MRX in the
event of a failover at no cost. Electronic Access Members only require
one FIX Disaster Recovery Port to submit orders in the event of a
failover. Market Makers only require one SQF Disaster Recovery Port to
submit quotes in the event of a failover. Electronic Access Members may
elect to purchase additional optional FIX Disaster Recovery Ports for
$50 per port, per month, per account number. Market Makers may elect to
purchase additional optional SQF Disaster Recovery Ports for $50 per
port, per month, per account number. The additional FIX and SQF
Disaster Recovery Ports are not necessary to connect to the Exchange in
the event of a failover because the Exchange has provided Members with
a FIX Disaster Recovery Port and an SQF Disaster Recovery Port at no
cost.
    Further, the Exchange's proposal to offer Disaster Recovery Ports
for SQF Purge Ports and OTTO Ports for $50 per port, per month, per
account number and Disaster Recovery Ports for CTI Ports and FIX DROP
Ports for $50 per port, per month is optional. As noted herein, today,
there are other alternatives for these ports. The purchase of an SQF
Purge Port, OTTO Port, CTI Port, and FIX DROP Port in production are
optional and, therefore, so is the purchase of Disaster Recovery Ports
for these ports. The proposed Disaster Recovery Port fees are intended
to encourage Members to be efficient when purchasing Disaster Recovery
Ports. Similar to all other ports, Disaster Recovery Ports need to be
maintained by the Exchange.\29\
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    \29\ The Exchange maintains ports in a number of ways to ensure
that ports are properly connected to the Exchange at all times. This
includes offering testing, ensuring all ports are up-to-date with
the latest code releases, as well as ensuring that all ports meet
the Exchange's information security specifications.
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    Finally, in the event that an MRX Member elects to subscribe to
multiple ports, the Exchange offers a monthly cap beyond which a Member
would be assessed no additional port fees in a given month. As noted
above, the SQF Port and the SQF Purge Port are subject to a monthly cap
of $17,500 and the OTTO Port, CTI Port, FIX Port, FIX Drop Port and all
Disaster Recovery Ports are subject to a monthly cap of $7,500.
    As noted herein, these different protocols are not all necessary to
conduct business on MRX; a Member may choose among protocols based on
their business workflow. The proposed port fees are similar to fees
assessed today by GEMX.\30\ The Exchange's proposal to offer the first
FIX and SQF Port at no cost as well as the first FIX and SQF Disaster
Recovery Ports at no cost would allow MRX Members to submit orders and
quotes into MRX at no cost.
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    \30\ See GEMX Options 7, section 6.C. (Ports and Other
Services).
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2. Statutory Basis
    The Exchange believes that its proposal is consistent with section
6(b) of the Act,\31\ in general, and furthers the objectives of
sections 6(b)(4) and 6(b)(5) of the Act,\32\ in particular, in that it
provides for the equitable allocation of reasonable dues, fees, and
other charges among members and issuers and other persons using any
facility, and is not designed to permit unfair discrimination between
customers, issuers, brokers, or dealers.
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    \31\ See 15 U.S.C. 78f(b).
    \32\ See 15 U.S.C. 78f(b)(4) and (5).
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    The proposed changes to the Pricing Schedule are reasonable in
several respects. As a threshold matter, the Exchange is subject to
significant competitive forces in the market for order flow, which
constrains its pricing determinations. The fact that the market for
order flow is competitive has long been recognized by the courts. In
NetCoalition v. Securities and Exchange Commission, the D.C. Circuit
stated, ``[n]o one disputes that competition for order flow is
`fierce.' . . . As the SEC explained, `[i]n the U.S. national market
system, buyers and sellers of securities, and the broker-dealers that
act as their order-routing agents, have a wide range of choices of
where to route orders for execution'; [and] `no exchange can afford to
take its market share percentages for granted' because `no exchange
possesses a monopoly, regulatory or otherwise, in the execution of
order flow from broker dealers' . . . .'' \33\
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    \33\ See NetCoalition, 615 F.3d at 539 (D.C. Cir. 2010) (quoting
Securities Exchange Act Release No. 59039 (December 2, 2008), 73 FR
74770, 74782-83 (December 9, 2008) (SR-NYSEArca-2006-21)).
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    The Commission and the courts have repeatedly expressed their
preference for competition over regulatory intervention to determine
prices, products, and services in the securities markets. In Regulation
NMS, while adopting a series of steps to improve the current market
model, the Commission highlighted the importance of market forces in
determining prices and SRO revenues, and also recognized that current
regulation of the market system ``has been remarkably successful in
promoting market competition in its broader forms that are most
important to investors and listed companies.'' \34\
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    \34\ See Securities Exchange Act Release No. 51808 (June 9,
2005), 70 FR 37496, 37499 (June 29, 2005) (``Regulation NMS Adopting
Release'').
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    Congress directed the Commission to ``rely on `competition,
whenever possible, in meeting its regulatory responsibilities for
overseeing the SROs and the national market system.' '' \35\ As a
result, the Commission has historically relied on competitive forces to
determine whether a fee proposal is equitable, fair, reasonable, and
not unreasonably or unfairly discriminatory. ``If competitive forces
are operative, the self-interest of the exchanges themselves will work
powerfully to constrain unreasonable or unfair behavior.'' \36\
Accordingly, ``the existence of significant competition provides a
substantial basis for finding that the terms of an exchange's fee
proposal are equitable, fair, reasonable, and not unreasonably or
unfairly discriminatory.'' \37\ In its 2019 guidance

on fee proposals, Commission staff indicated that they would look at
factors beyond the competitive environment, such as cost, only if a
``proposal lacks persuasive evidence that the proposed fee is
constrained by significant competitive forces.'' \38\
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    \35\ See NetCoalition, 615 F.3d at 534-35; see also H.R. Rep.
No. 94-229 at 92 (1975) (``[I]t is the intent of the conferees that
the national market system evolve through the interplay of
competitive forces as unnecessary regulatory restrictions are
removed.'').
    \36\ See Securities Exchange Act Release No. 59039 (December 2,
2008), 73 FR 74,770 (December 9, 2008) (SR-NYSEArca-2006-21).
    \37\ Id.
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History of MRX Operations

    Over the years, MRX has amended its transactional pricing to remain
competitive and attract order flow to the Exchange.\39\
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    \38\ See U.S. Securities and Exchange Commission, ``Staff
Guidance on SRO Rule filings Relating to Fees'' (May 21, 2019),
available at https://www.sec.gov/tm/staff-guidance-sro-rule-filings-fees.
    \39\ See e.g. Securities Exchange Act Release Nos. 77292 (March
4, 2016), 81 FR 12770 (March 10, 2016) (SR-ISEMercury-2016-02)
(Notice of Filing and Immediate Effectiveness of Proposed Rule
Change To Establish the Schedule of Fees); 77409 (March 21, 2016),
81 FR 16240 (March 25, 2016) (SR-ISEMercury-2016-05) (Notice of
Filing and Immediate Effectiveness of Proposed Rule Change To Amend
the Schedule of Fees); 81 FR 16238 (March 21, 2016), 81 FR 16238
(March 25, 2016) (SR-ISEMercury-2016-06) (Notice of Filing and
Immediate Effectiveness of Proposed Rule Change To Amend the
Schedule of Fees); 77841 (May 16, 2016), 81 FR 31986 (SR-ISEMercury-
2016-11) (Notice of Filing and Immediate Effectiveness of Proposed
Rule Change To Amend the Schedule of Fees); 82537 (January 19,
2018), 83 FR 3784 (January 26, 2018) (SR-MRX-2018-01) (Notice of
Filing and Immediate Effectiveness of Proposed Rule Change To Amend
the Schedule of Fees To Introduce a New Pricing Model); 82990 (April
4, 2018), 83 FR 15434 (April 10, 2018) (SR-MRX-2018-10) (Notice of
Filing and Immediate Effectiveness of Proposed Rule Change To Amend
Chapter IV of the Exchange's Schedule of Fees); 28677 (June 14,
2018), 83 FR 28677 (June 20, 2018) (SR-MRX-2018-19) (Notice of
Filing and Immediate Effectiveness of Proposed Rule Change To
Increase Certain Route-Out Fees Set Forth in section II.A of the
Schedule of Fees); 84113 (September 13, 2018), 83 FR 47386
(September 19, 2018) (SR-MRX-2018-27) (Notice of Filing and
Immediate Effectiveness of Proposed Rule Change To Relocate the
Exchange's Schedule of Fees); 85143 (February 14, 2019), 84 FR 5508
(February 21, 2019) (SR-MRX-2019-02) (Notice of Filing and Immediate
Effectiveness of a Proposed Rule Change To Amend the Pricing
Schedule at Options 7, section 3); 85313 (March 14, 2019), 84 FR
10357 (March 20, 2019) (SR-MRX-2019-05) (Notice of Filing and
Immediate Effectiveness of a Proposed Rule Change Relating to PIM
Fees and Rebates); 86326 (July 8, 2019), 84 FR 33300 (July 12, 2019)
(SR-MRX-2019-14) (Notice of Filing and Immediate Effectiveness of a
Proposed Rule Change To Adopt Complex Order Pricing); 88022 (January
23, 2020), 85 FR 5263 (January 29, 2020) (SR-MRX-2020-02) (Notice of
Filing and Immediate Effectiveness of Proposed Rule Change To Amend
MRX Pricing Schedule); 89046 (June 11, 2020), 85 FR 36633 (June 17,
2020) (SR-MRX-2020-11) (Notice of Filing and Immediate Effectiveness
of Proposed Rule Change To Amend Its Pricing Schedule at Options 7);
89320 (July 15, 2020), 85 FR 44135 (July 21, 2020) (SR-MRX-2020-14)
(Notice of Filing and Immediate Effectiveness of Proposed Rule
Change To Amend Its Pricing Schedule at Options 7, section 5, Other
Options Fees and Rebates, in Connection With the Pricing for Orders
Entered Into the Exchanges Price Improvement Mechanism); 90503
(November 24, 2020), 85 FR 77317 (December 1, 2020) (SR-MRX-2020-18)
(Notice of Filing and Immediate Effectiveness of Proposed Rule
Change To Amend Its Pricing Schedule at Options 7 for Orders Entered
Into the Exchange's Price Improvement Mechanism); 90434 (November
16, 2020), 85 FR 74473 (November 20, 2020) (SR-MRX-2020-19) (Notice
of Filing and Immediate Effectiveness of Proposed Rule Change To the
Exchange's Pricing Schedule at Options 7 To Amend Taker Fees for
Regular Orders); 90455 (November 18, 2020), 85 FR 75064 (November
24, 2020) (SR-MRX-2020-21) (Notice of Filing and Immediate
Effectiveness of Proposed Rule Change To Amend the Pricing
Schedule); and 91687 (April 27, 2021), 86 FR 23478 (May 3, 2021)
(SR-MRX-2021-04) (Notice of Filing and Immediate Effectiveness of
Proposed Rule Change To Amend the Exchange's Pricing Schedule at
Options 7). Note that ISE Mercury is an earlier name for MRX.
---------------------------------------------------------------------------

    In June 2019, MRX commenced offering complex orders.\40\ With the
addition of complex order functionality, MRX offered Members certain
order types, an opening process, auction capabilities and other trading
functionality that was nearly identical to functionality available on
ISE.\41\ By way of comparison, ISE assessed fees for ports \42\ in 2019
while offering the same suite of functionality as MRX, with a limited
exception.\43\
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    \40\ See Securities Exchange Act Release No. 86326 (July 8,
2019), 84 FR 33300 (July 12, 2019) (SR-MRX-2019-14) (Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change to
Adopt Complex Order Pricing).
    \41\ One distinction is that ISE offered its Members access to
Nasdaq Precise in 2019 and since that time. MRX has never offered
Precise. ``Nasdaq Precise'' or ``Precise'' is a front-end interface
that allows EAMs and their Sponsored Customers to send orders to the
Exchange and perform other related functions. Features include the
following: (1) order and execution management: enter, modify, and
cancel orders on the Exchange, and manage executions (e.g., parent/
child orders, inactive orders, and post-trade allocations); (2)
market data: access to real-time market data (e.g., NBBO and
Exchange BBO); (3) risk management: set customizable risk parameters
(e.g., kill switch); and (4) book keeping and reporting:
comprehensive audit trail of orders and trades (e.g., order history
and done away trade reports). See ISE Supplementary Material .03(d)
of Options 3, section 7. Precise is also available on GEMX.
    \42\ Since 2019, ISE has assessed the following port fees: a FIX
Port Fee of $300 per port, per month, per mnemonic, an SQF Port Fee
and SQF Purge Port Fee of $1,100 per port, per month, an OTTO Port
Fee of $400 per port, per month, per mnemonic with a monthly cap of
$4,000, a CTI Port Fee and FIX DROP Port Fee of $500 per port, per
month, per mnemonic. See Securities Exchange Act Release No. 82568
(January 23, 2018), 83 FR 4086 (January 29, 2018) (SR-ISE-2018-07)
(Notice of Filing and Immediate Effectiveness of Proposed Rule
Change To Assess Fees for OTTO Port, CTI Port, FIX Port, FIX Drop
Port and Disaster Recovery Port Connectivity). Of note, ISE assessed
port fees prior to 2019 as well.
    \43\ See note 41, supra.
---------------------------------------------------------------------------

Ports Are Subject to Significant Substitution-Based Competitive Forces

    An exchange can show that a product is ``subject to significant
substitution-based competitive forces'' by introducing evidence that
customers can substitute the product for products offered by other
exchanges.
    Chart 1 below shows the January 2022 market share for multiply-
listed options by exchange. Of the 16 operating options exchanges, none
currently has more than a 13.1% market share, and MRX has the smallest
market share at 1.8%. Customers widely distribute their transactions
across exchanges according to their business needs and the ability of
each exchange to meet those needs through technology, liquidity and
functionality. Average market share for the 16 options exchanges is
6.26 percent, with the median at 5.8, and a range between 1.8 and 13.1
percent.

[GRAPHIC] [TIFF OMITTED] TN18OC22.021

    Market share is the percentage of volume on a particular exchange
relative to the total volume across all exchanges, and indicates the
amount of order flow directed to that exchange. High levels of market
share enhance the value of trading and ports.
    As described in detail below, only one order protocol is required
to submit orders to MRX. Quoting protocols are only required to the
extent an MRX Member has been appointed as a Market Maker in an options
series pursuant to Options 2, section 1, and only one quoting protocol
is necessary to quote on MRX. Members may choose a greater number of
order or quote entry ports, beyond the first FIX Port and the first SQF
Port which are proposed to be offered at no cost, depending on that
Member's particular business model.\44\ However, Members do not need
more than one order entry port (and account number) and one quote port
to submit interest to MRX.
---------------------------------------------------------------------------

    \44\ For example, a Member may desire to utilize multiple FIX
ports for accounting purposes, to measure performance, for
regulatory reasons or other determinations that are specific to that
Member.
---------------------------------------------------------------------------

    The experience of MRX's affiliates shows that the number of ports
that members choose to purchase varies widely. For example, a review of
the Phlx exchange in April 2022 shows that, among its member
organizations that purchase ports, approximately 26 percent purchased 1
SQF or FIX port, another 26 percent purchased between 2 and 5 ports, 21
percent purchased between 6 and 10 ports, and 28 percent purchased more
than 11 ports. This means that any MRX Member may enter all of their
interest (orders or quotes) with only one order and one quote port and
remain competitive.\45\
---------------------------------------------------------------------------

    \45\ As noted above, one port would be required to submit orders
and one port would be required to submit quotes.
---------------------------------------------------------------------------

    By way of comparison, the number of ports that MRX Members
purchased in April 2022 also varied widely.

[GRAPHIC] [TIFF OMITTED] TN18OC22.022

    Chart 2 indicates the number of FIX and SQF Ports, respectively,
that MRX Members were subscribed to in April 2022. Chart 2 shows that 1
MRX Member only subscribed to 1 SQF Port and 3 MRX Members subscribed
to 1 FIX Port.
    Further, approximately 23 percent of MRX Members purchased 1 SQF,
FIX or OTTO Port,\46\ another 43 percent purchased between 2 and 5
ports, 13 percent purchased between 6 and 10 ports, and 20 percent
purchased more than 11 ports. MRX Members, similar to Phlx member
organizations, have the option of reducing their port purchases without
purchasing a substitute product.
---------------------------------------------------------------------------

    \46\ Phlx only offers FIX and SQF ports while MRX offers FIX,
OTTO and SQF ports for order and quote entry.
---------------------------------------------------------------------------

    All of these statistics must be viewed in the context of a field
with relatively low barriers to entry. MRX, like many new entrants to
the field, offered ports for free to establish itself and gain market
share. As new entrants enter the field, MRX can also expect competition
from these new entrants. Those new entrants, like MRX, are likely to
set port, or other fees to zero, increasing marketplace competition.
    The Exchange notes that one MRX Member cancelled 1 SQF Port and 1
OTTO Port to avoid being assessed an SQF Port fee as of May 2,
2022.\47\ As of July 1, 2022, the Exchange did not assess MRX Members
for their first SQF Port. MRX port fees are subject to significant
substitution-based competitive forces due to its consistently low
percentage of market share, the relatively small number of purchasers
for each product, and the purchasers that either cancelled or are
reviewing their subscriptions. Implementation of the proposed fees is
therefore consistent with the Act.
---------------------------------------------------------------------------

    \47\ MRX originally filed to assess a fee for all FIX Ports.
---------------------------------------------------------------------------

Fees for Ports

    The proposed port fees described below are in line with those of
other markets. Setting a fee above competitors is likely to drive away
customers, so the most efficient price-setting strategy is to set
prices at the same level as other firms.
    As noted above, market participants may choose to become a member
of one or more options exchanges based on the market participant's
business model. The Exchange believes that there are many factors that
may cause a market participant to decide to become a member of a
particular exchange dependent upon their business model. A very small
number of market participants choose to become a member of all sixteen
options exchanges. It is not a requirement for market participants to
become members of all options exchanges, in fact, certain market
participants conduct an options business as a member of only one
options market.\48\ Most firms that actively trade on options markets
are not currently Members of MRX and do not purchase port services at
MRX. Ports are only available to MRX Members or service bureaus, and
only an MRX Member may utilize a port.\49\
---------------------------------------------------------------------------

    \48\ BOX Exchange LLC (``BOX'') amended its fees on January 3,
2022 to adopt an electronic market maker trading permit fee. See
Securities and Exchange Release No. 94894 (May 11, 2022), 87 FR
29987 (May 17, 2022) (SR-BOX-2022-17) (Notice of Filing and
Immediate Effectiveness of a Proposed Rule Change To Amend the Fee
Schedule on the BOX Options Market LLC Facility To Adopt Electronic
Market Maker Trading Permit Fees). In the BOX-2022-17 rule change,
BOX stated that, ``. . . it is not aware of any reason why Market
Makers could not simply drop their access to an exchange (or not
initially access an exchange) if an exchange were to establish
prices for its non-transaction fees that, in the determination of
such Market Maker, did not make business or economic sense for such
Market Maker to access such exchange. The Exchange again notes that
no market makers are required by rule, regulation, or competitive
forces to be a Market Maker on the Exchange.'' Further, in 2022,
MEMX LLC (``MEMX'') established a monthly membership fee. See
Securities Exchange Act Release No. 93927 (January 7, 2022), 87 FR
2191 (January 13, 2022) (SR-MEMX-2021-19). The Monthly Membership
Fee is assessed to each active Member at the close of business on
the first day of each month. MEMX reasoned in MEMX-2022-19 that that
there is value in becoming a member of the exchange. MEMX stated
that it believed that its proposed membership fee ``is not unfairly
discriminatory because no broker-dealer is required to become a
member of the Exchange.'' Moreover, ``neither the trade-through
requirements under Regulation NMS nor broker-dealers' best execution
obligations require a broker-dealer to become a member of every
exchange.'' The Exchange notes that neither BOX-2022-17 or MEMX-
2022-19 were suspended.
    \49\ Service bureaus may obtain ports on behalf of Members. The
Exchange would only assign a badge and/or mnemonic to a Member to be
utilized to submit quotes and/or orders to the Exchange.
---------------------------------------------------------------------------

    Using options markets that Nasdaq operates as points of comparison,
less

than a third of the firms that are members of at least one of the
options markets that Nasdaq operates are also Members of MRX
(approximately 29%). MRX, like other options markets, has a mix of
market participants as Members. Chart 3 below displays the percentage
of Electronic Access Members, Market Makers and Clearing Firms on
MRX.\50\
---------------------------------------------------------------------------

    \50\ Of note, Nasdaq Execution Services, LLC (``NES''), a Nasdaq
affiliate, is a Member of MRX. NES is a broker-dealer and the
Routing Facility of the Exchange. NES routes orders in options
listed and open for trading on the System to away markets either
directly or through one or more third-party unaffiliated routing
broker-dealers pursuant to Exchange Rules on behalf of the Exchange.
NES is subject to regulation as a facility of the Exchange,
including the requirement to file proposed rule changes under
section 19 of the Securities Exchange Act of 1934, as amended
[GRAPHIC] [TIFF OMITTED] TN18OC22.023

    The percentages in Chart 3 represent percentages of the total
number of MRX Members. Some Members have dual representations (e.g., a
Market Maker and Electronic Access Member) as reflected in Chart 2.
    The Exchange notes that no firm is a Member of MRX only. Few, if
any, firms have purchased port services at MRX, notwithstanding the
fact that ports are currently free, because MRX currently has less
liquidity than other options markets. As explained above, MRX has the
smallest market share of the 16 options exchanges, representing only
approximately 1.8% of the market, and, for certain market participants,
the current levels of liquidity may be insufficient to justify the
costs associated with becoming a Member and connecting to the Exchange,
notwithstanding the fact that ports are currently free.
    The decision to become a member of an exchange, particularly for
registered market makers, is complex, and not solely based on the non-
transactional costs assessed by an exchange. As noted herein, specific
factors include, but are not limited to: (i) an exchange's available
liquidity in options series; (ii) trading functionality offered on a
particular market; (iii) product offerings; (iv) customer service on an
exchange; and (v) transactional pricing. Becoming a member of the
exchange does not ``lock'' a potential member into a market or diminish
the overall competition for exchange services. The decision to become a
member of an exchange is made at the beginning of the relationship, and
is no less subject to competition than trading fees or ports.
    In lieu of becoming a member at each options exchange, a market
participant may join one exchange and elect to have their orders routed
in the event that a better price is available on an away market.
Nothing in the Order Protection Rule requires a firm to become a Member
at MRX.\51\ If MRX is not at the NBBO, MRX will route an order to any
away market that is at the NBBO to prevent a trade-through and also
ensure that the order was executed at a superior price.\52\
---------------------------------------------------------------------------

    \51\ See Options Order Protection and Locked/Crossed Market Plan
(August 14, 2009), available at https://www.theocc.com/getmedia/7fc629d9-4e54-4b99-9f11-c0e4db1a2266/options_order_protection_plan.pdf.
    \52\ MRX Members may elect to not route their orders by marking
an order as ``do-not-route.'' In this case, the order would not be
routed. See Options 3, section 7(m).
---------------------------------------------------------------------------

    With respect to the submission of orders, Members may also choose
not to purchase any port at all from the Exchange, and instead rely on
the port of a third party to submit an order.\53\ For example, a third-
party broker-dealer Member of MRX may be utilized by a retail investor
to submit orders into an Exchange. An institutional investor may
utilize a broker-dealer, a service bureau,\54\ or request sponsored
access \55\ through a member of an exchange in order to submit a trade
directly to an options exchange.\56\ A market participant may either
pay the costs associated with becoming a member of an exchange or, in
the alternative, a market participant may elect to pay commissions to a
broker-dealer, pay fees

to a service bureau to submit trades, or pay a member to sponsor the
market participant in order to submit trades directly to an exchange.
Market participants may elect any of the above models and weigh the
varying costs when determining how to submit trades to an exchange.
Depending on the number of orders to be submitted, technology, ability
to control submission of orders, and projected revenues, a market
participant may determine one model is more cost efficient as compared
to the alternatives.
---------------------------------------------------------------------------

    \53\ Market Makers on MRX are required to obtain one SQF port to
submit quotes into MRX.
    \54\ Service bureaus provide access to market participants to
submit and execute orders on an exchange. On MRX, a Service Bureau
may be a Member. Some MRX Members utilize a Service Bureau for
connectivity and that Service Bureau may not be a Member. Some
market participants utilize a Service Bureau who is a Member to
submit orders. As noted herein only MRX Members may submit orders or
quotes through ports.
    \55\ Sponsored Access is an arrangement whereby a member permits
its customers to enter orders into an exchange's system that bypass
the member's trading system and are routed directly to the Exchange,
including routing through a service bureau or other third-party
technology provider.
    \56\ This may include utilizing a Floor Broker and submitting
the trade to one of the five options trading floors.
---------------------------------------------------------------------------

    Only if a market participant elects to become a Member of MRX will
the market participant need to utilize a port to submit orders and/or
quotes into MRX. Once an applicant is approved for membership on MRX
and becomes a Member, the Exchange assigns the Member a badge \57\ and/
or mnemonic \58\ to submit quotes and/or orders to the Exchange through
the applicable port. An MRX Member may have one or more accounts
numbers and may assign badges or mnemonics to those account
numbers.\59\ Membership approval grants a Member a right to exercise
trading privileges on MRX, which includes the submission of orders and/
or quotes into the Exchange through a secure port by utilizing the
badge and/or mnemonic assigned to a specific Member by the Exchange.
The Exchange utilizes ports as a secure method for Members to submit
orders and/or quotes into the Exchange's match engine and for the
Exchange to send messages related to those orders and/or quotes to its
Members.
---------------------------------------------------------------------------

    \57\ A ``badge'' shall mean an account number, which may contain
letters and/or numbers, assigned to Market Makers. A Market Maker
account may be associated with multiple badges. See MRX Options 1,
section 1(a)(5).
    \58\ A ``mnemonic'' shall mean an acronym comprised of letters
and/or numbers assigned to Electronic Access Members. An Electronic
Access Member account may be associated with multiple mnemonics. See
MRX Options 1, section 1(a)(23).
    \59\ The Exchange provides account numbers, badges and mnemonics
at no cost.
---------------------------------------------------------------------------

    MRX is obligated to regulate its Members and secure access to its
environment. In order to properly regulate its Members and secure the
trading environment, MRX takes measures to ensure access is monitored
and maintained with various controls. Ports are a method utilized by
the Exchange to grant Members secure access to communicate with the
Exchange and exercise trading rights. When a market participant elects
to be a Member of MRX, and is approved for membership by MRX, the
Member is granted trading rights to enter orders and/or quotes into MRX
through secure ports.
    As noted herein, there is no legal or regulatory requirement that a
market participant become a Member of MRX, or, if it is a Member, to
purchase port services beyond the one quoting protocol or one order
entry protocol necessary to quote or submit orders on MRX. The Exchange
proposes to offer the first FIX and SQF Port at no cost in addition to
the first FIX Disaster Recovery Port and the first SQF Disaster
Recovery Port at no cost.\60\ As noted above, Members may freely choose
to rely on one or many ports, depending on their business model.
---------------------------------------------------------------------------

    \60\ Only Members and service bureaus may request ports on MRX,
and only Members may utilize ports on MRX through their assigned
badge or mnemonic. See Options 1, section 1(a)(5) and (23).
---------------------------------------------------------------------------

    The Exchange's proposal to amend port fees is reasonable, equitable
and not unfairly discriminatory as MRX is providing MRX Electronic
Access Members the first FIX Port to submit orders and MRX Market
Makers the first SQF Port to submit quotes to MRX, at no cost, in
addition to providing the first FIX Disaster Recovery Port and the
first SQF Disaster Recovery Port at no cost; all other ports offered by
MRX are optional and not necessary to trade options on the Exchange.
    The proposed fees reflect the ongoing services provided to maintain
and support the ports. In order to submit orders into MRX, only one
order protocol is required, and MRX is providing Electronic Access
Members the first FIX Port at no cost. Quoting protocols are only
required to the extent an MRX Member has been appointed as a Market
Maker in an options series pursuant to Options 2, section 1. Similarly,
only one quoting protocol is necessary to quote on MRX and MRX is
providing Market Makers the first SQF Port at no cost. As noted above,
only Members may utilize ports. A Member can send all orders,
proprietary and agency, through one port to MRX and all quotes through
one port. Therefore, for the foregoing reasons, it is reasonable to
assess no fee for the first FIX Port obtained by an Electronic Access
Member or the first SQF Port obtained by a Market Maker. Further it is
equitable and not unfairly discriminatory to assess no fee for the
first FIX Port to Electronic Access Members as all Electronic Access
Members would be entitled to the first FIX Port at no cost. Also, it is
equitable and not unfairly discriminatory to assess no fee for the
first SQF Port to Market Makers as all Market Makers would be entitled
to the first SQF Port at no cost. With this proposal, MRX Members may
organize their business in such a way as to submit orders and/or quotes
continuously to MRX at no cost.
    The Exchange's proposal to assess Members $650 per port, per month,
per account number for FIX Ports beyond the first port and $1,250 per
port, per month for SQF Ports beyond the first port is reasonable
because these ports are optional and Members only require one FIX Port
to submit orders to MRX and one SQF Port to submit quotes to MRX.
Members electing to subscribe to more than one FIX or SQF Port are
choosing the additional ports to accommodate their business model.
Additionally, to the extent a Member expended more than $7,500 for FIX
Ports or more than $17,500 for SQF Ports, the Exchange would not charge
an MRX Member for additional FIX or SQF Ports beyond the cap. The fees
for the proposed additional FIX and SQF Ports are equitable and not
unfairly discriminatory because any Member may elect to subscribe to
additional ports. Electronic Access Members would be subject to the
same fees for FIX Ports and Market Makers would be subject to the same
fees for SQF Ports. Unlike other market participants, Market Makers are
required to provide continuous two-sided quotes on a daily basis,\61\
and are subject to various obligations associated with providing
liquidity.\62\ Also, as noted herein, account numbers are available on
MRX at no cost.
---------------------------------------------------------------------------

    \61\ See MRX Options 2, section 5.
    \62\ See MRX Options 2, section 4.
---------------------------------------------------------------------------

    The Exchange's proposal to assess $650 per port, per month, per
account number for an OTTO Port is reasonable because OTTO is optional.
The Exchange is offering the first FIX Port at no cost to submit orders
to MRX. In addition to the FIX Port, all Members may elect to purchase
OTTO to submit orders to MRX. Unlike FIX, which offers routing
capability, OTTO does not permit routing. Depending on a Member's
business model, Members may elect to purchase an OTTO Port in addition
to the FIX Port, which is being provided at no cost. Members may prefer
one protocol as compared to another protocol. For example, the ability
to route may cause a Member to utilize FIX and a Member that desires to
execute an order locally may utilize OTTO. Also, the OTTO Port offers
lower latency as compared to the FIX Port, which may be attractive to
Members depending on their trading behavior. MRX Members utilizing the
FIX Port, which is offered at no cost, do not need to utilize OTTO.
Members may elect to utilize both order entry protocols, depending on
how they organize their

business. OTTO provides MRX Members with an additional choice as to the
type of protocol that they may use to submit orders to the Exchange.
Today, Phlx and BX offer only a FIX Port to submit orders on those
options markets.\63\ The proposed OTTO fee is equitable and not
unfairly discriminatory because any Member may elect to purchase an
optional OTTO Port and would be subject to the same fee.
---------------------------------------------------------------------------

    \63\ See Phlx and BX Options 3, section 7 for a list of
protocols.
---------------------------------------------------------------------------

    The Exchange's proposal to offer an SQF Purge Port for $1,250 per
port, per month is reasonable because this port is optional. The SQF
Purge Port is designed to assist Market Makers in the management of,
and risk control over, their quotes. Market Makers may utilize a purge
port to reduce uncertainty and to manage risk by purging all quotes in
their assigned options series. Of note, Market Makers may only enter
interest into SQF in their assigned options series. Additionally, the
SQF Purge Port may be utilized by a Market Maker in the event that the
Member has a system issue and determines to purge from the order book.
The SQF Purge Port is optional as Market Makers have various ways of
purging their quotes from the order book. First of all, a Market Maker
may cancel quotes through SQF in their assigned options series in the
same manner as they may cancel quotes with an SQF Purge Port.\64\
Second, a Member may cancel any bids or offers in any series of options
by requesting MRX Market Operations staff to effect such cancellation
as per the instructions of the Member.\65\ Third, in the event of a
loss of communication with the Exchange, MRX offers the ability to
cancel all of a Member's open quotes via a cancel-on-disconnect
control.\66\ Fourth, MRX offers Market Makers the ability, with respect
to simple orders, to establish pre-determined levels of risk exposure
which would be utilized to automatically remove quotes in all series of
an options class.\67\ Accordingly, the Exchange believes that the SQF
Purge Port provides an efficient alternative to other available
services which allow a Market Maker to cancel quotes. The proposed SQF
Purge Port is equitable and not unfairly discriminatory because any
Member may elect to purchase an optional SQF Purge Port and would be
subject to the same fee.
---------------------------------------------------------------------------

    \64\ SQF Purge Ports, similar to SQF Ports, allow Market Makers
to mass cancel quotes.
    \65\ See Options 3, section 19, Mass Cancellation of Trading
Interest.
    \66\ See MRX Options 3, section 18, Detection of Loss. This risk
protection is free.
    \67\ See MRX Options 3, section 15(a)(3)(B). Thresholds may be
set by Members based on percentage, volume, delta or vega. This risk
protection is free.
---------------------------------------------------------------------------

    The Exchange's proposal to assess $650 per port, per month for CTI
Ports and FIX DROP Ports is reasonable because these ports are optional
because Members have various ways of receiving information concerning
open orders and executed transactions. First, FIX and OTTO provide
Members with real-time order executions similar to the Clearing Trade
Interface and FIX DROP. Second, TradeInfo provides Members with the
ability to query open orders and order executions real-time, at no
cost, similar to the Clearing Trade Interface and FIX DROP. Third,
Members receive free daily reports listing open orders and trade
executions from the Exchange. While not real-time, the Open Orders
Report and Trade Detail Report provide Members with information similar
to the Clearing Trade Interface and FIX DROP. The proposed CTI and FIX
DROP Ports are equitable and not unfairly discriminatory because any
Member may elect to purchase an optional CTI Port or FIX DROP Port and
would be subject to the same fee.
    The Exchange's proposal to assess no fee for the first FIX Disaster
Recovery Port or the first SQF Disaster Recovery Port is reasonable
because it will provide Members with continuous access to MRX in the
event of a failover, at no cost. Further it is equitable and not
unfairly discriminatory to assess no fee for the first FIX Disaster
Recovery Port to Electronic Access Members as all Electronic Access
Members would be entitled to the first FIX Disaster Recovery Port at no
cost. Also, it is equitable and not unfairly discriminatory to assess
no fee for the first SQF Disaster Recovery Port to Market Makers as all
Market Makers would be entitled to the first SQF Disaster Recovery Port
at no cost.
    The Exchange's proposal to assess Members $50 per port, per month,
per account number for optional FIX Disaster Recovery Ports beyond the
first port offered at no cost and $50 per port, per month, per account
number for optional SQF Disaster Recovery Ports beyond the first port
offered at no cost is reasonable because these ports are optional and
Members only require one FIX Disaster Recovery Port to submit orders to
MRX in the event of a failover and one SQF Disaster Recovery Port to
submit quotes to MRX in the event of a failover. Additionally, to the
extent a Member expended more than $7,500 for Disaster Recovery Ports,
the Exchange would not charge an MRX Member for additional Disaster
Recovery Ports beyond the cap. The fees for the proposed additional FIX
and SQF Disaster Recovery Ports are equitable and not unfairly
discriminatory because any Member may elect additional ports and would
be subject to the same fees.
    The Exchange's proposal to offer Disaster Recovery Ports for SQF
Purge Ports, and OTTO Ports at $50 per port, per month, per account
number and CTI Ports, and FIX DROP Ports for $50 per port, per month is
reasonable because these ports are optional. As noted herein, there are
other alternatives for all of these ports today, the purchase of an SQF
Purge Port, OTTO Port, CTI Port, and FIX DROP Port in production is
optional and, therefore, so is the purchase of Disaster Recovery Ports
for these ports. The proposed Disaster Recovery Port fees are intended
to encourage Members to be efficient when purchasing Disaster Recovery
Ports. The proposed Disaster Recovery Ports are equitable and not
unfairly discriminatory because any Member may elect to purchase an
optional Disaster Recovery Port and would be subject to the same fee,
depending on the port.
    Finally, in the event that an MRX Member elects to subscribe to
multiple ports, the Exchange offers a monthly cap beyond which a Member
would be assessed no additional fees for month. As noted above, the SQF
Port and the SQF Purge Port are subject to a monthly cap of $17,500 and
the OTTO Port, CTI Port, FIX Port, FIX Drop Port and all Disaster
Recovery Ports are subject to a monthly cap of $7,500. These caps are
reasonable because they allow Members to limit their fees beyond a
certain level if they elect to purchase multiple ports in a given
month. The caps are also equitable and not unfairly discriminatory
because any Member will be subject to the cap, provided they exceeded
the appropriate dollar amount in a given month.
    The proposed port fees are similar to the fees assessed by
GEMX.\68\
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    \68\ See GEMX Options 7, section 6.C. (Ports and Other
Services).
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    After 6 years, MRX proposes to commence assessing port fees, just
as all other options exchanges while offerings its Members the ability
to submit orders and quotes to the Exchange at no cost. The
introduction of these fees will not impede a Member's access to MRX,
but rather will allow MRX to continue to compete and grow its
marketplace so that it may continue to offer a robust trading
architecture, a quality opening process, an array of simple and complex
order types and auctions, and competitive transaction pricing. If MRX
is incorrect in its assessment of the

value of its services, that assessment will be reflected in MRX's
ability to compete with other options exchanges.

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

    The Exchange does not believe that the proposed rule change will
impose any intermarket burden on competition not necessary or
appropriate in furtherance of the purposes of the Act.
    The Exchange believes its proposal to offer the first FIX and SQF
Ports for free, as well as the first Disaster Recovery version of these
ports, positions MRX as a competitive market among other options
exchanges, all of which assess fees for the first order and/or quote
protocols. MRX's offering would permit Electronic Access Members and
Market Makers the ability to submit orders and quote to MRX at no cost.
The remainder of the port offerings are optional. The Exchange believes
that the optional port offerings permit MRX to remain competitive with
other options markets in its offerings.
    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, or rebate
opportunities available at other venues to be more favorable. Because
competitors are free to modify their own fees in response, and because
market participants may readily adjust their order routing practices,
the Exchange believes that the degree to which fee changes in this
market may impose any burden on competition is extremely limited.
    By way of example, today, with the exception of Precise, ISE has
identical functionality to MRX. Market participants may elect to become
members of ISE instead of MRX if those market participants believe that
the order flow on ISE provides more value than the order flow on MRX.
ISE has more market share (6.2%) as compared to MRX (1.8%). A market
participant may evaluate the fees assessed by ISE, its market share,
and proprietary products, among other things, and determine to become a
member of ISE instead of MRX if it determines the proposed fees to be
unreasonable. Additionally, the proposed port fees are similar to port
fees assessed by GEMX \69\ for similar connectivity.
---------------------------------------------------------------------------

    \69\ See GEMX Options 7, section 6.C. (Ports and Other
Services).
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    Further, in connection with a technology migration, Cboe Exchange,
Inc. (``Cboe'') amended access and connectivity fees, including port
fees.\70\ Specifically, Cboe adopted certain logical ports to allow for
the delivery and/or receipt of trading messages--i.e., orders, accepts,
cancels, transactions, etc. Cboe established tiered pricing for BOE and
FIX logical ports, tiered pricing for BOE Bulk ports, and flat prices
for DROP, Purge Ports, GRP Ports and Multicast PITCH/Top Spin Server
Ports. Cboe argued in its fee proposal that the proposed pricing more
closely aligned its access fees to those of its affiliated exchanges,
and reasonably so, as the affiliated exchanges offer substantially
similar connectivity and functionality and are on the same platform
that Cboe migrated to.\71\ Cboe also justified its proposal by stating
that, `` . . . the Exchange believes substitutable products and
services are in fact available to market participants, including, among
other things, other options exchanges a market participant may connect
to in lieu of the Exchange, indirect connectivity to the Exchange via a
third-party reseller of connectivity and/or trading of any options
product, including proprietary products, in the Over-the-Counter (OTC)
markets.'' \72\ Cboe stated in its proposal that,
---------------------------------------------------------------------------

    \70\ See Securities Exchange Act Release No. 90333 (November 4,
2020), 85 FR 71666 (November 10, 2020) (SR-CBOE-2020-105).
    \71\ Id. at 71676.
    \72\ Id. at 71676.

The rule structure for options exchanges are also fundamentally
different from those of equities exchanges. In particular, options
market participants are not forced to connect to (and purchase
market data from) all options exchanges. For example, there are many
order types that are available in the equities markets that are not
utilized in the options markets, which relate to mid-point pricing
and pegged pricing which require connection to the SIPs and each of
the equities exchanges in order to properly execute those orders in
compliance with best execution obligations. Additionally, in the
options markets, the linkage routing and trade through protection
are handled by the exchanges, not by the individual members. Thus
not connecting to an options exchange or disconnecting from an
options exchange does not potentially subject a broker-dealer to
violate order protection requirements. Gone are the days when the
retail brokerage firms (such as Fidelity, Schwab, and eTrade) were
members of the options exchanges--they are not members of the
Exchange or its affiliates, they do not purchase connectivity to the
Exchange, and they do not purchase market data from the Exchange.
Accordingly, not only is there not an actual regulatory requirement
to connect to every options exchange, the Exchange believes there is
also no ``de facto'' or practical requirement as well, as further
evidenced by the recent significant reduction in the number of
broker-dealers that are members of all options exchanges.\73\
---------------------------------------------------------------------------

    \73\ Id. at 71677.

    The proposal also referenced the National Market System Plan
Governing the Consolidated Audit Trail (``CAT NMS Plan''),\74\ wherein
the Commission discussed the existence of competition in the
marketplace generally, and particularly for exchanges with unique
business models. The Commission acknowledged that, even if an exchange
were to exit the marketplace due to its proposed fee-related change, it
would not significantly impact competition in the market for exchange
trading services because these markets are served by multiple
competitors.\75\ Further, the Commission explicitly stated that
``[c]onsequently, demand for these services in the event of the exit of
a competitor is likely to be swiftly met by existing competitors.''
\76\ Finally, the Commission recognized that while some exchanges may
have a unique business model that is not currently offered by
competitors, a competitor could create similar business models if
demand were adequate, and if a competitor did not do so, the Commission
believes it would be likely that new entrants would do so if the
exchange with that unique business model was otherwise profitable.\77\
---------------------------------------------------------------------------

    \74\ See Securities Exchange Act Release No. 86901 (September 9,
2019), 84 FR 48458 (September 13, 2019) (File No. S7-13-19).
    \75\ Id.
    \76\ Id.
    \77\ Id.
---------------------------------------------------------------------------

    Cboe concluded that the Exchange is subject to significant
substitution-based competitive forces in pricing its connectivity and
access fees.\78\ Cboe stressed that the proof of competitive
constraints does not depend on showing that members walked away, or
threatened to walk away, from a product due to a pricing change.
Rather, the very absence of such negative feedback (in and of itself,
and particularly when coupled with positive feedback) is indicative
that the proposed fees are, in fact, reasonable and consistent with the
Exchange being subject to competitive forces in setting fees.\79\
---------------------------------------------------------------------------

    \78\ Id. at 71679.
    \79\ Id. at 71680.

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

    Cboe also filed to establish a monthly fee for Certification
Logical Ports of $250 per Certification Logical Port.\80\ Cboe reasoned
that purchasing additional Certification Logical Ports, beyond the one
Certification Logical Port per logical port type offered in the
production environment free of charge, is voluntary and not required in
order to participate in the production environment, including live
production trading on the Exchange.\81\
---------------------------------------------------------------------------

    \80\ See Securities Exchange Act Release No. 94512 (March 24,
2002), 87 FR 18425 (March 30, 2022) (SR-Cboe-2022-011). Cboe offers
BOE and FIX Logical Ports, \BOE\ Bulk Logical Ports, \Drop\ Logical
Ports, Purge Ports, GRP Ports and Multicast PITCH/Top Spin Server
Ports. For each type of the aforementioned logical ports that are
used in the production environment, the Exchange also offers
corresponding ports which provide Trading Permit Holders and non-
TPHs access to the Exchange's certification environment to test
proprietary systems and applications (i.e., ``Certification Logical
Ports'').
    \81\ See Securities Exchange Act Release No. 94512 (March 24,
2002), 87 FR 18425 (March 30, 2022) (SR-Cboe-2022-011).
---------------------------------------------------------------------------

    In its statutory basis, Cboe justified the new port fee by stating
that it believed the Certification Logical Port fee were reasonable
because while such ports were no longer completely free, TPHs and non-
TPHs would continue to be entitled to receive free of charge one
Certification Logical Port for each type of logical port that is
currently offered in the production environment.\82\ Cboe noted that
other exchanges assess similar fees and cited to Nasdaq Stock Market
LLC and MIAX Options Exchange.\83\ Cboe also noted that the decision to
purchase additional ports is optional and no market participant is
required or under any regulatory obligation to purchase excess
Certification Logical Ports in order to access the Exchange's
certification environment.\84\ Finally, similar proposals to adopt a
Certification Logical Port monthly fee were filed by Cboe BYX Exchange,
Inc.,\85\ Cboe BZX Exchange, Inc.,\86\ and Cboe EDGA Exchange, Inc.\87\
---------------------------------------------------------------------------

    \82\ Id. at 18426.
    \83\ Id. at 18426.
    \84\ Id. at 18426.
    \85\ See Securities Exchange Act Release No. 94507 (March 24,
2002), 87 FR 18439 (March 30, 2022) (SR-CboeBYX-2022-004).
    \86\ See Securities Exchange Act Release No. 94511 (March 24,
2002), 87 FR 18411 (March 30, 2022) (SR-CboeBZX-2022-021).
    \87\ See Securities Exchange Act Release No. 94517 (March 25,
2002), 87 FR 18848 (March 31, 2022) (SR-CboeBZX-2022-021).
---------------------------------------------------------------------------

    The Cboe fee proposals described herein were filed subsequent to
the D.C. Circuit decision in Susquehanna Int'l Grp., LLC v. SEC, 866
F.3d 442 (D.C. Cir. 2017), meaning that such fee filings were subject
to the same (and current) standard for SEC review and approval as SR-
MRX-2022-12[sic]. In summary, MRX requests the Commission apply the
same standard of review to SR-MRX-2022-12[sic] which was applied to the
various Cboe and Cboe affiliated markets' filings with respect to port
fees. If the Commission were to apply a different standard of review to
MRX-2022-12[sic] than it applied to other exchange fee filings it would
create a burden on competition such that it would impair MRX's ability
to compete among other options markets.
    The Exchange does not believe that the proposed rule change will
impose any intramarket burden on competition not necessary or
appropriate in furtherance of the purposes of the Act. Only one order
protocol is required to submit orders to MRX, and the Exchange proposes
to offer the first FIX Port and the first FIX Disaster Recovery Port to
Electronic Access Members at no cost. This would provide Members with
the ability to continuously submit orders to MRX, even in the event of
a failover. Likewise, only one quoting protocol is required to submit
quotes to MRX, and the Exchange proposes to offer the first SQF Port
and the first SQF Disaster Recovery Port to Market Makers at no cost.
This would provide Market Makers with the ability to continuously
submit quotes to MRX, even in the event of a failover. Only one account
number is necessary per Member and account numbers are free.
    As noted above, the remainder of the proposed port fees are for
optional ports (additional FIX and SQF Ports, additional FIX and SQF
Disaster Recovery Ports, SQF Purge Port, OTTO Port, CTI Port, FIX DROP
Port and Disaster Recovery Ports for SQF Purge Ports, OTTO Ports, CTI
Ports, and FIX DROP Ports). These different protocols are not all
necessary to conduct business on MRX. Members choose among the
protocols based on their business workflow. The proposed fees do not
impose an undue burden on competition because the Exchange would
uniformly assess the port fees to all Members and would uniformly apply
monthly caps. Market participants may also connect to third parties
instead of directly to the Exchange.
    With respect to the higher fees assessed for SQF Ports and SQF
Purge Ports, the Exchange notes that only Market Makers may utilize
these ports. Market Makers are required to provide continuous two-sided
quotes on a daily basis,\88\ and are subject to various obligations
associated with providing liquidity.\89\ As a result of these quoting
obligations, the SQF Port and SQF Purge Port are designed to handle
higher throughput to permit Market Makers to bundle orders to meet
their obligations. The technology to permit Market Makers to submit a
greater number of quotes, in addition to the various risk protections
\90\ afforded to these market participants when quoting, accounts for
the higher SQF Port and SQF Purge Port fees. Greater liquidity benefits
all market participants by providing more trading opportunities and
attracting greater participation by Market Makers. Also, an increase in
the activity of Market Makers in turn facilitates tighter spreads.
---------------------------------------------------------------------------

    \88\ See MRX Options 2, section 5.
    \89\ See MRX Options 2, section 4.
    \90\ See MRX Options 3, section 15(a)(3). Market Makers are
offered risk protections to permit them to manage their risk more
effectively.
---------------------------------------------------------------------------

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)(ii) of the Act.\91\ 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: (i) necessary or appropriate in the public
interest; (ii) for the protection of investors; or (iii) 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.
---------------------------------------------------------------------------

    \91\ 15 U.S.C. 78s(b)(3)(A)(ii).
---------------------------------------------------------------------------

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 (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include
File Number SR-MRX-2022-20 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-MRX-2022-20. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (https://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for website viewing and
printing in the Commission's Public Reference Room, 100 F Street NE,
Washington, DC 20549, on official business days between the hours of
10:00 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-MRX-2022-20 and should be
submitted on or before November 8, 2022.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\92\
---------------------------------------------------------------------------

    \92\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Deputy Secretary.
[FR Doc. 2022-22557 Filed 10-17-22; 8:45 am]
BILLING CODE 8011-01-P