[Federal Register Volume 88, Number 19 (Monday, January 30, 2023)]
[Notices]
[Pages 5934-5938]
[FR Doc No: 2023-01744]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-96742; File No. SR-CBOE-2023-007]

Self-Regulatory Organizations; Cboe Exchange, Inc.; Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change To Update
Its Fees Schedule

January 24, 2023.
    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 January 17, 2023, Cboe Exchange, Inc. (the ``Exchange'' or
``Cboe Options'') 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

    Cboe Exchange, Inc. (the ``Exchange'' or ``Cboe Options'') proposes
to update its Fees Schedule. The text of the proposed rule change is
provided in Exhibit 5.
    The text of the proposed rule change is also available on the
Exchange's website (http://www.cboe.com/AboutCBOE/CBOELegalRegulatoryHome.aspx), at the Exchange's Office of the
Secretary, and at the Commission's Public Reference Room.

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

    In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant aspects of such
statements.

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

1. Purpose
    The Exchange proposes to amend its Fees Schedule in connection with
certain surcharges, the S&P 500 Index (``SPX'') options and SPX weekly
(``SPXW'') options Lead Market Maker (``LMM'') Incentive Programs, and
footnote 49 related to transaction fees in Mini-SPX Index (``XSP'')
options.\3\
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    \3\ The Exchange initially filed the proposed fee changes on
January 3, 2023 (SR-CBOE-2023-003). On January 17, 2023, the
Exchange withdrew that filing and submitted this proposal.
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    First, the Exchange proposes to increase the Index License
Surcharge applicable to orders executed MSCI Emerging Markets Index
(``MXEF'') options and MSCI EAFE Index (``MXEA'') options
(collectively, ``MSCI options'') in Rate Table--All Products Excluding
Underlying Symbol List and to orders executed in A SPX (including SPXW)
options in Rate Table--Underlying Symbol List A. Specifically, the
Exchange currently assesses an Index License Surcharge fee of $0.18 per
contract for non-Customer orders executed in SPX/SPXW and an Index
License Surcharge of $0.12 per contract for non-Customer orders
executed in MSCI options. The proposed rule change increases the Index
License Surcharge fee applicable to orders executed in SPX/SPXW from
$0.18 per contract to $0.20 per contract and the Index License
Surcharge fee applicable to orders executed in MSCI options from $0.12
to $0.15. The Exchange notes that the Index License Surcharge fees in
place for SPX/SPXW and MSCI options are designed to recoup some of the
costs associated with the licenses for these indexes.\4\ The cost of
the license however still works out to more than the current SPX/SPXW
and MSCI Index License Surcharge fees and the Exchange therefore
proposes changes to the current Index License Surcharge fees for SPX/
SPXW and MSCI options in order to continue to offset some of the costs
associated with the licenses for these indexes.
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    \4\ See Securities Exchange Release Nos. 74854 (April 30, 2015),
80 FR 26124 (May 6, 2015) (SR-CBOE-2015-041); and 74422 (March 4,
2015), 80 FR 12680 (March 10, 2015) (SR-CBOE-2015-020).
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    The Exchange proposes to next adopt a Floor Broker Solicitation
Surcharge Fee in Rate Table--Underlying Symbol List A of the Fees
Schedule. Specifically, the Exchange proposes to assess $0.15 per
contract which would apply to solicited SPX and SPXW orders where one
side is a Customer and both

sides are crossed in open outcry by the same Floor Broker (i.e., the
executing Floor Broker acronym is the same on both the buy and sell
side of the order). The surcharge fee will be assessed to the EFID of
the buy (sell) side contra to the Customer sell (buy) side of the
order. The proposed surcharge fee will not apply to customer-to-
customer orders, facilitation orders, solicited orders executed as part
of a box or jelly roll strategy or as a FLEX transaction.
``Facilitation orders'' for this purpose are defined as any order in
which a Clearing Trading Permit Holder (``F'' capacity code) or Non-
Trading Permit Holder Affiliate (``L'' capacity code) is contra to any
other origin code, provided the same executing broker and clearing firm
are on both sides of the transaction for open outcry following any
post-trade changes made on the trade date. The proposed rule change
appends footnote 40 to the line item containing the proposed Floor
Broker Solicitation Surcharge Fee. Proposed footnote 40 will describe
the proposed surcharge and exceptions. Over the past year, the Exchange
has observed an increase in solicitations in SPX/SPXW by Floor Brokers
in open outcry. A solicited order represented by a Floor Broker may
receive certain participation advantages, including priority status.\5\
Additionally, the Exchange notes that solicited orders represented by a
Floor Broker may originate from off-floor participants, who do not pay
for a Floor Permit or other floor related facility fees as on-floor
participants do. The proposed surcharge fee therefore only applies to
solicited orders as to not discourage non-solicited participants on the
trading floor from continuing to submit bids and offers in response to
orders represented by Floor Brokers on the trading floor. As such, the
proposed surcharge fee aims to balance incentives between the provision
of solicited orders via a Floor Broker, which may originate from off-
floor participants, and the provision of non-solicited responses
originating from market participants on the trading floor, which the
Exchange believes will maintain robust hybrid markets and continue to
incentivize the provision of liquidity to its trading floor environment
in order to support price discovery and increased execution
opportunities in SPX/SPXW on the Exchange's trading floor to the
benefit of all market participants.
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    \5\ As of January 3, 2023, the open outcry entitlement for
solicitations in SPX and SPX is 40% in accordance with Exchange Rule
5.87(f).
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    Next, the Exchange proposes to amend its SPX/SPXW LMM Incentive
Programs during the Global Trading Hours (``GTH'') session. In
particular, the Exchange offers, among other LMM incentive programs, a
GTH1 SPX/SPXW LMM Incentive Program that applies during GTH from 7:15
p.m. CST to 2:00 a.m. CST (``GTH1'') and a GTH2 SPX/SPXW LMM Incentive
Program that apply during GTH from 2:00 a.m. CST to 8:15 a.m. CST
(``GTH2''). The Exchange notes that these LMM incentive programs in the
Fees Schedule provide a rebate to Trading Permit Holders (``TPHs'')
with LMM appointments that meet certain quoting standards in SPX/SPXW
in a month during GTH. The Exchange notes that meeting or exceeding the
quoting standards in SPX/SPXW to receive the applicable rebates (as
currently offered and as proposed; described in further detail below)
is optional for an LMM appointed to one of the SPX/SPXW LMM Incentive
Programs. Rather, an LMM appointed to an incentive program is eligible
to receive the corresponding rebate if it satisfies the applicable
quoting standards (as currently offered and as proposed; described in
further detail below), which the Exchange believes encourages an LMM to
provide liquidity in the applicable program's products during GTH. The
Exchange may consider other exceptions to the program's quoting
standards based on demonstrated legal or regulatory requirements or
other mitigating circumstances. In calculating whether an LMM appointed
to a GTH1 SPX/SPXW or GTH2 SPX/SPXW incentive program meets the
applicable program's quoting standards each month, the Exchange
excludes from the calculation in that month the business day in which
the LMM missed meeting or exceeding the quoting standards in the
highest number of series.
    Currently, an LMM appointed to one of the GTH SPX/SPXW LMM
Incentive Programs must provide continuous electronic quotes during
GTH1 or GTH2, as applicable, that meet or exceed the quoting standards
set forth in the Fees Schedule in at least 85% of each of the SPX and
SPXW series, 90% of the time in a given month, in order to receive a
rebate for that month in the amount of $15,000 for SPX and $35,000 for
SPXW (or pro-rated amount if an appointment begins after the first
trading day of the month or ends prior to the last trading day of the
month) for that month. The Exchange now proposes to combine the quoting
requirements for SPX and SPXW and provide a single, instead of
separate, rebate for meeting or exceeding the quoting standards.
Specifically, in order to receive the proposed rebate during GTH1 and/
or GTH2, an LMM no longer must meet the quoting standards in each of
SPX and SPXW, but rather meet the quoting standard across both classes.
As proposed, the SPX/SPXW LMM Incentive Program would provide a rebate
of $40,000 to LMMs that meet the quoting standards during GTH1 and/or
GTH2 in the collective SPX and SPXW series. The Exchange notes that no
changes are being made to the quoting standards under the GTH1 or GTH2
SPX/SPXW LMM Incentive Program.
    Finally, the Exchange proposes to delete Footnote 49 from the Fees
Schedule. Currently, pursuant to Footnote 49, transaction fees for
Market-Maker orders in the XSP options are waived through December 31,
2022. The waiver was designed to encourage additional Market-Maker
order flow in XSP options during the fourth calendar quarter of 2022.
Therefore, as the waiver has expired and is no longer applicable, the
Exchange proposes to remove Footnote 49 from the Fees Schedule.
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.\6\ Specifically, the
Exchange believes the proposed rule change is consistent with the
section 6(b)(5) \7\ requirements that the rules of an exchange be
designed to prevent fraudulent and manipulative acts and practices, to
promote just and equitable principles of trade, to foster cooperation
and coordination with persons engaged in regulating, clearing,
settling, processing information with respect to, and facilitating
transactions in securities, to remove impediments to and perfect the
mechanism of a free and open market and a national market system, and,
in general, to protect investors and the public interest. Additionally,
the Exchange believes the proposed rule change is consistent with the
section 6(b)(5) \8\ requirement that the rules of an exchange not be
designed to permit unfair discrimination between customers, issuers,
brokers, or dealers.
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    \6\ 15 U.S.C. 78f(b).
    \7\ 15 U.S.C. 78f(b)(5).
    \8\ Id.
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    The Exchange believes that it is reasonable to increase the amount
of the Index License Surcharge fees for orders in SPX/SPXW and MSCI
options as the proposed increases are consistent with the purpose of
such surcharge fees as they are intended to continue to help recoup
some of the costs associated with

the license for such products in light of recently renewed license
arrangements between the Exchange and the applicable index providers.
The proposed Index License Surcharge fees are also equitable and not
unfairly discriminatory because the surcharge fees will continue to be
assessed uniformly for all non-Customer orders in SPX/SPXW and MSCI
options.
    The Exchange believes the proposed Floor Broker Solicitation
Surcharge Fee is equitable and reasonable. The proposed surcharge fee
is within the range of the existing surcharge fees in place for various
orders in SPX/SPXW.\9\ Further, as described above, the Exchange
believes that the proposed surcharge fee is reasonably designed to not
discourage non-solicited market participants on the Exchange's trading
floor from continuing to provide bids and offers in response to orders
represented by Floor Brokers, particularly in light of the recent
influx of solicited order executions (which are represented by Floor
Brokers and may originate from off-floor participants) in SPX/SPXW in
open outcry. More specifically, the Exchange believes the proposed
change is reasonable, equitable and not unfairly discriminatory as
solicited orders represented by Floor Brokers may receive certain
participation advantages, including priority status that non-solicited
market participants on the Exchange's trading floor do not.\10\
Additionally, as noted above, solicited orders represented by a Floor
Broker may originate from off-floor participants, who do not pay for a
Floor Permit or other floor related facility fees as on-floor
participants do. The Exchange believes that the proposed surcharge fee
will therefore not preclude economic opportunities for non-solicited
participants on the trading floor to continue to, and potentially
increase, bids and offers in response to SPX/SPXW orders represented by
a Floor Broker. As such, the proposed surcharge fee aims to balance
incentives between the provision of solicited orders and the provision
of non-solicited responses originating from market participants on the
trading floor, which the Exchange believes will maintain robust hybrid
markets and continue to encourage the provision of liquidity, execution
opportunities, and improved pricing opportunities in SPX/SPXW on the
Exchange's trading floor to the benefit of all market participants. The
Exchange notes that it is reasonable, equitable and not unfairly
discriminatory to not assess the proposed surcharge fee to solicited
customer-to-customer orders, facilitation orders, or solicited orders
that are executed as part of a box or jelly roll strategy or as a FLEX
transaction (pursuant to proposed footnote 40). The Exchange notes that
with respect to not assessing the proposed surcharge to Customer-to-
Customer orders, there is a history in the options markets of providing
preferential treatment to customers and customer order flow attracts
additional liquidity to the Exchange, providing market participants
with more trading opportunities and signaling an increase in Market-
Maker activity, which facilitates tighter spreads. This may cause an
additional corresponding increase in order flow from other market
participants, contributing overall towards a robust and well-balanced
market ecosystem. The Exchange believes it's equitable and not unfairly
discriminatory to exclude solicitation orders executed as part of a box
or jelly roll strategy or as a FLEX transaction as such orders do not
generally receive the same participant advantages as solicited orders
that are not otherwise a part of complex strategies and FLEX
transactions. Further, the Exchange does not wish to discourage the
user of such orders. The Exchange also believes its equitable and not
unfairly discriminatory to exclude facilitation orders as the Exchange
recognizes that Firms are acting as important sources of liquidity in
these instances by facilitating their own customers' trading activity
and the Exchange does not wish to assess such orders an additional
surcharge. The Exchange believes the proposed surcharge fee generally
is equitable and not unfairly discriminatory as the proposed surcharge
fee will otherwise apply uniformly to all solicited orders in SPX/SPXW
where one side is a Customer and where the order was represented by the
same Floor Broker and executed in open outcry.
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    \9\ See e.g., Cboe Options Fees Schedule, Rate Tables.
    \10\ As of January 3, 2023, the open outcry entitlement for
solicitations in SPX and SPX is 40% in accordance with Exchange Rule
5.87(f).
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    Regarding the SPX/SPXW LMM Incentive Programs, generally, the
Exchange believes it is reasonable, equitable and not unfairly
discriminatory to continue to offer these financial incentives,
including as amended, to LMMs appointed to the programs, because it
benefits all market participants trading in SPX/SPXW during GTH. These
incentive programs encourage LMMs appointed to such programs to satisfy
the applicable quoting standards, which may increase liquidity and
provide more trading opportunities and tighter spreads. Indeed, the
Exchange notes that these LMMs serve a crucial role in providing quotes
and the opportunity for market participants to trade SPX/SPXW options,
which can lead to increased volume, providing for robust markets. The
Exchange ultimately offers the LMM Incentive Programs, as amended, to
sufficiently incentivize LMMs appointed to the programs to provide key
liquidity and active markets in the program's products during the
corresponding trading sessions. The Exchange believes that these
incentive programs, as amended, will continue to encourage increased
quoting to add liquidity in SPX and SPXW during GTH, thereby protecting
investors and the public interest. The Exchange also notes that an LMM
appointed to an incentive program may undertake added costs each month
to satisfy that heightened quoting standards (e.g., having to purchase
additional logical connectivity).
    The Exchange believes that the proposed change to the rebates under
the SPX/SPXW GTH LMM Programs is reasonable as a SPX GTH LMMs will
still be eligible to receive the proposed financial payment (albeit at
a slightly lesser amount and across both SPX and SPXW). The Exchange
believes that, even as amended, the SPX/SPXW GTH LMM Incentive Programs
are reasonably designed to incentivize an appointed LMM to meet the
applicable quoting standards for SPX/SPXW options during GTH, thereby
providing liquid and active markets, which facilitates tighter spreads,
increased trading opportunities, and overall enhanced market quality to
the benefit of all market participants. Further, the Exchange believes
the monthly payment continues to be commensurate with the heightened
quoting standard, even as amended. Further, the Exchange believes the
proposed rebates applicable to the GTH SPX/SPXW LMM Incentive Programs
are equitable and not unfairly discriminatory because they will
continue to apply equally to any TPH that is appointed as an LMM to the
GTH1 and GTH2 SPX/SPXW LMM Incentive Program. Additionally, the
Exchange notes if an LMM appointed to either of the GTH SPX/SPXW LMM
Incentive Programs does not satisfy the corresponding quoting standards
for any given month, then it simply will not receive the rebate offered
by the program for that month.
    The Exchange believes that the proposed rule change to eliminate
the waiver for Market-Maker XSP orders executed during GTH is
reasonable as

the waiver is no longer applicable and was set to expire on December
31, 2022. Eliminating the now obsolete waiver language from the Fees
Schedule avoids potential confusion. The proposed change is also
equitable and not unfairly discriminatory as it applies uniformly to
all Market-Makers.

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

    The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act. The Exchange does not
believe that the proposed rule changes in connection with License Index
Surcharges fees will impose any burden on intramarket competition
because each applies uniformly to all similarly situated TPHs in a
uniform manner (i.e., to all non-Customer executions in SPX/SPXW or
MSCI options). The Exchange does not believe that the proposed rule
changes in connection with the Floor Broker Solicitation Surcharge will
impose any burden on intramarket competition because it applies
uniformly to all similarly situated market participants in a uniform
manner. Additionally, the proposed changes to the existing GTH SPX/SPXW
LMM Incentive Programs will apply to all LMMs appointed to the either
of the programs in a uniform manner. To the extent these LMMs appointed
to an incentive program receive a benefit that other market
participants do not, as stated, these LMMs in their role as Mark-Makers
on the Exchange have different obligations and are held to different
standards. For example, Market-Makers play a crucial role in providing
active and liquid markets in their appointed products, thereby
providing a robust market which benefits all market participants. Such
Market-Makers also have obligations and regulatory requirements that
other participants do not have. The Exchange also notes that an LMM
appointed to an incentive program may undertake added costs each month
that it needs to satisfy that heightened quoting standards (e.g.,
having to purchase additional logical connectivity). The Exchange also
notes that the incentive programs are designed to attract additional
order flow to the Exchange, wherein greater liquidity benefits all
market participants by providing more trading opportunities, tighter
spreads, and added market transparency and price discovery, and signals
to other market participants to direct their order flow to those
markets, thereby contributing to robust levels of liquidity. Finally,
the Exchange does not believe that the proposed rule change to remove
Footnote 49 will impose any burden on intramarket competition because
it simply removes a reference to a waiver that is expired and thus no
longer applicable.
    The Exchange does not believe that the proposed rule changes will
impose any burden on intermarket competition that is not necessary or
appropriate in furtherance of the purposes of the Act because the
proposed amendments to the surcharges, LMM Incentive Programs, and
standard applicable transaction fees for XSP during GTH apply only to
Exchange proprietary products, which are traded exclusively on Cboe
Options.
    Additionally, the Exchange notes that it operates in a highly
competitive market. TPHs have numerous alternative venues that they may
participate on and direct their order flow, including 15 other options
exchanges, as well as off-exchange venues, where competitive products
are available for trading. Based on publicly available information, no
single options exchange has more than 19% of the market share.\11\
Therefore, no exchange possesses significant pricing power in the
execution of option order flow. Indeed, participants can readily choose
to send their orders to other exchange, and, additionally off-exchange
venues, if they deem fee levels at those other venues to be more
favorable. Moreover, the Commission has repeatedly expressed its
preference for competition over regulatory intervention in determining
prices, products, and services in the securities markets. Specifically,
in Regulation NMS, 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.'' \12\ The fact
that this market is competitive has also long been recognized by the
courts. In NetCoalition v. Securities and Exchange Commission, the D.C.
Circuit stated as follows: ``[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'. . . .''.\13\
Accordingly, the Exchange does not believe its proposed fee change
imposes any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act.
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    \11\ See Cboe Global Markets U.S. Options Market Volume Summary,
Month-to-Date (December 20, 2022), available at https://www.cboe.com/us/options/market_statistics/.
    \12\ See Securities Exchange Act Release No. 51808 (June 9,
2005), 70 FR 37496, 37499 (June 29, 2005).
    \13\ NetCoalition v. SEC, 615 F.3d 525, 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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C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    The Exchange neither solicited nor received comments on the
proposed rule change.

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 \14\ and paragraph (f) of Rule 19b-4 \15\
thereunder. At any time within 60 days of the filing of the proposed
rule change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission will institute proceedings to
determine whether the proposed rule change should be approved or
disapproved.
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    \14\ 15 U.S.C. 78s(b)(3)(A).
    \15\ 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 protected]. Please include
File Number SR-CBOE-2023-007 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-CBOE-2023-007. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549 on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-CBOE-2023-007 and should be submitted on
or before February 21, 2023.
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    \16\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\16\
Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-01744 Filed 1-27-23; 8:45 am]
BILLING CODE 8011-01-P