[Federal Register Volume 87, Number 195 (Tuesday, October 11, 2022)]
[Notices]
[Pages 61379-61391]
[FR Doc No: 2022-21989]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-95981; File No. SR-MEMX-2022-28]

Self-Regulatory Organizations; MEMX LLC; Notice of Filing and
Immediate Effectiveness of a Proposed Rule Change To Amend the
Exchange's Fee Schedule To Adopt Market Data Fees

October 4, 2022.
    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 September 21, 2022, MEMX LLC (``MEMX'' or the ``Exchange'')
filed with the Securities and Exchange Commission (the ``Commission'')
the proposed rule change as described in Items I, II, and III below,
which Items have been prepared by the Exchange. The Commission is
publishing this notice to solicit comments on the proposed rule change
from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange is filing with the Commission a proposed rule change
to amend the Exchange's fee schedule applicable to Members \3\ and non-
Members (the ``Fee Schedule'') pursuant to Exchange Rules 15.1(a) and
(c). The Exchange proposes to implement the changes to the Fee Schedule
pursuant to this proposal immediately. The text of the proposed rule
change is provided in Exhibit 5.
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    \3\ See Exchange Rule 1.5(p).
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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
Background
    The purpose of the proposed rule change is to amend the Fee
Schedule to adopt fees the Exchange will charge to Members and non-
Members for each of its three proprietary market data feeds, namely
MEMOIR Depth, MEMOIR Top, and MEMOIR Last Sale (collectively, the
``Exchange Data Feeds''). The Exchange is proposing to implement the
proposed fees immediately.
    The Exchange previously filed the proposal on March 24, 2022 (SR-
MEMX-2022-03) (the ``Initial Proposal''). The Exchange withdrew the
Initial Proposal and replaced the proposal with SR-MEMX-2022-14 (the
``Second Proposal''). The Exchange withdrew the Second Proposal and
replaced the proposal with SR-MEMX-2022-19 (the ``Third Proposal'').
The Exchange recently withdrew the Third Proposal and is replacing it
with the current proposal (SR-MEMX-2022-27).
    The Exchange notes that it has previously included a cost analysis
in connection with the proposed fees for the Exchange Data Feeds,
however, the prior cost analysis coupled costs related to operating its
trading system, or transaction services, with costs of producing market
data. As described more fully below, this filing provides an updated
cost analysis that focuses solely on costs related to the provision of
the Exchange Data Feeds (the ``Cost Analysis''). Although the baseline
Cost Analysis used to justify the fees has been updated, the fees
themselves have not changed since the Initial Proposal and the Exchange
still proposes fees that are intended to cover the Exchange's cost of
producing the Exchange Data Feeds with a reasonable mark-up over those
costs. Before setting forth the

additional details regarding the proposal as well as the updated Cost
Analysis conducted by the Exchange, immediately below is a description
of the proposed fees.
Proposed Market Data Pricing
    The Exchange offers three separate data feeds to subscribers--
MEMOIR Depth, MEMOIR Top and MEMOIR Last Sale. The Exchange notes that
there is no requirement that any Firm subscribe to a particular
Exchange Data Feed or any Exchange Data Feed whatsoever, but instead, a
Firm may choose to maintain subscriptions to those Exchange Data Feeds
they deem appropriate based on their business model. The proposed fee
will not apply differently based upon the size or type of Firm, but
rather based upon the subscriptions a Firm has to Exchange Data Feeds
and their use thereof, which are in turn based upon factors deemed
relevant by each Firm. The proposed pricing for each of the Exchange
Data Feeds is set forth below.
MEMOIR Depth
    The MEMOIR Depth feed is a MEMX-only market data feed that contains
all displayed orders for securities trading on the Exchange (i.e., top
and depth-of-book order data), order executions (i.e., last sale data),
order cancellations, order modifications, order identification numbers,
and administrative messages.\4\ The Exchange proposes to charge each of
the fees set forth below for MEMOIR Depth.
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    \4\ See MEMX Rule 13.8(a).
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    1. Internal Distribution Fee. For the receipt of access to the
MEMOIR Depth feed, the Exchange proposes to charge $1,500 per month.
This proposed access fee would be charged to any data recipient that
receives a data feed of the MEMOIR Depth feed for purposes of internal
distribution (i.e., an ``Internal Distributor''). The Exchange proposes
to define an Internal Distributor as ``a Distributor that receives an
Exchange Data product and then distributes that data to one or more
data recipients within the Distributor's own organization.'' \5\ The
proposed access fee for internal distribution will be charged only once
per month per subscribing entity (``Firm''). The Exchange notes that it
has proposed to use the phrase ``own organization'' in the definition
of Internal Distributor and External Distributor because a Firm will be
permitted to share data received from an Exchange Data product to other
legal entities affiliated with the Firm that have been disclosed to the
Exchange without such distribution being considered external to a third
party. For instance, if a company has multiple affiliated broker-
dealers under the same holding company, that company could have one of
the broker-dealers or a non-broker-dealer affiliate subscribe to an
Exchange Data product and then share the data with other affiliates
that have a need for the data. This sharing with affiliates would not
be considered external distribution to a third party but instead would
be considered internal distribution to data recipients within the
Distributor's own organization.
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    \5\ See Market Data Definitions under the proposed MEMX Fee
Schedule. The Exchange also proposes to adopt a definition for
``Distributor'', which would mean any entity that receives an
Exchange Data product directly from the Exchange or indirectly
through another entity and then distributes internally or externally
to a third party.
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    2. External Distribution Fee. For redistribution of the MEMOIR
Depth feed, the Exchange proposes to establish an access fee of $2,500
per month. The proposed redistribution fee would be charged to any
External Distributor of the MEMOIR Depth feed, which would be defined
to mean ``a Distributor that receives an Exchange Data product and then
distributes that data to a third party or one or more data recipients
outside the Distributor's own organization.'' \6\ The proposed access
fee for external distribution will be charged only once per month per
Firm. As noted above, while a Firm will be permitted to share data
received from an Exchange Data product to other legal entities
affiliated with the Firm that have been disclosed to the Exchange
without such distribution being considered external to a third party,
if a Firm distributes data received from an Exchange Data product to an
unaffiliated third party that would be considered distribution to data
recipients outside the Distributor's own organization and the access
fee for external distribution would apply.
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    \6\ See Market Data Definitions under the proposed MEMX Fee
Schedule.
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    3. Non-Display Use Fees. The Exchange proposes to establish
separate non-display fees for usage by Trading Platforms and other
Users (i.e., not by Trading Platforms).\7\ Non-Display Usage would be
defined to mean ``any method of accessing an Exchange Data product that
involves access or use by a machine or automated device without access
or use of a display by a natural person or persons.'' \8\ For Non-
Display Usage of the MEMOIR Depth feed not by Trading Platforms, the
Exchange proposes to establish a fee of $1,500 per month.\9\ For Non-
Display Usage of the MEMOIR Depth feed by Trading Platforms, the
Exchange proposes to establish a fee of $4,000 per month. The proposed
fees for Non-Display Usage will be charged only once per category per
Firm.\10\ In other words, with respect to Non-Display Usage Fees, a
Firm that uses MEMOIR Depth for non-display purposes but does not
operate a Trading Platform would pay $1,500 per month, a Firm that uses
MEMOIR Depth in connection with the operation of one or more Trading
Platforms (but not for other purposes) would pay $4,000 per month, and
a Firm that uses MEMOIR Depth for non-display purposes other than
operating a Trading Platform and for the operation of one or more
Trading Platforms would pay $5,500 per month.
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    \7\ The Exchange proposes to define a Trading Platform as ``any
execution platform operated as or by a registered National
Securities Exchange (as defined in Section 3(a)(1) of the Exchange
Act), an Alternative Trading System (as defined in Rule 300(a) of
Regulation ATS), or an Electronic Communications Network (as defined
in Rule 600(b)(23) of Regulation NMS).'' See Market Data Definitions
under the proposed MEMX Fee Schedule.
    \8\ See Market Data Definitions under the proposed MEMX Fee
Schedule.
    \9\ Non-Display Usage not by Trading Platforms would include
trading uses such as high frequency or algorithmic trading as well
as any trading in any asset class, automated order or quote
generation and/or order pegging, price referencing for smart order
routing, operations control programs, investment analysis, order
verification, surveillance programs, risk management, compliance,
and portfolio management.
    \10\ The Exchange proposes to adopt note 1 to the proposed
Market Data fees table, which would make clear to subscribers that
use of the data for multiple non-display purposes or operate more
than one Trading Platform would only be charged once per category
per month. Thus, the footnote makes clear that each fee applicable
to Non-Display Usage is charged per subscriber (e.g., a Firm) and
that each of the fees represents the maximum charge per month per
subscriber regardless of the number of non-display uses and/or
Trading Platforms operated by the subscriber, as applicable.
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    4. User Fees. The Exchange proposes to charge a Professional User
\11\ Fee (per User) of $30 per month and a Non-Professional User \12\
Fee (per User) of $3

per month. The proposed User fees would apply to each person that has
access to the MEMOIR Depth feed for displayed usage. Thus, each
Distributor's count will include every individual that accesses the
data regardless of the purpose for which the individual uses the data.
Internal Distributors and External Distributors of the MEMX Depth feed
must report all Professional and Non-Professional Users in accordance
with the following:
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    \11\ As proposed, a Professional User is any User other than a
Non-Professional User. See infra note 12.
    \12\ As proposed, a Non-Professional User is a natural person or
qualifying trust that uses Exchange Data only for personal purposes
and not for any commercial purpose and, for a natural person who
works in the United States, is not: (i) registered or qualified in
any capacity with the Securities and Exchange Commission, the
Commodities Futures Trading Commission, any state securities agency,
any securities exchange or association, or any commodities or
futures contract market or association; (ii) engaged as an
``investment adviser'' as that term is defined in Section 202(a)(11)
of the Investment Advisors Act of 1940 (whether or not registered or
qualified under that Act); or (iii) employed by a bank or other
organization exempt from registration under federal or state
securities laws to perform functions that would require registration
or qualification if such functions were performed for an
organization not so exempt; or, for a natural person who works
outside of the United States, does not perform the same functions as
would disqualify such person as a Non-Professional User if he or she
worked in the United States.
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     In connection with a Distributor's distribution of the
MEMOIR Depth feed, the Distributor must count as one User each unique
User that the Distributor has entitled to have access to the MEMOIR
Depth feed.
     Distributors must report each unique individual person who
receives access through multiple devices or multiple methods (e.g., a
single User has multiple passwords and user identifications) as one
User.
     If a Distributor entitles one or more individuals to use
the same device, the Distributor must include only the individuals, and
not the device, in the count. Thus, Distributors would not be required
to report User device counts associated with a User's display use of
the data feed.
    5. Enterprise Fee. Other than the Digital Media Enterprise Fee
described below, the Exchange is not proposing to adopt an Enterprise
Fee for the MEMOIR Depth feed at this time.
    6. Digital Media Enterprise Fee. As an alternative to User fees, a
recipient Firm may purchase a monthly Digital Media Enterprise license
to receive MEMOIR Depth for distribution to an unlimited number of
Users for viewing via television, websites, and mobile devices for
informational and non-trading purposes only. The Exchange proposes to
establish a fee of $5,000 per month for a Digital Media Enterprise
license to the MEMOIR Depth feed.
MEMOIR Top
    The MEMOIR Top feed is a MEMX-only market data feed that contains
top of book quotations based on equity orders entered into the System
as well as administrative messages.\13\ The Exchange proposes to charge
each of the fees set forth below for MEMOIR Top.
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    \13\ See MEMX Rule 13.8(b).
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    1. Internal Distribution Fee. For the receipt of access to the
MEMOIR Top feed, the Exchange proposes to charge $750 per month. This
proposed access fee would be charged to any data recipient that
receives a data feed of the MEMOIR Top feed for purposes of internal
distribution (i.e., an Internal Distributor). The proposed access fee
for internal distribution will be charged only once per month per Firm.
    2. External Distribution Fee. For redistribution of the MEMOIR Top
feed, the Exchange proposes to establish an access fee of $2,000 per
month. The proposed redistribution fee would be charged to any External
Distributor of the MEMOIR Top feed. The proposed access fee for
external distribution will be charged only once per month per Firm.
    3. Non-Display Use Fees. The Exchange does not propose to establish
non-display fees for usage by Trading Platforms or other Users with
respect to MEMOIR Top.
    4. User Fees. The Exchange proposes to charge a Professional User
Fee (per User) of $0.01 per month and a Non-Professional User Fee (per
User) of $0.01 per month. The proposed User fees would apply to each
person that has access to the MEMOIR Top feed that is provided by an
External Distributor for displayed usage. The Exchange does not propose
any per User fees for internal distribution of the MEMOIR Top feed.
Each External Distributor's count will include every individual that
accesses the data regardless of the purpose for which the individual
uses the data. External Distributors of the MEMOIR Top feed must report
all Professional and Non-Professional Users \14\ in accordance with the
following:
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    \14\ The Exchange notes that while it is not differentiating
Professional and Non-Professional Users based on fees (in that it is
proposing the same fee for such Users) for this data feed, and thus
will not audit Firms based on this distinction, it will request
reporting of each distinct category for informational purposes.
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     In connection with an External Distributor's distribution
of the MEMOIR Top feed, the Distributor must count as one User each
unique User that the Distributor has entitled to have access to the
MEMOIR Top feed.
     External Distributors must report each unique individual
person who receives access through multiple devices or multiple methods
(e.g., a single User has multiple passwords and user identifications)
as one User.
     If an External Distributor entitles one or more
individuals to use the same device, the Distributor must include only
the individuals, and not the device, in the count. Thus, Distributors
would not be required to report User device counts associated with a
User's display use of the data feed.
    5. Enterprise Fee. As an alternative to User fees, a recipient Firm
may purchase a monthly Enterprise license to receive MEMOIR Top for
distribution to an unlimited number of Professional and Non-
Professional Users. The Exchange proposes to establish a fee of $10,000
per month for an Enterprise license to the MEMOIR Top feed.
    6. Digital Media Enterprise Fee. As an alternative to User fees, a
recipient Firm may purchase a monthly Digital Media Enterprise license
to receive MEMOIR Top for distribution to an unlimited number of Users
for viewing via television, websites, and mobile devices for
informational and non-trading purposes only. The Exchange proposes to
establish a fee of $2,000 per month for a Digital Media Enterprise
license to the MEMOIR Top feed.
MEMOIR Last Sale
    The MEMOIR Last Sale feed is a MEMX-only market data feed that
contains only execution information based on equity orders entered into
the System as well as administrative messages.\15\ The Exchange
proposes to charge each of the fees set forth below for MEMOIR Last
Sale.
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    \15\ See MEMX Rule 13.8(c).
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    1. Internal Distribution Fee. For the receipt of access to the
MEMOIR Last Sale feed, the Exchange proposes to charge $500 per month.
This proposed access fee would be charged to any data recipient that
receives a data feed of the MEMOIR Last Sale feed for purposes of
internal distribution (i.e., an Internal Distributor). The proposed
access fee for internal distribution will be charged only once per
month per Firm.
    2. External Distribution Fee. For redistribution of the MEMOIR Last
Sale feed, the Exchange proposes to establish an access fee of $2,000
per month. The proposed redistribution fee would be charged to any
External Distributor of the MEMOIR Last Sale feed. The proposed access
fee for external distribution will be charged only once per month per
Firm.
    3. Non-Display Use Fees. The Exchange does not propose to establish
separate non-display fees for usage by Trading Platforms or other Users
with respect to MEMOIR Last Sale.
    4. User Fees. The Exchange proposes to charge a Professional User
Fee (per User) of $0.01 per month and a Non-Professional User Fee (per
User) of $0.01 per month. The proposed User fees would apply to each
person that has access to the MEMOIR Last Sale feed that is provided by
an External Distributor for displayed usage. The Exchange does not
propose any per User fees for internal distribution of the MEMOIR Last
Sale feed. Each External Distributor's count will include every
individual that accesses the data regardless of the purpose for which
the individual uses the data. External

Distributors of the MEMOIR Last Sale feed must report all Professional
and Non-Professional Users \16\ in accordance with the following:
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    \16\ See supra note 14.
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     In connection with an External Distributor's distribution
of the MEMOIR Last Sale feed, the Distributor must count as one User
each unique User that the Distributor has entitled to have access to
the MEMOIR Last Sale feed.
     External Distributors must report each unique individual
person who receives access through multiple devices or multiple methods
(e.g., a single User has multiple passwords and user identifications)
as one User.
     If an External Distributor entitles one or more
individuals to use the same device, the Distributor must include only
the individuals, and not the device, in the count. Thus, Distributors
would not be required to report User device counts associated with a
User's display use of the data feed.
    5. Enterprise Fee. As an alternative to User fees, a recipient Firm
may purchase a monthly Enterprise license to receive MEMOIR Last Sale
for distribution to an unlimited number of Professional and Non-
Professional Users. The Exchange proposes to establish a fee of $10,000
per month per Firm for an Enterprise license to the MEMOIR Last Sale
feed.
    6. Digital Media Enterprise Fee. As an alternative to User fees, a
recipient Firm may purchase a monthly Digital Media Enterprise license
to receive MEMOIR Last Sale for distribution to an unlimited number of
Users for viewing via television, websites, and mobile devices for
informational and non-trading purposes only. The Exchange proposes to
establish a fee of $2,000 per month per Firm for a Digital Media
Enterprise license to the MEMOIR Last Sale feed.
Additional Discussion--Background
    In two years, MEMX has grown from 0% to monthly market share
ranging between 3-4% of consolidated trading volume. During that same
period, the Exchange has had a steady increase in the number of
subscribers to Exchange Data Feeds. As a new entrant into the exchange
industry, the Exchange is particularly subject to competitive forces as
it works to attract new Members and trading volume and maintain
participation from existing participants. Until April of this year,
MEMX did not charge fees for market data provided by the Exchange. The
objective of this approach was to eliminate any fee-based barriers for
Members when MEMX launched as a national securities exchange in 2020,
which the Exchange believes has been helpful in its ability to attract
order flow as a new exchange. The Exchange also did not initially
charge for market data because MEMX believes that any exchange should
first deliver meaningful value to Members and other market participants
before charging fees for its products and services. As discussed more
fully below, the Exchange recently calculated its annual aggregate
costs for providing the Exchange Data Feeds at approximately $3
million. In order to establish fees that are designed to recover the
aggregate costs of providing the Exchange Data Feeds plus a reasonable
mark-up, the Exchange is proposing to modify its Fee Schedule, as
described above. In addition to the Cost Analysis, described below, the
Exchange believes that its proposed approach to market data fees is
reasonable based on a comparison to competitors.
Additional Discussion--Comparison With Other Exchanges
    The proposed fee structure is not novel but is instead comparable
to the fee structure currently in place for the equities exchanges
operated by Cboe Global Markets, Inc., in particular BZX.\17\ As noted
above, in January 2022, MEMX had 4.2% market share; for that same
month, BZX had 5.5% market share.\18\ The Exchange is proposing fees
for its Exchange Data Feeds that are similar in structure to BZX and
rates that are equal to, or in most cases lower, than the rates data
recipients pay for comparable data feeds from BZX.\19\ The Exchange
notes that other competitors maintain fees applicable to market data
that are considerably higher than those proposed by the Exchange,
including NYSE Arca \20\ and Nasdaq.\21\ However, the Exchange has
focused its comparison on BZX because it is the closest market in terms
of market share and offers market data at prices lower than several
other incumbent exchanges.\22\
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    \17\ See BZX Fee Schedule, available at: https://www.cboe.com/us/equities/membership/fee_schedule/bzx/.
    \18\ See Cboe Global Markets, U.S. Equities Market Volume
Summary, available at http://markets.cboe.com/us/equities/market_share/.
    \19\ The Exchange notes that although no fee proposed by the
Exchange is higher than the fee charged for BZX for a comparable
data product, under certain fact patterns a BZX data recipient could
pay a lower rate than that charged by the Exchange. For instance,
while the Exchange has proposed to adopt identical fees to those
charged for internal distribution of MEMOIR Top as compared to BZX
Top ($750 per month) and for internal distribution of MEMOIR Last
Sale as compared to BZX Last Sale ($500 per month), BZX permits a
data recipient who takes both feeds to pay only one fee and, upon
request, to receive the other data feed free of charge. See BZX Fee
Schedule, Market Data Fees, BZX Depth, available at: https://www.cboe.com/us/equities/membership/fee_schedule/bzx/. Because the
Exchange has not proposed such a discount, a data recipient taking
both MEMOIR TOP and MEMOIR Last Sale would pay more ($1,250 per
month) than they would to take comparable data feeds from BZX ($750
per month).
    \20\ Fees for the NYSE Arca Integrated Feed, which is the
comparable product to MEMOIR Depth, are $3,000 for access (internal
use) and $3,750 for redistribution (external distribution), compared
to the Exchange's proposed fees of $1,500 and $2,500, respectively.
In addition, for its Integrated Feed, NYSE Arca charges for three
different categories of non-display usage, each of which is $10,500
and each of which can be charged to the same firm more than one time
(e.g., a customer operating a Trading Platform would pay $10,500
compared to the Exchange's proposed fee of $4,000 but would also pay
for each Trading Platform, up to three, if they operate more than
one, instead of the single fee proposed by the Exchange; if that
customer also uses the data for the other categories of non-display
usage they would also pay $10,500 for each other category of usage,
whereas the Exchange would only charge $1,500 for any non-display
usage other than operating a Trading Platform). Finally, the NYSE
Arca Integrated Feed user fee for pro devices is $60 compared to the
proposed Professional User fee of $30 for MEMOIR Depth and the NYSE
Arca Integrated user fee for non-pro devices is $20 compared to the
proposed Non-Professional User fee of $3 for MEMOIR Depth. See NYSE
Proprietary Market Data Pricing list, available at: https://www.nyse.com/publicdocs/nyse/data/NYSE_Market_Data_Pricing.pdf.
    \21\ Fees for the Nasdaq TotalView data feed, which is the
comparable product to MEMOIR Depth, are $1,500 for access (internal
use) and $3,750 for redistribution (external distribution), compared
to the Exchange's proposed fees of $1,500 and $2,500, respectively.
In addition, for TotalView, Nasdaq charges Trading Platforms $5,000
compared to the Exchange's proposal of $4,000, and, like NYSE Arca,
charges customers per Trading Platform, up to three, if they operate
more than one, instead of the single fee proposed by the Exchange.
Nasdaq also requires users to report and pay usage fees for non-
display access at levels of from $375 per subscriber for smaller
firms with 39 or fewer subscribers to $75,000 per firm for a larger
firm with over 250 subscribers. The Exchange does not require
counting of devices or users for non-display purposes and instead
has proposed flat fee of $1,500 for non-display usage not by Trading
Platforms. Finally, the Nasdaq TotalView user fee for professional
subscribers is $76 compared to the proposed Professional User fee of
$30 for MEMOIR Depth and the Nasdaq TotalView user fee for non-
professional subscribers is $15 compared to the proposed Non-
Professional User fee of $3 for MEMOIR Depth. See Nasdaq Global Data
Products pricing list, available at: http://www.nasdaqtrader.com/TraderB.aspx?id=MDDPricingALLN.
    \22\ See supra notes 20-21.
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    The fees for the BZX Depth feed--which like the MEMOIR Depth feed,
includes top of book, depth of book, trades, and security status
messages--consist of an internal distributor access fee of $1,500 per
month (the same as the Exchange's proposed rate), an external
distributor access fee of $5,000 per month (two times the Exchange's
proposed rate), a non-display usage fee for non-Trading Platforms of
$2,000 per

month ($500 more than the Exchange's proposed rate), a non-display
usage fee for Trading Platforms of $5,000 per month ($1,000 more than
the Exchange's proposed rate), a Professional User fee (per User) of
$40 per month ($10 more than the Exchange's proposed rate), and a Non-
Professional User fee (per User) of $5 per month ($2 more than the
Exchange's proposed rate).\23\
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    \23\ See BZX Fee Schedule, Market Data Fees, BZX Depth,
available at: https://www.cboe.com/us/equities/membership/fee_schedule/bzx/. The Exchange notes that there are differences
between the structure of BZX Depth fees and the proposed fees for
MEMOIR Depth, including that the Exchange has proposed a Digital
Media Enterprise License for MEMOIR Depth but a comparable license
is not available from BZX. Additionally, BZX maintains a general
enterprise license for User fees, similar to that proposed by the
Exchange for MEMOIR Top and MEMOIR Last Sale, but the Exchange has
not proposed adding a general Enterprise license at this time.
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    The comparisons of the MEMOIR Last Sale feed and MEMOIR Top feed to
the BZX Last Sale feed and BZX Top feed, respectively, are similar in
that BZX generally maintains the same fee structure proposed by the
Exchange and BZX charges fees that are comparable to, but in most cases
higher than, the Exchange's proposed fees. Notably, the User fees
proposed by the Exchange for External Distributors of MEMOIR Last Sale
and MEMOIR Top ($0.01 for both Professional Users and Non-Professional
Users) are considerably lower than those charged by BZX for BZX Top and
BZX Last Sale ($4 for Professional Users and $0.10 for Non-Professional
Users).
    By charging the same low rate for all Users of MEMOIR Top and
MEMOIR Last Sale the Exchange believes it is proposing a structure that
is not only lower cost but that will also simplify reporting for
subscribers who externally distribute these data feeds to Users, as the
Exchange believes that categorization of Users as Professional and Non-
Professional is not meaningful for these products and requiring such
categorization would expose Firms to unnecessary audit risk of paying
more for mis-categorization. However, the Exchange does not believe
this is equally true for MEMOIR Depth, as most individual Users of
MEMOIR Depth are likely to be Professional Users and the Exchange has
proposed pricing for such Users that the Exchange believes is
reasonable given the value to Professional Users (i.e., since
Professional Users use data to participate in the markets as part of
their full-time profession and earn compensation based on their
employment). While the Exchange would prefer the simplicity of a single
fee, similar to that imposed for Professional Users and Non-
Professional Users of the MEMOIR Top and MEMOIR Last Sale feeds, as
that would reduce audit risk and simplify reporting, the proposed fee
for Professional Users of the MEMOIR Depth feed if also applied to Non-
Professional Users of such feed would be significantly higher than
other exchanges charge. The Exchange reiterates that it does not
anticipate many Non-Professional Users to subscribe to MEMOIR Depth. In
fact, the Exchange is only aware of a single Non-Professional User
(i.e., one User) that is reported to receive MEMOIR Depth.
Additional Discussion--Cost Analysis
    In general, the Exchange believes that exchanges, in setting fees
of all types, should meet very high standards of transparency to
demonstrate why each new fee or fee increase meets the Exchange Act
requirements that fees be reasonable, equitably allocated, not unfairly
discriminatory, and not create an undue burden on competition among
members and markets. In particular, the Exchange believes that each
exchange should take extra care to be able to demonstrate that these
fees are based on its costs and reasonable business needs. Accordingly,
in proposing to charge fees for market data, the Exchange has sought to
be especially diligent in assessing those fees in a transparent way
against its own aggregate costs of providing the related service, and
also carefully and transparently assessing the impact on Members--both
generally and in relation to other Members, i.e., to assure the fee
will not create a financial burden on any participant and will not have
an undue impact in particular on smaller Members and competition among
Members in general. The Exchange does not believe it needs to otherwise
address questions about market competition in the context of this
filing because the proposed fees are so clearly consistent with the Act
based on its Cost Analysis. The Exchange also believes that this level
of diligence and transparency is called for by the requirements of
Section 19(b)(1) under the Act,\24\ and Rule 19b-4 thereunder,\25\ with
respect to the types of information self-regulatory organizations
(``SROs'') should provide when filing fee changes, and Section 6(b) of
the Act,\26\ which requires, among other things, that exchange fees be
reasonable and equitably allocated,\27\ not designed to permit unfair
discrimination,\28\ and that they not impose a burden on competition
not necessary or appropriate in furtherance of the purposes of the
Act.\29\ This rule change proposal addresses those requirements, and
the analysis and data in this section are designed to clearly and
comprehensively show how they are met.\30\
---------------------------------------------------------------------------

    \24\ 15 U.S.C. 78s(b)(1).
    \25\ 17 CFR 240.19b-4.
    \26\ 15 U.S.C. 78f(b).
    \27\ 15 U.S.C. 78f(b)(4).
    \28\ 15 U.S.C. 78f(b)(5).
    \29\ 15 U.S.C. 78f(b)(8).
    \30\ In 2019, Commission staff published guidance suggesting the
types of information that SROs may use to demonstrate that their fee
filings comply with the standards of the Exchange Act (``Fee
Guidance''). While MEMX understands that the Fee Guidance does not
create new legal obligations on SROs, the Fee Guidance is consistent
with MEMX's view about the type and level of transparency that
exchanges should meet to demonstrate compliance with their existing
obligations when they seek to charge new fees. See Staff Guidance on
SRO Rule Filings Relating to Fees (May 21, 2019) available at
https://www.sec.gov/tm/staff-guidancesro-rule-filings-fees.
---------------------------------------------------------------------------

    As noted above, MEMX has conducted and recently updated a study of
its aggregate costs to produce the Exchange Data Feeds--the Cost
Analysis. The Cost Analysis required a detailed analysis of MEMX's
aggregate baseline costs, including a determination and allocation of
costs for core services provided by the Exchange--transactions, market
data, membership services, physical connectivity, and application
sessions (which provide order entry, cancellation and modification
functionality, risk functionality, ability to receive drop copies, and
other functionality). MEMX separately divided its costs between those
costs necessary to deliver each of these core services, including
infrastructure, software, human resources (i.e., personnel), and
certain general and administrative expenses (``cost drivers''). Next,
MEMX adopted an allocation methodology with various principles to guide
how much of a particular cost should be allocated to each core service.
For instance, fixed costs that are not driven by client activity (e.g.,
message rates), such as data center costs, were allocated more heavily
to the provision of physical connectivity (75%), with smaller
allocations to logical ports (2.6%), and the remainder to the provision
of transaction execution and market data services (22.4%). The
allocation methodology was decided through conversations with senior
management familiar with each area of the Exchange's operations. After
adopting this allocation methodology, the Exchange then applied an
estimated allocation of each cost driver to each core service,
resulting in the cost allocations described below.

    By allocating segmented costs to each core service, MEMX was able
to estimate by core service the potential margin it might earn based on
different fee models. The Exchange notes that as a non-listing venue it
has four primary sources of revenue that it can potentially use to fund
its operations: transaction fees, fees for connectivity services,
membership and regulatory fees, and market data fees. Accordingly, the
Exchange generally must cover its expenses from these four primary
sources of revenue.
    Through the Exchange's extensive Cost Analysis, which was again
recently updated to focus solely on the provision of the Exchange Data
Feeds, the Exchange analyzed every expense item in the Exchange's
general expense ledger to determine whether each such expense relates
to the provision of the Exchange Data Feeds, and, if such expense did
so relate, what portion (or percentage) of such expense actually
supports the provision of the Exchange Data Feeds, and thus bears a
relationship that is, ``in nature and closeness,'' directly related to
the Exchange Data Feeds. Based on its analysis, MEMX calculated its
aggregate annual costs for providing the Exchange Data Feeds, at
$3,014,348. This results in an estimated monthly cost for providing
Exchange Data Feeds of $251,196. In order to cover operating costs and
earn a reasonable profit on its market data, the Exchange has
determined it necessary to charge fees for its proprietary data
products, and, as such, the Exchange is proposing to modify its Fee
Schedule, pursuant to MEMX Rules 15.1(a) and (c), as set forth above.
Costs Related to Offering Exchange Data Feeds
    The following chart details the individual line-item (annual) costs
considered by MEMX to be related to offering the Exchange Data Feeds to
its Members and other customers as well as the percentage of the
Exchange's overall costs that such costs represent for such area (e.g.,
as set forth below, the Exchange allocated approximately 6.9% of its
overall Human Resources cost to offering Exchange Data Feeds).

------------------------------------------------------------------------
              Costs drivers                    Costs      Percent of all
------------------------------------------------------------------------
Human Resources.........................      $1,729,856             6.9
Network Infrastructure (e.g., servers,           232,452             8.8
 switches)..............................
Data Center.............................         318,456             9.8
Hardware and Software Licenses..........         246,864             9.8
Depreciation............................         399,911            18.0
Allocated Shared Expenses...............          86,809             1.8
    Total...............................       3,014,348             6.5
------------------------------------------------------------------------

Human Resources
    For personnel costs (Human Resources), MEMX calculated an
allocation of employee time for employees whose functions include
directly providing services necessary to offer the Exchange Data Feeds,
including performance thereof, as well as personnel with ancillary
functions related to establishing and providing such services (such as
information security and finance personnel). The Exchange notes that it
has fewer than seventy (70) employees and each department leader has
direct knowledge of the time spent by those spent by each employee with
respect to the various tasks necessary to operate the Exchange. The
estimates of Human Resources cost were therefore determined by
consulting with such department leaders, determining which employees
are involved in tasks related to providing the Exchange Data Feeds, and
confirming that the proposed allocations were reasonable based on an
understanding of the percentage of their time such employees devote to
tasks related to providing the Exchange Data Feeds. The Exchange notes
that senior level executives were allocated Human Resources costs to
the extent the Exchange believed they are involved in overseeing tasks
related to providing the Exchange Data Feeds. The Exchange's cost
allocation for employees who perform work in support of generating and
disseminating the Exchange Data Feeds arrive at a full time equivalent
(``FTE'') of 5.2 FTEs. The Human Resources cost was calculated using a
blended rate of compensation reflecting salary, equity and bonus
compensation, benefits, payroll taxes, and 401(k) matching
contributions.
Network Infrastructure
    The Network Infrastructure cost includes cabling and switches
required to generate and disseminate the Exchange Data Feeds. The
Network Infrastructure cost was narrowly estimated by focusing on the
servers used at the Exchange's primary and back-up data centers
specifically for the Exchange Data Feeds. Further, as certain servers
are only partially utilized to generate and disseminate the Exchange
Data Feeds, only the percentage of such servers devoted to generating
and disseminating the Exchange Data Feeds was included (i.e., the
capacity of such servers allocated to the Exchange Data Feeds). From
this analysis, the Exchange determined that 9.8% of its servers are
used to generate and disseminate the Exchange Data Feeds. When combined
with the applicable switches used for Exchange Data Feeds, the Exchange
has determined that approximately 8.8% of its overall Network
Infrastructure costs are attributable to the Exchange Data Feeds.
Data Center
    Data Center costs includes an allocation of the costs the Exchange
incurs to provide the Exchange Data Feeds in the third-party data
centers where the Exchange maintains its equipment as well as related
costs (the Exchange does not own the Primary Data Center or the
Secondary Data Center, but instead, leases space in data centers
operated by third parties). As the Data Center costs are primarily for
space, power, and cooling of servers, the Exchange applied the same
percentage calculated above with respect to servers, i.e., 9.8%, to
allocate the applicable Data Center costs for the Exchange Data Feeds.
The Exchange believes it is reasonable to apply the same proportionate
percentage of Data Center costs to that of Network Infrastructure.
Hardware and Software Licenses
    Hardware and Software Licenses includes hardware and software
licenses used to operate and monitor physical assets necessary to offer
the Exchange Data Feeds. Because the hardware and software license fees
are correlated to the servers used by the Exchange, the Exchange again
applied an allocation of 9.8% of its costs for Hardware and Software
Licenses to the Exchange Data Feeds.

Depreciation
    The Exchange included Depreciation cost related to depreciated
software used to generate and disseminate the Exchange Data Feeds. The
Exchange also included in the Depreciation costs certain budgeted
improvements that the Exchange intends to capitalize and depreciate
with respect to the Exchange Data Feeds in the near-term. As with the
other allocated costs in the Exchange's updated Cost Analysis, the
Depreciation cost was therefore narrowly tailored to depreciation
related to the Exchange Data Feeds.
Allocated Shared Expenses
    Finally, certain general shared expenses were allocated to the
Exchange Data Feeds. However, contrary to its prior cost analysis,
rather than taking the whole amount of general shared expenses and
applying an allocated percentage, the Exchange has narrowly selected
specific general shared expenses relevant to the Exchange Data Feeds.
The costs included in general shared expenses allocated to the Exchange
Data Feeds include office space and office expenses (e.g., occupancy
and overhead expenses), utilities, recruiting and training, marketing
and advertising costs, professional fees for legal, tax and accounting
services (including external and internal audit expenses), and
telecommunications costs. The cost of paying individuals to serve on
the Exchange's Board of Directors or any committee was not allocated to
providing Exchange Data Feeds.
Cost Analysis--Additional Discussion
    In conducting its Cost Analysis, the Exchange did not allocate any
of its expenses in full to any core service and did not double-count
any expenses. Instead, as described above, the Exchange identified and
allocated applicable cost drivers across its core services and used the
same approach to analyzing costs to form the basis of a separate
proposal to adopt fees for connectivity services (the ``Connectivity
Filing'') \31\ and this filing proposing fees for Exchange Data Feeds.
Thus, the Exchange's allocations of cost across core services were
based on real costs of operating the Exchange and were not double-
counted across the core services or their associated revenue streams.
---------------------------------------------------------------------------

    \31\ See SR-MEMX-2022-26, filed September 15, 2022, available
at: https://info.memxtrading.com/rules-and-filings/.
---------------------------------------------------------------------------

    The Exchange anticipates that the proposed fees for Exchange Data
Feeds will generate approximately $262,500 monthly ($3,150,000
annually) based on billing and reporting that has taken place since the
Exchange commenced billing for such data feeds. The proposed fees for
Exchange Data Feeds are designed to permit the Exchange to cover the
costs allocated to providing Exchange Data Feeds with a mark-up that
the Exchange believes is modest (approximately 4%), which the Exchange
believes is fair and reasonable after taking into account the costs
related to creating, generating, and disseminating the Exchange Data
Feeds that the Exchange has previously borne completely on its own and
help fund future expenditures (increased costs, improvements, etc.).
The Exchange also reiterates that prior to April of this year the
Exchange has not previously charged any fees for Exchange Data Feeds
and its allocation of costs to Exchange Data Feeds was part of a
holistic allocation that also allocated costs to other core services
without double-counting any expenses.
    The Exchange like other exchanges is, after all, a for-profit
business. Accordingly, while the Exchange believes in transparency
around costs and potential margins, as well as periodic review of
revenues and applicable costs (as discussed below), the Exchange does
not believe that these estimates should form the sole basis of whether
or not a proposed fee is reasonable or can be adopted. Instead, the
Exchange believes that the information should be used solely to confirm
that an Exchange is not earning supra-competitive profits, and the
Exchange believes its Cost Analysis and related projections demonstrate
this fact.
    As a general matter, the Exchange believes that its costs will
remain relatively similar in future years. It is possible however that
such costs will either decrease or increase. To the extent the Exchange
sees growth in use of Exchange Data Feeds it will receive additional
revenue to offset future cost increases. However, if use of Exchange
Data Feeds is static or decreases, the Exchange might not realize the
revenue that it anticipates or needs in order to cover applicable
costs. Accordingly, the Exchange is committing to conduct a one-year
review after implementation of these fees. The Exchange expects that it
may propose to adjust fees at that time, to increase fees in the event
that revenues fail to cover costs and a reasonable mark-up of such
costs.\32\ Similarly, the Exchange expects that it would propose to
decrease fees in the event that revenue materially exceeds current
projections. In addition, the Exchange will periodically conduct a
review to inform its decision making on whether a fee change is
appropriate (e.g., to monitor for costs increasing/decreasing or
subscribers increasing/decreasing, etc. in ways that suggest the then-
current fees are becoming dislocated from the prior cost-based
analysis) and expects that it would propose to increase fees in the
event that revenues fail to cover its costs and a reasonable mark-up,
or decrease fees in the event that revenue or the mark-up materially
exceeds current projections. In the event that the Exchange determines
to propose a fee change, the results of a timely review, including an
updated cost estimate, will be included in the rule filing proposing
the fee change. More generally, the Exchange believes that it is
appropriate for an exchange to refresh and update information about its
relevant costs and revenues in seeking any future changes to fees, and
the Exchange commits to do so.
---------------------------------------------------------------------------

    \32\ The Exchange notes that it does not believe that a 4% mark-
up is necessarily competitive, and instead that this is likely
significantly below the mark-up many businesses place on their
products and services.
---------------------------------------------------------------------------

2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with the provisions of Section 6(b) \33\ of the Act in general, and
furthers the objectives of Section 6(b)(4) \34\ of the Act, in
particular, in that it is designed to provide for the equitable
allocation of reasonable dues, fees and other charges among its Members
and other persons using its facilities. Additionally, the Exchange
believes that the proposed fees are consistent with the objectives of
Section 6(b)(5) \35\ of the Act in that they are designed 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 a free and open market and
national market system, and, in general, to protect investors and the
public interest, and, particularly, are not designed to permit unfair
discrimination between customers, issuers, brokers, or dealers.
---------------------------------------------------------------------------

    \33\ 15 U.S.C. 78f.
    \34\ 15 U.S.C. 78f(b)(4).
    \35\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Exchange notes prior to addressing the specific reasons the
Exchange believes the proposed fees and fee structure are reasonable,
equitably allocated and not unreasonably discriminatory, that the
proposed definitions and fee structure described above are consistent
with the

definitions and fee structure used by most U.S. securities exchanges,
and Cboe BZX in particular. As such, the Exchange believes it is
adopting a model that is easily understood by Members and non-Members,
most of which also subscribe to market data products from other
exchanges. For this reason, the Exchange believes that the proposed
definitions and fee structure described above are consistent with the
Act generally, and Section 6(b)(5) \36\ of the Act in particular.
---------------------------------------------------------------------------

    \36\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    As noted above, the Exchange's executed trading volume has grown
from 0% market share to approximately 3-4% market share in less than
two years and the Exchange believes that it is reasonable to begin
charging fees for the Exchange Data Feeds. One of the primary
objectives of MEMX is to provide competition and to reduce fixed costs
imposed upon the industry. Consistent with this objective, the Exchange
believes that this proposal reflects a simple, competitive, reasonable,
and equitable pricing structure, with fees that are discounted when
compared to comparable data products and services offered by
competitors.\37\
---------------------------------------------------------------------------

    \37\ See supra notes 20-21; see supra note 23 and accompanying
text.
---------------------------------------------------------------------------

Reasonableness
    Overall. With regard to reasonableness, the Exchange understands
that the Commission has traditionally taken a market-based approach to
examine whether the SRO making the fee proposal was subject to
significant competitive forces in setting the terms of the proposal.
The Exchange understands that in general the analysis considers whether
the SRO has demonstrated in its filing that (i) there are reasonable
substitutes for the product or service; (ii) ``platform'' competition
constrains the ability to set the fee; and/or (iii) revenue and cost
analysis shows the fee would not result in the SRO taking
supracompetitive profits. If the SRO demonstrates that the fee is
subject to significant competitive forces, the Exchange understands
that in general the analysis will next consider whether there is any
substantial countervailing basis to suggest the fee's terms fail to
meet one or more standards under the Exchange Act. The Exchange further
understands that if the filing fails to demonstrate that the fee is
constrained by competitive forces, the SRO must provide a substantial
basis, other than competition, to show that it is consistent with the
Exchange Act, which may include production of relevant revenue and cost
data pertaining to the product or service.
    The Exchange has not determined its proposed overall market data
fees based on assumptions about market competition, instead relying
upon a cost-plus model to determine a reasonable fee structure that is
informed by the Exchange's understanding of different uses of the
products by different types of participants. In this context, the
Exchange believes the proposed fees overall are fair and reasonable as
a form of cost recovery plus the possibility of a reasonable return for
Exchange's aggregate costs of offering the Exchange Data Feeds. The
Exchange believes the proposed fees are reasonable because they are
designed to generate annual revenue to recoup some or all of Exchange's
annual costs of providing market data with a reasonable mark-up. As
discussed in the Purpose section, the Exchange estimates this fee
filing will result in annual revenue of approximately $3.15 million,
representing a potential mark-up of just 4% over the cost of providing
market data. Accordingly, the Exchange believes that this fee
methodology is reasonable because it allows the Exchange to recoup some
or all of its expenses for providing market data products (with any
additional revenue representing no more than what the Exchange believes
to be a reasonable rate of return). The Exchange also believes that the
proposed fees are reasonable because they are significantly less than
the fees charged by competing equities exchanges for comparable market
data products, notwithstanding that the competing exchanges may have
different system architectures that may result in different cost
structures for the provision of market data.
    The Exchange believes the proposed fees for the Exchange Data Feeds
are reasonable when compared to fees for comparable products, such as
the BZX Depth feed, BZX Top feed, and BZX Last Sale feed, compared to
which the Exchange's proposed fees are generally lower, as well as
other comparable data feeds priced significantly higher than the
Exchange's proposed fees for the Exchange Data Feeds.\38\ Specifically
with respect to the MEMOIR Depth feed, the Exchange believes that the
proposed fees for such feed are reasonable because they represent not
only the value of the data available from the MEMOIR Top and MEMOIR
Last Sale data feeds, which have lower proposed fees, but also the
value of receiving the depth-of-book data on an order-by-order basis.
The Exchange believes it is reasonable to have pricing based, in part,
upon the amount of information contained in each data feed and the
value of that information to market participants. The MEMOIR Top and
Last Sale data feeds, as described above, can be utilized to trade on
the Exchange but contain less information than that is available on the
MEMOIR Depth feed (i.e., even for a subscriber who takes both feeds,
such feeds do not contain depth-of-book information). Thus, the
Exchange believes it reasonable for the products to be priced as
proposed, with MEMOIR Last Sale having the lowest price, MEMOIR Top the
next lowest price, and MEMOIR Depth the highest price (and more than
MEMOIR Last Sale and MEMOIR Top combined).
---------------------------------------------------------------------------

    \38\ See supra notes 20-21; see supra note 23 and accompanying
text.
---------------------------------------------------------------------------

    Internal Distribution Fees. The Exchange believes that it is
reasonable to charge.
    Fees to access the Exchange Data Feeds for Internal Distribution
because of the value of such data to subscribers in their profit-
generating activities. The Exchange also believes that the proposed
monthly Internal Distribution fees for MEMOIR Depth, MEMOIR Top, and
MEMOIR Last Sale are reasonable as they are the same amounts charged by
at least one other exchange of comparable size for comparable data
products,\39\ and are lower than the fees charged by several other
exchanges for comparable data products.\40\
---------------------------------------------------------------------------

    \39\ See BZX Fee Schedule available at https://www.cboe.com/us/equities/membership/fee_schedule/bzx/.
    \40\ See NYSE Proprietary Market Data Pricing list, available
at: https://www.nyse.com/publicdocs/nyse/data/NYSE_Market_Data_Pricing.pdf; Nasdaq Global Data Products pricing
list, available at: http://www.nasdaqtrader.com/TraderB.aspx?id=MDDPricingALLN.
---------------------------------------------------------------------------

    External Distribution Fees. The Exchange believes that it is
reasonable to charge External Distribution fees for the Exchange Data
Feeds because vendors receive value from redistributing the data in
their business products provided to their customers. The Exchange
believes that charging External Distribution fees is reasonable because
the vendors that would be charged such fees profit by re-transmitting
the Exchange's market data to their customers. These fees would be
charged only once per month to each vendor account that redistributes
any Exchange Data Feed, regardless of the number of customers to which
that vendor redistributes the data. The Exchange also believes the
proposed monthly External Distribution fee for the MEMOIR Depth Feed is
reasonable because it is half the amount of the fee

charged by at least one other exchange of comparable size for a
comparable data product,\41\ and significantly less than the amount
charged by several other exchanges for comparable data products.\42\
Similarly, the Exchange believes the proposed monthly External
Distribution fees for the MEMOIR TOP and MEMOIR Last Sale feeds are
reasonable because they are discounted compared to same amounts charged
by at least one other exchange of comparable size for comparable data
products, and significantly less than the amount charged by several
other exchanges for comparable data products.\43\
---------------------------------------------------------------------------

    \41\ See BZX Fee Schedule available at https://www.cboe.com/us/equities/membership/fee_schedule/bzx/.
    \42\ See id.
    \43\ See NYSE Proprietary Market Data Pricing list, available
at: https://www.nyse.com/publicdocs/nyse/data/NYSE_Market_Data_Pricing.pdf; Nasdaq Global Data Products pricing
list, available at: http://www.nasdaqtrader.com/TraderB.aspx?id=MDDPricingALLN.
---------------------------------------------------------------------------

    User Fees. The Exchange believes that having separate Professional
and Non-Professional User fees for the MEMOIR Depth feed is reasonable
because it will make the product more affordable and result in greater
availability to Professional and Non-Professional Users. Setting a
modest Non-Professional User fee is reasonable because it provides an
additional method for Non-Professional Users to access the Exchange
Data Feeds by providing the same data that is available to Professional
Users. The proposed monthly Professional User fee and monthly Non-
Professional User fee are reasonable because they are lower than the
fees charged by at least one other exchange of comparable size for
comparable data products,\44\ and significantly less than the amounts
charged by several other exchanges for comparable data products.\45\
The Exchange also believes it is reasonable to charge the same low per
User fee of $0.01 for both Professional Users and Non-Professional
Users receiving the MEMOIR Top and MEMOIR Last Sale feeds, as this is
not only pricing such data at a much lower cost than other exchanges
charge for comparable data feeds \46\ but doing so will also simplify
reporting for subscribers who externally distribute these data feeds to
Users, as the Exchange believes that categorization of Users as
Professional and Non-Professional is not meaningful for these products
and that requiring such categorization would expose Firms to
unnecessary audit risk of paying more for mis-categorization. The
Exchange also believes that the proposal to require reporting of
individual Users, but not devices, is reasonable as this too will
eliminate unnecessary audit risk that can arise when recipients are
required to apply complex counting rules such as whether or not to
count devices or whether an individual accessing the same data through
multiple devices should be counted once or multiple times.
---------------------------------------------------------------------------

    \44\ See BZX Fee Schedule, available at: https://www.cboe.com/us/equities/membership/fee_schedule/bzx/.
    \45\ See NYSE Proprietary Market Data Pricing list, available
at: https://www.nyse.com/publicdocs/nyse/data/NYSE_Market_Data_Pricing.pdf; Nasdaq Global Data Products pricing
list, available at: http://www.nasdaqtrader.com/TraderB.aspx?id=MDDPricingALLN.
    \46\ See id.
---------------------------------------------------------------------------

    The Exchange further believes that its proposal to adopt a Digital
Media Enterprise Fee for each of the Exchange Data Feeds is reasonable
because it would allow a market participant that wishes to disseminate
information from the Exchange Data Feeds through a digital media
platform such as a public website without determining the number of
Users, which would be practically impossible. The Exchange further
believes it is reasonable for the Digital Media Enterprise Fee to be
higher for MEMOIR Depth than MEMOIR Top or MEMOIR Last Sale because of
the additional information that is contained in MEMOIR Depth, and in
turn, the potential additional value to data recipients.
    The Exchange also believes it is reasonable to adopt an Enterprise
Fee for MEMOIR Top and MEMOIR Last Sale because this would allow a
market participant to disseminate such data feeds to an unlimited
number of Users without the necessity of counting such Users. As this
is an optional subscription, a data recipient is able to determine
whether it prefers to count Users and report such Users to the Exchange
or not, and also whether it is more economically advantageous to count
and pay for specific Users or to subscribe to the Enterprise Fee. The
Exchange also notes that given the low cost proposed per User, only a
market participant with a substantial number of Users would likely
choose to subscribe for and pay the Enterprise Fee.
    Non-Display Use Fees. The Exchange believes the proposed Non-
Display Usage fees for the MEMOIR Depth feed are reasonable, because
they reflect the value of the data to the data recipients in their
profit-generating activities and do not impose the burden of counting
non-display devices.
    The Exchange believes that the proposed Non-Display Usage fees
reflect the significant value of the non-display data use to data
recipients, which purchase such data on an entirely voluntary basis.
Non-display data can be used by data recipients for a wide variety of
profit-generating purposes, including proprietary and agency trading
and smart order routing, as well as by data recipients that operate
Trading Platforms that compete directly with the Exchange for order
flow. The data also can be used for a variety of non-trading purposes
that indirectly support trading, such as risk management and
compliance. Although some of these non-trading uses do not directly
generate revenues, they can nonetheless substantially reduce a
recipient's costs by automating such functions so that they can be
carried out in a more efficient and accurate manner and reduce errors
and labor costs, thereby benefiting recipients. The Exchange believes
that charging for non-trading uses is reasonable because data
recipients can derive substantial value from such uses, for example, by
automating tasks so that can be performed more quickly and accurately
and less expensively than if they were performed manually.
    Previously, the non-display use data pricing policies of many
exchanges required customers to count, and the exchanges to audit the
count of, the number of non-display devices used by a customer. As non-
display use grew more prevalent and varied, however, exchanges received
an increasing number of complaints about the impracticality and
administrative burden associated with that approach. In response,
several exchanges developed a non-display use pricing structure that
does not require non-display devices to be counted or those counts to
be audited, and instead categorizes different types of use. The
Exchange proposes to distinguish between non-display use for the
operation of a Trading Platform and other non-display use, which is
similar to exchanges such as BZX and EDGX,\47\ while other exchanges
maintain additional categories and in many cases charge multiple times
for different types of non-display use or the operation of multiple
Trading Platforms.\48\
---------------------------------------------------------------------------

    \47\ See BZX Fee Schedule, available at: https://www.cboe.com/us/equities/membership/fee_schedule/bzx/; EDGX Fee Schedule,
available at: https://www.cboe.com/us/equities/membership/fee_schedule/edgx/.
    \48\ See supra notes 20-21.
---------------------------------------------------------------------------

    The Exchange believes that it is reasonable to segment the fee for
non-display use into these two categories. As noted above, the uses to
which customers can put the MEMOIR Depth feed are numerous and varied,
and the Exchange believes that charging

separate fees for these separate categories of use is reasonable
because it reflects the actual value the customer derives from the
data, based upon how the customer makes use of the data.
    The Exchange believes that the proposed fees for non-display use
other than operation of a Trading Platform is reasonable. These fees
are comparable to, and lower than, the fees charged by at least one
other exchange of comparable size for a comparable data product,\49\
and significantly less than the amounts charged by several other
exchanges for comparable data products.\50\ The Exchange believes that
the proposed fees directly and appropriately reflect the significant
value of using data on a non-display basis in a wide range of computer-
automated functions relating to both trading and non-trading activities
and that the number and range of these functions continue to grow
through innovation and technology developments. Further, in contrast to
non-display use for operation of a Trading Platform, discussed below,
the Exchange benefits from and wants to encourage other non-display use
by market participants (including the fact that the Exchange receives
orders resulting from algorithms and routers as well as more broadly
beneficial uses such as risk management and compliance).
---------------------------------------------------------------------------

    \49\ See BZX Fee Schedule, available at: https://www.cboe.com/us/equities/membership/fee_schedule/bzx/.
    \50\ See NYSE Proprietary Market Data Pricing list, available
at: https://www.nyse.com/publicdocs/nyse/data/NYSE_Market_Data_Pricing.pdf; Nasdaq Global Data Products pricing
list, available at: http://www.nasdaqtrader.com/TraderB.aspx?id=MDDPricingALLN.
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    The Exchange also believes, regarding non-display use for operation
of a Trading Platform, it is reasonable to charge a higher monthly fee
than for other non-display use because such use of the Exchange's data
is directly in competition with the Exchange and the Exchange should be
permitted to recoup some of its lost trading revenue by charging for
the data that makes such competition possible. The Exchange also
believes that it is reasonable to charge the proposed fees for non-
display use for operation of a Trading Platform because the proposed
fees are comparable to, and lower than, the fees charged at least one
other exchange of comparable size for a comparable data product,\51\
and significantly less than the amounts charged by several other
exchanges for comparable data products, which also charge per Trading
Platform operated by a data subscriber subject to a cap in most cases,
rather than charging per Firm, as proposed by the Exchange.\52\
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    \51\ See BZX Fee Schedule, available at: https://www.cboe.com/us/equities/membership/fee_schedule/bzx/.
    \52\ See supra notes 20-21.
---------------------------------------------------------------------------

    The proposed Non-Display Usage fees for the MEMOIR Depth feed are
also reasonable because they take into account the extra value of
receiving the data for Non-Display Usage that includes a rich set of
information including top of book quotations, depth-of-book quotations,
executions and other information. The Exchange believes that the
proposed fees directly and appropriately reflect the significant value
of using the MEMOIR Depth feed on a non-display basis in a wide range
of computer-automated functions relating to both trading and non-
trading activities and that the number and range of these functions
continue to grow through innovation and technology developments.\53\
For the same reasons, the Exchange believes it is reasonable to provide
other data feeds, namely MEMOIR Top and MEMOIR Last Sale, free of
charge for Non-Display Usage. The Exchange does not believe that either
MEMOIR Top or MEMOIR Last Sale has the same value to market
participants with respect to non-display usage as MEMOIR Depth, as
neither of MEMOIR Top or MEMOIR Last Sale contains the amount of
information that the Exchange expects market participants need for
typical trading and non-trading non-display applications.
---------------------------------------------------------------------------

    \53\ See also Exchange Act Release No. 69157, March 18, 2013, 78
FR 17946, 17949 (March 25, 2013) (SR-CTA/CQ-2013-01) (``[D]ata feeds
have become more valuable, as recipients now use them to perform a
far larger array of non-display functions. Some firms even base
their business models on the incorporation of data feeds into black
boxes and application programming interfaces that apply trading
algorithms to the data, but that do not require widespread data
access by the firm's employees. As a result, these firms pay little
for data usage beyond access fees, yet their data access and usage
is critical to their businesses.''
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    For all of the foregoing reasons, the Exchange believes that the
proposed fees for the Exchange Data Feeds are reasonable.
Equitable Allocation and Non-Discrimination
    Overall. The Exchange believes that its proposed fees are
reasonable, fair, and equitable, and not unfairly discriminatory
because they are designed to align fees with services provided. For the
foregoing reasons, the Exchange believes that the proposed fees are
reasonable, equitably allocated, and not unfairly discriminatory. The
Exchange believes the proposed fees for the Exchange Data Feeds are
allocated fairly and equitably among the various categories of users of
the feeds, and any differences among categories of users are justified
and appropriate.
    The Exchange believes that the proposed fees are equitably
allocated because they will apply uniformly to all data recipients that
choose to subscribe to the Exchange Data Feeds. Any subscriber or
vendor that chooses to subscribe to one or more Exchange Data Feeds is
subject to the same Fee Schedule, regardless of what type of business
they operate, and the decision to subscribe to one or more Exchange
Data Feeds is based on objective differences in usage of Exchange Data
Feeds among different Firms, which are still ultimately in the control
of any particular Firm. The Exchange believes the proposed pricing
between Exchange Data Feeds is equitably allocated because it is based,
in part, upon the amount of information contained in each data feed and
the value of that information to market participants. The MEMOIR Top
and Last Sale data feeds, as described above, can be utilized to trade
on the Exchange but contain less information than that is available on
the MEMOIR Depth feed (i.e., even for a subscriber who takes both
feeds, such feeds do not contain depth-of-book information). Thus, the
Exchange believes it is an equitable allocation of fees for the
products to be priced as proposed, with MEMOIR Last Sale having the
lowest price, MEMOIR Top the next lowest price, and MEMOIR Depth the
highest price (and more than MEMOIR Last Sale and MEMOIR Top combined).
    Internal Distribution Fee. The Exchange believes the proposed
monthly fees for Internal Distribution of the Exchange Data Feeds are
equitably allocated because they would be charged on an equal basis to
all data recipients that receive the Exchange Data Feeds for internal
distribution, regardless of what type of business they operate.
    External Distribution Fees. The Exchange believes the proposed
monthly fees for External Distribution of the Exchange Data Feeds are
equitably allocated because they would be charged on an equal basis to
all data recipients that receive the Exchange Data Feeds that choose to
redistribute the feeds externally. The Exchange also believes that the
proposed monthly fees for External Distribution are equitably allocated
when compared to lower proposed fees for Internal Distribution because
data recipients that are externally distributing Exchange Data Feeds
are able to monetize such distribution and spread such costs amongst
multiple third party data

recipients, whereas the Internal Distribution fee is applicable to use
by a single data recipient (and its affiliates).
    User Fees. The Exchange believes that the fee structure
differentiating Professional User fees from Non-Professional User fees
for display use of the MEMOIR Depth feed is equitable. This structure
has long been used by other exchanges and the SIPs to reduce the price
of data to Non-Professional Users and make it more broadly
available.\54\ Offering the MEMOIR Depth feed to Non-Professional Users
at a lower cost than Professional Users results in greater equity among
data recipients, as Professional Users are categorized as such based on
their employment and participation in financial markets, and thus, are
compensated to participate in the markets. While Non-Professional Users
too can receive significant financial benefits through their
participation in the markets, the Exchange believes it is reasonable to
charge more to those Users who are more directly engaged in the
markets. The Exchange also believes it may be unreasonable to charge a
Non-Professional User the same fee that it has proposed for
Professional Users, as this fee would be higher than any other U.S.
equities exchange charges to Non-Professional Users for receipt of a
comparable data product. These User fees would be charged uniformly to
all individuals that have access to the MEMOIR Depth feed based on the
category of User. The Exchange also believes the proposed User fees for
MEMOIR Top and MEMOIR Last Sale are equitable because the Exchange has
proposed to charge Professional Users and Non-Professional Users the
same low rate of $0.01 per month.
---------------------------------------------------------------------------

    \54\ See, e.g., Securities Exchange Act Release No. 59544 (March
9, 2009), 74 FR 11162 (March 16, 2009) (SR-NYSE-2008-131)
(establishing the $15 Non-Professional User Fee (Per User) for NYSE
OpenBook); Securities Exchange Act Release No. 20002, File No. S7-
433 (July 22, 1983), 48 FR 34552 (July 29, 1983) (establishing Non-
Professional fees for CTA data); NASDAQ BX Equity 7 Pricing
Schedule, Section 123.
---------------------------------------------------------------------------

    The Exchange further believes that its proposal to adopt a Digital
Media Enterprise Fee for each of the Exchange Data Feeds is equitable
because it would allow a market participant that wishes to disseminate
information from the Exchange Data Feeds through a digital media
platform such as a public website without determining the number of
Users, which would be practically impossible. The Exchange further
believes it is equitable for the Digital Media Enterprise Fee to be
higher for MEMOIR Depth than MEMOIR Top or MEMOIR Last Sale because of
the additional information that is contained in MEMOIR Depth, and in
turn, the potential additional value to data recipients.
    The Exchange also believes it is equitable to adopt an Enterprise
Fee for MEMOIR Top and MEMOIR Last Sale because this would allow a
market participant to disseminate such data feeds to an unlimited
number of Users without the necessity of counting such Users. As this
is an optional subscription, a data recipient is able to determine
whether it prefers to count Users and report such Users to the Exchange
or not, and also whether it is more economically advantageous to count
and pay for specific Users or to subscribe to the Enterprise Fee.
    Non-Display Use Fees. The Exchange believes the proposed Non-
Display Usage fees are equitably allocated because they would require
subscribers to pay fees only for the uses they actually make of the
data. As noted above, non-display data can be used by data recipients
for a wide variety of profit-generating purposes (including trading and
order routing) as well as purposes that do not directly generate
revenues (such as risk management and compliance) but nonetheless
substantially reduce the recipient's costs by automating certain
functions. The Exchange believes that it is equitable to charge non-
display data subscribers that use data for purposes other than
operation of a Trading Platform as proposed because all such
subscribers would have the ability to use such data for as many non-
display uses as they wish for one low fee. As noted above, this
structure is comparable to that in place for the BZX Depth feed but
several other exchanges charge multiple non-display fees to the same
client to the extent they use a data feed in several different trading
platforms or for several types of non-display use.\55\
---------------------------------------------------------------------------

    \55\ See supra notes 20-21.
---------------------------------------------------------------------------

    The Exchange also believes, regarding non-display use for operation
of a Trading Platform, it is equitable to charge a higher rate for each
Firm operating a Trading Platform (as compared to other Non-Display
Usage not by Trading Platforms) because such use of the data is
directly in competition with the Exchange and the Exchange should be
permitted to recoup some of its lost trading revenue by charging for
the data that makes such competition possible. Further, in contrast to
non-display use for operation of a Trading Platform, the Exchange
benefits from and wants to encourage other non-display use by market
participants (including the fact that the Exchange receives orders
resulting from algorithms and routers as well as more broadly
beneficial uses such as risk management and compliance). The Exchange
believes that it is equitable to charge a single fee per Firm rather
than multiple fees for a Firm that operates more than one Trading
Platform because operators of Trading Platforms are many times viewed
as a single competing venue or group, even if there are multiple
liquidity pools operated by the same competitor.
    For all of the foregoing reasons, the Exchange believes that the
proposed fees for the Exchange Data Feeds are equitably allocated.
The Proposed Fees Are Not Unfairly Discriminatory
    The Exchange believes the proposed fees for the Exchange Data Feeds
are not unfairly discriminatory because any differences in the
application of the fees are based on meaningful distinctions between
customers, and those meaningful distinctions are not unfairly
discriminatory between customers.
    Overall. The Exchange believes that the proposed fees are not
unfairly discriminatory because they would apply to all data recipients
that choose to subscribe to the same Exchange Data Feed(s). Any vendor
or subscriber that chooses to subscribe to the Exchange Data Feeds is
subject to the same Fee Schedule, regardless of what type of business
they operate. Because the proposed fees for MEMOIR Depth are higher,
vendors and subscribers seeking lower cost options may instead choose
to receive data from the SIPs or through the MEMOIR Top and/or MEMOIR
Last Sale feed for a lower cost. Alternatively, vendors and subscribers
can choose to pay for the MEMOIR Depth feed in order to receive data in
a single feed with depth-of-book information if such information is
valuable to such vendors or subscribers. The Exchange notes that
vendors or subscribers can also choose to subscribe to a combination of
data feeds for redundancy purposes or to use different feeds for
different purposes. In sum, each vendor or subscriber has the ability
to choose the best business solution for itself. The Exchange does not
believe it is unfairly discriminatory to base pricing upon the amount
of information contained in each data feed and the value of that
information to market participants. As described above, the MEMOIR Top
and Last Sale data feeds, can be utilized to trade on the Exchange but
contain less information than that is available on the MEMOIR Depth
feed (i.e., even for a subscriber who takes both feeds, such feeds do
not contain depth-of-book information).

Thus, the Exchange believes it is not unfairly discriminatory for the
products to be priced as proposed, with MEMOIR Last Sale having the
lowest price, MEMOIR Top the next lowest price, and MEMOIR Depth the
highest price (and more than MEMOIR Last Sale and MEMOIR Top combined).
    Internal Distribution Fees. The Exchange believes the proposed
monthly fees for Internal Distribution of the Exchange Data Feeds are
not unfairly discriminatory because they would be charged on an equal
basis to all data recipients that receive the same Exchange Data
Feed(s) for internal distribution, regardless of what type of business
they operate.
    External Distribution Fees. The Exchange believes the proposed
monthly fees for redistributing the Exchange Data Feeds are not
unfairly discriminatory because they would be charged on an equal basis
to all data recipients that receive the same Exchange Data Feed(s) that
choose to redistribute the feed(s) externally. The Exchange also
believes that having higher monthly fees for External Distribution than
Internal Distribution is not unfairly discriminatory because data
recipients that are externally distributing Exchange Data Feeds are
able to monetize such distribution and spread such costs amongst
multiple third party data recipients, whereas the Internal Distribution
fee is applicable to use by a single data recipient (and its
affiliates).
    User Fees. The Exchange believes that the fee structure
differentiating Professional User fees from Non-Professional User fees
for display use of the MEMOIR Depth feed is not unfairly
discriminatory. This structure has long been used by other exchanges
and the SIPs to reduce the price of data to Non-Professional Users and
make it more broadly available.\56\ Offering the Exchange Data Feeds to
Non-Professional Users with the same data as is available to
Professional Users results in greater equity among data recipients.
These User fees would be charged uniformly to all individuals that have
access to the Exchange Data Feeds based on the category of User. The
Exchange also believes the proposed User fees for MEMOIR Top and MEMOIR
Last Sale are not unfairly discriminatory because the Exchange has
proposed to charge Professional Users and Non-Professional Users the
same low rate of $0.01 per month.
---------------------------------------------------------------------------

    \56\ See supra note 54.
---------------------------------------------------------------------------

    The Exchange further believes that its proposal to adopt a Digital
Media Enterprise Fee for each of the Exchange Data Feeds and an
Enterprise Fee for MEMOIR Top and MEMOIR Last Sale is not unfairly
discriminatory because these optional alternatives to counting and
paying for specific Users will provide market participants the ability
to provide information from the Exchange Data Feeds to large numbers of
Users without counting and paying for such Users.
    Non-Display Use Fees. The Exchange believes the proposed Non-
Display Usage fees for the MEMOIR Depth feed are not unfairly
discriminatory because they would require subscribers for non-display
use to pay fees depending on their use of the data, either for
operation of a Trading Platform or not, but would not impose multiple
fees to the extent a Firm operates multiple Trading Platforms or has
multiple different types of non-display use. As noted above, non-
display data can be used by data recipients for a wide variety of
profit-generating purposes as well as purposes that do not directly
generate revenues but nonetheless substantially reduce the recipient's
costs by automating certain functions. This segmented fee structure is
not unfairly discriminatory because no subscriber of non-display data
would be charged a fee for a category of use in which it did not
actually engage.
    The Exchange also believes that, regarding non-display use for
operation of a Trading Platform, it is not unreasonably discriminatory
to charge a higher fee for each Firm operating a Trading Platform (as
compared to other Non-Display Usage not by Trading Platforms) because
such use of the data is directly in competition with the Exchange and
the Exchange should be permitted to recoup some of its lost trading
revenue by charging for the data that makes such competition possible.
The Exchange believes that it is not unreasonably discriminatory to
charge a single fee for an operator of Trading Platforms that operates
more than one Trading Platform because operators of Trading Platforms
are many times viewed as a single competing venue or group, even if
there a multiple liquidity pools operated by the same competitor. The
Exchange again notes that certain competitors to the Exchange charge
for non-display usage per Trading Platform,\57\ in contrast to the
Exchange's proposal. In turn, to the extent they subscribe to Exchange
Data Feeds, these same competitors will benefit from the Exchange's
pricing model to the extent they operate multiple Trading Platforms (as
most do) by paying a single fee rather than paying for each Trading
Platform that they operate that consumes Exchange Data Feeds.
---------------------------------------------------------------------------

    \57\ See supra notes 20-21.
---------------------------------------------------------------------------

    For all of the foregoing reasons, the Exchange believes that the
proposed fees for the Exchange Data Feeds are not unfairly
discriminatory.

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

    In accordance with Section 6(b)(8) of the Act,\58\ the Exchange
does not believe that the proposed rule change would impose any burden
on competition that is not necessary or appropriate in furtherance of
the purposes of the Act.
---------------------------------------------------------------------------

    \58\ 15 U.S.C. 78f(b)(8).
---------------------------------------------------------------------------

Intra-Market Competition
    The Exchange does not believe that the proposed fees for Exchange
Data Feeds place certain market participants at a relative disadvantage
to other market participants because, as noted above, the proposed fees
are associated with usage of Exchange Data Feeds by each market
participant based on the type of business they operate, and the
decision to subscribe to one or more Exchange Data Feeds is based on
objective differences in usage of Exchange Data Feeds among different
Firms, which are still ultimately in the control of any particular
Firm, and such fees do not impose a barrier to entry to smaller
participants. Accordingly, the proposed fees for Exchange Data Feeds do
not favor certain categories of market participants in a manner that
would impose a burden on competition; rather, the allocation of the
proposed fees reflects the types of Exchange Data Feeds consumed by
various market participants and their usage thereof.
Inter-Market Competition
    The Exchange does not believe the proposed fees place an undue
burden on competition on other SROs that is not necessary or
appropriate. In particular, market participants are not forced to
subscribe to any of the Exchange Data Feeds, as described above.
Additionally, other exchanges have similar market data fees in place
for their participants, but with higher rates to connect.\59\ The
proposed fees are based on actual costs and are designed to enable the
Exchange to recoup its applicable costs with the possibility of a
reasonable profit on its investment as described in the Purpose and
Statutory Basis sections. Competing equities exchanges are free to
adopt comparable fee structures subject to the SEC rule filing process.
---------------------------------------------------------------------------

    \59\ See supra notes 20-21; see supra note 23 and accompanying
text.

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

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)(ii) of the Act \60\ and Rule 19b-4(f)(2) \61\ thereunder.
---------------------------------------------------------------------------

    \60\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \61\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings to
determine whether the proposed rule change should be approved or
disapproved.

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-MEMX-2022-28 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-MEMX-2022-28. 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-MEMX-2022-28 and should be submitted on
or before November 1, 2022.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\62\
---------------------------------------------------------------------------

    \62\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Deputy Secretary.
[FR Doc. 2022-21989 Filed 10-7-22; 8:45 am]
BILLING CODE 8011-01-P