Self-Regulatory Organizations; Nasdaq BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Options 7, Section 2, 5532-5536 [2019-02891]

Download as PDF 5532 Federal Register / Vol. 84, No. 35 / Thursday, February 21, 2019 / Notices amozie on DSK3GDR082PROD with NOTICES1 approach when excluding days for purposes of its volume based pricing tiers. Furthermore, the proposed changes specifying that the days in paragraphs (i)(B) and (ii) may be excluded only pursuant to paragraph (iii), and requiring the Exchange to exclude such days pursuant to the specifications in paragraph (iii) will likewise make clear that the Exchange will take a consistent approach with respect to excluding days from its Tier Calculations. As discussed above, these modifications will clarify that the Exchange will apply the better of rule in a uniform manner to all Participants, and that there is no arbitrary selection of ‘‘winners’’ or ‘‘losers.’’ The Exchange also believes that specifying in its equity and options pricing schedules that the proposed rule for excluding days in Options 7, Section 2(5)(b) applies only to options tier calculations, and that the current rules for excluding days 23 continue to apply to the equity tier calculations is reasonable and equitable. As discussed above, the Exchange has a number of cross-asset tiers within its equity and options pricing schedule,24 and believes that the proposed changes will clarify the application of the Exchange’s provisions for excluding days in light of the Exchange’s initiative to standardize its practice across the options markets. Finally, the Exchange believes that the proposed rule change is not unfairly discriminatory because it will apply equally to all Exchange members that transact on the Nasdaq Stock Market and on NOM. Nasdaq Stock Market members that are not currently Participants on NOM are eligible to become Participants by amending their membership application to add NOM. Moreover, the Exchange notes that any NOM Participant may trade equities on the Nasdaq Stock Market because they are already approved members. B. Self-Regulatory Organization’s Statement on Burden on Competition The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is designed to protect Participants from the possibility of a cost increase by excluding days when overall participation might be significantly lower than a typical trading day. The Exchange believes that the proposed modifications to its tier calculations are pro-competitive and 23 See Equity 7, Section 118(j) and Options 7, Section 2(5)(a). 24 See notes 4, 17, and 18 above. VerDate Sep<11>2014 17:08 Feb 20, 2019 Jkt 247001 will result in lower total costs to end users, a positive outcome of competitive markets. Furthermore, other options exchanges have adopted rules that are substantially similar to the Exchange’s proposal.25 The Exchange operates in a highly competitive market in which market participants can readily direct their order flow to competing venues. In such an environment, the Exchange must continually review, and consider adjusting, its fees and rebates to remain competitive with other exchanges. For the reasons described above, the Exchange believes that the proposed fee changes reflect this competitive environment. C. Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others No written comments were either solicited or received. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act 26 and paragraph (f) of Rule 19b–4 thereunder.27 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. IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission’s internet comment form (https://www.sec.gov/ rules/sro.shtml); or • Send an email to rule-comments@ sec.gov. Please include File Number SR– NASDAQ–2019–003 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. notes 3 and 11 above. U.S.C. 78s(b)(3)(A)(ii). 27 17 CFR 240.19b–4(f). All submissions should refer to File Number SR–NASDAQ–2019–003. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission’s internet website (https://www.sec.gov/ rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for website viewing and printing in the Commission’s Public Reference Room, 100 F Street NE, Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR–NASDAQ–2019–003, and should be submitted on or before March 14, 2019. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.28 Eduardo A. Aleman, Deputy Secretary. [FR Doc. 2019–02892 Filed 2–20–19; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–85131; File No. SR–BX– 2019–001] Self-Regulatory Organizations; Nasdaq BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Options 7, Section 2 February 14, 2019. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’),1 and Rule 19b–4 thereunder,2 25 See 28 17 26 15 1 15 PO 00000 Frm 00129 Fmt 4703 Sfmt 4703 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. E:\FR\FM\21FEN1.SGM 21FEN1 Federal Register / Vol. 84, No. 35 / Thursday, February 21, 2019 / Notices notice is hereby given that on January 31, 2019, Nasdaq BX, Inc. (‘‘BX’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘SEC’’ or ‘‘Commission’’) the proposed rule change as described in Items I and II, 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. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to amend Options 7, Section 2, which sets forth fees and rebates for the Exchange’s options market (‘‘BX Options’’), to adopt language that allows the Exchange to remove a day from its options volume calculations for purposes of determining pricing tiers. The text of the proposed rule change is available on the Exchange’s website at https://nasdaqbx.cchwallstreet.com/, at the principal office of the Exchange, and at the Commission’s Public Reference Room. II. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements. amozie on DSK3GDR082PROD with NOTICES1 A. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose Today, the Exchange offers a number of pricing incentives based on volume calculations that are designed to encourage participation in BX Options through rebates or reduced fees for Participants that trade on BX Options in increasingly higher volumes.3 The Exchange now proposes to adopt language in Section 2 that would allow it to exclude certain days from such volume calculations for purposes of 3 For instance, the Exchange currently offers BX Options Market Makers and Customers tiered rebates and fees for adding or removing liquidity in Penny Pilot and Non-Penny Pilot Options that are based on average daily volume (‘‘ADV’’) calculations. See Options 7, Section 2(1). VerDate Sep<11>2014 17:08 Feb 20, 2019 Jkt 247001 determining pricing tiers. The Exchange is standardizing its practice for removing a day from options volume calculations in its Pricing Schedule with its affiliated options market, Nasdaq Phlx (‘‘Phlx’’).4 Specifically in Options 7, Section 2, the Exchange proposes to adopt new subsection (6) with the title ‘‘Removal of Days for Purposes of Pricing Tiers,’’ which will provide: (i)(A) Any day that the Exchange announces in advance that it will not be open for trading will be excluded from the options tier calculations set forth in its Pricing Schedule; and (B) any day with a scheduled early market close (‘‘Scheduled Early Close’’) may be excluded from the options tier calculations only pursuant to paragraph (iii) below. (ii) The Exchange may exclude the following days (‘‘Unanticipated Events’’) from the options tier calculations only pursuant to paragraph (iii) below, specifically any day that: (A) The market is not open for the entire trading day, (B) the Exchange instructs Participants in writing to route their orders to other markets, (C) the Exchange is inaccessible to Participants during the 30-minute period before the opening of trade due to an Exchange system disruption, or (D) the Exchange’s system experiences a disruption that lasts for more than 60 minutes during regular trading hours. (iii) If a day is to be excluded as a result of paragraph (i)(B) or (ii) above, the Exchange will exclude the day from any Participant’s monthly options tier calculations as follows: (A) the Exchange may exclude from the ADV calculation any Scheduled Early Close or Unanticipated Event; and (B) the Exchange may exclude from any other applicable options tier calculation provided for in its Pricing Schedule (together with (iii)(A), ‘‘Tier Calculations’’) any Scheduled Early Close or Unanticipated Event. provided, in each case, that the Exchange will only remove the day for Participants that would have a lower Tier Calculation with the day included. The proposed language would: (1) Allow the Exchange to remove a day from its volume calculations in Options 7, Section 2 5 in a number of specified circumstances, which typically result in artificially low volume days, (2) categorize potential excluded days as 4 See Phlx Pricing Schedule, Options 7, Section 1(b). The Exchange’s other affiliated options markets, Nasdaq ISE, Nasdaq GEMX, Nasdaq MRX, and The Nasdaq Options Market will also file similar rule change proposals to conform to Phlx’s rule. 5 See note 3 above. PO 00000 Frm 00130 Fmt 4703 Sfmt 4703 5533 those that are known in advance (i.e., days in proposed paragraph (i), including Scheduled Early Closes), and those that are not (i.e., Unanticipated Events in proposed paragraph (ii)), and (3) allow the Exchange to remove a day only when doing so would be beneficial for the Participant (i.e., only if the Participant would have a lower ADV calculation with the day included, hereinafter, the ‘‘better of rule’’). As it relates to Unanticipated Events, the Exchange will inform all Participants if any such day will be excluded from its Tier Calculations via a system status message disseminated to all Participants. The Exchange notes that it is not proposing to amend the thresholds a Participant must achieve to become eligible for, or the dollar amount associated with, the tiered rebates or fees. Potential Excluded Days As noted above, the proposal will allow the Exchange to remove days from Participants’ volume calculations in a number of circumstances that generally result in artificially low volume days. First, the Exchange proposes to adopt language identical to Phlx providing that it will always exclude days where the Exchange announces in advance that it will not be open for trading (e.g., Thanksgiving) from all options tier calculations set forth in its Pricing Schedule.6 This is also the case today since no trading activity occurs on those days, and the Exchange is only clarifying its current practice within the proposed rule. Second, the Exchange proposes to adopt language that would permit the Exchange to exclude any Scheduled Early Close from its volume calculations. The Exchange believes that Scheduled Early Closes, which typically are days before or after a holiday, may preclude some Participants from submitting orders to the Exchange at the same level as they might otherwise. This proposal is consistent with the treatment of such days on Phlx.7 Third, the Exchange proposes language allowing it to exclude days where the market is not open for the entire trading day, such as days where the Exchange declares a trading halt in all securities or honors a market-wide trading halt declared by another market, because those days typically have lower trading volume. This is consistent with Phlx’s practice for removing such days from its volume calculations.8 Fourth, Phlx adopted the language on instructing members to route away to 6 See note 4 above at paragraph (1)(A). id. at paragraph (1)(B). 8 See id. at paragraph (2)(A). 7 See E:\FR\FM\21FEN1.SGM 21FEN1 amozie on DSK3GDR082PROD with NOTICES1 5534 Federal Register / Vol. 84, No. 35 / Thursday, February 21, 2019 / Notices prevent situations where days that have artificially lower volume could not be excluded, for example, because Phlx experienced an issue in the morning that ultimately did not carry over into the trading day.9 Like Phlx, the Exchange believes that it should have the flexibility to exclude days if Participants have been instructed to send their orders elsewhere, regardless of whether the issue that resulted in this instruction ultimately impacts the availability of the Exchange for trading. Fifth, the Exchange proposes to adopt identical language as Phlx to exclude days where the Exchange is inaccessible to Participants during the 30-minute period before the opening of trade (i.e., between 9:00 a.m. to 9:30 a.m. Eastern Time) due to an Exchange system disruption.10 While the language proposed above on instructing Participants to route away may also cover Exchange system disruptions that occur before the market opens, the Exchange notes that it may not always instruct Participants to route away in such instances. For example, the Exchange may be inaccessible to Participants in the morning due to a systems disruption but the Exchange resolves the issue shortly before 9:30 a.m. and as a result, the Exchange does not instruct Participants to route away. In this instance, the Exchange would not be permitted to exclude the day from its volume calculations. The Exchange generally experiences a high volume of member participation within the 30-minute window leading up to the opening of trade from Participants who submit eligible interest to be included in the Exchange’s opening process. As a result, days where Participants are precluded from submitting eligible interest during this 30-minute time period due to an Exchange systems disruption, even if the issue is ultimately resolved by the Exchange before the market opens (and Participants therefore are not instructed to route away), are likely to have lower trading volume. Including such days in calculations of ADV will therefore make it more difficult for Participants to achieve particular pricing tiers for that month. Accordingly, excluding such days from the monthly tier calculations will diminish the likelihood of a cost increase occurring because a Participant is not able to reach a pricing tier on that date that it would reach on other trading days during the month. Sixth, the Exchange proposes to adopt language identical to Phlx to exclude days where there is an Exchange system 9 See id. at paragraph (2)(B). id. at paragraph (2)(C). 10 See VerDate Sep<11>2014 17:08 Feb 20, 2019 Jkt 247001 disruption that lasts for more than 60 minutes during regular trading hours (i.e., 9:30 a.m. to 4:00 p.m. Eastern Time), even if such disruption would not be categorized as a complete outage of the Exchange’s system.11 Such a disruption may occur where a certain options series traded on the Exchange is unavailable for trading due to an Exchange systems issue, or where the Exchange may be able to perform certain functions with respect to accepting and processing orders, but may have a failure to another significant process, such as routing to other market centers, that would lead Participants who rely on such processes to avoid using the Exchange until the Exchange’s entire system was operational. The Exchange believes that certain system disruptions that are not complete system outages could preclude some Participants from submitting orders to the Exchange. The Exchange also notes that this proposal is consistent with the rules of other options exchanges.12 Because the potential excluded days proposed above generally have artificially lower trading volume, the Exchange believes it is reasonable and equitable to exclude such days in determining its fee and rebate tiers. The Exchange desires to avoid penalizing Participants that might otherwise qualify for certain tiered pricing but that, because of special circumstances on a particular day, did not participate on the Exchange to the extent that they might have otherwise participated. Absent the authority to exclude such days, Participants may experience an effective increase in the cost of trading on BX Options, a result that is both unintended and undesirable to the Exchange and to its Participants. Categories of Excluded Days In light of the foregoing proposal, the Exchange seeks to categorize the potential excluded days proposed above between days that are known in paragraph (i) and days that are not in paragraph (ii), and define the latter as Unanticipated Events. Specifically, paragraph (i) would set forth days that the Exchange announces in advance that it will not be open for trading in paragraph (i)(A), and Scheduled Early Closes in paragraph (ii)(B), as further described above. The Unanticipated 11 See id. at paragraph 2(D). BATS BZX Options Exchange Fee Schedule (defining an ‘‘Exchange System Disruption’’ as any day that the exchange’s system experiences a disruption that lasts for more than 60 minutes during regular trading hours); and NYSE Arca Options Fee Schedule (defining an ‘‘Exchange System Disruption’’ as a disruption affects an Exchange system that lasts for more than 60 minutes during regular trading hours). 12 See PO 00000 Frm 00131 Fmt 4703 Sfmt 4703 Events in paragraph (ii) would cover the days where the Exchange is not open for the entire trading day (e.g., the Exchange declares a trading halt in all securities), days that the Exchange instructs Participants in writing to route away, and the two Exchange systemsrelated disruptions, each as described above. The foregoing proposal is consistent with how Phlx categorizes potential excluded days today.13 Better of Rule Similar to Phlx, the proposed language also specifies how the potential excluded days will be removed from the Exchange’s volume calculations. In particular, the language will allow the Exchange to exclude any Scheduled Early Close or Unanticipated Event from its calculations of ADV or any other applicable options volume tiers provided for in its Pricing Schedule, provided that the Exchange will only remove such days for Participants that would have a lower volume calculation with the day included (i.e., the better of rule).14 Phlx adopted the better of rule to avoid penalizing members that step up and trade on days with artificially low volume so that it only excludes such days for members that would have a lower volume calculation with the day included. This language would also be helpful on the Exchange as it would ensure that Participants that continue to execute a large volume of contracts are not inadvertently disadvantaged when the Exchange removes a day from its volume calculations. Furthermore, Phlx adopted the catch-all provision applying to other options tier calculations set forth in its pricing schedule, but not specified within paragraph (3) of its rule, so that it would have flexibility to apply the better of rule going forward to all options pricing programs administered by the Exchange that are based on volume calculations.15 The Exchange believes that adopting a similar principle-based approach for its options volume calculations would ensure that days are removed from such calculations only if doing so would be beneficial for the Participant. As such, the proposed language will not apply to straight volume accumulations as Participants do not benefit when a day is removed for such accumulations. Again, the Exchange believes that the 13 See note 4 above at paragraphs (1) and (2). similarly excludes Scheduled Early Closes and Unanticipated Events from its ADV calculations and other applicable volume calculations in its pricing schedule, subject in each case to the better of rule. See note 4 above at paragraph (3). 15 See id. at paragraph (3)(C). 14 Phlx E:\FR\FM\21FEN1.SGM 21FEN1 Federal Register / Vol. 84, No. 35 / Thursday, February 21, 2019 / Notices amozie on DSK3GDR082PROD with NOTICES1 approach of Phlx would be beneficial as it counts volume executed during an excluded day toward its members’ straight volume accumulations. In addition, the Exchange proposes to harmonize its language with Phlx’s language by adding further detail throughout the proposed rule text to bring greater transparency as to how the Exchange will apply the better of rule when removing days from its tier calculations. Specifically, the Exchange proposes to make clear that it will only remove days pursuant to the better of rule by specifying in paragraphs (i)(B) and (ii) that such days may be excluded from the tier calculations only pursuant to paragraph (iii).16 Paragraph (iii) will then provide that if a day is to be excluded as a result of paragraph (i)(B) or (ii), the Exchange will be required to exclude the day from any Participant’s monthly options tier calculations as detailed within paragraph (iii).17 With the proposed changes, the Exchange seeks to clarify that it will exclude days from any Participant’s Tier Calculations in a uniform manner to ensure that days are removed only in situations where the Participant benefits. The Exchange will look at each potential excluded day in a month and determine for every Participant their ADV or other applicable volume calculation based on their trading volume on that day. If any Participant would have a lower volume calculation with the particular day included, the Exchange will exclude that day for that Participant. As such, the proposed changes specify that the Exchange will apply the better of rule in a uniform manner for all Participants, and that there is no arbitrary selection of ‘‘winners’’ or ‘‘losers’’ when the Exchange excludes days. 2. Statutory Basis The Exchange believes that its proposal is consistent with Section 6(b) of the Act,18 in general, and furthers the objectives of Sections 6(b)(4) and 6(b)(5) of the Act,19 in particular, in that it provides for the equitable allocation of reasonable dues, fees and other charges among members and issuers and other persons using any facility, and is not designed to permit unfair discrimination between customers, issuers, brokers, or dealers. The Exchange believes that the proposed rule change is reasonable and equitable as it provides a new framework for removing days from the 16 See id. at paragraphs (1)(B) and (2) for similar language on Phlx. 17 See id. at paragraph (3) for similar language on Phlx. 18 15 U.S.C. 78f(b). 19 15 U.S.C. 78f(b)(4) and (5). VerDate Sep<11>2014 17:08 Feb 20, 2019 Jkt 247001 Exchange’s volume calculations that the Exchange believes is beneficial to Participants and consistent with similar provisions already in place on Phlx. The proposed rule change would permit the Exchange to remove a day from its volume calculations in numerous circumstances as described above, and ensures that the Exchange will only do so when beneficial for the Participant. The Exchange believes that it is reasonable and equitable to exclude Scheduled Early Closes from its volume calculations because this preserves the Exchange’s intent behind adopting volume-based pricing. Absent the authority to exclude Scheduled Early Closes, Participants may experience an effective increase in fees or decrease in rebates. The artificially low volumes of trading on such days typically reduce the trading activity of Participants. Accordingly, allowing the Exchange to exclude such days from its volume calculations will diminish the likelihood of an effective increase in the cost of trading on BX Options, a result that is unintended and undesirable to the Exchange and to its Participants. The Exchange equally believes that it is reasonable and equitable to exclude a day when Participants are instructed to route their orders to other markets as this also preserves the Exchange’s intent behind adopting volume-based pricing, and avoids penalizing Participants that follow this instruction. The Exchange likewise believes it is reasonable and equitable to exclude a day from its volume calculations when the Exchange’s system experiences a disruption during the 30-minute period prior to the opening of trade which renders the Exchange inaccessible to Participants. Without this change, Participants that are precluded from submitting eligible interest during the 30-minute window before the opening of trade may be negatively impacted, even if the Exchange resolves the issue before the market opens and as a result, does not instruct Participants to route away. The proposed change to exclude such days will diminish the likelihood of a cost increase occurring because a Participant is not able to reach a volume tier calculation on that date that it would reach on other trading days during the month. Similarly, excluding a day where the Exchange’s system experiences a disruption that lasts for more than 60 minutes intra-day is reasonable and equitable because the proposal seeks to avoid penalizing Participants that might otherwise qualify for certain tiered pricing but that, because of an Exchange systems disruption, did not participate on the Exchange to the extent they PO 00000 Frm 00132 Fmt 4703 Sfmt 4703 5535 might have otherwise participated. The Exchange believes that certain systems disruptions could preclude some Participants from submitting orders to the Exchange even if such issue is not actually a complete systems outage. In addition, the Exchange believes that it is reasonable and equitable to only exclude a day from its volume calculations for Participants that would otherwise have a lower volume calculation with the day included. Without these changes, Participants that route away in accordance with the Exchange’s instructions, or that step up and trade significant volume on excluded trading days, may be negatively impacted, resulting in an effective cost increase for those Participants. In addition, having a catchall in paragraph (iii)(B) so that the better of rule applies to other options volume calculations than ADV to allow the Exchange to apply the rule going forward to all pricing programs based on volume calculations will further protect Participants. The Exchange notes that aberrant low volume days resulting from, for instance, an Unanticipated Event, impacts all volume calculations, and allowing the Exchange to exclude such days from any volume tier calculation if the Participant would have a lower tier calculation with the day included will further protect Participants from being inadvertently penalized. Furthermore, the Exchange believes that categorizing the potential excluded days is reasonable and equitable because it will bring greater transparency to the application of its rule. Specifically, the Exchange is distinguishing between planned and unplanned days in paragraphs (i) and (ii), defining the latter as Unanticipated Events, and stipulating how the Exchange will exclude such days pursuant to this rule. Categorizing days in this manner will clarify the application of its rule in light of the Exchange’s proposal to adopt numerous days that may be excluded from its volume calculations. Providing in paragraph (i)(A) that the Exchange will always exclude from its tier calculations days that it announces in advance it will not be open for trading will clarify current practice. Furthermore, the Exchange believes that the proposed changes to specify how days in paragraphs (i)(B) and (ii) may be excluded from its volume calculations will bring greater transparency by delineating the various circumstances in which the better of rule will apply. Providing in paragraph (iii) that the Exchange may exclude any Scheduled Early Close or Unanticipated Event from E:\FR\FM\21FEN1.SGM 21FEN1 5536 Federal Register / Vol. 84, No. 35 / Thursday, February 21, 2019 / Notices the Tier Calculations, subject to the better of rule, will make clear that the Exchange will take a consistent approach when excluding days for purposes of its volume based pricing tiers. Furthermore, the proposed changes specifying that the days in paragraphs (i)(B) and (ii) may be excluded only pursuant to paragraph (iii), and requiring the Exchange to exclude such days pursuant to the specifications in paragraph (iii) will likewise make clear that the Exchange will take a consistent approach with respect to excluding days from its Tier Calculations. As discussed above, these modifications will clarify that the Exchange will apply the better of rule in a uniform manner to all Participants, and that there is no arbitrary selection of ‘‘winners’’ or ‘‘losers.’’ Finally, the Exchange believes that the proposed rule change is not unfairly discriminatory because it will apply equally to all Participants. 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 21 and paragraph (f) of Rule 19b–4 thereunder.22 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. B. Self-Regulatory Organization’s Statement on Burden on Competition Electronic Comments • Use the Commission’s internet comment form (https://www.sec.gov/ rules/sro.shtml); or • Send an email to rule-comments@ sec.gov. Please include File Number SR– BX–2019–001 on the subject line. amozie on DSK3GDR082PROD with NOTICES1 The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is designed to protect Participants from the possibility of a cost increase by excluding days when overall participation might be significantly lower than a typical trading day. The Exchange believes that the proposed modifications to its tier calculations are pro-competitive and will result in lower total costs to end users, a positive outcome of competitive markets. Furthermore, other options exchanges have adopted rules that are substantially similar to the Exchange’s proposal.20 The Exchange operates in a highly competitive market in which market participants can readily direct their order flow to competing venues. In such an environment, the Exchange must continually review, and consider adjusting, its fees and rebates to remain competitive with other exchanges. For the reasons described above, the Exchange believes that the proposed fee changes reflect this competitive environment. C. Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others No written comments were either solicited or received. 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: 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–BX–2019–001. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission’s internet website (https://www.sec.gov/ rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for website viewing and printing in the Commission’s Public Reference Room, 100 F Street NE, Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the notes 4 and 12 above. VerDate Sep<11>2014 19:03 Feb 20, 2019 22 17 Jkt 247001 For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.23 Eduardo A. Aleman, Deputy Secretary. [FR Doc. 2019–02891 Filed 2–20–19; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–85145; File No. SR–NYSE– 2019–03] Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change to (1) Delete Dealings and Settlements (Rule 45– 299C), Rule 235 (Ex-Dividend, ExRights), Rule 236 (Ex-Warrants), and Rule 257 (Deliveries After ‘‘Ex’’ Date) and (2) Amend Dealings and SettlementsT (Rule 45–299C), Rule 235T (Ex-Dividend, Ex-Rights), Rule 236T (Ex-Warrants), and Rule 257T (Deliveries After ‘‘Ex’’ Date) February 14, 2019. Pursuant to Section 19(b)(1) 1 of the Securities Exchange Act of 1934 (the ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 notice is hereby given that on February 4, 2019, New York Stock Exchange LLC (‘‘NYSE’’ or the ‘‘Exchange’’) filed with the Securities and Exchange Commission (the ‘‘Commission’’) the proposed rule change as described in Items I and II below, which Items have been prepared by the self-regulatory organization. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to (1) delete Dealings and Settlements (Rule 45– 23 17 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 15 U.S.C. 78a. 3 17 CFR 240.19b–4. 1 15 21 15 20 See 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–BX–2019–001, and should be submitted on or before March 14, 2019. PO 00000 U.S.C. 78s(b)(3)(A)(ii). CFR 240.19b–4(f). Frm 00133 Fmt 4703 Sfmt 4703 E:\FR\FM\21FEN1.SGM 21FEN1

Agencies

[Federal Register Volume 84, Number 35 (Thursday, February 21, 2019)]
[Notices]
[Pages 5532-5536]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-02891]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-85131; File No. SR-BX-2019-001]


Self-Regulatory Organizations; Nasdaq BX, Inc.; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To Amend Options 7, 
Section 2

February 14, 2019.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ and Rule 19b-4 thereunder,\2\

[[Page 5533]]

notice is hereby given that on January 31, 2019, Nasdaq BX, Inc. 
(``BX'' or ``Exchange'') filed with the Securities and Exchange 
Commission (``SEC'' or ``Commission'') the proposed rule change as 
described in Items I and II, below, which Items have been prepared by 
the Exchange. The Commission is publishing this notice to solicit 
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend Options 7, Section 2, which sets 
forth fees and rebates for the Exchange's options market (``BX 
Options''), to adopt language that allows the Exchange to remove a day 
from its options volume calculations for purposes of determining 
pricing tiers.
    The text of the proposed rule change is available on the Exchange's 
website at https://nasdaqbx.cchwallstreet.com/, at the principal office 
of the Exchange, and at the Commission's Public Reference Room.

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

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

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

1. Purpose
    Today, the Exchange offers a number of pricing incentives based on 
volume calculations that are designed to encourage participation in BX 
Options through rebates or reduced fees for Participants that trade on 
BX Options in increasingly higher volumes.\3\ The Exchange now proposes 
to adopt language in Section 2 that would allow it to exclude certain 
days from such volume calculations for purposes of determining pricing 
tiers. The Exchange is standardizing its practice for removing a day 
from options volume calculations in its Pricing Schedule with its 
affiliated options market, Nasdaq Phlx (``Phlx'').\4\
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    \3\ For instance, the Exchange currently offers BX Options 
Market Makers and Customers tiered rebates and fees for adding or 
removing liquidity in Penny Pilot and Non-Penny Pilot Options that 
are based on average daily volume (``ADV'') calculations. See 
Options 7, Section 2(1).
    \4\ See Phlx Pricing Schedule, Options 7, Section 1(b). The 
Exchange's other affiliated options markets, Nasdaq ISE, Nasdaq 
GEMX, Nasdaq MRX, and The Nasdaq Options Market will also file 
similar rule change proposals to conform to Phlx's rule.
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    Specifically in Options 7, Section 2, the Exchange proposes to 
adopt new subsection (6) with the title ``Removal of Days for Purposes 
of Pricing Tiers,'' which will provide:
    (i)(A) Any day that the Exchange announces in advance that it will 
not be open for trading will be excluded from the options tier 
calculations set forth in its Pricing Schedule; and (B) any day with a 
scheduled early market close (``Scheduled Early Close'') may be 
excluded from the options tier calculations only pursuant to paragraph 
(iii) below.
    (ii) The Exchange may exclude the following days (``Unanticipated 
Events'') from the options tier calculations only pursuant to paragraph 
(iii) below, specifically any day that: (A) The market is not open for 
the entire trading day, (B) the Exchange instructs Participants in 
writing to route their orders to other markets, (C) the Exchange is 
inaccessible to Participants during the 30-minute period before the 
opening of trade due to an Exchange system disruption, or (D) the 
Exchange's system experiences a disruption that lasts for more than 60 
minutes during regular trading hours.
    (iii) If a day is to be excluded as a result of paragraph (i)(B) or 
(ii) above, the Exchange will exclude the day from any Participant's 
monthly options tier calculations as follows:

    (A) the Exchange may exclude from the ADV calculation any 
Scheduled Early Close or Unanticipated Event; and
    (B) the Exchange may exclude from any other applicable options 
tier calculation provided for in its Pricing Schedule (together with 
(iii)(A), ``Tier Calculations'') any Scheduled Early Close or 
Unanticipated Event.

provided, in each case, that the Exchange will only remove the day for 
Participants that would have a lower Tier Calculation with the day 
included.
    The proposed language would: (1) Allow the Exchange to remove a day 
from its volume calculations in Options 7, Section 2 \5\ in a number of 
specified circumstances, which typically result in artificially low 
volume days, (2) categorize potential excluded days as those that are 
known in advance (i.e., days in proposed paragraph (i), including 
Scheduled Early Closes), and those that are not (i.e., Unanticipated 
Events in proposed paragraph (ii)), and (3) allow the Exchange to 
remove a day only when doing so would be beneficial for the Participant 
(i.e., only if the Participant would have a lower ADV calculation with 
the day included, hereinafter, the ``better of rule''). As it relates 
to Unanticipated Events, the Exchange will inform all Participants if 
any such day will be excluded from its Tier Calculations via a system 
status message disseminated to all Participants. The Exchange notes 
that it is not proposing to amend the thresholds a Participant must 
achieve to become eligible for, or the dollar amount associated with, 
the tiered rebates or fees.
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    \5\ See note 3 above.
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Potential Excluded Days
    As noted above, the proposal will allow the Exchange to remove days 
from Participants' volume calculations in a number of circumstances 
that generally result in artificially low volume days. First, the 
Exchange proposes to adopt language identical to Phlx providing that it 
will always exclude days where the Exchange announces in advance that 
it will not be open for trading (e.g., Thanksgiving) from all options 
tier calculations set forth in its Pricing Schedule.\6\ This is also 
the case today since no trading activity occurs on those days, and the 
Exchange is only clarifying its current practice within the proposed 
rule. Second, the Exchange proposes to adopt language that would permit 
the Exchange to exclude any Scheduled Early Close from its volume 
calculations. The Exchange believes that Scheduled Early Closes, which 
typically are days before or after a holiday, may preclude some 
Participants from submitting orders to the Exchange at the same level 
as they might otherwise. This proposal is consistent with the treatment 
of such days on Phlx.\7\
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    \6\ See note 4 above at paragraph (1)(A).
    \7\ See id. at paragraph (1)(B).
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    Third, the Exchange proposes language allowing it to exclude days 
where the market is not open for the entire trading day, such as days 
where the Exchange declares a trading halt in all securities or honors 
a market-wide trading halt declared by another market, because those 
days typically have lower trading volume. This is consistent with 
Phlx's practice for removing such days from its volume calculations.\8\
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    \8\ See id. at paragraph (2)(A).
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    Fourth, Phlx adopted the language on instructing members to route 
away to

[[Page 5534]]

prevent situations where days that have artificially lower volume could 
not be excluded, for example, because Phlx experienced an issue in the 
morning that ultimately did not carry over into the trading day.\9\ 
Like Phlx, the Exchange believes that it should have the flexibility to 
exclude days if Participants have been instructed to send their orders 
elsewhere, regardless of whether the issue that resulted in this 
instruction ultimately impacts the availability of the Exchange for 
trading.
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    \9\ See id. at paragraph (2)(B).
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    Fifth, the Exchange proposes to adopt identical language as Phlx to 
exclude days where the Exchange is inaccessible to Participants during 
the 30-minute period before the opening of trade (i.e., between 9:00 
a.m. to 9:30 a.m. Eastern Time) due to an Exchange system 
disruption.\10\ While the language proposed above on instructing 
Participants to route away may also cover Exchange system disruptions 
that occur before the market opens, the Exchange notes that it may not 
always instruct Participants to route away in such instances. For 
example, the Exchange may be inaccessible to Participants in the 
morning due to a systems disruption but the Exchange resolves the issue 
shortly before 9:30 a.m. and as a result, the Exchange does not 
instruct Participants to route away. In this instance, the Exchange 
would not be permitted to exclude the day from its volume calculations. 
The Exchange generally experiences a high volume of member 
participation within the 30-minute window leading up to the opening of 
trade from Participants who submit eligible interest to be included in 
the Exchange's opening process. As a result, days where Participants 
are precluded from submitting eligible interest during this 30-minute 
time period due to an Exchange systems disruption, even if the issue is 
ultimately resolved by the Exchange before the market opens (and 
Participants therefore are not instructed to route away), are likely to 
have lower trading volume. Including such days in calculations of ADV 
will therefore make it more difficult for Participants to achieve 
particular pricing tiers for that month. Accordingly, excluding such 
days from the monthly tier calculations will diminish the likelihood of 
a cost increase occurring because a Participant is not able to reach a 
pricing tier on that date that it would reach on other trading days 
during the month.
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    \10\ See id. at paragraph (2)(C).
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    Sixth, the Exchange proposes to adopt language identical to Phlx to 
exclude days where there is an Exchange system disruption that lasts 
for more than 60 minutes during regular trading hours (i.e., 9:30 a.m. 
to 4:00 p.m. Eastern Time), even if such disruption would not be 
categorized as a complete outage of the Exchange's system.\11\ Such a 
disruption may occur where a certain options series traded on the 
Exchange is unavailable for trading due to an Exchange systems issue, 
or where the Exchange may be able to perform certain functions with 
respect to accepting and processing orders, but may have a failure to 
another significant process, such as routing to other market centers, 
that would lead Participants who rely on such processes to avoid using 
the Exchange until the Exchange's entire system was operational. The 
Exchange believes that certain system disruptions that are not complete 
system outages could preclude some Participants from submitting orders 
to the Exchange. The Exchange also notes that this proposal is 
consistent with the rules of other options exchanges.\12\
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    \11\ See id. at paragraph 2(D).
    \12\ See BATS BZX Options Exchange Fee Schedule (defining an 
``Exchange System Disruption'' as any day that the exchange's system 
experiences a disruption that lasts for more than 60 minutes during 
regular trading hours); and NYSE Arca Options Fee Schedule (defining 
an ``Exchange System Disruption'' as a disruption affects an 
Exchange system that lasts for more than 60 minutes during regular 
trading hours).
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    Because the potential excluded days proposed above generally have 
artificially lower trading volume, the Exchange believes it is 
reasonable and equitable to exclude such days in determining its fee 
and rebate tiers. The Exchange desires to avoid penalizing Participants 
that might otherwise qualify for certain tiered pricing but that, 
because of special circumstances on a particular day, did not 
participate on the Exchange to the extent that they might have 
otherwise participated. Absent the authority to exclude such days, 
Participants may experience an effective increase in the cost of 
trading on BX Options, a result that is both unintended and undesirable 
to the Exchange and to its Participants.
Categories of Excluded Days
    In light of the foregoing proposal, the Exchange seeks to 
categorize the potential excluded days proposed above between days that 
are known in paragraph (i) and days that are not in paragraph (ii), and 
define the latter as Unanticipated Events. Specifically, paragraph (i) 
would set forth days that the Exchange announces in advance that it 
will not be open for trading in paragraph (i)(A), and Scheduled Early 
Closes in paragraph (ii)(B), as further described above. The 
Unanticipated Events in paragraph (ii) would cover the days where the 
Exchange is not open for the entire trading day (e.g., the Exchange 
declares a trading halt in all securities), days that the Exchange 
instructs Participants in writing to route away, and the two Exchange 
systems-related disruptions, each as described above. The foregoing 
proposal is consistent with how Phlx categorizes potential excluded 
days today.\13\
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    \13\ See note 4 above at paragraphs (1) and (2).
---------------------------------------------------------------------------

Better of Rule
    Similar to Phlx, the proposed language also specifies how the 
potential excluded days will be removed from the Exchange's volume 
calculations. In particular, the language will allow the Exchange to 
exclude any Scheduled Early Close or Unanticipated Event from its 
calculations of ADV or any other applicable options volume tiers 
provided for in its Pricing Schedule, provided that the Exchange will 
only remove such days for Participants that would have a lower volume 
calculation with the day included (i.e., the better of rule).\14\
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    \14\ Phlx similarly excludes Scheduled Early Closes and 
Unanticipated Events from its ADV calculations and other applicable 
volume calculations in its pricing schedule, subject in each case to 
the better of rule. See note 4 above at paragraph (3).
---------------------------------------------------------------------------

    Phlx adopted the better of rule to avoid penalizing members that 
step up and trade on days with artificially low volume so that it only 
excludes such days for members that would have a lower volume 
calculation with the day included. This language would also be helpful 
on the Exchange as it would ensure that Participants that continue to 
execute a large volume of contracts are not inadvertently disadvantaged 
when the Exchange removes a day from its volume calculations. 
Furthermore, Phlx adopted the catch-all provision applying to other 
options tier calculations set forth in its pricing schedule, but not 
specified within paragraph (3) of its rule, so that it would have 
flexibility to apply the better of rule going forward to all options 
pricing programs administered by the Exchange that are based on volume 
calculations.\15\ The Exchange believes that adopting a similar 
principle-based approach for its options volume calculations would 
ensure that days are removed from such calculations only if doing so 
would be beneficial for the Participant. As such, the proposed language 
will not apply to straight volume accumulations as Participants do not 
benefit when a day is removed for such accumulations. Again, the 
Exchange believes that the

[[Page 5535]]

approach of Phlx would be beneficial as it counts volume executed 
during an excluded day toward its members' straight volume 
accumulations.
---------------------------------------------------------------------------

    \15\ See id. at paragraph (3)(C).
---------------------------------------------------------------------------

    In addition, the Exchange proposes to harmonize its language with 
Phlx's language by adding further detail throughout the proposed rule 
text to bring greater transparency as to how the Exchange will apply 
the better of rule when removing days from its tier calculations. 
Specifically, the Exchange proposes to make clear that it will only 
remove days pursuant to the better of rule by specifying in paragraphs 
(i)(B) and (ii) that such days may be excluded from the tier 
calculations only pursuant to paragraph (iii).\16\ Paragraph (iii) will 
then provide that if a day is to be excluded as a result of paragraph 
(i)(B) or (ii), the Exchange will be required to exclude the day from 
any Participant's monthly options tier calculations as detailed within 
paragraph (iii).\17\ With the proposed changes, the Exchange seeks to 
clarify that it will exclude days from any Participant's Tier 
Calculations in a uniform manner to ensure that days are removed only 
in situations where the Participant benefits. The Exchange will look at 
each potential excluded day in a month and determine for every 
Participant their ADV or other applicable volume calculation based on 
their trading volume on that day. If any Participant would have a lower 
volume calculation with the particular day included, the Exchange will 
exclude that day for that Participant. As such, the proposed changes 
specify that the Exchange will apply the better of rule in a uniform 
manner for all Participants, and that there is no arbitrary selection 
of ``winners'' or ``losers'' when the Exchange excludes days.
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    \16\ See id. at paragraphs (1)(B) and (2) for similar language 
on Phlx.
    \17\ See id. at paragraph (3) for similar language on Phlx.
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2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act,\18\ in general, and furthers the objectives of 
Sections 6(b)(4) and 6(b)(5) of the Act,\19\ in particular, in that it 
provides for the equitable allocation of reasonable dues, fees and 
other charges among members and issuers and other persons using any 
facility, and is not designed to permit unfair discrimination between 
customers, issuers, brokers, or dealers.
---------------------------------------------------------------------------

    \18\ 15 U.S.C. 78f(b).
    \19\ 15 U.S.C. 78f(b)(4) and (5).
---------------------------------------------------------------------------

    The Exchange believes that the proposed rule change is reasonable 
and equitable as it provides a new framework for removing days from the 
Exchange's volume calculations that the Exchange believes is beneficial 
to Participants and consistent with similar provisions already in place 
on Phlx. The proposed rule change would permit the Exchange to remove a 
day from its volume calculations in numerous circumstances as described 
above, and ensures that the Exchange will only do so when beneficial 
for the Participant. The Exchange believes that it is reasonable and 
equitable to exclude Scheduled Early Closes from its volume 
calculations because this preserves the Exchange's intent behind 
adopting volume-based pricing. Absent the authority to exclude 
Scheduled Early Closes, Participants may experience an effective 
increase in fees or decrease in rebates. The artificially low volumes 
of trading on such days typically reduce the trading activity of 
Participants. Accordingly, allowing the Exchange to exclude such days 
from its volume calculations will diminish the likelihood of an 
effective increase in the cost of trading on BX Options, a result that 
is unintended and undesirable to the Exchange and to its Participants.
    The Exchange equally believes that it is reasonable and equitable 
to exclude a day when Participants are instructed to route their orders 
to other markets as this also preserves the Exchange's intent behind 
adopting volume-based pricing, and avoids penalizing Participants that 
follow this instruction. The Exchange likewise believes it is 
reasonable and equitable to exclude a day from its volume calculations 
when the Exchange's system experiences a disruption during the 30-
minute period prior to the opening of trade which renders the Exchange 
inaccessible to Participants. Without this change, Participants that 
are precluded from submitting eligible interest during the 30-minute 
window before the opening of trade may be negatively impacted, even if 
the Exchange resolves the issue before the market opens and as a 
result, does not instruct Participants to route away. The proposed 
change to exclude such days will diminish the likelihood of a cost 
increase occurring because a Participant is not able to reach a volume 
tier calculation on that date that it would reach on other trading days 
during the month.
    Similarly, excluding a day where the Exchange's system experiences 
a disruption that lasts for more than 60 minutes intra-day is 
reasonable and equitable because the proposal seeks to avoid penalizing 
Participants that might otherwise qualify for certain tiered pricing 
but that, because of an Exchange systems disruption, did not 
participate on the Exchange to the extent they might have otherwise 
participated. The Exchange believes that certain systems disruptions 
could preclude some Participants from submitting orders to the Exchange 
even if such issue is not actually a complete systems outage.
    In addition, the Exchange believes that it is reasonable and 
equitable to only exclude a day from its volume calculations for 
Participants that would otherwise have a lower volume calculation with 
the day included. Without these changes, Participants that route away 
in accordance with the Exchange's instructions, or that step up and 
trade significant volume on excluded trading days, may be negatively 
impacted, resulting in an effective cost increase for those 
Participants. In addition, having a catch-all in paragraph (iii)(B) so 
that the better of rule applies to other options volume calculations 
than ADV to allow the Exchange to apply the rule going forward to all 
pricing programs based on volume calculations will further protect 
Participants. The Exchange notes that aberrant low volume days 
resulting from, for instance, an Unanticipated Event, impacts all 
volume calculations, and allowing the Exchange to exclude such days 
from any volume tier calculation if the Participant would have a lower 
tier calculation with the day included will further protect 
Participants from being inadvertently penalized.
    Furthermore, the Exchange believes that categorizing the potential 
excluded days is reasonable and equitable because it will bring greater 
transparency to the application of its rule. Specifically, the Exchange 
is distinguishing between planned and unplanned days in paragraphs (i) 
and (ii), defining the latter as Unanticipated Events, and stipulating 
how the Exchange will exclude such days pursuant to this rule. 
Categorizing days in this manner will clarify the application of its 
rule in light of the Exchange's proposal to adopt numerous days that 
may be excluded from its volume calculations. Providing in paragraph 
(i)(A) that the Exchange will always exclude from its tier calculations 
days that it announces in advance it will not be open for trading will 
clarify current practice. Furthermore, the Exchange believes that the 
proposed changes to specify how days in paragraphs (i)(B) and (ii) may 
be excluded from its volume calculations will bring greater 
transparency by delineating the various circumstances in which the 
better of rule will apply. Providing in paragraph (iii) that the 
Exchange may exclude any Scheduled Early Close or Unanticipated Event 
from

[[Page 5536]]

the Tier Calculations, subject to the better of rule, will make clear 
that the Exchange will take a consistent approach when excluding days 
for purposes of its volume based pricing tiers. Furthermore, the 
proposed changes specifying that the days in paragraphs (i)(B) and (ii) 
may be excluded only pursuant to paragraph (iii), and requiring the 
Exchange to exclude such days pursuant to the specifications in 
paragraph (iii) will likewise make clear that the Exchange will take a 
consistent approach with respect to excluding days from its Tier 
Calculations. As discussed above, these modifications will clarify that 
the Exchange will apply the better of rule in a uniform manner to all 
Participants, and that there is no arbitrary selection of ``winners'' 
or ``losers.''
    Finally, the Exchange believes that the proposed rule change is not 
unfairly discriminatory because it will apply equally to all 
Participants.

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

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition not necessary or appropriate in 
furtherance of the purposes of the Act. The proposed rule change is 
designed to protect Participants from the possibility of a cost 
increase by excluding days when overall participation might be 
significantly lower than a typical trading day. The Exchange believes 
that the proposed modifications to its tier calculations are pro-
competitive and will result in lower total costs to end users, a 
positive outcome of competitive markets. Furthermore, other options 
exchanges have adopted rules that are substantially similar to the 
Exchange's proposal.\20\
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    \20\ See notes 4 and 12 above.
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    The Exchange operates in a highly competitive market in which 
market participants can readily direct their order flow to competing 
venues. In such an environment, the Exchange must continually review, 
and consider adjusting, its fees and rebates to remain competitive with 
other exchanges. For the reasons described above, the Exchange believes 
that the proposed fee changes reflect this competitive environment.

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

    No written comments were either solicited or received.

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

    The foregoing rule change has become effective pursuant to Section 
19(b)(3)(A)(ii) of the Act \21\ and paragraph (f) of Rule 19b-4 
thereunder.\22\ 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.
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    \21\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \22\ 17 CFR 240.19b-4(f).
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IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
     Send an email to rule-comments@sec.gov. Please include 
File Number SR-BX-2019-001 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-BX-2019-001. This file 
number should be included on the subject line if email is used. To help 
the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's internet website (https://www.sec.gov/rules/sro.shtml). 
Copies of the submission, all subsequent amendments, all written 
statements with respect to the proposed rule change that are filed with 
the Commission, and all written communications relating to the proposed 
rule change between the Commission and any person, other than those 
that may be withheld from the public in accordance with the provisions 
of 5 U.S.C. 552, will be available for website viewing and printing in 
the Commission's Public Reference Room, 100 F Street NE, Washington, DC 
20549, on official business days between the hours of 10:00 a.m. and 
3:00 p.m. Copies of the filing also will be available for inspection 
and copying at the principal office of the Exchange. All comments 
received will be posted without change. Persons submitting comments are 
cautioned that we do not redact or edit personal identifying 
information from comment submissions. You should submit only 
information that you wish to make available publicly. All submissions 
should refer to File Number SR-BX-2019-001, and should be submitted on 
or before March 14, 2019.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\23\
---------------------------------------------------------------------------

    \23\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Deputy Secretary.
[FR Doc. 2019-02891 Filed 2-20-19; 8:45 am]
 BILLING CODE 8011-01-P
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