Self-Regulatory Organizations; Nasdaq BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Adopt a New Rule Titled Transfer of Positions Within Options 6, Section 5, 22493-22498 [2020-08493]
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Federal Register / Vol. 85, No. 78 / Wednesday, April 22, 2020 / Notices
proposed rule change permits, in
limited circumstances, a transfer to
facilitate non-routine, nonrecurring
movements of positions. As provided
for in proposed Options 6, Section 5(g),
it would not be used repeatedly or
routinely in circumvention of the
normal auction market process.
Proposed Options 6, Section 5(a)
specifically provides within the rule
text that the Exchange’s Chief Executive
Officer or President (or senior-level
designee) may in his or her judgment
allow a transfer for the maintenance of
a fair and orderly market and the
protection of investors and is in the
public interest. The Exchange believes
that the exemption does not impose an
undue burden on competition as the
Exchange’s Chief Executive Officer or
President (or senior-level designee)
would apply the exemption consistent
with the guidance within Options 6,
Section 5(f). Additionally, as discussed
above, the proposed rule change is
similar to Cboe Rule 6.7. The Exchange
believes having similar rules related to
transfer positions to those of other
options exchanges will reduce the
administrative burden on market
participants of determining whether
their transfers comply with multiple
sets of rules.
4(f)(6)(iii) 25 permits the Commission to
designate a shorter time if such action
is consistent with the protection of
investors and the public interest. The
Exchange has asked the Commission to
waive the 30-day operative delay. The
Commission notes that waiver of the
operative delay would provide Members
with the ability to request a transfer, for
limited, non-recurring types of transfers,
without the need for exposing those
orders on the Exchange, similar to
Cboe.26 The Commission believes that
waiver of the 30-day operative delay is
consistent with the protection of
investors and the public interest.
Accordingly, the Commission waives
the 30-day operative delay and
designates the proposed rule change
operative upon filing.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. If the
Commission takes such action, the
Commission shall institute proceedings
to determine whether the proposed rule
should be approved or disapproved.
C. Self-Regulatory Organization’s
Statement on Comments on the
Proposed Rule Change Received From
Members, Participants, or Others
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:
No written comments were either
solicited or received.
III. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
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Because the foregoing proposed rule
change does not: (i) Significantly affect
the protection of investors or the public
interest; (ii) impose any significant
burden on competition; and (iii) become
operative for 30 days from the date on
which it was filed, or such shorter time
as the Commission may designate, it has
become effective pursuant to Section
19(b)(3)(A)(iii) of the Act 23 and
subparagraph (f)(6) of Rule 19b–4
thereunder.24
A proposed rule change filed under
Rule 19b–4(f)(6) normally does not
become operative for 30 days from the
date of filing. However, Rule 19b–
23 15
U.S.C. 78s(b)(3)(A)(iii).
CFR 240.19b–4(f)(6). In addition, Rule 19b–
4(f)(6) requires a self-regulatory organization to give
the Commission written notice of its intent to file
the proposed rule change at least five business days
prior to the date of filing of the proposed rule
change, or such shorter time as designated by the
Commission. The Exchange has satisfied this
requirement.
24 17
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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–
GEMX–2020–10 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–GEMX–2020–10. 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
25 17
CFR 240.19b–4(f)(6)(iii).
CBOE Rule 6.7.
27 For purposes only of waiving the 30-day
operative delay, the Commission has also
considered the proposed rule’s impact on
efficiency, competition, and capital formation. See
15 U.S.C. 78c(f).
26 See
PO 00000
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22493
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–GEMX–2020–10 and
should be submitted on or before May
13, 2020.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.28
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020–08492 Filed 4–21–20; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–88672; File No. SR–BX–
2020–006]
Self-Regulatory Organizations; Nasdaq
BX, Inc.; Notice of Filing and
Immediate Effectiveness of Proposed
Rule Change To Adopt a New Rule
Titled Transfer of Positions Within
Options 6, Section 5
April 16, 2020.
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934
(‘‘Act’’),1 and Rule 19b–4 thereunder,2
notice is hereby given that on April 14,
2020, Nasdaq BX, Inc. (‘‘BX’’ or
‘‘Exchange’’) filed with the Securities
and Exchange Commission
(‘‘Commission’’) the proposed rule
28 17
CFR 200.30–3(a)(12).
U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
1 15
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Federal Register / Vol. 85, No. 78 / Wednesday, April 22, 2020 / Notices
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 adopt a
new rule titled ‘‘Transfer of Positions’’
within BX Options 6, Section 5.
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
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1. Purpose
The Exchange proposes to adopt a
new rule titled, ‘‘Transfer of Positions’’
within BX Options 6, Section 5, which
is currently reserved. Today, BX does
not permit transfers. This proposed rule
specifies the specific limited
circumstances under which a
Participant may effect transfers of
positions. This rule would permit
market participants to move positions
from one account to another without
first exposure of the transaction on the
BX. This rule would permit transfers
upon the occurrence of significant, nonrecurring events. The proposed rule
change is similar to Cboe Rule 6.7.3
Permissible Transfers
The Exchange proposes to adopt new
Options 6, Section 5 titled ‘‘Transfer of
3 See Securities and Exchange Act Release No.
88424 (March 19, 2020), 85 FR 16981 (March 25,
2020) (SR–Cboe–2019–035) (Notice of Filing of
Amendment Nos. 1 and 2 and Order Granting
Accelerated Approval of a Proposed Rule Change,
as Modified by Amendment Nos. 1 and 2, Regarding
Off-Floor Position Transfers).
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Positions’’ to provide for the
circumstances pursuant to which
Participants may transfer their options
positions without first exposing the
order. This rule states that a Participant
must be on at least one side of the
transfer. This rule is similar to CBOE
Rule 6.7. Currently, BX has no rule that
specifically addresses transfers.
The Exchange proposes to provide at
proposed Options 6, Section 5(a),
‘‘Permissible Transfers. Existing
positions in options listed on the
Exchange of a Participant or nonParticipant that are to be transferred on,
from, or to the books of a Clearing
Participant may be transferred off the if
the transfer involves one or more of the
following events:
(1) Pursuant to General 9, Section 1,
an adjustment or transfer in connection
with the correction of a bona fide error
in the recording of a transaction or the
transferring of a position to another
account, provided that the original trade
documentation confirms the error;
(2) the transfer of positions from one
account to another account where no
change in ownership is involved (i.e.,
accounts of the same Person, provided
the accounts are not in separate
aggregation units or otherwise subject to
information barrier or account
segregation requirements;
(3) the consolidation of accounts
where no change in ownership is
involved;
(4) a merger, acquisition,
consolidation, or similar non-recurring
transaction for a Person;
(5) the dissolution of a joint account
in which the remaining Participant
assumes the positions of the joint
account;
(6) the dissolution of a corporation or
partnership in which a former nominee
of the corporation or partnership
assumes the positions;
(7) positions transferred as part of a
Participant’s capital contribution to a
new joint account, partnership, or
corporation;
(8) the donation of positions to a notfor-profit corporation;
(9) the transfer of positions to a minor
under the Uniform Gifts to Minors Act;
or
(10) the transfer of positions through
operation of law from death,
bankruptcy, or otherwise.4
The Exchange proposes to define
‘‘Person’’ as ‘‘an individual, partnership
(general or limited), joint stock
company, corporation, limited liability
company, trust or unincorporated
organization, or any governmental entity
or agency or political subdivision
4 See
PO 00000
Cboe Rule 6.7(a).
Frm 00102
Fmt 4703
Sfmt 4703
thereof.’’ 5 The proposed rule change
makes clear that the transferred
positions must be on, from, or to the
books of a Clearing Member. The
proposed rule change states that existing
positions of a Participant or a nonParticipant may be subject to a transfer,
except under specified circumstances in
which a transfer may only be effected
for positions of a Participant.6 The
Exchange notes transfers of positions in
Exchange-listed options may also be
subject to applicable laws, rules, and
regulations, including rules of other
self-regulatory organizations.7 Except as
explicitly provided in the proposed rule
text, the proposed rule change is not
intended to exempt position transfers
from any other applicable rules or
regulations, and proposed paragraph (h)
makes this clear in the rule.
Proposed Options 6, Section (b)
codifies Exchange guidance regarding
certain restrictions on permissible
transfers related to netting of open
positions and to margin and haircut
treatment, unless otherwise permitted
by proposed paragraph (f). No position
may net against another position
(‘‘netting’’), and no position transfer
may result in preferential margin or
haircut treatment.8 Netting occurs when
long positions and short positions in the
same series ‘‘offset’’ against each other,
leaving no or a reduced position. For
example, if a Participant wanted to
transfer 100 long calls to another
account that contained short calls of the
same options series as well as other
positions, even if the transfer is
permitted pursuant to one of the 10
permissible events listed in the
proposed Rule, the Participant could not
transfer the offsetting series, as they
would net against each other and close
the positions.9
However, netting is permitted for
transfers on behalf of a Market Maker
account for transactions in multiply
listed options series on different options
exchanges, but only if the Market Maker
nominees are trading for the same
Participant, and the options transactions
on the different options exchanges clear
into separate exchange-specific accounts
because they cannot easily clear into the
same Market Maker account at the
Clearing Corporation. In such instances,
all Market Maker positions in the
5 See
Cboe Rule 1.1.
proposed Options 6, Section 5(a)(5) and (7).
7 See proposed Options 6, Section 5(h).
8 For example, positions may not transfer from a
customer, joint back office, or firm account to a
Market Maker account. However, positions may
transfer from a Market Maker account to a customer,
joint back office, or firm account (assuming no
netting of positions occurs).
9 See Cboe Rule 6.7(b).
6 See
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exchange-specific accounts for the
multiply listed class would be
automatically transferred on their trade
date into one central Market Maker
account (commonly referred to as a
‘‘universal account’’) at the Clearing
Corporation. Positions cleared into a
universal account would automatically
net against each other. Options
exchanges permit different naming
conventions with respect to Market
Maker account acronyms (for example,
lettering versus numbering and number
of characters), which are used for
accounts at the Clearing Corporation. A
Market Maker may have a nominee with
an appointment in class XYZ on Phlx,
and have another nominee with an
appointment in class XYZ on BX, but
due to account acronym naming
conventions, those nominees may need
to clear their transactions into separate
accounts (one for Phlx Options
transactions and another for BX
transactions) at the Clearing Corporation
rather into a universal account (in
which account the positions may net).
The proposed rule change permits
transfers from these separate exchangespecific accounts into the Market
Maker’s universal account in this
circumstance to achieve this purpose.
Transfer Price
Proposed Options 6, Section 5(c)
states the transfer price, to the extent it
is consistent with applicable laws, rules,
and regulations, including rules of other
self-regulatory organizations, and tax
and accounting rules and regulations, at
which an transfer is effected may be: (1)
The original trade prices of the positions
that appear on the books of the trading
Clearing Participant, in which case the
records of the transfer must indicate the
original trade dates for the positions;
provided, transfers to correct bona fide
errors pursuant to proposed
subparagraph (a)(1) must be transferred
at the correct original trade prices; (2)
mark-to-market prices of the positions at
the close of trading on the transfer date;
(3) mark-to-market prices of the
positions at the close of trading on the
trade date prior to the transfer date; 10 or
(4) the then-current market price of the
positions at the time the transfer is
effected.11
This proposed rule change provides
market participants that effect
transactions with flexibility to select a
transfer price based on circumstances of
the transfer and their business.
However, for corrections of bona fide
10 For example, for a transfer that occurs on a
Tuesday, the transfer price may be based on the
closing market price on Monday.
11 See Cboe Rule 6.7(c).
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errors, because those transfers are
necessary to correct processing errors
that occurred at the time of transaction,
those transfers would occur at the
original transaction price, as the
purpose of the transfer is to create the
originally intended result of the
transaction.
Prior Written Notice
Proposed Options 6, Section 5(d)
requires a Participant and its Clearing
Participant (to the extent that the
Participant is not self-clearing) to
submit to the Exchange, in a manner
determined by the Exchange, written
notice prior to effecting an transfer from
or to the account of a Participant(s).12
The notice must indicate: the Exchangelisted options positions to be
transferred; the nature of the
transaction; the enumerated provision(s)
under proposed paragraph (a) pursuant
to which the positions are being
transferred; the name of the
counterparty(ies); the anticipated
transfer date; the method for
determining the transfer price; and any
other information requested by the
Exchange.13 The proposed notice will
ensure the Exchange is aware of all
transfers so that it can monitor and
review them (including the records that
must be retained pursuant to proposed
paragraph (e)) to determine whether
they are effected in accordance with the
Rules.
Additionally, requiring notice from
the Participant(s) and its Clearing
Participant(s) will ensure both parties
are in agreement with respect to the
terms of the transfer. As noted in
proposed subparagraph (d)(2), receipt of
notice of an transfer does not constitute
a determination by the Exchange that
the transfer was effected or reported in
conformity with the requirements of
proposed Section 10(b).
Notwithstanding submission of written
notice to the Exchange, Participants and
Clearing Participants that effect transfers
that do not conform to the requirements
of proposed Section 10(b) will be
subject to appropriate disciplinary
action in accordance with the Rules.
Records
Similarly, proposed Options 6,
Section 5(e) requires each Participant
and each Clearing Participant that is a
party to a transfer must make and retain
records of the information provided in
12 This notice provision applies only to transfers
involving a Participant’s positions and not to
positions of non-Participant parties, as they are not
subject to the Rules. In addition, no notice would
be required to effect transfers to correct bona fide
errors pursuant to proposed subparagraph (a)(1).
13 See Cboe Rule 6.7(d).
PO 00000
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22495
the written notice to the Exchange
pursuant to proposed subparagraph
(e)(1), as well as information on the
actual Exchange-listed options that are
ultimately transferred, the actual
transfer date, and the actual transfer
price (and the original trade dates, if
applicable), and any other information
the Exchange may request the
Participant or Clearing Participant
provide.14
Presidential Exemption
Proposed paragraph (f) provides
exemptions approved by the Exchange’s
Chief Executive Officer or President (or
senior-level designee). Specifically, this
provision is in addition to the
exemptions set forth in proposed
paragraph (a). The Exchange proposes
that the Exchange Chief Executive
Officer or President (or senior-level
designee) may grant an exemption from
the requirement of this proposed Rule,
on his or her own motion or upon
application of the Participant (with
respect to the Participant’s positions) or
a Clearing Member (with respect to
positions carried and cleared by the
Clearing Members). The Chief Executive
Officer, the President or his or her
designee, may permit a transfer if
necessary or appropriate for the
maintenance of a fair and orderly
market and the protection of investors
and is in the public interest, including
due to unusual or extraordinary
circumstances. For example, an
exemption may be granted if the market
value of the Person’s positions would be
compromised by having to comply with
the requirement to trade on the
Exchange pursuant to the normal
auction process or when, in the
judgment of the Chief Executive Officer,
President or his or her designee, market
conditions make trading on the
Exchange impractical.15
Routine, Recurring Transfers
The Exchange proposes within
Options 6, Section 5(g) that the transfer
procedure set forth in Options 6,
Section 5 is intended to facilitate nonroutine, nonrecurring movements of
positions.16 The transfer procedure is
not to be used repeatedly or routinely in
circumvention of the normal auction
market process.
Exchange-Listed Options
The Exchange proposes within
Options 6, Section 5(h) notes that the
transfer procedure set forth in Options
6, Section 5 is only applicable to
14 See
Cboe Rule 6.7(e).
Cboe Rule 6.7(f).
16 See Cboe Rule 6.7(g).
15 See
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Federal Register / Vol. 85, No. 78 / Wednesday, April 22, 2020 / Notices
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positions in options listed on the
Exchange. Transfers of positions in
Exchange-listed options may also be
subject to applicable laws, rules, and
regulations, including rules of other
self-regulatory organizations. Transfers
of non-Exchange listed options and
other financial instruments are not
governed by this Rule.17
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 Section 6(b)(5) of the Act,19
in particular, in that it is designed to
promote just and equitable principles of
trade, to remove impediments to and
perfect the mechanism of a free and
open market and a national market
system, and, in general to protect
investors and the public interest.
Specifically, the Exchange believes
the proposed transfer rule is consistent
with the Section 6(b)(5) 20 requirements
that the rules of an exchange be
designed to prevent fraudulent and
manipulative acts and practices, to
promote just and equitable principles of
trade, to foster cooperation and
coordination with persons engaged in
regulating, clearing, settling, processing
information with respect to, and
facilitating transactions in securities, to
remove impediments to and perfect the
mechanism of a free and open market
and a national market system, and, in
general, to protect investors and the
public interest. Additionally, the
Exchange believes the proposed rule
change is consistent with the Section
6(b)(5) 21 requirement that the rules of
an exchange not be designed to permit
unfair discrimination between
customers, issuers, brokers, or dealers.
The Exchange believes that permitting
transfers under new Options 6, Section
5 in very limited circumstances is
reasonable to allow a Member to
accomplish certain goals efficiently. The
proposed rule permits transfers in
situations involving dissolutions of
entities or accounts, for purposes of
donations, mergers or by operation of
law. For example, a Participant that is
undergoing a structural change and a
one-time movement of positions may
require a transfer of positions or a
Participant that is leaving a firm that
will no longer be in business may
require a transfer of positions to another
firm. Also, a Participant may require a
transfer of positions to make a capital
17 See
Cboe Rule 6.7(h).
U.S.C. 78f(b).
19 15 U.S.C. 78f(b)(5).
20 15 U.S.C. 78f(b)(5).
21 Id.
18 15
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contribution. The above-referenced
circumstances are non-recurring
situations where the transferor
continues to maintain some ownership
interest or manage the positions
transferred. By contrast, repeated or
routine transfers between entities or
accounts—even if there is no change in
beneficial ownership as a result of the
transfer—is inconsistent with the
purposes for which the proposed rule
was adopted. Accordingly, the Exchange
believes that such activity should not be
permitted under the rules and thus,
seeks to adopt language in proposed
paragraph (f) to proposed Options 6,
Section 5 that the transfer of positions
procedures set forth the proposed rule
are intended to facilitate non-recurring
movements of positions.
The proposed rule change will
provide market participants that
experience these limited, non-recurring
events with an efficient and effective
means to transfer positions in these
situations. The Exchange believes the
proposed rule change regarding
permissible transfer prices provides
market participants with flexibility to
determine the price appropriate for their
business, which maintain cost bases in
accordance with normal accounting
practices and removes impediments to a
free and open market.
The proposed rule change which
requires notice and maintenance of
records will ensure the Exchange is able
to review transfers for compliance with
the Rules, which prevents fraudulent
and manipulative acts and practices.
The requirement to retain records is
consistent with the requirements of Rule
17a–3 and 17a–4 under the Act.
Similar to Cboe Rule 6.7, the
Exchange would permit a presidential
exemption. The Exchange believes that
this exemption is consistent with the
Act because the Exchange’s Chief
Executive Officer or President (or
senior-level designee) would consider
an exemption in very limited
circumstances. The transfer process is
intended to facilitate non-routine,
nonrecurring movements of positions
and, therefore, is not to be used
repeatedly or routinely in
circumvention of the normal auction
market process. Proposed Options 6,
Section 5(f) specifically provides within
the rule text that the Exchange’s Chief
Executive Officer or President (or
senior-level designee) may in his or her
judgment allow a transfer if it is
necessary or appropriate for the
maintenance of a fair and orderly
market and the protection of investors
and is in the public interest, including
due to unusual or extraordinary
circumstances such as the market value
PO 00000
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of the Person’s positions will be
comprised by having to comply with the
requirement to trade on the Exchange
pursuant to the normal auction process
or, when in the judgment of President
or his or her designee, market
conditions make trading on the
Exchange impractical. These standards
within proposed Options 6, Section 5(f)
are intended to provide guidance
concerning the use of this exemption
which is intended to provide the
Exchange with the ability to utilize the
exemption for the maintenance of a fair
and orderly market and the protection of
investors and is in the public interest.
The Exchange believes that the
exemption is consistent with the Act
because it would allow the Exchange’s
Chief Executive Officer or President (or
senior-level designee) to act in certain
situations which comply with the
guidance within Options 6, Section 5(f)
which are intended to protect investors
and the general public. While Cboe
grants an exemption to the President (or
senior-level designee),22 the Exchange
has elected to grant an exemption to
Exchange’s Chief Executive Officer or
President (or senior-level designee),
who are similarly situated with the
organization as senior-level individuals.
B. Self-Regulatory Organization’s
Statement on Burden on Competition
The Exchange does not believe that
the proposed rule change will impose
any burden on competition that is not
necessary or appropriate in furtherance
of the purposes of the Act.
The Exchange does not believe the
proposed rule change will impose an
undue burden on intra-market
competition as the transfer procedure
may be utilized by any Participant and
the rule will apply uniformly to all
Participants. Use of the transfer
procedure is voluntary, and all
Participants may use the procedure to
transfer positions as long as the criteria
in the proposed rule are satisfied. With
this change, a Participant that
experiences limited permissible, nonrecurring events would have an efficient
and effective means to transfer positions
in these situations. The Exchange
believes the proposed rule change
regarding permissible transfer prices
provides market participants with
flexibility to determine the price
appropriate for their business, which
determine prices in accordance with
normal accounting practices and
removes impediments to a free and open
market. The Exchange does not believe
the proposed notice and record
requirements are unduly burdensome to
22 See
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Federal Register / Vol. 85, No. 78 / Wednesday, April 22, 2020 / Notices
market participants. The Exchange
believes the proposed requirements are
reasonable and will ensure the
Exchange is aware of transfers and
would be able to monitor and review the
transfers to ensure the transfer falls
within the proposed rule.
Adopting an exemption, similar to
Cboe Rule 6.7, to permit the Exchange’s
Chief Executive Officer or President (or
senior-level designee) to grant an
exemption to Options 6, Section 5(a)
prohibition if, in his or her judgment,
does not impose an undue burden on
competition. Circumstances where, due
to unusual or extraordinary
circumstances such as the market value
of the Person’s positions would be
comprised by having to comply with the
requirement to trade on the Exchange
pursuant to the normal auction process
or, would be taken into consideration in
each case where, in the judgment of the
Exchange’s Chief Executive Officer or
President (or senior-level designee),
market conditions make trading on the
Exchange impractical.
The Exchange does not believe the
proposed rule change will impose an
undue burden on inter-market
competition. The proposed position
transfer procedure is not intended to be
a competitive trading tool. The
proposed rule change permits, in
limited circumstances, a transfer to
facilitate non-routine, nonrecurring
movements of positions. As provided
for in proposed Options 6, Section 5(g),
it would not be used repeatedly or
routinely in circumvention of the
normal auction market process.
Proposed Options 6, Section 5(a)
specifically provides within the rule
text that the Exchange’s Chief Executive
Officer or President (or senior-level
designee) may in his or her judgment
allow a transfer for the maintenance of
a fair and orderly market and the
protection of investors and is in the
public interest. The Exchange believes
that the exemption does not impose an
undue burden on competition as the
Exchange’s Chief Executive Officer or
President (or senior-level designee)
would apply the exemption consistent
with the guidance within Options 6,
Section 5(f). Additionally, as discussed
above, the proposed rule change is
similar to Cboe Rule 6.7. The Exchange
believes having similar rules related to
transfer positions to those of other
options exchanges will reduce the
administrative burden on market
participants of determining whether
their transfers comply with multiple
sets of rules.
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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
Because the foregoing proposed rule
change does not: (i) Significantly affect
the protection of investors or the public
interest; (ii) impose any significant
burden on competition; and (iii) become
operative for 30 days from the date on
which it was filed, or such shorter time
as the Commission may designate, it has
become effective pursuant to Section
19(b)(3)(A)(iii) of the Act 23 and
subparagraph (f)(6) of Rule 19b–4
thereunder.24
A proposed rule change filed under
Rule 19b–4(f)(6) normally does not
become operative for 30 days from the
date of filing. However, Rule 19b–
4(f)(6)(iii) 25 permits the Commission to
designate a shorter time if such action
is consistent with the protection of
investors and the public interest. The
Exchange has asked the Commission to
waive the 30-day operative delay. The
Commission notes that waiver of the
operative delay would provide
Participants with the ability to request
a transfer, for limited, non-recurring
types of transfers, without the need for
exposing those orders on the Exchange,
similar to Cboe.26 The Commission
believes that waiver of the 30-day
operative delay is consistent with the
protection of investors and the public
interest. Accordingly, the Commission
waives the 30-day operative delay and
designates the proposed rule change
operative upon filing.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
23 15
U.S.C. 78s(b)(3)(A)(iii).
CFR 240.19b–4(f)(6). In addition, Rule 19b–
4(f)(6) requires a self-regulatory organization to give
the Commission written notice of its intent to file
the proposed rule change at least five business days
prior to the date of filing of the proposed rule
change, or such shorter time as designated by the
Commission. The Exchange has satisfied this
requirement.
25 17 CFR 240.19b–4(f)(6)(iii).
26 See CBOE Rule 6.7.
27 For purposes only of waiving the 30-day
operative delay, the Commission has also
considered the proposed rule’s impact on
efficiency, competition, and capital formation. See
15 U.S.C. 78c(f).
24 17
PO 00000
Frm 00105
Fmt 4703
Sfmt 4703
22497
the purposes of the Act. If the
Commission takes such action, the
Commission shall institute proceedings
to determine whether the proposed rule
should be approved or disapproved.
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–2020–006 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–2020–006. 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
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22498
Federal Register / Vol. 85, No. 78 / Wednesday, April 22, 2020 / Notices
Number SR–BX–2020–006 and should
be submitted on or before May 13, 2020.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.28
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020–08493 Filed 4–21–20; 8:45 am]
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–88669; File No. SR–MRX–
2020–10]
Self-Regulatory Organizations; Nasdaq
MRX, LLC; Notice of Filing and
Immediate Effectiveness of Proposed
Rule Change To Adopt a New Rule
Titled Transfer of Positions Within
Options 6, Section 5
April 16, 2020.
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934
(‘‘Act’’),1 and Rule 19b–4 thereunder,2
notice is hereby given that on April 7,
2020, Nasdaq MRX, LLC (‘‘MRX’’ or
‘‘Exchange’’) filed with the Securities
and Exchange Commission
(‘‘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.
khammond on DSKJM1Z7X2PROD with NOTICES
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange proposes to adopt a
new rule titled ‘‘Transfer of Positions’’
within Options 6, Section 5.
The text of the proposed rule change
is available on the Exchange’s website at
https://nasdaqmrx.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
CFR 200.30–3(a)(12).
1 15 U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
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A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
1. Purpose
BILLING CODE 8011–01–P
28 17
forth in sections A, B, and C below, of
the most significant aspects of such
statements.
The Exchange proposes to adopt a
new rule titled, ‘‘Transfer of Positions’’
within Options 6, Section 5, which is
currently reserved. Today, MRX does
not permit transfers. This proposed rule
specifies the specific limited
circumstances under which a Member
may effect transfers of positions. This
rule would permit market participants
to move positions from one account to
another without first exposure of the
transaction on the MRX. This rule
would permit transfers upon the
occurrence of significant, non-recurring
events. The proposed rule change is
similar to Cboe Rule 6.7.3
Permissible Transfers
The Exchange proposes to adopt new
Options 6, Section 5 titled ‘‘Transfer of
Positions’’ to provide for the
circumstances pursuant to which
Members may transfer their options
positions without first exposing the
order. This rule states that a Member
must be on at least one side of the
transfer. This rule is similar to CBOE
Rule 6.7. Currently, MRX has no rule
that specifically addresses transfers.
The Exchange proposes to provide at
proposed Options 6, Section 5(a),
‘‘Permissible Transfers. Existing
positions in options listed on the
Exchange of a Member or non-Member
that are to be transferred on, from, or to
the books of a Clearing Member may be
transferred off the Exchange if the
transfer involves one or more of the
following events:
(1) Pursuant to Options 9, Section 5,
an adjustment or transfer in connection
with the correction of a bona fide error
in the recording of a transaction or the
transferring of a position to another
account, provided that the original trade
documentation confirms the error;
(2) the transfer of positions from one
account to another account where no
change in ownership is involved (i.e.,
accounts of the same Person, provided
the accounts are not in separate
aggregation units or otherwise subject to
3 See Securities and Exchange Act Release No.
88424 (March 19, 2020), 85 FR 16981 (March 25,
2020) (SR–Cboe–2019–035) (Notice of Filing of
Amendment Nos. 1 and 2 and Order Granting
Accelerated Approval of a Proposed Rule Change,
as Modified by Amendment Nos. 1 and 2, Regarding
Off-Floor Position Transfers).
PO 00000
Frm 00106
Fmt 4703
Sfmt 4703
information barrier or account
segregation requirements;
(3) the consolidation of accounts
where no change in ownership is
involved;
(4) a merger, acquisition,
consolidation, or similar non-recurring
transaction for a Person;
(5) the dissolution of a joint account
in which the remaining Member
assumes the positions of the joint
account;
(6) the dissolution of a corporation or
partnership in which a former nominee
of the corporation or partnership
assumes the positions;
(7) positions transferred as part of a
Member’s capital contribution to a new
joint account, partnership, or
corporation;
(8) the donation of positions to a notfor-profit corporation;
(9) the transfer of positions to a minor
under the Uniform Gifts to Minors Act;
or
(10) the transfer of positions through
operation of law from death,
bankruptcy, or otherwise.4
The Exchange proposes to define
‘‘Person’’ as ‘‘an individual, partnership
(general or limited), joint stock
company, corporation, limited liability
company, trust or unincorporated
organization, or any governmental entity
or agency or political subdivision
thereof.’’ 5 The proposed rule change
makes clear that the transferred
positions must be on, from, or to the
books of a Clearing Member. The
proposed rule change states that existing
positions of a Member or a non-Member
may be subject to an transfer, except
under specified circumstances in which
a transfer may only be effected for
positions of a Member.6 The Exchange
notes transfers of positions in Exchangelisted options may also be subject to
applicable laws, rules, and regulations,
including rules of other self-regulatory
organizations.7 Except as explicitly
provided in the proposed rule text, the
proposed rule change is not intended to
exempt position transfers from any
other applicable rules or regulations,
and proposed paragraph (h) makes this
clear in the rule.
Proposed Options 6, Section (b)
codifies Exchange guidance regarding
certain restrictions on permissible
transfers related to netting of open
positions and to margin and haircut
treatment, unless otherwise permitted
by proposed paragraph (f). No position
may net against another position
4 See
Cboe Rule 6.7(a).
Cboe Rule 1.1.
6 See proposed Options 6, Section 5(a)(5) and (7).
7 See proposed Options 6, Section 5(h).
5 See
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]]>Agencies
[Federal Register Volume 85, Number 78 (Wednesday, April 22, 2020)]
[Notices]
[Pages 22493-22498]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08493]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-88672; File No. SR-BX-2020-006]
Self-Regulatory Organizations; Nasdaq BX, Inc.; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change To Adopt a New Rule
Titled Transfer of Positions Within Options 6, Section 5
April 16, 2020.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on April 14, 2020, Nasdaq BX, Inc. (``BX'' or ``Exchange'') filed with
the Securities and Exchange Commission (``Commission'') the proposed
rule
[[Page 22494]]
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.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------
I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange proposes to adopt a new rule titled ``Transfer of
Positions'' within BX Options 6, Section 5.
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
The Exchange proposes to adopt a new rule titled, ``Transfer of
Positions'' within BX Options 6, Section 5, which is currently
reserved. Today, BX does not permit transfers. This proposed rule
specifies the specific limited circumstances under which a Participant
may effect transfers of positions. This rule would permit market
participants to move positions from one account to another without
first exposure of the transaction on the BX. This rule would permit
transfers upon the occurrence of significant, non-recurring events. The
proposed rule change is similar to Cboe Rule 6.7.\3\
---------------------------------------------------------------------------
\3\ See Securities and Exchange Act Release No. 88424 (March 19,
2020), 85 FR 16981 (March 25, 2020) (SR-Cboe-2019-035) (Notice of
Filing of Amendment Nos. 1 and 2 and Order Granting Accelerated
Approval of a Proposed Rule Change, as Modified by Amendment Nos. 1
and 2, Regarding Off-Floor Position Transfers).
---------------------------------------------------------------------------
Permissible Transfers
The Exchange proposes to adopt new Options 6, Section 5 titled
``Transfer of Positions'' to provide for the circumstances pursuant to
which Participants may transfer their options positions without first
exposing the order. This rule states that a Participant must be on at
least one side of the transfer. This rule is similar to CBOE Rule 6.7.
Currently, BX has no rule that specifically addresses transfers.
The Exchange proposes to provide at proposed Options 6, Section
5(a), ``Permissible Transfers. Existing positions in options listed on
the Exchange of a Participant or non-Participant that are to be
transferred on, from, or to the books of a Clearing Participant may be
transferred off the if the transfer involves one or more of the
following events:
(1) Pursuant to General 9, Section 1, an adjustment or transfer in
connection with the correction of a bona fide error in the recording of
a transaction or the transferring of a position to another account,
provided that the original trade documentation confirms the error;
(2) the transfer of positions from one account to another account
where no change in ownership is involved (i.e., accounts of the same
Person, provided the accounts are not in separate aggregation units or
otherwise subject to information barrier or account segregation
requirements;
(3) the consolidation of accounts where no change in ownership is
involved;
(4) a merger, acquisition, consolidation, or similar non-recurring
transaction for a Person;
(5) the dissolution of a joint account in which the remaining
Participant assumes the positions of the joint account;
(6) the dissolution of a corporation or partnership in which a
former nominee of the corporation or partnership assumes the positions;
(7) positions transferred as part of a Participant's capital
contribution to a new joint account, partnership, or corporation;
(8) the donation of positions to a not-for-profit corporation;
(9) the transfer of positions to a minor under the Uniform Gifts to
Minors Act; or
(10) the transfer of positions through operation of law from death,
bankruptcy, or otherwise.\4\
---------------------------------------------------------------------------
\4\ See Cboe Rule 6.7(a).
---------------------------------------------------------------------------
The Exchange proposes to define ``Person'' as ``an individual,
partnership (general or limited), joint stock company, corporation,
limited liability company, trust or unincorporated organization, or any
governmental entity or agency or political subdivision thereof.'' \5\
The proposed rule change makes clear that the transferred positions
must be on, from, or to the books of a Clearing Member. The proposed
rule change states that existing positions of a Participant or a non-
Participant may be subject to a transfer, except under specified
circumstances in which a transfer may only be effected for positions of
a Participant.\6\ The Exchange notes transfers of positions in
Exchange-listed options may also be subject to applicable laws, rules,
and regulations, including rules of other self-regulatory
organizations.\7\ Except as explicitly provided in the proposed rule
text, the proposed rule change is not intended to exempt position
transfers from any other applicable rules or regulations, and proposed
paragraph (h) makes this clear in the rule.
---------------------------------------------------------------------------
\5\ See Cboe Rule 1.1.
\6\ See proposed Options 6, Section 5(a)(5) and (7).
\7\ See proposed Options 6, Section 5(h).
---------------------------------------------------------------------------
Proposed Options 6, Section (b) codifies Exchange guidance
regarding certain restrictions on permissible transfers related to
netting of open positions and to margin and haircut treatment, unless
otherwise permitted by proposed paragraph (f). No position may net
against another position (``netting''), and no position transfer may
result in preferential margin or haircut treatment.\8\ Netting occurs
when long positions and short positions in the same series ``offset''
against each other, leaving no or a reduced position. For example, if a
Participant wanted to transfer 100 long calls to another account that
contained short calls of the same options series as well as other
positions, even if the transfer is permitted pursuant to one of the 10
permissible events listed in the proposed Rule, the Participant could
not transfer the offsetting series, as they would net against each
other and close the positions.\9\
---------------------------------------------------------------------------
\8\ For example, positions may not transfer from a customer,
joint back office, or firm account to a Market Maker account.
However, positions may transfer from a Market Maker account to a
customer, joint back office, or firm account (assuming no netting of
positions occurs).
\9\ See Cboe Rule 6.7(b).
---------------------------------------------------------------------------
However, netting is permitted for transfers on behalf of a Market
Maker account for transactions in multiply listed options series on
different options exchanges, but only if the Market Maker nominees are
trading for the same Participant, and the options transactions on the
different options exchanges clear into separate exchange-specific
accounts because they cannot easily clear into the same Market Maker
account at the Clearing Corporation. In such instances, all Market
Maker positions in the
[[Page 22495]]
exchange-specific accounts for the multiply listed class would be
automatically transferred on their trade date into one central Market
Maker account (commonly referred to as a ``universal account'') at the
Clearing Corporation. Positions cleared into a universal account would
automatically net against each other. Options exchanges permit
different naming conventions with respect to Market Maker account
acronyms (for example, lettering versus numbering and number of
characters), which are used for accounts at the Clearing Corporation. A
Market Maker may have a nominee with an appointment in class XYZ on
Phlx, and have another nominee with an appointment in class XYZ on BX,
but due to account acronym naming conventions, those nominees may need
to clear their transactions into separate accounts (one for Phlx
Options transactions and another for BX transactions) at the Clearing
Corporation rather into a universal account (in which account the
positions may net). The proposed rule change permits transfers from
these separate exchange-specific accounts into the Market Maker's
universal account in this circumstance to achieve this purpose.
Transfer Price
Proposed Options 6, Section 5(c) states the transfer price, to the
extent it is consistent with applicable laws, rules, and regulations,
including rules of other self-regulatory organizations, and tax and
accounting rules and regulations, at which an transfer is effected may
be: (1) The original trade prices of the positions that appear on the
books of the trading Clearing Participant, in which case the records of
the transfer must indicate the original trade dates for the positions;
provided, transfers to correct bona fide errors pursuant to proposed
subparagraph (a)(1) must be transferred at the correct original trade
prices; (2) mark-to-market prices of the positions at the close of
trading on the transfer date; (3) mark-to-market prices of the
positions at the close of trading on the trade date prior to the
transfer date; \10\ or (4) the then-current market price of the
positions at the time the transfer is effected.\11\
---------------------------------------------------------------------------
\10\ For example, for a transfer that occurs on a Tuesday, the
transfer price may be based on the closing market price on Monday.
\11\ See Cboe Rule 6.7(c).
---------------------------------------------------------------------------
This proposed rule change provides market participants that effect
transactions with flexibility to select a transfer price based on
circumstances of the transfer and their business. However, for
corrections of bona fide errors, because those transfers are necessary
to correct processing errors that occurred at the time of transaction,
those transfers would occur at the original transaction price, as the
purpose of the transfer is to create the originally intended result of
the transaction.
Prior Written Notice
Proposed Options 6, Section 5(d) requires a Participant and its
Clearing Participant (to the extent that the Participant is not self-
clearing) to submit to the Exchange, in a manner determined by the
Exchange, written notice prior to effecting an transfer from or to the
account of a Participant(s).\12\ The notice must indicate: the
Exchange-listed options positions to be transferred; the nature of the
transaction; the enumerated provision(s) under proposed paragraph (a)
pursuant to which the positions are being transferred; the name of the
counterparty(ies); the anticipated transfer date; the method for
determining the transfer price; and any other information requested by
the Exchange.\13\ The proposed notice will ensure the Exchange is aware
of all transfers so that it can monitor and review them (including the
records that must be retained pursuant to proposed paragraph (e)) to
determine whether they are effected in accordance with the Rules.
---------------------------------------------------------------------------
\12\ This notice provision applies only to transfers involving a
Participant's positions and not to positions of non-Participant
parties, as they are not subject to the Rules. In addition, no
notice would be required to effect transfers to correct bona fide
errors pursuant to proposed subparagraph (a)(1).
\13\ See Cboe Rule 6.7(d).
---------------------------------------------------------------------------
Additionally, requiring notice from the Participant(s) and its
Clearing Participant(s) will ensure both parties are in agreement with
respect to the terms of the transfer. As noted in proposed subparagraph
(d)(2), receipt of notice of an transfer does not constitute a
determination by the Exchange that the transfer was effected or
reported in conformity with the requirements of proposed Section 10(b).
Notwithstanding submission of written notice to the Exchange,
Participants and Clearing Participants that effect transfers that do
not conform to the requirements of proposed Section 10(b) will be
subject to appropriate disciplinary action in accordance with the
Rules.
Records
Similarly, proposed Options 6, Section 5(e) requires each
Participant and each Clearing Participant that is a party to a transfer
must make and retain records of the information provided in the written
notice to the Exchange pursuant to proposed subparagraph (e)(1), as
well as information on the actual Exchange-listed options that are
ultimately transferred, the actual transfer date, and the actual
transfer price (and the original trade dates, if applicable), and any
other information the Exchange may request the Participant or Clearing
Participant provide.\14\
---------------------------------------------------------------------------
\14\ See Cboe Rule 6.7(e).
---------------------------------------------------------------------------
Presidential Exemption
Proposed paragraph (f) provides exemptions approved by the
Exchange's Chief Executive Officer or President (or senior-level
designee). Specifically, this provision is in addition to the
exemptions set forth in proposed paragraph (a). The Exchange proposes
that the Exchange Chief Executive Officer or President (or senior-level
designee) may grant an exemption from the requirement of this proposed
Rule, on his or her own motion or upon application of the Participant
(with respect to the Participant's positions) or a Clearing Member
(with respect to positions carried and cleared by the Clearing
Members). The Chief Executive Officer, the President or his or her
designee, may permit a transfer if necessary or appropriate for the
maintenance of a fair and orderly market and the protection of
investors and is in the public interest, including due to unusual or
extraordinary circumstances. For example, an exemption may be granted
if the market value of the Person's positions would be compromised by
having to comply with the requirement to trade on the Exchange pursuant
to the normal auction process or when, in the judgment of the Chief
Executive Officer, President or his or her designee, market conditions
make trading on the Exchange impractical.\15\
---------------------------------------------------------------------------
\15\ See Cboe Rule 6.7(f).
---------------------------------------------------------------------------
Routine, Recurring Transfers
The Exchange proposes within Options 6, Section 5(g) that the
transfer procedure set forth in Options 6, Section 5 is intended to
facilitate non-routine, nonrecurring movements of positions.\16\ The
transfer procedure is not to be used repeatedly or routinely in
circumvention of the normal auction market process.
---------------------------------------------------------------------------
\16\ See Cboe Rule 6.7(g).
---------------------------------------------------------------------------
Exchange-Listed Options
The Exchange proposes within Options 6, Section 5(h) notes that the
transfer procedure set forth in Options 6, Section 5 is only applicable
to
[[Page 22496]]
positions in options listed on the Exchange. Transfers of positions in
Exchange-listed options may also be subject to applicable laws, rules,
and regulations, including rules of other self-regulatory
organizations. Transfers of non-Exchange listed options and other
financial instruments are not governed by this Rule.\17\
---------------------------------------------------------------------------
\17\ See Cboe Rule 6.7(h).
---------------------------------------------------------------------------
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 Section
6(b)(5) of the Act,\19\ in particular, in that it is designed to
promote just and equitable principles of trade, to remove impediments
to and perfect the mechanism of a free and open market and a national
market system, and, in general to protect investors and the public
interest.
---------------------------------------------------------------------------
\18\ 15 U.S.C. 78f(b).
\19\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------
Specifically, the Exchange believes the proposed transfer rule is
consistent with the Section 6(b)(5) \20\ requirements that the rules of
an exchange be designed to prevent fraudulent and manipulative acts and
practices, to promote just and equitable principles of trade, to foster
cooperation and coordination with persons engaged in regulating,
clearing, settling, processing information with respect to, and
facilitating transactions in securities, to remove impediments to and
perfect the mechanism of a free and open market and a national market
system, and, in general, to protect investors and the public interest.
Additionally, the Exchange believes the proposed rule change is
consistent with the Section 6(b)(5) \21\ requirement that the rules of
an exchange not be designed to permit unfair discrimination between
customers, issuers, brokers, or dealers.
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\20\ 15 U.S.C. 78f(b)(5).
\21\ Id.
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The Exchange believes that permitting transfers under new Options
6, Section 5 in very limited circumstances is reasonable to allow a
Member to accomplish certain goals efficiently. The proposed rule
permits transfers in situations involving dissolutions of entities or
accounts, for purposes of donations, mergers or by operation of law.
For example, a Participant that is undergoing a structural change and a
one-time movement of positions may require a transfer of positions or a
Participant that is leaving a firm that will no longer be in business
may require a transfer of positions to another firm. Also, a
Participant may require a transfer of positions to make a capital
contribution. The above-referenced circumstances are non-recurring
situations where the transferor continues to maintain some ownership
interest or manage the positions transferred. By contrast, repeated or
routine transfers between entities or accounts--even if there is no
change in beneficial ownership as a result of the transfer--is
inconsistent with the purposes for which the proposed rule was adopted.
Accordingly, the Exchange believes that such activity should not be
permitted under the rules and thus, seeks to adopt language in proposed
paragraph (f) to proposed Options 6, Section 5 that the transfer of
positions procedures set forth the proposed rule are intended to
facilitate non-recurring movements of positions.
The proposed rule change will provide market participants that
experience these limited, non-recurring events with an efficient and
effective means to transfer positions in these situations. The Exchange
believes the proposed rule change regarding permissible transfer prices
provides market participants with flexibility to determine the price
appropriate for their business, which maintain cost bases in accordance
with normal accounting practices and removes impediments to a free and
open market.
The proposed rule change which requires notice and maintenance of
records will ensure the Exchange is able to review transfers for
compliance with the Rules, which prevents fraudulent and manipulative
acts and practices. The requirement to retain records is consistent
with the requirements of Rule 17a-3 and 17a-4 under the Act.
Similar to Cboe Rule 6.7, the Exchange would permit a presidential
exemption. The Exchange believes that this exemption is consistent with
the Act because the Exchange's Chief Executive Officer or President (or
senior-level designee) would consider an exemption in very limited
circumstances. The transfer process is intended to facilitate non-
routine, nonrecurring movements of positions and, therefore, is not to
be used repeatedly or routinely in circumvention of the normal auction
market process. Proposed Options 6, Section 5(f) specifically provides
within the rule text that the Exchange's Chief Executive Officer or
President (or senior-level designee) may in his or her judgment allow a
transfer if it is necessary or appropriate for the maintenance of a
fair and orderly market and the protection of investors and is in the
public interest, including due to unusual or extraordinary
circumstances such as the market value of the Person's positions will
be comprised by having to comply with the requirement to trade on the
Exchange pursuant to the normal auction process or, when in the
judgment of President or his or her designee, market conditions make
trading on the Exchange impractical. These standards within proposed
Options 6, Section 5(f) are intended to provide guidance concerning the
use of this exemption which is intended to provide the Exchange with
the ability to utilize the exemption for the maintenance of a fair and
orderly market and the protection of investors and is in the public
interest. The Exchange believes that the exemption is consistent with
the Act because it would allow the Exchange's Chief Executive Officer
or President (or senior-level designee) to act in certain situations
which comply with the guidance within Options 6, Section 5(f) which are
intended to protect investors and the general public. While Cboe grants
an exemption to the President (or senior-level designee),\22\ the
Exchange has elected to grant an exemption to Exchange's Chief
Executive Officer or President (or senior-level designee), who are
similarly situated with the organization as senior-level individuals.
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\22\ See Cboe Rule 6.7(f).
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B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act.
The Exchange does not believe the proposed rule change will impose
an undue burden on intra-market competition as the transfer procedure
may be utilized by any Participant and the rule will apply uniformly to
all Participants. Use of the transfer procedure is voluntary, and all
Participants may use the procedure to transfer positions as long as the
criteria in the proposed rule are satisfied. With this change, a
Participant that experiences limited permissible, non-recurring events
would have an efficient and effective means to transfer positions in
these situations. The Exchange believes the proposed rule change
regarding permissible transfer prices provides market participants with
flexibility to determine the price appropriate for their business,
which determine prices in accordance with normal accounting practices
and removes impediments to a free and open market. The Exchange does
not believe the proposed notice and record requirements are unduly
burdensome to
[[Page 22497]]
market participants. The Exchange believes the proposed requirements
are reasonable and will ensure the Exchange is aware of transfers and
would be able to monitor and review the transfers to ensure the
transfer falls within the proposed rule.
Adopting an exemption, similar to Cboe Rule 6.7, to permit the
Exchange's Chief Executive Officer or President (or senior-level
designee) to grant an exemption to Options 6, Section 5(a) prohibition
if, in his or her judgment, does not impose an undue burden on
competition. Circumstances where, due to unusual or extraordinary
circumstances such as the market value of the Person's positions would
be comprised by having to comply with the requirement to trade on the
Exchange pursuant to the normal auction process or, would be taken into
consideration in each case where, in the judgment of the Exchange's
Chief Executive Officer or President (or senior-level designee), market
conditions make trading on the Exchange impractical.
The Exchange does not believe the proposed rule change will impose
an undue burden on inter-market competition. The proposed position
transfer procedure is not intended to be a competitive trading tool.
The proposed rule change permits, in limited circumstances, a transfer
to facilitate non-routine, nonrecurring movements of positions. As
provided for in proposed Options 6, Section 5(g), it would not be used
repeatedly or routinely in circumvention of the normal auction market
process. Proposed Options 6, Section 5(a) specifically provides within
the rule text that the Exchange's Chief Executive Officer or President
(or senior-level designee) may in his or her judgment allow a transfer
for the maintenance of a fair and orderly market and the protection of
investors and is in the public interest. The Exchange believes that the
exemption does not impose an undue burden on competition as the
Exchange's Chief Executive Officer or President (or senior-level
designee) would apply the exemption consistent with the guidance within
Options 6, Section 5(f). Additionally, as discussed above, the proposed
rule change is similar to Cboe Rule 6.7. The Exchange believes having
similar rules related to transfer positions to those of other options
exchanges will reduce the administrative burden on market participants
of determining whether their transfers comply with multiple sets of
rules.
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
Because the foregoing proposed rule change does not: (i)
Significantly affect the protection of investors or the public
interest; (ii) impose any significant burden on competition; and (iii)
become operative for 30 days from the date on which it was filed, or
such shorter time as the Commission may designate, it has become
effective pursuant to Section 19(b)(3)(A)(iii) of the Act \23\ and
subparagraph (f)(6) of Rule 19b-4 thereunder.\24\
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\23\ 15 U.S.C. 78s(b)(3)(A)(iii).
\24\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)
requires a self-regulatory organization to give the Commission
written notice of its intent to file the proposed rule change at
least five business days prior to the date of filing of the proposed
rule change, or such shorter time as designated by the Commission.
The Exchange has satisfied this requirement.
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A proposed rule change filed under Rule 19b-4(f)(6) normally does
not become operative for 30 days from the date of filing. However, Rule
19b-4(f)(6)(iii) \25\ permits the Commission to designate a shorter
time if such action is consistent with the protection of investors and
the public interest. The Exchange has asked the Commission to waive the
30-day operative delay. The Commission notes that waiver of the
operative delay would provide Participants with the ability to request
a transfer, for limited, non-recurring types of transfers, without the
need for exposing those orders on the Exchange, similar to Cboe.\26\
The Commission believes that waiver of the 30-day operative delay is
consistent with the protection of investors and the public interest.
Accordingly, the Commission waives the 30-day operative delay and
designates the proposed rule change operative upon filing.\27\
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\25\ 17 CFR 240.19b-4(f)(6)(iii).
\26\ See CBOE Rule 6.7.
\27\ For purposes only of waiving the 30-day operative delay,
the Commission has also considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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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 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 (https://www.sec.gov/rules/sro.shtml); or
Send an email to [email protected]. Please include
File Number SR-BX-2020-006 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-2020-006. 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
[[Page 22498]]
Number SR-BX-2020-006 and should be submitted on or before May 13,
2020.
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\28\ 17 CFR 200.30-3(a)(12).
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\28\
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-08493 Filed 4-21-20; 8:45 am]
BILLING CODE 8011-01-P
