Self-Regulatory Organizations; Cboe BYX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Certain Rules in Connection With the Exchange's Disciplinary Process, 31556-31559 [2020-11133]
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Federal Register / Vol. 85, No. 101 / Tuesday, May 26, 2020 / Notices
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This notice issued in Washington, DC, on
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Virginia Burke,
FOIA/Privacy Act Officer/Management.
[FR Doc. 2020–11267 Filed 5–22–20; 8:45 am]
BILLING CODE 6051–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–88902; File No. SR–
CboeBYX–2020–015]
Self-Regulatory Organizations; Cboe
BYX Exchange, Inc.; Notice of Filing
and Immediate Effectiveness of a
Proposed Rule Change To Amend
Certain Rules in Connection With the
Exchange’s Disciplinary Process
May 19, 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 May 8,
2020, Cboe BYX Exchange, Inc. (the
‘‘Exchange’’ or ‘‘BYX’’) filed with the
Securities and Exchange Commission
1 15
U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
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19:08 May 22, 2020
Jkt 250001
(the ‘‘Commission’’) the proposed rule
change as described in Items I and II
below, which Items have been prepared
by the Exchange. The Exchange filed the
proposal as a ‘‘non-controversial’’
proposed rule change pursuant to
Section 19(b)(3)(A)(iii) of the Act 3 and
Rule 19b–4(f)(6) thereunder.4 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
Cboe BYX Exchange, Inc. (the
‘‘Exchange’’ or ‘‘BYX’’) proposes to
amend certain rules in connection with
the Exchange’s disciplinary process.
The text of the proposed rule change is
provided in Exhibit 5.
The text of the proposed rule change
is also available on the Exchange’s
website (https://markets.cboe.com/us/
equities/regulation/rule_filings/byx/), at
the Exchange’s Office of the Secretary,
and at the Commission’s Public
Reference Room.
II. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
In its filing with the Commission, the
Exchange included statements
concerning the purpose of and basis for
the proposed rule change and discussed
any comments it received on the
proposed rule change. The text of these
statements may be examined at the
places specified in Item IV below. The
Exchange has prepared summaries, set
forth in sections A, B, and C below, of
the most significant aspects of such
statements.
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
1. Purpose
The Exchange proposes to amend
Rule 8.8 in connection with the timing
before which an offer of settlement
becomes final, to amend Rule 8.10 in
connection with the Board’s review of
offers of settlement, and to amend Rule
8.11 to be consistent with the
corresponding rules of the Exchange’s
affiliated exchanges, Cboe Exchange,
Inc. (‘‘Cboe Options’’) and Cboe C2
Exchange, Inc. (‘‘C2’’).5
3 15
U.S.C. 78s(b)(3)(A)(iii).
CFR 240.19b–4(f)(6).
5 See Cboe Options Rule 13.11. The Exchange
notes that C2 incorporates Cboe Options
Disciplinary rules by reference.
First, the Exchange proposes to
amend Rule 8.8 which governs offers of
settlement during a disciplinary
proceeding pursuant to Chapter 8
(Discipline). Specifically, it proposes to
amend the timing for which the Chief
Regulatory Officer’s (‘‘CRO’’) decision
regarding an offer shall become final
pursuant to Rule 8.8(a). Rule 8.8(a)
currently provides that a Respondent
may submit to the CRO a written offer
of settlement, and the CRO may accept
an offer of settlement, and, in doing so,
issues a decision, including findings
and conclusions and imposing a
penalty, consistent with the terms of
such offer. Pursuant to Rule 8.8(a), the
CRO may also reject an offer of
settlement and the matter then proceeds
as if such offer had not been made.
According to Rule 8.8(a), a decision of
the CRO issued upon acceptance of an
offer of settlement as well as the
determination of the CRO whether to
accept or reject such an offer does not
currently become final until 20 business
days after such decision is issued, and
the Respondent may not seek review
thereof.
The Exchange proposes to eliminate
the 20-business day timeframe before
which the CRO’s determination and
decision in connection with an offer of
settlement becomes final. This is
consistent with the corresponding offer
of settlement rules of the Exchange’s
affiliated exchanges, Cboe Options and
C2,6 which do not have any such
waiting period before which the CRO’s
acceptance (and accompanying
decision) or rejection of an offer of
settlement becomes final. In addition to
providing consistency between the rules
of the affiliated exchanges, the proposed
rule change also removes a process that
unnecessarily prolongs disciplinary
proceedings. Where a matter could be
either immediately closed or continued
to the next steps of the proceedings
upon the CRO’s acceptance or rejection,
respectively, of an offer of settlement,
the current process unnecessarily leaves
a matter open.
Second, and in line with the proposed
rule change to Rule 8.8, the Exchange
also proposes to remove Rule 8.8 offers
of settlement from the list of certain
procedural decisions in Rule 8.10 that
may be reviewed by the Board on its
own initiative within 20 business days
after the issuance of the decision. This
is also consistent with the
corresponding disciplinary review rules
of Cboe Options and C2, which do not
include offers of settlement as decisions
4 17
PO 00000
Frm 00126
Fmt 4703
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6 See Cboe Options Rule 13.8(a). The Exchange
notes that C2 incorporates Cboe Options
Disciplinary rules by reference.
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Federal Register / Vol. 85, No. 101 / Tuesday, May 26, 2020 / Notices
that the Board may review on its own
initiative.7 The Exchange notes that the
Board has not previously initiated a
review of an offer of settlement.
Therefore, the Exchange believes
maintaining a 20-business day waiting
period for a review that is not invoked
is unnecessary and merely exhausts
additional Exchange and Member
resources in the time that a matter could
have been resolved or have continued
through proceedings. Allowing the CRO
to accept or reject offers of settlement
with finality will significantly expedite
the settlement process while ensuring
that the independence and integrity of
the regulatory process is maintained, as
the CRO’s regulatory decision-making
responsibilities are entirely separate
from those responsible for the
Exchange’s business interests.
Finally, the Exchange proposes to
amend Rule 8.11 to incorporate the
Principal Considerations in Determining
Sanctions (‘‘Principal Considerations’’)
into proposed Rule 8.11(c), which are
currently in corresponding Rule
13.11.01 of Cboe Options and C2, and
the general provision regarding
sanctions into proposed Rule 8.11(a),
which are currently in corresponding
Rule 13.11(a) of Cboe Options and C2,
in order to promote consistency and
uniformity across the affiliated
exchanges in determining appropriate
remedial sanctions.8 Particularly, the
proposed rule change incorporates the
general authority of the CRO, Hearing
Panel, and committee of the Board 9 to
determine and apply sanctions,
consistent with Cboe Options and C2
Rule 13.11(a), into proposed Rule
8.11(a), which provides that Members
and persons associated with Members
shall (subject to any rule or order of the
Securities and Exchange Commission)
be appropriately disciplined by the
CRO, Hearing Panel, or the committee of
the Board, as applicable, for violations
under these Rules by expulsion,
suspension, limitation of activities,
functions and operations, fine, censure,
being suspended or barred from being
associated with a Member, suspension
or revocation of membership, or any
7 See
Cboe Options Rule 13.10(c).
Exchange notes that its other affiliated
exchanges, Cboe BZX Exchange, Inc. (‘‘BZX’’), Cboe
EDGX Exchange, Inc. (‘‘EDGX’’), and Cboe BYX
Exchange, Inc. (‘‘BYX’’), also intend to incorporate
these portions of Cboe Options and C2 Rule 13.11
into their Rule 8.11.
9 The Exchange notes that it maintains the
inclusion of committee of the Board (along with the
CRO and Hearing Panel) in connection with the
imposition of sanctions throughout proposed Rules
8.11(a) and (c), which is currently a difference in
text between Cboe Options and C2 Rule 13.11 and
current Rule 8.11 and maintains consistency
throughout current Rule 8.11.
other fitting sanction. This authority is
already enumerated in Rule 8.1,
however, the proposed provision
provides consistency with the rules of
the Exchange’s affiliated options
exchanges.10 As proposed in Rule
8.11(c), the Principal Considerations
promote consistency and uniformity in
the imposition of penalties, and should
be considered in connection with the
imposition of sanctions in all cases in
determining appropriate remedial
sanctions through the resolution of
disciplinary matters through offers of
settlement or after formal disciplinary
hearings. The Principal Considerations
include the following:
(1) Disciplinary sanctions are
remedial in nature. The CRO, Hearing
Panel or committee of the Board,11 as
applicable, should design sanctions to
prevent and deter future misconduct by
wrongdoers, to discourage others from
engaging in similar misconduct, and to
improve overall business standards of
Exchange Members. Pursuant to this
Rule 8.11, the CRO, Hearing Panel or
committee of the Board, as applicable,
may impose sanctions including
expulsion, suspension, limitation of
activities, fine, censure, suspension or
revocation of one or more Members, or
any other fitting sanction.
(2) An important objective of the
disciplinary process is to deter future
misconduct by imposing progressively
escalating sanctions on recidivists. The
CRO, Hearing Panel or committee of the
Board, as applicable, should consider a
party’s relevant disciplinary history in
determining sanctions.
(3) The CRO, Hearing Panel or
committee of the Board, as applicable,
should consider prior similar
disciplinary decisions (relevant
precedent) in determining an
appropriate sanction and may consider
relevant precedent from other selfregulatory organizations.
(4) The CRO, Hearing Panel or
committee of the Board, as applicable,
should tailor sanctions to address the
misconduct at issue. The CRO, Hearing
Panel or committee of the Board, as
applicable, should impose sanctions
tailored to the misconduct at issue. For
example, the CRO, Hearing Panel or
8 The
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19:08 May 22, 2020
Jkt 250001
10 The proposed change also amends the current
language under Rule 8.11 to be provided in
paragraph (b), with a heading that reads ‘‘Effective
Date of Judgment’’, which is consistent with the
corresponding heading in Cboe Options and C2
Rule 13.11. No changes are made to the current
language. It also adds in the same header language
for Rule 8.11 (‘‘Judgment and Sanction’’) as that of
Cboe Options and C2 Rule 13.11.
11 See supra note 9. The committee of the Board
would, thus, also apply the Principal
Considerations to any determinations made during
a review related to sanctions.
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31557
committee of the Board, as applicable,
may require a Member 12 to, among
other things: Retain a qualified
independent consultant to improve
future compliance with regulatory
requirements; disclose disciplinary
history to new and/or existing clients;
implement heightened supervision of
certain employees; or requalify by
examination in any or all registered
capacities.
(5) Aggregation of violations may be
appropriate in certain instances for
purposes of determining sanctions. The
CRO, Hearing Panel or committee of the
Board, as applicable, may aggregate
individual violations of particular rules
and treat such violations as a single
offense for purposes of determining
sanctions. Aggregation may be
appropriate when the Exchange utilizes
a comprehensive surveillance program
in the detection of potential rules
violations. Aggregation may also be
appropriate where the Exchange has
reviewed activity over an extensive time
period during the course of an
investigation of matters disclosed either
through a routine examination of the
Member or as the result of a complaint.
Similarly, where no exceptional
circumstances are present, the Exchange
may impose a fine based upon a
determination that there exists a pattern
or practice of violative conduct. The
Exchange also may aggregate similar
violations generally if the conduct was
unintentional, there was no injury to
public investors, or the violations
resulted from a single systemic problem
or cause that has been corrected.
(6) The CRO, Hearing Panel or
committee of the Board, as applicable,
should evaluate appropriateness of
disgorgement and/or restitution. The
CRO, Hearing Panel or committee of the
Board, as applicable, should evaluate
the appropriateness of disgorgement
and/or restitution in those cases where
the amount of harm is quantifiable and
the harmed party is identifiable.
(7) The CRO, Hearing Panel or
committee of the Board, as applicable,
should consider contributions or
settlements by a respondent or any
related Member to the harmed party as
it relates to the conduct that is the
subject of the disciplinary matter.
(8) The CRO, Hearing Panel or
committee of the Board, as applicable,
may consider a party’s inability to pay
12 The Exchange notes that, to the extent Cboe
Options and C2 Rule 13.11.01 state ‘‘TPH and TPH
organization’’, the Exchange uses the term
‘‘Member’’, which, pursuant to its definition in Rule
1.5(n), covers the same scope of exchange
membership as the aforementioned language in
Cboe Options and C2 Rule 13.11.01.
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Federal Register / Vol. 85, No. 101 / Tuesday, May 26, 2020 / Notices
in connection with the imposition of
monetary sanctions.
The Exchange notes that the CRO,
Hearing Panel or committee of the
Board, as applicable, already consider
the above proposed Principal
Considerations when determining
appropriate remedial sanctions
throughout the resolution of
disciplinary matters. However, the
Exchange now proposes to codify such
considerations in order to ensure that
the CRO, Hearing Panel or committee of
the Board, as applicable, consider
aggravating and/or mitigating factors in
the same manner across each
disciplinary matter which will, in turn,
provide for consistency, fairness and
that the most appropriate disciplinary
measure is implemented during
proceedings.
The Exchange intends to announce
the operative date of the updates to
Rules 8.8, 8.10, and 8.11 at least 30 days
in advance via a regulatory notice. To
facilitate an orderly transition from the
current rules to the proposed rules, the
Exchange proposes to apply the current
rules to all matters where a subject has
received notice pursuant to Rule 8.2(d)
prior to the operative date. As a
consequence of this transition process,
the Exchange will retain the existing
processes during the transition period
until such time that there are no longer
any matters proceeding under the
current rules. To facilitate this transition
process, the Exchange will retain a
transitional Chapter 8 that will contain
the Exchange’s rules, as they are at the
time this proposal is filed with the
Commission. This transitional Chapter 8
will apply only to matters initiated prior
to the operational date of the changes
proposed herein and it will be posted to
the Exchange’s public rules website.
When the transition is complete and
there are no longer any Members or
associated persons subject to current
Chapter 8, the Exchange will remove the
transitional Chapter 8 from its public
rules website.
2. Statutory Basis
The Exchange believes the proposed
rule change is consistent with the
Securities Exchange Act of 1934 (the
‘‘Act’’) and the rules and regulations
thereunder applicable to the Exchange
and, in particular, the requirements of
Section 6(b) of the Act.13 Specifically,
the Exchange believes the proposed rule
change is consistent with the Section
6(b)(5) 14 requirements that the rules of
an exchange be designed to prevent
fraudulent and manipulative acts and
13 15
14 15
U.S.C. 78f(b).
U.S.C. 78f(b)(5).
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19:08 May 22, 2020
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) 15 requirement that
the rules of an exchange not be designed
to permit unfair discrimination between
customers, issuers, brokers, or dealers.
In particular, the proposed rule
changes are designed to be consistent
with the corresponding rules of its
affiliated exchanges,16 which have been
previously filed with the Commission.
The Exchange believes that by providing
consistent disciplinary rules across the
affiliated exchanges the proposed rule
change would foster cooperation and
coordination with persons engaged in
facilitating transactions in securities and
would remove impediments to and
perfect the mechanism of a free and
open market and a national market
system by increasing the understanding
of the Exchange’s disciplinary process
for Members that participate across the
affiliated exchanges, as well as result in
greater uniformity, and less burdensome
and more efficient regulatory processes.
Moreover, the Exchange believes that
removing an unnecessary waiting period
in the disciplinary process, as well as a
review provision that is not used, would
serve to expedite the outcome of a
matter or the progression of a matter
through the next steps in the process,
thereby protecting investors and the
public interest by conserving Exchange
and Member resources. The proposed
rule change to remove the waiting
period before an offer of settlement
becomes final and the Board’s initiative
to review such will provide for a more
efficient, streamlined disciplinary
process as a matter would then be either
immediately closed or continued to the
next steps of the proceedings upon the
CRO’s acceptance or rejection,
respectively, of an offer of settlement.
Additionally, and as stated above, the
CRO’s regulatory decision-making
responsibilities are entirely separate
from those responsible for the
Exchange’s business interests, therefore,
allowing the CRO to accept or reject
offers of settlement with finality will
significantly expedite the settlement
process while ensuring that the
15 Id.
16 See
Jkt 250001
PO 00000
independence and integrity of the
regulatory process is maintained. In
light of these proposed changes, the
Exchange notes that the proposed
addition of the Principal Considerations
will ensure that the CRO determines
each offer of settlement using the same
set of fair standards and factors, thereby
protecting investors and the public
interest throughout the disciplinary
process.
In addition to this, the Exchange also
believes that the proposed rule in
consistent with Section 6(b)(6) of the
Act,17 which requires the rules of an
exchange provide that its members be
appropriately disciplined for violations
of the Act as well as the rules and
regulations thereunder, or the rules of
the Exchange, by expulsion, suspension,
limitation of activities, functions, and
operations, fine, censure, being
suspended or barred from being
associated with a member, or any other
fitting sanction, as well as Section
6(b)(7) of the Act,18 in that it provides
fair procedures for the disciplining of
Members and persons associated with
Members, the denial of Member status
to any person seeking Membership
therein, the barring of any person from
becoming associated with a Member
thereof, and the prohibition or
limitation by the Exchange of any
person with respect to access to services
offered by the Exchange or a Member
thereof. Specifically, the proposed rule
change to incorporate Principal
Considerations that the CRO, Hearing
Panel or committee of the Board, as
applicable, may take into consideration
when determining disciplinary
sanctions will ensure that the Exchange
implements the most appropriate
disciplinary mechanisms for violations
and a fair process in determining such.
Finally, the Exchange believes that its
proposed transition plan would allow
for a more orderly and less burdensome
transition for the Exchange’s Members.
The proposed application of current
rules to all matters where a subject has
received notice pursuant to Rule 8.2(d)
prior to the operative date provides a
clear demarcation between matters that
would proceed under the new rules and
those that would be completed under
the current rules.
B. Self-Regulatory Organization’s
Statement on Burden on Competition
The Exchange does not believe that
the proposed rule change would impose
any burden on competition that is not
necessary or appropriate in furtherance
of the purposes of the Act. The
17 15
supra note 5.
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18 15
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E:\FR\FM\26MYN1.SGM
U.S.C. 78f(b)(6).
U.S.C. 78f(b)(6).
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Federal Register / Vol. 85, No. 101 / Tuesday, May 26, 2020 / Notices
proposed rule changes are not intended
to address competitive issues, but
rather, are concerned with facilitating
less burdensome regulatory compliance
and processes and enhancing the quality
of the regulatory processes. The
Exchange believes the proposed rule
changes would reduce the burdens
within the disciplinary process, as well
as move matters through the process
expeditiously by providing for more
efficient finality of offers of settlement,
to the benefit of all Members. Moreover,
the proposed Principal Considerations
will apply to all remedial sanctions
throughout the disciplinary process in
the same manner, thereby equally
benefitting all Members by providing for
fair and consistent disciplinary
determinations. Additionally, the
proposed rule changes are consistent
with the rules of the Exchange’s
affiliates, Cboe Options and C2, which
have been previously filed with the
Commission.19
C.Self-Regulatory Organization’s
Statement on Comments on the
Proposed Rule Change Received From
Members, Participants, or Others
The Exchange neither solicited nor
received comments on the proposed
rule change.
III. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
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) of the Act 20 and Rule 19b–
4(f)(6) thereunder.21
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
19 See Cboe Options Rules 13.8, 13.10(c), 13.11(a),
and 13.11.01.
20 15 U.S.C. 78s(b)(3)(A).
21 17 CFR 240.19b–4(f)(6). In addition, Rule 19b–
4(f)(6)(iii) requires a self-regulatory organization to
give the Commission written notice of its intent to
file the proposed rule change, along with a brief
description and text of 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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19:08 May 22, 2020
Jkt 250001
Commission shall institute proceedings
to determine whether the proposed rule
change should be approved or
disapproved.
IV. Solicitation of Comments
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–
CboeBYX–2020–015 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–CboeBYX–2020–015. 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–CboeBYX–2020–015 and
should be submitted on or before June
16, 2020.
Frm 00129
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For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.22
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020–11133 Filed 5–22–20; 8:45 am]
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:
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31559
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. IA–5506]
Notice of Intention To Cancel
Registration Pursuant to Section
203(H) of the Investment Advisers Act
of 1940
May 20, 2020.
Notice is given that the Securities and
Exchange Commission (the
‘‘Commission’’) intends to issue an
order, pursuant to Section 203(h) of the
Investment Advisers Act of 1940 (the
‘‘Act’’), cancelling the registration of
McDaniel Investments, LLC [File No.
801–108541], hereinafter referred to as
the ‘‘registrant.’’
Section 203(h) provides, in pertinent
part, that if the Commission finds that
any person registered under Section
203, or who has pending an application
for registration filed under that section,
is no longer in existence, is not engaged
in business as an investment adviser, or
is prohibited from registering as an
investment adviser under section 203A,
the Commission shall by order, cancel
the registration of such person.
The registrant has not filed a Form
ADV amendment with the Commission
as required by rule 204–1 under the Act
and appears to be no longer in business
as an investment adviser or is otherwise
not engaged in business as an
investment adviser.1 Accordingly, the
Commission believes that reasonable
grounds exist for a finding that this
registrant is no longer eligible to be
registered with the Commission as an
investment adviser and that the
registration should be cancelled
pursuant to section 203(h) of the Act.
Notice is also given that any
interested person may, by June 15, 2020,
at 5:30 p.m., submit to the Commission
in writing a request for a hearing on the
cancellation, accompanied by a
statement as to the nature of his or her
interest, the reason for such request, and
the issues, if any, of fact or law
proposed to be controverted, and he or
she may request that he or she be
22 17
CFR 200.30–3(a)(12).
204–1 under the Act requires any adviser
that is required to complete Form ADV to amend
the form at least annually and to submit the
amendments electronically through the Investment
Adviser Registration Depository.
1 Rule
E:\FR\FM\26MYN1.SGM
26MYN1
]]>Agencies
[Federal Register Volume 85, Number 101 (Tuesday, May 26, 2020)]
[Notices]
[Pages 31556-31559]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-11133]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-88902; File No. SR-CboeBYX-2020-015]
Self-Regulatory Organizations; Cboe BYX Exchange, Inc.; Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change To Amend
Certain Rules in Connection With the Exchange's Disciplinary Process
May 19, 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 May 8, 2020, Cboe BYX Exchange, Inc. (the ``Exchange'' or ``BYX'')
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 Exchange. The Exchange filed the
proposal as a ``non-controversial'' proposed rule change pursuant to
Section 19(b)(3)(A)(iii) of the Act \3\ and Rule 19b-4(f)(6)
thereunder.\4\ 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.
\3\ 15 U.S.C. 78s(b)(3)(A)(iii).
\4\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
Cboe BYX Exchange, Inc. (the ``Exchange'' or ``BYX'') proposes to
amend certain rules in connection with the Exchange's disciplinary
process. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the
Exchange's website (https://markets.cboe.com/us/equities/regulation/rule_filings/byx/), at the Exchange's Office of the Secretary, and at
the Commission's Public Reference Room.
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant aspects of such
statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
1. Purpose
The Exchange proposes to amend Rule 8.8 in connection with the
timing before which an offer of settlement becomes final, to amend Rule
8.10 in connection with the Board's review of offers of settlement, and
to amend Rule 8.11 to be consistent with the corresponding rules of the
Exchange's affiliated exchanges, Cboe Exchange, Inc. (``Cboe Options'')
and Cboe C2 Exchange, Inc. (``C2'').\5\
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\5\ See Cboe Options Rule 13.11. The Exchange notes that C2
incorporates Cboe Options Disciplinary rules by reference.
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First, the Exchange proposes to amend Rule 8.8 which governs offers
of settlement during a disciplinary proceeding pursuant to Chapter 8
(Discipline). Specifically, it proposes to amend the timing for which
the Chief Regulatory Officer's (``CRO'') decision regarding an offer
shall become final pursuant to Rule 8.8(a). Rule 8.8(a) currently
provides that a Respondent may submit to the CRO a written offer of
settlement, and the CRO may accept an offer of settlement, and, in
doing so, issues a decision, including findings and conclusions and
imposing a penalty, consistent with the terms of such offer. Pursuant
to Rule 8.8(a), the CRO may also reject an offer of settlement and the
matter then proceeds as if such offer had not been made. According to
Rule 8.8(a), a decision of the CRO issued upon acceptance of an offer
of settlement as well as the determination of the CRO whether to accept
or reject such an offer does not currently become final until 20
business days after such decision is issued, and the Respondent may not
seek review thereof.
The Exchange proposes to eliminate the 20-business day timeframe
before which the CRO's determination and decision in connection with an
offer of settlement becomes final. This is consistent with the
corresponding offer of settlement rules of the Exchange's affiliated
exchanges, Cboe Options and C2,\6\ which do not have any such waiting
period before which the CRO's acceptance (and accompanying decision) or
rejection of an offer of settlement becomes final. In addition to
providing consistency between the rules of the affiliated exchanges,
the proposed rule change also removes a process that unnecessarily
prolongs disciplinary proceedings. Where a matter could be either
immediately closed or continued to the next steps of the proceedings
upon the CRO's acceptance or rejection, respectively, of an offer of
settlement, the current process unnecessarily leaves a matter open.
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\6\ See Cboe Options Rule 13.8(a). The Exchange notes that C2
incorporates Cboe Options Disciplinary rules by reference.
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Second, and in line with the proposed rule change to Rule 8.8, the
Exchange also proposes to remove Rule 8.8 offers of settlement from the
list of certain procedural decisions in Rule 8.10 that may be reviewed
by the Board on its own initiative within 20 business days after the
issuance of the decision. This is also consistent with the
corresponding disciplinary review rules of Cboe Options and C2, which
do not include offers of settlement as decisions
[[Page 31557]]
that the Board may review on its own initiative.\7\ The Exchange notes
that the Board has not previously initiated a review of an offer of
settlement. Therefore, the Exchange believes maintaining a 20-business
day waiting period for a review that is not invoked is unnecessary and
merely exhausts additional Exchange and Member resources in the time
that a matter could have been resolved or have continued through
proceedings. Allowing the CRO to accept or reject offers of settlement
with finality will significantly expedite the settlement process while
ensuring that the independence and integrity of the regulatory process
is maintained, as the CRO's regulatory decision-making responsibilities
are entirely separate from those responsible for the Exchange's
business interests.
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\7\ See Cboe Options Rule 13.10(c).
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Finally, the Exchange proposes to amend Rule 8.11 to incorporate
the Principal Considerations in Determining Sanctions (``Principal
Considerations'') into proposed Rule 8.11(c), which are currently in
corresponding Rule 13.11.01 of Cboe Options and C2, and the general
provision regarding sanctions into proposed Rule 8.11(a), which are
currently in corresponding Rule 13.11(a) of Cboe Options and C2, in
order to promote consistency and uniformity across the affiliated
exchanges in determining appropriate remedial sanctions.\8\
Particularly, the proposed rule change incorporates the general
authority of the CRO, Hearing Panel, and committee of the Board \9\ to
determine and apply sanctions, consistent with Cboe Options and C2 Rule
13.11(a), into proposed Rule 8.11(a), which provides that Members and
persons associated with Members shall (subject to any rule or order of
the Securities and Exchange Commission) be appropriately disciplined by
the CRO, Hearing Panel, or the committee of the Board, as applicable,
for violations under these Rules by expulsion, suspension, limitation
of activities, functions and operations, fine, censure, being suspended
or barred from being associated with a Member, suspension or revocation
of membership, or any other fitting sanction. This authority is already
enumerated in Rule 8.1, however, the proposed provision provides
consistency with the rules of the Exchange's affiliated options
exchanges.\10\ As proposed in Rule 8.11(c), the Principal
Considerations promote consistency and uniformity in the imposition of
penalties, and should be considered in connection with the imposition
of sanctions in all cases in determining appropriate remedial sanctions
through the resolution of disciplinary matters through offers of
settlement or after formal disciplinary hearings. The Principal
Considerations include the following:
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\8\ The Exchange notes that its other affiliated exchanges, Cboe
BZX Exchange, Inc. (``BZX''), Cboe EDGX Exchange, Inc. (``EDGX''),
and Cboe BYX Exchange, Inc. (``BYX''), also intend to incorporate
these portions of Cboe Options and C2 Rule 13.11 into their Rule
8.11.
\9\ The Exchange notes that it maintains the inclusion of
committee of the Board (along with the CRO and Hearing Panel) in
connection with the imposition of sanctions throughout proposed
Rules 8.11(a) and (c), which is currently a difference in text
between Cboe Options and C2 Rule 13.11 and current Rule 8.11 and
maintains consistency throughout current Rule 8.11.
\10\ The proposed change also amends the current language under
Rule 8.11 to be provided in paragraph (b), with a heading that reads
``Effective Date of Judgment'', which is consistent with the
corresponding heading in Cboe Options and C2 Rule 13.11. No changes
are made to the current language. It also adds in the same header
language for Rule 8.11 (``Judgment and Sanction'') as that of Cboe
Options and C2 Rule 13.11.
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(1) Disciplinary sanctions are remedial in nature. The CRO, Hearing
Panel or committee of the Board,\11\ as applicable, should design
sanctions to prevent and deter future misconduct by wrongdoers, to
discourage others from engaging in similar misconduct, and to improve
overall business standards of Exchange Members. Pursuant to this Rule
8.11, the CRO, Hearing Panel or committee of the Board, as applicable,
may impose sanctions including expulsion, suspension, limitation of
activities, fine, censure, suspension or revocation of one or more
Members, or any other fitting sanction.
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\11\ See supra note 9. The committee of the Board would, thus,
also apply the Principal Considerations to any determinations made
during a review related to sanctions.
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(2) An important objective of the disciplinary process is to deter
future misconduct by imposing progressively escalating sanctions on
recidivists. The CRO, Hearing Panel or committee of the Board, as
applicable, should consider a party's relevant disciplinary history in
determining sanctions.
(3) The CRO, Hearing Panel or committee of the Board, as
applicable, should consider prior similar disciplinary decisions
(relevant precedent) in determining an appropriate sanction and may
consider relevant precedent from other self-regulatory organizations.
(4) The CRO, Hearing Panel or committee of the Board, as
applicable, should tailor sanctions to address the misconduct at issue.
The CRO, Hearing Panel or committee of the Board, as applicable, should
impose sanctions tailored to the misconduct at issue. For example, the
CRO, Hearing Panel or committee of the Board, as applicable, may
require a Member \12\ to, among other things: Retain a qualified
independent consultant to improve future compliance with regulatory
requirements; disclose disciplinary history to new and/or existing
clients; implement heightened supervision of certain employees; or
requalify by examination in any or all registered capacities.
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\12\ The Exchange notes that, to the extent Cboe Options and C2
Rule 13.11.01 state ``TPH and TPH organization'', the Exchange uses
the term ``Member'', which, pursuant to its definition in Rule
1.5(n), covers the same scope of exchange membership as the
aforementioned language in Cboe Options and C2 Rule 13.11.01.
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(5) Aggregation of violations may be appropriate in certain
instances for purposes of determining sanctions. The CRO, Hearing Panel
or committee of the Board, as applicable, may aggregate individual
violations of particular rules and treat such violations as a single
offense for purposes of determining sanctions. Aggregation may be
appropriate when the Exchange utilizes a comprehensive surveillance
program in the detection of potential rules violations. Aggregation may
also be appropriate where the Exchange has reviewed activity over an
extensive time period during the course of an investigation of matters
disclosed either through a routine examination of the Member or as the
result of a complaint. Similarly, where no exceptional circumstances
are present, the Exchange may impose a fine based upon a determination
that there exists a pattern or practice of violative conduct. The
Exchange also may aggregate similar violations generally if the conduct
was unintentional, there was no injury to public investors, or the
violations resulted from a single systemic problem or cause that has
been corrected.
(6) The CRO, Hearing Panel or committee of the Board, as
applicable, should evaluate appropriateness of disgorgement and/or
restitution. The CRO, Hearing Panel or committee of the Board, as
applicable, should evaluate the appropriateness of disgorgement and/or
restitution in those cases where the amount of harm is quantifiable and
the harmed party is identifiable.
(7) The CRO, Hearing Panel or committee of the Board, as
applicable, should consider contributions or settlements by a
respondent or any related Member to the harmed party as it relates to
the conduct that is the subject of the disciplinary matter.
(8) The CRO, Hearing Panel or committee of the Board, as
applicable, may consider a party's inability to pay
[[Page 31558]]
in connection with the imposition of monetary sanctions.
The Exchange notes that the CRO, Hearing Panel or committee of the
Board, as applicable, already consider the above proposed Principal
Considerations when determining appropriate remedial sanctions
throughout the resolution of disciplinary matters. However, the
Exchange now proposes to codify such considerations in order to ensure
that the CRO, Hearing Panel or committee of the Board, as applicable,
consider aggravating and/or mitigating factors in the same manner
across each disciplinary matter which will, in turn, provide for
consistency, fairness and that the most appropriate disciplinary
measure is implemented during proceedings.
The Exchange intends to announce the operative date of the updates
to Rules 8.8, 8.10, and 8.11 at least 30 days in advance via a
regulatory notice. To facilitate an orderly transition from the current
rules to the proposed rules, the Exchange proposes to apply the current
rules to all matters where a subject has received notice pursuant to
Rule 8.2(d) prior to the operative date. As a consequence of this
transition process, the Exchange will retain the existing processes
during the transition period until such time that there are no longer
any matters proceeding under the current rules. To facilitate this
transition process, the Exchange will retain a transitional Chapter 8
that will contain the Exchange's rules, as they are at the time this
proposal is filed with the Commission. This transitional Chapter 8 will
apply only to matters initiated prior to the operational date of the
changes proposed herein and it will be posted to the Exchange's public
rules website. When the transition is complete and there are no longer
any Members or associated persons subject to current Chapter 8, the
Exchange will remove the transitional Chapter 8 from its public rules
website.
2. Statutory Basis
The Exchange believes the proposed rule change is consistent with
the Securities Exchange Act of 1934 (the ``Act'') and the rules and
regulations thereunder applicable to the Exchange and, in particular,
the requirements of Section 6(b) of the Act.\13\ Specifically, the
Exchange believes the proposed rule change is consistent with the
Section 6(b)(5) \14\ 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) \15\ requirement that the rules of an exchange not be
designed to permit unfair discrimination between customers, issuers,
brokers, or dealers.
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\13\ 15 U.S.C. 78f(b).
\14\ 15 U.S.C. 78f(b)(5).
\15\ Id.
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In particular, the proposed rule changes are designed to be
consistent with the corresponding rules of its affiliated
exchanges,\16\ which have been previously filed with the Commission.
The Exchange believes that by providing consistent disciplinary rules
across the affiliated exchanges the proposed rule change would foster
cooperation and coordination with persons engaged in facilitating
transactions in securities and would remove impediments to and perfect
the mechanism of a free and open market and a national market system by
increasing the understanding of the Exchange's disciplinary process for
Members that participate across the affiliated exchanges, as well as
result in greater uniformity, and less burdensome and more efficient
regulatory processes. Moreover, the Exchange believes that removing an
unnecessary waiting period in the disciplinary process, as well as a
review provision that is not used, would serve to expedite the outcome
of a matter or the progression of a matter through the next steps in
the process, thereby protecting investors and the public interest by
conserving Exchange and Member resources. The proposed rule change to
remove the waiting period before an offer of settlement becomes final
and the Board's initiative to review such will provide for a more
efficient, streamlined disciplinary process as a matter would then be
either immediately closed or continued to the next steps of the
proceedings upon the CRO's acceptance or rejection, respectively, of an
offer of settlement. Additionally, and as stated above, the CRO's
regulatory decision-making responsibilities are entirely separate from
those responsible for the Exchange's business interests, therefore,
allowing the CRO to accept or reject offers of settlement with finality
will significantly expedite the settlement process while ensuring that
the independence and integrity of the regulatory process is maintained.
In light of these proposed changes, the Exchange notes that the
proposed addition of the Principal Considerations will ensure that the
CRO determines each offer of settlement using the same set of fair
standards and factors, thereby protecting investors and the public
interest throughout the disciplinary process.
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\16\ See supra note 5.
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In addition to this, the Exchange also believes that the proposed
rule in consistent with Section 6(b)(6) of the Act,\17\ which requires
the rules of an exchange provide that its members be appropriately
disciplined for violations of the Act as well as the rules and
regulations thereunder, or the rules of the Exchange, by expulsion,
suspension, limitation of activities, functions, and operations, fine,
censure, being suspended or barred from being associated with a member,
or any other fitting sanction, as well as Section 6(b)(7) of the
Act,\18\ in that it provides fair procedures for the disciplining of
Members and persons associated with Members, the denial of Member
status to any person seeking Membership therein, the barring of any
person from becoming associated with a Member thereof, and the
prohibition or limitation by the Exchange of any person with respect to
access to services offered by the Exchange or a Member thereof.
Specifically, the proposed rule change to incorporate Principal
Considerations that the CRO, Hearing Panel or committee of the Board,
as applicable, may take into consideration when determining
disciplinary sanctions will ensure that the Exchange implements the
most appropriate disciplinary mechanisms for violations and a fair
process in determining such.
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\17\ 15 U.S.C. 78f(b)(6).
\18\ 15 U.S.C. 78f(b)(6).
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Finally, the Exchange believes that its proposed transition plan
would allow for a more orderly and less burdensome transition for the
Exchange's Members. The proposed application of current rules to all
matters where a subject has received notice pursuant to Rule 8.2(d)
prior to the operative date provides a clear demarcation between
matters that would proceed under the new rules and those that would be
completed under the current rules.
B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change would
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act. The
[[Page 31559]]
proposed rule changes are not intended to address competitive issues,
but rather, are concerned with facilitating less burdensome regulatory
compliance and processes and enhancing the quality of the regulatory
processes. The Exchange believes the proposed rule changes would reduce
the burdens within the disciplinary process, as well as move matters
through the process expeditiously by providing for more efficient
finality of offers of settlement, to the benefit of all Members.
Moreover, the proposed Principal Considerations will apply to all
remedial sanctions throughout the disciplinary process in the same
manner, thereby equally benefitting all Members by providing for fair
and consistent disciplinary determinations. Additionally, the proposed
rule changes are consistent with the rules of the Exchange's
affiliates, Cboe Options and C2, which have been previously filed with
the Commission.\19\
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\19\ See Cboe Options Rules 13.8, 13.10(c), 13.11(a), and
13.11.01.
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C.Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
The Exchange neither solicited nor received comments on the
proposed rule change.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
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) of the Act \20\ and Rule 19b-
4(f)(6) thereunder.\21\
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\20\ 15 U.S.C. 78s(b)(3)(A).
\21\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires a self-regulatory organization to give the Commission
written notice of its intent to file the proposed rule change, along
with a brief description and text of 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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At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings to
determine whether the proposed rule change should be approved or
disapproved.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
Send an email to [email protected]. Please include
File Number SR-CboeBYX-2020-015 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-CboeBYX-2020-015. 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-CboeBYX-2020-015 and should be submitted
on or before June 16, 2020.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\22\
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\22\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-11133 Filed 5-22-20; 8:45 am]
BILLING CODE 8011-01-P
