Notice2021-20552
Self-Regulatory Organizations; BOX Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the Fee Schedule on the BOX Options Market LLC Facility To Reduce the Amount of the Options Regulatory Fee (“ORF”)
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 23, 2021
Issuing agencies
Securities and Exchange Commission
Full Text
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<title>Federal Register, Volume 86 Issue 182 (Thursday, September 23, 2021)</title>
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[Federal Register Volume 86, Number 182 (Thursday, September 23, 2021)]
[Notices]
[Pages 52937-52940]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-20552]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-93045; File No. SR-BOX-2021-22]
Self-Regulatory Organizations; BOX Exchange LLC; Notice of Filing
and Immediate Effectiveness of a Proposed Rule Change To Amend the Fee
Schedule on the BOX Options Market LLC Facility To Reduce the Amount of
the Options Regulatory Fee (``ORF'')
September 17, 2021.
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 September 14, 2021, BOX Exchange LLC (``Exchange'') filed with the
Securities and Exchange Commission (``Commission'') the proposed rule
change as described in Items I, II, and III below, which Items have
been prepared by the Exchange. The Exchange filed the proposed rule
change pursuant to Section 19(b)(3)(A)(ii) of the Act,\3\ and Rule 19b-
4(f)(2) thereunder,\4\ which renders the proposal effective upon filing
with the Commission. 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)(ii).
\4\ 17 CFR 240.19b-4(f)(2).
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I. Self-Regulatory Organization's Statement of the Terms of the
Substance of the Proposed Rule Change
The Exchange is filing with the Securities and Exchange Commission
(``Commission'') a proposed rule change to amend the Fee Schedule on
the BOX Options Market LLC (``BOX'') options facility. The text of the
proposed rule change is available from the principal office of the
Exchange, at the Commission's Public Reference Room and also on the
Exchange's internet website at <a href="http://boxexchange.com">http://boxexchange.com</a>.
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
Currently, the Exchange assesses ORF in the amount of $0.0038 per
contract side. The Exchange proposes to reduce the amount of ORF from
$0.0038 per contract side to $0.00295 per contract side in order to
help ensure that revenue collected from the ORF, in combination with
other regulatory fees and fines, does not exceed the Exchange's total
regulatory costs. The Exchange's proposed change to the ORF should
balance the Exchange's regulatory revenue against the anticipated
regulatory costs.
Collection of ORF
Currently, the Exchange assesses the per-contract ORF to each
Participant \5\ for all options transactions, including Mini Options,
cleared or ultimately cleared by the Participant, which are cleared by
the Options Clearing Corporation (``OCC'') in the ``customer''
range,\6\ regardless of the exchange on which the transaction occurs.
The ORF is collected by OCC on behalf of the Exchange from either: (1)
A Participant that was the ultimate clearing firm for the transaction;
or (2) a non-Participant that was the ultimate clearing firm where a
Participant was the executing clearing firm for the transaction. The
Exchange uses reports from OCC to determine the identity of the
executing clearing firm and ultimate clearing firm.
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\5\ The term ``Participant'' or ``Options Participant'' means a
firm, or organization that is registered with the Exchange pursuant
to the Rule 2000 Series for purposes of participating in trading on
a facility of the Exchange. See BOX Rule 100(a)(41).
\6\ Exchange Participants must record the appropriate account
origin code on all orders at the time of entry in order. The
Exchange represents that it has surveillances in place to verify
that Participants mark orders with the correct account origin code.
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To illustrate how the Exchange assesses and collects ORF, the
Exchange provides the following set of examples. For a transaction that
is executed on the Exchange and the ORF is assessed, if there is no
change to the clearing account of the original transaction, then the
ORF is collected from the Participant that is the executing clearing
firm for the transaction (the Exchange notes that, for purposes of the
Fee Schedule, when there is no change to the clearing account of the
original transaction, the executing clearing firm is deemed to be the
ultimate clearing firm). If there is a change to the clearing account
of the original transaction (i.e., the executing clearing firm ``gives-
up'' or ``CMTAs'' \7\ the transaction to another clearing firm), then
the ORF is collected from the clearing firm that ultimately clears the
transaction--the ``ultimate clearing firm.'' The ultimate clearing firm
may be either a Participant or non-Participant of the Exchange. If the
transaction is executed on an away exchange and the ORF is assessed,
then the ORF is collected from the ultimate clearing firm for the
transaction. Again, the ultimate clearing firm may be either a
Participant or non-Participant of the Exchange. The Exchange notes,
however, that when the transaction is executed on an away exchange, the
Exchange does not assess the ORF when neither the executing clearing
firm nor the ultimate clearing firm is a Participant (even if a
Participant is ``given-up'' or ``CMTAed'' and then such Participant
subsequently ``gives-up'' or ``CMTAs'' the transaction to another non-
Participant via a CMTA reversal). Finally, the Exchange does not assess
the ORF on outbound linkage trades, whether executed at the Exchange or
an away exchange. ``Linkage trades'' are tagged in the Exchange's
system, so the Exchange can readily tell them apart from other trades.
A customer order routed to another exchange results in two customer
trades, one from the originating exchange and one from the recipient
exchange. Charging ORF on both trades could result in double-billing of
ORF for a single customer order; thus, the Exchange does not assess ORF
on outbound linkage trades in a linkage scenario.
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\7\ ``CMTA'' or Clearing Member Trade Assignment is a form of
``give-up'' whereby the position will be assigned to a specific
clearing firm at OCC.
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As a practical matter, when a transaction that is subject to the
ORF is not executed on the Exchange, the Exchange lacks the information
necessary to identify the order-entering market participant for that
transaction. There are a multitude of order-entering market
participants throughout the industry, and such participants can make
changes to the market centers to which they connect, including dropping
their connection to one market center and establishing themselves as
participants on another. For these reasons, it is not possible for the
[[Page 52938]]
Exchange to identify, and thus assess fees such as ORF, on order-
entering participants on away markets on a given trading day. Clearing
members, however, are distinguished from order-entering participants
because they remain identified to the Exchange on information the
Exchange receives from OCC regardless of the identity of the order-
entering participant, their location, and the market center on which
they execute transactions. Therefore, the Exchange believes it is more
efficient for the operation of the Exchange and for the marketplace as
a whole to collect the ORF from clearing members.
ORF Revenue and Monitoring of ORF
The Exchange monitors the amount of revenue collected from the ORF
to ensure that it, in combination with other regulatory fees and fines,
does not exceed regulatory costs. In determining whether an expense is
considered a regulatory cost, the Exchange reviews all costs and makes
determinations if there is a nexus between the expense and a regulatory
function. The Exchange notes that fines collected by the Exchange in
connection with a disciplinary matter offset ORF.
As discussed below, the Exchange believes it is appropriate to
charge the ORF only to transactions that clear as customer at the OCC.
The Exchange believes that its broad regulatory responsibilities with
respect to a Participant's activities supports applying the ORF to
transactions cleared but not executed by a Participant. The Exchange's
regulatory responsibilities are the same regardless of whether a
Participant enters a transaction or clears a transaction executed on
its behalf. The Exchange regularly reviews all such activities,
including performing surveillance for position limit violations,
manipulation, front-running, contrary exercise advice violations and
insider trading. These activities span across multiple exchanges.
Revenue generated from ORF, when combined with all of the
Exchange's other regulatory fees and fines, is designed to recover a
material portion of the regulatory costs to the Exchange of the
supervision and regulation of Participants' customer options business
including performing routine surveillances, investigations,
examinations, financial monitoring, and policy, rulemaking,
interpretive, and enforcement activities. Unlike other options
exchanges, all of the Exchange's expenses support the regulatory
function as BOX Exchange LLC (the ``Exchange'') is a fully separate
legal entity from BOX Options Market LLC, the equity options facility
of the Exchange. The Exchange fulfills the regulatory functions and
responsibilities as a national securities exchange registered with the
SEC under Section 6 of the Securities Exchange Act of 1934, and
oversees the BOX Options Market. Exchange expenses are solely
regulatory in nature because, due to the unique structure between the
Exchange and the BOX Options Market facility, the Exchange expenses are
separate from the BOX Options Market facility expenses and there can be
no commingling of the funds. Put another way, all of the Exchange's
expenses support the regulatory function of BOX Exchange because the
Exchange expenses are completely separate from the BOX Options Market
facility expenses. The ORF is designed to recover a material portion of
these regulatory costs to the Exchange, including the supervision and
regulation of its participants, including performing routine
surveillances, investigations, examinations, financial monitoring, and
policy, rulemaking, interpretive, and enforcement activities.
Proposal
Based on the Exchange's most recent review, the Exchange proposes
to reduce the amount of ORF that will be collected by the Exchange from
$0.0038 per contract side to $0.00295 per contract side. The Exchange
issued an Informational Circular detailing the Options Regulatory Fee
Announcement on July 27, 2021, indicating the proposed rate change for
September 1, 2021.\8\
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\8\ See <a href="https://boxoptions.com/assets/IC-2021-32-Options-Regulatory-Fee-Announcement.pdf">https://boxoptions.com/assets/IC-2021-32-Options-Regulatory-Fee-Announcement.pdf</a>.
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The proposed decrease is based on recent options volumes, which
included an increase in retail investors. With respect to options
volume, the Exchange, and the options industry as a whole, experienced
a significant increase between 2020 and 2021. For example, total
options contract volumes in April, May and June 2021 were 29.7%, 32.7%
and 25.6% higher than the total options contract volumes in April, May
and June 2020, respectively.\9\
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\9\ See data from OCC at: OCC April 2021 Total Volume Up 29.7
Percent from a Year Ago [bond]Business Wire, OCC May 2021 Total
Volume Up 32.7 Percent from a Year Ago [bond] Business Wire, and OCC
June 2021 Total Volume Up 25.6 Percent from a Year Ago (<a href="http://apnews.com">apnews.com</a>).
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There can be no assurance that the Exchange's final costs for 2021
will not differ materially from these expectations, nor can the
Exchange predict with certainty whether options volume will remain at
the current level going forward. The Exchange notes however, that when
combined with regulatory fees and fines, the revenue being generated
utilizing the current ORF rate may result in revenue that will run in
excess of the Exchange's estimated regulatory costs for the year.\10\
Particularly, as noted above, the options market has seen a substantial
increase in volume throughout 2020 and 2021, due in large part to the
extreme volatility in the marketplace as a result of the COVID-19
pandemic. This unprecedented spike in volatility resulted in
significantly higher volume than was originally projected by the
Exchange (thereby resulting in substantially higher ORF revenue than
projected). The Exchange therefore proposes to decrease the ORF in
order to ensure it does not exceed its regulatory costs for the year.
Particularly, the Exchange believes that decreasing the ORF when
combined with all of the Exchange's other regulatory fees and fines,
would allow the Exchange to continue covering a material portion of its
regulatory costs, while lessening the potential for generating excess
revenue that may otherwise occur using the current rate.\11\
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\10\ The Exchange notes that notwithstanding the potential
excess ORF revenue the Exchange anticipates it would collect
utilizing the current rate, it has not used such revenue for non-
regulatory purposes.
\11\ The Exchange notes that its regulatory responsibilities
with respect to Participant compliance with options sales practice
rules have been allocated to the Financial Industry Regulatory
Authority (``FINRA'') under a 17d-2 Agreement. The ORF is not
designed to cover the cost of options sales practice regulation.
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The Exchange will continue to monitor the amount of revenue
collected from the ORF to ensure that it, in combination with its other
regulatory fees and fines, does not exceed the Exchange's total
regulatory costs. The Exchange will continue to monitor BOX regulatory
costs and revenues at a minimum on a semi-annual basis. If the Exchange
determines regulatory revenues exceed or are insufficient to cover a
material portion of its regulatory costs, the Exchange will adjust the
ORF by submitting a fee change filing to the Commission. The Exchange
will notify Participants of adjustments to the ORF via Informational
Circular at least 30 days prior to the effective date of the change.
2. Statutory Basis
The Exchange believes that the proposal is consistent with the
requirements of Section 6(b) of the Act, in general, and Section
6(b)(4) and 6(b)(5)of the Act,\12\ in particular, in that
[[Page 52939]]
it provides for the equitable allocation of reasonable dues, fees, and
other charges among BOX Participants and other persons using its
facilities and does not unfairly discriminate between customers,
issuers, brokers or dealers.
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\12\ 15 U.S.C. 78f(b)(4) and (5).
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The Exchange believes the proposed fee change is reasonable because
customer transactions will be subject to a lower ORF fee than the
current rate. Moreover, the proposed reduction is necessary in order
for the Exchange to not collect revenue in excess of its anticipated
regulatory costs, in combination with other regulatory fees and fines,
which is consistent with the Exchange's practices.
The ORF is designed to recover a material portion of the costs of
supervising and regulating Participants' customer options business
including performing routine surveillances and investigations, as well
as policy, rulemaking, interpretive and enforcement activities. The
Exchange will monitor the amount of revenue collected from the ORF to
ensure that it, in combination with its other regulatory fees and
fines, does not exceed the Exchange's total regulatory costs. The
Exchange has designed the ORF to generate revenues that, when combined
with all of the Exchange's other regulatory fees, will be less than or
equal to the Exchange's regulatory costs, which is consistent with the
Commission's view that regulatory fees be used for regulatory purposes
and not to support the Exchange's business side. In this regard, the
Exchange believes that the proposed decrease to the fee is reasonable.
The Exchange believes that continuing to limit changes to the ORF
to twice a year on specific dates with advance notice is reasonable
because it gives participants certainty on the timing of changes, if
any, and better enables them to properly account for ORF charges among
their customers. The Exchange believes that continuing to limit changes
to the ORF to twice a year on specific dates is equitable and not
unfairly discriminatory because it will apply in the same manner to all
Participants that are subject to the ORF and provide them with
additional advance notice of changes to that fee.
The Exchange believes that collecting the ORF from non-Participants
when such non-Participants ultimately clear the transaction (that is,
when the non-Participant is the ``ultimate clearing firm'' for a
transaction in which a Participant was assessed the ORF) is an
equitable allocation of reasonable dues, fees, and other charges among
its participants and issuers and other persons using its facilities.
The Exchange notes that there is a material distinction between
``assessing'' the ORF and ``collecting'' the ORF. The ORF is only
assessed to a Participant with respect to a particular transaction in
which it is either the executing clearing firm or ultimate clearing
firm. The Exchange does not assess the ORF to non-Participants. Once,
however, the ORF is assessed to a Participant for a particular
transaction, the ORF may be collected from the Participant or a non-
Participant, depending on how the transaction is cleared at OCC. If
there was no change to the clearing account of the original
transaction, the ORF would be collected from the Participant. If there
was a change to the clearing account of the original transaction and a
non-Participant becomes the ultimate clearing firm for that
transaction, then the ORF will be collected from that non-Participant.
The Exchange believes that this collection practice continues to be
reasonable and appropriate, and was originally instituted for the
benefit of clearing firms that desired to have the ORF be collected
from the clearing firm that ultimately clears the transaction.
The Exchange designed the ORF so that revenue generated from the
ORF, in combination with its other regulatory fees and fines, does not
exceed regulatory costs, which is consistent with the view of the
Commission that regulatory fees be used for regulatory purposes and not
to support the Exchange's business operations. As discussed above,
however, after review of its regulatory costs and regulatory revenues,
which includes revenues from ORF and other regulatory fees and fines,
the Exchange determined that absent a reduction in ORF, it may be
collecting revenue in excess of its regulatory costs. Indeed, the
Exchange notes that when taking into account the recent options volume,
which included an increase in customer options transactions, it
estimates the ORF will generate revenues that may cover more than the
approximated Exchange's projected regulatory costs. Moreover, when
coupled with the Exchange's other regulatory fees and revenues, the
Exchange estimates ORF to generate over 100% of the Exchange's
projected regulatory costs. As such, the Exchange believes it is
reasonable and appropriate to decrease the ORF amount from $0.0038 to
$0.00295 per contract side.
The Exchange also believes the proposed fee change is equitable and
not unfairly discriminatory in that it is charged to all Participants
on all their transactions that clear in the customer range at the
OCC,\13\ with an exception.\14\ The Exchange believes the ORF ensures
fairness by assessing higher fees to those Participants that require
more Exchange regulatory services based on the amount of customer
options business they conduct. Regulating customer trading activity is
much more labor intensive and requires greater expenditure of human and
technical resources than regulating non-customer trading activity,
which tends to be more automated and less labor intensive. For example,
there are costs associated with main office and branch office
examinations (e.g., staff expenses), as well as investigations into
customer complaints and the terminations of registered persons. As a
result, the costs associated with administering the customer component
of the Exchange's overall regulatory program are materially higher than
the costs associated with administering the non-customer component
(e.g., participant proprietary transactions) of its regulatory program.
Moreover, the Exchange notes that it has broad regulatory
responsibilities with respect to activities of its Participants,
irrespective of where their transactions take place. Many of the
Exchange's surveillance programs for customer trading activity may
require the Exchange to look at activity across all markets, such as
reviews related to position limit violations and manipulation. Indeed,
the Exchange cannot effectively review for such conduct without looking
at and evaluating activity regardless of where it transpires. In
addition to its own surveillance programs, the Exchange also works with
other SROs and exchanges on intermarket surveillance related issues.
Through its participation in the Intermarket Surveillance Group
(``ISG'') \15\ the Exchange shares
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information and coordinates inquiries and investigations with other
exchanges designed to address potential intermarket manipulation and
trading abuses. Accordingly, there is a strong nexus between the ORF
and the Exchange's regulatory activities with respect to customer
trading activity of its Participants.
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\13\ The BOX ORF is collected by OCC on behalf of BOX from
either (1) a Participant that was the ultimate clearing firm for the
transaction or (2) a non-Participant that was the ultimate clearing
firm where a Participant was the executing clearing firm for the
transaction. The Exchange uses reports from OCC to determine the
identity of the executing clearing firm and ultimate clearing firm.
\14\ When a transaction is executed on an away exchange, the
Exchange does not assess the ORF when neither the executing clearing
firm nor the ultimate clearing firm is a Participant (even if a
Participant is ``given-up'' or ``CMTAed'' and then such Participant
subsequently ``gives-up'' or ``CMTAs'' the transaction to another
non-Participant via a CMTA reversal).
\15\ ISG is an industry organization formed in 1983 to
coordinate intermarket surveillance among the SROs by cooperatively
sharing regulatory information pursuant to a written agreement
between the parties. The goal of the ISG's information sharing is to
coordinate regulatory efforts to address potential intermarket
trading abuses and manipulations.
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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 not necessary or appropriate in
furtherance of the purposes of the Act. This proposal does not create
an unnecessary or inappropriate intra-market burden on competition
because the ORF applies to all customer activity, thereby raising
regulatory revenue to offset regulatory expenses. It also supplements
the regulatory revenue derived from non-customer activity. The Exchange
notes, however, the proposed change is not designed to address any
competitive issues. Indeed, this proposal does not create an
unnecessary or inappropriate inter-market burden on competition because
it is a regulatory fee that supports regulation in furtherance of the
purposes of the Act. The Exchange is obligated to ensure that the
amount of regulatory revenue collected from the ORF, in combination
with its other regulatory fees and fines, does not exceed regulatory
costs.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
No written comments were either solicited or received.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
The foregoing rule change has become effective pursuant to Section
19(b)(3)(A)(ii) of the Exchange Act \16\ and Rule 19b-4(f)(2)
thereunder,\17\ because it establishes or changes a due, or fee.
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\16\ 15 U.S.C. 78s(b)(3)(A)(ii).
\17\ 17 CFR 240.19b-4(f)(2).
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At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend the rule
change if it appears to the Commission that the action is necessary or
appropriate in the public interest, for the protection of investors, or
would otherwise further 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
<bullet> Use the Commission's internet comment form (<a href="http://www.sec.gov/rules/sro.shtml">http://www.sec.gov/rules/sro.shtml</a>); or
<bullet> Send an email to <a href="/cdn-cgi/l/email-protection#cab8bfa6afe7a9a5a7a7afa4beb98ab9afa9e4ada5bc"><span class="__cf_email__" data-cfemail="0674736a632b65696b6b636872754675636528616970">[email protected]</span></a>. Please include
File Number SR-BOX-2021-22 on the subject line.
Paper Comments
<bullet> 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-BOX-2021-22. 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 (<a href="http://www.sec.gov/rules/sro.shtml">http://www.sec.gov/rules/sro.shtml</a>).
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 such 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-BOX-2021-22, and should be submitted on
or before October 14, 2021.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\18\
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\18\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-20552 Filed 9-22-21; 8:45 am]
BILLING CODE 8011-01-P
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