Notice2023-20808
Self-Regulatory Organizations; Nasdaq ISE, LLC; Order Granting Approval of a Proposed Rule Change, as Modified by Amendment No. 1, To Make Permanent Certain P.M.-Settled Pilots
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Published
September 26, 2023
Issuing agencies
Securities and Exchange Commission
Full Text
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<title>Federal Register, Volume 88 Issue 185 (Tuesday, September 26, 2023)</title>
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[Federal Register Volume 88, Number 185 (Tuesday, September 26, 2023)]
[Notices]
[Pages 66111-66114]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-20808]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-98450; File No. SR-ISE-2023-08]
Self-Regulatory Organizations; Nasdaq ISE, LLC; Order Granting
Approval of a Proposed Rule Change, as Modified by Amendment No. 1, To
Make Permanent Certain P.M.-Settled Pilots
September 20, 2023.
I. Introduction
On February 23, 2023, Nasdaq ISE LLC (``ISE'' or ``Exchange'')
filed with the Securities and Exchange Commission (``Commission''),
pursuant to section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ a proposed rule change to
make permanent the pilot program to permit the listing and trading of
options based on \1/5\ the value of the Nasdaq-100 Index (``Nasdaq-
100'') and the Exchange's nonstandard expirations pilot program
(collectively, the ``Programs''). The proposed rule change was
published for comment in the Federal Register on March 2, 2023.\3\ On
April 7, 2023, pursuant to section 19(b)(2) of the Act,\4\ the
Commission designated a longer period within which to approve the
proposed rule change, disapprove the proposed rule change, or institute
proceedings to determine whether to disapprove the proposed rule
change.\5\ On May 11, 2023, the Exchange filed Amendment No. 1 to the
proposed rule change (``Amendment No. 1'').\6\ On May 31, 2023, the
Commission instituted proceedings to determine whether to approve or
disapprove the proposed rule change and published Amendment No. 1 for
notice and comment.\7\ On August 28, 2023, the Commission designated a
longer period for Commission action on proceedings to determine whether
to approve or disapprove the proposed rule change, as modified by
Amendment No. 1.\8\ The Commission did not receive any comment letters
and is approving the proposed rule change, as modified by Amendment No.
1.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ See Securities Exchange Act Release No. 96979 (February 24,
2023), 88 FR 13182 (``Notice'').
\4\ 15 U.S.C. 78s(b)(2).
\5\ See Securities Exchange Act Release No. 97261, 88 FR 22509
(April 13, 2023). The Commission designated May 31, 2023, as the
date by which the Commission shall approve or disapprove, or
institute proceedings to determine whether to approve or disapprove,
the proposed rule change.
\6\ In Amendment No. 1, the Exchange inserts two footnotes and
amends a sentence in order to further clarify parts of the empirical
analysis performed by the Exchange. Amendment No. 1 is available at:
<a href="https://www.sec.gov/comments/sr-ise-2023-08/srise202308.htm">https://www.sec.gov/comments/sr-ise-2023-08/srise202308.htm</a>.
\7\ See Securities Exchange Act Release No. 97626, 88 FR 37110
(June 6, 2023).
\8\ See Securities Exchange Act Release No. 98233, 88 FR 60516
(September 1, 2023). The Commission designated October 28, 2023, as
the date by which the Commission shall either approve or disapprove
the proposed rule change.
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II. Background
When cash-settled \9\ index options were first introduced in the
1980s, they generally utilized closing-price settlement procedures
(i.e., p.m. settlement).\10\ The Commission became concerned with the
impact of p.m.-settled, cash-settled index options on the underlying
cash equities markets, and in particular, added market volatility and
sharp price movements near the close on expiration days.\11\ These
concerns were heightened during the ``triple-witching'' hour on the
third Friday of March, June, September, and December when index
options, index futures, and options on index futures expired
concurrently.\12\ Academic research at the time provided at least some
evidence suggesting that futures and options expirations contributed to
excess volatility and reversals around the close on those days.\13\
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\9\ The seller of a ``cash-settled'' index option pays out the
cash value of the applicable index on expiration or exercise. A
``physical delivery'' option, like equity and ETF options, involves
the transfer of the underlying asset rather than cash. See
Characteristics and Risks of Standardized Options, available at:
<a href="https://www.theocc.com/Company-Information/Documents-and-Archives/Options-Disclosure-Document">https://www.theocc.com/Company-Information/Documents-and-Archives/Options-Disclosure-Document</a>.
\10\ See Securities Exchange Act Release No. 65256 (September 2,
2011), 76 FR 55969, at 55972 (September 9, 2011) (SR-C2-2011-008)
(Order approving proposed rule change to establish a pilot program
to list and trade SPXPM options on the C2 Options Exchange,
Incorporated) (``C2 SPXPM Approval'').
\11\ See id.
\12\ See id.
\13\ See Securities and Exchange Commission, Division of
Economic Risk and Analysis, Memorandum dated February 2, 2021 on
Cornerstone Analysis of PM Cash-Settled Index Option Pilots
(September 16, 2020) (``Pilot Memo'') at 5, available at: <a href="https://www.sec.gov/files/Analysis_of_PM_Cash_Settled_Index_Option_Pilots.pdf">https://www.sec.gov/files/Analysis_of_PM_Cash_Settled_Index_Option_Pilots.pdf</a> (citing, among
other papers, Stoll, Hans R., and Robert E. Whaley, ``Expiration day
effects of index options and futures,'' Monograph Series in Finance
and Economics, no. 3 (1986)).
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In light of the concerns with p.m. settlement and to help
ameliorate the price effects associated with expirations
[[Page 66112]]
of p.m.-settled, cash-settled index products, in 1987, the Commodity
Futures Trading Commission approved a proposed rule change by the
Chicago Mercantile Exchange (``CME'') to provide for a.m. settlement
\14\ for index futures, including futures on the S&P 500 Index.\15\ The
Commission subsequently approved a proposed rule change by Cboe Options
Exchange (``Cboe Options'') to list and trade a.m.-settled options on
the S&P 500 Index.\16\ In 1992, the Commission approved Cboe Options'
proposal to transition all of its European-style cash-settled options
on the S&P 500 Index to a.m. settlement.\17\ However, in 1993, the
Commission approved a proposed rule change allowing Cboe Options to
list p.m.-settled options on certain broad-based indexes, including the
S&P 500, expiring at the end of each calendar quarter (since approved
as permanent).\18\ Starting in 2006, the Commission approved a number
of proposals, on a pilot basis, permitting Cboe Options to introduce
other index options with p.m.-settlement. These include p.m.-settled
index options expiring weekly (other than the third Friday) and at the
end of each month,\19\ as well as p.m.-settled S&P 500 Index options
and Mini-S&P 500 Index options expiring on the third Friday of the
month.\20\
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\14\ The exercise settlement value for an a.m.-settled index
option is determined by reference to the reported level of the index
as derived from the opening prices of the component securities on
the business day before expiration.
\15\ See Proposed Amendments Relating to the Standard and Poor's
500, the Standard and Poor's 100 and the Standard Poor's OTC Stock
Price Index Futures Contract, 51 FR 47053 (December 30, 1986)
(notice of proposed rule change from the CME). See also Securities
Exchange Act Release No. 24367 (April 17, 1987), 52 FR 13890 (April
27, 1987) (SR-CBOE-87-11) (noting that the CME moved the S&P 500
futures contract's settlement value to opening prices on the
delivery date).
\16\ See Securities Exchange Act Release No. 24367 (April 17,
1987), 52 FR 13890 (April 27, 1987) (SR-CBOE-87-11).
\17\ See Securities Exchange Act Release No. 30944 (July 21,
1992), 57 FR 33376 (July 28, 1992) (SR-CBOE-92-09). The Commission
also approved proposals by other options markets to transfer most of
their cash-settled index products to a.m. settlement. See, e.g.,
Securities Exchange Act Release No. 25804 (June 15, 1988), 53 FR
23475 (June 22, 1988) (SR-NYSE-87-11 and 88-04).
\18\ See Securities Exchange Act Release No. 31800 (February 1,
1993), 58 FR 7274 (February 5, 1993) (SR-CBOE-92-13). See also
Securities Exchange Act Release Nos. 54123 (July 11, 2006), 71 FR
40558 (July 17, 2006) (SR-CBOE-2006-65); and 60164 (June 23, 2009),
74 FR 31333 (June 30, 2009) (SR-CBOE-2009-029).
\19\ See Securities Exchange Act Release Nos. 62911 (September
14, 2010), 75 FR 57539 (September 21, 2010) (SR-CBOE-2009-075);
76529 (November 30, 2015), 80 FR 75695 (December 3, 2015) (SR-CBOE-
2015-106); and 78531 (August 10, 2016), 81 FR 54643 (August 16,
2016) (SR-CBOE-2016-046).
\20\ See Securities Exchange Act Release Nos. 68888 (February 8,
2013), 78 FR 10668 (February 14, 2013) (SR-CBOE-2012-120); and 70087
(July 31, 2013), 78 FR 47809 (August 6, 2013) (SR-CBOE-2013-055).
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Subsequently, other exchanges, including ISE, sought to permit the
listing and trading of p.m.-settled options on certain broad-based
indices. In February 2018, the Commission approved ISE's nonstandard
expirations pilot program on a pilot basis (``Nonstandard Pilot'').\21\
In March 2018, the Commission approved ISE's pilot to permit the
listing and trading of options based on the Nasdaq 100 Reduced Value
Index (``NQX'' or ``NQX options'') on a pilot basis (``NQX
Pilot'').\22\ In the course of approving both Programs, the Commission
reiterated its concern about the potential impact on the market at
expiration for the underlying component stocks for a p.m.-settled,
cash-settled index option.\23\ However, the Commission also recognized
the potential impact was unclear.\24\ The Commission approved the
Programs on a pilot basis to allow the Exchange and the Commission to
monitor for and assess any potential for adverse market effects.\25\ In
order to facilitate this assessment, the Exchange committed to provide
the Commission with data and analysis for each pilot \26\ and to make
such data publicly available.\27\ In addition to the Exchange's data
and analysis, Cornerstone Research also conducted an analysis at the
direction of Staff from the Commission's Division of Economic and Risk
Analysis. The analysis utilizes the level of expiring p.m.-settled
index options open interest and the measures of volatility and price
reversals for the corresponding index futures, the underlying cash
index, and index component securities in the minutes leading up to and
immediately following the market close to study the effects of pilot
programs allowing p.m.-settled index options. The Pilot Memo is
discussed in more detail below.
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\21\ See Securities Exchange Act Release No. 92612 (February 1,
2018), 83 FR 5470 (February 7, 2018) (SR-ISE-2017-111)
(``Nonstandard Approval Order''). The Commission subsequently
approved a proposed rule change to amend the Program to allow the
Exchange to also list p.m.-settled Tuesday and Thursday expirations
on the Nasdaq-100. See Securities Exchange Act Release No. 95393
(July 29, 2022), 87 FR 47807 (August 4, 2022) (SR-ISE-2022-13).
\22\ See Securities Exchange Act Release No. 82911 (March 20,
2018), 83 FR 12966 (March 26, 2018) (SR-ISE-2017-106) (``NQX
Approval Order'').
\23\ See Nonstandard Approval Order, 83 FR at 5472 and NQX
Approval Order 83 FR at 12967. See also Securities Exchange Act
Release Nos. 64599 (June 3, 2011), 76 FR 33798, 33801-02 (June 9,
2011) (order instituting proceedings to determine whether to approve
or disapprove a proposed rule change to allow the listing and
trading of SPXPM options); C2 SPXPM Approval, 76 FR at 55972-76; and
68888 (February 8, 2013), 78 FR 10668, 10669 (February 14, 2013)
(order approving the listing and trading of SPXPM on Cboe Options).
\24\ See NQX Approval Order, 83 FR at 12967.
\25\ See NQX Approval Order, 83 FR at 12967 and Nonstandard
Approval Order, 83 FR at 5473.
\26\ See NQX Approval Order, 83 FR at 12966-12967 and
Nonstandard Approval Order, 83 FR at 5471-5472.
\27\ See, e.g., Securities Exchange Act Release Nos. 85672
(April 17, 2019), 84 FR 16899, at 16899 (April 23, 2019) (SR-ISE-
2019-11) (stating the Exchange will make public on its website any
data and analysis it submits to the Commission under the Nonstandard
Pilot); and 86071 (June 10, 2019) 84 FR 27822, at 27823 (June 14,
2019) (SR-ISE-2019-18) (stating the Exchange is making public on its
website data and analysis previously submitted to the Commission
under the NQX Pilot and committing to make public any data or
analyses submitted in the future).
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III. Description of the Proposal, as Modified by Amendment No. 1
The Exchange proposes to make permanent the Nonstandard Pilot and
the NQX pilot. The Nonstandard Pilot permits the Exchange to open p.m.-
settled options on broad-based indexes that expire (1) on the last day
of the trading month (``EOM expirations'') and (2) on any Monday,
Wednesday, or Friday (other than the third Friday-of-the-month or days
that coincide with an EOM expiration) and, with respect to options on
the Nasdaq-100 (``NDX'' or ``NDX options''), any Tuesday or Thursday
(other than days that coincide with the third Friday-of-the-month or an
EOM expiration). The NQX Pilot permits the listing of NQX options,
which are European-style and cash-settled, and have a contract
multiplier of 100. The contract specifications for NQX options mirror
those of the NDX options contract listed on the Exchange, except that
NQX options are based on \1/5\ of the value of the Nasdaq-100, and are
p.m.-settled pursuant to Options 4A, section 12(a)(6) of the ISE Rules.
The Nonstandard Pilot was extended on multiple occasions, including
recently, and is set to expire on November 6, 2023.\28\ Similarly, the
NQX Pilot was extended on multiple occasions and is set to expire on
November 6, 2023.\29\
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\28\ See Securities Exchange Act Release No. 97386 (April 26,
2023), 88 FR 27545, at 27546-27547 (May 2, 2023) (SR-ISE-2023-09)
(``Programs Extension'').
\29\ See id.
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The Exchange states it has provided pilot data to the Commission
with respect to the Programs, pursuant to the Nonstandard Approval
Order and the NQX Approval order.\30\ The Exchange
[[Page 66113]]
also states it provides ongoing monthly data in addition to the data
provided in the Notice.\31\ Now, the Exchange proposes to make the
Programs permanent.
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\30\ See Notice, 88 FR at 13197. The Exchange has made public on
its website data and analyses previously submitted to the Commission
under the Programs. See <a href="http://www.nasdaqtrader.com/Trader.aspx?id=currentregulatory">http://www.nasdaqtrader.com/Trader.aspx?id=currentregulatory</a>.
\31\ See Programs Extension, 88 FR at 27546-27547.
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IV. Discussion and Commission Findings
After careful review, the Commission finds that the proposed rule
change, as modified by Amendment No. 1, is consistent with the Act and
the rules and regulations thereunder applicable to a national
securities exchange.\32\ In particular, the Commission finds that the
proposed rule change, as modified by Amendment No. 1, is consistent
with section 6(b)(5) of the Act,\33\ which requires, among other
things, that the Exchange's rules be designed to prevent fraudulent and
manipulative acts and practices, 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. In its proposal
to make the Programs permanent, the Exchange addressed market capacity
around the market close and provided an empirical assessment of the
impact of its p.m.-settled index options on options market quality.
Each of these elements is discussed in greater detail below. As stated
above, no comments were received on the proposed rule change.
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\32\ In approving this proposed rule change, the Commission has
considered the proposed rule's impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
\33\ 15 U.S.C. 78f(b)(5).
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Market Impact Considerations
The Exchange's analysis presents data that the introduction of
p.m.-settlement is correlated with an increase in options trading tied
to the Nasdaq-100.\34\ The data shows an increase in trading volume and
notional open interest for NDX and NQX options during the sample
period.\35\
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\34\ See Notice, 88 FR at 13184.
\35\ See id.
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In addition to reviewing the data and analysis provided by the
Exchange, the Commission reviewed the analysis in the Pilot Memo, which
evaluates whether higher levels of expiring open interest in p.m.-
settled index options results in increased volatility and price
reversals around the close. The Pilot Memo shows that the market share
for p.m.-settled options, in particular options on S&P 500 Index, has
grown substantially since 2007.\36\ The Pilot Memo examines whether and
to what extent expiring open interest in p.m.-settled index options is
empirically related with the tendency of the corresponding index
futures, the underlying index, or index components to experience
increased transitory volatility and price reversals around the time of
market close on expiration dates. The Pilot Memo concludes that,
although expiring p.m.-settled index option open interest may have a
statistically significant relationship with volatility and price
reversals of the underlying index, index futures, and index component
securities around the market close, the magnitude of the effect is
economically very small.\37\ For example, the largest settlement event
that occurred during the time period studied in the Pilot Memo (a
settlement of $100.4 billion of notional on December 29, 2017) had an
estimated impact on the futures price of only approximately 0.02% (a
predicted impact of $0.54 relative to a closing futures price of
$2,677).\38\
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\36\ See Pilot Memo at 2. The Pilot Memo also examined options
on the Russell 2000 Index and the Nasdaq-100. However, during the
time period covered by the study (2007-2018), the markets for both
a.m.- and p.m.-settled options on these indexes were very small
compared to the size of that for S&P 500 Index options. In addition,
because p.m.-settled NDX options were only introduced in 2018, the
number of observations for NDX options was much smaller than for
other indexes. See id. at 4.
\37\ See id. at 3.
\38\ See id.
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In order to analyze the effect of a very large increase in
settlement volume for Nasdaq-100 p.m.-settled options contracts, the
Exchange uses the estimated regression coefficients in the Pilot Memo
to estimate the change in the volatility of index futures prices when
settlement volume increased from the 25th percentile to the 75th
percentile.\39\ For both the S&P 500 Index and the Nasdaq-100, the
Exchange estimates the relative impact would be small for both
indexes.\40\
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\39\ See Notice, 88 FR at 13195.
\40\ See id.
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The Exchange also provides additional analysis on market capacity
around the market close.\41\ Specifically, the Exchange presents data
that the closing auction volume on the equity market have become much
larger than the opening auction, which may indicate that there is
sufficient liquidity in closing auctions to absorb liquidity demand
associated with p.m.-settlement of NDX and NQX options.\42\ In
addition, the Exchange states that the liquidity available at or around
the close would be able to mitigate any excess volatility created by
the options settlement at the market close.\43\
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\41\ See id. at 13195-13196.
\42\ See id. at 13196.
\43\ See id.
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Further, the Exchange represents that it has sufficient systems
capacity to handle p.m.-settled options on broad-based indexes with
nonstandard expirations dates and has not encountered any issues or
adverse market effects as a result of listing them.\44\
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\44\ See Notice, 88 FR at 13197.
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Market Quality Considerations
The Exchange also completed an analysis intended to evaluate
whether the Programs impacted the quality of the NDX options market.
Specifically, the Exchange presents findings on three market
characteristics: trading volume, open interest, and spreads. The
Exchange concludes that there is no evidence that NDX and NQX options
contracts, which are p.m.-settled, would result in reduced trading
activity or degradation in market quality of the a.m.-settled index
options.\45\ The Exchange notes within its analysis that it seems
unlikely that the introduction of NQX option contracts had a
significant impact on the market quality of the full-sized NDX option
contracts.\46\
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\45\ See id. at 13184.
\46\ The Exchange states that given that the size of the market
(measured in volume) for NQX options volume is small compared to
that of other p.m.-settled NDX options, the Exchange believes the
introduction of NQX option contracts is unlikely to adversely impact
the market quality of a.m.-settled NDX options. See Amendment No. 1,
supra note 6.
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Further, the Exchange observed a consistent decrease in relative
quoted spread from 2017 to 2022 for NDX options.\47\ When the Exchange
compared the spread trend of NDX monthly contracts to that of QQQ
monthly contracts, the Exchange states that the results suggest that
there is gradual decrease in both the NDX monthly contracts spread and
the QQQ contracts spread during the sample period.\48\ The Exchange
uses duration weighted relative quoted spread as a measure of the cost
of trading and examines whether the introduction of p.m.-settled index
options results in any deterioration of spreads for am-settled NDX
options.\49\ The Exchange finds a consistent decrease in the relative
quoted spread is prevalent from 2017 to 2022 and no obvious change in
the trend following the introduction of p.m.-settled index options.\50\
The analysis also considered whether the move from a.m. settlement to
p.m. settlement for Friday weekly expirations
[[Page 66114]]
(other than third-Friday-of-the-month) led to changes in spreads for
those contracts.\51\ The sample timeframe was from July 2017 through
August 2018.\52\ The relative quoted spread decreased during first part
of 2018 and increase in May and June 2018; however, it remained
comparable to the 2017 average.\53\ Overall, the Exchange observes no
evidence of deterioration of spreads associated with the introduction
of p.m.-settled NDX options.\54\
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\47\ See Notice, 88 FR at 13191.
\48\ See id. at 13192, 13197.
\49\ See id. at 13190-13191.
\50\ See id.
\51\ See id. at 13194.
\52\ See id. The Exchange used a regression analysis to test
whether the spread of NDX contracts changed after the introduction
of p.m.-settled index options. See id. The regression model is meant
to study the effect of the introduction of Friday p.m.-settled NDX
options expirations (on all but the third Friday of the month) that
occurred in January 2018. See Amendment No. 1, supra note 6.
\53\ See Notice, 88 FR at 13194.
\54\ See id.
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The Commission believes that the evidence contained in the
Exchange's filing, the Exchange's pilot data and reports, and the Pilot
Memo analysis demonstrate that the Programs have benefitted investors
and other market participants by providing more flexible trading and
hedging opportunities while also having no disruptive impact on the
market. The market for p.m.-settled options has grown in size over the
course of the Programs, and analysis of the pilot data did not identify
any significant economic impact on the underlying component securities
surrounding the close as a result of expiring p.m.-settled options nor
did it indicate a deterioration in market quality (as measured by
relative quoted spreads) for an existing product when a new p.m.-
settled expiration was introduced. Further, significant changes in
closing procedures in the decades since index options moved to a.m.
settlement may also serve to mitigate the potential impact of p.m.-
settled index options on the underlying cash markets.
Accordingly, the Commission finds that the proposed rule change, as
modified by Amendment No. 1, is consistent with section 6(b)(5) of the
Act \55\ and the rules and regulations thereunder applicable to a
national securities exchange.
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\55\ 15 U.S.C. 78f(b)(5).
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V. Conclusion
It is therefore ordered, pursuant to section 19(b)(2) of the
Act,\56\ that the proposed rule change (SR-ISE-2023-08), as modified by
Amendment No. 1, be, and hereby is, approved.
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\56\ 15 U.S.C. 78s(b)(2).
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\57\
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\57\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-20808 Filed 9-25-23; 8:45 am]
BILLING CODE 8011-01-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.