Notice2023-28043
Self-Regulatory Organizations; BOX Exchange LLC; Notice of Filing of Amendment No. 2 and Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change, as Modified by Amendment No. 2, To Adopt Rules To Govern FLEX Equity Options and a New Order Type To Trade FLEX Equity Options on the BOX Trading Floor
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
December 21, 2023
Issuing agencies
Securities and Exchange Commission
Full Text
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<title>Federal Register, Volume 88 Issue 244 (Thursday, December 21, 2023)</title>
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[Federal Register Volume 88, Number 244 (Thursday, December 21, 2023)]
[Notices]
[Pages 88437-88461]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-28043]
[[Page 88437]]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-99192; File No. SR-BOX-2023-20]
Self-Regulatory Organizations; BOX Exchange LLC; Notice of Filing
of Amendment No. 2 and Order Instituting Proceedings To Determine
Whether To Approve or Disapprove a Proposed Rule Change, as Modified by
Amendment No. 2, To Adopt Rules To Govern FLEX Equity Options and a New
Order Type To Trade FLEX Equity Options on the BOX Trading Floor
December 15, 2023.
On September 1, 2023, BOX Exchange LLC (``Exchange'' or ``BOX'')
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
adopt Rules 5055 and 7605 which, among other applicable Exchange rules,
will govern the trading of flexible exchange equity options (``FLEX
Equity Options'') on the BOX Trading Floor, and make related changes to
Rules 100 (Definitions), 7620 (Accommodation Transactions), and 12140
(Imposition of Fines for Minor Rule Violations). The proposed rule
change was published for comment in the Federal Register on September
19, 2023.\3\ On September 27, 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 December 12, 2023, the Exchange submitted
Amendment No. 2 to the proposed rule change, which replaced and
superseded the proposed rule change as originally filed.\6\ The
Commission is publishing this notice and order to solicit comments on
the proposed rule change, as modified by Amendment No. 2, from
interested persons, and to institute proceedings pursuant to Section
19(b)(2)(B) of the Act \7\ to determine whether to approve or
disapprove the proposed rule change, as modified by Amendment No. 2.
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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. 98380 (September 13,
2023), 88 FR 64482 (``Notice''). Comment on the proposed rule change
can be found at: <a href="https://www.sec.gov/comments/sr-box-2023-20/srbox202320.htm">https://www.sec.gov/comments/sr-box-2023-20/srbox202320.htm</a>.
\4\ 15 U.S.C. 78s(b)(2).
\5\ See Securities Exchange Act Release No. 98568, 86 FR 68237
(October 3, 2023). The Commission designated December 18, 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\ On December 1, 2023, the Exchange submitted Amendment No. 1
to the proposed rule change. Amendment No. 1 was withdrawn on
December 12, 2023. Amendment No. 2 to the proposed rule change
revised the proposal to: (i) clarifies that FLEX Equity Options may
not be traded using any other order type or trading mechanism
offered by the Exchange; (ii) clarifies that exercise settlement is
by physical delivery; (iii) includes a requirement for FLEX Equity
Option position reporting and margin review; (iv) clarifies the
trading procedures that would apply to close a position if a Non-
FLEX Equity Option series is added intra-day for a component leg(s)
of a Complex FOO Order or Multi-Leg FOO Order; (v) clarifies the
trading procedures that would apply to close a position if a Non-
FLEX Equity Option series is added for a component leg(s) of a
Complex FOO Order or Multi-Leg FOO Order on a trading day after the
position is established; (vi) makes technical changes to the
location and renumbering of proposed rules; and (vii) makes
additional clarifying changes to the description of and statutory
basis for the proposed rule change. Amendment No. 2 is available on
the Commission's website at: <a href="https://www.sec.gov/comments/sr-box-2023-20/srbox202320-310739-809082.pdf">https://www.sec.gov/comments/sr-box-2023-20/srbox202320-310739-809082.pdf</a> (``Amendment No. 2'').
\7\ 15 U.S.C. 78s(b)(2)(B).
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I. Self-Regulatory Organization's Description of the Proposed Rule
Change, as Modified by Amendment No. 2 <SUP>8</SUP>
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\8\ This Section I and II reproduces Amendment No. 2, as filed
by the Exchange.
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The Exchange proposes to (1) adopt Rules 5055 and 7605 which will
govern the trading of flexible exchange options (``FLEX Equity
Options'') on BOX; and (2) make related changes to Rules 100
(Definitions), 7620 (Accommodation Transactions), and 12140 (Imposition
of Fines for Minor Rule Violations). 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.
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 self-regulatory organization
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 self-regulatory organization
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 (1) adopt Rules 5055 and 7605 which will
govern the trading of flexible exchange options (``FLEX Equity
Options'') on BOX; and (2) make related changes to Rules 100
(Definitions), 7620 (Accommodation Transactions), and 12140 (Imposition
of Fines for Minor Rule Violations). The proposed rule change was
published in the Federal Register on September 19, 2023 (the ``Original
Filing'').\9\ The Exchange is proposing Amendment No. 2 to amend and
replace the Original Filing in its entirety.\10\ This Amendment No. 2
is being filed to better conform to the FLEX rules of other exchanges
related to FLEX options position reporting and margin review, and to
provide more specificity to the proposed rule change.
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\9\ See Securities Exchange Act Release No. 98380 (September 13,
2023), 88 FR 64482 (September 19, 2023) (SR-BOX-2023-20) (Notice of
Filing of Proposed Rule Change to Adopt Rules to Govern FLEX Equity
Options and a New Order Type to Trade FLEX Equity Options on the BOX
Trading Floor).
\10\ The Exchange withdrew Amendment No. 1 on December 12, 2023.
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Amendment No. 2
This Amendment No. 2 makes the following changes to the Original
Filing: (i) clarifies that FLEX Equity Options may not be traded using
any other order type or trading mechanism offered by the Exchange; (ii)
relocates previously proposed Rule 5055(f)(1) to new proposed Rule
5055(e)(1) and renumbers previously proposed paragraph (e)(1) as
(e)(2); (iii) renumbers the remaining text of proposed Rule 5055(f) as
proposed Rule 5055(f)(1), (2), and (3); (iv) amends the title of
proposed Rule 5055(f); (v) clarifies that exercise settlement is by
physical delivery; (vi) includes a requirement for FLEX Equity Option
position reporting and margin review; (vii) clarifies the trading
procedures that would apply to close a position if a Non-FLEX Equity
Option series is added intra-day for a component leg(s) of a Complex
FOO Order or Multi-Leg FOO Order; (viii) clarifies the trading
procedures that would apply to close a position if a Non-FLEX Equity
Option series is added for a component leg(s) of a Complex FOO Order or
Multi-Leg FOO Order on a trading day after the position is established;
and (ix) makes additional clarifying changes to the description of
[[Page 88438]]
and statutory basis for the proposed rule change.
The Exchange is amending the rule text to clarify that FLEX Equity
Options may not be traded using any other order type or trading
mechanism offered by the Exchange. The Exchange is proposing this
change to provide greater clarity on how FLEX Equity Options may be
traded. The Exchange believes this change is reasonable as it adds more
clarity to the rule text by emphasizing that FLEX Equity Options shall
not be traded other than as FOO Orders.
The Exchange is amending the rule text to relocate currently
proposed Rule 5055(f)(1) to new proposed Rule 5055(e)(1), renumber
currently proposed paragraph (e)(1) as (e)(2), and renumber the
remaining text of proposed Rule 5055(f) as proposed Rules 5055(f)(1),
(2), and (3). The Exchange believes this change will provide greater
clarity to the rule text by reorganizing previously proposed text in a
more readable, understandable, and user-friendly manner. The Exchange
is also amending the title of proposed Rule 5055(f) to ``Fungibility of
FLEX Equity Options.'' The Exchange is proposing this change to more
appropriately reflect the purpose of the section following these
reorganizational changes.
The Exchange is amending rule text by adding proposed Rule
5055(e)(3) to clarify that the exercise settlement of FLEX Equity
Options shall be by physical delivery of the underlying security. The
Exchange is proposing this change to provide greater clarity on how
FLEX Equity Options may be traded and settled. The Exchange believes
this change is reasonable as it adds more clarity to the rule text by
specifying that the exercise settlement for FLEX Equity Options shall
be by physical delivery of the underlying security.
The Exchange is amending the rule text to include a requirement for
FLEX Equity Option position reporting and margin review. The Exchange
is proposing this change to better align the proposed rules with the
already established rules of other exchanges. The Exchange believes
this change is reasonable as it conforms the proposed rule with the
rest of the industry.
The Exchange is amending the rule text to clarify the trading
procedures that would apply to close a position if a Non-FLEX Equity
Option series is added intra-day or on a subsequent trading day for a
component leg(s) of a Complex FOO Order or Multi-Leg FOO Order. The
Exchange is proposing these changes to provide greater clarity on the
treatment of FLEX Equity Options after the same Non-FLEX Equity Option
is added. The Exchange believes these changes are reasonable as they
add more clarity to the rule text on how to close FLEX Equity Option
positions.
Summary
The Exchange proposes to adopt rules to govern FLEX Equity Options
and a new order type to trade FLEX Equity Options on the BOX Trading
Floor.\11\ The Exchange also proposes to amend Rules 100 (Definitions),
7620 (Accommodation Transactions), and 12140 (Imposition of Fines for
Minor Rule Violations) to reflect the introduction of FLEX Equity
Option trading on the Exchange. FLEX Equity Options are options with
flexible terms such that Participants \12\ can customize expiration
date, exercise price, and exercise style. FLEX Equity Options are
designed to meet the needs of investors for greater flexibility in
selecting the terms of options within the parameters of the Exchange's
proposed rules. FLEX Equity Options are not preestablished for trading
and are not listed individually for trading on the Exchange. Rather,
investors select FLEX Equity Option terms and are limited by the
parameters detailed below in their selection of those terms. As a
result, FLEX Equity Options allow investors to satisfy more specific,
individualized investment objectives than may be available to them in
the standardized options market. Specifically, FLEX Equity Options will
be subject to proposed Rule 5055 and will be traded as FLEX Open Outcry
Orders (``FOO Orders'') on the BOX Trading Floor under proposed Rule
7605. FLEX Equity Options are a type put or call, and allow investors
to choose an exercise price of any dollar amount in minimum increments
of $0.01,\13\ an exercise style of American or European,\14\ and an
expiration date of any month, business day and year no more than 15
years from the date on which a FLEX Equity Option is executed.\15\ As
discussed further below, FLEX Equity Options will not be permitted with
the same terms as an existing Non-FLEX Equity Option listed on the
Exchange.\16\ Because of their composition, the Exchange believes that
FLEX Equity Options may allow investors to more closely meet their
individual investment and hedging objectives by customizing option
contracts for the purpose of satisfying particular investment
objectives that could not be met by the standardized markets.
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\11\ The term ``Trading Floor'' or ``Options Floor'' means the
physical trading floor of the Exchange located in Chicago. The
Trading Floor shall consist of one ``Crowd Area'' or ``Pit'' where
all option classes will be located. The Crowd Area or Pit shall be
marked with specific visible boundaries on the Trading Floor, as
determined by the Exchange. A Floor Broker must open outcry an order
in the Crowd Area. See BOX Rule 100(a)(68).
\12\ The term ``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
and includes an ``Options Participant'' and ``BSTX Participant.''
See BOX Rule 100(a)(42).
\13\ See proposed Rule 5055(e)(2)(iii).
\14\ See proposed Rule 5055(e)(2)(iv).
\15\ See proposed Rule 5055(e)(2)(v).
\16\ At least one of the following terms must differ between
FLEX Equity Options and Non-FLEX Equity Options on the same
underlying security: Exercise price, Exercise style, and Expiration
date.
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Background
The Securities and Exchange Commission (``Commission'') approved
the trading of FLEX options in 1993.\17\ At the time, the Chicago Board
Options Exchange, Inc., now Cboe Exchange, Inc. (``CBOE'') proposed
FLEX options based on the Standard and Poor's Corporation 500 and 100
Stock Indexes (referred to as the ``CBOE Order'' herein).\18\ These
FLEX options were offered as an alternative to an over-the-counter
(``OTC'') market in customized equity options.\19\ Several years after
the initial approval, the Commission approved the trading of additional
FLEX options on specified equity securities.\20\ In its order, the
Commission provided: ``The benefits of the Exchanges' options markets
include, but are not limited to, a centralized market center, an
auction market with posted transparent market quotations and
transaction reporting, parameters and procedures for clearance and
settlement, and the guarantee of the OCC [Options Clearing Corporation]
for all contracts traded on the Exchange.'' \21\
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\17\ See Securities Exchange Act Release No. 31920 (February 24,
1993), 58 FR 12280 (March 3, 1993) (SR-CBOE-92-17) (Order Approving
and Notice of Filing and Order Granting Accelerated Approval to
Amendment Nos. 1, 2, 3, and 4 to Proposed Rule Changes by the
Chicago Board Options Exchange, Inc., Relating to Flexible Exchange
Options (``FLEX Options'')).
\18\ Id.
\19\ Id.
\20\ See Securities Exchange Act Release No. 36841 (February 14,
1996), 61 FR 6666 (February 21, 1996) (SR-CBOE-95-43) (SR-PSE-95-24)
(Order Approving Proposed Rule Changes and Notice of Filing and
Order Granting Accelerated Approval of Amendments by the Chicago
Board Options Exchange, Inc. and the Pacific Stock Exchange, Inc.,
Relating to the Listing of Flexible Exchange Options on Specified
Equity Securities).
\21\ Id. The Exchange notes that the Commission found pursuant
to Rule 9b-1 under the Act, that FLEX Options, including FLEX Equity
Options, are standardized options for purposes of the options
disclosure framework established under Rule 9b-1 of the Act. Id.
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The Exchange notes that FLEX options are currently traded on CBOE,
NYSE American LLC (``NYSE American''), NYSE Arca, Inc. (``NYSE Arca''),
and Nasdaq PHLX LLC
[[Page 88439]]
(``PHLX'').\22\ The Exchange notes further that CBOE offers electronic
and open outcry FLEX option trading while NYSE American, NYSE Arca, and
PHLX offer only open outcry trading of FLEX options.
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\22\ See CBOE Rules 4.20-4.22 and 5.70-5.75 and NYSE American
Rules 900G-910G and NYSE Arca Rules 5.30-O-5.41-O and PHLX Options
8, Section 34.
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In August 2017, the Commission approved the Exchange's proposal to
adopt rules for an open outcry trading floor.\23\ The Exchange based
the rules for the BOX Trading Floor on the rules of the options
exchanges that had established trading floors at that time. When the
BOX Trading Floor was adopted in 2017, it was the first options trading
floor to be established since the 1970s.\24\ As such, the BOX Trading
Floor rules have certain differences to the trading floor rules at the
other options exchanges, to account for the unique nature of BOX's
Trading Floor and to modernize the existing trading floor rules and
surveillance practices. The BOX Trading Floor has been operating since
2017 and is now well-established. The Exchange believes that its unique
features for open-outcry trading provide value to Floor Participants.
The Exchange now proposes to allow for the trading of FLEX Equity
Options as FOO Orders on the BOX Trading Floor.\25\
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\23\ See Securities Exchange Act Release No. 81292 (August 2,
2017), 82 FR 37144 (August 8, 2017) (SR-BOX-2016-48) (Order
Approving a Proposed Rule Change, as Modified by Amendment Nos. 1
and 2, To Adopt Rules for an Open-Outcry Trading Floor) (finding
that the proposed rule change was consistent with the requirements
of the Act and the rules and regulations thereunder applicable to a
national securities exchange).
\24\ See <a href="https://www.optionsplaybook.com/options-introduction/stock-option-history/">https://www.optionsplaybook.com/options-introduction/stock-option-history/</a>.
\25\ The Exchange has received one comment letter in support of
the proposed rule change. The commenter believes that permitting BOX
to offer FLEX Equity Options will expand competition and capacity
and thus drive better execution experiences for the public. See
Letter from Anish Vora, CEO, FCF Holdings LLC, and Board of
Directors of NYSE, to the SEC (September 29, 2023) (<a href="https://www.sec.gov/comments/sr-box-2023-20/srbox202320-638842.htm">https://www.sec.gov/comments/sr-box-2023-20/srbox202320-638842.htm</a>).
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Proposal
The Exchange proposes to adopt Rule 5055 titled FLEX Equity Options
which describes and governs FLEX Equity Options. Rule 5055(a) details
the applicability of other Exchange rules with respect to the proposed
FLEX Equity Options. Specifically, the trading of FLEX Equity Options
is subject to all other Rules applicable to the trading of options on
the Exchange, unless otherwise provided in Rules 5055 and 7605.\26\ The
Exchange has conducted a thorough review of its existing Rules to
ensure that the text of proposed Rule 5055(a) appropriately reflects
any Rules that (1) would apply to FLEX Equity Options and Non-FLEX
Equity Options alike,\27\ and (2) would not apply to FLEX Equity
Options at all.\28\ As described herein, the only means by which the
Exchange intends to permit FLEX Equity Options to be traded is via the
proposed FOO Order type. To the extent the Exchange proposes to adopt
additional rules for the trading of FLEX Equity Options, including
electronic trading of FLEX Equity Options, the Exchange would file a
separate proposed rule change with the Commission.
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\26\ See proposed Rule 5055(a). Proposed Rule 5055(a) is based
on CBOE Rule 5.72(a).
\27\ See proposed Rule 5055(a). For example, Rules 7010 (Fees
and Charges), 7020 (Days and Hours of Business), 7030 (Units of
Trading), and 7080 (Trading Halts) apply to FLEX Equity Options and
Non-FLEX Equity Options alike.
\28\ See, for example, infra note 36, explaining that FLEX
Equity Options may not trade using various order mechanisms designed
for electronic trading.
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The rules proposed by the Exchange are uniquely applicable to FLEX
Equity Options in order to accommodate their special characteristics.
For example, the BOX Book \29\ and the Complex Order Book \30\ shall
not be available for transactions in FLEX Equity Options because,
consistent with other exchanges' FLEX rules, there will be no pre-
established series \31\ and no electronic trading of FLEX Equity
Options.\32\ While electronic trading in FLEX options is available on
CBOE,\33\ the Exchange at this time intends to introduce FLEX Equity
Options on the Trading Floor only, consistent with other markets that
trade these customized options solely on their trading floors.\34\ The
Exchange notes that rules that contemplate the operation of or
interaction with the BOX Book and the Complex Order Book will not apply
to FLEX Equity Options, given that FLEX Equity Options may only be
traded as FOO Orders and FOO Orders may not be placed in the BOX Book
or the Complex Order Book.\35\ Additionally, the Exchange is proposing
to codify that Options Exchange Officials have the same duties and
ability to enforce rules applicable to the trading of FLEX Equity
Options as they do for all other activity on the Trading Floor.\36\
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\29\ The term ``BOX Book'' means the electronic book of orders
on each single option series maintained by the BOX Trading Host. See
BOX Rule 100(a)(10).
\30\ The term ``Complex Order Book'' means the electronic book
of Complex Orders maintained by the BOX Trading Host. See BOX Rule
7240(a)(8).
\31\ See infra note 52.
\32\ See proposed Rule 5055(a)(1). Proposed Rule 5055(a)(1) is
based on NYSE Arca Rule 5.30-O(c).
\33\ See, e.g., CBOE Rules 5.73 and 5.74.
\34\ See, e.g., NYSE Arca Rule 5.30-O(c).
\35\ The Exchange notes that FLEX Equity Options may not trade
via the PIP, COPIP, Facilitation and Solicitation Auctions, or as
Qualified Contingent Cross (``QCC''), Complex QCC, Customer Cross,
and Complex Customer Cross Orders. If the Exchange intended to allow
FLEX Equity Options to trade via the PIP, COPIP, Facilitation and
Solicitation Auctions, or as (``QCC''), Complex QCC, Customer Cross,
and Complex Customer Cross Orders, the Exchange would be required to
file a proposed rule change with the Commission to amend its rules
to allow for the inclusion of FLEX Equity Options in the relevant
rule text.
\36\ See proposed Rule 5055(a)(2).
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FLEX Equity Options will only be permitted in puts and calls that
do not have the same exercise style (American or European), same
expiration date and same exercise price as Non-FLEX Equity Options that
are already available for trading on the same underlying security.\37\
In addition, once, and if, identical option series are listed for
trading as Non-FLEX Equity Options, (1) all existing open positions
established under the FLEX trading procedures shall be fully fungible
with transactions in the respective Non-FLEX Equity Option series, and
(2) any further trading in the series would be as Non-FLEX Equity
Options subject to the non-FLEX trading procedures and rules.\38\
Therefore, FOO Orders, whose terms must be different from options that
are already available for trading, would not be fungible with interest
resting on the BOX Book or Complex Order Book. Accordingly, the
Exchange believes FOO Orders would not be able to trade through
interest resting on the BOX Book or Complex Order Book nor would
interest resting on the BOX Book or Complex Order Book lose priority to
FOO Orders.
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\37\ See proposed Rule 5055(e)(1). Proposed Rule 5055(e)(1) is
based on NYSE Arca Rule 5.32-O, Commentary .01.
\38\ See proposed Rule 5055(f)(1). Proposed Rule 5055(f)(1) is
based on NYSE Arca Rule 5.32-O, Commentary .01.
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The Exchange proposes Rule 5055(b) which defines the following
terms: FLEX Equity Option, Non-FLEX Equity Option, FLEX Market Maker,
and FLEX Open Outcry Order. Specifically, the term ``FLEX Equity
Option'' means an option on a specified underlying security that is
subject to Rule 5055.\39\ ``Non-FLEX Equity Option'' means an option
contract that is not a FLEX Equity Option.\40\ ``FLEX Open Outcry
Order'' (``FOO Order'') means a FLEX Equity Option order as defined in
[[Page 88440]]
proposed Rule 7605.\41\ ``FLEX Market Maker'' means a Market Maker that
is qualified by the Exchange to trade FLEX Equity Options and meets the
requirements of proposed Rule 5055(k).\42\ The proposed functionality
for FOO Orders is designed to be similar to the Exchange's existing
Qualified Open Outcry (``QOO'') Orders because both order types will be
transacted on the Trading Floor and BOX believes they should follow
similar procedures, excluding provisions related to the BOX Book, as
discussed below.\43\ FLEX Equity Options shall not be traded other than
as FOO Orders.\44\ The Exchange also proposes to specify in proposed
Rule 5055(b)(3) that, for the avoidance of doubt, FLEX Equity Options
may not be traded using any other order type or trading mechanism
offered by the Exchange.
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\39\ See proposed Rule 5055(b)(1). The Exchange notes that
proposed Rule 5055(e)(2)(i) provides that FLEX Equity Options on
underlying securities may be authorized pursuant to Rule 5020.
\40\ See proposed Rule 5055(b)(2). Proposed Rule 5055(b)(2) is
based on NYSE Arca Rule 5.30-O(b)(11).
\41\ See proposed Rule 5055(b)(3).
\42\ See proposed Rule 5055(b)(4).
\43\ See BOX Rule 7600. See also Securities Exchange Act Release
No. 81292 (August 2, 2017), 82 FR 37144 (August 8, 2017) (SR-BOX-
2016-48) (Order Approving a Proposed Rule Change, as Modified by
Amendment Nos. 1 and 2, To Adopt Rules for an Open-Outcry Trading
Floor).
\44\ See proposed Rule 5055(b)(3).
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The Exchange proposes Rule 5055(c) which states that certain
Exchange rules do not apply to transactions in FLEX Equity Options.
Specifically, Rule 7600 ``Qualified Open Outcry Orders--Floor
Crossing'' and Rule 7620 ``Accommodation Transactions'' do not apply to
transactions in FLEX Equity Options.\45\ These rules represent order
types that currently apply to Non-FLEX Equity Options on the BOX
Trading Floor and are specifically excluded given that the Exchange is
proposing the FOO Order type to be used exclusively for trading FLEX
Equity Options. However, the Exchange proposes that certain Rule 7600
Interpretive Materials apply to FLEX Equity Options; in particular IM-
7600-2 \46\ and IM-7600-5.\47\ IM-7600-2 and IM-7600-5 relate to tied
hedge orders and to compliance with Section 11(a)(1) of the Act,
respectively, and will apply to the proposed FOO Orders in the same
manner as they currently apply to QOO Orders. Because these provisions
would apply equally to FLEX Equity Options as they do to Non-FLEX
Equity Options, they need not be duplicated for purposes of the
proposed rules.
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\45\ See proposed Rule 5055(c). Proposed Rule 5055(c) is based
on NYSE Arca Rule 5.30-O(d).
\46\ BOX IM-7600-2 provides that nothing prohibits a Floor
Broker from buying or selling a stock, security futures, or futures
position following receipt of an option order, including a Complex
Order, provided that prior to announcing such order to the trading
crowd: (a) the option order is in a class designated as eligible for
``tied hedge'' transactions (as described below) as determined by
the Exchange and is within the designated tied hedge eligibility
size parameters, which parameters shall be determined by the
Exchange and may not be smaller than 500 contracts per order.
Additionally, there shall be no aggregation of multiple orders to
satisfy the size parameter, and for Complex Orders involved in a
tied hedge transaction at least one leg must meet the minimum size
requirement; (b) such Floor Broker shall create an electronic record
that it is engaging in a tied hedge transaction in a form and manner
prescribed by the Exchange; (c) such hedging position is: (1)
comprised of a position designated as eligible for a tied hedge
transaction as determined by the Exchange and may include the same
underlying stock applicable to the option order, a security future
overlying the same stock applicable to the option order or, in
reference to an index or Exchange-Traded Fund Shares (``ETF''), a
related instrument. A ``related instrument'' means, in reference to
an index option, securities comprising ten percent or more of the
component securities in the index or a futures contract on any
economically equivalent index applicable to the option order. A
``related instrument'' means, in reference to an ETF option, a
futures contract on any economically equivalent index applicable to
the ETF underlying the option order; (2) brought without undue delay
to the trading crowd and announced concurrently with the option
order; (3) offered to the trading crowd in its entirety; and (4)
offered, at the execution price received by the Floor Broker
introducing the option, to any in-crowd Floor Participant who has
established parity or priority for the related options; (d) the
hedging position does not exceed the option order on a delta basis;
(e) all tied hedge transactions (regardless of whether the option
order is a simple or Complex Order) are treated the same as Complex
Orders for purposes of the Exchange's open outcry allocation and
reporting procedures. Tied hedge transactions are subject to the
existing NBBO trade-through requirements for options and stock, as
applicable, and may qualify for various exceptions; however, when
the option order is a simple order, the execution of the option leg
of a tied hedge transaction does not qualify for the NBBO trade-
through exception for a Complex Trade (defined in Rule 7610(e)); (f)
in-crowd Floor Participants that participate in the option
transaction must also participate in the hedging position and may
not prevent the option transaction from occurring by giving a
competing bid or offer for one component of such order; (g) in the
event the conditions in the non-options market prevents the
execution of the non-option leg(s) at the agreed prices, the trade
representing the options leg(s) may be cancelled; and (h) prior to
entering tied hedge orders on behalf of Customers, the Floor Broker
must deliver to the Customer a written notification informing the
Customer that his order may be executed using the Exchange's tied
hedge procedures. The written notification must disclose the terms
and conditions contained in this Interpretative Material and be in a
form approved by the Exchange. See BOX IM-7600-2.
\47\ BOX IM-7600-5 provides that a Participant shall not utilize
the Trading Floor to effect any transaction for its own account, the
account of an associated person, or an account with respect to which
it or an associated person thereof exercises investment discretion
by relying on an exemption under Section 11(a)(1)(G) of the Exchange
Act. See BOX IM-7600-5.
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The Exchange proposes Rule 5055(d) which states that FLEX Equity
Options will have no trading rotations.\48\ Trading rotations are used
to open or reopen a series of options on BOX at a single price.\49\
There is a period of time before the market in the underlying security
opens during which orders placed on the BOX Book do not generate trade
executions but may participate in the Opening Match.\50\ FLEX Equity
Options will not be placed on the BOX Book, and therefore will not have
trading rotations because there will be no requirement for specific
FLEX Equity Option series to be quoted or traded each day. FLEX Equity
Options are created with terms unique to individual investment
objectives. As such, each investor may require FLEX Equity Options with
slightly different terms than those already created. These individually
defined FLEX Equity Options are customized for each investor and
therefore trading rotations may not be useful for other investors who
may create their own FLEX Equity Options because trading rotations are
designed, in part, to determine a single opening, or reopening, price
based on orders and quotes from multiple Participants. With the bespoke
nature of FLEX Equity Options there is not the opportunity, nor need,
to bring together multiple orders and quotes as part of a trading
rotation.
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\48\ See proposed Rule 5055(d). Proposed Rule 5055(d) is based
on NYSE Arca Rule 5.31-O(b).
\49\ See BOX Rules 7070(e)(2) and (l).
\50\ See BOX Rules 7070(a) and (e). The Exchange notes that
trading rotations are referred to in BOX Rule 7070(e) as the Opening
Match.
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Further, the Exchange proposes Rule 5055(e) which provides that
FLEX Equity Options will not be preestablished for trading and,
provided the options on an underlying security are otherwise eligible
for FLEX trading, FLEX Equity Options shall be permitted in puts and
calls that do not have the same exercise style, same expiration date,
and same exercise price as Non-FLEX Equity Options that are already
available for trading on the same underlying security. Proposed Rule
5055(e) further provides that FLEX Equity Options must include one of
each of the terms of a FLEX Equity Option that are described in the
proposed Rule.\51\ Specifically, (i) the Exchange may authorize for
trading a FLEX Equity Option class on any underlying security if it may
authorize trading a Non-FLEX Equity Option class on that underlying
security pursuant to Rule 5020,\52\ and that has Non-FLEX Equity
Options on such security listed
[[Page 88441]]
and traded on at least one national securities exchange, even if the
Exchange does not list that Non-FLEX Equity Option class for trading;
\53\ (ii) the option type may be put or call; \54\ (iii) the exercise
price may be any dollar amount in minimum increments of $0.01; \55\
(iv) the exercise style may be American or European; \56\ and (v) the
expiration date may be any business day (specified to the day, month,
and year) no more than 15 years from the date of the FLEX Equity Option
transaction.\57\ A FLEX Equity Option order may be submitted on any
trading day, including the expiration date.\58\ Additionally, the
exercise settlement of FLEX Equity Options shall be by physical
delivery of the underlying security.\59\
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\51\ Proposed Rule 5055(e) is based on NYSE Arca Rule 5.32-O.
The Exchange notes that it is not proposing FLEX Index Options and
thus has not incorporated applicable provisions as Index Options do
not trade on BOX.
\52\ Rule 5020 provides criteria for the listing of options on
several different underlying types of securities, including
securities registered with the SEC under Regulation NMS of the Act
(``NMS stock''), Exchange-Traded Fund Shares, and Index-Linked
Securities. See BOX Rule 5020.
\53\ See proposed Rule 5055(e)(2)(i). Proposed Rule
5055(e)(2)(i) is based on NYSE Arca Rule 5.32-O(f)(1).
\54\ See proposed Rule 5055(e)(2)(ii). Proposed Rule
5055(e)(2)(ii) is based on NYSE Arca Rule 5.32-O(b)(2).
\55\ See proposed Rule 5055(e)(2)(iii). Proposed Rule
5055(e)(2)(iii) is based on NYSE Arca Rule 5.32-O(f)(2) (exercise
prices and premiums may be stated in terms of: (i) a dollar amount;
(ii) a method for fixing at the time a FLEX Request for Quote or
FLEX Order is traded; or (iii) a percentage of the price of the
underlying security at the time of the trade or as of the close of
trading on the NYSE Arca on the trade date). The Exchange notes that
the proposal only includes exercise, bid, and offer prices in terms
of a dollar amount.
\56\ See proposed Rule 5055(e)(2)(iv). Proposed Rule
5055(e)(2)(iv) is based on NYSE Arca Rule 5.32-O(b)(3).
\57\ See proposed Rule 5055(e)(2)(v). Proposed Rule
5055(e)(2)(v) is based on NYSE Arca Rules 5.32-O(b)(4) and (6). The
Exchange notes that it has omitted the exception for FLEX Index
Options because BOX does not list FLEX Index Options and FLEX Index
Options are not part of this proposal.
\58\ See proposed Rule 5055(e)(2)(v)(a). It is the Exchange's
understanding from conversations with the Options Clearing
Corporation (``OCC'') that the OCC is able to process FLEX
transactions that occur on the expiration date. The Exchange notes
that NYSE Arca's rules do not contain a similar provision. However,
the Exchange believes, based on Participant feedback, that FLEX
Option orders on NYSE ARCA are allowed on the expiration date. The
Exchange notes that the exercise of options contracts is governed by
the Rule 9000 series including exercise cut-off times and contrary
exercise advices. The Exchange also notes that, in another context,
new series may be listed the day they expire. Specifically, Short
Term Option Series may be added up to and including on the Short
Term Option Expiration Date for that options series. See BOX IM-
5050-6(b)(4).
\59\ See proposed Rule 5055(e)(3). Proposed Rule 5055(e)(3) is
based on NYSE Arca Rule 5.32-O(f)(3)(i). The Exchange notes that
NYSE Arca Rule 5.32-O(f)(3)(i) includes references to Exchange-
Traded Fund Shares and FLEX ByRDs that the Exchange is not including
because the Exchange believes it is not necessary to specifically
reference Exchange-Traded Fund Shares as they are included under the
term underlying security. Additionally, the Exchange notes that FLEX
ByRDs are not being proposed on the Exchange.
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Next, the Exchange proposes Rule 5055(f) titled Fungibility of FLEX
Equity Options. Proposed Rule 5055(e)(1), described above, limits FLEX
Equity Option terms such that options on an underlying security
otherwise eligible for FLEX trading will only be permitted in puts and
calls that do not have the same exercise style (American or European),
same expiration date and same exercise price as Non-FLEX Equity Options
that are already available for trading on the same underlying
security.\60\ Notwithstanding the foregoing, FLEX Equity Options that
may in the future have the same terms as Non-FLEX Equity Options will
be permitted before the options are listed for trading as Non-FLEX
Equity Options. Once and if the identical option series are listed for
trading as Non-FLEX Equity Options: (i) all existing open positions
established under the FLEX trading procedures shall be fully fungible
with transactions in the respective Non-FLEX Equity Option series,\61\
and (ii) any further trading in the series would be as Non-FLEX Equity
Options subject to the non-FLEX trading procedures and rules,\62\ in
addition to any other rules that apply to Non-FLEX Equity Options.\63\
In the event a Non-FLEX Equity Option series is added intra-day, the
holder or writer of a FLEX Equity Option position established under the
FLEX trading procedures would be permitted to close such position under
the FLEX trading procedures against another closing only FLEX Equity
Option position for the balance of the trading day on which the series
is added.\64\ In the event the Non-FLEX Equity Option series is added
on a trading day after the position is established, the holder or
writer of a FLEX Equity Option position established under the FLEX
trading procedures would be permitted to close such position as a non-
FLEX transaction consistent with the requirements of Rule 5055(f)(1).
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\60\ See proposed Rule 5055(e)(1). Proposed Rule 5055(e)(1) is
based on NYSE Arca Rule 5.32-O, Commentary .01. The Exchanges notes
that its system enforces the requirement that a FLEX Equity Option
does not have the same exercise style (American or European), same
expiration date and same exercise price as a Non-FLEX Equity Option
that is already available for trading on the same underlying
security. Specifically, the system will reject an order in a FLEX
Equity Option if the order is received with the same exercise style
(American or European), same expiration date and same exercise price
as a Non-FLEX Equity Option that is already available for trading on
the same underlying security on the Exchange.
\61\ An open position resulting from a transaction on the
Exchange becomes fungible post-trade and is separate from the
execution occurring on the Exchange. For example, assume a
Participant buys one (1) American style AAPL call option expiring on
October 9, 2024, with a strike price of 150, which is a FLEX series
because there is no standard option listed with those same terms.
Now assume, while holding this position, a standard option with the
same terms is listed (American style AAPL call option expiring on
October 9, 2024, with a strike price of 150). After this standard
option is listed, the Participant purchases one (1) contract in this
non-FLEX option series. After this second transaction, the
Participant will have an open position of two (2) contracts in the
standard AAPL call expiring on October 9, 2024, with a 150 strike
price.
\62\ This includes all priority and trade-through requirements
on the Exchange (see, e.g., Rule 7130).
\63\ See proposed Rule 5055(f)(1). Proposed Rule 5055(f)(1) is
based on NYSE Arca Rule 5.32-O, Commentary .01. The Exchange notes
that FLEX Equity Options previously traded as part of a Complex FOO
Order or Multi-Leg FOO Order where the respective Non-FLEX Equity
Option series is later listed may not be traded as part of a Complex
FOO Order or Multi-leg FOO Order except as provided in proposed
Rules 5055(f)(2) and 7605(d)(3) and (4) once such Non-FLEX Equity
Option series has been listed on the Exchange. See proposed Rules
7605(d)(1), (3) and (4). For example, assume a Participant executes
a Complex FOO Order to buy strategy A + B where A and B are both
FLEX Equity Option series. Now assume that prior to the opening on
the next trading day, a Non-FLEX Equity Option series with the same
terms (underlying security, type, exercise price, exercise style,
and expiration date) as A has been listed on the Exchange. If the
Participant decided to close out their open position in strategy A +
B, it would need to be done as two separate orders for the component
legs of the original order: (i) selling B, a FLEX Equity Option, by
submitting a FOO Order, and (ii) selling the corresponding Non-FLEX
Equity Option series that has the same terms as A because A has
become fungible with the Non-FLEX Equity Option series with the
identical terms. Trading in A would be subject to the non-FLEX
trading procedures and rules. See proposed Rule 5055(f)(1).
\64\ See proposed Rule 5055(f)(2). Proposed Rule 5055(f)(2) is
based on NYSE Arca Rule 5.32-O, Commentary .01. The Exchange notes
that Complex FOO Orders and Multi-Leg FOO Orders, discussed below,
may be traded with one or more closing only component legs. The
Exchange notes that proposed Rule 5055(f) differs from NYSE Arca
Rule 5.32-O, Commentary .01 in that it includes proposed Rules
5055(f)(2) and (3), which detail the interaction between proposed
Rules 5055(e)(1) and (f)(1).
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The Exchange proposes Rule 5055(g) which states that the minimum
quoting and trading increment for FLEX Equity Option contracts traded
on BOX will be one cent ($0.01) for all series.\65\
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\65\ See proposed Rule 5055(g). Proposed Rule 5055(g) is based
on CBOE Rule 5.4(c)(4). The Exchange notes that minimum increments
in percentage terms have been omitted because they are not part of
this proposal.
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The Exchange proposes Rule 5055(h) which states that FLEX Equity
Options will be subject to the exercise by exception provisions of Rule
805 of the OCC, titled Expiration Exercise Procedure.\66\ Rule 805
provides provisions for the automatic exercise of certain options upon
expiration.
---------------------------------------------------------------------------
\66\ See proposed Rule 5055(h). Proposed Rule 5055(h) is based
on NYSE Arca Rule 5.32-O(f)(4).
---------------------------------------------------------------------------
The Exchange proposes Rule 5055(i) which details position limits
for FLEX Equity Options. Specifically, 5055(i)(1) states that FLEX
Equity Options will not be subject to position limits, except as long
as the options positions remain open, positions in FLEX Equity Options
that expire on a third Friday-of-the-month shall be aggregated with
[[Page 88442]]
positions in Non-FLEX Equity Options on the same underlying security
and shall be subject to the position and exercise limits set forth in
this proposed rule, and in the current BOX rules.\67\ Positions in FLEX
Equity Options shall not be taken into account when calculating
position limits for Non-FLEX Equity Options, other than for positions
in FLEX Equity Options that expire on a third Friday-of-the-month, as
discussed below.\68\
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\67\ See BOX Rules 3120 (Position Limits) and 3140 (Exercise
Limits). The Exchange notes that Complex FOO Orders and Multi-Leg
FOO Orders when executed result in position changes for the
individual component legs of the transaction based on the
composition of the Complex or Multi-Leg FOO Order.
\68\ See proposed Rule 5055(i). Proposed Rule 5055(i) is based
on NYSE Arca Rules 5.35-O(a)(iii) and (b). The Exchange notes that
Index Options and Binary Return Derivatives (``ByRDs'') are not
traded on BOX and therefore FLEX Index Options and FLEX ByRDs will
not be traded on BOX and are not included in proposed Rule 5055(i).
See also CBOE Rule 8.35 and NYSE American Rule 906G and PHLX Options
8, Section 34(e).
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The Exchange proposes that rather than be subject to FLEX position
limits, each Participant (other than a Market Maker) that maintains a
position on the same side of the market in excess of the standard
position limit for Non-FLEX Equity Options of the same class on behalf
of its own account or for the account of a customer shall report
information on the FLEX Equity Option position, positions in any
related instrument, the purpose or strategy for the position and the
collateral used by the account. This report shall be in the form and
manner prescribed by the Exchange. In addition, whenever the Exchange
determines that a higher margin requirement is necessary in light of
the risks associated with a FLEX Equity Option position in excess of
the standard position limit for Non-FLEX Equity Options of the same
class, the Exchange may, pursuant to its authority under Rule 10130(b),
consider imposing additional margin upon the account maintaining such
under-hedged position. Additionally, it should be noted that the
clearing firm carrying the account will be subject to capital charges
under Rule 15c3-1 under the Act \69\ to the extent of any margin
deficiency resulting from the higher margin requirement.\70\
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\69\ See 17 CFR 240.15c3-1.
\70\ See proposed Rule 5055(i)(1). Proposed Rule 5055(i)(1) is
based on NYSE Arca Rule 5.35-O(b).
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The Exchange proposes Rule 5055(j) which governs exercise limits
for FLEX Equity Options. Specifically, proposed Rule 5055(j) states
that exercise limits for FLEX Equity Options shall be equivalent to the
position limits established in this proposal; accordingly, there shall
be no exercise limits for FLEX Equity Options.\71\ FLEX Equity Options
will not be taken into account when calculating exercise limits for
Non-FLEX Equity Options, except that as long as the option positions
remain open, positions in FLEX Equity Options which expire on a third
Friday-of-the-month shall be aggregated with positions in Non-FLEX
Equity Options on the same underlying security and will be subject to
Non-FLEX Equity Option exercise limits as applicable.\72\
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\71\ See proposed Rule 5055(j). Proposed Rule 5055(j) is based
on NYSE Arca Rule 5.36-O. See also proposed Rule 5055(i).
\72\ See proposed Rule 5055(i).
---------------------------------------------------------------------------
The Exchange proposes Rule 5055(k) which details the Letter of
Guarantee required for Market Makers to trade FLEX Equity Options.
Specifically, proposed Rule 5055(k) states that no Market Maker shall
effect any transaction in FLEX Equity Options unless a Letter of
Guarantee has been issued by a clearing member organization and filed
with the Exchange pursuant to Rule 8070 specifically accepting
financial responsibility for all FLEX Equity Option transactions made
by such Market Maker and such letter has not been revoked under Rule
8070(c).\73\ A Letter of Guarantee will be required for a Market Maker
to be qualified to trade FLEX Equity Options.
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\73\ See proposed Rule 5055(k). Proposed Rule 5055(k) is based
on NYSE Arca Rule 5.41-O(a). The Exchange notes that, while NYSE
Arca allows an existing Letter of Guarantee to be amended
specifically to include FLEX transactions upon approval by the OCC,
the Exchange's proposal does not include such a provision because
the Exchange will require a separate Letter of Guarantee. The
Exchange notes that a Market Maker's Letter of Guarantee will remain
effective until a revocation is received by the Exchange.
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Similarly, the Exchange proposes Rule 5055(l), which provides that
no Floor Broker \74\ shall effect any transaction in FLEX Equity
Options unless a Letter of Authorization has been issued by a clearing
member organization and filed with the Exchange specifically accepting
responsibility for the clearance of FLEX Equity Option transactions of
the Floor Broker, and that such letter will remain in effect until a
written revocation is received by the Exchange.\75\
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\74\ A Floor Broker is an individual who is registered with the
Exchange for the purpose, while on the Trading Floor, of accepting
and handling options orders. A Floor Broker must be registered as an
Options Participant prior to registering as a Floor Broker. See BOX
Rule 7540.
\75\ See proposed Rule 5055(l). Proposed Rule 5055(l) is based
on NYSE Arca Rule 5.41-O(b). The Exchange notes that, while NYSE
Arca allows an existing Letter of Authorization to be amended
specifically to include FLEX transactions upon approval by the OCC,
the Exchange's proposal does not include such a provision because
the Exchange will require a separate Letter of Authorization. The
Exchange notes that a Floor Broker's Letter of Authorization will
remain effective until a written revocation is received by the
Exchange.
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FLEX Open Outcry (``FOO'') Orders
The Exchange proposes to introduce a new order type to facilitate
FLEX Equity Option transactions on the BOX Trading Floor. Specifically,
the Exchange proposes to adopt a FOO Order type and to model it after a
current order type on the Trading Floor--QOO Orders.\76\ Trading FLEX
options on an exchange floor in a similar manner as non-FLEX options is
consistent with how FLEX orders are traded on another exchange.\77\ FOO
Orders must consist of options with terms as defined in proposed Rule
5055. Further, FOO Orders are limited solely to FLEX Equity
Options.\78\ FOO Orders are limited solely to the BOX Trading Floor and
may be entered only by Floor Brokers.\79\ Floor Brokers must also be
registered under Rule 7550. Prior to the announcement of such FOO
Orders in the trading crowd, Floor Brokers must record all FOO Orders
pursuant to Rule 7580(e)(1).\80\ FOO Orders may be traded by FLEX
Market Makers, which must be registered under Rule 8000 and must be
Floor Market Makers in good standing under Rule 8500.\81\ FLEX Market
Makers will be subject to Rule 8510, including provisions for the
course and conduct of dealings, class assignments, and option priority
and parity, unless otherwise specified in proposed Rule 7605. The
Exchange shall qualify at least three
[[Page 88443]]
FLEX Market Makers in accordance with a FLEX-specific qualification
process prescribed by the Exchange to perform as Market Makers in FLEX
Equity Options on the Trading Floor.\82\ The Exchange notes that each
FLEX Market Maker will be qualified for all classes of FLEX Equity
Options. Additionally, a Floor Broker shall ascertain that at least one
FLEX Market Maker is present in the Crowd Area prior to announcing an
order for execution.\83\ The Exchange notes that the Commission
provided in its order approving the BOX Trading Floor that this
requirement, among others, is designed to increase the opportunities
for another Floor Participant to compete to interact with the orders on
the Trading Floor.\84\ For FLEX Equity Options, this means that at
least one of the FLEX Market Makers, out of the at least three required
to be qualified by the Exchange, is present in the Crowd Area when the
FOO Order is announced.\85\
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\76\ See proposed Rule 7605. See also Securities Exchange Act
Release No. 81292 (August 2, 2017), 82 FR 37144 (August 8, 2017)
(SR-BOX-2016-48) (Order Approving a Proposed Rule Change, as
Modified by Amendment Nos. 1 and 2, To Adopt Rules for an Open-
Outcry Trading Floor) (finding that the proposed rule change was
consistent with the requirements of the Act and the rules and
regulations thereunder applicable to a national securities
exchange).
\77\ CBOE allows a FLEX Order to be represented and executed in
the same manner as a non-FLEX Order. See CBOE Rule 5.72(d). The
Exchange notes that CBOE Rule 5.72(d) also contains provisions that
limit the priority rules applicable to FLEX Orders. Id. at
5.72(d)(2) and (3).
\78\ See proposed Rule 7605(a).
\79\ See proposed Rule 7605(b). Proposed Rule 7605(b) is based
on BOX Rules 7600(a)(2) and (3) and NYSE Arca Rule 5.41-O(b).
Additionally, the Exchange is proposing to add a statement
clarifying that Floor Brokers must record all FOO Orders pursuant to
Rule 7580(e)(1) prior to the announcement of such FOO Orders, which
is the requirement for all orders on the Trading Floor.
\80\ BOX Rule 7580(e)(1) outlines the requirements for a Floor
Broker to record and systematize any orders prior to announcement of
such order in the trading crowd.
\81\ See proposed Rule 7605(c). Proposed rule 7605(c) is based
on NYSE Arca Rules 5.37-O(a) and 5.41-O(a). The Exchange notes that,
while NYSE Arca requires at least three FLEX Qualified Market Makers
per class, the Exchange's proposal does not qualify FLEX Market
Makers per class.
\82\ Id. FLEX Market Maker qualification will include an
examination requiring knowledge of FLEX Equity Options, including
FLEX Equity Option terms, FLEX Market Maker qualification
requirements, FLEX Market Maker quoting obligations, and FOO Order
trading procedures.
\83\ See proposed Rule 7605(e)(3). Proposed Rule 7605(e)(3) is
similar to BOX Rule 7580(a), which applies to QOO Orders on the
Trading Floor and requires a Floor Broker to ascertain that at least
one Floor Market Maker is present in the Crowd Area prior to
announcing an order for execution.
\84\ See Securities Exchange Act Release No. 81292 (August 2,
2017), 82 FR 37144 (August 8, 2017) (SR-BOX-2016-48) (Order
Approving a Proposed Rule Change, as Modified by Amendment Nos. 1
and 2, To Adopt Rules for an Open-Outcry Trading Floor).
\85\ The Exchange notes that the requirement to have at least
three qualified FLEX Market Makers is a baseline that must be met in
order for any FLEX Equity Option to be traded on the Trading Floor.
The requirement that at least one FLEX Market Maker be present when
an FOO Order is announced is an additional order-by-order
requirement that promotes order competition and is the same
requirement for QOO Orders currently.
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On the BOX Trading Floor today, a Floor Broker may bring an
unmatched order to the Trading Floor in order to seek liquidity. The
Floor Broker may announce the unmatched order (i.e., the initiating
side of a QOO Order) to the trading crowd in an attempt to source the
contra-side. After finding sufficient quantity to match the initiating
side pursuant to Rules 7580(e)(2) and 7600(b), the Floor Broker is then
able to submit a two-sided QOO Order to the BOG \86\ as required.\87\
Floor Brokers may also enter single-sided orders into the BOX Book
using BOX's electronic interface. Specifically, a Floor Broker may
receive a matched or unmatched order via a telephone call on the
Trading Floor \88\ or may have the matched or unmatched order sent
electronically to the Floor Broker's order entry mechanism on the
Trading Floor prior to submitting the QOO Order to the BOG. Similar to
how QOO Orders are introduced on the Trading Floor today, FOO Orders
may be brought to the floor as matched or unmatched orders with a Floor
Broker receiving the matched or unmatched order via the same methods
that Floor Brokers receive them currently on the Trading Floor.\89\ The
Exchange again notes that trading FLEX options on an exchange floor in
a similar manner as non-FLEX options is consistent with how FLEX orders
are traded on another exchange.\90\
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\86\ The BOX Order Gateway (``BOG'') is a component of the
Trading Host which enables Floor Brokers and/or their employees to
enter transactions on the Trading Floor. See BOX Rule 100(b)(2).
\87\ See BOX IM-7600-4.
\88\ When a Floor Broker receives an order, matched or
unmatched, via telephone, the Floor Broker must enter the order
electronically into the Floor Broker's order entry mechanism.
\89\ See, e.g., Securities Exchange Act Release No. 80720 (May
18, 2017), 82 FR 23657, 23666 (May 23, 2017) (SR-BOX-2016-48)
(Notice of Filing of Amendment No. 2 to a Proposed Rule Change to
Adopt Rules for an Open-Outcry Trading Floor) (``[A] Floor Broker
may receive a matched or unmatched order via a telephone call on the
Trading Floor or may have the matched or unmatched order sent
electronically to the Floor Broker's order entry mechanism on the
Trading Floor . . . .'').
\90\ CBOE allows a FLEX Order to be represented and executed in
a similar manner as a non-FLEX Order. See CBOE Rule 5.72(d). The
Exchange notes that CBOE Rule 5.72(d) also contains provisions that
limit the priority rules applicable to FLEX Orders. Id. at
5.72(d)(2) and (3).
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Next, pursuant to proposed Rule 7605(d), FOO Orders may be Complex
Orders (``Complex FOO Order'') or Multi-Leg Orders (``Multi-Leg FOO
Order'') as defined in Rules 7240(a)(7) and (10) with no more than the
applicable number of legs, as determined by the Exchange and
communicated to Participants,\91\ including tied hedge orders as
defined in IM-7600-2.\92\ However, the priority provisions of Rules
7240(b)(2) and (3) do not apply to Complex FOO Orders or Multi-Leg FOO
Orders because there will be no Complex Order Book for such orders, nor
will there be a BOX Book for the individual FLEX Equity Option
components of the Complex FOO Orders or Multi-Leg FOO Orders.\93\ Each
option leg of a Complex FOO Order or Multi-Leg FOO Order must be for a
FLEX Equity Option series with the same underlying security and must
have the same exercise style (American or European).\94\ If a Non-FLEX
Equity Option series is added intra-day for a component leg(s) of a
Complex FOO Order or Multi-Leg FOO Order, the holder or writer of a
position in the component leg(s) resulting from such Complex FOO Order
or Multi-Leg FOO Order would be permitted to close its position(s)
under the FLEX trading procedures against another closing only FLEX
Equity Option position for the balance of the trading day on which the
Non-FLEX Equity Option series is added. If a Non-FLEX Equity Option
series is added for a component leg(s) of a Complex FOO Order or Multi-
Leg FOO Order on a trading day after the position is established, the
holder or writer of a position in the component leg(s) resulting from
such Complex FOO Order or Multi-Leg FOO Order would be required to
execute separate FLEX Equity Option and Non-FLEX Equity Option
transactions to close its position(s), such that FLEX Equity Option
component leg(s) would trade under the FLEX trading procedures and Non-
FLEX Equity Option component leg(s) would trade subject to the non-FLEX
trading procedures and rules.\95\
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\91\ The Exchange notes that this process is the same as current
Rule 7600(a)(4) for QOO Orders on the BOX Trading Floor. See BOX
Informational Circular 2022-18 (June 7, 2022), <a href="https://boxoptions.com/assets/IC-2022-18-Upcoming-Enhancements-to-Complex-Orders.pdf">https://boxoptions.com/assets/IC-2022-18-Upcoming-Enhancements-to-Complex-Orders.pdf</a> (providing that the maximum number of legs for Complex
Orders is currently 16). A separate notice will be issued for
Complex FOO Orders and Multi-Leg FOO Orders.
\92\ The Exchange notes that tied hedge orders may not be
smaller than 500 contracts per order. See BOX IM-7600-2(a).
\93\ The Exchange notes that, as with a simple FOO Order, the
priority and allocation rules applicable to Complex FOO Orders and
Multi-Leg FOO Orders are in proposed Rules 7605(i) (allocation of
the initiating side of a FOO Order against the contra-side of the
FOO Order and interest from the Trading Crowd) and (k) (Floor Broker
guarantee when crossing orders) and current Rule 7610 (priority
among Floor Participants in the Trading Crowd).
\94\ See proposed Rule 7605(d). Proposed Rule 7605(d) is based
on CBOE Rules 1.1 (definition of ``Complex Order'') and 5.70(b) and
BOX Rule 7600(a)(4). The Exchange does not reference FLEX Index
Options or related attributes because Index Options are not traded
on BOX and FLEX Index Options are not proposed herein.
\95\ See Proposed Rules 7605(d)(3) and (4). The Exchange is
proposing Rules 7605(d)(3) and (4) to clarify the treatment of
Complex FOO Orders and Multi-Leg FOO Orders when a Non-FLEX Equity
Option is subsequently listed for a component leg.
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Announcement, Representation, and Execution of a FOO Order
The Exchange proposes Rule 7605(e) which details announcement and
representation of FOO Orders on the BOX Trading Floor that is
consistent with the current Trading Floor requirements.\96\
Specifically, the
[[Page 88444]]
Exchange proposes that all FOO Orders must be represented to the
trading crowd as provided in Rule 7580(e)(2) \97\ prior to submitting
the agency FOO Order as part of a two-sided order to the Trading Host.
The Exchange notes that Floor Brokers may bring unmatched orders (i.e.,
the initiating side of a FOO Order) to the Trading Floor in order to
seek a contra-side. Once a contra-side is sourced, the Floor Broker
shall submit the two-sided FOO Order to the BOG.\98\ When a Floor
Broker submits a FOO Order for execution, the order will be executed in
accordance with the proposed rules. A FOO Order on the Exchange is not
deemed executed until it is processed by the Trading Host. All
transactions occurring from the Trading Floor must be processed by the
Trading Host. Floor Brokers are responsible for handling all orders in
accordance with Exchange priority rules.
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\96\ Proposed Rule 7605(e) is based on BOX Rules 7600(a),
(a)(1), (b) and (c). The Exchange notes that the QOO Order
provisions related to market conditions, the NBBO, the BOX Book,
book sweep, the Complex Order Book, auctions, and away routing have
been omitted because there will be no NBBO, no BOX Book, no Complex
Order Book, no electronic auctions, and no book sweep for FOO
Orders. See BOX Rules 7600(c)-(e) and (h). A book sweep is the
number of contracts, if any, of the initiating side of a QOO Order
that the Floor Broker is willing to relinquish to orders and quotes
on the BOX Book that have priority pursuant to Rules 7600(d)(1) and
(2). See BOX Rule 7600(h). Book sweeps will not apply to FOO Orders.
As provided in proposed Rules 5055(e)(1) and (f)(1), FOO Orders must
have different terms from orders on the BOX Book and, therefore,
could not execute against interest on the BOX Book. For the same
reason, the Complex Order priority provisions in Rules 7240(b)(2)
and (3), which address the priority of Complex Orders and interest
on the BOX Book, do not apply to Complex FOO Orders or Multi-Leg FOO
Orders. See proposed Rule 7605(d). The priority and allocation of
FOO Orders will be determined by proposed Rules 7605(i) and (k) and
current Rule 7610. See supra note 94. The Exchange also notes that
proposed Rule 7605(e) requires that Floor Brokers announcing a FOO
Order give Floor Participants a reasonable amount of time to
respond, as provided in Rule 100(b)(5). Proposed Rule 7605(e)
further provides that the Exchange shall establish, and announce via
Regulatory Notice, a minimum period of time that qualifies as a
reasonable amount of time that a Floor Broker must allow Floor
Participants to respond, which must be between three seconds and
five minutes. This differs from current Rule 7600(c), which simply
states that Floor Brokers must allow adequate time for Floor
Participants to participate in the transaction as provided in Rule
100(b)(5).
\97\ BOX Rule 7580(e)(2) provides that ``A Floor Broker must
announce an agency order that he is representing to the trading
crowd before submitting the order to the BOG for execution. This
announcement must take place whether the Floor Broker is
representing a single-sided order and soliciting contra-side
interest, or the Floor Broker has sufficient interest to match
against the agency order already. If a Floor Broker is holding two
agency orders, he will choose which order is the initiating side.''
\98\ See proposed IM-7605-1. Proposed IM-7605-1 is based on IM-
7600-4.
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There will be an initiating side and a contra-side of a FOO Order.
The initiating side is the order which must be filled in its entirety.
The contra-side must guarantee the full size of the initiating side of
the FOO Order and can be composed of multiple firms. When the Floor
Broker is soliciting interest from the trading crowd when the
initiating side was announced or to the extent the trading crowd offers
a better price, the contra-side will be the solicited interest from the
trading crowd.\99\ If the Floor Broker had sufficient interest to match
against the initiating side when the initiating side was announced,
such Floor Broker interest will be the contra-side to the initiating
side. If Floor Participants \100\ responded with interest to the
initiating side where the Floor Broker provided sufficient interest to
match against the initiating side, the Floor Broker will allocate the
initiating side of the FOO Order pursuant to proposed Rule
7605(i).\101\ The Exchange notes that this negotiation and agreement
that occurs in the trading crowd does not result in a final trade, but
rather a ``meeting of the minds'' that is then submitted through the
BOG for execution. Consistent with current Trading Floor operations,
all FOO Orders must be announced to the trading crowd, as provided in
Rule 7580(e)(2), prior to the FOO Order being submitted to the
BOG.\102\ An Options Exchange Official will certify that the Floor
Broker adequately announced the FOO Order to the trading crowd.
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\99\ The Exchange notes that priority of bids and offers from
Floor Participants in the trading crowd is determined by Rule 7610.
\100\ The term ``Floor Participant'' means Floor Brokers as
defined in Rule 7540 and Floor Market Makers as defined in Rule
8510(b). See BOX Rule 100(a)(26).
\101\ See proposed Rule 7605(e)(1). Proposed Rule 7605(e)(1) is
based on BOX Rule 7600(a)(1). The Exchange notes that provisions
related to market conditions, the NBBO, the BOX Book, book sweep,
and the Complex Order Book have been omitted because there will be
no NBBO, no BOX Book, no Complex Order Book, and no book sweep for
FOO Orders. See supra note 97. The priority and allocation of FOO
Orders will be determined by proposed Rules 7605(i) and (k) and
current Rule 7610. See supra note 94.
\102\ See proposed Rule 7605(e)(2). Proposed Rule 7605(e)(2) is
based on BOX Rules 7600(b) and (c). The Exchange notes that
provisions related to market conditions, the NBBO, the BOX Book,
book sweep, and the Complex Order Book have been omitted because
there will be no NBBO, no BOX Book, no Complex Order Book, and no
book sweep for FOO Orders. See supra note 97. The priority and
allocation of FOO Orders will be determined by proposed Rules
7605(i) and (k) and current Rule 7610. See supra note 94.
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The FOO Order is not deemed executed until it is processed by the
Trading Host. Once the Floor Broker submits the FOO Order to the BOG
there will be no opportunity for the submitting Floor Broker,\103\ or
anyone else, to alter the terms of the FOO Order. After announcing the
FOO Order to the trading crowd, the Floor Broker must submit the FOO
Order to the BOG for processing by the Trading Host without undue
delay, provided that the executing Floor Broker must give Floor
Participants a reasonable amount of time to respond, as provided in
Rule 100(b)(5). Additionally, the Exchange shall establish, and
announce via Regulatory notice, a minimum period of time (which amount
of time must be between three seconds and five minutes) that qualifies
as a reasonable amount of time for responses under proposed Rule
7605(e)(2). Such threshold will constitute the minimum possible time
that a Floor Broker must give to the trading crowd to respond to a FOO
Order; however, based on the characteristics and circumstances of each
specific FOO Order, a reasonable amount of time, as provided in Rule
100(b)(5), may require a response interval longer than the minimum
threshold. An Options Exchange Official may not waive the minimum
threshold established by the Exchange.
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\103\ The Exchange notes that trades may be allocated as
provided in proposed Rule 7605(j). The Exchange notes further that
the Exchange may nullify a transaction or adjust the execution price
of a transaction in accordance with Rule 7170 (Nullification and
Adjustment of Options Transactions including Obvious Errors). See
also BOX Rule 7640(b) (relating to trading disputes and adjustment
or nullification of transactions on the Trading Floor).
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The Exchange notes that the proposed floor interaction practice is
consistent with the process in BOX Rule 7600 for QOO Orders on the BOX
Trading Floor where the main differences are that FOO Orders will not
be eligible for the BOX Book or the Complex Order Book, there is no
NBBO, and that Floor Brokers must allow Floor Participants a minimum
period of time (which amount of time must be between three seconds and
five minutes) that qualifies as a reasonable amount of time that a
Floor Broker must allow Floor Participants to respond to FOO Orders.
Consistent with QOO Orders, a FOO Order is not deemed executed until it
is processed by the Trading Host.\104\ The Exchange notes that a
reasonable amount of time for Floor Participants to respond to a FOO
Order, the same as a QOO Order, will be interpreted on a case-by-case
basis by an Options Exchange Official based on current market
conditions and trading activity on the Trading Floor, provided, for FOO
Orders, the minimum threshold discussed above must be satisfied.\105\
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\104\ See proposed Rule 7605(e).
\105\ See BOX Rule 100(b)(5). The Exchange notes that an Options
Exchange Official takes into account various factors including
complexity of the trade, general prevailing market conditions, and
activity on the Trading Floor at the time the order is announced.
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[[Page 88445]]
The Exchange proposes Rule 7605(f) which states that the minimum
size for FLEX Equity Options transactions and quotations shall be one
(1) contract.\106\ The Exchange also proposes Rule 7605(g) which states
that there are no maximum differences between the bid and the offer for
FLEX Equity Option quotes.\107\
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\106\ See proposed Rule 7605(f). Proposed Rule 7605(f) is based
on NYSE Arca Rule 5.32-O(b)(7).
\107\ See proposed Rule 7605(g). Proposed Rule 7605(g) is based
on NYSE Arca Rule 5.37-O(d). The Exchange notes that it has omitted
the first part of NYSE Arca Rule 5.37-O(d), which provides FLEX
Appointed Market Makers need not provide continuous FLEX Quotes and
the Exchange has included the second part of NYSE Arca Rule 5.37-
O(d), which provides FLEX Appointed Market Makers need not quote a
minimum bid-offer spread in FLEX Equity Options. The Exchange has
omitted the first part of NYSE Arca Rule 5.37-O(d) because, pursuant
to proposed Rule 7605(h), the Exchange is instead proposing that
FLEX Market Makers be obligated to quote FLEX Equity Options in
response to any request for quote by a Floor Broker or Options
Exchange Official and must provide a two-sided market, which the
Exchange believes will promote a robust and competitive market for
FOO Orders on the Trading Floor and facilitate a fair and orderly
market for the trading of FLEX Equity Options on the Exchange. The
Exchange further notes that on NYSE Arca, FLEX Appointed Market
Makers are appointed in classes of FLEX Index Options. FLEX
Qualified Market Makers are appointed in FLEX Equity Options on NYSE
Arca. Further, FLEX Appointed Market Makers have an obligation to
enter a quote in response to a request for quote in a FLEX Index
Option while FLEX Qualified Market Makers do not have a similar
obligation for FLEX Equity Options. The Exchange believes that this
distinction is the reason why NYSE Arca Rule 5.37-O(d) only
specifically exempts FLEX Appointed Market Makers from quoting with
a minimum bid-offer spread since they are the only FLEX market
makers with the requirement to respond to a request for quote.
Similarly, the Exchange is proposing that there be no maximum
differences between the bid and offer for FLEX Equity Option quotes
that, pursuant to proposed Rule 7605(h), a FLEX Market Maker is
required to provide in response to a request for quote by a Floor
Broker or Options Exchange Official.
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Pursuant to proposed Rule 7605(h), FLEX Market Makers have an
obligation to quote a FLEX Equity Option in response to any request for
quote by a Floor Broker or Options Exchange Official and must provide a
two-sided market.\108\
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\108\ See proposed Rule 7605(h). Proposed Rule 7605(h) is based
on BOX Rule 8510(c)(2). The Exchange notes that proposed Rule
7605(h) does not include the provisions of current Rule 8510(c)(2)
related to quote spread parameter requirements and quotation sizes,
which requirements are provided separately in proposed Rules 7605(f)
and (g).
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Allocation of FOO Orders
Next, the Exchange proposes Rule 7605(i) which details the
allocation process for FOO Orders. Specifically, the FOO Order will be
matched by the Trading Host against the contra-side of the FOO Order,
regardless of whether the contra-side order submitted by the Floor
Broker is ultimately entitled to receive an allocation pursuant to
proposed Rules 7605(i)(1)-(2). If no Floor Participant, other than the
executing Floor Broker, is entitled to an allocation, then no further
steps are necessary. If however, Floor Participants are entitled to an
allocation, the remaining balance of the initiating side of the FOO
Order will be allocated as described below.\109\
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\109\ See proposed Rule 7605(i). Proposed Rule 7605(i) is based
on BOX Rule 7600(d)(3). The Exchange notes that provisions of BOX
Rules 7600(d)(1)-(2) were omitted from proposed Rule 7605(i) because
those provisions are related to the BOX Book, which is inapplicable
to FOO Orders.
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First, if the FOO Order satisfies the provisions of proposed Rule
7605(k), discussed below, the executing Floor Broker is entitled to 40%
of the remaining quantity of the initiating side of the FOO Order.\110\
Next, FLEX Market Makers that respond with interest when the Floor
Broker announces the FOO Order to the trading crowd, as outlined in
Rule 7580(e)(2) and proposed Rule 7605(e), are allocated.\111\ When
multiple Floor Participants respond with interest, priority in the
Trading Crowd is established pursuant to Rule 7610.\112\ Last, if
interest remains after Floor Participants that responded with interest
receive their allocation, the remaining quantity of the initiating side
of the FOO Order will be allocated to the executing Floor Broker.\113\
The Exchange again notes that similar allocation and priority
provisions are already established and apply to responses for QOO
Orders on the BOX Trading Floor.\114\
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\110\ See proposed Rule 7605(i)(1). The Exchange notes that
proposed Rule 7605(i)(1) is based on BOX Rule 7600(d)(3)(i).
\111\ See proposed Rule 7605(i)(2). The Exchange notes that
proposed Rule 7605(i)(2) is based on BOX Rule 7600(d)(3)(ii).
\112\ Id. Priority under Rule 7610 is determined first by price
and then by sequence. Specifically, on the Trading Floor, the
highest (lowest) bid (offer) shall have priority; when two or more
bids (offers) represent the highest (lowest) price, priority shall
be afforded to such bids (offers) in the sequence in which they were
made. If, however, the bids (offers) of two or more Floor
Participants are made simultaneously, or if it is impossible to
determine clearly the order of time in which they are made, such
bids (offers) will be deemed to be on parity and priority will be
afforded to them, insofar as practicable, on an equal basis. The
Floor Broker announcing the order is responsible for determining the
sequence in which bids or offers are vocalized on the Trading Floor
from Floor Participants in response to the Floor Broker's bid,
offer, or call for a market. Rule 7610 also provides priority
provisions where a Floor Broker requests a market in order to fill a
large order and the Floor Participants provide a collective
response. See BOX Rule 7610.
\113\ See proposed Rule 7605(i)(3). The Exchange notes that
proposed Rule 7605(i)(3) is based on BOX Rule 7600(d)(3)(iii).
\114\ The Exchange notes that FOO Order allocation and priority
differs from QOO Order provisions related to the priority of orders
on the BOX Book. See BOX Rules 7600(c)-(e) and (h), and 7600(f)(1)
and (3). See also supra note 97. In particular, with respect to QOO
Order executions BOX Rules 7600(d)(1) and (2) provide priority for
better-priced interest on the BOX Book and for Public Customer
Orders on the BOX Book at the same price or non-Public Customer
Orders ranked ahead of such same-priced Public Customer Orders. As
the Exchange noted when it proposed the QOO order type, these
priority provisions were designed to provide increased opportunities
for orders on the BOX Book to interact with trades on the Trading
Floor and to maintain consistency with options trade-through and BOX
Book priority rules. See Securities Exchange Act Release No. 80720
(May 18, 2017), 82 FR 23657, 23681-82 (May 23, 2017) (SR-BOX-2016-
48) (Notice of Filing of Amendment No. 2 to a Proposed Rule Change
to Adopt Rules for an Open-Outcry Trading Floor). These priority
provisions are not necessary for FOO Orders because there will be no
FLEX Equity Option interest on the BOX Book. The Exchange's existing
rules for determining priority of bids and offers from Floor
Participants in the trading crowd are based on price-time priority
without regard to market participant type. See BOX Rule 7610. This
is consistent with floor priority rules for FLEX options on other
options exchanges. See, e.g., PHLX Options 8, Section 34(c)(4), NYSE
American Rule 904G(e).
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The Exchange proposes that after execution of the FOO Order, the
executing Floor Broker is responsible for providing the correct
allocations of the initiating side of the FOO Order to an Options
Exchange Official or his or her designee, if necessary, who will
properly record the order in the Exchange's system.\115\ The executing
Floor Broker must provide the correct allocations to an Options
Exchange Official or his or her designee, in writing, without
unreasonable delay.\116\ The Exchange notes that the same procedure for
recording trade allocations applies to QOO Orders on the BOX Trading
Floor today.
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\115\ See proposed Rule 7605(j). Proposed Rule 7605(j) is based
on BOX Rule 7600(d)(4).
\116\ Id.
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Similar to the allocation process in place for QOO Orders, the
Exchange proposes to allow for a participation guarantee for certain
FOO Orders executed by Floor Brokers on the Trading Floor.
Specifically, when a Floor Broker holds an option order of the eligible
order size or greater, the Floor Broker is entitled to cross 40% of the
remaining contracts of the original order, after all bids or offers at
better prices are filled, with other orders that the Floor Broker is
holding.\117\ The Exchange may determine, on an option by option basis,
the eligible size for an order on the Trading Floor to be subject to
this guarantee; however, the eligible
[[Page 88446]]
order size may not be less than 50 contracts. In determining whether an
order satisfies the eligible order size requirement, any Complex FOO
Order or Multi-Leg FOO Order must contain one leg alone which is for
the eligible order size or greater.\118\ Nothing in the proposed rule
is intended to prohibit a Floor Broker from trading more than their
percentage entitlement if the other Participants of the trading crowd
do not choose to trade the remaining portion of the order.\119\ The
Exchange notes that the proposed guarantee process is similar to the
guarantee process currently in place for QOO Orders on the BOX Trading
Floor.\120\
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\117\ See proposed Rules 7605(i), 7605(k)(1) and (3). Proposed
Rules 7605(k)(1) and (3) are based on BOX Rules 7600(f)(1) and (3).
The Exchange notes that the proposed FOO Order guarantee differs
from the QOO Order guarantee because BOX Rule 7600(f)(3) contains
provisions that pertain to the BOX Book, which is inapplicable to
FOO Orders.
\118\ See proposed Rule 7605(k)(2). Proposed Rule 7605(k)(2) is
based on BOX Rule 7600(f)(2).
\119\ See proposed Rule 7605(k)(4). Proposed Rule 7605(k)(4) is
based on BOX Rule 7600(f)(4).
\120\ The Exchange notes that the proposed FOO Order guarantee
differs from the QOO Order guarantee because BOX Rule 7600(f)(3)
contains provisions that pertain to the BOX Book, which is
inapplicable to FOO Orders.
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The below examples are designed to illustrate the allocation of the
initiating side of a FOO Order.
Example 1--Assume a Floor Broker wishes to execute a FOO Order for
500 contracts. When he announces the order, FLEX Market Maker 1 and
FLEX Market Maker 2 both respond to the FOO Order for 250 contracts
each at the same price as the Floor Broker's contra-side. FLEX Market
Maker 1 responded first so he will have time priority over FLEX Market
Maker 2. Since the FOO Order is for at least 50 contracts, the Floor
Broker is entitled to match at least 40% of the initiating side with
the Floor Broker's contra-side.
Result: The initiating side of the FOO Order will match against the
Floor Broker's contra-side order for the full 500 contracts. After the
execution of the FOO Order, because other Floor Participants are
entitled to an allocation, the executing Floor Broker is then
responsible for providing an Options Exchange Official or his or her
designee the following allocation of the initiating side of the FOO
Order:
1. 200 contracts (40%, or 500 * .40) for the contra-side order
submitted by the Floor Broker.
2. 250 contracts for FLEX Market Maker 1 with time priority.
3. Remaining 50 contracts to FLEX Market Maker 2.
Example 2--Assume a Floor Broker wishes to execute a FOO Order for
40 contracts. When he announces the order, FLEX Market Maker 1 and FLEX
Market Maker 2 both respond to the FOO Order for 20 contracts each at
the same price as the Floor Broker's contra-side. FLEX Market Maker 1
responded first so he will have time priority over FLEX Market Maker 2.
Since the FOO Order is for less than 50 contracts, the Floor Broker is
not entitled to a 40% guarantee.
Result: The initiating side FOO Order will match against the Floor
Broker's contra-side for the full 40 contracts. After execution of the
FOO Order, because other Floor Participants are entitled to an
allocation, the executing Floor Broker is then responsible for
providing an Options Exchange Official or his or her designee with the
following allocation of the initiating side of the FOO Order:
1. 20 contracts for FLEX Market Maker 1 with time priority.
2. 20 contracts for FLEX Market Maker 2.
3. The initiating side is filled and the executing Floor Broker
will receive no allocation.
Example 3--Assume a Floor Broker wishes to execute a FOO Order for
40 contracts in ABC at 1.05 (initiating side is to sell). When he
announces the order, FLEX Market Maker 1 and FLEX Market Maker 2 both
respond to the FOO Order for 20 contracts each. FLEX Market Maker 1
responded first at an improved price to buy 20 at 1.06 so he will have
price priority over FLEX Market Maker 2.\121\ Since the FOO Order is
for less than 50 contracts, the Floor Broker is not entitled to a 40%
guarantee.
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\121\ Pursuant to Rule 7610, FLEX Marker Maker 1 would have
priority over FLEX Market Maker 2 even if FLEX Market Maker 2
responded first because FLEX Market Maker 1 responded at a better
price.
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Result: The Floor Broker will submit two FOO Orders for 20
contracts each: a FOO Order at 1.06 for 20 contracts and a FOO Order at
1.05 for 20 contracts. The initiating side of each FOO Order will match
against the Floor Broker's contra-side orders for the full 20
contracts. After execution of the FOO Orders, the executing Floor
Broker is then responsible for providing an Options Exchange Official
or his or her designee with the following allocation of the initiating
side of the FOO Orders:
1. FOO Order at 1.06--20 contracts for FLEX Market Maker 1.
2. FOO Order at 1.05--20 contracts for FLEX Market Maker 2.
3. The executing Floor Broker will receive no allocation of either
FOO Order.
Additional Provisions
The Exchange also proposes that all orders entrusted to a Floor
Broker will be considered Not Held Orders, unless otherwise specified
by a Floor Broker's client. A Not Held Order is an order marked ``not
held'', ``take time'', or which bears any qualifying notation giving
discretion as to the price or time at which such order is to be
executed.\122\
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\122\ See proposed Rule 7605(l). Proposed Rule 7605(l) is based
on BOX Rule 7600(g). See also NYSE Arca Rules 5.34-O and 6.62-O(f).
The Exchange notes that NYSE Arca Rule 5.34-O provides a Floor
Broker with additional discretion with respect to the number of FLEX
contracts to be purchased or sold. The Exchange is not proposing the
same discretion for FOO Orders so that the requirements for Floor
Brokers handling FOO Orders are the same as handling QOO Orders
currently on the Trading Floor.
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The Exchange further proposes IM-7605-1 which allows Floor Brokers
to bring unmatched orders (i.e., the initiating side of a FOO Order) to
the Trading Floor in order to seek contra-side interest. Once a contra-
side is sourced pursuant to current Rule 7580(e)(2) and proposed Rule
7605(e), the Floor Broker shall submit the two-sided FOO Order to the
BOG.\123\ The Exchange notes that this provision is identical to IM-
7600-4, with the exception of internal rule references, which applies
to QOO Orders on the BOX Trading Floor.
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\123\ See proposed IM-7605-1. Proposed IM-7605-1 is based on IM-
7600-4.
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The Exchange proposes IM-7605-2 to guide conduct on the floor.\124\
In particular, the Floor Broker must disclose all securities that are
components of the Public Customer order which is subject to crossing
before requesting bids and offers for the execution of all components
of the order. Once the trading crowd has provided a quote, it will
remain in effect until a reasonable amount of time has passed, there is
a significant change in the price of the underlying security, or the
market given in response to the request has been improved. In the case
of a dispute, the term ``significant change'' will be interpreted on a
case-by-case basis by an Options Exchange Official based upon the
extent of recent trading in the option and in the underlying security,
and any other relevant factors.\125\ The Participants of the trading
crowd who established the market will have priority over all other
orders that were not announced in the trading crowd at the time that
the market was established and will maintain priority over such orders
except for orders that improve upon the market. When a Floor Broker
announces an order to the trading crowd pursuant
[[Page 88447]]
to Rule 7580(e)(2), it shall be the responsibility of the Floor
Participant who established the market to alert the Floor Broker of the
fact that the Floor Participant has priority. Complex FOO Orders,
Multi-Leg FOO Orders or tied hedge orders on opposite sides of the
market may be crossed, provided that the Floor Broker holding such
orders proceeds in the manner described in proposed Rule 7605 and IM-
7600-2 as appropriate. Floor Participants may not prevent a Complex
Order from being completed by giving a competing bid or offer for one
component of such order.\126\ In determining whether an order satisfies
the eligible tied hedge order size requirement, any Complex FOO Order
or Multi-Leg FOO Order must contain one leg which, standing alone, is
for the eligible order size or greater.\127\ A Floor Broker crossing a
Public Customer FOO Order with an order that is not a Public Customer
Order, when providing for a reasonable opportunity \128\ for the
trading crowd to participate in the transaction, shall disclose the
Public Customer Order that is subject to crossing.
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\124\ See proposed IM-7605-2. Proposed IM-7605-2 is based on IM-
7600-1.
\125\ The Exchange believes that, by providing the Options
Exchange Official with the ability to consider any other relevant
factors, Options Exchange Officials will retain the necessary
discretion to perform their duties if a new or unforeseen
circumstance arises.
\126\ The Exchange notes that while a Complex Order could be
prevented from being completed by competing bids or offers on
multiple components of such orders, competing bids or offers in any
one of the multiple components may not prevent a Complex Order from
being completed and each one is prohibited.
\127\ See proposed IM-7605-2(d). The eligible tied hedge order
size requirement is determined by the Exchange and may not be
smaller than 500 contracts per order. See BOX IM-7600-2.
\128\ The Exchange is proposing that a minimum response period,
which must be between three seconds and five minutes, shall be
established by the Exchange and announced via Regulatory Notice. See
proposed Rule 7605(e)(2).
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The Exchange proposes to amend Rule 100(b)(3) to provide: ``All
Exchange options transactions shall be executed automatically by the
Trading Host as provided in applicable Exchange Rules.'' \129\ The
Exchange notes that Rule 100(b)(3) already applies to Non-FLEX Equity
Options. The proposed amendment is to replace specific rule references
with a more general reference to avoid any unintended ambiguity and
permit the Rule to apply in connection with FLEX Equity Options.
---------------------------------------------------------------------------
\129\ See proposed Rule 100(b)(3).
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The Exchange proposes to amend Rule 7620, titled Accommodation
Transactions, and IM-7620-1 to exclude FLEX Equity Options as defined
in proposed Rule 5055.\130\ The Exchange notes that Rule 7620(b)
currently states that it applies to all options except for option
classes participating in the Penny Interval Program under Rule 7260,
and IM-7620-1(b) currently states that it applies to all options
including those in the Penny Interval Program. The proposed amendments
will ensure consistency with proposed Rule 5055(c), which provides that
Rule 7620 (Accommodation Transactions) shall not apply to transactions
in FLEX Equity Options.
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\130\ See proposed Rule 7620.
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The Exchange has not yet determined the fees for FOO transactions
executed on the Trading Floor. Prior to commencing trading of the
proposed FOO Orders on the Trading Floor, the Exchange intends to
submit a proposed rule change to the Commission setting forth the
proposed fees.
The Exchange has also analyzed its capacity and represents that it
believes the Exchange and the Options Price Reporting Authority
(``OPRA'') have the necessary systems capacity to handle the additional
message traffic associated with the listing of new series that may
result from the introduction of FLEX Equity Options.\131\ Additionally,
the Exchange will have surveillance coverage in place to monitor issues
unique to FLEX trading and has developed FLEX-specific surveillance
reports. Further, the Exchange believes it has an adequate surveillance
program in place and intends to apply the same program procedures to
FLEX Equity Options that it applies to the Exchange's other options
products, as applicable. FLEX Equity Options products and their
respective symbols will be integrated into the Exchange's existing
surveillance system architecture and will be subject to the relevant
surveillance processes. The Exchange believes that any potential risk
of manipulative activity is mitigated by these existing surveillance
technologies, procedures, and reporting requirements, which allow the
Exchange to properly identify disruptive and/or manipulative trading
activity.
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\131\ The Exchange will report FLEX Equity Option trades and, if
necessary, trade cancels to OPRA.
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The proposed FLEX Equity Option rules are based predominately on
the rules of NYSE Arca. However, the Exchange omitted certain NYSE Arca
rules from the proposed rules discussed herein due to differences in
the scope and operation of FLEX Option \132\ trading at NYSE Arca,
compared to the scope and operation of the proposed FLEX Equity Option
trading herein. The Exchange is not including NYSE Arca rule provisions
that relate to FLEX Index Options as Index Options are not traded on
BOX and FLEX Index Options are not proposed herein.\133\ In particular,
NYSE Arca Rule 5.39-O requires net liquidating equity of $100,000 in an
account in which transactions in FLEX Index Options will be conducted.
As the Exchange does not trade Index Options, FLEX Index Options are
not proposed herein, and the Exchange already imposes minimum net
capital requirements,\134\ it does not propose additional requirements.
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\132\ The term ``Flexible Exchange Option'' or ``FLEX Option''
means a customized options contract. See NYSE Arca Rule 5.30-O(b)(4)
and CBOE Rule 1.1 (definition of, ``FLEX Option'').
\133\ See NYSE Arca Rules 5.39-O and 5.40-O.
\134\ See BOX Rules 8010, 8080, and 10200.
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Next, NYSE Arca Rule 5.40-O requires at least $1 million of net
liquidating equity in the account of a FLEX Appointed Market Maker.
However, FLEX Appointed Market Makers are appointed for FLEX Index
Options on NYSE Arca but are not required for FLEX Equity Options.\135\
Instead, NYSE Arca only requires FLEX Qualified Market Makers for FLEX
Equity Options.\136\ And, this subset of Market Makers is not required
to have at least $1 million of net liquidating equity. Therefore, the
Exchange's proposal does not propose to include additional net
liquidating equity requirements for FLEX Market Makers. The Exchange
notes that Market Makers, including Floor Market Makers and FLEX Market
Makers are still subject to several financial requirements, including
net liquidating equity in its Market Maker account of not less than
$200,000.\137\ Additionally, the Exchange believes that the large
infrastructure needed to trade as a Market Maker, including their
adequacy of capital and operational capacity is such that current
Market Makers are likely to have net liquidating equity well beyond $1
million. In fact, another exchange which trades FLEX Options has
removed a net liquidating equity requirement while still requiring
market makers to maintain net capital sufficient to comply with the
requirements of Rule 15c3-1, under the Act.\138\ The Exchange
[[Page 88448]]
has a similar provision, Rule 10200, that requires each Participant
subject to Rule 15c3-1 under the Act to comply with the capital
requirements prescribed therein among other requirements.\139\
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\135\ See NYSE Arca Rule 5.37-O(a).
\136\ See id. The Exchange notes that NYSE Arca allows but does
not require appointment of two or more FLEX Appointed Market Makers
to FLEX Equity Options in lieu of appointing FLEX Qualified Market
Makers.
\137\ See BOX Rule 8080(a)(1). Rule 8080 also requires Market
Makers to maintain net capital sufficient to comply with the
requirements of Rule 15c3-1 under the Act and each Market Maker that
is a Clearing Participant shall also maintain net capital sufficient
to comply with the requirements of the OCC. See BOX Rules 8080(a)(2)
and (b). See also BOX Rule 8010 (``To qualify for registration as a
Market Maker, an Options Participant must meet the requirements
established in SEC Rule 15c3-1(a)(6)(i) . . .'').
\138\ See CBOE Rule 11.6 and Securities Exchange Act Release No.
87024 (September 19, 2019), 84 FR 50545 (September 25, 2019) (SR-
CBOE-2019-059) (Notice of Filing and Immediate Effectiveness of a
proposed rule change to amend certain rules relating to market
makers upon migration to the trading system used by CBOE affiliated
exchanges).
\139\ See BOX Rule 10200 (Participants must comply with the
additional requirements of the Rule 10200 Series and Market Makers
must comply with the minimum financial requirements contained in
Rule 8010).
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An additional difference in the appointment of FLEX Market Makers
is that NYSE Arca appoints FLEX Qualified Market Makers to each FLEX
Equity Option of a given class, while the Exchange will qualify FLEX
Market Makers for all FLEX Equity Options. The Exchange believes that
the structure of its Trading Floor, with one crowd or trading area,
will operate more efficiently without qualifying FLEX Market Makers by
class.\140\ Accordingly, a Floor Broker or Options Exchange Official
may request a FLEX Equity Option quote in any class from a FLEX Market
Maker. The Exchange notes that FLEX Market Makers will be subject to
Rule 8510, including provisions for the course and conduct of dealings,
class assignments, and option priority and parity, unless otherwise
specified in proposed Rule 7605.\141\
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\140\ Pursuant to BOX Rule 8150(e), whenever a BOX Floor Market
Maker enters the trading crowd he must undertake the obligations
specified in Rule 8510(d) (In Classes of Option Contracts to Which
Assigned--Affirmative Obligations). Since there is only one trading
crowd on the BOX Floor, in practice this results in all BOX Floor
Market Makers being required to quote all classes on the Trading
Floor. The same will apply to FLEX Market Makers.
\141\ See proposed Rules 7605(f)-(h) (providing FOO Order
quoting obligations). The Exchange notes that current Floor Market
Maker quoting obligations and restrictions are detailed in Rule
8510.
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Further, the Exchange notes differences between the proposed
quoting obligations and those applicable on NYSE Arca. Specifically, a
NYSE Arca FLEX Qualified Market Maker may, but shall not be obligated
to, enter a FLEX Quote in response to a Request for Quotes on a FLEX
Equity Option of the class in which he or she is qualified.\142\
However, a FLEX Official on NYSE Arca may call upon FLEX Qualified
Market Makers appointed in a class of FLEX Equity Options to make FLEX
Quotes in response to a specific Request for Quotes in that class of
FLEX Equity Options whenever in the opinion of the FLEX Official the
interests of a fair, orderly and competitive market are best served by
such action and shall make such a call upon FLEX Qualified Market
Makers whenever no FLEX Quotes are made in response to a specific
Request for Quotes.\143\ The Exchange's proposal differs from NYSE
Arca's rule in that FLEX Market Makers have an obligation to quote a
FLEX Equity Option in response to any request for quote by a Floor
Broker or Options Exchange Official and must provide a two-sided
market.\144\ The Exchange believes that the proposed quoting
requirements allow reasonable opportunities for Floor Brokers to get
quotes on FOO Orders and notes that the quoting requirements for QOO
Orders on the BOX Trading Floor are similar to those proposed for FOO
Orders.\145\
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\142\ See NYSE Arca Rule 5.37-O(b).
\143\ See NYSE Arca Rule 5.37-O(c).
\144\ See proposed Rule 7605(h).
\145\ See BOX Rule 8510(c)(2). The Exchange notes that proposed
Rule 7605(h) and current Rule 8510(c)(2) are similar except that
proposed Rule 7605(h) does not include the provisions of current
Rule 8510(c)(2) related to quote spread parameter requirements and
quotation sizes, which requirements are provided separately in
proposed Rules 7605(f) and (g).
---------------------------------------------------------------------------
Among other NYSE Arca provisions not incorporated by the Exchange,
are certain of NYSE Arca's ``Special Terms for FLEX Equity Options.''
\146\ Specifically, these special terms include that exercise prices
and premiums may be stated in terms of: (i) a dollar amount; (ii) a
method for fixing at the time a FLEX Request for Quote or FLEX order is
traded; or (iii) a percentage of the price of the underlying security
at the time of the trade or as of the close of trading on the NYSE Arca
on the trade date. The Exchange will only offer exercise prices and
premiums in a dollar amount because the additional methods for fixing
prices are a matter of individual preference, and the Exchange believes
that the requirements of Participants will be met by pricing exercise
prices and premiums in a dollar amount.\147\
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\146\ See NYSE Arca Rule 5.32-O(f)(2).
\147\ The Exchange's belief that the requirements of
Participants will be met by stating exercise prices and premiums in
a dollar amount is based on conversations with Participants
regarding their preferences for stating the terms of exercise prices
and premiums.
---------------------------------------------------------------------------
Another NYSE Arca provision not adopted by the Exchange in this
proposal allows discretionary orders where Floor Brokers have
discretion regarding the quantity of FLEX contracts traded.\148\ The
Exchange prohibits discretion regarding quantity, and other terms,
including the choice of the class of options to be bought or sold, and
whether any such transaction shall be one of purchase or sale except to
any discretionary transactions executed by a Floor Market Maker for an
account in which he has an interest.\149\ The Exchange believes that
proposed Rule 7605(l) combined with current Rule 7590, allowing Floor
Brokers to have discretion over some terms of a FOO Order such as price
and time while not allowing discretion over terms such as quantity,
strikes a balance between allowing Floor Brokers to provide full
services to clients and preventing erroneous trades based on differing
expectations or miscommunications between Floor Brokers and their
clients. The Exchange notes that Rule 7600(g) governing QOO Orders is
identical to proposed Rule 7605(l) and believes that consistency of
handling between QOO Orders and FOO Orders may reduce confusion and
increase efficiency on the Trading Floor.
---------------------------------------------------------------------------
\148\ See NYSE Arca Rule 5.34-O.
\149\ See BOX Rule 7590 and proposed Rule 7605(l).
---------------------------------------------------------------------------
Another NYSE Arca rule not proposed by the Exchange provides that
NYSE Arca may designate FLEX Officials.\150\ The Exchange is not
proposing a similar rule because Rule 100(b)(6) already provides that
any Exchange employee or officer designated as an Options Exchange
Official will from time to time as provided in these rules have the
ability to recommend and enforce rules and regulations relating to
trading access, order, decorum, health, safety and welfare on the
Exchange. Specifically, Options Exchange Officials have duties
enumerated in Rules 100(b)(5), 7610, 7640, and 8510, as well as in
proposed Rule 7605 regarding announcement, quoting, and recording of
FOO Orders, priority in the trading crowd, disputes on the trading
floor, and obligations and restrictions applicable to Floor Market
Makers and FLEX Market Makers. The general authority for Options
Exchange Officials under these current Exchange Rules will be the same
for FLEX Equity Option transactions on the trading floor as it is for
Non-FLEX Equity Option transactions. The Exchange believes that Options
Exchange Officials will have the authority necessary to enforce the
proposed FLEX Equity Option and FOO Order rules such that designation
of a unique FLEX Official would be redundant and unnecessary, as the
Exchange's existing Options Exchange Officials will have the ability to
perform the same functions as a separately designated FLEX Official.
Specifically, the duties of FLEX Officials on NYSE Arca are mainly
related to their Request for Quotes (``RFQ'') procedure unique to FLEX
Options trading on NYSE Arca.\151\
[[Page 88449]]
The Exchange has elected not to adopt a similar procedure, as discussed
below, instead basing the FOO Order process on the QOO Order process
already monitored by Options Exchange Officials. Additionally, the
Exchange's system is designed to review the terms of a FLEX Equity
Option for compliance with the applicable Rules as opposed to being a
requirement of an Options Exchange Official to review.\152\ Options
Exchange Officials will continue to be responsible for monitoring all
open outcry activity on the Trading Floor. Therefore, the Exchange will
not require a separate official to govern any unique process for FLEX
Equity Options. Additionally, the Exchange represents that Options
Exchange Officials will receive appropriate training on the terms of
FLEX Equity Options and all rules applicable to FLEX Equity Options and
FOO Orders, including their responsibility to certify that a Floor
Broker has adequately announced a FOO Order to the trading crowd,\153\
consistent with the manner in which they are currently trained with
respect to QOO Orders.\154\ The Exchange further notes that NYSE Arca's
rules do not require the exchange to designate FLEX Officials.\155\
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\150\ See NYSE Arca Rule 5.38-O.
\151\ NYSE Arca Rule 5.38-O provides that ``[a] FLEX Official is
responsible for: (1) reviewing the conformity of FLEX Requests for
Quotes and FLEX Quotes to the terms and specifications contained in
Rule 5.32-O [Terms of FLEX Options]; (2) posting FLEX Requests for
Quotes for dissemination; (3) determining the BBO; (4) ensuring that
FLEX contracts are executed in conformance with the priority
principles set forth in Rule 5.33-O; and (5) calling upon FLEX
Qualified Market Makers to make FLEX Quotes in specific classes of
FLEX Equity Options as provided in paragraph (c) of Rule 5.37-O.''
See NYSE Arca Rule 5.38-O.
\152\ See supra note 61. The Exchange notes that NYSE Arca Rule
5.38-O(b)(1) provides that it is the responsibility of their FLEX
Officials to review the terms of a FLEX order.
\153\ See proposed Rule 7605(e)(2).
\154\ BOX Rules currently provide that the President of the
Exchange and his or her designated staff shall be responsible for
monitoring, among other things, the activities of Floor Participants
and their associated persons and shall establish standards and
procedures for the training and qualification of Floor Participants
and their associated persons active on the Trading Floor. See BOX
Rule 100(b)(1).
\155\ See NYSE Arca Rule 5.38-O(a) (``The Exchange may at any
time designate an Exchange employee to act as a FLEX Official in one
or more classes of FLEX Options [emphasis added]. . . .'').
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As mentioned above, rather than adopt the NYSE Arca RFQ procedure
for FLEX Equity Options,\156\ the Exchange instead proposes to utilize
the current process used on the BOX Trading Floor for QOO Orders with
the addition of a minimum time period that a Floor Broker must allow
Floor Participants when responding to FOO Orders.\157\ The Exchange
believes that using the order announcement and responsive quote process
for both QOO Orders and FOO Orders on the BOX Trading Floor will result
in less confusion and greater efficiency for all BOX Trading Floor
Participants.
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\156\ See NYSE Arca Rule 5.33-O.
\157\ See proposed Rule 7605 and current Rule 7600. The minimum
time period, which must be between three seconds and five minutes,
will be established by the Exchange and communicated via Regulatory
Notice. See proposed Rule 7605(e)(2). See also Securities Exchange
Act Release No. 81292 (August 2, 2017), 82 FR 37144 (August 8, 2017)
(SR-BOX-2016-48) (Order Approving a Proposed Rule Change, as
Modified by Amendment Nos. 1 and 2, To Adopt Rules for an Open-
Outcry Trading Floor).
---------------------------------------------------------------------------
The Exchange notes that the manner in which the Exchange has
proposed rules with respect to announcement of orders and responsive
quotes is similar to how CBOE treats its FLEX Options; specifically,
CBOE allows a FLEX Order \158\ to be represented and executed in a
similar manner as a non-FLEX Option.\159\ The Exchange believes CBOE's
approach is consistent with the Act and proposes to also require Floor
Brokers to allow for a reasonable amount of time to participate in FLEX
Equity Option transactions. Further, unlike CBOE, the Exchange proposes
to establish and announce, via Regulatory Notice, a minimum period of
time that a Floor Broker must allow Floor Participants to respond
(which amount of time must be between three seconds and five minutes).
The Exchange believes that it is unnecessary to specify a specific
maximum time period for responses to FLEX orders as Options Exchange
Officials on BOX's Trading Floor will be responsible both to enforce
the minimum period of time and to ensure that Floor Participants have a
reasonable amount of time to respond to FOO Orders.\160\ The Exchange
notes that the proposed order announcement procedure for FOO Orders is
similar to the rules and procedures currently in place for QOO Orders
on the BOX Trading Floor.
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\158\ ``FLEX Orders'' are orders submitted in FLEX Options. See
CBOE Rule 5.70.
\159\ See CBOE Rule 5.72(d). The Exchange notes that CBOE Rule
5.72(d) also contains provisions that limit the priority rules
applicable to FLEX Orders. See CBOE Rules 5.72(d)(2) and (3).
\160\ See supra note 158 and accompanying text.
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Minor Rule Violation Plan
The Exchange's disciplinary rules, including Exchange Rules
applicable to ``minor rule violations,'' are set forth in the Rule
12000 Series of the Exchange's current Rules. As described in Rule
12140, the MRVP provides that in lieu of commencing a disciplinary
proceeding, the Exchange may, subject to the certain requirements set
forth in the Rule, impose a fine, not to exceed $5,000, on any Options
Participant, or person associated with or employed by an Options
Participant, with respect to any Rule violation listed in Rules
12140(d) or (e) as discussed below. Any fine imposed pursuant to this
Rule that (i) does not exceed $2,500 and (ii) is not contested, shall
be reported on a periodic basis, except as may otherwise be required by
Rule 19d-1 under the Act or by any other regulatory authority. Further,
the Rule provides that any person against whom a fine is imposed under
the Rule shall be served with a written statement setting forth: (i)
the Rule(s) allegedly violated; (ii) the act or omission constituting
each such violation; (iii) the fine imposed for each violation; and
(iv) the date by which such determination becomes final and such fine
must be paid or contested, which date shall be not less than twenty-
five (25) calendar days after the date of service of such written
statement. Rules 12140 (d) and (e) set forth the list of specific
Exchange Rules under which an Options Participant or person associated
with or employed by an Options Participant may be subject to a fine for
violations of such Rules and the applicable fines that may be imposed
by the Exchange. As with all the violations incorporated into its MRVP,
the Exchange will proceed under this Rule only for violations that are
minor in nature. Any other violation will be addressed pursuant to
Rules 12030 (Letters of Consent) or 12040 (Charges).
The Exchange proposes to amend its MRVP to add certain rules
relating to FLEX Equity Options to the list of rules eligible for minor
rule violation plan treatment by amending Rule 12140. Specifically, the
Exchange proposes to amend Rule 12140(e)(3), which covers the failure
to properly execute a QOO Order, to include failure to properly execute
a FOO Order (proposed Rule 7605).\161\ Additionally, the Exchange
proposes to amend Rule 12140(e)(9), which covers compliance with
quotation requirements for Floor Market Makers as set forth in Rule
8510(c)(2), and is designed to sanction violations thereof, to also
include compliance with
[[Page 88450]]
the quotation requirements for FLEX Market Makers set forth in proposed
Rule 7605(h) and sanction violations of such requirements.\162\
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\161\ See proposed Rule 12140(e)(3). The Exchange notes that
adding proposed Rule 7605 for FOO Orders to current Rule 12140(e)(3)
is consistent with the existing provision to enforce current Rule
7600 for QOO Orders because Floor Participants have the same general
requirements for executing FOO and QOO Orders on the Trading Floor.
The Exchange notes further that fines defined under Rule 12140(e)(3)
may apply to any failure to properly execute a FOO Order in
accordance with applicable provisions of proposed Rule 7605
governing such execution requirements. Proposed Rule 7605(h),
however, which relates to a FLEX Market Maker's quoting obligation,
is specifically proposed for inclusion in proposed Rule 12140(e)(9).
\162\ See proposed Rule 12140(e)(9). The Exchange notes that
proposed Rule 7605(h) and current Rule 8510(c)(2) are similar except
that proposed Rule 7605(h) does not include the provisions of
current Rule 8510(c)(2) related to quote spread parameter
requirements and quotation sizes, which requirements are provided
separately in proposed Rules 7605(f) and (g). However, the Exchange
believes it is appropriate to include proposed Rule 7605(h) with
Rule 8510(c)(2) in the MRVP given the similar nature of the
underlying requirement to provide quotations.
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2. Statutory Basis
The Exchange believes that its proposal is consistent with Section
6(b) of the Act \163\ in general, and furthers the objectives of
Section 6(b)(5) of the Act \164\ in particular, in that it is designed
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.
Specifically, the Exchange believes the adoption of the proposed rules
allowing FLEX Equity Options to trade on the BOX Trading Floor as FOO
Orders is consistent with the goals of the Act to remove the
impediments to and perfect the mechanism of a free and open market
because it will benefit Participants by providing an additional venue
for Participants to provide and seek liquidity for customized, large,
or complex FLEX option orders. As the Commission noted in its order
granting FLEX Equity Option trading on CBOE and what was then the
Pacific Stock Exchange (now NYSE Arca), trading FLEX Equity Options on
an exchange is an alternative to trading customized options in OTC
markets and carries with it the advantages of exchange markets such as
transparency, parameters and procedures for clearance and settlement,
and a centralized counterparty clearing agency.\165\ Therefore, the
Exchange believes the proposed rule change will promote these same
benefits for the market as a whole by providing an additional venue for
market participants to seek liquidity for customized, large-sized, or
complex FLEX option orders. The Exchange believes that providing an
additional venue for these FLEX orders will benefit investors, the
national market system, Participants, and BOX by increasing competition
for order flow and executions, and thereby spur product enhancements
and potentially result in lower prices for exchange services related to
FLEX Equity Options.
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\163\ 15 U.S.C. 78f(b).
\164\ 15 U.S.C. 78f(b)(5).
\165\ See Securities Exchange Act Release No. 36841 (February
14, 1996), 61 FR 6666 (February 21, 1996) (SR-CBOE-95-43) (SR-PSE-
95-24) (Order Approving the Trading of Flexibly Structured Equity
Options by CBOE and PSE).
---------------------------------------------------------------------------
The Exchange further believes that the proposal is designed to
prevent fraudulent and manipulative acts and practices as the Exchange
will review all current surveillance in light of any changes required,
including surveillance and technology to detect disruptive or
manipulative trading activity for FOO Orders on the Trading Floor, and
will modify or add any surveillance as appropriate. As described above,
the Exchange will apply its existing surveillance program to FLEX
Equity Options and has developed FLEX-specific surveillance reports.
As described below, the Exchange also believes the proposed changes
to Rule 12140(e) are consistent with Section 6(b)(6) of the Act,\166\
which provides that members and persons associated with members shall
be appropriately disciplined for violation of the provisions of 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. The Exchange further believes the proposed changes to Rule
12140(e) are designed to provide a fair procedure for the disciplining
of members and persons associated with members, consistent with
Sections 6(b)(7) and 6(d) of the Act.\167\
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\166\ 15 U.S.C. 78f(b)(6).
\167\ 15 U.S.C. 78f(b)(7) and 78f(d).
---------------------------------------------------------------------------
General
The Exchange believes that proposed Rule 5055(a) stating that the
trading of FLEX Equity Options is subject to all other Rules applicable
to the trading of options on the Exchange, unless otherwise provided in
Rules 5055 and 7605, is consistent with the Act because it will ensure
that, except where otherwise provided in Rules 5055 and 7605, the
Exchange's existing rules will continue to apply to FLEX Equity
Options, which will provide increased consistency for Participants
trading FLEX Equity Options and Non-FLEX Equity Options on BOX. The
Exchange reiterates that rules which contemplate the operation of or
interaction with the BOX Book and the Complex Order Book will not apply
to FLEX Equity Options, given that FLEX Equity Options may only be
traded as FOO Orders and FOO Orders may not be placed in the BOX Book
or the Complex Order Book.\168\ Specifically, proposed Rule 5055(a)
will specify that the BOX Book and the Complex Order Book shall not be
applicable for transactions in FLEX Equity Options and thereby provide
clarity for market participants that FLEX Equity Options may only be
traded on the Trading Floor. As described above, while electronic
trading in FLEX options is available on one market today, the Exchange
at this time intends to introduce FLEX Equity Options on the Trading
Floor only, consistent with other markets that trade these customized
options solely on their trading floors. The Exchange also believes that
providing further detail about rules that shall not apply in proposed
Rule 5055(c) is consistent with the Act because it will provide clarity
for market participants about existing rules that will not be
applicable to FLEX Equity Options on BOX. In particular, specifying
that Rules 7600 and 7620 will not apply to FLEX Equity Options will
avoid potential confusion about which order types apply to FLEX Equity
Options on BOX, as the Exchange is instead proposing Rule 7605 to apply
to transactions in FLEX Equity Options. Specifically, Rule 7600
contains priority provisions related to the BOX Book and the Complex
Order Book neither of which are applicable to transactions in FLEX
Equity Options. The Exchange notes that another exchange excludes
similar rules from application to transactions in FLEX Equity
Options.\169\ However, proposed Rule 5055(c) also specifies that IM-
7600-2 and IM-7600-5 shall apply to FLEX Equity Options. The Exchange
believes that expressly applying these provisions is consistent with
the Act because, although the remainder of Rule 7600 will not apply to
FOO Orders, IM-7600-2, and IM-7600-5 relate, respectively, to tied
hedge orders and to compliance with Section 11(a)(1) of the Act and
should apply to the proposed FOO Orders in the same manner as they
currently apply to QOO Orders. Specifically, tied hedge orders are a
combination of an option and hedging position that must follow the
procedures set forth in IM-7600-2 which is designed to protect
investors and the public interest with provisions that limit the types
of combinations considered to be tied hedge orders as well as
prescribing Floor Broker duties
[[Page 88451]]
for the handling of such orders. The Exchange believes that expressly
applying IM-7600-2 to FOO Orders is consistent with the Act, as this
will provide greater consistency between the trading of FLEX Equity
Options and Non-FLEX Equity Options on the BOX Trading Floor and reduce
the potential for market participant confusion. Next, IM-7600-5
prevents Participants from utilizing the Trading Floor to effect any
transactions for their own account, the account of an associated
person, or an account with respect to which the Participant or an
associated person thereof exercises investment discretion by relying on
an exemption under Section 11(a)(1)(G) of the Act (``G Exemption'').
IM-7600-5 thereby provides notice to Floor Participants that when
utilizing the trading floor to effect transactions in covered accounts,
they cannot rely on the G Exemption and must rely on other available
exemptions to the prohibition in Section 11(a)(1) of the Act.\170\ In
this manner, IM-7600-5 provides increased clarity to Floor Participants
about their ability to comply with Section 11(a)(1) of the Act and it
is therefore consistent with the Act and would protect investors and
the public interest to continue to apply this rule to FOO Orders.
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\168\ See supra notes 94 and 97 and accompanying text.
\169\ See NYSE Arca Rules 5.30-O(c) and (d).
\170\ See infra note 245 and accompanying text (describing the
Section 11(a)(1) prohibition and defining ``covered accounts'').
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The Exchange believes that the definitions proposed in Rule 5055(b)
will provide increased clarity to market participants which will
protect investors and the public interest by specifying definitions for
FLEX Equity Options and Non-FLEX Equity Options, and by specifying that
FLEX Equity Option transactions will be governed as proposed in Rule
7605 and shall not be traded other than as FOO Orders. The Exchange
believes further that the term ``FLEX Market Maker'' will clarify the
difference between Floor Market Makers and FLEX Market Makers, where
the latter are qualified for trading FLEX Equity Options and have an
obligation to provide quotes in response to FOO Orders. The Exchange
also believes that specifying that FLEX Equity Options may not be
traded using any other order type or trading mechanism offered by the
Exchange will provide increased clarity to Participants that the only
means by which the Exchange intends to permit FLEX Equity Options to be
traded is via the proposed FOO order type. The Exchange notes that,
should it decide to propose additional order types or electronic
trading for FLEX Equity Options, it will revise the defined term ``FLEX
Open Outcry Order'' accordingly.
The Exchange believes that proposed Rule 5055(d) which specifies
that there shall be no trading rotations in FLEX Equity Options is
designed to promote just and equitable principles of trade and to
remove impediments to and perfect the mechanism of a free and open
market and a national market system because it provides notice to
Participants regarding the mechanisms applicable to FLEX trading, which
will not include trading rotations due to the customized nature of FLEX
Equity Options and the fact that there will be no requirement for
specific FLEX Equity Option series to be quoted or traded each
day.\171\ The Exchange notes that QOO Orders on the Trading Floor can
only participate in a trading rotation if entered into the BOX Book and
as discussed herein FLEX Equity Options will not be eligible to be
placed on the BOX Book.\172\ The Exchange also notes that another
exchange does not hold trading rotations for FLEX Equity Options.\173\
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\171\ See Securities Exchange Act Release No. 31920 (February
24, 1993), 58 FR 12280, 12284 (March 3, 1993) (SR-CBOE-92-17) (Order
Approving Proposed Rule Change by the Chicago Board Options
Exchange, Inc. Relating to the Listing and Trading of Flexible
Exchange Options Based on the Nasdaq 100 Index).
\172\ See BOX Rule 7070(d).
\173\ See NYSE Arca Rule 5.31-O(b).
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FLEX Equity Option Terms
The Exchange believes that the terms of FLEX Equity Options
pursuant to proposed Rule 5055(e) serve to perfect the mechanism of a
free and open market and a national market system because they will
permit investors to customize some of the terms of their FLEX Equity
Options to implement more precise trading strategies and hedges which
may not be possible using Non-FLEX Equity Options.\174\ These investors
may have improved capability to execute strategies to meet their
specific investment objectives by using customized FLEX Equity Options.
However, only certain terms are subject to flexible structuring by the
parties to FLEX Equity Option transactions, and most of such terms have
a specified number of alternative configurations. The Exchange believes
that these restrictions are reasonable and designed to further the
objectives of the Act and to promote just and equitable principles of
trade because limiting FLEX Equity Option terms enables the efficient,
centralized clearance and settlement and active secondary trading of
opened FLEX Equity Options. Further, these terms are consistent with
those currently offered at another exchange.\175\
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\174\ See proposed Rule 5055(e)(1) (providing that FLEX Equity
Options shall be permitted in puts and calls that do not have the
same exercise style, same expiration date, and same exercise price
as Non-FLEX Equity Options that are already available for trading on
the same underlying security).
\175\ See NYSE Arca Rule 5.32-O.
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Proposed rule 5055(e)(2)(v)(a) allowing a FLEX Equity Option order
to be submitted on any trading day, including the expiration date,
serves to perfect the mechanism of a free and open market and a
national market system because it will allow investors to execute FLEX
Equity Options at a time of their choosing. These investors may have
improved capability to execute strategies to meet their specific
investment objectives. Further, this rule is designed to provide
clarity about when FLEX Equity Options may be executed. The Exchange
believes that Floor Participants benefit from increased flexibility and
clarity. The Exchange notes that, in another context, new series may be
listed the day they expire. Specifically, Short Term Option Series may
be added up to and including on the Short Term Option Expiration Date
for that options series.\176\
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\176\ See BOX IM-5050-6(b)(4).
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The Exchange also believes that proposed Rule 5055(e)(1) to prevent
FLEX Equity Options and Non-FLEX Equity Options with the same terms
from trading concurrently is designed to promote just and equitable
principles of trade and prevent fraudulent and manipulative acts and
practices.\177\ In particular, a Non-FLEX Equity Option trading
pursuant to Rule 7600 as a QOO Order has different priority rules than
a FOO Order trading pursuant to proposed Rule 7605.\178\ Allowing an
option with the same terms to trade under both rules concurrently would
result in inconsistent order handling and could allow the order
priority of QOO Orders to be circumvented. Therefore, the Exchange
proposes to prevent this situation by permitting FLEX Equity Option
transactions only in options with a different term (exercise style,
expiration date, or exercise price) than Non-FLEX Equity Options that
otherwise meet the requirements of proposed Rule 5055(e). This is
designed to prevent FLEX Equity
[[Page 88452]]
Options from being surrogates for Non-FLEX Equity Options.
Additionally, in the event that a Non-FLEX Equity Option series is
added intra-day, the holder or writer of a FLEX Equity Option position
established under the FLEX trading procedures would be permitted to
close such position under the FLEX trading procedures against another
closing only FLEX Equity Option position for the balance of the trading
day on which the series is added. In the event that the Non-FLEX Equity
Option series is added on a trading day after the position is
established, the holder or writer of a FLEX Equity Option position
established under the FLEX trading procedures would be permitted to
close such position as a non-FLEX transaction consistent with the
requirements of proposed Rule 5055(f)(1). This proposed rule will
prevent an option with the same terms from trading as both a FLEX
Equity Option and a Non-FLEX Equity Option concurrently, while
providing a narrow exception for closing positions.\179\ Further
opening trades in such options would be as Non-FLEX Equity Options
subject to the Non-FLEX Equity Option trading procedures and rules,
including Rule 7600 for Trading Floor transactions.\180\ The Exchange
believes that enforcing consistent handling and priority for identical
and fungible options prevents fraudulent and manipulative acts and
practices, and promotes just and equitable principles of trade to
protect investors and the public interest by ensuring consistent
treatment of these options. The Exchange further believes that
providing a narrow exception to permit the closing of a FLEX Equity
Option position for the balance of the trading day on which the
fungible Non-FLEX Equity Option is added perfects the mechanism of a
free and open market and a national market system because it provides
investors the ability to close their open FLEX Equity Option positions
the same day as the identical Non-FLEX Equity Option is added.\181\ As
noted herein, these requirements are consistent with those at another
exchange.\182\
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\177\ See proposed Rule 5055(e)(1).
\178\ For example, the BOX Book will be inapplicable to FOO
Orders and thus certain priority provisions applicable to QOO Orders
are not applicable to FOO Orders. Specifically, FOO Order priority
differs from QOO Order provisions related to the priority of orders
on the BOX Book. See BOX Rules 7600(c)-(e) and (h). The priority of
FOO Orders will be determined by proposed Rules 7605(i) and (k) and
BOX Rule 7610.
\179\ See proposed Rule 5055(f)(2). See also proposed Rules
7605(d)(3) and (4). See Exchange Act Release Nos. 62321 (June 17,
2010), 75 FR 36130 (June 24, 2010) (SR-NYSEArca-2010-46) (Notice of
Filing and Immediate Effectiveness of Proposed Rule Change Amending
Commentary .01 to Rule 5.32 To Permit Certain FLEX Options To Trade
Under the FLEX Trading Procedures for a Limited Time on a Closing
Only Basis) and 62870 (September 8, 2010), 75 FR 56147 (September
15, 2010) (SR-CBOE-2010-078) (Notice of Filing and Immediate
Effectiveness of Proposed Rule Change To Permit Certain FLEX Options
To Trade Under the FLEX Trading Procedures for a Limited Time on a
Closing Only Basis).
\180\ See proposed Rule 5055(f)(1). See also Exchange Act
Release Nos. 59417 (February 18, 2009), 74 FR 8591 (February 25,
2009) (SR-CBOE-2008-115) (Notice of Filing of Amendments No. 1 and 2
and Order Granting Accelerated Approval to a Proposed Rule Change,
as Modified by Amendments No. 1 And 2 Thereto, Relating to FLEX
Options Expirations); 60548 (August 20, 2009), 74 FR 43191 (August
26, 2009) (SR-NYSEAmex-2009-44) (Notice of Filing and Immediate
Effectiveness of Proposed Rule Change by NYSE AMEX LLC Amending the
Permissible Expiration Dates for Flexible Exchange Options); 60549
(August 20, 2009), 74 FR 44415 (August 28, 2009) (SR-NYSE-Arca-2009-
75) (Notice of Filing and Immediate Effectiveness of Proposed Rule
Change by NYSE Arca, Inc. Amending Permissible Expiration Dates for
Flexible Exchange Options); and 60549 (September 16, 2009), 74 FR
48619 (September 23, 2009) (SR-Phlx-2009-81) (Notice of Filing and
Immediate Effectiveness of Proposed Rule Change Relating to FLEX
Option Expirations).
\181\ The Exchange notes that investors will be able to close
any such positions utilizing Non-FLEX Equity Option trading
procedures beginning the next trading day.
\182\ See NYSE Arca Rule 5.32-O, Commentary .01.
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Further, the Exchange believes that allowing FLEX Equity Options to
trade in minimum increments of $0.01 \183\ perfects the mechanism of a
free and open market and a national market system because it provides
investors with increased ability to meet their specific investment
objectives and allows for increased opportunities for price improvement
through a finer trading increment. The Exchange notes that another
exchange currently trades FLEX Equity Options in minimum increments of
$0.01.\184\
---------------------------------------------------------------------------
\183\ See proposed Rule 5055(g).
\184\ See CBOE Rule 5.4(c)(4). The Exchange notes that minimum
increments in percentage terms are not part of this proposal.
---------------------------------------------------------------------------
The Exchange further believes that subjecting FLEX Equity Options
to the exercise by exception provisions of Rule 805 of the OCC \185\
fosters cooperation and coordination with persons engaged in
regulating, clearing, settling, processing information with respect to,
and facilitating transactions in securities.\186\ Specifically, OCC
Rule 805 provides that, unless contrary instructions are given, option
contracts that are in-the-money by specified amounts shall be
automatically exercised. Application of Rule 805 to FLEX Equity Options
provides consistency with Non-FLEX Equity Options and prevents
confusion in the clearing process with respect to exercise
instructions. The Exchange notes that another exchange provides that
FLEX Equity Options shall be subject to the exercise by exception
provisions of OCC Rule 805.\187\
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\185\ See proposed Rule 5055(h).
\186\ The Exchange notes that Rule 805 of the OCC currently
applies to Non-FLEX Equity Options on BOX. See BOX Rule 9000(b).
\187\ See NYSE Arca Rule 5.32-O(f)(4).
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Position Limits
Position and exercise limits are designed to address potential
manipulative schemes and adverse market impacts surrounding the use of
options, such as disrupting the market in the security underlying the
options. While position and exercise limits should address and
discourage the potential for manipulative schemes and adverse market
impact, if such limits are set too low, participation in the options
market may be discouraged. The Exchange believes that any decision
regarding imposing position and exercise limits for FLEX Equity Options
must therefore be balanced between mitigating concerns of any potential
manipulation and the cost of inhibiting potential hedging activity that
could be used for legitimate economic purposes.\188\
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\188\ The Exchange notes that although no position limits are
proposed for FLEX Equity Options, there are several mitigating
factors, which include aggregation of FLEX Equity Option and Non-
FLEX Equity Option positions that expire on a third Friday-of-the-
month and subjecting those positions to position and exercise
limits, and daily monitoring of market activity.
---------------------------------------------------------------------------
Similar to the other exchanges that trade FLEX Equity Options, the
Exchange believes that eliminating position and exercise limits for
FLEX Equity Options, while requiring positions in FLEX Equity Options
that expire on a third Friday-of-the-month to be aggregated with
positions in Non-FLEX Equity Options on the same underlying
security,\189\ removes impediments to and perfects the mechanism of a
free and open market and a national market system because it allows BOX
to create a product and market that is an improved but comparable
alternative to the OTC market in customized options. OTC transactions
occur through bilateral agreements, the terms of which are not publicly
disclosed to the marketplace. As such, OTC transactions do not
contribute to the price discovery process that exists on a public
exchange.
---------------------------------------------------------------------------
\189\ See proposed Rules 5055(i) and (j). See also NYSE Arca
Rules 5.35-O(a)(iii), (b) and 5.36-O and CBOE Rules 8.35 and 8.42
and NYSE American Rules 906G and 907G and PHLX Options 8, Section
34(e) and (f).
---------------------------------------------------------------------------
The Exchange believes that the proposed elimination of position and
exercise limits for FLEX Equity Options may encourage market
participants to transfer their liquidity demands from OTC markets to
exchanges and enable liquidity providers to provide additional
liquidity to BOX through transactions in FLEX Equity Options. The
Exchange notes that the Commission previously approved the elimination
of position and exercise limits for FLEX Equity
[[Page 88453]]
Options, finding that such elimination would allow exchanges ``to
better compete with the growing OTC market in customized equity
options, thereby encouraging fair competition among brokers and dealers
and exchange markets.'' \190\ The Commission has also stated that the
elimination of position and exercise limits for FLEX Equity Options
``could potentially expand the depth and liquidity of the FLEX equity
market without significantly increasing concerns regarding intermarket
manipulations or disruptions of the options or the underlying
securities.'' \191\
---------------------------------------------------------------------------
\190\ See Securities Exchange Act Release No. 42223 (December
10, 1999), 64 FR 71158, 71159 (December 20, 1999) (SR-Amex-99-40)
(SR-PCX-99-41) (SR-CBOE-99-59) (Order Granting Accelerated Approval
to Proposed Rule Change Relating to the Permanent Approval of the
Elimination of Position and Exercise Limits for FLEX Equity
Options).
\191\ See id.
---------------------------------------------------------------------------
Additionally, the Exchange believes that requiring positions in
FLEX Equity Options that expire on a third Friday-of-the-month to be
aggregated with positions in Non-FLEX Equity Options on the same
underlying security subjects FLEX Equity Options and Non-FLEX Equity
Options to the same position and exercise limits on third Friday-of-
the-month expirations. These limitations are intended to serve as a
safeguard against potential adverse effects of large FLEX Equity Option
positions expiring on the same day as Non-FLEX Equity Option positions.
The Exchange notes that another exchange has the same requirement.\192\
---------------------------------------------------------------------------
\192\ See NYSE Arca Rule 5.35-O(b)(i).
---------------------------------------------------------------------------
The Exchange believes that any potential risk of manipulative
activity is mitigated by existing surveillance technologies,
procedures, and reporting requirements at the Exchange, which allows
the Exchange to properly identify disruptive and/or manipulative
trading activity. 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'') \193\ the Exchange shares
information and coordinates inquiries and investigations with other
exchanges designed to address potential intermarket manipulation and
trading abuses. The Exchange also notes that Financial Industry
Regulatory Authority, Inc. (``FINRA''), conducts cross-market
surveillances on behalf of the Exchange pursuant to a regulatory
services agreement.\194\ The Exchange also represents that it is
reviewing its procedures to detect potential manipulation in light of
any changes required for FLEX Equity Options to confirm appropriate
surveillance coverage. These procedures utilize daily monitoring of
market activity via automated surveillance techniques to identify
unusual activity in both options and their underlying securities and
are designed to protect investors and the public interest by ensuring
that the Exchange has an adequate surveillance program in place.
---------------------------------------------------------------------------
\193\ 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.
\194\ The Exchange notes that it is responsible for FINRA's
performance under this regulatory services agreement.
---------------------------------------------------------------------------
The Exchange believes that proposed Rule 5055(i)(1) further
mitigates concerns for potential market manipulation and/or disruption
in the underlying markets and thus protects investors and the public
interest because position reporting will be required (other than for a
Market Maker) and the Exchange may determine that a higher margin
requirement is necessary in light of the risks associated with a FLEX
Equity Option position in excess of the standard limit for Non-FLEX
Equity Options of the same class. The Exchange may, pursuant to its
authority under Rule 10130(b), impose additional margin upon the
account maintaining such under-hedged position as a safeguard against
potential adverse effects of large FLEX Equity Option positions. The
Exchange notes that the clearing firm carrying the account will be
subject to capital charges under SEC Rule 15c3-1 to the extent of any
margin deficiency resulting from a higher margin requirement imposed by
the Exchange. The Exchange also notes that other exchanges currently
trading FLEX options have similar position and exercise limits.\195\
---------------------------------------------------------------------------
\195\ See NYSE Arca Rules 5.35-O(a)(iii), (b) and 5.36-O and
CBOE Rules 8.35 and 8.42 and NYSE American Rules 906G and 907G and
PHLX Options 8, Section 34(e) and (f).
---------------------------------------------------------------------------
Letters of Guarantee and Authorization
Pursuant to proposed Rule 5055(k), the Exchange will require FLEX
Market Makers to provide a Letter of Guarantee issued by a clearing
member organization and filed with the Exchange specifically accepting
financial responsibility for all FLEX Equity Option transactions made
by such person as long as such letter has not been revoked under Rule
8070(c).\196\ Market Makers that are qualified by the Exchange and have
provided such a Letter of Guarantee will be permitted to trade FLEX
Equity Options on BOX.\197\ The Exchange believes that requiring a
Letter of Guarantee specific to FLEX Equity Options protects investors
and the public interest because it signifies that the clearing member
has specifically accepted financial responsibility for transactions in
FLEX Equity Options entered into by the Market Maker which will protect
the counterparties of those trades and such protections will flow to
other clearing members and ultimately to the OCC as the central
counterparty and guarantor of both FLEX Equity Option and Non-FLEX
Equity Option transactions. The Exchange notes that another exchange
requires a Letter of Guarantee for FLEX transactions.\198\
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\196\ See proposed Rule 5055(k).
\197\ See proposed Rule 7605(c). The Exchange notes that Market
Makers are subject to the qualifications in Exchange rules including
net capital and financial requirements. See BOX Rule 8000 series.
\198\ See NYSE Arca Rule 5.41-O(a).
---------------------------------------------------------------------------
Pursuant to proposed Rule 5055(l), prior to effecting any
transaction in FLEX Equity Options, Floor Brokers are required to
provide a Letter of Authorization issued by a clearing member
organization and filed with the Exchange specifically accepting
financial responsibility for all FLEX Equity Option transactions made
by such person, and such letter remains in effect until a written
revocation is received by the Exchange.\199\ Floor Brokers that have
provided such a Letter of Authorization and are qualified by the
Exchange will be permitted to trade FLEX Equity Options on BOX.\200\
The Exchange believes that requiring a Letter of Authorization specific
to FLEX Equity Options protects investors and the public interest
because it signifies that the clearing member has accepted financial
responsibility for transactions in FLEX Equity Options entered into by
the Floor Broker which will protect the counterparties of those trades
and such protections will flow to other clearing members and ultimately
to the OCC as the central counterparty and guarantor of both FLEX
Equity Option and Non-FLEX Equity Option transactions. The Exchange
notes that another exchange requires a separate Letter of Authorization
for Floor Brokers to trade FLEX Equity Options.\201\
---------------------------------------------------------------------------
\199\ See proposed Rules 5055(l) and 7605(b).
\200\ The Exchange notes that Floor Brokers are subject to
registration requirements in Exchange rules including a Floor Broker
examination and other factors deemed appropriate by the Exchange.
See BOX Rule 7550.
\201\ See NYSE Arca Rule 5.41-O(b).
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[[Page 88454]]
FOO Orders
The Exchange believes that the proposed rule change to adopt a new
order type \202\ for FLEX Equity Option transactions on the BOX Trading
Floor is consistent with the Act. The Exchange modeled its proposed
rule governing FOO Orders after Rule 7600 applicable to QOO Orders to
harmonize current procedures on BOX's Trading Floor, which the Exchange
believes will reduce investor confusion and thus remove impediments to
and perfect the mechanism of a free and open market and a national
market system.\203\ Specifically, the proposed elements of a FOO Order
are designed to aid Floor Brokers in their duties and to maintain order
and structure on the Trading Floor. For example, as with a QOO Order,
the rules applicable to FOO Orders will ensure that all FLEX Equity
Option transactions executed on the Trading Floor by Floor Brokers are
systematized before they are represented to the trading crowd and
provide an accurate timestamp of when the order was executed by the
Floor Broker.\204\ As described above, the main differences from QOO
Orders are that FOO Orders will not interact with the BOX Book or the
Complex Order Book and that Floor Brokers must allow Floor Participants
a minimum period of time to respond to FOO Orders.
---------------------------------------------------------------------------
\202\ See proposed Rule 7605.
\203\ See Securities Exchange Act Release No. 81292 (August 2,
2017), 82 FR 37144 (August 8, 2017) (SR-BOX-2016-48) (Order
Approving a Proposed Rule Change, as Modified by Amendment Nos. 1
and 2, To Adopt Rules for an Open-Outcry Trading Floor) (``After
careful review and consideration of the comments received, the
Commission finds that the proposed rule change, as modified by
Amendment Nos. 1 and 2, is consistent with the requirements of the
Act and the rules and regulations thereunder applicable to a
national securities exchange.'').
\204\ See proposed Rule 7605(e). The Exchange notes that in
order to execute a FOO Order on the Trading Floor, it must be sent
from a Floor Broker's system to the BOG. This requires that the
Floor Broker adequately systematized the FOO Order. An order is
systematized when a Floor Broker creates an electronic record of the
order. As the Exchange described when it originally proposed the QOO
order type, in order to execute a QOO Order from the Trading Floor,
it must be sent from a Floor Broker's system to the BOG--which
requires that the Floor Broker adequately systemized the QOO Order.
See Securities Exchange Act Release No. 80720 (May 18, 2017), 82 FR
23657, 23682 n.259 (May 23, 2017) (SR-BOX-2016-48) (Notice of Filing
of Amendment No. 2 to a Proposed Rule Change to Adopt Rules for an
Open-Outcry Trading Floor).
---------------------------------------------------------------------------
Under this proposal, Floor Brokers will continue to allow a
reasonable amount of time for Floor Participants to participate in a
FOO Order. Additionally, the Exchange will establish and communicate
via Regulatory Notice a minimum time that Floor Brokers must provide
for Floor Participants to respond to FOO Orders, which amount of time
must be between three seconds and five minutes. While other exchanges
have adopted RFQ processes for FLEX Equity Options,\205\ the Exchange
has proposed to follow a similar approach for trading FLEX Equity
Options as CBOE, which does not have a different open outcry process
for FLEX Option transactions as compared to non-FLEX Option
transactions, but does establish a different order announcement process
that requires a reasonable amount of time for traders to respond to a
FLEX Order.\206\ In fact, the Exchange notes that CBOE recently changed
its process for FLEX Option transactions from conducting a RFQ process
to utilizing the same process as for a non-FLEX Option on its trading
floor.\207\ In its rule filing, CBOE stated that aligning the open
outcry process for FLEX Options with that of non-FLEX Options may
reduce confusion regarding how FLEX Orders may trade in open outcry and
encourage the submission of FLEX Orders for execution.\208\
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\205\ See NYSE Arca Rule 5.33-O and PHLX Options 8, Section
34(c) and NYSE American Rule 904G.
\206\ See CBOE Rule 5.72(d)(1) (providing that FLEX Traders have
a reasonable amount of time (which amount of time must be between
three seconds and five minutes) from the time a FLEX Trader requests
a quote in a FLEX Option series or represents a FLEX Order
(including announcing a crossing transaction pursuant to Rule 5.87)
to respond with bids and offers). The Exchange notes that PHLX has
also taken a similar approach to CBOE. See Securities Exchange Act
Release No. 97658 (June 7, 2023), 88 FR 38562 (June 13, 2023) (SR-
Phlx-2023-22) (Notice of Filing and Immediate Effectiveness of
Proposed Rule Change To Amend Various Options 8 Rules).
\207\ See Securities Exchange Act Release No. 87235 (October 4,
2019), 84 FR 54671 (October 10, 2019) (SR-CBOE-2019-084) (Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change to
Extend the Operation of its Flexible Exchange Options (``FLEX
Options'') Pilot Program Regarding Permissible Exercise Settlement
Values for FLEX Index Options).
\208\ Id.
---------------------------------------------------------------------------
The Exchange similarly proposes to align its open outcry process
for FLEX Equity Options with that of Non-FLEX Equity Options and to
establish a minimum time for responses to FOO Orders. The Exchange also
believes that, in addition to the required minimum time, it is
appropriate to continue to have Options Exchange Officials determine
whether Floor Participants have been provided a reasonable amount of
time to respond to a FOO Order, which is consistent with the current
procedure on the BOX Trading Floor for QOO Orders.\209\ The Options
Exchange Official will make this determination on a case-by-case basis
based on the current market conditions and trading activity on the
Trading Floor.\210\ Options Exchange Officials are employees of the
Exchange, reporting to the Chief Regulatory Officer, and are trained
and qualified to enforce the Exchange's rules. The Exchange believes
that Options Exchange Officials will ensure that FOO Orders follow the
Exchange's rules, including that FLEX Market Makers are provided a
reasonable amount of time to respond.\211\ FLEX Market Makers that do
not believe a reasonable amount of time to respond was provided may
appeal any related determination of an Options Exchange Official to the
Exchange's Chief Regulatory Officer.\212\ Additionally, Floor Brokers
have a general responsibility to use due diligence to cause orders to
be executed at the best price or prices available to them in accordance
with the Rules of the Exchange.\213\ Further, it shall be considered
conduct inconsistent with just and equitable principles of trade for
any Floor Broker to intentionally disrupt the open outcry process.\214\
Thus, the Exchange believes that the proposed process promotes just and
equitable principles of trade and removes impediments to and perfects
the mechanism of a free and open market and a national market system
because the proposed process provides substantially similar
opportunities for Floor Participants to respond to FOO Orders as an RFQ
process while maintaining consistency with existing Exchange processes
for transactions on the Trading Floor. As noted herein, the proposed
open outcry process is safeguarded by enforcement of the Exchange's
rules by Options Exchange Officials. The Exchange again notes that,
except for the inclusion of a minimum time period that a Floor Broker
must allow Floor Participants to respond to FOO Orders, the proposed
open outcry process for FOO Orders is similar to the current process
for QOO Orders. Therefore, the Exchange believes the proposal will
serve to avoid confusion
[[Page 88455]]
and increase efficiency on the BOX Trading Floor.
---------------------------------------------------------------------------
\209\ See supra note 158 (describing that the minimum time
period, which must be between three seconds and five minutes, will
be established by the Exchange and communicated via Regulatory
Notice).
\210\ The Exchange has a Minor Rule Violation Program (``MRVP'')
pursuant to Rule 12140 (Imposition of Fines for Minor Rule
Violations). The MRVP provides in part that improper vocalization of
a trade may result in sanction. See BOX Rule 12140.
\211\ See supra note 158 (describing that the minimum time
period, which must be between three seconds and five minutes, will
be established by the Exchange and communicated via Regulatory
Notice).
\212\ See BOX Rule 7640(e).
\213\ See BOX Rule 7570.
\214\ See BOX IM-7580-4.
---------------------------------------------------------------------------
Proposed Rule 7605(b) states that FOO Orders will be limited solely
to the Trading Floor. The Exchange believes that limiting FOO Orders to
the Trading Floor is consistent with the Act because, due to their
unique and customizable nature, FLEX Equity Option transactions are
well suited for a trading floor environment where the terms of such
options can be effectively negotiated. The Exchange notes that other
exchanges limit FLEX Equity Options trading to their respective trading
floors.\215\ To the extent the Exchange determines to adopt an
electronic mechanism for the trading of FLEX Equity Options, it will
file a subsequent proposed rule change with the Commission.
---------------------------------------------------------------------------
\215\ See NYSE American Rule 904G and NYSE Arca Rule 5.33-O and
PHLX Options 8, Section 34(c).
---------------------------------------------------------------------------
Proposed Rule 7605(c) provides that FLEX Market Makers must be
registered under Rule 8000 and must be Floor Market Makers in good
standing under Rule 8500, which protects investors and the public
interest by ensuring that Market Makers are qualified to perform their
duties, including filing an application, demonstrating knowledge of
FLEX Equity Options, and providing additional information as the
Exchange may consider necessary. The Exchange shall qualify at least
three FLEX Market Makers in accordance with a FLEX-specific
qualification process prescribed by the Exchange to provide competition
for FOO Orders and reasonable opportunities for Participants to get
quotes on FLEX Equity Options. The requirement to qualify at least
three FLEX Market Makers is designed to remove impediments to and
perfect the mechanism of a free and open market and a national market
system. Similarly to Floor Market Makers, FLEX Market Makers will also
be subject to Rule 8510, including provisions for the course and
conduct of dealings, class assignments, and option priority and parity,
unless otherwise specified in proposed Rule 7605.\216\ Specifically,
Rule 8510 provides that transactions of a Floor Market Maker should
constitute a course of dealings reasonably calculated to contribute to
the maintenance of a fair and orderly market, quoting obligations,
restrictions on trading in certain circumstances, and restrictions on
conduct related to the allocation of trades. These rules are designed
to protect investors and the public interest and are therefore
consistent with the Act.
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\216\ Pursuant to proposed Rule 7605(h), FLEX Market Makers have
an obligation to quote a FLEX Equity Option in response to any
request for quote by a Floor Broker or Options Exchange Official and
must provide a two-sided market.
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Proposed Rule 7605(d) states that FOO Orders may be Complex FOO
Orders or Multi-Leg FOO Orders, including as tied hedge orders, and
that these orders may be crossed.\217\ However, the priority provisions
of Rules 7240(b)(2) and (3) do not apply to Complex FOO Orders or
Multi-Leg FOO Orders because there will be no pre-established series
and no electronic trading.\218\ Further, only FLEX Equity Options on
the same underlying and of the same exercise style (American or
European) may be part of a Complex FOO Order or Multi-Leg FOO Order.
Additionally, if a Non-FLEX Equity Option series is added intra-day for
a component leg(s) of a Complex FOO Order or Multi-Leg FOO Order, the
holder or writer of a FLEX Equity Option position in the component
leg(s) resulting from such Complex FOO Order or Multi-Leg FOO Order
would be permitted to close its position(s) under the FLEX trading
procedures against another closing only FLEX Equity Option position for
the balance of the trading day on which the Non-FLEX Equity Option
series is added. If a Non-FLEX Equity Option series is added for a
component leg(s) of a Complex FOO Order or Multi-Leg FOO Order on a
trading day after the position is established, the holder or writer of
a FLEX Equity Option position in the component leg(s) resulting from
such Complex FOO Order or Multi-Leg FOO Order would be required to
execute separate FLEX Equity Option and Non-FLEX Equity Option
transactions to close its position(s), such that FLEX Equity Option
component leg(s) would trade under the FLEX trading procedures and Non-
FLEX Equity Option component leg(s) would trade subject to the non-FLEX
trading procedures and rules. These proposed rules are designed to
maintain order and structure, to detail the operation of Complex FOO
Order and Multi-Leg FOO Order trading on the Trading Floor, and are
similar to BOX's current Rule 7600(a)(4). The Exchange is proposing to
use similar procedures for the trading of Complex QOO Orders, multi-leg
QOO Orders, Complex FOO Orders, and Multi-Leg FOO Orders on the BOX
Trading Floor because it will reduce investor confusion and increase
efficiency. Additionally, offering order functionality such as Complex
FOO Orders, Multi-Leg FOO Orders, and tied hedge orders provides
investors with the flexibility and capability to meet their investment
and hedging objectives. For these reasons, the Exchange believes that
allowing Complex FOO Orders, Multi-Leg FOO Orders, and tied hedge
orders removes impediments to and perfects the mechanism of a free and
open market and a national market system and is therefore consistent
with the Act. The Exchange notes that another exchange allows complex
orders and tied hedge orders for FLEX Equity Options.\219\
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\217\ See proposed Rule 7605(d), proposed IM-7605-2(d) and
current IM-7600-2.
\218\ BOX Rules 7240(b)(2) and (3) provide priority provisions
for Complex Orders that take into consideration the prices of orders
on the BOX Book and the Complex Order Book. Because there will be no
BOX Book or Complex Book for Complex FOO Orders, there is no
priority of orders on the BOX Book or Complex Book applicable to
Complex FOO Orders. This is a distinction from Rule 7600(c), which,
for purposes of QOO Orders, excludes the priority rules for Complex
Orders contained in Rules 7240(b)(2) and (3) only from multi-leg QOO
Orders that are not Complex Orders.
\219\ See CBOE Rules 5.70(b) and 1.1 (definition of, ``Complex
Order'') (providing that the term ``complex order'' means an order
involving the concurrent execution of two or more different series
in the same underlying security or index (the ``legs'' or
``components'' of the complex order), for the same account,
occurring at or near the same time and for the purpose of executing
a particular investment strategy with no more than the applicable
number of legs (which number CBOE determines on a class-by-class
basis)). The Exchange notes that the term ``complex order'' on CBOE
includes both Complex Orders and Multi-Leg Orders, as those terms
are defined on BOX. See also CBOE Rule 5.87 Interpretations and
Policies .07 and Securities Exchange Act Release No. 93122
(September 24, 2021), 86 FR 54269 (September 30, 2021) (Order
Granting Approval of SR-CBOE-2021-041).
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Another provision designed to maintain order and structure on the
Trading Floor is the Exchange's proposal that FOO Orders entrusted to a
Floor Broker will be considered a Not Held Order, unless otherwise
specified by a Floor Broker's client.\220\ In particular, considering
orders as Not Held will aid Floor Brokers in their duties on the
Trading Floor because it provides clarity to both Floor Brokers and
their clients regarding how each order is to be handled. Additionally,
this rule is consistent with the current handling of QOO Orders on the
BOX Trading Floor which will avoid confusion, increase efficiency, and
ensure consistent treatment of orders on the Trading Floor. The
Exchange further believes that this proposed rule protects investors
and the public interest by clarifying order handling duties and
expectations between Floor Brokers and Participants.
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\220\ See proposed Rule 7605(l). See also NYSE Arca Rules 5.34-O
and 6.62-O(f).
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Additionally, the requirement, in proposed IM-7605-2, that
Participants disclose Public Customer Orders subject to crossing with
an order that is not a
[[Page 88456]]
Public Customer Order and all securities that are components of the
Public Customer Order is designed to maintain order and structure on
the Trading Floor.\221\ The rule also clarifies that Complex FOO
Orders, Multi-Leg FOO Orders, or tied hedge orders on opposite sides of
the market may be crossed subject to limitations.\222\ The Exchange
believes that providing clarity will remove impediments to and perfect
the mechanism of a free and open market and a national market system
and that full disclosure will prevent fraudulent and manipulative acts
and practices by providing complete information to Participants which
may prompt them to improve upon the Floor Broker's proposed crossing
price. Additionally, rules governing how long a response is in effect
and the effect of an established market on priority create order and
structure on the Trading Floor.\223\ The Exchange believes that such
order and structure protects investors and the public and notes that
the same rules apply to QOO Orders.\224\
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\221\ See proposed IM-7605-2(a) and (e).
\222\ See proposed IM-7605-2(d).
\223\ See proposed IM-7605-2(b) and (c).
\224\ See BOX IM-7600-1. The Exchanges notes that the portion of
IM-7600-1 that references BOX Book Priority is not included in
proposed IM-7605-2 because, as discussed, the BOX Book is not
available for transactions in FLEX Equity Options.
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Proposed Rule 7605(e) is designed to aid Floor Brokers in their
duties and to maintain structure and order on the Trading Floor. For
example, by providing that a FOO Order is not executed until it is
processed by the Trading Host,\225\ the Exchange is providing an
accurate timestamp of when the order was actually executed by the Floor
Broker and not just when it was submitted to the Exchange.\226\
Additionally, the process whereby Floor Brokers are required to
systematize orders in their systems is designed to provide a complete
and accurate audit trail and minimize the occurrence of disputes and
regulatory violations.\227\ After systematization, a Floor Broker's
system will then be required to send an order to the BOG. Further,
Floor Brokers are responsible for providing the correct allocations of
the initiating side of the FOO Order to an Options Exchange Official or
his or her designee, if necessary, after order execution.\228\ Floor
Brokers will also be required to ascertain that at least one FLEX
Market Maker is present in the Crowd Area prior to announcing a FOO
Order for execution, which is designed to increase competition for FLEX
Equity Option interest on the Trading Floor.\229\ The Exchange notes
that these rules are substantially similar to those currently in place
for QOO Orders on the BOX Trading Floor.\230\ The Exchange believes
that having substantially similar rules for all orders on the BOX
Trading Floor will avoid any potential confusion and increase
efficiency on the BOX Trading Floor, which will further the objectives
and goals of the Act by helping to prevent fraudulent and manipulative
acts and practices, promoting just and equitable principles of trade,
and removing impediments to and perfecting the mechanisms of a free and
open market and a national market system.
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\225\ See proposed Rule 7605(e)(2).
\226\ FOO Orders will be submitted by Floor Brokers to the BOG,
which is a component of the Trading Host. A Floor Broker will have a
connection to the BOG giving the Floor Broker the ability to submit
FOO Orders to the Trading Host.
\227\ In order to execute a FOO Order on the Trading Floor, it
must be sent from a Floor Broker's system to the BOG. This requires
that the Floor Broker adequately systematized the FOO Order prior to
announcing the FOO Order to the trading crowd. See proposed Rule
7605(b).
\228\ See proposed Rule 7605(j).
\229\ See proposed Rule 7605(e)(3).
\230\ See BOX Rule 7600(d)(4). See also BOX Rule 7580(a).
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FLEX Market Maker Requirements
The Exchange believes that the proposed rules applicable to FLEX
Market Makers are reasonable and will foster cooperation and
coordination with persons engaged in facilitating transactions in
securities, promote just and equitable principles of trade, and remove
impediments to and perfect the mechanism of a free and open market and
a national market system. Specifically, proposed Rules 7605(f), (g) and
(h) state: (1) that the minimum size for FLEX Equity Option
transactions and quotations shall be 1 contract; (2) that there are no
maximum bid to ask spread differentials for FLEX Equity Option quotes;
and (3) that FLEX Market Makers have an obligation to quote a FLEX
Equity Option in response to any request for quote by a Floor Broker or
Options Exchange Official and must provide a two-sided market.\231\ The
Exchange believes that these rules reflect the unique nature of FLEX
Equity Option trading which occurs relatively infrequently and with
option premiums that can vary widely because any exercise price (in
minimum increments of $0.01) and any expiration date on a business day
within 15 years of trade date may be traded.\232\ The Exchange believes
that these requirements strike a balance between the complexity of
quoting customized options and the need to ensure that Floor Brokers
are able to get a quote for any FLEX Equity Option selected by their
clients. Further, these requirements remove impediments to and perfect
the mechanism of a free and open market and a national market system by
ensuring that there is a procedure in place to receive a two-sided
quote for each FOO Order brought to the BOX Trading Floor. The Exchange
notes that these requirements are similar to those currently in place
at BOX and another options exchange.\233\
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\231\ See proposed Rules 7605(f)-(h).
\232\ See proposed Rule 5055(e).
\233\ See NYSE Arca Rules 5.32-O(b)(7) and 5.37-O(d) and BOX
Rule 8510(c)(2).
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Priority of Orders and Allocation of Trades
The Exchange believes that the proposed rule to provide a Floor
Broker with a guarantee or entitlement to cross 40% of the remaining
contracts of the original order, after all bids or offers at better
prices are filled, with other orders that he is holding,\234\ is
reasonable and is consistent with the Act. Specifically, proposed Rules
7605(i) and (k) will reward Floor Brokers who bring orders of an
eligible size determined by the Exchange but not less than 50 contracts
to the Exchange by guaranteeing them the ability to cross 40% of the
remaining contracts of those orders after any better priced interest
has been filled. The Exchange believes that establishing an eligible
size for such guarantee for at least 50 contracts will encourage larger
negotiated transactions while providing Floor Participants with a
reasonable opportunity to participate. The Exchange notes that other
options exchanges provide a guarantee for FLEX Equity Options on their
trading floors.\235\ Additionally, the Exchange
[[Page 88457]]
currently provides a similar guarantee with respect to QOO Orders
executed on the BOX Trading Floor.\236\ Allowing a similar guarantee
for QOO Orders and FOO Orders is intended to maintain consistency and
increase efficiency for the different order types offered on the BOX
Trading Floor. The Exchange believes that allowing a guarantee will
promote just and equitable principles of trade and remove impediments
to and perfect the mechanism of a free and open market and a national
market system by encouraging Floor Brokers to bring orders to the
Trading Floor while maintaining the ability of other Floor Participants
to participate in floor transactions and compete for such orders.
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\234\ See proposed Rules 7605(i) and (k).
\235\ See NYSE American Rule 904G(e)(iii) (providing that ``[i]n
the case of FLEX Equity Options only and notwithstanding [Rules
904G(e)(i) and (ii)], whenever the Submitting Member has indicated
an intention to cross or act as principal on the trade and has
matched or improved the BBO during the BBO Improvement Interval, the
Submitting Member will be permitted to execute the contra side of
the trade that is the subject of the Request for Quotes, to the
extent of at least 40% of the trade'') and PHLX Rule Options 8,
Section 34(c)(5) (``In the case of FLEX equity options only and
notwithstanding [Section 34(c)(4)], whenever the Requesting Member
has indicated an intention to cross or act as principal on the trade
and has matched or improved the BBO during the BBO Improvement
Interval, the Requesting Member will be permitted to execute the
contra side of the trade that is the subject of the RFQs, to the
extent of at least 40% of the trade, provided the order is a Public
Customer order or an order respecting the Requesting Member's firm
proprietary account.''). See also NYSE American Rule 904G(f) (``A
Submitting Member may effect crossing transactions only on public
customer orders or orders respecting the Submitting Member's firm
proprietary account.''). The Exchange notes differences between the
guarantees on NYSE American and PHLX and the guarantee on BOX.
First, neither PHLX nor NYSE American set an eligible order size and
BOX proposes an eligible order size, determined by the Exchange, of
50 or more contracts. Further, both NYSE American and PHLX require
the contra side of a crossing order subject to the 40% guaranteed
allocation to be either a Public Customer order or an order
respecting the submitting firm's proprietary account whereas BOX
does not impose such limitations. The Exchange notes that not
limiting contra side participant types is consistent with current
BOX rules on the Trading Floor for QOO Orders.
\236\ See BOX Rule 7600(f).
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The Exchange believes that, after the allocation of any bids and
offers at better prices and any eligible Floor Broker guarantee,
allocating FLEX Equity Option trades between Floor Participants
pursuant to the priority provisions of Rule 7610 is reasonable and
promotes just and equitable principles of trade. The Exchange notes
that, pursuant to Rule 7610, bids and offers are considered in order of
the highest bid/lowest offer and priority shall be afforded to such
bids and offers in the sequence in which they are made. In situations
where the sequence cannot be determined, Floor Participants are treated
on an equal basis and receive an equal number of contracts to the
extent mathematically possible.\237\ The Exchange believes that Rule
7610 is designed to be a fair and impartial method of trade allocation,
to promote competition between Floor Participants, and to encourage
quick responses of bids and offers at the best available prices.
Additionally, consistent and objective trade allocation on the BOX
Trading Floor may encourage FLEX Market Makers to provide liquidity
which may improve the quality of responses to FOO Orders. The Exchange
notes that Rule 7610 is currently applicable to QOO Orders on the BOX
Trading Floor \238\ and that other exchanges use a similar
procedure.\239\ Further, if interest remains after Floor Participants
that responded with interest receive their allocation, the remaining
quantity of the initiating side of the FOO Order will be allocated to
the executing Floor Broker. This allocation is designed to further
incentivize Floor Brokers after first allowing Floor Participants an
opportunity to participate in the trade.
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\237\ See BOX Rule 7610.
\238\ The Exchange notes that split-price priority applicable to
QOO Orders is not applicable to FOO Orders. Split-price priority
allows a Participant effecting a trade that betters the market to
have priority on the balance of that trade at the next pricing
increment, even if there are orders in the book at the same price.
BOX Book will not be applicable to FOO Orders and thus there is no
need for split-price priority. Accordingly, the Exchange does not
propose to adopt provisions analogous to Rule 7600(i), IM-7600-6, or
IM-7600-7 in proposed Rule 7605.
\239\ CBOE Rule 5.72(d)(2) provides that FLEX Orders are
allocated only to responses from the trading crowd pursuant to Rules
5.85(a)(1) and (2)(C). Rule 5.85(a)(1) provides that bids and offers
with the highest bid and lowest offer have priority and (2)(C)
establishes priority between in-crowd market participants at the
same price. The Exchange believes that these rules are similar to
BOX Rule 7610 and are appropriate for FLEX Equity Option trading.
But see NYSE Arca Rules 5.30-O(d) (providing that priority and order
allocation procedures for open outcry do not apply to FLEX Equity
Options) and 5.33-O (providing a RFQ procedure for FLEX transactions
including priority provisions that provide priority in certain
instances to FLEX Qualified Market Makers and limited priority to
the submitting firm if it has matched or improved the market on NYSE
Arca). As discussed herein, the Exchange does not believe that a RFQ
procedure is necessary for FLEX Equity Option trading on BOX.
Similarly, CBOE does not have a specific open outcry procedure for
FLEX transactions. See CBOE Rule 5.72(d) (providing that a
submitting FLEX Trader may represent and execute a FLEX Order on the
Exchange's trading floor in the same manner as a Trading Permit
Holder may represent and execute an order for a non-FLEX Option).
---------------------------------------------------------------------------
The Exchange believes that the proposed rule change to add certain
proposed rules as eligible for a minor rule fine disposition under its
MRVP will assist the Exchange in preventing fraudulent and manipulative
acts and practices and promoting just and equitable principles of
trade, and will serve to remove impediments to and perfect the
mechanism of a free and open market and a national market system, and,
in general, protect investors and the public interest. In particular,
the Exchange believes that the proposed rule changes to Rule 12140(e)
are consistent with Section 6(b)(6) of the Act,\240\ which provides
that members and persons associated with members shall be appropriately
disciplined for violation of the provisions of 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
noted, the proposed rule change adds certain rules as eligible for a
minor rule fine disposition under the Exchange's MRVP. The Exchange
believes violations of proposed Rules 7605 and 7605(h) to be minor in
nature and will be more appropriately disciplined through the
Exchange's MRVP, and therefore proposes to add them to the list of
rules in Rule 12140(e) eligible for a minor rule fine disposition. The
Exchange also believes that the proposed change is designed to provide
a fair procedure for the disciplining of members and persons associated
with members, consistent with Sections 6(b)(7) and 6(d) of the
Act.\241\ Rule 12140, currently and as amended, does not preclude a
Participant or person associated with or employed by a Participant from
contesting an alleged violation and receiving a hearing on the matter
with the same procedural rights through a litigated disciplinary
proceeding. Further, the Exchange will be able to carry out its
regulatory responsibility more quickly and efficiently by incorporating
these violations into the MRVP. The Exchange notes that these
violations are consistent with violations at other options
exchanges.\242\ The Exchange also notes that the proposed additional
violations are similar to minor rule violations already designated in
the Exchange's MRVP for activities related to the Trading Floor.
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\240\ 15 U.S.C. 78f(b)(6).
\241\ 15 U.S.C. 78f(b)(7) and 78f(d).
\242\ See, e.g., NYSE Arca Rule 10.12(h) and CBOE Rule
13.15(g)(9).
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In requesting the proposed additions to BOX Rule 12140(e), the
Exchange in no way minimizes the importance of compliance with Exchange
Rules and all other rules subject to the imposition of fines under the
MRVP. Minor rule fines provide a meaningful sanction for minor or
technical violations of rules when the conduct at issue does not
warrant stronger, immediately reportable disciplinary sanctions. The
inclusion of a rule in the Exchange's MRVP does not minimize the
importance of compliance with the rule, nor does it preclude the
Exchange from choosing to pursue violations of eligible rules through a
Letter of Consent if the nature of the violations or prior disciplinary
history warrants more significant sanctions. Rather, the Exchange
believes that the proposed rule change will strengthen the Exchange's
ability to carry out its oversight and enforcement responsibilities in
cases where full disciplinary proceedings are unwarranted in view of
the minor nature of the particular violation. Rather, the option to
impose a minor rule sanction gives the Exchange
[[Page 88458]]
additional flexibility to administer its enforcement program in the
most effective and efficient manner while still fully meeting the
Exchange's remedial objectives in addressing violative conduct.
Specifically, the proposed rule change is designed to prevent
fraudulent and manipulative acts and practices because it will provide
the Exchange the ability to issue a minor rule fine for violations
relating to FOO Orders and FLEX Market Maker quoting of FLEX Equity
Options where a more formal disciplinary action may not be warranted or
appropriate. Finally, the Exchange believes that the proposed rule
change will reinforce its surveillance and enforcement functions.
The Exchange believes that amending Rule 7620 and IM-7620-1 to
exclude FLEX Equity Options is consistent with proposed Rule 5055(c)
which provides that Rule 7620 shall not apply to transactions in FLEX
Equity Options. The amendment is designed to provide clarity by adding
FLEX Equity Options to the exclusion list in Rule 7620 and IM-7620-1 to
clarify that neither Cabinet orders nor Sub-Penny Cabinet orders will
be available for FLEX Equity Options. The Exchange believes further
that this amendment will protect investors and the public interest by
removing potential ambiguity between Rule 7620 and proposed Rules 5055
and 7605 and is therefore consistent with the Act.
Lastly, the amendment of Rule 100(b)(3) to remove specific rule
references is designed to clarify that all Exchange options
transactions shall be executed automatically by the Trading Host as
provided in applicable Exchange Rules. The Exchange believes that this
amendment will protect investors and the public interest by removing
potential ambiguity created by a list of specific rule references that
may not be complete and is therefore consistent with the Act.
The Exchange reiterates that FLEX Equity Options are currently
traded on four other options exchanges currently conducting options
trading.\243\ Therefore, the proposed rules perfect the mechanism of a
free and open market and protect investors and the public interest by
establishing FLEX Equity Options and FOO Orders on the BOX Trading
Floor, which would provide market participants an additional execution
venue to provide and seek liquidity for their customized orders,
thereby increasing the opportunities to execute such orders to the
benefit of all market participants.
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\243\ FLEX options are currently traded on CBOE, NYSE American,
NYSE Arca, and PHLX.
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Section 11(a) Analysis
The proposed rule change is consistent with Section 11(a) of the
Act and the rules thereunder. Section 11(a)(1) of the Act \244\
prohibits a member of a national securities exchange from effecting
transactions on that exchange for its own account, the account of an
associated person, or an account over which it or its associated person
exercises investment discretion (collectively, ``covered accounts''),
unless an exception applies. Sections 11(a)(1)(A)-(I) of the Act \245\
and the rules thereunder provide certain exemptions from this general
prohibition, including the exemption set forth in Rule 11a2-2(T) under
the Act.\246\ The proposed rule change would not limit in any way the
obligation of a Participant, while acting as a Floor Broker or
otherwise, to comply with Section 11(a) of the Act or the rules
thereunder.\247\
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\244\ 15 U.S.C. 78k(a)(1).
\245\ 15 U.S.C. 78k(a)(1)(A)-(I).
\246\ 17 CFR 240.11a2-2(T).
\247\ A Floor Broker may utilize the Trading Floor to effect a
transaction for a covered account only pursuant to Rule 7540 and for
purposes of liquidating error positions.
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As described above, the Exchange proposes to apply existing IM-
7600-5 to FLEX Equity Options,\248\ which states that a Participant
shall not utilize the Trading Floor to effect any transaction for a
covered account by relying on the G Exemption.\249\ Because no covered
account transactions utilizing the Trading Floor may rely on the G
Exemption, Participants utilizing the Trading Floor to effect
transactions for covered accounts may only rely upon other exemptions
to the Section 11(a)(1) prohibition.\250\
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\248\ See proposed Rule 5055(c) (stating that IM-7600-5 shall
apply to FLEX Equity Options).
\249\ 15 U.S.C. 78k(a)(1)(G). Section 11(a)(1)(G) of the Act
provides an exemption from the general prohibition in Section
11(a)(1) of the Act for any transaction for a member's own account,
provided that: (i) such member is primarily engaged in the business
of underwriting and distributing securities issued by other persons,
selling securities to customers, and acting as broker, or any one or
more of such activities, and whose gross income normally is derived
principally from such business and related activities; and (ii) such
transaction is effected in compliance with rules of the Commission
which, as a minimum, assure that the transaction is not inconsistent
with the maintenance of fair and orderly markets and yields
priority, parity, and precedence in execution to orders for the
account of persons who are not members or associated with members of
the exchange. See also 17 CFR 240.11a1-1(T) (setting forth
requirements for relying on the G Exemption).
\250\ Section 11(a) of the Act and the rules thereunder provide
other exemptions to the Section 11(a)(1) prohibition, including, for
example, the ``effect versus execute'' exemption (as discussed
below), the exemption for transactions by a dealer acting in the
capacity of a market maker, and the exemption for transactions to
offset a transaction made in error.
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In addition to statutory exemptions, Rule 11a2-2(T) under the
Act,\251\ known as the ``effect versus execute'' rule, provides
Participants with an exemption from the Section 11(a)(1) prohibition.
Rule 11a2-2(T) permits a Participant, subject to certain conditions, to
effect transactions for covered accounts by arranging for an
unaffiliated Participant, acting as a Floor Broker, to execute
transactions on the Exchange. To comply with Rule 11a2-2(T)'s
conditions, the initiating Participant: (i) must transmit the order
from off the Trading Floor; (ii) may not participate in the execution
of the transaction once the order has been transmitted to the
Participant performing the execution; \252\ (iii) may not be affiliated
with the executing Participant; and (iv) with respect to an account
over which the Participant or an associated person has investment
discretion, neither the Participant nor an associated person may retain
any compensation in connection with effecting the transaction except as
provided in the Rule. For the reasons set forth below, the Exchange
be
[…truncated; see source link]Indexed from Federal Register on December 21, 2023.
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.