80_FR_51786 80 FR 51622 - Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to Surveillance Agreements

80 FR 51622 - Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to Surveillance Agreements

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 80, Issue 164 (August 25, 2015)

Page Range51622-51626
FR Document2015-20930

Federal Register, Volume 80 Issue 164 (Tuesday, August 25, 2015)
[Federal Register Volume 80, Number 164 (Tuesday, August 25, 2015)]
[Notices]
[Pages 51622-51626]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-20930]



[[Page 51622]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-75733; File No. SR-BX-2015-053]


Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of 
Filing and Immediate Effectiveness of Proposed Rule Change Relating to 
Surveillance Agreements

August 19, 2015.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given 
that on August 17, 2015, NASDAQ OMX BX, Inc. (``BX'' or ``Exchange'') 
filed with the Securities and Exchange Commission (``SEC'' or 
``Commission'') the proposed rule change as described in Items I and II 
below, which Items have been prepared by the Exchange. The Commission 
is publishing this notice to solicit comments on the proposed rule 
change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of the 
Substance of the Proposed Rule Change

    The Exchange proposes to amend Chapter IV, Section 3 (Criteria for 
Underlying Securities) of the rules governing the BX Options Market 
(``BX Options'') \3\ to allow the listing of options overlying 
Exchange-Traded Fund Shares (``Fund Shares'') that are listed pursuant 
to generic listing standards on equities exchanges for series of 
Portfolio Depository Receipts and Index Fund Shares (collectively known 
as ``ETFs'') based on international or global indexes, pursuant to 
which a comprehensive surveillance agreement \4\ is not required.
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    \3\ The Exchange, NASDAQ OMX PHLX LLC (``Phlx''), and The NASDAQ 
Stock Market LLC (``NASDAQ'') are self-regulatory organizations 
(``SROs'') that are wholly owned subsidiaries of The NASDAQ OMX 
Group, Inc. (the ``Group'').
    \4\ Surveillance agreements are also referred to in Exchange 
rules as ``surveillance sharing agreements'' or ``comprehensive 
surveillance sharing agreements'' (``CSSA''). See, e.g., BX Options 
Chapter IV, Sections 3 and 4 and BX Options Chapter XIV, Sections 3 
and 6.
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    The text of the proposed rule change is available on the Exchange's 
Web site at http://nasdaqomxbx.cchwallstreet.com/, at the principal 
office of the Exchange, and at the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item IV below. The Exchange has prepared summaries, set forth in 
sections A, B, and C below, of the most significant aspects of such 
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to amend BX Options Chapter IV, Section 3 to 
allow the listing of options overlying ETFs \5\ that are listed 
pursuant to generic listing standards on equities exchanges for series 
of ETFs based on international or global indexes, pursuant to which a 
comprehensive surveillance agreement is not required.\6\
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    \5\ ETFs are also referred to in Exchange rules as ``Fund 
Shares.'' See, e.g., BX Options Chapter IV, Sections 3 and 6.
    \6\ NASDAQ is the principal exchange within the Group for 
listing ETFs. NASDAQ has generic listing standards for Portfolio 
Depository Receipts (``PDRs'') and Index Fund Shares (``IFSs''). See 
NASDAQ Rule 5705(b)(3)(A)(ii) regarding IFSs and 5705(a)(3)(A)(ii) 
regarding PDRs (IFSs and PDRs are together known as ETFs in NASDAQ 
Rule 5705). See also NYSE MKT Rule 1000 Commentary .03(a)(B); NYSE 
Arca Equities Rule 5.2(j)(3) Commentary .0l(a)(B); and BATS Rule 14. 
11(b)(3)(A)(ii).
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    This proposal is based on a recent immediately effective filing of 
Phlx that added exactly the same language as proposed herein, as well 
as that of other exchanges,\7\ and serves to align the rules of Phlx 
and the Exchange and other markets. Adding the proposed language to BX 
Options Chapter IV, Section 3(i) will enable the Exchange to list and 
trade options on ETFs without a CSSA provided that the underlying ETF 
is listed on an equities exchange pursuant to the generic listings 
standards that do not require a CSSA pursuant to Rule 19b-4(e) of the 
Exchange Act.\8\
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    \7\ See Securities Exchange Act Release No. 74553 (March 20, 
2015), 80 FR 16072 (March 26, 2015) (SR-Phlx-2015-27) (notice of 
filing and immediate effectiveness to amend Phlx Rule 1009). See 
also Securities Exchange Act Release No. 74509 (March 13, 2015), 80 
FR 14425 (March 19, 2015) (SR-MIAX-2015-04) (order approving 
proposal to amend MIAX Rule 402). The language proposed in these 
Phlx and MIAX filings, as also the language proposed in this 
proposal, is similar in all material respects. Other exchanges have 
submitted similar immediately effective filings. See, e.g., 
Securities Exchange Act Release Nos. 75132 (June 9, 2015), 80 FR 
34175 (June 15, 2015) (SR-BOX-2015-21); 74832 (April 29, 2015), 80 
FR 25738 (May 5, 2015) (SR-ISE-2015-16); 75296 (June 25, 2015), 80 
FR 37692 (July 1, 2015) (SR-CBOE-2015-052); and 75440 (July 13, 
2015), 80 FR 42587 (July 17, 2015) (SR-NYSEArca-2015-60).
    \8\ 17 CFR 240.19b-4(e).
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    Rule 19b-4(e) provides that the listing and trading of a new 
derivative securities product by an SRO shall not be deemed a proposed 
rule change, pursuant to paragraph (c)(l) of Rule 19b-4 \9\ if the 
Commission has approved, pursuant to Section 19(b) of the Act,\10\ the 
SRO's trading rules, procedures and listing standards for the product 
class that would include the new derivatives securities product, and 
the SRO has a surveillance program for the product class.\11\ This 
proposal allows the Exchange to list and trade options on ETFs based on 
international or global indexes that meet the generic listing 
standards.\12\
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    \9\ 17 CFR 240.19b-4(c)(1).
    \10\ 15 U.S.C. 78s(b).
    \11\ When relying on Rule 19b-4(e), the SRO must submit Form 
19b-4(e) to the Commission within five business days after the SRO 
begins trading the new derivative securities products. See 
Securities Exchange Act Release No. 40761 (December 8, 1998), 63 FR 
70952 (December 22, 1998).
    \12\ See NASDAQ Rule 5705(a)(3)(A)(ii) and (b)(3)(A)(ii); NYSE 
MKT Rule 1000, Commentary .03(a)(B); NYSE Arca Equities Rule 
5.20)(3) [sic], Commentary .01(a)(B); and BATS Rule 
14.11(b)(3)(A)(ii).
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The Surveillance Agreement Requirement for Options on Exchange-Traded 
Funds
    The surveillance agreement requirement (also known as the 
``requirement'' or ``regime'') was initially put into effect on Phlx, 
which is the oldest options exchange within the Group, for options on 
ETFs well over a decade ago but has proven to have anti-competitive 
effects that are detrimental to investors.\13\ Specifically, the 
requirement limits the investing public's ability to hedge risk or 
engage in options strategies that may be afforded to other investors in 
domestic securities.\14\
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    \13\ See Securities Exchange Act Release No. 43921 (February 2, 
2001), 66 FR 9739 (February 9, 2001)(SR-Phlx-2000-107) (notice of 
filing and approval order regarding trading of options on ETFs with 
surveillance agreements) (the ``ETF approval order''). The changes 
proposed herein relate only to surveillance agreements for options 
on global or international ETFs.
    \14\ Moreover, as noted below the surveillance agreement 
requirement is present for the derivative options on ETFs but not 
for the underlying ETFs.
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    The Exchange allows for the listing and trading of options on ETFs. 
BX Options Chapter IV, Section 3(i) provides the listings standards for 
options on ETFs, which includes ETFs with non-U.S. component 
securities,

[[Page 51623]]

such as ETFs based on international or global indexes. Currently, BX 
Options Chapter IV, Section 3(i) regarding options on ETFs has a three-
level surveillance agreement requirement (reproduced in relevant part):
    (i) Any non-U.S. component stocks of the index or portfolio on 
which the Fund Shares are based that are not subject to comprehensive 
surveillance agreements do not in the aggregate represent more than 50% 
of the weight of the index or portfolio;
    (ii) stocks for which the primary market is in any one country that 
is not subject to a comprehensive surveillance agreement do not 
represent 20% or more of the weight of the index;
    (iii) stocks for which the primary market is in any two countries 
that are not subject to comprehensive surveillance agreements do not 
represent 33% or more of the weight of the index.\15\
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    \15\ See BX Options Chapter IV, Section 3(i)i.-iii., which is 
re-numbered as BX Options Chapter IV, Section 3(i)i.(1)-(3). For 
consistency, BX Options Chapter IV, Section 3(i)iv.-vi. is re-
numbered BX Options Chapter IV, Section 3(i)ii.-iv.
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    The Exchange proposes to modify the surveillance agreement 
requirement for options on ETFs that are listed pursuant to generic 
listing standards for series of ETFs, based on international or global 
indexes--for which case a comprehensive surveillance agreement is not 
required.
    When the surveillance agreement requirement was instituted in 2001 
on Phlx as discussed, ETFs were, comparatively speaking, in a 
developmental state.\16\ The first ETF introduced in 1993 was a broad-
based domestic equity fund tracking the S&P 500 index. The development 
of ETF products was very limited during the first decade of their 
existence, such that at the end of 2001, there was a total of only 102 
ETFs listed on U.S. markets. Since 2001, however, the ETF market has 
matured tremendously and grown exponentially, such that at the end of 
2012 there were a total of 1,194 listed ETFs.\17\ Many of these are 
very well known, highly traded and liquid products, such as, for 
example, SPDR S&P 500 Trust ETF (SPY), iShares MSCI Emerging Markets 
ETF (EEM), and PowerShares QQQ Trust, Series 1 ETF (QQQ), that market 
participants from institutional to retail and public investors have 
been using for trading, hedging, and investing purposes with varying 
timelines.\18\ The ETF market is one of the most highly-developed, 
sophisticated markets that provide traders and investors the 
opportunity to access practically all industries and enterprises. In 
2012 investor demand for ETFs in all asset classes increased 
substantially. And in 2011 the demand for global and international 
equity ETFs, to which the requirement applies, more than doubled.\19\ 
The Exchange believes that the surveillance agreement requirement no 
longer serves a necessary (or indispensable) function in today's highly 
developed ETF market,\20\ and actually creates a dynamic that 
negatively impacts the number of markets that can competitively trade 
ETF option products, to the detriment of market participants.
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    \16\ See Securities Exchange Act Release No. 43921 (February 2, 
2001), 66 FR 9739 (February 9, 2001) (SR-Phlx-2000-107) (ETF 
approval order).
    \17\ http://www.icifactbook.org/fb_ch3.html.
    \18\ These can be from intraday exposure (e.g., using Daily S&P 
500 Bear 3x Shares (SPXS)) to long-term 401(k) or retirement fund 
exposure (e.g., using SPY).
    \19\ http://www.icifactbook.org/fb_ch3.html.
    \20\ ETFs and ETPs listed in the United States gathered $24.6 
billion USD in net new assets in June 2014 which, when combined with 
positive market performance, pushed the ETF/ETP industry in the 
United States to a new record high of $1.86 trillion USD invested in 
1,613 ETFs/ETPs, from 58 providers listed on 3 exchanges. And 
according to ETFGI, an independent ETF/ETP research and consultancy 
firm in the U.K., ETFs and ETPs listed globally reached $2.64 
trillion USD in assets, a new record high, at the end of Q2 2014. 
http://www.mondovisione.com/media-and-resources/news/according-to-etfgi-etfs-and-etps-listed-globally-reached-us264-trillion-in-as/.
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    The current surveillance requirement has, at times, resulted in the 
investing public having to forego the opportunity to hedge risk or 
engage in other listed options strategies in a competitive environment. 
ETFs may lack active options contracts that would be more likely to 
develop if multiple exchanges could compete to offer and promote them. 
For example, an investor in the iShares MSCI Indonesia ETF (EIDO) is 
not permitted to sell call options or purchase protective puts simply 
because the Exchange cannot obtain a surveillance agreement with Bursa 
Efek Indonesia. However, an investor in iShares MSCI Emerging Markets 
Fund (EEM) is afforded the right to engage in listed options trading to 
hedge risk or execute other beneficial options strategies. Both 
underlying exchange-traded funds, EIDO and EEM, are listed for trading 
in the U.S., subject to constant regulatory scrutiny, and permitted to 
be purchased and sold via registered broker/dealers, yet, options can 
now be offered only on EEM. The Exchange believes this disparate 
treatment between investors of foreign-based instruments, especially 
between those that buy and sell options contracts on ETFs, which 
currently require surveillance agreements, as opposed to those that buy 
and sell shares of the underlying ETFs, which currently do not have the 
same onerous surveillance agreement requirement that ETF options 
have,\21\ is not in the best interest of market participants. The 
Exchange therefore proposes to establish that options on generically-
listed global or international ETFs would not require surveillance 
agreements for listing.
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    \21\ While the surveillance agreement requirement for options on 
ETFs found in BX Options Chapter IV, Section 3(i) (see note 15 and 
related text) has resulted in significant negative implications for 
market participants, there is no such surveillance agreement 
requirement for the underlying ETFs. In particular, when looking to 
the rules of NASDAQ, the primary ETF listing venue in the Group, 
NASDAQ Rules 5705 regarding ETFs and 5735 regarding Managed Fund 
Shares (``MFSs'') have no explicit requirements concerning 
surveillance agreements for regularly listed (non-generic) ETFs and 
MFSs, and simply state that FINRA will implement written 
surveillance procedures. Section 19(b)(2) filings regarding ETFs and 
MFSs typically indicate that the Exchange may obtain information 
regarding trading in the shares from FINRA and markets and other 
entities that are members of the Intermarket Surveillance Group 
(``ISG''), which includes securities and futures exchanges, or with 
which the Exchange has in place a surveillance agreement (which is 
not required by rule). Regarding ETFs and MFSs listed pursuant to 
generic (19b-4(e)) standards and reviewed and approved for trading 
under Section 19(b)(2) of the Act, Rule 5705 simply notes that the 
Commission's approval order may reference surveillance sharing 
agreements with respect to non-U.S. component stocks.
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    The current surveillance agreement requirements, as well as all 
other requirements to list options on ETFs,\22\ are not affected by 
this proposal and will continue to remain in place for options on ETFs 
that do not meet generic listing standards on equities exchanges for 
ETFs based on international and global indexes.
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    \22\ For purposes of brevity, these other requirements are not 
set forth, but can be found in BX Options Chapter IV, Section 3(i).
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Generic Listing Standards for Exchange-Traded Funds
    The Exchange notes that the Commission has previously approved 
generic listing standards pursuant to Rule 19b-4(e) of the Exchange Act 
\23\ for ETFs based on indexes that consist of stocks listed on U.S. 
exchanges including NASDAQ, the ETF listing exchange within the 
Group.\24\ In general, the criteria for the underlying component 
securities in the international and global indexes are similar to those 
for the domestic indexes, but with modifications as appropriate for the 
issues and risks associated with non-U.S. securities.
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    \23\ 17 CFR 240.19b-4(e).
    \24\ See Securities Exchange Act Release No. 54739 (November 9, 
2006), 71 FR 66993 (November 17, 2006) (SR-Amex-2006-78) (initial 
order relating to generic listing standards for ETFs based on 
international or global indexes). See also NASDAQ Rule 
5705(a)(3)(A)(ii) and (b)(3)(A)(ii).
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    In addition, the Commission has previously approved proposals for 
the

[[Page 51624]]

listing and trading of options on ETFs based on international indexes 
as well as global indexes (e.g., based on non-U.S. and U.S. component 
stocks).\25\ In approving ETFs for equities exchange trading, the 
Commission thoroughly considered the structure of the ETFs, their 
usefulness to investors and to the markets, and SRO rules that govern 
their trading. The Exchange believes that allowing the listing of 
options overlying ETFs that are listed pursuant to the generic listing 
standards on equities exchanges for ETFs based on international and 
global indexes and applying Rule 19b-4(e) \26\ should fulfill the 
intended objective of that rule by allowing options on those ETFs that 
have satisfied the generic listing standards to commence trading, 
without the need for the public comment period and Commission approval. 
The proposed rule has the potential to reduce the time frame for 
bringing options on ETFs to market, thereby reducing the burdens on 
issuers and other market participants. The failure of a particular ETF 
to comply with the generic listing standards under Rule 19b-4(e) \27\ 
would not, however, preclude the Exchange from submitting a separate 
filing pursuant to Section 19(b)(2),\28\ requesting Commission approval 
to list and trade options on a particular ETF. Moreover, the Exchange 
notes that the generic standards such as those in proposed BX Options 
Chapter IV, Section 3(i) are not new in the options world, and have 
been used extensively for listing options on narrow-based and broad-
based indexes.\29\
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    \25\ See, e.g., Securities Exchange Act Release Nos. 57013 
(December 20, 2007), 72 FR 73923 (December 28, 2007) (SR-CBOE-2007-
140) (approval order to list and trade options on iShares MSCI 
Mexico Index Fund, when CBOE did not have in place a surveillance 
agreement with the Bolsa Mexicana de Valores (the ``Bolsa'')); 57014 
(December 20, 2007), 72 FR 73934 (December 28, 2007) (SR-ISE-2007-
111) (approval order to list and trade options on iShares MSCI 
Mexico Index Fund, when ISE did not have in place a surveillance 
agreement with the Bolsa); 56778 (November 9, 2007), 72 FR 65113 
(November 19, 2007) (SR-AMEX-2007-100) (approval order to list and 
trade options on iShares MSCI Mexico Index Fund, when AMEX did not 
have in place a surveillance agreement with the Bolsa); and 55648 
(April 19, 2007), 72 FR 20902 (April 26, 2007) (SR-AMEX-2007-09) 
(approval order to list and trade options on Vanguard Emerging 
Markets ETF, when AMEX did not have in place a surveillance 
agreement with the Bolsa). See also Securities Exchange Act Release 
Nos. 50189 (August 12, 2004), 69 FR 51723 (August 20, 2004) (SR-
AMEX-2004-05) (approving the listing and trading of certain Vanguard 
International Equity Index Funds); and 44700 (August 14, 2001), 66 
FR 43927 (August 21, 2001) (SR-AMEX-2001-34) (approving the listing 
and trading of series of the iShares Trust based on foreign stock 
indexes).
    \26\ 17 CFR 240.19b-4(e).
    \27\ Id.
    \28\ 15 U.S.C. 78s(b)(2).
    \29\ BX Options Chapter IV, Sections 3 and 6 have, for example, 
weighting, capitalization, trading volume, and minimum number of 
components standards for listing options on broad-based and narrow-
based indexes. For a definition of broad-based index (market index) 
and narrow-based index (industry index), see NOM Chapter XIV, 
Sections 2(k) and (j), respectively.
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Requirements for Listing and Trading Options Overlying ETFs Based on 
International and Global Indexes
    Options on ETFs listed pursuant to these generic standards for 
international and global indexes would be traded, in all other 
respects, under the Exchange's existing trading rules and procedures 
that apply to options on ETFs and would be covered under the Exchange's 
surveillance program for options on ETFs.
    Pursuant to proposed BX Options Chapter IV, Section 3(i), the 
Exchange may list and trade options on an ETF without a CSSA provided 
that the ETF is listed pursuant to generic listing standards for ETFs 
based on international or global indexes, in which case a comprehensive 
surveillance agreement is not required. As noted, one such rule, which 
discusses things such as weighting, capitalization, trading volume, 
minimum number of components, and where components are listed, is 
NASDAQ Rule 5705(b)(3)(A)(ii) regarding ETFs (IFSs and PDRs).\30\ The 
Exchange believes that these generic listing standards are intended to 
ensure that securities with substantial market capitalization and 
trading volume account for a substantial portion of the weight of an 
index or portfolio.
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    \30\ NASDAQ Rule 5705(b)(3)(A)(ii) regarding IFSs, for example, 
has the following requirements (reproduced in relevant part): a. 
Component stocks (excluding Derivative Securities Products) that in 
the aggregate account for at least 90% of the weight of the index or 
portfolio (excluding Derivative Securities Products) each shall have 
a minimum market value of at least $100 million; b. component stocks 
(excluding Derivative Securities Products) that in the aggregate 
account for at least 70% of the weight of the index or portfolio 
(excluding Derivative Securities Products) each shall have a minimum 
worldwide monthly trading volume of at least 250,000 shares, or 
minimum global notional volume traded per month of $25,000,000, 
averaged over the last six months; c. the most heavily weighted 
component stock (excluding Derivative Securities Products) shall not 
exceed 25% of the weight of the index or portfolio, and, to the 
extent applicable, the five most heavily weighted component stocks 
(excluding Derivative Securities Products) shall not exceed 60% of 
the weight of the index or portfolio; d. the index or portfolio 
shall include a minimum of 20 component stocks; provided, however, 
that there shall be no minimum number of component stocks if either 
one or more series of Index Fund Shares or Portfolio Depositary 
Receipts constitute, at least in part, components underlying a 
series of Index Fund Shares, or one or more series of Derivative 
Securities Products account for 100% of the weight of the index or 
portfolio; and e. each U.S. Component Stock shall be listed on a 
national securities exchange and shall be an NMS Stock as defined in 
Rule 600 of Regulation NMS under the Act, and each Non-U.S. 
Component Stock shall be listed and traded on an exchange that has 
last-sale reporting. NASDAQ Rule 5705(a)(3)(A)(ii) has similar 
standards, but tailored for PDRs.
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    The Exchange believes that this proposed listing standard for 
options on ETFs is reasonable for international and global indexes, 
and, when applied in conjunction with the other listing requirements, 
will result in options overlying ETFs that are sufficiently broad in 
scope and not readily susceptible to manipulation. The Exchange also 
believes that allowing the Exchange to list options overlying ETFs that 
are listed on equities exchanges pursuant to generic standards for 
series of ETFs based on international or global indexes under which a 
CSSA is not required, will result in options overlying ETFs that are 
adequately diversified in weighting for any single security or small 
group of securities to significantly reduce concerns that trading in 
options overlying ETFs based on international or global indexes could 
become a surrogate for trading in unregistered securities.\31\
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    \31\ The Exchange also notes that not affording retail investors 
the ability to trade on a regulated exchange can be detrimental. 
While products can be traded off exchange in the over the counter 
(``OTC'') market, which has increased settlement, clearing, and 
market risk as opposed to exchanges, the relatively unregulated OTC 
market is usually not a viable option for retail and public 
investors.
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    The Exchange believes that ETFs based on international and global 
indexes that have been listed pursuant to the generic standards are 
sufficiently defined so as to make options overlying such ETFs not 
susceptible instruments for manipulation. The Exchange believes that 
the threat of manipulation is, as discussed below, sufficiently 
mitigated for underlying ETFs that have been listed on equities 
exchanges pursuant to generic listing standards for series of ETFs 
based on international or global indexes under which a comprehensive 
surveillance agreement is not required and for the overlying options; 
the Exchange does not see the need for a CSSA to be in place before 
listing and trading options on such ETFs. The Exchange notes that its 
proposal does not replace the need for a CSSA as provided in current BX 
Options Chapter IV, Section 3(i). The provisions of Section 3(i), 
including the need for a CSSA, remain materially unchanged and will 
continue to apply to options on ETFs that are not listed on an equities 
exchange pursuant to generic listing standards for series of

[[Page 51625]]

ETFs based on international or global indexes pursuant to which a CSSA 
is not required. Instead, proposed BX Options Chapter IV, Section 3(i) 
adds an additional listing mechanism for certain qualifying options on 
ETFs to be listed on the Exchange.
    Finally, to account for proposed BX Options Chapter IV, Section 
3(i) and make Section 3 easier to follow, the Exchange proposes 
technical changes to the formatting of this section of the rule. Thus, 
the Exchange proposes re-numbering BX Options Chapter IV, Section 
3(i)i.-iii to BX Options Chapter IV, Section 3(i)i.(1)-(3), 
respectively. And, for consistency, the Exchange proposes re-numbering 
BX Options Chapter IV, Section 3(i)iv.-vi. to BX Options Chapter IV, 
Section 3(i)ii.-iv., respectively. This is merely re-numbering and 
there are no changes to the language of these parts of Section 3(i).
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act \32\ in general, and furthers the objectives of Section 
6(b)(5) of the Act \33\ in particular, in that it is designed to 
promote just and equitable principles of trade, to remove impediments 
to and perfect the mechanism of a free and open market and a national 
market system, and, in general to protect investors and the public 
interest. In particular, the proposed rule change has the potential to 
reduce the time frame for bringing options on ETFs to market, thereby 
reducing the burdens on issuers and other market participants. The 
Exchange also believes that enabling the listing and trading of options 
on ETFs pursuant to this proposed new listing standard will benefit 
investors by providing them with valuable risk management tools. The 
Exchange notes that its proposal does not replace the need for a CSSA 
as provided in BX Options Chapter IV, Section 3(i). The provisions of 
current Section 3(i), including the need for a CSSA, remain materially 
unchanged and will continue to apply to options on ETFs that are not 
listed on an equities exchange pursuant to generic listing standards 
for series of ETFs based on international or global indexes under which 
a comprehensive surveillance agreement is not required. Instead, 
proposed BX Options Chapter IV, Section 3(i) adds an additional listing 
mechanism for certain qualifying options on ETFs to be listed on the 
Exchange in a manner that is designed to prevent fraudulent and 
manipulative acts and practices, to promote just and equitable 
principles of trade, to foster cooperation and coordination with 
persons engaged in facilitating transactions in securities, to remove 
impediments to and perfect the mechanisms of a free and open market and 
a national market system and, in general, to protect investors and the 
public interest.
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    \32\ 15 U.S.C. 78f(b).
    \33\ 15 U.S.C. 78f(b)(5).
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    The proposal would promote just and equitable principles of trade. 
When the surveillance agreement requirement was instituted as discussed 
in 2001 on Phlx, the oldest options exchange in the Group, ETFs were, 
comparatively speaking, in a developmental state.\34\ The first ETF 
introduced in 1993 was a broad-based domestic equity fund tracking the 
S&P 500 index. After the introduction of the first ETF in 1993, the 
development of ETF products was very limited during the first decade of 
their existence. Since the end of 2001, when there was a total of only 
102 ETFs listed on U.S. markets, however, the ETF market has matured 
tremendously and grown exponentially. With a total of 1,194 listed ETFs 
at the end of 2012, the ETF market is now one of the most highly-
developed, sophisticated markets with many very well known, highly 
traded and liquid products that provide traders and investors the 
opportunity to access practically all industries and enterprises. While 
investor demand for ETFs in all asset classes increased substantially, 
in 2011 the demand for global and international equity ETFs, to which 
the requirement applies, more than doubled.\35\ The Exchange believes 
that the current surveillance requirement no longer serves a necessary 
function in today's highly developed market, and, as discussed, 
actually creates a dynamic that negatively impacts the number of 
markets that can competitively trade ETF option products. This hurts 
market participants. The Exchange therefore proposes to establish that 
pursuant to proposed BX Options Chapter IV, Section 3(i) options may be 
listed on certain ETFs that are based on global and international funds 
and meet generic listing standards.
---------------------------------------------------------------------------

    \34\ See Securities Exchange Act Release No. 43921 (February 2, 
2001), 66 FR 9739 (February 9, 2001) (SR-Phlx-2000-107) (ETF 
approval order).
    \35\ http://www.icifactbook.org/fb_ch3.html.
---------------------------------------------------------------------------

    The proposal would in general protect investors and the public 
interest. The Exchange believes that modifying the surveillance 
agreement requirement for ETFs would not hinder the Exchange from 
performing surveillance duties designed to protect investors and the 
public interest. There are various data consolidators, vendors, and 
outlets that can be used to access data and information regarding ETFs 
and the underlying securities (e.g., Bloomberg, Dow Jones, FTEN). In 
addition, firms that list ETFs on an exchange receive vast amounts of 
data relevant to their products that could be made available to listing 
exchanges as needed. The Exchange has access to the activity of the 
direct underlying instrument and the ETF, and through the Intermarket 
Surveillance Group (``ISG'') the Exchange can obtain such information 
related to the underlying security as needed.\36\ Moreover, other than 
the surveillance agreement requirement there are, as discussed, 
numerous requirements that must be met to list options on ETFs on the 
Exchange.
---------------------------------------------------------------------------

    \36\ See https://www.isgportal.org/home.html. Another global 
organization similar to ISG is The International Organization of 
Securities Commissions (``IOSCO'').
---------------------------------------------------------------------------

    The proposal would remove impediments to and perfect the mechanism 
of a free and open market and a national market system. Multiple 
listing of ETFs, options, and other securities and competition are some 
of the central features of the current national market system. The 
Exchange believes that the surveillance agreement requirement has led 
to clearly anti-competitive results in a market that is based on 
competition. As such, the Exchange believes that the surveillance 
agreement requirement for options on certain ETFs is no longer 
necessary and proposes new BX Options Chapter IV, Section 3(i). The 
proposed rule change will significantly benefit market participants. As 
discussed at length, the proposed rule will negate the negative anti-
competitive effect of the current surveillance agreement requirement 
that has resulted in de facto regulatory monopolies where only solitary 
exchanges, or only a few exchanges, are able to list certain ETF 
options products. The Exchange believes this is inconsistent with 
Commission policies and the developing national market system, as well 
as the competitive nature of the market, and therefore proposes 
amendment.\37\ The Exchange believes that the proposal would encourage 
a more open market and national market system based on competition and 
multiple listing. The generic listing standards for ETFs based on 
global or international indexes have specific requirements regarding 
relative

[[Page 51626]]

weighting, minimum capitalization, minimum trading volume, and minimum 
number of components that have been approved by the Commission years 
ago for foreign ETFs.\38\ Moreover, such listing standards have been in 
continuous use for listing options on narrow-based and broad-based 
indexes on the Exchange.\39\ Allowing the listing of options on 
underlying ETFs based on global and international indexes that meet 
generic listing standards would encourage a free and open market and 
national market system to the benefit of market participants.
---------------------------------------------------------------------------

    \37\ As discussed, the Exchange is decidedly not proposing that 
the surveillance agreement requirement be deleted entirely, but 
rather that only those options on ETFs that do not meet very 
specific generic listing standards need to have surveillance 
agreements in order to list on the Exchange.
    \38\ See Securities Exchange Act Release No. 54739 (November 9, 
2006), 71 FR 66993 (November 17, 2006) (SR-Amex-2006-78) (initial 
order relating to generic listing standards for ETFs based on 
international or global indexes). See also BX Options Rule 
5705(a)(3)(A)(ii) and (b)(3)(A)(ii).
    \39\ See Chapter XIV, Sections 6 and 3.
---------------------------------------------------------------------------

    For the above reasons, the Exchange believes the proposed rule 
change is consistent with the requirements of Section 6(b)(5) of the 
Act.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act. To the contrary, the 
Exchange believes that the proposal is, as discussed, decidedly pro-
competitive and is a competitive response to the inability to list 
products because of the surveillance agreement requirement. The 
Exchange believes that the proposed rule change will result in 
additional investment options and opportunities to achieve the 
investment objectives of market participants seeking efficient trading 
and hedging vehicles, to the benefit of investors, market participants, 
and the marketplace in general. Competition is one of the principal 
features of the national market system. The Exchange believes that this 
proposal will expand competitive opportunities to list and trade 
products on the Exchange as noted.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    No written comments were either solicited or received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Because the proposed rule change does not (i) significantly affect 
the protection of investors or the public interest; (ii) impose any 
significant burden on competition; and (iii) become operative for 30 
days from the date on which it was filed, or such shorter time as the 
Commission may designate, it has become effective pursuant to Section 
19(b)(3)(A) of the Act \40\ and Rule 19b-4(f)(6) thereunder.\41\
---------------------------------------------------------------------------

    \40\ 15 U.S.C. 78s(b)(3)(A).
    \41\ 17 CFR 240.19b-4(f)(6). As required under Rule 19b-
4(f)(6)(iii), the Exchange provided the Commission with written 
notice of its intent to file the proposed rule change, along with a 
brief description and the text of the proposed rule change, at least 
five business days prior to the date of filing of the proposed rule 
change.
---------------------------------------------------------------------------

    A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the 
Act \42\ normally does not become operative for 30 days after the date 
of its filing. However, Rule 19b-4(f)(6)(iii) \43\ permits the 
Commission to designate a shorter time if such action is consistent 
with the protection of investors and the public interest. The Exchange 
has asked the Commission to waive the 30-day operative delay so that 
the proposal may become operative immediately upon filing. The Exchange 
stated that waiver of the operative delay will allow the Exchange to 
list and trade certain ETF options on the same basis as other options 
markets.\44\ The Commission believes the waiver of the operative delay 
is consistent with the protection of investors and the public interest. 
Therefore, the Commission hereby waives the operative delay and 
designates the proposal operative upon filing.\45\
---------------------------------------------------------------------------

    \42\ 17 CFR 240.19b-4(f)(6).
    \43\ 17 CFR 240.19b-4(f)(6)(iii).
    \44\ See supra note 7.
    \45\ For purposes only of waiving the 30-day operative delay, 
the Commission has also considered the proposed rule's impact on 
efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of the proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is necessary or 
appropriate in the public interest, for the protection of investors, or 
otherwise in furtherance of the purposes of the Act. If the Commission 
takes such action, the Commission shall institute proceedings to 
determine whether the proposed rule change should be approved or 
disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-BX-2015-053 on the subject line.

Paper Comments

     Send paper comments in triplicate to Brent J. Fields, 
Secretary, Securities and Exchange Commission, 100 F Street NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-BX-2015-053. This file 
number should be included on the subject line if email is used. To help 
the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for Web site viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE., 
Washington, DC 20549 on official business days between the hours of 
10:00 a.m. and 3:00 p.m. Copies of such filing also will be available 
for inspection and copying at the principal office of the Exchange. All 
comments received will be posted without change; the Commission does 
not edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly. All 
submissions should refer to File Number SR-BX-2015-053, and should be 
submitted on or before September 15, 2015.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\46\
---------------------------------------------------------------------------

    \46\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2015-20930 Filed 8-24-15; 8:45 am]
BILLING CODE 8011-01-P



                                                    51622                        Federal Register / Vol. 80, No. 164 / Tuesday, August 25, 2015 / Notices

                                                    SECURITIES AND EXCHANGE                                 II. Self-Regulatory Organization’s                      trade options on ETFs without a CSSA
                                                    COMMISSION                                              Statement of the Purpose of, and                        provided that the underlying ETF is
                                                                                                            Statutory Basis for, the Proposed Rule                  listed on an equities exchange pursuant
                                                    [Release No. 34–75733; File No. SR–BX–
                                                                                                            Change                                                  to the generic listings standards that do
                                                    2015–053]                                                  In its filing with the Commission, the               not require a CSSA pursuant to Rule
                                                                                                            Exchange included statements                            19b–4(e) of the Exchange Act.8
                                                    Self-Regulatory Organizations;                          concerning the purpose of and basis for                    Rule 19b–4(e) provides that the listing
                                                    NASDAQ OMX BX, Inc.; Notice of Filing                   the proposed rule change and discussed                  and trading of a new derivative
                                                                                                            any comments it received on the                         securities product by an SRO shall not
                                                    and Immediate Effectiveness of
                                                                                                            proposed rule change. The text of these                 be deemed a proposed rule change,
                                                    Proposed Rule Change Relating to
                                                                                                            statements may be examined at the                       pursuant to paragraph (c)(l) of Rule 19b–
                                                    Surveillance Agreements                                                                                         4 9 if the Commission has approved,
                                                                                                            places specified in Item IV below. The
                                                    August 19, 2015.                                        Exchange has prepared summaries, set                    pursuant to Section 19(b) of the Act,10
                                                                                                                                                                    the SRO’s trading rules, procedures and
                                                       Pursuant to Section 19(b)(1) of the                  forth in sections A, B, and C below, of
                                                                                                                                                                    listing standards for the product class
                                                    Securities Exchange Act of 1934 (the                    the most significant aspects of such
                                                                                                                                                                    that would include the new derivatives
                                                    ‘‘Act’’),1 and Rule 19b–4 thereunder,2                  statements.
                                                                                                                                                                    securities product, and the SRO has a
                                                    notice is hereby given that on August                   A. Self-Regulatory Organization’s                       surveillance program for the product
                                                    17, 2015, NASDAQ OMX BX, Inc. (‘‘BX’’                   Statement of the Purpose of, and                        class.11 This proposal allows the
                                                    or ‘‘Exchange’’) filed with the Securities              Statutory Basis for, the Proposed Rule                  Exchange to list and trade options on
                                                    and Exchange Commission (‘‘SEC’’ or                     Change                                                  ETFs based on international or global
                                                    ‘‘Commission’’) the proposed rule                                                                               indexes that meet the generic listing
                                                                                                            1. Purpose
                                                    change as described in Items I and II                                                                           standards.12
                                                    below, which Items have been prepared                      The Exchange proposes to amend BX
                                                                                                            Options Chapter IV, Section 3 to allow                  The Surveillance Agreement
                                                    by the Exchange. The Commission is                                                                              Requirement for Options on Exchange-
                                                    publishing this notice to solicit                       the listing of options overlying ETFs 5
                                                                                                            that are listed pursuant to generic listing             Traded Funds
                                                    comments on the proposed rule change
                                                                                                            standards on equities exchanges for                        The surveillance agreement
                                                    from interested persons.
                                                                                                            series of ETFs based on international or                requirement (also known as the
                                                    I. Self-Regulatory Organization’s                       global indexes, pursuant to which a                     ‘‘requirement’’ or ‘‘regime’’) was
                                                    Statement of the Terms of the Substance                 comprehensive surveillance agreement                    initially put into effect on Phlx, which
                                                    of the Proposed Rule Change                             is not required.6                                       is the oldest options exchange within
                                                                                                               This proposal is based on a recent                   the Group, for options on ETFs well
                                                       The Exchange proposes to amend                       immediately effective filing of Phlx that               over a decade ago but has proven to
                                                    Chapter IV, Section 3 (Criteria for                     added exactly the same language as                      have anti-competitive effects that are
                                                    Underlying Securities) of the rules                     proposed herein, as well as that of other               detrimental to investors.13 Specifically,
                                                    governing the BX Options Market (‘‘BX                   exchanges,7 and serves to align the rules               the requirement limits the investing
                                                    Options’’) 3 to allow the listing of                    of Phlx and the Exchange and other                      public’s ability to hedge risk or engage
                                                    options overlying Exchange-Traded                       markets. Adding the proposed language                   in options strategies that may be
                                                    Fund Shares (‘‘Fund Shares’’) that are                  to BX Options Chapter IV, Section 3(i)                  afforded to other investors in domestic
                                                    listed pursuant to generic listing                      will enable the Exchange to list and                    securities.14
                                                    standards on equities exchanges for                                                                                The Exchange allows for the listing
                                                    series of Portfolio Depository Receipts
                                                                                                               5 ETFs are also referred to in Exchange rules as
                                                                                                                                                                    and trading of options on ETFs. BX
                                                                                                            ‘‘Fund Shares.’’ See, e.g., BX Options Chapter IV,      Options Chapter IV, Section 3(i)
                                                    and Index Fund Shares (collectively                     Sections 3 and 6.
                                                    known as ‘‘ETFs’’) based on                                6 NASDAQ is the principal exchange within the
                                                                                                                                                                    provides the listings standards for
                                                    international or global indexes,                        Group for listing ETFs. NASDAQ has generic listing      options on ETFs, which includes ETFs
                                                                                                            standards for Portfolio Depository Receipts             with non-U.S. component securities,
                                                    pursuant to which a comprehensive                       (‘‘PDRs’’) and Index Fund Shares (‘‘IFSs’’). See
                                                    surveillance agreement 4 is not required.               NASDAQ Rule 5705(b)(3)(A)(ii) regarding IFSs and          8 17  CFR 240.19b–4(e).
                                                                                                            5705(a)(3)(A)(ii) regarding PDRs (IFSs and PDRs are
                                                       The text of the proposed rule change                 together known as ETFs in NASDAQ Rule 5705).
                                                                                                                                                                      9 17  CFR 240.19b–4(c)(1).
                                                    is available on the Exchange’s Web site                 See also NYSE MKT Rule 1000 Commentary
                                                                                                                                                                       10 15 U.S.C. 78s(b).
                                                                                                                                                                       11 When relying on Rule 19b–4(e), the SRO must
                                                    at http://                                              .03(a)(B); NYSE Arca Equities Rule 5.2(j)(3)
                                                                                                            Commentary .0l(a)(B); and BATS Rule 14.                 submit Form 19b–4(e) to the Commission within
                                                    nasdaqomxbx.cchwallstreet.com/, at the                                                                          five business days after the SRO begins trading the
                                                                                                            11(b)(3)(A)(ii).
                                                    principal office of the Exchange, and at                   7 See Securities Exchange Act Release No. 74553      new derivative securities products. See Securities
                                                    the Commission’s Public Reference                       (March 20, 2015), 80 FR 16072 (March 26, 2015)          Exchange Act Release No. 40761 (December 8,
                                                                                                                                                                    1998), 63 FR 70952 (December 22, 1998).
                                                    Room.                                                   (SR–Phlx–2015–27) (notice of filing and immediate
                                                                                                                                                                       12 See NASDAQ Rule 5705(a)(3)(A)(ii) and
                                                                                                            effectiveness to amend Phlx Rule 1009). See also
                                                                                                            Securities Exchange Act Release No. 74509 (March        (b)(3)(A)(ii); NYSE MKT Rule 1000, Commentary
                                                      1 15 U.S.C. 78s(b)(1).                                13, 2015), 80 FR 14425 (March 19, 2015) (SR–            .03(a)(B); NYSE Arca Equities Rule 5.20)(3) [sic],
                                                      2 17 CFR 240.19b–4.                                   MIAX–2015–04) (order approving proposal to              Commentary .01(a)(B); and BATS Rule
                                                       3 The Exchange, NASDAQ OMX PHLX LLC                  amend MIAX Rule 402). The language proposed in          14.11(b)(3)(A)(ii).
                                                                                                                                                                       13 See Securities Exchange Act Release No. 43921
asabaliauskas on DSK5VPTVN1PROD with NOTICES




                                                    (‘‘Phlx’’), and The NASDAQ Stock Market LLC             these Phlx and MIAX filings, as also the language
                                                                                                            proposed in this proposal, is similar in all material   (February 2, 2001), 66 FR 9739 (February 9,
                                                    (‘‘NASDAQ’’) are self-regulatory organizations
                                                                                                            respects. Other exchanges have submitted similar        2001)(SR–Phlx–2000–107) (notice of filing and
                                                    (‘‘SROs’’) that are wholly owned subsidiaries of The
                                                                                                            immediately effective filings. See, e.g., Securities    approval order regarding trading of options on ETFs
                                                    NASDAQ OMX Group, Inc. (the ‘‘Group’’).                                                                         with surveillance agreements) (the ‘‘ETF approval
                                                                                                            Exchange Act Release Nos. 75132 (June 9, 2015), 80
                                                       4 Surveillance agreements are also referred to in
                                                                                                            FR 34175 (June 15, 2015) (SR–BOX–2015–21);              order’’). The changes proposed herein relate only to
                                                    Exchange rules as ‘‘surveillance sharing                74832 (April 29, 2015), 80 FR 25738 (May 5, 2015)       surveillance agreements for options on global or
                                                    agreements’’ or ‘‘comprehensive surveillance            (SR–ISE–2015–16); 75296 (June 25, 2015), 80 FR          international ETFs.
                                                    sharing agreements’’ (‘‘CSSA’’). See, e.g., BX          37692 (July 1, 2015) (SR–CBOE–2015–052); and               14 Moreover, as noted below the surveillance

                                                    Options Chapter IV, Sections 3 and 4 and BX             75440 (July 13, 2015), 80 FR 42587 (July 17, 2015)      agreement requirement is present for the derivative
                                                    Options Chapter XIV, Sections 3 and 6.                  (SR–NYSEArca–2015–60).                                  options on ETFs but not for the underlying ETFs.



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                                                                                 Federal Register / Vol. 80, No. 164 / Tuesday, August 25, 2015 / Notices                                                   51623

                                                    such as ETFs based on international or                  one of the most highly-developed,                      not have the same onerous surveillance
                                                    global indexes. Currently, BX Options                   sophisticated markets that provide                     agreement requirement that ETF options
                                                    Chapter IV, Section 3(i) regarding                      traders and investors the opportunity to               have,21 is not in the best interest of
                                                    options on ETFs has a three-level                       access practically all industries and                  market participants. The Exchange
                                                    surveillance agreement requirement                      enterprises. In 2012 investor demand for               therefore proposes to establish that
                                                    (reproduced in relevant part):                          ETFs in all asset classes increased                    options on generically-listed global or
                                                       (i) Any non-U.S. component stocks of                 substantially. And in 2011 the demand                  international ETFs would not require
                                                    the index or portfolio on which the                     for global and international equity ETFs,              surveillance agreements for listing.
                                                    Fund Shares are based that are not                      to which the requirement applies, more                   The current surveillance agreement
                                                    subject to comprehensive surveillance                   than doubled.19 The Exchange believes                  requirements, as well as all other
                                                    agreements do not in the aggregate                      that the surveillance agreement                        requirements to list options on ETFs,22
                                                    represent more than 50% of the weight                   requirement no longer serves a                         are not affected by this proposal and
                                                    of the index or portfolio;                              necessary (or indispensable) function in               will continue to remain in place for
                                                       (ii) stocks for which the primary                    today’s highly developed ETF market,20                 options on ETFs that do not meet
                                                    market is in any one country that is not                and actually creates a dynamic that                    generic listing standards on equities
                                                    subject to a comprehensive surveillance                 negatively impacts the number of                       exchanges for ETFs based on
                                                    agreement do not represent 20% or                       markets that can competitively trade                   international and global indexes.
                                                    more of the weight of the index;                        ETF option products, to the detriment of
                                                       (iii) stocks for which the primary                                                                          Generic Listing Standards for Exchange-
                                                                                                            market participants.                                   Traded Funds
                                                    market is in any two countries that are                    The current surveillance requirement
                                                    not subject to comprehensive                            has, at times, resulted in the investing                 The Exchange notes that the
                                                    surveillance agreements do not                          public having to forego the opportunity                Commission has previously approved
                                                    represent 33% or more of the weight of                  to hedge risk or engage in other listed                generic listing standards pursuant to
                                                    the index.15                                            options strategies in a competitive                    Rule 19b–4(e) of the Exchange Act 23 for
                                                       The Exchange proposes to modify the                  environment. ETFs may lack active                      ETFs based on indexes that consist of
                                                    surveillance agreement requirement for                  options contracts that would be more                   stocks listed on U.S. exchanges
                                                    options on ETFs that are listed pursuant                likely to develop if multiple exchanges                including NASDAQ, the ETF listing
                                                    to generic listing standards for series of              could compete to offer and promote                     exchange within the Group.24 In
                                                    ETFs, based on international or global                  them. For example, an investor in the                  general, the criteria for the underlying
                                                    indexes—for which case a                                iShares MSCI Indonesia ETF (EIDO) is                   component securities in the
                                                    comprehensive surveillance agreement                    not permitted to sell call options or                  international and global indexes are
                                                    is not required.                                        purchase protective puts simply because                similar to those for the domestic
                                                       When the surveillance agreement                      the Exchange cannot obtain a                           indexes, but with modifications as
                                                    requirement was instituted in 2001 on                   surveillance agreement with Bursa Efek                 appropriate for the issues and risks
                                                    Phlx as discussed, ETFs were,                           Indonesia. However, an investor in                     associated with non-U.S. securities.
                                                    comparatively speaking, in a                            iShares MSCI Emerging Markets Fund                       In addition, the Commission has
                                                    developmental state.16 The first ETF                    (EEM) is afforded the right to engage in               previously approved proposals for the
                                                    introduced in 1993 was a broad-based                    listed options trading to hedge risk or
                                                    domestic equity fund tracking the S&P                   execute other beneficial options
                                                                                                                                                                     21 While the surveillance agreement requirement

                                                    500 index. The development of ETF                                                                              for options on ETFs found in BX Options Chapter
                                                                                                            strategies. Both underlying exchange-                  IV, Section 3(i) (see note 15 and related text) has
                                                    products was very limited during the                    traded funds, EIDO and EEM, are listed                 resulted in significant negative implications for
                                                    first decade of their existence, such that              for trading in the U.S., subject to                    market participants, there is no such surveillance
                                                    at the end of 2001, there was a total of                constant regulatory scrutiny, and                      agreement requirement for the underlying ETFs. In
                                                    only 102 ETFs listed on U.S. markets.                                                                          particular, when looking to the rules of NASDAQ,
                                                                                                            permitted to be purchased and sold via                 the primary ETF listing venue in the Group,
                                                    Since 2001, however, the ETF market                     registered broker/dealers, yet, options                NASDAQ Rules 5705 regarding ETFs and 5735
                                                    has matured tremendously and grown                      can now be offered only on EEM. The                    regarding Managed Fund Shares (‘‘MFSs’’) have no
                                                    exponentially, such that at the end of                  Exchange believes this disparate                       explicit requirements concerning surveillance
                                                                                                                                                                   agreements for regularly listed (non-generic) ETFs
                                                    2012 there were a total of 1,194 listed                 treatment between investors of foreign-                and MFSs, and simply state that FINRA will
                                                    ETFs.17 Many of these are very well                     based instruments, especially between                  implement written surveillance procedures. Section
                                                    known, highly traded and liquid                         those that buy and sell options contracts              19(b)(2) filings regarding ETFs and MFSs typically
                                                    products, such as, for example, SPDR                                                                           indicate that the Exchange may obtain information
                                                                                                            on ETFs, which currently require                       regarding trading in the shares from FINRA and
                                                    S&P 500 Trust ETF (SPY), iShares MSCI                   surveillance agreements, as opposed to                 markets and other entities that are members of the
                                                    Emerging Markets ETF (EEM), and                         those that buy and sell shares of the                  Intermarket Surveillance Group (‘‘ISG’’), which
                                                    PowerShares QQQ Trust, Series 1 ETF                     underlying ETFs, which currently do                    includes securities and futures exchanges, or with
                                                    (QQQ), that market participants from                                                                           which the Exchange has in place a surveillance
                                                                                                                                                                   agreement (which is not required by rule).
                                                    institutional to retail and public                      term 401(k) or retirement fund exposure (e.g., using   Regarding ETFs and MFSs listed pursuant to
                                                    investors have been using for trading,                  SPY).                                                  generic (19b–4(e)) standards and reviewed and
                                                    hedging, and investing purposes with                       19 http://www.icifactbook.org/fb_ch3.html.          approved for trading under Section 19(b)(2) of the
                                                    varying timelines.18 The ETF market is                     20 ETFs and ETPs listed in the United States        Act, Rule 5705 simply notes that the Commission’s
                                                                                                            gathered $24.6 billion USD in net new assets in        approval order may reference surveillance sharing
                                                                                                            June 2014 which, when combined with positive           agreements with respect to non-U.S. component
                                                      15 See BX Options Chapter IV, Section 3(i)i.–iii.,
                                                                                                                                                                   stocks.
asabaliauskas on DSK5VPTVN1PROD with NOTICES




                                                                                                            market performance, pushed the ETF/ETP industry
                                                    which is re-numbered as BX Options Chapter IV,          in the United States to a new record high of $1.86       22 For purposes of brevity, these other
                                                    Section 3(i)i.(1)–(3). For consistency, BX Options      trillion USD invested in 1,613 ETFs/ETPs, from 58      requirements are not set forth, but can be found in
                                                    Chapter IV, Section 3(i)iv.-vi. is re-numbered BX       providers listed on 3 exchanges. And according to      BX Options Chapter IV, Section 3(i).
                                                    Options Chapter IV, Section 3(i)ii.–iv.                 ETFGI, an independent ETF/ETP research and               23 17 CFR 240.19b–4(e).
                                                      16 See Securities Exchange Act Release No. 43921
                                                                                                            consultancy firm in the U.K., ETFs and ETPs listed       24 See Securities Exchange Act Release No. 54739
                                                    (February 2, 2001), 66 FR 9739 (February 9, 2001)       globally reached $2.64 trillion USD in assets, a new   (November 9, 2006), 71 FR 66993 (November 17,
                                                    (SR–Phlx–2000–107) (ETF approval order).                record high, at the end of Q2 2014. http://            2006) (SR–Amex–2006–78) (initial order relating to
                                                      17 http://www.icifactbook.org/fb_ch3.html.
                                                                                                            www.mondovisione.com/media-and-resources/              generic listing standards for ETFs based on
                                                      18 These can be from intraday exposure (e.g.,         news/according-to-etfgi-etfs-and-etps-listed-          international or global indexes). See also NASDAQ
                                                    using Daily S&P 500 Bear 3x Shares (SPXS)) to long-     globally-reached-us264-trillion-in-as/.                Rule 5705(a)(3)(A)(ii) and (b)(3)(A)(ii).



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                                                    51624                        Federal Register / Vol. 80, No. 164 / Tuesday, August 25, 2015 / Notices

                                                    listing and trading of options on ETFs                  narrow-based and broad-based                            Exchange believes that these generic
                                                    based on international indexes as well                  indexes.29                                              listing standards are intended to ensure
                                                    as global indexes (e.g., based on non-                                                                          that securities with substantial market
                                                                                                            Requirements for Listing and Trading
                                                    U.S. and U.S. component stocks).25 In                                                                           capitalization and trading volume
                                                                                                            Options Overlying ETFs Based on
                                                    approving ETFs for equities exchange                                                                            account for a substantial portion of the
                                                                                                            International and Global Indexes
                                                    trading, the Commission thoroughly                                                                              weight of an index or portfolio.
                                                    considered the structure of the ETFs,                      Options on ETFs listed pursuant to                      The Exchange believes that this
                                                    their usefulness to investors and to the                these generic standards for international               proposed listing standard for options on
                                                    markets, and SRO rules that govern their                and global indexes would be traded, in                  ETFs is reasonable for international and
                                                    trading. The Exchange believes that                     all other respects, under the Exchange’s                global indexes, and, when applied in
                                                    allowing the listing of options overlying               existing trading rules and procedures                   conjunction with the other listing
                                                    ETFs that are listed pursuant to the                    that apply to options on ETFs and                       requirements, will result in options
                                                    generic listing standards on equities                   would be covered under the Exchange’s                   overlying ETFs that are sufficiently
                                                    exchanges for ETFs based on                             surveillance program for options on                     broad in scope and not readily
                                                                                                            ETFs.                                                   susceptible to manipulation. The
                                                    international and global indexes and
                                                    applying Rule 19b–4(e) 26 should fulfill                   Pursuant to proposed BX Options                      Exchange also believes that allowing the
                                                                                                            Chapter IV, Section 3(i), the Exchange                  Exchange to list options overlying ETFs
                                                    the intended objective of that rule by
                                                                                                            may list and trade options on an ETF                    that are listed on equities exchanges
                                                    allowing options on those ETFs that
                                                                                                            without a CSSA provided that the ETF                    pursuant to generic standards for series
                                                    have satisfied the generic listing
                                                                                                            is listed pursuant to generic listing                   of ETFs based on international or global
                                                    standards to commence trading, without                  standards for ETFs based on                             indexes under which a CSSA is not
                                                    the need for the public comment period                  international or global indexes, in                     required, will result in options
                                                    and Commission approval. The                            which case a comprehensive                              overlying ETFs that are adequately
                                                    proposed rule has the potential to                      surveillance agreement is not required.                 diversified in weighting for any single
                                                    reduce the time frame for bringing                      As noted, one such rule, which                          security or small group of securities to
                                                    options on ETFs to market, thereby                      discusses things such as weighting,                     significantly reduce concerns that
                                                    reducing the burdens on issuers and                     capitalization, trading volume,                         trading in options overlying ETFs based
                                                    other market participants. The failure of               minimum number of components, and                       on international or global indexes could
                                                    a particular ETF to comply with the                     where components are listed, is                         become a surrogate for trading in
                                                    generic listing standards under Rule                    NASDAQ Rule 5705(b)(3)(A)(ii)                           unregistered securities.31
                                                    19b–4(e) 27 would not, however,                         regarding ETFs (IFSs and PDRs).30 The                      The Exchange believes that ETFs
                                                    preclude the Exchange from submitting                                                                           based on international and global
                                                    a separate filing pursuant to Section                      29 BX Options Chapter IV, Sections 3 and 6 have,
                                                                                                                                                                    indexes that have been listed pursuant
                                                    19(b)(2),28 requesting Commission                       for example, weighting, capitalization, trading         to the generic standards are sufficiently
                                                                                                            volume, and minimum number of components
                                                    approval to list and trade options on a                 standards for listing options on broad-based and        defined so as to make options overlying
                                                    particular ETF. Moreover, the Exchange                  narrow-based indexes. For a definition of broad-        such ETFs not susceptible instruments
                                                    notes that the generic standards such as                based index (market index) and narrow-based index       for manipulation. The Exchange
                                                    those in proposed BX Options Chapter                    (industry index), see NOM Chapter XIV, Sections         believes that the threat of manipulation
                                                                                                            2(k) and (j), respectively.
                                                    IV, Section 3(i) are not new in the                        30 NASDAQ Rule 5705(b)(3)(A)(ii) regarding IFSs,     is, as discussed below, sufficiently
                                                    options world, and have been used                       for example, has the following requirements             mitigated for underlying ETFs that have
                                                    extensively for listing options on                      (reproduced in relevant part): a. Component stocks      been listed on equities exchanges
                                                                                                            (excluding Derivative Securities Products) that in      pursuant to generic listing standards for
                                                                                                            the aggregate account for at least 90% of the weight
                                                       25 See, e.g., Securities Exchange Act Release Nos.
                                                                                                            of the index or portfolio (excluding Derivative
                                                                                                                                                                    series of ETFs based on international or
                                                    57013 (December 20, 2007), 72 FR 73923 (December        Securities Products) each shall have a minimum          global indexes under which a
                                                    28, 2007) (SR–CBOE–2007–140) (approval order to         market value of at least $100 million; b. component     comprehensive surveillance agreement
                                                    list and trade options on iShares MSCI Mexico           stocks (excluding Derivative Securities Products)
                                                    Index Fund, when CBOE did not have in place a                                                                   is not required and for the overlying
                                                                                                            that in the aggregate account for at least 70% of the
                                                    surveillance agreement with the Bolsa Mexicana de       weight of the index or portfolio (excluding
                                                                                                                                                                    options; the Exchange does not see the
                                                    Valores (the ‘‘Bolsa’’)); 57014 (December 20, 2007),    Derivative Securities Products) each shall have a       need for a CSSA to be in place before
                                                    72 FR 73934 (December 28, 2007) (SR–ISE–2007–           minimum worldwide monthly trading volume of at          listing and trading options on such
                                                    111) (approval order to list and trade options on       least 250,000 shares, or minimum global notional
                                                    iShares MSCI Mexico Index Fund, when ISE did                                                                    ETFs. The Exchange notes that its
                                                                                                            volume traded per month of $25,000,000, averaged
                                                    not have in place a surveillance agreement with the     over the last six months; c. the most heavily
                                                                                                                                                                    proposal does not replace the need for
                                                    Bolsa); 56778 (November 9, 2007), 72 FR 65113           weighted component stock (excluding Derivative          a CSSA as provided in current BX
                                                    (November 19, 2007) (SR–AMEX–2007–100)                  Securities Products) shall not exceed 25% of the        Options Chapter IV, Section 3(i). The
                                                    (approval order to list and trade options on iShares    weight of the index or portfolio, and, to the extent
                                                    MSCI Mexico Index Fund, when AMEX did not                                                                       provisions of Section 3(i), including the
                                                                                                            applicable, the five most heavily weighted
                                                    have in place a surveillance agreement with the         component stocks (excluding Derivative Securities
                                                                                                                                                                    need for a CSSA, remain materially
                                                    Bolsa); and 55648 (April 19, 2007), 72 FR 20902         Products) shall not exceed 60% of the weight of the     unchanged and will continue to apply
                                                    (April 26, 2007) (SR–AMEX–2007–09) (approval            index or portfolio; d. the index or portfolio shall     to options on ETFs that are not listed on
                                                    order to list and trade options on Vanguard             include a minimum of 20 component stocks;
                                                    Emerging Markets ETF, when AMEX did not have                                                                    an equities exchange pursuant to
                                                                                                            provided, however, that there shall be no minimum
                                                    in place a surveillance agreement with the Bolsa).      number of component stocks if either one or more
                                                                                                                                                                    generic listing standards for series of
                                                    See also Securities Exchange Act Release Nos.
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                                                                                                            series of Index Fund Shares or Portfolio Depositary
                                                    50189 (August 12, 2004), 69 FR 51723 (August 20,        Receipts constitute, at least in part, components       Rule 5705(a)(3)(A)(ii) has similar standards, but
                                                    2004) (SR–AMEX–2004–05) (approving the listing          underlying a series of Index Fund Shares, or one or     tailored for PDRs.
                                                    and trading of certain Vanguard International           more series of Derivative Securities Products              31 The Exchange also notes that not affording
                                                    Equity Index Funds); and 44700 (August 14, 2001),       account for 100% of the weight of the index or          retail investors the ability to trade on a regulated
                                                    66 FR 43927 (August 21, 2001) (SR–AMEX–2001–            portfolio; and e. each U.S. Component Stock shall       exchange can be detrimental. While products can be
                                                    34) (approving the listing and trading of series of     be listed on a national securities exchange and shall   traded off exchange in the over the counter (‘‘OTC’’)
                                                    the iShares Trust based on foreign stock indexes).      be an NMS Stock as defined in Rule 600 of               market, which has increased settlement, clearing,
                                                       26 17 CFR 240.19b–4(e).
                                                                                                            Regulation NMS under the Act, and each Non-U.S.         and market risk as opposed to exchanges, the
                                                       27 Id.
                                                                                                            Component Stock shall be listed and traded on an        relatively unregulated OTC market is usually not a
                                                       28 15 U.S.C. 78s(b)(2).                              exchange that has last-sale reporting. NASDAQ           viable option for retail and public investors.



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                                                                                    Federal Register / Vol. 80, No. 164 / Tuesday, August 25, 2015 / Notices                                                    51625

                                                    ETFs based on international or global                      acts and practices, to promote just and               consolidators, vendors, and outlets that
                                                    indexes pursuant to which a CSSA is                        equitable principles of trade, to foster              can be used to access data and
                                                    not required. Instead, proposed BX                         cooperation and coordination with                     information regarding ETFs and the
                                                    Options Chapter IV, Section 3(i) adds an                   persons engaged in facilitating                       underlying securities (e.g., Bloomberg,
                                                    additional listing mechanism for certain                   transactions in securities, to remove                 Dow Jones, FTEN). In addition, firms
                                                    qualifying options on ETFs to be listed                    impediments to and perfect the                        that list ETFs on an exchange receive
                                                    on the Exchange.                                           mechanisms of a free and open market                  vast amounts of data relevant to their
                                                      Finally, to account for proposed BX                      and a national market system and, in                  products that could be made available to
                                                    Options Chapter IV, Section 3(i) and                       general, to protect investors and the                 listing exchanges as needed. The
                                                    make Section 3 easier to follow, the                       public interest.                                      Exchange has access to the activity of
                                                    Exchange proposes technical changes to                        The proposal would promote just and                the direct underlying instrument and
                                                    the formatting of this section of the rule.                equitable principles of trade. When the               the ETF, and through the Intermarket
                                                    Thus, the Exchange proposes re-                            surveillance agreement requirement was                Surveillance Group (‘‘ISG’’) the
                                                    numbering BX Options Chapter IV,                           instituted as discussed in 2001 on Phlx,              Exchange can obtain such information
                                                    Section 3(i)i.–iii to BX Options Chapter                   the oldest options exchange in the                    related to the underlying security as
                                                    IV, Section 3(i)i.(1)–(3), respectively.                   Group, ETFs were, comparatively                       needed.36 Moreover, other than the
                                                    And, for consistency, the Exchange                         speaking, in a developmental state.34                 surveillance agreement requirement
                                                    proposes re-numbering BX Options                           The first ETF introduced in 1993 was a                there are, as discussed, numerous
                                                    Chapter IV, Section 3(i)iv.–vi. to BX                      broad-based domestic equity fund                      requirements that must be met to list
                                                    Options Chapter IV, Section 3(i)ii.–iv.,                   tracking the S&P 500 index. After the                 options on ETFs on the Exchange.
                                                    respectively. This is merely re-                           introduction of the first ETF in 1993, the               The proposal would remove
                                                    numbering and there are no changes to                      development of ETF products was very                  impediments to and perfect the
                                                    the language of these parts of Section                     limited during the first decade of their              mechanism of a free and open market
                                                    3(i).                                                      existence. Since the end of 2001, when                and a national market system. Multiple
                                                                                                               there was a total of only 102 ETFs listed             listing of ETFs, options, and other
                                                    2. Statutory Basis
                                                                                                               on U.S. markets, however, the ETF                     securities and competition are some of
                                                       The Exchange believes that its                          market has matured tremendously and                   the central features of the current
                                                    proposal is consistent with Section 6(b)                   grown exponentially. With a total of                  national market system. The Exchange
                                                    of the Act 32 in general, and furthers the                 1,194 listed ETFs at the end of 2012, the             believes that the surveillance agreement
                                                    objectives of Section 6(b)(5) of the Act 33                ETF market is now one of the most                     requirement has led to clearly anti-
                                                    in particular, in that it is designed to                   highly-developed, sophisticated markets               competitive results in a market that is
                                                    promote just and equitable principles of                   with many very well known, highly                     based on competition. As such, the
                                                    trade, to remove impediments to and                        traded and liquid products that provide               Exchange believes that the surveillance
                                                    perfect the mechanism of a free and                        traders and investors the opportunity to              agreement requirement for options on
                                                    open market and a national market                          access practically all industries and                 certain ETFs is no longer necessary and
                                                    system, and, in general to protect                         enterprises. While investor demand for                proposes new BX Options Chapter IV,
                                                    investors and the public interest. In                      ETFs in all asset classes increased                   Section 3(i). The proposed rule change
                                                    particular, the proposed rule change has                   substantially, in 2011 the demand for                 will significantly benefit market
                                                    the potential to reduce the time frame                     global and international equity ETFs, to              participants. As discussed at length, the
                                                    for bringing options on ETFs to market,                                                                          proposed rule will negate the negative
                                                                                                               which the requirement applies, more
                                                    thereby reducing the burdens on issuers                                                                          anti-competitive effect of the current
                                                                                                               than doubled.35 The Exchange believes
                                                    and other market participants. The                                                                               surveillance agreement requirement that
                                                                                                               that the current surveillance
                                                    Exchange also believes that enabling the                                                                         has resulted in de facto regulatory
                                                                                                               requirement no longer serves a
                                                    listing and trading of options on ETFs                                                                           monopolies where only solitary
                                                                                                               necessary function in today’s highly
                                                    pursuant to this proposed new listing                                                                            exchanges, or only a few exchanges, are
                                                                                                               developed market, and, as discussed,
                                                    standard will benefit investors by                                                                               able to list certain ETF options
                                                                                                               actually creates a dynamic that
                                                    providing them with valuable risk                                                                                products. The Exchange believes this is
                                                                                                               negatively impacts the number of
                                                    management tools. The Exchange notes                                                                             inconsistent with Commission policies
                                                                                                               markets that can competitively trade
                                                    that its proposal does not replace the                                                                           and the developing national market
                                                                                                               ETF option products. This hurts market
                                                    need for a CSSA as provided in BX                                                                                system, as well as the competitive
                                                                                                               participants. The Exchange therefore
                                                    Options Chapter IV, Section 3(i). The                                                                            nature of the market, and therefore
                                                                                                               proposes to establish that pursuant to
                                                    provisions of current Section 3(i),                                                                              proposes amendment.37 The Exchange
                                                                                                               proposed BX Options Chapter IV,
                                                    including the need for a CSSA, remain                                                                            believes that the proposal would
                                                                                                               Section 3(i) options may be listed on
                                                    materially unchanged and will continue                                                                           encourage a more open market and
                                                                                                               certain ETFs that are based on global
                                                    to apply to options on ETFs that are not                                                                         national market system based on
                                                                                                               and international funds and meet
                                                    listed on an equities exchange pursuant                                                                          competition and multiple listing. The
                                                                                                               generic listing standards.
                                                    to generic listing standards for series of                    The proposal would in general protect              generic listing standards for ETFs based
                                                    ETFs based on international or global                      investors and the public interest. The                on global or international indexes have
                                                    indexes under which a comprehensive                        Exchange believes that modifying the                  specific requirements regarding relative
                                                    surveillance agreement is not required.                    surveillance agreement requirement for
asabaliauskas on DSK5VPTVN1PROD with NOTICES




                                                    Instead, proposed BX Options Chapter                       ETFs would not hinder the Exchange
                                                                                                                                                                       36 See https://www.isgportal.org/home.html.

                                                    IV, Section 3(i) adds an additional                                                                              Another global organization similar to ISG is The
                                                                                                               from performing surveillance duties                   International Organization of Securities
                                                    listing mechanism for certain qualifying                   designed to protect investors and the                 Commissions (‘‘IOSCO’’).
                                                    options on ETFs to be listed on the                        public interest. There are various data                 37 As discussed, the Exchange is decidedly not

                                                    Exchange in a manner that is designed                                                                            proposing that the surveillance agreement
                                                    to prevent fraudulent and manipulative                                                                           requirement be deleted entirely, but rather that only
                                                                                                                 34 See Securities Exchange Act Release No. 43921
                                                                                                                                                                     those options on ETFs that do not meet very
                                                                                                               (February 2, 2001), 66 FR 9739 (February 9, 2001)     specific generic listing standards need to have
                                                      32 15   U.S.C. 78f(b).                                   (SR–Phlx–2000–107) (ETF approval order).              surveillance agreements in order to list on the
                                                      33 15   U.S.C. 78f(b)(5).                                  35 http://www.icifactbook.org/fb_ch3.html.          Exchange.



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                                                    51626                        Federal Register / Vol. 80, No. 164 / Tuesday, August 25, 2015 / Notices

                                                    weighting, minimum capitalization,                      operative for 30 days from the date on                  Electronic Comments
                                                    minimum trading volume, and                             which it was filed, or such shorter time
                                                    minimum number of components that                       as the Commission may designate, it has                   • Use the Commission’s Internet
                                                    have been approved by the Commission                    become effective pursuant to Section                    comment form (http://www.sec.gov/
                                                    years ago for foreign ETFs.38 Moreover,                 19(b)(3)(A) of the Act 40 and Rule 19b–                 rules/sro.shtml); or
                                                    such listing standards have been in                     4(f)(6) thereunder.41                                     • Send an email to rule-comments@
                                                    continuous use for listing options on                      A proposed rule change filed                         sec.gov. Please include File Number SR–
                                                    narrow-based and broad-based indexes                    pursuant to Rule 19b–4(f)(6) under the                  BX–2015–053 on the subject line.
                                                    on the Exchange.39 Allowing the listing                 Act 42 normally does not become
                                                    of options on underlying ETFs based on                                                                          Paper Comments
                                                                                                            operative for 30 days after the date of its
                                                    global and international indexes that                   filing. However, Rule 19b–4(f)(6)(iii) 43                 • Send paper comments in triplicate
                                                    meet generic listing standards would                    permits the Commission to designate a                   to Brent J. Fields, Secretary, Securities
                                                    encourage a free and open market and                    shorter time if such action is consistent
                                                    national market system to the benefit of                                                                        and Exchange Commission, 100 F Street
                                                                                                            with the protection of investors and the                NE., Washington, DC 20549–1090.
                                                    market participants.                                    public interest. The Exchange has asked
                                                      For the above reasons, the Exchange                   the Commission to waive the 30-day                      All submissions should refer to File
                                                    believes the proposed rule change is                    operative delay so that the proposal may                Number SR–BX–2015–053. This file
                                                    consistent with the requirements of                     become operative immediately upon                       number should be included on the
                                                    Section 6(b)(5) of the Act.                             filing. The Exchange stated that waiver                 subject line if email is used. To help the
                                                    B. Self-Regulatory Organization’s                       of the operative delay will allow the                   Commission process and review your
                                                    Statement on Burden on Competition                      Exchange to list and trade certain ETF                  comments more efficiently, please use
                                                                                                            options on the same basis as other                      only one method. The Commission will
                                                       The Exchange does not believe that
                                                                                                            options markets.44 The Commission                       post all comments on the Commission’s
                                                    the proposed rule change will impose
                                                                                                            believes the waiver of the operative                    Internet Web site (http://www.sec.gov/
                                                    any burden on competition that is not
                                                                                                            delay is consistent with the protection                 rules/sro.shtml). Copies of the
                                                    necessary or appropriate in furtherance
                                                                                                            of investors and the public interest.                   submission, all subsequent
                                                    of the purposes of the Act. To the
                                                                                                            Therefore, the Commission hereby                        amendments, all written statements
                                                    contrary, the Exchange believes that the
                                                                                                            waives the operative delay and                          with respect to the proposed rule
                                                    proposal is, as discussed, decidedly pro-
                                                                                                            designates the proposal operative upon                  change that are filed with the
                                                    competitive and is a competitive
                                                                                                            filing.45
                                                    response to the inability to list products                                                                      Commission, and all written
                                                    because of the surveillance agreement                      At any time within 60 days of the                    communications relating to the
                                                    requirement. The Exchange believes that                 filing of the proposed rule change, the                 proposed rule change between the
                                                    the proposed rule change will result in                 Commission summarily may                                Commission and any person, other than
                                                    additional investment options and                       temporarily suspend such rule change if                 those that may be withheld from the
                                                    opportunities to achieve the investment                 it appears to the Commission that such                  public in accordance with the
                                                    objectives of market participants seeking               action is necessary or appropriate in the
                                                                                                                                                                    provisions of 5 U.S.C. 552, will be
                                                    efficient trading and hedging vehicles,                 public interest, for the protection of
                                                                                                                                                                    available for Web site viewing and
                                                    to the benefit of investors, market                     investors, or otherwise in furtherance of
                                                                                                            the purposes of the Act. If the                         printing in the Commission’s Public
                                                    participants, and the marketplace in                                                                            Reference Room, 100 F Street NE.,
                                                    general. Competition is one of the                      Commission takes such action, the
                                                                                                            Commission shall institute proceedings                  Washington, DC 20549 on official
                                                    principal features of the national market                                                                       business days between the hours of
                                                    system. The Exchange believes that this                 to determine whether the proposed rule
                                                                                                            change should be approved or                            10:00 a.m. and 3:00 p.m. Copies of such
                                                    proposal will expand competitive
                                                                                                            disapproved.                                            filing also will be available for
                                                    opportunities to list and trade products
                                                                                                                                                                    inspection and copying at the principal
                                                    on the Exchange as noted.                               IV. Solicitation of Comments                            office of the Exchange. All comments
                                                    C. Self-Regulatory Organization’s                         Interested persons are invited to                     received will be posted without change;
                                                    Statement on Comments on the                            submit written data, views, and                         the Commission does not edit personal
                                                    Proposed Rule Change Received From                      arguments concerning the foregoing,                     identifying information from
                                                    Members, Participants, or Others                        including whether the proposed rule                     submissions. You should submit only
                                                      No written comments were either                       change is consistent with the Act.                      information that you wish to make
                                                    solicited or received.                                  Comments may be submitted by any of                     available publicly. All submissions
                                                    III. Date of Effectiveness of the                       the following methods:                                  should refer to File Number SR–BX–
                                                    Proposed Rule Change and Timing for                                                                             2015–053, and should be submitted on
                                                    Commission Action
                                                                                                              40 15  U.S.C. 78s(b)(3)(A).                           or before September 15, 2015.
                                                                                                              41 17  CFR 240.19b–4(f)(6). As required under Rule
                                                       Because the proposed rule change                     19b–4(f)(6)(iii), the Exchange provided the
                                                                                                                                                                       For the Commission, by the Division of
                                                    does not (i) significantly affect the                   Commission with written notice of its intent to file    Trading and Markets, pursuant to delegated
                                                    protection of investors or the public                   the proposed rule change, along with a brief            authority.46
                                                                                                            description and the text of the proposed rule
                                                                                                                                                                    Jill M. Peterson,
asabaliauskas on DSK5VPTVN1PROD with NOTICES




                                                    interest; (ii) impose any significant                   change, at least five business days prior to the date
                                                    burden on competition; and (iii) become                 of filing of the proposed rule change.                  Assistant Secretary.
                                                                                                               42 17 CFR 240.19b–4(f)(6).
                                                                                                                                                                    [FR Doc. 2015–20930 Filed 8–24–15; 8:45 am]
                                                      38 See                                                   43 17 CFR 240.19b–4(f)(6)(iii).
                                                             Securities Exchange Act Release No. 54739                                                              BILLING CODE 8011–01–P
                                                    (November 9, 2006), 71 FR 66993 (November 17,              44 See supra note 7.

                                                    2006) (SR–Amex–2006–78) (initial order relating to         45 For purposes only of waiving the 30-day
                                                    generic listing standards for ETFs based on             operative delay, the Commission has also
                                                    international or global indexes). See also BX           considered the proposed rule’s impact on
                                                    Options Rule 5705(a)(3)(A)(ii) and (b)(3)(A)(ii).       efficiency, competition, and capital formation. See
                                                      39 See Chapter XIV, Sections 6 and 3.                 15 U.S.C. 78c(f).                                         46 17   CFR 200.30–3(a)(12).



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Document Created: 2018-02-23 11:02:50
Document Modified: 2018-02-23 11:02:50
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
FR Citation80 FR 51622 

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