[Federal Register Volume 82, Number 120 (Friday, June 23, 2017)]
[Notices]
[Pages 28712-28715]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-13103]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-80972; File No. SR-Phlx-2017-39]


Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To Amend Rule 1049, 
Communications to Customers

June 19, 2017.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on June 8, 2017, NASDAQ PHLX LLC (``Phlx'' or ``Exchange'') filed with 
the Securities and Exchange Commission (``SEC'' or ``Commission'') the 
proposed rule change as described in Items I, II, and III, 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 Substance 
of the Proposed Rule Change

    The Exchange proposes to amend Rule 1049, Communications to 
Customers. The proposed rule change is intended to update and modernize 
Rule 1049, to be retitled ``Options Communications,'' and to conform it 
to rules of other options exchanges regarding communications to 
customers. It makes both organizational and substantive changes that 
have previously been made by other options exchanges.
    The text of the proposed rule change is available on the Exchange's 
Web site at http://nasdaqphlx.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 is a party to a 17d-2 agreement with the Financial 
Industry Regulatory Authority, Inc. (``FINRA'') and other options 
exchanges (the ``Options Multiparty 17d-2 Agreement'' or the ``17d-2 
Agreement'').\3\ The 17d-2 Agreement allocates regulatory 
responsibilities with respect to broker-dealers, and persons associated 
therewith, that are members of more than one Participant (the ``Common 
Members'') and conduct a public business for compliance with specified 
common rules relating to the conduct by broker-dealers and associated 
persons of accounts for listed options, index warrants, currency index 
warrants, and currency warrants (collectively, ``Covered Securities''). 
Pursuant to the 17d-2 Agreement, FINRA is the Designated Options 
Examining Authority (``DOEA'') for its broker-dealer members that also 
are members of Phlx. Thus, FINRA has certain examination and 
enforcement responsibilities relating to compliance by Common Members 
with the rules of Phlx that are substantially similar to the rules of 
FINRA (the ``Common Rules'') identified in the 17d-2 Agreement.
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    \3\ See Agreement by and among Bats BZX Exchange, Inc., BOX 
Options Exchange, LLC, the Chicago Board Options Exchange, 
Incorporated, C2 Options Exchange, Incorporated, the International 
Securities Exchange, LLC, Financial Industry Regulatory Authority, 
Inc., Miami International Securities Exchange, LLC, the NYSE MKT 
LLC, the NYSE Arca, Inc., The NASDAQ Stock Market LLC, NASDAQ BX, 
Inc., the NASDAQ PHLX LLC, ISE Gemini, LLC, Bats EDGX Exchange, 
Inc., ISE Mercury, LLC and MIAX PEARL, LLC, Pursuant to Rule 17d-2 
under the Securities Exchange Act of 1934. See also Securities 
Exchange Act Release No. 79929 (February 2, 2017), 82 FR 9757 
(February 8, 2017).
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    Phlx Rule 1049, Communications to Customers, is not currently a 
Common Rule under the 17d-2 Agreement. Rule 1049 sets forth a range of 
requirements applicable to members, member organizations, or persons 
associated with a member organization utilizing any advertisement, 
educational material, sales literature or other communications to any 
customer or member of the public. The purpose of this proposed rule 
change is to update, clarify and conform Rule 1049 to the rules of 
FINRA and other options exchanges regarding options communications to 
customers that are included as Common Rules under the 17d-2 Agreement, 
so that it too may qualify as a Common Rule under the 17d-2 Agreement. 
The proposed rule change would make both organizational and substantive 
changes that have previously been made by other exchanges in order to 
conform to FINRA rules.\4\
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    \4\ See, e.g., FINRA Rule 2220, CBOE Rule 9.21, MIAX Rule 1322, 
and ISE Rule 623.
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    Specifically, this proposed rule change is based upon, and makes 
changes that have previously been made to, Chicago Board Options 
Exchange (``CBOE'') Rule 9.21 (a Common Rule) over the past ten years, 
on a cumulative basis, by SR-CBOE-2013-043;\5\ SR-CBOE-2010-035 \6\ and 
SR-CBOE-2007-30.\7\ Current Phlx Rule 1049 is very similar in content 
and organization to CBOE Rule 9.21 as it existed prior to approval of 
SR-CBOE-2007-30. Upon implementation of the amendments proposed herein, 
Exchange Rule 1049 would once again track CBOE Rule 9.21 nearly word 
for word.\8\ The

[[Page 28713]]

amendments, if adopted, would provide a more uniform approach to 
communications to customers regarding standardized options. The 
proposed changes are discussed below.
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    \5\ See Securities Exchange Act Release 69807 (June 20, 2013), 
78 FR 38423 (June 26, 2013) (SR-CBOE-2013-043)
    \6\ See Securities Exchange Act Release No. 62034 (May 4, 2010), 
75 FR 26303 (May 10, 2010) (SR-CBOE-2010-35). This was an interim 
rule change relating to market letters which are no longer addressed 
in CBOE rules and are thus not addressed in this proposed rule 
change.
    \7\ See Securities Exchange Act Release No. 58823 (October 21, 
2008), 73 FR 63747 (October 28, 2008) (SR-CBOE-2007-30).
    \8\ The only substantive difference between CBOE Rule 9.21 and 
proposed Phlx Rule 1049 is with respect to index warrants. Current 
Phlx Rule 1049 states at section (f) that the provisions of Rule 
1049 are applicable to index warrants, and at Commentary .05 that, 
for purposes of the rule the term ``option'' is deemed to include 
index warrants and the term ``The Options Clearing Corporation'' is 
deemed to mean the issuer(s) of such warrants. CBOE Rule 9.21 does 
not contain comparable provisions. No changes are proposed with 
respect to these provisions. Provisions relating to index warrants 
were added to Rule 1049 by Phlx in 1994 as part of a comprehensive 
proposed rule change establishing rules for the listing and trading 
of stock index, currency and currency index warrants. See Securities 
Exchange Act Release No. 36167 (August 29, 1995), 60 FR 46667 
(September 7, 1995).
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Redesignation of Rule 1049(e) to Proposed Rule 1049(a) and New 
Definitions
    Rule 1049(e) currently defines terms used in Rule 1049. Phlx 
proposes to redesignate paragraph (e) as paragraph (a). Phlx also 
proposes to delete the existing definitions of ``advertisement'',\9\ 
``educational material'' \10\ and ``sales literature'',\11\ and to add 
new definitions of ``correspondence'', ``institutional communication'' 
and ``retail communication'' which collectively would constitute 
``options communications'' under the revised rule. These new terms are 
necessary because FINRA, in reframing its customer communications rule, 
previously adopted these new terms to describe various categories of 
communications. The term ``correspondence'' would include any written 
(including electronic) communication distributed or made available to 
25 or fewer retail customers within any 30 calendar-day period. The 
term ``institutional communication'' would include any written 
(including electronic) communication concerning options that is 
distributed or made available only to institutional investors, but 
would not include a member's internal communications.\12\ Finally, 
``retail communication'' would be defined to mean any written 
(including electronic) communication that is distributed or made 
available to more than 25 retail investors within any 30 calendar-day 
period.
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    \9\ The term ``advertisement'' is currently defined in Rule 
1049(e) as including any sales material that reaches a mass audience 
through public media such as newspapers, periodicals, magazines, 
radio, television, telephone recording, motion picture, audio or 
video device, telecommunications device, billboards, signs, or 
through written communications to customers or the public not 
required to be accompanied or preceded by one or more current 
Options Disclosure Documents.
    \10\ The term ``educational material'' is currently defined in 
Rule 1049(e)(ii) as including any explanatory material distributed 
or made generally available to customers or the public that is 
limited to information describing the general nature of the 
standardized options markets or one or more strategies.
    \11\ The term ``sales literature'' is currently defined in Rule 
1049(e)(iii) as including any written communication (not defined as 
an ``advertisement'' or as ``educational material'') distributed or 
made available to customers or the public that contains any 
analysis, performance report, projection or recommendation with 
respect to options, underlying securities or market conditions, any 
standard forms of worksheets, or any seminar text which pertains to 
options and which is communicated to customers or the public at 
seminars, lectures or similar such events, or any Exchange-produced 
materials pertaining to options.
    \12\ The term institutional investor would mean any qualified 
investor as defined in Section 3(a)(54) of the Securities Exchange 
Act of 1934.
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    The Exchange proposes corresponding amendments throughout Rule 1049 
to the provisions referring to advertisement, educational material and 
sales literature, including deletion of Commentary .02A of Rule 1049, 
which outlines what is permitted in an advertisement, and Commentary 
.03 of Rule 1049, which concerns the content of educational material.
Relocation of Rule 1049(a) to Proposed Rule 1049(d)
    Rule 1049(a) currently contains an outline of the ``General Rule'' 
for options communications. Phlx proposes to redesignate Rule 1049(a) 
as Rule 1049(d), and to incorporate limitations on the use of options 
communications currently contained in Commentary .01 of Rule 1049 into 
proposed Rule 1049(d).\13\ In addition, proposed Rule 1049(d)(iii) 
would amend current Rule 1049(a)(iii) by clarifying the types of 
cautionary statements and caveats that are prohibited. The Exchange is 
proposing to relocate to Rule 1049(d), and slightly modify, language 
currently found in Rule 1049 Commentary .01 governing acceptable 
content of options communications. Section A of Rule 1049 Commentary 
.04 currently sets forth the requirement that ``sales literature'' 
shall state that supporting documentation for any claims, comparisons, 
recommendations, statistics or other technical data, will be supplied 
upon request. The Exchange proposes to redesignate Section A of Rule 
1049 Commentary .04 as proposed Rule 1049(d)(vii), which would have the 
effect of making those conditions applicable to options communications 
as defined in proposed Rule 1049 rather than to the deleted term 
``sales literature.'' Proposed Rule 1049(d)(viii) would provide that 
certain aspects of the General Rule set forth in paragraphs (vi) and 
(vii) are inapplicable to institutional communications.
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    \13\ Current Rule 1049(d), which limits the dissemination of 
written materials respecting options to persons who have not 
received the current Options Disclosure Document (``ODD''), would be 
deleted. Rules governing communications prior to or after delivery 
of the current ODD would be set forth in new Rule 1049(e).
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Proposed Amendments to Rule 1049(b)
    Phlx proposes to amend Rule 1049(b) to include the types of 
communications proposed to be added to the definition of ``options 
communications'' in proposed Rule 1049(a). Current Rule 1049(b) which 
imposes an obligation to obtain advance approval by a Registered 
Options Principal (``ROP'') for most options communications, would be 
replaced by new language set forth in Rule 1049(b)(i)-(iv). Rule 
1049(b)(i) would preserve this requirement with respect to retail 
communications. However, proposed Rule 1049(b)(ii) would remove 
correspondence, as defined in Rule 1049(a), from the pre-approval 
requirement. All correspondence would, however, be subject to general 
supervision and review requirements.\14\ Additionally, proposed Rule 
1049(b)(iii) would remove institutional communications, as defined in 
Rule 1049(a), from the pre-approval requirement, but would require each 
member or member organization to establish written procedures that are 
appropriate to its business, size, structure, and customers for review 
by a ROP of institutional communications used by the member or member 
organization.
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    \14\ See Phlx Rule 1025.
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    Finally, proposed Rule 1049(b)(iv) would require copies of the 
options communications to be retained by the member or member 
organization in accordance with Rule 17a-4 \15\ under the Securities 
Exchange Act of 1934. The names of the persons who prepared the options 
communications, the names of the persons who approved the options 
communications, and the source of any recommendations contained therein 
would also be required to be retained by the member or member 
organization and kept in the form and for the time periods required for 
options communications by Rule 17a-4.
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    \15\ 17 CFR 240.17a-4.
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Proposed Amendments to Rule 1049(c)
    Rule 1049(c) currently requires members to obtain approval from the 
Exchange for every advertisement and all educational material. This 
requirement applies regardless of whether the options communications 
are used before or after the delivery of a current ODD. Phlx proposes 
to amend this provision to require Exchange approval only with respect 
to retail communications of a member or member organization pertaining 
to standardized options that is not accompanied or preceded by the 
applicable current ODD. Such retail communications would be required to 
be submitted at least ten calendar days prior to use (or such shorter 
period as the Exchange may allow in particular instances). The Exchange 
pre-approval requirement for options

[[Page 28714]]

communications used subsequent to the delivery of the ODD is being 
eliminated because the ODD is designed to alert the customer to the 
characteristics and risks associated with trading in options.
    Rule 1049(c) would also be amended to delete references to 
``advertisements'' and ``educational material,'' which as discussed 
above would no longer be defined, and to include instead the types of 
communications added to the definition of ``options communications'' in 
proposed Rule 1049(a). The Exchange is also proposing to add language 
which would further exempt the ODD and a prospectus from Exchange 
review as these documents have other further requirements under the 
Securities Act of 1933.
Proposed Rule 1049(e)
    Proposed new Rule 1049(e) would set forth (i) standards for options 
communications that are not preceded or accompanied by an ODD and (ii) 
standards for options communications used prior to delivery of an ODD. 
These requirements generally would clarify and restate the requirements 
contained in the current Commentary .02A of Rule 1049 which, as noted 
above, would be deleted.
Proposed Amendments to Rule 1049 Commentary Sections
    Proposed new Commentary .01 would include and amend the provisions 
found in current Section A of Commentary .02 regarding how the Rule 
1049(e)(i)(B) requirement that options communications contain contact 
information for obtaining a copy of the ODD may be satisfied. As noted 
above, the current provisions of Commentary .01 regarding limitations 
on the use of options communications are proposed to be incorporated 
into proposed Rule 1049(d).\16\
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    \16\ Commentary .01 Section A contains an example which is not 
being incorporated into proposed Rule 1049(d), as it is not found in 
CBOE Rule 9.21(d).
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    Proposed Commentary .02, Projections, would be revised to amend and 
include the provisions currently located in Section B of Commentary 
.04, which pertain to standards for ``Sales Literature'' that contains 
projected performance figures. These provisions would be amended to 
apply to options communications rather than to the deleted defined term 
Sales Literature. As previously noted, the provisions of Commentary .02 
that outline what is permitted in an advertisement are proposed to be 
deleted, and the provisions relating to standards for options 
communications used prior to delivery of the ODD are proposed to be 
incorporated into proposed Rule 1049(e)(ii). Proposed Rule 1049(e)(i) 
would limit all options communications that are not preceded or 
accompanied by the ODD.
    Proposed Commentary .03, Historical Performance, would be revised 
to amend and include the provisions currently found in Section C of 
Commentary .04 pertaining to standards for sales literature that 
contains historical performance figures. These provisions would be 
amended to apply to options communications rather than to the deleted 
defined term sales literature. Existing Commentary .03, which concerns 
the content of educational material (another defined term proposed to 
be deleted), is proposed to be deleted as noted above. Proposed Rule 
1049(e)(i) would limit all options communications that are not preceded 
or accompanied by the ODD.
    Proposed Commentary .04, Options Programs, would contain the 
provisions of current Section D of Commentary .04, and would require 
communications regarding an options program (i.e., an investment plan 
employing the systematic use of one or more options strategies), the 
cumulative history or unproven nature of the program and its underlying 
assumptions to be disclosed. Commentary .04 currently sets forth the 
standards applicable to ``Sales Literature.'' The Exchange proposes to 
delete existing Sections E, F and G of Commentary .04 dealing with 
worksheets and recordkeeping with respect to communications that 
portray performance of past recommendations or actual transactions, in 
favor of the new customer communications rules applicable to options 
communications generally that are consistent with those of other 
options exchanges.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act,\17\ in general, and furthers the objectives of Section 
6(b)(5) of the Act,\18\ 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 to protect investors and the public interest, by 
conforming Rule 1049 more closely to the Common Rules regarding options 
communications under the 17d-2 Agreement. By doing so, the proposal 
also furthers the objectives of Section 6(b)(1) \19\ of the Act as the 
amendments would better enable the Exchange to be so organized as to 
have the capacity to be able to carry out the purposes of the Act and 
to comply, and to enforce compliance by its members with the provisions 
of the Act, the rules and regulations thereunder, and the rules of the 
Exchange.
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    \17\ 15 U.S.C. 78f(b).
    \18\ 15 U.S.C. 78f(b)(5).
    \19\ 15 U.S.C. 78f(b)(1).
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    In its most recent approval order for the 17d-2 Agreement \20\ the 
Commission noted that Section 19(g)(1) of the Act,\21\ among other 
things, requires every self-regulatory organization (``SRO'') 
registered as either a national securities exchange or national 
securities association to examine for, and enforce compliance by, its 
members and persons associated with its members with the Act, the rules 
and regulations thereunder, and the SRO's own rules, unless the SRO is 
relieved of this responsibility pursuant to Section 17(d) \22\ or 
Section 19(g)(2) \23\ of the Act.
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    \20\ See Securities and Exchange Act Release No. 79929 (February 
2, 2017).
    \21\ 15 U.S.C. 78s(g)(1).
    \22\ 15 U.S.C. 78q(d)(1).
    \23\ 15 U.S.C. 78s(g)(2).
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    Without this relief, the statutory obligation of each individual 
SRO could result in a pattern of multiple examinations of broker-
dealers that maintain memberships in more than one SRO (``common 
members''). In its decision, the Commission noted that such regulatory 
duplication would add unnecessary expenses for common members and their 
SROs. Finally, it observed that under paragraph (c) of Rule 17d-2, the 
Commission may declare joint plans for the allocation of regulatory 
responsibilities with respect to their common members effective if, 
after providing for notice and comment, it determines that the plan is 
necessary or appropriate in the public interest and for the protection 
of investors, to foster cooperation and coordination among the SROs, to 
remove impediments to, and foster the development of, a national market 
system and a national clearance and settlement system, and is in 
conformity with the factors set forth in Section 17(d) of the Act.
    The 17d-2 Plan covering the Common Rules is designed to eliminate 
regulatory duplication and unnecessary expense for common members and 
the SROs including Phlx, with respect to the Common Rules. By amending 
Rule 1049 so that it, like CBOE Rule 9.21, is ``substantially similar'' 
to the FINRA rules of similar purpose and therefore eligible to become 
a Common Rule for purposes of the 17d-2 Agreement, the Exchange is 
eliminating regulatory duplication and unnecessary expense as 
contemplated by Commission Rule 17d-

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2, and facilitating more efficient regulatory compliance by its 
members.\24\
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    \24\ CBOE Rule 9.21 and FINRA Rules 2360(b)(18) and 2354 are 
designated as Common Rules under the 17d-2 Agreement.
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    Additionally, the modernization of Rule 1049 promotes just and 
equitable principles of trade, removes impediments to and perfects the 
mechanism of a free and open market and a national market system, and 
protects investors and the public interest, because it is designed to 
alert members to requirements with respect to options communications 
and to bring clarity to its members and the public regarding the 
Exchange's options communications rule. The Exchange therefore believes 
that the proposed rule change will help ensure that investors are 
protected from potentially false or misleading communications with the 
public distributed by Exchange members.

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

    The Exchange does not believe that the amendments to Rule 1049 
proposed herein will impose any burden on competition not necessary or 
appropriate in furtherance of the purposes of the Act inasmuch as the 
amendments conform Rule 1049 more closely to the Common Rules regarding 
options communications to customers under the 17d-2 Agreement.

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 foregoing proposed rule change does not: (i) 
Significantly affect the protection of investors or the public 
interest; (ii) impose any significant burden on competition; and (iii) 
become operative for 30 days from the date on which it was filed, or 
such shorter time as the Commission may designate, it has become 
effective pursuant to Section 19(b)(3)(A)(iii) of the Act \25\ and 
subparagraph (f)(6) of Rule 19b-4 thereunder.\26\
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    \25\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \26\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6) 
requires a self-regulatory organization to give the Commission 
written notice of its intent to file the proposed rule change at 
least five business days prior to the date of filing of the proposed 
rule change, or such shorter time as designated by the Commission. 
The Exchange has satisfied this requirement.
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    At any time within 60 days of the filing of the proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is: (i) 
Necessary or appropriate in the public interest; (ii) for the 
protection of investors; or (iii) 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 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-Phlx-2017-39 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-Phlx-2017-39. 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 the filing also will be available 
for inspection and copying at the principal office of the Exchange. All 
comments received will be posted without change; 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-Phlx-2017-39 and 
should be submitted on or before July 14, 2017.
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    \27\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\27\
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017-13103 Filed 6-22-17; 8:45 am]
 BILLING CODE 8011-01-P