[Federal Register Volume 82, Number 231 (Monday, December 4, 2017)]
[Notices]
[Pages 57317-57320]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-25991]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-82163; File No. SR-C2-2017-031]


Self-Regulatory Organizations; Cboe C2 Exchange, Inc.; Notice of 
Filing and Immediate Effectiveness of a Proposed Rule Change To Clarify 
How the Options Regulatory Fee is Assessed and Collected

November 28, 2017.
    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 November 16, 2017, Cboe C2 Exchange, Inc. (the ``Exchange'' or 
``C2'') filed with the Securities and Exchange Commission (the 
``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 its Fees Schedule relating to the 
Options Regulatory Fee (``ORF'').
    The text of the proposed rule change is also available on the 
Exchange's Web site (http://www.c2exchange.com/Legal/ Legal/), at the 
Exchange's Office of the Secretary, 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 the 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to amend its Fees Schedule to clarify how the 
ORF is assessed and collected.
Background
    The ORF was established in August 2012.\3\ The ORF is assessed by 
the Exchange to each Permit Holder for options transactions executed or 
cleared by the Permit Holder that are cleared by The Options Clearing 
Corporation (``OCC'') in the customer range (i.e., transactions that 
clear in a customer account at OCC) regardless of the exchange on which 
the transaction occurs.
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    \3\ See Securities Exchange Act Release No. 67596 (August 6, 
2012), 77 FR 47902 (August 10, 2012) (the ``Original ORF Filing'').
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    The ORF is designed to recover a material portion of the costs to 
the Exchange of the supervision and regulation of Permit Holder 
customer options business, including performing routine surveillances, 
investigations, examinations, financial monitoring, as well as policy, 
rulemaking, interpretive and enforcement activities.\4\ The Exchange 
believes that revenue generated from the ORF, when combined with all of 
the Exchange's other regulatory fees and fines, will cover a material 
portion, but not all, of the Exchange's regulatory costs.
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    \4\ The Exchange notes that its regulatory responsibilities with 
respect to TPH compliance with options sales practice rules have 
largely been allocated to FINRA under a 17d-2 agreement. The ORF is 
not designed to cover the cost of that options sales practice 
regulation. See Securities Exchange Act Release No. 76309 (October 
29, 2015), 80 FR 68361 (November 4, 2015).
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    The Exchange monitors the amount of revenue collected from the ORF 
to ensure that it, in combination with its other regulatory fees and 
fines, does not exceed the Exchange's total regulatory

[[Page 57318]]

costs. The Exchange monitors its regulatory costs and revenues at a 
minimum on a semi-annual basis. If the Exchange determines regulatory 
revenues exceed or are insufficient to cover a material portion of its 
regulatory costs, the Exchange will adjust the ORF by submitting a fee 
change filing to the Commission. The Exchange notifies Permit Holders 
of adjustments to the ORF via regulatory circular. The Exchange 
endeavors to provide Permit Holders with such notice at least 30 
calendar days prior to the effective date of the change.
    Under the Exchange's current process, the ORF is assessed to Permit 
Holders and collected indirectly from Permit Holders through their 
clearing firms by OCC on behalf of the Exchange. The following 
scenarios reflect how the ORF is currently assessed and collected 
(these apply regardless if the transaction is executed on the Exchange 
or on an away exchange):
    1. If a Permit Holder is the executing clearing firm on a 
transaction (``Executing Clearing Firm''), the ORF is assessed to and 
collected from that Permit Holder by OCC on behalf of the Exchange.
    2. If a Permit Holder is the Executing Clearing Firm and the 
transaction is ``given up'' to a different Permit Holder that clears 
the transaction (``Clearing Give-up''), the ORF is assessed to the 
Executing Clearing Firm (the ORF is the obligation of the Executing 
Clearing Firm). The ORF is collected from the Clearing Give-up.
    3. If the Executing Clearing Firm is a non-Permit Holder and the 
Clearing Give-up is a Permit Holder, the ORF is assessed to and 
collected from the Clearing Give-up.
    4. If a Permit Holder is the Executing Clearing Firm and a non-
Permit Holder is the Clearing Give-up, the ORF is assessed to the 
Executing Clearing Firm. The ORF is the obligation of the Executing 
Clearing Firm but is collected from the non-Permit Holder Clearing 
Give-up (for the reasons described below).
    5. No ORF is assessed if a Permit Holder is neither the Executing 
Clearing Firm nor the Clearing Give-up.
    The Exchange uses an OCC cleared trades file to determine the 
Executing Clearing Firm and the Clearing Give-up.\5\
    In each of scenarios 1 through 4 above, if the transaction is 
transferred pursuant to a Clearing Member Trade Assignment (``CMTA'') 
arrangement to another clearing firm who ultimately clears the 
transaction, the ORF is collected from the clearing firm that 
ultimately clears the transaction (which firm may be a non-Permit 
Holder) by OCC on behalf of the Exchange. Using CMTA transfer 
information provided by the OCC, the Exchange subtracts the ORF charge 
from the monthly ORF bill of the clearing firm that transfers the 
position and adds the charge to the monthly ORF bill of the clearing 
firm that receives the CMTA transfer (i.e., the ultimate clearing 
firm). This process is performed at the end of each month on each 
transfer in the OCC CMTA transfer file for that month.\6\
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    \5\ The Exchange notes that in the case where a non-self-
clearing Permit Holder executes a transaction on the Exchange, the 
Permit Holder's guaranteeing Clearing Participant is reflected as 
the Executing Clearing Firm in the OCC cleared trades file and the 
ORF is assessed to and collected from the Executing Clearing Firm.
    \6\ The Exchange notes that OCC provides the Exchange and other 
exchanges with information to assist in excluding CMTA transfers 
done to correct bona fide errors from the ORF calculation. 
Specifically, if a clearing firm gives up or CMTA transfers a 
position to the wrong clearing firm, the firm that caused the error 
will send an offsetting CMTA transfer to that firm and send a new 
CMTA transfer to the correct firm. The offsetting CMTA transfer is 
marked with a CMTA Transfer ORF Indicator which results in the 
original erroneous transfer being excluded from the ORF calculation.
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Proposed Amendments to the Fees Schedule
    The Exchange proposes to amend its Fees Schedule in the following 
four respects to clarify how the ORF is assessed and collected.
    First, the Exchange proposes to amend its Fees Schedule to clarify 
that the ORF is collected by OCC on behalf of the Exchange from the 
Clearing Participant or non-Clearing Participant that ultimately clears 
the transaction. While the ORF is an obligation of Permit Holders, due 
to industry request the ORF is collected from the clearing firm that 
ultimately clears the eligible trade, even if such firm is a not a 
Permit Holder. The Exchange, OCC and the industry agreed to this 
collection method in response to comments that by collecting the ORF in 
this manner Permit Holders and non-Permit Holders could more easily 
pass-through the ORF to their customers. In the Original ORF Filing, 
the Exchange stated that it expects Permit Holders will pass-through 
the ORF to their customers in the same manner that firms pass-through 
to their customers the fees charged by self-regulatory organizations 
(``SROs'') to help the SROs meet their obligations under Section 31 of 
the Exchange Act.
    Accordingly, in scenario 4 above the ORF is collected from the non-
Clearing Participant that clears the transaction in order to facilitate 
the pass-through of the ORF to the end-customer. Likewise, collection 
of the ORF from the ultimate (CMTA) clearing firm facilitates the 
passing of the fee to the end-customer. In those cases where the ORF is 
collected from a non-Clearing Participant, the Exchange (through OCC) 
collects the ORF as a convenience for the Permit Holder whose 
obligation it is to pay the fee to the Exchange.
    As described above, under the Exchange's current process the 
Exchange subtracts the ORF from a CMTA transferor's ORF bill and adds 
it to the CMTA transferee's ORF bill for every transfer in the monthly 
OCC CMTA transfer file. Going forward, in order to avoid potentially 
collecting the ORF on any transactions that are not subject to the ORF, 
the Exchange will perform a check to determine whether the CMTA 
transferor or transferee is a Permit Holder. If either the CMTA 
transferor or transferee is a Permit Holder, the Exchange will collect 
the ORF from the transferee through the process described above. If 
neither the transferor nor transferee is a Permit Holder, the Exchange 
will not include that transfer as part of such process (i.e., the 
Exchange will not debit the ORF from the transferor or collect the ORF 
from the transferee). The consequence of this change is that there may 
be a very small number of instances each month in which a position that 
was assessed the ORF would not be passed to the ultimate clearing firm 
and the charge would remain with (and be collected from) the original 
clearing firm. The Exchange expects to implement this change for 
December 2017 ORF billing after a necessary system enhancement has been 
completed.
    Second, the Exchange proposes to amend its Fees Schedule to clarify 
that the ORF is assessed by the Exchange to each Permit Holder for 
options transactions cleared by the Permit Holder (as opposed to 
``executed or cleared'' by the Permit Holder) that are cleared by OCC 
in the customer range regardless of the exchange on which the 
transaction occurs. As described above, whether a transaction is 
subject to the ORF is determined by whether a Permit Holder is the 
Executing Clearing Firm or the Clearing Give-up as reflected in the OCC 
cleared trades file. Only the Executing Clearing Firm and the Clearing 
Give-up on the transaction are identified on the OCC file. Accordingly, 
because the ORF is always assessed to a Clearing Participant, the 
Exchange proposes to remove the words ``executed or'' from the Fee 
Schedule description of the ORF to clarify that the

[[Page 57319]]

ORF is assessed for options transactions cleared by a Permit Holder.
    Third, the Exchange proposes to clarify its process for assessing 
the ORF on linkage transactions. An options order entered on the 
Exchange may be routed to and executed on another exchange pursuant to 
the Options Order Protection and Locked/Crossed Market Plan. The 
Exchange may engage a routing broker to provide routing services to the 
Exchange as described in C2 Options Rule 6.36 (``Routing Services'') to 
facilitate linkage transactions. A customer order routed by a routing 
broker for execution at another exchange results in a transaction on 
that exchange and an obligation of the routing broker to pay the 
options regulatory fee, if any, of that exchange. After receiving a 
fill on the away exchange, the routing broker trades against the 
original order entered on the Exchange and incurs the C2 Options ORF. 
Pursuant to its agreement with the routing broker, the Exchange 
reimburses the routing broker for any options regulatory fee assessed 
by the Exchange and by the away market on which the customer order was 
executed. As a result, only the original customer order executed on the 
Exchange is assessed the ORF. The Exchange proposes to amend its Fees 
Schedule to clarify that, with respect to linkage transactions, the 
Exchange reimburses its routing broker providing Routing Services 
pursuant to C2 Options Rule 6.36 for options regulatory fees it incurs 
in connection with the Routing Services it provides.
    Fourth, the Exchange proposes to change the method it uses to 
assess the ORF to better align with the Exchange's Fees Schedule. 
Currently, the Exchange assesses the ORF to a Permit Holder based on 
the OCC clearing number(s) that the Permit Holder registers with the 
Exchange. A Permit Holder may have additional OCC clearing numbers that 
are not registered with the Exchange because they are used by the 
Permit Holder to clear activity on other exchanges. If a Permit Holder 
uses a non-C2 Options registered OCC clearing number on a transaction 
and that clearing number is denoted as the Executing Clearing Firm or 
the Clearing Give-up, the ORF is not assessed to that transaction 
because the clearing number is not known to the Exchange. Such 
transactions are subject to the ORF under the Exchange's Fees Schedule 
because the Executing Clearing Firm or the Clearing Give-up was a 
Permit Holder. The ORF is assessed at the Permit Holder entity level, 
not at the OCC clearing number level.
    In order to conform its ORF billing practice to its Fees Schedule, 
the Exchange proposes to amend the Fees Schedule to require Permit 
Holders, pursuant to Cboe Exchange, Inc. (``Cboe Options'') Rule 
15.1,\7\ to provide the Exchange with a complete list of its OCC 
clearing numbers. The Exchange would use the list provided solely for 
ORF billing purposes. Permit Holders would be required to keep such 
information up to date with the Exchange. The Exchange will issue a 
Regulatory Circular to provide Permit Holders with notice of this 
change and a deadline for initial submission of its OCC clearing 
numbers list. The Exchange expects to implement this change for 
December 2017 ORF billing in order for the Exchange to provide Permit 
Holders with notice of this new requirement and time to comply.\8\
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    \7\ Cboe Options Rule 15.1 (which applies to C2 Options Permit 
Holders) provides that no Trading Permit Holder shall refuse to make 
available to the Exchange such books, records or other information 
as may be called for under the Rules or as may be requested in 
connection with an investigation by the Exchange.
    \8\ The Exchange notes that the Cboe Options Fees Schedule 
includes certain requirements for Cboe Trading Permit Holders to 
provide certain information to Cboe Options related to Cboe Options 
fees. For example, footnote 13 of the Cboe Options Fees Schedule 
requires Trading Permit Holders to submit a rebate request form with 
supporting documentation in order to receive a rebate of transaction 
fees for certain options transactions.
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    The Exchange also proposes a couple of minor clean up changes to 
the Fees Schedule. The ORF is listed as being $0.0051 per contract 
through January 31, 2016 and $0.0015 per contract effective February 1, 
2016. As these dates have passed and the ORF is now simply $0.0015 per 
contract, the Exchange proposes to delete the reference to the ORF 
being $0.0051 per contract through January 31, 2016 and the February 1, 
2016 effective date of the $0.0015 per contract ORF.
2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with 
the Securities Exchange Act of 1934 (the ``Act'') and the rules and 
regulations thereunder applicable to the Exchange and, in particular, 
the requirements of Section 6(b) of the Act.\9\ Specifically, the 
Exchange believes the proposed rule change is consistent with Section 
6(b)(4) of the Act,\10\ which provides that Exchange rules may provide 
for the equitable allocation of reasonable dues, fees, and other 
charges among its Permit Holders and other persons using its 
facilities. Additionally, the Exchange believes the proposed rule 
change is consistent with the Section 6(b)(5) \11\ requirement that the 
rules of an exchange not be designed to permit unfair discrimination 
between customers, issuers, brokers, or dealers.
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    \9\ 15 U.S.C. 78f(b).
    \10\ 15 U.S.C. 78f(b)(4).
    \11\ 15 U.S.C. 78f(b)(5).
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    The Exchange believes the proposal to collect the ORF from non-
Permit Holders that ultimately clear the transaction is an equitable 
allocation of reasonable dues, fees, and other charges among its Permit 
Holders and other persons using its facilities. The Exchange notes that 
there is a material distinction between ``assessing'' the ORF and 
``collecting'' the ORF. The Exchange does not assess the ORF to non-
Permit Holders. The ORF is an obligation of Permit Holders. Once, 
however, the ORF is assessed to a Permit Holder for a particular 
transaction, the ORF may be collected from a Permit Holder or a non-
Permit Holder, depending on how the transaction is cleared at OCC. If 
there was no change to the clearing number of the original transaction, 
the ORF would be collected from the Permit Holder. If there was a 
change to the clearing number of the original transaction and a non-
Permit Holder becomes the ultimate clearing firm for that transaction, 
then the ORF will be collected from that non-Permit Holder. The 
Exchange believes that this collection practice is reasonable and 
appropriate, and was originally instituted at the request of the 
industry for the ORF be collected from the clearing firm that 
ultimately clears the transaction in order to facilitate the passing of 
the fee to the end-customer.
    The Exchange believes it is reasonable, equitable and 
nondiscriminatory not to pass the ORF to a CMTA transferee when neither 
the CMTA transferor nor the transferee is a Permit Holder because this 
would help ensure the ORF is not collected on any transactions that may 
not be subject to the ORF.
    The Exchange believes the proposal to clarify that the ORF is 
assessed to Permit Holders for options transactions cleared by the 
Permit Holder (as opposed to executed or cleared) is reasonable because 
it adds clarity to the Fees Schedule by better and more accurately 
describing the application of the ORF. The Exchange believes it is 
appropriate to charge the ORF only to transactions that clear as 
customer at the OCC. The Exchange believes that its broad regulatory 
responsibilities with respect to its Permit Holder's activities 
supports applying the ORF to transactions cleared by a Permit Holder.

[[Page 57320]]

The Exchange's regulatory responsibilities are the same regardless of 
whether a Permit Holder executes a transaction or clears a transaction 
executed on its behalf. The Exchange regularly reviews all such 
activity, including performing surveillance for position limit 
violations, manipulation, insider trading, front-running and contrary 
exercise advice violations. The Exchange believes the proposal is 
equitable and not unfairly discriminatory because it would apply in the 
same manner to Permit Holders subject to the ORF. The ORF is only 
assessed to a Permit Holder with respect to a particular transaction in 
which it is either the Executing Clearing Firm or the Clearing Give-up.
    The Exchange believes it is reasonable, equitable and 
nondiscriminatory to reimburse its routing broker for any options 
regulatory fees the broker incurs in connection with Routing Services 
because this helps ensure the Exchange does not charge the ORF more 
than once to a single customer order.
    The Exchange believes the proposal to require Permit Holders to 
provide the Exchange with a complete list of its OCC clearing numbers 
is reasonable because it would enable the Exchange to conform its ORF 
billing practice to its Fees Schedule by capturing transactions 
executed or cleared by Permit Holders. The Exchange believes the 
proposal is equitable and not unfairly discriminatory because it would 
apply in the same manner to Permit Holders subject to the ORF.

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. The proposed rule change is 
not intended to address any competitive issues but rather to provide 
more clarity and transparency regarding how the Exchange assesses and 
collects the ORF. The Exchange believes any burden on competition 
imposed by the proposed rule change is outweighed by the need to help 
the Exchange adequately fund its regulatory activities to ensure 
compliance with the Exchange Act.

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

    The Exchange neither solicited nor received comments on the 
proposed rule change.

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

    The foregoing rule change has become effective pursuant to Section 
19(b)(3)(A) of the Act \12\ and paragraph (f) of Rule 19b-4 \13\ 
thereunder. 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 will institute proceedings to 
determine whether the proposed rule change should be approved or 
disapproved.
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    \12\ 15 U.S.C. 78s(b)(3)(A).
    \13\ 17 CFR 240.19b-4(f).
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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 No. SR-C2-2017-031 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 No. SR-C2-2017-031. 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. Persons submitting 
comments are cautioned that we do not redact or edit personal 
identifying information from comment submissions. You should submit 
only information that you wish to make available publicly. All 
submissions should refer to File No. SR-C2-2017-031, and should be 
submitted on or before December 26, 2017.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\14\
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    \14\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017-25991 Filed 12-1-17; 8:45 am]
BILLING CODE 8011-01-P