[Federal Register Volume 85, Number 158 (Friday, August 14, 2020)]
[Notices]
[Pages 49708-49712]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17755]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-89513; File No. SR-BX-2020-015]


Self-Regulatory Organizations; Nasdaq BX, Inc.; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To Amend Rule 4764 
and Rule 4765

August 10, 2020.
    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 July 29, 2020, Nasdaq 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 Substance 
of the Proposed Rule Change

    The Exchange proposes to amend Rule 4764 (BX Kill Switch) and Rule 
4765 (Exchange Sharing of Participant Risk Settings) Commentary to 
provide Participants with additional optional settings.
    The text of the proposed rule change is available on the Exchange's 
website at https://listingcenter.nasdaq.com/rulebook/bx/rules, 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 purpose of the proposed rule changes under BX Rule 4764 (BX 
Kill Switch) and Rule 4765 (Exchange Sharing of Participant Risk 
Settings) Commentary is to provide Participants with additional 
optional settings in order to assist them in their efforts to manage 
their risk levels. Once the optional risk controls are set, the 
Exchange is authorized to take automated action if a designated risk 
level for a Participant is exceeded. Such risk settings would provide 
Participants with enhanced abilities to manage their risk with respect 
to orders on the Exchange.
    The proposed pre-trade risk controls described below are meant to 
supplement, and not replace, the Participant's own internal systems, 
monitoring and procedures related to risk management. For 
clarification, the Exchange does not guarantee that these controls will 
be sufficiently comprehensive to meet all of a Participant's needs, nor 
are the controls designed to be the sole means of risk management, and 
using these controls will not necessarily meet a Participant's 
obligations required by Exchange or federal rules (including, without 
limitation, the Rule 15c3-5 under the Act \3\ (``Rule 15c3-5'')). Use 
of the Exchange's Kill Switch or proposed risk setting in Rule 4765 
(Exchange Sharing of Participant Risk Settings) Commentary (h) will not 
automatically constitute compliance with Exchange or federal rules and 
responsibility for compliance with all Exchange and SEC rules remains 
with the Participant.\4\
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    \3\ 17 CFR 240.15c3-5.
    \4\ See Division of Trading and Markets, Responses to Frequently 
Asked Questions Concerning Risk Management Controls for Brokers or 
Dealers with Market Access, available at https://www.sec.gov/divisions/marketreg/faq-15c-5-risk-management-controls-bd.htm.

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[[Page 49709]]

    Rule 4764(a) provides the definition of the BX Kill Switch, which 
is an optional tool offered at no charge that enables participants to 
establish a pre-determined level of Net Notional Risk Exposure 
(``NNRE''), to receive notifications as the value of executed orders 
approaches the NNRE level, and to have order entry ports disabled and 
open orders administratively cancelled when the value of executed 
orders exceeds the NNRE level. Most order entry ports are assigned to 
one MPID. In the event that multiple MPIDs are assigned to one port, 
only the affected MPID is disabled from the port. The NNRE, although 
not explicitly defined,\5\ accounts for the daily dollar amount for buy 
and sell orders across all symbols, where both buy and sell orders are 
counted as positive values. For purpose of calculating NNRE, only 
executed orders are included.
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    \5\ The Exchange is not changing the NNRE functionality under 
the proposed amendment. Rather, it is being renamed as the Gross 
Executed Risk Exposure.
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    The Exchange is renaming the NNRE by proposing to remove references 
to ``Net Notional Risk Exposure'' and to replace them with ``Gross 
Executed Risk Exposure''. This risk level refers to a pre-established 
maximum daily dollar amount for buy and sell orders across all symbols, 
where both buy and sell orders are counted as positive values. For 
purposes of calculating Gross Executed Risk Exposure, only executed 
orders are included. The Exchange is not changing the NNRE calculation 
under the proposed amendment. Rather, it will be renamed as the Gross 
Executed Risk Exposure. This risk setting is identical to Nasdaq Stock 
Market LLC (``Nasdaq'') Rule 6130(a)(1) and similar to Cboe BZX 
Exchange, Inc.'s (``BZX'') Interpretations and Policies .03(a)(1) of 
BZX Rule 11.13.
    The Exchange is also proposing to add an additional risk setting 
titled ``Gross Notional Risk Exposure,'' which refers to a pre-
established maximum daily dollar amount for buy and sell orders across 
all symbols, where both buy and sell orders are counted as positive 
values. For purposes of calculating Gross Notional Risk Exposure, 
unexecuted orders on the Exchange book and executed orders are 
included. This setting is identical to Nasdaq Rule 6130(a)(2) and 
similar to Interpretations and Policies .03(a)(2) of BZX Rule 11.13, 
except BZX excludes unexecuted orders and counts purchases as positive 
values and sales are counted negative values. Additionally, the 
Exchange's rule is similar to New York Stock Exchange LLC (``NYSE'') 
Rule 7.19(a)(5) and NYSE Arca, Inc. (``Arca'') Rule 7.19-E(a)(5), 
except NYSE and Arca include orders routed on arrival. While the 
current functionality would continue to be available, this additional 
proposed risk setting would allow a Participant to manage its risk more 
comprehensively, instead of relying solely on the NNRE functionality 
offered today. For purposes of Rule 4764, the Exchange proposes to use 
the term ``Participant'' as defined in Rule 4701(c).\6\
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    \6\ Pursuant to BX Rule 4701(c), a ``Participant'' is defined as 
an entity that fulfills the obligations contained in Rule 4611 
regarding participation in the System, and shall include: (1) 
``Equities ECNs,'' members that meet all of the requirements of Rule 
4623, and that participates in the System with respect to one or 
more System Securities; (2) ``Equities Market Makers'' or ``Market 
Makers'', members that are registered as Equities Market Makers for 
purposes of participation in the System on a fully automated basis 
with respect to one or more System Securities; (3) ``Order Entry 
Firms,'' members that are registered as Order Entry Firms for 
purposes of entering orders in System Securities into the System. 
This term shall also include any Electronic Communications Network 
or Alternative Trading System (as such terms are defined in 
Regulation NMS) that fails to meet all the requirements of Rule 
4623.
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    The Exchange also proposes to make a conforming change to Rule 
4764(b) by removing ``Net Notional Risk Exposure'' and replacing it 
with ``Establishing and Adjusting Levels.'' The Exchange is also 
proposing to specify that a Participant's clearing member, as discussed 
below, may set the risk levels for each MPID individually. This action 
is identical to Nasdaq Rule 6130(b) and similar to Interpretations and 
Policies .03(b)(1) of BZX Rule 11.13 and NYSE Rule 7.19(b)(3)(B) and 
Arca Rule 7.19-E(b)(3)(B), except unlike NYSE and Arca, the Exchange 
does not allow for setting risk levels at the sub-ID of an MPID. 
Additionally, the proposal allows for the clearing member, in addition 
to the Participant, to set and adjust the values before the beginning 
of a trading day as well as set and adjust them during the trading day. 
This is identical to Nasdaq Rule 6130(b) and similar to Interpretations 
and Policies .03(b) of BZX Rule 11.13, NYSE Rule 7.19(b)(3)(A) and Arca 
Rule 7.19-E(b)(3)(A).
    The Exchange is proposing under Rule 4764(c) to allow clearing 
members, if designated pursuant to Rule 4764(d), to receive 
notifications when the total value of executed orders, and if 
applicable, unexecuted orders associated with an MPID exceeds 50, 75, 
85, 90, and 95 percent of the applicable risk level values. This rule 
is identical to Nasdaq Rule 6130(c) and similar to Interpretations and 
Policies .03(d) of BZX Rule 11.13, NYSE Rule 7.19(b)(4), and Arca Rule 
7.19-E(b)(4).
    A clearing member guarantees transactions executed on BX for 
members with whom it has entered into a clearing arrangement, and 
therefore bears the risk associated with those transactions. Because 
clearing members bear the risk on behalf of their Participant, the 
Exchange believes that it is appropriate for the clearing member to 
have knowledge of what risk settings the Participant may utilize within 
the Exchange's trading system, as well as the option to set and adjust 
the risk levels. The proposal will permit clearing members who have a 
financial interest in the risk settings of Participants with whom the 
Participants have entered into clearing arrangements to better monitor 
and manage the potential risks assumed by clearing members, thereby 
providing clearing members with greater control and flexibility over 
setting their own risk tolerance and exposure and aiding clearing 
members in complying with the Act. Therefore, the Exchange proposes to 
make the proposed optional risk settings in Rule 4764 available to 
clearing members, if so authorized by the Participant.
    Proposed Rule 4764(d) would allow for a Participant that does not 
self-clear to allocate responsibility for establishing and adjusting 
the risk levels to a clearing member that clears transactions on behalf 
of the Participant. A Participant may request to sign up for the Kill 
Switch optional setting by contacting Nasdaq Subscriber Services or by 
completing a Front End Request form.\7\ In order to allocate 
responsibility to a clearing member, a Participant must provide the 
Exchange with authorization, either by providing Nasdaq Subscriber 
Services with written authorization or by requesting the appropriate 
user role and permission for the clearing member via the Front End 
Request form. The Participant may adjust the user role and permissions 
at any time. If a Participant chooses to designate responsibility to 
its clearing member, the Participant may view any risk levels 
established by the clearing member pursuant to proposed Rule 4764(d). 
Additionally, by allocating responsibility to its clearing member, the 
Participant consents to the Exchange taking action as provided for in 
proposed Rule 4764(e). Even if a clearing member is designated, a 
Participant will continue to be notified by the Exchange of any action 
taken regarding its trading activity. By

[[Page 49710]]

allowing Participants to allocate the responsibility for establishing 
and adjusting such risk settings to its clearing member, the Exchange 
believes clearing members may reduce potential risks that they assume 
when clearing for Participants of the Exchange. A Participant may 
revoke responsibility allocated to its clearing member at any time by 
following the same process described above that is used to grant the 
clearing member authorization.
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    \7\ The Front End Request form is available at https://www.nasdaqtrader.com/EASP/TraderEASP.aspx?id=FrontEndForm.
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    Nasdaq, BZX, NYSE and Arca also provide similar designations to its 
clearing members pursuant to Nasdaq Rule 6130(d), Interpretations and 
Policies .03(c) of BZX Rule 11.13, NYSE Rule 7.19(b)(2), and Arca Rule 
7.19-E(b)(2). However, unlike NYSE and Arca, the Exchange does not 
allow for multiple risk level values to be in place at one time.
    The Exchange also proposes to renumber current Rule 4764(d) as Rule 
4764(e) and retitle it to more accurately describe the provision by 
removing ``Operation'' and replacing it with ``Breach Action and 
Reinstatement.'' Additionally, the Exchange is proposing to clarify 
that when a pre-established risk level is breached and the Kill Switch 
is triggered, it shall result in the immediate cancellation of all 
unexecuted orders of any type or duration entered by the Participant 
via the affected MPID, and in the immediate prevention of order entry 
of any type via affected MPID. The Participant or the clearing member, 
if designated pursuant to paragraph (d), must request reactivation of 
the MPID before trading will be reauthorized.
    As a reminder, pursuant to current Rule 4765, the Exchange will 
continue to share any Participant risk settings in the trading system 
that are specified in Rule 4764 and the Rule 4765 Commentary with the 
clearing member that clears transactions on behalf of the Participant 
even if the clearing member is not designated. Under current Rule 4765 
Commentary, the Exchange offers certain risk settings applicable to a 
Participant on the Exchange. Proposed Rule 4765 Commentary (h) would 
allow for a Participant to limit the maximum dollar amount that the 
Participant may associate with an order placed on the Exchange. This 
risk setting is identical to Nasdaq Rule IM-6200-1(h) and similar to 
the risk control provided by NYSE pursuant to Rule 7.19(a)(3) and Arca 
pursuant to Rule 7.19-E(a)(3). When the Maximum Single Order Notional 
Check is enabled, if a Participant breaches this risk setting, the 
single order will be rejected by the system. The action taken is 
identical to Nasdaq Rule IM-6200-1(h) and similar to NYSE Rule 
7.19(c)(2) and Arca Rule 7.19-E(c)(2).
    The Exchange is also proposing to make the following non-
substantive conforming changes:
     Capitalize the term ``Participant'' when referenced 
throughout the rule.
     Remove the term ``open orders'' and replace with 
``unexecuted orders''.
     Remove all references to the acronym ``NNRE'' throughout 
the rule in conjunction with the removal of the reference to ``Net 
Notional Risk Exposure.''
     Renumber Rule 4765 Commentary to conform to the addition 
of proposed Rule 4765 Commentary (h).
    The Exchange will announce the implementation date of the proposed 
rule change in a Trader Alert to be published no later than 60 days 
following the effective date. The implementation date will be no later 
than 90 days following the effective date.\8\
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    \8\ The Exchange will implement the Net Notional Risk Exposure 
and the Gross Notional Risk Exposure risk settings as soon as 
possible. The Maximum Single Order Notional Check will be 
implemented within 90 days following the effective date.
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2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act,\9\ in general, and furthers the objectives of Section 
6(b)(5) of the Act,\10\ 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.
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    \9\ 15 U.S.C. 78f(b).
    \10\ 15 U.S.C. 78f(b)(5).
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    Specifically, the Exchange believes the proposed amendment will 
remove impediments to and perfect the mechanism of a free and open 
market and a national market system because it provides functionality 
for a Participant to manage its risk exposure under Rule 4764 and Rule 
4765 Commentary, while also providing a notification system under Rule 
4764(c) that would help to ensure the Participant and its clearing 
member are aware of developing issues. In addition, the proposed 
amendments to Rule 4764 would provide clearing members, who have 
assumed certain risks of Participants, greater control over risk 
tolerance and exposure on behalf of their correspondent Participant, 
while helping to ensure that both Participant and its clearing member 
are aware of developing issues.
    A clearing member guarantees transactions executed on BX for 
members with whom it has entered into a clearing arrangement, and 
therefore bears the risk associated with those transactions. The 
Exchange therefore believes that it is appropriate for the clearing 
member to have knowledge of what risk settings the Participant may 
utilize within the Exchange's trading system, as well as the option to 
set and adjust the risk levels. The proposal will permit clearing 
members who have a financial interest in the risk settings of 
Participants with whom the Participants have entered into clearing 
arrangements to better monitor and manage the potential risks assumed 
by clearing members, thereby providing clearing members with greater 
control and flexibility over setting their own risk tolerance and 
exposure and aiding clearing members in complying with the Act.
    In addition, the Exchange believes that the proposed amendments 
under Rule 4764 and Rule 4765 Commentary are designed to protect 
investors and the public interest because the proposed functionalities 
are a form of risk mitigation that will aid Participants and clearing 
members in minimizing their financial exposure and reduce the potential 
for disruptive, market-wide events. The proposed Gross Executed Risk 
Exposure and Gross Notional Risk Exposure settings are appropriate 
measures to serve as an additional tool for Participants and clearing 
members to assist them in identifying risk exposure by identifying when 
the Participant is reaching its maximum dollar amount for purchases and 
sales across all symbols. The Exchange also believes the proposed 
amendments will assist Participants and clearing members in managing 
their financial exposure which, in turn, could enhance the integrity of 
trading on the securities markets and help to assure the stability of 
the financial system. Moreover, a Participant may revoke responsibility 
allocated to its clearing member at any time.
    Further, the Exchange believes that the proposed amendments under 
Rule 4764 and Rule 4765 Commentary (h) will foster cooperation and 
coordination with persons facilitating transactions in securities 
because under Rule 4764(c), the Exchange will provide alerts when a 
Participant's trading activity reaches certain thresholds and under 
Rule 4765 Commentary (h), the Exchange will limit the Participant's 
maximum dollar amount placed on an order. As such, the Exchange may 
help clearing members monitor the risk levels of corresponding 
Participants.
    Finally, the Exchange believes that the proposed rule changes do 
not

[[Page 49711]]

unfairly discriminate among Participants because use of the risk 
settings under Rule 4764 and Rule 4765 Commentary (h) are optional and 
available to all Participants, and not a prerequisite for participation 
on the Exchange. In addition, because all orders on the Exchange would 
pass through the risk checks, there would be no difference in the 
latency experienced by Participants who have opted to use the risk 
settings versus those who have not opted to use them.\11\
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    \11\ All Exchange orders pass through a basic risk check 
regardless of whether a Participant opts into a risk setting.
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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 not necessary or appropriate in 
furtherance of the purposes of the Act. In fact, the Exchange believes 
that the proposal will have a positive effect on competition because, 
it would allow the Exchange to offer risk management functionality that 
is comparable to functionality being offered by other national 
securities exchanges.\12\ Moreover, by providing Participants and their 
clearing members additional means to monitor and control risk, the 
proposed rule may increase confidence in the proper functioning of the 
markets and contribute to additional competition among trading venues 
and broker-dealers. Rather than impede competition, the proposal is 
designed to facilitate more robust risk management by Participants and 
clearing members, which, in turn, could enhance the integrity of 
trading on the securities markets and help to assure the stability of 
the financial system.
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    \12\ See Securities Exchange Act Release Nos. 89225 (July 6, 
2020) 85 FR 41650 (July 10, 2020); 88904 (May 19, 2020) 85 FR 31560 
(May 26, 2020) (SR-NYSEArca-2020-43); 88776 (April 29, 2020) 85 FR 
26768 (May 5, 2020) (SR-NYSE-2020-17) (Approval Order); 88599 (April 
8, 2020) 85 FR 20793 (April 14, 2020) (SR-CboeBZX-2020-006) 
(Approval Order).
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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) of the Act \13\ and Rule 19b-
4(f)(6) thereunder.\14\
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    \13\ 15 U.S.C. 78s(b)(3)(A).
    \14\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii) 
requires a self-regulatory organization to give the Commission 
written notice of its intent to file the proposed rule change, along 
with a brief description and text of 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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    A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the 
Act \15\ normally does not become operative for 30 days from the date 
of filing. However, Rule 19b-4(f)(6)(iii) \16\ 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. The Commission 
notes that the Exchange plans to implement the Gross Executed Risk 
Exposure and the Gross Notional Risk Exposure risk settings as soon as 
possible.\17\ The Commission believes that waiver of the operative 
delay would allow the Exchange to provide Participants and their 
clearing members expeditiously with additional optional settings to 
manage their risk levels. The Commission believes that waiver of the 
30-day operative delay is consistent with the protection of investors 
and the public interest. Accordingly, the Commission waives the 30-day 
operative delay and designates the proposed rule change operative upon 
filing.\18\
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    \15\ 17 CFR 240.19b-4(f)(6).
    \16\ 17 CFR 240.19b-4(f)(6)(iii).
    \17\ According to the Exchange, the Maximum Single Order 
Notional Check will be implemented within 90 days following the 
effective date.
    \18\ 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).
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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 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-2020-015 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-BX-2020-015. 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 website (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 website 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 Number SR-BX-2020-015 and should be submitted on 
or before September 4, 2020.


[[Page 49712]]


    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\19\
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    \19\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-17755 Filed 8-13-20; 8:45 am]
BILLING CODE 8011-01-P