[Federal Register Volume 87, Number 187 (Wednesday, September 28, 2022)]
[Notices]
[Pages 58891-58894]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-20942]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-95865; File No. SR-CboeBYX-2022-022]


Self-Regulatory Organizations; Cboe BYX Exchange, Inc.; Notice of 
Filing and Immediate Effectiveness of a Proposed Rule Change To 
Eliminate the Listings Standards Provided for in Chapter XIV of the 
Exchange's Rulebook

September 22, 2022.
    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 September 9, 2022, Cboe BYX Exchange, Inc. filed with the 
Securities and Exchange Commission (the ``Commission'') the proposed 
rule change as described in Items I and II below, which Items have been 
prepared by the self-regulatory organization. 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

    Cboe BYX Exchange, Inc. (the ``Exchange'' or ``BYX'') is filing 
with the Securities and Exchange Commission (``Commission'') a proposed 
amendment to eliminate the listings standards provided for in Chapter 
XIV of the Exchange Rulebook as the Exchange is not a listing venue.\3\ 
The text of the proposed rule change is provided in Exhibit 5.
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    \3\ As noted in a recent filing, the Exchange represented that 
it planned to submit a proposal to amend its applicable Rules set 
forth in Chapter XIV in order to reflect that the Exchange does not 
currently list any securities, nor does it intend to list any 
securities, in the foreseeable future. Accordingly, the Exchange is 
now proposing to amend its Rules. See Securities Exchange Act No. 
89012 (June 4, 2020) 85 FR 35467 (June 10, 2020) (SR-CboeBYX-2020-
017).
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    The text of the proposed rule change is also available on the 
Exchange's website (http://markets.cboe.com/us/equities/regulation/rule_filings/byx/), 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 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    As part of this proposal, the Exchange proposes to (1) adopt a new 
definition for Derivative Security, move the definition of unlisted 
trading privileges (``UTP'') Derivative Security \4\ from Rule 14.1(c) 
to Exchange Rule 1.5(ee), and amend Rule 3.21 to reference proposed 
Rule 1.5(ee); (2) eliminate listing standards and any references to 
Exchange listed securities from Chapter XIV (Securities Traded) and 
Rules 3.7, 11.2, and 13.6; (3) amend Rule 14.1(a) to provide for NMS 
stocks rather than equity securities and amend the Exchange's 
additional rules applicable to UTP Derivative Securities as provided in 
Rule 14.1(c)(1)-(6); and (4) amend Rule 14.10 to make ministerial 
changes to update paragraph numbering. As discussed in further detail 
below, all of the proposed changes are substantially similar to other 
exchange rules.
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    \4\ See Rule 14.1(c) and proposed Rule 1.5(dd).

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[[Page 58892]]

(1) Proposal To Define Derivative Security in Exchange Rule 1.5(dd) and 
Add the Definition of UTP Derivative Security to Re-Lettered Exchange 
Rule 1.5(ee)
    The Exchange proposes to define ``Derivative Security'' in proposed 
Rule 1.5(dd) and amend existing Rule 1.5(ee) to add the definition of 
``UTP Derivative Security''. ``Derivative Security'' would be a new 
definition and would mean a security that meets the definition of ``new 
derivative securities product'' in Rule 19b-4(e) under the Act. ``UTP 
Derivative Security'' would refer to any one of a list of Derivative 
Securities that trades on the Exchange pursuant to unlisted trading 
privileges. The list of proposed Derivative Securities that may meet 
the definition of UTP Derivative Security are as follows: Equity Linked 
Notes; Index Fund Shares listed pursuant to Cboe BZX Exchange, Inc. 
(``BZX'') Rule 14.11(c) or Nasdaq Stock Market LLC (``Nasdaq'') Rule 
5705(b) and Investment Company Units listed pursuant to NYSE Arca, Inc. 
(``NYSE Arca'') Rule 5.2-E(j)(3); Index-Linked Exchangeable Notes; 
Equity Gold Shares; Equity Index-Linked Securities; Commodity-Linked 
Securities; Currency-Linked Securities; Fixed Income Index-Linked 
Securities; Futures-Linked Securities; Multifactor Index-Linked 
Securities; Trust Certificates; Currency and Index Warrants; Portfolio 
Depository Receipts; Trust Issued Receipts; Commodity-Based Trust 
Shares; Currency Trust Shares; Commodity Index Trust Shares; Commodity 
Futures Trust Shares; Partnership Units; Paired Trust Shares; Trust 
Units; Managed Fund Shares; Managed Trust Securities; Managed Portfolio 
Shares; Tracking Fund Shares listed pursuant to BZX Exchange Rule 
14.11(m), Active Proxy Portfolio Shares listed pursuant to NYSE Arca 
Rule 8.601-E, and Proxy Portfolio Shares listed pursuant to Nasdaq 
Stock Market LLC Rule 5750; Selected Equity-linked Debt Securities 
(``SEEDS''); Exchange-Traded Fund Shares; and Contingent Value Rights 
(``CVRs'').\5\ The proposed definition of UTP Security and UTP 
Derivative Security is substantially similar to BZX Rule 1.5(ee), 
except that the list of Derivative Securities that may be UTP 
Derivative Securities includes CVRs. Further, the proposal is 
substantially similar to NYSE National, Inc. (``NYSE National'') Rule 
1.1(m), but the list of Derivative Securities that may be UTP 
Derivative Securities includes three additional Derivative Securities, 
SEEDS, Exchange-Traded Fund Shares, and CVRs. While SEEDS and Exchange-
Traded Fund Shares are not included in NYSE National Rule 1.1(m), they 
are Derivative Securities set forth not only in BZX Exchange Rules 
14.11(e)(12) and 14.11(l), respectively, but also in section 5700 of 
the Nasdaq Rules. Further, while CVRs are not currently provided for in 
NYSE National Rule 1.1(m) or BZX Rule 1.5(ee), CVRs meet the definition 
of ``new derivative securities product'' in Rule 19b-4(e) under the Act 
and also may currently be traded on the Exchange pursuant to existing 
BYX Rule 14.1(a).
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    \5\ For inclusiveness, all Derivative Securities that are 
subject to unlisted trading privileges have been identified in the 
list of proposed UTP Derivative Securities.
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    The Exchange also proposes to re-letter existing Rules 1.5(dd) 
through (ee) to allow for the addition of proposed Rule 1.5(dd). 
Further, the Exchange proposes to amend Rule 3.21 to reference the 
proposed definition of UTP Derivative Securities in Rule 1.5(ee).
(2) Proposal To Eliminate Listings Standards for UTP Derivative 
Securities
    Unlike its affiliate exchange BZX, the Exchange is not a listing 
venue and thus trades securities on a UTP basis only. Nonetheless, 
currently Chapter XIV of the Exchange's Rulebook provides for listing 
standards for Derivative Securities that are generally based on BZX 
Rule 14.11. Exchange Rule 14.1 also provides that the Exchange will not 
list an equity security, and that the provisions of Rules 14.2 through 
14.9,\6\ and Rules 14.11 through 14.13 that permit such listing of an 
equity security are not effective until the Exchange files a proposed 
rule change under Section 19(b)(2) under the Exchange Act to amend its 
rules to comply with Rules 10A-3 and 10C-1 under the Exchange Act and 
to incorporate qualitative listing criteria, and such proposed rule 
change is approved by the Commission. Given that the Exchange does not 
list securities, the Exchange believes it is not necessary for the 
Exchange to have listings rules for Derivative Securities. Therefore, 
the Exchange proposes to eliminate Exchange Rules 14.2 through 14.9 and 
14.11 through 14.13, which set forth the initial and continued listing 
rules for certain Derivative Securities.
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    \6\ Exchange Rule 14.10 sets forth the requirements for 
securities issued by the Exchange or its affiliates.
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    Exchange Rule 14.1 establishes the Exchange's authority to trade 
securities on a UTP Basis. Based on the proposed amendment to eliminate 
Derivative Security listings standards, the Exchange also proposes to 
amend Rule 14.1(a) to eliminate any references to the listing of 
securities on the Exchange. Additionally, the Exchange proposes to 
eliminate the definition of Equity Security from Rule 14.1 and to 
instead reference NMS Stock, as defined in Rule 4.5(cc). Lastly, based 
on the above proposals, the Exchange proposes to eliminate any 
reference to products listed on the Exchange as provided in Rules 3.7, 
11.2, and 13.6.
(3) Proposal To Amend the Exchange's Additional Rules Applicable to UTP 
Derivative Securities
    Existing Rule 14.1(c) defines UTP Derivative Security. However, as 
the Exchange proposes to redefine such term in Rule 1.5(ee), it 
proposes to eliminate the definition from Rule 14.1(c). Existing Rule 
14.1(c) also provides that a UTP Derivative Security is subject to 
additional rules, as set forth in subparagraphs (1) through (6). Now, 
the Exchange proposes to modify certain of those subparagraphs.
    First, the Exchange proposes to eliminate existing Rule 14.1(c)(1), 
which provides that the Exchange shall file with the Commission a Form 
19b-4(e) with respect to each UTP Derivative Security. The Exchange 
believes that it should not be necessary to file a Form 19b-4(e) with 
the Commission if it begins trading a UTP Derivative Security because 
Rule 19b-4(e) under the Act refers to the ``listing and trading'' of a 
``new derivative securities product''. The Exchange believes that the 
requirements of Rule 19b-4(e) refer to when an exchange lists and 
trades a Derivative Security, and not when an exchange seeks only to 
trade such product on a UTP basis pursuant to Rule 12f-2 under the 
Act.\7\ The proposal is substantially identical to rule amendments made 
by other exchanges.\8\
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    \7\ 17 CFR 240.12f-2.
    \8\ See Securities Exchange Act Nos. 83289 (May 17, 2018) 83 FR 
23968 (May 23, 2018) (SR-NYSENAT-2018-02); 84546 (November 7, 2018) 
83 FR 56888 (November 14, 2018) (SR-BX-2018-051); and 92015 (May 25, 
2021) 86 FR 29305 (June 1, 2021) (SR-CboeBZX-2021-041).
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    The Exchange also proposes to replace the term ``new derivative 
securities product'' with the term Derivative Security in order to 
provide for consistent nomenclature in Exchange Rules. The proposed 
change is not a substantive change as the proposed definition of 
Derivative Security is equivalent to the definition of ``new derivative 
securities product'' under Rule 19b-4(e) under the Exchange Act, as set 
forth in proposed Rule 1.5(dd).
    The Exchange proposes to add additional explanatory language to 
paragraph (c)(4) that states nothing in

[[Page 58893]]

the Rule will limit the power of the Exchange under the Rules or 
procedures of the Exchange with respect to the Exchange's ability to 
suspend trading in any securities if such suspension is necessary for 
the protection of investors or in the public interest. The proposed 
text is substantively identical to that included in NYSE National Rule 
5.1(a)(2)(C) and BZX Rule 14.11(j)(3). Further, the proposed text 
reinforces existing Exchange Rule 11.18(d).
    Lastly, based on the proposal to eliminate Rule 14.1(c)(1), the 
Exchange proposes to renumber existing paragraphs (c)(2) through (c)(6) 
accordingly.
(4) Proposal To Amend Rule 14.10
    Finally, the Exchange is proposing to renumber Rule 14.10 to Rule 
14.2 in order to reflect the elimination of Rule 14.2 through Rule 14.9 
that the Exchange is proposing to delete as part of this proposal.
2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with 
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 the Section 6(b)(5) \10\ requirements that the rules of 
an exchange be 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 regulating, 
clearing, settling, processing information with respect to, and 
facilitating transactions in securities, to remove impediments to and 
perfect the mechanism of a free and open market and a national market 
system, and, in general, to protect investors and the public interest. 
The Exchange also believes the proposed rule change is consistent with 
Section 6(b)(1) of the Act, which provides that the Exchange be 
organized and have the capacity to be able to carry out the purposes of 
the Act and to enforce compliance by the Exchange's Members and persons 
associated with its Members with the Act, the rules and regulations 
thereunder, and the rules of the Exchange.\11\
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    \9\ 15 U.S.C. 78f(b).
    \10\ 15 U.S.C. 78f(b)(5).
    \11\ 15 U.S.C. 78f(b)(1).
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    In particular, the Exchange believes the proposed definitions of 
Derivative Security and UTP Derivative Security are reasonable as the 
proposed substantive changes are substantially similar to other 
exchanges' rules. Specifically, the proposed definition of Derivative 
Security in Rule 1.5(dd) is substantially similar to the definition of 
Exchange Traded Product provided for in NYSE National Rule 1.1(m), 
except that it better conforms to the defined term ``new derivative 
securities product'' of Rule 19b-4(e) under the Act. The proposed 
definition of UTP Derivative Security is substantially similar to BZX 
Rule 1.5(ee), except that the list of Derivative Securities that may be 
UTP Derivative Securities includes CVRs. Further, the proposal is 
substantially similar to NYSE National Rule 1.1(m), but the list of 
Derivative Securities that may be UTP Derivative Securities includes 
three additional Derivative Securities, SEEDS, Exchange-Traded Fund 
Shares, and CVRs. While SEEDS and Exchange-Traded Fund Shares are not 
included in NYSE National Rule 1.1(m), they are Derivative Securities 
set forth not only in BZX Exchange Rules 14.11(e)(12) and 14.11(l), 
respectively, but also in section 5700 of the Nasdaq Rules. Further, 
while CVRs are not currently provided for in NYSE National Rule 1.1(m) 
or BZX Rule 1.5(ee), CVRs meet the definition of ``new derivative 
securities product'' in Rule 19b-4(e) under the Act and also may 
currently be traded on the Exchange pursuant to existing BYX Rule 
14.1(a) on a UTP basis.
    The Exchange believes that its proposal to remove listings 
standards from Chapter XIV of the Exchange's Rulebook and references 
elsewhere in the Exchange's Rulebook will eliminate potential investor 
confusion as the Exchange is not a listing venue. Given this, the 
Exchange believes the removal of such rules from Chapter XIV and 
reference to such listings standards in Rules 3.7, 11.2, and 13.6 will 
simplify and clarify the Exchange's Rulebook. Further, as proposed 
Chapter XIV is substantially similar to Chapter 5 of the NYSE National 
rulebook.
    The Exchange's proposal to eliminate the definition of Equity 
Security from Rule 14.1 and to instead reference NMS Stock as defined 
in Rule 4.5(cc) will add consistency and clarity to the Exchange's 
rulebook.
    Eliminating the requirement to file a Form 19b-4(e) for each 
Derivative Security is consistent with the Act because the regulatory 
requirement was not intended to apply in the context of Derivative 
Securities trading on a UTP basis. Moreover, the proposal to eliminate 
Rule 14.1(c)(1) will provide for a more efficient process for adding 
Derivative Securities to trading on the Exchange on a UTP basis. The 
Exchange also notes that the proposal is substantially identical to 
other exchange rules.\12\
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    \12\ See supra note 8.
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    The Exchange believes that its proposal to amend Rule 14.1(c)(2), 
which eliminates redundant language and uses the defined term 
Derivative Security in lieu of the term ``new derivatives securities 
product'', to amend Rule 14.1(c)(3) to substantially conform to NYSE 
National Rule 5.1(a)(2)(C) (trading halts), and to renumber existing 
paragraphs 14.1(c)(2)-(c)(6) based on its proposal to eliminate Rule 
14.1(c)(1), will clarify and simplify the Exchange's Rulebook as well 
as provide consistency in the Exchange's Rules.
    Lastly, the Exchange believes its proposed renumber of Rule 14.10 
to Rule 14.2, is appropriate in order to reflect the elimination of 
Rule 14.2 through Rule 14.9 that the Exchange is proposing to delete as 
part of this proposal.
    In light of the above proposals, the Exchange has also proposed to 
make corresponding changes to Rules 1.5, 3.7, 3.21, 11.2, 13.6 to 
renumber or re-letter certain paragraphs or subparagraphs of the Rule, 
eliminate any reference to Exchange listing rules in Chapter XIV, and 
update applicable rule references.
    The proposal is intended to simplify and clarify the Exchange's 
Rules as they relate to UTP Derivative Securities and to reflect that 
BYX is not a listing venue which the Exchange believes will 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. The Exchange believes that renumbering and re-
lettering current Rules to correspond to the proposed changes will 
allow the Exchange to maintain a clear and organized rule structure, 
thus preventing investor confusion. For these 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. Allowing the Exchange to 
make the above proposed modifications will clarify that the Exchange is 
not a listing venue by eliminating listing standards and any references 
to Exchange listed securities Further, the proposed rule change will 
harmonize certain Exchange Rules with

[[Page 58894]]

those of other exchanges, including the Exchange's affiliate BZX, which 
will simplify and clarify the Exchange's rulebook and promote 
consistency and transparency on both the Exchange and its affiliated 
exchanges, thus making the Exchange's rules easier to navigate.

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

    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 \13\ and 
subparagraph (f)(6) of Rule 19b-4 thereunder.\14\
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    \13\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \14\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6) 
requires the Exchange 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 under Rule 19b-4(f)(6) \15\ normally 
does not become operative prior to 30 days after the date of the 
filing. However, pursuant to Rule 19b-4(f)(6)(iii),\16\ the Commission 
may 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 to allow the 
Exchange to implement the proposal as soon as possible. The Exchange 
states that the proposed changes are based on rules of other exchanges 
and that waiver would allow Members to benefit immediately from the 
clarified and simplified provisions. The Commission believes that 
waiver of the 30-day operative delay is consistent with the protection 
of investors and the public interest because the proposal does not 
raise any new or novel issues. Accordingly, the Commission hereby 
waives the 30-day operative delay and designates the proposal operative 
upon filing.\17\
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    \15\ 17 CFR 240.19b-4(f)(6).
    \16\ 17 CFR 240.19b-4(f)(6)(iii).
    \17\ For purposes only of waiving the 30-day operative delay, 
the Commission has 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 such 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 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-CboeBYX-2022-022 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-CboeBYX-2022-022. 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-CboeBYX-2022-022 and should 
be submitted on or before October 19, 2022.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\18\
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    \18\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Deputy Secretary.
[FR Doc. 2022-20942 Filed 9-27-22; 8:45 am]
BILLING CODE 8011-01-P


