[Federal Register Volume 87, Number 97 (Thursday, May 19, 2022)]
[Notices]
[Pages 30531-30533]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-10735]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-94910; File No. SR-OCC-2022-003]


Self-Regulatory Organizations; The Options Clearing Corporation; 
Order Granting Approval of Proposed Rule Change by The Options Clearing 
Corporation Concerning Cash-Settled FLEX ETF Options

May 13, 2022.

I. Introduction

    On March 16, 2022, the Options Clearing Corporation (``OCC'') filed 
with the Securities and Exchange Commission (``Commission'') the 
proposed rule change SR-OCC-2022-003 (``Proposed Rule Change'') 
pursuant to Section 19(b) of the Securities Exchange Act of 1934 
(``Exchange Act'') \1\ and Rule 19b-4 \2\ thereunder to amend various 
provisions of the OCC By-Laws and Rules to accommodate the issuance, 
clearance and settlement of flexibly structured options on exchange-
traded funds (``fund shares'' or ``ETFs'') that are cash-settled 
(``Cash-Settled Flex ETF Options'').\3\ The Proposed Rule Change was 
published for public comment in the Federal Register on April 4, 
2022.\4\ The Commission received no comments regarding the substance of 
the Proposed Rule Change.\5\ This order approves the Proposed Rule 
Change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Notice of Filing infra note 4, 87 FR at 19566.
    \4\ Securities Exchange Act Release No. 94542 (Mar. 29, 2022), 
87 FR 19566 (Apr. 4, 2022) (File No. SR-OCC-2022-003) (``Notice of 
Filing'').
    \5\ The Commission received one comment letter that addressed 
market conduct generally; however, additional discussion is 
unnecessary because the comment letter does not bear on the purpose 
or legal basis of the Proposed Rule Change. The comment on the 
Proposed Rule Change is available at https://www.sec.gov/comments/sr-occ-2022-003/srocc2022003.htm.
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II. Background \6\
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    \6\ Capitalized terms used but not defined herein have the 
meanings specified in OCC's Rules and By-Laws, available at https://www.theocc.com/about/publications/bylaws.jsp.
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    The NYSE American Exchange (``NYSE American'') received approval to 
list Cash-Settled Flex ETF Options as a variation of the currently-
traded, physically-settled equity flex options.\7\ Cash-Settled Flex 
ETF Options generally have the same characteristics as physically-
settled equity flex options, except Cash-Settled Flex ETF Options are 
cash-settled, not physically-settled, with a settlement amount based on 
the difference between the price of the underlying security on the date 
of exercise and the strike price of the exercised option.
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    \7\ Securities Exchange Act Release No. 88131 (Feb. 5, 2020), 85 
FR 7806 (Feb. 11, 2020) (File No. SR-NYSEAmer-2019-038).
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    OCC submitted the Proposed Rule Change because its rules do not 
allow for the settlement of equity options in cash, except in two 
specific circumstances: (i) The underlying security undergoes a 
corporate action resulting in the conversion of the option deliverable 
to only cash,\8\ or (ii) the underlying security is otherwise

[[Page 30532]]

unavailable for delivery.\9\ Within the By-Laws and Rules, certain 
provisions apply to physically-settled options and certain provisions 
apply to cash-settled options. To accommodate the Cash-Settled Flex ETF 
Option product, OCC proposes to revise its By-Laws and Rules to do the 
following: (i) Make distinctions between Cash-Settled Flex ETF Options 
and physically-settled options on the same underlying security; (ii) 
clarify that certain provisions that currently apply only to 
physically-settled options will also apply to Cash-Settled Flex ETF 
Options; and (iii) exclude application of certain provisions to Cash-
Settled Flex ETF Options that otherwise would apply to all cash-settled 
options.
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    \8\ See OCC By-Laws Article VI, Section 11A, Interpretations and 
Policies .05.
    \9\ See OCC By-Laws Article VI, Section 19(c).
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    OCC proposes the following modifications to its By-Laws to 
distinguish physically-settled flexibly structured options from Cash-
Settled Flex ETF Options:
    <bullet> In Article I (Definitions), Section 1(F)(8), OCC proposes 
to revise the definition of ``Flexibly Structured Option'' to (i) allow 
such options to be physically-settled or cash-settled depending on the 
listing exchange's rules, and (ii) state that Cash-Settled Flex ETF 
Options would not be fungible with physically-settled flexibly 
structured options and would not be consolidated with standard options 
listed after a flexibly-structured option with the same strike, 
expiration date, and underlying security, as is the case with a 
physically-settled flexibly structured option that is fungible.
    <bullet> In Article I (Definitions), Section 1(S)(12), OCC proposes 
to revise the definition of ``Series'' to state that the options of the 
same series have the same settlement method.
    <bullet> In Article I (Definitions), Section 1(V)(1), OCC proposes 
to revise the definition of ``Variable Terms'' to recognize that in 
addition to the variable terms itemized in the definition, flexibly-
structured options on fund shares may be either physically- or cash-
settled.
    <bullet> In Article XVII (Index Options and Certain Other Cash-
Settled Options), Introduction, OCC proposes to revise the introduction 
to add flexibly-structured options that cash-settle to the list of 
options for which Article XVII of the By-Laws applies.
    <bullet> In Article XVII (Index Options and Certain Other Cash-
Settled Options), Section 1(C)(4), OCC proposes to revise the 
definition of ``Class of Options'' to state that flexibly-structured 
options that cash-settle shall constitute a different class of options 
from physically-settled options on the same underlying interest.
    OCC also proposes the following modifications to its By-Laws and 
Rules to require the application of certain provisions to Cash-Settled 
Flex ETF Options that otherwise would apply only to physically-settled 
options, and to exclude Cash-Settled Flex ETF Options from certain 
provisions that otherwise would apply to all cash-settled options:
    <bullet> In Article I (Definitions), Section 1(C)(15), OCC proposes 
to revise the definition of ``Clearing Member'' to state that a 
Clearing Member is not an ``Index Clearing Member'' solely by virtue of 
being approved to clear Cash-Settled Flex ETF Options.
    <bullet> In Article I (Definitions), Section 1(R)(5), OCC currently 
defines ``Reporting Authority'' when used with respect of any cash-
settled contract to mean the source that OCC uses as the official 
source for the current price or value of the underlying interest. OCC 
proposes to revise this definition to state that the reporting for 
Cash-Settled Flex ETF Options will be the same source used by OCC for 
physically-settled equity options with the same underlying interest. 
According to OCC, this change is designed to facilitate the use of the 
same closing price for automatic exercise determinations on both 
physically- and cash-settled options with the same underlying security, 
thereby ensuring that expiration processing for a Cash-Settled Flex ETF 
Option will align with expiration processing for a physically-settled 
product on the same underlying security.\10\
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    \10\ See Notice of Filing, supra note 4, at 19567.
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    <bullet> In Article XVII (Index Options and Certain Other Cash-
Settled Options), Section 1(R)(3), defines ``Reporting Authority'' 
specifically in the context of index options and certain other cash-
settled options. OCC proposes to revise this definition to explicitly 
exclude Cash-Settled Flex ETF Options and to state that the reporting 
authority for Cash-Settled Flex ETF Options is the same source used by 
OCC for physically-settled equity options.
    <bullet> Article XVII (Index Options and Certain Other Cash-Settled 
Options), Sections 3(a) and 3(h) currently state that the adjustment 
provisions of Article VI, Section 11A do not apply to cash-settled 
equity contracts. To ensure that adjustment decisions for Cash-Settled 
Flex ETF Options and physically-settled options on the same underlying 
are the same, OCC is proposing to add language to this section to state 
that Article VI, Section 11A of the By-Laws applies to Cash-Settled 
Flex ETF Options.
    <bullet> Article XVII (Index Options and Certain Other Cash-Settled 
Options), Section 4(a)(2) states the method by which the exercise 
settlement amount for exercised contracts of an affected series is 
fixed for index options and certain other cash-settled options. OCC 
proposes to amend this provision to state that the exercise settlement 
amount for Cash-Settled Flex ETF Options shall be determined by using 
the last reported sale price for the underlying security during regular 
trading hours, which is consistent with the expiration closing price 
determination for physically-settled options under OCC's Rule 805(j).
    <bullet> Chapter VI (Margins), Rule 610 (Deposits in Lieu of 
Margin) allows Clearing Members to use specific deposits of the 
underlying security as collateral to cover short customer positions on 
call options. Specific deposits fully cover a short call position 
because the Clearing Member pledges the security, in the appropriate 
amount, that must be delivered if the call option writer is assigned. 
OCC proposes to modify Rule 610 to disallow specific deposits for Cash-
Settled Flex ETF Options because such options do not require delivery 
of the underlying security upon assignment.\11\
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    \11\ OCC would, however, allow escrow deposits to be made for 
Cash-Settled Flex ETF Options.
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    <bullet> Chapter VIII (Exercise and Assignment), Rule 805(j) 
(Expiration Exercise Procedure) states that the ``closing price'' used 
for any underlying security in Rule 805 is the last reported sale price 
for the underlying security during regular trading hours (as determined 
by OCC) on the trading day immediately preceding the expiration date, 
or on the expiration date if the expiration date is a trading day, on 
such national securities exchange or other domestic securities market 
as OCC shall determine. OCC proposes to revise Rule 805(j) to state 
explicitly that the same definition of ``closing price'' applies to 
underlying securities for Cash-Settled Flex ETF Options.
    <bullet> Chapter XVIII (Index Options and Certain Other Cash 
Settled Options), Rule 1804(a) (Expiration Exercise Procedure for Cash-
Settled Options) generally provides for the expiration exercise 
procedure for cash-settled options. OCC is proposing to add an 
interpretation and policy to Rule 1804 to clarify that, notwithstanding 
its general application to cash-settled options, the determination of 
the closing price for an underlying security of a flexibly-structured 
cash-settled equity

[[Page 30533]]

option is the same as the determination of the closing price per Rule 
805(j).
    <bullet> In Chapter XVIII (Index Options and Certain Other Cash 
Settled Options), Rule 1804 (Expiration Exercise Procedure for Cash 
Settled Options), OCC proposes to revise Rule 1804(a) and Rule 1804(b) 
to state that Cash-Settled Flex ETF Options will be deemed exercised on 
expiration if the strike price is $0.01 or more in-the-money in 
accordance with the provisions of Rule 805(d). The change would set the 
threshold for automatic exercise of Cash-Settled Flex ETF Options at 
the threshold established for physically-settled equity options rather 
than the $1.00 per contract threshold established in Rule 1804.
    <bullet> In Chapter VIII (Exercise and Assignment), Rule 805 
(Expiration Exercise Procedure), Interpretation and Policy .03 states 
that the exercise procedures set forth in Rule 805 apply to flexibly-
structured equity options. OCC proposes to add language excepting from 
application of Rule 805(d) American-style Cash-Settled Flex ETF Options 
subject to delayed settlement for any deliverable component. Similarly, 
in Chapter XVIII (Index Options and Certain Other Cash Settled 
Options), Rule 1804 (Expiration Exercise Procedure for Cash Settled 
Options), OCC is proposing to add language to Rule 1804(a) to state 
explicitly that Rule 805(d) does not apply to American-style Cash-
Settled Flex ETF Options that have a deliverable component subject to 
delayed settlement. OCC states that the changes are necessary because 
any such option with a pended delivery component on its expiration date 
should not be automatically exercised, as the total value of the option 
deliverable can only be estimated.\12\ OCC anticipates this outcome 
would be rare, and likely the result of a contract adjustment that 
involves cash in lieu of fractional shares that have yet to be 
finalized on an option's expiration date.
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    \12\ See Notice of Filing, supra note 4, at 19568.
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III. Discussion and Commission Findings

    Section 19(b)(2)(C) of the Exchange Act directs the Commission to 
approve a proposed rule change of a self-regulatory organization if it 
finds that such proposed rule change is consistent with the 
requirements of the Exchange Act and the rules and regulations 
thereunder applicable to such organization.\13\ After carefully 
considering the Proposed Rule Change, the Commission finds that the 
proposal is consistent with the requirements of the Exchange Act and 
the rules and regulations thereunder applicable to OCC. More 
specifically, the Commission finds that the Proposed Rule Change is 
consistent with Section 17A(b)(3)(F) of the Exchange Act \14\ as 
described in detail below.
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    \13\ 15 U.S.C. 78s(b)(2)(C).
    \14\ 15 U.S.C. 78q-1(b)(3)(F).
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    Section 17A(b)(3)(F) of the Exchange Act requires, among other 
things, that a clearing agency's rules are designed to promote the 
prompt and accurate clearance and settlement of securities transactions 
and, to the extent applicable, derivative agreements, contracts, and 
transactions.\15\ Based on its review of the record, and for the 
reasons described below, the Commission believes that the proposed 
changes to its By-Laws and Rules are reasonably designed to be 
consistent with the prompt and accurate clearance and settlement of 
securities transactions and derivative agreements, contracts, and 
transactions for which OCC is responsible.
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    \15\ Id.
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    The Proposed Rule Change would amend the By-Laws and Rules to 
maintain consistency between OCC's By-Laws and Rules and NYSE 
American's rules as applied to the clearance and settlement of Cash-
Settled Flex ETF Options. To maintain consistency with NYSE American's 
rules, the Proposed Rule Change ensures that OCC is able to provide two 
different types of settlement methods for flexibly-structured ETF 
options, in order to accommodate the clearance and settlement of Cash-
Settled Flex ETF Options in addition to physically-settled options. 
Maintaining this congruence between OCC and NYSE American's rules 
provides assurance to market participants that the two self-regulatory 
organizations are treating the clearance and settlement processes of 
the Cash-Settled Flex ETF Option product in the same manner. This is 
consistent with facilitating the prompt and accurate clearance and 
settlement of these products.
    OCC proposes numerous By-Law and Rule changes to distinguish 
between physically-settled flexibly structured options and Cash-Settled 
Flex ETF Options. The Commission believes that these changes will make 
clear to market participants that, despite certain similarities, these 
two products are entirely distinct and should be treated as such for 
clearance and settlement purposes. In particular, the Proposed Rule 
Change states that Cash-Settled Flex ETF Options are not fungible with 
physically-settled flexibly structured options, and that the two 
products are not to be consolidated even if they have the same strike, 
expiration date, and underlying security. As such, the proposed changes 
provide unambiguous requirements for clearing and settling such 
transactions, and the Commission believes that the resulting clarity 
may facilitate prompt and accurate clearance and settlement by avoiding 
confusion or errors.
    Additionally, OCC proposes numerous By-Law and Rule changes to 
state that certain provisions that currently apply only to physically-
settled options will also apply to Cash-Settled Flex ETF Options, while 
other provisions that currently apply to all cash-settled options will 
not apply to Cash-Settled Flex ETF Options. The proposed changes are 
designed to treat the Cash-Settled Flex ETF Options like all other Flex 
ETF options instead of as cash-settled options generally, given the 
difference in the form of settlement and the lack of fungibility. 
Accordingly, the changes to OCC's By-Laws and Rules facilitate the 
prompt and accurate clearance and settlement of these transactions.
    The Commission believes, therefore, that the proposal to revise 
OCC's By-Laws and Rules to accommodate the clearance and settlement of 
Cash-Settled Flex ETF Options is consistent with the requirements of 
Section 17A(b)(3)(F) under the Exchange Act.\16\
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    \16\ 15 U.S.C. 78q-1(b)(3)(F).
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IV. Conclusion

    On the basis of the foregoing, the Commission finds that the 
Proposed Rule Change is consistent with the requirements of the 
Exchange Act, and in particular, the requirements of Section 17A of the 
Exchange Act \17\ and the rules and regulations thereunder.
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    \17\ In approving this Proposed Rule Change, the Commission has 
considered the proposed rules' impact on efficiency, competition, 
and capital formation. See 15 U.S.C. 78c(f).
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    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Exchange Act,\18\ that the Proposed Rule Change (SR-OCC-2022-003) be, 
and hereby is, approved.
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    \18\ 15 U.S.C. 78s(b)(2).

    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. 2022-10735 Filed 5-18-22; 8:45 am]
BILLING CODE 8011-01-P