[Federal Register Volume 80, Number 97 (Wednesday, May 20, 2015)]
[Notices]
[Pages 29152-29154]
[FR Doc No: 2015-12198]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2014-0302]

Qualification of Drivers; Exemption Applications; Vision

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of final disposition.

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SUMMARY: FMCSA announces its decision to exempt 27 individuals from the
vision requirement in the Federal Motor Carrier Safety Regulations
(FMCSRs). They are unable to meet the vision requirement in one eye for
various reasons. The exemptions will enable these individuals to
operate commercial motor vehicles (CMVs) in interstate commerce without
meeting the prescribed vision requirement in one eye. The Agency has
concluded that granting these exemptions will provide a level of safety
that is equivalent to or greater than the level of safety maintained
without the exemptions for these CMV drivers.

DATES: The exemptions were granted April 7, 2015. The exemptions expire
on April 7, 2017.

FOR FURTHER INFORMATION CONTACT: Charles A. Horan, III, Director,
Carrier, Driver and Vehicle Safety Standards,<PHONE_NUMBER>,
<EMAIL_ADDRESS>FMCSA, Department of Transportation, 1200 New
Jersey Avenue SE., Room W64-224, Washington, DC 20590-0001. Office
hours are from 8:30 a.m. to 5 p.m., Monday through Friday, except
Federal holidays. If you have questions on viewing or submitting
material to the docket, contact Docket Services, telephone (202) 366-
9826.

SUPPLEMENTARY INFORMATION:

I. Electronic Access

    You may see all the comments online through the Federal Document
Management System (FDMS) at http://www.regulations.gov.
    Docket: For access to the docket to read background documents or
comments, go to http://www.regulations.gov and/or Room W12-140 on the
ground level of the West Building, 1200 New Jersey Avenue SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
    Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits
comments from the public to better inform its rulemaking process. DOT
posts these comments, without edit, including any personal information
the commenter provides, to www.regulations.gov, as described in the
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.dot.gov/privacy.

II. Background

    On March 6, 2015, FMCSA published a notice of receipt of exemption
applications from certain individuals, and requested comments from the
public (80 FR 12248). That notice listed 27 applicants' case histories.
The 27 individuals applied for exemptions from the vision requirement
in 49 CFR 391.41(b)(10), for drivers who operate CMVs in interstate
commerce.
    Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption
for a 2-year period if it finds ``such exemption would likely achieve a
level of safety that is equivalent to or greater than the level that
would be achieved absent such exemption.'' The statute also

allows the Agency to renew exemptions at the end of the 2-year period.
Accordingly, FMCSA has evaluated the 27 applications on their merits
and made a determination to grant exemptions to each of them.

III. Vision and Driving Experience of the Applicants

    The vision requirement in the FMCSRs provides:
    A person is physically qualified to drive a commercial motor
vehicle if that person has distant visual acuity of at least 20/40
(Snellen) in each eye without corrective lenses or visual acuity
separately corrected to 20/40 (Snellen) or better with corrective
lenses, distant binocular acuity of a least 20/40 (Snellen) in both
eyes with or without corrective lenses, field of vision of at least
70[deg] in the horizontal meridian in each eye, and the ability to
recognize the colors of traffic signals and devices showing red, green,
and amber (49 CFR 391.41(b)(10)).
    FMCSA recognizes that some drivers do not meet the vision
requirement but have adapted their driving to accommodate their vision
limitation and demonstrated their ability to drive safely. The 27
exemption applicants listed in this notice are in this category. They
are unable to meet the vision requirement in one eye for various
reasons, including macular scar, globe laceration, retinal detachment,
amblyopia, enucleation, cancerous choroid, Coats' Disease, macular
degeneration, alternating esotropia, optic nerve atrophy, esotropia,
degenerated optic nerve, refractive amblyopia, retinal scarring, full-
thickness macular hole, Behcet's panuveities, primary open angle
glaucoma, keratopathy, keratectomy, optic nerve compression, complete
loss of vision, and retinal vascular occlusion. In most cases, their
eye conditions were not recently developed. Fifteen of the applicants
were either born with their vision impairments or have had them since
childhood.
    The twelve individuals that sustained their vision conditions as
adults have had it for a range of five to 19 years.
    Although each applicant has one eye which does not meet the vision
requirement in 49 CFR 391.41(b)(10), each has at least 20/40 corrected
vision in the other eye, and in a doctor's opinion, has sufficient
vision to perform all the tasks necessary to operate a CMV. Doctors'
opinions are supported by the applicants' possession of valid
commercial driver's licenses (CDLs) or non-CDLs to operate CMVs. Before
issuing CDLs, States subject drivers to knowledge and skills tests
designed to evaluate their qualifications to operate a CMV.
    All of these applicants satisfied the testing requirements for
their State of residence. By meeting State licensing requirements, the
applicants demonstrated their ability to operate a CMV, with their
limited vision, to the satisfaction of the State.
    While possessing a valid CDL or non-CDL, these 27 drivers have been
authorized to drive a CMV in intrastate commerce, even though their
vision disqualified them from driving in interstate commerce. They have
driven CMVs with their limited vision in careers ranging from four to
50 years. In the past three years, one of drivers was involved in a
crash and one was convicted of a moving violation in a CMV.
    The qualifications, experience, and medical condition of each
applicant were stated and discussed in detail in the March 6, 2015
notice (80 FR 12248).

IV. Basis for Exemption Determination

    Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption
from the vision requirement in 49 CFR 391.41(b)(10) if the exemption is
likely to achieve an equivalent or greater level of safety than would
be achieved without the exemption. Without the exemption, applicants
will continue to be restricted to intrastate driving. With the
exemption, applicants can drive in interstate commerce. Thus, our
analysis focuses on whether an equal or greater level of safety is
likely to be achieved by permitting each of these drivers to drive in
interstate commerce as opposed to restricting him or her to driving in
intrastate commerce.
    To evaluate the effect of these exemptions on safety, FMCSA
considered the medical reports about the applicants' vision as well as
their driving records and experience with the vision deficiency.
    To qualify for an exemption from the vision requirement, FMCSA
requires a person to present verifiable evidence that he/she has driven
a commercial vehicle safely with the vision deficiency for the past 3
years. Recent driving performance is especially important in evaluating
future safety, according to several research studies designed to
correlate past and future driving performance. Results of these studies
support the principle that the best predictor of future performance by
a driver is his/her past record of crashes and traffic violations.
Copies of the studies may be found at Docket Number FMCSA-1998-3637.
    FMCSA believes it can properly apply the principle to monocular
drivers, because data from the Federal Highway Administration's (FHWA)
former waiver study program clearly demonstrate the driving performance
of experienced monocular drivers in the program is better than that of
all CMV drivers collectively (See 61 FR 13338, 13345, March 26, 1996).
The fact that experienced monocular drivers demonstrated safe driving
records in the waiver program supports a conclusion that other
monocular drivers, meeting the same qualifying conditions as those
required by the waiver program, are also likely to have adapted to
their vision deficiency and will continue to operate safely.
    The first major research correlating past and future performance
was done in England by Greenwood and Yule in 1920. Subsequent studies,
building on that model, concluded that crash rates for the same
individual exposed to certain risks for two different time periods vary
only slightly (See Bates and Neyman, University of California
Publications in Statistics, April 1952). Other studies demonstrated
theories of predicting crash proneness from crash history coupled with
other factors. These factors--such as age, sex, geographic location,
mileage driven and conviction history--are used every day by insurance
companies and motor vehicle bureaus to predict the probability of an
individual experiencing future crashes (See Weber, Donald C.,
``Accident Rate Potential: An Application of Multiple Regression
Analysis of a Poisson Process,'' Journal of American Statistical
Association, June 1971). A 1964 California Driver Record Study prepared
by the California Department of Motor Vehicles concluded that the best
overall crash predictor for both concurrent and nonconcurrent events is
the number of single convictions. This study used 3 consecutive years
of data, comparing the experiences of drivers in the first 2 years with
their experiences in the final year.
    Applying principles from these studies to the past 3-year record of
the 27 applicants, one driver was involved in a crash, and one was
convicted of a moving violation in a CMV. All the applicants achieved a
record of safety while driving with their vision impairment,
demonstrating the likelihood that they have adapted their driving
skills to accommodate their condition. As the applicants' ample driving
histories with their vision deficiencies are good predictors of future
performance, FMCSA concludes their ability to drive safely can be
projected into the future.
    We believe that the applicants' intrastate driving experience and
history

provide an adequate basis for predicting their ability to drive safely
in interstate commerce. Intrastate driving, like interstate operations,
involves substantial driving on highways on the interstate system and
on other roads built to interstate standards. Moreover, driving in
congested urban areas exposes the driver to more pedestrian and
vehicular traffic than exists on interstate highways. Faster reaction
to traffic and traffic signals is generally required because distances
between them are more compact. These conditions tax visual capacity and
driver response just as intensely as interstate driving conditions. The
veteran drivers in this proceeding have operated CMVs safely under
those conditions for at least 3 years, most for much longer. Their
experience and driving records lead us to believe that each applicant
is capable of operating in interstate commerce as safely as he/she has
been performing in intrastate commerce. Consequently, FMCSA finds that
exempting these applicants from the vision requirement in 49 CFR
391.41(b)(10) is likely to achieve a level of safety equal to that
existing without the exemption. For this reason, the Agency is granting
the exemptions for the 2-year period allowed by 49 U.S.C. 31136(e) and
31315 to the 27 applicants listed in the notice of March 6, 2015 (80 FR
12248).
    We recognize that the vision of an applicant may change and affect
his/her ability to operate a CMV as safely as in the past. As a
condition of the exemption, therefore, FMCSA will impose requirements
on the 27 individuals consistent with the grandfathering provisions
applied to drivers who participated in the Agency's vision waiver
program.
    Those requirements are found at 49 CFR 391.64(b) and include the
following: (1) That each individual be physically examined every year
(a) by an ophthalmologist or optometrist who attests that the vision in
the better eye continues to meet the requirement in 49 CFR
391.41(b)(10) and (b) by a medical examiner who attests that the
individual is otherwise physically qualified under 49 CFR 391.41; (2)
that each individual provide a copy of the ophthalmologist's or
optometrist's report to the medical examiner at the time of the annual
medical examination; and (3) that each individual provide a copy of the
annual medical certification to the employer for retention in the
driver's qualification file, or keep a copy in his/her driver's
qualification file if he/she is self-employed. The driver must have a
copy of the certification when driving, for presentation to a duly
authorized Federal, State, or local enforcement official.

V. Discussion of Comments

    FMCSA received no comments in this proceeding.

IV. Conclusion

    Based upon its evaluation of the 27 exemption applications, FMCSA
exempts the following drivers from the vision requirement in 49 CFR
391.41(b)(10), subject to the requirements cited above (49 CFR
391.64(b)):

Joel C. Bailey (FL)
Mackfie Bradley, Jr. (NC)
Justin C. Bruchman (WI)
Bradley J. Compton (ID)
Anthony C. Curtis (WA)
Douglas S. Dalling (PA)
Lloyd A. Dornbusch (PA)
Randall R. Drake (CA)
Paul E. Emmons (RI)
Thomas P. Fitzsimmons Jr. (NC)
Steve L. Frisby (CA)
Daryl G. Gibson (FL)
Mark J. Goodrich (PA)
Ramon L. Green (LA)
Carl E. Hess (PA)
Mark E. Jeans (OK)
Chad Kauffman (PA)
Scottie W. Lewis (GA)
David S. Mayo (VA)
Ross E. McCleary (NE)
Alex D. McCrady (NH)
Stacy L. Michael (OH)
Charles A. Morgan (NC)
Paul C. Swanson (IL)
Terrance W. Temple (OH)
Rick A. Tucker (MO)
Jason R. White (OH)
    In accordance with 49 U.S.C. 31136(e) and 31315, each exemption
will be valid for 2 years unless revoked earlier by FMCSA. The
exemption will be revoked if: (1) The person fails to comply with the
terms and conditions of the exemption; (2) the exemption has resulted
in a lower level of safety than was maintained before it was granted;
or (3) continuation of the exemption would not be consistent with the
goals and objectives of 49 U.S.C. 31136 and 31315.
    If the exemption is still effective at the end of the 2-year
period, the person may apply to FMCSA for a renewal under procedures in
effect at that time.

    Issued on: May 11, 2015.
 Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2015-12198 Filed 5-19-15; 8:45 am]
BILLING CODE 4910-EX-P


[Federal Register Volume 78, Number 71 (Friday, April 12, 2013)]
[Notices]
[Pages 21924-21925]
[FR Doc No: 2013-08637]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

Combined Notice of Filings 1

    Take notice that the Commission received the following exempt
wholesale generator filings:

    Docket Numbers: EG13-23-000.
    Applicants: RE Rosamond One LLC.
    Description: RE Rosamond One LLC submits Notice of Self-
Certification of Exempt Wholesale Generator Status.
    Filed Date: 4/3/13.
    Accession Number: 20130403-5061.
    Comments Due: 5 p.m. ET 4/24/13.

    Docket Numbers: EG13-24-000.
    Applicants: RE Rosamond Two LLC.
    Description: RE Rosamond Two LLC submits Notice of Self-
Certification of Exempt Wholesale Generator Status.
    Filed Date: 4/3/13.
    Accession Number: 20130403-5062.
    Comments Due: 5 p.m. ET 4/24/13.

    Take notice that the Commission received the following electric
rate filings:

    Docket Numbers: ER13-872-001.
    Applicants: California Independent System Operator Corporation.
    Description: 2013-04-03 Market-Based Rate Authority Suspension
Compliance to be effective 4/1/2013.
    Filed Date: 4/3/13.
    Accession Number: 20130403-5114.
    Comments Due: 5 p.m. ET 4/24/13.

    Docket Numbers: ER13-1239-000.
    Applicants: Alta Wind III, LLC.
    Description: First Revised MBR Tariff to be effective 4/4/2013.
    Filed Date: 4/3/13.
    Accession Number: 20130403-5086.
    Comments Due: 5 p.m. ET 4/24/13.

    Docket Numbers: ER13-1240-000.
    Applicants: Alta Wind II, LLC.
    Description: First Revised MBR Tariff to be effective 4/4/2013.
    Filed Date: 4/3/13.
    Accession Number: 20130403-5087.
    Comments Due: 5 p.m. ET 4/24/13.

    Docket Numbers: ER13-1241-000.
    Applicants: Alta Wind IV, LLC.
    Description: First Revised MBR Tariff to be effective 4/4/2013.
    Filed Date: 4/3/13.
    Accession Number: 20130403-5088.
    Comments Due: 5 p.m. ET 4/24/13.

    Docket Numbers: ER13-1242-000.
    Applicants: Alta Wind V, LLC.
    Description: First Revised MBR Tariff to be effective 4/4/2013.
    Filed Date: 4/3/13.
    Accession Number: 20130403-5089.
    Comments Due: 5 p.m. ET 4/24/13.

    The filings are accessible in the Commission's eLibrary system by
clicking on the links or querying the docket number.
    Any person desiring to intervene or protest in any of the above
proceedings must file in accordance with Rules 211 and 214 of the
Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00
p.m. Eastern time on the specified comment date. Protests may be
considered, but intervention is necessary to become a party to the
proceeding.
    eFiling is encouraged. More detailed information relating to filing
requirements, interventions, protests, service, and qualifying
facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call<PHONE_NUMBER>
(toll free). For TTY, call<PHONE_NUMBER>.

    Dated: April 4, 2013.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2013-08637 Filed 4-11-13; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register: April 13, 2007 (Volume 72, Number 71)]
[Notices]
[Page 18703-18707]
[DOCID:fr13ap07-89]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-55604; File No. SR-NASD-2006-109]

Self-Regulatory Organizations; National Association of Securities
Dealers, Inc.; Notice of Filing of Proposed Rule Change and Amendment
Nos. 1 and 2 Thereto Relating to Representation of Parties in
Arbitration and Mediation

 April 9, 2007.
    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
the National Association of Securities Dealers, Inc. (``NASD''),
through its wholly owned subsidiary, NASD Dispute Resolution, Inc.
(``NASD Dispute Resolution'') filed with the Securities and Exchange
Commission (``SEC'' or ``Commission'') on September 14, 2006, and
amended on November 9, 2006 (Amendment No. 1) \3\ and February 23, 2007
(Amendment No. 2),\4\ the proposed rule change as described in Items I,
II, and III below, which Items have been prepared by NASD Dispute
Resolution. The Commission is publishing this notice to solicit
comments on the proposed rule change, as amended, from interested
persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ Amendment No. 1 makes clarifying changes to the rule text
emphasizing that attorneys may represent parties in NASD's forum,
unless state law prohibits such representation. Amendment No. 1 also
makes several clarifying and technical changes to the proposed rule
filing.
    \4\ Amendment No. 2 makes clarifying changes to the rule text
concerning restrictions on non-attorney representation. Amendment
No. 2 also includes minor organizational changes to a paragraph and
footnotes describing the American Bar Association Model Rule of
Professional Conduct 5.5.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    NASD Dispute Resolution is proposing to amend the Code of
Arbitration Procedure for Customer Disputes (``Customer Code''), the
Code of Arbitration Procedure for Industry Disputes (``Industry
Code''), and the NASD Code of Arbitration Procedure (``Code'') to
address representation of parties in arbitration and mediation.\5\
Below is the text of the proposed rule change. Proposed new language is
in italics; proposed deletions are in brackets.
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    \5\ The proposed rule change contemplates changes to Rules 12208
and 13208 of the Customer and Industry Codes, which restate old Rule
10316. See Securities Exchange Act Release No. 55158 (Jan. 24,
2007); 72 FR 4574 (Jan. 31, 2007) (File Nos. SR-NASD-2003-158 and
SR-NASD-2004-011) (Order Approving Proposed Rule Change and
Amendments 1, 2, 3, and 4 to Amend NASD Arbitration Rules for
Customer Disputes and Notice of Filing and Order Granting
Accelerated Approval of Amendments 5, 6, and 7 Thereto; Order
Approving Proposed Rule Change and Amendments 1, 2, 3, and 4 to
Amend NASD Arbitration Rules for Industry Disputes and Notice of
Filing and Order Granting Accelerated Approval of Amendments 5, 6,
and 7 Thereto). The changes to Proposed Rule 10407 reflect changes
to the new NASD Code of Mediation Procedure. See Securities Exchange
Act Rel. No. 52705 (Oct. 31, 2005); 70 FR 67525 (Nov. 7, 2005) (SR-
NASD-2004-013). The new NASD Code of Mediation Procedure is
currently included in the Code, but will be removed and renumbered
as a separate Code now that the Customer and Industry Codes have
been approved.
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* * * * *

Customer Code

12208. Representation of Parties

(a) Representation by a Party

    Parties may represent themselves in an arbitration held in a United
States hearing location. A member of a partnership may represent the
partnership; and a bona fide officer of a corporation, trust, or
association may represent the corporation, trust, or association.

(b) Representation by an Attorney

    At any stage of an arbitration proceeding held in a United States
hearing location, [All] all parties shall have the right to be
represented by [counsel during any stage of an arbitration] an attorney
at law in good standing and admitted to practice before the Supreme
Court of the United States or the highest court of any state of the
United States, the District of Columbia, or any commonwealth,
territory, or possession of the United States, unless state law
prohibits such representation.

(c) Representation by Others

    Parties may be represented in an arbitration by a person who is not
an attorney, unless:
     state law prohibits such representation, or
     the person is currently suspended or barred from the
securities industry in any capacity, or
     the person is currently suspended from the practice of law
or disbarred.

(d) Qualifications of Representative

    Issues regarding the qualifications of a person to represent a
party in arbitration are governed by applicable law and may be
determined by an appropriate court or other regulatory agency. In the
absence of a court order, the arbitration proceeding shall not be
stayed or otherwise delayed pending resolution of such issues.
* * * * *

Industry Code

13208. Representation of Parties

(a) Representation by a Party

    Parties may represent themselves in an arbitration held in a United
States hearing location. A member of a partnership may represent the
partnership; and a bona fide officer of a corporation, trust, or
association may represent the corporation, trust, or association.

(b) Representation by an Attorney

    At any stage of an arbitration proceeding held in a United States
hearing location, [All] all parties shall have the right to be
represented by [counsel during any stage of an arbitration] an attorney
at law in good standing and admitted to practice before the Supreme
Court of the United States or the highest court of any state of the
United States, the District of Columbia, or any commonwealth,
territory, or possession of the United States, unless state law
prohibits such representation.

(c) Representation by Others

    Parties may be represented in an arbitration by a person who is not
an attorney, unless:
     state law prohibits such representation, or
     the person is currently suspended or barred from the
securities industry in any capacity, or
     the person is currently suspended from the practice of law
or disbarred.

(d) Qualifications of Representative

    Issues regarding the qualifications of a person to represent a
party in arbitration are governed by applicable law and may be
determined by an appropriate court or other regulatory agency. In the
absence of a court order, the arbitration proceeding shall not be
stayed or otherwise delayed pending resolution of such issues.
* * * * *

Code of Arbitration Procedure

10407. Representation of Parties

(a) Representation by Party

    Parties may represent themselves in mediation held in a United
States hearing location. A member of a partnership may represent the
partnership; and a bona fide officer of a corporation, trust, or
association may represent the corporation, trust, or association.

(b) Representation by an Attorney

    At any stage of a mediation proceeding held in a United States
hearing location, all parties shall have the right to be represented by
an attorney at law in good standing and admitted to practice before the
Supreme Court of the United States or the highest court of any state of
the United States, the District of Columbia, or any commonwealth,
territory, or possession of the United States, unless state law
prohibits such representation.

(c) Representation by Others

    Parties may be represented in mediation by a person who is not an
attorney, unless:
     state law prohibits such representation, or
     the person is currently suspended or barred from the
securities industry in any capacity, or
     the person is currently suspended from the practice of law
or disbarred.

(d) Qualifications of Representatives

    Issues regarding the qualifications of a person to represent a
party in mediation are governed by applicable law and may be determined
by an appropriate court or other regulatory agency. In the absence of a
court order, the mediation proceeding shall not be delayed pending
resolution of such issues.
[10407] 10408. Mediator Selection
    (a)-(d) No change.

[10408] 10409. Limitation on Liability
    No change.

[10409] 10410. Mediation Ground Rules
    (a)-(g) No change.

[10410] 10411. Mediation Fees
    (a)-(c) No change.
* * * * *

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, NASD 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. NASD 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
Background
    NASD Dispute Resolution believes a rule is needed to clarify the
issue of representation of parties in dispute resolution. NASD Rule
10316 states that all parties shall have the right to representation by
counsel at any stage of the proceedings. The rule provides no guidance
on the kind of representatives who are permitted to practice in the
NASD dispute resolution forum, or on the qualifications those
representatives must have to participate in the forum. Moreover, Rule
10316 does not address a growing trend in American jurisprudence, the
multi-jurisdictional practice of law.
    The multi-jurisdictional practice of law occurs when attorneys,
licensed in one United States (U.S.) jurisdiction, practice law in a
jurisdiction in which they are not licensed. In the area of dispute
resolution, for example, it is common for an attorney licensed to
practice law in one state to represent a client in a dispute resolution
proceeding in another state in which the attorney is not licensed.
Although this practice is permitted in many jurisdictions, it may be a
violation of certain other states' unauthorized practice of law
provisions. Until recent years, most states had taken no action against
this practice. However, two state courts have found that out-of-state
attorneys must meet certain conditions in order to participate in a
dispute resolution proceeding in their jurisdictions.\6\ In light of
these developments, the American Bar Association (ABA) amended its
Model Rule of Professional Conduct 5.5 (ABA Model Rule 5.5) to promote
the multi-jurisdictional practice of law.\7\
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    \6\ See Birbrower, Montalbano, Condo & Frank v. Superior Court,
949 P.2d 1 (Cal. 1998); see also Florida Bar v. Rapoport, 845 So. 2d
874, 2003 Fla. LEXIS 250 (Fla. 2003).
    \7\ ABA Model Rule 5.5, as amended, would allow a United States
lawyer, admitted in one United States jurisdiction, to engage in
certain types of legal activity in another United States
jurisdiction where he is not licensed to practice, without being
deemed to be engaging in the unauthorized practice of law. For
purposes of the dispute resolution forum, ABA Model Rule 5.5, as
amended, states, in relevant part, that a lawyer may provide legal
services on a temporary basis in an out-of-state jurisdiction that
are in or reasonably related to a pending or potential arbitration,
mediation, or other alternative dispute resolution proceeding in the
jurisdiction or another jurisdiction, if the services arise out of
or are reasonably related to the lawyer's practice in a jurisdiction
in which the lawyer is admitted to practice and are not services for
which the forum requires pro hac vice admission. This rule is
sometimes referred to as the temporary practice rule. Twenty-seven
states have either adopted ABA Model Rule 5.5 or a similar version
of the rule or currently have a temporary practice rule in effect.
American Bar Association, Charts on State Adoption of MJP Proposals
(visited Aug. 23, 2006) http://www.abanet.org/cpr/mjp/state_adoption.html.
 Other states have adopted a temporary practice rule

that, like ABA Model Rule 5.5, allows an attorney not licensed in a
state to provide certain types of legal services in the state on a
limited basis. The laws of Michigan and Virginia specifically
authorize occasional or incidental practice by out-of-state lawyers.
See Mich. Comp. Law Ann. sec. 600.916 and Va. State Bar Rule, Pt. 6,
sec. 1(C).

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    Accordingly, NASD proposes to codify its current practice of
permitting the multi-jurisdictional practice of law in NASD's dispute
resolution forum to the extent permitted under applicable state law.
NASD also proposes to codify its current practice which allows non-
attorney representatives to represent parties in arbitration or
mediation.

Previous Proposal Relating to Representation in Arbitration and
Mediation

    On February 9, 2005, NASD filed a proposed rule change with the
Commission to address attorney representation in arbitration and
mediation.\8\ The proposed rule change would have:
---------------------------------------------------------------------------

    \8\ See File No. SR-NASD-2005-023.
---------------------------------------------------------------------------

     Allowed parties to represent themselves in an arbitration
or mediation;
     Allowed parties to be represented by an attorney at law
admitted to practice before a U.S. jurisdiction at any stage of the
proceeding; and
     Deferred to the states any issues regarding qualifications
of a person to represent a party.
    NASD amended this proposal on July 8, 2005 to clarify that it was
intended to address the issue of multi-jurisdictional practice of law
by attorneys, and was not intended to address the issue of
representation by non-attorneys in arbitration or mediation
proceedings.\9\
---------------------------------------------------------------------------

    \9\ Id. at Amendment No. 1.
---------------------------------------------------------------------------

    As amended, the attorney representation proposal was published in
the Federal Register on July 21, 2005.\10\ The SEC received fifteen
comments, which primarily focused on two issues: Whether the rule
should preempt state law regarding attorney licensing, and whether the
rule should prohibit non-attorneys from practicing in NASD's forum. The
comments and NASD's response are discussed in subsection C below.
---------------------------------------------------------------------------

    \10\ See Securities Exchange Act Rel. No. 34-52045 (July 15,
2005); 70 FR 42123 (July 21, 2005) (File No. SR-NASD-2005-023).
---------------------------------------------------------------------------

    Based on the comments received on the attorney representation
proposal, as amended, NASD recognized that the proposal may have been
ambiguous. NASD did not intend to change current practice in the forum
regarding representation of parties by non-attorneys, or to preempt
state law on the issue of attorney licensing. Because the comments
indicated that these positions were unclear, NASD withdrew its
proposal. The current proposed rule change addresses representation of
parties by themselves, by attorneys and by non-attorneys in arbitration
and mediation.

Representation of Parties by Themselves, Attorneys and Non-Attorneys in
Arbitration and Mediation

    NASD is proposing to amend Rules 12208 and 13208 of the Customer
and Industry Codes, respectively, and Rule 10407 of the Code to clarify
that in both arbitration and mediation: (1) Parties may represent
themselves; (2) parties may be represented by an attorney, provided
certain criteria are met; (3) parties may be represented by a person
who is not an attorney, unless state law prohibits such representation
or the person is currently suspended or barred from the securities
industry in any capacity or is an attorney who is currently suspended
from the practice of law or disbarred; and (4) issues regarding
qualifications of a representative are governed by applicable law.
    First, the proposed rule change codifies current practice by
explicitly stating that parties may represent themselves in
arbitration.
    Second, the proposed rule change codifies current practice
permitting the multi-jurisdictional practice of law by attorneys in the
NASD dispute resolution forum to the extent permitted by state law. In
addition, the proposed rule change states that if a party chooses to be
represented by an attorney, the attorney must be licensed to practice
in a U.S. jurisdiction and be in good standing in that
jurisdiction.\11\ NASD believes that requiring an attorney to be
licensed in a U.S. jurisdiction and to be in good standing in that
jurisdiction will protect investors by prohibiting individuals who have
been suspended from the practice of law or disbarred from representing
parties in the NASD forum. Further, the requirement that an attorney
must be licensed to practice in a U.S. jurisdiction sets a standard of
practice for the arbitration forum that is consistent with the other
rules and proceedings of NASD. In particular, Rule 9141(b) of the NASD
Code of Procedure states, in relevant part, that a person may be
represented in any disciplinary proceeding by an attorney at law
admitted to practice before the highest court of any state of the
United States, the District of Columbia, or any commonwealth,
territory, or possession of the United States.\12\ The proposed rule
change also is consistent with Rule 102(b) of the SEC Rules of
Practice, which states that, ``[i]n any proceeding, a person may be
represented by an attorney at law admitted to practice before the
Supreme Court of the United States or the highest court of any State *
* *'' \13\
---------------------------------------------------------------------------

    \11\ The requirement to be licensed to practice in a U.S.
jurisdiction and be in good standing in that jurisdiction is in
addition to and not in lieu of the requirement that an attorney must
comply with applicable laws of the relevant jurisdiction. As
previously noted, while the multi-jurisdictional practice of law may
be permitted in many jurisdictions, it may constitute a violation of
certain states' unauthorized practice of law provisions.
    \12\ This rule has been enforced in NASD Enforcement
proceedings. In two similar cases, a respondent's answer was
stricken from the record because the respondent's representative had
not indicated that he was a licensed attorney. See NASDR Office of
the Hearing Officers, OHO Order 97-15 (C01970032) (visited Aug. 24,
2006), available at: http://www.nasd.com/web/groups/enforcement/documents/oho_disciplinary_orders/nasdw_007839.pdf
; see also OHO

Order 98-10 (C10970176) (visited Aug. 24, 2006), available at:
http://www.nasd.com/web/groups/enforcement/documents/oho_disciplinary_orders/nasdw_007695.pdf
.

    \13\ See SEC Rules of Practice, 17 CFR Sec.  201.102(b) (2004).
---------------------------------------------------------------------------

    Third, the proposed rule change addresses the representation of
parties by non-attorneys in the NASD forum. Under the proposed rule
change, parties may be represented in an arbitration or mediation by a
person who is not an attorney, unless state law prohibits such
representation or the person is currently suspended or barred from the
securities industry in any capacity or is an attorney who is currently
suspended from the practice of law or disbarred.
    This provision would be applicable to all arbitration claims. NASD
understands, however, that it may be difficult for investors with
claims of less than $100,000 to retain an attorney on a contingency-fee
basis because the attorney may believe that the attorney's share of the
award might be too small to justify the effort. In these circumstances,
NASD believes that investors should be able to seek other assistance to
resolve their arbitration or mediation claims for a more affordable
fee.\14\ At the same time, NASD believes

that such non-attorney representatives should not be persons who have
been found by a regulatory body in essence to be unfit to represent
clients or to conduct securities business with the public. Thus, to
protect investors, the rule would prohibit non-attorney representatives
who are currently suspended or barred from the securities industry, or
attorneys who are currently suspended from the practice of law or
disbarred, from representing parties in the NASD dispute resolution
forum. While NASD remains concerned about some aspects of non-attorney
representation, NASD does not wish to prohibit investors from retaining
a non-attorney representative if that person is the only affordable
representation available, and the requirements of the proposed rule are
met.
---------------------------------------------------------------------------

    \14\ Consistent with current practice, the proposed rule would
allow a relative, friend or associate to represent or assist a
person (e.g., an elderly or disabled person) with his or her
arbitration or mediation. In addition, law school securities
arbitration clinics can provide investors with affordable legal
representation. NASD notes that a securities arbitration clinic also
can help an investor who has a smaller claim but is unable to hire
an attorney, provided the investor qualifies for assistance. See How
to Find an Attorney (for more information on clinic locations and
eligibility requirements) (visited Sept. 13, 2006), available at:
< http://www.nasd.com/ArbitrationMediation/StartanArbitrationorMediation/HowtoFindanAttorney/index.htm
>.

---------------------------------------------------------------------------

    Last, the proposed rule change would allow an attorney to represent
a client in an NASD arbitration or mediation held in any U.S. hearing
location, regardless of the jurisdiction in which the attorney is
licensed. An attorney's ability to represent clients in a jurisdiction
in which he or she is not licensed, however, would be subject to the
applicable law of that jurisdiction. The proposed rule change is not
intended to preempt state law; it is intended to reflect current
practice in the forum which, based on experience, indicates that the
outcome of a dispute resolution proceeding depends more on the level of
knowledge, training and skill of the attorneys, rather than the
jurisdiction from which the attorneys received their license to
practice.
2. Statutory Basis
    NASD believes that the proposed rule change is consistent with the
provisions of Section 15A(b)(6) of the Act,\15\ which requires, among
other things, that NASD's rules must be designed to prevent fraudulent
and manipulative acts and practices, to promote just and equitable
principles of trade, and, in general, to protect investors and the
public interest. NASD believes that the proposed rule change balances
the needs of investors to have access to representation, particularly
in small cases, with NASD's responsibility to protect investors, the
integrity of its forum, and the public interest.
---------------------------------------------------------------------------

    \15\ 15 U.S.C. 78o-3(b)(6).
---------------------------------------------------------------------------

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

    NASD does not believe that the proposed rule change will result in
any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act, as amended.

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

    Written comments were neither solicited nor received by NASD. The
SEC received fifteen comments on the attorney representation proposal
that it published for comment on July 21, 2005.\16\ Commenters
primarily focused on two issues: Whether the rule should preempt state
law regarding attorney licensing, and whether the rule should prohibit
non-attorneys from practicing in NASD's forum.
---------------------------------------------------------------------------

    \16\ Comments were submitted by Timothy A. Canning, Esq., Law
Offices of Timothy A. Canning, dated February 11, 2005 (``Canning I
Letter''); Albert A. Rapoport, Esq., dated June 20, 2005 (``Rapoport
Letter''); Joseph C. Korsak, Esq., Law Office of Joseph C. Korsak,
dated July 22, 2005 (``Korsak Letter''); Michael Firestein, Esq. and
Navid Yadegar, Esq., Proskauer Rose LLP, dated August 1, 2005
(``Firestein Letter''); Rodney J. Heggy, Esq., Heggy & Associates,
LLC, dated August 4, 2005 (``Heggy Letter''); Richard L. Sacks,
Securities Arbitration Consultant, dated August 9, 2005 (``Sacks
Letter''); Rosemary Shockman, President, Public Investors
Arbitration Bar Association, dated August 9, 2005 (``PIABA
Letter''); Joseph O'Donnell, dated August 10, 2005 (``O'Donnell
Letter''); Irwin G. Stein, dated August 10, 2005 (``Stein Letter'');
Montgomery G. Griffin, Esq., Securities Arbitration Offices of
Montgomery G. Griffin, dated August 10, 2005 (``Griffin Letter'');
Timothy A. Canning, Esq., Law Offices of Timothy A. Canning, dated
August 10, 2005 (``Canning II Letter''); Kevin P. Takacs, CCO,
Dominion Investor Services, Inc., dated August 11, 2005 (``Takacs
Letter''); Jill I. Gross, Director of Advocacy and Barbara Black,
Director of Research, Pace Investor Rights Project, dated August 11,
2005 (``Pace Letter''); and Stephen C. Krosschell, Esq., Goodman &
Nekvasil, P.A., dated August 11, 2005 (``Krosschell Letter''). The
letter received from Marie W. Hayes, dated March 25, 2005, does not
comment on the proposed rule change.
---------------------------------------------------------------------------

    With respect to the state preemption issue, several commenters
agreed that state law should control whether attorneys may participate
in arbitrations in a state in which they are not licensed.\17\ These
commenters stated that representatives should be licensed legal
practitioners who are regulated and have demonstrated a minimum level
of competence required to represent clients. Several other commenters
opposed the provision of the proposal that would allow state law to
control attorney-licensure issues, stating that the provision could
result in delays in arbitration proceedings as representatives make the
qualifications of an out-of-state representative the focus of the
proceedings.\18\
---------------------------------------------------------------------------

    \17\ See Firestein Letter, Heggy Letter, Pace Letter, PIABA
Letter and Rapoport Letter.
    \18\ See Canning I & II Letters, Korsak Letter, Krosschell
Letter, Sacks Letter and Stein Letter.
---------------------------------------------------------------------------

    Other commenters addressed whether the proposal would prohibit, in
effect, non-attorneys from practicing in NASD's forum. Several
commenters contended that the proposal should address non-attorney
representation and should allow non-attorneys to practice in the
forum.\19\ These commenters argued that the proposal attempted to deny
investors access to qualified non-attorney representatives who have
securities industry experience and are willing to accept cases that are
too small to enable investors to retain a securities attorney. Other
commenters contended that the proposal should prohibit compensated non-
attorney representation in securities arbitration, stating that the
lack of legal training makes non-attorneys less knowledgeable or
competent to deal fully with the laws and issues that arise in an
arbitration proceeding.\20\
---------------------------------------------------------------------------

    \19\ See, Griffin Letter, O'Donnell Letter, Rapoport Letter,
Sacks Letter, Stein Letter and Takacs Letter.
    \20\ See Firestein Letter, Heggy Letter, Korsak Letter, Pace
Letter and PIABA Letter.
---------------------------------------------------------------------------

    As noted above, based on the disparate comments received on the
proposal, NASD recognized that the proposal may not have been clear.
NASD did not intend to change current practice in the forum regarding
representation of parties by non-attorneys; nor did it intend to
preempt state law on the issue of attorney licensing. Because the
comments indicated that these positions were unclear, NASD has
withdrawn the attorney representation proposal and is filing this new
proposal to replace it.

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

    Within 35 days of the date of publication of this notice in the
Federal Register or within such longer period (i) as the Commission may
designate up to 90 days of such date if it finds such longer period to
be appropriate and publishes its reasons for so finding or (ii) as to
which the self-regulatory organization consents, the Commission will:
    A. By order approve such proposed rule change, or
    B. Institute proceedings to determine whether the proposed rule
change should be 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, as amended, 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 e-mail to<EMAIL_ADDRESS>Please include

File Number SR-NASD-2006-109 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NASD-2006-109. This file
number should be included on the subject line if e-mail 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 inspection and
copying in the Commission's Public Reference Room. Copies of such
filing will also be available for inspection and copying at the
principal office of NASD. All comments received will be posted without
change; the Commission does not edit personal identifying information
from submissions. You should submit only information that you wish to
make available publicly. All submissions should refer to the File
Number SR-NASD-2006-109 and should be submitted on or before May 4,
2007.

    For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\21\
---------------------------------------------------------------------------

    \21\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E7-7008 Filed 4-12-07; 8:45 am]

BILLING CODE 8010-01-P


[Federal Register Volume 86, Number 227 (Tuesday, November 30, 2021)]
[Notices]
[Pages 68029-68034]
[FR Doc No: 2021-25994]

-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-93661; File No. SR-Phlx-2021-70]

Self-Regulatory Organizations; Nasdaq PHLX LLC; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change To Increase
Position Limits for Options on Certain Exchange-Traded Funds

November 23, 2021.
    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 November 19, 2021, Nasdaq PHLX LLC (``Phlx'' or ``Exchange'') filed
with the Securities and Exchange Commission (``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.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of the
Substance of the Proposed Rule Change

    The Exchange proposes to increase position limits for options on
certain exchange-traded funds (``ETFs'').
    The text of the proposed rule change is available on the Exchange's
website at https://listingcenter.nasdaq.com/rulebook/phlx/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
    Phlx proposes to increase certain position and exercise limits
within Options 9, Section 13 and 15, respectively, similar to the Cboe
Options Exchange, Inc. (``Cboe'').\3\
---------------------------------------------------------------------------

    \3\ See Securities Exchange Act Release No. 93525 (November 4,
2021), 86 FR 62584 (November 10, 2021) (SR-Cboe-2021-029) (Notice of
Filing of Amendment Nos. 2 and 3 and Order Granting Accelerated
Approval of a Proposed Rule Change, as Modified by Amendment Nos. 1,
2, and 3, To Increase Position Limits for Options on Two Exchange-
Traded Funds).
---------------------------------------------------------------------------

    Position limits are designed to address potential manipulative
schemes and adverse market impacts surrounding the use of options, such
as disrupting the market in the security underlying the options. While
position limits should address and discourage the potential for
manipulative schemes and adverse market impact, if such limits are set
too low, participation in the options market may be discouraged. The
Exchange believes that position limits must therefore be balanced
between mitigating concerns of any potential manipulation and the cost
of inhibiting potential hedging activity that could be used for
legitimate economic purposes.
    The Exchange has observed an ongoing increase in demand, for both
trading and hedging purposes, in options on the following exchange-
traded funds (``ETFs''): (1) iShares iBoxx $ Investment Grade Corporate
Bond ETF (``LQD''); and (2) VanEck Vectors Gold Miners ETF (``GDX''),
(collectively ``Underlying ETFs''). Though the demand for these options
appears to have increased, position limits for options on the
Underlying ETFs have remained the same. The Exchange believes these
unchanged position limits may have impeded, and may continue to impede,
trading activity and strategies of investors, such as use of effective
hedging vehicles or income generating strategies (e.g., buy-write or
put-write), and the ability of Market Makers to make liquid markets
with tighter spreads in these options resulting in the transfer of
volume to over-the-counter (``OTC'') markets. OTC transactions occur
through bilateral agreements, the terms of which are not publicly
disclosed to the marketplace. As such, OTC transactions do not

contribute to the price discovery process on a public exchange or other
lit markets. Therefore, the Exchange believes that the proposed
increases in position limits for options on the Underlying ETFs may
enable liquidity providers to provide additional liquidity to the
Exchange and other market participants to transfer their liquidity
demands from OTC markets to the Exchange. As described in further
detail below, the Exchange believes that the continuously increasing
market capitalization of the Underlying ETFs, ETF components, as well
as the highly liquid markets for each, reduces the concerns for
potential market manipulation and/or disruption in the underlying
markets upon increasing position limits, while the rising demand for
trading options on the Underlying ETFs for legitimate economic purposes
compels an increase in position limits.
Proposed Position Limits for Options on the Underlying ETFs
    Proposed Position Limits for options on ETFs are determined
pursuant to Options 9, Section 13 and vary according to the number of
outstanding shares and the trading volumes of the underlying equity
security (which includes ETFs) over the past six months. Pursuant to
Options 9, Section 13, the largest in capitalization and the most
frequently traded ETFs have an option position limit of 250,000
contracts (with adjustments for splits, re-capitalizations, etc.) on
the same side of the market; and smaller capitalization stocks and ETFs
have position limits of 200,000, 75,000, 50,000 or 25,000 contracts
(with adjustments for splits, recapitalizations, etc.) on the same side
of the market. Options on LQD and GDX are currently subject to the
standard position limit of 250,000 contracts as set forth in Options 9,
Section 13. Options 9, Section 13(a) sets forth separate, higher
position limits for specific equity options (including options on
specific EFFs [sic]).\4\ The Exchange proposes to amend Options 9,
Section 13(a) to increase the position limits and, as a result,
exercise limits, for options on each of LQD and GDX.\5\ The table below
represents the current, and proposed, position limits for options on
the ETFs subject to this proposal:
---------------------------------------------------------------------------

    \4\ Adjusted option series, in which one option contract in the
series represents the delivery of other than 100 shares of the
underlying security as a result of a corporate action by the issuer
of the security underlying such option series, do not impact the
notional value of the underlying security represented by those
options. When an underlying security undergoes a corporate action
resulting in adjusted series, the Exchange lists new standard option
series across all appropriate expiration months the day after the
existing series are adjusted. The adjusted series are generally
actively traded for a short period of time following adjustment, but
orders to open options positions in the underlying security are
almost exclusively placed in the new standard option series
contracts.
    \5\ By amending the position limits for LQD and GDX options
within Options 9, Section 13, the exercise limits are also being
amended pursuant to Options 3, Section 15(a). Exercise limits have
been established for the corresponding options at the same levels as
the corresponding security's position limits.

------------------------------------------------------------------------
                                              Current        Proposed
                 Product                  position limit  position limit
------------------------------------------------------------------------
LQD.....................................         250,000         500,000
GDX.....................................         250,000         500,000
------------------------------------------------------------------------

    The Exchange notes that the proposed position limit for options on
LDQ [sic] and GDX are consistent with current position limits for
options on the iShares MSCI Brazil Capped ETF (``EWZ''), iShares 20+
Year Treasury Bond Fund ETF (``TLT''), iShares MSCI Japan ETF
(``EWJ''), and iShares iBoxx High Yield Corporate Bond Fund (``HYG'').
The Exchange represents that the Underlying ETFs qualify for either (1)
the initial listing criteria set forth in Options 4, Section 3(h) for
ETFs holding non-U.S. component securities, (2) the generic listing
standards for series of portfolio depository receipts and index fund
shares based on international or global indexes under which a
comprehensive surveillance agreement (``CSA'') is not required, as well
as (3) the continued listing criteria in Options 4, Section 4(b) (for
ETFs).\6\ In compliance with its listing rules, the Exchange also
represents that non-U.S. component securities that are not subject to a
comprehensive surveillance agreement (``CSA'') do not, in the
aggregate, represent more than more than 50% of the weight of any of
the Underlying ETFs.\7\
---------------------------------------------------------------------------

    \6\ The Exchange notes that the initial listing criteria for
options on ETFs that hold non-U.S. component securities are more
stringent than the maintenance listing criteria for those same ETF
options. See Options 4, Section 3(h); Options 4, Section 4(b).
    \7\ See Options 4, Section 3(h).
---------------------------------------------------------------------------

Composition and Growth Analysis for Underlying ETPs
    As stated above, position (and exercise) limits are intended to
prevent the establishment of options positions that can be used to or
potentially create incentives to manipulate the underlying market so as
to benefit options positions. The Commission has recognized that these
limits are designed to minimize the potential for mini-manipulations
and for corners or squeezes of the underlying market, as well as serve
to reduce the possibility for disruption of the options market itself,
especially in illiquid classes.\8\ The Underlying ETFs, as well as the
ETF components, are highly liquid and are based on a broad set of
highly liquid securities and other reference assets, as demonstrated
through the trading statistics presented in this proposal. To support
the proposed position limit increases, the Exchange considered the
liquidity of the Underlying ETFs, the value of the Underlying ETFs,
their components and the relevant marketplace, the share and option
volume for the Underlying ETFs, and, where applicable, the availability
or comparison of economically equivalent products to options on the
Underlying ETFs.
---------------------------------------------------------------------------

    \8\ See Securities Exchange Act Release No. 67672 (August 15,
2012), 77 FR 50750 (August 22, 2012) (SR-NYSEAmex-2012-29).
---------------------------------------------------------------------------

    Cboe demonstrated the below trading statistics regarding shares of
and options on the Underlying ETFs and the values of the Underlying
ETFs and their components:
---------------------------------------------------------------------------

    \9\ Average daily volume (ADV) data for ETF shares and option
contracts, as well as for ETF shares and options on the comparative
ETFs presented below, are for all of 2020. Additionally, reference
to ADV in ETF shares and ETF options, and indexes herein this
proposal are for all of calendar year 2020, unless otherwise
indicated.
    \10\ Shares Outstanding and Net Asset Values (``NAV''), as well
as for the comparative ETFs presented below, are as of April 5, 2021
for all ETFs.
    \11\ Fund Market Capitalization data, as well as for the
comparative ETFs presented below, are as of January 14, 2021.
    \12\ See note 10 above.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Shares
                                               ADV \9\ (ETF    ADV (options     outstanding     Fund market
                   Product                        shares        contracts)      (millions)       cap (USD               Share value \12\ (USD)
                                                 millions)                         \10\       millions) \11\
--------------------------------------------------------------------------------------------------------------------------------------------------------
LQD.........................................            14.1          30,300           308.1        54,113.7  130.13 (NAV).
GDX.........................................            39.4         166,000           419.8        16,170.5  33.80 (NAV).
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Cboe collected the same trading statistics as above regarding a
sample of other ETFs, as well as the current position limits for
options on such ETFs pursuant to its Rule 13.07, to draw comparisons in
support of the proposed position limit increases for options on the
Underlying ETFs (see further discussion below).

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                               ADV (ETF                         Shares        Fund market                                     Current
                  Product                       shares       ADV (options     outstanding      cap (USD           Share value (USD)          position
                                               millions)       contract)      (millions)       millions)                                      limits
--------------------------------------------------------------------------------------------------------------------------------------------------------
EWZ.......................................            29.2         139,400           173.8         6,506.8  33.71 (NAV).................         500,000
TLT.......................................            11.5         111,800           103.7        17,121.3  136.85 (NAV)................         500,000
EWJ.......................................             8.2          15,500           185.3        13,860.7  69.72 (NAV).................         500,000
HYG.......................................            30.5         261,600           254.5        24,067.5  86.86 (NAV).................         500,000
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The Exchange believes that, overall, the liquidity in the shares of
the Underlying ETFs and in their overlying options, the larger market
capitalizations for each of the Underlying ETFs, and the overall market
landscape relevant to each of the Underlying ETFs support the proposal
to increase the position limits for each option class. Given the robust
liquidity in and value of the Underlying ETFs and their components, the
Exchange does not anticipate that the proposed increase in position
limits would create significant price movements as the relevant markets
are large enough to adequately absorb potential price movements that
may be caused by larger trades.
    LQD tracks the performance of the Markit iBoxx USD Liquid
Investment Grade (``IBOXIG'') Index, which is an index designed as a
subset of the broader U.S. dollar-denominated corporate bond market
which can be used as a basis for tradable products, such as ETFs, and
is comprised of over 8,000 bonds.\13\ Cboe noted that from 2019 through
2020, ADV has grown significantly in shares of LQD and in options on
LQD, from approximately 9.7 million shares in 2019 to 14.1 million
through 2020, and from approximately 8,200 option contracts in 2019 to
30,300 through 2020. LQD also continued to experience significant
growth in ADV in the first quarter of 2021 with an ADV of approximately
140,200 option contracts. Further, LQD generally experiences higher ADV
in shares than both TLT (11.5 million shares) and EWJ (8.2 million
shares) and almost double the ADV in option contracts than EWJ (15,500
option contracts). Options on each EWZ, TLT and EWJ are currently
subject to a position limit of 500,000 contracts--the proposed limit
for options on LQD. The NAV of LQD is also higher than, or comparable
to, that of the NAV of the ETFs underlying the options that are
currently subject to a position limit of 500,000 option contracts (as
presented in the table above), which is indicative that the total value
of its underlying components is generally higher or comparable. Per the
tables above, LQD's total market capitalization of approximately $54.1
billion is also higher than or comparable to the total market
capitalization of the ETFs underlying the options currently subject to
a position limit of 5000,000 [sic] contracts. In addition to this, Cboe
noted that, although there are currently no options listed for trading
on the IBOXIG Index, the components \14\ of the IBOXIG Index, which can
be used in creating a basket of securities that equate to the LQD ETF,
are made up of over 8,000 bonds for which the outstanding face value of
each must be greater than or equal to $2 billion.\15\ The Exchange
believes that the total value of the bonds in the IBOXIG Index, coupled
with LQD's share and option volume, total market capitalization, and
NAV price indicates that the market is large enough to absorb potential
price movements caused by a large trade in LQD. Also, as evidenced
above, trading volume in LQD shares has increased over the past few
years and the Exchange understands that market participants' need for
options have continued to grow alongside the ETF. Particularly, the
Exchange notes that in the last year, market participants have sought
more cost-effective hedging strategies through the use of LQD options
as a result of the borrow on other fixed income ETFs, such as HYG.
Therefore, the Exchange believes that because LQD options are being
increasingly utilized as an alternative to similar products, such as
HYG options, then it is appropriate that options on LQD be subject to
the same 500,000 contract position limit that currently exists for
options on HYG.
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    \13\ See Markit iBoxx USD Liquid Investment Grade Index,
available at https://cdn.ihsmarkit.com/www/pdf/MKT-iBoxx-USD-Liquid-Investment-GradeIndex-factsheet.pdf (January 14, 2021).
    \14\ Investment grade corporate bonds.
    \15\ See note 13 above.
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    GDX seeks to replicate as closely as possible the price and yield
performance of the NYSE Arca Gold Miners (``GDMNTR'') Index, which is
intended to track the overall performance of companies involved in the
gold mining industry.\16\ Cboe noted ADV in GDX options increased from
2019 through 2020, with an ADV of approximately 117,400 option
contracts in 2019 to an ADV of approximately 166,000 option contracts
in 2020. Cboe noted that ADV in GDX shares did not increase from 2019
to 2020. GDX options also experienced an ADV of approximately 287,800
option contracts in the first quarter of 2021. Cboe noted that the ADV
in GDX shares (39.4 million) and options on GDX (166,000 option
contracts) are greater than the ADV in EWZ (29.2 million shares and
139,300 option contracts), TLT (11.5 million shares and 111,800 option
contracts), EWJ (8.2 million shares and 15,500 option contracts) and
HYG (30.5 million shares and 261,600 option contracts), each of which
is currently subject to a position limit of 500,000 option contracts--
the proposed limit for options on GDX. GDX also experiences a
comparable, or higher, market capitalization (approximately $16.2
billion) than EWZ, TLT and EWZ. Cboe noted that many of the Brazil-
based gold mining constituents included in GDX are also included in
EWZ, which tracks the investment results of an index composed of
Brazilian equities, and that Cboe had not identified any issues with
the continued listing and trading of EWZ options or any adverse market
impact on EWZ in connection with the current 500,000 position limit in
place for EWZ options. Additionally, like that of LDQ above, there is
currently no index option analogue for the GDX ETF on the GDMNTR Index
approved for options trading, however, the components of the GDMNTR
Index, which can be used to create the GDX ETF, currently must each
have a market capitalization greater than $750 million, an ADV of at
least 50,000 shares, and an average daily value traded of at least $1

million in order to be eligible for inclusion in the GDMNTR Index. The
Exchange believes that the GDMNTR Index component inclusion
requirements, as well as GDX's share and option volume and total market
capitalization, indicate that the GDX market is sufficiently large and
liquid enough to absorb price movements as a result of potentially
oversized trades.
---------------------------------------------------------------------------

    \16\ See VanEck Vectors Gold Miners ETF, available at https://www.vaneck.com/library/vaneck-vectors-etfs/gdx-fact-sheet-pdf/
(January 14, 2021).
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Creation and Redemption for ETFs
    The Exchange believes that the creation and redemption process for
the ETFs subject to this proposal will lessen the potential for
manipulative activity with options on the Underlying ETFs. When an ETF
provider wants to create more shares, it looks to an Authorized
Participant (``AP'') (generally a market maker or other large financial
institution) to acquire the underlying components the ETF is to hold.
For instance, when an ETF is designed to track the performance of an
index, the AP can purchase all the constituent securities in the exact
same weight as the index, then deliver those shares to the ETF
provider. In exchange, the ETF provider gives the AP a block of equally
valued ETF shares, on a one-for-one fair value basis. The price is
based on the NAV, not the market value at which the ETF is trading. The
creation of new ETF units can be conducted during an entire trading day
and is not subject to position limits. This process works in reverse
where the ETF provider seeks to decrease the number of shares that are
available to trade. The creation and redemption processes for the
Underlying ETFs creates a direct link to the underlying components of
the ETF and serves to mitigate potential price impact of the ETF shares
that might otherwise result from increased position limits for the
options on the Underlying ETFs.
    The Exchange understands that the ETF creation and redemption
processes seek to keep an ETF's share price trading in line with the
product's underlying net asset value. Because an ETF trades like a
stock, its share price will fluctuate during the trading day, due to
simple supply and demand. If demand to buy an ETF is high, for
instance, an ETF's share price might rise above the value of its
underlying components. When this happens, the AP or issuer believes the
ETF may now be overpriced, so it may buy shares of the component
securities or assets and then sell ETF shares in the open market. This
may drive the ETF's share price back toward the underlying net asset
value. Likewise, if an ETF share price starts trading at a discount to
the component securities or assets it holds, the AP or issuer can buy
shares of the ETF and redeem them for the underlying components. Buying
undervalued ETF shares may drive the share price of an ETF back toward
fair value. This arbitrage process helps to keep an ETF's share price
in line with the value of its underlying portfolio.
Surveillance and Reporting Requirements
    The Exchange believes that increasing the position limits (and
exercise limits) for the options on the Underlying ETFs would lead to a
more liquid and competitive market environment for these options, which
will benefit customers interested in trading these products. The
reporting requirement for the options on the Underlying ETFs would
remain unchanged. Thus, the Exchange would still require that each
member organization that maintains positions in the options on the same
side of the market, for its own account or for the account of a
customer, report certain information to the Exchange. This information
would include, but would not be limited to, the options' positions,
whether such positions are hedged and, if so, a description of the
hedge(s). Market Makers \17\ would continue to be exempt from this
reporting requirement, however, the Exchange may access Market Maker
position information.\18\ Moreover, the Exchange's requirement that
member organizations file reports with the Exchange for any customer
who held aggregate large long or short positions on the same side of
the market of 200 or more option contracts of any single class for the
previous day will remain at this level for the options subject to this
proposal and will continue to serve as an important part of the
Exchange's surveillance efforts.\19\
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    \17\ A ``Market Maker'' means a Streaming Quote Trader or a
Remote Streaming Quote Trader who enters quotations for his own
account electronically into the System. See Options 1, Section
1(b)(28). A ``Streaming Quote Trader'' or ``SQT'' means a Market
Maker who has received permission from the Exchange to generate and
submit option quotations electronically in options to which such SQT
is assigned. An SQT may only submit such quotations while such SQT
is physically present on the trading floor of the Exchange. An SQT
may only submit quotes in classes of options in which the SQT is
assigned. See Options 1, Section 1(b)(54). A ``Remote Streaming
Quote Trader'' or ``RSQT'' means a Market Maker that is a member
affiliated with an Remote Streaming Quote Trader Organization with
no physical trading floor presence who has received permission from
the Exchange to generate and submit option quotations electronically
in options to which such RSQT has been assigned. A qualified RSQT
may function as a Remote Lead Market Maker upon Exchange approval.
An RSQT is also known as a Remote Market Maker (``RMM'') pursuant to
Options 2, Section 11. A Remote Streaming Quote Organization
(``RSQTO'') or Remote Market Maker Organization (``RMO'') are
Exchange member organizations that have qualified pursuant to
Options 2, Section 1. See Options 1, Section 1(b)(49). A ``Lead
Market Maker'' means a member who is registered as an options Lead
Market Maker pursuant to Options 2, Section 12(a). A Lead Market
Maker includes a Remote Lead Market Maker which is defined as a Lead
Market Maker in one or more classes that does not have a physical
presence on an Exchange's trading floor and is approved by the
Exchange pursuant to Options 2, Section 11. See Options 1, Section
1(b)(27).
    \18\ The Options Clearing Corporation (``OCC'') through the
Large Option Position Reporting (``LOPR'') system acts as a
centralized service provider for compliance with position reporting
requirements by collecting data from each Member, consolidating the
information, and ultimately providing detailed listings of each
Member's report to the Exchange, as well as Financial Industry
Regulatory Authority, Inc. (``FINRA''), acting as its agent pursuant
to a regulatory services agreement (``RSA'') with the Exchange.
    \19\ See Options 9, Section 13(f).
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    The Exchange believes that the existing surveillance procedures and
reporting requirements at the Exchange and other SROs are capable of
properly identifying disruptive and/or manipulative trading activity.
The Exchange also represents that it has adequate surveillances in
place to detect potential manipulation, as well as reviews in place to
identify potential changes in composition of the Underlying ETFs and
continued compliance with the Exchange's listing standards. These
procedures utilize daily monitoring of market activity via automated
surveillance techniques to identify unusual activity in both options
and the underlyings, as applicable.\20\ The Exchange also notes that
large stock holdings must be disclosed to the Commission by way of
Schedules 13D or 13G,\21\ which are used to report ownership of stock
which exceeds 5% of a company's total stock issue and may assist in
providing information in monitoring for any potential manipulative
schemes.
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    \20\ The Exchange believes these procedures have been effective
for the surveillance of trading the options subject to this proposal
and will continue to employ them.
    \21\ 17 CFR 240.13d-1.
---------------------------------------------------------------------------

    The Exchange believes that the current financial requirements
imposed by the Exchange and by the Commission adequately address
concerns regarding potentially large, unhedged positions in the options
on the Underlying ETFs. Current margin and risk-based haircut
methodologies serve to limit the size of positions maintained by any
one account by increasing the margin and/or capital that a member
organization must maintain for a large position held by itself or by
its customer.\22\ In addition, Rule 15c3-1 \23\ imposes a capital
charge on member organizations

to the extent of any margin deficiency resulting from the higher margin
requirement.
---------------------------------------------------------------------------

    \22\ See Options 6C, Section 3, Margin Requirements.
    \23\ 17 CFR 240.15c3-1.
---------------------------------------------------------------------------

2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section
6(b) \24\ of the Act,\25\ in general, and furthers the objectives of
Section 6(b)(5) of the Act. Specifically, the Exchange believes the
proposed rule change is consistent with the Section 6(b)(5) \26\
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. Additionally, the Exchange
believes the proposed rule change is consistent with the Section
6(b)(5) \27\ requirement that the rules of an exchange not be designed
to permit unfair discrimination between customers, issuers, brokers, or
dealers.
---------------------------------------------------------------------------

    \24\ 15 U.S.C. 78f(b)(5).
    \25\ 15 U.S.C. 78f(b).
    \26\ 15 U.S.C. 78f(b)(5).
    \27\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Exchange believes that the proposed increase in position limits
for options on the Underlying ETFs will remove impediments to and
perfect the mechanism of a free and open market and a national market
system, and, in general, protect investors and the public interest,
because it will provide market participants with the ability to more
effectively execute their trading and hedging activities. The proposed
increases will allow market participants to more fully implement
hedging strategies in related derivative products and to further use
options to achieve investment strategies (e.g., there are other
exchange-traded products (``ETPs'') that use options on the ETFs
subject to this proposal as part of their investment strategy, and the
applicable position limits as they stand today may inhibit these other
ETPs in achieving their investment objectives, to the detriment of
investors). Also, increasing the applicable position limits may allow
Market Makers to provide the markets for these options with more
liquidity in amounts commensurate with increased consumer demand in
such markets. The proposed position limit increases may also encourage
other liquidity providers to shift liquidity, as well as encourage
consumers to shift demand, from OTC markets onto the Exchange, which
will enhance the process of price discovery conducted on the Exchange
through increased order flow.
    In addition, the Exchange believes that the structure of the
Underlying ETFs, the considerable market capitalization of the funds
and underlying components, and the liquidity of the markets for the
applicable options and underlying components will mitigate concerns
regarding potential manipulation of the products and/or disruption of
the underlying markets upon increasing the relevant position limits. As
a general principle, increases in market capitalizations, active
trading volume, and deep liquidity of the underlying components do not
lead to manipulation and/or disruption. This general principle applies
to the recently observed increased levels of market capitalization and
trading volume and liquidity in shares of and options on the Underlying
ETFs (as described above), and, as a result, the Exchange does not
believe that the options markets or underlying markets would become
susceptible to manipulation and/or disruption as a result of the
proposed position limit increases. Indeed, the Commission has
previously expressed the belief that not just increasing, but removing,
position and exercise limits may bring additional depth and liquidity
to the options markets without increasing concerns regarding
intermarket manipulation or disruption of the options or the underlying
securities.\28\
---------------------------------------------------------------------------

    \28\ See Securities Exchange Act Release No. 62147 (October 28,
2005) (SR-CBOE-2005-41), at 62149.
---------------------------------------------------------------------------

    Further, the Exchange notes that the proposed rule change to
increase position limits for select actively traded options is not
novel and the Commission has approved similar proposed rule changes by
the Exchange to increase position limits for options on similar, highly
liquid and actively traded ETPs.\29\ Furthermore, the Exchange again
notes that that the proposed position limits for options on LQD and GDX
are consistent with existing position limits for options on comparable
ETFs in Options 9, Section 13.
---------------------------------------------------------------------------

    \29\ See Securities Exchange Act Release Nos. 88768 (April 29,
2020), 85 FR 26736 (May 5, 2020) (SR-CBOE-2020-015); 83415 (June 12,
2018), 83 FR 28274 (June 18, 2018) (SR-CBOE-2018-042); and 68086
(October 23, 2012), 77 FR 65600 (October 29, 2012) (SR-CBOE-2012-
066).
---------------------------------------------------------------------------

    The Exchange's surveillance and reporting safeguards continue to be
designed to deter and detect possible manipulative behavior that might
arise from increasing or eliminating position and exercise limits in
certain classes. The Exchange believes that the current financial
requirements imposed by the Exchange and by the Commission adequately
address concerns regarding potentially large, unhedged position in the
options on the Underlying ETFs, further promoting just and equitable
principles of trading, the maintenance of a fair and orderly market,
and the protection of investors.

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

    The Exchange does not believe that the proposed rule changes will
impose any burden on competition not necessary or appropriate in
furtherance of the purposes of the Act. The Exchange does not believe
the proposed rule change will impose any burden on intra-market
competition that is not necessary or appropriate in furtherance of the
purposes of the Act because the increased position limits (and exercise
limits) will be available to all market participants and apply to each
in the same manner. The Exchange believes that the proposed rule change
will provide additional opportunities for market participants to more
efficiently achieve their investment and trading objectives of market
participants.
    The Exchange does not believe that the proposed rule change will
impose any burden on inter-market competition that is not necessary or
appropriate in furtherance of the Act. On the contrary, the Exchange
believes the proposal promotes competition because it may attract
additional order flow from the OTC market to exchanges, which would in
turn compete amongst each other for those orders.\30\ The Exchange
believes market participants would benefit from being able to trade
options with increased position limits in an exchange environment in
several ways, including but not limited to the following: (1) Enhanced
efficiency in initiating and closing out position; (2) increased market
transparency; and (3) heightened contra-party creditworthiness due to
the role of OCC as issuer and guarantor. The Exchange notes that other
options exchanges may choose to file similar proposals with the
Commission to

increase position limits on options on the Underlying ETFs.
---------------------------------------------------------------------------

    \30\ Additionally, several other options exchanges have the same
position limits as the Exchange, as they incorporate by reference to
the Exchange's position limits, and as a result the position limits
for options on the Underlying ETFs will increase at those exchanges.
For example, The Nasdaq Options Market LLC (``NOM'') and Nasdaq BX,
Inc. (``BX'') position limits are determined by the position limits
established by Cboe. See NOM and BX Options 9, Section 13, Position
Limits.
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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 \31\ and Rule 19b-
4(f)(6) thereunder.\32\
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    \31\ 15 U.S.C. 78s(b)(3)(A).
    \32\ 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.
---------------------------------------------------------------------------

    A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the
Act \33\ normally does not become operative for 30 days after the date
of its filing. However, Rule 19b-4(f)(6)(iii) \34\ 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 so that
the proposed rule change may become operative upon filing. The Exchange
states that waiver of the operative delay would be consistent with the
protection of investors and the public interest because it will ensure
fair competition among the exchanges by allowing the Exchange to
immediately increase the position limits for the products subject to
this proposal, which the Exchange believes will provide consistency for
Phlx members and member organizations that are also members at Cboe
where these increased position limits are currently in place. For this
reason, the Commission believes that waiver of the 30-day operative
delay is consistent with the protection of investors and the public
interest. Therefore, the Commission hereby waives the operative delay
and designates the proposal as operative upon filing.\35\
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    \33\ 17 CFR 240.19b-4(f)(6).
    \34\ 17 CFR 240.19b-4(f)(6)(iii).
    \35\ For purposes only of waiving the 30-day operative delay,
the Commission also has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
---------------------------------------------------------------------------

    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-Phlx-2021-70 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-Phlx-2021-70. 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 such 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-Phlx-2021-70, and should be submitted on
or before December 21, 2021.
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    \36\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\36\
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-25994 Filed 11-29-21; 8:45 am]
BILLING CODE 8011-01-P