Self-Regulatory Organizations; Cboe Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the Exchange's Rules Regarding the Automated Improvement Mechanism and Solicitation Auction Mechanism for Flexible Exchange Options, and Move Those Rules From the Currently Effective Rulebook to the Shell Structure for the Exchange's Rulebook That Will Become Effective Upon the Migration of the Exchange's Trading Platform to the Same System Used by the Cboe Affiliated Exchanges

Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”), and Rule 19b-4 thereunder, notice is hereby given that on October 4, 2019, Cboe Exchange, Inc. (the “Exchange” or “Cboe Options”) filed with the Securities and Exchange Commission (the “Commission”) the proposed rule change as described in Items I and II below, which Items have been prepared by the Exchange. The Exchange filed the proposal as a “non-controversial” proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act and Rule 19b-4(f)(6) thereunder. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons.

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

Cboe Exchange, Inc. (the “Exchange” or “Cboe Options”) proposes to amend the Exchange's Rules regarding the automated improvement mechanism (“AIM”) and solicitation auction mechanism (“SAM”) for flexible exchange options (“FLEX Options”) (“FLEX AIM” and “FLEX SAM,” respectively) and moves those Rules from the currently effective Rulebook (“current Rulebook”) to the shell structure for the Exchange's Rulebook that will become effective upon the migration of the Exchange's trading platform to the same system used by the Cboe Affiliated Exchanges (as defined below) (“shell Rulebook”). The text of the proposed rule change is provided in Exhibit 5.

The text of the proposed rule change is also available on the Exchange's website ( http://www.cboe.com/AboutCBOE/CBOELegalRegulatoryHome.aspx ), at the Exchange's Office of the Secretary, and at the Commission's Public Reference Room.

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

In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.

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

1. Purpose

In 2016, the Exchange's parent company, Cboe Global Markets, Inc. (formerly named CBOE Holdings, Inc.) (“Cboe Global”), which is also the parent company of Cboe C2 Exchange, Inc. (“C2”), acquired Cboe EDGA Exchange, Inc. (“EDGA”), Cboe EDGX Exchange, Inc. (“EDGX” or “EDGX Options”), Cboe BZX Exchange, Inc. (“BZX” or “BZX Options”), and Cboe BYX Exchange, Inc. (“BYX” and, together with Cboe Options, C2, EDGX, EDGA, and BZX, the “Cboe Affiliated Exchanges”). The Cboe Affiliated Exchanges are working to align certain system functionality, retaining only intended differences between the Cboe Affiliated Exchanges, in the context of a technology migration. Cboe Options intends to migrate its trading platform to the same system used by the Cboe Affiliated Exchanges, which the Exchange expects to complete on October 7, 2019. In connection with this technology migration, the Exchange has a shell Rulebook that resides alongside its current Rulebook, which shell Rulebook will contain the Rules that will be in place upon completion of the Cboe Options technology migration.

The proposed rule change amends current Rules 24A.5A and 24A.5B regarding the FLEX AIM Auction and the FLEX SAM Auction, respectively. The proposed changes reflect recent amendments to general FLEX trading rules as well as recent amendments to the non-FLEX AIM and SAM Auctions. The proposed rule change amends and moves the following provisions regarding the terms of FLEX AIM and SAM Auctions from the current Rulebook to the shell Rulebook. In addition to the substantive changes described below, the proposed rule change makes additional nonsubstantive changes to these Rules, including to make the rule text plain English, simplify the rule provisions, update cross-references and paragraph numbering and lettering, reorganize certain provisions, and eliminate redundant provisions.

The proposed rule change clarifies in the proposed introductory paragraph of each of proposed Rules 5.73 and 5.74 that the Initiating Order or Solicited Order, respectively, may consist of one or more solicited orders. This accommodates multiple contra-parties and increases the opportunities for customer orders to be submitted into a FLEX AIM or SAM Auction with the potential for price improvement, since the Initiating Order or Solicited Order, respectively, must stop the full size of the Agency Order. This has no impact on the execution of the Agency Order, which may already trade against multiple contra-parties depending on the final auction price, as set forth in proposed paragraph (e) of each of proposed Rules 5.73 and 5.74.

Rules 24A.5A, Interpretation and Policy .05 and 24A.5B, Interpretation and Policy .01 currently describe the applicability of FLEX AIM and SAM Auctions, respectively. Because FLEX AIM and SAM Auctions apply to complex orders in the same manner as they apply to simple orders, other than the need for complex orders (and responses to auctions of complex orders) to include a net price (as required in current Rules 24A.5A, Interpretation and Policy .05 and 24A.5B, Interpretation and Policy .01), the Exchange no longer believes a separate interpretation and policy is necessary for complex orders. The Exchange makes FLEX AIM and SAM Auctions, respectively, available for complex orders in any FLEX Option class in which it makes the applicable auction available for simple orders, so the Exchange no longer needs separate flexibility to apply each auction to complex orders as provided by current Rules 24A.5A, Interpretation and Policy .05 and 24A.5B, Interpretation and Policy .01 (which state the Exchange may determine on a class-by-class basis to make the FLEX AIM Auction or FLEX SAM Auction, respectively, available for complex orders). As discussed below, the proposed rule change will permit multiple FLEX AIM and SAM Auctions for a complex strategy, and in any of the same individual series legs of the strategy, to be ongoing at the same time, so the proposed rule change deletes the provisions from current Rules 24A.5A, Interpretation and Policy .05 and 24A.5B, Interpretation and Policy .01 that state only one FLEX AIM Auction may be ongoing at any given time. Additionally, the proposed rule change deletes the provision in current Rules 24A.5A, Interpretation and Policy .05 and 24A.5B, Interpretation and Policy .01 that state unrelated FLEX Orders in any individual series legs may not be submitted to the electronic book for the duration of a FLEX AIM or SAM Auction, as there will no longer be a book available for FLEX Orders. The Exchange believes this will simplify the FLEX AIM and SAM Auctions.

All eligibility requirements for FLEX AIM and SAM Auctions are set forth in the proposed rules, so the proposed rule change also deletes the current flexibility to determine order types, origin codes, and marketability that are eligible for those auctions from current Rules 24A.5A, Interpretation and Policy .05 and 24A.5B, Interpretation and Policy .01. As discussed above, complex orders, like simple orders, will only be able to trade against FLEX AIM or SAM responses, as applicable, so the proposed rule change deletes the provisions that state complex orders will only be eligible to trade with other complex orders through a FLEX AIM or SAM Auction, respectively. Order allocation for simple and complex orders following a FLEX AIM or SAM Auction will continue to be the same, as proposed Rule 5.73(e) and 5.74(e) apply to both simple and complex orders, and therefore the proposed rule change deletes that provision from current Rules 24A.5A, Interpretation and Policy .05 and 24A.5B, Interpretation and Policy .01. Finally, because there will no longer be an electronic book (and thus no BBO) for FLEX Options, the proposed rule change deletes the provisions in Rules 24A.5A, Interpretation and Policy .05 and 24A.5B, Interpretation and Policy .01 regarding the impact of bids and offers in the electronic book on FLEX AIM and SAM Auctions, respectively, and regarding the ability of orders in the individual legs to be submitted to the electronic book during an auction.

With respect to FLEX AIM Auctions, the proposed rule change provides that if the Initiating FLEX Trader selects a single-price submission, it may elect for the Initiating Order to have last priority to trade against the Agency Order. If the Initiating FLEX Trader selects a single-price submission, it may elect for the Initiating Order to have last priority to trade against the Agency Order. In this case, the Initiating Order would only execute against any remaining Agency Order contracts at the stop price after the Agency Order is allocated to all FLEX AIM responses at all prices equal to or better than the stop price. Last priority information is not available to other market participants and may not be modified after it is submitted. This proposed rule change provides Initiating FLEX Traders with additional control over its execution of an Initiating Order against an Agency Order, which may further encourage FLEX Traders to submit Agency Orders to a FLEX AIM Auction for potential price improvement opportunities for those orders. This may also provide more opportunities for other FLEX Traders to participate in the FLEX AIM Auctions. The proposed last priority option is the same as the last priority provision option available in non-FLEX AIM Auctions, and thus the proposed rule change provides further consistency across the Exchange's auction mechanisms.

The proposed rule change permits the Initiating FLEX Trader to designate the length of FLEX AIM and SAM Auctions, rather than the Exchange. The permissible length of the auctions continues to have a minimum of three seconds, which is consistent with the current Rules. The proposed rule change also imposes a maximum for the length of the auctions of five minutes, which is consistent with the permissible times for the FLEX electronic auction. This will permit the Initiating FLEX Trader to determine a reasonable timeframe for the duration of an auction based on the FLEX Option series or complex strategy submitted into the auction, as well as provide for a timely execution of Agency Orders.

Unlike today, one or more FLEX AIM or SAM Auctions in the same FLEX Option series or complex strategy (as applicable) may occur at the same time. To the extent there is more than one FLEX AIM or SAM Auction in a FLEX Option series or complex strategy (as applicable) underway at the same time, the auctions will conclude sequentially based on the times at which each auction period concludes. At the time each auction concludes, the System allocates the Agency Order pursuant to proposed Rule 5.73(e) or 5.74(e), as applicable, and takes into account all FLEX responses submitted during the auction period. Concurrent auctions will be permitted in various other electronic auctions on the Exchange following migration. If a FLEX Trader attempts to initiate a FLEX AIM or SAM Auction in a FLEX Option series while another auction in that series is ongoing, the Exchange believes it will provide that second FLEX Order with an opportunity for execution in a timely manner by initiating another FLEX Auction, rather than requiring the FLEX Trader to wait for the first auction to conclude. The second FLEX Trader may not be able to submit a response to trade in the ongoing FLEX AIM or SAM Auction, because the terms may not be consistent with that FLEX Trader's order (for example, there may not be sufficient size, and the FLEX Trader may only receive a share of the auctioned order depending on other responses). Therefore, the Exchange believes providing this functionality for FLEX AIM and SAM Auctions may similarly lead to an increase in these auctions, which may provide additional opportunities for execution of FLEX Orders.

The proposed rule change eliminates priority for non-TPH broker-dealer responses at the conclusion of FLEX AIM and SAM Auctions, and thus those responses will be prioritized in the same manner as all other non-Priority Customer responses. Non-TPH broker-dealers do not, and have not, received priority in the non-FLEX AIM and SAM Auctions, so the proposed rule change aligns the provision regarding who receives first priority in a FLEX AIM or SAM Auction with the corresponding provisions for non-FLEX AIM and SAM Auctions. The Exchange currently prioritizes contra-interest from these market participants to ensure that FLEX AIM and SAM Auctions satisfy the “G” exemption for yielding priority to non-members under Section 11(a)(1) of the Act. However, as discussed below, the Exchange believes the FLEX AIM and SAM Auctions, as proposed, satisfy the “Effect vs. Execute” exemption from Section 11(a) under the Act, and therefore does not need to provide additional functionality for TPHs to satisfy another exemption from Section 11(a) under the Act. Priority Customer responses will continue to receive first priority in both FLEX AIM and SAM Auctions, as they do in non-FLEX AIM and SAM Auctions. Therefore, the proposed rule change provides further consistency across the Exchange's auction mechanisms.

As proposed, the general framework of the FLEX AIM and SAM Auctions will continue to be the same as the Exchange's non-FLEX AIM and SAM Auctions, with the differences being only those relating to the differences between FLEX and non-FLEX Options. The Exchange believes it will benefit investors to provide continued consistency across the Exchange's price improvement mechanisms.

The proposed rule change deletes Rule 24A.5A, Interpretation and Policy .06 and Rule 24A.5B, Interpretation and Policy .02 regarding post-trade verification procedures for FLEX AIM and SAM Auctions for complex orders. Due to the System updates in connection with the System migration, parties to executions follow FLEX AIM and SAM Auctions will no longer need to take additional steps with respect to executions of complex orders following an electronic FLEX AIM or SAM Auction. These procedures require FLEX Traders to input the leg price, exercise price, and/or premium information into the System following execution of a complex FLEX Order. Pursuant to Rule 5.72(b)(2) in the shell Rulebook, FLEX Traders must submit all of this information upon entry of a FLEX Order. Therefore, pursuant to the proposed rule change, a FLEX Trader will be required to input the same information for each leg of a complex FLEX Order prior to submission rather than following execution. A FLEX Official may nullify a transaction following a FLEX AIM or SAM Auction pursuant to Rule 5.75(b) (such as if it did not conform to the terms in Rule 4.21 in the shell Rulebook), or update any inaccurate information in a complex FLEX Order in the same manner as any TPH may update any inaccurate information in any order pursuant to current Rule 6.67. Because all FLEX Orders will now be systematized, as discussed above, there is no longer a need for separate procedures regarding the correction of inaccurate information entered for FLEX transactions.

The proposed rule change deletes Rule 24A.5A, Interpretation and Policy .07 and Rule 24A.5B, Interpretation and Policy .05 regarding determinations made pursuant to those Rules, because the Exchange will announce all determinations it may make with respect to FLEX AIM and SAM Auctions pursuant to Rule 1.5 in the shell Rulebook, making these current interpretations no longer necessary.

2. Statutory Basis

The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act. Specifically, the Exchange believes the proposed rule change is consistent with the Section 6(b)(5) 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) requirement that the rules of an exchange not be designed to permit unfair discrimination between customers, issuers, brokers, or dealers.

The Exchange's FLEX AIM and SAM Auctions as proposed—both for simple and complex orders—will function in a substantially similar manner following the technology migration as they do today. The Exchange believes the proposed rule change 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 by providing continued consistency across the Exchange's price improvement mechanisms for both FLEX and non-FLEX Option. The general framework of the FLEX AIM and SAM Auction process as proposed to be amended will continue to be substantively the same as the framework for the non-FLEX AIM and SAM Auctions, as the Exchange recently amended, retaining differences that relate to the differences between FLEX and non-FLEX Options (e.g., exercise prices in prices or percentages, no electronic book and thus no BBO). The continued similarity of the Exchange's price improvement auctions will allow the Exchange's price improvement functionality to continue to fit seamlessly into the options market and benefit market participants with consistency across similar functionality. When auctions have similar functionality, Trading Permit Holders can use the same technology and coding for multiple auctions, rather than have to expend resources to participate in different auctions. Therefore, maintaining consistency across auction functionality will benefit investors. The Exchange also believes this will encourage Trading Permit Holders to compete vigorously to provide the opportunity for price improvement for customer orders in FLEX Options in competitive auction processes, which will further benefit and protect investors.

The Exchange believes the proposed rule change to permit an Initiating Order submitted into a FLEX AIM Auction, and a Solicited Order submitted into a FLEX SAM Auction, to be comprised of multiple contra-party orders will, in general, protect investors and the public interest, because it may increase the opportunity for customers to have orders participate in a FLEX AIM or SAM Auction. As a result, this may increase opportunities for price improvement, because this will increase the liquidity available for the Initiating Order or Solicited Order, as applicable, which is consistent with the purpose of FLEX AIM and SAM Auctions. The Exchange believes that this is beneficial to participants because allowing multiple contra-parties should foster competition for filling the Initiating Order or Solicited Order, as applicable, and thereby result in potentially better prices, as opposed to only allowing one contra-party and, thereby requiring that contra-party to do a larger size order which could result in a worse price for the trade.

As noted above, the proposed rule change will allow FLEX AIM and SAM Auctions to occur concurrently with other FLEX AIM and SAM Auctions. Although FLEX AIM and SAM Auctions will be allowed to overlap, the Exchange does not believe that this raises any issues that are not addressed by the proposed rule change. For example, although overlapping, each FLEX AIM or SAM Auction will be started in a sequence and with a duration that determines its processing. Thus, even if there are two FLEX AIM or SAM Auctions that commence and conclude, at nearly the same time, each Auction will have a distinct conclusion at which time the Auction will be allocated, and only against responses submitted into that Auction. As discussed above, each FLEX AIM or SAM response is required to specifically identify the FLEX AIM or SAM Auction, respectively, for which it is targeted and if not fully executed will be cancelled back at the conclusion of the Auction. Thus, responses will be specifically considered only in the specified Auction.

The proposed rule change to allow multiple auctions to overlap for Agency Orders is consistent with functionality already in place on other exchanges, and will therefore remove impediments to and perfect the mechanism of a free and open market and a national market system. Additionally, the proposed rule change is consistent with the Exchange's rules for non-FLEX AIM and SAM Auctions. Those issues generally relate to the interaction of auctioned orders with contra-side interest at the end of the various auctions. Different series or complex strategies, as applicable, are essentially different products—orders different strategies or in different series cannot interact, just as orders in different classes cannot interact. Therefore, the Exchange believes concurrent FLEX AIM and SAM Auctions in different series or complex strategies, respectively, is appropriate. The Exchange believes this new functionality may lead to an increase in Exchange volume and should allow the Exchange to better compete against other markets that permit overlapping price improvement auctions, while providing an opportunity for price improvement for Agency Orders and assuring that Priority Customers are protected. Therefore, the Exchange believes this proposed rule change will protect investors and the public interest.

While the terms of FLEX Options are different than those of non-FLEX Options, any potential issues raised by concurrent auctions are the same for non-FLEX and FLEX Options. Additionally, unlike in non-FLEX trading, there is no electronic book for FLEX trading. As noted above, responses submitted to a FLEX AIM or SAM Auction may only execute against the Agency Order in the Auction into which the responses were submitted, so there can be no conflict among contra-side interest with respect to executions. Further, unlike in non-FLEX trading, because there is no electronic book for FLEX Options, there are no events that cause a FLEX AIM or SAM Auction to conclude prior to the end of the respective auction period that would result in an execution, and therefore, the same event could not cause multiple auctions to conclude early. As discussed above, the proposed rule change addresses any of these potential issues.

The proposed range for the length of each of the FLEX AIM and SAM Auction periods is consistent with the range for the exposure interval of the electronic FLEX Auction. Because of the unique terms of FLEX Options, the Exchange believe it is appropriate to provide a reasonable and sufficient amount of time in which market participants may submit responses. Therefore, the minimum length of a FLEX AIM and SAM Auction (and is proposed to continue to be) three seconds. The Exchange also proposes a maximum length of an auction period of five minutes, as the Exchange also believes it is appropriate to provide for efficient and timely executions so that customers do not potentially miss a market. The proposed rule change also permits the Initiating FLEX Trader to establish the length of the auction period (which will be included in the auction notification message), as the FLEX Trader can determine a reasonable period of time to provide other FLEX Traders to respond based on the complexity of the FLEX Option series that is the subject of the auction, as well as based on market conditions (for example, in a volatile market, the FLEX Trader may believe it is in the best interests of a customer to have shorter auction given quickly changing prices).

The Exchange believes the proposed rule change to permit all FLEX Traders (other than the Initiating FLEX Trader) to respond to FLEX SAM Auctions will promote just and equitable principles of trade, remove impediments to and perfect the mechanism of a free and open market and a national market system, and not designed to permit unfair discrimination between customers, issuers, brokers, or dealers, because it permits all FLEX Traders to submit responses to FLEX SAM Auctions. Permitting all FLEX Traders to submit responses to FLEX SAM Auctions may result in more FLEX Traders having the opportunity to participate in executions at the conclusion of FLEX SAM Auctions. Additionally, it may increase liquidity in FLEX SAM Auctions, which may lead to more opportunities to price improvement, which the Exchange believes ultimately protects investors and the public interest. The Exchange's SAM Auction for non-FLEX Options similarly permits market-makers from other options exchange to submit responses.

Additionally, much of the proposed rule change is merely relocating provisions from the FLEX AIM and SAM Auction Rules (such as certain auction eligibility requirements, provisions related to auction responses, and provisions related to executions following the conclusion of an auction) from the current Rulebook to the shell Rulebook and making only nonsubstantive changes, which will therefore have no impact on FLEX AIM and SAM Auctions. The Exchange believes providing a reorganized, holistic rulebook upon migration will also benefit investors.

The proposed rule change is also consistent with Section 11(a)(1) of the Act and the rules promulgated thereunder. Generally, Section 11(a)(1) of the Act restricts any member of a national securities exchange from effecting any transaction on such exchange for (i) the member's own account, (ii) the account of a person associated with the member, or (iii) an account with respect to which the member or a person associated with the member exercises investment discretion, unless a specific exemption is available. Examples of common exemptions include the exemption for transactions by broker dealers acting in the capacity of a market maker under Section 11(a)(1)(A), the “G” exemption for yielding priority to non-members under Section 11(a)(1)(G) of the Act and Rule 11a1-1(T) thereunder, and “Effect vs. Execute” exemption under Rule 11a2-2(T) under the Act.

The “Effect vs. Execute” exemption permits an exchange member, subject to certain conditions, to effect transactions for covered accounts by arranging for an unaffiliated member to execute transactions on the exchange. To comply with Rule 11a2-2(T)'s conditions, a member: (a) Must transmit the order from off the exchange floor; (b) may not participate in the execution of the transaction once it has been transmitted to the member performing the execution; (c) may not be affiliated with the executing member; and (d) with respect to an account over which the member has investment discretion, neither the member nor its associated person may retain any compensation in connection with effecting the transaction except as provided in the Rule. For the reasons set forth below, the Exchange believes that TPHs entering orders into a FLEX AIM or SAM Auction would satisfy the requirements of Rule 11a2-2(T).

The Exchange believes FLEX AIM and SAM Auctions will place all users—both TPHs and non-TPHs—on the “same footing” as intended by Rule11a2-2(T). Given the automated matching and execution at the conclusion of a FLEX AIM or SAM Auction, no TPH would enjoy any special control over the time of execution or special order handling advances for orders executed electronically following a FLEX AIM or SAM Auction, because such orders would be centrally processed for execution by computer, as compared to being handled by a member through bids and offers on the trading floor. Because the electronic trading platform components are designed to prevent any TPHs from gaining any time and place advantages, the Exchange believes each of the FLEX AIM and SAM Auctions satisfies the four components of the “Effect vs. Execute” rule as well as the general policy objectives of Section 11(a) of the Act.

In the context of automated trading systems, the Commission has found that the off-floor transmission requirement is met if a covered account order is transmitted from off the floor directly to the Exchange by electronic means. Because the Exchange's FLEX AIM and SAM Auctions each receive, and will continue to receive, orders from FLEX Traders electronically through remote terminals or computer-to-computer interfaces, the Exchange believes that orders submitted to a FLEX AIM or SAM Auction from off the Exchange's trading floor will satisfy the off-floor transmission requirement.

The second condition of Rule 11a2-2(T) requires that neither a member nor an associated person of such member participate in the execution of its order. The Exchange represents that, upon submission to a FLEX AIM or SAM Auction, an order or response will be executed automatically pursuant to the Rules set forth for the applicable Auction. In particular, execution of an order or response sent to a FLEX AIM or SAM Auction depends not on the FLEX Trader entering the order or response, but rather on what other orders and responses are present and the priority of those orders and responses. Thus, at no time following the submission of an order or response is a FLEX Trader or associated person of such FLEX Trader able to acquire control or influence over the result or timing of order or response execution. The Initiating FLEX Trader may not cancel or modify the Agency Order or applicable contra-side order once submitted into a FLEX AIM or SAM Auction, but FLEX Traders may modify or cancel their responses after being submitted into a FLEX AIM or SAM Auction. Once the Agency Order and Initiating Order or Solicited Order, or response, as applicable, have been transmitted, the FLEX Trader that submitted the order or response will not participate in its execution. No FLEX Trader, including the Initiating FLEX Trader, will see a response submitted into a FLEX AIM or SAM Auction, and therefore and will not be able to influence or guide the execution of the Agency Orders (or contra-side orders) or responses, as applicable. Finally, with respect to FLEX AIM, the last priority feature will not permit a FLEX Trader to have any control over an order. The election to apply last priority to an Initiating Order is available prior to the submission of the order and therefore could not be utilized to gain influence or guide the execution of the Agency Order and Initiating Order. The information provided with respect to the last priority feature by the Initiating FLEX Trader will not be broadcast and further, the information may not be modified by the Initiating FLEX Trader during the FLEX AIM Auction.

Rule 11a2-2(T)'s third condition requires that the order be executed by an exchange member who is unaffiliated with the member initiating the order. The Commission has stated that the requirement is satisfied when automated exchange facilities, such as FLEX AIM and SAM Auctions, are used, as long as the design of these systems ensures that members do not possess any special or unique trading advantages in handling their orders after transmitting them to the exchange. The Exchange represents that the FLEX AIM and SAM Auctions are designed so that no FLEX Trader has any special or unique trading advantage in the handling of its orders or responses after transmitting them to the mechanisms.

A TPH (not acting in a market-maker capacity) could submit an order for a covered account from off of the Exchange's trading floor to an unaffiliated floor broker for submission for execution the FLEX AIM or SAM Auction from the trading floor and satisfy the “Effect vs. Execute” exemption (assuming the other conditions are satisfied). However, a TPH, relying on this exemption, could not submit an order for a covered account to its “house” floor broker on the trading floor for execution. Because a TPH may not rely on the “G” exemption when submitting an order to a FLEX AIM or SAM Auction, it must ensure another exception applies in this situation.

Rule 11a2-2(T)'s fourth condition requires that, in the case of a transaction effected for an account with respect to which the initiating member or an associated person thereof exercises investment discretion, neither the initiating member nor any associated person thereof may retain any compensation in connection with effecting the transaction, unless the person authorized to transact business for the account has expressly provided otherwise by written contract referring to Section 11(a) of the Act and Rule 11a2-2(T) thereunder. The Exchange recognizes that FLEX Traders relying on Rule 11a2-2(T) for transactions effected through a FLEX AIM or SAM Auction must comply with this condition of the Rule, and the Exchange will enforce this requirement pursuant to its obligations under Section 6(b)(1) of the Act to enforce compliance with federal securities laws.

Therefore, Exchange believes that the instant proposal is consistent with Rule 11a2-2(T), and that therefore the exception should apply in this case. Therefore, the Exchange believes the proposed rule change is consistent with Section 11(a) of the Act and the Rules thereunder.

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

The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe the proposed rule change will impose any burden on intramarket competition. FLEX AIM and SAM Auctions will continue to be voluntary for FLEX Traders to use and will be available to all FLEX Traders. Additionally, the ability to respond to FLEX SAM Auctions will now be available to all FLEX Traders (except the Initiating TPH, which is consistent with the requirement that the contra-side order be a solicitation rather than a facilitation). These auction mechanisms will apply to all FLEX Traders in the same manner. The Exchange believes the FLEX AIM and SAM Auctions will continue to provide opportunities price improvement for Agency Orders in FLEX Options in a competitive auction process.

The Exchange does not believe the proposed rule change will impose any burden on intermarket competition. The Exchange believes keeping FLEX AIM and SAM Auctions aligned with corresponding non-FLEX auction mechanisms, with the only differences relating to the differences between FLEX and non-FLEX options, may further encourage submission of FLEX Orders into these price improvement mechanisms. By enhancing our FLEX trading platform, the Exchange believes it may be a more attractive alternative to the OTC market. The Exchange believes market participants benefit from being able to trade customized options 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 of FLEX Options.

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

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

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

Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-4(f)(6) thereunder.

A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act normally does not become operative for 30 days after the date of its filing. However, Rule 19b-4(f)(6)(iii) 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 requested that the Commission waive the 30-day operative delay so that the proposed rule change may become operative prior to the proposed Exchange's system migration on October 7, 2019, in order to permit the Exchange to provide FLEX AIM and SAM Auction functionality to market participants on an uninterrupted basis. In support of its waiver request, the Exchange states that the FLEX AIM and SAM Auctions for both simple and complex orders will function in a substantially similar manner following the technology migration as they do today. The Exchange further notes that the general framework of the Exchange's FLEX AIM and SAM Auction process will continue to be substantively the same as the framework for the non-FLEX AIM and SAM Auctions, except for differences that relate to the distinctions between FLEX and non-FLEX Options. Additionally, the Exchange states that the proposal relocates certain provisions from the current Rulebook to the shell Rulebook, such as provisions related to auction eligibility requirements, auction responses, and executions following the conclusion of an auction, and makes only non-substantive changes to such provisions, which the Exchange believes will have no impact on FLEX AIM and SAM Auctions. The Exchange further notes that it has provided market participants with notice of this change in advance of the system migration. For these reasons, the Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest. Accordingly, the Commission designates the proposed rule change to be operative upon filing.

At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission will institute proceedings to determine whether the proposed rule change should be approved or disapproved.

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 rule-comments@sec.gov. Please include File Number SR-CBOE-2019-093 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-CBOE-2019-093. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's internet website ( http://www.sec.gov/rules/sro.shtml ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for website viewing and printing in the Commission's Public Reference Room, 100 F Street NE, Washington, DC 20549 on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-CBOE-2019-093 and should be submitted on or before October 31, 2019.