[Federal Register Volume 80, Number 244 (Monday, December 21, 2015)]
[Notices]
[Pages 79387-79390]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-31922]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-76651; File No. SR-NASDAQ-2015-149]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To 
Amend NASDAQ Options Market--Fees and Rebates

December 15, 2015.
    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 December 2, 2015, The NASDAQ Stock Market LLC (``Nasdaq'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``SEC'' or ``Commission'') the proposed rule change as described in 
Items I, II, and III below, which Items have been prepared by the 
Exchange. The Commission is publishing this notice to solicit comments 
on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend Chapter XV, entitled ``Options 
Pricing,'' at Section 2, which governs pricing for NASDAQ members using 
the NASDAQ Options Market (``NOM''), NASDAQ's facility for executing 
and routing standardized equity and index options, to amend the 
Customer \3\ and Professional \4\ Penny Pilot \5\ Options

[[Page 79388]]

Rebates to Add Liquidity. The proposed amendments apply to volume from 
December 2, 2015 through December 31, 2015.
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    \3\ The term ``Customer'' applies to any transaction that is 
identified by a Participant for clearing in the Customer range at 
The Options Clearing Corporation (``OCC'') which is not for the 
account of broker or dealer or for the account of a ``Professional'' 
(as that term is defined in Chapter I, Section 1(a)(48)).
    \4\ The term ``Professional'' means any person or entity that 
(i) is not a broker or dealer in securities, and (ii) places more 
than 390 orders in listed options per day on average during a 
calendar month for its own beneficial account(s) pursuant to Chapter 
I, Section 1(a)(48). All Professional orders shall be appropriately 
marked by Participants.
    \5\ See Securities Exchange Act Release Nos. 57579 (March 28, 
2008), 73 FR 18587 (April 4, 2008) (SR-NASDAQ-2008-026) (notice of 
filing and immediate effectiveness establishing Penny Pilot); 60874 
(October 23, 2009), 74 FR 56682 (November 2, 2009) (SR-NASDAQ-2009-
091) (notice of filing and immediate effectiveness expanding and 
extending Penny Pilot); 60965 (November 9, 2009), 74 FR 59292 
(November 17, 2009) (SR-NASDAQ-2009-097) (notice of filing and 
immediate effectiveness adding seventy-five classes to Penny Pilot); 
61455 (February 1, 2010), 75 FR 6239 (February 8, 2010) (SR-NASDAQ-
2010-013) (notice of filing and immediate effectiveness adding 
seventy-five classes to Penny Pilot); 62029 (May 4, 2010), 75 FR 
25895 (May 10, 2010) (SR-NASDAQ-2010-053) (notice of filing and 
immediate effectiveness adding seventy-five classes to Penny Pilot); 
65969 (December 15, 2011), 76 FR 79268 (December 21, 2011) (SR-
NASDAQ-2011-169) (notice of filing and immediate effectiveness [sic] 
extension and replacement of Penny Pilot); 67325 (June 29, 2012), 77 
FR 40127 (July 6, 2012) (SR-NASDAQ-2012-075) (notice of filing and 
immediate effectiveness and extension and replacement of Penny Pilot 
through December 31, 2012); 68519 (December 21, 2012), 78 FR 136 
(January 2, 2013) (SR-NASDAQ-2012-143) (notice of filing and 
immediate effectiveness and extension and replacement of Penny Pilot 
through June 30, 2013); 69787 (June 18, 2013), 78 FR 37858 (June 24, 
2013) (SR-NASDAQ-2013-082) (notice of filing and immediate 
effectiveness and extension and replacement of Penny Pilot through 
December 31, 2013); 71105 (December 17, 2013), 78 FR 77530 (December 
23, 2013) (SR-NASDAQ-2013-154) (notice of filing and immediate 
effectiveness and extension and replacement of Penny Pilot through 
June 30, 2014); 79 FR 31151 [sic] (May 23, 2014), 79 FR 31151 (May 
30, 2014) (SR-NASDAQ-2014-056) (notice of filing and immediate 
effectiveness and extension and replacement of Penny Pilot through 
December 31, 2014); 73686 (December 2, 2014) [sic], 79 FR 71477 
(November 25, 2014) [sic] (SR-NASDAQ-2014-115) (notice of filing and 
immediate effectiveness and extension and replacement of Penny Pilot 
through June 30, 2015) and 75283 (June 24, 2015), 80 FR 37347 (June 
30, 2015) (SR-NASDAQ-2015-063) (notice of filing and immediate 
effectiveness and extension and replacement of Penny Pilot). See 
also NOM Rules, Chapter VI, Section 5.
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    The text of the proposed rule change is available on the Exchange's 
Web site at http://nasdaq.cchwallstreet.com, at the principal office of 
the Exchange, and at the Commission's Public Reference Room.

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

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

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

1. Purpose
    The Exchange proposes to amend Chapter XV, Section 2, entitled 
``NASDAQ Options Market--Fees and Rebates'' to amend the Customer and 
Professional Penny Pilot Options Rebates to Add Liquidity. The proposed 
rule change is detailed below.
Customer and Professional Penny Pilot Options Rebates To Add Liquidity
    Today, the Exchange offers tiered Penny Pilot Options Rebates to 
Add Liquidity to Customers and Professionals based on various criteria 
with rebates ranging from $0.20 to $0.48 per contract.\6\ Participants 
may qualify for Customer and Professional Penny Pilot Options Rebates 
to Add Liquidity by adding a certain amount of liquidity as specified 
by each tier.\7\
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    \6\ See also infra note 10.
    \7\ Tiers 6 and 7 are calculated based on Total Volume. Total 
Volume is defined as Customer, Professional, Firm, Broker-Dealer, 
Non-NOM Market Maker and NOM Market Maker volume in Penny Pilot 
Options and/or Non-Penny Pilot Options which either adds or removes 
liquidity on NOM. See note ``b'' in Section 2(1) of Chapter XV. The 
Exchange utilizes data from The Options Clearing Corporation 
(``OCC'') to determine the total industry customer equity and ETF 
options ADV figure. OCC classifies equity and ETF options volume 
under the equity options category. Also, both customer and 
professional orders that are transacted on options exchanges clear 
in the customer range at OCC and therefore both customer and 
professional volume would be included in the total industry figure 
to calculate rebate tiers.
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Tier 8 of the Customer and Professional Penny Pilot Options Rebates To 
Add Liquidity
    The Exchange proposes to amend Tier 8 of the Customer and 
Professional Penny Pilot Options Rebate to Add Liquidity to remove a 
requirement to qualify for this tier. Currently, Tier 8 provides, 
``Participant adds Customer, Professional, Firm, Non-NOM Market Maker 
and/or Broker-Dealer liquidity in Penny Pilot Options and/or Non-Penny 
Pilot Options above 0.75% or more of total industry customer equity and 
ETF option ADV contracts per day in a month or Participant adds (1) 
Customer and/or Professional liquidity in Penny Pilot Options and/or 
Non-Penny Pilot Options of 30,000 or more contracts per day in a month, 
(2) the Participant has certified for the Investor Support Program \8\ 
set forth in Rule 7014, and (3) the Participant qualifies for rebates 
under the Qualified Market Maker (``QMM'') Program set forth in Rule 
7014.'' The Exchange is proposing to eliminate the third requirement 
which requires the Participant to qualify for rebates under the QMM 
Program. A QMM is a NASDAQ member that makes a significant contribution 
to market quality by providing liquidity at the national best bid and 
offer (``NBBO'') in a large number of stocks for a significant portion 
of the day.\9\ The QMM Program is an equity program. With this 
proposal, the Exchange proposes to continue to pay a $0.48 per contract 
\10\ Tier 8 Customer and Professional Penny Pilot Options Rebate to Add 
Liquidity if the Participant adds Customer, Professional, Firm, Non-NOM 
Market Maker and/or Broker-Dealer liquidity in Penny Pilot Options and/
or Non-Penny Pilot Options above 0.75% or more of total industry 
customer equity and ETF option ADV contracts per day in a month \11\ or 
Participant adds (1) Customer and/or Professional liquidity in Penny 
Pilot Options and/or Non-Penny Pilot Options of 30,000 or more 
contracts per day in a month and (2) the Participant has certified for 
the Investor Support Program set forth in Rule 7014 from December 2, 
2015 through December 31, 2015.\12\
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    \8\ For a detailed description of the Investor Support Program 
or ISP, see Securities Exchange Act Release No. 63270 (November 8, 
2010), 75 FR 69489 (November 12, 2010) (NASDAQ-2010-141) (notice of 
filing and immediate effectiveness) (the ``ISP Filing''). See also 
Securities Exchange Act Release Nos. 63414 (December 2, 2010), 75 FR 
76505 (December 8, 2010) (NASDAQ-2010-153) (notice of filing and 
immediate effectiveness); and 63628 (January 3, 2011), 76 FR 1201 
(January 7, 2011) (NASDAQ-2010-154) (notice of filing and immediate 
effectiveness).
    \9\ In addition, the NASDAQ equity member must avoid imposing 
the burdens on NASDAQ and its market participants that may be 
associated with excessive rates of entry of orders away from the 
inside and/or order cancellation. The designation ``QMM'' reflects 
the QMM's commitment to provide meaningful and consistent support to 
market quality and price discovery by extensive quoting at the NBBO 
in a large number of securities. In return for its contributions, 
certain financial benefits are provided to a QMM with respect to a 
particular MPID (a ``QMM MPID''), as described under Rule 7014(e).
    \10\ The Exchange offers Participants an opportunity to increase 
the Tier 8 Customer and Professional Rebate to Add Liquidity Tiers 
in note c, which states, ``Participants that: (1) Add Customer, 
Professional, Firm, Non-NOM Market Maker and/or Broker-Dealer 
liquidity in Penny Pilot Options and/or Non- Penny Pilot Options of 
1.15% or more of total industry customer equity and ETF option ADV 
contracts per day in a month will receive an additional $0.02 per 
contract Penny Pilot Options Customer Rebate to Add Liquidity for 
each transaction which adds liquidity in Penny Pilot Options in that 
month; or (2) add Customer, Professional, Firm, Non-NOM Market Maker 
and/or Broker-Dealer liquidity in Penny Pilot Options and/or Non-
Penny Pilot Options of 1.40% or more of total industry customer 
equity and ETF option ADV contracts per day in a month will receive 
an additional $0.05 per contract Penny Pilot Options Customer Rebate 
to Add Liquidity for each transaction which adds liquidity in Penny 
Pilot Options in that month; or (3) (a) add Customer, Professional, 
Firm, Non-NOM Market Maker and/or Broker-Dealer liquidity in Penny 
Pilot Options and/or Non-Penny Pilot Options above 0.75% of total 
industry customer equity and ETF option ADV contracts per day in a 
month and (b) has added liquidity in all securities through one or 
more of its Nasdaq Market Center MPIDs that represent 1.10% or more 
of Consolidated Volume in a month will receive an additional $0.03 
per contract Penny Pilot Options Customer Rebate to Add Liquidity 
for each transaction which adds liquidity in Penny Pilot Options in 
a month. Consolidated Volume shall mean the total consolidated 
volume reported to all consolidated transaction reporting plans by 
all exchanges and trade reporting facilities during a month in 
equity securities, excluding executed orders with a size of less 
than one round lot. For purposes of calculating Consolidated Volume 
and the extent of an equity member's trading activity, expressed as 
a percentage of or ratio to Consolidated Volume, the date of the 
annual reconstitution of the Russell Investments Indexes shall be 
excluded from both total Consolidated Volume and the member's 
trading activity.''
    \11\ Participants have two ways to qualify for the Tier 8 
Customer and Professional Penny Pilot Options Rebate to Add 
Liquidity.
    \12\ Monthly volume from December 1, 2015 will not count toward 
the calculation of the Tier 8 rebate with respect to the December 2, 
2015 through December 31, 2015 time period. The month will be 
calculated in two time periods.

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[[Page 79389]]

    The Exchange believes that removing the requirement to qualify for 
the QMM Program to earn the Tier 8 Customer and Professional Penny 
Pilot Option Rebate to Add Liquidity will encourage Participants to add 
even more liquidity on NOM to specifically qualify for the Tier 8 
rebate.
2. Statutory Basis
    Nasdaq believes that the proposed rule change is consistent with 
the provisions of Section 6 of the Act,\13\ in general, and with 
Section 6(b)(4) and 6(b)(5) of the Act,\14\ in particular, in that it 
provides for the equitable allocation of reasonable dues, fees and 
other charges among members and issuers and other persons using any 
facility or system which NASDAQ operates or controls, and is not 
designed to permit unfair discrimination between customers, issuers, 
brokers, or dealers. Customer volume is important because it continues 
to attract liquidity to the Exchange, which benefits all market 
participants. Further, with respect to Professional liquidity, the 
Exchange initially established Professional pricing in order to ``. . . 
bring additional revenue to the Exchange.'' \15\ The Exchange noted in 
the Professional Filing that it believes ``. . . that the increased 
revenue from the proposal would assist the Exchange to recoup fixed 
costs.''\16\ Further, the Exchange noted in that filing that it 
believes that establishing separate pricing for a Professional, which 
ranges between that of a Customer and market maker, accomplishes this 
objective.\17\
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    \13\ 15 U.S.C. 78f.
    \14\ 15 U.S.C. 78f(b)(4) and (5).
    \15\ See Securities Exchange Act Release No. 64494 (May 13, 
2011), 76 FR 29014 (May 19, 2011) (SR-NASDAQ-2011-066) 
(``Professional Filing''). In this filing, the Exchange addressed 
the perceived favorable pricing of Professionals who were assessed 
fees and paid rebates like a Customer prior to the filing. The 
Exchange noted in that filing that a Professional, unlike a retail 
Customer, has access to sophisticated trading systems that contain 
functionality not available to retail Customers.
    \16\ See Professional Filing.
    \17\ See Professional Filing. The Exchange also [sic] in the 
Professional Filing that it believes the role of the retail Customer 
in the marketplace is distinct from that of the Professional and the 
Exchange's fee proposal at that time accounted for this distinction 
by pricing each market participant according to their roles and 
obligations.
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Customer and Professional Penny Pilot Options Rebates To Add Liquidity
Tier 8 of the Customer and Professional Penny Pilot Options Rebates To 
Add Liquidity
    The Exchange's proposal to amend Tier 8 of the Customer and 
Professional Penny Pilot Options Rebate to Add Liquidity to remove the 
requirement to qualify for the QMM Program to earn the Tier 8 rebate is 
reasonable, because removing the requirement to qualify for the QMM 
Program should encourage Participants to add even more liquidity on NOM 
to specifically qualify for the Tier 8 rebate. The Exchange currently 
requires Participants to add Customer, Professional, Firm, Non-NOM 
Market Maker and/or Broker-Dealer liquidity in Penny Pilot Options and/
or Non-Penny Pilot Options above 0.75% or more of total industry 
customer equity and ETF option ADV contracts per day in a month to 
qualify for the Tier 8 rebate. Also, a Participant could qualify for a 
Tier 8 rebate, today, by that [sic] adding (1) [sic] Customer and/or 
Professional liquidity in Penny Pilot Options and/or Non-Penny Pilot 
Options of 30,000 or more contracts per day in a month and certifies 
for the Investor Support Program set forth in Rule 7014 may also 
qualify for the rebate. The Exchange's proposal would eliminate the 
necessity to qualify for two equity programs, the Investor Support and 
QMM Program. The Exchange believes that heightened volume requirement 
already present in the requirements to qualify for Tier 8, as compared 
with other tier volume requirements, combined with the requirement to 
continue to certify for the Investor Support Program will continue to 
incentivize Participants to transact an even greater number of 
qualifying Customer and/or Professional volume, which liquidity will 
benefit other market participants by providing them the opportunity to 
interact with that liquidity. Moreover, the incentive has the potential 
to make the applicable higher rebate available to a wider range of 
market participants with the removal of the QMM Program as a means of 
qualification.
    The Exchange's proposal to permit Participants to qualify for the 
highest Customer and Professional Penny Pilot Options Rebate to Add 
Liquidity Tier of $0.48 per contract, by adding volume from December 2, 
2015 through December 31, 2015,\18\ which criteria continue to include 
the addition of options and equity volume, is reasonable because the 
Exchange is encouraging market participants to send order flow to both 
the options and equity markets to receive the rebate. Incentivizing 
Participants to add options liquidity through the payment of an 
additional rebate is not novel as, today, Tier 8 permits the additional 
[sic] of equity volume to qualify for this rebate. The concept of 
participating in the equities market as a means to qualify for an 
options rebate exists today. This participation benefits the Nasdaq 
Market Center as well as the NOM market by incentivizing order flow to 
these markets. This rebate recognizes the prevalence of trading in 
which members simultaneously trade different asset classes within the 
same strategy. Participants will continue to be required to add 
liquidity to both the options and equities requirement if they qualify 
for the Tier 8 rebate utilizing the second method.\19\ Because cash 
equities and options markets are linked, with liquidity and trading 
patterns on one market affecting those on the other, the Exchange 
believes that pricing incentives that encourage market participant 
activity in NOM also support price discovery and liquidity provision in 
the Nasdaq Market Center. Further, because the requirements to qualify 
for Tier 8 requires significant levels of liquidity provision, which 
benefits all market participants, and because activity in NOM also 
supports price discovery and liquidity provision in the Nasdaq Market 
Center due to the increasing propensity of market participants to be 
active in both markets and the influence of each market on the pricing 
of securities in the other, the remaining requirements to qualify for 
the Tier 8 rebate continue to be reasonable, notwithstanding the 
elimination of the QMM Program requirement. Finally, other options 
exchanges today pay rebates to participants that add order [sic] both 
options and equity order flow.\20\
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    \18\ Monthly volume from December 1, 2015 will not count toward 
the calculation of the Tier 8 rebate with respect to the December 2, 
2015 through December 31, 2105 time period. The month will be 
calculated in two time periods.
    \19\ There are two ways to qualify for the Tier 8 rebate, as 
amended by this proposal, either: (1) Participant adds Customer, 
Professional, Firm, Non-NOM Market Maker and/or Broker-Dealer 
liquidity in Penny Pilot Options and/or Non-Penny Pilot Options 
above 0.75% or more of total industry customer equity and ETF option 
ADV contracts per day in a month; or (2) Participant adds Customer 
and/or Professional liquidity in Penny Pilot Options and/or Non-
Penny Pilot Options of 30,000 or more contracts per day in a month 
and the Participant has certified for the Investor Support Program 
set forth in Rule 7014 from December 2, 2015 through December 31, 
2015.
    \20\ BATS Exchange Inc. (``BATS'') and NYSE Arca, Inc. ([sic] 
NYSE Arca'') offer Cross-Asset Step-Up Tiers on its equity market. 
See BATS BZX Exchange Fee Schedule. See also NYSE Arca Equities 
Schedule of Fees and Charges for Exchange Services and NYSE Arca 
Options Fees and Charges.
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    The Exchange's proposal to amend Tier 8 of the Customer and 
Professional Penny Pilot Options Rebate to Add Liquidity to remove the 
requirement to qualify for the QMM Program to earn the Tier 8 rebate is 
equitable and not unfairly discriminatory because all Participants may 
qualify for Tier 8.

[[Page 79390]]

Qualifying Participants will be uniformly paid a $0.48 per contract 
rebate, provided the requirements are met for the time period from 
December 2, 2015 through December 31, 2015.

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

    NASDAQ does not believe that the proposed rule change will impose 
any burden on competition not necessary or appropriate in furtherance 
of the purposes of the Act.
Customer and Professional Penny Pilot Options Rebates To Add Liquidity
Tier 8 of the Customer and Professional Penny Pilot Options Rebates To 
Add Liquidity
    The Exchange's proposal to amend Tier 8 of the Customer and 
Professional Penny Pilot Options Rebate to Add Liquidity to remove the 
requirement to qualify for the QMM Program to earn the Tier 8 rebate 
does not impose an undue burden on intra-market competition because all 
Participants are eligible to qualify for the Tier 8 Customer or 
Professional Rebate to Add Liquidity, provided they meet the 
qualifications. Further, the Tier 8 rebate will be uniformly paid to 
those Participants that are eligible for the rebate. Moreover, the 
changes have the potential to make the applicable incentives available 
to a wider range of market participants with the removal of the QMM 
Program.
    Furthermore, continuing to incentivize Participants to add not only 
options, but equities volume does not impose an undue burden on intra-
market competition because cash equities and options markets are 
linked, with liquidity and trading patterns on one market affecting 
those on the other, the Exchange believes that pricing incentives that 
encourage market participant activity in NOM also support price 
discovery and liquidity provision in the Nasdaq Market Center. Further, 
the pricing incentives require significant levels of liquidity 
provision, which benefits all market participants on NOM and the Nasdaq 
Market Center.

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

    The foregoing rule change has become effective pursuant to Section 
19(b)(3)(A)(ii) of the Act.\21\
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    \21\ 15 U.S.C. 78s(b)(3)(A)(ii).
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    At any time within 60 days of the filing of the proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is: (i) 
Necessary or appropriate in the public interest; (ii) for the 
protection of investors; or (iii) otherwise in furtherance of the 
purposes of the Act. If the Commission takes such action, the 
Commission shall institute proceedings to determine whether the 
proposed rule should be approved or disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-NASDAQ-2015-149 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-NASDAQ-2015-149. 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 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 Web site 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 offices of the Exchange. 
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 File Number SR-NASDAQ-2015-
149, and should be submitted on or before January 11, 2016.
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    \22\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\22\
Robert W. Errett,
Deputy Secretary.
[FR Doc. 2015-31922 Filed 12-18-15; 8:45 am]
BILLING CODE 8011-01-P