[Federal Register Volume 81, Number 82 (Thursday, April 28, 2016)]
[Notices]
[Pages 25457-25460]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-09898]



[[Page 25457]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-77690; File No. SR-Phlx-2016-52]


Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change to Qualified 
Contingent Cross Pricing

April 22, 2016.
    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 April 15, 2016, NASDAQ PHLX LLC (``Phlx'' 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 the Exchange's Pricing Schedule at 
Section II, entitled ``Multiply Listed Options Fees.'' Specifically, 
the Exchange is proposing to amend the Qualified Contingent Cross 
(``QCC'') pricing.
    While changes to the Pricing Schedule pursuant to this proposal are 
effective upon filing, the Exchange has designated these changes to be 
operative on May 2, 2016.
    The text of the proposed rule change is available on the Exchange's 
Web site at http://nasdaqomxphlx.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 purpose of the proposed rule change is to amend the Exchange's 
Pricing Schedule at Section II, entitled ``Multiply Listed Options 
Fees.'' Specifically, the Exchange is proposing to amend QCC pricing.
    Today, the Exchange assesses a QCC Transaction Fee of $0.20 per 
contract to a Specialist,\3\ Market Maker,\4\ Firm \5\ and Broker-
Dealer.\6\ Customers \7\ and Professionals \8\ are not assessed a QCC 
Transaction Fee. The Exchange also pays rebates on QCC Orders as 
follows:
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    \3\ A ``Specialist'' is an Exchange member who is registered as 
an options specialist pursuant to Rule 1020(a).
    \4\ The term ``Market Maker'' includes Registered Options 
Traders (``ROT''). See Exchange Rule 1014(b)(i) and (ii). A ROT 
includes a Streaming Quote Trader or ``SQT,'' a Remote Streaming 
Quote Trader or ``RSQT'' and a Non-SQT, which by definition is 
neither a SQT nor a RSQT. A ROT is defined in Exchange Rule 1014(b) 
as a regular member or a foreign currency options participant of the 
Exchange located on the trading floor who has received permission 
from the Exchange to trade in options for his own account. An SQT is 
an ROT who has received permission from the Exchange to generate and 
submit option quotations electronically in options to which such SQT 
is assigned. See Rule 1014(b)(ii)(A). An RSQT is an ROT that is a 
member affiliated with and Remote Streaming Quote 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. See Rule 
1014(b)(ii)(B).
    \5\ The term ``Firm'' applies to any transaction that is 
identified by a member or member organization for clearing in the 
Firm range at The Options Clearing Corporation.
    \6\ The term ``Broker-Dealer'' applies to any transaction which 
is not subject to any of the other transaction fees applicable 
within a particular category.
    \7\ The term ``Customer'' applies to any transaction that is 
identified by a member or member organization for clearing in the 
Customer range at The Options Clearing Corporation which is not for 
the account of a broker or dealer or for the account of a 
``Professional'' (as that term is defined in Rule 1000(b)(14)).
    \8\ 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). See Rule 
1000(b)(14).

                           QCC Rebate Schedule
------------------------------------------------------------------------
                                                            Rebate per
           Tier                      Threshold               contract
------------------------------------------------------------------------
Tier 1...................  0 to 99,999 contracts in a              $0.00
                            month.
Tier 2...................  100,000 to 299,999 contracts             0.05
                            in a month.
Tier 3...................  300,000 to 499,999 contracts             0.07
                            in a month.
Tier 4...................  500,000 to 699,999 contracts             0.08
                            in a month.
Tier 5...................  700,000 to 999,999 contracts             0.09
                            in a month.
Tier 6...................  Over 1,000,000 contracts in a            0.11
                            month.
------------------------------------------------------------------------

    Rebates are paid for all qualifying executed QCC Orders, as defined 
in Rule 1080(o) \9\ and Floor QCC Orders, as defined in Rule 
1064(e),\10\ except where the transaction is either: (i) Customer-to-
Customer; (ii) Customer-to-Professional or (iii) a dividend, merger, 
short stock interest or reversal or conversion strategy execution.\11\ 
The maximum QCC Rebate to be paid in a given month will not exceed 
$450,000.\12\ The Exchange pays QCC Rebates to market participants 
acting as agent on qualifying QCC Orders per the QCC Rebate Schedule. 
The Exchange proposes to no longer pay QCC Rebates on Professional-to-
Professional orders.
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    \9\ A QCC Order is comprised of an originating order to buy or 
sell at least 1,000 contracts, or 10,000 contracts in the case of 
Mini Options, that is identified as being part of a qualified 
contingent trade, as that term is defined in Rule 1080(o)(3), 
coupled with a contra-side order or orders totaling an equal number 
of contracts. See Rule 1080(o).
    \10\ A Floor QCC Order must: (i) Be for at least 1,000 
contracts; (ii) meet the six requirements of Rule 1080(o)(3) which 
are modeled on the QCT Exemption; (iii) be executed at a price at or 
between the National Best Bid and Offer (``NBBO''); and (iv) be 
rejected if a Customer order is resting on the Exchange book at the 
same price. In order to satisfy the 1,000-contract requirement, a 
Floor QCC Order must be for 1,000 contracts and could not be, for 
example, two 500-contract orders or two 500-contract legs.
    \11\ See Section II of the Pricing Schedule.
    \12\ Id.
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    QCC Orders are an order to buy or sell at least 1,000 contracts, or 
10,000 contracts in the case of Mini Options.\13\ These large-sized 
contingent orders are

[[Page 25458]]

complex in nature and have a stock-tied component, which requires the 
option leg to be executed at the NBBO or better. The parties to a 
contingent trade are focused on the spread or ratio between the 
transaction prices for each of the component instruments (i.e., the net 
price of the entire contingent trade), rather than on the absolute 
price of any single component. Today, Professional orders are treated 
similar to Customer orders with respect to QCC pricing because of the 
characteristics of the QCC Order which are described above. Today, 
Professional orders are not assessed a QCC Transaction Fee and no 
rebate is paid for Customer-to-Professional orders. The Exchange 
reasoned in a prior rule change \14\ that ``The differentiation between 
a Customer and Professional is not necessary with respect to QCC Orders 
because these orders are exempt from requirements regarding order 
exposure.\15\ Further, QCC Orders are not executed pursuant to a 
priority scheme.\16\ Also, as explained above, because of the size of 
the order, sophistication of the investor and complexity of the 
transaction, it is difficult to distinguish as between a Customer and 
Professional with respect to QCC Orders.'' \17\
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    \13\ See notes 9 and 10 above.
    \14\ See SR-Phlx-2016-51 (not yet published).
    \15\ See Rule 1080(c)(ii)(C).
    \16\ By way of comparison, Customers receive priority over other 
market participants with respect to the execution of their order 
within the Exchange's order book or on the Floor.
    \17\ A Professional QCC Order would count toward the 390 orders 
in listed options per day. See note 8 above.
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    The Exchange believes that treating Customer orders and 
Professional orders in a similar manner by also excluding Professional-
to-Professional orders as eligible to receive a QCC Rebate will further 
remove any differentiation as between Professionals and Customers with 
respect to QCC pricing when transacting QCC Orders.
2. Statutory Basis
    The proposal is consistent with Section 6(b) of the Act,\18\ in 
general, and furthers the objectives of Sections 6(b)(4) and 6(b)(5) of 
the Act,\19\ 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 the 
Exchange operates or controls, and is not designed to permit unfair 
discrimination between customers, issuers, brokers, or dealers.
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    \18\ 15 U.S.C. 78f(b).
    \19\ 15 U.S.C. 78f(b)(4) and (5).
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    The Commission and the courts have repeatedly expressed their 
preference for competition over regulatory intervention in determining 
prices, products, and services in the securities markets. In Regulation 
NMS, while adopting a series of steps to improve the current market 
model, the Commission highlighted the importance of market forces in 
determining prices and SRO revenues and, also, recognized that current 
regulation of the market system ``has been remarkably successful in 
promoting market competition in its broader forms that are most 
important to investors and listed companies.'' \20\
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    \20\ See Securities Exchange Act Release No. 51808 (June 9, 
2005), 70 FR 37497, 37499 (June 29, 2005) (``Regulation NMS Adopting 
Release'') [sic].
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    Likewise, in NetCoalition v. Securities and Exchange Commission 
\21\ the D.C. Circuit upheld the Commission's use of a market-based 
approach in evaluating the fairness of market data fees against a 
challenge claiming that Congress mandated a cost-based approach.\22\ As 
the court emphasized, the Commission ``intended in Regulation NMS that 
`market forces, rather than regulatory requirements' play a role in 
determining the market data . . . to be made available to investors and 
at what cost.'' \23\
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    \21\ See Securities Exchange Act Release No. 51808 (June 9, 
2005) [sic] at 534-535.
    \22\ See Securities Exchange Act Release No. 51808 (June 9, 
2005) [sic] at 534.
    \23\ See Securities Exchange Act Release No. 51808 (June 9, 
2005) [sic] at 537.
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    Further, ``[n]o one disputes that competition for order flow is 
`fierce.' . . . As the SEC explained, `[i]n the U.S. national market 
system, buyers and sellers of securities, and the broker-dealers that 
act as their order-routing agents, have a wide range of choices of 
where to route orders for execution'; [and] `no exchange can afford to 
take its market share percentages for granted' because `no exchange 
possesses a monopoly, regulatory or otherwise, in the execution of 
order flow from broker dealers' . . . .'' \24\ Although the court and 
the SEC were discussing the cash equities markets, the Exchange 
believes that these views apply with equal force to the options 
markets.
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    \24\ See Securities Exchange Act Release No. 51808 (June 9, 
2005) [sic] at 539 (quoting Securities Exchange Act Release No. 
59039 (December 2, 2008), 73 FR 74770, 74782-83 (December 9, 2008) 
(SR-NYSEArca-2006-21).
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    It is reasonable to no longer pay a QCC Rebate on Professional-to-
Professional orders because the distinction that necessitated the 
differentiation as between Customer and Professional orders is not 
meaningful with respect to QCC Orders. QCC Orders are orders to buy or 
sell at least 1,000 contracts, or 10,000 contracts in the case of Mini 
Options.\25\ These large-sized contingent orders are complex in nature 
and have a stock-tied component, which requires the option leg to be 
executed at the NBBO or better. The parties to a contingent trade are 
focused on the spread or ratio between the transaction prices for each 
of the component instruments (i.e., the net price of the entire 
contingent trade), rather than on the absolute price of any single 
component. Also, no Customer priority exists with respect to QCC Orders 
as with orders transacted within the order book or on the Floor. Today, 
Professional orders are not assessed a QCC Transaction Fee and are not 
eligible to receive a QCC Rebate for Customer-to-Professional orders. 
The Exchange believes that also excluding Professional-to-Professional 
orders from receiving a QCC Rebate will align Customer orders and 
Professional orders \26\ with respect to QCC Pricing.
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    \25\ See notes 9 and 10 above.
    \26\ Professional-to-Customer orders are currently excluded from 
the QCC Rebate.
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    With respect to QCC transactions, the Commission noted in an order 
approving a qualified contingent cross order type on International 
Securities Exchange, LLC (``ISE'') that ``The Commission believes that 
those customers participating in QCC Orders will likely be 
sophisticated investors who should understand that, without a 
requirement of exposure for QCC Orders, their order would not be given 
an opportunity for price improvement on the Exchange. These customers 
should be able to assess whether the net prices they are receiving for 
their QCC Order are competitive, and who will have the ability to 
choose among broker-dealers if they believe the net price one broker-
dealer provides is not competitive. Further, broker-dealers are subject 
to a duty of best execution for their customers' orders, and that duty 
does not change for QCC Orders.'' \27\ The intent behind the 
Professional designation does not apply in the context of transacting 
QCC Orders, because of the size of the order, sophistication of the 
investor and complexity of the transaction, and therefore the pricing 
differentiation is not necessary. For these reasons, the Exchange 
believes that also excepting Professional-to-Professional orders from 
receiving a QCC Rebate will further remove any differentiation as 
between Professionals and Customers with respect to QCC pricing when 
transacting QCC Orders.
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    \27\ See Securities and Exchange Act Release No. 63955 (February 
24, 2011), 76 FR 11533 (March 2, 2011) (SR-ISE-2010-73).

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[[Page 25459]]

    It is equitable and not unfairly discriminatory to no longer pay a 
QCC Rebate on Professional-to-Professional orders because, today, 
Professionals are not assessed a QCC Transaction Fee and Customer-to-
Professional orders are not eligible to receive a QCC Rebate. Excluding 
Professional-to-Professional orders from receiving a QCC Rebate aligns 
the treatment of Professional orders with Customer orders. As explained 
above, QCC Orders are distinctive as compared to transactions executed 
within the order book or on the Floor, which orders are subject to 
exposure and grant Customers priority over other market participants. 
The original purpose for the distinction between a Customer and a 
Professional was to prevent market professionals \28\ with access to 
sophisticated trading systems that contain functionality not available 
to retail Customers, from taking advantage of Customer priority, where 
Customer orders are given execution priority over non-Customer orders. 
The Exchange noted at the time that it adopted the Professional 
designation that basing the Professional designation upon the average 
number of orders entered for a beneficial account was an appropriate 
objective approach that would reasonably distinguish such persons and 
entities from retail investors.\29\
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    \28\ The Exchange noted in its filing that market professionals 
have access to functionality, including things such as continuously 
updated pricing models based upon real-time streaming data, access 
to multiple markets simultaneously and order and risk management 
tools. See Securities and Exchange Act Release No. 61426 (January 
26, 2010), 75 FR 5360 (February 2, 2010) (SR-Phlx-2010-05).
    \29\ See Securities and Exchange Act Release No. 61426 (January 
26, 2010), 75 FR 5360 (February 2, 2010) (SR-Phlx-2010-05).
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    With respect to distinguishing Professional orders from other Non-
Customer participant orders, the Exchange notes that these other market 
participants, Specialists, Market Makers, Firms and Broker-Dealers, are 
distinct from a Professional for purposes of assessing QCC Transaction 
fees for the below reasons. With respect to Firms, these market 
participants are eligible for the Monthly Firm Fee Cap of $75,000 per 
month.\30\ Firms are not subject to QCC Transaction Fees once the 
Monthly Firm Fee Cap is met in a given month. Specialists and Market 
Makers are eligible for the Monthly Market Maker Cap of $500,000 per 
month.\31\ Specialists and Market Makers are not subject to QCC 
Transaction Fees once the Monthly Market Maker Cap is met in a given 
month. Professionals are not subject to similar caps. With respect to 
Broker-Dealers, the Exchange notes that members may choose to register 
as a Broker-Dealer. Market participants acting as agent, compared to 
market participants trading for their own account, are eligible to 
receive QCC Rebates. The Exchange pays market participants acting as 
agent for QCC Orders the QCC Rebates per the QCC Rebate Schedule.\32\
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    \30\ Firms are subject to a maximum fee of $75,000 (``Monthly 
Firm Fee Cap''). Firm Floor Option Transaction Charges and QCC 
Transaction Fees, in the aggregate, for one billing month will not 
exceed the Monthly Firm Fee Cap per member organization when such 
members are trading in their own proprietary account. See Section II 
of the Pricing Schedule.
    \31\ Specialists and Market Makers are subject to a ``Monthly 
Market Maker Cap'' of $500,000 for: (i) Electronic Option 
Transaction Charges; and (ii) QCC Transaction Fees (as defined in 
Exchange Rule 1080(o) and Floor QCC Orders, as defined in 1064(e)). 
The trading activity of separate Specialist and Market Maker member 
organizations will be aggregated in calculating the Monthly Market 
Maker Cap if there is Common Ownership between the member 
organizations. See Section II of the Pricing Schedule.
    \32\ QCC Rebates are paid by volume. There are currently six 
tiers which pay a QCR Rebate between $0.00 and $0.11 per contract. 
See Section II of the Pricing Schedule. Of note, Firms may transact 
QCC Orders on an agency basis and be eligible for a QCC Rebate.
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    Further, the Exchange believes that distinguishing Professional 
orders from other Non-Customer orders is equitable and not unfairly 
discriminatory because QCC Orders are an exception to the general 
distinctions drawn as between Customer orders and Professional orders. 
Aside from the lack of priority for QCC Orders, the size of the order, 
sophistication of the investor and complexity of the transaction make 
it difficult to distinguish a Customer order from a Professional order. 
For purposes of the QCC Order, the Exchange believes that such 
distinction is not necessary.

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 not necessary or appropriate in 
furtherance of the purposes of the Act. In terms of inter-market 
competition, the Exchange notes that it operates in a highly 
competitive market in which market participants can readily favor 
competing venues if they deem fee levels at a particular venue to be 
excessive, or rebate opportunities available at other venues to be more 
favorable. In such an environment, the Exchange must continually adjust 
its fees to remain competitive with other exchanges and with 
alternative trading systems that have been exempted from compliance 
with the statutory standards applicable to exchanges. Because 
competitors are free to modify their own fees in response, and because 
market participants may readily adjust their order routing practices, 
that the degree to which fee changes in this market may impose any 
burden on competition is extremely limited.
    The initial purpose of the distinction between a Customer and a 
Professional was to prevent market professionals with access to 
sophisticated trading systems that contain functionality not available 
to retail customers, from taking advantage of Customer priority, where 
Customer orders are given execution priority over Non-Customer orders. 
Professional orders are identified based upon the average number of 
orders entered for a beneficial account.\33\
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    \33\ See note 8.
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    QCC Orders are by definition large-sized contingent orders which 
have a stock-tied component. The parties to a contingent trade are 
focused on the spread or ratio between the transaction prices for each 
of the component instruments (i.e., the net price of the entire 
contingent trade), rather than on the absolute price of any single 
component. Treating Customer orders and Professional orders in the same 
manner in terms of pricing with respect to QCC Orders does not provide 
any advantage to a Professional. The distinction does not create an 
opportunity to burden competition, for the reasons stated herein with 
respect to priority as well as the reasons below.
    With respect to distinguishing Professional orders from other Non-
Customer orders, the Exchange notes that Non-Customer orders are 
distinct from Professional orders for purposes of assessing QCC 
Transaction Fees. Firms are eligible for the Monthly Firm Fee Cap and 
not subject to QCC Transaction Fees once the Monthly Firm Fee Cap is 
met in a given month.\34\ Specialists and Market Makers are eligible 
for the Monthly Market Maker Cap and not subject to QCC Transaction 
Fees once the Monthly Market Maker Cap is met in a given month.\35\ 
Professionals are not subject to similar caps. With respect to Broker-
Dealers, the Exchange notes that members may choose to register as a 
Broker-Dealer. These categories of market participants transact QCC 
Orders on an agency basis and are eligible to receive QCC Rebates. 
Excluding Professional-to-Professional orders does not impose an undue 
burden on intra-market competition because excluding

[[Page 25460]]

these types of orders would further align the exclusion of 
Professional-to-Professional orders with the exclusion of Customer-to-
Customer and Customer-to-Professional orders from receiving a QCC 
Rebate.
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    \34\ Firms acting as agents would be eligible to receive a QCC 
Rebate.
    \35\ Specialists and Market Makers trade only for their own 
account.
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    The Exchange's proposal does not place on undue burden on inter-
market competition because the QCC order type is similar on other 
options exchanges \36\ and these exchanges may also file to eliminate 
the distinction between Customers and Professionals for the QCC order 
type.
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    \36\ See Chicago Board Options Exchange, Incorporated's Fees 
Schedule and Miami International Securities Exchange LLC's Pricing 
Schedule.
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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

    The foregoing rule change has become effective pursuant to Section 
19(b)(3)(A)(ii) of the Act.\37\
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    \37\ 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-Phlx-2016-52 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-2016-52. 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 office 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-Phlx-2016-52 and 
should be submitted on or before May 19, 2016.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\38\
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    \38\ 17 CFR 200.30-3(a)(12).
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Brent J. Fields,
Secretary.
[FR Doc. 2016-09898 Filed 4-27-16; 8:45 am]
 BILLING CODE 8011-01-P