[Federal Register Volume 81, Number 114 (Tuesday, June 14, 2016)]
[Notices]
[Pages 38755-38758]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-13963]



[[Page 38755]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-78014; File No. SR-NASDAQ-2016-035]


Self-Regulatory Organizations; The Nasdaq Stock Market LLC; 
Notice of Filing of Amendment No. 1, and Order Granting Accelerated 
Approval of a Proposed Rule Change, as Modified by Amendment No. 1, To 
Establish Secondary Contingency Procedures for the Exchange's Closing 
Cross

June 8, 2016.

I. Introduction

    On March 2, 2016, The Nasdaq Stock Market LLC (``Nasdaq'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission''), pursuant to section 19(b)(1) of the Securities 
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a 
proposed rule change to establish Secondary Contingency Procedures for 
its Closing Cross. The proposed rule change was published for comment 
in the Federal Register on March 11, 2016.\3\ The Commission received 
one comment letter on the proposed rule change.\4\ On April 21, 2016, 
the Commission extended the time period within which to approve the 
proposed rule change, disapprove the proposed rule change, or institute 
proceedings to determine whether to disapprove the proposed rule 
change.\5\ On June 6, 2016, the Exchange filed Amendment No. 1 to the 
proposed rule change.\6\ The Commission is publishing this notice to 
solicit comments on Amendment No. 1 from interested persons, and is 
approving the proposed rule change, as modified by Amendment No. 1, on 
an accelerated basis.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 77309 (March 7, 
2016), 81 FR 13007.
    \4\ See Letter from Theodore R. Lazo, Managing Director and 
Associate General Counsel, Securities Industry and Financial Markets 
Association, to Brent J. Fields, Secretary, Commission, dated April 
5, 2016 (``SIFMA Letter''). The Commission notes that this comment 
letter was also submitted in response to a similar filing by New 
York Stock Exchange LLC (``NYSE''). See Securities Exchange Act 
Release No. 77305 (March 7, 2016), 81 FR 12977 (March 11, 2016) (SR-
NYSE-2016-18).
    \5\ See Securities Exchange Act Release No. 77678, 81 FR 24909 
(April 27, 2016).
    \6\ In Amendment No. 1, which replaced the original filing in 
its entirety, the Exchange: (1) Amended Rule 4754(b)(7) to specify 
the situations in which the Exchange would employ the proposed 
Secondary Contingency Procedures; (2) amended Rule 4754(b)(7)(A) to 
specify that the Exchange will publicly announce its determination 
to employ its Primary or Secondary Contingency Procedures and that 
such announcement will be made at or before 3:00 p.m. if the 
Exchange determines to designate an alternate exchange under 
proposed Rule 4754(b)(8)(A); (3) amended proposed Rule 
4754(b)(8)(A)(ii) and (B)(i) to state that the VWAP (as defined 
below) calculation would take into account any trade breaks or 
corrections up to the time the VWAP is processed; (4) amended 
proposed Rule 4754(b)(8)(A) and (B) to provide that the Exchange 
would not publish an Official Closing Price if the Official Closing 
Price cannot be determined under proposed Rule 4754(b)(8)(A)(i)-(iv) 
or (B)(i)-(iii); (5) added proposed Rule 4754(b)(8)(C) to provide 
that under the Secondary Contingency Procedures, the Exchange will 
cancel all open interest designated for the Nasdaq close; (6) 
specified an implementation date for the proposal; (7) responded to 
the SIFMA Letter; and (8) made non-substantive clarifying and 
corrective changes to its proposed rule text. Amendment No. 1 is 
available at: http://nasdaq.cchwallstreet.com/NASDAQ/pdf/nasdaq-filings/2016/SR-NASDAQ-2016-035_Amendment_1.pdf.
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II. Description of the Proposed Rule Change

    The Exchange states that it currently has three systems that are 
designed to ensure the orderly execution and dissemination of the 
Nasdaq Official Closing Price: (1) The Nasdaq Closing Cross; (2) the 
Auxiliary Procedures; and (3) the Primary Contingency Procedures.\7\ 
The Exchange now proposes to add Rule 4754(b)(8) to establish Secondary 
Contingency Procedures, and to amend Rule 4754(b)(7) to provide 
additional details regarding the operation of the Primary and Secondary 
Contingency Procedures.\8\
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    \7\ See Nasdaq Rule 4754. See also Amendment No. 1 at 4.
    \8\ The Commission notes that NYSE and NYSE MKT LLC (``NYSE 
MKT'') have also filed similar proposed rule changes with the 
Commission. See Securities Exchange Act Release Nos. 77305 (March 7, 
2016), 81 FR 12977 (March 11, 2016) (SR-NYSE-2016-18); 77306 (March 
7, 2016), 81 FR 12986 (March 11, 2016) (SR-NYSEMKT-2016-31).
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    Under the proposal, if a disruption occurs that prevents the 
execution of the Nasdaq Closing Cross, Nasdaq would use either the 
Primary Contingency Procedures or the Secondary Contingency Procedures 
to determine the Nasdaq Official Closing Price, which would be 
published by the SIP.\9\ The determination to use the Primary or 
Secondary Contingency Procedures would be made by the President of 
Nasdaq or any Senior Executive designated by the President.\10\ Nasdaq 
would publicly announce at the earliest possible time the initiation of 
the Primary or Secondary Contingency Procedures via system status 
alerts, Equity Trader Alerts, and email notification directories.\11\ 
If Nasdaq publicly announces that it will employ its Secondary 
Contingency Procedures, it would cancel all open interest designated 
for the Nasdaq close residing in Nasdaq's systems in order to give 
members the opportunity to route their orders to alternative execution 
venues.\12\
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    \9\ See proposed Rule 4754(b)(7) and (8). See also Amendment No. 
1 at 4-6.
    \10\ The Exchange proposes to specify that it will employ the 
Primary Contingency Procedures if at all possible, and will employ 
the Secondary Contingency Procedures only if it determines that both 
the standard closing procedures and the Primary Contingency 
Procedures are unavailable. See proposed Rule 4754(b)(7). See also 
Amendment No. 1 at 4-5, 30.
    \11\ The proposal would clarify the interaction between the 
Primary Contingency Procedures and the proposed Secondary 
Contingency Procedures, but it would not change the operation of the 
Primary Contingency Procedures.
    \12\ See proposed Rule 4754(b)(8)(C). See also Amendment No. 1 
at 9, 32.
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    Under the proposal, if Nasdaq publicly announces at or before 3:00 
p.m. that it will employ the Secondary Contingency Procedures for one 
or more securities, it would designate an alternate exchange for those 
securities,\13\ and the Nasdaq Official Closing Price for each security 
would be determined based on the following hierarchy:
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    \13\ The Exchange proposes to designate NYSE Arca as its 
official back-up exchange because, according to the Exchange, NYSE 
Arca and Nasdaq membership substantially overlaps and NYSE Arca 
already operates a closing cross that it can use to execute a 
closing cross in Nasdaq-listed securities. See Amendment No. 1 at 5-
6. The Exchange states that Nasdaq members that are also NYSE Arca 
members should be technically prepared to transfer liquidity to NYSE 
Arca in the event Nasdaq is unable to execute a closing cross. See 
id.
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     The Nasdaq Official Closing Price would be the official 
closing price established for the security under the rules of the 
designated alternate exchange.\14\
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    \14\ See proposed Rule 4754(b)(8)(A)(i).
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     If there is no official closing price in the security on 
the designated alternate exchange, the Nasdaq Official Closing Price 
would be the volume-weighted average price (``VWAP'') of the 
consolidated last-sale-eligible prices of the last five minutes of 
trading during regular trading hours as calculated by the SIP, 
including any closing transactions on an exchange and any trade breaks 
or corrections up to the time the VWAP is processed.\15\
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    \15\ See proposed Rule 4754(b)(8)(A)(ii).
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     If there were no consolidated last-sale-eligible trades in 
the last five minutes of trading during regular trading hours, the 
Nasdaq Official Closing Price would be the last consolidated last-sale-
eligible trade for the security during regular trading hours on that 
trading day.\16\
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    \16\ See proposed Rule 4754(b)(8)(A)(iii).
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     If there were no consolidated last-sale-eligible trades 
during regular trading hours on that trading day, the Nasdaq Official 
Closing Price would be the prior day's Nasdaq Official Closing 
Price.\17\
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    \17\ See proposed Rule 4754(b)(8)(A)(iv).
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    If a security's Nasdaq Official Closing Price cannot be determined 
based on

[[Page 38756]]

this hierarchy, Nasdaq would not publish an Official Closing Price for 
the security.\18\
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    \18\ See proposed Rule 4754(b)(8)(A)(v). See also Amendment No. 
1 at 8, 32.
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    Under the proposal, if Nasdaq publicly announces after 3:00 p.m. 
that it will employ the Secondary Contingency Procedures for one or 
more securities, it would not designate an alternate exchange. Rather, 
the Nasdaq Official Closing Price of each security would be determined 
based on the following hierarchy:
     The Nasdaq Official Closing Price would be the VWAP of the 
consolidated last-sale-eligible prices of the last five minutes of 
trading during regular trading hours as calculated by the SIP, 
including any closing transactions on an exchange and any trade breaks 
or corrections up to the time the VWAP is processed.\19\
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    \19\ See proposed Rule 4754(b)(8)(B)(i).
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     If there were no consolidated last-sale-eligible trades in 
the last five minutes of trading during regular trading hours, the 
Nasdaq Official Closing Price would be the last consolidated last-sale-
eligible trade for the security during regular trading hours on that 
trading day.\20\
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    \20\ See proposed Rule 4754(b)(8)(B)(ii).
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     If there were no consolidated last-sale-eligible trades 
during regular trading hours on that trading day, the Nasdaq Official 
Closing Price would be the prior day's Nasdaq Official Closing 
Price.\21\
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    \21\ See proposed Rule 4754(b)(8)(B)(iii)

If a security's Nasdaq Official Closing Price cannot be determined 
based on this hierarchy, Nasdaq would not publish an Official Closing 
Price for the security.\22\
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    \22\ See proposed Rule 4754(b)(8)(B)(iv). See also Amendment No. 
1 at 9, 32.
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    As with the Primary Contingency Procedures, if Nasdaq employs the 
Secondary Contingency Procedures, after hours trading would begin 
either as scheduled at 4:00 p.m. or upon resolution of the disruption 
that triggered Nasdaq to operate the Secondary Contingency 
Procedures.\23\
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    \23\ See proposed Rule 4754(b)(8)(D).
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    The Exchange states that the Operating Committees for the Nasdaq 
UTP Plan and the Consolidated Quote/Consolidate Tape Plan have already 
voted to modify the SIPs to support this proposal.\24\ According to the 
Exchange, the Nasdaq SIP has announced plans to implement a new 
platform in the fourth quarter of 2016, and Nasdaq intends to implement 
the proposed rule change within 120 days of the date of implementation 
of that new SIP platform.\25\ The Exchange states that a delay of 120 
days will permit market participants to test and launch the new SIP 
platform, and then to separately test and launch the new backup closing 
functionality.\26\
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    \24\ See Amendment No. 1 at 6.
    \25\ See id. at 9.
    \26\ See id.
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III. Summary of Comments

    As noted above, the Commission received one comment letter on the 
proposed rule change.\27\ The commenter generally supports the proposal 
but suggests certain modifications to the proposal.\28\
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    \27\ See SIFMA Letter, supra note 4.
    \28\ See id. at 1. The commenter also encourages NYSE and Nasdaq 
to continue to work with industry participants on this issue and to 
refine the backup mechanism as a next step. See id. at 3.
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    First, the commenter suggests that the Exchange's rules should 
specify that any designation of an alternate exchange would be publicly 
announced at or before 3:00 p.m. and that the announcement would be 
made through the SIP feed in addition to any other forms of 
communication.\29\ According to the commenter, if a determination is 
made at 3:00 p.m., then the time between 3:00 p.m. and when member 
firms actually receive notice of the designation would cut into the 
time needed to re-direct closing interest to the designated alternate 
exchange.\30\ The Exchange agreed with the commenter's suggestion that 
it should publicly announce any determination to invoke the Secondary 
Contingency Procedures.\31\ As a result, the Exchange amended its 
proposal to specify that any determination to invoke the Secondary 
Contingency Procedures will be publicly announced, and that an 
announcement to designate an alternate exchange would be made at or 
before 3:00 p.m.\32\
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    \29\ See id. at 2-3.
    \30\ See id.
    \31\ The public announcement of an alternate exchange 
designation, however, would not be disseminated through the SIP 
feed.
    \32\ See proposed Rule 4754(b)(8)(A) and (B). See also Amendment 
No. 1 at 5, 13, 31-32.
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    Second, the commenter suggests that if the Exchange determines not 
to carry out its own closing transaction, it should expressly assume 
responsibility for the cancellation of all closing interest that the 
Exchange has already received.\33\ According to the commenter, this 
would allow market participants to treat their closing interest as 
canceled even if they have not received an official notification of the 
cancellation.\34\ The commenter also suggests that the Exchange's rule 
should state that the official closing transaction will be canceled 
once the Exchange determines that it is unable to conduct its own 
closing transaction, so as to avoid uncertainty regarding whether the 
exchange might change course if it determines before 4:00 p.m. that it 
can, in fact, conduct its own closing transaction.\35\ The Exchange 
agreed with the commenter's suggestion that it provide members with 
certainty that their open interest will not be executed if the Exchange 
invokes the Secondary Contingency Procedures. As a result, the Exchange 
amended its proposal to expressly state that it would cancel all open 
interest designated for the Nasdaq close if it determines to employ the 
Secondary Contingency Procedures.\36\ The Commission also notes that, 
under the proposal, once Nasdaq publicly announces that it will employ 
the Secondary Contingency Procedures, it will not revert to its 
ordinary closing procedures, and the Nasdaq Official Closing Price 
would be determined according to the hierarchies discussed above.\37\
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    \33\ See SIFMA Letter, supra note 4, at 3. The commenter also 
asserts that, if the Exchange executes the closing interest despite 
canceling the closing transaction, the Exchange should be 
responsible under its own rules for any resulting losses to the 
member firms. See id. The Exchange has not revised its proposal to 
assume this liability.
    \34\ See SIFMA Letter, supra note 4, at 3.
    \35\ See id.
    \36\ See proposed Rule 4754(b)(8)(C). See also Amendment No. 1 
at 9, 14, 32.
    \37\ See supra notes 14-22 and accompanying text.
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    Third, the commenter suggests that, when using the VWAP 
methodology, the Exchange not include any other exchange's closing 
transaction in the calculation.\38\ According to the commenter, a five-
minute VWAP methodology should result in a price that is largely 
tradable and achievable.\39\ However, according to the commenter, if a 
VWAP used as the official closing price included auction prints from 
other exchanges' closing transactions, the ability to trade and achieve 
the official closing price process would be reduced.\40\ The Exchange 
disagreed with this comment. As the Exchange noted, the VWAP 
calculation should include the maximum liquidity available.\41\ 
Accordingly, the Exchange has not amended the proposal to exclude 
closing transactions from the VWAP calculation.
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    \38\ See SIFMA Letter, supra note 4, at 3.
    \39\ See id.
    \40\ See id.
    \41\ See Amendment No. 1 at 14.
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IV. Discussion and Commission Findings

    After careful review of the proposal, as modified by Amendment No. 
1, and the comment letter, the Commission

[[Page 38757]]

finds that the proposed rule change is consistent with the requirements 
of the Act and the rules and regulations thereunder applicable to a 
national securities exchange.\42\ In particular, the Commission finds 
that the proposed rule change is consistent with section 6(b)(5) of the 
Act,\43\ which requires, among other things, that the rules of a 
national securities 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 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.
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    \42\ In approving this proposed rule change, the Commission has 
considered the proposed rule's impact on efficiency, competition, 
and capital formation. See 15 U.S.C. 78c(f).
    \43\ 15 U.S.C. 78f(b)(5).
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    The Commission believes that the proposed rule change would provide 
transparency regarding how the Exchange would determine the Nasdaq 
Official Closing Price in Exchange-listed securities when the Exchange 
is unable to conduct a closing transaction due to a systems or 
technical issue. The Commission notes that the primary listing market's 
closing price for a security is relied upon by market participants for 
a variety of reasons, including, but not limited to, calculation of 
index values, calculation of the net asset value of mutual funds and 
exchange-traded products, and the price of derivatives that are based 
on the security. As the Exchange notes, the proposed Secondary 
Contingency Procedures would provide a pre-determined, consistent 
solution that would result in the SIP disseminating an official closing 
price for listed securities on behalf of the Exchange within a 
reasonable time frame relative to the normal closing time; would 
minimize the need for industry participants to modify their processing 
of data from the SIP; and would provide advance notification of the 
initiation of a closing contingency plan to provide sufficient time for 
industry participants to route any closing interest to an alternate 
venue to participate in that venue's closing auction.\44\ The 
Commission believes that the Exchange's proposal is reasonably designed 
to achieve these important goals and to prevent any issues that may 
result if the Exchange were unable to provide a closing price for its 
listed securities due to a systems or technical issue. For these 
reasons, the Commission finds that the proposed rule change is 
consistent with the Act.
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    \44\ See Amendment No. 1 at 10-11.
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V. Solicitation of Comments on Amendment No. 1

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether Amendment No. 1 
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-2016-035 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NASDAQ-2016-035. 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-NASDAQ-2016-035 and should 
be submitted on or before July 5, 2016.

VI. Accelerated Approval of Proposed Rule Change, as Modified by 
Amendment No. 1

    The Commission finds good cause to approve the proposed rule 
change, as modified by Amendment No. 1, prior to the 30th day after the 
date of publication of the notice of Amendment No. 1 in the Federal 
Register. As noted above, in Amendment No. 1, the Exchange specified 
the situations in which it would employ the proposed Secondary 
Contingency Procedures.\45\ The Commission believes that this change 
would provide market participants with transparency regarding the 
Exchange's process for determining whether to employ its Primary or 
Secondary Contingency Procedures. In Amendment No. 1, the Exchange also 
specified that it will publicly announce its determination to use its 
Primary or Secondary Contingency Procedures; that such announcement 
will be made at or before 3:00 p.m. if the Exchange determines to 
designate an alternate exchange under proposed Rule 4754(b)(8)(A); and 
that under the Secondary Contingency Procedures, the Exchange would 
cancel all open interest designated for the Nasdaq close.\46\ As noted 
above, the Exchange made these amendments in response to comments 
received on the proposal. In addition, in Amendment No.1, the Exchange 
stated that the VWAP calculation would take into account any trade 
breaks or corrections up to the time the VWAP is processed, and that it 
would not publish an Official Closing Price if the Official Closing 
Price cannot be determined under the proposed process.\47\ The 
Commission notes that these changes would harmonize Nasdaq's proposal 
with NYSE's and NYSE MKT's proposals. Finally, in Amendment No. 1, the 
Exchange specified an implementation date for the proposal, responded 
to the SIFMA Letter, and made non-substantive clarifying and corrective 
changes to its proposed rule text.\48\
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    \45\ See proposed Rule 4754(b)(7). See also Amendment No. 1 at 
4-5, 30.
    \46\ See proposed Rule 4754(b)(8). See also Amendment No. 1 at 
5, 9, 13-14, 31-32.
    \47\ See proposed Rule 4754(b)(8)(A)(ii) and (v); proposed Rule 
4754(b)(8)(B)(i) and (iv). See also Amendment No. 1 at 7-8, 31-32.
    \48\ See Amendment No. 1 at 9, 13-14, 30-33.
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    Because Amendment No. 1 provided additional transparency to the 
operation of the Secondary Contingency Procedures, harmonized Nasdaq's 
proposal to NYSE's and NYSE MKT's proposals, and responded to the 
comments received on the original proposal, the Commission finds good

[[Page 38758]]

cause for approving the proposed rule change, as modified by Amendment 
No. 1, on an accelerated basis, pursuant to section 19(b)(2) of the 
Act.\49\
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    \49\ 15 U.S.C. 78s(b)(2).
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VII. Conclusion

    It is therefore ordered, pursuant to section 19(b)(2) of the 
Act,\50\ that the proposed rule change (SR-NASDAQ-2016-035), as 
modified by Amendment No. 1, be, and it hereby is, approved on an 
accelerated basis.
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    \50\ 15 U.S.C. 78s(b)(2).
    \51\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\51\
Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016-13963 Filed 6-13-16; 8:45 am]
 BILLING CODE 8011-01-P