[Federal Register Volume 81, Number 130 (Thursday, July 7, 2016)]
[Notices]
[Pages 44349-44353]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-16027]



[[Page 44349]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-78200; File No. SR-NASDAQ-2016-091]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change 
Relating to Professionals Order Counting

June 30, 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 June 17, 2016, 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 and II, below, which Items have been prepared by the Exchange. 
The Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons.
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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 NASDAQ Options Market LLC 
(``NOM'') Rules at Chapter I, Section 1, entitled ``Definitions,'' to 
add specificity to the definition of a Professional with respect to the 
manner in which the volume threshold will be calculated by the 
Exchange.
    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 the definition of ``Professional'' 
at Chapter I, Section 1(49) to specify the manner in which the Exchange 
calculates orders to determine if an order should be treated as 
Professional.
Background
    The definition of the term Professional at Chapter I, Section 
1(48), currently states, ``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).'' In order to properly represent orders entered 
on the Exchange Participants are required to indicate whether Public 
Customer \3\ orders are ``Professional'' orders.'' \4\ To comply with 
this requirement, Participants are required to review their Public 
Customers' activity on at least a quarterly basis to determine whether 
orders that are not for the account of a broker-dealer should be 
represented as Public Customer orders or Professional orders.\5\
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    \3\ The term ``Public Customer'' means a person that is not a 
broker or dealer in securities. See Chapter I, Section 1(49).
    \4\ The Exchange utilizes a special order origin code for 
Professional orders.
    \5\ Orders for any Public Customer that had an average of more 
than 390 orders per day during any month of a calendar quarter must 
be represented as Professional orders for the next calendar quarter. 
Members are required to conduct a quarterly review and make any 
appropriate changes to the way in which they are representing orders 
within five days after the end of each calendar quarter. While 
members are only required to review their accounts on a quarterly 
basis, if during a quarter the Exchange identifies a Public Customer 
for which orders are being represented as Public Customer orders but 
that has averaged more than 390 orders per day during a month, the 
Exchange will notify the member and the member will be required to 
change the manner in which it is representing the Public Customer's 
orders within five days.
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    The Exchange accepts orders routed from other markets that are 
marked Professional. The designation of Professional or Professional 
order does not result in any different treatment of such orders for 
purposes of Exchange rules concerning away market protection. That is, 
all non-broker or dealer orders, including those that meet the 
definition of Professional orders, are treated equally for purposes of 
Exchange away market protection rules.\6\ The Exchange continues to 
believe that identifying Professional accounts based upon the average 
number of orders entered in qualified accounts is an appropriately 
objective approach to reasonably distinguish such persons and entities 
from retail investors or market participants.
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    \6\ See Exchange Rules at Chapter VI, Section 11, Chapter XII, 
Sections 2 and 3.
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Proposal
    The Exchange proposes to count each order entered by a Professional 
toward the number of orders, regardless of the options exchange to 
which the order was routed in determining Professional orders.\7\
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    \7\ All order types count toward the 390 orders on average per 
day.
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Cancel and Replace
    A cancel and replace order is a type of order that replaces a prior 
order. The Exchange believes that the second order (the replacement 
order) should be counted as a new order. With respect to ``single-
strike algorithms,'' which are a series of cancel and replace orders in 
an individual strike which track the NBBO, these orders shall be 
counted as new orders.\8\ The Exchange believes that because the Public 
Customer is specifically instructing the executing broker in the 
``single-strike algorithm'' scenario to cancel and replace these 
orders. This type of activity is akin to market making in a Public 
Customer account and should be counted, as a new order.
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    \8\ Cancel messages do not count as an order.
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Parent/Child Orders
    An order that converts into multiple subordinate orders to achieve 
an execution strategy \9\ shall be counted as one order per side and 
series, even if the order is routed away. An order that cancels and 
replaces a resulting subordinate order and results in multiple sides/
series shall be counted as a new order on each side and series. For 
purposes of counting Public Customer orders, the manner in which the 
Public Customer submitted the order and whether the order was on the 
same side and series will determine if the order will count as one 
order. If one Public Customer order on the same side and series is 
subsequently broken-up by a broker into multiple orders for purposes of 
execution or routed away, this order will count as one order. The 
Exchange believes that the proposed amendment will provide more 
certainty to market participants in determining the manner in which the 
Exchange will compute the

[[Page 44350]]

number of orders in listed options per day on average during a calendar 
month for its own beneficial account(s) to determine the Professional 
designation.
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    \9\ An order which is placed for the beneficial account(s) of a 
person or entity that is not a broker or dealer in securities that 
is broken into multiple parts by a broker or dealer or by an 
algorithm housed at a broker or dealer or by an algorithm licensed 
from a broker or dealer. Strategies include volatility orders, for 
example.
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    In order to make clear when orders will count as new orders, the 
Exchange offers the following scenarios as examples.
     The Exchange proposes to count multiple orders that were 
submitted by the member as separate orders as multiple orders.
     The Exchange proposes to count a single order submitted by 
a member, which was automatically executed in multiple parts by the 
trading system, as one order, because the member did not intervene to 
create multiple orders. Another example is where an order was entered 
in the trading system and only partially filled, the order would count 
as one order. The subsequent fills, which could be multiple executions, 
would not count as additional orders in determining the 390 limit. The 
manner in which the order is ultimately executed, as one order or 
multiple orders, should not itself determine whether the activity is 
that of a Professional; also the member did not intervene in that 
circumstance.
     The Exchange proposes to not count an order which 
reprices, for example because of a locked and crossed market, as a new 
order because the member did not intervene.
     The Exchange proposes to count orders, which result in 
multiple orders due to cancel and replacement orders, as new orders. 
This is because in this situation the member did intervene to create 
the subsequent orders.
     The Exchange proposes to count an order submitted by the 
Public Customer as a single order, on the same side and series, as a 
single order despite the fact that a broker broke-up the order into 
multiple orders for purposes of execution.
    The Exchange notes that other options exchanges have issued notices 
which describe the manner in which those Exchanges believe thresholds 
should be computed for determining if an order qualifies as a 
Professional order.\10\ The Exchange believes that there is industry 
confusion as to which orders count toward the 390 contract threshold. 
The Exchange's proposal is intended to provide clarity and to continue 
to promote consistency in the treatment of orders as Professional 
orders.
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    \10\ See NYSE Arca, Inc.'s and NYSE MKT LLC's Joint Regulatory 
Bulletin (RBO-15-03 and RBO-15-06, respectively) dated September 9, 
2015; CBOE's Regulatory Circulator (RG10-126) dated December 1, 
2010; and the International Securities Exchange LLC's Regulatory 
Information Circular (2009-179) dated June 23, 2009.
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    Below are some examples of the calculation of Professional orders.
Example #1:
    A Public Customer has an order to buy 100 calls at a volatility 
level of 35. The order then generates a child order resulting in a 1.00 
bid for 100 options which is sent to exchange A. After the underlying 
stock price ticks up 2 cents the child order is then adjusted to 
reflect a 35 level volatility which in this case (50 delta) results in 
a 1.01 bid sent to Exchange A replacing the current 1.00 bid.
    In determining the number of orders that attribute to the 390 order 
count, in this case, because the child order is being canceled and 
replaced in the ``same series'' this would only count as one (1) order 
for purposes of Professional designation calculation.
Example #2:
    A Public Customer has an order to buy 20k Vega at a 35 volatility 
level in symbol XYZ. The order then generates 50 child orders across 
different strikes. Throughout the day those 50 orders are adjusted as 
the stock moves resulting in the replacement of child orders to the 
tune of 5 times per order (50 x 5 cancels) resulting in 250 total 
orders generated to Exchange A.
    In determining the number of orders that attribute to the 390 order 
count, in this case, because the child orders generated are across 
multiple series it would be necessary to count all 250 orders.
    In addition to the above examples, the Exchange provides the below 
chart to demonstrate the manner in which it will count orders.

------------------------------------------------------------------------
        Single strike activity              Singular         Multiple
------------------------------------------------------------------------
Public Customer order posted to 1 SRO                x   ...............
 Order Book...........................
Public Customer order posted to                      x   ...............
 Multiple SRO Order Books
 simultaneously.......................
Cancel/Replace Activity...............  ...............               x
Cancel/Replace Activity tracking NBBO.  ...............               x
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Singular--counts as a single order towards the 390 count
Multiple--each order applies towards the 390 count

    The Exchange proposes to implement this rule on July 1, 2016 to 
provide market participants with advance notice for their quarterly 
calculations. The Exchange will issue an Options Trader Alert in 
advance to inform market participants of such date.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act \11\ in general, and furthers the objectives of Section 
6(b)(5) of the Act \12\ in particular, in that it is designed to 
promote just and equitable principles of trade, 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, by promoting the consistent application of its rules by 
further defining the manner in which the Exchange will compute the 
number of orders in listed options per day on average during a calendar 
month for its own beneficial account(s) for purposes of determining the 
Professional designation. Furthermore, the Exchange believes that 
specifying the manner in which the 390 threshold will be calculated 
within its Rules will provide members with certainty and provide them 
with insight as they conduct their own quarterly reviews for purposes 
of designating orders.
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    \11\ 15 U.S.C. 78f(b).
    \12\ 15 U.S.C. 78f(b)(5).
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    The Exchange believes that counting all orders toward the number of 
orders, regardless of the options exchange to which the order was 
routed, will promote the consistent application of its rules by making 
clear that all order types shall be counted as well as all orders for 
the purpose of determining whether the definition of Professional has 
been met.
Cancel and Replace
    With respect to determining the Professional designation, a cancel 
and replace order that replaces a prior order shall be counted as a 
second order. An order that is filled partially or in its entirety or 
is a replacement order that is automatically canceled or reduced by the 
number of contracts that were

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executed will not count as second order because it was not 
replaced.\13\ The Exchange believes that counting the replacement order 
as a second order is consistent with Exchange Rules because the 
replacement order is viewed as a new order with its own unique 
identifier.
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    \13\ See Exchange Rules at Chapter VI, Section 1(e)(1). Cancel-
replacement order shall mean a single message for the immediate 
cancellation of a previously received order and the replacement of 
that order with a new order with new terms and conditions. If the 
previously placed order is already filled partially or in its 
entirety, the replacement order is automatically canceled or reduced 
by the number of contracts that were executed. The replacement order 
will not retain the priority of the cancelled order except when the 
replacement order reduces the size of the order and all other terms 
and conditions are retained.
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    The Exchange believes that counting cancel and replace orders with 
``single-strike algorithms,'' which are a series of cancel and replace 
orders in an individual strike which track the NBBO, as new orders is 
consistent with the Act because the Public Customer is specifically 
instructing the executing broker in the ``single-strike algorithm'' 
scenario to cancel and replace these orders. Tracking the NBBO \14\ is 
akin to market making on the Exchange in a Public Customer account and 
should be counted as new orders. The Exchange believes that the Public 
Customers order designation should be reserved for retail Public 
Customers.
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    \14\ Tracking the NBBO shall mean any parent order that consumes 
any self-regulatory organization order book data feed, or the OPRA 
feed, to generate automated child orders, and move with, or follow 
the Bid or Offer of the series in question.
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Parent/Child Orders
    The Exchange's adoption of the Professional order was to treat 
orders in listed options per day on average during a calendar month in 
his or her own beneficial account differently from Public Customer 
orders for purposes of pricing.\15\ For this reason, the Exchange is 
adopting rules concerning the computation of orders which convert into 
multiple subordinate orders for the purpose of determining the 
Professional designation. The Exchange's proposal to count multiple 
subordinate orders that achieve an execution strategy as one order per 
side and series and count an order that cancels and replaces a 
resulting subordinate order and results in multiple sides/series as a 
new order is consistent with the Act, because the Exchange is 
distinguishing where the member is actively entering orders that result 
in multiple orders and canceling and replacing orders that result in 
multiple orders versus where the member had no control of the resulting 
executions. Allowing orders on the same side of the market to be 
counted as a single order is consistent with the original intent of the 
Professional order designation. The same side of market distinction 
protects retail Public Customers. This practice is typically the type 
of transaction Public Customers execute versus a Professional trader. 
Multiple related orders resulting from a large order filled in part, or 
an order which is cancelled and replaced several times are considered 
part of a related order. The Exchange does not desire to count large 
orders filled in part as multiple orders because the member did not 
intervene in the outcome of the execution. An order that results in 
several separate and unrelated orders would be counted as multiple 
orders because the member intervened in this circumstance.
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    \15\ See NOM Rules at Chapter VI, Section 10 and Chapter XV, 
Section 2.
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    The Exchange believes that the proposed amendment will provide more 
certainty to market participants in determining the computation of the 
number of orders in listed options per day on average during a calendar 
month for its own beneficial account(s) to determine the Professional 
designation. The Exchange notes that other options exchanges have 
issued notices describing the manner in which they believe that 
Professional order should be counted when determining if an order 
qualifies as a Professional order.\16\ The Exchange believes that there 
is confusion as to which orders count toward the 390 contract 
threshold. The Exchange proposes to provide clarity to its Rules with 
specific guidance as to the computation of Professional orders, which 
it believes will promote consistency in the treatment of orders as 
Professional orders. The Exchange believes that this proposed guidance 
will promote consistency and permit the proper calculation of options 
orders to prevent members with high volume from receiving benefits 
reserved for Public Customer orders. The Professional designation 
focuses specifically on the number of orders generated.
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    \16\ See NYSE Arca, Inc.'s and NYSE MKT LLC's Joint Regulatory 
Bulletin (RBO-15-03 and RBO-15-06, respectively) dated September 9, 
2015; The Chicago Board Options Exchange, Incorporated's Regulatory 
Circulator (RG10-126) dated December 1, 2010; and the International 
Securities Exchange LLC's Regulatory Information Circular (2009-179) 
dated June 23, 2009.
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    NOM's System executes order based on Price-Time priority, however, 
a marketplace advantage afforded to Public Customer orders on the 
Exchange is that members are generally not assessed transaction fees 
for the execution of Public Customer orders. The purpose of these 
marketplace advantages is to attract retail order flow to the Exchange 
by leveling the playing field for retail investors over market 
Professionals.\17\ The Exchange believes that permitting certain types 
of orders to be counted as a single order and other types of orders to 
be counted as multiple orders is consistent with the original intent of 
the Professional designation which was to continue to provide Public 
Customer accounts with marketplace advantages and distinguish those 
accounts non-Professional retail investors from the Professionals 
accounts some non-broker-dealer individuals and entities have access to 
information and technology that enables them to Professionally trade 
listed options in the same manner as a broker or dealer in 
securities.\18\
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    \17\ Market Professionals have access to sophisticated trading 
systems that contain functionality not available to Public 
Customers, 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.
    \18\ For example, some broker-dealers provided their 
Professional customers with multi-screened trading stations equipped 
with trading technology that allows the trader to monitor and place 
orders on all six options exchanges simultaneously. These trading 
stations also provide compliance filters, order managements tools, 
the ability to place orders in the underlying securities, and market 
data feeds.
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    Finally, the proposed guidance is being issued to stem confusion as 
to the manner in which options exchanges compute the Professional order 
volume. The Exchange's Rules may be similar to notices issued by NYSE 
Arca, Inc, NYSE MKT LLC (``NYSE MKT'') and International Securities 
Exchange LLC (``ISE'').

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 because the Exchange will 
uniformly apply the rules to calculate volume on all members in 
determining Professional orders. The designation of Professional orders 
would not result in any different treatment of such orders for purposes 
of the Exchange's Rules concerning order protection or routing to away 
exchanges. Also, SIFMA supports the guidance issued by NYSE Arca and 
NYSE MKT. The guidance is being issued to stem confusion as to the 
manner in which options exchanges compute the Professional order 
volume.
    The Exchange is adopting similar counting methods the Exchange 
believes is currently being utilized by NYSE

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MKT, NYSE ARCA and ISE related to designation of Professional orders.
Counting All Orders
    The Exchange believes that counting all orders entered by a 
Professional toward the number of orders, regardless of the options 
exchange to which the order was routed, does not create an undue burden 
on intra-market competition because this proposed rule change will be 
consistently applied to all members in determining Professional orders.
Cancel and Replace
    The Exchange believes that its application of cancel and replace 
orders does not create an undue burden on intra-market competition 
because this application is consistent with Exchange Rules, where the 
replacement order is viewed as a new order. This treatment is 
consistent with the manner in which this order type is applied today 
within the Order Book.
Parent/Child Orders
    The Exchange's treatment of subordinate orders does not create an 
undue burden on intra-market competition because allowing orders on the 
same side of the market to be counted as a single order is consistent 
with the original intent of the Professional order designation which is 
to count distinct orders and focus on the number of orders generated.
    The Exchange does not believe that the proposed rule change will 
impose an undue burden on inter-market competition because other 
exchanges have announced the intent to adopt similar guidance.\19\ The 
Exchange believes that disparate rules regarding Professional order 
designation, and a lack of uniform application of such rules, does not 
promote the best regulation and may, in fact, encourage regulatory 
arbitrage. The Exchange believes that it is therefore prudent and 
necessary to conform its rules to that of other options exchanges for 
purposes of calculating the threshold volume of orders to be designated 
as a Professional. This is particularly true where the Exchange's 
third-party routing broker-dealers are members of several exchanges 
that have rules requiring Professional order designations.
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    \19\ See supra note 16.
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C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants or Others

    No written comments were either solicited or received.

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

    Because the foregoing proposed rule change does not: (i) 
Significantly affect the protection of investors or the public 
interest; (ii) impose any significant burden on competition; and (iii) 
become operative for 30 days from the date on which it was filed, or 
such shorter time as the Commission may designate, it has become 
effective pursuant to Section 19(b)(3)(A)(iii) of the Act \20\ and 
subparagraph (f)(6) of Rule 19b-4 thereunder.\21\ A proposed rule 
change filed under Rule 19b-4(f)(6) normally does not become operative 
prior to 30 days after the date of filing.\22\ Rule 19b-4(f)(6)(iii), 
however, permits the Commission to designate a shorter time if such 
action is consistent with the protection of investors and the public 
interest.\23\
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    \20\ 15 U.S.C. 78s(b)(3)(a)(iii).
    \21\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6) 
requires a self-regulatory organization to give the Commission 
written notice of its intent to file the proposed rule change at 
least five business days prior to the date of filing of the proposed 
rule change, or such shorter time as designated by the Commission. 
The Exchange has satisfied this requirement.
    \22\ 17 CFR 240.19b-4(f)(6)(iii).
    \23\ Id.
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    The Exchange has requested that the Commission waive the 30-day 
operative delay. The Commission notes that it has considered a 
substantially similar proposed rule change filed by CBOE and PHLX which 
it approved after a notice and comment period.\24\ This proposed rule 
change does not raise any new or novel issues from those considered in 
the CBOE and PHLX proposals. Based on the foregoing, the Commission 
believes that it is consistent with the protection of investors and the 
public interest to waive the 30-day operative date so that the proposal 
may take effect upon filing.\25\
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    \24\ See Securities Exchange Act Release Nos. 77450 (March 25, 
2016) (Order Approving SR-CBOE-2016-005); 77449 (March 25, 2016), 81 
FR 18665, (March 31, 2016) (Order Approving SR-Phlx-2016-10).
    \25\ For purposes only of waiving the 30-day operative delay, 
the Commission has considered the proposed rule's impact on 
efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
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    At any time within 60 days of the filing of such proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is necessary or 
appropriate in the public interest, for the protection of investors, or 
otherwise in furtherance of the purposes of the Act. If the Commission 
takes such action, the Commission shall institute proceedings under 
Section 19(b)(2)(B) of the Act \26\ to determine whether the proposed 
rule change should be approved or disapproved.
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    \26\ 15 U.S.C. 78s(b)(2)(B).
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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 No. SR-NASDAQ-2016-091 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 No. SR-NASDAQ-2016-091. 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 such filing will also 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

[[Page 44353]]

information that you wish to make available publicly. All submissions 
should refer to File No. SR-NASDAQ-2016-091 and should be submitted on 
or before July 28, 2016.
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    \27\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\27\
Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016-16027 Filed 7-6-16; 8:45 am]
 BILLING CODE 8011-01-P