[Federal Register Volume 81, Number 145 (Thursday, July 28, 2016)]
[Notices]
[Pages 49705-49708]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-17822]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-78392; File No. SR-NASDAQ-2016-098]


Self-Regulatory Organizations; The Nasdaq Stock Market LLC; 
Notice of Filing of Proposed Rule Change To Modify the Complimentary 
Services Offered to Certain New Listings

July 22, 2016.
    Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given 
that on July 11, 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, 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 modify the complimentary services offered 
to certain new listings.
    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
    Nasdaq offers complimentary services to companies listing on the 
Nasdaq Global and Global Select Markets in connection with an initial 
public offering, upon emerging from bankruptcy, or in connection with a 
spin-off or carve-out from another company (``Eligible New Listings'') 
and to companies that switch their listing from the New York Stock 
Exchange (``NYSE'') to the Nasdaq Global or Global Select Markets 
(``Eligible Switches'' and, together with Eligible New Listings, 
``Eligible Companies'').\3\ Nasdaq believes that this program offers 
valuable services to newly listing companies, designed to help ease the 
transition of becoming a public company or switching markets, makes 
listing on Nasdaq more attractive to these companies, and also provides 
Nasdaq Corporate Solutions \4\ the opportunity to demonstrate the value 
of its services and forge a relationship with the company. Eligible 
Companies receive a whistleblower hotline, investor relations Web site, 
press release distribution services, interactive webcasting, and market 
analytic tools, and may receive a market surveillance service.\5\ Based 
on Nasdaq's experience with the program and competitive changes,\6\ 
Nasdaq proposes to modify its offering as described below.
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    \3\ See Exchange Act Release No. 65963 (December 15, 2011), 76 
FR 79262 (December 21, 2011) (SR-NASDAQ-2011-122) (adopting IM-5900-
7) (the ``Original Filing''); Exchange Act Release No. 72669 (July 
24, 2014), 79 FR 44234 (July 30, 2014) (SR-NASDAQ-2014-058) 
(adopting changes to IM-5900-7). These adopting releases are 
collectively referred to as the ``Prior Filings.''
    \4\ In November 2015, the name of NASDAQ OMX Corporate Solutions 
was changed to Nasdaq Corporate Solutions to reflect the rebranding 
of the holding company from NASDAQ OMX to Nasdaq, Inc. This change 
is reflected in the amended rule language.
    \5\ Only Eligible Companies with a market capitalization of $750 
million or more receive the market surveillance service. This 
service is being renamed in this filing ``stock surveillance'' to 
better reflect its purpose.
    \6\ See Exchange Act Release No. 76127 (October 9, 2015), 80 FR 
62584 (October 16, 2015) (SR-NYSE-2015-36) (modifying the services 
offered by NYSE to certain companies). See also Exchange Act Release 
No. 77401 (March 17, 2016), 81 FR 15585 (March 23, 2016) (SR-
NYSEMKT-2016-12) (adopting a rule allowing NYSE MKT to offer certain 
newly listed companies services).
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    First, Nasdaq currently offers Eligible Companies that have a 
market capitalization of $750 million or more a stock surveillance 
tool, through which an analyst attempts to determine who is buying and 
selling the company's stock. While any public company can use this 
offering, which is designed to enhance the company's investor relations 
activity, it may not be an appropriate fit for some companies, such as 
those that are closely held or otherwise have low liquidity or low 
volume. Other companies may prioritize different investor relations 
tools over stock surveillance. These companies therefore are more 
likely to derive value from a different market advisory service offered 
by Nasdaq Corporate Solutions. Accordingly, in order to make the 
package more attractive to these companies, Nasdaq proposes to allow 
companies eligible for this service to choose from the existing stock 
surveillance offering or, instead, to choose other alternatives, which 
are also designed to help companies identify current owners, potential 
buyers or sellers of their stock, or otherwise enhance their investor 
relations efforts. Specifically, instead of the existing offering, 
companies would be allowed to choose: (i) A global targeting package, 
where an investor targeting specialist will help focus the company's 
investor relations efforts on appropriate investors, tailor messaging 
to those investors' interests and measure the company's impact on their 
holdings; (ii) monthly ownership analytics and event driven targeting, 
which provide a monthly shareholder analysis and tracking report, which 
an analyst will help interpret during a monthly call, and a shareholder 
targeting plan around one event each year, such as a roadshow or 
investor conference; \7\ or (iii) an annual perception study designed 
to identify how the company is perceived by key stakeholders and 
provide the company with actionable recommendations for enhancing its 
perception in the market. These alternative market advisory services 
are similar in that they all assist a company's investor relations 
efforts by providing information about current or potential investors 
to the company, but are designed to be valuable to companies based on 
their needs at differing times. The approximate retail value of the 
proposed new services ranges from $35,000 to $46,000 per year, as 
compared to the approximate retail

[[Page 49706]]

value of $51,000 of the existing stock surveillance tool.\8\
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    \7\ To fully utilize this service, the company will also have to 
subscribe to, and separately pay for, certain third party 
information, such as position reports from the Depositary Trust 
Corporation.
    \8\ Nasdaq also proposes to update the description of the stock 
surveillance tool to clarify that it is a single, dedicated analyst 
who provides that service, as opposed to the team approach used for 
the proposed alternative market advisory tools, and to note that the 
analyst attempts to identify institutional buyers and sellers in the 
company's stock.
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    Second, Nasdaq proposes to create a new tier of services for 
Eligible Companies with a market capitalization of $5 billion or more. 
As noted in the Prior Filings, Nasdaq believes that it is appropriate 
to offer different services based on a company's market capitalization 
given that larger companies generally will need more and different 
governance, communication and intelligence services.\9\ The listing of 
these companies also attracts the most attention and therefore enhances 
Nasdaq's image as a listing venue to the benefit of Nasdaq and all 
other Nasdaq-listed companies. Based on Nasdaq's experience, Nasdaq has 
concluded that companies with a market capitalization of $5 billion or 
more have more complex investor relations functions and frequently have 
more shareholders and a greater change in their shareholdings, and 
therefore can benefit from, and are more likely to purchase at the end 
of the complimentary period, investor targeting or perception studies 
in addition to surveillance services. As such, Nasdaq proposes to offer 
these companies the choice of a second market advisory tool.\10\
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    \9\ Exchange Act Release No. 65963, 76 FR at 79265.
    \10\ In describing the value of the services in the rule text, 
Nasdaq presumed that a company would use stock surveillance, which 
has an approximate retail value of $51,000, and global targeting, 
which has an approximate retail value of $40,000. A company using 
the stock surveillance tool would be unlikely also to use the 
monthly ownership analytics and event driven targeting because there 
is considerable overlap between these services. Companies could, of 
course, select different combinations of the four offered services 
that do not overlap, but these other combinations would have lower 
total approximate retail values.
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    Third, Nasdaq has determined to enhance the value of the package 
offered to Eligible Switches. NYSE recently modified the ongoing 
services it offers its listed companies, claiming to increase the value 
of those services.\11\ As a result, while most companies pay 
substantially lower listing fees on Nasdaq, some companies considering 
whether to switch to Nasdaq nonetheless will need a greater incentive 
to forego the services offered by NYSE, which are now valued higher by 
NYSE. Accordingly, Nasdaq proposes to increase the number of users of 
the market analytic tool to three users for Eligible Switches with a 
market capitalization of $750 million or more but less than $5 billion 
and to four users for Eligible Switches with a market capitalization of 
$5 billion or more.\12\ In addition, Nasdaq proposes to increase the 
term of the complimentary services from three to four years for any 
Eligible Switch with a market capitalization of $750 million or 
greater. This restores some features and the term of complimentary 
services that was previously in effect for such companies.\13\
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    \11\ Exchange Act Release No. 76127, supra.
    \12\ This service has a retail value of approximately $29,000 
per year for two users, $40,000 for three users, and $51,000 for 
four users.
    \13\ Prior to July 2014, Nasdaq offered market analytic tools 
for four users to all Eligible Companies. In addition, Nasdaq 
offered Eligible Switches (but not other companies) with a market 
capitalization of $500 million or more four years of complimentary 
services. The 2014 changes, as well as the changes proposed in this 
filing to restore some of those services, reflects the competition 
among exchanges for listings. Securities Exchange Act Release No. 
72669, 79 FR at 44235.
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    The proposed rule change would also update the values and 
descriptions of the services offered as follows. The approximate retail 
value of the investor relations Web site would be updated from $15,000 
to $16,000, the market analytic tool for two users from $30,000 to 
$29,000, and the stock surveillance tool from $50,000 to $51,000.\14\ 
In addition, the proposed rule change will eliminate rounding in the 
total retail value of the services offered each category of Eligible 
Company. The description of the market analytic tool would be changed 
to reflect the addition of mobile access to the users of that service 
and to add the value of that offering for three and four users ($40,000 
and $51,000, respectively). The ``Interactive Webcasting'' service 
would be renamed ``Audio Webcasting'' to reflect better the voice-only 
nature of the service, which is delivered through a platform branded 
with the company's name and logo that allows real-time questions from 
the audience. The four audio webcasts also would be described as a 
``package'' to reflect better the basis for approximate retail value 
provided.\15\ In addition, Nasdaq proposes to rename the current 
``Press Release'' service to ``Disclosure Services,'' to better reflect 
the availability of EDGAR and XBRL services, and to specify that these 
services are provided as an annual stipend usable with Nasdaq Corporate 
Solutions.\16\ Nasdaq also proposes to delete the reference to factors 
affecting the number of press releases available because the revised 
rule would explicitly state that it is an annual stipend and would 
emphasize disclosure services generally rather than just press 
releases.
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    \14\ The Commission has previously held that such updates are 
required by the Act. Exchange Act Release No. 72669, 79 FR at 44236.
    \15\ Four separately purchased webcasts would cost more than 
four purchased together as a package. The approximate retail value 
provided is, and always has been, based on the purchase of such a 
package.
    \16\ These are changes to reflect the way the service has always 
been offered.
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    Where a company has a choice among different complimentary services 
under the revised rule, it must make its selection when it first begins 
to use a complimentary service. A company will not be permitted to 
subsequently change to a different complimentary service offered in the 
package. Of course the company can discontinue using a service at any 
time without penalty and can also elect to purchase from Nasdaq 
Corporate Solutions a service alternative that was previously declined 
or a comparable service from another competitor.
    Nasdaq will implement this rule filing upon approval. Any company 
receiving services under the terms of the Prior Filings on the date of 
approval may elect to receive services under the revised terms in this 
proposed rule filing (even if those services were not available at the 
time the company listed on Nasdaq). If a company elects to receive 
services under the proposed rules, the services that the company is 
eligible to receive will be determined based on its status and market 
capitalization at the time of its original listing. The length of time 
that services are available to the company under the revised package 
will be calculated from the company's original listing date. In this 
manner, the rule will be applied prospectively, from approval.
    Finally, the proposed rule change would modify the introductory 
note to IM-5900-7 to reference the historical changes to the program 
and explain the impact of the revisions to companies that are already 
listed. The rule would also be reorganized to enhance its readability 
and usability.
2. Statutory Basis
    Nasdaq believes that the proposed rule change is consistent with 
the provisions of section 6 of the Act,\17\ in general, and sections 
6(b)(4), 6(b)(5), and 6(b)(8), in particular, in that the proposal is 
designed, among other things, to provide for the equitable allocation 
of reasonable dues, fees, and other charges among Exchange members and 
issuers and other persons using its facilities and to promote just and 
equitable principles of trade, and is not

[[Page 49707]]

designed to permit unfair discrimination between issuers, and in that 
the rules of the Exchange do not impose any burden on competition not 
necessary or appropriate in furtherance of the purposes of the Act. In 
the Prior Filings, the Commission determined that existing IM-5900-7 is 
consistent with these provisions of the Act.\18\ Nothing proposed 
herein changes that conclusion. Nasdaq faces competition in the market 
for listing services,\19\ and competes, in part, by offering valuable 
services to companies, including services that ease the companies' 
transition to being public or listed on a new exchange. Under the 
proposed changes, these services would be available for a small number 
of all public companies \20\ and would remain available only for a 
short period of two to four years, as in the Original Filing.
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    \17\ 15 U.S.C. 78f.
    \18\ Exchange Act Release No. 65963, 76 FR at 79267; Exchange 
Act Release No. 72669, 79 FR at 44234.
    \19\ The Justice Department has noted the intense competitive 
environment for exchange listings. See ``NASDAQ OMX Group Inc. and 
IntercontinentalExchange Inc. Abandon Their Proposed Acquisition Of 
NYSE Euronext After Justice Department Threatens Lawsuit'' (May 16, 
2011), available at http://www.justice.gov/atr/public/press_releases/2011/271214.htm.
    \20\ For example, in 2014 there were 309 total IPOs in the U.S. 
and Nasdaq listed 189 of them; 147 qualified for services under IM-
5900-7. In 2015, there were 196 total IPOs in the U.S. and Nasdaq 
listed 143 of them; 98 qualified for services under IM-5900-7. Two 
exchange switches qualified for services under IM-5900-7 in 2014 and 
five qualified in 2015. In contrast, according to FactSet, there are 
approximately 13,000 public companies in the U.S. on June 29, 2016, 
including more than 5,000 listed on exchanges.
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    Under the existing rule, Nasdaq offers companies with a market 
capitalization of $750 million or more a stock surveillance service and 
Nasdaq has justified why providing this service to such companies is 
not unfairly discriminatory in the Prior Filings. Nasdaq proposes to 
allow these companies to continue to receive this service or, at their 
election, to choose a different market advisory service with a lower 
retail value, but which may be more meaningful to the company. The 
addition of this flexibility does not change Nasdaq's fees nor how 
those fees are allocated among issuers and other persons using Nasdaq's 
facilities, and it does not unfairly discriminate against any issuer, 
because any issuer currently eligible to receive the higher value stock 
surveillance service would only receive a lower value service if the 
issuer voluntarily determines that the other service is more valuable 
to it based on its circumstances. Nasdaq believes that by allowing 
companies the ability to choose an appropriate market advisory tool, 
instead of offering just stock surveillance, the package will be more 
enticing. Therefore, this change will enhance competition among listing 
exchanges, rather than impose any burden on that competition. In 
addition, by providing companies the ability to choose a more 
meaningful market advisory tool, Nasdaq believes that these companies 
will have a better experience with the applicable tool; as a result, 
the companies are more likely to continue to use their chosen service. 
The ability to choose could create additional users of the service 
class and enhance competition among service providers.
    Nasdaq also proposes to allow Eligible Companies with a market 
capitalization of $5 billion or more to receive an additional market 
advisory service. As noted above, Nasdaq has concluded that companies 
with a market capitalization of $5 billion or more have more complex 
investor relations functions and frequently have more shareholders and 
face greater changes in their shareholdings. These companies therefore 
can benefit from additional market advisory services and are more 
likely to purchase additional services at the end of the complimentary 
period. There is also enhanced competition for listing of these larger 
companies and offering them an additional market advisory service 
reflects that competition and the greater fees they generally pay. 
Nasdaq believes that this enhanced need, the increased likelihood that 
the company will purchase the service at the end of the complimentary 
period, the increased competition for these listings, and the greater 
fees generally paid by these companies form an equitable and reasonable 
basis to distinguish these issuers; as a result, Nasdaq does not 
believe that this change unfairly discriminates between issuers. Nasdaq 
also believes that by allowing certain companies the ability to choose 
an additional market advisory tool, the package will be more enticing 
and therefore will enhance competition among listing exchanges, rather 
than impose any burden on that competition. In addition, by providing 
companies the ability to use an additional market advisory tool, Nasdaq 
believes that these companies are more likely to continue to use their 
chosen service on an ongoing basis when the complimentary period is 
over. This ability to choose could create additional users of the 
service class and enhance competition among service providers.
    Nasdaq previously offered market analytic tools for four users to 
all Eligible Companies but reduced that to two users based on Nasdaq's 
experience with company use of the service.\21\ Upon further 
consideration, Nasdaq believes that allowing a third user of its market 
analytics tools to Eligible Switches with a market capitalization of 
$750 million or more and a fourth user for Eligible Switches with a 
market capitalization of $5 billion or more better addresses Nasdaq's 
prior experience and is appropriate and not unfairly discriminatory. 
Larger companies often have more complex investor relations functions 
and therefore can benefit from additional market analytic user seats. 
Offering these companies additional user seats based on their size and 
needs therefore enables Nasdaq to compete better for listings, which is 
a nondiscriminatory reason to distinguish among issuers. In addition, 
Nasdaq believes that it is appropriate to distinguish Eligible Switches 
from other Eligible New Listings because Eligible Switches generally 
have larger investor relations teams already in place and therefore can 
benefit from the additional user seats. On the other hand, many 
Eligible New Listings work with investment banks and other firms that 
provide ongoing support for a period after their listing while the 
company's investor relations programs mature, and these companies 
therefore have less need for the additional user seats. In addition, 
Eligible Switches forego services paid for by their former exchange and 
larger companies forego more services.\22\ Therefore, Nasdaq believes 
that it is equitable and not unfairly discriminatory to offer these 
additional user seats only to Eligible Switches and not to Eligible New 
Listings and to base the number of additional seats on the Eligible 
Switches' size.
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    \21\ Securities Exchange Act Release No. 72669, supra.
    \22\ While NYSE bases its service tiers for currently listed 
companies on shares outstanding, as described in the Prior Filings, 
Nasdaq believes that companies with higher market capitalizations 
also generally will have more shares outstanding.
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    The proposed change to reinstate the four-year term of services 
provided to Eligible Switches with a market capitalization of $750 
million or more restores the term of complimentary services that was in 
effect for these companies prior to the 2014 changes.\23\ This change 
reflects Nasdaq's ongoing assessment of the competitive market for 
listings and does not place any unnecessary burden on that competition.
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    \23\ Exchange Act Release No. 65963, 76 FR 79262.
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    The adjustments proposed to reflect changes in the fair market 
values of the services offered do not meaningfully affect the 
allocation of Nasdaq's fees and

[[Page 49708]]

therefore also do not impact the Commission's prior conclusions. These 
changes, in fact, were found to be necessary by the Commission in the 
Prior Filings.\24\ Similarly, the changes to rename certain services to 
better reflect the service offered, refer to Nasdaq Corporate Solutions 
and reorganize the rule are clarifying changes, which have no impact on 
fees and how they are allocated or on competition.
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    \24\ Exchange Act Release No. 72669, 79 FR at 44236.
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    Nasdaq believes that it is not unfairly discriminatory to offer the 
revised service package only to currently listed companies that are 
receiving services at the time of the proposal's approval, and not to 
other currently listed companies. Companies receiving complimentary 
services are still in the process of sampling Nasdaq Corporate 
Solutions' offering and both the companies and Nasdaq Corporate 
Solutions will benefit from the ability of the company to utilize the 
revised services. Moreover, because Nasdaq Corporate Solutions 
continues to provide the complimentary services to these companies, 
extending their term and providing additional seats and advisory 
services is a seamless process. On the other hand, companies that are 
not currently receiving complimentary services from Nasdaq Corporate 
Solutions will have either entered into binding contractual agreements 
with Nasdaq Corporate Solutions and other providers for the specific 
services they require or determined that they do not wish to purchase 
the services. Extending the benefits of the revised rule to such 
companies would cause them to have duplicative services to what they 
have already contracted or provide them with the option for a service 
that they have already concluded they do not want. Accordingly, 
providing the benefit of the changes only to those companies receiving 
services when the proposed rule change is approved is not unfairly 
discriminatory.

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

    Nasdaq does not believe that the proposed rule change will result 
in any burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act, as amended. As described in the 
statutory basis section, above, the proposed rule change responds to 
competitive pressures in the market for listings. Nasdaq believes the 
proposed changes will result in a more enticing package for potential 
listings and therefore will enhance competition among listing 
exchanges. The proposed changes to allow companies the ability to 
choose a more meaningful market advisory tool will provide companies a 
better experience with these tools, the proposed change to allow 
certain companies to receive two market advisory tools will expose 
eligible companies to additional service options. As a result, Nasdaq 
believes that when the complimentary period ends these companies are 
more likely to continue to use the Nasdaq Corporate Solutions service 
or a competing service, whereas otherwise they may not be exposed to 
the value of these services and therefore may not purchase any. This 
will create additional users of the service class and enhance 
competition among service providers. In addition, other service 
providers can also offer similar services to companies, thereby 
increasing competition to the benefit of those companies and their 
shareholders. Accordingly, Nasdaq does not believe the proposed rule 
change will impose any burden on competition that is not necessary or 
appropriate in furtherance of the purposes of the Act, as amended.

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

    Within 45 days of the date of publication of this notice in the 
Federal Register or within such longer period (i) as the Commission may 
designate up to 90 days of such date if it finds such longer period to 
be appropriate and publishes its reasons for so finding or (ii) as to 
which the Exchange consents, the Commission shall: (a) By order approve 
or disapprove such proposed rule change, or (b) institute proceedings 
to determine whether the proposed rule change should be 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-2016-098 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-2016-098. 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-2016-098 and should 
be submitted on or before August 18, 2016.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\25\
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    \25\ 17 CFR 200.30-3(a)(12).
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Brent J. Fields,
Secretary.
[FR Doc. 2016-17822 Filed 7-27-16; 8:45 am]
 BILLING CODE 8011-01-P