[Federal Register Volume 81, Number 232 (Friday, December 2, 2016)]
[Notices]
[Pages 87106-87109]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28931]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-79408; File No. SR-NASDAQ-2016-159]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To 
Amend Commentary .14 to Rule 4770 (Compliance With Regulation NMS Plan 
To Implement a Tick Size Pilot)

November 28, 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 November 14, 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 Commentary .14 to Rule 4770 
(Compliance with Regulation NMS Plan to Implement a Tick Size Pilot) to 
provide the SEC with notice of its efforts to re-program its systems to 
eliminate a re-pricing functionality for certain orders in Test Group 
Three securities in connection with the Regulation NMS Plan to 
Implement a Tick Size Pilot Program (``Plan'' or ``Pilot'').\3\
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    \3\ See Securities Exchange Act Release No. 74892 (May 6, 2015), 
80 FR 27513 (May 13, 2015) (``Approval Order'').
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    The text of the proposed rule change is set forth below. Proposed 
new language is italicized; deleted text is in brackets.
* * * * *

The NASDAQ Stock Market Rules

* * * * *

4770. Compliance With Regulation NMS Plan To Implement a Tick Size 
Pilot

    (a) through (d) No Change.
    Commentary: .01-.13 No change.
    .14 Until [November 14, 2016]December 12, 2016, the treatment of 
Price to Comply Orders, Price to Display Orders, Non-Displayed Orders, 
and Post-Only Orders that are entered through the OUCH or FLITE 
protocols in Test Group Three securities shall be as follows:
    Following entry, and if market conditions allow, a Price to Comply 
Order in a Test Group Three Pilot Security will be adjusted repeatedly 
in accordance with changes to the NBBO until such time as the Price to 
Comply Order is able to be ranked and displayed at its original entered 
limit price.
    Following entry, and if market conditions allow, a Price to Display 
Order in a Test Group Three Pilot Security will be adjusted repeatedly 
in accordance with changes to the NBBO until such time as the Price to 
Display Order is able to be ranked and displayed at its original 
entered limit price.
    Following entry, and if market conditions allow, a Non-Displayed 
Order in a Test Group Three Pilot Security will be adjusted repeatedly 
in

[[Page 87107]]

accordance with changes to the NBBO up (down) to the Order's limit 
price.
    Following entry, and if market conditions allow, the Post-Only 
Order in a Test Group Three Pilot Security will be adjusted repeatedly 
in accordance with changes to the NBBO or the best price on the Nasdaq 
Book, as applicable until such time as the Post-Only Order is able to 
be ranked and displayed at its original entered limit price.
* * * * *

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
    On September 7, 2016, The Nasdaq Stock Market LLC (``Nasdaq'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``SEC'' or ``Commission'') a proposed rule change (``Proposal'') to 
adopt paragraph (d) and Commentary .12 to Exchange Rule 4770 to 
describe changes to system functionality necessary to implement the 
Plan. The Exchange also proposed amendments to Rule 4770(a) and (c) to 
clarify how the Trade-at exception may be satisfied. The SEC published 
the Proposal in the Federal Register for notice and comment on 
September 20, 2016.\4\ Nasdaq subsequently filed three Partial 
Amendments to clarify aspects of the Proposal. The Commission approved 
the Proposal, as amended, on October 7, 2016.\5\
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    \4\ See Securities Exchange Act Release No. 78837 (September 14, 
2016), 81 FR 64544 (September 20, 2016) (SR-NASDAQ-2016-126).
    \5\ See Securities Exchange Act Release No. 79075 (October 7, 
2016) (SR-NASDAQ-2016-126).
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    In SR-NASDAQ-2016-126, Nasdaq had initially proposed a re-pricing 
functionality for Price to Comply Orders, Non-Displayed Orders, and 
Post-Only Orders entered through the OUCH and FLITE protocols in Group 
Three securities.\6\ Nasdaq subsequently determined that it would not 
offer this re-pricing functionality for Price to Comply Orders, Non-
Displayed Orders, and Post-Only Orders entered through the OUCH and 
FLITE protocols in Group Three securities. As part of Partial Amendment 
No. 2 to SR-NASDAQ-2016-126, Nasdaq proposed to delete the relevant 
language from Rule 4770 related to this re-pricing functionality.
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    \6\ As originally proposed, Rule 4770(d)(2) stated that Price to 
Comply Orders in a Test Group Three Pilot Security will be adjusted 
repeatedly in accordance with changes to the NBBO until such time as 
the Price to Comply Order is able to be ranked and displayed at its 
original entered limit price. Rule 4770(d)(3) stated that, if market 
conditions allow, a Non-Displayed Order in a Test Group Three Pilot 
Security will be adjusted repeatedly in accordance with changes to 
the NBBO up (down) to the Order's limit price. Rule 4770(d)(4) 
stated that, if market conditions allow, the Post-Only Order in a 
Test Group Three Pilot Security will be adjusted repeatedly in 
accordance with changes to the NBBO or the best price on the Nasdaq 
Book, as applicable until such time as the Post-Only Order is able 
to be ranked and displayed at its original entered limit price.
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    In that amendment, Nasdaq noted that this change would only impact 
the treatment of Price to Comply Orders, Non-Displayed Orders, and 
Post-Only orders that are submitted through the OUCH and FLITE 
protocols in Test Group Three Pilot Securities, as these types of 
Orders that are currently submitted to Nasdaq through the RASH, QIX or 
FIX protocols are already subject to this re-pricing functionality and 
will remain subject to this functionality under the Pilot.
    In the Amendment, Nasdaq further noted that its systems are 
currently programmed so that Price to Comply Orders, Non-Displayed 
Orders and Post-Only Orders entered through the OUCH and FLITE 
protocols in Test Group Three Securities may be adjusted repeatedly to 
reflect changes to the NBBO and/or the best price on the Nasdaq book. 
Nasdaq stated that it is re-programming its systems to remove this 
functionality for Price to Comply Orders, Non-Displayed Orders and 
Post-Only Orders entered through the OUCH and FLITE protocols in Test 
Group Three Securities. In the Amendment, Nasdaq stated that it 
anticipated that this re-programming shall be completed no later than 
November 30, 2016. If it appeared that this functionality would remain 
operational by October 17, 2016, Nasdaq indicated that it would file a 
proposed rule change with the SEC and will provide notice to market 
participants sufficiently in advance of that date to provide effective 
notice. The rule change and the notice to market participants would 
describe the current operation of the Nasdaq systems in this regard, 
and the timing related to the re-programming.
    On October 17, 2016, Nasdaq filed a proposal to extend the date by 
which it would complete the re-programing of its systems to eliminate 
the re-pricing functionality in Test Group Three securities for Price 
to Comply Orders, Price to Display Orders, Non-Displayed Orders, and 
Post-Only Orders that are entered through the OUCH or FLITE 
protocols.\7\ In that proposal, Nasdaq stated that it anticipated that 
this re-programming shall be complete on or before October 31, 2016.\8\
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    \7\ See Securities Exchange Act Release No. 79155 (October 25, 
2016) (SR-NASDAQ-2016-143).
     Subsequent to the approval of SR-NASDAQ-2016-126, Nasdaq become 
aware that this re-pricing functionality also applies to Price to 
Display Orders that are entered through the OUCH and FLITE protocols 
in Test Group Three Securities, and included those Orders as part of 
SR-NASDAQ-2016-143 accordingly. Price to Display Orders will be 
treated in the same manner as Price to Comply Orders under the re-
pricing functionality.
    \8\ Id.
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    On October 31, 2016, Nasdaq submitted a proposed rule change to 
extend the date by which it would eliminate the re-pricing 
functionality to November 14, 2016.\9\ In that proposal, Nasdaq stated 
that it was still determining how to modify its systems to eliminate 
the current re-pricing functionality in Test Group Three securities for 
Price to Comply Orders, Price to Display Orders, Non-Displayed Orders, 
and Post-Only Orders that are entered through the OUCH or FLITE 
protocols.
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    \9\ See Securities Exchange Release No. 79263 (November 8, 2016) 
(SR-NASDAQ-2016-151).
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    At this time, Nasdaq is in the process of re-programming its 
systems to eliminate the re-pricing functionality in Test Group Three 
securities for Price to Comply Orders, Price to Display Orders, Non-
Displayed Orders, and Post-Only Orders that are entered through the 
OUCH or FLITE protocols. Nasdaq anticipates that this re-programming 
shall be complete on or before December 12, 2016.
    Therefore, the current treatment of Price to Comply Orders, Price 
to Display Orders, Non-Displayed Orders, and Post-Only Orders that are 
entered through the OUCH or FLITE protocols in Test Group Three 
securities shall be as follows:
    Following entry, and if market conditions allow, a Price to Comply 
Order in a Test Group Three Pilot Security will be adjusted repeatedly 
in accordance with changes to the NBBO until such time as the Price to 
Comply Order is able to be ranked and displayed at its original entered 
limit price.

[[Page 87108]]

    Following entry, and if market conditions allow, a Price to Display 
Order in a Test Group Three Pilot Security will be adjusted repeatedly 
in accordance with changes to the NBBO until such time as the Price to 
Display Order is able to be ranked and displayed at its original 
entered limit price.
    Following entry, and if market conditions allow, a Non-Displayed 
Order in a Test Group Three Pilot Security will be adjusted repeatedly 
in accordance with changes to the NBBO up (down) to the Order's limit 
price.
    Following entry, and if market conditions allow, a Post-Only Order 
in a Test Group Three Pilot Security will be adjusted repeatedly in 
accordance with changes to the NBBO or the best price on the Nasdaq 
Book, as applicable until such time as the Post-Only Order is able to 
be ranked and displayed at its original entered limit price.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act,\10\ in general, and furthers the objectives of Section 
6(b)(5) of the Act,\11\ 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. The purpose of this filing is to inform the SEC and market 
participants of the status of Nasdaq's attempts to re-program its 
systems to remove the re-pricing functionality in Test Group Three 
securities for Price to Comply Orders, Price to Display Orders, Non-
Displayed Orders, and Post-Only Orders that are entered through the 
OUCH or FLITE protocols, and the current treatment of such orders 
pending the removal of this functionality. This proposal is consistent 
with the Act because it provides the SEC and market participants with 
notice of Nasdaq's efforts in this regard, and is being submitted in 
connection with the statements made by Nasdaq in SR-NASDAQ-2016-126, 
SR-NASDAQ-2016-143 and SR-NASDAQ-2016-151 in proposing the removal of 
this functionality.
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    \10\ 15 U.S.C. 78f(b).
    \11\ 15 U.S.C. 78f(b)(5).
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    Nasdaq also believes that the proposal is consistent with the Act 
because the re-pricing functionality will not significantly impact the 
data gathered pursuant to the Pilot. Nasdaq notes that this re-pricing 
functionality only affects Price to Comply Orders, Price to Display 
Orders, Non-Displayed Orders, and Post-Only Orders that are entered 
through the OUCH or FLITE protocols for Test Group Three securities 
until the re-pricing functionality is eliminated, and only becomes 
relevant when an Order in a Test Group Three security would cross a 
Protected Quotation of another market center. Nasdaq has analyzed data 
relating to the frequency with which Orders in Test Group Three 
securities are entered with a limit price that would cross a Protected 
Quotation of another market center, and believes that the re-pricing 
functionality will be triggered infrequently.\12\ The Exchange also 
notes that it is diligently working to eliminate the current re-pricing 
functionality in Test Group Three securities for Price to Comply 
Orders, Price to Display Orders, Non-Displayed Orders, and Post-Only 
Orders that are entered through the OUCH or FLITE protocols, and that 
it anticipates this re-programming to be complete on or before December 
12, 2016.
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    \12\ For example, for the time period between October 17 and 
November 11, 2016, 0.08% of orders that were entered on Nasdaq in 
Test Group Three securities were entered at a price that crossed the 
NBBO.
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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. The purpose of this proposal is 
to provide the SEC and market participants with notice of Nasdaq's 
efforts to remove its re-pricing functionality in Test Group Three 
securities for Price to Comply Orders, Price to Display Orders, Non-
Displayed Orders, and Post-Only Orders that are entered through the 
OUCH or FLITE protocols, consistent with its statements in SR-NASDAQ-
2016-126, SR-NASDAQ-2016-143, and SR-NASDAQ-2016-151.

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 change has become effective pursuant to Section 
19(b)(3)(A)(iii) \13\ of the Act and Rule 19b-4(f)(6) \14\ thereunder, 
in that it effects a change that: (i) Does not significantly affect the 
protection of investors or the public interest; (ii) does not impose 
any significant burden on competition; and (iii) by its terms, does not 
become operative for 30 days after the date of the filing, or such 
shorter time as the Commission may designate if consistent with the 
protection of investors and the public interest.
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    \13\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \14\ 17 CFR 240.19b-4(f)(6).
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    At any time within 60 days of the filing of the proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is: (i) 
Necessary or appropriate in the public interest; (ii) for the 
protection of investors; or (iii) otherwise in furtherance of the 
purposes of the Act. If the Commission takes such action, the 
Commission shall institute proceedings to determine whether the 
proposed rule should be approved or disapproved.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-NASDAQ-2016-159 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-2016-159. 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

[[Page 87109]]

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-2016-159 and should be submitted on or before 
December 23, 2016.
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    \15\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\15\
Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016-28931 Filed 12-1-16; 8:45 am]
 BILLING CODE 8011-01-P