Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to Sponsored Access, 73006-73009 [2015-29709]

Agencies

• SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 80, Number 225 (Monday, November 23, 2015)]
[Notices]
[Pages 73006-73009]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-29709]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-76454; File No. SR-BX-2015-067]


Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of 
Filing and Immediate Effectiveness of Proposed Rule Change Relating to 
Sponsored Access

November 17, 2015.
    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 4, 2015, NASDAQ OMX BX, Inc. (``BX'' or ``Exchange'') 
filed with the Securities and Exchange Commission (``SEC'' or 
``Commission'') the proposed rule change as described in Items I, II, 
and III, below, which Items have been prepared by the Exchange. The 
Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend BX Rule 4615 entitled, ``Sponsored 
Participants'' to: (1) Define the term ``Sponsored Access'' and 
``Customer Agreement;'' (2) specify the requirements to comply with 
Rule 15c3-5 under the Securities Exchange Act of 1934 (``Market Access 
Rule''); and (3) remove the requirement that each Sponsored Participant 
and each Sponsoring Member must enter into certain agreements with the 
Exchange.
    The text of the proposed rule change is available on the Exchange's 
Web site at https://nasdaqomxbx.cchwallstreet.com, at the principal 
office of the Exchange, and at the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item IV below. The Exchange has prepared summaries, set forth in 
sections A, B, and C below, of the most significant aspects of such 
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The purpose of the filing is to amend BX Rule 4615 entitled, 
``Sponsored Participants'' to: (1) Define the term ``Sponsored 
Access,'' and specifically stating that compliance with the Market 
Access Rule is required, and defining ``Customer Agreement'' to refer 
to the agreement that must be executed between the Sponsoring 
Participant and the Sponsoring Member; (2) specify the requirements to 
comply with the Market Access Rule; and (3) remove the requirement that 
each Sponsored Participant and each Sponsoring Member must enter into 
certain agreements with the Exchange to streamline its rule and remove 
unnecessarily burdensome notice requirements to the Exchange.
Defining Sponsored Access
    A Sponsored Participant may be a member or a non-member of the 
Exchange, such as an institutional investor, that gains access to the 
Exchange \3\ and trades under a Sponsoring Member's execution and 
clearing identity pursuant to sponsorship arrangements currently set 
forth in BX Rule 4615. The Exchange is proposing to define the term 
``Sponsored Access'' to clarify the type of market access arrangement 
that is subject to BX Rule 4615. The Exchange proposes to amend BX Rule 
4615(a) to add the following definition, ``Sponsored Access shall mean 
an arrangement whereby a member permits its customers to enter orders 
into the Exchange's System that bypass the member's trading system and 
are routed directly to the Exchange, including routing through a 
service bureau or other third party technology provider.'' This 
definition was derived from the Commission's description of Sponsored 
Access used in the release approving the Market Access Rule.\4\ The 
Exchange believes that defining Sponsored Access in BX Rule 4615 will 
provide market participants with greater clarity concerning Sponsored 
Access and their obligations with respect to this type of access 
arrangement.
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    \3\ For example, a broker-dealer may allow its customer--whether 
an institution such as a hedge fund, mutual fund, bank or insurance 
company, an individual, or another broker-dealer--to use the broker-
dealer's MPID, account or other mechanism or mnemonic used to 
identify a market participant for the purposes of electronically 
accessing the Exchange.
    \4\ The Market Access Rule, among other things, requires broker-
dealers providing others with access to an exchange or alternative 
trading system to establish, document, and maintain a system of risk 
management controls and supervisory procedures reasonably designed 
to manage the financial, regulatory, and other risks of providing 
such access. See Securities Exchange Act Release No. 63241 (November 
3, 2010), 75 FR 69792 (November 15, 2010).
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Defining Customer Agreement
    The Exchange proposes to amend BX Rule 4615(b)(i) to define the 
agreement that Sponsored Participants must enter into and maintain with 
one or more Sponsoring Members to establish proper relationship(s) and 
account(s) through which the Sponsored Participant may trade on the BX 
Market, as a ``Customer Agreement.''
Market Access Rule
    Pursuant to BX Rule 4615, the Sponsoring Member is responsible for 
the activities of the Sponsored Participant. Sponsored Participants are 
required to have procedures in place to comply with Exchange rules, and 
the Sponsoring Member takes responsibility for the Sponsored 
Participant's activity on the Exchange. Members may have multiple 
Sponsored Access relationships in place at a given time. The Exchange's 
examination program assesses compliance with BX Rule 4615, among other 
rules.\5\ The Exchange proposes to specifically enumerate within BX 
Rule 4615 the member's obligation to comply with the Market Access 
Rule, which members are currently required to comply with respecting 
market access. The Exchange believes that specifying the obligation to 
comply with the Market Access Rule specifically will reinforce that BX 
Rule 4615 presupposes member compliance with the Market Access Rule.
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    \5\ The Exchange has a Regulatory Services Agreement with 
Financial Industry Regulatory Authority (``FINRA'') to conduct 
regulatory examinations, among other obligations.
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Elimination of Certain Contract Requirements
    At this time, the Exchange proposes to remove requirements to 
submit certain forms to the Exchange. There are three forms that are 
currently required by BX Rule 4615: (1) An agreement between the 
Sponsored Participant and the Exchange (``Exchange Agreement''); (2) a

[[Page 73007]]

User Agreement between the Sponsored Participant and its Sponsoring 
Member that is provided to the Exchange; and (3) a Notice of Consent 
provided to the Exchange by the Sponsoring Member. BX Rule 4615 will 
continue to require that each Sponsored Participants enter into a 
Customer Agreement with each Sponsoring member to establish proper 
relationship(s) and account(s) through which the Sponsored Participant 
may trade on the BX Market. These Customer Agreement(s) must 
incorporate the Sponsorship Provisions set forth in paragraph (ii) in 
BX Rule 4615.\6\ The Customer Agreement remains unaffected by this rule 
proposal. Also, the Exchange is proposing to amend BX Rule 4615 to 
identify the aforementioned agreement as the ``Customer Agreement.''
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    \6\ The Customer Agreement is required to include, among other 
language, all orders entered by the Sponsored Participants and any 
person acting on behalf of or in the name of such Sponsored 
Participant and any executions occurring as a result of such orders 
are binding in all respects on the Sponsoring Member and, also, 
Sponsoring Member is responsible for any and all actions taken by 
such Sponsored Participant and any person acting on behalf of or in 
the name of such Sponsored Participant.
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    Today, only members may request connectivity to the Exchange. A 
member may obtain one or more ports for the purpose of providing 
Sponsored Access. If separate ports are requested by a member for the 
purpose of providing Sponsored Access, the member must request those 
ports from the Exchange and the member is responsible for the Sponsored 
Participant's activity on the Exchange. In all circumstances, the 
Exchange will only permit members to request connectivity to the market 
and the member is responsible for all customer orders submitted through 
the member's port.
    First, the Exchange believes that completing and submitting the 
Exchange Agreement, User Agreement and Notice of Consent is 
unnecessarily burdensome in light of the current structure in place at 
the Exchange. Only members may request connectivity to the Exchange by 
contacting BX Subscriber Services. Such connection by the member 
requires approval by the Exchange for the purpose of testing as well as 
other relevant information sharing with the Exchange by the member to 
obtain a port. The Exchange is aware of the member responsible for each 
of its ports, however the Exchange may not be aware of the member's 
Sponsored Access arrangements due to varied ways that a member may 
utilize a port. The Exchange believes the requirement to also complete 
and submit an Exchange Agreement, User Agreement and Notice of Consent 
with our BX Membership Department is viewed as unnecessarily burdensome 
by members because of the multitude of relationships the member has 
with various customers. Members have expressed to the Exchange that 
they have multiple relationships with customers, which customer 
relationships change over time.\7\ Members have indicated that the 
necessity to continuously disclose the updated customer relationships 
to the Exchange is burdensome and unnecessary as they remain 
responsible for all activity conducted on the Exchange through a port 
assigned to the member. Further such information is available to the 
Exchange upon Exchange request from its regulatory group.\8\
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    \7\ For example, a broker-dealer's customers, which could 
include hedge funds, institutional investors, individual investors, 
and other broker-dealers.
    \8\ See BX Rule 8210.
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    Second, the Exchange believes that the Exchange Agreement between 
the Sponsored Participant and the Exchange is also unnecessarily 
burdensome. The requirement to provide this form was intended to give 
the Exchange notification that such a relationship existed and to 
ensure that the Sponsored Participant was informed of the Exchange's 
Certificate of Incorporation, Bylaws, Rules and procedures. The 
agreements also provided the Exchange with contractual privity, which 
would no longer exist with the removal of the Exchange Agreement. The 
Exchange does not believe the loss of privity with the Sponsored 
Participant creates a concern as the Exchange has the ability to remove 
access to the port \9\ at any time if the activity of the Sponsored 
Participant warrants such removal. In addition, as discussed below, the 
Sponsored Participant will be made aware of its obligations through the 
Customer Agreement that it executed with the Sponsoring Member. As 
noted above, the Exchange only permits its members to request 
connectivity to the Exchange's System and members responsible for all 
trades submitted through such ports. Pursuant to BX Rule 4615 the 
trading activity of a Sponsored Participant must be monitored by the 
Sponsoring Member for compliance with the terms of the Customer 
Agreement with the Sponsoring Participant.\10\ Finally, the member 
continues to be obligated to comply with BX Rule 4615 and the Market 
Access Rule. The Sponsoring Member is responsible for any and all 
actions taken by such Sponsored Participant and any person acting on 
behalf of or in the name of such Sponsored Participant.
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    \9\ BX Rule 4611, entitled ``NASDAQ OMX BX Market Participant 
Registration'' permits BX to impose upon any BX Market Maker, BX ECN 
or Order Entry Firm such temporary restrictions upon the automated 
entry or updating of orders or Quotes/Orders as BX may determine to 
be necessary to protect the integrity of BX's systems.
    \10\ See BX Rule 4615(b)(ii)(G).
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    BX Rule 4615 requires that the Sponsored Participant and the 
Sponsored Member maintain a Customer Agreement to ensure compliance 
with the Exchange's Rules and obligations related to security, among 
other things.\11\ BX Rule 4615 requires that the Customer Agreement 
specify that the Sponsored Participant shall maintain, keep current and 
provide to the Sponsoring Member a list of individuals authorized to 
obtain access to the Exchange on behalf of the Sponsored Participant 
and provide appropriate training. In addition, pursuant to the Customer 
Agreement provisions, the Sponsored Participant is required to take 
reasonable security precautions to prevent unauthorized use or access 
to the Exchange, including unauthorized entry of information into the 
Exchange, or the information and data made available therein. Finally, 
the Customer Agreement must provide that the Sponsored Participant is 
responsible for any and all orders, trades and other messages and 
instructions entered, transmitted or received under identifiers, 
passwords and security codes of authorized individuals, and for the 
trading and other consequences thereof, including granting unauthorized 
access to the Exchange. The contents and the requirement for a Customer 
Agreement are unchanged.
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    \11\ See BX Rule 4615(b)(ii)(B).
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    Pursuant to BX Rule 4615 the Sponsoring Member must provide a 
Notice of Consent to the Exchange. The Exchange believes that a Notice 
of Consent provided to the Exchange by the Sponsoring Member is also 
unnecessarily burdensome. The Notice of Consent notifies the Exchange 
of the relationship between the Sponsoring Member and the Sponsored 
Participant. However, as noted above, the Exchange's regulatory group 
may request information about a particular customer relationship as it 
deems necessary. \12\ Further, the Exchange is made aware of the 
existence of ports when the Sponsoring Member requests connectivity to 
the Exchange and the Members are responsible for all trading activity 
by its Sponsored Participant. In addition, the Exchange, through its 
Regulatory Services Agreement with the

[[Page 73008]]

Financial Industry Regulatory Authority (FINRA), reviews for member 
compliance with BX Rule 4615 and the Market Access Rule. The Exchange 
has the ability to remove access to the port \13\ at any time if the 
activity of the Sponsored Participant would warrant such removal.
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    \12\ See BX Rule 8210.
    \13\ See note 9.
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    In light of the foregoing, the requirement to complete and submit 
an Exchange Agreement and Notice of Consent with the BX Membership 
Department is viewed as unnecessarily burdensome by members, who must 
update their customer relationships internally and provides such 
information upon Exchange request.
    Finally, the Exchange notes it is correcting a capitalization in BX 
Rule 4615(ii)(C).
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act \14\ in general, and furthers the objectives of Section 
6(b)(5) of the Act \15\ 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 enhancing the risk protections available to Exchange 
members.
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    \14\ 15 U.S.C. 78f(b).
    \15\ 15 U.S.C. 78f(b)(5).
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Defining Sponsored Access
    Adding a definition of Sponsored Access will assist market 
participants to understand the type of arrangements that are subject to 
BX Rule 4615 and such clarity will serve to promote just and equitable 
principles of trade. Members have indicated, and the Exchange believes, 
that adding the Sponsored Access definition will provide members with 
additional guidance with respect to BX Rule 4615.
Defining Customer Agreement
    Defining the agreement that Sponsored Participants must enter into 
and maintain with one or more Sponsoring Members to establish proper 
relationship(s) and account(s) through which the Sponsored Participant 
may trade on the BX Market, as a ``Customer Agreement'' will also serve 
to provide members with clarity on the agreement that the Exchange will 
continue to require and the obligations that are contained within the 
Customer Agreement. This amendment is non-substantive.
Market Access Rule
    Members continue to be required to comply with Rule 4615 and the 
Market Access Rule. The Exchange believes that specifically enumerating 
the member's responsibility to comply with the Market Access Rule will 
provide member's with additional guidance concerning the application of 
the Rule. This change is non-substantive as members are currently 
responsible to comply with the Market Access Rule.
Elimination of Certain Contract Requirements
    Removing the requirement to submit and complete an Exchange 
Agreement, User Agreement and Notice of Consent will remove impediments 
to and perfect the mechanism of a free and open market by removing a 
burdensome and time-consuming requirement for members. While 
elimination of the Exchange Agreement requirement will also eliminate 
the Exchange's contractual privity with the Sponsored Participant, he 
Exchange notes that any potential concerns to the loss of privity are 
mitigated by the Exchange's ability to restrict the Sponsored 
Participant's access to a port \16\ at any time it is warranted by the 
Sponsored Participant's trading activity. Also, members have indicated 
that customer relationships must be frequently updated and it is 
unnecessarily burdensome to continuously update the Exchange with this 
information that is available upon request. Connectivity to the 
Exchange is authorized by the Exchange and must be requested by a 
member of the Exchange. Such connection requires approval by the 
Exchange, testing and other security features as well as information 
sharing with the Exchange by the member. In addition, BX Rule 4615 
delineates the terms of the required contractual relationship between 
the Sponsoring Member and the Sponsored Participant in the Customer 
Agreement, which remains in effect. The Exchange believes that the 
Notice of Consent is unnecessary as Sponsoring Members must request 
connectivity to the Exchange as well as enter into a Customer Agreement 
with the Sponsored Participant. Finally, as is the case with other 
Exchange Rules, the Exchange examines for compliance with BX Rule 4615 
and may request information about any customer relationship which 
concerns the Exchange.
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    \16\ See note 9.
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    The requirement to also complete and submit an Exchange Agreement, 
User Agreement and a Notice of Consent with our BX Membership 
Department is viewed as unnecessarily burdensome by members, who must 
update their customer relationships internally.

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 for the reasons below.
Defining Sponsored Access
    The addition of a definition for Sponsored Access will assist 
market participants to understand the type of arrangement subject to BX 
Rule 4615 and such clarity will serve to promote just and equitable 
principles of trade.
Defining Customer Agreement
    Defining the agreement that Sponsored Participants must enter into 
and maintain with one or more Sponsoring Members to establish proper 
relationship(s) and account(s) through which the Sponsored Participant 
may trade on the BX Market, as a ``Customer Agreement'' does not create 
an undue burden on competition as this amendment is non-substantive and 
the Exchange believes that providing guidance concerning the type of 
arrangement subject to BX Rule 4615 will facilitate member compliance 
and does not unduly burden competition.
Market Access Rule
    In addition, the Exchange believes that specifically enumerating 
the member's obligation to comply with the Market Access Rule does not 
create an undue burden on competition, but rather reinforces the 
application of the Rule. This change is non-substantive as members are 
currently responsible to comply with the Market Access Rule.
Elimination of Certain Contract Requirements
    Removing the requirement to complete an Exchange Agreement, User 
Agreement and Notice of Consent under BX Rule 4615 does not create an 
undue burden on competition. The Exchange believes that this 
requirement is unnecessarily burdensome as the Exchange's regulatory 
group may request information about a particular customer relationship 
as it deems necessary.\17\ Further, the Exchange is made aware of the 
existence of ports when the Sponsoring Member requests connectivity to 
the Exchange and the

[[Page 73009]]

Members are responsible for all trading activity by its Sponsored 
Participant. In order to obtain connectivity to the Exchange, members 
are required to contact BX Subscriber Services and request a connection 
to the market. Such connection requires approval by the Exchange, 
testing and other security features as well as information sharing with 
the Exchange by the member. Only members are permitted to request 
connectivity to the Exchange. The requirement to also complete and 
submit an Exchange Agreement, User Agreement and a Notice of Consent 
with our BX Membership Department is viewed as unnecessarily burdensome 
by members, who must update their customer relationships internally. 
Additionally, the Exchange examines for compliance with BX Rule 4615 
and may request information about any customer relationship which 
concerns the Exchange.
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    \17\ See BX Rule 8210.
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    The Sponsoring Member remains responsible for customer activity 
conducted on the Exchange through the Customer Agreement, among other 
obligations. Additionally, Sponsored Participants that obtain access to 
the Exchange's System are required to take reasonable security 
precautions and prevent unauthorized use or access to the BX Market, 
including unauthorized entry of information into the BX Market,\18\ 
pursuant to the Customer Agreement. Further, the Sponsored Participants 
is responsible to establish adequate procedures and controls that 
permit it to effectively monitor its employees', agents' and customers' 
use and access to the BX Market for compliance with the terms of this 
agreement.\19\ In addition, the Exchange, through its Regulatory 
Services Agreement with FINRA conducts reviews of members for 
compliance with BX Rule 4615 and the Market Access Rule. The Exchange 
has the ability to remove access to the port \20\ at any time if the 
activity of the Sponsored Participant would warrant such removal. 
Finally, BX Rule 4615 is currently applicable to all BX members that 
desire to sponsor access for its customers and applies to trading in 
all securities on the Exchange.
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    \18\ See BX Rule 4615(b)(ii)(G).
    \19\ See BX Rule 4615(b)(ii)(H).
    \20\ See note 9.
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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 significantly 
affect the protection of investors or the public interest; does not 
impose any significant burden on competition; and by its terms does not 
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) \21\ of the Act and Rule 19b-
4(f)(6) thereunder.\22\
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    \21\ 15 U.S.C. 78s(b)(3)(A).
    \22\ 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: 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 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 (https://www.sec.gov/rules/sro.shtml); or
     Send an email to rule-comments@sec.gov. Please include 
File Number SR-BX-2015-067 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-BX-2015-067. 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 (https://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-BX-2015-067 and should be 
submitted on or December 14, 2015.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\23\
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    \23\ 17 CFR 200.30-3(a)(12).
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Robert W. Errett,
Deputy Secretary.
[FR Doc. 2015-29709 Filed 11-20-15; 8:45 am]
 BILLING CODE 8011-01-P