Self-Regulatory Organizations; NASDAQ BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change to the Professional Designation, 44373-44377 [2016-16026]

Download as PDF Federal Register / Vol. 81, No. 130 / Thursday, July 7, 2016 / Notices newly-issued, unregistered securities to institutional investors or (ii) on behalf of an issuer or a control person in connection with a change of control of a privately-held company. ‘‘Control’’ and ‘‘privately-held company’’ would have the same meanings as those terms had in the SEC staff’s 2014 M&A Brokers no-action letter.9 Accordingly, under revised proposed CAB Rule 016(c)(1)(F), a CAB would be permitted to qualify, identify, solicit or act as a placement or agent only in two circumstances. First, a CAB could perform these functions on behalf of an issuer in connection with an initial offering of unregistered securities to institutional investors (as such term is defined in proposed CAB Rule 016(i)). Second, a CAB could perform these functions on behalf of an issuer or control person in connection with an initial or secondary securities transaction related to a change of control of a privately-held company. Except as described in proposed CAB Rules 016(c)(1)(F)(ii) and 016(c)(1)(G),10 a CAB would not otherwise be permitted to engage in qualifying, identifying, soliciting, or acting as a placement agent or finder in connection with secondary securities transactions. With this Partial Amendment No. 2, FINRA included (1) Exhibit 4, which reflects changes to the text of the proposed rule change pursuant to this Partial Amendment No. 2, marked to show additions to the text as proposed in the original filing as amended by Partial Amendment No. 1; and (2) Exhibit 5, which reflects the changes to the current rule text that are proposed in the proposed rule change, as amended by this Partial Amendment No. 2. srobinson on DSK5SPTVN1PROD with NOTICES III. Date of Effectiveness of the Proposed Rule Change as Modified by Partial Amendments No. 1 and No. 2 and Timing for Commission Action Within 180 days after the date of publication of the initial Notice of Filing in the Federal Register or within such longer period up to an additional 60 days (i) as the Commission may 9 See M&A Brokers, 2014 SEC No-Act LEXIS 92 (January 31, 2014). 10 Proposed CAB Rule 016(c)(1)(G) would allow a CAB to effect securities transactions solely in connection with the transfer of ownership and control of a privately-held company through the purchase, sale, exchange, issuance, repurchase, or redemption of, or a business combination involving, securities or assets of the company, to a buyer that will actively operate the company or the business conducted with the assets of the company, in accordance with the terms and conditions of an SEC rule, release, interpretation or no-action letter that permits a person to engage in such activities without having to register as a broker or dealer pursuant to Section 15(b) of the Exchange Act. VerDate Sep<11>2014 17:23 Jul 06, 2016 Jkt 238001 designate if it finds such longer period to be appropriate and publishes its reasons for so finding or (ii) as to which the self-regulatory organization consents, the Commission will issue an order approving or disapproving such proposed rule change, as amended. IV. Solicitation of Comments Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change, as amended by Partial Amendment No. 2, is consistent with the Exchange 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– FINRA–2015–054 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–FINRA–2015–054. 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 such filing also will be available for inspection and copying at the principal office of FINRA. 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 PO 00000 Frm 00116 Fmt 4703 Sfmt 4703 44373 Number SR–FINRA–2015–054 and should be submitted on or before July 18, 2016. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.11 Brent J. Fields, Secretary. [FR Doc. 2016–16110 Filed 7–6–16; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–78199; File No. SR–BX– 2016–035] Self-Regulatory Organizations; NASDAQ BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change to the Professional Designation 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, NASDAQ BX, Inc. (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. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to amend Exchange 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 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 11 17 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 1 15 E:\FR\FM\07JYN1.SGM 07JYN1 44374 Federal Register / Vol. 81, No. 130 / Thursday, July 7, 2016 / Notices 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 srobinson on DSK5SPTVN1PROD with NOTICES The definition of the term Professional at Chapter I, Section 1(49) 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 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 3 The term ‘‘Public Customer’’ means a person that is not a broker or dealer in securities. See Chapter I, Section 1(50). 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. VerDate Sep<11>2014 17:23 Jul 06, 2016 Jkt 238001 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. 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 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 [sic] 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. Parent/Child Orders An order that converts into multiple subordinate orders to achieve an execution strategy shall be counted as one order per side and series, even if the order is routed away.9 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 6 See Exchange Rules at Chapter VI, Section 11, Chapter XII, Sections 2 and 3. 7 All order types count toward the 390 orders on average per day. 8 Cancel messages do not count as an order. 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. PO 00000 Frm 00117 Fmt 4703 Sfmt 4703 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 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. 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 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 E:\FR\FM\07JYN1.SGM 07JYN1 Federal Register / Vol. 81, No. 130 / Thursday, July 7, 2016 / Notices 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. 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 44375 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 Order Book ............................................................................................. Public Customer order posted to Multiple SRO Order Books simultaneously ....................................................... Cancel/Replace Activity ........................................................................................................................................... Cancel/Replace Activity tracking NBBO .................................................................................................................. X X X ........................ ........................ ........................ ........................ X 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 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. 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. srobinson on DSK5SPTVN1PROD with NOTICES 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 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 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. December 1, 2010; and the International Securities Exchange LLC’s Regulatory Information Circular (2009–179) dated June 23, 2009. 11 15 U.S.C. 78f(b). 12 15 U.S.C. 78f(b)(5). 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. VerDate Sep<11>2014 17:23 Jul 06, 2016 Jkt 238001 Cancel and Replace PO 00000 Frm 00118 Fmt 4703 Sfmt 4703 The Exchange believes that counting cancel and replace orders with ‘‘singlestrike 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. 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 priority within the order Book and 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 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. 15 See BX Rules at Chapter VI, Section 10 and Chapter XV, Section 2. E:\FR\FM\07JYN1.SGM 07JYN1 srobinson on DSK5SPTVN1PROD with NOTICES 44376 Federal Register / Vol. 81, No. 130 / Thursday, July 7, 2016 / Notices 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. 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 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. VerDate Sep<11>2014 17:23 Jul 06, 2016 Jkt 238001 Public Customer orders. The Professional designation focuses specifically on the number of orders generated. Customer priority is one of the marketplace advantages provided to Public Customer orders on the Exchange. Customer priority means that Customer orders are given execution priority over non-Customer orders and quotations of specialists and BX Options Market Makers 17 at the same price. Another 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.18 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.19 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’’). 17 A BX Options Market Maker means an Options Participant registered with the Exchange for the purpose of making markets in options contracts traded on the Exchange and that is vested with the rights and responsibilities specified in Chapter VII of these Rules. See BX Rules at Chapter I, Section 1(a)(9). 18 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. 19 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. PO 00000 Frm 00119 Fmt 4703 Sfmt 4703 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 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 E:\FR\FM\07JYN1.SGM 07JYN1 Federal Register / Vol. 81, No. 130 / Thursday, July 7, 2016 / Notices similar guidance.20 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. 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 21 and subparagraph (f)(6) of Rule 19b–4 thereunder.22 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.23 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.24 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.25 This proposed 20 See supra note 16. U.S.C. 78s(b)(3)(a)(iii). 22 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. 23 17 CFR 240.19b–4(f)(6)(iii). 24 Id. 25 See Securities Exchange Act Release Nos. 77450 (March 25, 2016) (Order Approving SR– srobinson on DSK5SPTVN1PROD with NOTICES 21 15 VerDate Sep<11>2014 17:23 Jul 06, 2016 Jkt 238001 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.26 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 27 to determine whether the proposed rule change 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 No. SR–BX– 2016–035 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–BX–2016–035. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission’s Internet Web site (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 CBOE–2016–005); 77449 (March 25, 2016), 81 FR 18665, (March 31, 2016) (Order Approving SR– Phlx–2016–10). 26 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). 27 15 U.S.C. 78s(b)(2)(B). PO 00000 Frm 00120 Fmt 4703 Sfmt 4703 44377 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 information that you wish to make available publicly. All submissions should refer to File No. SR–BX–2016– 035 and should be submitted on or before July 28, 2016. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.28 Robert W. Errett, Deputy Secretary. [FR Doc. 2016–16026 Filed 7–6–16; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–78202; File No. SR–ISE Mercury–2016–12] Self-Regulatory Organizations; ISE Mercury, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Extend the Penny Pilot Program June 30, 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 June 29, 2016, ISE Mercury, LLC (the ‘‘Exchange’’ or ‘‘ISE Mercury’’) filed with the Securities and Exchange Commission the proposed rule change as described in Items I and II below, which items have been prepared by the self-regulatory organization. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. 28 17 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 1 15 E:\FR\FM\07JYN1.SGM 07JYN1

Agencies

[Federal Register Volume 81, Number 130 (Thursday, July 7, 2016)]
[Notices]
[Pages 44373-44377]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-16026]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-78199; File No. SR-BX-2016-035]


Self-Regulatory Organizations; NASDAQ BX, Inc.; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change to the Professional 
Designation

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, NASDAQ BX, Inc. (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.
---------------------------------------------------------------------------

    \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 Exchange 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 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

[[Page 44374]]

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(49) 
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\
---------------------------------------------------------------------------

    \3\ The term ``Public Customer'' means a person that is not a 
broker or dealer in securities. See Chapter I, Section 1(50).
    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \7\ All order types count toward the 390 orders on average per 
day.
---------------------------------------------------------------------------

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 [sic] 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.
---------------------------------------------------------------------------

    \8\ Cancel messages do not count as an order.
---------------------------------------------------------------------------

Parent/Child Orders
    An order that converts into multiple subordinate orders to achieve 
an execution strategy shall be counted as one order per side and 
series, even if the order is routed away.\9\ 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 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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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

[[Page 44375]]

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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
------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \11\ 15 U.S.C. 78f(b).
    \12\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    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 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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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 priority within the order Book and 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

[[Page 44376]]

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.
---------------------------------------------------------------------------

    \15\ See BX Rules at Chapter VI, Section 10 and Chapter XV, 
Section 2.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    Customer priority is one of the marketplace advantages provided to 
Public Customer orders on the Exchange. Customer priority means that 
Customer orders are given execution priority over non-Customer orders 
and quotations of specialists and BX Options Market Makers \17\ at the 
same price. Another 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.\18\ 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.\19\
---------------------------------------------------------------------------

    \17\ A BX Options Market Maker means an Options Participant 
registered with the Exchange for the purpose of making markets in 
options contracts traded on the Exchange and that is vested with the 
rights and responsibilities specified in Chapter VII of these Rules. 
See BX Rules at Chapter I, Section 1(a)(9).
    \18\ 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.
    \19\ 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.
---------------------------------------------------------------------------

    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 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

[[Page 44377]]

similar guidance.\20\ 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.
---------------------------------------------------------------------------

    \20\ See supra note 16.
---------------------------------------------------------------------------

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 \21\ and 
subparagraph (f)(6) of Rule 19b-4 thereunder.\22\ 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.\23\ 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.\24\
---------------------------------------------------------------------------

    \21\ 15 U.S.C. 78s(b)(3)(a)(iii).
    \22\ 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.
    \23\ 17 CFR 240.19b-4(f)(6)(iii).
    \24\ Id.
---------------------------------------------------------------------------

    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.\25\ 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.\26\
---------------------------------------------------------------------------

    \25\ 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).
    \26\ 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).
---------------------------------------------------------------------------

    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 \27\ to determine whether the proposed 
rule change should be approved or disapproved.
---------------------------------------------------------------------------

    \27\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

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 No. SR-BX-2016-035 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-BX-2016-035. This file 
number should be included on the subject line if email is used. To help 
the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's Internet Web site (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 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 information that you wish to make available publicly. All 
submissions should refer to File No. SR-BX-2016-035 and should be 
submitted on or before July 28, 2016.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\28\
---------------------------------------------------------------------------

    \28\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016-16026 Filed 7-6-16; 8:45 am]
 BILLING CODE 8011-01-P
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