Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Commentary .14 to Rule 3317 (Compliance With Regulation NMS Plan To Implement a Tick Size Pilot), 80134-80137 [2016-27366]

Download as PDF 80134 Federal Register / Vol. 81, No. 220 / Tuesday, November 15, 2016 / Notices continue to have regulatory authority over the Exchange, as is currently the case, as well as jurisdiction over CBOE Holdings with respect to activities related to the Exchange.11 The Exchange is proposing no changes to its existing operational and trading structure in connection with the Transaction. Upon Closing, the Exchange will operate in essentially the same manner as it operates today. Therefore, the Exchange believes it will continue to satisfy the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange. Electronic Comments B. Self-Regulatory Organization’s Statement on Burden on Competition The Exchange does not believe the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change relates to the corporate governance of CBOE Holdings— specifically a change in composition of the CBOE Holdings Board in connection with a corporate transaction—and not the operations of the Exchange. This is not a competitive filing and, therefore, imposes no burden on competition. All submissions should refer to File Number SR–C2–2016–022. 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 ubmissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR–C2– 2016–022, and should be submitted on or before December 6, 2016. C. Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others The Exchange neither solicited nor received comments on the proposed rule change. mstockstill on DSK3G9T082PROD with NOTICES III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Within 45 days of the date of publication of this notice in the Federal Register or within such longer period up to 90 days (i) as the Commission may designate if it finds such longer period to be appropriate and publishes its reasons for so finding or (ii) as to which the Exchange consents, the Commission will: A. By order approve or disapprove such proposed rule change, or B. institute proceedings to determine whether the proposed rule change should be disapproved. IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: 11 See, e.g., CBOE Holdings Certificate Article Fourteenth. VerDate Sep<11>2014 22:00 Nov 11, 2016 Jkt 241001 • Use the Commission’s Internet comment form (https://www.sec.gov/ rules/sro.shtml); or • Send an email to rulecomments@sec.gov. Please include File Number SR–C2–2016–022 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. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.12 Brent J. Fields, Secretary. [FR Doc. 2016–27372 Filed 11–14–16; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–79261; File No. SR–Phlx– 2016–110] Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Commentary .14 to Rule 3317 (Compliance With Regulation NMS Plan To Implement a Tick Size Pilot) November 8, 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 October 31, 2016, NASDAQ PHLX LLC (‘‘Phlx’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘SEC’’ or ‘‘Commission’’) the proposed rule change as described in Items I and II, below, which Items have been prepared by the Exchange. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to amend Commentary .14 to Rule 3317 (Compliance with Regulation NMS Plan to Implement a Tick Size Pilot) to provide the SEC with notice of its efforts to re-program its systems to eliminate a re-pricing functionality for certain orders in Test Group Three securities in connection with the Regulation NMS Plan to Implement a Tick Size Pilot Program (‘‘Plan’’ or ‘‘Pilot’’).3 The text of the proposed rule change is set forth below. Proposed new language is underlined; deleted text is in brackets. * * * * * NASDAQ PHLX Rules * * * (a) through (d) No Change. Commentary .01–.13 No change. .14 Until [October 31, 2016] November 14, 2016, the treatment of Price to Comply Orders, Price to Display Orders, Non-Displayed Orders, and 1 15 PO 00000 CFR 200.30–3(a)(12). Frm 00120 Fmt 4703 Sfmt 4703 * 3317. Compliance With Regulation NMS Plan To Implement a Tick Size Pilot U.S.C. 78s(b)(1). CFR 240.19b–4. 3 See Securities Exchange Act Release No. 74892 (May 6, 2015), 80 FR 27513 (May 13, 2015) (‘‘Approval Order’’). 2 17 12 17 * E:\FR\FM\15NON1.SGM 15NON1 Federal Register / Vol. 81, No. 220 / Tuesday, November 15, 2016 / Notices Post-Only Orders that are entered through the OUCH or FLITE protocols in Test Group Three securities shall be as follows: Following entry, and if market conditions allow, a Price to Comply Order in a Test Group Three Pilot Security will be adjusted repeatedly in accordance with changes to the NBBO until such time as the Price to Comply Order is able to be ranked and displayed at its original entered limit price. Following entry, and if market conditions allow, a Price to Display Order in a Test Group Three Pilot Security will be adjusted repeatedly in accordance with changes to the NBBO until such time as the Price to Display Order is able to be ranked and displayed at its original entered limit price. Following entry, and if market conditions allow, a Non-Displayed Order in a Test Group Three Pilot Security will be adjusted repeatedly in accordance with changes to the NBBO up (down) to the Order’s limit price. Following entry, and if market conditions allow, the Post-Only Order in a Test Group Three Pilot Security will be adjusted repeatedly in accordance with changes to the NBBO or the best price on the Exchange Book, as applicable until such time as the Post-Only Order is able to be ranked and displayed at its original entered limit price. * * * * * II. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements. mstockstill on DSK3G9T082PROD with NOTICES A. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose On September 7, 2016, the Exchange filed with the Securities and Exchange Commission (‘‘SEC’’ or ‘‘Commission’’) a proposed rule change (‘‘Proposal’’) to adopt paragraph (d) and Commentary .12 to Exchange Rule 3317 to describe changes to system functionality necessary to implement the Plan. The VerDate Sep<11>2014 22:00 Nov 11, 2016 Jkt 241001 Exchange also proposed amendments to Rule 3317(a) and (c) to clarify how the Trade-at exception may be satisfied. The SEC published the Proposal in the Federal Register for notice and comment on September 20, 2016.4 Phlx subsequently filed three Partial Amendments to clarify aspects of the Proposal. The Commission approved the Proposal, as amended, on October 7, 2016.5 In SR–Phlx–2016–92, Phlx had initially proposed a re-pricing functionality for Price to Comply Orders, Non-Displayed Orders, and Post-Only Orders entered through the OUCH and FLITE protocols in Group Three securities.6 Phlx subsequently determined that it would not offer this re-pricing functionality for Price to Comply Orders, Non-Displayed Orders, and Post-Only Orders entered through the OUCH and FLITE protocols in Group Three securities. As part of Partial Amendment No. 2 to SR–Phlx– 2016–92, Phlx proposed to delete the relevant language from Rule 3317 related to this re-pricing functionality. In that amendment, Phlx noted that this change would only impact the treatment of Price to Comply Orders, Non-Displayed Orders, and Post-Only orders that are submitted through the OUCH and FLITE protocols in Test Group Three Pilot Securities, as these types of Orders that are currently submitted to Phlx through the RASH or FIX protocols are already subject to this re-pricing functionality and will remain subject to this functionality under the Pilot. In the Amendment, Phlx further noted that its systems are currently programmed so that Price to Comply Orders, Non-Displayed Orders and PostOnly Orders entered through the OUCH and FLITE protocols in Test Group Three Securities may be adjusted repeatedly to reflect changes to the 4 See Securities Exchange Act Release No. 78835 (September 14, 2016), 81 FR 64552 (September 20, 2016) (SR–Phlx–2016–92). 5 See Securities Exchange Act Release No. 79074 (October 7, 2016) (SR–Phlx–2016–92). 6 As originally proposed, Rule 3317(d)(2) stated that Price to Comply Orders in a Test Group Three Pilot Security will be adjusted repeatedly in accordance with changes to the NBBO until such time as the Price to Comply Order is able to be ranked and displayed at its original entered limit price. Rule 3317(d)(3) stated that, if market conditions allow, a Non-Displayed Order in a Test Group Three Pilot Security will be adjusted repeatedly in accordance with changes to the NBBO up (down) to the Order’s limit price. Rule 3317(d)(4) stated that, if market conditions allow, the Post-Only Order in a Test Group Three Pilot Security will be adjusted repeatedly in accordance with changes to the NBBO or the best price on the Phlx Book, as applicable until such time as the Post-Only Order is able to be ranked and displayed at its original entered limit price. PO 00000 Frm 00121 Fmt 4703 Sfmt 4703 80135 NBBO and/or the best price on the Phlx book. Phlx stated that it is reprogramming its systems to remove this functionality for Price to Comply Orders, Non-Displayed Orders and PostOnly Orders entered through the OUCH and FLITE protocols in Test Group Three Securities. In the Amendment, Phlx stated that it anticipated that this re-programming shall be completed no later than November 30, 2016. If it appears that this functionality will remain operational by October 17, 2016, Phlx indicated that it would file a proposed rule change with the SEC and will provide notice to market participants sufficiently in advance of that date to provide effective notice. The rule change and the notice to market participants will describe the current operation of the Phlx systems in this regard, and the timing related to the reprogramming. On October 17, 2016, Phlx filed a proposal to extend the date by which it would complete the re-programing of its systems to eliminate the re-pricing functionality in Test Group Three securities for Price to Comply Orders, Price to Display Orders, Non-Displayed Orders, and Post-Only Orders that are entered through the OUCH or FLITE protocols.7 In that proposal, Phlx stated that it anticipated that this reprogramming shall be complete on or before October 31, 2016.8 At this time, Phlx is still determining how to modify its systems to eliminate the current re-pricing functionality in Test Group Three securities for Price to Comply Orders, Price to Display Orders, Non-Displayed Orders, and Post-Only Orders that are entered through the OUCH or FLITE protocols. Phlx is therefore submitting this proposal to extend the date by which the current repricing functionality will be eliminated. Phlx anticipates that the reprogramming to eliminate the current re-pricing functionality shall be completed on or before November 14, 2016. Therefore, the current treatment of Price to Comply Orders, Price to Display Orders, Non-Displayed Orders, and Post-Only Orders that are entered through the OUCH or FLITE protocols 7 See Securities Exchange Act Release No. 79156 (October 25, 2016) (SR–Phlx–2016–106). Subsequent to the approval of SR–Phlx–2016–92, Phlx become aware that this re-pricing functionality also applies to Price to Display Orders that are entered through the OUCH and FLITE protocols in Test Group Three Securities, and included those Orders as part of SR–Phlx–2016–106 accordingly. Price to Display Orders will be treated in the same manner as Price to Comply Orders under the repricing functionality. 8 Id. E:\FR\FM\15NON1.SGM 15NON1 80136 Federal Register / Vol. 81, No. 220 / Tuesday, November 15, 2016 / Notices in Test Group Three securities shall be as follows: Following entry, and if market conditions allow, a Price to Comply Order in a Test Group Three Pilot Security will be adjusted repeatedly in accordance with changes to the NBBO until such time as the Price to Comply Order is able to be ranked and displayed at its original entered limit price. Following entry, and if market conditions allow, a Price to Display Order in a Test Group Three Pilot Security will be adjusted repeatedly in accordance with changes to the NBBO until such time as the Price to Display Order is able to be ranked and displayed at its original entered limit price. Following entry, and if market conditions allow, a Non-Displayed Order in a Test Group Three Pilot Security will be adjusted repeatedly in accordance with changes to the NBBO up (down) to the Order’s limit price. Following entry, and if market conditions allow, a Post-Only Order in a Test Group Three Pilot Security will be adjusted repeatedly in accordance with changes to the NBBO or the best price on the Phlx Book, as applicable until such time as the Post-Only Order is able to be ranked and displayed at its original entered limit price. mstockstill on DSK3G9T082PROD with NOTICES 2. Statutory Basis The Exchange believes that its proposal is consistent with Section 6(b) of the Act,9 in general, and furthers the objectives of Section 6(b)(5) of the Act,10 in particular, in that it is designed to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general to protect investors and the public interest. The purpose of this filing is to inform the SEC and market participants of the status of Phlx’s attempts to re-program its systems to remove the re-pricing functionality in Test Group Three securities for Price to Comply Orders, Price to Display Orders, Non-Displayed Orders, and Post-Only Orders that are entered through the OUCH or FLITE protocols, and the current treatment of such orders pending the removal of this functionality. This proposal is consistent with the Act because it provides the SEC and market participants with notice of Phlx’s efforts in this regard, and is being submitted in connection with the statements made by Phlx in SR–Phlx–2016–92 and SR– 9 15 U.S.C. 78f(b). U.S.C. 78f(b)(5). 10 15 VerDate Sep<11>2014 22:00 Nov 11, 2016 Jkt 241001 Phlx–2016–106 in proposing the removal of this functionality. Phlx also believes that the proposal is consistent with the Act because the repricing functionality will not significantly impact the data gathered pursuant to the Pilot. Phlx notes that this re-pricing functionality only affects Price to Comply Orders, Price to Display Orders, Non-Displayed Orders, and Post-Only Orders that are entered through the OUCH or FLITE protocols for Test Group Three securities until the re-pricing functionality is eliminated, and only becomes relevant when an Order in a Test Group Three security would cross a Protected Quotation of another market center. Phlx has analyzed data relating to the frequency with which Orders in Test Group Three securities are entered with a limit price that would cross a Protected Quotation of another market center, and believes that the re-pricing functionality will be triggered infrequently once Test Group Three becomes fully operational.11 The Exchange also notes that it is diligently working to eliminate the current repricing functionality in Test Group Three securities for Price to Comply Orders, Price to Display Orders, NonDisplayed Orders, and Post-Only Orders that are entered through the OUCH or FLITE protocols, and that it anticipates this re-programming to be complete on or before November 14, 2016. B. Self-Regulatory Organization’s Statement on Burden on Competition The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The purpose of this proposal is to provide the SEC and market participants with notice of Phlx’s efforts to remove its re-pricing functionality in Test Group Three securities for Price to Comply Orders, Price to Display Orders, Non-Displayed Orders, and Post-Only Orders that are entered through the OUCH or FLITE protocols, consistent with its statements in SR–Phlx–2016–92 and SR–Phlx– 2016–106. 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 12 and subparagraph (f)(6) of Rule 19b–4 thereunder.13 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. 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. The Exchange requests that the Commission waive the 30-day operative delay contained in Rule 19b–4(f)(6)(iii) so that this proposed change will be in operative as of October 31, 2016, the date that Test Group Three securities are fully implemented and are subject to the quoting and trading restrictions of the Plan and, therefore, the relevant language in Rule 3317. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest because it will allow the Exchange to implement the proposed rules immediately thereby preventing delays in the implementation of the Plan. The Commission notes that the Pilot started implementation on October 3, 2016, Test Group Three securities were fully phased into the Pilot on October 31, 2016, and waiving the 30-day operative delay would ensure that the rules of the Exchange would be in place during implementation. Therefore, the Commission hereby waives the 30-day operative delay and designates the proposed rule change to be operative upon filing with the Commission.14 At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in 12 15 U.S.C. 78s(b)(3)(A)(iii). CFR 240.19b–4(f)(6). 14 For purposes only of waiving the operative delay for this proposal, the Commission has considered the proposed rule’s impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). 13 17 11 For example, on October 31, 2016, in the one hundred Test Group Three securities that are currently live, 0.06% of orders that were entered on the NASDAQ Stock Market LLC in those securities were entered at a price that crossed the NBBO. PO 00000 Frm 00122 Fmt 4703 Sfmt 4703 E:\FR\FM\15NON1.SGM 15NON1 Federal Register / Vol. 81, No. 220 / Tuesday, November 15, 2016 / Notices 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. [FR Doc. 2016–27366 Filed 11–14–16; 8:45 am] IV. Solicitation of Comments BILLING CODE 8011–01–P 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– Phlx–2016–110 on the subject line. Paper Comments mstockstill on DSK3G9T082PROD with NOTICES • 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–Phlx–2016–110. 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–Phlx– 2016–110, and should be submitted on or before December 6, 2016. VerDate Sep<11>2014 22:00 Nov 11, 2016 Jkt 241001 For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.15 Brent J. Fields, Secretary. SECURITIES AND EXCHANGE COMMISSION [Release No. 34–79270; File No. SR– NASDAQ–2016–153] Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 7014 and the Nasdaq Growth Program November 8, 2016. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’),1 and Rule 19b–4 thereunder,2 notice is hereby given that on November 1, 2016, The NASDAQ Stock Market LLC (‘‘Nasdaq’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘SEC’’ or ‘‘Commission’’) the proposed rule change as described in Items I, II, and III, below, which Items have been prepared by the Exchange. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to amend Nasdaq Rule 7014, Market Quality Incentive Programs, to modify the volume threshold for the method under which members may currently qualify for the Nasdaq Growth Program (‘‘Program’’). The Exchange also proposes to add another method through which members may qualify for the Program, and to modify the manner in which a member’s Growth Baseline is updated. The text of the proposed rule change is available on the Exchange’s Web site at https://nasdaq.cchwallstreet.com, at the principal office of the Exchange, and at the Commission’s Public Reference Room. II. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements 15 17 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 1 15 PO 00000 Frm 00123 Fmt 4703 Sfmt 4703 80137 concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose The Exchange proposes to amend Nasdaq Rule 7014, Market Quality Incentive Programs, to modify the volume threshold for the method under which members may currently qualify for the Program. The Exchange also proposes to add another method through which members may qualify for the Nasdaq Growth Program (‘‘Program’’), and to modify the manner in which a member’s Growth Baseline is updated. Nasdaq recently introduced the Nasdaq Growth Program.3 The purpose of the Program is to provide a credit per share executed for members that meet certain growth criteria. The credit is designed to provide an incentive to members that do not qualify for other credits under Rule 7018 in excess of the Program credit to increase their participation on the Exchange. The Program will provide a member a $0.0025 per share executed credit in securities priced $1 or more per share if the member meets certain criteria. The credit will be provided in lieu of other credits provided to the member for displayed quotes/orders (other than Supplemental Orders or Designated Retail Orders) that provide liquidity under Rule 7018, if the credit under the Nasdaq Growth Program is greater than the credit attained under Rule 7018. To be eligible for the credit a member must: (i) Add greater than 750,000 shares a day on average during the month through one or more of its Nasdaq Market Center MPIDs; and (ii) increase its shares of liquidity provided through one or more of its Nasdaq Market Center MPIDs as a percent of Consolidated Volume by 25% versus the member’s Growth Baseline.4 3 See Securities Exchange Act Release No. 78977 (September 29, 2016), 81 FR 69140 (October 5, 2016) (SR–NASDAQ–2016–132). 4 As part of this proposed rule change, Nasdaq is amending the rule text to add the conjunctive ‘‘and’’ between these two conditions to make clear that a member must satisfy both conditions in order to qualify for the Program. E:\FR\FM\15NON1.SGM 15NON1

Agencies

[Federal Register Volume 81, Number 220 (Tuesday, November 15, 2016)]
[Notices]
[Pages 80134-80137]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-27366]


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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-79261; File No. SR-Phlx-2016-110]


Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To Amend Commentary 
.14 to Rule 3317 (Compliance With Regulation NMS Plan To Implement a 
Tick Size Pilot)

November 8, 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 October 31, 2016, NASDAQ PHLX LLC (``Phlx'' or ``Exchange'') filed 
with the Securities and Exchange Commission (``SEC'' or ``Commission'') 
the proposed rule change as described in Items I and II, below, which 
Items have been prepared by the Exchange. The Commission is publishing 
this notice to solicit comments on the proposed rule change from 
interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend Commentary .14 to Rule 3317 
(Compliance with Regulation NMS Plan to Implement a Tick Size Pilot) to 
provide the SEC with notice of its efforts to re-program its systems to 
eliminate a re-pricing functionality for certain orders in Test Group 
Three securities in connection with the Regulation NMS Plan to 
Implement a Tick Size Pilot Program (``Plan'' or ``Pilot'').\3\
---------------------------------------------------------------------------

    \3\ See Securities Exchange Act Release No. 74892 (May 6, 2015), 
80 FR 27513 (May 13, 2015) (``Approval Order'').
---------------------------------------------------------------------------

    The text of the proposed rule change is set forth below. Proposed 
new language is underlined; deleted text is in brackets.
* * * * *

NASDAQ PHLX Rules

* * * * *

3317. Compliance With Regulation NMS Plan To Implement a Tick Size 
Pilot

    (a) through (d) No Change.

Commentary

    .01-.13 No change.
    .14 Until [October 31, 2016] November 14, 2016, the treatment of 
Price to Comply Orders, Price to Display Orders, Non-Displayed Orders, 
and

[[Page 80135]]

Post-Only Orders that are entered through the OUCH or FLITE protocols 
in Test Group Three securities shall be as follows:
    Following entry, and if market conditions allow, a Price to Comply 
Order in a Test Group Three Pilot Security will be adjusted repeatedly 
in accordance with changes to the NBBO until such time as the Price to 
Comply Order is able to be ranked and displayed at its original entered 
limit price.
    Following entry, and if market conditions allow, a Price to Display 
Order in a Test Group Three Pilot Security will be adjusted repeatedly 
in accordance with changes to the NBBO until such time as the Price to 
Display Order is able to be ranked and displayed at its original 
entered limit price.
    Following entry, and if market conditions allow, a Non-Displayed 
Order in a Test Group Three Pilot Security will be adjusted repeatedly 
in accordance with changes to the NBBO up (down) to the Order's limit 
price.
    Following entry, and if market conditions allow, the Post-Only 
Order in a Test Group Three Pilot Security will be adjusted repeatedly 
in accordance with changes to the NBBO or the best price on the 
Exchange Book, as applicable until such time as the Post-Only Order is 
able to be ranked and displayed at its original entered limit price.
* * * * *

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

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

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

1. Purpose
    On September 7, 2016, the Exchange filed with the Securities and 
Exchange Commission (``SEC'' or ``Commission'') a proposed rule change 
(``Proposal'') to adopt paragraph (d) and Commentary .12 to Exchange 
Rule 3317 to describe changes to system functionality necessary to 
implement the Plan. The Exchange also proposed amendments to Rule 
3317(a) and (c) to clarify how the Trade-at exception may be satisfied. 
The SEC published the Proposal in the Federal Register for notice and 
comment on September 20, 2016.\4\ Phlx subsequently filed three Partial 
Amendments to clarify aspects of the Proposal. The Commission approved 
the Proposal, as amended, on October 7, 2016.\5\
---------------------------------------------------------------------------

    \4\ See Securities Exchange Act Release No. 78835 (September 14, 
2016), 81 FR 64552 (September 20, 2016) (SR-Phlx-2016-92).
    \5\ See Securities Exchange Act Release No. 79074 (October 7, 
2016) (SR-Phlx-2016-92).
---------------------------------------------------------------------------

    In SR-Phlx-2016-92, Phlx had initially proposed a re-pricing 
functionality for Price to Comply Orders, Non-Displayed Orders, and 
Post-Only Orders entered through the OUCH and FLITE protocols in Group 
Three securities.\6\ Phlx subsequently determined that it would not 
offer this re-pricing functionality for Price to Comply Orders, Non-
Displayed Orders, and Post-Only Orders entered through the OUCH and 
FLITE protocols in Group Three securities. As part of Partial Amendment 
No. 2 to SR-Phlx-2016-92, Phlx proposed to delete the relevant language 
from Rule 3317 related to this re-pricing functionality.
---------------------------------------------------------------------------

    \6\ As originally proposed, Rule 3317(d)(2) stated that Price to 
Comply Orders in a Test Group Three Pilot Security will be adjusted 
repeatedly in accordance with changes to the NBBO until such time as 
the Price to Comply Order is able to be ranked and displayed at its 
original entered limit price. Rule 3317(d)(3) stated that, if market 
conditions allow, a Non-Displayed Order in a Test Group Three Pilot 
Security will be adjusted repeatedly in accordance with changes to 
the NBBO up (down) to the Order's limit price. Rule 3317(d)(4) 
stated that, if market conditions allow, the Post-Only Order in a 
Test Group Three Pilot Security will be adjusted repeatedly in 
accordance with changes to the NBBO or the best price on the Phlx 
Book, as applicable until such time as the Post-Only Order is able 
to be ranked and displayed at its original entered limit price.
---------------------------------------------------------------------------

    In that amendment, Phlx noted that this change would only impact 
the treatment of Price to Comply Orders, Non-Displayed Orders, and 
Post-Only orders that are submitted through the OUCH and FLITE 
protocols in Test Group Three Pilot Securities, as these types of 
Orders that are currently submitted to Phlx through the RASH or FIX 
protocols are already subject to this re-pricing functionality and will 
remain subject to this functionality under the Pilot.
    In the Amendment, Phlx further noted that its systems are currently 
programmed so that Price to Comply Orders, Non-Displayed Orders and 
Post-Only Orders entered through the OUCH and FLITE protocols in Test 
Group Three Securities may be adjusted repeatedly to reflect changes to 
the NBBO and/or the best price on the Phlx book. Phlx stated that it is 
re-programming its systems to remove this functionality for Price to 
Comply Orders, Non-Displayed Orders and Post-Only Orders entered 
through the OUCH and FLITE protocols in Test Group Three Securities. In 
the Amendment, Phlx stated that it anticipated that this re-programming 
shall be completed no later than November 30, 2016. If it appears that 
this functionality will remain operational by October 17, 2016, Phlx 
indicated that it would file a proposed rule change with the SEC and 
will provide notice to market participants sufficiently in advance of 
that date to provide effective notice. The rule change and the notice 
to market participants will describe the current operation of the Phlx 
systems in this regard, and the timing related to the re-programming.
    On October 17, 2016, Phlx filed a proposal to extend the date by 
which it would complete the re-programing of its systems to eliminate 
the re-pricing functionality in Test Group Three securities for Price 
to Comply Orders, Price to Display Orders, Non-Displayed Orders, and 
Post-Only Orders that are entered through the OUCH or FLITE 
protocols.\7\ In that proposal, Phlx stated that it anticipated that 
this re-programming shall be complete on or before October 31, 2016.\8\
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    \7\ See Securities Exchange Act Release No. 79156 (October 25, 
2016) (SR-Phlx-2016-106). Subsequent to the approval of SR-Phlx-
2016-92, Phlx become aware that this re-pricing functionality also 
applies to Price to Display Orders that are entered through the OUCH 
and FLITE protocols in Test Group Three Securities, and included 
those Orders as part of SR-Phlx-2016-106 accordingly. Price to 
Display Orders will be treated in the same manner as Price to Comply 
Orders under the re-pricing functionality.
    \8\ Id.
---------------------------------------------------------------------------

    At this time, Phlx is still determining how to modify its systems 
to eliminate the current re-pricing functionality in Test Group Three 
securities for Price to Comply Orders, Price to Display Orders, Non-
Displayed Orders, and Post-Only Orders that are entered through the 
OUCH or FLITE protocols. Phlx is therefore submitting this proposal to 
extend the date by which the current re-pricing functionality will be 
eliminated. Phlx anticipates that the re-programming to eliminate the 
current re-pricing functionality shall be completed on or before 
November 14, 2016.
    Therefore, the current treatment of Price to Comply Orders, Price 
to Display Orders, Non-Displayed Orders, and Post-Only Orders that are 
entered through the OUCH or FLITE protocols

[[Page 80136]]

in Test Group Three securities shall be as follows:
    Following entry, and if market conditions allow, a Price to Comply 
Order in a Test Group Three Pilot Security will be adjusted repeatedly 
in accordance with changes to the NBBO until such time as the Price to 
Comply Order is able to be ranked and displayed at its original entered 
limit price.
    Following entry, and if market conditions allow, a Price to Display 
Order in a Test Group Three Pilot Security will be adjusted repeatedly 
in accordance with changes to the NBBO until such time as the Price to 
Display Order is able to be ranked and displayed at its original 
entered limit price.
    Following entry, and if market conditions allow, a Non-Displayed 
Order in a Test Group Three Pilot Security will be adjusted repeatedly 
in accordance with changes to the NBBO up (down) to the Order's limit 
price.
    Following entry, and if market conditions allow, a Post-Only Order 
in a Test Group Three Pilot Security will be adjusted repeatedly in 
accordance with changes to the NBBO or the best price on the Phlx Book, 
as applicable until such time as the Post-Only Order is able to be 
ranked and displayed at its original entered limit price.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act,\9\ in general, and furthers the objectives of Section 
6(b)(5) of the Act,\10\ in particular, in that it is designed to 
promote just and equitable principles of trade, to remove impediments 
to and perfect the mechanism of a free and open market and a national 
market system, and, in general to protect investors and the public 
interest. The purpose of this filing is to inform the SEC and market 
participants of the status of Phlx's attempts to re-program its systems 
to remove the re-pricing functionality in Test Group Three securities 
for Price to Comply Orders, Price to Display Orders, Non-Displayed 
Orders, and Post-Only Orders that are entered through the OUCH or FLITE 
protocols, and the current treatment of such orders pending the removal 
of this functionality. This proposal is consistent with the Act because 
it provides the SEC and market participants with notice of Phlx's 
efforts in this regard, and is being submitted in connection with the 
statements made by Phlx in SR-Phlx-2016-92 and SR-Phlx-2016-106 in 
proposing the removal of this functionality.
---------------------------------------------------------------------------

    \9\ 15 U.S.C. 78f(b).
    \10\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    Phlx also believes that the proposal is consistent with the Act 
because the re-pricing functionality will not significantly impact the 
data gathered pursuant to the Pilot. Phlx notes that this re-pricing 
functionality only affects Price to Comply Orders, Price to Display 
Orders, Non-Displayed Orders, and Post-Only Orders that are entered 
through the OUCH or FLITE protocols for Test Group Three securities 
until the re-pricing functionality is eliminated, and only becomes 
relevant when an Order in a Test Group Three security would cross a 
Protected Quotation of another market center. Phlx has analyzed data 
relating to the frequency with which Orders in Test Group Three 
securities are entered with a limit price that would cross a Protected 
Quotation of another market center, and believes that the re-pricing 
functionality will be triggered infrequently once Test Group Three 
becomes fully operational.\11\ The Exchange also notes that it is 
diligently working to eliminate the current re-pricing functionality in 
Test Group Three securities for Price to Comply Orders, Price to 
Display Orders, Non-Displayed Orders, and Post-Only Orders that are 
entered through the OUCH or FLITE protocols, and that it anticipates 
this re-programming to be complete on or before November 14, 2016.
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    \11\ For example, on October 31, 2016, in the one hundred Test 
Group Three securities that are currently live, 0.06% of orders that 
were entered on the NASDAQ Stock Market LLC in those securities were 
entered at a price that crossed the NBBO.
---------------------------------------------------------------------------

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

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition not necessary or appropriate in 
furtherance of the purposes of the Act. The purpose of this proposal is 
to provide the SEC and market participants with notice of Phlx's 
efforts to remove its re-pricing functionality in Test Group Three 
securities for Price to Comply Orders, Price to Display Orders, Non-
Displayed Orders, and Post-Only Orders that are entered through the 
OUCH or FLITE protocols, consistent with its statements in SR-Phlx-
2016-92 and SR-Phlx-2016-106.

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 \12\ and 
subparagraph (f)(6) of Rule 19b-4 thereunder.\13\
---------------------------------------------------------------------------

    \12\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \13\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

    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. 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. The Exchange requests that the 
Commission waive the 30-day operative delay contained in Rule 19b-
4(f)(6)(iii) so that this proposed change will be in operative as of 
October 31, 2016, the date that Test Group Three securities are fully 
implemented and are subject to the quoting and trading restrictions of 
the Plan and, therefore, the relevant language in Rule 3317.
    The Commission believes that waiving the 30-day operative delay is 
consistent with the protection of investors and the public interest 
because it will allow the Exchange to implement the proposed rules 
immediately thereby preventing delays in the implementation of the 
Plan. The Commission notes that the Pilot started implementation on 
October 3, 2016, Test Group Three securities were fully phased into the 
Pilot on October 31, 2016, and waiving the 30-day operative delay would 
ensure that the rules of the Exchange would be in place during 
implementation. Therefore, the Commission hereby waives the 30-day 
operative delay and designates the proposed rule change to be operative 
upon filing with the Commission.\14\
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    \14\ For purposes only of waiving the operative delay for this 
proposal, 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 the proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is: (i) 
Necessary or appropriate in the public interest; (ii) for the 
protection of investors; or (iii) otherwise in

[[Page 80137]]

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-Phlx-2016-110 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-Phlx-2016-110. 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-Phlx-2016-110, and should be 
submitted on or before December 6, 2016.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\15\
---------------------------------------------------------------------------

    \15\ 17 CFR 200.30-3(a)(12).
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Brent J. Fields,
Secretary.
[FR Doc. 2016-27366 Filed 11-14-16; 8:45 am]
 BILLING CODE 8011-01-P
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