Self-Regulatory Organizations; Nasdaq ISE, LLC; Notice of Filing of Proposed Rule Change To Eliminate Requirements That Will Be Duplicative of CAT, 25469-25472 [2017-11363]
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Federal Register / Vol. 82, No. 104 / Thursday, June 1, 2017 / Notices
The purchase of Creation Units by a
Fund of Funds directly from a Fund will
be accomplished in accordance with the
policies of the Fund of Funds and will
be based on the NAVs of the Funds.
9. Applicants also request relief to
permit a Feeder Fund to acquire shares
of another registered investment
company managed by the Adviser
having substantially the same
investment objectives as the Feeder
Fund (‘‘Master Fund’’) beyond the
limitations in section 12(d)(1)(A) and
permit the Master Fund, and any
principal underwriter for the Master
Fund, to sell shares of the Master Fund
to the Feeder Fund beyond the
limitations in section 12(d)(1)(B).
10. Section 6(c) of the Act permits the
Commission to exempt any persons or
transactions from any provision of the
Act if such exemption is necessary or
appropriate in the public interest and
consistent with the protection of
investors and the purposes fairly
intended by the policy and provisions of
the Act. Section 12(d)(1)(J) of the Act
provides that the Commission may
exempt any person, security, or
transaction, or any class or classes of
persons, securities, or transactions, from
any provision of section 12(d)(1) if the
exemption is consistent with the public
interest and the protection of investors.
Section 17(b) of the Act authorizes the
Commission to grant an order
permitting a transaction otherwise
prohibited by section 17(a) if it finds
that (a) the terms of the proposed
transaction are fair and reasonable and
do not involve overreaching on the part
of any person concerned; (b) the
proposed transaction is consistent with
the policies of each registered
investment company involved; and (c)
the proposed transaction is consistent
with the general purposes of the Act.
For the Commission, by the Division of
Investment Management, under delegated
authority.
Eduardo A. Aleman,
Assistant Secretary.
[Release No. 34–80787; File No. SR–ISE–
2017–46]
Self-Regulatory Organizations; Nasdaq
ISE, LLC; Notice of Filing of Proposed
Rule Change To Eliminate
Requirements That Will Be Duplicative
of CAT
May 26, 2017.
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 May 15,
2017, Nasdaq ISE, LLC (‘‘ISE’’ 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
Rule 1404 (the ‘‘EBS Rule’’), as the EBS
Rule provides for the collection of
information that is duplicative of the
data collection requirements of the
Consolidated Audit Trail (‘‘CAT’’)
adopted pursuant to the National
Market System Plan Governing the
Consolidated Audit Trail (the ‘‘CAT
NMS Plan’’ or ‘‘Plan’’).3
The text of the proposed rule change
is available on the Exchange’s Web site
at www.ise.com, at the principal office
of the Exchange, and at the
Commission’s Public Reference Room.
II. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
In its filing with the Commission, the
Exchange included statements
concerning the purpose of and basis for
the proposed rule change and discussed
any comments it received on the
proposed rule change. The text of these
statements may be examined at the
places specified in Item IV below. The
Exchange has prepared summaries, set
forth in sections A, B, and C below, of
the most significant aspects of such
statements.
[FR Doc. 2017–11242 Filed 5–31–17; 8:45 am]
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SECURITIES AND EXCHANGE
COMMISSION
1 15
Fund of Funds because an Adviser or an entity
controlling, controlled by or under common control
with an Adviser provides investment advisory
services to that Fund of Funds.
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U.S.C. 78s(b)(1).
CFR 240.19b–4.
3 Unless otherwise specified, capitalized terms
used in this rule filing are defined as set forth
herein, or in the CAT Compliance Rule Series or in
the CAT NMS Plan.
2 17
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25469
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
1. Purpose
Bats BYX Exchange, Inc., Bats BZX
Exchange, Inc., Bats EDGA Exchange,
Inc., Bats EDGX Exchange, Inc., BOX
Options Exchange LLC, C2 Options
Exchange, Incorporated, Chicago Board
Options Exchange, Incorporated,
Chicago Stock Exchange, Inc., Financial
Industry Regulatory Authority, Inc.
(‘‘FINRA’’), Investors’ Exchange LLC,
Miami International Securities
Exchange, LLC, MIAX PEARL, LLC,
NASDAQ BX, Inc., Nasdaq GEMX, LLC,
Nasdaq ISE, LLC, Nasdaq MRX, LLC,4
NASDAQ PHLX LLC, The NASDAQ
Stock Market LLC, New York Stock
Exchange LLC, NYSE MKT LLC, NYSE
Arca, Inc. and NYSE National, Inc.5
(collectively, the ‘‘Participants’’) filed
with the Commission, pursuant to
Section 11A of the Exchange Act 6 and
Rule 608 of Regulation NMS
thereunder,7 CAT NMS Plan.8 The
Participants filed the Plan to comply
with Rule 613 of Regulation NMS under
the Exchange Act. The Plan was
published for comment in the Federal
Register on May 17, 2016,9 and
approved by the Commission, as
modified, on November 15, 2016.10 On
March 15, 2017, the Commission
approved the new Rule 900 Series to
implement provisions of the CAT NMS
Plan that are applicable to ISE
members.11
The Plan is designed to create,
implement and maintain a CAT that
4 ISE Gemini, LLC, ISE Mercury, LLC and
International Securities Exchange, LLC have been
renamed Nasdaq GEMX, LLC, Nasdaq MRX, LLC,
and Nasdaq ISE, LLC, respectively. See Securities
Exchange Act Release No. 80248 (March 15, 2017),
82 FR. 14547 (March 21, 2017); Securities Exchange
Act Release No. 80326 (March 29, 2017), 82 FR
16460 (April 4, 2017); and Securities Exchange Act
Release No. 80325 (March 29, 2017), 82 FR 16445
(Apr. 4, 2017).
5 National Stock Exchange, Inc. has been renamed
NYSE National, Inc. See Securities Exchange Act
Release No. 79902 (January 30, 2017), 82 FR 9258
(February 3, 2017).
6 15 U.S.C. 78k–1.
7 17 CFR 242.608.
8 See Letter from the Participants to Brent J.
Fields, Secretary, Commission, dated September 30,
2014; and Letter from Participants to Brent J. Fields,
Secretary, Commission, dated February 27, 2015.
On December 24, 2015, the Participants submitted
an amendment to the CAT NMS Plan. See Letter
from Participants to Brent J. Fields, Secretary,
Commission, dated December 23, 2015.
9 Securities Exchange Act Release No. 77724
(April 27, 2016), 81 FR 30614 (May 17, 2016).
10 Securities Exchange Act Release No. 79318
(Nov. 15, 2016), 81 FR 84696 (November 23, 2016)
(‘‘Approval Order’’).
11 See Securities Exchange Act Release No. 80256
(March 15, 2017), 82 FR 14526 (March 21, 2017)
(SR–ISE–2017–08).
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would capture customer and order event
information for orders in NMS
Securities and OTC Equity Securities,
across all markets, from the time of
order inception through routing,
cancellation, modification, or execution
in a single consolidated data source.
Pursuant to Appendix C of the CAT
NMS Plan, each Participant is required
to conduct analyses of which of its
existing trade and order data rules and
systems require the collection of
information that is duplicative of
information collected for the CAT.12 In
addition, among other things, Section
C.9 of Appendix C to the Plan, as
modified by the Commission, requires
each Participant to ‘‘file with the SEC
the relevant rule change filing to
eliminate or modify its duplicative rules
within six (6) months of the SEC’s
approval of the CAT NMS Plan.’’ 13 The
Plan notes that ‘‘the elimination of such
rules and the retirement of such systems
[will] be effective at such time as CAT
Data meets minimum standards of
accuracy and reliability.’’ 14 ISE has
determined that the EBS Rule is affected
by the implementation of the CAT and,
therefore, is filing this proposed rule
change.
The EBS Rule is the Exchange’s rule
regarding the automated submission of
specific trading data to ISE upon request
using the Electronic Blue Sheet (‘‘EBS’’)
system. Rule 1404 require members to
submit certain trade information as
prescribed by the Exchange, including,
for proprietary transactions, the clearing
house number or alpha symbol of the
member submitting the data, the
identifying symbol assigned to the
security, and the date the transaction
was executed.15
Once broker-dealer reporting to the
CAT has begun, the CAT will contain
the data the Participants would
otherwise have requested via the EBS
system for purposes of NMS Securities
and OTC Equity Securities.
Consequently, the Exchange will not
need to use the EBS system or request
information pursuant to the EBS Rule
for NMS Securities or OTC Equity
Securities for time periods after CAT
reporting has begun if the appropriate
accuracy and reliability thresholds are
achieved, including an acceptable
accuracy rate for customer and account
information. However, the EBS Rule
cannot be completely eliminated
immediately upon the CAT achieving
12 Appendix
C of CAT NMS Plan, Approval Order
at 85010.
13 Id.
14 Id.
15 The Exchange notes that both the rules of
Nasdaq MRX, LLC and Nasdaq GEMX, LLC
incorporate Rule 1404 by reference.
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the appropriate thresholds because
Exchange staff may still need to request
information pursuant to the EBS Rule
for trading activity occurring before a
member was reporting to the CAT.16
The proposed rule change proposes to
add new Supplementary Material to the
EBS Rule to clarify how the Exchange
will request data under these rules after
members are reporting to the CAT.
Specifically, the proposed
Supplementary Material to the EBS Rule
will note that the Exchange will request
information under the EBS Rule only if
the information is not available in the
CAT because, for example, the
transactions in question occurred before
the firm was reporting information to
the CAT or involved securities that are
not reportable to the CAT. In essence,
under the new Supplementary Material,
the Exchange will make requests under
these rules if and only if the information
is not otherwise available through the
CAT.
The CAT NMS Plan states, however,
that the elimination of rules that are
duplicative of the requirements of the
CAT and the retirement of the related
systems should be effective at such time
as CAT Data meets minimum standards
of accuracy and reliability.17
Accordingly, as discussed in more detail
below, the Exchange believes that the
EBS data may be replaced by CAT Data
at a date after all Industry Members are
reporting to the CAT when the proposed
error rate thresholds have been met, and
the Exchange has determined that its
usage of the CAT Data has not revealed
material issues that have not been
corrected, confirmed that the CAT
includes all data necessary to allow the
Exchange to continue to meet its
surveillance obligations, and confirmed
that the Plan Processor is sufficiently
meeting all of its obligations under the
CAT NMS Plan.
The Exchange believes CAT Data
should not be used in place of EBS data
until all Participants and Industry
Members are reporting data to CAT. In
this way, the Exchange will continue to
have access to the necessary data to
perform its regulatory duties.
The CAT NMS Plan requires that a
rule filing to eliminate a duplicative
rule address whether ‘‘the availability of
certain data from Small Industry
Members two years after the Effective
Date would facilitate a more expeditious
16 Firms are required to maintain the trade
information for pre-CAT transactions in equities
and options pursuant to applicable rules, such as
books and records retention requirements, for the
relevant time period, which is generally three or six
years depending upon the record. See 17 CFR
240.17a–3(a), 240.17a–4.
17 Id. [sic].
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retirement of duplicative systems.’’ 18
The Exchange believes that the
submission of data to the CAT by Small
Industry Members a year earlier than is
required in the CAT NMS Plan, at the
same time as the other Industry
Members, would expedite the
replacement of EBS data with CAT Data,
as the Exchange believes that the CAT
would then have all necessary data from
the Industry Members for the Exchange
to perform the regulatory surveillance
that currently is performed via EBS. For
this reason, the Exchange supports
amending the CAT NMS Plan to require
Small Industry Members to report data
to the CAT two years after the Effective
Date (instead of three), and intends to
work with other Participants toward
that end.
The CAT NMS Plan requires that this
rule filing address ‘‘whether individual
Industry Members can be exempted
from reporting to duplicative systems
once their CAT reporting meets
specified accuracy and reliability
standards, including, but not limited to,
ways in which establishing cross-system
regulatory functionality or integrating
data from existing systems and the CAT
would facilitate such Individual
Industry Member exemptions.’’ 19 The
Exchange believes that a single cut-over
from EBS to CAT is highly preferable to
a firm-by-firm approach and is not
proposing to exempt members from the
EBS requirements on a firm-by-firm
basis. The Exchange believes that
providing such individual exemptions
to Industry Members would be
inefficient, more costly, and less reliable
than the single cut-over. Providing
individual exemptions would require
the exchanges to create, for a brief
temporary period, a cross-system
regulatory function and to integrate data
from EBS and the CAT to avoid creating
any regulatory gaps as a result of such
exemptions. Such a function would be
costly to create and would give rise to
a greater likelihood of data errors or
other issues. Given the limited time in
which such exemptions would be
necessary, the Exchange does not
believe that such exemptions would be
an appropriate use of limited resources.
Moreover, the primary benefit to a firmby-firm exemptive approach would be
to reduce the amount of time an
individual firm is required to comply
with EBS if it is also accurately and
reliably reporting to the CAT. The
Exchange believes that the overall
accuracy and reliability thresholds for
the CAT described above would need to
be met under any conditions before
18 Id.
19 Id.
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firms could stop reporting to EBS, and
as discussed above, by accelerating
Small Industry Members to report on
the same timeframe as all other Industry
Members, there is no need to exempt
members from EBS requirements on a
firm-by-firm basis.
The CAT NMS Plan also requires that
a rule filing to eliminate a duplicative
rule to provide ‘‘specific accuracy and
reliability standards that will determine
when duplicative systems will be
retired, including, but not limited to,
whether the attainment of a certain
Error Rate should determine when a
system duplicative of the CAT can be
retired.’’ 20 The Exchange believes that it
is critical that the CAT Data be
sufficiently accurate and reliable for the
Exchange to perform the regulatory
functions that it now performs via EBS.
Accordingly, the Exchange believes that
the CAT Data should meet specific
quantitative error rates, as well as
certain qualitative requirements.
The Exchange believes that, before
CAT Data may be used in place of EBS
data, the CAT would need to achieve a
sustained error rate for a period of at
least 180 days of 5% or lower measured
on a pre-correction or as-submitted
basis, and 2% or lower on a postcorrection basis (measured at T+5).21
ISE proposes to measure the 5% precorrection and 2% post-correction
thresholds by averaging the error rate
across the period, not require a 5% precorrection and 2% post-correction
maximum each day for 180 consecutive
days. The Exchange believes that
measuring each of the thresholds over
the course of 180 days will ensure that
the CAT consistently meets minimum
accuracy and reliability thresholds
while also ensuring that single-day
measurements do not unduly affect the
overall measurements. The Exchange
proposes to measure the appropriate
error rates in the aggregate, rather than
firm-by-firm. The 2% and 5% error rates
are in line with the proposed retirement
threshold for other systems, such as
FINRA’s Order Audit Trail System
(‘‘OATS’’) and the consolidated options
audit trail system (‘‘COATS’’).
In addition to these minimum error
rates before using CAT Data instead of
EBS data, the Exchange believes that
during the minimum 180-day period
during which the thresholds are
calculated, the Exchange’s use of the
data in the CAT must confirm that (i)
usage over that time period has not
20 Id.
21 The Plan requires that the Plan Processor must
ensure that regulators have access to corrected and
linked order and Customer data by 8:00 a.m.
Eastern Time on T+5. See CAT NMS Plan, at C–15.
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revealed material issues that have not
been corrected, (ii) the CAT includes all
data necessary to allow the Exchange to
continue to meet its surveillance
obligations, and (iii) the Plan Processor
is sufficiently meeting all of its
obligations under the CAT NMS Plan.
The Exchange believes this time period
to use the CAT Data is necessary to
reveal any errors that may manifest
themselves only after surveillance
patterns and other queries have been
run and to confirm that the Plan
Processor is meeting its obligations and
performing its functions adequately.
If the Commission approves the
proposed rule change, the Exchange will
announce the implementation date for
the proposed rule change in a
Regulatory Notice that will be published
once the Exchange concludes the
thresholds for accuracy and reliability
described above have been met and that
the Plan Processor is sufficiently
meeting all of its obligations under the
CAT NMS Plan.
2. Statutory Basis
The Exchange believes that the
proposed rule change is consistent with
the provisions of Section 6(b)(5) of the
Exchange Act,22 which require, among
other things, that the ISE rules must be
designed to prevent fraudulent and
manipulative acts and practices, to
promote just and equitable principles of
trade, and, in general, to protect
investors and the public interest, and
not designed to permit unfair
discrimination between customers,
issuers, brokers and dealer. The
Exchange believes that this proposal is
consistent with the Exchange Act
because it fulfills the obligation in the
CAT NMS Plan for the Exchange to
submit a proposed rule change to
eliminate or modify duplicative rules. In
approving the Plan, the SEC noted that
the Plan ‘‘is necessary and appropriate
in the public interest, for the protection
of investors and the maintenance of fair
and orderly markets, to remove
impediments to, and perfect the
mechanism of a national market system,
or is otherwise in furtherance of the
purposes of the Act.’’ 23 As this proposal
implements the Plan, the Exchange
believes that this proposal furthers the
objectives of the Plan, as identified by
the SEC, and is therefore consistent with
the Exchange Act.
Moreover, the purpose of the
proposed rule change is to amend rules
that require the submission of
duplicative data to the exchange. The
elimination of such duplicative
22 15
U.S.C. 78f(b)(5).
Order at 84697.
requirements will reduce unnecessary
costs and other compliance burdens for
the Exchange and its members, and
therefore, will enhance the efficiency of
the securities markets. Furthermore, the
Exchange believes that the approach set
forth in the proposed rule change strikes
the appropriate balance between
ensuring that the Exchange is able to
continue to fulfill its statutory
obligation to protect investors and the
public interest by ensuring its
surveillance of market activity remains
accurate and effective while also
establishing a reasonable timeframe for
elimination or modification of its rules
that will be rendered duplicative after
implementation of the CAT.
B. Self-Regulatory Organization’s
Statement on Burden on Competition
Section 6(b)(8) of the Exchange Act 24
requires that Exchange rules not impose
any burden on competition that is not
necessary or appropriate. The Exchange
does not believe that the proposed rule
change will result in any burden on
competition that is not necessary or
appropriate in furtherance of the
purposes of the Exchange Act. The
Exchange notes that the proposed rule
change implements the requirements of
the CAT NMS Plan approved by the
Commission regarding the elimination
of rules and systems that are duplicative
the CAT, and is designed to assist the
Exchange in meeting its regulatory
obligations pursuant to the Plan.
Similarly, all exchanges and FINRA are
proposing the elimination of their EBS
rules to implement the requirements of
the CAT NMS Plan. Therefore, this is
not a competitive rule filing and,
therefore, it does not raise competition
issues between and among the selfregulatory organizations and/or their
members.
C. Self-Regulatory Organization’s
Statement on Comments on the
Proposed Rule Change Received From
Members, Participants, or Others
Although written comments on the
proposed rule change were not solicited,
ISE received comments from two
commenters, the Financial Information
Forum (‘‘FIF’’) and the Securities
Industry and Financial Markets
Association (‘‘SIFMA’’), regarding the
retirement of systems related to the
CAT.25 In its comment letters, with
24 15
U.S.C. 78f(b)(8).
from William H. Hebert, FIF, to
Participants re: Milestone for Participants’ rule
change filings to eliminate/modify duplicative rules
(Apr. 12, 2017) (‘‘FIF Letter’’); Letter from William
H. Hebert, FIF, to Brent J. Fields, SEC re: Milestone
for Participants’ rule change filings to eliminate/
25 Letter
23 Approval
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regard to the retirement of duplicative
systems more generally, FIF
recommended that the Participants
continue the effort to incorporate
current reporting obligations into the
CAT in order to replace existing
reportable systems with the CAT. In
addition, FIF further recommended that,
once a CAT Reporter achieved
satisfactory reporting data quality, the
CAT Reporter should be exempt from
reporting to any duplicative reporting
systems. FIF believed that these
recommendations ‘‘would serve both an
underlying regulatory objective of more
immediate and accurate access to data
as well as an industry objective of
reduced costs and burdens of regulatory
oversight.’’ 26 In its comments about
EBS specifically, FIF stated that the
retirement of the EBS requirements
should be a high priority, and that the
CAT should be designed to include the
requisite data elements to permit the
rapid retirement of EBS.27 Similarly,
SIFMA stated that ‘‘the establishment of
the CAT must be accompanied by the
prompt elimination of duplicative
systems,’’ and ‘‘recommend[ed] that the
initial technical specifications be
designed to facilitate the immediate
retirement of . . . duplicative reporting
systems.’’ 28
As discussed above in Section 3 [sic],
the Exchange agrees with the
commenters that the EBS reporting
requirements should be replaced by the
CAT reporting requirements as soon as
accurate and reliable CAT Data is
available. To this end, the Exchange
anticipates that the CAT will be
designed to collect the data necessary to
permit the retirement of EBS. However,
as discussed above, the Exchange
disagrees with the recommendation to
provide individual exemptions to those
CAT Reporters who obtain satisfactory
data reporting quality.
III. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
Within 45 days of the date of
publication of this notice in the Federal
Register or within such longer period (i)
as the Commission may designate up to
90 days of such date if it finds such
longer period to be appropriate and
publishes its reasons for so finding or
(ii) as to which the Exchange consents,
the Commission shall: (a) By order
approve or disapprove such proposed
modify duplicative rules (Apr. 12, 2017); and Letter
from Kenneth E. Bentsen, Jr., SIFMA, to
Participants re: Selection of Thesys as CAT
Processor (Apr. 4, 2017) (‘‘SIFMA Letter’’) at 2.
26 FIF Letter at 2.
27 FIF Letter at 2.
28 SIFMA Letter at 2.
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rule change, or (b) institute proceedings
to determine whether the proposed rule
change should be disapproved.
IV. Solicitation of Comments
Interested persons are invited to
submit written data, views, and
arguments concerning the foregoing,
including whether the proposed rule
change is consistent with the Act.
Comments may be submitted by any of
the following methods:
Electronic Comments
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.29
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017–11363 Filed 5–31–17; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–80769; File No. SR–Phlx–
2017–41]
• 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–
ISE–2017–46 on the subject line.
Self-Regulatory Organizations;
NASDAQ PHLX LLC; Notice of Filing
and Immediate Effectiveness of
Proposed Rule Change To Amend Rule
1012
Paper Comments
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 May 22,
2017, 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, 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.
• 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–ISE–2017–46. 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–ISE–
2017–46 and should be submitted on or
before June 22, 2017.
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May 25, 2017.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange proposes to amend
Rule 1012, Series of Options Open for
Trading, with respect to long term
options.
The text of the proposed rule change
is available on the Exchange’s Web site
at https://nasdaqphlx.cchwallstreet.
com/, at the principal office of the
Exchange, and at the Commission’s
Public Reference Room.
II. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
In its filing with the Commission, the
Exchange included statements
concerning the purpose of and basis for
the proposed rule change and discussed
any comments it received on the
proposed rule change. The text of these
statements may be examined at the
places specified in Item IV below. The
Exchange has prepared summaries, set
forth in sections A, B, and C below, of
29 17
CFR 200.30–3(a)(12).
U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
1 15
E:\FR\FM\01JNN1.SGM
01JNN1
Agencies
[Federal Register Volume 82, Number 104 (Thursday, June 1, 2017)]
[Notices]
[Pages 25469-25472]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-11363]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-80787; File No. SR-ISE-2017-46]
Self-Regulatory Organizations; Nasdaq ISE, LLC; Notice of Filing
of Proposed Rule Change To Eliminate Requirements That Will Be
Duplicative of CAT
May 26, 2017.
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 May 15, 2017, Nasdaq ISE, LLC (``ISE'' or ``Exchange'') filed with
the Securities and Exchange Commission (``SEC'' or ``Commission'') the
proposed rule change as described in Items I, II, and III, below, which
Items have been prepared by the Exchange. The Commission is publishing
this notice to solicit comments on the proposed rule change from
interested persons.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange proposes to amend Rule 1404 (the ``EBS Rule''), as the
EBS Rule provides for the collection of information that is duplicative
of the data collection requirements of the Consolidated Audit Trail
(``CAT'') adopted pursuant to the National Market System Plan Governing
the Consolidated Audit Trail (the ``CAT NMS Plan'' or ``Plan'').\3\
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\3\ Unless otherwise specified, capitalized terms used in this
rule filing are defined as set forth herein, or in the CAT
Compliance Rule Series or in the CAT NMS Plan.
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The text of the proposed rule change is available on the Exchange's
Web site at www.ise.com, at the principal office of the Exchange, and
at the Commission's Public Reference Room.
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant aspects of such
statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
1. Purpose
Bats BYX Exchange, Inc., Bats BZX Exchange, Inc., Bats EDGA
Exchange, Inc., Bats EDGX Exchange, Inc., BOX Options Exchange LLC, C2
Options Exchange, Incorporated, Chicago Board Options Exchange,
Incorporated, Chicago Stock Exchange, Inc., Financial Industry
Regulatory Authority, Inc. (``FINRA''), Investors' Exchange LLC, Miami
International Securities Exchange, LLC, MIAX PEARL, LLC, NASDAQ BX,
Inc., Nasdaq GEMX, LLC, Nasdaq ISE, LLC, Nasdaq MRX, LLC,\4\ NASDAQ
PHLX LLC, The NASDAQ Stock Market LLC, New York Stock Exchange LLC,
NYSE MKT LLC, NYSE Arca, Inc. and NYSE National, Inc.\5\ (collectively,
the ``Participants'') filed with the Commission, pursuant to Section
11A of the Exchange Act \6\ and Rule 608 of Regulation NMS
thereunder,\7\ CAT NMS Plan.\8\ The Participants filed the Plan to
comply with Rule 613 of Regulation NMS under the Exchange Act. The Plan
was published for comment in the Federal Register on May 17, 2016,\9\
and approved by the Commission, as modified, on November 15, 2016.\10\
On March 15, 2017, the Commission approved the new Rule 900 Series to
implement provisions of the CAT NMS Plan that are applicable to ISE
members.\11\
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\4\ ISE Gemini, LLC, ISE Mercury, LLC and International
Securities Exchange, LLC have been renamed Nasdaq GEMX, LLC, Nasdaq
MRX, LLC, and Nasdaq ISE, LLC, respectively. See Securities Exchange
Act Release No. 80248 (March 15, 2017), 82 FR. 14547 (March 21,
2017); Securities Exchange Act Release No. 80326 (March 29, 2017),
82 FR 16460 (April 4, 2017); and Securities Exchange Act Release No.
80325 (March 29, 2017), 82 FR 16445 (Apr. 4, 2017).
\5\ National Stock Exchange, Inc. has been renamed NYSE
National, Inc. See Securities Exchange Act Release No. 79902
(January 30, 2017), 82 FR 9258 (February 3, 2017).
\6\ 15 U.S.C. 78k-1.
\7\ 17 CFR 242.608.
\8\ See Letter from the Participants to Brent J. Fields,
Secretary, Commission, dated September 30, 2014; and Letter from
Participants to Brent J. Fields, Secretary, Commission, dated
February 27, 2015. On December 24, 2015, the Participants submitted
an amendment to the CAT NMS Plan. See Letter from Participants to
Brent J. Fields, Secretary, Commission, dated December 23, 2015.
\9\ Securities Exchange Act Release No. 77724 (April 27, 2016),
81 FR 30614 (May 17, 2016).
\10\ Securities Exchange Act Release No. 79318 (Nov. 15, 2016),
81 FR 84696 (November 23, 2016) (``Approval Order'').
\11\ See Securities Exchange Act Release No. 80256 (March 15,
2017), 82 FR 14526 (March 21, 2017) (SR-ISE-2017-08).
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The Plan is designed to create, implement and maintain a CAT that
[[Page 25470]]
would capture customer and order event information for orders in NMS
Securities and OTC Equity Securities, across all markets, from the time
of order inception through routing, cancellation, modification, or
execution in a single consolidated data source. Pursuant to Appendix C
of the CAT NMS Plan, each Participant is required to conduct analyses
of which of its existing trade and order data rules and systems require
the collection of information that is duplicative of information
collected for the CAT.\12\ In addition, among other things, Section C.9
of Appendix C to the Plan, as modified by the Commission, requires each
Participant to ``file with the SEC the relevant rule change filing to
eliminate or modify its duplicative rules within six (6) months of the
SEC's approval of the CAT NMS Plan.'' \13\ The Plan notes that ``the
elimination of such rules and the retirement of such systems [will] be
effective at such time as CAT Data meets minimum standards of accuracy
and reliability.'' \14\ ISE has determined that the EBS Rule is
affected by the implementation of the CAT and, therefore, is filing
this proposed rule change.
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\12\ Appendix C of CAT NMS Plan, Approval Order at 85010.
\13\ Id.
\14\ Id.
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The EBS Rule is the Exchange's rule regarding the automated
submission of specific trading data to ISE upon request using the
Electronic Blue Sheet (``EBS'') system. Rule 1404 require members to
submit certain trade information as prescribed by the Exchange,
including, for proprietary transactions, the clearing house number or
alpha symbol of the member submitting the data, the identifying symbol
assigned to the security, and the date the transaction was
executed.\15\
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\15\ The Exchange notes that both the rules of Nasdaq MRX, LLC
and Nasdaq GEMX, LLC incorporate Rule 1404 by reference.
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Once broker-dealer reporting to the CAT has begun, the CAT will
contain the data the Participants would otherwise have requested via
the EBS system for purposes of NMS Securities and OTC Equity
Securities. Consequently, the Exchange will not need to use the EBS
system or request information pursuant to the EBS Rule for NMS
Securities or OTC Equity Securities for time periods after CAT
reporting has begun if the appropriate accuracy and reliability
thresholds are achieved, including an acceptable accuracy rate for
customer and account information. However, the EBS Rule cannot be
completely eliminated immediately upon the CAT achieving the
appropriate thresholds because Exchange staff may still need to request
information pursuant to the EBS Rule for trading activity occurring
before a member was reporting to the CAT.\16\
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\16\ Firms are required to maintain the trade information for
pre-CAT transactions in equities and options pursuant to applicable
rules, such as books and records retention requirements, for the
relevant time period, which is generally three or six years
depending upon the record. See 17 CFR 240.17a-3(a), 240.17a-4.
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The proposed rule change proposes to add new Supplementary Material
to the EBS Rule to clarify how the Exchange will request data under
these rules after members are reporting to the CAT. Specifically, the
proposed Supplementary Material to the EBS Rule will note that the
Exchange will request information under the EBS Rule only if the
information is not available in the CAT because, for example, the
transactions in question occurred before the firm was reporting
information to the CAT or involved securities that are not reportable
to the CAT. In essence, under the new Supplementary Material, the
Exchange will make requests under these rules if and only if the
information is not otherwise available through the CAT.
The CAT NMS Plan states, however, that the elimination of rules
that are duplicative of the requirements of the CAT and the retirement
of the related systems should be effective at such time as CAT Data
meets minimum standards of accuracy and reliability.\17\ Accordingly,
as discussed in more detail below, the Exchange believes that the EBS
data may be replaced by CAT Data at a date after all Industry Members
are reporting to the CAT when the proposed error rate thresholds have
been met, and the Exchange has determined that its usage of the CAT
Data has not revealed material issues that have not been corrected,
confirmed that the CAT includes all data necessary to allow the
Exchange to continue to meet its surveillance obligations, and
confirmed that the Plan Processor is sufficiently meeting all of its
obligations under the CAT NMS Plan.
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\17\ Id. [sic].
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The Exchange believes CAT Data should not be used in place of EBS
data until all Participants and Industry Members are reporting data to
CAT. In this way, the Exchange will continue to have access to the
necessary data to perform its regulatory duties.
The CAT NMS Plan requires that a rule filing to eliminate a
duplicative rule address whether ``the availability of certain data
from Small Industry Members two years after the Effective Date would
facilitate a more expeditious retirement of duplicative systems.'' \18\
The Exchange believes that the submission of data to the CAT by Small
Industry Members a year earlier than is required in the CAT NMS Plan,
at the same time as the other Industry Members, would expedite the
replacement of EBS data with CAT Data, as the Exchange believes that
the CAT would then have all necessary data from the Industry Members
for the Exchange to perform the regulatory surveillance that currently
is performed via EBS. For this reason, the Exchange supports amending
the CAT NMS Plan to require Small Industry Members to report data to
the CAT two years after the Effective Date (instead of three), and
intends to work with other Participants toward that end.
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\18\ Id.
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The CAT NMS Plan requires that this rule filing address ``whether
individual Industry Members can be exempted from reporting to
duplicative systems once their CAT reporting meets specified accuracy
and reliability standards, including, but not limited to, ways in which
establishing cross-system regulatory functionality or integrating data
from existing systems and the CAT would facilitate such Individual
Industry Member exemptions.'' \19\ The Exchange believes that a single
cut-over from EBS to CAT is highly preferable to a firm-by-firm
approach and is not proposing to exempt members from the EBS
requirements on a firm-by-firm basis. The Exchange believes that
providing such individual exemptions to Industry Members would be
inefficient, more costly, and less reliable than the single cut-over.
Providing individual exemptions would require the exchanges to create,
for a brief temporary period, a cross-system regulatory function and to
integrate data from EBS and the CAT to avoid creating any regulatory
gaps as a result of such exemptions. Such a function would be costly to
create and would give rise to a greater likelihood of data errors or
other issues. Given the limited time in which such exemptions would be
necessary, the Exchange does not believe that such exemptions would be
an appropriate use of limited resources. Moreover, the primary benefit
to a firm-by-firm exemptive approach would be to reduce the amount of
time an individual firm is required to comply with EBS if it is also
accurately and reliably reporting to the CAT. The Exchange believes
that the overall accuracy and reliability thresholds for the CAT
described above would need to be met under any conditions before
[[Page 25471]]
firms could stop reporting to EBS, and as discussed above, by
accelerating Small Industry Members to report on the same timeframe as
all other Industry Members, there is no need to exempt members from EBS
requirements on a firm-by-firm basis.
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\19\ Id.
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The CAT NMS Plan also requires that a rule filing to eliminate a
duplicative rule to provide ``specific accuracy and reliability
standards that will determine when duplicative systems will be retired,
including, but not limited to, whether the attainment of a certain
Error Rate should determine when a system duplicative of the CAT can be
retired.'' \20\ The Exchange believes that it is critical that the CAT
Data be sufficiently accurate and reliable for the Exchange to perform
the regulatory functions that it now performs via EBS. Accordingly, the
Exchange believes that the CAT Data should meet specific quantitative
error rates, as well as certain qualitative requirements.
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\20\ Id.
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The Exchange believes that, before CAT Data may be used in place of
EBS data, the CAT would need to achieve a sustained error rate for a
period of at least 180 days of 5% or lower measured on a pre-correction
or as-submitted basis, and 2% or lower on a post-correction basis
(measured at T+5).\21\ ISE proposes to measure the 5% pre-correction
and 2% post-correction thresholds by averaging the error rate across
the period, not require a 5% pre-correction and 2% post-correction
maximum each day for 180 consecutive days. The Exchange believes that
measuring each of the thresholds over the course of 180 days will
ensure that the CAT consistently meets minimum accuracy and reliability
thresholds while also ensuring that single-day measurements do not
unduly affect the overall measurements. The Exchange proposes to
measure the appropriate error rates in the aggregate, rather than firm-
by-firm. The 2% and 5% error rates are in line with the proposed
retirement threshold for other systems, such as FINRA's Order Audit
Trail System (``OATS'') and the consolidated options audit trail system
(``COATS'').
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\21\ The Plan requires that the Plan Processor must ensure that
regulators have access to corrected and linked order and Customer
data by 8:00 a.m. Eastern Time on T+5. See CAT NMS Plan, at C-15.
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In addition to these minimum error rates before using CAT Data
instead of EBS data, the Exchange believes that during the minimum 180-
day period during which the thresholds are calculated, the Exchange's
use of the data in the CAT must confirm that (i) usage over that time
period has not revealed material issues that have not been corrected,
(ii) the CAT includes all data necessary to allow the Exchange to
continue to meet its surveillance obligations, and (iii) the Plan
Processor is sufficiently meeting all of its obligations under the CAT
NMS Plan. The Exchange believes this time period to use the CAT Data is
necessary to reveal any errors that may manifest themselves only after
surveillance patterns and other queries have been run and to confirm
that the Plan Processor is meeting its obligations and performing its
functions adequately.
If the Commission approves the proposed rule change, the Exchange
will announce the implementation date for the proposed rule change in a
Regulatory Notice that will be published once the Exchange concludes
the thresholds for accuracy and reliability described above have been
met and that the Plan Processor is sufficiently meeting all of its
obligations under the CAT NMS Plan.
2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with the provisions of Section 6(b)(5) of the Exchange Act,\22\ which
require, among other things, that the ISE rules must be designed to
prevent fraudulent and manipulative acts and practices, to promote just
and equitable principles of trade, and, in general, to protect
investors and the public interest, and not designed to permit unfair
discrimination between customers, issuers, brokers and dealer. The
Exchange believes that this proposal is consistent with the Exchange
Act because it fulfills the obligation in the CAT NMS Plan for the
Exchange to submit a proposed rule change to eliminate or modify
duplicative rules. In approving the Plan, the SEC noted that the Plan
``is necessary and appropriate in the public interest, for the
protection of investors and the maintenance of fair and orderly
markets, to remove impediments to, and perfect the mechanism of a
national market system, or is otherwise in furtherance of the purposes
of the Act.'' \23\ As this proposal implements the Plan, the Exchange
believes that this proposal furthers the objectives of the Plan, as
identified by the SEC, and is therefore consistent with the Exchange
Act.
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\22\ 15 U.S.C. 78f(b)(5).
\23\ Approval Order at 84697.
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Moreover, the purpose of the proposed rule change is to amend rules
that require the submission of duplicative data to the exchange. The
elimination of such duplicative requirements will reduce unnecessary
costs and other compliance burdens for the Exchange and its members,
and therefore, will enhance the efficiency of the securities markets.
Furthermore, the Exchange believes that the approach set forth in the
proposed rule change strikes the appropriate balance between ensuring
that the Exchange is able to continue to fulfill its statutory
obligation to protect investors and the public interest by ensuring its
surveillance of market activity remains accurate and effective while
also establishing a reasonable timeframe for elimination or
modification of its rules that will be rendered duplicative after
implementation of the CAT.
B. Self-Regulatory Organization's Statement on Burden on Competition
Section 6(b)(8) of the Exchange Act \24\ requires that Exchange
rules not impose any burden on competition that is not necessary or
appropriate. The Exchange does not believe that the proposed rule
change will result in any burden on competition that is not necessary
or appropriate in furtherance of the purposes of the Exchange Act. The
Exchange notes that the proposed rule change implements the
requirements of the CAT NMS Plan approved by the Commission regarding
the elimination of rules and systems that are duplicative the CAT, and
is designed to assist the Exchange in meeting its regulatory
obligations pursuant to the Plan. Similarly, all exchanges and FINRA
are proposing the elimination of their EBS rules to implement the
requirements of the CAT NMS Plan. Therefore, this is not a competitive
rule filing and, therefore, it does not raise competition issues
between and among the self-regulatory organizations and/or their
members.
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\24\ 15 U.S.C. 78f(b)(8).
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C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
Although written comments on the proposed rule change were not
solicited, ISE received comments from two commenters, the Financial
Information Forum (``FIF'') and the Securities Industry and Financial
Markets Association (``SIFMA''), regarding the retirement of systems
related to the CAT.\25\ In its comment letters, with
[[Page 25472]]
regard to the retirement of duplicative systems more generally, FIF
recommended that the Participants continue the effort to incorporate
current reporting obligations into the CAT in order to replace existing
reportable systems with the CAT. In addition, FIF further recommended
that, once a CAT Reporter achieved satisfactory reporting data quality,
the CAT Reporter should be exempt from reporting to any duplicative
reporting systems. FIF believed that these recommendations ``would
serve both an underlying regulatory objective of more immediate and
accurate access to data as well as an industry objective of reduced
costs and burdens of regulatory oversight.'' \26\ In its comments about
EBS specifically, FIF stated that the retirement of the EBS
requirements should be a high priority, and that the CAT should be
designed to include the requisite data elements to permit the rapid
retirement of EBS.\27\ Similarly, SIFMA stated that ``the establishment
of the CAT must be accompanied by the prompt elimination of duplicative
systems,'' and ``recommend[ed] that the initial technical
specifications be designed to facilitate the immediate retirement of .
. . duplicative reporting systems.'' \28\
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\25\ Letter from William H. Hebert, FIF, to Participants re:
Milestone for Participants' rule change filings to eliminate/modify
duplicative rules (Apr. 12, 2017) (``FIF Letter''); Letter from
William H. Hebert, FIF, to Brent J. Fields, SEC re: Milestone for
Participants' rule change filings to eliminate/modify duplicative
rules (Apr. 12, 2017); and Letter from Kenneth E. Bentsen, Jr.,
SIFMA, to Participants re: Selection of Thesys as CAT Processor
(Apr. 4, 2017) (``SIFMA Letter'') at 2.
\26\ FIF Letter at 2.
\27\ FIF Letter at 2.
\28\ SIFMA Letter at 2.
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As discussed above in Section 3 [sic], the Exchange agrees with the
commenters that the EBS reporting requirements should be replaced by
the CAT reporting requirements as soon as accurate and reliable CAT
Data is available. To this end, the Exchange anticipates that the CAT
will be designed to collect the data necessary to permit the retirement
of EBS. However, as discussed above, the Exchange disagrees with the
recommendation to provide individual exemptions to those CAT Reporters
who obtain satisfactory data reporting quality.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Within 45 days of the date of publication of this notice in the
Federal Register or within such longer period (i) as the Commission may
designate up to 90 days of such date if it finds such longer period to
be appropriate and publishes its reasons for so finding or (ii) as to
which the Exchange consents, the Commission shall: (a) By order approve
or disapprove such proposed rule change, or (b) institute proceedings
to determine whether the proposed rule change should be disapproved.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
Use the Commission's Internet comment form (https://www.sec.gov/rules/sro.shtml); or
Send an email to rule-comments@sec.gov. Please include
File Number SR-ISE-2017-46 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-ISE-2017-46. 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-ISE-2017-46 and should be
submitted on or before June 22, 2017.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\29\
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\29\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017-11363 Filed 5-31-17; 8:45 am]
BILLING CODE 8011-01-P