Self-Regulatory Organizations; NASDAQ BX, Inc.; Notice of Filing of a Proposed Rule Change To Adopt Rule 6896 and Chapter IX, Section 9, 28705-28708 [2017-13099]
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Federal Register / Vol. 82, No. 120 / Friday, June 23, 2017 / Notices
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–MRX–
2017–08, and should be submitted on or
before July 14, 2017.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.21
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017–13097 Filed 6–22–17; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–80968; File No. SR–BX–
2017–029]
Self-Regulatory Organizations;
NASDAQ BX, Inc.; Notice of Filing of a
Proposed Rule Change To Adopt Rule
6896 and Chapter IX, Section 9
June 19, 2017.
asabaliauskas on DSKBBXCHB2PROD with NOTICES
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934 (‘‘Act’’
or ‘‘Exchange Act’’),1 and Rule 19b–4
thereunder,2 notice is hereby given that
on June 9, 2017, NASDAQ BX, Inc.
(‘‘BX’’ 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 adopt Rule
6896 and Chapter IX, Section 9
(Consolidated Audit Trail—Fee Dispute
21 17
CFR 200.30–3(a)(12).
U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
1 15
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Resolution) to establish the procedures
for resolving potential disputes related
to CAT Fees charged to Industry
Members.3
The text of the proposed rule change
is available on the Exchange’s Web site
at https://nasdaqbx.cchwallstreet.com/,
at the principal office of the Exchange,
and at the Commission’s Public
Reference Room.
II. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
In its filing with the Commission, the
Exchange included statements
concerning the purpose of and basis for
the proposed rule change and discussed
any comments it received on the
proposed rule change. The text of these
statements may be examined at the
places specified in Item IV below. The
Exchange has prepared summaries, set
forth in sections A, B, and C below, of
the most significant aspects of such
statements.
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
1. Purpose
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
3 Unless otherwise specified, capitalized terms
used in this rule filing are defined as set forth
herein, or in the Consolidated Audit Trail Funding
Fees Rule, the CAT Compliance Rule Series or in
the CAT NMS Plan.
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
(April 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).
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28705
Section 11A of the Exchange Act 6 and
Rule 608 of Regulation NMS
thereunder,7 the National Market
System Plan Governing the
Consolidated Audit Trail (the ‘‘CAT
NMS Plan’’ or ‘‘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 The
Plan is designed to create, implement
and maintain a consolidated audit trail
(‘‘CAT’’) that 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.
The Plan accomplishes this by creating
CAT NMS, LLC (the ‘‘Company’’), of
which each Participant is a member, to
operate the CAT.11 Under the CAT NMS
Plan, the Operating Committee of the
Company (‘‘Operating Committee’’) has
discretion to establish funding for the
Company to operate the CAT, including
establishing fees that the Participants
will pay, and establishing fees for
Industry Members that will be
implemented by the Participants (‘‘CAT
Fees’’).12 The Participants are required
to file with the SEC under Section 19(b)
of the Exchange Act any such CAT Fees
applicable to Industry Members that the
Operating Committee approves.13
Accordingly, the Exchange has filed a
proposed rule change with the SEC to
adopt the Consolidated Audit Trail
Funding Fees, which will require
Industry Members that are Exchange
members to pay the CAT Fees
determined by the Operating
Committee.14 The Exchange submits
this rule filing to adopt Rule 6896 and
Chapter IX, Section 9 (Consolidated
6 15
U.S.C. 78k–1.
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 Rel. No. 79318
(November 15, 2016), 81 FR 84696 (November 23,
2016) (‘‘Approval Order’’).
11 The Plan also serves as the limited liability
company agreement for the Company.
12 Section 11.1(b) of the CAT NMS Plan.
13 Id.
14 See Securities Exchange Act Release No. 80697
(May 16, 2017), 82 FR 23398 (May 22, 2017) (SR–
BX–2017–023).
7 17
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Federal Register / Vol. 82, No. 120 / Friday, June 23, 2017 / Notices
Audit Trail—Fee Dispute Resolution) to
establish the procedures for resolving
potential disputes related to CAT Fees
charged to Industry Members. The
proposed rules are described below.
asabaliauskas on DSKBBXCHB2PROD with NOTICES
(1) Definitions
Paragraph (a) of Proposed Rule 6896
and Chapter IX, Section 9 sets forth the
definitions for Proposed Rule 6896 and
Chapter IX, Section 9. Paragraph (a)(1)
of Proposed Rule 6896 and Chapter IX,
Section 9 states that, for purposes of
Rule 6896 and Chapter IX, Section 9, the
terms ‘‘CAT NMS Plan’’, ‘‘Industry
Member’’, ‘‘Operating Committee’’, and
‘‘Participant’’ are defined as set forth in
the Rule 6810 and Chapter IX, Section
8(a) (Consolidated Audit Trail—
Definitions), respectively, and the term
‘‘CAT Fee’’ is defined as set forth in the
Consolidated Audit Trail Funding Fees.
In addition, the Exchange proposes to
add paragraph (a)(2) to Proposed Rule
6896 and Chapter IX, Section 9. New
paragraph (a)(2) would define the term
‘‘Subcommittee’’ to mean a
subcommittee designated by the
Operating Committee pursuant to the
CAT NMS Plan. This definition is the
same substantive definition as set forth
in Section 1.1 of the CAT NMS Plan.
(2) Fee Dispute Resolution
Section 11.5 of the CAT NMS Plan
requires Participants to adopt rules
requiring that disputes with respect to
fees charged to Industry Members
pursuant to the CAT NMS Plan be
determined by the Operating Committee
or Subcommittee. Section 11.5 of the
CAT NMS Plan also states that decisions
by the Operating Committee or
Subcommittee on such matters shall be
binding on Industry Members, without
prejudice to the right of any Industry
Member to seek redress from the SEC
pursuant to SEC Rule 608 or in any
other appropriate forum. The Exchange
proposes to adopt paragraph (b) of
Proposed Rule 6896 and Chapter IX,
Section 9. Paragraph (b) of Proposed
Rule 6896 and Chapter IX, Section 9
states that disputes initiated by an
Industry Member with respect to CAT
Fees charged to such Industry Member
pursuant to the Consolidated Audit
Trail Funding Fees, including disputes
related to the designated tier and the fee
calculated pursuant to such tier, shall be
resolved by the Operating Committee, or
a Subcommittee designated by the
Operating Committee, of the CAT NMS
Plan, pursuant to the Fee Dispute
Resolution Procedures adopted
pursuant to the CAT NMS Plan and set
forth in paragraph (c) of Proposed Rule
6896 and Chapter IX, Section 9.
Decisions on such matters shall be
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19:21 Jun 22, 2017
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binding on Industry Members, without
prejudice to the rights of any such
Industry Member to seek redress from
the SEC or in any other appropriate
forum.
The Operating Committee has
adopted ‘‘Fee Dispute Resolution
Procedures’’ governing the manner in
which disputes regarding CAT Fees
charged pursuant to the Consolidated
Audit Trail Funding Fees will be
addressed. These Fee Dispute
Resolution Procedures, as they relate to
Industry Members, are set forth in
paragraph (c) of Proposed Rule 6896 and
Chapter IX, Section 9. Specifically, the
Fee Dispute Resolution Procedures
provide the procedure for Industry
Members that dispute CAT Fees charged
to such Industry Member pursuant to
one or more of the Participants’
Consolidated Audit Trail Funding Fees
Rules, including disputes related to the
designated tier and the fee calculated
pursuant to such tier, to apply for an
opportunity to be heard and to have the
CAT Fees charged to such Industry
Member reviewed. The Procedures are
modeled after the adverse action
procedures adopted by various
exchanges,15 and will be posted on the
Web site for the CAT NMS Plan Web
site.16
Under these Procedures, an Industry
Member that disputes CAT Fees charged
to such Industry Member and that
desires to have an opportunity to be
heard with respect to such disputed
CAT Fees must file a written application
with the Company within 15 business
days after being notified of such
disputed CAT Fees. The application
must identify the disputed CAT Fees,
state the specific reasons why the
applicant takes exception to such CAT
Fees, and set forth the relief sought. In
addition, if the applicant intends to
submit any additional documents,
statements, arguments or other material
in support of the application, the same
should be so stated and identified.
The Company will refer applications
for hearing and review promptly to the
Subcommittee designated by the
Operating Committee pursuant to
Section 4.12 of the CAT NMS Plan with
responsibility for conducting the
reviews of CAT Fee disputes pursuant
to these Procedures. This Subcommittee
will be referred to as the Fee Review
Subcommittee. The members of the Fee
Review Subcommittee will be subject to
the provisions of Section 4.3(d) of the
15 See, e.g., Chapter X of BATS BZX Exchange,
Inc. (Adverse Action); and Chapter X of NYSE
National, Inc. (Adverse Action).
16 The CAT NMS Plan Web site is
www.catnmsplan.com.
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CAT NMS Plan regarding recusal and
Conflicts of Interest. The Fee Review
Subcommittee will keep a record of the
proceedings.
The Fee Review Subcommittee will
hold hearings promptly. The Fee
Review Subcommittee will set a hearing
date. The parties to the hearing shall
furnish the Fee Review Subcommittee
with all materials relevant to the
proceedings at least 72 hours prior to
the date of the hearing. Each party will
have the right to inspect and copy the
other party’s materials prior to the
hearing.
The parties to the hearing will consist
of the applicant and a representative of
the Company who shall present the
reasons for the action taken by the
Company that allegedly aggrieved the
applicant. The applicant is entitled to be
accompanied, represented and advised
by counsel at all stages of the
proceedings.
The Fee Review Subcommittee will
determine all questions concerning the
admissibility of evidence and will
otherwise regulate the conduct of the
hearing. Each of the parties will be
permitted to make an opening
statement, present witnesses and
documentary evidence, cross examine
opposing witnesses and present closing
arguments orally or in writing as
determined by the Fee Review
Subcommittee. The Fee Review
Subcommittee also will have the right to
question all parties and witnesses to the
proceeding. The Fee Review
Subcommittee must keep a record of the
hearing. The formal rules of evidence
will not apply.
The Fee Review Subcommittee must
set forth its decision in writing and send
the written decision to the parties to the
proceeding. Such decisions will contain
the reasons supporting the conclusions
of the Fee Review Subcommittee.
The decision of the Fee Review
Subcommittee will be subject to review
by the Operating Committee either on
its own motion within 20 business days
after issuance of the decision or upon
written request submitted by the
applicant within 15 business days after
issuance of the decision. The applicant’s
petition must be in writing and must
specify the findings and conclusions to
which the applicant objects, together
with the reasons for such objections.
Any objection to a decision not
specified in writing will be considered
to have been abandoned and may be
disregarded. Parties may petition to
submit a written argument to the
Operating Committee and may request
an opportunity to make an oral
argument before the Operating
Committee. The Operating Committee
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asabaliauskas on DSKBBXCHB2PROD with NOTICES
Federal Register / Vol. 82, No. 120 / Friday, June 23, 2017 / Notices
will have sole discretion to grant or
deny either request.
The Operating Committee will
conduct the review. The review will be
made upon the record and will be made
after such further proceedings, if any, as
the Operating Committee may order.
Based upon such record, the Operating
Committee may affirm, reverse or
modify, in whole or in part, the decision
of the Fee Review Subcommittee. The
decision of the Operating Committee
will be in writing, will be sent to the
parties to the proceeding and will be
final.
The Procedures state that a final
decision regarding the disputed CAT
Fees by the Operating Committee, or the
Fee Review Subcommittee (if there is no
review by the Operating Committee),
must be provided within 90 days of the
date on which the Industry Member
filed a written application regarding
disputed CAT Fees with the Company.
The Operating Committee may extend
the 90-day time limit at its discretion.
In addition, the Procedures state that
any notices or other documents may be
served upon the applicant either
personally or by leaving the same at its,
his or her place of business or by
deposit in the United States post office,
postage prepaid, by registered or
certified mail, addressed to the
applicant at its, his or her last known
business or residence address. The
Procedures also state that any time
limits imposed under the Procedures for
the submission of answers, petitions or
other materials may be extended by
permission of the Operating Committee.
All papers and documents relating to
review by the Fee Review Subcommittee
or the Operating Committee must be
submitted to the Fee Review
Subcommittee or Operating Committee,
as applicable.
The Procedures also note that
decisions on such CAT Fee disputes
made pursuant to these Procedures will
be binding on Industry Members,
without prejudice to the rights of any
such Industry Member to seek redress
from the SEC or in any other
appropriate forum.
Finally, an Industry Member that files
a written application with the Company
regarding disputed CAT Fees in
accordance with these Procedures is not
required to pay such disputed CAT Fees
until the dispute is resolved in
accordance with these Procedures,
including any review by the SEC or in
any other appropriate forum. For these
purposes, the disputed CAT Fees means
the amount of the invoiced CAT Fees
that the Industry Member has asserted
pursuant to these Procedures that such
Industry Member does not owe to the
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19:21 Jun 22, 2017
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Company. The Industry Member must
pay any invoiced CAT Fees that are not
disputed CAT Fees when due as set
forth in the original invoice.
Once the dispute regarding CAT Fees
is resolved pursuant to these
Procedures, if it is determined that the
Industry Member owes any of the
disputed CAT Fees, then the Industry
Member must pay such disputed CAT
Fees that are owed as well as interest on
such disputed CAT Fees from the
original due date (that is, 30 days after
receipt of the original invoice of such
CAT Fees) until such disputed CAT
Fees are paid at a per annum rate equal
to the lesser of (i) the Prime Rate plus
300 basis points, or (ii) the maximum
rate permitted by applicable law.
2. Statutory Basis
The Exchange believes that the
proposed rule change is consistent with
the provisions of Section 6(b)(5) of the
Act,17 which requires, among other
things, that the Exchange 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 [sic], and
Section 6(b)(4) of the Act,18 which
requires that Exchange rules provide for
the equitable allocation of reasonable
dues, fees, and other charges among
members and issuers and other persons
using its facilities.
The Exchange believes that this
proposal is consistent with the Act
because it implements, interprets or
clarifies Section 11.5 of the Plan, and is
designed to assist the Exchange and its
Industry Members in meeting regulatory
obligations pursuant to the Plan. 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.’’ 19 To the extent
that this proposal implements,
interprets or clarifies the Plan and
applies specific requirements to
Industry Members, the Exchange
believes that this proposal furthers the
objectives of the Plan, as identified by
the SEC, and is therefore consistent with
the Act.
17 15
U.S.C. 78f(b)(5).
U.S.C. 78f(b)(4).
19 Approval Order at 84697.
B. Self-Regulatory Organization’s
Statement on Burden on Competition
Section 6(b)(8) of the Act 20 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 impose any burden on
competition not necessary or
appropriate in furtherance of the
purposes of the Act. The Exchange notes
that the proposed rule change
implements Section 11.5 of the CAT
NMS Plan approved by the Commission,
and is designed to assist the Exchange
in meeting its regulatory obligations
pursuant to the Plan. Similarly, all
national securities exchanges and
FINRA are proposing this proposed rule
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 exchanges and
FINRA.
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
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:
Electronic Comments
• Use the Commission’s Internet
comment form (https://www.sec.gov/
rules/sro.shtml); or
• Send an email to rule-comments@
sec.gov. Please include File Number SR–
BX–2017–029 on the subject line.
18 15
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U.S.C. 78f(b)(8).
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Federal Register / Vol. 82, No. 120 / Friday, June 23, 2017 / Notices
Paper Comments
• Send paper comments in triplicate
to Secretary, Securities and Exchange
Commission, 100 F Street NE.,
Washington, DC 20549–1090.
All submissions should refer to File
Number SR–BX–2017–029. This file
number should be included on the
subject line if email is used. To help the
Commission process and review your
comments more efficiently, please use
only one method. The Commission will
post all comments on the Commission’s
Internet Web site (https://www.sec.gov/
rules/sro.shtml). Copies of the
submission, all subsequent
amendments, all written statements
with respect to the proposed rule
change that are filed with the
Commission, and all written
communications relating to the
proposed rule change between the
Commission and any person, other than
those that may be withheld from the
public in accordance with the
provisions of 5 U.S.C. 552, will be
available for Web site viewing and
printing in the Commission’s Public
Reference Room, 100 F Street NE.,
Washington, DC 20549, on official
business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of the
filing also will be available for
inspection and copying at the principal
office of the Exchange. All comments
received will be posted without change;
the Commission does not edit personal
identifying information from
submissions. You should submit only
information that you wish to make
available publicly. All submissions
should refer to File Number SR–BX–
2017–029, and should be submitted on
or before July 14, 2017.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.21
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017–13099 Filed 6–22–17; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
asabaliauskas on DSKBBXCHB2PROD with NOTICES
[Release No. 34–80970; File No. SR–GEMX–
2017–24]
Self-Regulatory Organizations; Nasdaq
GEMX, LLC; Notice of Filing of a
Proposed Rule Change To Adopt Rule
912
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934 (‘‘Act’’
CFR 200.30–3(a)(12).
VerDate Sep<11>2014
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange proposes to adopt Rule
912 (Consolidated Audit Trail—Fee
Dispute Resolution) to establish the
procedures for resolving potential
disputes related to CAT Fees charged to
Industry Members.3
The text of the proposed rule change
is available on the Exchange’s Web site
at https://
nasdaqgemx.cchwallstreet.com/, at the
principal office of the Exchange, and at
the Commission’s Public Reference
Room.
II. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
In its filing with the Commission, the
Exchange included statements
concerning the purpose of and basis for
the proposed rule change and discussed
any comments it received on the
proposed rule change. The text of these
statements may be examined at the
places specified in Item IV below. The
Exchange has prepared summaries, set
forth in sections A, B, and C below, of
the most significant aspects of such
statements.
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
1. Purpose
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
1 15
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 Consolidated Audit Trail Funding
Fees Rule, the CAT Compliance Rule Series or in
the CAT NMS Plan.
2 17
June 19, 2017.
21 17
or ‘‘Exchange Act’’),1 and Rule 19b–4
thereunder,2 notice is hereby given that
on June 9, 2017, Nasdaq GEMX, LLC
(‘‘GEMX’’ 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.
19:21 Jun 22, 2017
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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 the National Market
System Plan Governing the
Consolidated Audit Trail (the ‘‘CAT
NMS Plan’’ or ‘‘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 The
Plan is designed to create, implement
and maintain a consolidated audit trail
(‘‘CAT’’) that 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.
The Plan accomplishes this by creating
CAT NMS, LLC (the ‘‘Company’’), of
which each Participant is a member, to
operate the CAT.11 Under the CAT NMS
Plan, the Operating Committee of the
Company (‘‘Operating Committee’’) has
discretion to establish funding for the
Company to operate the CAT, including
establishing fees that the Participants
will pay, and establishing fees for
Industry Members that will be
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
(April 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 Rel. No. 79318
(November 15, 2016), 81 FR 84696 (November 23,
2016) (‘‘Approval Order’’).
11 The Plan also serves as the limited liability
company agreement for the Company.
E:\FR\FM\23JNN1.SGM
23JNN1
]]>Agencies
[Federal Register Volume 82, Number 120 (Friday, June 23, 2017)]
[Notices]
[Pages 28705-28708]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-13099]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-80968; File No. SR-BX-2017-029]
Self-Regulatory Organizations; NASDAQ BX, Inc.; Notice of Filing
of a Proposed Rule Change To Adopt Rule 6896 and Chapter IX, Section 9
June 19, 2017.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'' or ``Exchange Act''),\1\ and Rule 19b-4 thereunder,\2\ notice
is hereby given that on June 9, 2017, NASDAQ BX, Inc. (``BX'' or
``Exchange'') filed with the Securities and Exchange Commission
(``SEC'' or ``Commission'') the proposed rule change as described in
Items I and II, below, which Items have been prepared by the Exchange.
The Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange proposes to adopt Rule 6896 and Chapter IX, Section 9
(Consolidated Audit Trail--Fee Dispute Resolution) to establish the
procedures for resolving potential disputes related to CAT Fees charged
to Industry Members.\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 Consolidated
Audit Trail Funding Fees Rule, 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 https://nasdaqbx.cchwallstreet.com/, at the principal office
of the Exchange, and at the Commission's Public Reference Room.
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant aspects of such
statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
1. Purpose
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\ the National Market System Plan Governing the
Consolidated Audit Trail (the ``CAT NMS Plan'' or ``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\ The Plan is designed to create,
implement and maintain a consolidated audit trail (``CAT'') that 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. The Plan accomplishes
this by creating CAT NMS, LLC (the ``Company''), of which each
Participant is a member, to operate the CAT.\11\ Under the CAT NMS
Plan, the Operating Committee of the Company (``Operating Committee'')
has discretion to establish funding for the Company to operate the CAT,
including establishing fees that the Participants will pay, and
establishing fees for Industry Members that will be implemented by the
Participants (``CAT Fees'').\12\ The Participants are required to file
with the SEC under Section 19(b) of the Exchange Act any such CAT Fees
applicable to Industry Members that the Operating Committee
approves.\13\ Accordingly, the Exchange has filed a proposed rule
change with the SEC to adopt the Consolidated Audit Trail Funding Fees,
which will require Industry Members that are Exchange members to pay
the CAT Fees determined by the Operating Committee.\14\ The Exchange
submits this rule filing to adopt Rule 6896 and Chapter IX, Section 9
(Consolidated
[[Page 28706]]
Audit Trail--Fee Dispute Resolution) to establish the procedures for
resolving potential disputes related to CAT Fees charged to Industry
Members. The proposed rules are described below.
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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 (April 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 Rel. No. 79318 (November 15, 2016),
81 FR 84696 (November 23, 2016) (``Approval Order'').
\11\ The Plan also serves as the limited liability company
agreement for the Company.
\12\ Section 11.1(b) of the CAT NMS Plan.
\13\ Id.
\14\ See Securities Exchange Act Release No. 80697 (May 16,
2017), 82 FR 23398 (May 22, 2017) (SR-BX-2017-023).
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(1) Definitions
Paragraph (a) of Proposed Rule 6896 and Chapter IX, Section 9 sets
forth the definitions for Proposed Rule 6896 and Chapter IX, Section 9.
Paragraph (a)(1) of Proposed Rule 6896 and Chapter IX, Section 9 states
that, for purposes of Rule 6896 and Chapter IX, Section 9, the terms
``CAT NMS Plan'', ``Industry Member'', ``Operating Committee'', and
``Participant'' are defined as set forth in the Rule 6810 and Chapter
IX, Section 8(a) (Consolidated Audit Trail--Definitions), respectively,
and the term ``CAT Fee'' is defined as set forth in the Consolidated
Audit Trail Funding Fees. In addition, the Exchange proposes to add
paragraph (a)(2) to Proposed Rule 6896 and Chapter IX, Section 9. New
paragraph (a)(2) would define the term ``Subcommittee'' to mean a
subcommittee designated by the Operating Committee pursuant to the CAT
NMS Plan. This definition is the same substantive definition as set
forth in Section 1.1 of the CAT NMS Plan.
(2) Fee Dispute Resolution
Section 11.5 of the CAT NMS Plan requires Participants to adopt
rules requiring that disputes with respect to fees charged to Industry
Members pursuant to the CAT NMS Plan be determined by the Operating
Committee or Subcommittee. Section 11.5 of the CAT NMS Plan also states
that decisions by the Operating Committee or Subcommittee on such
matters shall be binding on Industry Members, without prejudice to the
right of any Industry Member to seek redress from the SEC pursuant to
SEC Rule 608 or in any other appropriate forum. The Exchange proposes
to adopt paragraph (b) of Proposed Rule 6896 and Chapter IX, Section 9.
Paragraph (b) of Proposed Rule 6896 and Chapter IX, Section 9 states
that disputes initiated by an Industry Member with respect to CAT Fees
charged to such Industry Member pursuant to the Consolidated Audit
Trail Funding Fees, including disputes related to the designated tier
and the fee calculated pursuant to such tier, shall be resolved by the
Operating Committee, or a Subcommittee designated by the Operating
Committee, of the CAT NMS Plan, pursuant to the Fee Dispute Resolution
Procedures adopted pursuant to the CAT NMS Plan and set forth in
paragraph (c) of Proposed Rule 6896 and Chapter IX, Section 9.
Decisions on such matters shall be binding on Industry Members, without
prejudice to the rights of any such Industry Member to seek redress
from the SEC or in any other appropriate forum.
The Operating Committee has adopted ``Fee Dispute Resolution
Procedures'' governing the manner in which disputes regarding CAT Fees
charged pursuant to the Consolidated Audit Trail Funding Fees will be
addressed. These Fee Dispute Resolution Procedures, as they relate to
Industry Members, are set forth in paragraph (c) of Proposed Rule 6896
and Chapter IX, Section 9. Specifically, the Fee Dispute Resolution
Procedures provide the procedure for Industry Members that dispute CAT
Fees charged to such Industry Member pursuant to one or more of the
Participants' Consolidated Audit Trail Funding Fees Rules, including
disputes related to the designated tier and the fee calculated pursuant
to such tier, to apply for an opportunity to be heard and to have the
CAT Fees charged to such Industry Member reviewed. The Procedures are
modeled after the adverse action procedures adopted by various
exchanges,\15\ and will be posted on the Web site for the CAT NMS Plan
Web site.\16\
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\15\ See, e.g., Chapter X of BATS BZX Exchange, Inc. (Adverse
Action); and Chapter X of NYSE National, Inc. (Adverse Action).
\16\ The CAT NMS Plan Web site is www.catnmsplan.com.
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Under these Procedures, an Industry Member that disputes CAT Fees
charged to such Industry Member and that desires to have an opportunity
to be heard with respect to such disputed CAT Fees must file a written
application with the Company within 15 business days after being
notified of such disputed CAT Fees. The application must identify the
disputed CAT Fees, state the specific reasons why the applicant takes
exception to such CAT Fees, and set forth the relief sought. In
addition, if the applicant intends to submit any additional documents,
statements, arguments or other material in support of the application,
the same should be so stated and identified.
The Company will refer applications for hearing and review promptly
to the Subcommittee designated by the Operating Committee pursuant to
Section 4.12 of the CAT NMS Plan with responsibility for conducting the
reviews of CAT Fee disputes pursuant to these Procedures. This
Subcommittee will be referred to as the Fee Review Subcommittee. The
members of the Fee Review Subcommittee will be subject to the
provisions of Section 4.3(d) of the CAT NMS Plan regarding recusal and
Conflicts of Interest. The Fee Review Subcommittee will keep a record
of the proceedings.
The Fee Review Subcommittee will hold hearings promptly. The Fee
Review Subcommittee will set a hearing date. The parties to the hearing
shall furnish the Fee Review Subcommittee with all materials relevant
to the proceedings at least 72 hours prior to the date of the hearing.
Each party will have the right to inspect and copy the other party's
materials prior to the hearing.
The parties to the hearing will consist of the applicant and a
representative of the Company who shall present the reasons for the
action taken by the Company that allegedly aggrieved the applicant. The
applicant is entitled to be accompanied, represented and advised by
counsel at all stages of the proceedings.
The Fee Review Subcommittee will determine all questions concerning
the admissibility of evidence and will otherwise regulate the conduct
of the hearing. Each of the parties will be permitted to make an
opening statement, present witnesses and documentary evidence, cross
examine opposing witnesses and present closing arguments orally or in
writing as determined by the Fee Review Subcommittee. The Fee Review
Subcommittee also will have the right to question all parties and
witnesses to the proceeding. The Fee Review Subcommittee must keep a
record of the hearing. The formal rules of evidence will not apply.
The Fee Review Subcommittee must set forth its decision in writing
and send the written decision to the parties to the proceeding. Such
decisions will contain the reasons supporting the conclusions of the
Fee Review Subcommittee.
The decision of the Fee Review Subcommittee will be subject to
review by the Operating Committee either on its own motion within 20
business days after issuance of the decision or upon written request
submitted by the applicant within 15 business days after issuance of
the decision. The applicant's petition must be in writing and must
specify the findings and conclusions to which the applicant objects,
together with the reasons for such objections. Any objection to a
decision not specified in writing will be considered to have been
abandoned and may be disregarded. Parties may petition to submit a
written argument to the Operating Committee and may request an
opportunity to make an oral argument before the Operating Committee.
The Operating Committee
[[Page 28707]]
will have sole discretion to grant or deny either request.
The Operating Committee will conduct the review. The review will be
made upon the record and will be made after such further proceedings,
if any, as the Operating Committee may order. Based upon such record,
the Operating Committee may affirm, reverse or modify, in whole or in
part, the decision of the Fee Review Subcommittee. The decision of the
Operating Committee will be in writing, will be sent to the parties to
the proceeding and will be final.
The Procedures state that a final decision regarding the disputed
CAT Fees by the Operating Committee, or the Fee Review Subcommittee (if
there is no review by the Operating Committee), must be provided within
90 days of the date on which the Industry Member filed a written
application regarding disputed CAT Fees with the Company. The Operating
Committee may extend the 90-day time limit at its discretion.
In addition, the Procedures state that any notices or other
documents may be served upon the applicant either personally or by
leaving the same at its, his or her place of business or by deposit in
the United States post office, postage prepaid, by registered or
certified mail, addressed to the applicant at its, his or her last
known business or residence address. The Procedures also state that any
time limits imposed under the Procedures for the submission of answers,
petitions or other materials may be extended by permission of the
Operating Committee. All papers and documents relating to review by the
Fee Review Subcommittee or the Operating Committee must be submitted to
the Fee Review Subcommittee or Operating Committee, as applicable.
The Procedures also note that decisions on such CAT Fee disputes
made pursuant to these Procedures will be binding on Industry Members,
without prejudice to the rights of any such Industry Member to seek
redress from the SEC or in any other appropriate forum.
Finally, an Industry Member that files a written application with
the Company regarding disputed CAT Fees in accordance with these
Procedures is not required to pay such disputed CAT Fees until the
dispute is resolved in accordance with these Procedures, including any
review by the SEC or in any other appropriate forum. For these
purposes, the disputed CAT Fees means the amount of the invoiced CAT
Fees that the Industry Member has asserted pursuant to these Procedures
that such Industry Member does not owe to the Company. The Industry
Member must pay any invoiced CAT Fees that are not disputed CAT Fees
when due as set forth in the original invoice.
Once the dispute regarding CAT Fees is resolved pursuant to these
Procedures, if it is determined that the Industry Member owes any of
the disputed CAT Fees, then the Industry Member must pay such disputed
CAT Fees that are owed as well as interest on such disputed CAT Fees
from the original due date (that is, 30 days after receipt of the
original invoice of such CAT Fees) until such disputed CAT Fees are
paid at a per annum rate equal to the lesser of (i) the Prime Rate plus
300 basis points, or (ii) the maximum rate permitted by applicable law.
2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with the provisions of Section 6(b)(5) of the Act,\17\ which requires,
among other things, that the Exchange 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 [sic],
and Section 6(b)(4) of the Act,\18\ which requires that Exchange rules
provide for the equitable allocation of reasonable dues, fees, and
other charges among members and issuers and other persons using its
facilities.
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\17\ 15 U.S.C. 78f(b)(5).
\18\ 15 U.S.C. 78f(b)(4).
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The Exchange believes that this proposal is consistent with the Act
because it implements, interprets or clarifies Section 11.5 of the
Plan, and is designed to assist the Exchange and its Industry Members
in meeting regulatory obligations pursuant to the Plan. 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.'' \19\ To the extent that this
proposal implements, interprets or clarifies the Plan and applies
specific requirements to Industry Members, the Exchange believes that
this proposal furthers the objectives of the Plan, as identified by the
SEC, and is therefore consistent with the Act.
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\19\ Approval Order at 84697.
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B. Self-Regulatory Organization's Statement on Burden on Competition
Section 6(b)(8) of the Act \20\ 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 impose
any burden on competition not necessary or appropriate in furtherance
of the purposes of the Act. The Exchange notes that the proposed rule
change implements Section 11.5 of the CAT NMS Plan approved by the
Commission, and is designed to assist the Exchange in meeting its
regulatory obligations pursuant to the Plan. Similarly, all national
securities exchanges and FINRA are proposing this proposed rule 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 exchanges and FINRA.
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\20\ 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
No written comments were either solicited or received.
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:
Electronic Comments
Use the Commission's Internet comment form (https://www.sec.gov/rules/sro.shtml); or
Send an email to rule-comments@sec.gov. Please include
File Number SR-BX-2017-029 on the subject line.
[[Page 28708]]
Paper Comments
Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-BX-2017-029. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (https://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549, on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of the filing also will be available
for inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-BX-2017-029, and should be
submitted on or before July 14, 2017.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\21\
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\21\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017-13099 Filed 6-22-17; 8:45 am]
BILLING CODE 8011-01-P
