81_FR_15656 81 FR 15600 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Include U.S. Non-Display Policies in the Nasdaq Rule Book

81 FR 15600 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Include U.S. Non-Display Policies in the Nasdaq Rule Book

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 81, Issue 56 (March 23, 2016)

Page Range15600-15602
FR Document2016-06454

Federal Register, Volume 81 Issue 56 (Wednesday, March 23, 2016)
[Federal Register Volume 81, Number 56 (Wednesday, March 23, 2016)]
[Notices]
[Pages 15600-15602]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-06454]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-77392; File No. SR-NASDAQ-2016-036]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To 
Include U.S. Non-Display Policies in the Nasdaq Rule Book

March 17, 2016.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on March 4, 2016, The Nasdaq Stock Market LLC (``Nasdaq'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``SEC'' or ``Commission'') the proposed rule change as described in 
Items I, II, and III below, which Items have been prepared by the 
Exchange. The Commission is publishing this notice to

[[Page 15601]]

solicit comments on the proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to include U.S. non-display policies in the 
Nasdaq rule book under Nasdaq Rule 7023.
    The text of the proposed rule change is available on the Exchange's 
Web site at http://nasdaq.cchwallstreet.com, at the principal office of 
the Exchange, and at the Commission's Public Reference Room.

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

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

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

1. Purpose
    The Exchange proposes to amend Nasdaq Rule 7023 (NASDAQ Depth-of-
Book Data) by adding IM-7023-1. Nasdaq Rule 7023(a)(2)(B) defines 
``Non-Display Usage'' as any method of accessing depth-of-book \3\ 
``data that involves access or use by a machine or automated device 
without access or use of a display by a natural person or persons.'' 
IM-7023-1 will incorporate guidance regarding U.S. non-display policies 
into the Nasdaq rule book to provide additional detail with regard to 
specific data usages and thereby ensure greater transparency. The 
inclusion of these policies into the Nasdaq rule book will lessen 
ambiguity in this area without necessitating any changes by market 
participants. The Exchange has been working with both the industry and 
customers to ensure that they understand these policies.
---------------------------------------------------------------------------

    \3\ See Nasdaq Rule 7023(a)(1), which states that ``Depth-of-
Book'' refers to data feeds containing price quotations at more than 
one price level. These Nasdaq data feeds include Nasdaq Level 2, 
Nasdaq OpenView, and Nasdaq TotalView.
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    Specifically, IM-7023-1 will, in large part, include guidance 
regarding: (i) Devices (or servers) used in the transportation, 
dissemination or aggregation of data and ways to count such devices; 
(ii) examples and details of what constitutes fee-liable Non-Display 
Usage; (iii) examples and details of what Non-Display Usage does not 
include; and (iv) examples of how to report Non-Display Usage.
    IM-7023-1 will apply most specifically to distributors \4\ who 
access Nasdaq U.S information and use it in a non-display manner. IM-
7023-1 will also provide guidance in the form of examples of use cases 
and details on how the Nasdaq U.S. non-display policies should be 
applied and reported.
---------------------------------------------------------------------------

    \4\ See Nasdaq Rule 7023(a)(4).
---------------------------------------------------------------------------

    The Exchange believes that it will be beneficial to both 
distributors specifically and to market participants more generally to 
incorporate these policies into the Nasdaq rule book through the 
addition of IM-7023-1, as well as adding IM-7026-1, IM-7037-1, IM-7039-
1, IM-7047-1, and IM-7057-1 (collectively, the ``IMs'') that will be 
added following each of their respective rules and each refers back to 
IM-7023-1.
    The result will be to provide distributors additional clarity 
through increased transparency into U.S. non-display policies, 
including reporting requirements pertaining to non-display usage. The 
presentation of this guidance in a more transparent manner will, in 
turn, provide distributors with greater precision in making fee-liable 
Non-Display Usage determinations.
    These policies are a result of the Exchange working with the 
industry, as well as soliciting feedback from customers. Technology 
changes that create any new use cases will result in a separate Nasdaq 
filing. These U.S. non-display policies already are publicly available 
and can be found at https://www.nasdaqtrader.com/Trader.aspx?id=GDP_Ops, but their inclusion into the Exchange's rule 
book provides an additional way for market participants to easily find 
and review such policies.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act \5\ in general, and furthers the objectives of Sections 
6(b)(4) and 6(b)(5) of the Act \6\ in particular, in that it provides 
for the equitable allocation of reasonable dues, fees, and other 
charges among members and issuers and other persons using any facility 
or system which the Exchange operates or controls, and is not designed 
to permit unfair discrimination between customers, issuers, brokers, or 
dealers, and is consistent with the Section 6(b)(5) \7\ requirements 
that the rules of an exchange be designed to promote just and equitable 
principles of trade, to prevent fraudulent and manipulative acts and 
practices, to foster cooperation and coordination with persons engaged 
in facilitating transactions in securities, to remove impediments to 
and to perfect the mechanism for a free and open market and a national 
market system, and, in general, to protect investors and the public 
interest.
---------------------------------------------------------------------------

    \5\ 15 U.S.C. 78f(b).
    \6\ 15 U.S.C. 78f(b)(4) and (5).
    \7\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Commission and the courts have repeatedly expressed their 
preference for competition over regulatory intervention in determining 
prices, products, and services in the securities markets. In Regulation 
NMS, while adopting a series of steps to improve the current market 
model, the Commission highlighted the importance of market forces in 
determining prices and SRO revenues and, also, recognized that current 
regulation of the market system ``has been remarkably successful in 
promoting market competition in its broader forms that are most 
important to investors and listed companies.'' \8\ Likewise, in 
NetCoalition v. Securities and Exchange Commission \9\ 
(``NetCoalition'') the DC Circuit upheld the Commission's use of a 
market-based approach in evaluating the fairness of market data fees 
against a challenge claiming that Congress mandated a cost-based 
approach.\10\ As the court emphasized, the Commission ``intended in 
Regulation NMS that `market forces, rather than regulatory 
requirements' play a role in determining the market data . . . to be 
made available to investors and at what cost.'' \11\
---------------------------------------------------------------------------

    \8\ Securities Exchange Act Release No. 51808 at 37499 (June 9, 
2005) (``Regulation NMS Adopting Release'').
    \9\ NetCoalition v. SEC, 615 F.3d 525 (D.C. Cir. 2010).
    \10\ See NetCoalition, at 534.
    \11\ Id. at 537.
---------------------------------------------------------------------------

    Further, ``[n]o one disputes that competition for order flow is 
`fierce.' . . . As the SEC explained, `[i]n the U.S. national market 
system, buyers and sellers of securities, and the broker-dealers that 
act as their order-routing agents, have a wide range of choices of 
where to route orders for execution'; [and] `no exchange can afford to 
take its market share percentages for granted' because `no exchange 
possesses a monopoly, regulatory or otherwise, in the execution of 
order flow from broker

[[Page 15602]]

dealers'. . . .'' \12\ Although the court and the SEC were discussing 
the cash equities markets, the Exchange believes that these views apply 
with equal force to the options markets.
---------------------------------------------------------------------------

    \12\ Id. at 539 (quoting ArcaBook Order, 73 FR at 74782-74783).
---------------------------------------------------------------------------

    The proposed rule change to add IM-7023-1 and the other IMs to the 
rule book will, in large part, include guidance regarding: (i) Devices 
(or servers) used in the transportation, dissemination or aggregation 
of data and ways to count such devices; (ii) examples and details of 
what constitutes fee-liable Non-Display Usage; (iii) examples and 
details of what Non-Display Usage does not include; and (iv) examples 
of how to report Non-Display Usage.
    The Exchange believes that the proposed rule change is reasonable 
because it does not change any of the current practices or any dues, 
fees and other charges among members and issuers and other persons 
using any facility or system which the Exchange operates or controls. 
Rather, it adds transparency for market participants and provides for 
the equitable treatment for distributors through making all such U.S. 
non-display policies easily available and accessible to all 
distributors on an equal basis.
    In sum, the Exchange believes that the proposed rule change will 
provide transparency, clarity, and eliminate potential confusion that 
may exist for distributors and market participants regarding Non-
Display Usage and, thereby, will promote just and equitable principles 
of trade.

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

    The Exchange does not believe that the proposed rule change will 
impose a burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act. The Exchange believes that the 
proposed rule change will provide market participants guidance and 
greater clarity in making fee-liable Non-Display Usage determinations 
and, as a result, will serve to enhance competition.

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

    The foregoing change has become effective pursuant to Section 
19(b)(3)(A)(ii) of the Act.\13\ At any time within 60 days of the 
filing of the proposed rule change, the Commission summarily may 
temporarily suspend such rule change if it appears to the Commission 
that such action is necessary or appropriate in the public interest, 
for the protection of investors, or otherwise in furtherance of the 
purposes of the Act.
---------------------------------------------------------------------------

    \13\ 15 U.S.C. 78s(b)(3)(A)(ii).
---------------------------------------------------------------------------

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 (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-NASDAQ-2016-036 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NASDAQ-2016-036. 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 (http://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-NASDAQ-2016-036, and should 
be submitted on or before April 13, 2016.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\14\
---------------------------------------------------------------------------

    \14\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016-06454 Filed 3-22-16; 8:45 am]
BILLING CODE 8011-01-P



                                                  15600                       Federal Register / Vol. 81, No. 56 / Wednesday, March 23, 2016 / Notices

                                                  to Commission regulation of security-                   SDR when any information becomes                      potential SDR registrants to thoroughly
                                                  based swap data repositories (‘‘SDR’’),                 inaccurate. The SDR Rules also provide                develop and prepare a complete
                                                  the DFA Effective Date Order provided                   a process for the Commission to cancel                application for registration. Notices of
                                                  exemptions from Exchange Act Sections                   or revoke the registration of an SDR.                 completed Forms SDR will be published
                                                  13(n)(5)(D)(i), 13(n)(5)(F), 13(n)(5)(G),                  In addition to the requirements set                to afford interested persons an
                                                  13(n)(5)(H), 13(n)(7)(A), 13(n)(7)(B), and              forth in the SDR Rules, there are a                   opportunity to submit written
                                                  13(n)(7)(C), each of which will expire on               number of regulatory requirements                     comments concerning such
                                                  the earlier of (1) the date the                         applicable to SDRs once registered                    application.10 Given the SDR Rules
                                                  Commission grants registration to an                    under Regulation SBSR, which was                      Compliance Date, the temporary
                                                  SDR and (2) the earliest compliance date                adopted by the Commission at the same                 exemption should also provide staff
                                                  set forth in any of the final rules                     time as the SDR Rules.7 Regulation                    sufficient time to analyze adequately
                                                  regarding the registration of SDRs.2 The                SBSR provides for the reporting of                    any application materials that may be
                                                  DFA Effective Date Order also provided                  security-based swap information to                    submitted.
                                                  an exemption from Exchange Act                          registered SDRs, and the public
                                                                                                          dissemination of security-based swap                  II. Conclusion
                                                  Section 29(b) with respect to provisions
                                                  of the Exchange Act amended or added                    transaction, volume, and pricing                         Accordingly, the Commission hereby
                                                  by subtitle B of the Dodd-Frank Act for                 information by registered SDRs. Rule                  grants, pursuant to Section 36 of the
                                                  which compliance is triggered by                        907 of Regulation SBSR requires a                     Exchange Act, a temporary exemption
                                                  registration or by adoption of final rules              registered SDR to establish and maintain              from compliance with the SDR Rules
                                                  by the Commission, or for which the                     written policies and procedures for                   until June 30, 2016, and an extension of
                                                  Commission has provided an exception                    carrying out its duties under Regulation              the SDR Relief such that it will expire
                                                  or exemptive relief, until such date as                 SBSR.8                                                on the earlier of (1) the date the
                                                  the Commission specifies.3 Absent other                                                                       Commission grants registration to an
                                                                                                          II. Discussion
                                                  Commission action, these exemptions                                                                           SDR and (2) June 30, 2016.
                                                  relevant to SDRs (‘‘SDR Relief’’) will                     The Commission is using its authority                By the Commission.
                                                  expire as of March 18, 2016, as further                 under Section 36 of the Exchange Act to
                                                                                                                                                                Brent J. Fields,
                                                  explained below.                                        grant a temporary exemption from
                                                                                                          compliance with the SDR Rules until                   Secretary.
                                                     In February 2015, the Commission
                                                                                                          June 30, 2016 and to extend the SDR                   [FR Doc. 2016–06546 Filed 3–22–16; 8:45 am]
                                                  adopted Rules 13n–11 to 13n–112 under
                                                  the Exchange Act to govern SDRs (the                    Relief so that it will expire on the earlier          BILLING CODE 8011–01–P

                                                  ‘‘SDR Rules’’). The SDR Rules became                    of (1) the date the Commission grants
                                                  effective on May 18, 2015.4 The SDR                     registration to an SDR and (2) June 30,
                                                                                                          2016. The temporary exemption is                      SECURITIES AND EXCHANGE
                                                  Rules Release states that SDRs must be                                                                        COMMISSION
                                                  in compliance with the SDR Rules by                     designed to help facilitate the potential
                                                  March 18, 2016, which is 365 days after                 submission of any SDR applications.
                                                  publication of the SDR Rules in the                        Subject to certain exceptions, Section             [Release No. 34–77392; File No. SR–
                                                                                                          36 of the Exchange Act 9 authorizes the               NASDAQ–2016–036]
                                                  Federal Register (the ‘‘SDR Rules
                                                  Compliance Date’’).5 The SDR Rules                      Commission, by rule, regulation, or
                                                                                                          order, to exempt, either conditionally or             Self-Regulatory Organizations; The
                                                  Release also notes that (1) absent an                                                                         NASDAQ Stock Market LLC; Notice of
                                                  exemption, any SDR must be registered                   unconditionally, any person, security,
                                                                                                          or transaction, or any class or classes of            Filing and Immediate Effectiveness of
                                                  with the Commission and in compliance                                                                         Proposed Rule Change To Include U.S.
                                                  with the federal securities laws and the                persons, securities, or transactions, from
                                                                                                          any provision or provisions of the                    Non-Display Policies in the Nasdaq
                                                  rules and regulations thereunder                                                                              Rule Book
                                                  (including the applicable Dodd-Frank                    Exchange Act or any rule or regulation
                                                  Act provisions and all of the SDR Rules)                thereunder, to the extent that such                   March 17, 2016.
                                                  by the SDR Rules Compliance Date, and                   exemption is necessary or appropriate                    Pursuant to Section 19(b)(1) of the
                                                  (2) all exemptions that the Commission                  in the public interest, and is consistent             Securities Exchange Act of 1934
                                                  provided in the DFA Effective Date                      with the protection of investors. The                 (‘‘Act’’),1 and Rule 19b–4 thereunder,2
                                                  Order will expire on the compliance                     Commission finds that it is necessary                 notice is hereby given that on March 4,
                                                  date, including the exemptions set forth                and appropriate in the public interest,               2016, The Nasdaq Stock Market LLC
                                                  in the DFA Effective Date Order.6 The                   and consistent with the protection of                 (‘‘Nasdaq’’ or ‘‘Exchange’’) filed with the
                                                  SDR Rules govern the SDR registration                   investors to grant a temporary                        Securities and Exchange Commission
                                                  process, duties, and core principles. The               exemption from compliance with the                    (‘‘SEC’’ or ‘‘Commission’’) the proposed
                                                  12 core SDR Rules establish a                           SDR Rules until June 30, 2016. The SDR                rule change as described in Items I, II,
                                                  framework for SDRs to register with the                 Rules implement mandates under Title                  and III below, which Items have been
                                                  Commission by filing a new Form SDR,                    VII of the Dodd-Frank Act and govern                  prepared by the Exchange. The
                                                  and require an SDR to update its Form                   the SDR registration process, duties and              Commission is publishing this notice to
                                                                                                          core principles.
                                                  Exchange Act Applicable to Security-Based Swaps,           The Commission notes that the SDR                    10 In the SDR Rules Release, the Commission
                                                  Exchange Act Release No. 64678 (June 15, 2011), 76      Rules Compliance Date is less than one                stated that if a person files an amendment to its
                                                  FR 36287 (June 22, 2011) (the ‘‘DFA Effective Date      month away. The Commission believes                   application for registration after the Commission
jstallworth on DSK7TPTVN1PROD with NOTICES




                                                  Order’’).
                                                    2 See DFA Effective Date Order, 76 FR at 36306.
                                                                                                          that granting the temporary exemption                 has already published notice of the filing of its
                                                                                                          along with an extension of the SDR                    Form SDR and the Commission finds that the
                                                    3 See DFA Effective Date Order, 76 FR at 36305–
                                                                                                                                                                amendment renders the prior filing materially
                                                  36306.                                                  Relief will give additional time to                   incomplete, then the 90-day period pursuant to
                                                    4 See Exchange Act Release No. 74246 (Feb. 11,                                                              Rule 13n–11(c) will reset from the time that the
                                                  2015), 80 FR 14438 (Mar. 19, 2015) (‘‘SDR Rules           7 See Exchange Act Release No. 74244 (Feb. 11,      Commission deems the amended application to be
                                                  Release’’).                                             2015), 80 FR 14563 (Mar. 19, 2015).                   complete for the Commission’s review.
                                                    5 See SDR Rules Release, 80 FR at 14456.                8 See 17 CFR 242.907.                                 1 15 U.S.C. 78s(b)(1).
                                                    6 See id.                                               9 15 U.S.C. 78mm.                                     2 17 CFR 240.19b–4.




                                             VerDate Sep<11>2014   15:26 Mar 22, 2016   Jkt 238001   PO 00000   Frm 00103   Fmt 4703   Sfmt 4703   E:\FR\FM\23MRN1.SGM   23MRN1


                                                                              Federal Register / Vol. 81, No. 56 / Wednesday, March 23, 2016 / Notices                                                   15601

                                                  solicit comments on the proposed rule                   transportation, dissemination or                      unfair discrimination between
                                                  change from interested persons.                         aggregation of data and ways to count                 customers, issuers, brokers, or dealers,
                                                                                                          such devices; (ii) examples and details               and is consistent with the Section
                                                  I. Self-Regulatory Organization’s
                                                                                                          of what constitutes fee-liable Non-                   6(b)(5) 7 requirements that the rules of
                                                  Statement of the Terms of Substance of
                                                                                                          Display Usage; (iii) examples and details             an exchange be designed to promote just
                                                  the Proposed Rule Change
                                                                                                          of what Non-Display Usage does not                    and equitable principles of trade, to
                                                     The Exchange proposes to include                     include; and (iv) examples of how to                  prevent fraudulent and manipulative
                                                  U.S. non-display policies in the Nasdaq                 report Non-Display Usage.                             acts and practices, to foster cooperation
                                                  rule book under Nasdaq Rule 7023.                          IM–7023–1 will apply most                          and coordination with persons engaged
                                                     The text of the proposed rule change                 specifically to distributors 4 who access             in facilitating transactions in securities,
                                                  is available on the Exchange’s Web site                 Nasdaq U.S information and use it in a                to remove impediments to and to perfect
                                                  at http://nasdaq.cchwallstreet.com, at                  non-display manner. IM–7023–1 will                    the mechanism for a free and open
                                                  the principal office of the Exchange, and               also provide guidance in the form of
                                                                                                                                                                market and a national market system,
                                                  at the Commission’s Public Reference                    examples of use cases and details on
                                                                                                                                                                and, in general, to protect investors and
                                                  Room.                                                   how the Nasdaq U.S. non-display
                                                                                                                                                                the public interest.
                                                                                                          policies should be applied and reported.
                                                  II. Self-Regulatory Organization’s                                                                               The Commission and the courts have
                                                                                                             The Exchange believes that it will be
                                                  Statement of the Purpose of, and                                                                              repeatedly expressed their preference
                                                                                                          beneficial to both distributors
                                                  Statutory Basis for, the Proposed Rule
                                                                                                          specifically and to market participants               for competition over regulatory
                                                  Change
                                                                                                          more generally to incorporate these                   intervention in determining prices,
                                                    In its filing with the Commission, the                policies into the Nasdaq rule book                    products, and services in the securities
                                                  Exchange included statements                            through the addition of IM–7023–1, as                 markets. In Regulation NMS, while
                                                  concerning the purpose of and basis for                 well as adding IM–7026–1, IM–7037–1,                  adopting a series of steps to improve the
                                                  the proposed rule change and discussed                  IM–7039–1, IM–7047–1, and IM–7057–                    current market model, the Commission
                                                  any comments it received on the                         1 (collectively, the ‘‘IMs’’) that will be            highlighted the importance of market
                                                  proposed rule change. The text of these                 added following each of their respective              forces in determining prices and SRO
                                                  statements may be examined at the                       rules and each refers back to IM–7023–                revenues and, also, recognized that
                                                  places specified in Item IV below. The                  1.                                                    current regulation of the market system
                                                  Exchange has prepared summaries, set                       The result will be to provide                      ‘‘has been remarkably successful in
                                                  forth in sections A, B, and C below, of                 distributors additional clarity through               promoting market competition in its
                                                  the most significant aspects of such                    increased transparency into U.S. non-                 broader forms that are most important to
                                                  statements.                                             display policies, including reporting
                                                                                                                                                                investors and listed companies.’’ 8
                                                                                                          requirements pertaining to non-display
                                                  A. Self-Regulatory Organization’s                                                                             Likewise, in NetCoalition v. Securities
                                                                                                          usage. The presentation of this guidance
                                                  Statement of the Purpose of, and                                                                              and Exchange Commission 9
                                                                                                          in a more transparent manner will, in
                                                  Statutory Basis for, the Proposed Rule                                                                        (‘‘NetCoalition’’) the DC Circuit upheld
                                                                                                          turn, provide distributors with greater
                                                  Change                                                                                                        the Commission’s use of a market-based
                                                                                                          precision in making fee-liable Non-
                                                  1. Purpose                                              Display Usage determinations.                         approach in evaluating the fairness of
                                                                                                             These policies are a result of the                 market data fees against a challenge
                                                     The Exchange proposes to amend                                                                             claiming that Congress mandated a cost-
                                                  Nasdaq Rule 7023 (NASDAQ Depth-of-                      Exchange working with the industry, as
                                                                                                          well as soliciting feedback from                      based approach.10 As the court
                                                  Book Data) by adding IM–7023–1.                                                                               emphasized, the Commission ‘‘intended
                                                  Nasdaq Rule 7023(a)(2)(B) defines                       customers. Technology changes that
                                                                                                          create any new use cases will result in               in Regulation NMS that ‘market forces,
                                                  ‘‘Non-Display Usage’’ as any method of                                                                        rather than regulatory requirements’
                                                  accessing depth-of-book 3 ‘‘data that                   a separate Nasdaq filing. These U.S.
                                                                                                          non-display policies already are                      play a role in determining the market
                                                  involves access or use by a machine or                                                                        data . . . to be made available to
                                                  automated device without access or use                  publicly available and can be found at
                                                                                                          https://www.nasdaqtrader.com/                         investors and at what cost.’’ 11
                                                  of a display by a natural person or
                                                  persons.’’ IM–7023–1 will incorporate                   Trader.aspx?id=GDP_Ops, but their                        Further, ‘‘[n]o one disputes that
                                                  guidance regarding U.S. non-display                     inclusion into the Exchange’s rule book               competition for order flow is ‘fierce.’
                                                  policies into the Nasdaq rule book to                   provides an additional way for market                 . . . As the SEC explained, ‘[i]n the U.S.
                                                  provide additional detail with regard to                participants to easily find and review                national market system, buyers and
                                                  specific data usages and thereby ensure                 such policies.                                        sellers of securities, and the broker-
                                                  greater transparency. The inclusion of                  2. Statutory Basis                                    dealers that act as their order-routing
                                                  these policies into the Nasdaq rule book                                                                      agents, have a wide range of choices of
                                                                                                             The Exchange believes that its
                                                  will lessen ambiguity in this area                      proposal is consistent with Section 6(b)              where to route orders for execution’;
                                                  without necessitating any changes by                    of the Act 5 in general, and furthers the             [and] ‘no exchange can afford to take its
                                                  market participants. The Exchange has                   objectives of Sections 6(b)(4) and 6(b)(5)            market share percentages for granted’
                                                  been working with both the industry                     of the Act 6 in particular, in that it                because ‘no exchange possesses a
                                                  and customers to ensure that they                       provides for the equitable allocation of              monopoly, regulatory or otherwise, in
                                                  understand these policies.                              reasonable dues, fees, and other charges              the execution of order flow from broker
                                                     Specifically, IM–7023–1 will, in large
jstallworth on DSK7TPTVN1PROD with NOTICES




                                                                                                          among members and issuers and other
                                                  part, include guidance regarding: (i)                   persons using any facility or system                    7 15 U.S.C. 78f(b)(5).
                                                  Devices (or servers) used in the                        which the Exchange operates or
                                                                                                                                                                  8 Securities Exchange Act Release No. 51808 at
                                                                                                                                                                37499 (June 9, 2005) (‘‘Regulation NMS Adopting
                                                     3 See Nasdaq Rule 7023(a)(1), which states that
                                                                                                          controls, and is not designed to permit               Release’’).
                                                                                                                                                                  9 NetCoalition v. SEC, 615 F.3d 525 (D.C. Cir.
                                                  ‘‘Depth-of-Book’’ refers to data feeds containing
                                                                                                            4 See Nasdaq Rule 7023(a)(4).                       2010).
                                                  price quotations at more than one price level. These
                                                                                                            5 15 U.S.C. 78f(b).                                   10 See NetCoalition, at 534.
                                                  Nasdaq data feeds include Nasdaq Level 2, Nasdaq
                                                  OpenView, and Nasdaq TotalView.                           6 15 U.S.C. 78f(b)(4) and (5).                        11 Id. at 537.




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                                                  15602                       Federal Register / Vol. 81, No. 56 / Wednesday, March 23, 2016 / Notices

                                                  dealers’. . . .’’ 12 Although the court                  III. Date of Effectiveness of the                        inspection and copying at the principal
                                                  and the SEC were discussing the cash                     Proposed Rule Change and Timing for                      office of the Exchange. All comments
                                                  equities markets, the Exchange believes                  Commission Action                                        received will be posted without change;
                                                  that these views apply with equal force                     The foregoing change has become                       the Commission does not edit personal
                                                  to the options markets.                                  effective pursuant to Section                            identifying information from
                                                                                                           19(b)(3)(A)(ii) of the Act.13 At any time                submissions. You should submit only
                                                     The proposed rule change to add IM–
                                                                                                           within 60 days of the filing of the                      information that you wish to make
                                                  7023–1 and the other IMs to the rule
                                                                                                           proposed rule change, the Commission                     available publicly. All submissions
                                                  book will, in large part, include                                                                                 should refer to File Number SR–
                                                  guidance regarding: (i) Devices (or                      summarily may temporarily suspend
                                                                                                           such rule change if it appears to the                    NASDAQ–2016–036, and should be
                                                  servers) used in the transportation,                                                                              submitted on or before April 13, 2016.
                                                  dissemination or aggregation of data and                 Commission that such action is
                                                                                                           necessary or appropriate in the public                     For the Commission, by the Division of
                                                  ways to count such devices; (ii)
                                                                                                           interest, for the protection of investors,               Trading and Markets, pursuant to delegated
                                                  examples and details of what constitutes                                                                          authority.14
                                                  fee-liable Non-Display Usage; (iii)                      or otherwise in furtherance of the
                                                                                                           purposes of the Act.                                     Robert W. Errett,
                                                  examples and details of what Non-
                                                                                                                                                                    Deputy Secretary.
                                                  Display Usage does not include; and (iv)                 IV. Solicitation of Comments
                                                                                                                                                                    [FR Doc. 2016–06454 Filed 3–22–16; 8:45 am]
                                                  examples of how to report Non-Display                      Interested persons are invited to                      BILLING CODE 8011–01–P
                                                  Usage.                                                   submit written data, views, and
                                                     The Exchange believes that the                        arguments concerning the foregoing,
                                                  proposed rule change is reasonable                       including whether the proposed rule                      SMALL BUSINESS ADMINISTRATION
                                                  because it does not change any of the                    change is consistent with the Act.
                                                  current practices or any dues, fees and                  Comments may be submitted by any of                      [Disaster Declaration #14673 and #14674]
                                                  other charges among members and                          the following methods:
                                                                                                                                                                    Delaware Disaster #DE–00005
                                                  issuers and other persons using any                      Electronic Comments
                                                  facility or system which the Exchange                                                                             AGENCY: U.S. Small Business
                                                  operates or controls. Rather, it adds                      • Use the Commission’s Internet                        Administration.
                                                  transparency for market participants                     comment form (http://www.sec.gov/                        ACTION: Notice.
                                                                                                           rules/sro.shtml); or
                                                  and provides for the equitable treatment
                                                                                                             • Send an email to rule-comments@                      SUMMARY:   This is a Notice of the
                                                  for distributors through making all such
                                                                                                           sec.gov. Please include File Number SR–                  Presidential declaration of a major
                                                  U.S. non-display policies easily                                                                                  disaster for Public Assistance Only for
                                                                                                           NASDAQ–2016–036 on the subject line.
                                                  available and accessible to all                                                                                   the State of Delaware (FEMA–4265–DR),
                                                  distributors on an equal basis.                          Paper Comments                                           dated 03/16/2016.
                                                     In sum, the Exchange believes that the                   • Send paper comments in triplicate                      Incident: Severe Winter Storm and
                                                  proposed rule change will provide                        to Brent J. Fields, Secretary, Securities                Flooding.
                                                  transparency, clarity, and eliminate                     and Exchange Commission, 100 F Street                       Incident Period: 01/22/2016 through
                                                  potential confusion that may exist for                   NE., Washington, DC 20549–1090.                          01/23/2016.
                                                  distributors and market participants                     All submissions should refer to File                        Effective Date: 03/16/2016.
                                                                                                           Number SR–NASDAQ–2016–036. This                             Physical Loan Application Deadline
                                                  regarding Non-Display Usage and,
                                                                                                           file number should be included on the                    Date: 05/16/2016.
                                                  thereby, will promote just and equitable                                                                             Economic Injury (EIDL) Loan
                                                  principles of trade.                                     subject line if email is used. To help the
                                                                                                                                                                    Application Deadline Date: 12/16/2016.
                                                                                                           Commission process and review your
                                                  B. Self-Regulatory Organization’s                        comments more efficiently, please use                    ADDRESSES: Submit completed loan
                                                  Statement on Burden on Competition                       only one method. The Commission will                     applications to: U.S. Small Business
                                                                                                           post all comments on the Commission’s                    Administration, Processing and
                                                    The Exchange does not believe that                                                                              Disbursement Center, 14925 Kingsport
                                                                                                           Internet Web site (http://www.sec.gov/
                                                  the proposed rule change will impose a                                                                            Road, Fort Worth, TX 76155.
                                                                                                           rules/sro.shtml). Copies of the
                                                  burden on competition that is not                                                                                 FOR FURTHER INFORMATION CONTACT: A.
                                                                                                           submission, all subsequent
                                                  necessary or appropriate in furtherance                  amendments, all written statements                       Escobar, Office of Disaster Assistance,
                                                  of the purposes of the Act. The                          with respect to the proposed rule                        U.S. Small Business Administration,
                                                  Exchange believes that the proposed                      change that are filed with the                           409 3rd Street SW., Suite 6050,
                                                  rule change will provide market                          Commission, and all written                              Washington, DC 20416.
                                                  participants guidance and greater clarity                communications relating to the                           SUPPLEMENTARY INFORMATION: Notice is
                                                  in making fee-liable Non-Display Usage                   proposed rule change between the                         hereby given that as a result of the
                                                  determinations and, as a result, will                    Commission and any person, other than                    President’s major disaster declaration on
                                                  serve to enhance competition.                            those that may be withheld from the                      03/16/2016, Private Non-Profit
                                                                                                           public in accordance with the                            organizations that provide essential
                                                  C. Self-Regulatory Organization’s                                                                                 services of governmental nature may file
                                                                                                           provisions of 5 U.S.C. 552, will be
                                                  Statement on Comments on the                                                                                      disaster loan applications at the address
                                                                                                           available for Web site viewing and
                                                  Proposed Rule Change Received From                                                                                listed above or other locally announced
jstallworth on DSK7TPTVN1PROD with NOTICES




                                                                                                           printing in the Commission’s Public
                                                  Members, Participants, or Others                         Reference Room, 100 F Street NE.,                        locations.
                                                                                                           Washington, DC 20549 on official                            The following areas have been
                                                    No written comments were either
                                                                                                           business days between the hours of                       determined to be adversely affected by
                                                  solicited or received.
                                                                                                           10:00 a.m. and 3:00 p.m. Copies of the                   the disaster:
                                                                                                           filing also will be available for                        Primary Counties: Sussex.
                                                    12 Id. at 539 (quoting ArcaBook Order, 73 FR at

                                                  74782–74783).                                              13 15   U.S.C. 78s(b)(3)(A)(ii).                         14 17   CFR 200.30–3(a)(12).



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Document Created: 2016-03-23 00:03:23
Document Modified: 2016-03-23 00:03:23
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
FR Citation81 FR 15600 

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