81_FR_51405 81 FR 51256 - Program for Allocation of Regulatory Responsibilities Pursuant to Rule 17d-2; Order Approving and Declaring Effective a Proposed Plan for the Allocation of Regulatory Responsibilities Between the Financial Industry Regulatory Authority, Inc. and the Investors Exchange LLC

81 FR 51256 - Program for Allocation of Regulatory Responsibilities Pursuant to Rule 17d-2; Order Approving and Declaring Effective a Proposed Plan for the Allocation of Regulatory Responsibilities Between the Financial Industry Regulatory Authority, Inc. and the Investors Exchange LLC

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 81, Issue 149 (August 3, 2016)

Page Range51256-51258
FR Document2016-18316

Federal Register, Volume 81 Issue 149 (Wednesday, August 3, 2016)
[Federal Register Volume 81, Number 149 (Wednesday, August 3, 2016)]
[Notices]
[Pages 51256-51258]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-18316]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-78434; File No. 4-700]


Program for Allocation of Regulatory Responsibilities Pursuant to 
Rule 17d-2; Order Approving and Declaring Effective a Proposed Plan for 
the Allocation of Regulatory Responsibilities Between the Financial 
Industry Regulatory Authority, Inc. and the Investors Exchange LLC

July 28, 2016.
    On June 20, 2016, the Financial Industry Regulatory Authority, Inc. 
(``FINRA'') and the Investors Exchange LLC (``IEX'') (together with 
FINRA, the ``Parties'') filed with the Securities and Exchange 
Commission (``Commission'' or ``SEC'') a plan for the allocation of

[[Page 51257]]

regulatory responsibilities, dated June 20, 2016 (``17d-2 Plan'' or the 
``Plan''). The Plan was published for comment on July 5, 2016.\1\ The 
Commission received no comments on the Plan. This order approves and 
declares effective the Plan.
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    \1\ See Securities Exchange Act Release No. 78179 (June 28, 
2016), 81 FR 43673.
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I. Introduction

    Section 19(g)(1) of the Securities Exchange Act of 1934 
(``Act''),\2\ among other things, requires every self-regulatory 
organization (``SRO'') registered as either a national securities 
exchange or national securities association to examine for, and enforce 
compliance by, its members and persons associated with its members with 
the Act, the rules and regulations thereunder, and the SRO's own rules, 
unless the SRO is relieved of this responsibility pursuant to Section 
17(d) or Section 19(g)(2) of the Act.\3\ Without this relief, the 
statutory obligation of each individual SRO could result in a pattern 
of multiple examinations of broker-dealers that maintain memberships in 
more than one SRO (``common members''). Such regulatory duplication 
would add unnecessary expenses for common members and their SROs.
---------------------------------------------------------------------------

    \2\ 15 U.S.C. 78s(g)(1).
    \3\ 15 U.S.C. 78q(d) and 15 U.S.C. 78s(g)(2), respectively.
---------------------------------------------------------------------------

    Section 17(d)(1) of the Act \4\ was intended, in part, to eliminate 
unnecessary multiple examinations and regulatory duplication.\5\ With 
respect to a common member, Section 17(d)(1) authorizes the Commission, 
by rule or order, to relieve an SRO of the responsibility to receive 
regulatory reports, to examine for and enforce compliance with 
applicable statutes, rules, and regulations, or to perform other 
specified regulatory functions.
---------------------------------------------------------------------------

    \4\ 15 U.S.C. 78q(d)(1).
    \5\ See Securities Act Amendments of 1975, Report of the Senate 
Committee on Banking, Housing, and Urban Affairs to Accompany S. 
249, S. Rep. No. 94-75, 94th Cong., 1st Session 32 (1975).
---------------------------------------------------------------------------

    To implement Section 17(d)(1), the Commission adopted two rules: 
Rule 17d-1 and Rule 17d-2 under the Act.\6\ Rule 17d-1 authorizes the 
Commission to name a single SRO as the designated examining authority 
(``DEA'') to examine common members for compliance with the financial 
responsibility requirements imposed by the Act, or by Commission or SRO 
rules.\7\ When an SRO has been named as a common member's DEA, all 
other SROs to which the common member belongs are relieved of the 
responsibility to examine the firm for compliance with the applicable 
financial responsibility rules. On its face, Rule 17d-1 deals only with 
an SRO's obligations to enforce member compliance with financial 
responsibility requirements. Rule 17d-1 does not relieve an SRO from 
its obligation to examine a common member for compliance with its own 
rules and provisions of the federal securities laws governing matters 
other than financial responsibility, including sales practices and 
trading activities and practices.
---------------------------------------------------------------------------

    \6\ 17 CFR 240.17d-1 and 17 CFR 240.17d-2, respectively.
    \7\ See Securities Exchange Act Release No. 12352 (April 20, 
1976), 41 FR 18808 (May 7, 1976).
---------------------------------------------------------------------------

    To address regulatory duplication in these and other areas, the 
Commission adopted Rule 17d-2 under the Act.\8\ Rule 17d-2 permits SROs 
to propose joint plans for the allocation of regulatory 
responsibilities with respect to their common members. Under paragraph 
(c) of Rule 17d-2, the Commission may declare such a plan effective if, 
after providing for appropriate notice and comment, it determines that 
the plan is necessary or appropriate in the public interest and for the 
protection of investors; to foster cooperation and coordination among 
the SROs; to remove impediments to, and foster the development of, a 
national market system and a national clearance and settlement system; 
and is in conformity with the factors set forth in Section 17(d) of the 
Act. Commission approval of a plan filed pursuant to Rule 17d-2 
relieves an SRO of those regulatory responsibilities allocated by the 
plan to another SRO.
---------------------------------------------------------------------------

    \8\ See Securities Exchange Act Release No. 12935 (October 28, 
1976), 41 FR 49091 (November 8, 1976).
---------------------------------------------------------------------------

II. Proposed Plan

    The proposed 17d-2 Plan is intended to reduce regulatory 
duplication for firms that are common members of both IEX and FINRA.\9\ 
Pursuant to the proposed 17d-2 Plan, FINRA would assume certain 
examination and enforcement responsibilities for common members with 
respect to certain applicable laws, rules, and regulations.
---------------------------------------------------------------------------

    \9\ The proposed 17d-2 Plan refers to these common members as 
``Dual Members.'' See Paragraph 1(c) of the proposed 17d-2 Plan.
---------------------------------------------------------------------------

    The text of the Plan delineates the proposed regulatory 
responsibilities with respect to the Parties. Included in the proposed 
Plan is an exhibit (the ``IEX Certification of Common Rules,'' referred 
to herein as the ``Certification'') that lists every IEX rule, and 
select federal securities laws, rules, and regulations, for which FINRA 
would bear responsibility under the Plan for overseeing and enforcing 
with respect to IEX members that are also members of FINRA and the 
associated persons therewith (``Dual Members'').
    Specifically, under the 17d-2 Plan, FINRA would assume examination 
and enforcement responsibility relating to compliance by Dual Members 
with the rules of IEX that are substantially similar to the applicable 
rules of FINRA,\10\ as well as any provisions of the federal securities 
laws and the rules and regulations thereunder delineated in the 
Certification (``Common Rules''). In the event that a Dual Member is 
the subject of an investigation relating to a transaction on IEX, the 
plan acknowledges that IEX may, in its discretion, exercise concurrent 
jurisdiction and responsibility for such matter.\11\
---------------------------------------------------------------------------

    \10\ See paragraph 1(b) of the proposed 17d-2 Plan (defining 
Common Rules). See also paragraph 1(f) of the proposed 17d-2 Plan 
(defining Regulatory Responsibilities). Paragraph 2 of the Plan 
provides that annually, or more frequently as required by changes in 
either IEX rules or FINRA rules, the parties shall review and 
update, if necessary, the list of Common Rules. Further, paragraph 3 
of the Plan provides that IEX shall furnish FINRA with a list of 
Dual Members, and shall update the list no less frequently than once 
each calendar quarter.
    \11\ See paragraph 6 of the proposed 17d-2 Plan.
---------------------------------------------------------------------------

    Under the Plan, IEX would retain full responsibility for 
surveillance and enforcement with respect to trading activities or 
practices involving IEX's own marketplace, including, without 
limitation, registration pursuant to its applicable rules of associated 
persons (i.e., registration rules that are not Common Rules); its 
duties as a DEA pursuant to Rule 17d-1 under the Act; and any IEX rules 
that are not Common Rules.\12\
---------------------------------------------------------------------------

    \12\ See paragraph 2 of the proposed 17d-2 Plan.
---------------------------------------------------------------------------

III. Discussion

    The Commission finds that the proposed Plan is consistent with the 
factors set forth in Section 17(d) of the Act \13\ and Rule 17d-2(c) 
thereunder \14\ in that the proposed Plan is necessary or appropriate 
in the public interest and for the protection of investors, fosters 
cooperation and coordination among SROs, and removes impediments to and 
fosters the development of the national market system. In particular, 
the Commission believes that the proposed Plan should reduce 
unnecessary regulatory duplication by allocating to FINRA certain 
examination and enforcement responsibilities for common members that 
would otherwise be performed by IEX and FINRA. Accordingly, the 
proposed Plan promotes efficiency by reducing costs to

[[Page 51258]]

common members. Furthermore, because IEX and FINRA will coordinate 
their regulatory functions in accordance with the Plan, the Plan should 
promote investor protection.
---------------------------------------------------------------------------

    \13\ 15 U.S.C. 78q(d).
    \14\ 17 CFR 240.17d-2(c).
---------------------------------------------------------------------------

    The Commission notes that, under the Plan, IEX and FINRA have 
allocated regulatory responsibility for those IEX rules, set forth in 
the Certification, that are substantially similar to the applicable 
FINRA rules in that examination for compliance with such provisions and 
rules would not require FINRA to develop one or more new examination 
standards, modules, procedures, or criteria in order to analyze the 
application of the rule, or a common member's activity, conduct, or 
output in relation to such rule. In addition, under the Plan, FINRA 
would assume regulatory responsibility for certain provisions of the 
federal securities laws and the rules and regulations thereunder that 
are set forth in the Certification. The Common Rules covered by the 
Plan are specifically listed in the Certification, as may be amended by 
the Parties from time to time.
    According to the Plan, IEX will review the Certification, at least 
annually, or more frequently if required by changes in either the rules 
of IEX or FINRA, and, if necessary, submit to FINRA an updated list of 
Common Rules to add IEX rules not included on the then-current list of 
Common Rules that are substantially similar to FINRA rules; delete IEX 
rules included in the then-current list of Common Rules that are no 
longer substantially similar to FINRA rules; and confirm that the 
remaining rules on the list of Common Rules continue to be IEX rules 
that are substantially similar to FINRA rules.\15\ FINRA will then 
confirm in writing whether the rules listed in any updated list are 
Common Rules as defined in the Plan. Under the Plan, IEX will also 
provide FINRA with a current list of common members and shall update 
the list no less frequently than once each quarter.\16\ The Commission 
believes that these provisions are designed to provide for continuing 
communication between the Parties to ensure the continued accuracy of 
the scope of the proposed allocation of regulatory responsibility.
---------------------------------------------------------------------------

    \15\ See paragraph 2 of the Plan.
    \16\ See paragraph 3 of the Plan.
---------------------------------------------------------------------------

    The Commission is hereby declaring effective a Plan that, among 
other things, allocates regulatory responsibility to FINRA for the 
oversight and enforcement of all IEX rules that are substantially 
similar to the rules of FINRA for common members of IEX and FINRA. 
Therefore, modifications to the Certification need not be filed with 
the Commission as an amendment to the Plan, provided that the Parties 
are only adding to, deleting from, or confirming changes to IEX rules 
in the Certification in conformance with the definition of Common Rules 
provided in the Plan. However, should the Parties decide to add an IEX 
rule to the Certification that is not substantially similar to a FINRA 
rule; delete an IEX rule from the Certification that is substantially 
similar to a FINRA rule; or leave on the Certification an IEX rule that 
is no longer substantially similar to a FINRA rule, then such a change 
would constitute an amendment to the Plan, which must be filed with the 
Commission pursuant to Rule 17d-2 under the Act.\17\
---------------------------------------------------------------------------

    \17\ The Commission also notes that the addition to or deletion 
from the Certification of any federal securities laws, rules, and 
regulations for which FINRA would bear responsibility under the Plan 
for examining, and enforcing compliance by, common members, also 
would constitute an amendment to the Plan.
---------------------------------------------------------------------------

IV. Conclusion

    This Order gives effect to the Plan filed with the Commission in 
File No. 4-700. The Parties shall notify all members affected by the 
Plan of their rights and obligations under the Plan.
    IT IS THEREFORE ORDERED, pursuant to Section 17(d) of the Act, that 
the Plan in File No. 4-700, between FINRA and IEX, filed pursuant to 
Rule 17d-2 under the Act, is approved and declared effective.
    IT IS FURTHER ORDERED that IEX is relieved of those 
responsibilities allocated to FINRA under the Plan in File No. 4-700.
---------------------------------------------------------------------------

    \18\ 17 CFR 200.30-3(a)(34).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\18\
Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016-18316 Filed 8-2-16; 8:45 am]
 BILLING CODE 8011-01-P



                                                    51256                       Federal Register / Vol. 81, No. 149 / Wednesday, August 3, 2016 / Notices

                                                    exempted securities as defined in                       No. 3, is consistent with Section 6(b)(5)             2016–056, and should be submitted on
                                                    Section 3(a)(12) of the Exchange Act.                   of the Act 41 and Section                             or before August 24, 2016.
                                                       (10) The Fund may hold up to an                      11A(a)(1)(C)(iii) of the Act 42 and the
                                                                                                                                                                  V. Accelerated Approval of the
                                                    aggregate amount of 15% of its net                      rules and regulations thereunder
                                                                                                                                                                  Proposed Rule Change, as Modified by
                                                    assets in illiquid assets (calculated at                applicable to a national securities
                                                                                                                                                                  Amendment No. 3
                                                    the time of investment), including Rule                 exchange.
                                                    144A corporate debt securities deemed                                                                           The Commission finds good cause to
                                                                                                            IV. Solicitation of Comments on                       approve the proposed rule change, as
                                                    illiquid by the Adviser.
                                                                                                            Amendment No. 3                                       modified by Amendment No. 3, prior to
                                                       (11) The Fund’s investments will be
                                                    consistent with the Fund’s investment                     Interested persons are invited to                   the thirtieth day after the date of
                                                    objectives. The Fund does not presently                 submit written data, views, and                       publication of Amendment No. 3 in the
                                                    intend to engage in any form of                         arguments concerning whether                          Federal Register. The changes and
                                                    borrowing for investment purposes, and                  Amendment No. 3 is consistent with the                additional information in Amendment
                                                    will not be operated as a ‘‘leveraged                   Act. Comments may be submitted by                     No. 3 helped the Commission to
                                                    ETF,’’ i.e., it will not be operated in a               any of the following methods:                         evaluate the Shares’ susceptibility to
                                                    manner designed to seek a multiple or                                                                         manipulation and whether the listing
                                                                                                            Electronic Comments
                                                    inverse multiple of the performance of                                                                        and trading of the Shares would be
                                                    an underlying reference index.                            • Use the Commission’s Internet                     consistent with the protection of
                                                       (12) A minimum of 100,000 Shares                     comment form (http://www.sec.gov/                     investors and the public interest.
                                                    will be outstanding at the                              rules/sro.shtml); or                                  Amendment No. 3 also provided
                                                    commencement of trading on the                            • Send an email to rule-comments@                   clarifications and additional details to
                                                    Exchange.                                               sec.gov. Please include File No. SR–                  the proposed rule change. Accordingly,
                                                                                                            NASDAQ–2016–056 on the subject line.                  the Commission finds good cause for
                                                    The Exchange represents that all
                                                    statements and representations made in                  Paper Comments                                        approving the proposed rule change, as
                                                    the filing regarding (a) the description of                                                                   modified by Amendment No. 3, on an
                                                                                                               • Send paper comments in triplicate                accelerated basis, pursuant to Section
                                                    the portfolio, (b) limitations on portfolio             to Secretary, Securities and Exchange
                                                    holdings or reference assets, or (c) the                                                                      19(b)(2) of the Act.43
                                                                                                            Commission, 100 F Street NE.,
                                                    applicability of Exchange rules and                     Washington, DC 20549–1090.                            VI. Conclusion
                                                    surveillance procedures shall constitute                All submissions should refer to File No.                It is therefore ordered, pursuant to
                                                    continued listing requirements for                      SR–NASDAQ–2016–056. This file                         Section 19(b)(2) of the Act,44 that the
                                                    listing the Shares on the Exchange. In                  number should be included on the                      proposed rule change (SR–NASDAQ–
                                                    addition, the issuer has represented to                 subject line if email is used. To help the            2016–056), as modified by Amendment
                                                    the Exchange that it will advise the                    Commission process and review your                    No. 3, be, and it hereby is, approved on
                                                    Exchange of any failure by the Fund to                  comments more efficiently, please use                 an accelerated basis.
                                                    comply with the continued listing                       only one method. The Commission will
                                                    requirements, and, pursuant to its                                                                              For the Commission, by the Division of
                                                                                                            post all comments on the Commission’s                 Trading and Markets, pursuant to delegated
                                                    obligations under Section 19(g)(1) of the               Internet Web site (http://www.sec.gov/                authority.45
                                                    Act, the Exchange will monitor for                      rules/sro.shtml). Copies of the
                                                    compliance with the continued listing                                                                         Robert W. Errett,
                                                                                                            submission, all subsequent                            Deputy Secretary.
                                                    requirements.40 If the Fund is not in                   amendments, all written statements
                                                    compliance with the applicable listing                                                                        [FR Doc. 2016–18319 Filed 8–2–16; 8:45 am]
                                                                                                            with respect to the proposed rule
                                                    requirements, the Exchange will                         change that are filed with the
                                                                                                                                                                  BILLING CODE 8011–01–P
                                                    commence delisting procedures under                     Commission, and all written
                                                    the Nasdaq 5800 Series.                                 communications relating to the
                                                       This order is based on all of the                                                                          SECURITIES AND EXCHANGE
                                                                                                            proposed rule change between the                      COMMISSION
                                                    Exchange’s representations, including                   Commission and any person, other than
                                                    those set forth above and in the Notice,                those that may be withheld from the                   [Release No. 34–78434; File No. 4–700]
                                                    as modified by Amendment No. 3. The                     public in accordance with the
                                                    Commission notes that the Fund and the                                                                        Program for Allocation of Regulatory
                                                                                                            provisions of 5 U.S.C. 552, will be
                                                    Shares must comply with the                                                                                   Responsibilities Pursuant to Rule 17d–
                                                                                                            available for Web site viewing and
                                                    requirements of Nasdaq Rule 5735 for                                                                          2; Order Approving and Declaring
                                                                                                            printing in the Commission’s Public
                                                    the Shares to be listed and traded on the                                                                     Effective a Proposed Plan for the
                                                                                                            Reference Room, 100 F Street NE.,
                                                    Exchange.                                                                                                     Allocation of Regulatory
                                                                                                            Washington, DC 20549 on official
                                                       For the foregoing reasons, the                                                                             Responsibilities Between the Financial
                                                                                                            business days between the hours of
                                                    Commission finds that the proposed                                                                            Industry Regulatory Authority, Inc. and
                                                                                                            10:00 a.m. and 3:00 p.m. Copies of such
                                                    rule change, as modified by Amendment                                                                         the Investors Exchange LLC
                                                                                                            filing also will be available for
                                                      40 The Commission notes that certain other
                                                                                                            inspection and copying at the principal               July 28, 2016.
                                                    proposals for the listing and trading of Managed        office of the Exchange. All comments                     On June 20, 2016, the Financial
                                                    Fund Shares include a representation that the           received will be posted without change;               Industry Regulatory Authority, Inc.
asabaliauskas on DSK3SPTVN1PROD with NOTICES




                                                    exchange will ‘‘surveil’’ for compliance with the       the Commission does not edit personal                 (‘‘FINRA’’) and the Investors Exchange
                                                    continued listing requirements. See, e.g., Securities
                                                    Exchange Act Release No. 77499 (April 1, 2016), 81
                                                                                                            identifying information from                          LLC (‘‘IEX’’) (together with FINRA, the
                                                    FR 20428 (April 7, 2016) (SR–BATS–2016–04). In          submissions. You should submit only                   ‘‘Parties’’) filed with the Securities and
                                                    the context of this representation, it is the           information that you wish to make                     Exchange Commission (‘‘Commission’’
                                                    Commission’s view that ‘‘monitor’’ and ‘‘surveil’’      available publicly. All submissions                   or ‘‘SEC’’) a plan for the allocation of
                                                    both mean ongoing oversight of a fund’s compliance
                                                    with the continued listing requirements. Therefore,
                                                                                                            should refer to File No. SR–NASDAQ–
                                                                                                                                                                    43 15    U.S.C. 78s(b)(2).
                                                    the Commission does not view ‘‘monitor’’ as a more
                                                                                                              41 15 U.S.C. 78f(b)(5).                               44 Id.
                                                    or less stringent obligation than ‘‘surveil’’ with
                                                    respect to the continued listing requirements.            42 15 U.S.C. 78k–1(a)(1)(C)(iii).                     45 17    CFR 200.30–3(a)(12).



                                               VerDate Sep<11>2014   18:21 Aug 02, 2016   Jkt 238001   PO 00000   Frm 00083   Fmt 4703   Sfmt 4703   E:\FR\FM\03AUN1.SGM      03AUN1


                                                                               Federal Register / Vol. 81, No. 149 / Wednesday, August 3, 2016 / Notices                                                    51257

                                                    regulatory responsibilities, dated June                 SROs to which the common member                       overseeing and enforcing with respect to
                                                    20, 2016 (‘‘17d–2 Plan’’ or the ‘‘Plan’’).              belongs are relieved of the responsibility            IEX members that are also members of
                                                    The Plan was published for comment on                   to examine the firm for compliance with               FINRA and the associated persons
                                                    July 5, 2016.1 The Commission received                  the applicable financial responsibility               therewith (‘‘Dual Members’’).
                                                    no comments on the Plan. This order                     rules. On its face, Rule 17d–1 deals only                Specifically, under the 17d–2 Plan,
                                                    approves and declares effective the                     with an SRO’s obligations to enforce                  FINRA would assume examination and
                                                    Plan.                                                   member compliance with financial                      enforcement responsibility relating to
                                                                                                            responsibility requirements. Rule 17d–1               compliance by Dual Members with the
                                                    I. Introduction
                                                                                                            does not relieve an SRO from its                      rules of IEX that are substantially
                                                       Section 19(g)(1) of the Securities                   obligation to examine a common                        similar to the applicable rules of
                                                    Exchange Act of 1934 (‘‘Act’’),2 among                  member for compliance with its own                    FINRA,10 as well as any provisions of
                                                    other things, requires every self-                      rules and provisions of the federal                   the federal securities laws and the rules
                                                    regulatory organization (‘‘SRO’’)                       securities laws governing matters other               and regulations thereunder delineated
                                                    registered as either a national securities              than financial responsibility, including              in the Certification (‘‘Common Rules’’).
                                                    exchange or national securities                         sales practices and trading activities and            In the event that a Dual Member is the
                                                    association to examine for, and enforce                 practices.                                            subject of an investigation relating to a
                                                    compliance by, its members and persons                     To address regulatory duplication in               transaction on IEX, the plan
                                                    associated with its members with the                    these and other areas, the Commission                 acknowledges that IEX may, in its
                                                    Act, the rules and regulations                          adopted Rule 17d–2 under the Act.8                    discretion, exercise concurrent
                                                    thereunder, and the SRO’s own rules,                    Rule 17d–2 permits SROs to propose                    jurisdiction and responsibility for such
                                                    unless the SRO is relieved of this                      joint plans for the allocation of                     matter.11
                                                    responsibility pursuant to Section 17(d)                regulatory responsibilities with respect                 Under the Plan, IEX would retain full
                                                    or Section 19(g)(2) of the Act.3 Without                to their common members. Under                        responsibility for surveillance and
                                                    this relief, the statutory obligation of                paragraph (c) of Rule 17d–2, the                      enforcement with respect to trading
                                                    each individual SRO could result in a                   Commission may declare such a plan                    activities or practices involving IEX’s
                                                    pattern of multiple examinations of                     effective if, after providing for                     own marketplace, including, without
                                                    broker-dealers that maintain                            appropriate notice and comment, it                    limitation, registration pursuant to its
                                                    memberships in more than one SRO                        determines that the plan is necessary or              applicable rules of associated persons
                                                    (‘‘common members’’). Such regulatory                   appropriate in the public interest and                (i.e., registration rules that are not
                                                    duplication would add unnecessary                       for the protection of investors; to foster            Common Rules); its duties as a DEA
                                                    expenses for common members and                         cooperation and coordination among the                pursuant to Rule 17d–1 under the Act;
                                                    their SROs.                                             SROs; to remove impediments to, and                   and any IEX rules that are not Common
                                                       Section 17(d)(1) of the Act 4 was                    foster the development of, a national                 Rules.12
                                                    intended, in part, to eliminate                         market system and a national clearance
                                                    unnecessary multiple examinations and                   and settlement system; and is in                      III. Discussion
                                                    regulatory duplication.5 With respect to                conformity with the factors set forth in                 The Commission finds that the
                                                    a common member, Section 17(d)(1)                       Section 17(d) of the Act. Commission                  proposed Plan is consistent with the
                                                    authorizes the Commission, by rule or                   approval of a plan filed pursuant to Rule             factors set forth in Section 17(d) of the
                                                    order, to relieve an SRO of the                         17d–2 relieves an SRO of those                        Act 13 and Rule 17d–2(c) thereunder 14
                                                    responsibility to receive regulatory                    regulatory responsibilities allocated by              in that the proposed Plan is necessary
                                                    reports, to examine for and enforce                     the plan to another SRO.                              or appropriate in the public interest and
                                                    compliance with applicable statutes,                                                                          for the protection of investors, fosters
                                                    rules, and regulations, or to perform                   II. Proposed Plan
                                                                                                                                                                  cooperation and coordination among
                                                    other specified regulatory functions.                      The proposed 17d–2 Plan is intended                SROs, and removes impediments to and
                                                       To implement Section 17(d)(1), the                   to reduce regulatory duplication for                  fosters the development of the national
                                                    Commission adopted two rules: Rule                      firms that are common members of both                 market system. In particular, the
                                                    17d–1 and Rule 17d–2 under the Act.6                    IEX and FINRA.9 Pursuant to the                       Commission believes that the proposed
                                                    Rule 17d–1 authorizes the Commission                    proposed 17d–2 Plan, FINRA would                      Plan should reduce unnecessary
                                                    to name a single SRO as the designated                  assume certain examination and                        regulatory duplication by allocating to
                                                    examining authority (‘‘DEA’’) to                        enforcement responsibilities for                      FINRA certain examination and
                                                    examine common members for                              common members with respect to                        enforcement responsibilities for
                                                    compliance with the financial                           certain applicable laws, rules, and                   common members that would otherwise
                                                    responsibility requirements imposed by                  regulations.                                          be performed by IEX and FINRA.
                                                    the Act, or by Commission or SRO                           The text of the Plan delineates the
                                                                                                                                                                  Accordingly, the proposed Plan
                                                    rules.7 When an SRO has been named as                   proposed regulatory responsibilities
                                                                                                                                                                  promotes efficiency by reducing costs to
                                                    a common member’s DEA, all other                        with respect to the Parties. Included in
                                                                                                            the proposed Plan is an exhibit (the                     10 See paragraph 1(b) of the proposed 17d–2 Plan
                                                      1 See  Securities Exchange Act Release No. 78179      ‘‘IEX Certification of Common Rules,’’                (defining Common Rules). See also paragraph 1(f)
                                                    (June 28, 2016), 81 FR 43673.                           referred to herein as the ‘‘Certification’’)          of the proposed 17d–2 Plan (defining Regulatory
                                                       2 15 U.S.C. 78s(g)(1).
                                                                                                            that lists every IEX rule, and select                 Responsibilities). Paragraph 2 of the Plan provides
                                                       3 15 U.S.C. 78q(d) and 15 U.S.C. 78s(g)(2),                                                                that annually, or more frequently as required by
                                                                                                            federal securities laws, rules, and
asabaliauskas on DSK3SPTVN1PROD with NOTICES




                                                    respectively.                                                                                                 changes in either IEX rules or FINRA rules, the
                                                       4 15 U.S.C. 78q(d)(1).                               regulations, for which FINRA would                    parties shall review and update, if necessary, the
                                                       5 See Securities Act Amendments of 1975, Report      bear responsibility under the Plan for                list of Common Rules. Further, paragraph 3 of the
                                                    of the Senate Committee on Banking, Housing, and                                                              Plan provides that IEX shall furnish FINRA with a
                                                    Urban Affairs to Accompany S. 249, S. Rep. No. 94–        8 See Securities Exchange Act Release No. 12935     list of Dual Members, and shall update the list no
                                                    75, 94th Cong., 1st Session 32 (1975).                  (October 28, 1976), 41 FR 49091 (November 8,          less frequently than once each calendar quarter.
                                                       6 17 CFR 240.17d–1 and 17 CFR 240.17d–2,                                                                      11 See paragraph 6 of the proposed 17d–2 Plan.
                                                                                                            1976).
                                                                                                                                                                     12 See paragraph 2 of the proposed 17d–2 Plan.
                                                    respectively.                                             9 The proposed 17d–2 Plan refers to these
                                                       7 See Securities Exchange Act Release No. 12352                                                               13 15 U.S.C. 78q(d).
                                                                                                            common members as ‘‘Dual Members.’’ See
                                                    (April 20, 1976), 41 FR 18808 (May 7, 1976).            Paragraph 1(c) of the proposed 17d–2 Plan.               14 17 CFR 240.17d–2(c).




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                                                    51258                         Federal Register / Vol. 81, No. 149 / Wednesday, August 3, 2016 / Notices

                                                    common members. Furthermore,                              modifications to the Certification need               (‘‘Act’’),1 and Rule 19b–4 thereunder,2
                                                    because IEX and FINRA will coordinate                     not be filed with the Commission as an                notice is hereby given that, on July 14,
                                                    their regulatory functions in accordance                  amendment to the Plan, provided that                  2016, NASDAQ BX, Inc. (‘‘BX’’ or
                                                    with the Plan, the Plan should promote                    the Parties are only adding to, deleting              ‘‘Exchange’’) filed with the Securities
                                                    investor protection.                                      from, or confirming changes to IEX rules              and Exchange Commission (‘‘SEC’’ or
                                                       The Commission notes that, under the                   in the Certification in conformance with              ‘‘Commission’’) the proposed rule
                                                    Plan, IEX and FINRA have allocated                        the definition of Common Rules                        change as described in Items I, II, and
                                                    regulatory responsibility for those IEX                   provided in the Plan. However, should                 III below, which Items have been
                                                    rules, set forth in the Certification, that               the Parties decide to add an IEX rule to              prepared by the Exchange. The
                                                    are substantially similar to the                          the Certification that is not substantially           Commission is publishing this notice to
                                                    applicable FINRA rules in that                            similar to a FINRA rule; delete an IEX
                                                    examination for compliance with such                                                                            solicit comments on the proposed rule
                                                                                                              rule from the Certification that is                   change from interested persons.
                                                    provisions and rules would not require                    substantially similar to a FINRA rule; or
                                                    FINRA to develop one or more new                          leave on the Certification an IEX rule                I. Self-Regulatory Organization’s
                                                    examination standards, modules,                           that is no longer substantially similar to            Statement of the Terms of Substance of
                                                    procedures, or criteria in order to                       a FINRA rule, then such a change would                the Proposed Rule Change
                                                    analyze the application of the rule, or a                 constitute an amendment to the Plan,
                                                    common member’s activity, conduct, or                     which must be filed with the                             The Exchange proposes to amend its
                                                    output in relation to such rule. In                       Commission pursuant to Rule 17d–2                     Options Pricing at Chapter XV Section
                                                    addition, under the Plan, FINRA would                     under the Act.17                                      2, entitled ‘‘BX Options Market—Fees
                                                    assume regulatory responsibility for                                                                            and Rebates,’’ which governs pricing for
                                                    certain provisions of the federal                         IV. Conclusion
                                                                                                                                                                    BX members using the BX Options
                                                    securities laws and the rules and                            This Order gives effect to the Plan                Market (‘‘BX Options’’). The Exchange
                                                    regulations thereunder that are set forth                 filed with the Commission in File No.                 proposes to modify fees and rebates (per
                                                    in the Certification. The Common Rules                    4–700. The Parties shall notify all                   executed contract) for certain Penny
                                                    covered by the Plan are specifically                      members affected by the Plan of their                 Pilot 3 Options to: (a) Delete SPY
                                                    listed in the Certification, as may be                    rights and obligations under the Plan.                Options from the Select Symbols
                                                    amended by the Parties from time to                          IT IS THEREFORE ORDERED,
                                                    time.                                                                                                           Options Tier Schedule; and (b) adopt a
                                                                                                              pursuant to Section 17(d) of the Act,                 SPY Options Tier Schedule.4
                                                       According to the Plan, IEX will                        that the Plan in File No. 4–700, between
                                                    review the Certification, at least                        FINRA and IEX, filed pursuant to Rule                    The text of the proposed rule change
                                                    annually, or more frequently if required                  17d–2 under the Act, is approved and                  is available on the Exchange’s Web site
                                                    by changes in either the rules of IEX or                  declared effective.                                   at http://nasdaqbx.cchwallstreet.com/,
                                                    FINRA, and, if necessary, submit to                          IT IS FURTHER ORDERED that IEX is                  at the principal office of the Exchange,
                                                    FINRA an updated list of Common                           relieved of those responsibilities                    and at the Commission’s Public
                                                    Rules to add IEX rules not included on                    allocated to FINRA under the Plan in                  Reference Room.
                                                    the then-current list of Common Rules                     File No. 4–700.
                                                    that are substantially similar to FINRA                                                                         II. Self-Regulatory Organization’s
                                                    rules; delete IEX rules included in the                     For the Commission, by the Division of              Statement of the Purpose of, and
                                                    then-current list of Common Rules that                    Trading and Markets, pursuant to delegated            Statutory Basis for, the Proposed Rule
                                                                                                              authority.18
                                                    are no longer substantially similar to                                                                          Change
                                                    FINRA rules; and confirm that the                         Robert W. Errett,
                                                    remaining rules on the list of Common                     Deputy Secretary.                                       In its filing with the Commission, the
                                                    Rules continue to be IEX rules that are                   [FR Doc. 2016–18316 Filed 8–2–16; 8:45 am]            Exchange included statements
                                                    substantially similar to FINRA rules.15                   BILLING CODE 8011–01–P                                concerning the purpose of and basis for
                                                    FINRA will then confirm in writing                                                                              the proposed rule change and discussed
                                                    whether the rules listed in any updated                                                                         any comments it received on the
                                                    list are Common Rules as defined in the                   SECURITIES AND EXCHANGE                               proposed rule change. The text of these
                                                    Plan. Under the Plan, IEX will also                       COMMISSION                                            statements may be examined at the
                                                    provide FINRA with a current list of                                                                            places specified in Item IV below. The
                                                                                                              [Release No. 34–78431; File No. SR–BX–
                                                    common members and shall update the                                                                             Exchange has prepared summaries, set
                                                                                                              2016–045]
                                                    list no less frequently than once each                                                                          forth in sections A, B, and C below, of
                                                    quarter.16 The Commission believes that                   Self-Regulatory Organizations;                        the most significant aspects of such
                                                    these provisions are designed to provide                  NASDAQ BX, Inc.; Notice of Filing and                 statements.
                                                    for continuing communication between                      Immediate Effectiveness of Proposed
                                                    the Parties to ensure the continued                       Rule Change Regarding Tiers Related
                                                    accuracy of the scope of the proposed                     to SPY Options                                          1 15  U.S.C. 78s(b)(1).
                                                    allocation of regulatory responsibility.
                                                                                                                                                                      2 17  CFR 240.19b–4.
                                                       The Commission is hereby declaring                     July 28, 2016.
                                                                                                                                                                       3 The Penny Pilot was established in June 2012
                                                    effective a Plan that, among other                          Pursuant to Section 19(b)(1) of the
                                                                                                                                                                    and extended through 2016. See Securities
asabaliauskas on DSK3SPTVN1PROD with NOTICES




                                                    things, allocates regulatory                              Securities Exchange Act of 1934                       Exchange Act Release Nos. 67256 (June 26, 2012),
                                                    responsibility to FINRA for the                                                                                 77 FR 39277 (July 2, 2012) (SR–BX–2012–030)
                                                    oversight and enforcement of all IEX                        17 The Commission also notes that the addition to   (order approving BX option rules and establishing
                                                    rules that are substantially similar to the               or deletion from the Certification of any federal     Penny Pilot); and 78036 (June 10, 2016), 81 FR
                                                                                                              securities laws, rules, and regulations for which     39308 (June 16, 2016) (SR–BX–2016–021) (notice of
                                                    rules of FINRA for common members of
                                                                                                              FINRA would bear responsibility under the Plan for    filing and immediate effectiveness extending the
                                                    IEX and FINRA. Therefore,                                 examining, and enforcing compliance by, common        Penny Pilot through December 31, 2016).
                                                                                                              members, also would constitute an amendment to           4 SPY, Select Symbols Options Tier Schedule,
                                                      15 See   paragraph 2 of the Plan.                       the Plan.                                             and SPY Options Tier Schedule are discussed
                                                      16 See   paragraph 3 of the Plan.                         18 17 CFR 200.30–3(a)(34).                          below.



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Document Created: 2016-08-02 23:44:19
Document Modified: 2016-08-02 23:44:19
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 51256 

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