81_FR_95459 81 FR 95211 - Self-Regulatory Organizations; ISE Mercury, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend ISE Mercury Rule 803 at Supplementary Material .02 in Connection With Business Continuity and Disaster Recovery Plans

81 FR 95211 - Self-Regulatory Organizations; ISE Mercury, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend ISE Mercury Rule 803 at Supplementary Material .02 in Connection With Business Continuity and Disaster Recovery Plans

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 81, Issue 248 (December 27, 2016)

Page Range95211-95213
FR Document2016-31116

Federal Register, Volume 81 Issue 248 (Tuesday, December 27, 2016)
[Federal Register Volume 81, Number 248 (Tuesday, December 27, 2016)]
[Notices]
[Pages 95211-95213]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-31116]



[[Page 95211]]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-79624; File No. SR-ISEMercury-2016-24]


Self-Regulatory Organizations; ISE Mercury, LLC; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To Amend ISE 
Mercury Rule 803 at Supplementary Material .02 in Connection With 
Business Continuity and Disaster Recovery Plans

December 20, 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 December 12, 2016, ISE Mercury, LLC (``ISE Mercury'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``SEC'' or ``Commission'') the proposed rule change as described in 
Items I, II, and III, below, which Items have been prepared by the 
Exchange. The Commission is publishing this notice to solicit comments 
on the proposed rule change from interested persons.
---------------------------------------------------------------------------

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

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

    The Exchange proposes to amend ISE Mercury Rule 803 at 
Supplementary Material .02 in connection with business continuity and 
disaster recovery plans (``BC/DR Plans'') testing requirements for 
certain Members in connection with Regulation Systems Compliance and 
Integrity (``Regulation SCI'').\3\
---------------------------------------------------------------------------

    \3\ See Securities Exchange Act Release No. 73639 (November 19, 
2014), 79 FR 72252 (December 5, 2014) (``SCI Adopting Release'').
---------------------------------------------------------------------------

    The text of the proposed rule change is available on the Exchange's 
Web site at www.ise.com, at the principal office of the Exchange, and 
at the Commission's Public Reference Room.

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

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

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

1. Purpose
    The Exchange proposes to amend ISE Mercury Rule 803 at 
Supplementary Material .02 to conform the current rule text regarding 
BC/DR Plans testing requirements with that of NASDAQ PHLX LLC 
(``Phlx'') Rule 926,\4\ The NASDAQ Stock Market LLC (``Nasdaq'') Rule 
1170 \5\ and NASDAQ BX, Inc. (``BX'') Rule 1170.\6\
---------------------------------------------------------------------------

    \4\ Phlx Rule 926 is titled ``The Exchange's Business Continuity 
and Disaster Recovery Plan Testing Requirements for Member 
Organizations and PSX Participants Pursuant to Regulation SCI.''
    \5\ Nasdaq Rule 1170 is titled ``Nasdaq's Business Continuity 
and Disaster Recovery Plan Testing Requirements for Members and 
Options Participants Pursuant to Regulation SCI.''
    \6\ BX Rule 1170 is titled ``The Exchange's Business Continuity 
and Disaster Recovery Plan Testing Requirements for Members and 
Options Participants Pursuant to Regulation SCI.''
---------------------------------------------------------------------------

Background
    As adopted by the Commission, Regulation SCI applies to certain 
self-regulatory organizations (including the Exchange), alternative 
trading systems (``ATSs''), plan processors, and exempt clearing 
agencies (collectively, ``SCI entities''), and requires these SCI 
entities to comply with requirements with respect to the automated 
systems central to the performance of their regulated activities. Among 
the requirements of Regulation SCI is Rule 1001(a)(2)(v), which 
requires the Exchange and other SCI entities to maintain ``[b]usiness 
continuity and disaster recovery plans that include maintaining backup 
and recovery capabilities sufficiently resilient and geographically 
diverse and that are reasonably designed to achieve next business day 
resumption of trading and two-hour resumption of critical SCI systems 
following a wide-scale disruption.'' \7\ The Exchange has put extensive 
time and resources toward planning for system failures and already 
maintains robust BC/DR Plans consistent with the Rule.
---------------------------------------------------------------------------

    \7\ 17 CFR 242.1001(a)(2)(v).
---------------------------------------------------------------------------

    With respect to an SCI entity's BC/DR Plans, including its backup 
systems, paragraph (a) of Rule 1004 of Regulation SCI requires each SCI 
entity to: ``[e]stablish standards for the designation of those members 
or participants that the SCI entity reasonably determines are, taken as 
a whole, the minimum necessary for the maintenance of fair and orderly 
markets in the event of the activation of such plans.'' \8\ Paragraph 
(b) of Rule 1004 of Regulation SCI further requires each SCI entity to 
``[d]esignate members or participants pursuant to the standards 
established in paragraph (a) of [Rule 1004] and require participation 
by such designated members or participants in scheduled functional and 
performance testing of the operation of such plans, in the manner and 
frequency specified by the SCI entity, provided that such frequency 
shall not be less than once every 12 months.'' \9\
---------------------------------------------------------------------------

    \8\ 17 CFR 242.1004(a).
    \9\ 17 CFR 242.1004(b).
---------------------------------------------------------------------------

Proposal
    As set forth below, in connection with Regulation SCI, the Exchange 
is proposing to amend ISE Mercury Rule 803 at Supplementary Material 
.02 to conform with Phlx Rule 926, Nasdaq Rule 1170 and BX Rule 1170. 
Phlx Rule 926, Nasdaq Rule 1170 and BX Rule 1170 are similar to ISE 
Mercury Rule 803 at Supplementary Material.02, which incorporates the 
requirements of Rule 1004 of Regulation SCI as part of the Exchange's 
rules, and sets forth the notice, selection criteria and obligations of 
Members with respect to BC/DR Plans testing.
    The Exchange proposes to adopt rule text from Phlx Rule 926(a), 
Nasdaq Rule 1170(a) and BX Rule 1170(a), which will set forth the 
Exchange's obligations with respect to the selection of Members for 
testing. Specifically, the proposed rule will require the Exchange to 
``[e]stablish standards for the designation of those Members that the 
Exchange reasonably determines are, taken as a whole, the minimum 
necessary for the maintenance of fair and orderly markets in the event 
of the activation of such plans.'' The proposed rule further provides 
that ``[s]uch standards may include volume-based and/or market share-
based criteria, and may be adjusted from time to time by the 
Exchange.'' Lastly, the proposed rule will require the Exchange to 
provide public notice of the standards that it adopts.
    The Exchange is proposing to revise Rule 803 at Supplementary 
Material .02, which will set forth the obligations of the Exchange and 
its Members with respect to testing, similar to Phlx Rule 926(b), 
Nasdaq Rule 1170(b) and BX Rule 1170(b). Specifically, the proposed 
rule will require the Exchange to ``designate Members pursuant to the 
standards established in paragraph (a) of this rule and require 
participation by such designated Members in scheduled functional and 
performance testing of the operation of such plans, in the

[[Page 95212]]

manner and frequency specified by the Exchange, provided that such 
frequency shall not be less than once every 12 months.'' Moreover, the 
proposed rule will require the Exchange to provide at least 6 months 
prior notice to Members that are designated for mandatory testing. 
Lastly, the proposed rule will provide notice that participation in 
testing is a condition of membership for Members that are designated 
for testing.
    Today, ISE Mercury's Rule similarly sets forth the Exchange's 
obligations with respect to the selection of Members for testing. Like 
the proposed rule change, these standards for the designation of those 
Members must be reasonably determined by the Exchange, when taken as a 
whole, to have the minimum necessary for the maintenance of fair and 
orderly markets in the event of the activation of such plans. ISE 
Mercury's Rule requires the Exchange to provide public notice of the 
standards that it adopts. Further, ISE Mercury's Rule requires Primary 
Market Makers (``PMMs'') to participate in scheduled functional and 
performance testing of the operation of such plans with a frequency of 
not less than once every 12 months. These standards remain 
substantially the same under the proposed rule change.
    Today, ISE Mercury's Rule requires that at least 3 months prior to 
a scheduled functional and performance testing of the Exchange's 
business continuity and disaster recovery plans, the Exchange publishes 
the criteria to be used by the Exchange to determine which PMMs will be 
required to participate in such testing, and notifies those PMMs that 
are required to participate based on such criteria. The Phlx, Nasdaq 
and BX rules require at least 6 months prior notice to Members that are 
designated for mandatory testing. This change would expand the notice 
period. Also, ISE Mercury has specific provisions for PMMs with respect 
to selection for testing. Today, ISE Mercury provides that PMMs that 
have been determined by the Exchange to contribute a meaningful 
percentage of the Exchange's overall volume, measured on a quarterly or 
monthly basis, will be required to participate in scheduled functional 
and performance testing. The Exchange may also consider other factors 
in determining the PMMs that will be required to participate in 
scheduled functional and performance testing, including average daily 
volume traded on the Exchange measured on a quarterly or monthly basis, 
or PMMs who collectively account for a certain percentage of market 
share on the Exchange. The proposed rule text does not require a 
different treatment for PMMs as compared to other market participants. 
Today, Phlx, Nasdaq and BX select market participants based on volume 
and/or market share, regardless of market making activity. The proposed 
rule text would not specifically mandate PMMs however, given the 
importance of market makers on the Exchange and the volume they 
traditionally trade, they are likely to be required to participate in 
business continuity and disaster recovery plans under the proposed rule 
change as they are today.
    The Exchange would continue to encourage all Members to connect to 
the Exchange's backup systems and to participate in testing of such 
systems; \10\ however, certain Members will be obligated to participate 
in BC/DR Plans testing. In adopting the rule text of Phlx Rule 926, 
Nasdaq Rule 1170 and BX Rule 1170, the Exchange will require mandatory 
participation in BC/DR Plans testing by those Members that the Exchange 
reasonably determines are, taken as a whole, the minimum necessary for 
the maintenance of fair and orderly markets in the event of the 
activation of such plans on the Exchange. The Exchange believes that 
using overall participation on its markets (by volume and/or market 
share) as a measure to select Members for mandatory participation in 
BC/DR Plans testing is a reasonable means by which it can determine 
which Members are necessary for the maintenance of fair and orderly 
markets in the event of the activation of such plans. For each BC/DR 
Plans test cycle, the Exchange will select the top five Members on the 
Exchange based on the Exchange's measure of overall participation. The 
Exchange notes that when considering volume, it will exclude contracts 
traded on PrecISE[supreg].\11\ The Exchange has provided notice of the 
initial selection criteria and measurement period to its Members.\12\ 
All notices concerning BC/DR Plans testing will be posted on the 
Exchange's Web site.
---------------------------------------------------------------------------

    \10\ In this regard, the Exchange will allow any Member to 
participate in the testing of the Exchange's BC/DR Plans, which is 
consistent with the BC/DR Plans. See SCI Adopting Release, supra 
note 3 at 72350. The Exchange will provide instructions on how a 
Member must inform the Exchange of its interest in participating in 
an upcoming BC/DR Plans test via the announcement of the test date. 
A Member must provide the Exchange notice of its interest to 
participate at least a week prior to the test date and must have the 
appropriate connection for testing in place.
    \11\ PrecISE is [sic] front-end order and execution management 
system for trading options and stock-option combinations.
    \12\ See ISE Mercury Circular 2016-16.
---------------------------------------------------------------------------

    The Exchange is proposing to initially select Members with the 
highest levels of trading volume on the Exchange over four calendar 
months (``Measurement Period'') as mandatory testing for Members 
[sic].\13\ Specifically, the Measurement Period will be the four 
calendar months of trading immediately prior to the Exchange's 
announcement of the next BC/DR Plans test date. The Measurement Period 
will always begin at a point after the Exchange announces the criteria 
to be used in the next BC/DR Plans test. By way of example, if on 
October 6, 2017 the Exchange announced the BC/DR Plans test selection 
criteria and on March 2, 2018 the Exchange announced a BC/DR Plans test 
date of September 8, 2018, the Measurement Period used to select Member 
subject to mandatory testing would be November 2017 through February 
2018. Members not obligated to participate that wish to participate in 
this test must inform the Exchange no later than September 1, 2018, 
based on the aforementioned timeline.\14\
---------------------------------------------------------------------------

    \13\ The Exchange may change the total number of Members 
selected from time to time.
    \14\ See supra note 10.
---------------------------------------------------------------------------

    The proposed rule change is intended to provide consistency across 
the six options exchanges operated by Nasdaq, Inc. in regard to the 
standards established for the designation of Members that are required 
to participate in the Exchange's business continuity and disaster 
recovery testing. In turn, participants that are Members on multiple 
exchanges operated by Nasdaq, Inc. will be provided greater uniformity 
and ease of testing with the establishment of consistent standards 
across the multiple Nasdaq exchanges.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6 of the Act,\15\ in general, and furthers the objectives 
of Section 6(b)(5) of the Act,\16\ in particular, in that it is 
designed to prevent fraudulent and manipulative acts and practices, to 
promote just and equitable principles of trade, to foster cooperation 
and coordination with persons engaged in regulating, clearing, 
settling, processing information with respect to, and facilitating 
transactions in securities, to remove impediments to and perfect the 
mechanism of a free and open market and a national market system, and, 
in general, to protect investors and the public interest; and is not 
designed to permit unfair discrimination between customers, issuers, 
brokers, or dealers. The proposal will ensure that the Members 
necessary to ensure the maintenance of fair and orderly markets are 
properly designated consistent with

[[Page 95213]]

Rule 1004 of Regulation SCI. Specifically, the proposal will adopt 
clear and objective criteria with respect to the designation of Members 
that are required to participate in the testing of the Exchange's BC/DR 
Plans, as well as appropriate notification regarding such designation. 
As set forth in the SCI Adopting Release, ``SROs have the authority, 
and legal responsibility, under Section 6 of the Exchange Act, to adopt 
and enforce rules (including rules to comply with Regulation SCI's 
requirements relating to BC/DR testing) applicable to their members or 
participants that are designed to, among other things, foster 
cooperation and coordination with persons engaged in regulating, 
clearing, settling, processing information with respect to, and 
facilitating transactions in securities, to remove impediments to and 
perfect the mechanism of a free and open market and a national market 
system, and, in general, to protect investors and the public 
interest.'' \17\ The Exchange believes that this proposal is consistent 
with such authority and legal responsibility.
---------------------------------------------------------------------------

    \15\ 15 U.S.C. 78f.
    \16\ 15 U.S.C. 78f(b)(5).
    \17\ See SCI Adopting Release, supra note 3 at 72350.
---------------------------------------------------------------------------

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

    The Exchange does not believe that the proposed rule change will 
result in any burden on competition that is not necessary or 
appropriate in furtherance of the purposes of the Act, as amended. To 
the contrary, the proposal is not a competitive proposal but rather is 
necessary for the Exchange's compliance with Regulation SCI.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    No written comments were either solicited or received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Because the foregoing proposed rule change does not: (i) 
Significantly affect the protection of investors or the public 
interest; (ii) impose any significant burden on competition; and (iii) 
become operative for 30 days from the date on which it was filed, or 
such shorter time as the Commission may designate, it has become 
effective pursuant to Section 19(b)(3)(A)(iii) of the Act \18\ and 
subparagraph (f)(6) of Rule 19b-4 thereunder.\19\
---------------------------------------------------------------------------

    \18\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \19\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6) 
requires a self-regulatory organization to give the Commission 
written notice of its intent to file the proposed rule change at 
least five business days prior to the date of filing of the proposed 
rule change, or such shorter time as designated by the Commission. 
The Exchange has satisfied this requirement.
---------------------------------------------------------------------------

    At any time within 60 days of the filing of the proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is: (i) 
Necessary or appropriate in the public interest; (ii) for the 
protection of investors; or (iii) otherwise in furtherance of the 
purposes of the Act. If the Commission takes such action, the 
Commission shall institute proceedings to determine whether the 
proposed rule should be approved or disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-ISEMercury-2016-24 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-ISEMercury-2016-24. 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-ISEMercury-2016-24 and 
should be submitted on or before January 17, 2017.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\20\
---------------------------------------------------------------------------

    \20\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2016-31116 Filed 12-23-16; 8:45 am]
 BILLING CODE 8011-01-P



                                                                               Federal Register / Vol. 81, No. 248 / Tuesday, December 27, 2016 / Notices                                            95211

                                                    SECURITIES AND EXCHANGE                                 A. Self-Regulatory Organization’s                      plans.’’ 8 Paragraph (b) of Rule 1004 of
                                                    COMMISSION                                              Statement of the Purpose of, and                       Regulation SCI further requires each SCI
                                                                                                            Statutory Basis for, the Proposed Rule                 entity to ‘‘[d]esignate members or
                                                    [Release No. 34–79624; File No. SR–
                                                    ISEMercury–2016–24]
                                                                                                            Change                                                 participants pursuant to the standards
                                                                                                                                                                   established in paragraph (a) of [Rule
                                                                                                            1. Purpose
                                                    Self-Regulatory Organizations; ISE                                                                             1004] and require participation by such
                                                    Mercury, LLC; Notice of Filing and                         The Exchange proposes to amend ISE                  designated members or participants in
                                                    Immediate Effectiveness of Proposed                     Mercury Rule 803 at Supplementary                      scheduled functional and performance
                                                    Rule Change To Amend ISE Mercury                        Material .02 to conform the current rule               testing of the operation of such plans, in
                                                    Rule 803 at Supplementary Material .02                  text regarding BC/DR Plans testing                     the manner and frequency specified by
                                                    in Connection With Business                             requirements with that of NASDAQ                       the SCI entity, provided that such
                                                    Continuity and Disaster Recovery                        PHLX LLC (‘‘Phlx’’) Rule 926,4 The                     frequency shall not be less than once
                                                    Plans                                                   NASDAQ Stock Market LLC (‘‘Nasdaq’’)                   every 12 months.’’ 9
                                                                                                            Rule 1170 5 and NASDAQ BX, Inc.                        Proposal
                                                    December 20, 2016.                                      (‘‘BX’’) Rule 1170.6
                                                       Pursuant to Section 19(b)(1) of the                                                                            As set forth below, in connection with
                                                    Securities Exchange Act of 1934                         Background                                             Regulation SCI, the Exchange is
                                                    (‘‘Act’’),1 and Rule 19b–4 thereunder,2                    As adopted by the Commission,                       proposing to amend ISE Mercury Rule
                                                    notice is hereby given that on December                 Regulation SCI applies to certain self-                803 at Supplementary Material .02 to
                                                    12, 2016, ISE Mercury, LLC (‘‘ISE                       regulatory organizations (including the                conform with Phlx Rule 926, Nasdaq
                                                    Mercury’’ or ‘‘Exchange’’) filed with the               Exchange), alternative trading systems                 Rule 1170 and BX Rule 1170. Phlx Rule
                                                    Securities and Exchange Commission                      (‘‘ATSs’’), plan processors, and exempt                926, Nasdaq Rule 1170 and BX Rule
                                                    (‘‘SEC’’ or ‘‘Commission’’) the proposed                                                                       1170 are similar to ISE Mercury Rule
                                                                                                            clearing agencies (collectively, ‘‘SCI
                                                    rule change as described in Items I, II,                                                                       803 at Supplementary Material.02,
                                                                                                            entities’’), and requires these SCI
                                                    and III, below, which Items have been                                                                          which incorporates the requirements of
                                                                                                            entities to comply with requirements
                                                    prepared by the Exchange. The                                                                                  Rule 1004 of Regulation SCI as part of
                                                                                                            with respect to the automated systems
                                                    Commission is publishing this notice to                                                                        the Exchange’s rules, and sets forth the
                                                                                                            central to the performance of their
                                                    solicit comments on the proposed rule                                                                          notice, selection criteria and obligations
                                                                                                            regulated activities. Among the
                                                    change from interested persons.                                                                                of Members with respect to BC/DR Plans
                                                                                                            requirements of Regulation SCI is Rule
                                                                                                                                                                   testing.
                                                    I. Self-Regulatory Organization’s                       1001(a)(2)(v), which requires the                         The Exchange proposes to adopt rule
                                                    Statement of the Terms of Substance of                  Exchange and other SCI entities to                     text from Phlx Rule 926(a), Nasdaq Rule
                                                    the Proposed Rule Change                                maintain ‘‘[b]usiness continuity and                   1170(a) and BX Rule 1170(a), which will
                                                       The Exchange proposes to amend ISE                   disaster recovery plans that include                   set forth the Exchange’s obligations with
                                                    Mercury Rule 803 at Supplementary                       maintaining backup and recovery                        respect to the selection of Members for
                                                    Material .02 in connection with                         capabilities sufficiently resilient and                testing. Specifically, the proposed rule
                                                    business continuity and disaster                        geographically diverse and that are                    will require the Exchange to ‘‘[e]stablish
                                                    recovery plans (‘‘BC/DR Plans’’) testing                reasonably designed to achieve next                    standards for the designation of those
                                                    requirements for certain Members in                     business day resumption of trading and                 Members that the Exchange reasonably
                                                    connection with Regulation Systems                      two-hour resumption of critical SCI                    determines are, taken as a whole, the
                                                    Compliance and Integrity (‘‘Regulation                  systems following a wide-scale                         minimum necessary for the
                                                    SCI’’).3                                                disruption.’’ 7 The Exchange has put                   maintenance of fair and orderly markets
                                                       The text of the proposed rule change                 extensive time and resources toward                    in the event of the activation of such
                                                    is available on the Exchange’s Web site                 planning for system failures and already               plans.’’ The proposed rule further
                                                    at www.ise.com, at the principal office                 maintains robust BC/DR Plans                           provides that ‘‘[s]uch standards may
                                                    of the Exchange, and at the                             consistent with the Rule.                              include volume-based and/or market
                                                    Commission’s Public Reference Room.                        With respect to an SCI entity’s BC/DR               share-based criteria, and may be
                                                    II. Self-Regulatory Organization’s                      Plans, including its backup systems,                   adjusted from time to time by the
                                                    Statement of the Purpose of, and                        paragraph (a) of Rule 1004 of Regulation               Exchange.’’ Lastly, the proposed rule
                                                    Statutory Basis for, the Proposed Rule                  SCI requires each SCI entity to:                       will require the Exchange to provide
                                                    Change                                                  ‘‘[e]stablish standards for the                        public notice of the standards that it
                                                                                                            designation of those members or                        adopts.
                                                       In its filing with the Commission, the               participants that the SCI entity                          The Exchange is proposing to revise
                                                    Exchange included statements                            reasonably determines are, taken as a                  Rule 803 at Supplementary Material .02,
                                                    concerning the purpose of and basis for                 whole, the minimum necessary for the                   which will set forth the obligations of
                                                    the proposed rule change and discussed                  maintenance of fair and orderly markets                the Exchange and its Members with
                                                    any comments it received on the                         in the event of the activation of such                 respect to testing, similar to Phlx Rule
                                                    proposed rule change. The text of these
                                                                                                                                                                   926(b), Nasdaq Rule 1170(b) and BX
                                                    statements may be examined at the                         4 Phlx Rule 926 is titled ‘‘The Exchange’s
                                                                                                                                                                   Rule 1170(b). Specifically, the proposed
                                                    places specified in Item IV below. The                  Business Continuity and Disaster Recovery Plan         rule will require the Exchange to
                                                    Exchange has prepared summaries, set                    Testing Requirements for Member Organizations
asabaliauskas on DSK3SPTVN1PROD with NOTICES




                                                                                                            and PSX Participants Pursuant to Regulation SCI.’’     ‘‘designate Members pursuant to the
                                                    forth in sections A, B, and C below, of
                                                                                                              5 Nasdaq Rule 1170 is titled ‘‘Nasdaq’s Business     standards established in paragraph (a) of
                                                    the most significant aspects of such
                                                                                                            Continuity and Disaster Recovery Plan Testing          this rule and require participation by
                                                    statements.                                             Requirements for Members and Options                   such designated Members in scheduled
                                                                                                            Participants Pursuant to Regulation SCI.’’
                                                      1 15 U.S.C. 78s(b)(1).                                  6 BX Rule 1170 is titled ‘‘The Exchange’s Business
                                                                                                                                                                   functional and performance testing of
                                                      2 17 CFR 240.19b–4.                                   Continuity and Disaster Recovery Plan Testing          the operation of such plans, in the
                                                      3 See Securities Exchange Act Release No. 73639       Requirements for Members and Options
                                                    (November 19, 2014), 79 FR 72252 (December 5,           Participants Pursuant to Regulation SCI.’’              8 17   CFR 242.1004(a).
                                                    2014) (‘‘SCI Adopting Release’’).                         7 17 CFR 242.1001(a)(2)(v).                           9 17   CFR 242.1004(b).



                                               VerDate Sep<11>2014   20:45 Dec 23, 2016   Jkt 241001   PO 00000   Frm 00114   Fmt 4703   Sfmt 4703   E:\FR\FM\27DEN1.SGM    27DEN1


                                                    95212                      Federal Register / Vol. 81, No. 248 / Tuesday, December 27, 2016 / Notices

                                                    manner and frequency specified by the                   PMMs as compared to other market                          Period’’) as mandatory testing for
                                                    Exchange, provided that such frequency                  participants. Today, Phlx, Nasdaq and                     Members [sic].13 Specifically, the
                                                    shall not be less than once every 12                    BX select market participants based on                    Measurement Period will be the four
                                                    months.’’ Moreover, the proposed rule                   volume and/or market share, regardless                    calendar months of trading immediately
                                                    will require the Exchange to provide at                 of market making activity. The proposed                   prior to the Exchange’s announcement
                                                    least 6 months prior notice to Members                  rule text would not specifically mandate                  of the next BC/DR Plans test date. The
                                                    that are designated for mandatory                       PMMs however, given the importance of                     Measurement Period will always begin
                                                    testing. Lastly, the proposed rule will                 market makers on the Exchange and the                     at a point after the Exchange announces
                                                    provide notice that participation in                    volume they traditionally trade, they are                 the criteria to be used in the next BC/
                                                    testing is a condition of membership for                likely to be required to participate in                   DR Plans test. By way of example, if on
                                                    Members that are designated for testing.                business continuity and disaster                          October 6, 2017 the Exchange
                                                       Today, ISE Mercury’s Rule similarly                  recovery plans under the proposed rule                    announced the BC/DR Plans test
                                                    sets forth the Exchange’s obligations                   change as they are today.                                 selection criteria and on March 2, 2018
                                                    with respect to the selection of Members                   The Exchange would continue to                         the Exchange announced a BC/DR Plans
                                                    for testing. Like the proposed rule                     encourage all Members to connect to the                   test date of September 8, 2018, the
                                                    change, these standards for the                         Exchange’s backup systems and to                          Measurement Period used to select
                                                    designation of those Members must be                    participate in testing of such systems; 10                Member subject to mandatory testing
                                                    reasonably determined by the Exchange,                  however, certain Members will be                          would be November 2017 through
                                                    when taken as a whole, to have the                      obligated to participate in BC/DR Plans                   February 2018. Members not obligated
                                                    minimum necessary for the                               testing. In adopting the rule text of Phlx                to participate that wish to participate in
                                                    maintenance of fair and orderly markets                 Rule 926, Nasdaq Rule 1170 and BX                         this test must inform the Exchange no
                                                    in the event of the activation of such                  Rule 1170, the Exchange will require                      later than September 1, 2018, based on
                                                    plans. ISE Mercury’s Rule requires the                  mandatory participation in BC/DR Plans                    the aforementioned timeline.14
                                                    Exchange to provide public notice of the                testing by those Members that the                            The proposed rule change is intended
                                                    standards that it adopts. Further, ISE                  Exchange reasonably determines are,                       to provide consistency across the six
                                                    Mercury’s Rule requires Primary Market                  taken as a whole, the minimum                             options exchanges operated by Nasdaq,
                                                    Makers (‘‘PMMs’’) to participate in                     necessary for the maintenance of fair                     Inc. in regard to the standards
                                                    scheduled functional and performance                    and orderly markets in the event of the                   established for the designation of
                                                    testing of the operation of such plans                  activation of such plans on the                           Members that are required to participate
                                                    with a frequency of not less than once                  Exchange. The Exchange believes that                      in the Exchange’s business continuity
                                                    every 12 months. These standards                        using overall participation on its                        and disaster recovery testing. In turn,
                                                    remain substantially the same under the                 markets (by volume and/or market                          participants that are Members on
                                                    proposed rule change.                                   share) as a measure to select Members                     multiple exchanges operated by Nasdaq,
                                                       Today, ISE Mercury’s Rule requires                   for mandatory participation in BC/DR                      Inc. will be provided greater uniformity
                                                    that at least 3 months prior to a                       Plans testing is a reasonable means by                    and ease of testing with the
                                                    scheduled functional and performance                    which it can determine which Members                      establishment of consistent standards
                                                    testing of the Exchange’s business                      are necessary for the maintenance of fair                 across the multiple Nasdaq exchanges.
                                                    continuity and disaster recovery plans,                 and orderly markets in the event of the
                                                    the Exchange publishes the criteria to be               activation of such plans. For each BC/                    2. Statutory Basis
                                                    used by the Exchange to determine                       DR Plans test cycle, the Exchange will                       The Exchange believes that the
                                                    which PMMs will be required to                          select the top five Members on the                        proposed rule change is consistent with
                                                    participate in such testing, and notifies               Exchange based on the Exchange’s                          Section 6 of the Act,15 in general, and
                                                    those PMMs that are required to                         measure of overall participation. The                     furthers the objectives of Section 6(b)(5)
                                                    participate based on such criteria. The                 Exchange notes that when considering                      of the Act,16 in particular, in that it is
                                                    Phlx, Nasdaq and BX rules require at                    volume, it will exclude contracts traded                  designed to prevent fraudulent and
                                                    least 6 months prior notice to Members                  on PrecISE®.11 The Exchange has                           manipulative acts and practices, to
                                                    that are designated for mandatory                       provided notice of the initial selection                  promote just and equitable principles of
                                                    testing. This change would expand the                   criteria and measurement period to its                    trade, to foster cooperation and
                                                    notice period. Also, ISE Mercury has                    Members.12 All notices concerning BC/                     coordination with persons engaged in
                                                    specific provisions for PMMs with                       DR Plans testing will be posted on the                    regulating, clearing, settling, processing
                                                    respect to selection for testing. Today,                Exchange’s Web site.                                      information with respect to, and
                                                    ISE Mercury provides that PMMs that                        The Exchange is proposing to initially                 facilitating transactions in securities, to
                                                    have been determined by the Exchange                    select Members with the highest levels                    remove impediments to and perfect the
                                                    to contribute a meaningful percentage of                of trading volume on the Exchange over                    mechanism of a free and open market
                                                    the Exchange’s overall volume,                          four calendar months (‘‘Measurement                       and a national market system, and, in
                                                    measured on a quarterly or monthly                                                                                general, to protect investors and the
                                                    basis, will be required to participate in                 10 In this regard, the Exchange will allow any
                                                                                                                                                                      public interest; and is not designed to
                                                    scheduled functional and performance                    Member to participate in the testing of the
                                                                                                            Exchange’s BC/DR Plans, which is consistent with          permit unfair discrimination between
                                                    testing. The Exchange may also consider                 the BC/DR Plans. See SCI Adopting Release, supra          customers, issuers, brokers, or dealers.
                                                    other factors in determining the PMMs                   note 3 at 72350. The Exchange will provide
                                                                                                                                                                      The proposal will ensure that the
                                                    that will be required to participate in
asabaliauskas on DSK3SPTVN1PROD with NOTICES




                                                                                                            instructions on how a Member must inform the
                                                                                                            Exchange of its interest in participating in an           Members necessary to ensure the
                                                    scheduled functional and performance
                                                                                                            upcoming BC/DR Plans test via the announcement            maintenance of fair and orderly markets
                                                    testing, including average daily volume                 of the test date. A Member must provide the               are properly designated consistent with
                                                    traded on the Exchange measured on a                    Exchange notice of its interest to participate at least
                                                    quarterly or monthly basis, or PMMs                     a week prior to the test date and must have the
                                                                                                                                                                       13 The Exchange may change the total number of
                                                                                                            appropriate connection for testing in place.
                                                    who collectively account for a certain                    11 PrecISE is [sic] front-end order and execution       Members selected from time to time.
                                                    percentage of market share on the                       management system for trading options and stock-           14 See supra note 10.

                                                    Exchange. The proposed rule text does                   option combinations.                                       15 15 U.S.C. 78f.

                                                    not require a different treatment for                     12 See ISE Mercury Circular 2016–16.                     16 15 U.S.C. 78f(b)(5).




                                               VerDate Sep<11>2014   20:45 Dec 23, 2016   Jkt 241001   PO 00000   Frm 00115   Fmt 4703   Sfmt 4703    E:\FR\FM\27DEN1.SGM    27DEN1


                                                                                 Federal Register / Vol. 81, No. 248 / Tuesday, December 27, 2016 / Notices                                                 95213

                                                    Rule 1004 of Regulation SCI.                                 At any time within 60 days of the                   10:00 a.m. and 3:00 p.m. Copies of the
                                                    Specifically, the proposal will adopt                     filing of the proposed rule change, the                filing also will be available for
                                                    clear and objective criteria with respect                 Commission summarily may                               inspection and copying at the principal
                                                    to the designation of Members that are                    temporarily suspend such rule change if                office of the Exchange. All comments
                                                    required to participate in the testing of                 it appears to the Commission that such                 received will be posted without change;
                                                    the Exchange’s BC/DR Plans, as well as                    action is: (i) Necessary or appropriate in             the Commission does not edit personal
                                                    appropriate notification regarding such                   the public interest; (ii) for the protection           identifying information from
                                                    designation. As set forth in the SCI                      of investors; or (iii) otherwise in                    submissions. You should submit only
                                                    Adopting Release, ‘‘SROs have the                         furtherance of the purposes of the Act.                information that you wish to make
                                                    authority, and legal responsibility,                      If the Commission takes such action, the               available publicly. All submissions
                                                    under Section 6 of the Exchange Act, to                   Commission shall institute proceedings                 should refer to File Number SR–
                                                    adopt and enforce rules (including rules                  to determine whether the proposed rule                 ISEMercury–2016–24 and should be
                                                    to comply with Regulation SCI’s                           should be approved or disapproved.                     submitted on or before January 17, 2017.
                                                    requirements relating to BC/DR testing)
                                                                                                              IV. Solicitation of Comments                             For the Commission, by the Division of
                                                    applicable to their members or                                                                                   Trading and Markets, pursuant to delegated
                                                    participants that are designed to, among                    Interested persons are invited to                    authority.20
                                                    other things, foster cooperation and                      submit written data, views, and
                                                                                                                                                                     Eduardo A. Aleman,
                                                    coordination with persons engaged in                      arguments concerning the foregoing,
                                                                                                              including whether the proposed rule                    Assistant Secretary.
                                                    regulating, clearing, settling, processing
                                                                                                              change is consistent with the Act.                     [FR Doc. 2016–31116 Filed 12–23–16; 8:45 am]
                                                    information with respect to, and
                                                    facilitating transactions in securities, to               Comments may be submitted by any of                    BILLING CODE 8011–01–P

                                                    remove impediments to and perfect the                     the following methods:
                                                    mechanism of a free and open market                       Electronic Comments
                                                    and a national market system, and, in                                                                            SECURITIES AND EXCHANGE
                                                    general, to protect investors and the                        • Use the Commission’s Internet                     COMMISSION
                                                    public interest.’’ 17 The Exchange                        comment form (http://www.sec.gov/
                                                                                                                                                                     [Release No. 34–79617; File No. SR–
                                                    believes that this proposal is consistent                 rules/sro.shtml); or
                                                                                                                                                                     NASDAQ–2016–168]
                                                    with such authority and legal                                • Send an email to rule-comments@
                                                    responsibility.                                           sec.gov. Please include File Number SR–                Self-Regulatory Organizations; The
                                                                                                              ISEMercury–2016–24 on the subject                      NASDAQ Stock Market LLC; Notice of
                                                    B. Self-Regulatory Organization’s                         line.                                                  Filing and Immediate Effectiveness of
                                                    Statement on Burden on Competition
                                                                                                              Paper Comments                                         Proposed Rule Change To Amend the
                                                      The Exchange does not believe that                                                                             Exchange Data Fees at Rule 7052
                                                    the proposed rule change will result in                      • Send paper comments in triplicate
                                                    any burden on competition that is not                     to Secretary, Securities and Exchange                  December 20, 2016.
                                                    necessary or appropriate in furtherance                   Commission, 100 F Street NE.,                             Pursuant to Section 19(b)(1) of the
                                                    of the purposes of the Act, as amended.                   Washington, DC 20549–1090.                             Securities Exchange Act of 1934
                                                    To the contrary, the proposal is not a                    All submissions should refer to File                   (‘‘Act’’),1 and Rule 19b–4 thereunder,2
                                                    competitive proposal but rather is                        Number SR–ISEMercury–2016–24. This                     notice is hereby given that on December
                                                    necessary for the Exchange’s                              file number should be included on the                  12, 2016, The NASDAQ Stock Market
                                                    compliance with Regulation SCI.                           subject line if email is used. To help the             LLC (‘‘Nasdaq’’ or ‘‘Exchange’’) filed
                                                                                                              Commission process and review your                     with the Securities and Exchange
                                                    C. Self-Regulatory Organization’s                         comments more efficiently, please use                  Commission (‘‘SEC’’ or ‘‘Commission’’)
                                                    Statement on Comments on the                              only one method. The Commission will                   the proposed rule change as described
                                                    Proposed Rule Change Received From                        post all comments on the Commission’s                  in Items I, II, and III, below, which Items
                                                    Members, Participants, or Others                          Internet Web site (http://www.sec.gov/                 have been prepared by the Exchange.
                                                      No written comments were either                         rules/sro.shtml). Copies of the                        The Commission is publishing this
                                                    solicited or received.                                    submission, all subsequent                             notice to solicit comments on the
                                                    III. Date of Effectiveness of the                         amendments, all written statements                     proposed rule change from interested
                                                    Proposed Rule Change and Timing for                       with respect to the proposed rule                      persons.
                                                    Commission Action                                         change that are filed with the
                                                                                                              Commission, and all written                            I. Self-Regulatory Organization’s
                                                       Because the foregoing proposed rule                    communications relating to the                         Statement of the Terms of Substance of
                                                    change does not: (i) Significantly affect                 proposed rule change between the                       the Proposed Rule Change
                                                    the protection of investors or the public                 Commission and any person, other than                    The Exchange proposes to amend the
                                                    interest; (ii) impose any significant                     those that may be withheld from the                    Exchange’s data fees at Rule 7052 to
                                                    burden on competition; and (iii) become                   public in accordance with the                          replace the current $500 per month fee
                                                    operative for 30 days from the date on                    provisions of 5 U.S.C. 552, will be                    for both internal and external
                                                    which it was filed, or such shorter time                  available for Web site viewing and                     distribution of short sale data with two
                                                    as the Commission may designate, it has                   printing in the Commission’s Public                    separate fees: (1) A $750 monthly fee for
                                                    become effective pursuant to Section                      Reference Room, 100 F Street NE.,
asabaliauskas on DSK3SPTVN1PROD with NOTICES




                                                                                                                                                                     the distribution of short sale data to
                                                    19(b)(3)(A)(iii) of the Act 18 and                        Washington, DC 20549, on official                      internal users, and (2) a $1,250 monthly
                                                    subparagraph (f)(6) of Rule 19b–4                         business days between the hours of                     fee for the distribution of short sale data
                                                    thereunder.19                                                                                                    to external users, as described further
                                                      17 See
                                                                                                              the Commission written notice of its intent to file    below.
                                                               SCI Adopting Release, supra note 3 at          the proposed rule change at least five business days
                                                    72350.                                                    prior to the date of filing of the proposed rule
                                                      18 15 U.S.C. 78s(b)(3)(A)(iii).                                                                                  20 17 CFR 200.30–3(a)(12).
                                                                                                              change, or such shorter time as designated by the
                                                      19 17 CFR 240.19b–4(f)(6). In addition, Rule 19b–                                                                1 15 U.S.C. 78s(b)(1).
                                                                                                              Commission. The Exchange has satisfied this
                                                    4(f)(6) requires a self-regulatory organization to give   requirement.                                             2 17 CFR 240.19b–4.




                                               VerDate Sep<11>2014     20:45 Dec 23, 2016   Jkt 241001   PO 00000   Frm 00116   Fmt 4703   Sfmt 4703   E:\FR\FM\27DEN1.SGM     27DEN1



Document Created: 2018-02-14 09:13:39
Document Modified: 2018-02-14 09:13:39
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 95211 

2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR