83_FR_38900 83 FR 38748 - Order Granting Applications by Nasdaq BX, Inc., Nasdaq GEMX, LLC, Nasdaq ISE, LLC, Nasdaq MRX, LLC, and Nasdaq PHLX LLC for Exemption Pursuant to Section 36(a) of the Exchange Act From the Rule Filing Requirements of Section 19(b) of the Exchange Act With Respect to Certain CAT Rules Incorporated by Reference

83 FR 38748 - Order Granting Applications by Nasdaq BX, Inc., Nasdaq GEMX, LLC, Nasdaq ISE, LLC, Nasdaq MRX, LLC, and Nasdaq PHLX LLC for Exemption Pursuant to Section 36(a) of the Exchange Act From the Rule Filing Requirements of Section 19(b) of the Exchange Act With Respect to Certain CAT Rules Incorporated by Reference

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 83, Issue 152 (August 7, 2018)

Page Range38748-38750
FR Document2018-16799

Federal Register, Volume 83 Issue 152 (Tuesday, August 7, 2018)
[Federal Register Volume 83, Number 152 (Tuesday, August 7, 2018)]
[Notices]
[Pages 38748-38750]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-16799]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-83757]


Order Granting Applications by Nasdaq BX, Inc., Nasdaq GEMX, LLC, 
Nasdaq ISE, LLC, Nasdaq MRX, LLC, and Nasdaq PHLX LLC for Exemption 
Pursuant to Section 36(a) of the Exchange Act From the Rule Filing 
Requirements of Section 19(b) of the Exchange Act With Respect to 
Certain CAT Rules Incorporated by Reference

August 1, 2018.
    Nasdaq BX, Inc. (``BX''), Nasdaq GEMX, LLC (``GEMX''), Nasdaq ISE, 
LLC (``ISE''), Nasdaq MRX, LLC (``MRX''), and Nasdaq PHLX LLC 
(``Phlx'') (each the ``Exchange'' and collectively, the ``Exchanges'') 
have filed with the Securities and Exchange Commission (the 
``Commission'') an application for an exemption from the rule filing 
requirements of Section 19(b) of the Securities Exchange Act of 1934 
(the ``Exchange Act'') \1\ with respect to certain rules of The Nasdaq 
Stock Market LLC (the ``Nasdaq Market'') that the Exchanges seek to 
incorporate by reference. Section 36(a)(1) of the Exchange Act,\2\ 
subject to certain limitations, authorizes the Commission to 
conditionally or unconditionally exempt any person, security, or 
transaction, or any class thereof, from any provision of the Exchange 
Act or rule thereunder, if necessary or appropriate in the public 
interest and consistent with the protection of investors.
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    \1\ 15 U.S.C. 78s(b).
    \2\ 15 U.S.C. 78mm(a)(1).

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[[Page 38749]]

    The Nasdaq Market and the Exchanges are Participants in the 
National Market System Plan Governing the Consolidated Audit Trail 
(``CAT NMS Plan'' or ``Plan'').\3\ Each Participant in the CAT NMS Plan 
is required to enforce compliance by its members with the provisions of 
the Plan by adopting a Compliance Rule applicable to its members.\4\ In 
2017, pursuant to the CAT NMS Plan, the Nasdaq Market and the Exchanges 
each adopted a Compliance Rule.\5\ On April 10, 2018, the Exchanges 
filed proposed rule changes with the Commission to delete each 
Exchange's Compliance Rule from the rulebook and instead incorporate by 
reference, in each respective Exchange's rulebook, the Nasdaq Market's 
Compliance Rule (``Nasdaq Market Compliance Rule'').\6\
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    \3\ See Securities Exchange Act Release No. 79318 (November 15, 
2016), 81 FR 84696 (November 23, 2016) (``CAT NMS Plan Approval 
Order''). All capitalized terms not otherwise defined herein have 
the meaning ascribed to them in the CAT NMS Plan or CAT NMS Plan 
Approval Order.
    \4\ Id. at 84945, 84950.
    \5\ See Securities Exchange Act Release No. 80256, 82 FR 14526 
(March 21, 2017) (order approving the Compliance Rules for the 
Nasdaq Market and the Exchanges). On January 29, 2018, the Nasdaq 
Market filed a proposed rule change with the Commission to relocate 
the Nasdaq Market Compliance Rule to a new section General 7 in its 
rulebook. See Securities Exchange Act Release No. 82604 (January 30, 
2018), 83 FR 5154 (February 5, 2018) (SR-NASDAQ-2018-007).
    \6\ See Securities Exchange Act Release Nos. 83077 (April 20, 
2018), 83 FR 18358 (April 26, 2018) (SR-Phlx-2018-30); 83081 (April 
20, 2018), 83 FR 18371 (April 26, 2018) (SR-BX-2018-015); 83079 
(April 20, 2018), 83 FR 18362 (April 26, 2018) (SR-ISE-2018-35); 
83083 (April 20, 2018), 83 FR 18384 (April 26, 2018) (SR-GEMX-2018-
13); and 83085 (April 20, 2018), 83 FR 18364 (April 26, 2018) (SR-
MRX-2018-12). Although the proposed rule changes were filed pursuant 
to Section 19(b)(3)(A)(iii) of the Exchange Act, and thereby became 
effective upon filing with the Commission, the Exchanges stipulated 
in their filings that the incorporation by reference would not be 
operative until such time as the Commission grants this exemptive 
request.
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    The Exchanges request, pursuant to Rule 0-12 under the Exchange 
Act,\7\ that the Commission grant the Exchanges an exemption from the 
rule filing requirements of Section 19(b) of the Exchange Act for 
changes to each Exchange's rules that are effected solely by virtue of 
a change to the Nasdaq Market Compliance Rule. Specifically, the 
Exchanges request that they be permitted to incorporate by reference 
changes made to the Nasdaq Market Compliance Rule that would be 
incorporated by reference in the Exchanges' rulebooks, without the need 
for each Exchange to file separately the same proposed rule changes 
pursuant to Section 19(b) of the Exchange Act.\8\ By virtue of 
incorporating the Nasdaq Market Compliance Rule by reference, members 
of each Exchange will be required to comply with the Nasdaq Market 
Compliance Rule as though it is fully set forth within each of the 
Exchanges' rulebooks.\9\
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    \7\ 17 CFR 240.0-12.
    \8\ See Letter from Angela S. Dunn, Principal Associate General 
Counsel, Nasdaq Inc., to Brent J. Fields, Secretary, Commission, 
dated April 10, 2018, at 2-3.
    \9\ Id. at 2.
---------------------------------------------------------------------------

    The Exchanges do not intend to incorporate by reference any trading 
rules. Instead, they represent that the Nasdaq Market Compliance Rule 
is regulatory in nature. Further, the Exchanges represent that they 
will, as a condition of this exemption, provide written notice to their 
members whenever the Nasdaq Market proposes a change to the Nasdaq 
Market Compliance Rule.\10\ Such notice will alert the members of each 
Exchange to the proposed rule change and give them an opportunity to 
comment on the proposal. The Exchanges state that they will also inform 
members in writing when the Commission approves any such proposed rule 
change.\11\
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    \10\ The Exchanges also state that they will provide such notice 
on their websites in the same section they use to post their own 
proposed rule change pursuant to Rule 19b-4(l) of the Exchange Act. 
In addition, the Exchanges state that their website will include a 
link to the Nasdaq Market website where the proposed rule change 
would be located. Id.
    \11\ Id.
---------------------------------------------------------------------------

    The Exchanges believe this exemption is appropriate because it will 
result in the Exchanges' rules pertaining to CAT NMS Plan compliance to 
remain consistent at all times, thus ensuring consistent regulation of 
joint members of the Nasdaq Market and Exchanges with respect to the 
incorporated rules.\12\
---------------------------------------------------------------------------

    \12\ Id.
---------------------------------------------------------------------------

    The Commission has issued exemptions similar to the Exchanges' 
request.\13\ In granting one such exemption in 2010, the Commission 
repeated a prior, 2004 Commission statement that it would consider 
similar future exemption requests from other self-regulatory 
organizations (``SROs''), provided that:
---------------------------------------------------------------------------

    \13\ See, e.g., Securities Exchange Act Release Nos. 80338 
(March 29, 2017), 82 FR 16464 (April 4, 2017) (order granting 
exemptive request from MIAX PEARL, LLC relating to rules of Miami 
International Securities Exchange, LLC incorporated by reference); 
72650 (July 22, 2014), 79 FR 44075 (July 29, 2014) (order granting 
exemptive requests from NASDAQ OMX BX, Inc. and the NASDAQ Stock 
Market LLC relating to rules of NASDAQ OMX PHLX LLC incorporated by 
reference); 67256 (June 26, 2012), 77 FR 39277, 39286 (July 2, 2012) 
(order approving SR-BX-2012-030 and granting exemptive request 
relating to rules incorporated by reference by the BX Options 
rules); 61534 (February 18, 2010), 75 FR 8760 (February 25, 2010) 
(order granting BATS Exchange, Inc.'s exemptive request relating to 
rules incorporated by reference by the BATS Exchange Options Market 
rules) (``BATS Options Market Order''); and 57478 (March 12, 2008), 
73 FR 14521, 14539-40 (March 18, 2008) (order approving SR-NASDAQ-
2007-004 and SR-NASDAQ-2007-080, and granting exemptive request 
relating to rules incorporated by reference by The NASDAQ Options 
Market).
---------------------------------------------------------------------------

     An SRO wishing to incorporate rules of another SRO by 
reference has submitted a written request for an order exempting it 
from the requirement in Section 19(b) of the Exchange Act to file 
proposed rule changes relating to the rules incorporated by reference, 
has identified the applicable originating SRO(s), together with the 
rules it wants to incorporate by reference, and otherwise has complied 
with the procedural requirements set forth in the Commission's release 
governing procedures for requesting exemptive orders pursuant to Rule 
0-12 under the Exchange Act; \14\
---------------------------------------------------------------------------

    \14\ See 17 CFR 240.0-12 and Securities Exchange Act Release No. 
39624 (February 5, 1998), 63 FR 8101 (February 18, 1998) 
(``Commission Procedures for Filing Applications for Orders for 
Exemptive Relief Pursuant to Section 36 of the Exchange Act; Final 
Rule'').
---------------------------------------------------------------------------

     The incorporating SRO has requested incorporation of 
categories of rules (rather than individual rules within a category) 
that are not trading rules (e.g., the SRO has requested incorporation 
of rules such as margin, suitability, or arbitration); and
     The incorporating SRO has reasonable procedures in place 
to provide written notice to its members each time a change is proposed 
to the incorporated rules of another SRO.\15\
---------------------------------------------------------------------------

    \15\ See BATS Options Market Order, supra note 13 (citing 
Securities Exchange Act Release No. 49260 (February 17, 2004), 69 FR 
8500 (February 24, 2004) (order granting exemptive request relating 
to rules incorporated by reference by several SROs) (``2004 
Order'')).
---------------------------------------------------------------------------

    The Commission believes that the Exchanges have satisfied each of 
these conditions. Further, the Commission also believes that granting 
the Exchanges an exemption from the rule filing requirements under 
Section 19(b) of the Exchange Act will promote efficient use of the 
Commission's and the Exchanges' resources by avoiding duplicative rule 
filings based on simultaneous changes to identical rule text sought by 
more than one SRO.\16\ The Commission therefore finds it appropriate in 
the public interest and consistent with the protection of investors to 
exempt the Exchanges from the rule filing requirements under Section 
19(b) of the Exchange Act with respect to the above-described rules 
they incorporate by reference. This exemption is conditioned upon the 
Exchanges promptly providing written notice to their members whenever 
the

[[Page 38750]]

Nasdaq Market changes a rule that the Exchanges have incorporated by 
reference.
---------------------------------------------------------------------------

    \16\ See BATS Options Market Order, supra note 13, 75 FR at 
8761; see also 2004 Order, supra note 15, 69 FR at 8502.
---------------------------------------------------------------------------

    Accordingly, it is ordered, pursuant to Section 36 of the Exchange 
Act,\17\ that the Exchanges are exempt from the rule filing 
requirements of Section 19(b) of the Exchange Act solely with respect 
to changes to the rules identified in its request that incorporate by 
reference certain Nasdaq Market rules that are the result of changes to 
such Nasdaq Market rules, provided that the Exchanges promptly provide 
written notice to their members whenever the Nasdaq Market proposes to 
change a rule that the Exchanges have incorporated by reference.
---------------------------------------------------------------------------

    \17\ 15 U.S.C. 78mm.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\18\
---------------------------------------------------------------------------

    \18\ 17 CFR 200.30-3(a)(76).
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Brent J. Fields,
Secretary.
[FR Doc. 2018-16799 Filed 8-6-18; 8:45 am]
 BILLING CODE 8011-01-P



                                               38748                         Federal Register / Vol. 83, No. 152 / Tuesday, August 7, 2018 / Notices

                                               inspection and copying at the principal                 exemption are scheduled to expire on                   increments of $0.001, in connection
                                               office of OCC and on OCC’s website at                   July 31, 2018.                                         with the operation of its RPI Program.
                                               https://www.theocc.com/about/                             The Exchange now seeks to extend                       The limited and temporary exemption
                                               publications/bylaws.jsp.                                the exemption until December 31,                       extended by this Order is subject to
                                                 All comments received will be posted                  2018.4 The Exchange’s request was                      modification or revocation if at any time
                                               without change. Persons submitting                      made in conjunction with an                            the Commission determines that such
                                               comments are cautioned that we do not                   immediately effective filing that extends              action is necessary or appropriate in
                                               redact or edit personal or identifying                  the operation of the Program until                     furtherance of the purposes of the
                                               information from comment submissions.                   December 31, 2018.5 In its request to                  Securities Exchange Act of 1934.
                                               You should submit only information                      extend the exemption, the Exchange                     Responsibility for compliance with any
                                               that you wish to make available                         notes that the Program was                             applicable provisions of the federal
                                               publicly.                                               implemented gradually over time.                       securities laws must rest with the
                                                 All submissions should refer to File                  Accordingly, the Exchange has asked for                persons relying on the exemptions that
                                               Number SR–OCC–2017–809 and should                       additional time to allow itself and the                are the subject of this Order.
                                               be submitted on or before August 22,                    Commission to analyze data concerning
                                                                                                                                                                For the Commission, by the Division of
                                               2018.                                                   the Program, which the Exchange                        Trading and Markets, pursuant to delegated
                                                                                                       committed to provide to the                            authority.7
                                                 By the Commission.
                                                                                                       Commission, as well as to allow                        Brent J. Fields,
                                               Brent J. Fields,
                                                                                                       additional opportunities for greater
                                               Secretary.                                                                                                     Secretary.
                                                                                                       participation in the Program.6 For this
                                               [FR Doc. 2018–16824 Filed 8–6–18; 8:45 am]                                                                     [FR Doc. 2018–16798 Filed 8–6–18; 8:45 am]
                                                                                                       reason and the reasons stated in the
                                                                                                                                                              BILLING CODE 8011–01–P
                                               BILLING CODE 8011–01–P                                  Order originally granting the limited
                                                                                                       exemption, the Commission finds that
                                                                                                       extending the exemption, pursuant to its
                                               SECURITIES AND EXCHANGE                                                                                        SECURITIES AND EXCHANGE
                                                                                                       authority under Rule 612(c) of
                                               COMMISSION                                                                                                     COMMISSION
                                                                                                       Regulation NMS, is appropriate in the
                                               [Release No. 34–83756; File No. SR–BYX–                 public interest and consistent with the                [Release No. 34–83757]
                                               2012–019]                                               protection of investors.
                                                                                                         THEREFORE, IT IS HEREBY                              Order Granting Applications by
                                               Self-Regulatory Organization; Cboe                      ORDERED, that, pursuant to Rule 612(c)                 Nasdaq BX, Inc., Nasdaq GEMX, LLC,
                                               BYX Exchange, Inc.; Order Granting an                   of Regulation NMS, the Exchange is                     Nasdaq ISE, LLC, Nasdaq MRX, LLC,
                                               Extension to Limited Exemption From                     granted a limited exemption from Rule                  and Nasdaq PHLX LLC for Exemption
                                               Rule 612(c) of Regulation NMS in                        612(c) of Regulation NMS that allows it                Pursuant to Section 36(a) of the
                                               Connection With the Exchange’s Retail                   to accept and rank orders priced equal                 Exchange Act From the Rule Filing
                                               Price Improvement Program                               to or greater than $1.00 per share in                  Requirements of Section 19(b) of the
                                                                                                                                                              Exchange Act With Respect to Certain
                                               August 1, 2018.                                         Program); 74111 (January 22, 2015), 80 FR 4598         CAT Rules Incorporated by Reference
                                                  On November 27, 2012, the Securities                 (January 28, 2015) (SR–BYX–2015–05) (Notice of
                                               and Exchange Commission                                 Filing and Immediate Effectiveness of a Proposed       August 1, 2018.
                                                                                                       Rule Change to Extend the Pilot Period for the RPI);      Nasdaq BX, Inc. (‘‘BX’’), Nasdaq
                                               (‘‘Commission’’) issued an order                        and 74115 (January 22, 2015), 80 FR 4324 (January
                                               pursuant to its authority under Rule                    27, 2015) (Order Granting an Extension to Limited      GEMX, LLC (‘‘GEMX’’), Nasdaq ISE,
                                               612(c) of Regulation NMS (‘‘Sub-Penny                   Exemption From Rule 612(c) of Regulation NMS in        LLC (‘‘ISE’’), Nasdaq MRX, LLC
                                               Rule) 1 that granted the BATS BYX-                      Connection With the Exchange’s Retail Price            (‘‘MRX’’), and Nasdaq PHLX LLC
                                                                                                       Improvement Program); 76965 (January 22, 2016),        (‘‘Phlx’’) (each the ‘‘Exchange’’ and
                                               Exchange, Inc. (nka ‘‘Cboe BYX’’ or the                 81 FR 4682 (January 27, 2016) (SR–BYX–2016–01)
                                               ‘‘Exchange’’) a limited exemption from                  (Notice of Filing and Immediate Effectiveness of a     collectively, the ‘‘Exchanges’’) have
                                               the Sub-Penny Rule in connection with                   Proposed Rule Change to Extend the Pilot Period for    filed with the Securities and Exchange
                                               the operation of the Exchange’s Retail                  the RPI); 76953 (January 21, 2016), 81 FR 4728         Commission (the ‘‘Commission’’) an
                                                                                                       (January 27, 2016) (Order Granting an Extension to     application for an exemption from the
                                               Price Improvement (‘‘RPI’’) Program (the                Limited Exemption From Rule 612(c) of Regulation
                                               ‘‘Program’’). The limited exemption was                 NMS in Connection With the Exchange’s Retail           rule filing requirements of Section 19(b)
                                               granted concurrently with the                           Price Improvement Program); 78180 (June 28, 2016),     of the Securities Exchange Act of 1934
                                               Commission’s approval of the                            81 FR 43306 (July 1, 2016) (SR–BYX–2016–15)            (the ‘‘Exchange Act’’) 1 with respect to
                                                                                                       (Notice of Filing and Immediate Effectiveness of a     certain rules of The Nasdaq Stock
                                               Exchange’s proposal to adopt the                        Proposed Rule Change to Extend the Pilot Period for
                                               Program for a one-year pilot term.2 The                 the RPI); 78178 (July 5, 2016), 81 FR 43689 (July      Market LLC (the ‘‘Nasdaq Market’’) that
                                               exemption was granted coterminous                       5, 2016) (Order Granting an Extension to Limited       the Exchanges seek to incorporate by
                                               with the effectiveness of the pilot                     Exemption From Rule 612(c) of Regulation NMS in        reference. Section 36(a)(1) of the
                                                                                                       Connection With the Exchange’s Retail Price            Exchange Act,2 subject to certain
                                               Program and has been extended five                      Improvement Program); 81368 (August 10, 2017), 82
                                               times; 3 both the pilot Program and                     FR 38960 (August 16, 2017) (SR–BatsBYX–2017–18)        limitations, authorizes the Commission
                                                                                                       (Notice of Filing and Immediate Effectiveness of a     to conditionally or unconditionally
                                                 1 17  CFR 242.612(c).                                 Proposed Rule Change to Extend the Pilot Period for    exempt any person, security, or
                                                 2 See  Securities Exchange Act Release No. 68303      the RPI); 81364 (August 8, 2018), 82 FR 38733          transaction, or any class thereof, from
                                               (November 27, 2012), 77 FR 71652 (December 3,           (August 15, 2017) (Order Granting an Extension to
                                                                                                       Limited Exemption From Rule 612(c) of Regulation       any provision of the Exchange Act or
                                               2012) (‘‘RPI Approval Order’’) (SR–BXY–2012–019).
                                                                                                       NMS in Connection With the Exchange’s Retail           rule thereunder, if necessary or
daltland on DSKBBV9HB2PROD with NOTICES




                                                  3 See Securities Exchange Act Release Nos. 71249

                                               (January 7, 2014), 79 FR 2229 (January 13, 2012)        Price Improvement Program).                            appropriate in the public interest and
                                                                                                          4 See letter from Anders Franzon, Senior Vice
                                               (SR–BYX–2014–001) (Notice of Filing and                                                                        consistent with the protection of
                                               Immediate Effectiveness of a Proposed Rule Change       President and Associate General Counsel, Cboe
                                                                                                       BYX, to Brent J. Fields, Secretary, Commission,
                                                                                                                                                              investors.
                                               to Extend the Pilot Period for the RPI); 71250
                                               (January 7, 2014), 79 FR 2234 (January 13, 2012)        dated July 30, 2018.
                                                                                                          5 See SR–CboeBYX–2018–015.                            7 17 CFR 200.30–3(a)(83).
                                               (Order Granting an Extension to Limited Exemption
                                                                                                                                                                1 15 U.S.C. 78s(b).
                                               From Rule 612(c) of Regulation NMS in Connection           6 See RPI Approval Order, supra note 2, at 77 FR

                                               With the Exchange’s Retail Price Improvement            at 71657.                                                2 15 U.S.C. 78mm(a)(1).




                                          VerDate Sep<11>2014   16:54 Aug 06, 2018   Jkt 244001   PO 00000   Frm 00072   Fmt 4703   Sfmt 4703   E:\FR\FM\07AUN1.SGM    07AUN1


                                                                             Federal Register / Vol. 83, No. 152 / Tuesday, August 7, 2018 / Notices                                                    38749

                                                  The Nasdaq Market and the                            virtue of incorporating the Nasdaq                      statement that it would consider similar
                                               Exchanges are Participants in the                       Market Compliance Rule by reference,                    future exemption requests from other
                                               National Market System Plan Governing                   members of each Exchange will be                        self-regulatory organizations (‘‘SROs’’),
                                               the Consolidated Audit Trail (‘‘CAT                     required to comply with the Nasdaq                      provided that:
                                               NMS Plan’’ or ‘‘Plan’’).3 Each                          Market Compliance Rule as though it is                     • An SRO wishing to incorporate
                                               Participant in the CAT NMS Plan is                      fully set forth within each of the                      rules of another SRO by reference has
                                               required to enforce compliance by its                   Exchanges’ rulebooks.9                                  submitted a written request for an order
                                               members with the provisions of the Plan                    The Exchanges do not intend to                       exempting it from the requirement in
                                               by adopting a Compliance Rule                           incorporate by reference any trading                    Section 19(b) of the Exchange Act to file
                                               applicable to its members.4 In 2017,                    rules. Instead, they represent that the                 proposed rule changes relating to the
                                               pursuant to the CAT NMS Plan, the                       Nasdaq Market Compliance Rule is                        rules incorporated by reference, has
                                               Nasdaq Market and the Exchanges each                    regulatory in nature. Further, the                      identified the applicable originating
                                               adopted a Compliance Rule.5 On April                    Exchanges represent that they will, as a                SRO(s), together with the rules it wants
                                               10, 2018, the Exchanges filed proposed                  condition of this exemption, provide                    to incorporate by reference, and
                                               rule changes with the Commission to                     written notice to their members                         otherwise has complied with the
                                               delete each Exchange’s Compliance                       whenever the Nasdaq Market proposes a                   procedural requirements set forth in the
                                               Rule from the rulebook and instead                      change to the Nasdaq Market                             Commission’s release governing
                                               incorporate by reference, in each                       Compliance Rule.10 Such notice will                     procedures for requesting exemptive
                                               respective Exchange’s rulebook, the                     alert the members of each Exchange to                   orders pursuant to Rule 0–12 under the
                                               Nasdaq Market’s Compliance Rule                         the proposed rule change and give them                  Exchange Act; 14
                                               (‘‘Nasdaq Market Compliance Rule’’).6                   an opportunity to comment on the                           • The incorporating SRO has
                                                  The Exchanges request, pursuant to                   proposal. The Exchanges state that they                 requested incorporation of categories of
                                               Rule 0–12 under the Exchange Act,7 that                 will also inform members in writing                     rules (rather than individual rules
                                               the Commission grant the Exchanges an                   when the Commission approves any                        within a category) that are not trading
                                               exemption from the rule filing                          such proposed rule change.11                            rules (e.g., the SRO has requested
                                               requirements of Section 19(b) of the                       The Exchanges believe this exemption                 incorporation of rules such as margin,
                                               Exchange Act for changes to each                        is appropriate because it will result in                suitability, or arbitration); and
                                               Exchange’s rules that are effected solely               the Exchanges’ rules pertaining to CAT                     • The incorporating SRO has
                                               by virtue of a change to the Nasdaq                     NMS Plan compliance to remain                           reasonable procedures in place to
                                               Market Compliance Rule. Specifically,                   consistent at all times, thus ensuring                  provide written notice to its members
                                               the Exchanges request that they be                      consistent regulation of joint members                  each time a change is proposed to the
                                               permitted to incorporate by reference                   of the Nasdaq Market and Exchanges                      incorporated rules of another SRO.15
                                               changes made to the Nasdaq Market                       with respect to the incorporated rules.12                  The Commission believes that the
                                               Compliance Rule that would be                              The Commission has issued                            Exchanges have satisfied each of these
                                               incorporated by reference in the                        exemptions similar to the Exchanges’                    conditions. Further, the Commission
                                               Exchanges’ rulebooks, without the need                  request.13 In granting one such                         also believes that granting the
                                               for each Exchange to file separately the                exemption in 2010, the Commission                       Exchanges an exemption from the rule
                                               same proposed rule changes pursuant to                  repeated a prior, 2004 Commission                       filing requirements under Section 19(b)
                                               Section 19(b) of the Exchange Act.8 By                                                                          of the Exchange Act will promote
                                                                                                       Fields, Secretary, Commission, dated April 10,          efficient use of the Commission’s and
                                                 3 See  Securities Exchange Act Release No. 79318      2018, at 2–3.
                                               (November 15, 2016), 81 FR 84696 (November 23,            9 Id. at 2.
                                                                                                                                                               the Exchanges’ resources by avoiding
                                               2016) (‘‘CAT NMS Plan Approval Order’’). All              10 The Exchanges also state that they will provide
                                                                                                                                                               duplicative rule filings based on
                                               capitalized terms not otherwise defined herein have
                                                                                                       such notice on their websites in the same section       simultaneous changes to identical rule
                                               the meaning ascribed to them in the CAT NMS Plan                                                                text sought by more than one SRO.16
                                                                                                       they use to post their own proposed rule change
                                               or CAT NMS Plan Approval Order.
                                                 4 Id. at 84945, 84950.
                                                                                                       pursuant to Rule 19b–4(l) of the Exchange Act. In       The Commission therefore finds it
                                                                                                       addition, the Exchanges state that their website will
                                                 5 See Securities Exchange Act Release No. 80256,
                                                                                                       include a link to the Nasdaq Market website where
                                                                                                                                                               appropriate in the public interest and
                                               82 FR 14526 (March 21, 2017) (order approving the       the proposed rule change would be located. Id.          consistent with the protection of
                                               Compliance Rules for the Nasdaq Market and the            11 Id.                                                investors to exempt the Exchanges from
                                               Exchanges). On January 29, 2018, the Nasdaq
                                               Market filed a proposed rule change with the
                                                                                                         12 Id.                                                the rule filing requirements under
                                               Commission to relocate the Nasdaq Market                  13 See, e.g., Securities Exchange Act Release Nos.
                                                                                                                                                               Section 19(b) of the Exchange Act with
                                               Compliance Rule to a new section General 7 in its       80338 (March 29, 2017), 82 FR 16464 (April 4,           respect to the above-described rules
                                               rulebook. See Securities Exchange Act Release No.       2017) (order granting exemptive request from MIAX
                                               82604 (January 30, 2018), 83 FR 5154 (February 5,       PEARL, LLC relating to rules of Miami International     they incorporate by reference. This
                                               2018) (SR–NASDAQ–2018–007).                             Securities Exchange, LLC incorporated by                exemption is conditioned upon the
                                                 6 See Securities Exchange Act Release Nos. 83077      reference); 72650 (July 22, 2014), 79 FR 44075 (July    Exchanges promptly providing written
                                               (April 20, 2018), 83 FR 18358 (April 26, 2018) (SR–     29, 2014) (order granting exemptive requests from       notice to their members whenever the
                                               Phlx–2018–30); 83081 (April 20, 2018), 83 FR            NASDAQ OMX BX, Inc. and the NASDAQ Stock
                                               18371 (April 26, 2018) (SR–BX–2018–015); 83079          Market LLC relating to rules of NASDAQ OMX
                                                                                                                                                                  14 See 17 CFR 240.0–12 and Securities Exchange
                                               (April 20, 2018), 83 FR 18362 (April 26, 2018) (SR–     PHLX LLC incorporated by reference); 67256 (June
                                               ISE–2018–35); 83083 (April 20, 2018), 83 FR 18384       26, 2012), 77 FR 39277, 39286 (July 2, 2012) (order     Act Release No. 39624 (February 5, 1998), 63 FR
                                               (April 26, 2018) (SR–GEMX–2018–13); and 83085           approving SR–BX–2012–030 and granting                   8101 (February 18, 1998) (‘‘Commission Procedures
                                               (April 20, 2018), 83 FR 18364 (April 26, 2018) (SR–     exemptive request relating to rules incorporated by     for Filing Applications for Orders for Exemptive
                                               MRX–2018–12). Although the proposed rule                reference by the BX Options rules); 61534 (February     Relief Pursuant to Section 36 of the Exchange Act;
                                               changes were filed pursuant to Section                  18, 2010), 75 FR 8760 (February 25, 2010) (order        Final Rule’’).
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                                                                                                                                                                  15 See BATS Options Market Order, supra note 13
                                               19(b)(3)(A)(iii) of the Exchange Act, and thereby       granting BATS Exchange, Inc.’s exemptive request
                                               became effective upon filing with the Commission,       relating to rules incorporated by reference by the      (citing Securities Exchange Act Release No. 49260
                                               the Exchanges stipulated in their filings that the      BATS Exchange Options Market rules) (‘‘BATS             (February 17, 2004), 69 FR 8500 (February 24, 2004)
                                               incorporation by reference would not be operative       Options Market Order’’); and 57478 (March 12,           (order granting exemptive request relating to rules
                                               until such time as the Commission grants this           2008), 73 FR 14521, 14539–40 (March 18, 2008)           incorporated by reference by several SROs) (‘‘2004
                                               exemptive request.                                      (order approving SR–NASDAQ–2007–004 and SR–             Order’’)).
                                                 7 17 CFR 240.0–12.                                                                                               16 See BATS Options Market Order, supra note
                                                                                                       NASDAQ–2007–080, and granting exemptive
                                                 8 See Letter from Angela S. Dunn, Principal           request relating to rules incorporated by reference     13, 75 FR at 8761; see also 2004 Order, supra note
                                               Associate General Counsel, Nasdaq Inc., to Brent J.     by The NASDAQ Options Market).                          15, 69 FR at 8502.



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                                               38750                          Federal Register / Vol. 83, No. 152 / Tuesday, August 7, 2018 / Notices

                                               Nasdaq Market changes a rule that the                   19b–4(n)(1)(i) 2 under the Securities                 together with Partial Amendment No. 3
                                               Exchanges have incorporated by                          Exchange Act of 1934 (‘‘Act’’),3 The                  reflects the changes being proposed.
                                               reference.                                              Options Clearing Corporation (‘‘OCC’’)                  The Advance Notice, as amended by
                                                  Accordingly, it is ordered, pursuant to              filed with the Securities and Exchange                Partial Amendment No. 3 is described
                                               Section 36 of the Exchange Act,17 that                  Commission (‘‘Commission’’) an                        in Item II below, which Item has been
                                               the Exchanges are exempt from the rule                  advance notice pursuant to which OCC                  prepared by OCC. The Commission is
                                               filing requirements of Section 19(b) of                 would formalize and update its                        publishing this notice to solicit
                                               the Exchange Act solely with respect to                 Recovery and Orderly Wind-Down Plan                   comments on the Advance Notice, as
                                               changes to the rules identified in its                  (‘‘RWD Plan’’ or ‘‘Plan’’), consistent                amended by Partial Amendments No. 1,
                                               request that incorporate by reference                   with the applicable requirement in Rule
                                               certain Nasdaq Market rules that are the                                                                      2 and 3, from interested persons.
                                                                                                       17Ad–22(e)(3)(ii) 4 (‘‘Advance Notice’’).
                                               result of changes to such Nasdaq Market                 The Advance Notice was published for                  II. Clearing Agency’s Statement of the
                                               rules, provided that the Exchanges                      public comment in the Federal Register                Terms of Substance of Partial
                                               promptly provide written notice to their                on January 23, 2018.5 On January 23,                  Amendment No. 3 to the Advance
                                               members whenever the Nasdaq Market                      2018, the Commission requested OCC                    Notice
                                               proposes to change a rule that the                      provide it with additional information
                                               Exchanges have incorporated by                          regarding the Advance Notice.6 OCC                       This Partial Amendment No. 3 would
                                               reference.                                              responded to this request for                         make the following three amendments
                                                 For the Commission, by the Division of                information, and the information was                  to the Initial Filing: (1) Removal of
                                               Trading and Markets, pursuant to delegated              received on July 13, 2018.7 On July 11                sections of the RWD Plan concerning
                                               authority.18                                            and 12, 2018, OCC filed Partial                       OCC’s proposed authority to require
                                               Brent J. Fields,                                        Amendment No. 1 and Partial                           cash settlement of certain physically
                                               Secretary.                                              Amendment No. 2 to the Initial Filing.                delivered options and single stock
                                               [FR Doc. 2018–16799 Filed 8–6–18; 8:45 am]              On July 12, 2018, OCC also filed a                    futures; (2) updating the list of OCC’s
                                               BILLING CODE 8011–01–P                                  partial amendment (‘‘Partial                          Critical Support Functions; 9 and (3)
                                                                                                       Amendment No. 3’’) to the Initial Filing.             making three changes to Chapter 5 of
                                                                                                       This Partial Amendment No. 3 is                       the RWD Plan in order to conform to a
                                               SECURITIES AND EXCHANGE                                 intended to supersede and replace                     change contemporaneously proposed in
                                               COMMISSION                                              Amendments No. 1 and 2 in their                       Amendment No. 2 to OCC advance
                                                                                                       entirety.8 Therefore, the Initial Filing              notice filing SR–OCC–2017–809
                                               [Release No. 34–83762; File No. SR–OCC–
                                               2017–810]                                                                                                     concerning enhanced and new tools for
                                                                                                         2 17  CFR 240.19b–4(n)(1)(i).                       recovery scenarios.10
                                                                                                         3 15  U.S.C. 78a et seq.
                                               Self-Regulatory Organizations; The                                                                               With regard to the removal of sections
                                                                                                          4 17 CFR 240.17Ad–22(e)(3)(ii).
                                               Options Clearing Corporation; Notice                       5 See Securities Exchange Act Release No. 82514
                                                                                                                                                             of the RWD Plan concerning OCC’s
                                               of Filing of Partial Amendments No. 1,                  (January 17, 2018), 83 FR 3224 (January 23, 2018)     proposed authority to require cash
                                               2, and 3 to Advance Notice Concerning                   (SR–OCC–2017–810) (hereinafter referred to as the     settlement of certain physically
                                               Updates to and Formalization of OCC’s                   ‘‘Initial Filing’’). Initial Filing, 83 FR 3224.      delivered options and single stock
                                               Recovery and Orderly Wind-Down Plan                        6 See Memorandum from Office of Clearance and
                                                                                                                                                             futures, OCC proposes to amend the
                                                                                                       Settlement, Division of Trading and Markets, dated
                                               August 1, 2018.                                         January 23, 2018, available at https://www.sec.gov/   following text on pages 16–17 and 55 of
                                                                                                       comments/sr-occ-2017-810/occ2017810-2948228-          the Initial Filing (new text is underlined
                                               I. Introduction                                         161854.pdf.                                           and proposed deletions are marked in
                                                                                                          7 See Memorandum from Office of Clearance and
                                                  Pursuant to Section 806(e)(1) of Title                                                                     strikethrough text).
                                                                                                       Settlement, Division of Trading and Markets, dated
                                               VIII of the Dodd-Frank Wall Street                      July 17, 2018, available at https://www.sec.gov/
                                               Reform and Consumer Protection Act,                     comments/sr-occ-2017-810/occ2017810-4062513-          Initial Filing, as reflected in Partial Amendment No.
                                                                                                                                                             3, are described in Item II below.
                                               entitled Payment, Clearing, and                         169149.pdf.
                                                                                                                                                                9 The amendment to the list of Critical Support
                                                                                                          8 This Partial Amendment No. 3 is substantially
                                               Settlement Supervision Act of 2010                                                                            Functions would be made to the confidential and
                                                                                                       the same as Partial Amendments No. 1 and 2 but
                                               (‘‘Clearing Supervision Act’’) 1 and Rule               would correct certain technical errors in the         redacted portions of the RWD Plan.
                                                                                                                                                                10 See Amendment No. 2 to SR–OCC–2017–809.
                                                                                                       previous amendments (e.g., update a cross-reference
                                                 17 15 U.S.C. 78mm.                                    to OCC filing SR–OCC–2017–809, as now amended         The three amendments to Chapter 5 also would be
                                                 18 17 CFR 200.30–3(a)(76).                            by Amendment No. 2, and correct a pagination error    made to the confidential and redacted portions of
                                                 1 12 U.S.C. 5465(e)(1).                               in Exhibits 4 and 5). Substantive changes to the      the RWD Plan.
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Document Created: 2018-11-06 10:38:31
Document Modified: 2018-11-06 10:38:31
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 Citation83 FR 38748 

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