83 FR 40591 - Self-Regulatory Organizations; Nasdaq BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Incorporate BX Rule 7039 Into the Market Data Enterprise License Proposed by the Nasdaq Stock Market LLC

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 83, Issue 158 (August 15, 2018)

[Federal Register Volume 83, Number 158 (Wednesday, August 15, 2018)]
[Notices]
[Pages 40591-40595]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-17491]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-83810; File No. SR-BX-2018-036]


Self-Regulatory Organizations; Nasdaq BX, Inc.; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To Incorporate BX 
Rule 7039 Into the Market Data Enterprise License Proposed by the 
Nasdaq Stock Market LLC

August 9, 2018.
    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 July 27, 2018, Nasdaq BX, Inc. (``BX'' or ``Exchange'') filed with 
the Securities and Exchange Commission (``SEC'' or ``Commission'') the 
proposed rule change as described in Items I, 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.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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    This amendment is immediately effective upon filing.\3\
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    \3\ This proposed change was initially filed on July 3, 2018, 
and became immediately effective on that date. See SR-BX-2018-031, 
available at http://nasdaq.cchwallstreet.com/. It was subsequently 
refiled on July 17, 2018. See SR-BX-2018-034, available at http://nasdaq.cchwallstreet.com/. A firm eligible to purchase the 
enterprise license proposed by Nasdaq may purchase it for the month 
of July, effective on July 3, 2018, and the monthly fee for the 
license will be prorated for the period July 3 through July 31, 
2018. Any fees owed by the purchaser of the enterprise license for 
the use of NLS Plus on July 1 and July 2, 2018, will also be 
prorated accordingly.

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[[Page 40592]]

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

    The Exchange proposes to incorporate BX Rule 7039 into the market 
data enterprise license proposed by the Nasdaq Stock Market LLC 
(``Nasdaq''), which is designed to lower fees, reduce administrative 
costs, and expand the availability of Nasdaq Last Sale (``NLS'') Plus, 
NLS, Nasdaq Basic and Nasdaq Depth-of-Book products.
    The text of the proposed rule change is available on the Exchange's 
website at http://nasdaqbx.cchwallstreet.com/, at the principal office 
of the Exchange, and at the Commission's Public Reference Room.

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

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

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

1. Purpose
    The Exchange proposes to incorporate BX Rule 7039 into the market 
data enterprise license proposed by Nasdaq,\4\ which is designed to 
lower fees, reduce administrative costs, and expand the availability of 
NLS Plus, NLS, Nasdaq Basic and Nasdaq Depth-of-Book products.
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    \4\ See SR-NASDAQ-2018-058 (not yet published).
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    NLS Plus is a comprehensive data feed offered by Nasdaq that allows 
distributors to access the three last sale products \5\ offered by 
Nasdaq and its affiliated U.S. equity exchanges,\6\ as well as the 
FINRA/Nasdaq Trade Reporting Facility (``TRF''). It provides total 
cross-market volume information at the issue level, and reflects the 
cumulative consolidated volume of real-time trading activity for Tape 
A, B and C securities.\7\ NLS Plus provides Trade Price, Trade Size, 
Sale Condition Modifiers, Cumulative Consolidated Market Volume, End of 
Day Trade Summary, Adjusted Closing Price, IPO Information, and 
Bloomberg ID. Additionally, pertinent regulatory information such as 
Market Wide Circuit Breaker, Regulation SHO Short Sale Price Test 
Restricted Indicator, Trading Action, and Symbol Directory are 
included. NLS Plus may be received by itself or in combination with 
NASDAQ Basic.
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    \5\ The three last sale products consist of Nasdaq Last Sale, BX 
Last Sale, and PSX Last Sale. BX Last Sale consists of two data 
feeds containing real-time last sale information for trades executed 
on the Exchange. ``BX Last Sale for Nasdaq'' contains all 
transaction reports for Nasdaq-listed securities. ``BX Last Sale for 
NYSE/Amex'' contains all such transaction reports for NYSE- and 
Amex-listed securities.
    \6\ The Nasdaq, Inc. U.S. equity markets are the Exchange, 
Nasdaq, and Nasdaq PSX.
    \7\ Tape A and Tape B securities are disseminated pursuant to 
the Security Industry Automation Corporation's (``SIAC'') 
Consolidated Tape Association Plan/Consolidated Quotation System, or 
CTA/CQS (``CTA''). Tape C securities are disseminated pursuant to 
the NASDAQ Unlisted Trading Privileges (``UTP'') Plan.
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    Firms that receive NLS Plus pay the monthly administrative fees for 
BX Last Sale, PSX Last Sale and NLS, and distributors pay a data 
consolidation fee of $350 per month.\8\ The Exchange does not currently 
charge user fees for BX Last Sale, but firms that receive NLS Plus 
would be required to pay any user fees adopted by the Exchange.\9\
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    \8\ The fee applies to both Internal and External Distributors. 
See Rule 7039(b)(1). ``Internal Distributors'' are Distributors that 
receive NLS Plus data and then distribute that data to one or more 
Subscribers within the Distributor's own entity. ``External 
Distributors'' are Distributors that receive NLS Plus data and then 
distribute that data to one or more Subscribers outside the 
Distributor's own entity.
    \9\ See Rule 7039(b)(3).
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    The Exchange proposes to incorporate any fees owed under BX Rule 
7039 into the market data enterprise license proposed by Nasdaq, which 
is designed to lower fees, reduce administrative costs, and expand the 
availability of NLS Plus, NLS, Nasdaq Basic and Nasdaq Depth-of-Book 
products. These fees include the monthly administrative fee applicable 
to NLS, BX Last Sale and PSX Last Sale, a data consolidation fee for 
Internal or External Distributors, and any user fees for BX Last Sale 
or PSX Last Sale that may be adopted in the future.\10\
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    \10\ The Exchange also proposes a technical change to Rule 
7039(b)(1) to reflect that BX administrative fees are charged on a 
monthly, rather than annual, basis. See Securities Exchange Act 
Release No. 79667 (December 22, 2016), 81 FR 96152 (December 29, 
2016) (SR-BX-2016-071).
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    As set forth in greater detail under the Nasdaq proposal, the 
market data enterprise license for display usage proposed by Nasdaq 
will allow Distributors who are broker-dealers or Investment Advisers 
\11\ to disseminate these products to a wide audience for a monthly fee 
of $600,000, with the opportunity to lower that fee further to $500,000 
per month if they contract for twelve months of service in advance. As 
explained in greater detail in Nasdaq's filing, the Exchange believes 
that the proposed market data enterprise license will reduce exchange 
fees, lower administrative costs for distributors, and help expand the 
availability of market information to investors, and thereby increase 
participation in financial markets. The enterprise license is being 
introduced in response to competition from other exchanges,\12\ and 
demonstrates both the power and the benefits of the competitive market 
to spur innovation and change.
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    \11\ ``Investment Adviser'' is defined in Section 202(a)(11) of 
the Investment Advisers Act of 1940, as ``any person who, for 
compensation, engages in the business of advising others, either 
directly or through publications or writings, as to the value of 
securities or as to the advisability of investing in, purchasing, or 
selling securities, or who, for compensation and as part of a 
regular business, issues or promulgates analyses or reports 
concerning securities . . . .''
    \12\ See, e.g., Enterprise Fee for the Cboe Equities One Feed, 
available at https://markets.cboe.com/us/equities/market_data_products/bats_one/.
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    The purpose of this filing is to incorporate BX Last Sale fees into 
the Nasdaq market data enterprise license as a means of lowering costs 
for all three equity markets. The rationale and support for this 
proposal are the same as already set forth by Nasdaq in its companion 
proposal.\13\
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    \13\ See n.4.
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    The proposed market data enterprise license is optional in that no 
exchange is required to offer it and distributors are not required to 
purchase it. Firms can discontinue its use at any time and for any 
reason, and may decide to purchase market data products individually or 
substitute products from one exchange with competing products from 
other exchanges.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act,\14\ in general, and furthers the objectives of 
Sections 6(b)(4) and 6(b)(5) of the Act,\15\ in particular, in that it 
provides for the equitable allocation of reasonable dues, fees and 
other charges among members and issuers and other persons using any 
facility, and is not

[[Page 40593]]

designed to permit unfair discrimination between customers, issuers, 
brokers, or dealers.
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    \14\ 15 U.S.C. 78f(b).
    \15\ 15 U.S.C. 78f(b)(4) and (5).
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    As described above, the proposal to cover BX fees for NLS Plus 
within the proposed market data enterprise license will lower fees, 
reduce administrative costs, and expand the availability of market data 
to retail investors, which the Exchange expects to improve transparency 
for financial market participants and lead to increased participation 
in financial markets. Discounts for broader dissemination of market 
data information have routinely been adopted by exchanges and permitted 
by the Commission as equitable allocations of reasonable dues, fees and 
other charges.\16\ Distributors will be free to move from the month to 
month rate to the annual rate at any time, or from the annual rate to 
the monthly rate, with notice, at the expiration of the twelve month 
term.
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    \16\ For example, the Commission has permitted pricing discounts 
for market data under Nasdaq Rules 7023(c) and 7047(b). See also 
Securities Exchange Act Release No. 82182 (November 30, 2017), 82 FR 
57627 (December 6, 2017) (SR-NYSE-2017-60) (changing an enterprise 
fee for NYSE BBO and NYSE Trades).
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    This proposal demonstrates the existence of an effective, 
competitive market because it resulted from a need to generate 
innovative approaches in response to competition from other exchanges 
that offer enterprise licenses for market data.\17\ As the Commission 
has recognized, ``[i]f competitive forces are operative, the self-
interest of the exchanges themselves will work powerfully to constrain 
unreasonable or unfair behavior,'' \18\ and ``the existence of 
significant competition provides a substantial basis for finding that 
the terms of an exchange's fee proposal are equitable, fair, 
reasonable, and not unreasonably or unfairly discriminatory.'' \19\ The 
proposed enterprise license will be subject to significant competition 
from other exchanges because each eligible distributor will have the 
ability to accept or reject the license depending on whether it will or 
will not lower its fees, and because other exchanges will be able to 
offer their own competitive responses. As the Commission has held in 
the past, the presence of competition provides a substantial basis for 
a finding that the proposal will be an equitable allocation of 
reasonable dues, fees and other charges.\20\
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    \17\ See n.12.
    \18\ Securities Exchange Act Release No. 59039 (December 2, 
2008), 73 FR 74770 (December 9, 2008) (SR-NYSEArca-2006-21).
    \19\ Id.
    \20\ Id.
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    Furthermore, the proposed enterprise license will not unfairly 
discriminate between customers, issuers, brokers or dealers. The Act 
does not prohibit all distinctions among customers, but only 
discrimination that is unfair, and it is not unfair discrimination to 
charge those distributors that are able to reach the largest audiences 
of retail investors a lower fee for incremental investors in order to 
encourage the widespread distribution of market data. The proposed 
change to the BX rule book is designed to incorporate BX Rule 7039 into 
the market data enterprise license proposed by Nasdaq. As explained in 
the Nasdaq filing, the market data enterprise license will be subject 
to significant competition, and that competition will ensure that there 
is no unfair discrimination. Each distributor will be able to accept or 
reject the license depending on whether it will or will not lower costs 
for that particular distributor, and, if the license is not 
sufficiently competitive, the Exchange may lose market share.
    In adopting Regulation NMS, the Commission granted SROs and broker-
dealers increased authority and flexibility to offer new and unique 
market data to the public. It was believed that this authority would 
expand the amount of data available to consumers, and also spur 
innovation and competition for the provision of market data. The 
Commission concluded that Regulation NMS--by deregulating the market in 
proprietary data--would itself further the Act's goals of facilitating 
efficiency and competition:

    [E]fficiency is promoted when broker-dealers who do not need the 
data beyond the prices, sizes, market center identifications of the 
NBBO and consolidated last sale information are not required to 
receive (and pay for) such data. The Commission also believes that 
efficiency is promoted when broker-dealers may choose to receive 
(and pay for) additional market data based on their own internal 
analysis of the need for such data.\21\
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    \21\ See Securities Exchange Act Release No. 51808 (June 9, 
2005), 70 FR 37496 (June 29, 2005) (``Regulation NMS Adopting 
Release'').

    The Commission was speaking to the question of whether broker-
dealers should be subject to a regulatory requirement to purchase data, 
such as Depth-of-Book data, that is in excess of the data provided 
through the consolidated tape feeds, and the Commission concluded that 
the choice should be left to them. Accordingly, Regulation NMS removed 
unnecessary regulatory restrictions on the ability of exchanges to sell 
their own data, thereby advancing the goals of the Act and the 
principles reflected in its legislative history. If the free market 
should determine whether proprietary data is sold to broker-dealers at 
all, it follows that the price at which such data is sold should be set 
by the market as well.
    The proposed change to the BX rule book is designed to incorporate 
BX Rule 7039 into the market data enterprise license proposed by 
Nasdaq, and the proposed enterprise license will compete with other 
enterprise licenses offered by Nasdaq, underlying fee schedules 
promulgated by the Exchange, and enterprise licenses and fee structures 
implemented by other exchanges. The enterprise license is a voluntary 
product for which market participants can readily find substitutes. 
Accordingly, both BX and Nasdaq are constrained from introducing a fee 
that would be inequitable or unfairly discriminatory.

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

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition not necessary or appropriate in 
furtherance of the purposes of the Act. This proposal will eliminate BX 
fees for NLS Plus as part of a market data enterprise license proposed 
by Nasdaq that is intended to lower fees, reduce administrative costs, 
and expand the availability of market data to retail investors, which 
the Exchange expects to lead to increased participation in financial 
markets. It will not impose a burden on competition not necessary or 
appropriate in furtherance of the purposes of the Act, but rather will 
enhance competition by introducing an innovative fee structure for 
market data, lowering prices and enhancing competition.
    The market for data products is extremely competitive and firms may 
freely choose alternative venues and data vendors based on the 
aggregate fees assessed, the data offered, and the value provided. 
Numerous exchanges compete with each other for listings, trades, and 
market data itself, providing virtually limitless opportunities for 
entrepreneurs who wish to produce and distribute their own market data. 
This proprietary data is produced by each individual exchange, as well 
as other entities, in a vigorously competitive market.
    Transaction execution and proprietary data products are 
complementary in that market data is both an input and a byproduct of 
the execution service. In fact, market data and trade execution are a 
paradigmatic example of joint

[[Page 40594]]

products with joint costs. The decision whether and on which platform 
to post an order will depend on the attributes of the platform where 
the order can be posted, including the execution fees, data quality and 
price, and distribution of its data products. Without trade executions, 
exchange data products cannot exist. Moreover, data products are 
valuable to many end users only insofar as they provide information 
that end users expect will assist them or their customers in making 
trading decisions.
    The costs of producing market data include not only the costs of 
the data distribution infrastructure, but also the costs of designing, 
maintaining, and operating the exchange's transaction execution 
platform, the cost of implementing cybersecurity to protect the data 
from external threats and the cost of regulating the exchange to ensure 
its fair operation and maintain investor confidence. The total return 
that a trading platform earns reflects the revenues it receives from 
both products and the joint costs it incurs.
    Moreover, the operation of the Exchange is characterized by high 
fixed costs and low marginal costs. This cost structure is common in 
content and content distribution industries such as software, where 
developing new software typically requires a large initial investment 
(and continuing large investments to upgrade the software), but once 
the software is developed, the incremental cost of providing that 
software to an additional user is typically small, or even zero (e.g., 
if the software can be downloaded over the internet after being 
purchased).\22\
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    \22\ See William J. Baumol and Daniel G. Swanson, ``The New 
Economy and Ubiquitous Competitive Price Discrimination: Identifying 
Defensible Criteria of Market Power,'' Antitrust Law Journal, Vol. 
70, No. 3 (2003).
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    It is costly for the Exchange to build and maintain a trading 
platform, but the incremental cost of trading each additional share on 
an existing platform, or distributing an additional instance of data, 
is very low. Market information and executions are each produced 
jointly (in the sense that the activities of trading and placing orders 
are the source of the information that is distributed) and each are 
subject to significant scale economies. In such cases, marginal cost 
pricing is not feasible because if all sales were priced at the margin, 
the Exchange would be unable to defray its platform costs of providing 
the joint products. Similarly, data products cannot make use of trade 
reports from the TRF without the raw material of the trade reports 
themselves, and therefore necessitate the costs of operating, 
regulating, and maintaining a trade reporting system, costs that must 
be covered through the fees charged for use of the facility and sales 
of associated data.
    An exchange's broker-dealer customers view the costs of transaction 
executions and of data as a unified cost of doing business with the 
exchange. A broker-dealer will disfavor a particular exchange if the 
expected revenues from executing trades on the exchange do not exceed 
net transaction execution costs and the cost of data that the broker-
dealer chooses to buy to support its trading decisions (or those of its 
customers). The choice of data products is, in turn, a product of the 
value of the products in making profitable trading decisions. If the 
cost of the product exceeds its expected value, the broker-dealer will 
choose not to buy it. Moreover, as a broker-dealer chooses to direct 
fewer orders to a particular exchange, the value of the product to that 
broker-dealer decreases, for two reasons. First, the product will 
contain less information, because executions of the broker-dealer's 
trading activity will not be reflected in it. Second, and perhaps more 
important, the product will be less valuable to that broker-dealer 
because it does not provide information about the venue to which it is 
directing its orders. Data from the competing venue to which the 
broker-dealer is directing more orders will become correspondingly more 
valuable.
    Similarly, vendors provide price discipline for proprietary data 
products because they control the primary means of access to end users. 
Vendors impose price restraints based upon their business models. For 
example, vendors that assess a surcharge on data they sell may refuse 
to offer proprietary products that end users will not purchase in 
sufficient numbers. Internet portals impose a discipline by providing 
only data that will enable them to attract ``eyeballs'' that contribute 
to their advertising revenue. Retail broker-dealers offer their retail 
customers proprietary data only if it promotes trading and generates 
sufficient commission revenue. Although the business models may differ, 
these vendors' pricing discipline is the same: They can simply refuse 
to purchase any proprietary data product that fails to provide 
sufficient value. Exchanges, TRFs, and other producers of proprietary 
data products must understand and respond to these varying business 
models and pricing disciplines in order to market proprietary data 
products successfully. Moreover, the Exchange believes that market data 
products can enhance order flow by providing more widespread 
distribution of information about transactions in real time, thereby 
encouraging wider participation in the market by investors with access 
to the internet or television. Conversely, the value of such products 
to Distributors and investors decreases if order flow falls, because 
the products contain less content.
    In this environment, there is no economic basis for regulating 
maximum prices for one of the joint products in an industry in which 
suppliers face competitive constraints with regard to the joint 
offering. Such regulation is unnecessary because an ``excessive'' price 
for one of the joint products will ultimately have to be reflected in 
lower prices for other products sold by the firm, or otherwise the firm 
will experience a loss in the volume of its sales that will be adverse 
to its overall profitability. In other words, an increase in the price 
of data will ultimately have to be accompanied by a decrease in the 
cost of executions, or the volume of both data and executions will 
fall.\23\
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    \23\ Cf. Ohio v. American Express, No. 16-1454 (S. Ct. June 25, 
2018), https://www.supremecourt.gov/opinions/17pdf/16-1454_5h26.pdf 
(recognizing the need to analyze both sides of a two sided platform 
market in order to determine its competitiveness).
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    Moreover, the level of competition and contestability in the market 
is evident in the numerous alternative venues that compete for order 
flow, including SRO markets, internalizing broker-dealers and various 
forms of alternative trading systems (``ATSs''), including dark pools 
and electronic communication networks (``ECNs''). Each SRO market 
competes to produce transaction reports via trade executions, and two 
FINRA-regulated TRFs compete to attract internalized transaction 
reports. It is common for broker-dealers to further exploit this 
competition by sending their order flow and transaction reports to 
multiple markets, rather than providing them all to a single market. 
Competitive markets for order flow, executions, and transaction reports 
provide pricing discipline for the inputs of proprietary data products. 
The large number of SROs, TRFs, broker-dealers, and ATSs that currently 
produce proprietary data or are currently capable of producing it 
provides further pricing discipline for proprietary data products. Each 
SRO, TRF, ATS, and broker-dealer is currently permitted to produce 
proprietary data products, and many currently do or have announced 
plans to do so, including Nasdaq, NYSE, NYSE American, NYSE Arca, IEX, 
and BATS/Direct Edge.

[[Page 40595]]

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

    No written comments were either solicited or received.

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

    The foregoing rule change has become effective pursuant to Section 
19(b)(3)(A)(ii) of the Act.\24\
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    \24\ 15 U.S.C. 78s(b)(3)(A)(ii).
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    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-BX-2018-036 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-BX-2018-036. This file 
number should be included on the subject line if email is used. To help 
the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's internet website (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 website 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. Persons submitting comments are 
cautioned that we do not redact or edit personal identifying 
information from comment submissions. You should submit only 
information that you wish to make available publicly. All submissions 
should refer to File Number SR-BX-2018-036 and should be submitted on 
or before September 5, 2018.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\25\
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    \25\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018-17491 Filed 8-14-18; 8:45 am]
BILLING CODE 8011-01-P