83_FR_51211 83 FR 51015 - Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Align Existing Investigatory and Disciplinary Processes and Related Rules With the Investigatory and Disciplinary Processes and Related Rules of Nasdaq PHLX LLC

83 FR 51015 - Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Align Existing Investigatory and Disciplinary Processes and Related Rules With the Investigatory and Disciplinary Processes and Related Rules of Nasdaq PHLX LLC

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 83, Issue 196 (October 10, 2018)

Page Range51015-51020
FR Document2018-21900

Federal Register, Volume 83 Issue 196 (Wednesday, October 10, 2018)
[Federal Register Volume 83, Number 196 (Wednesday, October 10, 2018)]
[Notices]
[Pages 51015-51020]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-21900]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-84355; File No. SR-NASDAQ-2018-066]


Self-Regulatory Organizations; The Nasdaq Stock Market LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To 
Align Existing Investigatory and Disciplinary Processes and Related 
Rules With the Investigatory and Disciplinary Processes and Related 
Rules of Nasdaq PHLX LLC

October 3, 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 September 24, 2018, The Nasdaq Stock Market LLC (``Nasdaq'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission'') the proposed rule change as described in Items I and 
II, 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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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to align its existing investigatory and 
disciplinary processes and related rules with the investigatory and 
disciplinary processes and related rules of Nasdaq PHLX LLC (``Phlx'') 
[sic]
    The text of the proposed rule change is available on the Exchange's 
website at http://nasdaq.cchwallstreet.com, at the principal office of 
the Exchange, and at the Commission's Public Reference Room.

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

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

[[Page 51016]]

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

1. Purpose
    Nasdaq proposes to amend certain of its rules to align its existing 
investigatory and disciplinary processes and related rules with the 
investigatory and disciplinary processes and related rules of Phlx. 
Nasdaq notes that Phlx amended its rules recently to adopt an 
investigatory and disciplinary process identical in all material 
respects to the investigatory and disciplinary processes of Nasdaq BX, 
Inc. (``BX'') and Nasdaq.\3\ The amendment also vested the Phlx 
Regulation Department with the same authority proposed herein. The 
Exchange therefore proposes the below changes to the 8000 and 9000 
Series of the Nasdaq Rules in order to conform its rules to those of 
Phlx 8000 and 9000 Series rules in all respects.\4\
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    \3\ See Securities Exchange Act Release No. 82143 (November 22, 
2017), 82 FR 56672 (November 29, 2017) (Notice of Filing and 
Immediate Effectiveness of Proposed Rule Change To Adopt 
Investigatory and Disciplinary Processes Substantially Similar to 
Nasdaq BX, Inc. and The Nasdaq Stock Market LLC for Phlx, which, 
among other things, similarly enabled Phlx to retain discretion to 
perform these functions).
    \4\ The Exchange notes that the Financial Industry Regulatory 
Authority (``FINRA'') amended its rules recently to reflect an 
internal reorganization of FINRA's Enforcement Operations. See 
Securities Exchange Act Release No. 83781 (August 6, 2018), 83 FR 
39802 (August 10, 2018). In July 2017, FINRA announced its plan to 
consolidate its existing enforcement functions into a unified 
Department of Enforcement. FINRA's recent rule change makes 
technical and other non-substantive changes to FINRA Rules 9000 
Series Code of Procedure (the ``Code'') to reflect the single 
Department of Enforcement. The rule change removed references to the 
Market Regulation department, its head and employees from the Code 
where those references reflect the previously separate Market 
Regulation enforcement function. In light of FINRA's reorganization, 
the Exchange is likewise removing references to the Market 
Regulation department, its head and employees from the Code, and re-
lettering the remainder of those sections where such re-lettering is 
necessary (i.e. Rule 9120). Phlx will also submit a similar rule 
filing to remove those references in due course.
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Definition of Nasdaq Regulation
    The Exchange proposes to revise the definition of Nasdaq Current 
Rule 9120(w) (``Nasdaq Regulation'') to expressly include the 
Exchange's Enforcement Department. The Exchange's Enforcement 
Department is specifically charged with pursuing disciplinary action 
against members, persons associated with a member, and persons subject 
to the Exchange's jurisdiction, in addition to FINRA's Department of 
Enforcement.
    Similarly, the Exchange proposes to add references to the ``Nasdaq 
Regulation Department'' in Nasdaq Current Rule 9120(aa) (definition of 
the term ``Party''). The Exchange also proposes to add a definition for 
the term ``Party'' as used in the Nasdaq Rule 9400 series,\5\ and to 
add references to ``FINRA'' in Nasdaq Current Rule 9120(aa)(3) to 
clarify that FINRA falls under the definition of ``Party'' as used in 
the Rule 9550 series. In addition, the Exchange is adding references to 
the Nasdaq Regulation Department throughout the Nasdaq Rule 8000 and 
9000 series.\6\ These amendments will conform the text of Nasdaq 8000 
and 9000 rules with those of Phlx.\7\
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    \5\ The Exchange notes that, like Phlx, it is likewise including 
the Department of Enforcement as a potential party to a matter under 
the Rule 9400 Series. The Exchange believes that including this 
department in Rule 9400 Series is appropriate because it may be 
involved in the initiation of such a matter for Nasdaq currently. 
The Exchange is also adding FINRA to other parts of Rule 9400 where 
it is appropriate to show that FINRA may be the entity that 
initiated an action under the rule.
    \6\ See Nasdaq Current Rules 8001, 8210, 8211, IM-8310-3, 9001, 
9120, 9131, 9133, 9143, 9146, 9211, 9212, 9213, 9215, 9216, 9251, 
9252, 9253, 9264, 9269, 9270, 9311, 9400, 9522, 9523, 9524, 9552, 
9553, 9554, 9555, 9556, 9557, 9558, 9559, 9610, 9630, 9810, 9820, 
9830, and 9840.
    \7\ The Exchange is also amending Current Nasdaq Rule 
9120(aa)(2), to align that rule text with FINRA's recent rule 
change. The term ``Party'' when used in the Rule 9520 Series, now 
means FINRA's Department of Enforcement, rather than Member 
Regulation. See Securities Exchange Act Release No. 83781 (August 6, 
2018), 83 FR 39802 (August 10, 2018).
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Role of FINRA
    The Exchange proposes to add rule text to certain rules to clarify 
that FINRA may act on behalf of the Exchange. Today, FINRA is empowered 
to act on behalf of the Exchange.\8\ The revisions to these rules will 
therefore clarify FINRA's authority as it currently exists today.\9\
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    \8\ See Nasdaq Current Rule 8001 (``Nasdaq and FINRA are parties 
to the Regulatory Contract pursuant to which FINRA has agreed to 
perform certain functions described in these rules on behalf of 
Nasdaq. Nasdaq rules that refer to Nasdaq Regulation, Nasdaq 
Regulation staff, Nasdaq staff, and Nasdaq departments should be 
understood as also referring to FINRA staff and FINRA departments 
acting on behalf of Nasdaq pursuant to the Regulatory Contract.'').
    \9\ See Nasdaq Current Rules 9400, 9522, 9552, 9553, 9554, 9555, 
9556, 9557, and 9558. The Exchange notes that FINRA currently 
performs the functions described in these rules. The proposed 
changes further clarify that in the rule text.
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Jurisdiction
    The Exchange proposes to replace the current rule text related to 
jurisdiction of Nasdaq to initiate disciplinary actions with text 
substantially similar to the Phlx's jurisdiction rule text. Nasdaq 
Current Rules 1012(h) \10\ and 1031(f) \11\ permit a disciplinary 
action to be brought within two years after the effective date of 
resignation, cancellation, or revocation of a member or associated 
person. The current Nasdaq provisions are more limited than Phlx's 
jurisdictional language. Phlx Rule 9110(d) does not contain a time 
limit on when a matter may be brought against a member or associated 
person following its termination or deregistration, so long as the 
Exchange serves written notice within one year of receipt by the 
Exchange of notice of such termination or deregistration that the 
Exchange is making inquiry into a matter or matters which occurred 
prior to the termination of such person's status as a member or 
associated person.\12\ The substantive amendment

[[Page 51017]]

with respect to jurisdiction is with the timeframe for bringing a 
disciplinary action against a member or associated person. The proposed 
rule expands the timeframe.
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    \10\ A resigned Nasdaq member or a Nasdaq member that has had 
its membership canceled or revoked shall continue to be subject to 
the filing of a complaint under the Nasdaq Rules based upon conduct 
that commenced prior to the effective date of the Nasdaq member's 
resignation from Nasdaq or the cancellation or revocation of its 
membership. Any such complaint, however, shall be filed within two 
years after the effective date of resignation, cancellation, or 
revocation.
    \11\ A person whose association with a Nasdaq member has been 
terminated and who is no longer associated with any member of Nasdaq 
or a person whose registration has been revoked or canceled shall 
continue to be subject to the filing of a complaint under Nasdaq 
Rules based upon conduct which commenced prior to the termination, 
revocation, or cancellation or upon such person's failure, while 
subject to Nasdaq's jurisdiction as provided herein, to provide 
information requested by Nasdaq pursuant to the Nasdaq Rules, but 
any such complaint shall be filed within: (A) Two years after the 
effective date of termination of registration pursuant to subsection 
(c); provided, however, that any amendment to a notice of 
termination filed pursuant to paragraph (c)(2) that is filed within 
two years of the original notice that discloses that such person may 
have engaged in conduct actionable under any applicable statute, 
rule, or regulation shall operate to recommence the running of the 
two-year period under this subsection; (B) two years after the 
effective date of revocation or cancellation of registration 
pursuant to the Nasdaq Rules; or (C) in the case of an unregistered 
person, within two years after the date upon which such person 
ceased to be associated with the Nasdaq member.
    A person whose association with a member has been terminated and 
is no longer associated with any Nasdaq member shall continue to be 
subject to a proceeding to suspend, consistent with Article IX, 
Section 2 of the Nasdaq By-Laws, his or her ability to associate 
with a member based on such person's failure to comply with an 
arbitration award or a written and executed settlement agreement 
obtained in connection with an arbitration or mediation submitted 
for disposition pursuant to Nasdaq Rules, provided that such 
proceeding is instituted within two years after the date of entry of 
such award or settlement.
    \12\ Any member or any partner, officer, director or person 
employed by or associated with any member (the Respondent) who is 
alleged to have violated or aided and abetted a violation of the 
Securities Exchange Act of 1934 (Exchange Act), the rules and 
regulations thereunder, the By-Laws and Rules of the Exchange or any 
interpretation thereof, and the Rules, Regulations, resolutions and 
stated policies of the Board of Directors or any Committee of the 
Exchange, shall be subject to the disciplinary jurisdiction of the 
Exchange, and after notice and opportunity for a hearing may be 
appropriately disciplined by expulsion, suspension, fine, censure, 
limitation or termination as to activities, functions, operations, 
or association with a member organization, or any other fitting 
sanction in accordance with the provisions of these disciplinary 
Rules.
    An individual member, or a partner, officer, director or person 
employed by or associated with a member may be charged with any 
violation within the disciplinary jurisdiction of the Exchange 
committed by employees under his supervision or by the member with 
which he is associated, as though such violations were his own. A 
member may be charged with any violation within the disciplinary 
jurisdiction of the Exchange committed by its officers, directors, 
or employees or by a member or other person who is associated with 
such member, as though such violation were its own.
    Any member, or any partner, officer, director, or person 
employed by or associated with a member organization, and any member 
organization shall continue to be subject to the disciplinary 
jurisdiction of the Exchange following the termination of such 
person's permit or the termination of the employment by or the 
association with a member organization of such member or partner, 
officer, director or person, or following the deregistration of a 
member organization from the Exchange; provided, that the Exchange 
serves written notice to such former member, partner, officer, 
director, employee, associated person or member organization within 
one year of receipt by the Exchange of notice of such termination or 
deregistration that the Exchange is making inquiry into a matter or 
matters which occurred prior to the termination of such person's 
status as a member, or as a partner, officer, director or person 
employed by or associated with a member organization, or prior to 
the deregistration of such member organization.
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    The amendment to expand jurisdiction will not apply retroactively 
and any complaints not filed within the existing two year time-period 
will be time-barred. The new jurisdiction rule will only apply to 
members or associated persons who terminate with the Exchange on or 
after October 15, 2018.
    The Exchange also proposes to eliminate the rule text contained 
within Nasdaq Current Rules 1012(h) and 1031(f) and reserve those 
sections.
Interested Staff Definition
    The definition of Interested Staff is being conformed to Phlx's 
definition and includes references to Exchange and FINRA employees as 
those terms are proposed to be defined.\13\ The proposed Nasdaq 
definition better defines who falls within the category of Interested 
Staff without substantively amending the definition. At this time, 
Nasdaq's proposal mirrors the Phlx definition, except insofar as 
Nasdaq's proposal omits references to FINRA's Department of Market 
Regulation for the reasons set forth in footnote 5 above.\14\ The 
Exchange also notes that it is removing the words ``a district director 
or'' from Nasdaq Current Rules 9120(t)(1)(D), 9120(t)(2)(D), and 
9120(t)(3)(D) because there is no such position at the Exchange. The 
use of those words in the current definition refers to the individual 
to whom a FINRA employee may report. Those words are therefore being 
preserved as they relate to FINRA in Proposed New Rules 9120(r)(1)(H), 
9120(r)(2)(E), 9120(r)(3)(E), and 9210(r)(4)(F).
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    \13\ As noted in n.5 above, the Exchange is, however, omitting 
references to FINRA's Department of Market Regulation in light of 
FINRA's recent rule filing that similarly omitted references to its 
Department of Market Regulation.
    \14\ The Exchange notes that it is adopting a more comprehensive 
definition of ``Interested Staff'' under Nasdaq Current Rule 9120(t) 
to align it with the definition used by Phlx. Specifically, the 
Exchange is adopting new text that accounts for the role of the 
Nasdaq Regulation Department, including the involvement of employees 
thereof. Thus, the proposed new definition will include all 
individuals that should be considered as ``Interested Staff'' for 
purposes of the Nasdaq Rule 9000 Series.
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Special Panelist
    The Exchange is removing the definition of Special Panelist and re-
lettering the remainder of the Section. Phlx and BX do not use or 
otherwise define a Special Panelist. Nasdaq Current Rule 9120(u) 
defines a Special Panelist.\15\ The Exchange notes that related rules, 
Nasdaq Current Rules 9212(a)(2)(B) and 9231(b)(2), are not mandatory 
today and permit, but do not require, a Chief Hearing Officer to 
utilize a Special Panelist. Nasdaq has automated its system throughout 
the years so that most disciplinary actions today involve issues which 
pertain to quotations of securities, execution of transactions, 
reporting of transactions and trading practices, including rules, for 
example, that prohibit manipulation and insider trading, among other 
Rules as described in Nasdaq Current Rules 9120(u)(1)-(4). Further, 
FINRA has skilled panelists who, like the Special Panelists, are 
trained to handle matters involving the subject matters described in 
the Special Panelist definition. The Exchange believes that the notion 
of a Special Panelist is not necessary because today FINRA panelists 
are equipped to handle matters related to the subject matter of Nasdaq 
Current Rules 9120(u)(1)-(4) with respect to any type of hearing. The 
concept of a Special Panelist is not extraordinary, rather it is a 
presumed skill set for today's FINRA panelists. The Exchange therefore 
proposes to remove all references to the term ``Special Panelist'' from 
its rules because the reality of current panelist selection and 
disciplinary processes obviate the need for this rule.\16\
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    \15\ ``The term ``Special Panelist'' means an individual 
approved by the Nasdaq Board of Directors at least annually who may 
be selected by the Chief Hearing Officer to serve on a Hearing Panel 
pursuant to Rules 9212, 9221, 9231, and 9232. A Special Panelist may 
be drawn from FINRA's Market Regulation Committee, or any other 
source the Nasdaq Board of Directors deems appropriate given the 
responsibilities of Special Panelists. Special Panelists may 
participate in disciplinary proceedings in which issues arise 
regarding: (1) The quotations of securities; (2) the execution of 
transactions; (3) the reporting of transactions; and (4) trading 
practices, including rules prohibiting manipulation and insider 
trading, and those Rules designated as Trading Rules (Rule 3300 
Series), The Nasdaq Stock Market Rules (Rule 4000 Series), and Other 
Systems and Programs Rules (Rule 6000 Series).'' See Nasdaq Current 
Rule 9120(u).
    \16\ See Nasdaq Current Rules 9120(u), 9212(a)(2)(B), 
9221(a)(3), 9231(b)(2), 9231(c)(2), and 9232(a)-(c).
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Hearing Panelists
    The Exchange is removing a category of individuals that may serve 
on a Hearing Panel and re-lettering the remainder of the section.\17\ 
Phlx and BX rules do not include that category of individuals from 
among those whom the Chief Hearing Officer may select as a Panelist. 
The Exchange originally proposed Current Rule 9231(b)(1)(D) as a 
transitional rule when the Exchange sought to become registered as a 
national securities exchange. The Rule allowed ``persons who served on 
the NASD National Adjudicatory Council, or a disciplinary subcommittee 
thereof, prior to the date that Nasdaq commenced operating as a 
national securities exchange to sit on Hearing Panels.'' \18\ This 
enabled the Exchange to pull from a larger pool of candidates. The 
Exchange has now been a national securities exchange for nearly 12 
years, and believes that there is a sufficient pool of panelists from 
which the Chief Hearing Officer may now pull. This is evidenced by the 
Hearing Panels both Phlx and BX are able to assemble. Given the passage 
of time, the need for Nasdaq Current Rule 9231(b)(1)(D) no longer 
exists.
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    \17\ Specifically, the Exchange is removing Nasdaq Current Rule 
9231(b)(1)(D) (``served on the FINRA National Adjudicatory Council 
or on a disciplinary subcommittee of the FINRA National Adjudicatory 
Council prior to the date that Nasdaq commenced operating as a 
national securities exchange; or'').
    \18\ See Securities Exchange Act Release No. 34-53128 (January 
13, 2006), 71 FR 3550 (January 23, 2006) (File No. 10-131) (Order 
granting application of NASDAQ Stock Market LLC for registration as 
a national securities exchange).
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    The Exchange is also clarifying Current Rule 9231(b)(1)(E) 
(Proposed New Rule 9231(b)(1)(D)) to more clearly state who may serve 
on a Hearing Panel.

[[Page 51018]]

Currently, BX and Phlx Rules 9231(b)(1)(D) indicate that the Chief 
Hearing Office may select as a Panelist a person who ``is a FINRA 
Panelist approved by the Nasdaq Board at least annually, including a 
person who previously served on the Market Regulation Committee \19\ 
not earlier than four years before the date the complaint was served 
upon the Respondent who was the first served Respondent in the 
disciplinary proceeding for which the Hearing Panel or the Extended 
Hearing Panel is being appointed, or from other sources the Board deems 
appropriate given the responsibilities of Panelists.'' The Exchange is 
adding the same text after ``is a FINRA Panelist approved by the Nasdaq 
Board at least annually'' in Proposed New Rule 9231(b)(1)(D) to make it 
clear that a person who served on the Market Regulation Committee is 
among those permitted to serve as a Panelist, provided that person 
meets the requirements of the rule.
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    \19\ The Exchange notes that while FINRA recently 
``consolidate[d] its existingenforcement [sic] functions into a 
unified Department of Enforcement'', see Securities Exchange Act 
Release No. 83781 (August 6, 2018), 83 FR 39802 (August 10, 2018), 
it did not eliminate the Market Regulation Committee. See, e.g., 
FINRA Code of Procedure Rule 9120(u).
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Other Non-Substantive and Technical Amendments
    The Exchange proposes to add a sentence within Nasdaq Current Rule 
9270(e)(2), similar to Phlx, to add more specificity to this rule and 
make clear that the Office of Disciplinary Affairs may accept an offer 
of settlement and order of acceptance or refer them to the Exchange 
Review Council. The Exchange notes that today the Office of 
Disciplinary Affairs may accept an offer of settlement and order of 
acceptance or refer them to the Exchange Review Council, so this 
language is intended to clarify current practice under the rule.
    The Exchange also proposes to make certain technical amendments 
throughout these rules to: (i) Add ``FINRA'' before ``Regulatory 
Contract''; \20\ (ii) amend ``NASD'' to the updated name ``FINRA''; 
\21\ (iii) replace ``Association'' with ``FINRA''; \22\ (iv) update 
certain incorrect cross-references to both FINRA and Nasdaq rule 
citations \23\; (v) add, remove, or modify rule text or punctuation in 
certain rules to conform the rule text of Nasdaq to Phlx ;\24\ (vi) 
include the phrase ``or person'' in various places throughout the rule 
to make it clear that inclusion of the person associated with a member 
is applicable ;\25\ (vii) relocate and/or renumber certain rules for 
ease of reference given other amendments described herein ;\26\ and 
(vii) correct a typographical error.\27\
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    \20\ See Nasdaq Current Rules 8001, 9001, 9120(f), and Proposed 
New Rules 9120(g), and 9120(u) and (v).
    \21\ See Nasdaq Current Rule 8110.
    \22\ See Nasdaq Current Rules 8210(a)(1), 9558(a)(2), and 
9610(a).
    \23\ See Nasdaq Current Rules 9231(c), 9268(e)(2), 9269(d)(2), 
9270(e), 9270(e)(2), 9270(f)(2), 9311(a), 9312(a)(3), 9331(a)(2), 
9351(a), 9524(a)(1), 9524(b)(3), and 9559 (q)(1).
    \24\ See Nasdaq Current Rules IM-8310-3, 9211(a)(1)-(2), 
9221(a)(1), 9231(b)(1), 9270(e)(2), 9270(f)(3), 9559(e), 9559(h)(2), 
and 9630(b).
    \25\ See Nasdaq Current Rules 9552(b), 9553(b), 9554(b), 
9555(b).
    \26\ See Proposed New Rule 9212(a)(2), which relocates language 
from Current Rule 9212(a)(2)(A); and Proposed New Rule 9231(c), 
which relocates language from Current Rule 9231(c)(1).
    \27\ See Nasdaq Current Rules 9215(f) and 9523(a)(4).
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2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act,\28\ in general, and furthers the objectives of Section 
6(b)(5) of the Act,\29\ in particular, in that it is designed to 
promote just and equitable principles of trade, 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. In addition, the Exchange believes that the proposed rule 
changes further the objectives of Section 6(b)(7) of the Act,\30\ in 
particular, in that these changes provide for fair procedures for the 
disciplining of members and persons associated with members, the denial 
of membership to any person seeking membership therein, the barring of 
any person from becoming associated with a member thereof, and the 
prohibition or limitation by the Exchange of any person with respect to 
access to services offered by the Exchange or a member thereof.
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    \28\ 15 U.S.C. 78f(b).
    \29\ 15 U.S.C. 78f(b)(5).
    \30\ 15 U.S.C. 78f(b)(7).
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    In addition, the Exchange believes that the proposed rule changes 
are consistent with Section 6(b)(6) of the Act,\31\ which requires the 
rules of an exchange provide that its members be appropriately 
disciplined for violations of the Act as well as the rules and 
regulations thereunder, or the rules of the Exchange, by expulsion, 
suspension, limitation of activities, functions, and operations, fine, 
censure, being suspended or barred from being associated with a member, 
or any other fitting sanction.
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    \31\ 15 U.S.C. 78f(b)(6).
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    The Exchange believes that the proposed changes are consistent with 
these requirements because the changes further harmonize Nasdaq's 
investigative and adjudicatory processes with similar processes used by 
Phlx. The new processes are well-established as fair and designed to 
protect investors and the public interest. Because the Exchange is 
conforming the Nasdaq rule text to the Phlx rule text to eliminate any 
differences (except for those noted herein), the Exchange believes that 
the proposed changes should facilitate prompt, appropriate, and 
effective discipline of members and their associated persons consistent 
with the Act. The Exchange believes that adding references to the 
Nasdaq Regulation Department within the 8000 and 9000 Nasdaq Series 
rules as described in this proposal clarifies the involvement that 
Nasdaq Regulation plays in the investigation and enforcement of 
Nasdaq's disciplinary rules. In addition, the Exchange believes that 
adding references to FINRA within the 8000 and 9000 Nasdaq Series rules 
as described in this proposal brings greater transparency to its rules 
and clarifies the process as it exists today. Today, FINRA is empowered 
to act on behalf of the Exchange.\32\
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    \32\ See Nasdaq Current Rule 8001.
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    The Exchange believes that harmonizing the rule text of the 
investigative and adjudicatory processes with those of Phlx will reduce 
the burden on members and their associated persons as they only will 
need to be familiar with a single rule set going forward. Because the 
substance of the rules would remain unchanged, the Exchange believes 
that the proposed change would continue to provide fair procedures for 
the suspending and disciplining of members and associated persons, the 
denial of membership to any person seeking membership therein, the 
barring of any person from becoming associated with a member thereof, 
and the prohibition or limitation by the Exchange of any person with 
respect to access to services offered by the Exchange or a member 
thereof.
    The Exchange's proposal to replace the current rule text related to 
jurisdiction of Nasdaq to initiate disciplinary actions with text 
substantially similar to the Phlx's jurisdiction rule text will permit 
the Exchange to initiate a disciplinary action beyond two years after 
the effective date of the member's or associated person's termination 
with the Exchange. This provision would not apply retroactively, but 
would permit the Exchange to bring actions after the effective date of 
termination, so long as the Exchange serves written notice within one 
year of receipt by the

[[Page 51019]]

Exchange of notice of such termination that the Exchange is making 
inquiry into a matter or matters which occurred prior to the 
termination of status as a member or associated person. The Exchange 
believes that this provision will provide the Exchange with the same 
latitude as Phlx to bring actions against its members and associated 
persons for violations of its rule. The Exchange believes that it is 
consistent with the Act to provide the Exchange with the ability to 
initiate violations for members and their associated persons for 
violations which took place while these members and associated persons 
were members of the Exchange. The rule change will better protect 
investors and the public interest by allowing actions to proceed that 
may otherwise have been time barred under the old rule.
    The Exchange's proposal to amend the definition of Interested Staff 
will conform Nasdaq's definition to Phlx's definition, except insofar 
as Nasdaq's proposal omits references to FINRA's Department of Market 
Regulation for the reasons set forth in footnote 5 above. The Exchange 
believes that it is consistent with the Act because the definition 
better defines who falls within the category of Interested Staff 
without substantively amending the definition.
    Removing the definition of Special Panelist is consistent with the 
Act because today Nasdaq Current Rules 9212(a)(2)(B) and 9231(b)(2) do 
not require a Chief Hearing Officer to utilize a Special Panelist. 
Further, FINRA has skilled panelists who, like the Special Panelists, 
are trained to handle matters involving the subject matters described 
in the Special Panelist definition, thus the reality of the panel 
selection and disciplinary processes today obviate the need for this 
rule.
    Removing from the pool of panelists persons that served on the 
FINRA National Adjudicatory Council or on a disciplinary subcommittee 
of the FINRA National Adjudicatory Council prior to the date that 
Nasdaq commenced operating as a national securities exchange is 
consistent with the act because there currently exists a sufficient 
number of persons from whom a Chief Hearing Officer may select as a 
Panelist. This change, in addition to adding clarifying text to Current 
Rule 9231(b)(1)(E) (Proposed New Rule 9231(b)(1)(D)) to more clearly 
state who may serve on a Hearing Panel, thereby aligning the text with 
the text of the parallel BX and Phlx Rules, is also consistent with the 
Act because it creates a uniform pool from which Panelists may be 
selected across the Nasdaq, BX, and Phlx, thus removing confusion that 
may result from having different pools of Panelists depending on the 
exchange.
    Finally, making technical amendments in Nasdaq Current Rules 8001, 
8110, 8210, IM-8310-3, 9001, 9120, 9211, 9212, 9221, 9231, 9268, 9269, 
9270, 9311, 9312, 9331, 9351, 9524, 9552, 9553, 9554, 9555, 9556, 9558, 
9559, 9610, and 9630 removes impediments to and perfects the mechanism 
of a free and open market by removing confusion that may result from 
having incorrect or incomplete material in the Exchange's rulebook.
    The Exchange believes that its proposal furthers the objectives of 
Section 6(b)(7) of the Act,\33\ in that it is designed to provide a 
fair procedure for the disciplining of members and persons associated 
with members, the denial of membership to any person seeking membership 
therein, the barring of any person from becoming associated with a 
member thereof, and the prohibition or limitation by the exchange of 
any person with respect to access to services offered by the exchange 
or a member thereof. Specifically, the Exchange believes that the 
proposed investigatory and disciplinary process is consistent with 
Section 6(b)(7) of the Act \34\ because it is based on the existing 
processes used by Phlx.
---------------------------------------------------------------------------

    \33\ 15 U.S.C. 78f(b)(7).
    \34\ Id.
---------------------------------------------------------------------------

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. The proposed rule change is 
intended to more clearly align the text of Phlx's and the Exchange's 
rules. Specifically and as described in detail above, the Exchange 
believes that this change will bring efficiency and consistency to the 
investigative and adjudicatory processes, thereby reducing the burden 
on members and their associated persons who are also members of Phlx.

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 \35\ and 
subparagraph (f)(6) of Rule 19b-4 thereunder.\36\
---------------------------------------------------------------------------

    \35\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \36\ 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.
---------------------------------------------------------------------------

    A proposed rule change filed under Rule 19b-4(f)(6)\37\ normally 
does not become operative prior to 30 days after the date of the 
filing. However, pursuant to Rule 19b-4(f)(6)(iii),\38\ the Commission 
may designate a shorter time if such action is consistent with the 
protection of investors and the public interest. The Exchange has asked 
the Commission to waive the 30-day operative delay so the Exchange may 
immediately amend its disciplinary rules to conform to Phlx's 
disciplinary process. The Exchange states that the proposed amendment 
to expand its current jurisdiction will not apply retroactively and any 
complaints not filed within the existing two-year time period will be 
time-barred. The Exchange further states that its new jurisdiction rule 
will only apply to applicable members or associated persons who 
terminate their membership or association on October 15, 2018 or 
thereafter. The Commission believes that waiving the 30-day operative 
delay is consistent with the protection of investors and the public 
interest as it will allow Nasdaq to conform its disciplinary rules to 
those of Phlx. In addition, the proposal does not present any novel 
issues. Therefore, the Commission hereby waives the operative delay and 
designates the proposal as operative upon filing.\39\
---------------------------------------------------------------------------

    \37\ 17 CFR 240.19b-4(f)(6).
    \38\ 17 CFR 240.19b-4(f)(6)(iii).
    \39\ For purposes only of waving the 30-day operative delay, the 
Commission has considered the purposed rule's impact on efficiency, 
competition, and capital formation. See 15 U.S.C. 78c(f).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of the proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is necessary or 
appropriate in the public interest, for the protection of investors, or 
otherwise in furtherance of the purposes of the Act. If the Commission 
takes such action, the

[[Page 51020]]

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-NASDAQ-2018-066 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-NASDAQ-2018-066. 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 a.m. and 3 
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-NASDAQ-2018-066 and should be submitted 
on or before October 31, 2018.
---------------------------------------------------------------------------

    \40\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\40\
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018-21900 Filed 10-9-18; 8:45 am]
 BILLING CODE 8011-01-P



                                                                        Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Notices                                               51015

                                              19(b)(3)(A) of the Act 78 and Rule 19b–                 All submissions should refer to File                  SECURITIES AND EXCHANGE
                                              4(f)(6) thereunder.                                     Number SR–BX–2018–047. This file                      COMMISSION
                                                 A proposed rule change filed under                   number should be included on the
                                              Rule 19b–4(f)(6) normally does not                      subject line if email is used. To help the            [Release No. 34–84355; File No. SR–
                                              become operative for 30 days from the                   Commission process and review your                    NASDAQ–2018–066]
                                              date of filing. However, Rule 19b–                      comments more efficiently, please use
                                              4(f)(6)(iii) 79 permits the Commission to               only one method. The Commission will                  Self-Regulatory Organizations; The
                                              designate a shorter time if such action                 post all comments on the Commission’s                 Nasdaq Stock Market LLC; Notice of
                                              is consistent with the protection of                                                                          Filing and Immediate Effectiveness of
                                                                                                      internet website (http://www.sec.gov/
                                              investors and the public interest. The                                                                        Proposed Rule Change To Align
                                                                                                      rules/sro.shtml). Copies of the
                                              Exchange has asked the Commission to                                                                          Existing Investigatory and Disciplinary
                                              waive the 30-day operative delay so that                submission, all subsequent
                                                                                                      amendments, all written statements                    Processes and Related Rules With the
                                              the proposal may become operative on                                                                          Investigatory and Disciplinary
                                              October 1, 2018 to coincide with the                    with respect to the proposed rule
                                                                                                      change that are filed with the                        Processes and Related Rules of
                                              effective date of FINRA’s proposed rule                                                                       Nasdaq PHLX LLC
                                              change on which the proposal is                         Commission, and all written
                                              based.80 The waiver of the operative                    communications relating to the                        October 3, 2018.
                                              delay would make the Exchange’s                         proposed rule change between the
                                                                                                      Commission and any person, other than                    Pursuant to Section 19(b)(1) of the
                                              qualification requirements consistent
                                              with those of FINRA, as of October 1,                   those that may be withheld from the                   Securities Exchange Act of 1934
                                              2018. Therefore, the Commission                                                                               (‘‘Act’’),1 and Rule 19b–4 thereunder,2
                                                                                                      public in accordance with the
                                              believes that the waiver of the 30-day                                                                        notice is hereby given that on
                                                                                                      provisions of 5 U.S.C. 552, will be
                                              operative delay is consistent with the                                                                        September 24, 2018, The Nasdaq Stock
                                                                                                      available for website viewing and
                                              protection of investors and the public                                                                        Market LLC (‘‘Nasdaq’’ or ‘‘Exchange’’)
                                                                                                      printing in the Commission’s Public                   filed with the Securities and Exchange
                                              interest and hereby waives the 30-day                   Reference Room, 100 F Street NE,
                                              operative delay and designates the                                                                            Commission (‘‘Commission’’) the
                                                                                                      Washington, DC 20549, on official                     proposed rule change as described in
                                              proposal operative on October 1, 2018.81                business days between the hours of
                                                 At any time within 60 days of the                                                                          Items I and II, below, which Items have
                                                                                                      10:00 a.m. and 3:00 p.m. Copies of the                been prepared by the Exchange. The
                                              filing of the proposed rule change, the
                                                                                                      filing also will be available for                     Commission is publishing this notice to
                                              Commission summarily may
                                                                                                      inspection and copying at the principal               solicit comments on the proposed rule
                                              temporarily suspend such rule change if
                                                                                                      office of the Exchange. All comments                  change from interested persons.
                                              it appears to the Commission that such
                                              action is necessary or appropriate in the               received will be posted without change.
                                                                                                      Persons submitting comments are                       I. Self-Regulatory Organization’s
                                              public interest, for the protection of                                                                        Statement of the Terms of Substance of
                                              investors, or otherwise in furtherance of               cautioned that we do not redact or edit
                                                                                                                                                            the Proposed Rule Change
                                              the purposes of the Act.                                personal identifying information from
                                                                                                      comment submissions. You should                          The Exchange proposes to align its
                                              IV. Solicitation of Comments                            submit only information that you wish                 existing investigatory and disciplinary
                                                Interested persons are invited to                     to make available publicly. All                       processes and related rules with the
                                              submit written data, views, and                         submissions should refer to File                      investigatory and disciplinary processes
                                              arguments concerning the foregoing,                     Number SR–BX–2018–047 and should                      and related rules of Nasdaq PHLX LLC
                                              including whether the proposed rule                     be submitted on or before October 31,                 (‘‘Phlx’’) [sic]
                                              change is consistent with the Act.                      2018.                                                    The text of the proposed rule change
                                              Comments may be submitted by any of
                                                                                                        For the Commission, by the Division of              is available on the Exchange’s website at
                                              the following methods:
                                                                                                      Trading and Markets, pursuant to delegated            http://nasdaq.cchwallstreet.com, at the
                                              Electronic Comments                                     authority.82                                          principal office of the Exchange, and at
                                                • Use the Commission’s internet                       Eduardo A. Aleman,                                    the Commission’s Public Reference
                                              comment form (http://www.sec.gov/                       Assistant Secretary.                                  Room.
                                              rules/sro.shtml); or                                    [FR Doc. 2018–21904 Filed 10–9–18; 8:45 am]           II. Self-Regulatory Organization’s
                                                • Send an email to rule-comments@                     BILLING CODE 8011–01–P                                Statement of the Purpose of, and
                                              sec.gov. Please include File Number SR–                                                                       Statutory Basis for, the Proposed Rule
                                              BX–2018–047 on the subject line.                                                                              Change
                                              Paper Comments
                                                                                                                                                              In its filing with the Commission, the
                                                • Send paper comments in triplicate                                                                         Exchange included statements
                                              to Secretary, Securities and Exchange                                                                         concerning the purpose of and basis for
                                              Commission, 100 F Street NE,                                                                                  the proposed rule change and discussed
                                              Washington, DC 20549–1090.                                                                                    any comments it received on the
                                                                                                                                                            proposed rule change. The text of these
                                                78 15  U.S.C. 78s(b)(3)(A).
                                                79 17
                                                                                                                                                            statements may be examined at the
                                                       CFR 240.19b–4(f)(6)(iii).
                                                                                                                                                            places specified in Item IV below. The
amozie on DSK3GDR082PROD with NOTICES1




                                                 80 See supra note 7. As discussed above, the

                                              Exchange has stated that the new registration                                                                 Exchange has prepared summaries, set
                                              requirements for developers of algorithmic trading                                                            forth in sections A, B, and C below, of
                                              strategies would become operative on April 1, 2019.                                                           the most significant aspects of such
                                                 81 For purposes only of waiving the 30-day
                                                                                                                                                            statements.
                                              operative delay, the Commission has also
                                              considered the proposed rule’s impact on
                                                                                                                                                              1 15   U.S.C. 78s(b)(1).
                                              efficiency, competition, and capital formation. See
                                              15 U.S.C. 78c(f).                                         82 17   CFR 200.30–3(a)(12).                          2 17   CFR 240.19b–4.



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                                              51016                      Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Notices

                                              A. Self-Regulatory Organization’s                         Regulation Department’’ in Nasdaq                         Current Rules 1012(h) 10 and 1031(f) 11
                                              Statement of the Purpose of, and                          Current Rule 9120(aa) (definition of the                  permit a disciplinary action to be
                                              Statutory Basis for, the Proposed Rule                    term ‘‘Party’’). The Exchange also                        brought within two years after the
                                              Change                                                    proposes to add a definition for the term                 effective date of resignation,
                                                                                                        ‘‘Party’’ as used in the Nasdaq Rule 9400                 cancellation, or revocation of a member
                                              1. Purpose
                                                                                                        series,5 and to add references to                         or associated person. The current
                                                 Nasdaq proposes to amend certain of                    ‘‘FINRA’’ in Nasdaq Current Rule                          Nasdaq provisions are more limited
                                              its rules to align its existing                                                                                     than Phlx’s jurisdictional language. Phlx
                                                                                                        9120(aa)(3) to clarify that FINRA falls
                                              investigatory and disciplinary processes                                                                            Rule 9110(d) does not contain a time
                                                                                                        under the definition of ‘‘Party’’ as used
                                              and related rules with the investigatory                                                                            limit on when a matter may be brought
                                                                                                        in the Rule 9550 series. In addition, the
                                              and disciplinary processes and related                                                                              against a member or associated person
                                              rules of Phlx. Nasdaq notes that Phlx                     Exchange is adding references to the
                                                                                                                                                                  following its termination or
                                              amended its rules recently to adopt an                    Nasdaq Regulation Department                              deregistration, so long as the Exchange
                                              investigatory and disciplinary process                    throughout the Nasdaq Rule 8000 and                       serves written notice within one year of
                                              identical in all material respects to the                 9000 series.6 These amendments will                       receipt by the Exchange of notice of
                                              investigatory and disciplinary processes                  conform the text of Nasdaq 8000 and                       such termination or deregistration that
                                              of Nasdaq BX, Inc. (‘‘BX’’) and Nasdaq.3                  9000 rules with those of Phlx.7                           the Exchange is making inquiry into a
                                              The amendment also vested the Phlx                        Role of FINRA                                             matter or matters which occurred prior
                                              Regulation Department with the same                                                                                 to the termination of such person’s
                                              authority proposed herein. The                              The Exchange proposes to add rule                       status as a member or associated
                                              Exchange therefore proposes the below                     text to certain rules to clarify that                     person.12 The substantive amendment
                                              changes to the 8000 and 9000 Series of                    FINRA may act on behalf of the
                                              the Nasdaq Rules in order to conform its                  Exchange. Today, FINRA is empowered
                                                                                                                                                                     10 A resigned Nasdaq member or a Nasdaq

                                              rules to those of Phlx 8000 and 9000                                                                                member that has had its membership canceled or
                                                                                                        to act on behalf of the Exchange.8 The                    revoked shall continue to be subject to the filing of
                                              Series rules in all respects.4                            revisions to these rules will therefore                   a complaint under the Nasdaq Rules based upon
                                                                                                        clarify FINRA’s authority as it currently                 conduct that commenced prior to the effective date
                                              Definition of Nasdaq Regulation                                                                                     of the Nasdaq member’s resignation from Nasdaq or
                                                The Exchange proposes to revise the                     exists today.9                                            the cancellation or revocation of its membership.
                                                                                                                                                                  Any such complaint, however, shall be filed within
                                              definition of Nasdaq Current Rule                         Jurisdiction                                              two years after the effective date of resignation,
                                              9120(w) (‘‘Nasdaq Regulation’’) to                                                                                  cancellation, or revocation.
                                              expressly include the Exchange’s                            The Exchange proposes to replace the                       11 A person whose association with a Nasdaq

                                              Enforcement Department. The                               current rule text related to jurisdiction                 member has been terminated and who is no longer
                                              Exchange’s Enforcement Department is                      of Nasdaq to initiate disciplinary actions                associated with any member of Nasdaq or a person
                                                                                                                                                                  whose registration has been revoked or canceled
                                              specifically charged with pursuing                        with text substantially similar to the                    shall continue to be subject to the filing of a
                                              disciplinary action against members,                      Phlx’s jurisdiction rule text. Nasdaq                     complaint under Nasdaq Rules based upon conduct
                                              persons associated with a member, and                                                                               which commenced prior to the termination,
                                                                                                                                                                  revocation, or cancellation or upon such person’s
                                              persons subject to the Exchange’s                            5 The Exchange notes that, like Phlx, it is likewise
                                                                                                                                                                  failure, while subject to Nasdaq’s jurisdiction as
                                              jurisdiction, in addition to FINRA’s                      including the Department of Enforcement as a              provided herein, to provide information requested
                                              Department of Enforcement.                                potential party to a matter under the Rule 9400           by Nasdaq pursuant to the Nasdaq Rules, but any
                                                                                                        Series. The Exchange believes that including this
                                                Similarly, the Exchange proposes to                                                                               such complaint shall be filed within: (A) Two years
                                                                                                        department in Rule 9400 Series is appropriate             after the effective date of termination of registration
                                              add references to the ‘‘Nasdaq                            because it may be involved in the initiation of such      pursuant to subsection (c); provided, however, that
                                                                                                        a matter for Nasdaq currently. The Exchange is also       any amendment to a notice of termination filed
                                                 3 See Securities Exchange Act Release No. 82143        adding FINRA to other parts of Rule 9400 where it         pursuant to paragraph (c)(2) that is filed within two
                                              (November 22, 2017), 82 FR 56672 (November 29,            is appropriate to show that FINRA may be the entity       years of the original notice that discloses that such
                                              2017) (Notice of Filing and Immediate Effectiveness       that initiated an action under the rule.                  person may have engaged in conduct actionable
                                              of Proposed Rule Change To Adopt Investigatory               6 See Nasdaq Current Rules 8001, 8210, 8211, IM–       under any applicable statute, rule, or regulation
                                              and Disciplinary Processes Substantially Similar to       8310–3, 9001, 9120, 9131, 9133, 9143, 9146, 9211,         shall operate to recommence the running of the
                                              Nasdaq BX, Inc. and The Nasdaq Stock Market LLC           9212, 9213, 9215, 9216, 9251, 9252, 9253, 9264,           two-year period under this subsection; (B) two years
                                              for Phlx, which, among other things, similarly            9269, 9270, 9311, 9400, 9522, 9523, 9524, 9552,           after the effective date of revocation or cancellation
                                              enabled Phlx to retain discretion to perform these        9553, 9554, 9555, 9556, 9557, 9558, 9559, 9610,           of registration pursuant to the Nasdaq Rules; or (C)
                                              functions).                                               9630, 9810, 9820, 9830, and 9840.                         in the case of an unregistered person, within two
                                                 4 The Exchange notes that the Financial Industry
                                                                                                           7 The Exchange is also amending Current Nasdaq         years after the date upon which such person ceased
                                              Regulatory Authority (‘‘FINRA’’) amended its rules                                                                  to be associated with the Nasdaq member.
                                                                                                        Rule 9120(aa)(2), to align that rule text with
                                              recently to reflect an internal reorganization of         FINRA’s recent rule change. The term ‘‘Party’’ when          A person whose association with a member has
                                              FINRA’s Enforcement Operations. See Securities            used in the Rule 9520 Series, now means FINRA’s           been terminated and is no longer associated with
                                              Exchange Act Release No. 83781 (August 6, 2018),                                                                    any Nasdaq member shall continue to be subject to
                                                                                                        Department of Enforcement, rather than Member
                                              83 FR 39802 (August 10, 2018). In July 2017, FINRA                                                                  a proceeding to suspend, consistent with Article IX,
                                                                                                        Regulation. See Securities Exchange Act Release
                                              announced its plan to consolidate its existing                                                                      Section 2 of the Nasdaq By-Laws, his or her ability
                                                                                                        No. 83781 (August 6, 2018), 83 FR 39802 (August
                                              enforcement functions into a unified Department of                                                                  to associate with a member based on such person’s
                                                                                                        10, 2018).                                                failure to comply with an arbitration award or a
                                              Enforcement. FINRA’s recent rule change makes                8 See Nasdaq Current Rule 8001 (‘‘Nasdaq and
                                              technical and other non-substantive changes to                                                                      written and executed settlement agreement
                                              FINRA Rules 9000 Series Code of Procedure (the            FINRA are parties to the Regulatory Contract              obtained in connection with an arbitration or
                                              ‘‘Code’’) to reflect the single Department of             pursuant to which FINRA has agreed to perform             mediation submitted for disposition pursuant to
                                              Enforcement. The rule change removed references           certain functions described in these rules on behalf      Nasdaq Rules, provided that such proceeding is
                                              to the Market Regulation department, its head and         of Nasdaq. Nasdaq rules that refer to Nasdaq              instituted within two years after the date of entry
                                              employees from the Code where those references            Regulation, Nasdaq Regulation staff, Nasdaq staff,        of such award or settlement.
amozie on DSK3GDR082PROD with NOTICES1




                                              reflect the previously separate Market Regulation         and Nasdaq departments should be understood as               12 Any member or any partner, officer, director or

                                              enforcement function. In light of FINRA’s                 also referring to FINRA staff and FINRA                   person employed by or associated with any member
                                              reorganization, the Exchange is likewise removing         departments acting on behalf of Nasdaq pursuant to        (the Respondent) who is alleged to have violated or
                                              references to the Market Regulation department, its       the Regulatory Contract.’’).                              aided and abetted a violation of the Securities
                                              head and employees from the Code, and re-lettering           9 See Nasdaq Current Rules 9400, 9522, 9552,           Exchange Act of 1934 (Exchange Act), the rules and
                                              the remainder of those sections where such re-            9553, 9554, 9555, 9556, 9557, and 9558. The               regulations thereunder, the By-Laws and Rules of
                                              lettering is necessary (i.e. Rule 9120). Phlx will also   Exchange notes that FINRA currently performs the          the Exchange or any interpretation thereof, and the
                                              submit a similar rule filing to remove those              functions described in these rules. The proposed          Rules, Regulations, resolutions and stated policies
                                              references in due course.                                 changes further clarify that in the rule text.            of the Board of Directors or any Committee of the



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                                                                         Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Notices                                                      51017

                                              with respect to jurisdiction is with the                 amending the definition. At this time,                 skilled panelists who, like the Special
                                              timeframe for bringing a disciplinary                    Nasdaq’s proposal mirrors the Phlx                     Panelists, are trained to handle matters
                                              action against a member or associated                    definition, except insofar as Nasdaq’s                 involving the subject matters described
                                              person. The proposed rule expands the                    proposal omits references to FINRA’s                   in the Special Panelist definition. The
                                              timeframe.                                               Department of Market Regulation for the                Exchange believes that the notion of a
                                                 The amendment to expand                               reasons set forth in footnote 5 above.14               Special Panelist is not necessary
                                              jurisdiction will not apply retroactively                The Exchange also notes that it is                     because today FINRA panelists are
                                              and any complaints not filed within the                  removing the words ‘‘a district director               equipped to handle matters related to
                                              existing two year time-period will be                    or’’ from Nasdaq Current Rules                         the subject matter of Nasdaq Current
                                              time-barred. The new jurisdiction rule                   9120(t)(1)(D), 9120(t)(2)(D), and                      Rules 9120(u)(1)–(4) with respect to any
                                              will only apply to members or                            9120(t)(3)(D) because there is no such                 type of hearing. The concept of a
                                              associated persons who terminate with                    position at the Exchange. The use of                   Special Panelist is not extraordinary,
                                              the Exchange on or after October 15,                     those words in the current definition                  rather it is a presumed skill set for
                                              2018.                                                    refers to the individual to whom a                     today’s FINRA panelists. The Exchange
                                                 The Exchange also proposes to                         FINRA employee may report. Those                       therefore proposes to remove all
                                              eliminate the rule text contained within                 words are therefore being preserved as                 references to the term ‘‘Special Panelist’’
                                              Nasdaq Current Rules 1012(h) and                         they relate to FINRA in Proposed New                   from its rules because the reality of
                                              1031(f) and reserve those sections.                      Rules 9120(r)(1)(H), 9120(r)(2)(E),                    current panelist selection and
                                              Interested Staff Definition                              9120(r)(3)(E), and 9210(r)(4)(F).                      disciplinary processes obviate the need
                                                                                                       Special Panelist                                       for this rule.16
                                                The definition of Interested Staff is
                                              being conformed to Phlx’s definition                        The Exchange is removing the                        Hearing Panelists
                                              and includes references to Exchange                      definition of Special Panelist and re-                    The Exchange is removing a category
                                              and FINRA employees as those terms                       lettering the remainder of the Section.                of individuals that may serve on a
                                              are proposed to be defined.13 The                        Phlx and BX do not use or otherwise                    Hearing Panel and re-lettering the
                                              proposed Nasdaq definition better                        define a Special Panelist. Nasdaq                      remainder of the section.17 Phlx and BX
                                              defines who falls within the category of                 Current Rule 9120(u) defines a Special                 rules do not include that category of
                                              Interested Staff without substantively                   Panelist.15 The Exchange notes that                    individuals from among those whom the
                                                                                                       related rules, Nasdaq Current Rules                    Chief Hearing Officer may select as a
                                              Exchange, shall be subject to the disciplinary           9212(a)(2)(B) and 9231(b)(2), are not                  Panelist. The Exchange originally
                                              jurisdiction of the Exchange, and after notice and       mandatory today and permit, but do not
                                              opportunity for a hearing may be appropriately
                                                                                                                                                              proposed Current Rule 9231(b)(1)(D) as
                                              disciplined by expulsion, suspension, fine, censure,
                                                                                                       require, a Chief Hearing Officer to                    a transitional rule when the Exchange
                                              limitation or termination as to activities, functions,   utilize a Special Panelist. Nasdaq has                 sought to become registered as a
                                              operations, or association with a member                 automated its system throughout the                    national securities exchange. The Rule
                                              organization, or any other fitting sanction in           years so that most disciplinary actions
                                              accordance with the provisions of these
                                                                                                                                                              allowed ‘‘persons who served on the
                                              disciplinary Rules.
                                                                                                       today involve issues which pertain to                  NASD National Adjudicatory Council,
                                                An individual member, or a partner, officer,           quotations of securities, execution of                 or a disciplinary subcommittee thereof,
                                              director or person employed by or associated with        transactions, reporting of transactions                prior to the date that Nasdaq
                                              a member may be charged with any violation within        and trading practices, including rules,                commenced operating as a national
                                              the disciplinary jurisdiction of the Exchange            for example, that prohibit manipulation
                                              committed by employees under his supervision or                                                                 securities exchange to sit on Hearing
                                              by the member with which he is associated, as
                                                                                                       and insider trading, among other Rules                 Panels.’’ 18 This enabled the Exchange to
                                              though such violations were his own. A member            as described in Nasdaq Current Rules                   pull from a larger pool of candidates.
                                              may be charged with any violation within the             9120(u)(1)–(4). Further, FINRA has                     The Exchange has now been a national
                                              disciplinary jurisdiction of the Exchange committed
                                              by its officers, directors, or employees or by a            14 The Exchange notes that it is adopting a more
                                                                                                                                                              securities exchange for nearly 12 years,
                                              member or other person who is associated with            comprehensive definition of ‘‘Interested Staff’’
                                                                                                                                                              and believes that there is a sufficient
                                              such member, as though such violation were its           under Nasdaq Current Rule 9120(t) to align it with     pool of panelists from which the Chief
                                              own.                                                     the definition used by Phlx. Specifically, the         Hearing Officer may now pull. This is
                                                Any member, or any partner, officer, director, or      Exchange is adopting new text that accounts for the
                                              person employed by or associated with a member
                                                                                                                                                              evidenced by the Hearing Panels both
                                                                                                       role of the Nasdaq Regulation Department,
                                              organization, and any member organization shall          including the involvement of employees thereof.
                                                                                                                                                              Phlx and BX are able to assemble. Given
                                              continue to be subject to the disciplinary               Thus, the proposed new definition will include all     the passage of time, the need for Nasdaq
                                              jurisdiction of the Exchange following the               individuals that should be considered as               Current Rule 9231(b)(1)(D) no longer
                                              termination of such person’s permit or the               ‘‘Interested Staff’’ for purposes of the Nasdaq Rule
                                              termination of the employment by or the
                                                                                                                                                              exists.
                                                                                                       9000 Series.
                                              association with a member organization of such              15 ‘‘The term ‘‘Special Panelist’’ means an
                                                                                                                                                                 The Exchange is also clarifying
                                              member or partner, officer, director or person, or       individual approved by the Nasdaq Board of             Current Rule 9231(b)(1)(E) (Proposed
                                              following the deregistration of a member                 Directors at least annually who may be selected by     New Rule 9231(b)(1)(D)) to more clearly
                                              organization from the Exchange; provided, that the
                                              Exchange serves written notice to such former
                                                                                                       the Chief Hearing Officer to serve on a Hearing        state who may serve on a Hearing Panel.
                                                                                                       Panel pursuant to Rules 9212, 9221, 9231, and
                                              member, partner, officer, director, employee,            9232. A Special Panelist may be drawn from               16 See Nasdaq Current Rules 9120(u),
                                              associated person or member organization within          FINRA’s Market Regulation Committee, or any other
                                              one year of receipt by the Exchange of notice of         source the Nasdaq Board of Directors deems             9212(a)(2)(B), 9221(a)(3), 9231(b)(2), 9231(c)(2), and
                                              such termination or deregistration that the              appropriate given the responsibilities of Special      9232(a)–(c).
                                              Exchange is making inquiry into a matter or matters                                                               17 Specifically, the Exchange is removing Nasdaq
                                                                                                       Panelists. Special Panelists may participate in
                                              which occurred prior to the termination of such          disciplinary proceedings in which issues arise         Current Rule 9231(b)(1)(D) (‘‘served on the FINRA
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                                              person’s status as a member, or as a partner, officer,   regarding: (1) The quotations of securities; (2) the   National Adjudicatory Council or on a disciplinary
                                              director or person employed by or associated with        execution of transactions; (3) the reporting of        subcommittee of the FINRA National Adjudicatory
                                              a member organization, or prior to the                   transactions; and (4) trading practices, including     Council prior to the date that Nasdaq commenced
                                              deregistration of such member organization.              rules prohibiting manipulation and insider trading,    operating as a national securities exchange; or’’).
                                                13 As noted in n.5 above, the Exchange is,             and those Rules designated as Trading Rules (Rule        18 See Securities Exchange Act Release No. 34–

                                              however, omitting references to FINRA’s                  3300 Series), The Nasdaq Stock Market Rules (Rule      53128 (January 13, 2006), 71 FR 3550 (January 23,
                                              Department of Market Regulation in light of              4000 Series), and Other Systems and Programs           2006) (File No. 10–131) (Order granting application
                                              FINRA’s recent rule filing that similarly omitted        Rules (Rule 6000 Series).’’ See Nasdaq Current Rule    of NASDAQ Stock Market LLC for registration as a
                                              references to its Department of Market Regulation.       9120(u).                                               national securities exchange).



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                                              51018                      Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Notices

                                              Currently, BX and Phlx Rules                            to conform the rule text of Nasdaq to                 further harmonize Nasdaq’s
                                              9231(b)(1)(D) indicate that the Chief                   Phlx ;24 (vi) include the phrase ‘‘or                 investigative and adjudicatory processes
                                              Hearing Office may select as a Panelist                 person’’ in various places throughout                 with similar processes used by Phlx.
                                              a person who ‘‘is a FINRA Panelist                      the rule to make it clear that inclusion              The new processes are well-established
                                              approved by the Nasdaq Board at least                   of the person associated with a member                as fair and designed to protect investors
                                              annually, including a person who                        is applicable ;25 (vii) relocate and/or               and the public interest. Because the
                                              previously served on the Market                         renumber certain rules for ease of                    Exchange is conforming the Nasdaq rule
                                              Regulation Committee 19 not earlier than                reference given other amendments                      text to the Phlx rule text to eliminate
                                              four years before the date the complaint                described herein ;26 and (vii) correct a              any differences (except for those noted
                                              was served upon the Respondent who                      typographical error.27                                herein), the Exchange believes that the
                                              was the first served Respondent in the                                                                        proposed changes should facilitate
                                                                                                      2. Statutory Basis
                                              disciplinary proceeding for which the                                                                         prompt, appropriate, and effective
                                              Hearing Panel or the Extended Hearing                      The Exchange believes that its                     discipline of members and their
                                              Panel is being appointed, or from other                 proposal is consistent with Section 6(b)              associated persons consistent with the
                                              sources the Board deems appropriate                     of the Act,28 in general, and furthers the            Act. The Exchange believes that adding
                                              given the responsibilities of Panelists.’’              objectives of Section 6(b)(5) of the Act,29           references to the Nasdaq Regulation
                                              The Exchange is adding the same text                    in particular, in that it is designed to              Department within the 8000 and 9000
                                              after ‘‘is a FINRA Panelist approved by                 promote just and equitable principles of              Nasdaq Series rules as described in this
                                              the Nasdaq Board at least annually’’ in                 trade, to remove impediments to and                   proposal clarifies the involvement that
                                              Proposed New Rule 9231(b)(1)(D) to                      perfect the mechanism of a free and                   Nasdaq Regulation plays in the
                                              make it clear that a person who served                  open market and a national market                     investigation and enforcement of
                                              on the Market Regulation Committee is                   system, and, in general to protect                    Nasdaq’s disciplinary rules. In addition,
                                              among those permitted to serve as a                     investors and the public interest. In                 the Exchange believes that adding
                                              Panelist, provided that person meets the                addition, the Exchange believes that the              references to FINRA within the 8000
                                              requirements of the rule.                               proposed rule changes further the                     and 9000 Nasdaq Series rules as
                                                                                                      objectives of Section 6(b)(7) of the Act,30           described in this proposal brings greater
                                              Other Non-Substantive and Technical                     in particular, in that these changes                  transparency to its rules and clarifies
                                              Amendments                                              provide for fair procedures for the                   the process as it exists today. Today,
                                                 The Exchange proposes to add a                       disciplining of members and persons                   FINRA is empowered to act on behalf of
                                              sentence within Nasdaq Current Rule                     associated with members, the denial of                the Exchange.32
                                              9270(e)(2), similar to Phlx, to add more                membership to any person seeking                         The Exchange believes that
                                              specificity to this rule and make clear                 membership therein, the barring of any                harmonizing the rule text of the
                                              that the Office of Disciplinary Affairs                 person from becoming associated with a                investigative and adjudicatory processes
                                              may accept an offer of settlement and                   member thereof, and the prohibition or                with those of Phlx will reduce the
                                              order of acceptance or refer them to the                limitation by the Exchange of any                     burden on members and their associated
                                              Exchange Review Council. The                            person with respect to access to services             persons as they only will need to be
                                              Exchange notes that today the Office of                 offered by the Exchange or a member                   familiar with a single rule set going
                                              Disciplinary Affairs may accept an offer                thereof.                                              forward. Because the substance of the
                                              of settlement and order of acceptance or                   In addition, the Exchange believes                 rules would remain unchanged, the
                                              refer them to the Exchange Review                       that the proposed rule changes are                    Exchange believes that the proposed
                                              Council, so this language is intended to                consistent with Section 6(b)(6) of the                change would continue to provide fair
                                              clarify current practice under the rule.                Act,31 which requires the rules of an                 procedures for the suspending and
                                                 The Exchange also proposes to make                   exchange provide that its members be                  disciplining of members and associated
                                              certain technical amendments                            appropriately disciplined for violations              persons, the denial of membership to
                                              throughout these rules to: (i) Add                      of the Act as well as the rules and                   any person seeking membership therein,
                                              ‘‘FINRA’’ before ‘‘Regulatory                           regulations thereunder, or the rules of               the barring of any person from becoming
                                              Contract’’; 20 (ii) amend ‘‘NASD’’ to the               the Exchange, by expulsion, suspension,               associated with a member thereof, and
                                              updated name ‘‘FINRA’’; 21 (iii) replace                limitation of activities, functions, and              the prohibition or limitation by the
                                              ‘‘Association’’ with ‘‘FINRA’’; 22 (iv)                 operations, fine, censure, being                      Exchange of any person with respect to
                                              update certain incorrect cross-references               suspended or barred from being                        access to services offered by the
                                              to both FINRA and Nasdaq rule                           associated with a member, or any other                Exchange or a member thereof.
                                              citations 23; (v) add, remove, or modify                fitting sanction.                                        The Exchange’s proposal to replace
                                              rule text or punctuation in certain rules                  The Exchange believes that the                     the current rule text related to
                                                                                                      proposed changes are consistent with                  jurisdiction of Nasdaq to initiate
                                                 19 The Exchange notes that while FINRA recently
                                                                                                      these requirements because the changes                disciplinary actions with text
                                              ‘‘consolidate[d] its existingenforcement [sic]                                                                substantially similar to the Phlx’s
                                              functions into a unified Department of
                                              Enforcement’’, see Securities Exchange Act Release
                                                                                                        24 See Nasdaq Current Rules IM–8310–3,              jurisdiction rule text will permit the
                                              No. 83781 (August 6, 2018), 83 FR 39802 (August         9211(a)(1)–(2), 9221(a)(1), 9231(b)(1), 9270(e)(2),   Exchange to initiate a disciplinary
                                                                                                      9270(f)(3), 9559(e), 9559(h)(2), and 9630(b).
                                              10, 2018), it did not eliminate the Market
                                                                                                        25 See Nasdaq Current Rules 9552(b), 9553(b),
                                                                                                                                                            action beyond two years after the
                                              Regulation Committee. See, e.g., FINRA Code of                                                                effective date of the member’s or
                                              Procedure Rule 9120(u).                                 9554(b), 9555(b).
                                                 20 See Nasdaq Current Rules 8001, 9001, 9120(f),       26 See Proposed New Rule 9212(a)(2), which          associated person’s termination with the
                                                                                                      relocates language from Current Rule 9212(a)(2)(A);   Exchange. This provision would not
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                                              and Proposed New Rules 9120(g), and 9120(u) and
                                              (v).                                                    and Proposed New Rule 9231(c), which relocates        apply retroactively, but would permit
                                                                                                      language from Current Rule 9231(c)(1).
                                                 21 See Nasdaq Current Rule 8110.
                                                                                                        27 See Nasdaq Current Rules 9215(f) and
                                                                                                                                                            the Exchange to bring actions after the
                                                 22 See Nasdaq Current Rules 8210(a)(1),
                                                                                                      9523(a)(4).                                           effective date of termination, so long as
                                              9558(a)(2), and 9610(a).
                                                 23 See Nasdaq Current Rules 9231(c), 9268(e)(2),
                                                                                                        28 15 U.S.C. 78f(b).                                the Exchange serves written notice
                                              9269(d)(2), 9270(e), 9270(e)(2), 9270(f)(2), 9311(a),
                                                                                                        29 15 U.S.C. 78f(b)(5).                             within one year of receipt by the
                                                                                                        30 15 U.S.C. 78f(b)(7).
                                              9312(a)(3), 9331(a)(2), 9351(a), 9524(a)(1),
                                              9524(b)(3), and 9559 (q)(1).                              31 15 U.S.C. 78f(b)(6).                               32 See   Nasdaq Current Rule 8001.



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                                                                        Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Notices                                                        51019

                                              Exchange of notice of such termination                  confusion that may result from having                   the protection of investors or the public
                                              that the Exchange is making inquiry into                different pools of Panelists depending                  interest; (ii) impose any significant
                                              a matter or matters which occurred prior                on the exchange.                                        burden on competition; and (iii) become
                                              to the termination of status as a member                  Finally, making technical                             operative for 30 days from the date on
                                              or associated person. The Exchange                      amendments in Nasdaq Current Rules                      which it was filed, or such shorter time
                                              believes that this provision will provide               8001, 8110, 8210, IM–8310–3, 9001,                      as the Commission may designate, it has
                                              the Exchange with the same latitude as                  9120, 9211, 9212, 9221, 9231, 9268,                     become effective pursuant to Section
                                              Phlx to bring actions against its                       9269, 9270, 9311, 9312, 9331, 9351,                     19(b)(3)(A)(iii) of the Act 35 and
                                              members and associated persons for                      9524, 9552, 9553, 9554, 9555, 9556,                     subparagraph (f)(6) of Rule 19b–4
                                              violations of its rule. The Exchange                    9558, 9559, 9610, and 9630 removes                      thereunder.36
                                              believes that it is consistent with the                 impediments to and perfects the                            A proposed rule change filed under
                                              Act to provide the Exchange with the                    mechanism of a free and open market by                  Rule 19b–4(f)(6)37 normally does not
                                              ability to initiate violations for members              removing confusion that may result                      become operative prior to 30 days after
                                              and their associated persons for                        from having incorrect or incomplete                     the date of the filing. However, pursuant
                                              violations which took place while these                 material in the Exchange’s rulebook.                    to Rule 19b–4(f)(6)(iii),38 the
                                              members and associated persons were                       The Exchange believes that its                        Commission may designate a shorter
                                              members of the Exchange. The rule                       proposal furthers the objectives of                     time if such action is consistent with the
                                              change will better protect investors and                Section 6(b)(7) of the Act,33 in that it is             protection of investors and the public
                                              the public interest by allowing actions                 designed to provide a fair procedure for                interest. The Exchange has asked the
                                              to proceed that may otherwise have                      the disciplining of members and                         Commission to waive the 30-day
                                              been time barred under the old rule.                    persons associated with members, the                    operative delay so the Exchange may
                                                The Exchange’s proposal to amend                      denial of membership to any person                      immediately amend its disciplinary
                                              the definition of Interested Staff will                 seeking membership therein, the barring                 rules to conform to Phlx’s disciplinary
                                              conform Nasdaq’s definition to Phlx’s                   of any person from becoming associated                  process. The Exchange states that the
                                              definition, except insofar as Nasdaq’s                  with a member thereof, and the                          proposed amendment to expand its
                                              proposal omits references to FINRA’s                    prohibition or limitation by the                        current jurisdiction will not apply
                                              Department of Market Regulation for the                 exchange of any person with respect to                  retroactively and any complaints not
                                              reasons set forth in footnote 5 above.                  access to services offered by the                       filed within the existing two-year time
                                              The Exchange believes that it is                        exchange or a member thereof.                           period will be time-barred. The
                                              consistent with the Act because the                     Specifically, the Exchange believes that                Exchange further states that its new
                                              definition better defines who falls                     the proposed investigatory and                          jurisdiction rule will only apply to
                                              within the category of Interested Staff                 disciplinary process is consistent with                 applicable members or associated
                                              without substantively amending the                      Section 6(b)(7) of the Act 34 because it is             persons who terminate their
                                              definition.                                             based on the existing processes used by                 membership or association on October
                                                Removing the definition of Special                    Phlx.                                                   15, 2018 or thereafter. The Commission
                                              Panelist is consistent with the Act                                                                             believes that waiving the 30-day
                                              because today Nasdaq Current Rules                      B. Self-Regulatory Organization’s                       operative delay is consistent with the
                                              9212(a)(2)(B) and 9231(b)(2) do not                     Statement on Burden on Competition                      protection of investors and the public
                                              require a Chief Hearing Officer to utilize                 The Exchange does not believe that                   interest as it will allow Nasdaq to
                                              a Special Panelist. Further, FINRA has                  the proposed rule change will impose                    conform its disciplinary rules to those of
                                              skilled panelists who, like the Special                 any burden on competition not                           Phlx. In addition, the proposal does not
                                              Panelists, are trained to handle matters                necessary or appropriate in furtherance                 present any novel issues. Therefore, the
                                              involving the subject matters described                 of the purposes of the Act. The                         Commission hereby waives the
                                              in the Special Panelist definition, thus                proposed rule change is intended to                     operative delay and designates the
                                              the reality of the panel selection and                  more clearly align the text of Phlx’s and               proposal as operative upon filing.39
                                              disciplinary processes today obviate the                the Exchange’s rules. Specifically and as                  At any time within 60 days of the
                                              need for this rule.                                     described in detail above, the Exchange                 filing of the proposed rule change, the
                                                Removing from the pool of panelists                   believes that this change will bring                    Commission summarily may
                                              persons that served on the FINRA                        efficiency and consistency to the                       temporarily suspend such rule change if
                                              National Adjudicatory Council or on a                   investigative and adjudicatory                          it appears to the Commission that such
                                              disciplinary subcommittee of the FINRA                  processes, thereby reducing the burden                  action is necessary or appropriate in the
                                              National Adjudicatory Council prior to                  on members and their associated                         public interest, for the protection of
                                              the date that Nasdaq commenced                          persons who are also members of Phlx.                   investors, or otherwise in furtherance of
                                              operating as a national securities                                                                              the purposes of the Act. If the
                                              exchange is consistent with the act                     C. Self-Regulatory Organization’s
                                                                                                                                                              Commission takes such action, the
                                              because there currently exists a                        Statement on Comments on the
                                              sufficient number of persons from                       Proposed Rule Change Received From                        35 15  U.S.C. 78s(b)(3)(A)(iii).
                                              whom a Chief Hearing Officer may                        Members, Participants, or Others                          36 17  CFR 240.19b–4(f)(6). In addition, Rule 19b–
                                              select as a Panelist. This change, in                     No written comments were either                       4(f)(6) requires a self-regulatory organization to give
                                              addition to adding clarifying text to                   solicited or received.                                  the Commission written notice of its intent to file
                                              Current Rule 9231(b)(1)(E) (Proposed                                                                            the proposed rule change at least five business days
                                                                                                      III. Date of Effectiveness of the                       prior to the date of filing of the proposed rule
                                              New Rule 9231(b)(1)(D)) to more clearly
amozie on DSK3GDR082PROD with NOTICES1




                                                                                                                                                              change, or such shorter time as designated by the
                                              state who may serve on a Hearing Panel,                 Proposed Rule Change and Timing for                     Commission. The Exchange has satisfied this
                                              thereby aligning the text with the text of              Commission Action                                       requirement.
                                                                                                                                                                37 17 CFR 240.19b–4(f)(6).
                                              the parallel BX and Phlx Rules, is also                    Because the foregoing proposed rule                    38 17 CFR 240.19b–4(f)(6)(iii).
                                              consistent with the Act because it                      change does not: (i) Significantly affect                 39 For purposes only of waving the 30-day
                                              creates a uniform pool from which                                                                               operative delay, the Commission has considered the
                                              Panelists may be selected across the                      33 15    U.S.C. 78f(b)(7).                            purposed rule’s impact on efficiency, competition,
                                              Nasdaq, BX, and Phlx, thus removing                       34 Id.                                                and capital formation. See 15 U.S.C. 78c(f).



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                                              51020                       Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Notices

                                              Commission shall institute proceedings                      For the Commission, by the Division of              of the most significant parts of such
                                              to determine whether the proposed rule                    Trading and Markets, pursuant to delegated            statements.
                                              should be approved or disapproved.                        authority.40
                                                                                                        Eduardo A. Aleman,                                    A. Self-Regulatory Organization’s
                                              IV. Solicitation of Comments                              Assistant Secretary.
                                                                                                                                                              Statement of the Purpose of, and the
                                                Interested persons are invited to                                                                             Statutory Basis for, the Proposed Rule
                                                                                                        [FR Doc. 2018–21900 Filed 10–9–18; 8:45 am]
                                              submit written data, views, and                                                                                 Change
                                                                                                        BILLING CODE 8011–01–P
                                              arguments concerning the foregoing,                                                                             1. Purpose
                                              including whether the proposed rule
                                                                                                                                                                 The Exchange proposes to amend
                                              change is consistent with the Act.                        SECURITIES AND EXCHANGE                               Rule 7.14, Clearance and Settlement, to
                                              Comments may be submitted by any of                       COMMISSION                                            remove language that was inadvertently
                                              the following methods:
                                                                                                                                                              included when the rule was first
                                              Electronic Comments                                       [Release No. 34–84349; File No. SR–NYSE–              adopted and that is inconsistent with
                                                                                                        2018–42]                                              the Exchange’s Price List. The Exchange
                                                • Use the Commission’s internet
                                              comment form (http://www.sec.gov/                                                                               adopted Rule 7.14 as part of a proposed
                                                                                                        Self-Regulatory Organizations; New                    rule change to adopt rules for trading
                                              rules/sro.shtml); or                                      York Stock Exchange LLC; Notice of
                                                • Send an email to rule-comments@                                                                             UTP securities on Pillar, the Exchange’s
                                                                                                        Filing and Immediate Effectiveness of                 new trading technology platform.4 Rule
                                              sec.gov. Please include File Number SR–                   Proposed Rule Change To Amend Rule
                                              NASDAQ–2018–066 on the subject line.                                                                            7.14 was based on similar rules of its
                                                                                                        7.14, Clearance and Settlement                        affiliate, NYSE Arca, Inc. (‘‘NYSE
                                              Paper Comments                                                                                                  Arca’’) Rule 7.14–E and adopted by the
                                                                                                        October 3, 2018.
                                                 • Send paper comments in triplicate                       Pursuant to Section 19(b)(1) 1 of the              Exchange without any substantive
                                              to Secretary, Securities and Exchange                     Securities Exchange Act of 1934                       differences.5 Rule 7.14 applies only to
                                              Commission, 100 F Street NE,                              (‘‘Act’’) 2 and Rule 19b–4 thereunder,3               trading in UTP Securities. Paragraph (c)
                                              Washington, DC 20549–1090.                                notice is hereby given that on                        of Rule 7.14 states that ‘‘[e]ach clearing
                                              All submissions should refer to File                      September 20, 2018, New York Stock                    firm must be admitted to the Exchange
                                              Number SR–NASDAQ–2018–066. This                           Exchange LLC (‘‘NYSE’’ or ‘‘Exchange’’)               as a member organization by meeting
                                              file number should be included on the                     filed with the Securities and Exchange                the qualification requirements set forth
                                              subject line if email is used. To help the                                                                      in Rule 2.’’ Paragraph (c) of Rule 7.14
                                                                                                        Commission (‘‘Commission’’) the
                                              Commission process and review your                                                                              also includes language that exempts
                                                                                                        proposed rule change as described in
                                              comments more efficiently, please use                                                                           clearing firms from paying the regular
                                                                                                        Items I, II, and III below, which Items
                                              only one method. The Commission will                                                                            member organization fee 6 where that
                                                                                                        have been prepared by the self-
                                              post all comments on the Commission’s                                                                           clearing firm became a member
                                                                                                        regulatory organization. The
                                              internet website (http://www.sec.gov/                                                                           organization for the sole purpose of
                                                                                                        Commission is publishing this notice to
                                              rules/sro.shtml). Copies of the                                                                                 acting as a clearing firm on the
                                                                                                        solicit comments on the proposed rule
                                              submission, all subsequent                                                                                      Exchange. This language was
                                                                                                        change from interested persons.
                                              amendments, all written statements                                                                              inadvertently included when Rule 7.14
                                              with respect to the proposed rule                         I. Self-Regulatory Organization’s                     was adopted and is inconsistent with
                                              change that are filed with the                            Statement of the Terms of Substance of                the Exchange’s Price List, which does
                                              Commission, and all written                               the Proposed Rule Change                              not include language exempting clearing
                                              communications relating to the                                                                                  only member organizations from the
                                                                                                           The Exchange proposes to amend
                                              proposed rule change between the                                                                                fee’s application.7 The Exchange notes
                                                                                                        Rule 7.14, Clearance and Settlement, to
                                              Commission and any person, other than                                                                           that no such exemption exists in the
                                                                                                        remove language that is inconsistent
                                              those that may be withheld from the                                                                             Exchange’s rule governing the trading of
                                                                                                        with the Exchange’s Price List. The
                                              public in accordance with the                                                                                   NYSE-listed securities. Therefore, the
                                                                                                        proposed rule change is available on the
                                              provisions of 5 U.S.C. 552, will be                                                                             Exchange proposes to remove the
                                                                                                        Exchange’s website at www.nyse.com, at
                                              available for website viewing and                                                                               following phrase from the first sentence
                                                                                                        the principal office of the Exchange, and
                                              printing in the Commission’s Public                                                                             of Exchange Rule 7.14(c): ‘‘provided,
                                                                                                        at the Commission’s Public Reference                  however, if the clearing firm has become
                                              Reference Room, 100 F Street NE,                          Room.
                                              Washington, DC 20549, on official                                                                               a member organization for the sole
                                              business days between the hours of 10                     II. Self-Regulatory Organization’s                    purpose of acting as a clearing firm on
                                              a.m. and 3 p.m. Copies of the filing also                 Statement of the Purpose of, and                      the Exchange, such clearing firm need
                                              will be available for inspection and                      Statutory Basis for, the Proposed Rule
                                              copying at the principal office of the                    Change                                                  4 See Securities Exchange Act Release Nos. 76803;

                                                                                                                                                              (December 30, 2015), 81 FR 536 (January 6, 2016)
                                              Exchange. All comments received will                        In its filing with the Commission, the              (SR–NYSE–2015–67); and 81225 (July 27, 2017), 82
                                              be posted without change. Persons                         self-regulatory organization included                 FR 36033 (August 2, 2017) (SR–NYSE–2017–35).
                                                                                                                                                                5 Id.
                                              submitting comments are cautioned that                    statements concerning the purpose of,                   6 The ‘‘regular membership organization fee’’
                                              we do not redact or edit personal                         and basis for, the proposed rule change               referred to in Exchange Rule 7.14(c) is referred to
                                              identifying information from comment                      and discussed any comments it received                as a Trading Licenses fee in the Exchange’s Price
                                              submissions. You should submit only                       on the proposed rule change. The text                 List.
                                                                                                                                                                7 In accordance with the Price list, the Exchange
                                              information that you wish to make                         of those statements may be examined at
amozie on DSK3GDR082PROD with NOTICES1




                                                                                                                                                              charges all member organizations a Trading License
                                              available publicly. All submissions                       the places specified in Item IV below.                fee on an annual basis. All member organizations
                                              should refer to File Number SR–                           The Exchange has prepared summaries,                  with 10 or more trading licenses are charged a fee
                                              NASDAQ–2018–066 and should be                             set forth in sections A, B, and C below,              or $50,000 for the first trading license held by the
                                              submitted on or before October 31,                                                                              member organization unless they qualify for a
                                                                                                                                                              reduced rate. See the Exchange’s Price List on pages
                                              2018.                                                       1 15 U.S.C. 78s(b)(1).                              33–34 available at https://www.nyse.com/
                                                                                                          2 15 U.S.C. 78a.                                    publicdocs/nyse/markets/nyse/NYSE_Price_List.pdf
                                                40 17   CFR 200.30–3(a)(12).                              3 17 CFR 240.19b–4.                                 (dated September 4, 2018).



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Document Created: 2018-10-10 17:36:56
Document Modified: 2018-10-10 17:36:56
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 51015 

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