On June 17, 2016, the SEC issued a final interpretation on automated quotations under Regulation NMS. The final interpretation provides that, solely in the context of determining whether a trading center maintains an "automated quotation" for purposes of Rule 611 of Regulation NMS, the SEC does not interpret the term "immediate" used in Rule 600(b)(3) by itself to prohibit a trading center from implementing an intentional access delay that is de minimis (meaning so short as to not frustrate the purposes of Rule 611 by impairing fair and efficient access to an exchange’s quotations). Therefore, the final interpretation provides that the term "immediate" precludes any coding of automated systems or other type of intentional device that would delay the action taken with respect to a quotation unless the delay is de minimis.

Also on June 17, 2016, the SEC staff (Staff) issued guidance on the length of an intentional access delay that the Staff believes is likely to meet the de minimis standard in the final interpretation. The guidance states the Staff's belief that delays of less than a millisecond are at a de minimis level that would not impair fair and efficient access to a quotation, consistent with the goals of Rule 611. The guidance also states that while the Staff believes that intentional access delays that are less than one millisecond are de minimis, that does not necessarily mean that all intentional delays that are one millisecond or more are not de minimis.

The guidance does not eliminate the requirement for any proposed intentional access delay to be filed with the SEC as a proposed rule change. In addition, the guidance does not address whether any particular access delay would be approved by the SEC as consistent with the final interpretation, or as being not unfairly discriminatory, not an inappropriate or unnecessary burden on competition, and otherwise consistent with the Exchange Act.

The final interpretation is effective as of June 23, 2016.