Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to Participant Fee, 81562-81564 [2015-32820]
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Federal Register / Vol. 80, No. 250 / Wednesday, December 30, 2015 / Notices
www.prc.gov, Docket Nos. MC2016–49,
CP2016–64.
POSTAL SERVICE
Product Change—Priority Mail
Negotiated Service Agreement
AGENCY:
ACTION:
Stanley F. Mires,
Attorney, Federal Compliance.
Postal ServiceTM.
[FR Doc. 2015–32842 Filed 12–29–15; 8:45 am]
Notice.
BILLING CODE 7710–12–P
The Postal Service gives
notice of filing a request with the Postal
Regulatory Commission to add a
domestic shipping services contract to
the list of Negotiated Service
Agreements in the Mail Classification
Schedule’s Competitive Products List.
SUMMARY:
DATES:
Effective date: December 30,
2015.
FOR FURTHER INFORMATION CONTACT:
Valerie J. Pelton, 202–268–3049.
The
United States Postal Service® hereby
gives notice that, pursuant to 39 U.S.C.
3642 and 3632(b)(3), on December 22,
2015, it filed with the Postal Regulatory
Commission a Request of the United
States Postal Service to Add Priority
Mail Contract 171 to Competitive
Product List. Documents are available at
www.prc.gov, Docket Nos. MC2016–48,
CP2016–63.
SUPPLEMENTARY INFORMATION:
Stanley F. Mires,
Attorney, Federal Compliance.
[FR Doc. 2015–32843 Filed 12–29–15; 8:45 am]
BILLING CODE 7710–12–P
POSTAL SERVICE
ACTION:
Postal ServiceTM.
Notice.
The Postal Service gives
notice of filing a request with the Postal
Regulatory Commission to add a
domestic shipping services contract to
the list of Negotiated Service
Agreements in the Mail Classification
Schedule’s Competitive Products List.
SUMMARY:
DATES:
Effective date: December 30,
2015.
FOR FURTHER INFORMATION CONTACT:
Valerie J. Pelton, 202–268–3049.
The
United States Postal Service® hereby
gives notice that, pursuant to 39 U.S.C.
3642 and 3632(b)(3), on December 22,
2015, it filed with the Postal Regulatory
Commission a Request of the United
States Postal Service to Add Priority
Mail Contract 172 to Competitive
Product List. Documents are available at
mstockstill on DSK4VPTVN1PROD with NOTICES
SUPPLEMENTARY INFORMATION:
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[Release No. 34–76760; File No. SR–
NASDAQ–2015–154]
Self-Regulatory Organizations; The
NASDAQ Stock Market LLC; Notice of
Filing and Immediate Effectiveness of
Proposed Rule Change Relating to
Participant Fee
December 23, 2015.
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934
(‘‘Act’’),1 and Rule 19b–4 thereunder,2
notice is hereby given that on December
17, 2015, The NASDAQ Stock Market
LLC (‘‘Nasdaq’’ or ‘‘Exchange’’) filed
with the Securities and Exchange
Commission (‘‘SEC’’ or ‘‘Commission’’)
the proposed rule change as described
in Items I, II, and III below, which Items
have been prepared by the Exchange.
The Commission is publishing this
notice to solicit comments on the
proposed rule change from interested
persons.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
Product Change—Priority Mail
Negotiated Service Agreement
AGENCY:
SECURITIES AND EXCHANGE
COMMISSION
The Exchange proposes [sic] amend
the Exchange’s transaction fees at
Chapter XV, entitled ‘‘Options Pricing,’’
Section 10, entitled ‘‘Participant Fee—
Options.’’
The Exchange purposes [sic] an
increase to its Participant Fee to recoup
costs incurred by the Exchange. The
Exchange’s Participant Fee is
competitive with those of other options
exchanges.3 While the amendment
proposed herein is effective upon filing,
the Exchange has designated the
amendment [sic] become operative on
January 4, 2016.
The text of the proposed rule change
is available on the Exchange’s Web site
at https://nasdaq.cchwallstreet.com, at
the principal office of the Exchange, and
at the Commission’s Public Reference
Room.
1 15
U.S.C. 78s(b)(1).
CFR 240.19b–4.
3 See note 14 below.
2 17
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II. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
In its filing with the Commission, the
Exchange included statements
concerning the purpose of and basis for
the proposed rule change and discussed
any comments it received on the
proposed rule change. The text of these
statements may be examined at the
places specified in Item IV below. The
Exchange has prepared summaries, set
forth in sections A, B, and C below, of
the most significant aspects of such
statements.
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
1. Purpose
The Exchange proposes to increase
the NOM Participant Fee, so the
Exchange can allocate its costs to
various options market participants.
Today, the Exchange assesses all NOM
Participants a $500 per month
Participant Fee. This fee was initially
assessed in 2012.4 The Exchange
proposes to increase this Participant Fee
from $500 to $1,000 per month for all
NOM Participants. The proposed
Participant Fee is in addition to the
trading rights fee of $1,000 per month to
be an Exchange member.5
The Exchange believes this
Participant Fee is competitive with fees
at other options exchanges.6
2. Statutory Basis
The Exchange believes that its
proposal is consistent with Section 6(b)
of the Act 7 in general, and furthers the
objectives of Sections 6(b)(4) and 6(b)(5)
of the Act 8 in particular, in that it
provides for the equitable allocation of
reasonable dues, fees and other charges
among members and issuers and other
persons using any facility or system
which the Exchange operates or
controls, and is not designed to permit
unfair discrimination between
customers, issuers, brokers, or dealers.
The Commission and the courts have
repeatedly expressed their preference
for competition over regulatory
intervention in determining prices,
products, and services in the securities
markets. In Regulation NMS, for
example, the Commission indicated that
4 See Securities and Exchange Act Release No.
68502 (December 20, 2012), 77 FR 76572 (December
28, 2012) (SR–NASDAQ–2012–139).
5 See Exchange Rule 7001.
6 See note 14 below.
7 15 U.S.C. 78f(b).
8 15 U.S.C. 78f(b)(4) and (5).
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Federal Register / Vol. 80, No. 250 / Wednesday, December 30, 2015 / Notices
mstockstill on DSK4VPTVN1PROD with NOTICES
market forces should generally
determine the price of non-core market
data because national market system
regulation ‘‘has been remarkably
successful in promoting market
competition in its broader forms that are
most important to investors and listed
companies.’’ 9 Likewise, in NetCoalition
v. NYSE Arca, Inc.10 (‘‘NetCoalition’’)
the D.C. Circuit upheld the
Commission’s use of a market-based
approach in evaluating the fairness of
market data fees against a challenge
claiming that Congress mandated a costbased approach.11 As the court
emphasized, the Commission ‘‘intended
in Regulation NMS that ‘market forces,
rather than regulatory requirements’
play a role in determining the market
data . . . to be made available to
investors and at what cost.’’ 12
Further, ‘‘[n]o one disputes that
competition for order flow is ‘fierce.’
. . . As the SEC explained, ‘[i]n the U.S.
national market system, buyers and
sellers of securities, and the brokerdealers that act as their order-routing
agents, have a wide range of choices of
where to route orders for execution’;
[and] ‘no exchange can afford to take its
market share percentages for granted’
because ‘no exchange possesses a
monopoly, regulatory or otherwise, in
the execution of order flow from broker
dealers’. . . .’’ 13 Although the court
and the SEC were discussing the cash
equities markets, the Exchange believes
that these views apply with equal force
to the options markets.
The Exchange’s proposal to increase
the NOM Participant Fee from $500 to
$1,000 per month is reasonable because
the Exchange is seeking to recoup costs
related to membership administration.
The proposed fee is competitive with
fees at other options exchanges.14
9 Securities Exchange Act Release No. 51808 at
37499 (June 9, 2005) (‘‘Regulation NMS Adopting
Release’’).
10 NetCoalition v. NYSE Arca, Inc., 615 F.3d 525
(D.C. Cir. 2010).
11 See NetCoalition, at 534.
12 Id. at 537.
13 Id. at 539 (quoting ArcaBook Order, 73 FR at
74782–74783).
14 See The Chicago Board Options Exchange,
Incorporated’s Fees Schedule. Per month a Market
Maker Trading Permit is $5,500, an SPX Tier
Appointment is $3,000, a VIX Tier Appointment is
$2,000, and an Electronic Access Permit is $1,600.
See also the International Securities Exchange
LLC’s Schedule of Fees. Per month an Electronic
Access Member is assessed $500.00 for membership
and a market maker is assessed from $2,000 to
$4,000 per membership depending on the type of
market maker. See also C2 Options Exchange,
Incorporated’s Fees Schedule. Per month, a marketmaker is assessed a $5,000 permit fee, an Electronic
Access Permit is assessed a $1,000 permit fee. See
also NYSE Arca, Inc.’s Fee Schedule. Per month, a
Clearing Firm is assessed a $1,000 per month fee
for the first Options Trading Permit (‘‘OTP’’) and
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The Exchange’s proposal to increase
the NOM Participant Fee from $500 to
$1,000 per month is equitable and not
unfairly discriminatory because the
Participant Fee will be assessed
uniformly to each NOM Participant.
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. In terms of
inter-market competition, the Exchange
notes that it operates in a highly
competitive market in which market
participants can readily favor competing
venues if they deem fee levels at a
particular venue to be excessive, or
rebate opportunities available at other
venues to be more favorable. In such an
environment, the Exchange must
continually adjust its fees to remain
competitive with other exchanges and
with alternative trading systems that
have been exempted from compliance
with the statutory standards applicable
to exchanges. Because competitors are
free to modify their own fees in
response and because market
participants may readily adjust their
order routing practices, the Exchange
believes that the degree to which fee
changes in this market may impose any
burden on competition is extremely
limited.
In terms of intra-market competition,
the Exchange’s proposal to increase the
NOM Participant Fee from $500 to
$1,000 per month does not impose an
undue burden on competition because
the Exchange would uniformly assess
the same Participant Fee to each NOM
Participant. If the proposed amendment
is unattractive to market participants, it
is likely that the Exchange will lose
Participants. Accordingly, the Exchange
does not believe that the proposed
changes will impair the ability of
members or competing order execution
venues to maintain their competitive
standing in the financial markets.
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.
$250 thereafter, and a market maker is assessed a
permit based on the maximum number of OTPs
held by an OTP Firm or OTP Holder during a
calendar month ranging from $1,000 to $6,000 a
month.
PO 00000
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Fmt 4703
Sfmt 4703
81563
III. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
The foregoing rule change has become
effective pursuant to Section
19(b)(3)(A)(ii) of the Act.15
At any time within 60 days of the
filing of the proposed rule change, the
Commission summarily may
temporarily suspend such rule change if
it appears to the Commission that such
action is: (i) Necessary or appropriate in
the public interest; (ii) for the protection
of investors; or (iii) otherwise in
furtherance of the purposes of the Act.
If the Commission takes such action, the
Commission shall institute proceedings
to determine whether the proposed rule
should be approved or disapproved.
IV. Solicitation of Comments
Interested persons are invited to
submit written data, views, and
arguments concerning the foregoing,
including whether the proposed rule
change is consistent with the Act.
Comments may be submitted by any of
the following methods:
Electronic Comments
• Use the Commission’s Internet
comment form (https://www.sec.gov/
rules/sro.shtml); or
• Send an email to rule-comments@
sec.gov. Please include File Number SR–
NASDAQ–2015–154 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–2015–154. This
file number should be included on the
subject line if email is used. To help the
Commission process and review your
comments more efficiently, please use
only one method. The Commission will
post all comments on the Commission’s
Internet Web site (https://www.sec.gov/
rules/sro.shtml). Copies of the
submission, all subsequent
amendments, all written statements
with respect to the proposed rule
change that are filed with the
Commission, and all written
communications relating to the
proposed rule change between the
Commission and any person, other than
those that may be withheld from the
public in accordance with the
provisions of 5 U.S.C. 552, will be
available for Web site viewing and
printing in the Commission’s Public
Reference Room, 100 F Street NE.,
15 15
E:\FR\FM\30DEN1.SGM
U.S.C. 78s(b)(3)(A)(ii).
30DEN1
81564
Federal Register / Vol. 80, No. 250 / Wednesday, December 30, 2015 / Notices
Washington, DC 20549 on official
business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of such
filing also will be available for
inspection and copying at the principal
office of the Exchange. All comments
received will be posted without change;
the Commission does not edit personal
identifying information from
submissions. You should submit only
information that you wish to make
available publicly. All submissions
should refer to File Number SR–
NASDAQ–2015–154, and should be
submitted on or before January 20, 2016.
change is available on the Exchange’s
Web site at www.nyse.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
BILLING CODE 8011–01–P
In its filing with the Commission, the
self-regulatory organization 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 those 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 parts of such
statements.
SECURITIES AND EXCHANGE
COMMISSION
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
[Release No. 34–76761; File No. SR–
NYSEArca–2015–107]
1. Purpose
Self-Regulatory Organizations; NYSE
Arca, Inc.; Notice of Filing of Proposed
Rule Change To List and Trade Shares
of the REX Gold Hedged S&P 500 ETF
and the REX Gold Hedged FTSE
Emerging Markets ETF Under NYSE
Arca Equities Rule 8.600
The Exchange proposes to list and
trade shares (the ‘‘Shares’’) of the
following under NYSE Arca Equities
Rule 8.600, which governs the listing
and trading of Managed Fund Shares 4:
The REX Gold Hedged S&P 500 ETF and
the REX Gold Hedged FTSE Emerging
Markets ETF (each a ‘‘Fund’’ and,
collectively, the ‘‘Funds’’).5
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.16
Brent J. Fields,
Secretary.
[FR Doc. 2015–32820 Filed 12–29–15; 8:45 am]
December 23, 2015.
Pursuant to Section
of the
Securities Exchange Act of 1934
(‘‘Act’’) 2 and Rule 19b–4 thereunder,3
notice is hereby given that, on December
10, 2015, NYSE Arca, Inc. (‘‘Exchange’’
or ‘‘NYSE Arca’’) filed with the
Securities and Exchange Commission
(‘‘Commission’’) the proposed rule
change as described in Items I, II, and
III below, which Items have been
prepared by the self-regulatory
organization. The Commission is
publishing this notice to solicit
comments on the proposed rule change
from interested persons.
mstockstill on DSK4VPTVN1PROD with NOTICES
19(b)(1) 1
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange proposes to list and
trade shares of the following under
NYSE Arca Equities Rule 8.600
(‘‘Managed Fund Shares’’): The REX
Gold Hedged S&P 500 ETF and the REX
Gold Hedged FTSE Emerging Markets
ETF. The text of the proposed rule
16 17
CFR 200.30–3(a)(12).
U.S.C. 78s(b)(1).
2 15 U.S.C. 78a.
3 17 CFR 240.19b–4.
1 15
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Jkt 238001
4 A Managed Fund Share is a security that
represents an interest in an investment company
registered under the Investment Company Act of
1940 (15 U.S.C. 80a–1) (the ‘‘1940 Act’’) organized
as an open-end investment company or similar
entity that invests in a portfolio of securities
selected by its investment adviser consistent with
its investment objectives and policies. In contrast,
an open-end investment company that issues
Investment Company Units, listed and traded on
the Exchange under NYSE Arca Equities Rule
5.2(j)(3), seeks to provide investment results that
correspond generally to the price and yield
performance of a specific foreign or domestic stock
index, fixed income securities index or combination
thereof.
5 The Commission has approved listing and
trading on the Exchange of a number of actively
managed funds under Rule 8.600. See, e.g.,
Securities Exchange Act Release Nos. 63076
(October 12, 2010), 75 FR 63874 (October 18, 2010)
(SR–NYSEArca–2010–79) (order approving
Exchange listing and trading of Cambria Global
Tactical ETF); 70055 (July 29, 2013) (SR–
NYSEArca–2013–52) (order approving proposed
rule change relating to listing and trading of shares
of the First Trust Morningstar Managed Futures
Strategy Fund under NYSE Arca Equities Rule
8.600); and 71456 (January 31, 2014), 79 FR 7258
(February 6, 2014) (SR–NYSEArca–2013–116)
(order approving proposed rule change relating to
listing and trading of shares of the AdvisorShares
International Gold ETF, AdvisorShares Gartman
Gold/Yen ETF, AdvisorShares Gartman Gold/
British Pound ETF, and AdvisorShares Gartman
Gold/Euro ETF under NYSE Arca Equities Rule
8.600).
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The Shares will be offered by
Exchange Traded Concepts Trust (the
‘‘Trust’’), a Delaware statutory trust.
Exchange Traded Concepts, LLC will
serve as the investment adviser to the
Funds (‘‘Adviser’’). Vident Investment
Advisory, LLC (the ‘‘Sub-Adviser’’) will
serve as sub-adviser to the Funds.6
SEI Investments Distribution Co.
(‘‘SIDCO’’), (the ‘‘Distributor’’) will be
the principal underwriter and
distributor of the Funds’ Shares. SEI
Investments Global Funds Services (the
‘‘Administrator’’) will serve as the
administrator, custodian, transfer agent
and fund accounting agent for the
Funds.7
Commentary .06 to Rule 8.600
provides that, if the investment adviser
to the investment company issuing
Managed Fund Shares is affiliated with
a broker-dealer, such investment adviser
shall erect a ‘‘fire wall’’ between the
investment adviser and the brokerdealer with respect to access to
information concerning the composition
and/or changes to such investment
company portfolio. In addition,
Commentary .06 further requires that
personnel who make decisions on the
open-end fund’s portfolio composition
must be subject to procedures designed
to prevent the use and dissemination of
material nonpublic information
regarding the open-end fund’s
portfolio.8 Commentary .06 to Rule
6 The Trust is registered under the 1940 Act. On
October 9, 2015, the Trust filed with the
Commission an amendment to its registration
statement on Form N–1A under the Securities Act
of 1933 (15 U.S.C. 77a) (‘‘Securities Act’’), and
under the 1940 Act relating to the Funds (File Nos.
333–156529 and 811–22263) (‘‘Registration
Statement’’). The description of the operation of the
Trust and the Funds herein is based, in part, on the
Registration Statement. In addition, the
Commission has issued an order granting certain
exemptive relief to the Trust under the 1940 Act.
See Investment Company Act Release No. 30445,
April 2, 2013 (File No. 812–13969) (‘‘Exemptive
Order’’).
7 The Funds are subject to regulation under the
Commodity Exchange Act (‘‘CEA’’) and Commodity
Futures Trading Commission (‘‘CFTC’’) rules as
commodity pools. The Adviser is registered as a
commodity pool operator (‘‘CPO’’), and the Funds
will be operated in accordance with CFTC rules.
8 An investment adviser to an open-end fund is
required to be registered under the Investment
Advisers Act of 1940 (the ‘‘Advisers Act’’). As a
result, the Adviser and Sub-Adviser and their
related personnel will be subject to the provisions
of Rule 204A–1 under the Advisers Act relating to
codes of ethics. This Rule requires investment
advisers to adopt a code of ethics that reflects the
fiduciary nature of the relationship to clients as
well as compliance with other applicable securities
laws. Accordingly, procedures designed to prevent
the communication and misuse of non-public
information by an investment adviser must be
consistent with Rule 204A–1 under the Advisers
Act. In addition, Rule 206(4)-7 under the Advisers
Act makes it unlawful for an investment adviser to
provide investment advice to clients unless such
investment adviser has (i) adopted and
E:\FR\FM\30DEN1.SGM
30DEN1
]]>Agencies
[Federal Register Volume 80, Number 250 (Wednesday, December 30, 2015)]
[Notices]
[Pages 81562-81564]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-32820]
=======================================================================
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-76760; File No. SR-NASDAQ-2015-154]
Self-Regulatory Organizations; The NASDAQ Stock Market LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change
Relating to Participant Fee
December 23, 2015.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on December 17, 2015, The NASDAQ Stock Market LLC (``Nasdaq'' or
``Exchange'') filed with the Securities and Exchange Commission
(``SEC'' or ``Commission'') the proposed rule change as described in
Items I, II, and III below, which Items have been prepared by the
Exchange. The Commission is publishing this notice to solicit comments
on the proposed rule change from interested persons.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------
I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange proposes [sic] amend the Exchange's transaction fees
at Chapter XV, entitled ``Options Pricing,'' Section 10, entitled
``Participant Fee--Options.''
The Exchange purposes [sic] an increase to its Participant Fee to
recoup costs incurred by the Exchange. The Exchange's Participant Fee
is competitive with those of other options exchanges.\3\ While the
amendment proposed herein is effective upon filing, the Exchange has
designated the amendment [sic] become operative on January 4, 2016.
---------------------------------------------------------------------------
\3\ See note 14 below.
---------------------------------------------------------------------------
The text of the proposed rule change is available on the Exchange's
Web site at https://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.
A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
1. Purpose
The Exchange proposes to increase the NOM Participant Fee, so the
Exchange can allocate its costs to various options market participants.
Today, the Exchange assesses all NOM Participants a $500 per month
Participant Fee. This fee was initially assessed in 2012.\4\ The
Exchange proposes to increase this Participant Fee from $500 to $1,000
per month for all NOM Participants. The proposed Participant Fee is in
addition to the trading rights fee of $1,000 per month to be an
Exchange member.\5\
---------------------------------------------------------------------------
\4\ See Securities and Exchange Act Release No. 68502 (December
20, 2012), 77 FR 76572 (December 28, 2012) (SR-NASDAQ-2012-139).
\5\ See Exchange Rule 7001.
---------------------------------------------------------------------------
The Exchange believes this Participant Fee is competitive with fees
at other options exchanges.\6\
---------------------------------------------------------------------------
\6\ See note 14 below.
---------------------------------------------------------------------------
2. Statutory Basis
The Exchange believes that its proposal is consistent with Section
6(b) of the Act \7\ in general, and furthers the objectives of Sections
6(b)(4) and 6(b)(5) of the Act \8\ in particular, in that it provides
for the equitable allocation of reasonable dues, fees and other charges
among members and issuers and other persons using any facility or
system which the Exchange operates or controls, and is not designed to
permit unfair discrimination between customers, issuers, brokers, or
dealers.
---------------------------------------------------------------------------
\7\ 15 U.S.C. 78f(b).
\8\ 15 U.S.C. 78f(b)(4) and (5).
---------------------------------------------------------------------------
The Commission and the courts have repeatedly expressed their
preference for competition over regulatory intervention in determining
prices, products, and services in the securities markets. In Regulation
NMS, for example, the Commission indicated that
[[Page 81563]]
market forces should generally determine the price of non-core market
data because national market system regulation ``has been remarkably
successful in promoting market competition in its broader forms that
are most important to investors and listed companies.'' \9\ Likewise,
in NetCoalition v. NYSE Arca, Inc.\10\ (``NetCoalition'') the D.C.
Circuit upheld the Commission's use of a market-based approach in
evaluating the fairness of market data fees against a challenge
claiming that Congress mandated a cost-based approach.\11\ As the court
emphasized, the Commission ``intended in Regulation NMS that `market
forces, rather than regulatory requirements' play a role in determining
the market data . . . to be made available to investors and at what
cost.'' \12\
---------------------------------------------------------------------------
\9\ Securities Exchange Act Release No. 51808 at 37499 (June 9,
2005) (``Regulation NMS Adopting Release'').
\10\ NetCoalition v. NYSE Arca, Inc., 615 F.3d 525 (D.C. Cir.
2010).
\11\ See NetCoalition, at 534.
\12\ Id. at 537.
---------------------------------------------------------------------------
Further, ``[n]o one disputes that competition for order flow is
`fierce.' . . . As the SEC explained, `[i]n the U.S. national market
system, buyers and sellers of securities, and the broker-dealers that
act as their order-routing agents, have a wide range of choices of
where to route orders for execution'; [and] `no exchange can afford to
take its market share percentages for granted' because `no exchange
possesses a monopoly, regulatory or otherwise, in the execution of
order flow from broker dealers'. . . .'' \13\ Although the court and
the SEC were discussing the cash equities markets, the Exchange
believes that these views apply with equal force to the options
markets.
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\13\ Id. at 539 (quoting ArcaBook Order, 73 FR at 74782-74783).
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The Exchange's proposal to increase the NOM Participant Fee from
$500 to $1,000 per month is reasonable because the Exchange is seeking
to recoup costs related to membership administration. The proposed fee
is competitive with fees at other options exchanges.\14\
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\14\ See The Chicago Board Options Exchange, Incorporated's Fees
Schedule. Per month a Market Maker Trading Permit is $5,500, an SPX
Tier Appointment is $3,000, a VIX Tier Appointment is $2,000, and an
Electronic Access Permit is $1,600. See also the International
Securities Exchange LLC's Schedule of Fees. Per month an Electronic
Access Member is assessed $500.00 for membership and a market maker
is assessed from $2,000 to $4,000 per membership depending on the
type of market maker. See also C2 Options Exchange, Incorporated's
Fees Schedule. Per month, a market-maker is assessed a $5,000 permit
fee, an Electronic Access Permit is assessed a $1,000 permit fee.
See also NYSE Arca, Inc.'s Fee Schedule. Per month, a Clearing Firm
is assessed a $1,000 per month fee for the first Options Trading
Permit (``OTP'') and $250 thereafter, and a market maker is assessed
a permit based on the maximum number of OTPs held by an OTP Firm or
OTP Holder during a calendar month ranging from $1,000 to $6,000 a
month.
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The Exchange's proposal to increase the NOM Participant Fee from
$500 to $1,000 per month is equitable and not unfairly discriminatory
because the Participant Fee will be assessed uniformly to each NOM
Participant.
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. In terms of inter-market
competition, the Exchange notes that it operates in a highly
competitive market in which market participants can readily favor
competing venues if they deem fee levels at a particular venue to be
excessive, or rebate opportunities available at other venues to be more
favorable. In such an environment, the Exchange must continually adjust
its fees to remain competitive with other exchanges and with
alternative trading systems that have been exempted from compliance
with the statutory standards applicable to exchanges. Because
competitors are free to modify their own fees in response and because
market participants may readily adjust their order routing practices,
the Exchange believes that the degree to which fee changes in this
market may impose any burden on competition is extremely limited.
In terms of intra-market competition, the Exchange's proposal to
increase the NOM Participant Fee from $500 to $1,000 per month does not
impose an undue burden on competition because the Exchange would
uniformly assess the same Participant Fee to each NOM Participant. If
the proposed amendment is unattractive to market participants, it is
likely that the Exchange will lose Participants. Accordingly, the
Exchange does not believe that the proposed changes will impair the
ability of members or competing order execution venues to maintain
their competitive standing in the financial markets.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
No written comments were either solicited or received.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
The foregoing rule change has become effective pursuant to Section
19(b)(3)(A)(ii) of the Act.\15\
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\15\ 15 U.S.C. 78s(b)(3)(A)(ii).
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At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is: (i)
Necessary or appropriate in the public interest; (ii) for the
protection of investors; or (iii) otherwise in furtherance of the
purposes of the Act. If the Commission takes such action, the
Commission shall institute proceedings to determine whether the
proposed rule should be approved or disapproved.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
Use the Commission's Internet comment form (https://www.sec.gov/rules/sro.shtml); or
Send an email to rule-comments@sec.gov. Please include
File Number SR-NASDAQ-2015-154 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-2015-154. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (https://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
[[Page 81564]]
Washington, DC 20549 on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of such filing also will be available
for inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-NASDAQ-2015-154, and should
be submitted on or before January 20, 2016.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\16\
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\16\ 17 CFR 200.30-3(a)(12).
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Brent J. Fields,
Secretary.
[FR Doc. 2015-32820 Filed 12-29-15; 8:45 am]
BILLING CODE 8011-01-P
