Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Nasdaq Rule 7039, 22344-22347 [2016-08643]

Download as PDF 22344 Federal Register / Vol. 81, No. 73 / Friday, April 15, 2016 / Notices 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 rule-comments@ sec.gov. Please include File Number SR– NYSEArca–2016–46 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. asabaliauskas on DSK3SPTVN1PROD with NOTICES All submissions should refer to File Number SR–NYSEArca-2016–46. 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 (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 Web site viewing and printing in the Commission’s Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; 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– NYSEArca–2016–46 and should be submitted on or before May 6, 2016. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.29 Robert W. Errett, Deputy Secretary. [FR Doc. 2016–08641 Filed 4–14–16; 8:45 am] SECURITIES AND EXCHANGE COMMISSION [Release No. 34–77578; File No. SR– NASDAQ–2016–048] Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Nasdaq Rule 7039 April 11, 2016. 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 March 31, 2016, The NASDAQ Stock Market LLC (‘‘Nasdaq’’ or the ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘SEC’’ or ‘‘Commission’’) a 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 Nasdaq is proposing changes to amend Nasdaq Rule 7039 (NASDAQ Last Sale and NASDAQ Last Sale Plus Data Feeds). The text of the proposed rule change is available at nasdaq.cchwallstreet.com, at Nasdaq’s principal office, 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, Nasdaq 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. A. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose The Exchange proposes to amend Nasdaq Rule 7039 (NASDAQ Last Sale and NASDAQ Last Sale Plus Data BILLING CODE 8011–01–P 1 15 29 17 CFR 200.30–3(a)(12). VerDate Sep<11>2014 17:27 Apr 14, 2016 2 17 Jkt 238001 PO 00000 U.S.C. 78s(b)(1). CFR 240.19b–4. Frm 00137 Fmt 4703 Sfmt 4703 Feeds). Nasdaq offers two proprietary data feeds containing real-time last sale information for trades executed on Nasdaq or reported to the Nasdaq/ FINRA Trade Reporting Facility. These include the ‘‘NASDAQ Last Sale for NASDAQ,’’ 3 which contains all transaction reports for Nasdaq-listed stocks and ‘‘NASDAQ Last Sale for NYSE/NYSE MKT,’’ 4 which contains all such transaction reports for NYSE- and NYSE MKT-listed stocks (collectively, the ‘‘Nasdaq Last Sale Data Feeds’’). Specifically, Nasdaq proposes to amend Nasdaq Rule 7039(b) to reduce the monthly fee from $50,000 to $41,500 for each distributor of Nasdaq Last Sale Data Feeds. The new lower fee is designed to incentivize distributors to subscribe to the Nasdaq Last Sale Data Feeds. This fee is exclusive of the $1,500 monthly fee that all distributors of a Nasdaq Last Sale Data Feed must also pay and that is set forth under Nasdaq Rule 7039(c). 2. Statutory Basis The Exchange believes that its proposal is consistent with Section 6(b) of the Act,5 in general, and furthers the objectives of Sections 6(b)(4) and 6(b)(5) of the Act,6 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 its facilities 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, while adopting a series of steps to improve the current market model, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system ‘‘has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.’’ 7 Likewise, in NetCoalition v. Securities and Exchange Commission 8 (‘‘NetCoalition’’) the D.C. Circuit upheld the Commission’s use of a market-based 3 See Nasdaq Rule 7039(a)(1). Nasdaq Rule 7039(a)(2). 5 15 U.S.C. 78f(b). 6 15 U.S.C. 78f(b)(4) and (5). 7 Securities Exchange Act Release No. 34–51808 (June 9, 2005) (‘‘Regulation NMS Adopting Release’’). 8 NetCoalition v. SEC, 615 F.3d 525 (D.C. Cir. 2010). 4 See E:\FR\FM\15APN1.SGM 15APN1 Federal Register / Vol. 81, No. 73 / Friday, April 15, 2016 / Notices asabaliauskas on DSK3SPTVN1PROD with NOTICES approach in evaluating the fairness of market data fees against a challenge claiming that Congress mandated a costbased approach.9 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.’’ 10 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’. . . .’’ 11 The Exchange believes that amending Nasdaq Rule 7039(b) to reduce the monthly maximum fee from $50,000 to $41,500 for each distributor of Nasdaq Last Sale Data Feeds (exclusive of the $1,500 monthly fee applicable to all distributors of a Nasdaq Last Sale Data Feed under Nasdaq Rule 7039(c)) is reasonable because Nasdaq believes it will incentivize more distributors to subscribe to the Nasdaq Last Sale Data Feeds. The Exchange also believes that the proposed rule fee change is an equitable allocation and is not unfairly discriminatory because the Exchange will apply the new lower fee uniformly across all distributors of Nasdaq Last Sale Data Feeds B. Self-Regulatory Organization’s Statement on Burden on Competition The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. Notwithstanding its determination that the Commission may rely upon competition to establish fair and equitably allocated fees for market data, the NetCoalition court found that the Commission had not, in that case, compiled a record that adequately supported its conclusion that the market for the data at issue in the case was competitive. Nasdaq believes that a record may readily be established to demonstrate the competitive nature of the market in question. 9 Id. at 534–535. at 537. 11 Id. at 539 (quoting ArcaBook Order, 73 FR at 74782–74783). 10 Id. VerDate Sep<11>2014 17:27 Apr 14, 2016 Jkt 238001 There is intense competition between trading platforms that provide transaction execution and routing services and proprietary data products. Transaction execution and proprietary data products are complementary in that market data is both an input and a byproduct of the execution service. In fact, market data and trade execution are a paradigmatic example of joint products with joint costs. Data products are valuable to many end Subscribers only insofar as they provide information that end Subscribers expect will assist them or their customers in making trading decisions. The costs of producing market data include not only the costs of the data distribution infrastructure, but also the costs of designing, maintaining, and operating the exchange’s transaction execution platform and the cost of regulating the exchange to ensure its fair operation and maintain investor confidence. The total return that a trading platform earns reflects the revenues it receives from both products and the joint costs it incurs. Moreover, an exchange’s customers view the costs of transaction executions and of data as a unified cost of doing business with the exchange. A brokerdealer (‘‘BD’’) will direct orders to a particular exchange only if the expected revenues from executing trades on the exchange exceed net transaction execution costs and the cost of data that the BD chooses to buy to support its trading decisions (or those of its customers). The choice of data products is, in turn, a product of the value of the products in making profitable trading decisions. If the cost of the product exceeds its expected value, the BD will choose not to buy it. Moreover, as a BD chooses to direct fewer orders to a particular exchange, the value of the product to that BD decreases, for two reasons. First, the product will contain less information, because executions of the BD’s orders will not be reflected in it. Second, and perhaps more important, the product will be less valuable to that BD because it does not provide information about the venue to which it is directing its orders. Data from the competing venue to which the BD is directing orders will become correspondingly more valuable. Thus, an increase in the fees charged for either transactions or data has the potential to impair revenues from both products. ‘‘No one disputes that competition for order flow is ‘fierce’.’’ 12 However, the existence of fierce competition for order flow implies a high degree of price sensitivity on the 12 Id. PO 00000 Frm 00138 Fmt 4703 Sfmt 4703 22345 part of BDs with order flow, since they may readily reduce costs by directing orders toward the lowest-cost trading venues. A BD that shifted its order flow from one platform to another in response to order execution price differentials would both reduce the value of that platform’s market data and reduce its own need to consume data from the disfavored platform. Similarly, if a platform increases its market data fees, the change will affect the overall cost of doing business with the platform, and affected BDs will assess whether they can lower their trading costs by directing orders elsewhere and thereby lessening the need for the more expensive data. Analyzing the cost of market data distribution in isolation from the cost of all of the inputs supporting the creation of market data will inevitably underestimate the cost of the data. Thus, because it is impossible to create data without a fast, technologically robust, and well-regulated execution system, system costs and regulatory costs affect the price of market data. It would be equally misleading, however, to attribute all of the exchange’s costs to the market data portion of an exchange’s joint product. Rather, all of the exchange’s costs are incurred for the unified purposes of attracting order flow, executing and/or routing orders, and generating and selling data about market activity. The total return that an exchange earns reflects the revenues it receives from the joint products and the total costs of the joint products. Competition among trading platforms can be expected to constrain the aggregate return each platform earns from the sale of its joint products, but different platforms may choose from a range of possible, and equally reasonable, pricing strategies as the means of recovering total costs. Nasdaq pays rebates to attract orders, charges relatively low prices for market information and charges relatively high prices for accessing posted liquidity. Other platforms may choose a strategy of paying lower liquidity rebates to attract orders, setting relatively low prices for accessing posted liquidity, and setting relatively high prices for market information. Still others may provide most data free of charge and rely exclusively on transaction fees to recover their costs. Finally, some platforms may incentivize use by providing opportunities for equity ownership, which may allow them to charge lower direct fees for executions and data. In this environment, there is no economic basis for regulating maximum prices for one of the joint products in an E:\FR\FM\15APN1.SGM 15APN1 asabaliauskas on DSK3SPTVN1PROD with NOTICES 22346 Federal Register / Vol. 81, No. 73 / Friday, April 15, 2016 / Notices industry in which suppliers face competitive constraints with regard to the joint offering. Such regulation is unnecessary because an ‘‘excessive’’ price for one of the joint products will ultimately have to be reflected in lower prices for other products sold by the firm, or otherwise the firm will experience a loss in the volume of its sales that will be adverse to its overall profitability. In other words, an increase in the price of data will ultimately have to be accompanied by a decrease in the cost of executions, or the volume of both data and executions will fall. The level of competition and contestability in the market is evident in the numerous alternative venues that compete for order flow, including eleven SRO markets, as well as internalizing BDs and various forms of alternative trading systems (‘‘ATSs’’), including dark pools and electronic communication networks (‘‘ECNs’’). Each SRO market competes to produce transaction reports via trade executions, and two FINRA-regulated TRFs compete to attract internalized transaction reports. It is common for BDs to further and exploit this competition by sending their order flow and transaction reports to multiple markets, rather than providing them all to a single market. Competitive markets for order flow, executions, and transaction reports provide pricing discipline for the inputs of proprietary data products. The large number of SROs, TRFs, BDs, and ATSs that currently produce proprietary data or are currently capable of producing it provides further pricing discipline for proprietary data products. Each SRO, TRF, ATS, and BD is currently permitted to produce proprietary data products, and many currently do or have announced plans to do so, including NASDAQ, NYSE, NYSE MKT, NYSE Arca, and BATS/ Direct Edge. Any ATS or BD can combine with any other ATS, BD, or multiple ATSs or BDs to produce joint proprietary data products. Additionally, order routers and market data vendors can facilitate single or multiple BDs’ production of proprietary data products. The potential sources of proprietary products are virtually limitless. Notably, the potential sources of data include the BDs that submit trade reports to TRFs and that have the ability to consolidate and distribute their data without the involvement of FINRA or an exchangeoperated TRF. The fact that proprietary data from ATSs, BDs, and vendors can by-pass SROs is significant in two respects. First, non-SROs can compete directly with SROs for the production and sale VerDate Sep<11>2014 17:27 Apr 14, 2016 Jkt 238001 of proprietary data products, as BATS and NYSE Arca did before registering as exchanges by publishing proprietary book data on the internet. Second, because a single order or transaction report can appear in a core data product, an SRO proprietary product, and/or a non-SRO proprietary product, the data available in proprietary products is exponentially greater than the actual number of orders and transaction reports that exist in the marketplace. In addition to the competition and price discipline described above, the market for proprietary data products is also highly contestable because market entry is rapid, inexpensive, and profitable. The history of electronic trading is replete with examples of entrants that swiftly grew into some of the largest electronic trading platforms and proprietary data producers: Archipelago, Bloomberg Tradebook, Island, RediBook, Attain, TracECN, BATS Trading and BATS/Direct Edge. A proliferation of dark pools and other ATSs operate profitably with fragmentary shares of consolidated market volume. Regulation NMS, by deregulating the market for proprietary data, has increased the contestability of that market. While BDs have previously published their proprietary data individually, Regulation NMS encourages market data vendors and BDs to produce proprietary products cooperatively in a manner never before possible. Multiple market data vendors already have the capability to aggregate data and disseminate it on a profitable scale, including Bloomberg and Thomson Reuters. In Europe, Cinnober aggregates and disseminates data from over 40 brokers and multilateral trading facilities.13 In the case of TRFs, the rapid entry of several exchanges into this space in 2006–2007 following the development and Commission approval of the TRF structure demonstrates the contestability of this aspect of the market.14 Given the demand for trade reporting services that is itself a byproduct of the fierce competition for transaction executions—characterized notably by a proliferation of ATSs and BDs offering internalization—any supracompetitive increase in the fees associated with trade reporting or TRF data would shift trade report volumes from one of the existing TRFs to the 13 See http://www.cinnober.com/boat-tradereporting. 14 The low cost exit of two TRFs from the market is also evidence of a contestable market, because new entrants are reluctant to enter a market where exit may involve substantial shut-down costs. PO 00000 Frm 00139 Fmt 4703 Sfmt 4703 other 15 and create incentives for other TRF operators to enter the space. Alternatively, because BDs reporting to TRFs are themselves free to consolidate the market data that they report, the market for over-the-counter data itself, separate and apart from the markets for execution and trade reporting services— is fully contestable. Moreover, consolidated data provides two additional measures of pricing discipline for proprietary data products that are a subset of the consolidated data stream. First, the consolidated data is widely available in real-time at $1 per month for non-professional users. Second, consolidated data is also available at no cost with a 15- or 20minute delay. Because consolidated data contains marketwide information, it effectively places a cap on the fees assessed for proprietary data (such as last sale data) that is simply a subset of the consolidated data. The mere availability of low-cost or free consolidated data provides a powerful form of pricing discipline for proprietary data products that contain data elements that are a subset of the consolidated data, by highlighting the optional nature of proprietary products. In this instance, the Exchange believes that amending Nasdaq Rule 7039(b) to reduce the monthly maximum fee from $50,000 to $41,500 for each distributor of Nasdaq Last Sale Data Feeds (exclusive of the $1,500 monthly fee that all distributors of a Nasdaq Last Sale Data Feed must also pay and that is set forth under Nasdaq Rule 7039(c)) does not impose a burden on competition and may increase competition through making this a more affordable option for distributors. Accordingly, the Exchange does not believe that the proposed change 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 Written comments were neither solicited nor received. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The foregoing change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.16 At any time within 60 days of the filing of the 15 It should be noted that the FINRA/NYSE TRF has, in recent weeks, received reports for almost 10% of all over-the-counter volume in NMS stocks. 16 15 U.S.C. 78s(b)(3)(A)(ii). E:\FR\FM\15APN1.SGM 15APN1 Federal Register / Vol. 81, No. 73 / Friday, April 15, 2016 / Notices 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. IV. Solicitation of Comments Electronic Comments • Use the Commission’s Internet comment form (http://www.sec.gov/ rules/sro.shtml); or • Send an email to rule-comments@ sec.gov. Please include File Number SR– NASDAQ–2016–048 on the subject line. asabaliauskas on DSK3SPTVN1PROD with NOTICES Paper Comments • Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090. All submissions should refer to File Number SR–NASDAQ–2016–048. 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 (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 Web site viewing and printing in the Commission’s Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of 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– 17:27 Apr 14, 2016 Jkt 238001 For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.17 Robert W. Errett, Deputy Secretary. [FR Doc. 2016–08643 Filed 4–14–16; 8:45 am] BILLING CODE 8011–01–P 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: VerDate Sep<11>2014 NASDAQ–2016–048, and should be submitted on or before May 6, 2016. SECURITIES AND EXCHANGE COMMISSION [Release No. 34–77579; File No. SR–FINRA– 2015–036] Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing of Amendment No. 2 and Designation of a Longer Period for Commission Action on Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change To Amend FINRA Rule 4210 (Margin Requirements) To Establish Margin Requirements for the TBA Market, as Modified by Amendment Nos. 1 and 2 April 11, 2016. I. Introduction On October 6, 2015, Financial Industry Regulatory Authority, Inc. (‘‘FINRA’’) filed with the Securities and Exchange Commission (‘‘Commission’’), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Exchange Act’’) 1 and Rule 19b–4 thereunder,2 a proposed rule change to amend FINRA Rule 4210 (Margin Requirements) to establish margin requirements for covered agency transactions, also referred to, for purposes of this proposed rule change as the To Be Announced (‘‘TBA’’) market. The proposed rule change was published for comment in the Federal Register on October 20, 2015.3 On November 10, 2015, FINRA extended the time period in which the Commission must approve the proposed rule change, disapprove the proposed rule change, or institute proceedings to determine whether to approve or disapprove the proposed rule change to January 15, 2016.4 The Commission 17 17 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 3 See Exchange Act Release No. 76148 (Oct. 14, 2015), 80 FR 63603 (Oct. 20, 2015) (File No. SR– FINRA–2015–036) (‘‘Notice’’). 4 See Extension No. 1, dated November 10, 2015. FINRA’s extension of time for Commission action. The extension is available at, http://www.finra.org/ sites/default/files/rule_filing_file/SR-FINRA-2015036-extension-1.pdf>. 1 15 PO 00000 Frm 00140 Fmt 4703 Sfmt 4703 22347 received 109 comment letters in response to the proposal.5 On January 13, 2016, FINRA responded to the comments and filed Amendment No. 1 to the proposal.6 On January 14, 2016, the Commission issued an order instituting proceedings pursuant to Section 19(b)(2)(B) of the Exchange Act 7 to determine whether to approve or disapprove the proposed rule change, as modified by Amendment No. 1. The Order Instituting Proceedings was published in the Federal Register on January 21, 2016.8 The Commission received 23 comment letters in response to the Order Instituting Proceedings.9 5 See Exchange Act Release No. 76908 (Jan. 14, 2016), 81 FR 3532 (Jan. 21, 2016) (Order Instituting Proceedings To Determine Whether To Approve or Disapprove Proposed Rule Change to Amend FINRA Rule 4210 (Margin Requirements), to Establish Margin Requirements for the TBA Market, as Modified by Partial Amendment No. 1) (‘‘Order Instituting Proceedings’’). 6 See Amendment No. 1, dated January 13, 2016 (‘‘Amendment No. 1’’). FINRA’s responses to comments received and proposed amendments are included in Amendment No. 1. 7 15 U.S.C. 78s(b)(2)(B) (if the Commission does not approve or disapprove a proposed rule change under Section 19(b)(2)(A) of the Exchange Act—i.e., within 90 days of publication of notice of the filing of the proposed rule change in the Federal Register—the Commission shall institute proceedings to determine whether to approve or disapprove the proposed rule change). 8 See supra note 5. 9 See Letters from Matrix Applications, LLC, dated February 9, 2016 (‘‘Matrix 2 Letter’’); Tari Flannery, M&T Realty Capital Corporation, dated February 9, 2016 (‘‘M&T 2 Realty Letter’’); Holly MacDonald-Korth, JW Korth & Company, dated February 9, 2016 (‘‘Korth Letter’’); Chris Melton, Coastal Securities, dated February 10, 2016 (‘‘Coastal 2 Letter’’); Rodrigo Lopez, NorthMarq Capital Finance, L.L.C., dated February 10, 2016 (‘‘NorthMarq 2 Letter’’); Steve Wendel, CBRE, Inc., dated February 11, 2016 (‘‘CBRE 2 Letter’’); Tony Love, Forest City Capital Corporation, dated February 11, 2016 (‘‘Forest City 3 Letter’’); Robert Kirkwood, Lancaster Pollard Mortgage Company, dated February 11, 2016 (‘‘Lancaster Pollard 2 Letter’’); Mike Nicholas, Bond Dealers of America, dated February 11, 2016 (‘‘BDA 2 Letter’’); Blake Lanford, Walker & Dunlop, LLC, dated February 11, 2016 (‘‘W&D 2 Letter’’); Allen Riggs, Vining Sparks IBG, LP, dated February 11, 2016 (‘‘Vining Sparks Letter’’); John Gidman, Association of Institutional Investors, dated February 11, 2016 (‘‘AII 2 Letter’’); Christopher B. Killian, Securities Industry and Financial Markets Association, dated February 11, 2016 (‘‘SIFMA 2 Letter’’); Roderick D. Owens, Committee on Healthcare Financing, dated February 10, 2016 (‘‘CHF 2 Letter’’); Bruce Sandweiss, Gershman Mortgage, dated February 11, 2016 (‘‘Gershman 3 Letter’’); Timothy W. Cameron and Laura Martin, Securities Industry and Financial Markets Association, Asset Management Group, dated February 11, 2016 (‘‘SIFMA AMG 2 Letter’’); Mike McRobers, Prudential Mortgage Capital Company, dated February 11, 2016 (‘‘Prudential 2 Letter’’); James M. Cain, Sutherland Asbill & Brennan LLP (on behalf of Federal Home Loan Banks), dated February 11, 2016 (‘‘Sutherland 2 Letter’’); Carl B. Wilkerson, American Council of Life Insurers, dated February 11, 2016 (‘‘ACLI 2 Letter’’); David H. Stevens, Mortgage Bankers Association, dated February 11, 2016 (‘‘MBA 2 Letter’’); U.S. Senator Tom Cotton, dated February E:\FR\FM\15APN1.SGM Continued 15APN1

Agencies

[Federal Register Volume 81, Number 73 (Friday, April 15, 2016)]
[Notices]
[Pages 22344-22347]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-08643]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-77578; File No. SR-NASDAQ-2016-048]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To 
Amend Nasdaq Rule 7039

April 11, 2016.
    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 March 31, 2016, The NASDAQ Stock Market LLC (``Nasdaq'' or the 
``Exchange'') filed with the Securities and Exchange Commission 
(``SEC'' or ``Commission'') a 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.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    Nasdaq is proposing changes to amend Nasdaq Rule 7039 (NASDAQ Last 
Sale and NASDAQ Last Sale Plus Data Feeds).
    The text of the proposed rule change is available at 
nasdaq.cchwallstreet.com, at Nasdaq's principal office, 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, Nasdaq 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.

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

1. Purpose
    The Exchange proposes to amend Nasdaq Rule 7039 (NASDAQ Last Sale 
and NASDAQ Last Sale Plus Data Feeds). Nasdaq offers two proprietary 
data feeds containing real-time last sale information for trades 
executed on Nasdaq or reported to the Nasdaq/FINRA Trade Reporting 
Facility. These include the ``NASDAQ Last Sale for NASDAQ,'' \3\ which 
contains all transaction reports for Nasdaq-listed stocks and ``NASDAQ 
Last Sale for NYSE/NYSE MKT,'' \4\ which contains all such transaction 
reports for NYSE- and NYSE MKT-listed stocks (collectively, the 
``Nasdaq Last Sale Data Feeds'').
---------------------------------------------------------------------------

    \3\ See Nasdaq Rule 7039(a)(1).
    \4\ See Nasdaq Rule 7039(a)(2).
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    Specifically, Nasdaq proposes to amend Nasdaq Rule 7039(b) to 
reduce the monthly fee from $50,000 to $41,500 for each distributor of 
Nasdaq Last Sale Data Feeds. The new lower fee is designed to 
incentivize distributors to subscribe to the Nasdaq Last Sale Data 
Feeds. This fee is exclusive of the $1,500 monthly fee that all 
distributors of a Nasdaq Last Sale Data Feed must also pay and that is 
set forth under Nasdaq Rule 7039(c).
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act,\5\ in general, and furthers the objectives of Sections 
6(b)(4) and 6(b)(5) of the Act,\6\ 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 its facilities which 
the Exchange operates or controls, and is not designed to permit unfair 
discrimination between customers, issuers, brokers, or dealers.
---------------------------------------------------------------------------

    \5\ 15 U.S.C. 78f(b).
    \6\ 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, while adopting a series of steps to improve the current market 
model, the Commission highlighted the importance of market forces in 
determining prices and SRO revenues and, also, recognized that current 
regulation of the market system ``has been remarkably successful in 
promoting market competition in its broader forms that are most 
important to investors and listed companies.'' \7\
---------------------------------------------------------------------------

    \7\ Securities Exchange Act Release No. 34-51808 (June 9, 2005) 
(``Regulation NMS Adopting Release'').
---------------------------------------------------------------------------

    Likewise, in NetCoalition v. Securities and Exchange Commission \8\ 
(``NetCoalition'') the D.C. Circuit upheld the Commission's use of a 
market-based

[[Page 22345]]

approach in evaluating the fairness of market data fees against a 
challenge claiming that Congress mandated a cost-based approach.\9\ 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.'' \10\
---------------------------------------------------------------------------

    \8\ NetCoalition v. SEC, 615 F.3d 525 (D.C. Cir. 2010).
    \9\ Id. at 534-535.
    \10\ 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'. . . .'' \11\
---------------------------------------------------------------------------

    \11\ Id. at 539 (quoting ArcaBook Order, 73 FR at 74782-74783).
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    The Exchange believes that amending Nasdaq Rule 7039(b) to reduce 
the monthly maximum fee from $50,000 to $41,500 for each distributor of 
Nasdaq Last Sale Data Feeds (exclusive of the $1,500 monthly fee 
applicable to all distributors of a Nasdaq Last Sale Data Feed under 
Nasdaq Rule 7039(c)) is reasonable because Nasdaq believes it will 
incentivize more distributors to subscribe to the Nasdaq Last Sale Data 
Feeds.
    The Exchange also believes that the proposed rule fee change is an 
equitable allocation and is not unfairly discriminatory because the 
Exchange will apply the new lower fee uniformly across all distributors 
of Nasdaq Last Sale Data Feeds

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

    The Exchange does not believe that the proposed rule change will 
result in any burden on competition that is not necessary or 
appropriate in furtherance of the purposes of the Act, as amended. 
Notwithstanding its determination that the Commission may rely upon 
competition to establish fair and equitably allocated fees for market 
data, the NetCoalition court found that the Commission had not, in that 
case, compiled a record that adequately supported its conclusion that 
the market for the data at issue in the case was competitive. Nasdaq 
believes that a record may readily be established to demonstrate the 
competitive nature of the market in question.
    There is intense competition between trading platforms that provide 
transaction execution and routing services and proprietary data 
products. Transaction execution and proprietary data products are 
complementary in that market data is both an input and a byproduct of 
the execution service. In fact, market data and trade execution are a 
paradigmatic example of joint products with joint costs. Data products 
are valuable to many end Subscribers only insofar as they provide 
information that end Subscribers expect will assist them or their 
customers in making trading decisions.
    The costs of producing market data include not only the costs of 
the data distribution infrastructure, but also the costs of designing, 
maintaining, and operating the exchange's transaction execution 
platform and the cost of regulating the exchange to ensure its fair 
operation and maintain investor confidence. The total return that a 
trading platform earns reflects the revenues it receives from both 
products and the joint costs it incurs.
    Moreover, an exchange's customers view the costs of transaction 
executions and of data as a unified cost of doing business with the 
exchange. A broker-dealer (``BD'') will direct orders to a particular 
exchange only if the expected revenues from executing trades on the 
exchange exceed net transaction execution costs and the cost of data 
that the BD chooses to buy to support its trading decisions (or those 
of its customers). The choice of data products is, in turn, a product 
of the value of the products in making profitable trading decisions. If 
the cost of the product exceeds its expected value, the BD will choose 
not to buy it. Moreover, as a BD chooses to direct fewer orders to a 
particular exchange, the value of the product to that BD decreases, for 
two reasons. First, the product will contain less information, because 
executions of the BD's orders will not be reflected in it. Second, and 
perhaps more important, the product will be less valuable to that BD 
because it does not provide information about the venue to which it is 
directing its orders. Data from the competing venue to which the BD is 
directing orders will become correspondingly more valuable.
    Thus, an increase in the fees charged for either transactions or 
data has the potential to impair revenues from both products. ``No one 
disputes that competition for order flow is `fierce'.'' \12\ However, 
the existence of fierce competition for order flow implies a high 
degree of price sensitivity on the part of BDs with order flow, since 
they may readily reduce costs by directing orders toward the lowest-
cost trading venues. A BD that shifted its order flow from one platform 
to another in response to order execution price differentials would 
both reduce the value of that platform's market data and reduce its own 
need to consume data from the disfavored platform. Similarly, if a 
platform increases its market data fees, the change will affect the 
overall cost of doing business with the platform, and affected BDs will 
assess whether they can lower their trading costs by directing orders 
elsewhere and thereby lessening the need for the more expensive data.
---------------------------------------------------------------------------

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

    Analyzing the cost of market data distribution in isolation from 
the cost of all of the inputs supporting the creation of market data 
will inevitably underestimate the cost of the data. Thus, because it is 
impossible to create data without a fast, technologically robust, and 
well-regulated execution system, system costs and regulatory costs 
affect the price of market data. It would be equally misleading, 
however, to attribute all of the exchange's costs to the market data 
portion of an exchange's joint product. Rather, all of the exchange's 
costs are incurred for the unified purposes of attracting order flow, 
executing and/or routing orders, and generating and selling data about 
market activity. The total return that an exchange earns reflects the 
revenues it receives from the joint products and the total costs of the 
joint products.
    Competition among trading platforms can be expected to constrain 
the aggregate return each platform earns from the sale of its joint 
products, but different platforms may choose from a range of possible, 
and equally reasonable, pricing strategies as the means of recovering 
total costs. Nasdaq pays rebates to attract orders, charges relatively 
low prices for market information and charges relatively high prices 
for accessing posted liquidity. Other platforms may choose a strategy 
of paying lower liquidity rebates to attract orders, setting relatively 
low prices for accessing posted liquidity, and setting relatively high 
prices for market information. Still others may provide most data free 
of charge and rely exclusively on transaction fees to recover their 
costs. Finally, some platforms may incentivize use by providing 
opportunities for equity ownership, which may allow them to charge 
lower direct fees for executions and data.
    In this environment, there is no economic basis for regulating 
maximum prices for one of the joint products in an

[[Page 22346]]

industry in which suppliers face competitive constraints with regard to 
the joint offering. Such regulation is unnecessary because an 
``excessive'' price for one of the joint products will ultimately have 
to be reflected in lower prices for other products sold by the firm, or 
otherwise the firm will experience a loss in the volume of its sales 
that will be adverse to its overall profitability. In other words, an 
increase in the price of data will ultimately have to be accompanied by 
a decrease in the cost of executions, or the volume of both data and 
executions will fall.
    The level of competition and contestability in the market is 
evident in the numerous alternative venues that compete for order flow, 
including eleven SRO markets, as well as internalizing BDs and various 
forms of alternative trading systems (``ATSs''), including dark pools 
and electronic communication networks (``ECNs''). Each SRO market 
competes to produce transaction reports via trade executions, and two 
FINRA-regulated TRFs compete to attract internalized transaction 
reports. It is common for BDs to further and exploit this competition 
by sending their order flow and transaction reports to multiple 
markets, rather than providing them all to a single market. Competitive 
markets for order flow, executions, and transaction reports provide 
pricing discipline for the inputs of proprietary data products.
    The large number of SROs, TRFs, BDs, and ATSs that currently 
produce proprietary data or are currently capable of producing it 
provides further pricing discipline for proprietary data products. Each 
SRO, TRF, ATS, and BD is currently permitted to produce proprietary 
data products, and many currently do or have announced plans to do so, 
including NASDAQ, NYSE, NYSE MKT, NYSE Arca, and BATS/Direct Edge.
    Any ATS or BD can combine with any other ATS, BD, or multiple ATSs 
or BDs to produce joint proprietary data products. Additionally, order 
routers and market data vendors can facilitate single or multiple BDs' 
production of proprietary data products. The potential sources of 
proprietary products are virtually limitless. Notably, the potential 
sources of data include the BDs that submit trade reports to TRFs and 
that have the ability to consolidate and distribute their data without 
the involvement of FINRA or an exchange-operated TRF.
    The fact that proprietary data from ATSs, BDs, and vendors can by-
pass SROs is significant in two respects. First, non-SROs can compete 
directly with SROs for the production and sale of proprietary data 
products, as BATS and NYSE Arca did before registering as exchanges by 
publishing proprietary book data on the internet. Second, because a 
single order or transaction report can appear in a core data product, 
an SRO proprietary product, and/or a non-SRO proprietary product, the 
data available in proprietary products is exponentially greater than 
the actual number of orders and transaction reports that exist in the 
marketplace.
    In addition to the competition and price discipline described 
above, the market for proprietary data products is also highly 
contestable because market entry is rapid, inexpensive, and profitable. 
The history of electronic trading is replete with examples of entrants 
that swiftly grew into some of the largest electronic trading platforms 
and proprietary data producers: Archipelago, Bloomberg Tradebook, 
Island, RediBook, Attain, TracECN, BATS Trading and BATS/Direct Edge. A 
proliferation of dark pools and other ATSs operate profitably with 
fragmentary shares of consolidated market volume.
    Regulation NMS, by deregulating the market for proprietary data, 
has increased the contestability of that market. While BDs have 
previously published their proprietary data individually, Regulation 
NMS encourages market data vendors and BDs to produce proprietary 
products cooperatively in a manner never before possible. Multiple 
market data vendors already have the capability to aggregate data and 
disseminate it on a profitable scale, including Bloomberg and Thomson 
Reuters. In Europe, Cinnober aggregates and disseminates data from over 
40 brokers and multilateral trading facilities.\13\
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    \13\ See http://www.cinnober.com/boat-trade-reporting.
---------------------------------------------------------------------------

    In the case of TRFs, the rapid entry of several exchanges into this 
space in 2006-2007 following the development and Commission approval of 
the TRF structure demonstrates the contestability of this aspect of the 
market.\14\ Given the demand for trade reporting services that is 
itself a by-product of the fierce competition for transaction 
executions--characterized notably by a proliferation of ATSs and BDs 
offering internalization--any supra-competitive increase in the fees 
associated with trade reporting or TRF data would shift trade report 
volumes from one of the existing TRFs to the other \15\ and create 
incentives for other TRF operators to enter the space. Alternatively, 
because BDs reporting to TRFs are themselves free to consolidate the 
market data that they report, the market for over-the-counter data 
itself, separate and apart from the markets for execution and trade 
reporting services--is fully contestable.
---------------------------------------------------------------------------

    \14\ The low cost exit of two TRFs from the market is also 
evidence of a contestable market, because new entrants are reluctant 
to enter a market where exit may involve substantial shut-down 
costs.
    \15\ It should be noted that the FINRA/NYSE TRF has, in recent 
weeks, received reports for almost 10% of all over-the-counter 
volume in NMS stocks.
---------------------------------------------------------------------------

    Moreover, consolidated data provides two additional measures of 
pricing discipline for proprietary data products that are a subset of 
the consolidated data stream. First, the consolidated data is widely 
available in real-time at $1 per month for non-professional users. 
Second, consolidated data is also available at no cost with a 15- or 
20-minute delay. Because consolidated data contains marketwide 
information, it effectively places a cap on the fees assessed for 
proprietary data (such as last sale data) that is simply a subset of 
the consolidated data. The mere availability of low-cost or free 
consolidated data provides a powerful form of pricing discipline for 
proprietary data products that contain data elements that are a subset 
of the consolidated data, by highlighting the optional nature of 
proprietary products.
    In this instance, the Exchange believes that amending Nasdaq Rule 
7039(b) to reduce the monthly maximum fee from $50,000 to $41,500 for 
each distributor of Nasdaq Last Sale Data Feeds (exclusive of the 
$1,500 monthly fee that all distributors of a Nasdaq Last Sale Data 
Feed must also pay and that is set forth under Nasdaq Rule 7039(c)) 
does not impose a burden on competition and may increase competition 
through making this a more affordable option for distributors. 
Accordingly, the Exchange does not believe that the proposed change 
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

    Written comments were neither solicited nor received.

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

    The foregoing change has become effective pursuant to Section 
19(b)(3)(A)(ii) of the Act.\16\ At any time within 60 days of the 
filing of the

[[Page 22347]]

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.
---------------------------------------------------------------------------

    \16\ 15 U.S.C. 78s(b)(3)(A)(ii).
---------------------------------------------------------------------------

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 rule-comments@sec.gov. Please include 
File Number SR-NASDAQ-2016-048 on the subject line.

Paper Comments

     Send paper comments in triplicate to Brent J. Fields, 
Secretary, Securities and Exchange Commission, 100 F Street NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-NASDAQ-2016-048. 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 (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 Web site viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE., 
Washington, DC 20549, on official business days between the hours of 
10:00 a.m. and 3:00 p.m. Copies of 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-2016-048, and should 
be submitted on or before May 6, 2016.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\17\
---------------------------------------------------------------------------

    \17\ 17 CFR 200.30-3(a)(12).
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Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016-08643 Filed 4-14-16; 8:45 am]
BILLING CODE 8011-01-P